New York Accident Lawyer Blog

Leav & Steinberg, LLP Welcomes Associate Nicholas W. Dell'Anno, Esq.

Thu, 26 Apr 2012 17:11:44 -0500

Leav & Steinberg, LLP welcomes their newest associate, Nicholas W. Dell'Anno, Esq., to their accomplished team of talented attorneys. During his several years of tenure as a personal injury defense attorney specializing in medical malpractice, Nicholas witnessed first-hand the tactics that insurance companies and their counsel use to devalue the claims of the often outnumbered injured claimants. Nicholas came to the epiphany that he no longer wanted to be a part of the devaluation of the multitude of human tragedies that his role as a defense attorney required from him. Now, Nicholas joins Leav & Steinberg, LLP with a zest to devote his painstaking efforts and meticulous attention to detail towards helping the injured obtain the most value from their claims as possible.

In addition to bringing an insight into the tactics of his adversaries, Nicholas proudly and honorably served as an infantryman in the United States Army for three years, which included a thirteen month deployment to the Republic of South Korea. Nicholas proudly carries the same unrelenting efforts into tireless service for his injured clients in battling his adversary defendants in his mission for justice.

Nicholas earned a Bachelor of Science in Business Administration from Nova Southeastern University prior to obtaining a Juris Doctor from Hofstra University School of Law. At Hofstra University School of Law, he also earned a concentration in civil litigation through his electing to base a majority of his classes in the area of law in which he now loves to practice.

Bronx Students, Department of Education Staff, and Others Who Were Around The Bronx New School (P.S. 51X) Exposed to Toxic Chemical

Wed, 23 Nov 2011 10:51:57 -0500

A toxic chemical, TCE (trichloroethylene), was found at excessive levels in the air inside and the soil around The Bronx New School (X051-also known as P.S. 51X). Testing for the chemical was performed in July 2011 and the following letter, dated August 29, 2011, was sent to former families and staff who may have been present at this school at 3200 Jerome Avenue, Bronx, New York:

20111123104205887

TCE has been linked to a plethora of problems with those who were exposed, including but not limited to: headache, dizziness, blurred vision, confusion, fatigue, nausea, unconsciousness, respiratory and circulatory depression and irritation, cardiac dysfunction, cancer of the kidney, liver, and esophagus, non-Hodgkin's lymphoma, adverse effects on female reproductive system and fetal development, and even death.

The website listed in the letter includes links to the July testing report, a TCE fact sheet, information on the new location for the school, and an August indoor air quality report for the new building, among other things.

If you think you were exposed to TCE, you should consider a medical examination with your physician. Keep in mind that there are pre-conditions and time limitations for filing a lawsuit against a public authority, such as the Department of Education. A failure to abide by these restrictions may result in a complete bar to your compensation for personal injuries sustained as a result of TCE exposure.

By Kathleen Beatty

Personal Injury News Update

Fri, 04 Nov 2011 16:55:07 -0500

Fracking Opponents Push for New Legal Remedies, Thomson Reuters News & Insight

(See prior entry Fracking Contaminating New Yorkers' Water? 08.12.2011)

Thrown for a Loss: Retired Players Sue, Claim NFL Hid Brain Damage Info, ABA Journal
(See prior entries National Football League and Sports in New York, Part 1 02.07.2011 and National Football League and Sports in New York, Part 2 02.10.2011)

Amid Stacks of Paper, 'E-Court' is Finally in Session, The New York Times
(See prior entry Filing Tort Cases in the New York State Courts Electronic Filing System (NYSCEF) 06.12.2011)

Employees' Facebook Pages are Private, Until They're Not, Entrepreneur.com/blog and Patterson v. Turner Constr. Co.
(See prior entry Technology: Friend or Foe to New York Personal Injury Attorneys and their Clients? 01.08.2011)

High School Coach Dies in Church Boxing Match, ABC News

Health Concerns That Just Won't Go Away, The Economist

Verdict Search's Top NY Verdicts of 2010, Verdict Search

New York Man Sentenced in Tragic Philadelphia "Duck Boat" Accident, The Maritime Executive

87-Year Old NY Preacher Struck by Police Car, The Wall Street Journal

Safety of Smaller, Less Experienced Curbside Bus Operators Assailed by Sen. Chuck Schumer and National Transportation Safety Board Study, NY Daily News

Low-Cost Bus 'Wake-Up Call', The Wall Street Journal

Recycler Cited After NY Worker Crushed to Death, The Wall Street Journal

Keep Patients Safe to Reduce Health Costs, Timesunion.com

By Kathleen Beatty

Motor Vehicle Accident Statistics Now Public

Thu, 13 Oct 2011 15:27:18 -0500

For a long time, the New York Police Department has published crime statistics for the City of New York. The statistics were divided by type of crime, such as murder, rape, robbery, or burglary, and grouped into charts showing the frequency of crime within the entire City of New York, or within each borough or precinct. Information from past years, up to eighteen years ago, was also available for comparison. This information has been available for viewing online by the public anytime.

