Lawsuit tossed after plaintiff's attorney refuses to wear mask in courtroom

The Quarantine Zone
82

Here, the accommodation, for, say, a store, is that someone will shop for you. It isn’t that people can go into mask mandatory spaces unmasked. Seems to me that the accommodations the court offered were reasonable. Under the ADA, you don’t have to get your preferred accommodation.

As far as the options offered and not giving a continuance, generally, older cases are harder to get continuances on, and, critically here, you will almost never get one at the stage where you’re choosing a jury. Basically, trial has started. You don’t get months’ delay at that stage. You might get a day, for something unexpected, if it’s dire. You don’t get to the eve of trial and then bring up an issue that you knew about all along, refuse reasonable accommodations, and refuse to comply with known court rules until you get the delay. No trial court is going to go along with that.

And yes, without prejudice means the plaintiff can refile. Then they can presumably skip ahead in the process, because things like discovery should be over as they were ready for trial before. So, it clears the case from the court’s docket until they refile, and probably puts them at the back of the line again for a trial.

83

This.

I am really suspicious of this lawyer’s motives.

He discovered at the very last minute that he couldn’t wear a mask?

I don’t believe him.

84

Fuck that. If I were a party to the case; witness, stenographer, whatever, I wouldn’t want to be exposed to Lawyer Gaspalot.

85

That’s why a contempt charge could be reasonable. Hard to believe he wasn’t intentionally disrupting the court.

86

I didn’t write the NY Public Health reg, they did. Why did they say “able to medically tolerate a face-covering” if that’s not what they mean?

If the man can’t breathe with a mask, he can’t. That means he is NOT able to medically tolerate it, and therefore it’s not required under the state’s own regulations.

87

And he didn’t know until he got to court?

88

Not at trial stage. There can be dismissals at the pleading stage, on inadequate pleadings, and if the limitation period hasn’t passed, probably can be amended.

But if they’re about to start a trial, it wouldn’t be dismissed. It would normally be adjourned, especially if the reason for the delay is something the lawyer is doing, outside the control of the party. We don’t use “dismissed without prejudice” or “dismissed with prejudice”. If it’s dismissed, that’s it, case done.

89

The regs don’t so it explicitly (that I know of) but if the only accommodation is to not wear a mask, potentially putting lives in danger, I can see requiring more proof than just “I can’t”.

90

Have we established that the NY Public Health regulation is actually the governing rule here?

I haven’t; I brought it up as an example of something with the force of law, in answer to your question about states requiring the wearing of masks in public. The courts might well have their own administrative order or other rule on the subject, and if so, then it would be that text that needs to be addressed.

This isn’t always true. In contexts such as employment, businesses may ask for reasonable documentation of the disability and the functional limitations resulting therefrom, including requiring documentation from a health care provider or other appropriate professional.

The Americans with Disabilities Act and similar laws prohibit unnecessary inquiries into somebody’s disability, but some inquiries are necessary to determine what accommodations are appropriate. (Also remember that the ADA specifically allows entities to exclude an individual if they pose a safety or health threat to others that cannot be mitigated by modifications to policies/procedures.)

91

Again, hold him in contempt, and then what? The jury is still waiting. The trial is still starting. Should the judge have made the plaintiff proceed without counsel?

92

Not if other people need to be in that courtroom.

And this.

If the lawyer can’t do his job, he should be seeking disability insurance, not coughing on other people in an open courtroom.

93

Well, if the lawyer had dropped dead of a heart attack, would the plaintiff have to proceed without counsel? IANAL and I really don’t know all the options available to the judge.

94

In a practice with multiple attorneys (such as Mr Greenwald’s), one of the other attorneys would typically be expected to take over the case, an option already rejected by Mr Greenwald. (The judge might grant a brief continuance to allow the attorney to come up to speed and/or resolve schedule problems, but note the word ‘brief.’)

In most cases, the client’s representation agreement would be with a firm of attorneys rather than an individual in the firm anyway. The transcript posted above states that the plaintiff’s attorney is “Chopra and Nocerino LLP,” not Howard Greenwald.

95

This. And he didn’t drop dead of a heart attack.

