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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Metro North Derailment—What Happened?

December 5, 2013 by Mark Siesel

The tragedy on the southbound Metro North Poughkeepsie train in the Bronx this past Sunday, December 1, 2013, is under investigation by both the National Transportation Safety Board (NTSB), the MTA Police, the NYPD and the Bronx District Attorney’s Office to determine if a crime was committed. The train derailment at a wide turn just north of the Spuyten Duyvil station southbound killed four people and injured more than 70, with several critically injured. When it was first reported on Sunday morning, it seemed particularly shocking, as train accidents and derailments are somewhat rare, and fatalities on trains even less likely. The Federal Railroad Administration conducted a study over a ten year period from 2004 to the present which revealed that train incidents and derailments have steadily declined from 4,503 in 2004 to 1,751 to date this year; derailments have decreased from 2,766 in 2004 to 1,053 in 2013; and prior to the December 1st Metro North derailment, there was only one other train fatality in all of 2013.

The train operator, William Rockefeller, is a 15 year veteran of the company, and has been interviewed by NTSB investigators and the MTA police. It has been reported that speed was clearly a factor in the derailment; the train was traveling at 82 miles per hour shortly before the derailment and the speed limit in that location is 30 miles per hour, as there is a wide turn to the left away from the Hudson River. The brakes had apparently been checked by Metro North personnel at approximately 5:00 AM that Sunday morning and “there were no anomalies found”, according to the NTSB spokesman Earl Weener. Further, the brakes have purportedly been examined post accident and appear to have been in working order.

Mr. Rockefeller claims that when he realized that the train was going too fast into the turn, he shut down the throttle, attempted an emergency braking maneuver and braced for the impact. The New York Times reported on December 4 that some trains have an “alerter” system by which an alarm will sound if inactivity is detected, and if the operator does not respond by pushing a pedal within 15 seconds, the brakes will automatically be applied. Unfortunately, the diesel train involved in the accident was not equipped with the alerter system.

It was reported by the Journal News that blood tests have come back negative for alcohol. Drug tests are pending. A law enforcement spokesperson who spoke on condition of anonymity due to the ongoing investigation stated that the preliminary examination of Mr. Rockefeller’s phone does not show that he was texting or on a call when the train derailed.

The issue of sleep, or the lack thereof, appears to be the most likely cause of the accident. There are reports as of the writing of this article that Mr. Rockefeller may have “dozed off” just prior to the accident, and experienced something similar to what is known as “highway hypnosis”, by which the driver goes into a dream state and is not focused on the road or track ahead of him. It is notable that two weeks before the accident, Rockefeller’s schedule was changed from the night shift to the early morning run. Thus, beginning in Poughkeepsie at 5:04 AM, and starting the train at 5:54 AM, was a significant change in schedule for Mr. Rockefeller. Why this schedule change was made is unknown at this time. A union spokesman for the Association of Commuter Rail Employees claimed that the change in Mr. Rockefeller’s hours could be related to the “circadian rhythm with respect to sleep.” Circadian rhythms involve the body’s “clock regulated mechanisms over a 24 hour period which are affected by light and heat, among other factors.

Ironically and tragically, there is technology known as “positive train control” which could have prevented the derailment. Before the train left the station, a computer would download a “physical characteristics file” which includes all details of the route such as curves, speed limits, and track work, and assisted by GPS and WiFi, the train’s engineer would be advised of any issues or changes. If the train was going at an excessive rate of speed, positive train control would inform the engineer to slow down. If he did not respond promptly, the system would automatically apply the brakes. In 2008, Congress passed legislation mandating positive train control by 2015 in commuter and freight rail lines. The MTA is apparently in the process of developing the system for Metro North and the Long Island Rail Road, awarding almost half a billion dollars to various contractors. However, the system is still more than one year from being mandated, and in fact, the MTA is now requesting an extension until 2018, stating that installing positive train control in 1000 cars and 1,200 miles of track will be a substantial endeavor that can’t be completed by 2015.

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Dog Bite Data Show Pit Bulls To Be Most Dangerous Breed

November 25, 2013 by Mark Siesel

According to the Centers for Disease Control (CDC), 4.5 million Americans are bitten by dogs annually, and half of those bitten are children. One in five bitten, or approximately 885,000, need medical attention for their dog bite injuries, and 50% of those are children. Last year, over 27,000 people were required to undergo reconstructive surgery to treat injuries suffered from dog bites. Children ages 5-9 years are most likely to be bitten.

