Dwight A. Kern

Shareholder

201.209.0314
201.209.1223 (fax)
dkern@smsm.com
15 Exchange Place, Suite 1020
Jersey City, NJ 07302
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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 obtained dismissal of all three defendants in a lead paint exposure case. In response to Mr. Kern's motion for summary judgment, the United States District Court for the Southern District of New York 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 court's decision reinforces the theory that a plaintiff must prove a correlation between neurological deficiencies and specific blood-lead levels. 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.

REPRESENTATIVE MATTERS

  • 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 twenty-six (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.

EDUCATION

Dickinson College, B.A., 1995
Widener University School of Law, J.D., 1998, cum laude, Articles Editor, Widener Law Review, (1997-1998)

BAR 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

PROFESSIONAL AND CIVIC INVOLVEMENT

New York State Bar Association

SPEECHES AND PUBLICATIONS

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

  • "The Controversial Contradiction between Traditional Precedent and Recent Failure To Warn Jurisprudence in New York," Albany Law Review, Vol. 74.2 (Summer 2011).
  • "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).

Speaker

  • "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).

PUBLISHED APPELLATE OPINIONS

Duncan v. 605 Third Avenue, LLC, 853 N.Y.S.2d 592 (2nd Dept. 2008).
Cinquemani v. Old Slip Associates, LP, 43 A.D.3d 1096, 842 N.Y.S.2d 85 (2nd 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 (2nd 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 (2nd Dept. 2002).
Campbell v. Tracey Road Equipment, Inc. 288 A.D. 2d 954, 732 N.Y.S.2d 808 (4th Dept. 2001).

OTHER 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

Practice Areas

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