COVER NL 09_06.qxd - Nassau County Bar Association

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2 n July/August 2012 n Nassau Lawyer ANOTHER CHAPTER CLOSES AT DOMUS Executive Director Deena Ehrlich Retires After 25 Years By Valerie Zurblis The Nassau County Bar Association hit a milestone of sorts this summer, when the long-time Executive Director Dr. Deena R. Ehrlich finally made the difficult decision that she would retire. Her always warm smile, welcoming demeanor, and her signature statement, “Come Home To Domus” will be no more. For a quarter of a century, Deena was the one constant at the Bar Association throughout its ups and downs and the revolving door of leadership, membership and staff, all the while deeply caring for the reputation, accomplishments and the good will in the community. Along the way it seemed everything she touched blossomed into something deeper and more meaningful. “I consider her a friend, not just a bar executive director.” said Hon. Susan Kluewer. “Dr. D made it a rich, rewarding and lasting experience for which I will be forever grateful,” said Joe Ryan. And Lance Clarke added, “Thanks to her terrific efforts, NCBA will remain in my heart and mind forever.” Deena Arrives The Nassau County Bar Association had been without a permanent executive director for nearly a year before Deena found her way to the corner of 15th and West Streets in Mineola. “In April of 1987, as I was completing my term as bar president without having had the benefit of an executive director to keep my mouth from gathering a foot or two, Deena Newman began her 25-year term of service to Domus,” recalled NCBA President Edward Robinson III. “She arrived just in time to rescue the Association from, what was then, virtually an all-male governing structure with a few notable exceptions (Grace Moran comes to mind.)” While many may think that Deena is one in a million, she is actually one in 100. That’s how many applications were received after NCBA executives placed an ad in the New York Times in 1986 in search of a new executive director. At the time, A. Thomas Levin knew the Bar was looking for an executive director, and immediately thought of the fiancé of his law partner, Jerome Ehrlich. Jerry saw the ad and brought it to the attention of his soon-to-be wife, Deena Newman. At the time, Professor Newman was the director of the Office of Professional Services at Syracuse University’s School of Education, and was moving to Long Island to marry Jerry. She applied for the job, and although the diminutive brunette conceded that she had no idea what a bar association was, she connected immediately with the members of the Search Committee. “Deena was the unanimous choice for the position after an extensive search and interviews with applicants that included practicing attorneys and some highly regarded clerks of the court,” Robinson said. “She displayed an intelligence and a personality that we hoped would free us from our concern with the fate of the restaurant and allow us to focus on the ‘lesser’ issues such as MCLE, membership diversity, judicial salaries and screening, etc.” Past President Frank Yanelli (1989- 90), who was on the Executive Com - mittee at the time, agreed. “She fit in right away. She had that insight. She knew she would be working for different people year after year.” “Fortunately for NCBA, the Search Committee and the Board of Directors agreed to hire her, and the rest is history,” added Levin, who eventually became NCBA President in 1991. “The NCBA, and I personally, have been fortunate indeed to have had the benefit of her wisdom and counsel through the ensuing years.” Dinner Dance Debut In 1987, when Deena began her career at Domus, the Bar Association was in the midst of commemorating the bicentennial of the signing of the US Constitution. NCBA partnered with Nassau County to present “The Living Constitution,” raised funds to dedicate a plaque outside the Supreme Court building, (which still exists today), and honored the winners of a student writing competition as part of the annual Law Day celebration. In April of that year, Deena made her official “debut” at the 86th Annual Dinner Dance, chaired by future president and WE CARE founder Steven Gassman and honoring U.S. Senator Alfonse D’Amato. According to Jerry Ehrlich, it was one of the more memorable events of her leadership at Domus. “We were seated at our table at the Marriott, when Deena stood up and said to me, ‘It’s time for me to do my job,’ and off she went. She proceeded to work the room as skillfully as any candidate I had ever seen. Without waiting to be introduced, she waded into a sea of people, most of whom she had never met before, and began greeting and introducing herself to them. She invited them all to visit her office and to call her if there was anything she could do for them. “I had attended the Bar’s dinners for more than 20 years, and distinguished members and guests were always seated on the dais then would be asked to stand to be introduced. That night, however, the band suddenly blared out a Sousa march. I could not believe my eyes when a parade began to