DogsBite.org reports that on a daily basis, 1000 Americans need emergency medical treatment for a dog bite injury. For a 30 year period from 1982 through 2012, a combination of large “molasser” breeds, including pit bulls, Rottweilers, presa canaries, cane corsos, mastiffs, dogo argentinos and fila brasieros accounted for:
• 79% of attacks causing injuries;
• 72% of attacks on children;
• 85% of attacks on adults;
• 69% of fatal attacks; and
• 77% of maimings.

Pit bulls accounted for almost 60% of fatal dog bite injuries (55 of 88) for a three year period from January of 2006 through the end of December 2008, followed by Rottweilers who were responsible for 14% of these injuries. DogsBite.org also determined that pit bulls are responsible for a large majority of off property attacks that result in deaths—pit bulls were responsible for 81% of these attacks. From 2005 through 2012, pit bulls and Rottweilers were responsible for 73% of fatal dog bite cases recorded. A report from Animal People, which included data from the United States and Canada from 1982 through 2012, shows that pit bulls caused 245 and rottweilers 84 of a reported 497 total fatal attacks.

There are at least three reasons that pit bulls are more dangerous that other dog breeds. Unlike other types of dogs, pit bulls often fail to demonstrate their intention to attack; they have a lethal style of attack of “holding and shaking”; and pit bulls attempt to inflict maximum injury, known as “gameness.”

Generally speaking, dogs that bite are 6.6 times more likely to be male than female, 2 ½ more times more likely not be neutered, and almost 3 times as likely to be chained as unchained.

Under New York State law, in order to recover against the owner of a dog (or the property owner where the dog is kept), you must be able to prove that the dog owner or property owner “knew or should have known” of the “vicious propensities” of the dog. This means that you must be able to prove, for example, that the dog had previously bitten someone else, or demonstrated dangerous tendencies previously, such as growling at other people, showing his or her teeth, jumping on people in a menacing fashion, or showing other behavior which would put the dog owner or property owner “on notice” that the dog was dangerous.

The CDC provides basic safety advice to provide to children (which is also applicable to adults, of course) when approaching an unfamiliar dog, including:
• Not petting an unfamiliar dog without allowing it to sniff you first;
• Not disturbing a dog who is sleeping, eating, or caring for puppies;
• Avoiding direct eye contact with the dog;
• If knocked over by the dog, roll into a ball and be still; and
• Remaining motionless when approached by an unfamiliar dog.

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The NCAA Is Confronted With Numerous Concussion Lawsuits

November 19, 2013 by Mark Siesel

Earlier this year, the NFL paid $765 million to settle a multitude a lawsuits by former players and their families alleging that the league failed to disclose its knowledge that multiple blows to the head led to what is known as “CTE”, chronic traumatic encephalopathy, a degenerative brain disease that causes loss of memory, disturbance of mental functioning, depression, headaches, vision difficulties, and a host of other permanent injuries. The National Collegiate Athletic Association (NCAA) has been hit with a slew of lawsuits in federal courts around the U.S. this year, and in my opinion, the Association faces a much bigger problem than the NFL—here’s why.

When the NCAA was formed in 1906, it was in response to the deaths of 19 young men who had died a year previously, whose deaths were attributed to playing collegiate football. That year, 107 years ago, the mission statement of the Association was: “To protect young people from the dangerous and exploitative athletics practices of the time.” The NCAA’s handbook published in 1933 noted that concussions were dangerous, stating that: “the seriousness of these injuries is often overlooked.” The handbook actually contained references to treating concussions, directing that there should be “Infirmary or hospital treatment until symptom free 48 hours.” Further, there was the following directive: “If symptoms of headache, dizziness, blurred vision, vomiting continue over 48 hours, individuals should not be permitted to compete for 21 days or longer, if at all.”

Sounds very advanced in 1933, doesn’t it? Unfortunately, if we fast forward to the present, somehow the prescience of those Association officials and advisors 80 years ago got derailed by the massive popularity and profits of the sport. Consider these facts. According to the NCAA’s own injury surveillance system, there were more than 29,000 concussions reported in college athletics between 2004 and 2009, over 50% of these injuries in football. The investigation revealed that concussions are increasing by 7% annually. In the last 50 years, more than 500,000 young men have played college football, one of almost 25 varsity sports played in NCAA institutions.

