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Dwight A. Kern

Shareholder | dkern@smsm.com
Shareholder | Jersey City, NJ
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Mr. Kern represents numerous local and national clients, both directly and through insurance coverage, in products liability, toxic tort, environmental, construction and premises liability matters. He has considerable experience in all stages of litigation in the state and federal courts throughout New York, New Jersey and Connecticut. Mr. Kern has successfully represented clients at the appellate level and has argued before every department in the Appellate Division of the State of New York. As a result of Mr. Kern's achievements in toxic tort causation and insurance coverage litigation, he is frequently asked to write about and present on these matters across the nation.

Mr. Kern has a track record of success in a variety of toxic exposure cases for premises owners, employers, and product manufacturers. Recently, he successfully argued before the U.S. Court of Appeals for the Second Circuit, which affirmed the dismissal of all three defendants in a lead paint exposure case. In response to Mr. Kern's motion, the United States District Court for the Southern District of New York had granted summary judgment in John Szewczuk, et al. v. Stellar 117 Garth, LLC, et al. on multiple grounds including medical causation, and dismissed the case. Significantly, the Second Circuit's decision reinforces the theory that a plaintiff must prove a correlation between neurological deficiencies and specific blood-lead levels. The Second Circuit also rejected as unreliable the opinion of a prominent national plaintiffs’ expert in lead poisoning litigation. The decision sets a precedent for an emerging issue in lead paint exposure cases and will likely influence this type of litigation nationwide.

While attending Widener University School of Law, Mr. Kern clerked as a judicial extern for the Hon. J. Curtis Joyner in the United States District Court for the Eastern District of Pennsylvania in addition to serving as Articles Editor for the Widener Law Review from 1997-1998.

Honors

  • Phi Delta Phi Legal Fraternity, Honor Chapter
  • Oral Argument Judge at the 2006 and 2007 National Environmental Law Moot Court Competition at Pace University School of Law

Professional & Civic Involvement

  • New York State Bar Association

Representative Matters

  • Obtained affirmation of summary judgment and dismissal from the U.S. Court of Appeals for the Second Circuit in a New York lead paint exposure case involving low blood lead levels. The Second Circuit's decision solidified the rule of law under Daubert regarding compliance with medical causation standards and rejected as unreliable the opinion of a prominent national plaintiffs' expert in lead poisoning litigation.
  • Obtained summary judgment and dismissal on behalf of large-scale New York City commercial property owner in multi-chemical exposure case. Plaintiff alleged that defects in the structure and HVAC system of the building allowed plaintiff to be exposed to MEK and other toxic substances causing permanent neurological damage. Mr. Kern successfully argued that there was no negligence on the part of the property owner and no defects existed.
  • Co-authored the winning brief to New York's highest state court regarding the nonexistence of a duty for a premises owner to a member of an employee's household for secondary exposure to a toxic substance in the precedent-setting decision of Holdampf v. A.C. & S., Inc. (In re New York City Asbestos Litigation), 5 N.Y.3d 486, 840 N.E.2d 115 (2005).
  • Successfully resolved a wrongful death exposure case in the workplace, negotiating a contribution on behalf of the client manufacturer totaling less than 3% of a substantial settlement figure between the five (5) defendants.  The claim involved the death of a 26-year-old husband and father alleging exposure to various hazardous substances in the workplace while spraying primers and soundproofing material. Mr. Kern filed and argued an extensive Frye motion contesting the plaintiffs' ability to establish causation generally accepted in the scientific methodology.
  • Obtained a favorable settlement after jury selection in a multi-million dollar federal court action where plaintiffs alleged claims for property damage and personal injury, including Kawasaki Syndrome, originating from a petroleum spill.  As part of the settlement, all claims for personal injuries were withdrawn and defendants agreed to minimum cleanup costs pursuant to New York State Navigation law.

Published Appellate Opinions

Szewczuk v. Stellar 117 Garth, LLC, 541 Fed.Appx. 30, (2d Cir. 2013).

Duncan v. 605 Third Avenue, LLC, 853 N.Y.S.2d 592 (2d Dept. 2008).

