New York Personal Injury Lawyer Blog

Family of Chappaqua Teen In Fatal MVA Fights Distracted Driving

Tue, 04 Jun 2013 16:32:17 -0500

In a story by Terence Corcoran in the May 20, 2013 edition of the Journal News, the family of Evan Lieberman, a 19 year old student at the University of Connecticut who was killed in a motor vehicle crash on June 16, 2011, has taken on the battle against distracted driving. Evan Lieberman was a passenger in a car driven by a high school friend named Michael A. Fiddle along with two other friends from Chappaqua when the fatal accident occurred at 7:50 AM on June 16, 2011. Fiddle was driving on Route 6 in Orange County to their summer employment in Woodbury, New York.

Fiddle claimed to state police investigators that he had fallen asleep at the wheel before veering into oncoming traffic. Mr. Lieberman suffered massive injuries and was hospitalized for one month before dying of his injuries on July 18, 2011, after several surgeries were unsuccessful in saving his life. The case was presented to a grand jury on the theory that Fiddle had been texting and driving or otherwise using his cell phone at time of the accident. Apparently, the grand jury decided not to indict Mr. Fiddle.

Lieberman’s father, Ben Lieberman, was not satisfied with the explanation given by Fiddle that he had fallen asleep at the wheel. Mr. Lieberman pushed investigators to look at the case more closely. Although the state police never charged Mr. Fiddle or cited him for any violations of the New York Vehicle & Traffic Law with regard to the accident, Evan’s father decided to file a civil suit on behalf of his late son so that he could obtain cell phone records. The state police apparently never sought the phone records of Mr. Fiddle, and claimed they could not prove definitively whether Mr. Fiddle was using a cell phone at the time of the accident.

Whenever there is a fatality in a car accident, the Department of Motor Vehicles automatically conducts a hearing to determine if action should be taken against the driver of the car with regard to his or her driving in that fatal accident. Mr. Fiddle, as was his option, (and is usually on the advice of counsel when there is potential criminal responsibility) did not testify at the hearing. The estate’s attorneys introduced statements made by Mr. Fiddle in the civil suits filed by the Lieberman family and other passengers in the car. Lieberman’s attorneys were also able to establish that the browser on Fiddle’s phone was on from 7:00 AM through the moment of the fatal accident.

Mr. Fiddle’s attorney argued that the phone records should not be used during the hearing, contending that the police did not file any charges against his client. He also made the claim that investigators concluded that there was no evidence connecting texting or speaking on a portable device with the accident. However, Judge Marinacci was not persuaded by these claims.

During the hearing, (which is generally recorded only on a cassette tape recorder unless one of the parties pays for a court reporter), Administrative Judge Donna Marinacci determined that Mr. Fiddle had in fact been using a portable device while “driving drowsy”, (unlike the police, Judge Marinacci did obtain the cell phone records). Judge Marinacci ruled that Fiddle’s driving “constituted gross negligence in the operation of a motor vehicle”, and "showed a reckless disregard for life” and “caused or contributed to the accident.” Judge Marinacci ruled that Fiddle violated several sections of the Vehicle & Traffic Law in the fatal accident, and suspended Fiddle's license for one year.

Evan's parents have set up an organization to combat distracted driving known as "DORCs"--"Distracted Operators Risk Casualties." Additionally, the entire Lieberman family has organized a non profit called "Evan's Team", to raise funds and awareness for community concerns and issues.

Westchester County Settles Playland Wrongful Death Claim

Thu, 23 May 2013 14:43:48 -0500

In a case we wrote about almost six years ago, Westchester County and the owner of the “Mind Scrambler” ride at Playland have agreed to settle the wrongful death case of the late Gabriela Garin, a 21 year old Playland employee who was killed on June 29, 2007. On the date of the accident, Ms. Garin was working as one of the operators of the Mind Scrambler ride, and purportedly stood up on the back of the seat without being buckled in when the ride began. Ms. Garin was thrown from the ride, and died shortly thereafter. Her family disputed the account of the fatal accident.

Several years earlier, a 7 year old girl was also killed on the Mind Scrambler ride. In all, there have been four fatal accidents at Rye Playland over the last 8 years, including the case of Jon-Kely Cassara, a 7 year old boy who died on the “Ye Olde Mill ride on August 3, 2005, when he got stuck under the boat in a dark tunnel and drowned. The County has added a second operator to observe riders prior to the Garin accident to improve safety of the ride, but it was reported at the time that there was a County rule that no employees were to be on the ride while on duty; it was also reported that she was on duty when the accident occurred. After the Garin accident, the Mind Scrambler was removed from the park.

Under the terms of the settlement, Ms. Garin’s estate will receive a total settlement of $700,000. The settlement proceeds will be paid by the County of Westchester, who will contribute $275,000, and the owner of the Mind Scrambler ride, S & L Amusement Corp., which will contribute $475,000 toward the settlement. Ms. Garin had a two year old daughter, had worked at Playland for 7 years and was a student at Westchester Community College.

It is very unusual for a case in Westchester County, unlike the Bronx with its huge caseload, to last six years before resolution by settlement or trial. It is possible that there were appeals that needed to be decided prior to the settlement, and also possible estate issues. The usual amount of time in a personal injury case in Westchester County from the date of an accident to the conclusion of litigation is approximately two years.