It wasn’t until 2010, a full 104 years after the NCAA came into existence, that a formal concussion policy came into being, despite the knowledge as far back as 1933 that concussions were a distinct possibility from playing football. And what is the NCAA’s present concussion policy? In August of 2010, the NCAA determined that each member school should adopt its own plan for responding to head injuries suffered on the field. The plans had the following four requirements: require that training be provided to the athletes on the signs and symptoms of concussions; require that athletes who demonstrate signs and symptoms of a concussion be evaluated by a member of the school’s medical staff; mandate that athletes who are diagnosed with concussions be kept out of play for the remainder of the day; and require that all players who are diagnosed with a concussion be cleared by a physician before returning to competition.

Without question, the NCAA policy leaves too much discretion and inconsistency in the treatment of these potentially life altering injuries to that of the schools themselves. For example, an athletic trainer is often the school official who determines whether the player has suffered a concussion, rather than a physician. NFL players have the collective bargaining agreement, and agents, looking out for their best interests. College athletes have no agreement, no agents and no one truly looking out for them. It is also harder for NCAA officials to argue, as the NFL attempted to do in fending off litigation by former players, that long term effects of concussions were caused by injuries suffered in high school and college.

The NCAA is now confronted with federal litigation commenced in at least five states, with more to come, no doubt. In a lawsuit filed in the Northern District of Illinois, the allegations by the plaintiffs are that the NCAA was negligent in failing to adopt any formal concussion policy until 2010, and did not include minimum standards in that dilatory policy. One of the Illinois plaintiffs, Adrian Arrington, who played for Eastern Illinois from 2006 through 2009, reports that he lost consciousness several times during his playing days and began suffering seizures while still in school. Presently, Arrington continues to be afflicted with seizures and is afraid to be alone with his three young kids. Former Kansas fullback Christopher Powell, who filed suit in U.S. District Court in Western Missouri last week, alleges that he suffered 4 documented concussions during his collegiate career, including one which resulted in 48 hours of memory loss. In a lawsuit filed in the Eastern District of Tennessee on September 3, 2013, by former Tennessee football players Chris Walker and Ben Martin, along with former N.C. State player Dan Ahern, they seek damages for concussions and medical monitoring.

Some of the recent cases filed are being submitted for mediation with retired Judge Layn Phillips, who brokered the NFL settlement involving 4,500 former players in September of this year.

I can guarantee one thing: NCAA president Mark Emmert and other leaders of the Association will never allow one of these lawsuits to be reach a jury—the NCAA makes too much money for too many people, and they will never allow that gravy train to be jeopardized by a substantial jury verdict, with a definitive potential for punitive damages.

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National Transportation Safety Board Critical of Bus & Truck Oversight

November 15, 2013 by Mark Siesel

The National Transportation Safety Board (NTSB) had determined that four fatal accidents in the last year were due to a lack of oversight by the Federal Motor Carrier Safety Administration (FMCSA), the Transportation Department agency that regulates bus and truck safety. In the four accidents, a total of 25 passengers were killed, and 83 were injured. In contrast, federal statistics for car travel reveal that fatal accidents and accidents with serious injuries have been steadily decreasing for the last several years. Undoubtedly, this is due in no small part to the inclusion of multiple side and front air bags in new vehicles, improved “crush zones” and enhanced braking systems and traction control.

The most recent accident reviewed by the Transportation Board occurred in Murfreesboro, Tennessee on June 13, 2013. A truck operated by a company called H & O Transport struck eight other vehicles that were stopped due to an accident ahead of them. Weather conditions were not a factor. The truck rear ended an Oldsmobile Alero, which caught on fire, killing two passengers in the car, and injuring six occupants of other vehicles. The truck was speeding, on cruise control, and the truck driver had been driving for 80 hours over an eight day period, exceeding the seventy hour federally regulated mandatory limit. Further investigation revealed that H & O Transport had a history of such “hours of service” violations, with no responsive action taken by the FMCSA.

Another crash involved a Mexican owned bus traveling down a mountain in the San Bernardino National Forest in California. The bus rear ended a car, crossed into the wrong side of the road, struck a barrier, and flipped over, crashing into a pickup truck. Seven passengers on the bus and the driver of the pickup truck were killed, and the bus driver and eleven passengers on the bus suffered serious injuries. A post accident investigation showed that all six brakes on the bus were defective and there were other mechanical problems with the bus as well. One month previously, a spot check by federal investigators determined that the bus line had numerous maintenance problems, yet the FMCSA gave the bus company a satisfactory review.