Cinquemani v. Old Slip Associates, LP, 43 A.D.3d 1096, 842 N.Y.S.2d 85 (2d Dept. 2007).

Holdampf v. A.C. & S., Inc. (In re New York City Asbestos Litigation), 5 N.Y.3d 486, 840 N.E.2d 115 (2005).

Pai v. Springs Industries, Inc., 795 N.Y.S.2d 98 (2d Dept. 2005).

Holdampf v. A.C. & S., Inc. (In re New York City Asbestos Litigation), 14 A.D.3d 112, 786 N.Y.S.2d 26 (1st Dept. 2004).

Jackson v. Dow Chemical Co., Inc., 295 A.D.2d 855, 793 N.Y.S.2d 900 (3rd Dept. 2002).

Gruber v. Central Truck Equipment, Inc. 298 A.D. 2d 360, 751 N.Y.S.2d 392 (2d Dept. 2002).

Campbell v. Tracey Road Equipment, Inc. 288 A.D. 2d 954, 732 N.Y.S.2d 808 (4th Dept. 2001).

Speaking Engagements

Navigators Environmental Underwriting Team, Webinar/Lunch & Learn. "The Need for Contractors Pollution Coverage-Claims Scenarios." Co-presenter with Segal McCambridge Shareholder, Scott Henry (October 28, 2015).

“Lower Thresholds, More Claims—Handling the Defense of Lead Paint Claims in the Wake of CDC Reduction of the Blood Lead Level Threshold,” Perrin Conferences Webinar (May 29, 2014).

"Damage Control: Estimating Economic Risk in Environmental & Product Liability Litigation," 2012 Annual Emerging and Environmental Claims Managers Association (EECMA) Spring Conference, Captiva Island, FL (May 2-4, 2012).

"Charting a Course through the Grey Areas of Insurance Allocation," Perrin Conferences' Emerging Insurance Coverage & Allocation Issues (January 24, 2011).

CNA, Monmouth Junction, NJ, "Coverage Issues for Asbestos Claims" (September 28, 2006).

RiverStone Claims Management, LLC, "Keeping the Experts Out in Environmental Exposure Cases under the Frye Standard" (July 27, 2006).

Liberty Mutual Group, "Keeping the Experts Out in Environmental Exposure Cases under the Frye Standard" (July 26, 2006).

Author

"Case Notes: Insurance Company Reimbursed for Legal Fees as a Result of Law Firm's Breach of Fiduciary Duty," Segal McCambridge Singer & Mahoney's New York Advocate, Volume 1, Issue 2 (Summer 2007).

Co-Author

"Frye Meets Parker and the Effect on Toxic Exposure Cases," New York State Bar Association Journal, Volume 79, Number 3 (March/April 2007).

"Eggshell Skull Doctrine: Inapplicable to Certain Chemical Exposures," New York State Bar Association's (NYSBA) Torts, Insurance & Compensation Law Section Journal, Volume 36, Number 1 (Winter 2007).

"Turning the Tide of Deposition Conduct," New York Law Journal, Volume 237, Number 10 (January 16, 2007).

"Eggshell Skull Doctrine: Inapplicable to Certain Chemical Exposures," New York State Bar Association's (NYSBA) The New York Environmental Lawyer, Volume 26, Number 4 (Fall 2006).

"Who's Watching the Gate? The Recent Evolution of Frye in The Toxic Exposure Arena," HarrisMartin's Litigation Watch: Benzene and HarrisMartin's COLUMNS Silica (August 2006).

"Blurred Lines: The Interplay of Duty and Foreseeability," HarrisMartin's COLUMNS Asbestos (November 2005).

Education

Dickinson College, B.A., 1995

Widener University School of Law, J.D., 1998, cum laude

  • Articles Editor, Widener Law Review, (1997-1998)

Admissions

  • Connecticut, 1998
  • New Jersey, 1999
  • New York, 1999
  • U.S. Court of Appeals, Second Circuit
  • U.S. District Court, District of New Jersey, 1999
  • U.S. District Court, Eastern District of New York, 1999
  • U.S. District Court, Southern District of New York, 1999