NFL Acknowledges Traumatic Brain Injury Will Affect 1 In 3 Former Players

September 16, 2014 by Mark Siesel

In a stunning and sudden change of position, the National Football League now acknowledges that 1 in 3 former players are likely to develop some long term brain damage from repeated head trauma and TBI suffered during their playing careers. The data was compiled by actuaries retained by the NFL and provided to United States District Court Justice Anita B. Brody of Philadelphia, who has been supervising the settlement of approximately 5,000 former players’ claims against the league that the NFL knew that repeated concussions led to long term permanent injuries and diagnoses but intentionally withheld this information.

Specifically, the ex-players contended in their lawsuit that the NFL was well aware for many years that repeated head trauma would cause Alzheimer’s Disease, Parkinson’s Disease, ALS, (Amyotrophic Lateral Sclerosis, also known as Lou Gehrig’s Disease), dementia, depression, mood disorders, and chronic traumatic encephalopathy, (CTE) which is not possible to diagnose until an autopsy is performed. Last fall, a $675 million settlement was entered into between the players’ lawyers and the NFL. However, Justice Brody rejected the settlement amount, considering the proceeds to be inadequate to fairly compensate all potential claimants over the 65 year life of the settlement. Justice Brody directed counsel for both sides to submit a more substantial total settlement package.

To address the concerns of Justice Brody, the NFL agreed in June of 2014 to pay an unlimited amount in awards for brain injuries suffered by former players who filed claims under the settlement agreement. Some former players, or their families, (as in the case of Junior Seau, the all-star linebacker for the San Diego Chargers who killed himself and requested that his brain be studied for brain injury), “opted out” of the settlement and will sue the NFL individually.

A significant percentage of the payouts to ex-players will be for those diagnosed with Alzheimer’s disease or advanced dementia. They will receive approximately 800 million dollars. The NFL and players’ attorneys believe that the largest payouts will go to players suffering from Parkinson’s Disease, ALS or CTE. Estimates by lawyers for the players are that approximately 28% of players (5,900) will develop injuries for which they are entitled to compensation. About 60 percent of these players are expected to file claims which would comprise about $950 million.

The actuarial reports are magnifying one of the main concerns of the players who have joined the class action, as well as those who have not—namely, that players with less severe brain injuries due to repeated concussions will not receive any compensation or minimal compensation at best. Seven retired players submitted papers to a federal appeals court requesting that the Court review the issue of compensation for less severely affected ex-players, but the appeals Court declined to do so.

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NFL Concussion Settlement Closer To Reality

July 11, 2014 by Mark Siesel

Over the last three years, 4,500 former NFL players filed lawsuits against the league alleging that for many year, the NFL deceived them as to the risks of repeated concussions and traumatic brain injury (tbi), resulting in numerous long term neurological conditions and the long term effects of these conditions, including dementia, Alzheimer’s Disease, chronic traumatic encephalopathy (CTE), Parkinson’s Disease and ALS (amyotrophic lateral sclerosis), also known as “Lou Gehrig’s Disease.” The lawsuits were consolidated into once class action and filed in the U. S. District Court in Philadelphia before Justice Anita Brody.

Several months ago, attorneys for the NFL and attorney's for the players worked out a tentative settlement of the lawsuits, which included the following: A cap of $675 million for financial awards to ex-players for pain and suffering arising out of their medical conditions, (without the requirement to prove that the conditions were caused by the repeated concussions); $75 million for baseline neurologic and neuropsychological testing for any legible retired players; and $10 million from the league for programs to promote safety and the prevention of head injuries. However, Justice Brody balked at approving the settlement last fall, contending that the $675 million cap on payments to former players was inadequate and needed to be bolstered. Certainly, the NFL’s annual estimated revenue of $10 billion reflects the fact that the $675 million over the 65 year life of the agreement would not even make a dent in the league’s finances. Further, it is expected that the number of players who will make claims for brain injuries incurred during their playing careers will continue to escalate as awareness of the damage from repeated concussions increases.

The revised agreement presented to Justice Brody removes the cap of $675 million for claims by ex-players. Former players will be notified of the terms of the settlement and provided with an opportunity to accept the terms or “opt out”, allowing the individual players to file their own lawsuits. Justice Brody will conduct a hearing this fall to determine whether the settlement is now in the best interests of the former players and is fair and adequate. The settlement as presently constituted provides awards of $3.5 million for Parkinson’s disease; $4 million for a diagnosis after a player’s death of CTE; and $5 million for ALS. Additionally, the settlement would encompass payouts for early dementia and “severe decline in cognitive function”, although it is unclear how those terms are defined or what the amount awarded for those diagnoses would be.