The Westchester County Board of Legislators must approve the settlement before it can proceed to completion. In his argument for approval of the settlement, Westchester County Attorney Robert Meehan stated: "At trial, the plaintiff will argue, and a jury may believe, that both the county and S & L share a portion of responsibility for plaintiff’s accident. Plaintiff will also argue that although the county neither owned or operated the Mind Scrambler, the county nevertheless made changes, including the addition of a second ride employee to observe ride operation, to improve safety and should have taken measures to ensure that S & L employees were properly using the newly installed safety features.” Interestingly, it has been my experience that the County usually adopts a more hard line approach in what are known as “assumption of risk” cases, in which the argument is made by the defendant that the plaintiff was engaged in a high risk activity, such as in this case standing up on the ride and not bucking her seat belt, and has therefore “assumed the risk” of injuries or death by engaging in the risky activity. There was a famous case called Maddox v. City of New York, et. al. in the 1980’s which highlights the occasionally very unfair result of the “assumption of risk” defense. Elliott Maddox, who was a centerfielder for New York Yankees in 1975 (and playing at Shea Stadium while Yankee Stadium was being renovated) suffered a very serious right knee injury on a wet and muddy outfield which ultimately led to three knee surgeries and the end of his career. Maddox had reported the conditions to both the grounds crew and the manager, but certainly wasn’t in a position to demand that he be removed for the game. However, the Court of Appeals, the highest Court in New York, felt otherwise, and declared that because Maddox knew of the risks of a wet and muddy field, and continued to play, he could not bring a claim for his career ending injuries against the City of New York, the owners of Shea Stadium and miscellaneous other defendants.

Family of Boogard Sues NHL For Wrongul Death

Tue, 14 May 2013 14:35:51 -0500

The New York Times reported this week that the family of Derek Boogard, the ex-New York Rangers and Minnesota Wild defenseman, has filed a wrongful death lawsuit against the NHL. The suit alleges, among its many claims, that the league failed to protect Boogard by allowing him to return too quickly to play after suffering numerous concussions, despite the league’s knowledge that repeated blows to the head can lead to chronic traumatic encephalopathy (CTE). CTE, which causes dementia, depression, dizziness, loss of balance and coordination, has recently been determined as the cause of death in the autopsies of numerous NFL and NHL players, including former defensive stars Junior Seau and Dave Duerson, who were hard hitting players that endured numerous violent head collisions during their NFL careers. In the cases of both Seau and Duerson, they committed suicide by shooting themselves in the chest so that their brains could be examined for CTE.

The lawsuit by the family of David Duerson against the NFL, who committed suicide at age 50 in 2011, was consolidated with those of approximately 4,200 former National Football League players who have sued the league for brain injuries suffered during their careers. Mr. Boogard, who was known as an “enforcer” during his six year NHL career, which lasted 277 games, was found dead of an accidental overdose of prescription painkillers on May 13, 2011. His last game was on December 9, 2010, when he was diagnosed with what is believed to be one of many concussions he suffered during his short NHL career.

The Boogard suit also alleges that the league was well aware of, and failed to monitor, his drug use and numerous prescriptions, and in fact facilitated the serious addiction that Mr. Boogard had to “prescription pain medications, sleeping pills, and painkiller injections”, which were prescribed by “physicians, dentists, trainers and staff.” Boogard apparently received approximately 13 injections of Toradol, which is a masking drug for pain, and the suit claims that in the 2008-2009 season, in a 16 day stretch, physicians prescribed Boogard 150 pills of Oxycodone, a controlled substance. There are also allegations that the NHL knew that Mr. Boogard had failed numerous drug tests in his last year, yet the league never took any disciplinary action against him, as its own substance abuse program mandates.

There are huge legal implications for both the NFL and NHL as a result of the lawsuits brought by the families of Mr. Seau, Duerson, and Boogard, in conjunction with the cases of the 4,200 players whose cases have been consolidated in federal Court. It is fairly clear that the NFL knew for many years that players were suffering serious side effects from repeated concussions, but it is only in recent seasons that rules have been placed in effect to prevent players from re-entering games in which they have “had their bell rung” (euphemism used for a concussion) and requiring additional medical clearance before players may return to action after suffering a diagnosed concussion. Clearly, if these cases proceed to trial and result in a liability finding against the NFL and or NHL, the damages awarded to the players and their families could be astronomical and would have a significant financial impact on professional sports as a whole. Without question, however, something must be done to curtail the excessive violence in football and hockey, with the protective head gear clearly inadequate in many cases to prevent long term brain damage to the players.

Johnson and Johnson Loses First Defective Hip Implant Case

Thu, 14 Mar 2013 08:26:42 -0500

Last week, a Los Angeles County jury awarded 8.3 million dollars to retired Montana prison guard Loren Kransky for pain and suffering and medical expenses he suffered from a defective artificial hip implant manufactured by a division of Johnson & Johnson, which has since been recalled. The implant is known as an Articular Surface Replacement or A.S.R., and was manufactured by the company’s Depuy orthopedics unit from 2003 until 2010, when Johnson & Johnson ordered a recall of the product. Mr. Kransky’s lawsuit was the first of approximately 10,000 that Johnson & Johnson is facing, with another trial set to start in Chicago on March 11, 2013, and numerous other cases scheduled for later this year.

The Depuy artificial hip is made of all metal, and the design would cause the cup and ball to rub against each other as the person moved, leading to some splintering of metallic debris, which caused damaged to tissue and bone, severe pain, and in some cases, permanent injuries to patients. The 12 member jury in Mr. Kransky’s case ordered the company to pay him 8 million for pain and suffering, and $338,000 for medical expenses. Defense lawyers for Johnson and Johnson were unable to overcome evidence which showed that the company was told by surgeons that the design of the Depuy implant was flawed. Consultants to the company had recommended slowing sales of the devices, which was ignored, and Johnson also been considering redesigning the implant but decided against this measure due to a costs benefits analysis that unimpressive sales of the implant did not justify the costs of the redesign.

