Brown & Kelly

News & Achievements

Court Upholds Multi-million Dollar Award to Brown & Kelly Client

Yesterday, the 2nd Circuit Court of Appeals upheld almost $4 million in damages awarded to Elijah Turley by the United States District Court in Buffalo, as a result of his employment discrimination and harassment claims against his former employer, Arcelor-Mittal Steel.

Although the Court reduced the punitive damages portion of the judgment from $5 million to $2.6 million, it turned away almost every argument made by the defendants on appeal.

The court noted that Mr. Turley had "endured an extraordinary and steadily intensifying drumbeat of racial insults, intimidation, and degradation over a period of more than three years." The court noted that the employer's "meager investigations and nearly total lack of action failed to stop the escalating abuse; instead, managers often appeared to condone or even participate in part in the harassment."

While the court observed that few recorded cases had dealt with an "award of quite this magnitude" ($1.32 million) in damages for pain and suffering, the reason for this is that this level of harassment and mistreatment had never before been reported, and "the case before us appears to be unique."

Brown and Kelly, and trial counsel Donald B. Eppers, were honored to represent Mr. Turley in his efforts to obtain justice for what he endured.


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New Office Conference Room Build Out

As construction continues, this photograph shows the framing of the curved glass wall of our future large conference room. The middle portion will be stained hardwood which will have our logo mounted on it. 

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Court of Appeals Case on Lead Paint
Many insurance policies contain a “non-cumulation clause” which limits the insurer’s exposure to the policy limit.  The Court of Appeals previously addressed the non-cumulation clause for lead paint claims in Hiraldo v. Allstate, 5 N.Y.3d 508, 840 N.E.2d 563 (2005), where the infant plaintiff alleged lead poisoning over the course of three (3) years while living at a property owned by the insured.  The insured had a landlord’s insurance policy with Allstate, and two (2) identical renewal policies, each with a $300,000 liability limit.  The Court of Appeals held that the non-cumulation clause precluded the plaintiff from stacking the policies.  The liability limits for plaintiff’s claims were thus $300,000.  

In the November 25, 2014 Nesmith v. Allstate Insurance Company decision, the Court of Appeals held that the non-cumulation clause may limit the insurer’s exposure in cases where multiple plaintiffs were successively exposed to the same lead hazzard in the same household. A copy of the decision is enclosed.

In Nesmith v. Allstate Insurance Company, two (2) families occupied the same apartment in successive years between 1992 and 1993. Felicia Young and her children lived in the subject apartment from November 1992 until September 1993. In July 1993, the Department of Health notified the landlord that one of the Young children had been found to have elevated lead levels and violations were cited at the residence. The landlord made repairs and the Department of Health advised, in August 1993, that the violations had been corrected. After the Young family moved out in September 1993, Lorenzo Patterson, Sr. moved in with the Nesmith children. Again, a child was found to have an elevated blood level and violations were cited by the Department of Health.  Thus, despite the initial efforts made by the landlord to remediate the lead hazards after the first family vacated the property, and before the second family moved into the property, lead hazzards continued to exist on the property.

The Court of Appeals agreed with Defendant Allstate that there was no basis to conclude that a new lead paint hazard had been introduced between the time when the first family moved out of the residence and the second family moved in.  Even though the claims were during different time frames and involved different plaintiffs, the hazard was the same. Both the Nesmith and Young plaintiffs were injured “from continuous or repeated exposure to the same general conditions”, so that the injuries were a single “accidental loss” within the meaning of the policy. Thus, the insurer’s maximum total liability for the Nesmith and Young claims was the policy limit. 

The significance of this decision cannot be overstated as it caps an insurer’s exposure in multiple claims to the policy limit for “each occurrence”, as long as the hazard is the same and the policy contains a non-cumulation clause.

If you have any questions on this decision or any lead paint claims, please do not hesitate to contact Renata Kowalczuk or Kristen B. Degnan.

Super Lawyers 2014

We are proud to announce that Kenneth A. Krajewski, Renata Kowalczuk, Donald B. Eppers, Jessica J. Burgasser, Andrew D. Merrick and Paul Michael Hassett were selected as Super Lawyers 2014. Inclusion in Super Lawyers is based on a rigorous, multi-step selection process, which includes background and experience as well as peer review recommendation. 

We are also pleased to announce that Kathleen T Feroleto has been selected as a Rising Star to the Super Lawyers list for 2014. The selection as a Super Lawyer Rising Star is a great honor, not only because it recognizes outstanding achievement, but also because it is dependent upon the recommendation of peers. Less than 2.5% of lawyers in each state are named Rising Stars.