We will follow the evolution of the settlement between the NFL and the players' attorneys and report further after the notification period to the ex-NFL players.

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Increased Federal Scrutiny Leads To Air Bag Recalls

June 25, 2014 by Mark Siesel

Air bag recalls have risen exponentially in the last year due to increased oversight by the National Highway Traffic Safety Administration (NHTSA). 10 million of the 30 million vehicles recalled in 2014 have been as a result of air bag defects which cause the inflator canister to explode inside vehicles, leading to metal shards flying around inside the passenger compartment.

The defective air bags were manufactured by the Takata Corporation, who began manufacturing air bags in 1988. Takata is one of the three largest worldwide air bags producers, along with the Swedish company Autoliv, and an American supplier TRW Automotive. Seven automobile manufacturers have announced recalls of vehicles containing the Takata air bags, including Toyota, Honda, Nissan, Mazda, Ford, Chrysler and BMW. Honda acknowledged that it was aware of in excess of 30 injuries and two fatalities from defective air bags manufactured by Takata. Despite the fact that Takata had a questionable safety record, with defective seatbelts manufactured by the company leading to 9 million recalls in the 1990’s, automakers have continued to retain Takata for production of air bags.

One devastating example is that of Kristy Williams. In 2010, while waiting at a red light in Georgia, the Takata air bags in her 2001 Honda Civic spontaneously deployed. Ms. Williams was struck by metal shards from the canister that contained the air bag propellant. The sharp shards went through the air bag fabric and punctured her neck and carotid artery. She underwent numerous operations and had several seizures and strokes. Honda and Takata worked out a settlement with Ms. Williams attorneys, with the usual non-disclosed financial terms. There have also been two deaths reported from the defective air bags in Oklahoma and Virginia. Both of these fatal accidents occurred in 2009 and involved Honda vehicles. The cases were settled by Honda and Takata with undisclosed terms.

Takata believes that the defective air bags are due to excessive moisture and humidity seeping inside the inflators, which then destabilizes the propellant inside the air bag. The NHTSA has received 6 reports of air bag inflator ruptures which all occurred in Florida and Puerto Rico, which would be consistent with the theory that moisture and humidity plays a strong part in these incidents. The Administration noted in a statement that it “supports efforts by automakers to address the immediate risk in areas that have consistently hot, humid conditions over extended periods of time.” If the driver’s side air bag explodes, the metal shards are likely to strike the driver, as they did to Ms. Williams in 2010. However, because of its placement in the glove compartment, an exploding air bag on the passenger side will likely send the shards toward the roof of the car, and not toward the passenger.

Honda recently recalled approximately 2 million vehicles with the Takata air bags, Toyota recalled 2.3 million cars, Nissan recalled 755,000 cars, and Mazda recalled 160,000 vehicles.

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Trucking Industry Resisting Driver Sleep Regulations Despite Serious Accidents

June 20, 2014 by Mark Siesel

The June 7, 2014 accident in which 30 Rock star Tracy Morgan was seriously injured, his close friend James McNair killed, and several passengers injured when a Wal-Mart truck rear ended their Mercedes limousine, has highlighted the significant issue of truck driver fatigue leading to many fatal accidents and serious injuries to occupants of other vehicles.

Prosecutors allege that Kevin Roper, 35, drove a Wal-Mart tractor-trailer into the rear of the Mercedes carrying the six men after Roper had not slept for over 24 hours. In addition to denying the allegations at his arraignment last week, Roper has taken to social media, including Twitter, to deny the allegations. Mr. Roper was charged with one count of death by auto and four counts of assault by auto.

Drowsy driving is a significant safety issue on U.S. roads in 2014. This month alone, there have been at least three fatal accidents involving truck driver fatigue in Austin, Texas, Marseilles, Illinois, and Madison County, Ohio, in addition to the Cranberry, New Jersey accident on the New Jersey Turnpike involving Mr. Morgan, Mr. McNair and the other passengers. Last year, federal regulations were modified to limit truckers’ weekly hours from 82 to 70. These federal rules require that drivers must not work more than an eleven hour day, are required to take a 30 minute break, and must rest at least two nights per week from 1:00 AM to 5:00 AM.