The A.S.R. is part of a group of extensively used hip replacements with an all metal design, which replaced the design which used metal and plastic. Presently, all metal hips are rarely used by surgeons. Traditional hip replacements are expected to last 15 years before a replacement is recommended, and generally, their failure rate is approximately 5% after five years. Jurors in the Kransky case saw an internal memorandum that Johnson knew that 40% of patients who had an A.S.R. would require a second operation within 5 years to have the Depuy implant removed and replaced. The jurors deliberated for a full five days before reaching their verdict. Mr. Kransky’s lawyers had requested that the jury award him between 36 and 144 million, and award punitive damages to punish the company for intentional and egregious conduct. However, jurors declined to award punitive damages, and their verdict, while substantial, was certainly not anywhere close to the amounts requested of them. Mr. Kransky's case was expedited as he is suffering from terminal cancer and it was unclear if he would survive until the trial.

Thousands of the other cases against Johnson & Johnson have been consolidated into a class action in federal Court in Ohio. If those cases are settled, it may lead to an analysis of how to calculate the remaining plaintiffs’ damages and a basis for a settlement of the remaining cases. Despite dodging a proverbial bullet in the size of the Kransky verdict, Johnson & Johnson has announced that they will appeal and argue that the design of the Depuy implant was not defective. That could lead to a settlement of the Kransky matter in that if Mr. Kransky is that ill, he will probably not survive until the resolution of the appeal, which can take at least several months to a year for a decision in many Appellate Courts.

First Of Many Lawsuits From Carnival Triumph Disaster Filed In Galveston

Mon, 11 Mar 2013 08:53:21 -0500

On February 20, 2013, the first of what is sure to be numerous personal injury lawsuits resulting from the disastrous Carnival Triumph cruise was filed in Galveston County District Court in Texas by Kathy Marie Armstrong. As anyone who has watched the news over the last month knows by now, on February 7, a cruise liner bound for Cozumel, Mexico, had a fire in the engine room, which led to the ship being cast adrift in the Gulf of Mexico, with no power, propulsion, heat, air conditioning and hot water for five days for the 4,200 passengers and crew on board. Passengers relayed the horrific conditions by text, email and social media of sleeping on carpets and decks soaked with sewage, almost no food, and limited water. One passenger described the conditions as “being locked in a Port o Potty for five days.”

The cruise industry is a rapidly growing field, at a rate of 8% annually since 1980. 14 million people vacationed on cruises in 2012, and 3% of the population took a cruise in 2011. But the industry has been rocked recently with the disastrous Costa Concordia tragedy in 2012 off the coast of Italy, with 32 fatalities. Further, the Centers For Disease Control (CDC) reports that there were a whopping 16 outbreaks of the superbug norovirus in 2012. The Carnival Triumph is a 14 year old ship, and last month, mechanical troubles led to the cancellation of another cruise to Mexico, something which will undoubtedly be looked at by investigators.

Because the flag on the Triumph is from the Bahamas, the Maritime Authority of Bahamas is heading the investigation of the ill fated cruise. Additionally, the National Transportation Safety Board (NTSB) has commenced an investigation of their own which will last several months before a full report is released.

Bringing lawsuits against cruise companies is not an easy process. First, there are restrictions placed on the ticket which require that any litigation be brought on the cruise company’s home turf, which in Carnival’s case, is in Florida, and in the federal Court, which creates further complications. Second, under Maritime law, claims for emotional distress are barred unless the victim can prove that their injuries are caused by the cruise operator’s negligence, and you must show a physical injury in additional to the emotional damage. This is a difficult standard to establish.

In an effort to ward off lawsuits, Carnival has offered passengers refunds for their trip fare, traveling expenses and the money spent on board. To be blunt, this is not going to work to prevent litigation en masse from a large percentage of passengers in my opinion.

It will be interesting to see what happens with the Galveston brought by Ms. Armstrong, since she did not commence the action in federal court in Miami as is required by the ticket restrictions. The apparent basis for bringing the case in Galveston is the fact that the cruise originated there, but it is likely that Carnival’s attorneys will move to transfer venue to Florida, and will be successful in that motion. Ms. Armstrong pleads in her legal complaint that the conditions on the ship were “deplorable, unsafe and unsanitary”, that she feared for her life and safety, and was under the “constant threat of contracting serious illness by the raw sewage filling the vessel.” However, she also claims that she feared suffering “actual or some bodily injury”, thus conceding that she was not physically injured during the trip.

We will report further on the status of the Armstrong case and the inevitable Florida cases as they progress.

New York’s Unfair Medical Malpractice Statute

Wed, 06 Mar 2013 15:05:16 -0500

Under New York State’s medical malpractice statute of limitations, if you have been injured due to the negligence or “departure from good and accepted medical practice” of a physician, hospital or other medical provider in New York, in general, you must commence a lawsuit against that negligent provider within 2 and one half years of the date of your last treatment with that provider. The statute is more onerous if the defendant is a public entity such as a county run hospital. If the negligent party is a public entity, then a notice of claim must be filed within a scant 90 days of the negligence and a lawsuit filed within one year and 90 days of the doctor or hospital’s actions that caused your injuries.

