Rosensweig v. State

• Citation: 208 Misc. 1065,146 N.Y.S.2d 589
• Decision Date: 05 December 1955
• Docket Number: No. 31049,31049
• Parties: Alexander ROSENSWEIG, as Administrator of the Goods, Chattels and Credits which were of George Flores, Deceased, Claimant, v. The STATE of New York. (Claim) Court of Claims of New York
• Court: New York Court of Claims

Page 589

146 N.Y.S.2d 589

208 Misc. 1065

Alexander ROSENSWEIG, as Administrator of the Goods Chattels and Credits which were of George Flores Deceased, Claimant, v. The STATE of New York.

(Claim No. 31049.) Court of Claims of New York.

Dec. 5, 1955.

Jacob D. Fuchsberg, Irving A. Thau, New York City, of counsel, B. Hoffman Miller, New York City, on the brief, for the claimant.

Jacob K. Javits, Atty. Gen., Edward R. Murphy, Asst. Atty. Gen., of counsel, for the State.

YOUNG, Judge.

On September 3, 1951, a prizefighter, George Flores, died after having participated in a boxing match in Madison Square Garden on August 29, 1951. The death gave rise to this claim.

In recent years the sport of boxing has suffered an immeasurable loss of public confidence. Boxing news is rife with rumors of foreordained losses or predetermined victories. The boxing industry is charged with gangster control, aided by strangling monopoly. Dummy managers and rapacious contracts are not unheard of. The betting coup is a real threat. See Tilelli v. Christenberry, 1 Misc.2d 139, 120 N.Y.S.2d 697. 'There are recurring demands and responses to those demands for more strict regulation and 'cleaning of house'.' Oma v. Hillman Periodicals, Inc., 281 App.Div. 240, 243, 118 N.Y.S.2d 720, 723. The shadow cast by this scandalous state of affairs has spread its pall to a degree over the trial of this claim. For that reason only, we feel constrained to state at the outset that we are not called upon to cure the ills of boxing, or even comment upon them, except so far as they may be of concern here. It is not our duty to legislate reforms and even if we were so inclined we would not be qualified. We make no findings, favorable or otherwise, except as they pertain to the death of George Flores.

To understand claimant administrator's version of causation, it is necessary to follow Flores' boxing career from at least the preceding July 24th, when he fought Johnny Cerky at the Fort Hamilton Boxing Club in Brooklyn.

At that time, Flores, twenty-one years old, had had twenty-one professional fights: sixteen wins, two losses and three draws. He had been an extremely active fighter, having had these twenty-one bouts over a period of sixteen months. We assume that during this short but busy career Flores absorbed the usual amount of punishment that is the lot of a prizefighter who has been characterized as a puncher rather than a boxer.

In the second round of the Cerky fight, Flores was hit by a series of lefts and rights to the face. His mouthpiece fell out. He was hit another series of blows to the face. His guard was down and he appeared helpless. The referee stopped the fight. Cerky was awarded the decision by a technical knockout (TKO), although, through an error, the result appears on the records of the State Athletic Commission as a knockout (KO). The attending physician at this fight was a Doctor Swetnick.

Flores' next fight was against Roger Donoghue at White Plains on August 14, 1951. Donoghue, with an impressive record, was recognized as an adept boxer with a strong left hand attributable to his being a 'turned-around southpaw'.

Before the fight, Flores was given the examination provided all fighters entering a ring in New York State. This type of examination will be described later. The attending physician was Dr. Thomas N. Bockner.

The consensus of the round-by-round scoring cards of the two judges and the referee for the first seven rounds shows Flores winning one round closely, and Donoghue winning six rounds, three closely and three, the 5th, 6th and 7th by clear margins.

In the eighth round, Donoghue hit Flores with his left and Flores went down. The count went to eight or nine. Flores climbed to his feet and leaned against the ropes in an attitude of helplessness. Donoghue rushed him. Flores, without striking a blow or lifting his arms in defense, ducked under Donoghue's lead, walked to the other side of the ring and again leaned helpless against the ropes. The referee stopped the fight, Donoghue being the winner by a TKO. Dr. Bockner then examined Flores both in the ring and later in the dressing room. He states that he found nothing physically wrong with the fighter. Be that as it may, from this time on to the fatal fight, for a man who had nothing wrong with him, Flores was subjected to an extraordinary amount of medical activity. In fairness to Bockner though, it should be said that nothing taking place later was at his suggestion or evidently done even with his knowledge.