Trucking industry lobbyists are pushing hard to reverse the strengthened safety regulations, claiming that driver fatigue is an exaggerated issue, and that there is no solid evidence that the spate of fatal accidents and serious injuries are attributable to driver fatigue or drowsy driving. Susan Collins, the Republican U.S. Senator from Maine, has introduced an amendment through the Senate Appropriations Committee designed to freeze the application of the modified safety rules until “further study” has been conducted—in other words, Collins is trying to kill the enhanced regulations as she is undoubtedly well supported by the trucking industry in her state. A representative of the Teamsters Union noted that fatigue has long been underreported at accident scenes, and stated: Congestion on the highways is greater than ever, there are more vehicles on the road than ever before, and drivers have to be more attentive than ever…drivers need to get proper rest to do the job that they do.”

In 1990, the National Transportation Safety Board (NTSB) conducted a study of 182 heavy truck accidents in which the driver was killed and determined that fatigue was a factor in 31 % of the accidents, more than drugs or alcohol. The Federal Department of Transportation created the new safety rules using an estimate that fatigue related accidents were approximately 13% of the total trucking accidents. This figure was calculated in a 2006 project called the “Large Truck Crash Causation Study.”

In the Morgan accident on June 7th, the Wal-Mart truck was supposed to be equipped with technology by which the truck would automatically slow down if it approached slow moving traffic or stopped traffic, which obviously did not work. Wal-Mart has refused to provide Mr. Roper’s schedule prior to the crash, despite denying the claims that he was fatigued or had driven for more than 24 hours straight without a break. The company claimed that the investigation into the accident was “incomplete” in refusing to provide Roper’s driving schedule, although this obviously adds to the “incomplete” status of the investigation.

We will continue to follow this story as the enhanced truck safety regulations are fought over in the Senate over the next several months.

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Painkiller Lawsuit-More Legal Problems For The NFL?

May 22, 2014 by Mark Siesel

On May 20, 2014, 8 former NFL players filed a lawsuit against the National Football League in San Francisco U.S. District Court, alleging that the league illegally and deceptively plied them with painkillers during their playing careers to get them back on the field when they had in fact suffered serious injuries. The plaintiffs, who include former ’85 Super Bowl champion Chicago Bear players Jim McMahon, Richard Dent and Keith Van Horne, claim that they unknowingly played with broken bones and other serious injuries. Now, they contend that they suffer from addiction and other serious health issues due to the deceptive practices of the NFL. In an interview on the Today Show with Matt Lauer on May 22, 2014, two other plaintiffs, including Buffalo Bills wide receiver J.D. Hill, stated that team doctors would walk through planes and locker rooms prior to games with suitcases full of painkillers and muscle relaxers and provide whatever players wanted, with no mention of side effects, contraindications or long term effects such as addiction. Hill also noted that the painkiller addiction had ruined his life, and ironically stated: “I was provided uppers, downers, painkillers, you name it while in the NFL. I became addicted and turned to the street after my career and was homeless. Never took a drug in my life, and I became a junkie in the NFL.”

The painkiller lawsuit comes on the heels of a huge class action by 4000 former players claiming that they had suffered undiagnosed and concealed concussions during their NFL careers, which led to long term devastating effects including brain damage, loss of memory, depression and an inability to function in society, with several notable suicides, most recently Junior Seau, a star linebacker for many teams including the San Diego Chargers and Miami Dolphins. The concussion lawsuit was ostensibly settled for 765 million dollars a few months ago, but was rejected by U.S. District Court Judge Anita Brody, who determined that the amount was not sufficient to cover the long term damages of the affected players.

Lawyers for the plaintiffs are trying to obtain class action status and claim that there as many as 500 plaintiffs ready to sue if class action status is granted by the federal Court. Six of the players in the painkiller lawsuit are also plaintiffs in the concussion lawsuit, including Jim McMahon and Keith Van Horne. In the case of McMahon, who was the quarterback of the “Super Bowl Shuffle” ’85 Champion Bears, he was well known for seeking out contact with defensive linemen, and would often head butt opposing players. Thus, it is not surprising that McMahon suffered injuries including a broken neck during his playing career; it is astonishing that injuries of this nature went undiagnosed or that McMahon was cleared to play with them. The lawsuit seeks an undeclared amount of damages for the players’ injuries, and an injunction to establish a NFL funded program to assist current and past players with addiction, injuries and permanent disability attributable to the use of painkillers.

In response to the allegations in the painkiller lawsuit, NFL commissioner Roger Goodell claimed that he was in meetings and had “not had an opportunity to read the papers” and stated that it was in the hands of the NFL’s attorneys.