New York’s stringent statute of limitations has led to tremendously unfair results when the victim of the malpractice is unaware of the malpractice until it was too late to start a lawsuit against the medical provider that caused the injuries. This is precisely the case of Lavern Wilkinson, a 41 year old mother of a severely disabled, autistic 15 year old daughter who is unable to speak. On February 2, 2010, Ms. Wilkinson was seen at the Kings County Hospital in Brooklyn for a chronic cough. The emergency room doctors ordered chest x-rays and EKG. Ms. Wilkinson was informed that all results were normal and instructed to take Motrin. Unfortunately, the doctors failed to review the x-rays carefully, which showed a 2 centimeter nodule on her lung, which was likely curable at the time.

Fast forward to May of 2012, now well over two years since the date that Ms. Wilkinson could have, and should have, been informed of the nodule and the need for further treatment. Ms. Wilkinson was having difficulty breathing and returned to Kings County Hospital. A doctor reviewed the chest x-rays from over two years earlier, discovered the nodule, and gave Ms. Wilkinson devastating news: The nodule had developed into Stage 4 lung cancer, had spread to both lungs and three other organs, and was inoperable.

Ms. Wilkinson consulted with medical malpractice attorneys, and was given additional terrible news. Because Kings County Hospital is a county run facility, she could not have a successful lawsuit against Kings County, because she did not file a notice of claim within 90 days of February 2, 2010 and did not start a lawsuit within a year and 90 days of that date, when doctors should have informed her of the 2 cm. nodule and recommended follow up and treatment. The statute of limitations had expired long before Ms Wilkinson was given her grim diagnosis and she had no legal recourse. The obvious question is: how could she possibly know to file a case when no one ever informed her that she had a life threatening condition which needed to be addressed?

In 44 other states in the country, there is a “date of discovery” statute, permitting the injured person or the family of the deceased victim in fatal cases to commence the lawsuit when they “knew or should have known” of the malpractice. Had that statute been in place in New York, (which many trial attorneys in this state have been attempting to convince the legislature to adopt for several years) Ms. Wilkinson would have legal recourse and could obtain proper compensation for her not only her damages, but a fund to provide for the long term medical needs of her daughter, which is estimated to be approximately 150,000 per year.

Apparently because of the potential of major negative publicity as the result of a Daily News article in January, the hospital’s attorneys offered $625,000 to settle the case, despite their knowledge that if the case was pursued in Court, they would win on a statute of limitations defense. Ms. Wilkinson had no real choice but to accept the offer and will end up with $425,000, obviously a woefully inadequate amount both for her undiagnosed malignant cancer and for the long term care of her daughter. The case was probably worth several times the amount that it settled for, but the unfair New York State statute of limitations just left another victim in its wake. The New York State Legislature should at long last address this unfairness and join those other 44 states in adopting a date of discovery statute.

Roadway Upgrades Finally Scheduled For Bear Mountain Parkway

Wed, 27 Feb 2013 14:49:04 -0500

In an article by Robert Marchant in the February 21, 2013 edition of the Journal News, it was reported that The New York State Department of Transportation has finally agreed to make safety improvements to the Bear Mountain Parkway. This comes after years of requests by the Town of Cortlandt, and citizens in Northern Westchester, after several serious and often fatal accidents on the parkway.

The Bear Mountain Parkway was constructed between 1929 and 1932 after it was proposed by the legendary Robert Moses, who was involved in much of the construction of roadways, bridges and parks in the New York metropolitan area from the 1930’s through the 1970’s. The Parkway is actually an incomplete highway of approximately 3.85 miles from the Peekskill City line on the south to Route 202 at its northern end in Cortlandt. There is a small section adjacent to the Taconic Parkway of approximately 3/4 of a mile, but this section does not present the same safety issues as it is for one way travel.

The Bear Mountain Parkway has traffic of approximately 15,000 to 20,000 cars on a daily basis. The parkway does have medians on portions which are considered to be more dangerous to prevent head on collisions, but unfortunately, there have been several fatal car crashes during the last several years. On January 29, 2008, 34 year old Sharon Czerwinsk of Lake Peekskill was killed when her 1991 Toyota Camry crossed the double yellow line near the parkway’s intersection with Carhart Avenue and stuck a SUV head on. The impact was so violent that the SUV flipped over and landed on its roof.

On December 9, 2011, another head on collision on the parkway claimed the life of 27 year old Lamar Barnes, also of Lake Peekskill. This accident resulted in renewed requests by the Town of Cortlandt for concrete barriers separating the two sides of the roadway, which are winding, with steep grades and on which drivers tend to travel at an excessive rate of speed for the roadway configuration. At the time, Cortlandt Town Supervisor Linda Puglisi noted that she had been lobbying New York State for years for barriers, which “wouldn’t totally eliminate accidents…but…it’s common sense.”

On July 9, 2012, the New York State police reported that there was another fatal accident on the parkway near the intersection of Carhart Avenue in which a motorcyclist was killed when he was struck head on by a car. Apparently, this last accident finally got the attention of the State. The New York State Department of Transportation has reported that it will install medians on portions of the parkway, add a new traffic light at Frost Lane, and provide new sings and reflectors throughout the almost 4 mile stretch of the parkway. The cost of the project, which is expected to commence in the summer of 2013 and be completed in the fall, will be approximately 3 million dollars. The spokesperson for the State noted that: “After hearing community concerns about the Bear Mountain Parkway, we are taking quick action to implement engineering solutions that will help slow traffic down, protect walkers and prevent dangerous crossover accidents so that both motorists and pedestrians can use the highway more safely.”

