Plaintiff loses after lawyer refuses to wear mask in court

[Eugene]

Original report: ‘Safety first’: Brooklyn judge tosses a case after lawyer says he can’t wear face mask in court (New York Daily News)

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Source: Associated Press

Plaintiff loses after lawyer refuses to wear mask in court

March 26, 2021

NEW YORK (AP) — A woman lost her personal injury lawsuit after her lawyer refused to wear a mask in court and the judge threw out her case, which had been set for trial.

The New York Daily News reported Friday that Brooklyn Judge Lawrence Knipel tossed the case after attorney Howard Greenwald said he could not breathe wearing the mask in the newly reopened court.

“I want the record to reflect that I am speaking with great difficulty,” Greenwald, 68, told the judge. “I want to the record to reflect that I am sweating profusely from the effort.”

-snip-

Knipel told the newspaper the woman would have legal recourse to continue her litigation even though he dismissed the case.

Read more: https://apnews.com/article/new-york-state-courts-trials-lawsuits-coronavirus-pandemic-87758cb8cbe9df0e3f4ef58c64a67b25

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Source: New York Daily News

‘Safety first’: Brooklyn judge tosses a case after lawyer says he can’t wear face mask in court

By NOAH GOLDBERG
NEW YORK DAILY NEWS |
MAR 26, 2021 AT 6:23 PM

Face dismissed.

A Brooklyn judge tossed out a lawsuit set for trial Thursday after one of the case lawyers said he would be unable to proceed while wearing a face mask, the Daily News has learned.

The jury trial — one of just 10 cases set to go forward this week in Brooklyn as trials restarted throughout the state — was thrown out by the borough’s chief administrative judge, Lawrence Knipel.

The judge was hospitalized last spring with COVID-19 as the virus tore through Brooklyn Supreme Court, killing two other judges.

“Upon plaintiff’s counsel’s refusal to proceed with jury selection while wearing a face mask, this action is dismissed,” Knipel, 68, scrawled in a handwritten order obtained by The News.

-snip-

Read more: https://www.nydailynews.com/new-york/ny-brooklyn-lawsuit-mask-covid-19-case-dismissed-lawrence-knipel-20210326-w4mshe3fa5hrjcm6ucmsatycvu-story.html

[TomSlick]

1. I find myself in the odd position of a defense lawyer objecting to a case being dismissed.

I see few possible explanations for what happened.

(1) The obvious explanation is that the plaintiff's counsel was trying to make a political point about wearing a mask and was falsely claiming that he could not breath.

(2) It seems to me to possible that the plaintiff's counsel was having a psychosomatic response to the mask - like claustrophobia.

(3) Plaintiff's counsel's breathing is impaired and the mask really was impairing his breathing.

(4) Maybe counsel just needs a new mask.

Whatever was going on, it wasn't the client's fault. The judge should have directed his search for a remedy toward the attorney and not the client.

[Hassin Bin Sober]

2. Did the judge have any other option?

The plaintiff attorney wanted the jury disbanded until June.

The judge said no - move forward or dismiss. They can always re-file.

[TomSlick]

3. Sure. Declare a mistrial.

Send the jury home. Hold the lawyer in contempt or not. Disqualify the lawyer from the case or not. If the lawyer cannot proceed, allow the plaintiff to retain new counsel and try again.

[Hassin Bin Sober]

5. Doesn't dismissing the case do the same thing without the drama?

I don’t get the impression the attorney was trying to be a maskhole as he tried wearing a face shield.

Honestly, I don’t know how I would do if I had to be masked in close quarters of up all day with my reading glasses on.

Luckily my job has limited client contact that is in and out.

The other day my boyfriend yelled at me for pulling my mask down over my nose in Home Depot. There was wasn’t a person wishing 50 feet and my glasses were fogging up while trying to read a label.

[TomSlick]

8. Trials are all about drama.

The judge's problem was with the lawyer and not the client.

[LawDem]

4. Speaking as another defense lawyer . . .

The dismissal was clearly without prejudice. The plaintiff can refill and all discovery from the prior filing will carry forward. All plaintiff lost was the trial setting — which is a significant loss, given how slow cases are moving during the pandemic. But it isn’t like the cause of action is barred.

Now, as for the plaintiff’s lawyer, all i can say is that is a hell of a stupid way to screw up a career.

[ornotna]

6. I saw elsewhere

That it was dismissed with prejudice. Not good for the plaintive from what I understand.

https://www.democraticunderground.com/1017648335

[TomSlick]

7. Well, I take even a dismissal without prejudice as a small victory.

It may be a function of our State rules.

Arkansas has a very liberal "nonsuit" rules that allows, as a matter of right, a voluntary dismissal without prejudice at any point - even during trial until the jury returns a verdict. (I once had a judge encourage plaintiff's counsel to take a nonsuit after I made a motion for directed verdict.) However, under Arkansas rules, a plaintiff has only one bite at that apple. A second dismissal is always with prejudice. Why the first dismissal occurred (and whether or not voluntary) or why the second dismissal occurred, is irrelevant. There is no such thing as a second dismissal without prejudice.

That first dismissal puts the plaintiff in a box. No matter what happens next, a dismissal is not an option.

[SunSeeker]

9. The plaintiff may have lost that case, but her malpractice caae against her lawyer is a winner.

[rampartc]

10. the mask objector is a personal injury atty, an ambulance chaser.

he is setting up a suit vs the court.