It seems pretty clear that the judge didn’t really believe him. So, instead of looking at it as unfairly punishing the client for having an attorney who was unable, for health reasons, to comply with a draconian mask rule, try framing it like this:

A lawyer is refusing, at the start of the trial, to comply with a mask rule that has been in place all along. They say they’re laboring to breathe, but seem fine. They refuse the reasonable suggestion of switching to a smaller courtroom or having another attorney from their firm take over. They want a months’ long delay instead.

The client is going along with this, not replacing their lawyer or insisting that another lawyer from the firm take over to advance their interests in this trial that is underway. This is clearly an effort to delay the trial for some strategic reason. Either the lawyer wasn’t ready, or the plaintiff gets some other advantage from delay, which they can’t get legitimately. Having exhausted other options, the court dismisses the case without prejudice.

96

The lawyer (Mr. Greenwald) claimed that he was unable to breathe while wearing a mask, presumably a simple surgical mask.

“I can’t breathe,” Greenwald told Knipel during an on-the-record conversation Thursday. “I became light-headed. I had to sit down … I don’t contest the rule. I just am not physically able to comply with the rule to do my job as a lawyer.”

From the New York Daily News.

His firm’s website says, on his bio page:

Howard is an outdoorsman. He has hiked and camped in the Adirondacks, Rockies, along the Pacific Coast trail, and in the Andes. He also enjoys playing basketball.

Chopra & Nocerino, LLP.

I understand that Mr. Greenwald is getting up there in age (his bio page says he graduated from college in 1973, so born in 1951, 1952, maybe?), but certainly he advertises himself as a fit outdoorsman.

Again, there’s something fishy here.

Also, as to another lawyer picking up where Mr. Greenwald left off, this is a firm of personal injury lawyers. Basically, they’re sharing office space. I doubt if any of his colleagues at his firm know the first thing about any of his cases.

And you wouldn’t want them representing you, anyway. One of the name partners, Sameer Chopra, shows on his bio page that he graduated from Thomas M. Cooley Law School, which is widely acknowledged to be one of the worst law schools in the country. Cooley’s most famous graduate is perhaps Michael Cohen. Yes, that Michael Cohen.

97

Or Greenwald and/or the client suddenly realized at the last moment that they’d made a huge mistake in going to trial, and were looking for a way out. Or that Greenwald completely fucked up, hasn’t even looked at the files since a trial date was set, and is grandstanding to avoid admitting that he has no idea what the case is about.

How this helps them, I don’t know, but I’m not a lawyer. Seems like it puts them in a very weak position in settlement negotiations.

98

Mr Greenwald joined Chopra & Nocerino last year, after being furloughed from Picciano & Scahill during the pandemic, according to his own statements at the hearing (transcript linked above). Picciano & Scahill (now Scahill Law Group) focuses solely on insurance defense litigation. Ms Gedell’s lawsuit was filed in 2017, by Sameer Chopra of Chopra & Nocerino (see docket); per the docket, Alex Nocerino has also signed various documents in the case. They may have other matters on their schedule that would make stepping in on short notice difficult, but I think your doubt as to their knowledge is misplaced.

99

Who knows. There’s something fishy going on here. Or at least I think so, because I don’t believe Mr. Greenwald’s story.

100

It is possible to request documentation stating that a requested accommodation is necessary, without spelling out how it’s going to be used. “Yes, John Doe is currently a patient under my care; yes, it is medically necessary that he not wear a PPE mask/not be required to walk more than 50 feet at one time/always have a free grounded electrical outlet available to him at any assigned workspace. Signed, John Doe’s doctor, MD.”

Also, the ADA does state that an accommodation not cause “undue burden” to the entity having to make the accommodation. If it is prohibitively expensive that a restaurant which normally takes orders at the counter remodel to allow wheelchairs to pull up to the counter, something could be done instead such as setting up a bell & light just outside the counter area, and people who can’t get to the counter can signal someone to come around and take their order.

Having to put oneself at risk for COVID could be seen as an “undue burden.”

From what I understand, as well, a judge’s word in court has a gravity that maybe other authorities in other places do not have. Now, I’d be quite surprised to hear that a judge overruled the ADA, but I’d be very careful about crossing a judge.

101

Here’s a question: the lawyer claims he is not able to speak loudly enough to fill the large courtroom while masked. Has no one there ever heard of microphones? Give him one, let him dial it up to 11.