Texas Medical Malpractice Case Reveals Unfairness of Tort Reform

Mon, 28 Jan 2013 18:00:42 -0500

For years, liability insurance companies, doctors and hospitals have been attempting to establish “tort reform” in the State of New York. In fact, Governor Cuomo had a provision in his initial budget in 2012 which would have capped non-economic damages in medical malpractice cases at $250,000, regardless of the severity of the injuries suffered by the victims of the malpractice. Fortunately, public interest groups, and bar associations throughout New York State were successful in their efforts to fight off this draconian measure and preserve the legal rights of all New Yorkers to obtain full compensation for all injuries suffered as the result of medical errors of a physician or hospital. Without question, insurance lobbyists, chambers of commerce and physicians’ representatives will keep pushing for these limits, and we who represent victims of medical negligence have to be ever vigilant to fend them off.

To give readers of this post an idea of just how unfair tort reform (we like to call it tort “deform”) is, there is a vivid example from Texas, where ex-President George Bush was once a prime mover in the effort to deprive legitimately injured citizens of their legal rights when seriously injured due to medical malpractice. Connie Spears had a history of blood clots when she was seen at the Christus Santa Rosa Hospital in San Antonio, Texas in 2010, with complaints of severe leg pain. The emergency room doctors at the hospital sent Spears home without conducting sufficient tests or recommending follow up with the correct specialists. Several days later, Ms. Spears was taken by ambulance to a different hospital where doctors found a severe clot and massive damage to the surrounding tissues in her legs. With a now life threatening condition on their hands, the treating doctors were required to amputate both of Ms. Spears’s legs above the knee.

In 2003, Texas lawmakers passed a “tort reform” bill by which the maximum non-economic (essentially pain and suffering) damages a plaintiff could obtain in a medical malpractice case is $250,000. To add more hurdles to victims’ burdens, plaintiffs would now have to prove that the physician or hospital personnel were “willful and wanton” (a virtually impossible standard) –essentially, that they intended to harm the patient, before the person could prevail in a medical malpractice case. Further, and equally egregious, tort reformers in Texas were able to institute a requirement that plaintiffs must procure expert reports from physicians in the same specialty as the defendants within 120 days of filing their cases. If the plaintiff is unable to do so, the plaintiff is responsible for the defendant’s legal fees, even if the doctor was clearly negligent in causing the plaintiff serious injury.

Obviously these requirements place huge obstacles in the way of plaintiffs in finding a lawyer willing to take their cases, and a major threat in the event that experts are not retained within the short time frame required. In Ms. Spears’ case, she underwent substantial difficulty in finding an attorney willing to handle her case, and when she finally did, her expert’s report was deemed insufficient. She now has no legs, and although the hospital did not pursue legal fees against her, the other defendants in the case have. Ms. Spears has lost her retirement savings, and with an unemployed husband, is concerned that they will lose their home to foreclosure.

Insurance companies without conscience blame high premiums on frivolous cases and the volume of medical malpractice cases. However, the truth is that there are already laws on the books which require that in order to file any medical malpractice case in the State of New York, the case must be reviewed by a practicing physician in that specialty who finds that there were departures from good and accepted medical practice. Further, even if a case is filed, if a Court determines that a case was filed frivolously, there is a section in New York’s Civil Practice Law & Rules in which a plaintiff and his or her lawyer can be assessed fines of up to $10,000. Moreover, when cases do go to trial, the percentage of medical malpractice cases which are successful pales in comparison to the cases which are not, due to the benefit of the doubt that many jurors accord doctors in general.

Thus, anyone reading this post who is motivated to do something to prevent the Texas scenario from being implemented in New York, (a cap on medical damages will undoubtedly be foisted on the public again in the near future) contact your local representative, State Senator and Governor Cuomo and tell them “No caps on non-economic damages in New York!”

The Family of Junior Seau Sues The NFL

Thu, 24 Jan 2013 12:20:50 -0500

The family of the late former NFL player and star linebacker Junior Seau has sued the National Football League, along with helmet manufacturer Riddell and other defendants, joining a long line of plaintiffs who contend that the league misled them or covered up information about the serious dangers of repeated head trauma which led to cognitive issues and traumatic brain injuries. (tbi).

There are now approximately 4,000 cases involving former players and their families, who have argued that the NFL was aware for years that repeated head collisions caused short and long term neurological damage to the players, resulting in significant symptoms including loss of memory, depression, mood changes, fatigue, dizziness, and loss of judgment, among others effects. Essentially, when the players suffer these substantial head collisions, the brain is shaken against the walls of the skull, leading to rotational and linear stretching and tearing, bruising and bleeding. The long term effect of these repeated collisions is the development of a sticky substance in the brain tissue known as “tau”, which interferes with brain functions and is the primary factor in chronic traumatic encephalopathy, (CTE) the degenerative brain disease linked to repeated head trauma. CTE is frequently seen in autopsies of the brain tissue of people that suffered from Alzheimer’s Disease, dementia, and now in autopsies of ex-NFL players, boxers and hockey players.

Seau, who was a star linebacker for three NFL teams including the Chargers, Dolphins and Patriots, was known during his 20 year career as a hardnosed, tough player who was involved frequent hard collisions and undoubtedly suffered numerous concussions during his playing days. In May of 2012, Seau committed suicide by shooting himself in the chest, a similar means of suicide to that of former player Dave Duerson, who purposely shot himself in the chest with a note to his family imploring them to conduct a posthumous study of his brain. In the cases of Duerson and Seau, as well as over 30 NFL and NHL players who have taken their own lives, autopsies have confirmed the diagnosis of CTE.