Now, due to a new city law, the NYPD must publish motor vehicle statistics in a similar manner. The information, although required to be submitted four months ago, was finally published on the website last Tuesday night here. There is an entry for each occasion the police responded to a motor vehicle accident. There is a collective citywide chart and there are separate charts categorizing the statistics by borough. The borough charts are further divided by precinct and then by intersection. There is a searchable map to ascertain which precinct you are inquiring about, but running a text search (control + F on a PC) may be a more efficient way of gathering information. Within the borough charts, each intersection's entry specifies the number of accidents, number of persons involved, number of accidents with injuries, type of vehicles involved, contributing factors, and whether those who were injured or killed were motorists, passengers, cyclists, or pedestrians.

Citywide, there were 16,784 motor vehicle accidents during the month of August, and 3,437 injuries or fatalities. Brooklyn was the borough with the most injury or fatality involved motor vehicle accidents in August, followed by Queens, then Manhattan, Bronx, and Staten Island. Brooklyn had a total of 1,569 injury or fatality involved motor vehicle accidents in August while Staten Island had only 278. Brooklyn and Queens were tied for the greatest number of fatalities (5), while Manhattan was in the middle (3), and Bronx and Staten Island were tied for the least number of fatalities (1). A number of intersections had more than 10 accidents in August. Here is the breakdown by borough:

In Manhattan, there were 10 or more accidents at 7 intersections: Bowery and Canal Street (10 accidents, 1 accident with injuries), Canal Street and Lafayette Street (13 accidents, 1 accident with injuries), Delancey Street and Essex Street (13 accidents, 2 accidents with injuries), Delancey Street and Norfolk Street (10 accidents, 4 accidents with injuries), 3rd Avenue and East 37th Street (11 accidents, 1 accident with injuries), 3rd Avenue and East 57th Street (11 accidents, 2 accidents with injuries), Amsterdam Avenue and West 125th Street (13 accidents, 4 accidents with injuries).
In Bronx, there were 10 or more accidents at 1 intersection: Bruckner Boulevard and East 138th Street (12 accidents, 4 accidents with injuries).
In Brooklyn, there were 10 or more accidents at 2 intersections: Flatbush Avenue and Grand Army Plaza (14 accidents, 3 accidents with injuries), Atlantic Avenue and Flatbush Avenue (10 accidents, 1 accident with injuries).
In Queens, there were 10 or more accidents at 2 intersections: College Point Boulevard and Horace Harding Expressway (12 accidents, 0 accidents with injuries), 94th Street and Ditmars Boulevard (10 accidents, 1 accident with injuries).
In Staten Island, there were 10 or more accidents at 0 intersections.

Proponents of the publication of these statistics say it creates transparency which enables concerned citizens to make a case to the city for changes to a particular intersection. Previously, citizens were relegated to utilizing anecdotal evidence to make their case. But these data are not what the city relies upon to change its streets. It is the Department of Transportation's analysis of police reports, including the number of accidents and their severity, which historically contributed to change.

As discussed in the Wall Street Journal, "The first batch of data covers only August. And it doesn't include information about traffic volume, so it's impossible to know whether a high number of accidents in any one month or near any one corner is due to a poorly designed street or an uptick in the number of cars passing through". Another concern that comes to mind is that police do not always list injuries when there were injuries. Of course, these statistics do not account for the many accidents and injuries for which no one notifies the police.

Notably, the majority of motor vehicle accidents, in every borough of the city, was cited by the police to be caused by driver inattention/distraction. The next most frequently cited contributing factor was following too closely, then failure to yield right-of-way, backing unsafely, improper passing/lane usage, and unsafe lane change. The possible contributing factors in injury and fatal accidents, other than driver inattention/distraction, are as follows: aggressive driving/road rage, alcohol involvement, backing unsafely, cell phone (hand-held), cell phone (hands free), driver inexperience, drugs (illegal), err/confusn ped/bike/other ped, failure to keep right, failure to yield right-of-way, fatigued/drowsy, fell asleep, following too closely, illness, lost consciousness, other electronic device, other uninvolved vehicle, outside car distraction, passing or lane usage improper, physical disability, prescription medication, traffic control disregarded, turning improperly, unsafe lane changing, and unsafe speed.