enter the room, led by Deena, my wife, who was followed by an assemblage of judges (Federal, Appellate Division, Supreme, County, Surrogate and District Court) and the U.S. Secretary of Housing and Urban Development. Deena has lead that parade annually ever since. Each time I grin with pride.” A Series of Firsts In Deena’s first column for the Nassau Lawyer in November 1987, she wrote about one of the many “firsts” for the Bar – the Tel-Law system, a tape recorded library of basic legal information with a tag line suggesting the caller contact the Lawyer Referral Service to obtain a lawyer. Tel-Law received 5,000 calls the first year, then was upgraded to a fully-automated, 24/7 service. “It is with great pleasure that I announce to you that the Nassau County Bar Association is the first such organization to have a fully-automated Tel-Law system,” Deena wrote. “We look forward to increased service to the public and the by-product of positive publicity for our Bar Association.” She saw many more ground-breaking firsts at the Association over the years, including the formation of the WE CARE Fund, the launching of the monthly Senior Consultation Clinics, the start of the now traditional Domus on the Lawn event, and the first foreign consulates to come to Domus. She also oversaw innovative and award-winning programs including Murder in the Library, Mortgage Foreclosure Pro Bono Project and BOLD, plus scores of unique programs, ideas, events and issues that kept with NCBA’s mission to serve the legal profession and the public. Through it all, Deena served as tiller of the multi-ruddered NCBA ship, keeping it on course as dozens of presidents led the nation’s largest suburban bar association. The leaders appreciated Deena’s strong and steady hand, even more so when the See DEENA, Page 14
By Christopher J. DelliCarpini and John M. DelliCarpini The loss of a loved one can have repercussions for years. In wrongful death cases, courts must compensate those future injuries with a money judgment that is fair and enforceable today. As a recent Court of Appeals decision shows, doing so is seldom easy. In Toledo v. Iglesia Ni Christo the Court of Appeals approved a trial court’s calculation of wrongful death future damages. 1 The unusual procedural setting, however, precluded the Court from addressing the most controversial aspects of the decision below. Nevertheless, plaintiffs and defendants can find in Toledo guidance for future wrongful death cases. ‘Fair and Just Compensation’ The determination of wrongful death damages is governed by a handful of statutes. EPTL § 5–4.3(a) provides that damages awarded for wrongful death shall be “fair and just compensation for the pecuniary injuries resulting from the decedent’s death.” Section 5–4.3(a) also states, “Interest upon the principal sum recovered by the plaintiff from the date of the decedent's death shall be added to and be a part of the total sum awarded.” 2 CPLR Article 50–B sets forth the means for calculating “fair and just com- Conflict of Interest: Wrongful Death Future Damages After Toledo pensation.” The details of Article 50–B can be complicated, but the basic procedure is simple. Starting with a jury verdict, which should be for the full value of future damages, the court is to discount the award to its value on the date of death, using “the discount rate in effect at the time of the award.” 3 Next, the court is to deduct expenses such as attorney’s fees, then add interest up to the date of the judgment to the remainder and order payment of the total in periodic installments. 4 In practice, however, the ambiguities have required the Court of Appeals more than once to clarify the calculation of wrongful death future damages. Milbrandt: Discount to Date of Death In Milbrandt v. Green Co. the Court of Appeals considered a pair of wrongful death cases, Milbrandt and Schmertz v. Presbyterian Hospital. 5 The combined holding makes clear that interest for wrongful death accrues from the date of death. In Milbrandt the jury had awarded future damages for wrongful death. On the trial court’s instruction, though, the jury had discounted that award not to the date of death but to the date of the verdict. 6 The defendant did not object to this, but did object when the trial court tacked on preverdict interest from the date of death. 7 The Appellate Division affirmed, but the Court of Appeals reversed. Awards should be discounted to the date of death, the Court held, because that is when interest starts to accrue under Section 5–4.3. 8 An award discounted only to the date of the verdict, though, “includes the return that would be earned on the principal from the date of death to the date of the verdict.” 9 To add preverdict interest, therefore, would be “to pay again to the plaintiff the return which is already included in the award. 