Turken Heath & McCauley, LLP

Jason D. Turken

 

Jason Turken has nearly 30 years of experience defending individuals, corporations, service companies, physicians, dentists and oral surgeons, hospitals, nursing homes, home care agencies, commercial buildings, municipalities and not-for-profit entities in high-stakes litigation, including medical and dental malpractice, toxic tort, environmental, general liability, commercial, employment and construction actions in New York City and the surrounding counties.  

 

Trying civil cases since 1992, Jason has tried and obtained defense verdicts in catastrophic damage actions with potential exposures in the millions of dollars, including cases of alleged wrongful death. He has litigated cases against most of New York’s best-known plaintiffs’ law firms.  He has also litigated matters against, and counseled clients appearing at hearings before, the New York State Department of Environmental Conservation, New York City Department of Environmental Protection, New York State Department of Health, and New York City Department of Investigation.  In addition, he has successfully resolved many matters via alternative dispute resolution.

 

A common theme in Jason’s cases is that his client faces a high exposure claim related to property damage, personal injuries, or death.  For example, he defended a company accused of negligently discharging toxic chemicals into the air near an elementary school, allegedly requiring dozens of children to seek emergency hospital treatment. In that action, more than 60 individuals claimed varying degrees of long-term or permanent injuries.  In addition, the NYC Department of Environmental Protection (DEP) filed an action to recover the costs allegedly expended in its resource-allocation on the day of the incident.  In the personal injury actions, where the plaintiffs variously claimed ophthalmologic, pulmonary and neurologic injuries, Jason developed evidence through extensive research and consultation with scientific experts that the alleged chemical exposure could not have caused more than transient pain and discomfort, with no serious or permanent injuries.  Following his presentation of these research-based conclusions to a committee of the plaintiffs and their attorneys, the cases were resolved at one time for a small fraction of the amounts demanded.  The DEP’s cost-recovery action was also favorably resolved for much less than the amount to which DEP claimed to be entitled by statute.

 

Jason has also defended an engineering firm alleged to have caused or contributed to the collapse of property at an apartment complex.  In the resulting suit, there were various types of claims asserted, including ones for professional negligence, insurance indemnity and third-party liability.  There, Jason successfully argued an appeal in which a third-party defendant (another engineering firm) contended that it had been wrongfully denied summary judgment by the lower court, and that no valid third-party claim could reasonably be maintained against it by Jason’s client.  The Appellate Division decided in favor of Jason’s client, upholding its right to maintain the third-party action.  The decision was featured as a “Decision of the Day" by the New York Law Journal.

 

Jason also defends general negligence actions.  For instance, he has successfully defended against claims of injuries caused by malfunctioning elevators, accidents involving heavy machinery at warehouses and airplane hangars, trip-and-fall actions, swimming pool misadventures, ceiling collapse cases in residential and commercial buildings, and claims of property damage allegedly caused by adjacent construction projects. He has also represented environmental service companies in litigation involving fuel discharges from underground storage tanks and dispensers.  For example, in an action in Nassau County involving an alleged spill of more than 1,000 gallons of gasoline following a car accident at a gas station, Jason obtained the dismissal by the court of all claims brought by the gas station owners against his client, the company that had installed the gasoline pumping system and dispensers at the station. Then, in a separate but related cost-recovery action filed in Albany County by the NYS Department of Environmental Conservation (for the DEC’s alleged expenditures in the remediation of the spill), Jason resolved the DEC’s claim for far less than the amount sought.

 

In a federal court action in Manhattan involving a pharmaceutical sales representative who claimed she had been intentionally pushed down the stairs of a client hospital and robbed by an unidentified assailant, allegedly causing career-ending injuries, Jason moved for and obtained a decision from the federal judge granting summary judgment in favor of the hospital and dismissing the case on the basis that the plaintiff could not show that the hospital had a duty to prevent the alleged incident.  After noticing their appeal to the Second Circuit Court of Appeals, serving Jason with their appellate brief, and then receiving Jason's appellate brief in response, plaintiff-appellant's counsel opted to abandon their appeal, and it was dismissed by the Second Circuit.

