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Daniel S. Ratner
99 Park Avenue
New York, NY 10016
ph: (212) 471-4667
fx: (212) 883-7956
email: dratner@hpmb.com
Areas of Practice
Medical Liability & Risk Management
Products Liability and Mass Tort
Appellate Practice
Education
Fordham University School of Law: JD: 1989
Dickinson College: BA: 1986
Bar Admissions
1. New York
2. Connecticut
3. United States Court of Appeals for the Second Circuit
4. United States District Court, Southern District of
New York
5. United States District Court, Eastern District of
New York
Daniel S. Ratner is the Managing Partner of HPM&B. He also heads the firm’s Appellate Practice group. Mr. Ratner joined HPM&B in 1994 after five years as an Assistant District Attorney in the Office of the District Attorney, Bronx County, New York.
Mr. Ratner represents pharmaceutical and medical device companies, hospitals, and individuals in the defense of product liability and professional liability actions. He has briefed and argued more than 150 civil and criminal appeals in the United States Courts of Appeals, the New York Court of Appeals, the Connecticut Supreme Court, and the state intermediate appellate courts. In addition to handling substantive motions at the trial level, Mr. Ratner works closely with the firm’s trial attorneys in developing legal strategies. He also assists clients with risk management issues, and in advancing positions regarding proposed legislation and regulations that may affect their interests.
Dan has been nominated by his peers for inclusion in the 2010 and 2011 editions of The Best Lawyers in America® in the areas of Appellate Law and Product Liability Litigation.
Mr. Ratner has authored numerous articles and treatises, and he frequently presents lectures to clients and bar groups regarding legal developments. He is a member of the Defense Research Institute and the New York State Medical Defense Bar Association.
Representative Appellate Cases:
Colombini v. Westchester Healthcare Corp. 2009 N.Y. Slip Op. 51555(U), 2009 WL 2170230 (Sup. Ct. Westchester Cnty., Jul 6, 2009)(holding that state claims against maker of MRI machines stemming from plaintiffs' decedent's death from injuries he sustained while undergoing an MRI test are preempted under the federal 1976 Medical Device Amendments to the Food, Drug and Cosmetic Act. Court extends Supreme Court’s holding in Riegel v. Medtronic, Inc. to reclassified Class II devices that originally are subject to premarket testing and approval by FDA as Class III devices).
Berlinger v. Kraft, 60 A.D.3d 489, 875 N.Y.S.2d 50 (1st Dep’t 2009)(awarding summary judgment to internist based on showing that an earlier referral to a pulmonologist to assess mycobacterial infection would not have prevented unnecessary surgery to remove part of plaintiff’s lung where subsequent treating physicians made independent decision that surgery was indicated based on plaintiff’s symptoms at that time).
Kambousi Restaurant, Inc. v. Burlington Ins. Co., 58 A.D.3d 513, 871 N.Y.S.2d 129 (1st Dep’t 2009)(reversing order dismissing declaratory judgment action against insurer based on late notice where insured established a good-faith belief of nonliability, excusing the untimely notice, where husband of trip and fall victim told restaurant manager told manager “not to worry” because his wife had tripped over her shoelaces and where couple had disappeared by the time manager returned to parking lot with materials to write an incident report).
Poblocki v. Todoro, 49 A.D.3d 1239, 856 N.Y.S.2d 327 (4th Dep’t 2008)(dismissing claim against home care nurse stemming from alleged failure to timely diagnose and treat leaking aneurysm where nurse complied with orders given by decedent's physician, including the revised order that home care nursing visits need not be conducted over the weekend, and those orders were not so clearly contraindicated by normal practice that ordinary prudence required inquiry. Further, there was no evidence that earlier detection of decedent's aneurysm would have prevented decedent from developing a cerebral vasospasm).
DeCrescenzo v. Gonzalez, 46 A.D.3d 607, 847 N.Y.S.2d 236 (2d Dep’t 2007)(setting aside $14 million judgment and ordering new trial based on judge’s favoritism of plaintiffs and their attorney during trial, including giving a gift to the infant plaintiff in the presence of the jury).
Veloz v. Refika Realty, 38 A.D.3d 299, 831 N.Y.S.2d 399 (1st Dep’t 2007)(dismissing lead poisoning case based on showing that infant plaintiff did not suffer any physical or cognitive injuries where plaintiffs’ expert failed to cite medical literature in support of his theory that child’s alleged deficits in sequencing movements, visuospatial memory and speed of processing visual information were causally related to early childhood exposure to lead).