In announcing the lawsuit filed in state Court in San Diego, the Seau family stated that “We were saddened to learn that Junior, a loving father and teammate, suffered from CTE. We know the lawsuit will not bring back Junior. But it will send a message that the NFL needs for its former players, acknowledge its deceptions on the issues of heady injuries and player safety, and make the game safer for future generations.”

The NFL has requested that the courts move the 4,000 pending cases to federal Court in Philadelphia, where some cases have been consolidated into a class action. The league seeks a dismissal, contending that the league’s collective bargaining agreement with the players includes provisions for the players’ claims.

The Do’s And Don’ts When Involved In A Trip And Fall Accident

Wed, 16 Jan 2013 16:36:09 -0500

You have just tripped on an uneven step in your apartment building complex, or slipped and fell in a parking lot where the owner failed to shovel and apply salt, or stepped into a hole that the property owner neglected to repair, and you have suffered a serious injury. Maybe you have never been injured in your life, never filed a claim, certainly never been involved in a lawsuit. Now you are injured, will require significant medical treatment, and will likely to be unable to work for some time due to the negligence of the property owner or manager. What should you do, even before you contact an attorney?

1. Try to identify any witnesses, and to the extent possible, obtain their names and phone numbers or email addresses. This is critical, as insurance companies approach unwitnessed accidents with a great deal of skepticism. Further, if the case reaches trial, it is vital to have another person (preferably someone unrelated to you if possible) who can verify the dangerous conditions and how the accident happened.

2. To the extent that you are able to do so, take photographs of the uneven step, icy sidewalk, or other dangerous conditions. If you are unable to do so due to the pain, try to ask someone nearby to you use your cell phone and take photographs. This is another critical piece of evidence to support your case, which in the case of a transient condition such as an icy sidewalk, might no longer exist the next day and cannot be duplicated to show an insurance adjuster or a jury, if necessary.

3. Report your accident to the property owner when possible, or if there is no owner available or known, report the accident to the police so that a report is prepared which confirms the location, date, time and description of your accident and injuries.

4. Get yourself to the nearest emergency room or primary care doctor for evaluation and treatment if necessary. Many times clients are in a great deal of pain, but postpone getting treated, with the idea that “I’ll feel better tomorrow”, or they are fearful of hospitals in general. The problem is that this can be dangerous (for example, if you suffer a concussion immediate treatment can be very important) and insurance carriers take into consideration the failure to go for immediate medical treatment when analyzing a case.

5. Don’t speak with anyone from the insurance company for the owner of the property, who may call you to obtain a recorded or written statement. They are trained to ask questions in a fashion which will inevitably attribute culpability of the accident to you.

6. Whatever you do, do not sign anything without meeting with an attorney first. Often, an insurance adjuster will approach a person who has been injured in an accident with a token offer of settlement, in exchange for the injured person’s signature on a “general release”, which if signed, will likely terminate that person’s rights to pursue legal remedies for their injuries.

The Most Dangerous Intersection in NYC

Wed, 28 Nov 2012 15:05:48 -0500

I read a very good article in the December 3, 2012 edition of New York Magazine about dangerous intersections in New York City. According to studies performed by the New York City Department of Transportation, (NYCDOT) the most dangerous intersection in the City of New York is at Webster Avenue and East Fordham Road in the Bronx. In 2008, the DOT determined that traffic accidents at the intersection resulted in serious injuries to 14 pedestrians and 2 bicyclists. Since 1995, 131 pedestrians and bicyclists have suffered injuries there.

There are numerous reasons why this intersection is so dangerous. First, Webster Avenue is approximately 70 feet wide, with no median. Studies show that the average pedestrian walks at approximately 3.5 feet per second, and elderly pedestrians and young children at a slower pace of about 2.5 feet per second. A standard walk signal can be approximately 30-45 seconds, and often, this does not provide sufficient time for the pedestrian to cross safely, particularly elderly pedestrians.

Another safety issue at Webster Avenue and East Fordham Road is the congestion caused by about 80,000 shoppers daily, as the area is a shopping hub. Additionally, Fordham University, a Metro North station and a high school are all nearby, bringing much more substantial foot traffic.

Third, due to traffic congestion, stopped vehicles cause pedestrians to cross against the light. Statistically, pedestrian accidents are over 50% more deadly than those when the light is in the pedestrian’s favor. Fourth, there are 8 bus routes which stop at the intersection. Buses are a major obstruction to visibility, rendering cars, traffic lights and pedestrians harder to observe.

The DOT has made several changes to the intersection in an effort to improve safety. The timing of the lights was increased to 56 seconds, allowing the elderly and slower pedestrians more time to cross. Timed countdown walk/don’t walk lights were added. However, it is not clear if this measure will prevent often frustrated, and late, pedestrians from crossing against the traffic light.

Another improvement has been to lengthen the left turn lanes on Webster Avenue. Statistically, there is no question that left turn accidents are much more likely to result in serious injury or death to pedestrians or bicyclists than right turn accidents. The left turn lane is now 200 feet longer (approximately 13 car lengths), providing drivers with much more time to change lanes and to execute their left turns.

The stop point for cars on Webster Avenue was moved back 12 feet behind the crosswalks. This limits the likelihood that a driver will be surprised by a pedestrian who walks in front of his or her car. Further, street markings were repainted and cross hatchings added.

On its website, the NYC DOT lists current projects that it is working on to implement safety improvements to intersections, roads, and parks around New York City.

