In June, Martin Clearwater & Bell LLP (MCB) defense attorneys secured an important verdict for the firm’s client, a radiologist, in a case that involved a claimed failure to diagnose breast cancer. MCB senior trial partner Anthony M. Sola, partner Thomas Kroczynski, associate Kerona Samuels and paralegal Marilyn Weiss represented the radiologist during a two-week trial in Queens County Supreme Court before Justice Earnest Hart.
The case dated back to Oct. 31, 2013, when the plaintiff – then a 42-year-old mother – claimed the defendant misread her mammogram. Seventeen months later, the plaintiff was was diagnosed with an invasive lobular breast cancer at Sage IIIC with a significantly shortened life expectancy. At the time of diagnosis the tumor was approximately 8x8x5 centimeters in size, and had spread to 10 of 18 lymph nodes. She had undergone bilateral mastectomies, breast reconstruction, chemotherapy and radiation therapy.
MCB’s defense strategy was characterized by math and pragmatism. The lobular breast cancer was aggressive and inflammatory with an exceptionally fast doubling time. As such, if one used a fast doubling time for the tumor and calculated going back in time, the tumor at the time of the October 2013 mammogram would have been so small as to have been undetectable. Sola argued that this was especially valid since the plaintiff had dense breast tissue, which makes detecting a lobular breast cancer on mammography difficult under any circumstances.
This countered the testimony of the plaintiff’s expert witnesses. For example, on cross-examination, plaintiff’s oncologist denied that inflammatory breast cancer has a doubling time of only 30 days. But MCB recalled a transcript from a prior case in which he said exactly that. This and several other defense tactics resulted in a unanimous verdict which continued the firm’s recent successful streak. As Leaders In The Law reported earlier this month, MCB won a defense verdict during a cancer misdiagnosis trial in May in Nassau County Supreme Court.
MCB was prominently featured in New York’s Leading Lawyers 2018, which appears in New York magazine. Visit the firm’s profile here.