Behar v. Coren, 21 A.D.3d 1045, 803 N.Y.S.2d 629 (2d Dep’t 2005)(holding that plaintiffs failed to raise a triable issue of fact, as their expert's affidavit did not mention whether the expert had any specific training or expertise in surgery, gastroenterology, or pediatrics. The expert failed to lay the requisite foundation for his asserted familiarity with the applicable standards of care).
Welch v. Scheinfeld, 21 A.D.3d 802, 801 N.Y.S.2d 277 (1st Dep’t 2005)( holding that HPM&B client was not vicariously liable for alleged malpractice of private attending obstetrician during labor and delivery where the record conclusively established that hospital staff kept treating physician apprised of plaintiff’s condition before he arrived to deliver the baby and there is no evidence that the physicians who assisted Dr. Scheinfeld in the birth deviated from any of his directions).
Kwa v. Roberts, 18 A.D.3d 444, 794 N.Y.S.2d 417 (2d Dep’t May 2, 2005)(affirming judgment after trial and rejecting plaintiff’s arguments regarding the improprieties on the verdict sheet and extrajudicial communications between a court officer and the jury concerning a juror note).
DeAngelis v. N.Y. Univ. Med. Ctr., 15 A.D.3d 185, 789 N.Y.S.2d 47 (1st Dep’t Feb. 3, 2005)(affirming judgment based upon defense verdict. Court rejects claim that a missing witness respecting plaintiff's treating cardiologist was improper where plaintiff failed to show that his testimony would have been cumulative, or that he was either unavailable or not under her control. Also holding that the court did err in precluding plaintiff from utilizing at trial a letter written by cardiologist five years subsequent to the alleged malpractice).
Murillo v. Seymour Ambulance Assoc., Inc., 264 Conn. 474, 823 A.2d 1202 (2003)(in case of first impression, Connecticut Supreme Court holds that hospital did not owe a duty of care to bystander who was injured after fainting while observing care being rendered to her sister).
Lara v. New York City Health and Hospitals Corporation, 305 A.D.2d 106, 757 N.Y.S.2d 740 (1st Dep’t 2003)(Appellate Division affirms order setting aside $10 million medical malpractice verdict in favor of infant-plaintiff who claimed catastrophic brain injury including cerebral palsy based on alleged negligent obstetrical care. The first such holding in New York in which testimony of a medical expert in a medical malpractice case was stricken as unreliable under Frye and Daubert)(HPM&B appeared as amicus curiae on behalf of New York State Medical Defense Bar Association).
Giberson v. Panter, 286 A.D.2d 217, 729 N.Y.S.2d 29 (1st Dep’t 2001)(affirming order granting summary judgment to defendant obstetrician, rejecting claim that obstetrician negligently failed to diagnose Cornelia de Lange Syndrome).
Robinson v. Aziz, 275 A.D.2d 362, 364, 712 N.Y.S.2d 585 (2d Dep’t 2000)(medical malpractice: plaintiff sustained permanent injuries when an anesthesiologist negligently administered general anesthesia during surgery. Issue was whether anesthesiology practice should be vicariously liable to the patient. The jury found that the attending physician was an independent contractor and not an employee of the practice, but the trial court held that the practice was liable because administration of anesthesiology is an "inherently dangerous activity," creating a non-delegable duty. Reversing the lower court, setting aside a $700,000 judgment and dismissing the complaint, the Appellate Division agreed with our position about the potential ramifications of this ruling, holding that "[p]ublic policy is not served by applying the inherently dangerous work exception to the practice of accepted medical procedures, as an employer should not be required to anticipate that a medical professional hired as an independent contractor will exercise his or professional judgment in a manner that is dangerous or contraindicated.")
Walter v. Betancourt, 283 A.D.2d 223, 724 N.Y.S.2d 728 (1st Dep’t 2001)(reversing denial of summary judgment motion by defendant hospital. Appellate Division holds that hospital not responsible for causing the infant‑plaintiff’s Erb’s Palsy in mishandling her delivery because patient was under the care of a private attending physician).
Mandroukakis v. County of Westchester, 276 A.D.2d 533, 718 N.Y.S.2d 855 (2d Dep’t 2000)(reducing $7.5 million medical malpractice verdict to $3 million).
Weinstein v. New York Hospital, 280 A.D.2d 333, 720 N.Y.S.2d 475 (1st Dep’t 2001)(reducing $12 million medical malpractice verdict to $6.5 million).
Edin v. Halff, 261 A.D.2d 569, 690 N.Y.S.2d 705 (2d Dep’t 1999)(affirming order setting aside $1 million jury verdict based on post-trial motion showing lack of evidence that defendant physician caused plaintiff’s alleged brachial plexus injury).