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NTSB Reports That Metro North Engineer In Derailment Had Severe Sleep Apnea

April 7, 2014 by Mark Siesel

The National Transportation Safety Board (NTSB) announced that William Rockefeller, the Metro North Engineer at the helm of the train which derailed in Spuyten Duyvil on December 1, 2013, killing 4 and injuring more than 70, had “severe obstructive sleep apnea.” Sleep apnea is a sleep disorder which causes breath pauses during sleep, disrupting sleep and causing other health issues. The NTSB noted that the condition may have been made more severe by a change in Rockefeller’s schedule two weeks before the tragedy from nights to an early morning run.

Approximately 18 million people have sleep apnea, which can cause long term and in this instance dangerous drowsiness. Those with sleep apnea often have narrowed airways which can cause them to have difficulty breathing while they sleep. They often have snoring problems and can wake up gasping. Mr. Rockefeller was allegedly never tested for any sleep disorder prior to the derailment, and the NTSB reported that testing performed since the derailment showed that his sleep was disrupted as many as 65 times per hour.

It seems highly unlikely that Rockefeller was completely unaware of a significant condition such as sleep apnea that could interfere with his sleep on an every minute basis. Further, there is another safety issue for Metro North to respond to, namely, why are its employees who are placed in a position of safely transporting its ridership not medically tested on a regular basis? And if Metro-North did conduct regularly physicals of its engineers and other employees who have the responsibility of safety to the public, how come the railroad was unaware of Mr. Rockefeller’s “severe sleep apnea”?

The Journal News reported that the NTSB previously requested that the Federal Railroad Administration (FRA) deal with operator fatigue by medically screening employees in “safety sensitive” jobs for various sleep disorders, including chronic sleep apnea. Mr. Rockefeller reportedly told NTSB investigators that he was “dazed…looking straight ahead, almost like mesmerized…[that he had] a hypnotic feeling staring straight ahead.”

The December 1 derailment occurred in the early morning that Sunday when the Grand Central bound train hurtled into a curve at over 80 miles per hour where the speed limit is 30 mph. Mr. Rockefeller claims that he only woke up as the train was turning on its side.

In addition to the sleep apnea, a blood test revealed that Rockefeller had taken a cold medication known as Chlorpheniramine on the date of the derailment. Chlorpheniramine is an antihistamine used to relieve symptoms of allergies and the common cold. The drug comes with a warning from the U.S. Food and Drug Administration that it could “impair mental and/or physical ability required for the performance of potentially hazardous tasks” like driving and operating heavy machinery." Of course, clearly Mr. Rockefeller should not have been operating heavy machinery such as a several car passenger train on a sedating medication, in conjunction with a “severe” sleep disorder.

The Association of Commuter Rail Employees, the union that represents Metro-North employees, stated through a spokesman that operators are required to take an annual physical and report medications they are taking and medical conditions they suffer from. Further investigation will determine exactly what Metro-North knew of Rockefeller’s medical condition, and if nothing, how that is even possible.

Mr. Rockefeller is on suspension without pay pending a hearing with Metro-North officials.

Metro North has acknowledged that safety was not a big enough priority previous to December 1, 2013. In fact, the new president of Metro North, Joseph Giulietti, admitted on March 4, 2014 that “safety was not our top priority, it must be, and it will be.” That remains to be seen. Measures taken since the derailment such as train cab cameras, lower speed limits in dangerous zones, and track signal improvements should have been implemented long ago.

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Toyota Agrees to Pay 1.2 Billion To Settle Federal Criminal Investigation

March 26, 2014 by Mark Siesel

Last week, the U.S. Justice Department announced that Toyota will pay 1.2 billion dollars in fines to settle a four year long criminal probe commenced by the Justice Department arising out of sudden acceleration problems that caused the wrongful death of occupants of Toyota vehicles highlighted by a tragic crash in August of 2009. The acceleration issues were caused by improper floor mats which would get jammed with the accelerator, as well as defective gas pedals. Initially, Toyota made the extremely poor decision to blame many of the accidents on “driver error”, but it became apparent from a safety point of view and the public relations debacle that ensued that this was a very bad strategy, indeed.

The 1.2 billion dollar penalty is by far the largest ever paid by an automobile manufacturer to settle a criminal investigation. In addition to the huge monetary penalty, Toyota has agreed to have a monitor to oversee its safety communications, its response to accident reports and to review its processes for issuing safety bulletins. Previously, Toyota had paid much smaller fines of 16.375 million in 2010 for delay in reporting pedal and floor mat defects, and $17.35 million in 2012 in a separate safety recall.