Driving While Drowsy—Dangerous As DWI?

Tue, 20 Nov 2012 15:19:46 -0500

The National Highway Traffic Safety Administration (NHTSA) has conducted numerous studies of drowsy driving over the last ten years, and the conclusion seems inescapable: Drivers who have not gotten enough sleep can be as dangerous as those driving under the influence of alcohol, drugs or both. NHTSA has determined that after a driver has been awake for 17 hours, his or her motor skills are affected similarly to a driver with a BAC of approximately 0.05%. This is the equivalent of a male weighing about 150 pounds drinking approximately 3 Margaritas over a two hour period!

In California, the Highway Patrol reported that in 2010, sleepy driving accounted for more than 3,600 accidents, 2000 injuries, and 32 fatalities. The NHTSA has determined that on an annual basis, falling asleep while driving leads to 1,550 deaths, 71,000 injuries, and more than 100,000 accidents. The National Sleep Foundation reports that 60% of adult drivers acknowledge having driving while feeling sleepy, (totaling 168 million people!), and more than a third of those drivers have fallen asleep.

Police officers look for these telltale clues to find drowsy drivers;

• Slow driving;
• Speeding up and slowing down;
• Driving onto the shoulder;
• Driving across lanes;
• Straddling lanes;
• Running red lights.

A review of this list clearly shows that the patterns of sleepy drivers are virtually identical to drivers who are intoxicated or under the influence of drugs. The problem is exacerbated this time of year with drivers on extended journeys for Thanksgiving, Christmas and New Year’s, who often leave early in the morning or late at night to avoid heavy traffic. Rolling down windows, turning up the radio or having a cup of coffee or other caffeinated beverage will not cause a drowsy driver to wake up, despite the myths about these techniques. Effective means of combating sleepy driving, if there are no passengers to share the driving responsibility, are to take a 15-30 minute nap, (which is actually better than a nap of 1-2 hours for changing brain chemistry), or to stretch their legs on a regular basis.

“5- Hour Energy” and “Monster Energy”—Can They Be Fatal?

Thu, 15 Nov 2012 18:05:42 -0500

I read an interesting and eye-opening (no pun intended) article in the New York Times on November 14, 2012 by Barry Meier. The article, entitled “Caffeinated Drink Cited in Reports of 13 Deaths”, discusses the recent disclosure by the U.S Food and Drug Administration (FDA) that it has received numerous reports and filings over the last several weeks of fatalities which are potentially attributable to consumption of caffeinated drinks such as “Five-Hour Energy” and “Monster Energy.” I have seen with my own children (ages 12 and 17) how these so called energy drinks such as Red Bull, Monster Energy and 5 Hour Energy are so readily available to anyone regardless of age with no clear understanding of what is contained in these products. What makes this much more frightening is that according to Beverage Digest, caffeinated beverages are the fastest growing soft drink in the United States with a sales increase of 17% in 2011 to approximately 9 billion dollars!

Apparently, 5 Hour Energy (which is sold in 2 oz. shots) contains approximately 215 milligrams of caffeine, whereas an 8 oz. cup of regular coffee, depending on how it is brewed, can contain from 100 milligrams of caffeine to as much as 165 milligrams in a 8 oz. cup as reported by Consumer Reports.

To be very clear, since 2008 the manufacturers of these energy drinks are required by federal law to report the fatalities and serious injuries they become aware of from consumers, but there is no absolute scientific proof that the products have caused these deaths. What is known is that over the last four years, the FDA has received reports from the distributor of Five Hour Energy, Living Essentials, that 13 people have died and the filings claim that these deaths were caused in some way by the consumption of the product. The FDA has also reported that it is in possession of five fatality filings involving Monster Energy. In 2010, the FDA was notified of 17 fatalities involving some form of weight loss product or dietary supplement. According to the Meier article, since 2009, 5-Hour Energy has been named in approximately 90 filings with the FDA, with one third of those reports involving serious or life-threatening conditions, including heart attacks, convulsions and one spontaneous abortion. Further, the Substance Abuse and Mental Health Services Administration, also a federal agency, reported in 2011 that more than 13,000 emergency room visits in 2009 were related to the consumption of energy drinks.

The FDA regulates products such as Red Bull as beverages, whereas 5- Hour Energy and Monster Energy are regulated as dietary supplements, which complicates rules regarding ingredients and reporting of adverse events.

Living Essentials responded to the reports by indicating that their product is safe when used as intended and denied knowledge of any deaths caused by the use of 5-Hour Energy. Monster Beverage, the manufacturer of Monster Energy, has also denied that their product is responsible for any fatalities and has alleged its products are safe as well. The FDA’s Director of dietary supplement programs Daniel Fabricant, noted on November 14 that the agency was looking into the circumstances of the 13 fatality reports submitted by the distributor of 5-Hour Energy, but that some of the reports might not have sufficient information to determine whether the supplements did in fact contribute to the fatalities.

Manoj Bhargava, the CEO of Living Essentials refused to comment about the fatality filings involving 5-Hour Energy, believing that the New York Times article would leave a negative perception of his product.

National Teen Safety Week Highlights Risks For Teenage Drivers

Thu, 18 Oct 2012 16:36:19 -0500

This week, The U.S. Department of Transportation announced an effort to get parents and their teenage children to discuss the topic of safe driving. The National Highway Traffic Safety Administration (NHTSA) reports that 187,000 teenage drivers were injured in car crashes in 2010 and 1,963 young drivers between the ages of 15 and 20 died that year. One of every ten operators at the wheel in a fatal accident is between 15 and 20 years of age.