Yasin v. Manhattan, Eye, Ear & Throat Hosp., 254 A.D.2d 281, 678 N.Y.S.2d 112 (2d Dep’t 1998)(medical malpractice action; affirming order awarding summary judgment, holding that defendant urologist not liable for the alleged failure to diagnosed endocarditis after referring the plaintiff to a cardiologist).
Filippone v. St. Vincent’s Hosp. and Med. Ctr., 253 A.D.2d 616, 677 N.Y.S.2d 340 (1st Dep’t 1998)(medical malpractice action; reversing denial of summary judgment motion brought on behalf of defendant hospital. Court holds that hospital not liable for negligence of private attending physician).
Newman v. Keuhnelian, 248 A.D.2d 258, 670 N.Y.S.2d 431 (1st Dep’t 1998)(affirming dismissal of medical malpractice action on statute-of-limitations grounds).
Jaffe v. New York Hospital, 249 A.D.2d 194, 672 N.Y.S.2d 94 (1st Dep’t 1998)(reversing denial of summary judgment motion in medical malpractice action alleging failure to diagnose meningitis; summary judgment awarded to defendant).
Palestrant v. Garcia, 244 A.D.2d 199, 664 N.Y.S.2d 31 (1st Dep’t 1997)(affirming judgment in favor of defendant in medical malpractice. The infant-plaintiff, who claimed that pediatrician failed to diagnose a cancerous tumor, appealed from jury verdict in favor of defendant, claiming various evidentiary errors at trial).
Margolese v. Uribe, 238 A.D.2d 164 , 655 N.Y.S.2d 524 (1st Dept. 1997)
(Reversing the denial of summary judgment and dismissing a medical malpractice action against our client, a retinal specialist, on the ground that plaintiffs failed to demonstrate a triable issue of fact on their claim that our client delayed a diagnosis or that the diagnosis proximately caused the alleged loss of eyesight).
Vasilopoulos v. Romano, 228 A.D.2d 669, 645 N.Y.S.2d 501 (2d Dept. 1996)
Legal malpractice claim, on appeal court dismisses claims of intentional infliction of emotional distress and punitive damages against a plaintiff who claimed lawyer-client assisted in a fraudulent mortgage).
Parrino v. Sperling, 232 A.D.2d 618, 648 N.Y.S.2d 702 (2d Dept. 1996)
(products liability action; wheelchair repairer accused of defectively assembling a wheelchair. On appeal, court dismissed claims of breach of contract and breach of warranty on statute of limitations grounds).
King v. Gaier, 233 A.D.2d 242, 650 N.Y.S.2d 107 (1st Dept. 1996)
(Affirming a dismissal of claims of aiding and abetting a fraud and legal malpractice against our client, a lawyer accused of bilking an estate).
Ciotti v. New York Hospital, 221 A.D.2d 581, 634 N.Y.S.2d 204 (2d Dept. 1995)
(Affirming defendant’s verdict in obstetrical case where the jury rejected plaintiff’s claim that mismanagement of a delivery resulted in hypoxic damage to infant’s kidneys requiring transplant).
Gamiel v. University Hospital, 216 A.D.2d 80, 628 N.Y.S.2d 74 (1st Dept. 1995)
(Reversing a decision imposing liability against a hand surgeon, for failing to spot cancer in an x-ray after the jury exonerated him. The Appellate Division dismissed the case in part on the ground that a treating physician may not be held liable for all aspects of a patient’s care as a matter of law).
Saxe v. Veber, 86 N.Y.2d 820, 657 N.E.2d 492, 633 N.Y.S.2d 471 (1995)
(Medical malpractice case in which plaintiff attempted to change the venue of the action on the ground that plaintiff was a sitting judge in the original venue (Manhattan) but to a county which is traditionally friendly to plaintiffs in tort cases (Kings). Despite the absence of explicit statutory language to this effect, Court of Appeals holds that a change of venue must be to a place where the action could have been venued in the first place, thus preventing the abuse attempted in this case).
Romano v. Marks, 231 A.D.2d 563, 647 N.Y.S.2d 272 (2d Dept. 1996)
(Affirming a defense verdict in a medical malpractice/lack of informed consent case in which the jury rejected plaintiff’s claim that our client failed to provide proper warnings about the risks of cosmetic surgery)
Astuto v. Hogan, 219 A.D.2d 692, 631 N.Y.S.2d 761 (2d Dept. 1995)(affirming a defense verdict holding that our client provided proper warnings to a plaintiff before undergoing surgery.