The sudden acceleration issues came to Toyota’s attention in 2009 with numerous reports of “runaway cars.” This was highlighted by a particularly tragic accident in San Diego in August of 2009 when five people were killed as the result of an improper floor mat which trapped the accelerator in a 2009 Lexus ES. In that accident, 911 recordings caught in horrific detail the occupants’ ordeal as the vehicle accelerated to 113 mph before flying into an embankment.

Part of the federal investigation examined whether Toyota had provided false and/ or misleading statements to the National Highway Traffic Safety Administration (NHTSA) when it was investigating the sudden acceleration issues several years ago. At that time, Toyota recalled approximately 8.1 million vehicles. Toyota still faces enormous costs in defending against hundreds of personal injury lawsuits that have been consolidated in California state and federal courts, in which settlement talks are proceeding. Bloomberg reported that 131 of approximately 300 cases have been settled in principle for undisclosed sums, as is always the case in settlement with corporations, which require confidentiality agreements. Further, last year Toyota agreed to pay about 1 billion dollars to owners of Toyota vehicles who alleged that their vehicles lost value as a result of the safety recalls. Between personal injury, wrongful death, and warranty claims, and the deal with the federal government, Toyota has paid approximately $3 billion. However, analysts estimate that the company may earn as much as $19 billion in the 2014 fiscal year.

There is no doubt that the Toyota criminal penalties and poor response to the safety issues in 2009 led to GM’s decision last month to commence massive recalls of 2005-2009 Cobalts, Ions, and Pontiacs with defective ignition switches resulting in many deaths and serious injuries from the loss of power to safety systems, in particular, power steering and airbags. Certainly, the fact that Congress intends to conduct hearings into GM’s ignition switch safety recalls also contributed to GM’s strategy. Further, GM’s sudden change in strategy to attempt resolution of many of the personal injury and wronged death claims is undoubtedly influenced by Toyota’s maladroit response to its safety recalls and the aftermath, which resulted in a huge payout to the feds that GM is seeking to avert.

Perhaps the Toyota and GM safety issues, which have cost countless lives and resulted in grievous injuries, will now be the impetus for the Motor Vehicle Safety Act, which failed to pass the Congress in 2010. Under this long overdue and sensible legislation, fought and defeated by auto industry lobbyists and their cronies in Congress, more funds would be provided to the NHTSA to investigate automobile defects; publicize a database of early warnings that auto manufacturers issue to the government; and authorize the agency to assess larger fines against corporations that fail to timely recall defective automobiles.

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GM Recalling 1.6 Million Cars Due To Defective Ignition Switches

March 17, 2014 by Mark Siesel

One of the “Big Three” Automakers, General Motors, has announced a massive recall of 1.6 million vehicles which apparently had defective ignition switches, causing the cars to turn off and disabling airbags in the process. As a result of the defective ignitions, the electrical systems in the vehicles would be inoperable, causing the airbags not to deploy, and many drivers and passengers of GM vehicles died as a result.

According to the Center for Auto Safety, federal data complied by the National Highway Traffic Safety Administration (NHTSA) revealed that 303 deaths were caused due to the failure of airbags to deploy. GM acknowledges 12 fatalities due to the defective ignition switches, but nonetheless, has instituted a massive recall of 1.6 million vehicles, comprised of 2005-07 Chevrolet Cobalts, 2003-2007 Saturn Ions, 2005-2007 Pontiac G5’s, 2006-07 Chevrolet HHRs, the 2006-07 Pontiac Solstice, and the 2007 Saturn Sky.

GM is now facing a congressional investigation and an inquiry by federal prosecutors in N.Y. into its response to the defective ignition switches, after it was widely reported that GM engineers knew in 2004, and possibly as early as 2001, about the ignition switch problem.

Recently, a slew of lawsuits by crash victims’ families and shareholders have been commenced, and some were settled in the last few months. One recent settlement involved the death of 29 year old Brooke Melton, who was killed after her 2006 Chevy Cobalt suddenly lost power and crashed into another car. Her attorney made demands for GM internal documents and information as to other similar claims, in response to which GM’s attorneys fought bitterly in attempting to resist providing the information and documentation. However, in a complete reversal of strategy, GM settled the case with the requisite confidentiality agreement demanded by corporations in all such cases. Part of GM’s motivation may have been the public relations nightmare that Toyota experienced back in 2010 when the company was hit with numerous “sudden acceleration” cases and blamed driver error rather than addressing the problem in a reasonable, prompt fashion.