Resources:

The Wall Street Journal, NYPD Offers First Glimpse Into Crashes, By Andrew Grossman, 10.13.2011.

By Kathleen Beatty

Going Where There is no Liability

Wed, 28 Sep 2011 08:24:21 -0500

Where is there no liability (on the part of the premise owner or operator)? Some facilities require patrons to sign waiver clauses or exculpatory clauses before partaking in the activities they offer. Whether these clauses will apply is fact dependent.

The General Obligations Law section 5-326 explicitly voids certain exculpatory clauses. It specifically names "pools, gymnasiums, places of public amusement or recreation" and also "similar establishments". Here is the wording of the statute:

"Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable."

As can be seen, there is ambiguity. What qualifies as a place of public amusement or recreation and what qualifies as a similar establishment? What satisfies the fee requirement? What if the plaintiff fails to provide evidence of payment of a fee for admission to, or use of, the facilities? Then is the use in connected with or collateral to a fee for admission so as to implement the applicability of the statute? Will a facility of "instruction" (a driving school, a scuba lesson facility, a horseback riding instruction facility) be held by a court to be within the ambit of the statute? What if the facility has characteristics of both amusement and instruction? Who is a user?

The next best thing for a gym, when it cannot exculpate itself from personal injury claims, is to add a forum selection clause and a jury waiver clause to the contract. A forum selection clause allows the gym to transfer all personal injury claims to the venue that they perceive will be the most favorable to them and will compensate the injured party the least. Here is a provision from a New York gym membership agreement:

"...4.5 Governing Law; Jurisdiction. These terms and conditions shall be governed in all respects by the substantive laws of the state in which the cause of action arises, without regard for conflict of law principles of such state. With respect to personal jurisdiction, you hereby irrevocably submit to personal jurisdiction in any action brought in any court, federal or state having subject matter jurisdiction arising under this contract within the location set forth below, and you hereby waive, to the fullest extent permitted by law, the defense of lack of personal jurisdiction, inconvenient forum, and improper venue to the maintenance of any action. You hereby waive your right to a trial by jury...."

New York Courts have upheld these provisions, even when the gym member did not read the provision and/or did not intend to enter into this agreement. As for where your case will be transferred pursuant to this gym agreement (State of Where Cause of Action Arises-Venue/Jurisdiction):

Connecticut-Fairfield County, CT

District of Columbia-District of Columbia, DC

Maryland-Montgomery County, MD

Massachusetts-Worcester County, MA

New Jersey-Bergen County, NJ

New York-County of Westchester, NY

Pennsylvania-Bucks County, PA

Rhode Island-Providence, PA

Virginia-Fairfax County, VA

For baseball games, no signature is required, according to the back of the ticket. By using the ticket, it states, you are agreeing to the terms. There are provisions agreeing (for you) that by using the ticket, you will not transmit (or aid in transmitting) any information about or related activities by photo, video, audio, etc.; that your name, image, likeness, voice, portrait, and picture may be used in broadcast "for all purposes", as well as for advertising and promotion without written consent of the event operator. With regard to personal injury, here is an excerpt from the back of a ticket to a New York baseball game held this season. The font on the actual ticket is probably 6 point, but you can read it here in 12:

"WARNING- The ticketholder assumes all risk, danger and injury incidental to the game of baseball or other event and all warm-ups, practices, competitions, entertainment and promotions associated therewith, at all locations in and around the ballpark and surrounding areas and parking lots, whether occurring prior to, during or subsequent to the playing of the game or other event, including (but not limited to) the danger of thrown bats, fragments thereof, and thrown, propelled or batted balls and other objects, and agrees that no persons or entities (including but not limited to [names of entities omitted] and their member Clubs, management of the Clubs, the City of New York, and their respective agents, agencies, owners, officers, affiliates and employees) are liable for any injuries, death, or loss of property resulting from such causes, and releases and holds harmless all such persons and entities..."

The parking pass does not appear to deal with personal injury, but does mention property damage:

"...4. The [names of entities omitted] are not responsible for, and assume no liability arising from fire, theft, damage to, or loss of the vehicle or any article therein while on the ballpark parking lots..."

Likewise, here is an excerpt from the back of a ticket to a New York football game that was held this season (albeit in New Jersey). The font on the ticket is slightly larger than on the baseball ticket, and may actually be as large as 7 point:

"...3. Ticket holder assumes all risks incident to the game or related travel and events, including the risk of lost, stolen or damaged property or personal injury..."