One of the significant issues in these fatal accidents and large volume of injuries is the use of cell phones or texting while driving. In 2010, 368 teenage drivers died while they were distracted by the use of electronic devices, which was 13% of the total of all fatal accidents involving distracted driving in 2010. NHTSA has determined that teenage drivers are 2 ½ times more likely to drive while taking risks when at least one other teen is in their vehicle than while driving alone. A majority of all teen fatal crashes happen between 9:00 PM and 12:00 AM.

Another major risk that teens engage in is failing to use their seatbelts. NHTSA notes that 60% of 16-20 year old occupants who died in car crashes in 2010 were not wearing their seatbelts. Alcohol is a major risk factor as well. 22% of teenage drivers killed in 2010 had alcohol in their system.

NHTSA provides several suggested rules for the parents of teenage drivers, including:

Have a contract with your child with regard to the rules of their driving, and the consequences if they fail to comply with the agreement;

Forbid the use of any electronic devices in the car while the teenager is driving;

Place limits on the teen’s driving during evening hours, such as no driving after 10:00 PM;
Insist on the teen wearing his or her seat belt at all times;

Demand complete drug and alcohol abstinence while driving. Additionally, bring to their attention the dangers of being in a car with another teen who has been driving or using drugs.

Permit your child to have only one passenger at all times, to limit the likelihood that he or she will be goaded by one of the occupants to engage in a risky behavior in an effort to impress the passengers in the vehicle;

Monitor and be careful with your own driving behaviors while your teenage driver is in the car with you. I confronted this issue recently with my teenage son at the wheel. I told him that he must always have both hands on the wheel when driving, to which he responded, why should I when sometimes you don’t? Point very well taken, and lesson learned.

Fatal Meningitis Outbreak--Lax Regulatory Rules Responsible?

Tue, 09 Oct 2012 15:59:08 -0500

Pain Management has become a major growth industry in this country, with wide spread addiction to Oxycodone and Hydrocodone a large part of the problem. For many of our clients who are injured in automobile accidents, construction accidents or trip and fall accidents, when the pain becomes intractable and surgery is not necessarily an option, it is now a common practice for the clients to undergo lumbar or cervical epidural steroid injections. For example, in 2011, approximately 2.5 million Medicare recipients and a similar amount of younger patients received the injections.

Spinal injections for back or neck pain is now under significant scrutiny as the result of a meningitis outbreak which has spread across the United States. The drug which is responsible for the meningitis outbreak is known as mehtylprednisolone acetate, which was apparently made by a company called New England Compounding Center (NECC) in Framingham, Massachusetts. According to an article by Denise Grady, Andrew Pollack and Sabrina Tavernise in the New York Times on October 9, 2012, the company sold 17,676 vials of the mehtylprednisolone acetate to 75 pain clinics in 23 states across the United States. The New York Times has reported that compounding centers are used by doctors and hospitals to obtain certain medications for two major reasons. First, when medications are in short supply, compounding centers such as NECC are a potential alternative, and second, the prices for the drugs from the compounding centers are often much lower than if the hospitals had to purchase the medications from a pharmaceutical company.

So far, there are 7 reported fatalities, 57 people who have become ill from the tainted medications, and potentially thousands more who could be endangered. It appears that the medication was contaminated with a fungus, which is the worst of three possible ways to contract meningitis, the others being through a virus or bacteria. Doctors note that the fungal meningitis is hardest to treat and leads to strokes. The only means to determine if the person is suffering from meningitis is to perform a spinal tap. If the spinal fluid is cloudy, it is likely that the person has the fungal infection.

The New York Times article discussed the tragic case of Eddie C. Lovelace, a judge in Kentucky who was still on the bench in his late seventies. Judge Lovelace was suffering from severe neck pain from a car crash. He underwent spinal injections for pain relief, and within several months, he was dead at the age of 78. Doctors and hospitals frequently do not have any idea where the medication they are prescribing and requesting comes from. Dr. Anders Cohen, the chief of neurosurgery at Brooklyn Hospital Center, notes: “We ask for the medication, it’s in stock, we use it. I don’t know if it’s coming from A, B or C. This is a wakeup call about where your stuff is coming from.”

Compounding centers are able to provide the medications less expensively since they are not subject to the federal oversight of the Food and Drug Administration, (FDA), which requires stringent testing before a drug offered by a pharmaceutical company can be approved for public use. The approval process takes several years and costs the drug companies several million dollars. New England Compounding charged $25.00 for a vial of five 80 milligram doses, whereas a similar vial of Depo-Medrol, manufactured by Pfizer, costs in the range of $40-$46.00. Compounders are able to register as pharmacies, placing them under the review of state agencies and regulations, not the federal government. The F.D.A. reports that problems with products be reported to the agency, whereas there is no equivalent procedure under state laws, allowing compounding centers like NECC to flourish.

Ironically, The New England Compounding Center had significant problems in the past, with several complaints lodged against the company over the past decade. The Massachusetts State Health Dept. inspected the company in 2006, and as a result, the letter sent a letter to the company accusing them of among other things, illegal production of an anesthetic topical cream and allowing a doctor’s office to order products without prescriptions for patients. It is also tragic to note that there is a significant question as to whether the injections are even effective, so that many patients risked their health or their lives for a questionable treatment to alleviate their suffering.

As a precaution, the F.D.A. is advising health care professionals and consumers not to use any product manufactured by the NECC until further notice.