Similarly, there was the fatal accident of Hasaya Chansuthus, a 25 year old woman killed when her 2006 Chevrolet Cobalt went out of control in the rain in Murfreesboro, Tennessee on December 31, 2009. Her car sideswiped another vehicle and crashed into a tree at 70 miles per hour, with no air bag deployment. Initially, GM fought the case based upon Ms. Chansuthus’ blood alcohol level of 0.19, more than twice the legal limit. However, after litigation was commenced, GM changed tactics and quietly settled the case with a confidentiality agreement.

It appears that the problem often occurs due to heavy key chains, which cause the ignition switches to move from the on position to "accessory" or "off." This apparently resulted in cars stalling, losing power for the steering and brake systems, and disabling the airbags. One of the issues that GM will now have in announcing a recall at this late date is the fact that many of the vehicles are now with second or third owners, who may have no connection with GM and may not be notified of the recall.

GM is recommending that all owners of the affected vehicles, until they are modified, take all non essential items off of their key rings to prevent the movement of the switches from “on” to “accessory” or “off”.

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NYC Pedestrians Beware: Deaths and Serious Injuries Are On the Rise

February 3, 2014 by Mark Siesel

In an article last month in the New York Post, it was reported that fatal accidents and serious injuries suffered by pedestrians has become a significant problem, and NYC taxi drivers are often to blame. Early last month, 9 year old Cooper Stock was crossing the street while holding his father’s hand on the Upper West Side. They were struck by a cab driven by Koffi Komlani of Orange County, New York. Cooper was killed in the accident, his father Richard Stock suffered non life threatening injuries, and Komlani, who was making a left turn onto West End Avenue from 97th Street was cited for failure to yield to traffic, paid a fine, but was not criminally charged.

In the last five years, NYC cabdrivers have killed or seriously injured 21 pedestrians or bicyclists. However, unless there is evidence of intoxication or recklessness, generally no criminal charges are filed. Under the New York State Vehicle & Traffic Law, a driver is legally intoxicated if his or her BAC (blood alcohol concentration) is 0.08% or higher. Reckless driving is charged if the driver operated the motor vehicle in a manner which “interferes with the free and proper use of the public highway” or “unreasonably endangers users of the public highway.”

In the first two weeks of 2014, cars struck and killed seven pedestrians in New York City. Last April, cab driver Boubacar Bathily, 53, was charged with fleeing the scene of a personal injury fatal accident when he allegedly struck Taja Johnson at the intersection of West 133rd Street and Eighth Avenue. However, in other serious accidents over the last five years, including on November 9, 2011, when a cabdriver struck a bicyclist at the Hudson River Greenway near 43rd Street; April 14, 2012, in which a cabdriver fatally struck 5 year old Timothy Keith, in Cobble Hill, Brooklyn; and on February 27, 2013, when a cabdriver struck and dragged Amy Fass 40 feet on West 181st Street, no criminal charges were filed.

The same is true in non-fatal accidents, such as in August of 2013, when cabdriver Faysal Himon severed the foot of British tourist Siân Green in Rockefeller Center after he had been in a dispute with a bicyclist, and an accident in September of 2010, when Syed Nazir apparently rear ended a vehicle and then drove into a coffee shop in the East Village, breaking the leg of a 71 year old man.

In an effort to combat this spate of accidents involving pedestrians and bicyclists, newly elected NYC Mayor Bill de Blasio has announced a program called “Vision Zero.” As part of this initiative, there will be an increase in the number of traffic officers, the installation of speed cameras, and the creation of a more highly trained collision investigation team to investigate and come up with solutions to the traffic fatality and serious injury problem in the City.

However, Captain Michael Falcon of the 20th Precinct has a different perspective on the large number of pedestrian accidents and attributes much of the blame to the pedestrians themselves: “You see people, they’re not paying attention…they’re looking at their phones…You see people with babies and there’s two seconds [on the countdown clock], and they’re going…it’s mind-boggling the things that people do.”

There is no question that with the proliferation of cell phones and the unlimited variety of uses that pedestrians use them for, this is a problem with multiple factors which clearly must be addressed, with both drivers and pedestrians paying more attention to what is in front of them.

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K.C. Chiefs Sued By Former Players--Tip Of The Iceberg

January 20, 2014 by Mark Siesel

Last month, five former players for the NFL’s Kansas City Chiefs sued the team, claiming that they are now suffering from brain injuries resulting from repeated concussions they suffered during their playing careers, which the team knew about but failed to warn them about. Alexander Cooper, Christopher Martin, Joseph Phillips, Leonard Griffin and Kevin Porter played all or parts of their careers between August of 1987 and March of 1993, when there was no collective bargaining agreement between the league and the players union.