It is not always feasible to avoid these waivers. Whether a waiver will apply will depend on the unique facts surrounding the waiver and the injury, among other things. When there is no written waiver, the doctrine of assumption of the risk may apply and may preclude liability on the part of the owner or operator of the premises. If there is a written waiver, it may be void pursuant to the statute or on other grounds. For those who currently have a personal injury claim, whether in suit or not, always contact your attorney before signing any kind of waiver. Even if you are told by the owner or operator of the premises that the waiver does not apply to your personal injury claim, or the waiver is being signed as a result of a seemingly irrelevant claim (i.e. a housing claim), always consult your attorney first. A failure to do so could result in the forfeiture of your ability to recover compensation for your injury.

By Kathleen E. Beatty

Fracking Contaminating New Yorkers' Water?

Fri, 12 Aug 2011 08:37:06 -0500

The drilling industry maintains that fracking is harmless to water supply, but scientific studies, including an old one by Environmental Protection Agency (EPA), show otherwise. Fracking is the procedure whereby water, sand, and/or toxic chemicals are imbued to the ground to break up rocks and release natural gas. For years, settlements between landowners and energy companies have been sealed, making it impossible for the public to analyze documents which may show many more instances of water contamination by fracking than already discerned.

The EPA study revolves around contamination discovered in 1984 in West Virginia, on the property of Mr. James Parsons. The Kaiser Exploration and Mining Company used hydraulic fracturing fluids or gels that were ultimately found in Mr. Parson's water well, along with natural gas. The water was rendered unusable. Though the American Petroleum Institute conceded this was a case of water contamination due to fracking, a spokesman averred that the important factor in that case was that the driller and regulator did not know about the nearby aquifer. Other scientific studies have found that patterns of fracking contamination can aggregate so severely that a faucet can be lit on fire, or a home or water well may blow up after gas seeps into the basement or water supply. The drilling industry and some state regulators described these other adverse fracking incidents as anecdotal, unconnected to drilling activity, or an isolated problem.

The oil and gas industry claims fracking is safe because the process occurs thousands of feet below drinking water aquifers. The Chief Executive of ExxonMobil has gone so far as to say at a Congressional hearing: "There have been over a million wells hydraulically fractured in the history of the industry, and there is not one, not one, reported case of a freshwater aquifer having ever been contaminated from hydraulic fracturing. Not one". Clearly this is contrary to the EPA finding, which was published in 1987, as well as other documented instances in New York, Colorado, Ohio, and Pennsylvania.

Now, New York Attorney General Eric T. Schneiderman is battling federal agencies over their proposed regulations, which could affect drinking water of 9 million New Yorkers, as they will allow fracking at over 15,000 gas wells without a full environmental review. "Schneiderman's suit seeks to halt the regulations until the commission complies with the National Environmental Policy Act's requirement for a full review of all health and safety risks". The lawsuit has the potential to shut down gas development for years in a region that covers one of the largest natural gas formations in the world. The case, New York v. U.S. Army Corps of Engineers, 11- cv-2599, U.S. District Court, Eastern District of New York (Brooklyn), will be consolidated with another case brought by Delaware Riverkeeper Network. It is anticipated that other interest groups, such as Damascus Citizens for Sustainability, will file similar suits.

Members of the American Petroleum Institute, Independent Petroleum Association of America, and U.S. Oil & Gas Association, including pipeline operators, natural gas producers, and other businesses, could be economically affected. On the other hand, copious events show water contamination complaints subsequent to the execution of fracking in the vicinity. As a further exemplar, upwards of 2,000 natural gas wells have been drilled in Pennsylvania, resulting in "hundreds of violations of water pollution laws," according to Schneiderman's complaint, which also cites an April 19 Chesapeake Energy Corporation natural gas well blowout.

U.S. District Judge Nicholas G. Garaufis held the New York case to be "regulatory", "statutory" and "constitutional", and thus, found that the U.S. can move to dismiss it. The U.S. court papers showed it plans to seek dismissal of the case on the grounds that the state can not prove injury and does not have the right to sue federal agencies. Trade groups have standing to file briefs on the U.S. motion to dismiss while they seek more formal status to intervene.

Another proposal, by New York Comptroller Thomas DiNapoli, is for the inception of a fund comprised of fees paid by drillers to clean up environmental damage from natural gas drilling using high volume fracking. It would also require natural gas production players in New York to post a bond to cover potential contamination liability.