McCalla v. Warner-Lambert, 1995 U.S. App. LEXIS 39916 (2d Cir. 1995)
(invoking the “learned intermediary” doctrine, the U.S. Court of Appeals affirms the dismissal of a claim that our client, a pharmaceutical maker, failed to give proper warnings regarding its flu vaccine).
Highlights:
Verdicts
Daniel Ratner and Raphael Berman Prevail On Appeal In Podiatry Case
After having two toes amputated because of peripheral vascular disease, plaintiff sued HPM&B's client, a podiatrist, for malpractice on a theory that. ... [full]
Appellate Practice Group Obtains Reversal Based on Plaintiff's Reliance on an Unqualified Medical Expert
Dan Ratner and Daryl Paxson of HPM&B's appellate practice group recently obtained a reversal and dismissal of a medical malpractice complaint, convincing the Appellate Division, Second Department that plaintiff's expert, in opposition to a summary judgment motion, failed to adequately demonstrate his credentials for offering an opinion as to a standard of care that was outside his area of specialization. ... [full]
In Product Liability Action, Punitive Damages Claim Dismissed on Appeal
On December 27, 2005, the Appellate Division affirmed the dismissal of a punitive damages claim against our client, a major manufacturer of MRI machines, in a highly-publicized suit arising from the tragic death of a young boy when a ferrous oxygen tank was drawn into the machine's magnetic field. ... [full]
Publications:
March 17, 2003: New York Law Journal
Appellate Courts Accept Higher Ceiling on Awards, Published in New York Law Journal
January 1, 2000: Medical Malpractice in New York
Luke M. Pittoni, Marc E. Hyman and Daniel S. Ratner, Obtaining the Expert Witness for the Defendant published in Medical Malpractice in New York - 2000 Supplement, New York State Bar Association.
October 1, 1999: Certworthy, Appellate Advocacy Subcommittee, Defense Research Institute
Overcoming Preservation Problems and Supplementing the Record on Appeal, published in Certworthy, Appellate Advocacy Subcommittee, Defense Research Institute, Fall 1999.
January 1, 1997: Defense Research Institute
Managed Care Liability for Medical Malpractice and the Preemptive Effect of ERISA, published in the Defense Research Institute's Monograph on Modern Healthcare Defense Issues 1997 Defense Research Institute (vol. 6), p.1.
Announcements:
HPM&B RAISES $30,000 FOR CHILDRENS' CANCER RESEARCH
On March 16, 2007, four members of Heidell, Pittoni, Murphy & Bach, LLP (HPM&B) celebrated St. Baldrick’s Day in style. Luke M. Pittoni, Senior Partner, Daniel S. Ratner, Managing Partner, John H. Bone, Associate, and Nikolai Paxson, IT Administrator, shaved their heads to raise money and awareness for childhood cancer in honor of 10--year-old Jack McGuire. Through bets and pledges from friends, family, and clients who dared them to go bald, they collectively raised over $30,000 for the cause. Live on the set of Fox TV’s “The Morning Show with Mike and Juliet,” Mr. Pittoni and Mr. Bone had their hair shorn by barber Pino Lanzetta, whose shop is located at 99 Park Avenue in the lobby of the firm’s building. The event continued at the offices of HPM&B, where Mr. Ratner and Mr. Paxson had their heads shaven. The first St. Baldrick’s event was held in 1999 at Jim Brady’s Pub in Manhattan to benefit childhood cancer research and to improve the long-term quality of life for survivors. The St. Baldrick’s Foundation’s mission is to fund cures which assure each child a long and healthy life. Since its inception, events have taken place in 10 countries and 42 U.S. states, raising over $22 million and shaving more than 26,000 heads. This was the firm’s second year participating in a St. Baldrick’s charity event. Jack McGuire lost his battle with Leukemia on Thursday, March 29, 2007. Jack touched our lives and we are deeply saddened by his loss.
HPM&B Raises $25,000 For Children's Cancer Research
On March 17, 2006, partners Luke M. Pittoni and Daniel S. Ratner, senior associate Matthew Sconziano and mailroom supervisor Lundell Wilson celebrated "St. Baldrick's Day" by having their heads shaved in return for donations to the St. Baldricks Foundation. The foundation's mission is to raise awareness and funds to Conquer Kids’ Cancer by shaving heads on St. Baldrick's Day. To date, HPM&B has raised more than $25,000 for this worthy cause. For more information about St. Baldrick's or to make a donation, click on the link below.
Ratner Writes On Post Trial Motions
Appellate Partner Dan Ratner authored the chapter on post trial motions in a book on The Trial of a Civil Action to be published by the New York State Bar Association.
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