This past August, the NFL purportedly worked out a settlement of a class action lawsuit brought by 4,500 former players and their families who alleged that the league failed to disclose the long term effects of head trauma to players, including memory loss, dementia, vision disturbance, headaches, behavioral problems, depression and difficulty with activities of daily living. Clearly the NFL was anxious to settle the case, as it has been reported that the league has earnings of approximately 10 billion annually, and by settling the cases now, the NFL could buy peace with its former players, avoid some damaging disclosures as to its knowledge of the dangers players faced from repeated head blows, and show the fans that this multibillion dollar enterprise is concerned about the welfare of its’ employees.

I noted that the settlement is “purported” (as opposed to finalized) because in the last week, a federal judge in the 3rd District of Pennsylvania, the Hon. Anita Brody, determined that the settlement amount was inadequate, particularly in light of the fact that there are a total of 18,000 current or former players that could have potential claims effected by the settlement in the future. Thus, Judge Brody instructed league officials, the players union and attorneys representing both sides to provide hard evidence as to how the settlement amount of $765 million ($675 million allocated to compensation, $75 million for testing and ongoing treatment, and $15 million for research) would sufficiently cover all of the costs involved.

Cooper, Griffin, Martin, Phillips and Porter hope to establish a right to have their cases heard by an arbitrator under the collective bargaining, not in existence when they played. The case was filed in Circuit Court in Jackson County, Mississippi, and is the first case by former players against a specific team.

Last month, things became even more complicated both for the Kansas City Chiefs, and more importantly, the NFL. Cheryl Shepherd, the mother of Jovan Belcher, the late Kansas City Chiefs linebacker who killed his baby’s mother Kasandra Perkins and then 2 days later, on December 3, 2012, shot and killed himself in front of then head coach Romeo Crennel and GM Scott Pioli, brought suit against the team for her son’s wrongful death. Ms. Shepherd was given permission by a local Court to exhume Mr. Belcher’s body so that his brain could be examined for signs of CTE, chronic traumatic encephalopathy, which she alleges could have been due to repeated concussions, and possibly the reason for his depression, mood swings and ultimately the horrific events of December 1 and 3, 2012.

This a truly a crossroads for many ex-players and the NFL. First, the players who have signed on to the settlement agreement must convince a federal judge that the settlement amount is sufficient, not just for the present players seeking treatment, testing and compensation, but for the future claimants that will be seeking the same. From the players point of view, one of the benefits of the settlement, even if possibly inadequate, is not having to prove causation, i.e., that all of the physical, mental and emotional problems they are experiencing are caused by having played professional football and suffering repeated head trauma.
For example, in the case of Jovan Belcher, it is now being reported that he also had some behavioral and violence issues while at the University of Maine, which caused him to put his hand through a window after a dispute with a girlfriend. This is only a small example of a much larger issue, that If players decide to opt out of the settlement, their medical histories, playing careers in high school and college, and other information will also be taken into account by juries, and in some cases, this may lead to a unsolved question as to whether and when the brain injuries were suffered. If the evidence is equivocal, players who have rejected the settlement might go to Court and lose their cases.

Without doubt, the NFL wants no part of a public disclosure of how much the league knew of the dangers of repeated blows to the head, the protocol for concussions, and the causation of CTE. Thus, working out a deal, albeit for an amount greater than the present 760 million, seems to be the better approach for both sides.

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Study Questions The Effectiveness Of Meniscus Surgery

December 30, 2013 by Mark Siesel

A Finnish study recently published in the New England Journal of Medicine questions whether meniscectomies, the surgical repair of the meniscus, are effective in treating torn menisci of the knee. The meniscus is a cartilage of the knee that acts as a shock absorber, along with other parts of the knee including the anterior cruciate ligament. The meniscus is located between the femur, (also known as the thigh bone and which is the largest bone in the leg) and the tibia, which is the larger of the two bones in the lower leg, with the other being the fibula.

In a partial meniscectomy, small incisions are made in the knee to permit an arthroscope (a small surgical camera) to see inside the knee. A tool known as a “shaver” is then used to trim torn meniscus and to smooth the edges of the remaining cartilage. The most common orthopedic surgery in the U.S. is the meniscectomy. Annually, approximately 700,000 arthroscopic surgeries on the knee are performed in this country.