Resources:
The New York Times, A Tainted Water Well, and Concern There May be More, Ian Urbina, 08.03.2011.

Bloomberg Businessweek, U.S. Can Try to End New York Fracking Lawsuit, Judge Rules, Tiffany Kary, 08.10.2011.

The Wall Street Journal, DiNapoli Proposes 'Fracking' Fund, 08.10.2011.

By Kathleen Beatty

Prescription Smoking Cessation Drug Chantix More Trouble Than it's Worth?

Fri, 08 Jul 2011 09:05:13 -0500

Chantix, also known as Varenicline (var en' i kleen), is a prescription grade smoking cessation tablet that is intended to be taken orally once or twice a day with a full glass of water and food. Chantix is typically prescribed for a 12-week period, at the end of which, it is anticipated that many people will cease smoking. It has been on the market for about 5 years and became the best-selling drug of its type, both in the United States and overseas, until recent negative publicity began to detract from its success.

Formerly, the side effects associated with Chantix, as listed by the National Center for Biotechnology Information (a division of the National Library of Medicine at the National Institutes of Health) were nausea, constipation, gas, vomiting, heartburn, bad taste in the mouth, increased or decreased appetite, trouble falling asleep or staying asleep, unusual dreams or nightmares, drowsiness, and headache. The more serious side effects included swelling of the face, tongue, lips, gums, throat, arms, or legs, difficulty swallowing or breathing, rash, swollen, red, peeling or blistering skin, and blisters in the mouth. Other sources reported risks such as loss of consciousness, visual disturbances, suicides, violence, depression, and worsening of diabetes.

Recently, a randomized, double-blind, placebo-controlled clinical trial that included 700 smokers with cardiovascular disease who were treated with Chantix or a placebo indicated a link between Chantix and adverse cardiovascular events. The cardiovascular events included angina pectoris, nonfatal myocardial infarction, need for coronary revascularization, and new diagnosis of peripheral vascular disease or admission for a procedure for the treatment of peripheral vascular disease. These warning are now being added to the Warnings and Precautions section and the patient Medication Guide.

An even newer study, published in a Canadian medical journal, showed a link between Chantix and an increased risk of heart attack, stroke, and other serious cardiovascular events for smokers without a history of heart disease compared to smokers who did not use the drug. This new study analyzed 14 randomized clinical trials which involved 8,200 patients and completely excluded those with cardiovascular disease. The study revealed an absolute difference of 0.24 percent and a relative different of 72% in serious cardiovascular outcomes between people who took Chantix compared with people who were taking a placebo. When assessing the studies of smokers with and without pre-existing disease, Chantix was associated with 1 extra cardiac event for every 28 smokers treated. One more person quit for every 10 who took Chantix.

Chantix's manufacturer, Pfizer, and the FDA reported plans to conduct a joint analysis of clinical trials on cardiovascular events, but it was not slated to be performed until next year.

How do these drugs become approved? The company that desires to market a drug must test it and submit evidence that it is safe and effective to the FDA. The FDA has five major centers, which are responsible for ensuring the safety of over the counter and prescription drugs, medical and radiological devices, food, cosmetics, biologics, and veterinary drugs. Although the FDA's Center for Drug Evaluation and Research (CDER) does not test drugs, the FDA Office of Testing and Research does conduct related limited research (developing new scientific methods and regulatory testing, providing scientific support, providing scientific training, and so on). The CDER's physicians, statisticians, chemists, pharmacologists, and other scientists review the drug sponsor's new drug application (NDA), which contains its research data and proposed labeling. In order to protect and promote public health, the FDA may order additional clinical trials (Phase IV trials), clinical holds, and risk management plans.

Resources:
The New York Times, Study Links Smoking Drug to Cardiovascular Problems, Duff Wilson, 07.04.2011.

By Kathleen Beatty

Surgeons Who Tested Medtronic's Infuse Bone Graft Swayed by Millions?

Wed, 29 Jun 2011 17:48:44 -0500

Spinal fusion surgery is a procedure to correct problems with vertebrae by basically welding them together and allowing them to heal into one solid bone. This procedure may relieve symptoms of back problems such as fracture, scoliosis, spinal stenosis, spondylolisthesis, and degenerative disk disease. The idea is to prevent pain by preventing movement. Some form of bone material must be utilized in order to promote the fusion and healing. This procedure is called a bone graft and involves placing pieces of bone into the area between the vertebrae and sometimes additional pieces elsewhere for support. Previously, the only way to do this was by making an additional incision to harvest a bone graft from the hip (called an autograft). This meant a longer procedure time and possibly a more complicated healing process. Now, there are alternatives to bone grafts such as use of a cadaver bone (called an allograft) or the use of an artificial bone graft material.