This fight was on August 14th. On August 24th, a contract for a second Flores-Donoghue fight was filed with the State Athletic Commission. Between these two dates, there was much activity, the chronology of which the Court has had to piece out from a welter of hazy recollections, incomplete records, missing reports and denials of responsibility.

The next day, August 15th, Flores and his manager went to see Deputy Commissioner Duberstein at the office of the State Athletic Commission. Flores said that he wanted a rematch with Donoghue. Duberstein replied that the question of a rematch was up to Billy Brown. ¹

At this point, Duberstein telephoned Dr. Bockner and asked about Flores' physical condition. Bockner said that Flores was all right. In certification of this opinion Dr. Bockner this day made out a commission accident report which reads in part:

Description of Injury 'T.K.O.'

Manner in Which Sustained 'Referee stopped bout--last round. No injury to boxer--left ring in good shape.'

Recommendations (Including X-Rays, and Other Special Examinations) 'I believe he can continue.'

If we are to believe these surface indications, this should have cleared the way for the rematch. But it didn't because Duberstein then showed an intelligent appreciation of the risks involved--an appreciation that the doctors in this case had, but failed to show. He knew that, despite Bockner's report, Flores had had two TKO's in the last three weeks. He knew that, in his own words, he'd 'rather be safe than sorry'. He wasn't to be rushed by Billy Brown or by Brown's saying that when he was fighting 'all they wanted was a warm body'. Duberstein threw the case back to the doctors by telling Flores that he could not fight again until he had had an electroencephalogram taken. In short, he was suspended. ² On August 16th, Flores was examined by commission Doctor Maniscalzo, with what results we do no know. On the same day an electroencephalogram (EEG) was taken by a medical technician at the Commission's office. The EEG was read the same day by commission doctor Kaplan, whose report states in part:

Comment: 'This is a generally good record. However, there is some slowing anteriorly.'

Impression: 'Normal record.'

Within the next few days, Billy Brown talked to Duberstein about the rematch and was told that he would have to wait until the doctor's report and the results of the EEG were known.

On August 24th, Flores was examined by commission doctor Swetnick, with what result we do not know. On the same day, Duberstein received the following interoffice memo: 'Dr. Kaplan reported that the recent electroencephalogram examination given George Flores was within normal limits'.

Duberstein then told Billy Brown to go ahead with the rematch. A letter, dated August 24th, was sent to Flores telling him his suspension was lifted. On the same day, the contract for the rematch at Madison Square Garden on August 29th was filed with the State Athletic Commission.

At noon on August 29th, Flores and the other nine fighters on that evening's card, were examined by commission doctor Vincent A. Nardiello. Flores' examination took from ten to fifteen minutes and was a general physical, including eyes, periorbital region, oropharynx, lungs, heart, pulse rate, blood pressure, abdomen, vertebral column, extremities and nervous system.

The examination form required Flores to disclose the results of his last bout. When he told Nardiello that he had lost by a TKO, Nardiello asked, 'What are you fighting for?'. Nardiello then sent for Flores' record. He saw that he had lost the Cerky fight by a KO and the previous one by a TKO. He saw Dr. Swetnick's report of the Cerky fight and Dr. Bockner's of the Donoghue fight. He disclaims knowledge of the suspension. Nardiello then certified that Flores was all right to fight.

The fight, starting about 9:30 p. m., was a fairly even one for seven rounds, with Donoghue leading on points. In the eighth round, with Flores boring in, Donoghue hit him with a right hand to the mouth. Flores straightened up--his mouthiece fell out--he was set up for Donoghue's best punch, the left hook. Donoghue delivered it and Flores went down. From the boxing standpoint, it was the perfect combination punch, properly executed. Flores was unconscious as he fell, his head hitting the ring with a resounding thud.

Flores tried but failed to get up during the count, staying on the floor until his seconds took him back to his corner. Dr. Nardiello went into the ring, talked to him, examined him cursorily, and he appeared to the doctor to be all right.

Flores walked to his dressing room and, three minutes after his arrival there, he went into a deep coma, from which he never regained consciousness, dying four days later.

Flores was rushed from the dressing room to a hospital. He was kept under a neurosurgeon's observation until midnight when it was decided that a brain operation was necessary. The condition of the brain brought to light by the operation disclosed factors from which can be drawn two medically inescapable conclusions:

1. The absence of a massive hemorrhage rules out the injury to Flores being the result of a single blow.

2. The amount of edema present at this very early stage, i.e., two hours after the fight, was not in keeping with the time elapsed; the edema present could be accounted for only by an injury to the brain prior to the August 29th...