2014 Court of Appeals Decision on Disclosure Requirements in New York Lead Paint Cases

On June 12, 2014, in the case of Hamilton v. Miller et al., the New York State Court of Appeals addressed whether a plaintiff has to supply medical narrative reports diagnosing every condition or injury alleged in plaintiff’s bill of particulars prior to an independent medical examination. The Court answered in the negative.

In Hamilton, plaintiffs’ attorney alleged over fifty (50) injuries in the Bill of Particulars, including kidney damage, liver damage, eye damage, and neurological damage with related cognitive and behavior problems. The plaintiffs provided no medical evidence regarding most of the injuries and disclosed no medical diagnoses linking their injuries to the lead exposure. The only "evidence" they provided were their diagnoses of elevated lead levels (a lead level of 35 in one case and a lead level of 58 in the other).

Before conducting independent medical examinations under CPLR Section 3121, six defendant landlords moved pursuant to 22 N.Y.C.R.R. 202.17 to compel the plaintiffs to produce any medical reports diagnosing them with the injuries alleged in the Bill of Particulars, and causally relating those injuries to lead exposure. The Supreme Court agreed and ordered the plaintiffs to produce the disclosure to the independent medical examination as it would be fundamentally unfair and contrary to the spirit and intent of 22NYCRR202.17 to force defendants to conduct IMEs in a vacuum. The Fourth Department affirmed.

The New York State Court of Appeals reversed. The Court held that the trial level order imposed unduly burdensome obligations not contemplated by 22 N.Y.C.R.R. 202.17. The Court held the regulation requires only the disclosure of medical reports by medical providers who have previously treated or examined the party seeking recovery, whereas the disclosure sought by the defendants was akin to expert disclosure. For the plaintiff to succeed at trial, the plaintiff will likely need to retain an expert to review the medical records and render the type of causation opinion contemplated by the defendants. However, nothing in the language of 22 N.Y.C.R.R. 202.17 required a plaintiff to make such disclosure at this early stage in litigation, i.e., pre independent medical examination.

The Court of Appeals further indicated that the proper way to deal with issues regarding expert disclosure would be for defendants to ask the individual Judges to amend, or issue, scheduling orders requiring plaintiffs produce expert disclosure at an earlier date. Thus, defense counsel must request the Court order plaintiff to provide expert disclosure prior to the defense expert disclosure deadline, and in advice of 30 days before trial.

Should you have any questions or concerns, please feel free to contact Renata Kowalczuk or Kristen B. Degnan.

Paul M. Hassett Jr. receives the 2014 Canisius College LaSalle Medal

At Canisius College, the LaSalle Medal is presented periodically to outstanding alumni who have made substantial contributions to advance the interests of the college.  Paul Michael Hassett Jr. from the Class of 1962 is one of two recipients to have been selected to receive the 2014 LaSalle Medal.

The Medal was presented to Paul at the college’s 148th Undergraduate Commencement Ceremony on Saturday, May 17, 2014 at the Koessler Athletic Center.

As a recipient of this honorary award, Paul joined President John J. Hurley and other key institutional leaders as a member of the platform party.

Lawyers for Learning Bowling Tournament

Brown & Kelly, LLP again participated in the Lawyers for Learning Bowling Tournament. The Lawyers for Learning program matches volunteers from the legal community to students in grades one through eight who are academically at risk and/or financially disadvantaged in order to improve their academic performance, build self-esteem, provide profession role-modeling and increase self-confidence. Kathleen T. Feroleto is a volunteer tutor with the program.
The combined efforts of bowlers Renata Kowalczuk, Managing Partner, and Rebecca Koenig, Litigation Paralegal and Administration and Personnel Manager, lead to them winning “The Worst Bowler” trophy for the evening. Dawn Lindner, the firm’s Litigation Medical Coordinator, coordinated our participation and school supplies donations, as well as bowling at the event. The other bowlers were: Kristen B. Degnan and Shea Kolar, Attorneys; Kristie Marshall, Paralegal; Laura Young, Bookkeeper; Teresa Cleary, Legal Assistant; and a few significant others.


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Mentioned Attorney: Kathleen T. Feroleto

Jessica J. Burgasser Is Named Partner
Brown & Kelly is pleased to announce that Jessica J. Burgasser has been named a partner to the firm. Jessica joined Brown & Kelly in 2001 and concentrates her practice in insurance defense and coverage litigation, as well as family law matters. She manages the firm’s asbestos case load and provides experienced legal advice to a wide range of asbestos clients, including manufacturers, property owners and retailers.