Nine years ago the FDA approved Medtronic's Infuse Bone Graft for one particular type of spinal fusion surgery. It was one of the alternatives to harvesting a bone graft from the hip. Eventually it was also used, albeit off-label, with other types of spinal surgeries, such as cervical spine surgeries. Doctors are free to prescribe drugs beyond their official uses (though insurance companies, such as Medicare and Medicaid, may choose to reimburse only if there is a representation that the product will be used for its intended use). Some researchers estimate off-label uses at 85% of total Infuse use. What followed the extraneous uses were numerous reports of side effects and complications such as death, cancer, sterility, infections, bone dissolution, worsened back and leg pain, ectopic bone (bone outside of the target area), and swelling of the neck and throat area (leading to suffocation).

As a result, in the Fall of 2008, the Justice Department began to investigate. It turns out that some of the adverse side effects reported above had been found in 10-50% of patients who were given Infuse or its sister product during clinical trials funded by Medtronic over a decade long study. But not all of the findings (namely the risk of sterility) were reported in the research papers by Medtronic's surgeons or written on the product label. In a number of their papers regarding Infuse, they also failed to disclose their financial ties to Medtronic. Coincidentally, 15 of Medtronic's surgeons had been paid upwards of $62 million over the last 10 years for "unrelated" work.

The probe also revealed that the physicians who reviewed a sister product of Infuse, Amplify, completely omitted the 90-95% probability of a link between the product and cancer, which had been discussed in 15 of the 68 pages of the FDA's summary of the product. Furthermore, 3 of the surgeons who were involved in the trial of that product were paid at least $10 million by Medtronic since 2001.

Medtronic was directed not to destroy its reports. Presently, the Senate Finance Committee is investigating whether doctors with financial ties to Medtronic were aware of potentially serious complications with products yet failed to reveal those problems in published journal articles.

Resources:
Wall Street Journal, Medtronic Experts Held Back, Study Says, John Carreyrou and Tom McGinty, 06.29.2011.

By Kathleen Beatty

Hot Coffee Documentary: McDonald's Coffee Case Exposed, Screening Worldwide Now

Tue, 28 Jun 2011 15:53:52 -0500

Susan Saladoff's documentary Hot Coffee debuted this year in the Sundance Film Festival and premiered on HBO last night. It is about the tort reform movement in the United States and the public's perception of various aspects of personal injury lawsuits. I urge everyone to watch this documentary. You can view it on another broadcast date in the coming weeks or download from HBO On Demand. If you have not seen the film yet (without giving it all away), here are a few topics that were covered.

Of course, the McDonald's hot coffee case. Many people believe this case involved a woman who spilled coffee in her lap while driving, sustained little to no injury, and recovered millions. There are sure to be a few facts in the documentary that will surprise you.

Caps on damages and their impact on tax payers. The Gourley family in Nebraska tells a heartbreaking story about their son who was catastrophically injured by medical malpractice only to have his jury award capped, relegating him to public assistance for his care.

Chamber of Commerce: who they really are and what they really do.

Attacks by corporate campaigns on state judicial elections and legislatures, and the import of the jury system.

Gym, credit card, and employment waivers (including mandatory arbitration clauses), their (un)avoidability, and how they affect the severely injured. Former KBR/Halliburton employee Jamie Leigh Jones waited six years to get before a jury after being drugged, raped, and placed in a shipping container while working in Iraq.

Though this documentary is not perfect, it is very informative overall and a big step in the right direction. The Hot Coffee "Take Action" website has some great advice that can be utilized by people on both sides of the debate in light of the lack of public education and media attention to these issues. Regardless of whether you are for or against tort reform, the battle is best when well informed.

By Kathleen Beatty

BAR/BRI and Kaplan Antitrust Action: Ongoing and Looking Better for Class Members

Sun, 26 Jun 2011 12:22:31 -0500

If you took the bar exam, you probably took a course to prepare for it such as BAR/BRI, Kaplan, Pieper, or Ameribar. These courses provide sample test materials and live or digital legal education and practical advice for passing the test in each state. Over the years, BAR/BRI has been accused of entering into agreements to eliminate the competition to saturate and dominate the field. A few class action lawsuits were commenced, which are the only ones in history to contain a class of attorneys.