In the study, involving five hospitals and 146 patients ages 35 to 65, they were diagnosed with wear induced meniscus tears, not traumatically induced from sports related injuries or a personal injury accident. All the subjects received incisions and anesthesia. Some in the study actually received the surgery, and others were given “fake surgery”, in which bladeless shavers were rubbed against the outside of the patella (kneecap) to simulate the sensation of having an actual meniscectomy. One year after the study, the group who had the surgery reported the same improvement in the knee as the group that did not have any surgery at all. One of the participating doctors in the study acknowledged the placebo effect, but stated that the placebo effect could not account for the significant results of the study.

Thus, the question is, did the meniscectomy make any difference at all? One issue to be determined is whether the patient’s pain is caused by the torn meniscus, or another factor such as osteoarthritis, which is often seen in patients with tears. Orthopedists often do not know for sure if the meniscus tear is causing the patient pain, and, if the tear is the cause of pain, whether the surgery will alleviate the pain. In 2002, another study in Texas showed that patients who were treated with arthroscopy for osteoarthritis did not have had any better outcomes than those who received “sham surgery.” In 2008, a Canadian study determined that patients who underwent surgery for knee arthritis had similar results to those who were treated with physical therapy and pain medications. As a result, many surgeons stopped performing surgery on patients who were only suffering from arthritis of the knee.

As a result of the above studies, it is certainly a wise decision to seek second and possibly third opinions before undergoing a meniscectomy for a torn meniscus, as orthopedist clearly cannot say for sure that the pain is coming from the tear or if the repair will truly alleviate the pain. In many cases, physical therapy and pain medication may be the better option.

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New York Construction Workers Endangered By New Attacks On Scaffold Law

December 26, 2013 by Mark Siesel

In the late 19th century, construction workers in New York were at the mercy of unscrupulous builders and contractors who would require underage, untrained, and worst of all unprotected workers to ascend to great heights in the construction of the skyscrapers which would soon become commonplace on the New York skyline. Finally, in 1885, through the efforts of the New York State Legislature, unions, and some progressive judges, the “Scaffold Law” was enacted. Recognizing that the burden of safety measures and procedures should not be placed on the shoulders of the workers who had no resources to protect themselves and would be fired if they refused to work in dangerous conditions, the law required that owners and contractors ensure that scaffolds, hoists, ladders and other safety devices be provided to the worker to provide “proper protection.”

Under the Scaffold Law, which is now contained in Section 240 of the New York State Labor Law, if a construction worker on a jobsite is injured as a direct result of the lack of proper safety devices, the owners and contractors are “absolutely liable” for all injuries suffered by that worker. Unless the accident is completely unrelated to the lack of safety devices, or is the result of a “recalcitrant worker” who refused to utilize safety devices available to him or her, the owner and contractors are 100% liable for the injuries suffered by the worker.

For many years now, a coalition of insurance companies, property owners and major construction firms have been utilizing an advertising and lobbying campaign on the New York State legislature to weaken the Scaffold Law. Specifically, they seek to include a comparative negligence standard in the law, which would allow juries to consider whether the worker contributed to his or her accident through his or her own conduct. This, despite the fact that there already is the “recalcitrant worker” defense and plaintiffs must prove that their injuries were “proximately caused” by the safety violation. The coalition argues, despite significant evidence against their arguments, that they are somehow losing money and construction is suffering as a result of claims made and recovered by plaintiffs injured in construction accidents throughout the State. (This claim of financial hardship is particularly hard to accept when balanced against the astronomical rents in New York City in 2014 or for new buyers seeking to purchase a one bedroom apartment in the lower East side, Chelsea or virtually anywhere in the City where prices used to be much more reasonable than on the upper West or East side). Interestingly, though, whenever insurance companies are asked to open their books and prove that they are suffering reduced profits, they claim invasion of privacy and “proprietary information” and refuse to do so.

By diluting the law, however, fatal accidents and serious injuries will undoubtedly increase significantly as there will be shifting of responsibility of safety from the major corporations and companies who can afford to implement these measures to workers who will not complain for fear of losing their jobs. There will also be a greater impact on minority and immigrant workers who more frequently work for non union companies that are less likely to provide the necessary safety equipment, and who will be fearful to say anything to avoid being fired.

It will be very interesting to observe Governor Cuomo’s response to the big business and insurance efforts to reduce the effectiveness of the Scaffold Law, particularly as he considers a run for the White House in 2016 and undoubtedly will be seeking the financial support of many of the same insurance companies and corporations that are behind the attack on a statute that has saved countless lives for well over 100 years.

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