NY State Appeals Court Affirms Dismissal of Claims in Mago Suit

In an opinion issued earlier this week, the New York State Appellate Division, Second Department, affirmed the dismissal of certain claims in boxer Magomed Abdusalamov’s ("Mago") suit accusing ringside doctors and the promoter of the event of responsibility for his injuries following his 2013 bout with Mike Perez at Madison Square Garden.

Regarding the lack of informed consent claim against the four ringside doctor defendants (Anthony Curreri, Osric King, Avery Browne and Gerard Varlotta), the panel held that this claim was properly dismissed by the trial judge. The panel stated that New York law requires the plaintiff to allege there was "some unconsented-to affirmative violation of the plaintiff’s physical integrity (citation omitted).  As the plaintiffs made no allegation that the defendants, in purportedly failing to prevent, diagnose, and treat the injuries [Mago] allegedly sustained during the boxing match, invaded his bodily integrity, the Supreme Court properly directed dismissal of the plaintiffs’ second cause of action to the extent it sought recovery on the basis of lack of informed consent.”

The panel further affirmed the dismissal of derivative causes of action asserted by Mago’s wife on behalf of their three children.

Mago's family had also brought claims for punitive damages against the ringside doctors and promoter K2 Promotions, but the panel affirmed the lower court's dismissal as the claims did not "constitute gross recklessness or intentional, wanton or malicious conduct . . . or are activated by evil or reprehensible motives."  The panel held that the claims alleged nothing more than mere negligence.

As reported last month, the State of New York and certain officials of the New York State Athletic Commission settled with Mago for $22 Million.

See the Second Department's opinion below:

NY State Settles Mago Case for $22 Million

Yesterday, both ESPN and BoxingTalk reported that the family of heavyweight boxer Magomed Abdusalamov ("Mago") has agreed to settle its personal injury suit against the State of New York and certain officials of the New York State Athletic Commission ("Commission") for the sum of $22 million.  The settlement encompasses claims made against the state of New York in Thomas v. New York, Case No. 126865 in the New York State Court of Claims, as well as claims against the Commission's Chief Medical Officer Barry Jordan and an inspector (and former boxer) Matthew Farrago in Thomas v. Farrago, Case No. 505880/2014, in the Supreme Court of the State of New York, County of Kings.

Mago was injured in his bout with Mike Perez at Madison Square Garden on November 2, 2013. Mago appeared to take a hard forearm to the face in the first round and visibly complained to his corner.  Mago fought on and went the full ten rounds with Perez in what was a very spirited and competitive bout.  After being examined by Commission doctors in his dressing room, Mago was allowed to leave the arena on his own and soon after started vomiting.  He was taken to the hospital in a taxi by his handlers where he was diagnosed with a subdural hematoma.  He was then operated on to relieve the pressure on his brain and placed in an induced coma.

According to the ESPN report, Mago, 36, is still unable to walk and is paralyzed on the right side of his body.  His speech is also severely impaired and his doctors have stated he may never walk again.

The complaint filed in the Supreme Court, County of Kings, named Farrago, Jordan, as well as ringside doctors Anthony Curreri, M.D., Osric King, M.D., Avery Browne, D.O., Gerard Varlotta, D.O., referee Benji Esteves, Jr., promoter K2 Promotions, LLC and the venue MSG Holdings, L.P., as defendants.  All but Curreri, King, Varlotta and Esteves have now been dismissed from the case.

On June 29, 2017, Mago's attorneys filed a note of issue in the Supreme Court that they are ready for trial. Their most recent filing was a good faith demand letter to the attorneys of defendant doctors Curreri, King and Varlotta that they settle for the limits of their insurance coverage, which would net an additional $6.2 million for Mago.