The latest BAR/BRI antitrust class action is not over yet. A California federal judge recently refused to sign off on a proposed settlement that would require West Publishing Corp., owner of BAR/BRI, to pay out $5.29 million in cash and Kaplan to supply coupons worth $150 each toward the future purchase of course materials to authorized claimants. If you took BAR/BRI, chances are you are now or will soon be an attorney and are not planning to go back to school ever again or anytime soon. If that is the case, coupons for Kaplan course materials are probably useless.

BAR/BRI has been through the rigmarole of antitrust class actions at least twice before, but the latest action is the first one where coupons have been integrated into the proposed settlement. In Ryan Rodriguez v. West Publishing Corp., the District Court approved a partial distribution of $30 million to authorized claimants, the balance of which will be distributed when appeals are resolved and the matter is final. The class members are those who purchased a full service course in the U.S. between August 1997 through July 31, 2006.

In Anthony Park v. Thomson Corp., BAR/BRI was required to, among other things, shell out $13 million. Class members include those who purchased a full service course in the U.S. between March 15, 2001 and January 4, 2008.

It remains to be seen whether class members will be adequately compensated and whether the settlement will effect meaningful change in the bar review industry. Hopefully scholarly coupons will not be a part of the final agreement.

Resources:
New York Law Journal, Coupons, Legal Fees Cause Judge to Reject BAR/BRI Settlement, Amanda Bronstad, 06.24.2011.

Rodriguez BAR/BRI Class Action Litigation Website.

Park BAR/BRI Settlement Website.

By Kathleen Beatty

New York State Budget Cuts Affect the Judicial System

Thu, 23 Jun 2011 16:20:59 -0500

The court system already was, by many accounts, backlogged, slow, and overburdened. In March, the governor and legislature cut the judiciary's budget by $170 million. All aspects of the judicial process will likely be affected by the cuts.

Now most courtrooms shut down a half hour earlier every day. Effective April 18, 2011, some small claims court night sessions are reduced from four nights to one night per week. Weekend arraignment court in Queens is open for nine and a half hours per day now instead of sixteen (the law requires suspects to be brought before a judge within twenty-four hours). Hundreds of court employees, including clerks and court lawyers, were laid off. Even the money for judges' law books was cut.

The number of potential jurors for all kinds of cases was pared down. Deliberating jurors no longer receive free lunch. Jurors are no longer guarded by court officers during lunch hour. They are required to exit the court building to get lunch and required to wait in the line to go through security when they return to serve.

Personal injury attorneys are faced with the decision of whether to cut investigation and informal negotiation short and start suit earlier. Once in suit, an attractive option is to immediately request a preliminary conference. Several court officials have publicly questioned the cost effectiveness of the changes and whether the system will grind to a complete halt in coming months.

Resources: The New York Times, Cuts Could Stall Sluggish Courts at Every Turn, William Glaberson, 05.15.2011.

By Kathleen Beatty

New York Settlement Conferences by Judges Supported by Obama Administration

Mon, 13 Jun 2011 19:45:21 -0500

New York State received a $3 million federal grant to implement a test program designed to encourage early (or earlier) settlement of medical malpractice cases. The program requires that a judge with training in medical issues be assigned at the beginning of a case and frequent settlement conferences be held. A nurse with legal training assists the judge and lawyers must arrive with authority to settle the case. The injured party is not present and there is no jury.

The program intially began in the Bronx in cases against city hospitals and is presently being expanded to courts in Brooklyn and Manhattan, as well as to cases against private hospitals. The program is slated to begin in Buffalo courts in the fall.

Advocates of the program say it cuts down on time and costs of litigation for injured patients and defendants. Opponents of the program say it pressures attorneys to take a settlement amount that is less than fair. The important question is whether the system can save money and still accomplish the right results.

Resources: New York Times, William Glaberson, To Curb Malpractice, Judges Jump in Early, 06.12.2011.

By Kathleen E. Beatty

Filing Tort Cases in the New York State Courts Electronic Filing System (NYSCEF)

Sun, 12 Jun 2011 20:17:55 -0500

It is impossible to deny that e-filing is becoming exponentially more prevalent in the lives of New York tort attorneys. Westchester County is a mandatory e-filing court for tort cases as of March 1, 2011 and some judges are calling for it in all city courts. For those who have not delved in, here are a few things to consider about the New York State e-filing system.

Payment of court fees can be done by credit card and the system gives prompt updates via e-mail. That means not having to make the trip to court and not waiting for or paying for service to bring documents to and from court.

It can be a bit worrisome to fill out a form when you do not know what comes next. There is a training system to practice on before you go "live" with your e-filing. It is supposed to look just like the real system to allow you to get accumstomed to what to expect before you make a mistake. There is also a detailed user manual with pictures of portions of the website at different stages of filing.