 

Jason has been counsel in matters before the Commercial Division of the New York State Supreme Court, in Manhattan.  He has successfully argued appeals before the Appellate Division, and has prepared briefs in cases before the First, Second and Third Departments of the Appellate Division and the U.S. Court of Appeals for the Second Circuit.  In one matter, in which an executive residing in Connecticut had been named as a defendant in a securities fraud action in a foreign country, the executive brought suit in Manhattan to compel certain insurance underwriters to reinstate at least $30 million in Directors & Officers insurance coverage under a policy which they had rescinded on the basis of misrepresentation.  New York law on the subject of insurance rescission was more favorable to the plaintiff-executive than the laws of most or all of the foreign jurisdictions whose courts might otherwise hear the insurance dispute, and the plaintiff asserted that, since he had previously lived and worked in New York, and since the complicated facts of the case allegedly included one transaction at a New York branch of a foreign bank, the case had a sufficient nexus to New York City for the Commercial Division of the New York State Supreme Court in Manhattan to serve as a proper venue for it.  When the Commercial Division held that the plaintiff had properly venued the case in that court, Jason successfully argued an appeal before the Appellate Division, First Department, obtaining a decision vindicating his clients' position and dismissing the action on the basis that the New York courts were not an appropriate forum in which to litigate it, as it principally involved foreign transactions and should be litigated abroad.  

 

In medical malpractice and wrongful death cases, Jason is often tasked to defend actions in which the plaintiffs are seeking millions of dollars in damages. The successful defense of such matters turns on the effective demonstration of applicable principles of science and medicine to disprove liability, causation and/or the extent of the damages claimed. For example, in a malpractice case tried in Queens, Jason obtained a jury verdict in favor of his client, an orthopedic surgeon accused of negligently implanting a titanium rod intended to stabilize the plaintiff’s fractured femur.  In Manhattan, he obtained a unanimous jury verdict in favor of a rheumatologist alleged to have failed to diagnose cancer in a 35-year-old, employed, married mother of two children, allegedly causing her death.  In Brooklyn, he obtained a defense verdict for his client, a cardiologist accused of negligently failing to diagnose signs and symptoms of a stroke which allegedly resulted in permanent brain damage and total disability.  In another Brooklyn case, the plaintiff alleged that Jason’s client, a family practitioner, had failed to diagnose past myocardial infarctions (heart attacks) in a 46-year-old, employed, married father of two children, thereby causing his death.  Plaintiff’s medical experts asserted that the doctor had negligently overlooked evidence of small heart attacks detectable on EKGs performed by the doctor at annual physical exams, thereby causing the patient to be untreated for heart damage and finally to suffer a massive and fatal heart attack. Supported by the testimony of experts in cardiology, toxicology and internal medicine, however, Jason demonstrated that the EKGs had been normal, and that the decedent actually died of sudden cardiac arrest caused by seizures brought on by a cocaine overdose.  The jury rendered a unanimous verdict in favor of the doctor.  In a federal district court case in White Plains in which the plaintiff brought various civil rights and medical malpractice claims concerning the death of a young doctor who had been shot by police officers and then taken to a hospital for medical treatment, the late Judge Charles L. Brieant, Jr., issued an order of dismissal during trial to Jason’s client, an emergency room physician, after the physician testified.  Days later, a verdict was rendered against the remaining defendants totaling more than $15 million.    

 

Jason has also prepared and argued numerous appeals in medical malpractice cases. For example, in a case in which it was alleged that a patient’s death was caused by the negligence of a Bronx Hospital and two doctors in failing to diagnose her colon cancer, the plaintiff appealed the lower court’s decision granting summary judgment to the doctors and hospital.  Responding to the plaintiff’s position on appeal that the lower court had not given due consideration to the arguments put forth by the plaintiff’s medical experts, Jason contended that those experts had impermissibly based their conclusions on mere supposition that the patient had complained of certain relevant symptoms which the doctors must have failed to record in the medical records, or otherwise that the doctors must have negligently failed to ask certain necessary questions.  The appellate court agreed with Jason's argument that the plaintiff’s experts’ opinions were impermissibly speculative, as they were based on an uncorroborated assumption about the patient’s presenting complaints, or about the treating doctors’ questions, or both.  The court denied the plaintiff’s appeal, and the case was dismissed.

 

Jason graduated from the State University of New York at Binghamton, in 1986, with a Bachelor of Arts degree in Law and Society.  He attended Brooklyn Law School, where he was a Dean's List honoree in 1986-87, received American Jurisprudence Awards (for the highest grade in the class) in Legal Writing I, Legal Writing II, and Criminal Law, and received his Juris Doctor degree in 1989.  He is admitted to practice law in the State of New York, Commonwealth of Pennsylvania, United States District Courts for the Southern, Eastern, Northern and Western Districts of New York and the United States Court of Appeals for the Second Circuit.