10 In Schmertz the jury awarded future damages to several of the decedent’s distributees. Some of those damages did accrue preverdict. But others, like loss of inheritance, would not accrue until the end of the decedent’s life expectancy years in the future. The trial court, however, did not discount the award at all, and ordered interest on the entire award from the date of death. The Appellate Division affirmed but the Court of Appeals reversed, holding that the plaintiff was entitled to preverdict interest on future damages, but only from when the damages actually accrued: When losses are ongoing and spread over the period from the date of decedent's death to the date of the verdict, the damages may be viewed as result- Christopher J. DelliCarpini Nassau Lawyer n July/August 2012 n 3 ing from a series of discrete losses occurring after decedent’s death. If interest is computed as though the losses all occurred simultaneously at the time of decedent’s death – interest is necessarily included for damages which have not yet been sustained. 11 The upshot of Milbrandt is that, while discounting to the verdict is tolerable, discounting all the way back to date of death and adding interest therefrom, or from whenever losses accrue, is the better approach. Rohring: Interest from Date of Liability Rohring v. Niagara Falls did not involve a wrongful death claim, but its holding on future damages was nonetheless significant in Toledo. 12 The plaintiff, an injured construction worker, won summary judgment on liability and, almost two years later, a jury verdict for past and future damages. The judgment discounted future damages to the summary judgment ruling, then added interest therefrom. 13 The defendants objected, arguing that adding interest to future damages before those damages are actually incurred See WRONGFUL DEATH, Page 18 Deposing Doctors in Medical Malpractice Actions Medical malpractice depositions are unique in that “opinion questions” are permitted, unlike other personal injury matters. As has often been stated, it is well settled that a plaintiff in a medical malpractice action may inquire during a deposition as to a defendant physician’s expert opinion. 1 Other than a few cases, there has been little guidance concerning depositions in medical malpractice case, perhaps because such issues are generally not appealable as of right. 2 McDermott: Where It All Started The first significant change in the law, with respect to medical malpractice actions, occurred more than 40 years ago, in a major break from the Common Law. For the first time, attorneys were given their most powerful tool for prevailing in medical malpractice cases: the right to ask “opinion questions” of doctors at trial. Up to that point in time, only questions of fact were permitted to be asked at trial or depositions. In McDermott v. Manhattan Eye, Ear & Throat Hospital, the Court of Appeals held that a plaintiff in a medical malpractice action was entitled to call the defendant doctor to the stand and question him both as to his factual knowledge of the case and as an expert for the purpose of establishing the standard of care. 3 In McDermott, a case involving a failed corneal transplant procedure, plaintiff’s attorney unsuccessfully attempted to establish deviations from the standard Personal Injury Focus W. Russell Corker of care by cross examining the defendants with a book written by one of the defendants. When the plaintiff failed to call an expert witness on his case, the matter was dismissed at the end of plaintiff’s case. 4 The question on appeal was stated as follows: “Whether the plaintiff should have been given the opportunity of establishing her claim of malpractice by showing, through the testimony of the defendant doctors, that proper medical practice contraindicated the performance of a corneal transplant on a patient such as the plaintiff.” 5 Heretofore, doctors had been required to testify to facts within their knowledge, that is, “what he actually saw and did,” but not as to whether his actions deviated from the accepted standard of medical practice. In now permitting questioning concerning proper medical practice, the Court reasoned that the doctor’s knowledge of the standards of care are as much matters of “fact” as are the diagnosis and examination he made or the treatment upon which he settled. The issue of deviation from the standard of care, so reasoned the Court, is “assuredly pertinent and relevant” to a malpractice action. The Court also acknowledged the difficulty inherent in securing “independent” expert testimony at the time. 6 A significant point made by the Court of Appeals, still relevant to date, was that, once on the stand, the defendant has no inherent right to remain silent or, answer only those inquires which will have no adverse effect on his case. Rather, “he must, if called as a witness, respond to virtually all questions aimed at eliciting information he may possess relevant to the issues, even though his testimony on such matters might further the plaintiff’s case.” 7 This language is particularly significant and appears to have been ignored by the Appellate Division, Second Department in Carvalho v. New Rochelle Hospital. 8 See DOCTORS, Page 15
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Page 19 and 20: LAWYER TO LAWYER DIVORCE MEDIATION

COVER NL 09_06.qxd - Nassau County Bar Association

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