Service is deemed complete when the e-mail confirmation of a filing is sent to the user who submitted the filing as well as the other users who have consented to e-filing in the case. An affidavit of service does not need to be filed.

Documents can be viewed electronically. If you are at your office, you do not have to find and rifle through a voluminous file. If you are out of your office but have an electronic device such as an ipad, you can view documents within seconds.

In many cases, you do not have to file or serve a hard copy. This saves time, money, ink, and paper.

Documents can be filed when the courts are closed, in fact, they can be filed at any time of the day or night. Some court rules provide that a document is considered to have been timely filed if it was filed by midnight of the due date.

It takes time to learn all of the rules of e-filing, just like anything else, but e-filing offers benefits that the traditional method cannot compete with. It is not perfect, of course, so there are plenty of rules for when the system fails. Entries on the federal system and errors in the state system to follow.

Resources: New York State Courts Website

Thomson Reuters News and Insight, Judge calls for legislation to mandate e-filing in NY courts, Jennifer Golson, 06.07.2011.

By Kathleen E. Beatty

Limiting Recovery of Neurologically Impaired Infants in New York

Thu, 21 Apr 2011 13:43:20 -0500

The proposed $250,000 cap on medical malpratice cases was eliminated before the latest New York budget was adopted. But the neurologically impaired infant fund was not. The new statute, Public Health Law § 2999-5[1], qualifies "birth-related neurological injuries" as "an injury to the brain or spinal cord of a live infant caused by the deprivation of oxygen or mechanical injury occuring in the course of labor, delivery or resuscitation or by other medical services provided or not provided during delivery admission that rendered the infant with a permanent and substantial motor impairment or with a developmental disability".

Under the law, infants may not obtain premium treatment but are relegated to services that are covered at the prevailing Medicaid rate. Judges and juries are divested of their discretion to award neurologically impaired infants a lump sum of damages that they determine to be suitable. Rather, parents of neurologically impaired infants can expect to fill out a flurry of paperwork and prove their case over and over again to recover medical costs that the system will provide compensation for on an annual basis. The size of the fund will vary each year according to state actuaries. Ironically, the fund will be administered by a combination of the state insurance and banking departments. Only once the fund is reduced to twenty percent or less of its annual size can lawsuits be brought to recover the medical expenses that the infants need.

Participation in the fund is mandatory to those filing medical malpractice suits for injuries covered by the statute after October 1, 2011 as well as those who previously filed cases which have not reached verdict or settlement. Will Cuomo ever pressure the health care industry to provide better care or will he continue to deprive victims of malpractice of their ability to receive the care and compensation they deserve?

Resources:

New York Law Journal, Lawyers Await Specific Regulations on Infant Medical Malpractice Fund, Joel Stashenko, April 20, 2011.

By Kathleen Beatty

What Can Match.com do to Prevent Sexual Assaults Between Members?

Tue, 19 Apr 2011 17:42:49 -0500

Dating website Match.com has had its share of controversies circulated since it went live in 1995.

To its credit, the United States District Court for the Central District of California dismissed the 2005 class action lawsuit which alleged that Match.com "secretly employs people as 'date bait' to send bogus enticing E-mails and to go on as many as 100 dates a month - or three a day - to keep customers ponying up."

However, a 2009 class action lawsuit is currently pending in the United States District Court for the Southern District of New York with allegations such as "Match misleads paying subscribers by charging them for the ability to write e-mails to members who can't reply to their e-mails or even read them."

Most recently, a Los Angeles woman claiming she was raped by a man she met on Match.com is suing the site. The man was registered in public sex offender registries, as he was previously convicted for assaults on other women he met on the Internet. Her attorney has publicly discussed his intent to seek a temporary injunction barring the site from signing up more members until Match.com screens members to determine if they are sexual predators. "If somebody uses their credit card to pay, then they basically run their name through a federal sex offender data bank and through a local county registration bank," said plaintiff's attorney Mark Webb. Match.com has responded that it would create problems trying to get background information from all of their users, as they do not obtain social security numbers.

Resources:
Wall Street Journal, In Lawsuit's Wake, Match.com to Screen Predator Databases, By Ashby Jones, April 18, 2011.

CBS News, Woman sues Match.com after alleged sex assault by man she met online, Posted by Edecio Martinez, April 15, 2011.

Los Angeles Times, Woman suing Match.com over alleged sexual assault speaks out about incident, Alexandra Zavis and Shelby Grad, April 15, 2011.

By Kathleen Beatty