Mentioned Attorney: Jessica J. Burgasser

Renata Kowalczuk and Kristen B. Degnan attended the Federation of New York Insurance Professionals Conference
Renata Kowalczuk and Kristen B. Degnan attended the Federation of New York Insurance Professionals Conference in Fishkill, NY with the Insurance Women of Buffalo. The Federation of New York Insurance Professionals, Inc. was founded in 1943 as a professional organization which provides its members with skills and experiences to help them progress in the risk and insurance fields through educational, networking and philanthropic activities.
KRISTEN B. DEGNAN PRESENTS ON WORKERS COMPENSATION LAW

On April 10, 2014, Kristen B. Degnan was invited to speak to a senior level class at D’Youville College on Workers Compensation Law. Her presentation was geared toward including the perspectives of both employers and employees.  She also offered many useful tips to the class.  Thank you Kristen for your volunteer spirit as I am sure the class also appreciated your insightful tips and the time you offered out of your busy schedule.

Attorneys at Work

Attorneys Jessica Burgasser and Kathleen Feroleto traveled to a paper mill with our expert witness to perform a site inspection. Both attorneys put on their safety gear to prepare for an upcoming trial regarding an asbestos related matter.

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Brown & Kelly Remembers Friend and Colleague Julia Roberts

November 13, 2013: Brown & Kelly remembers Julia Roberts, our dear friend and colleague, who passed away one year ago today.  Julia was an integral part of the Brown & Kelly family and we continue to mourn her loss. We will forever remember Julia and reflect on her spirit, dedication and personality. We are proud to remember that Julia loved her job, her friends at Brown & Kelly, and her many many friends in the asbestos litigation community. We take comfort in knowing that she will  never be replaced nor forgotten.

BROWN & KELLY LLP WINS $25 MILLION VERDICT

On June 12, 2012, a jury in the Western District Federal Court awarded plaintiff Elijah Turley a twenty-five million dollar ($25,000,000.00) verdict. The lawsuit was commenced on behalf of Elijah Turley against ArcelorMittal in 2006 for Hostile Work Environment and Intentional Infliction of Emotional Distress. Mr. Turley was represented by Donald B. Eppers and assisted by paralegal Rebecca E. Koenig of Brown & Kelly LLP.

The jury found a Hostile Work Environment existed along with Intentional Infliction of Emotional Distress. The plaintiff presented evidence of a work environment permeated by racial discrimination. Plaintiff argued the activities in question went beyond harassment and included such incidents as "KKK" graffiti repeatedly sprayed on the walls and a stuffed monkey with a noose around its neck hanging from the plaintiff’s vehicle.

Elijah Turley and his family are very pleased that justice was finally obtained. We have a tremendous amount of respect for the jury in this case.

Mentioned Attorney: Donald B. Eppers

Brown & Kelly Wins 2010 Pro Bono Award

Brown & Kelly has been awarded the Law Firm Commitment Award from the Volunteer Lawyers Project of Western New York for its strong commitment to providing pro bono legal assistance.

2010 Super Lawyers

Donald B. Eppers, William D. Harrington, Paul Michael Hassett, Kenneth A. Krajewski, and Andrew D. Merrick have been named Super Lawyers by New York Super Lawyers Magazine, 2010 Upstate Edition. Inclusion in Super Lawyers is based on a rigorous, multi-step selection process, which includes background and experience as well as peer review recommendation. The selection as a Super Lawyer is a great honor, not only because it recognizes outstanding achievement, but also because it is dependent upon the recommendation of peers.


Jessica J. Burgasser Appointed to DRI Social Media Subcommittee

Jessica J. Burgasser has been appointed Co-Vice Chair of the Social Media subcommittee at the Defense Research Institute. 

Kenneth A. Krajewski to Serve as Chair of NYSBA Program

Kenneth A. Krajewski will serve as the Buffalo Chair for the New York State Bar Association's program "Law School for Insurance Professionals" to be held in Buffalo on September 28, 2011.  He will also speak on current auto liability and coverage issues at the Program when given in Albany on September 23, 2011. 

Donald B. Eppers to Present at Mediation Conference

Donald B. Eppers will speak on June 9, 2011 at the Erie Institute of Law program "Secrets of Successful Advocates in Mediation".

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