The FMCSA noted that it has closed down more than 100 unsafe truck and bus companies since 2010, in comparison to only one per year for the previous ten years. One of the main issues is that the FMCSA has approximately 350 investigators to examine 10,000 bus companies, and over 500,000 trucking firms. Clearly, that is woefully inadequate and dangerous to the public.

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New York’s Highest Court Clarifies No-Fault Law And Helps Automobile Accident Victims

October 28, 2013 by Mark Siesel

The No-Fault Law is an absolute albatross around the necks of injured people and their attorneys in New York State, and has been so since its implementation in 1974. The basic purpose of the law when it was promulgated was twofold: to allow for the expeditious handling of automobile accident claims which were deemed to meet what is known as the “no-fault threshold”, and second, to root out what was perceived to be fraudulent, non meritorious claims. One of the main reasons that this antiquated law needs to be significantly modified in 2013 is that when the law was placed into effect, there were no MRI’s, CAT Scans, and other radiological examinations which could conclusively determine whether the injured driver or passenger had suffered a “soft tissue” (cartilage, ligament, tendon, spinal disc) injury . Thus, the inclusion of a fracture as a “no-fault threshold” injury, (because this injury could be determined by x-rays), but not, for example, a herniated disc of the neck or back, or a torn tendon or ligament.

Thus, as the No-Fault law presently exists, a fractured toe or pinky automatically meets the requirements of a no-fault “threshold” injury, but a person who suffers a torn tendon, ligament, cartilage or other “soft tissue” injury such as a herniated disc, which is in all likelihood, much more serious than a broken toe (for which there is no treatment), may have no case under the No-Fault law!

The No-fault threshold includes several very specific injuries suffered in motor vehicle accidents, as well as three general types of injuries contained in three sections of the statute which are poorly worded, confusing, and constitute a huge percentage of the litigation instituted by the no-fault insurance companies and their lawyers in contesting No-fault claims. The definitive sections are as follows:

Death;
Dismemberment;
Significant disfigurement;
A fracture;
Loss of a fetus;
Permanent loss of use of a body organ, member, function or system.

The problems arise in interpreting the following three sections: 1) “permanent consequential limitation of use of a body organ or member; 2) “significant limitation of use of a body function or system”; and 3) “a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.” That last section is a true example of legislators gone amok.

The problems arise in the interpretation of many of the terms—for example, what is “significant limitation of use”? Isn’t that different for each person who is injured in an accident? What is a “consequential limitation”? What are the “material acts which constitute a person’s usual and customary daily activities”? As can be seen, the vague and inconsistent terminology utilized by the drafters of the No-Fault Law was fraught with difficulty from the inception of the statute, almost forty years ago.

Another problem that has arisen, and which brings us to the point of this article, is interpretations of the law by judges (seemingly supportive of the insurance industry) adding in requirements which were never part of the original statute, and which make claims and cases even more difficult to settle or win in Court. The Ramkumar decision is a classic example of this. In this case, the plaintiff was cut off from treatment by his own no-fault insurance company after only five months of treatment, despite the fact that he had suffered a torn meniscus in the accident in question, for which he required surgery. The lower Court dismissed his case, stating that he had not properly offered documentary evidence and a sufficient explanation for why he didn’t continue treatment after his no-fault insurance company had terminated his benefits. Essentially, the lower Court ruled that after the no-fault carrier booted him from coverage, Mr. Ramkumar was required to either continue treatment with his health insurance company, or if no health insurance was available, provide a “reasonable explanation” why he didn’t pay for his treatment out of his own pocket. Of course, nowhere in the antiquated No-Fault law is this requirement included. Fortunately, the majority in the Court of Appeals noted that although a plaintiff is required to have some explanation why he stopped treatment for his injuries after only five months, not having health insurance nor money to pay for medical treatment out of his pocket WAS a reasonable explanation. Further, the Court stated that the case should not have been dismissed because the evidence showed that the treating surgeon found that the meniscus permanently lost stability due to scar tissue, which Mr. Ramkumar will have for the remainder of his life.

The other irony here is that the no-fault carriers send injured victims of car accidents to no fault “IME”S (Independent medical examinations, which are anything but independent) within weeks, and sometimes days, after car accidents, to be conducted by “examiners” who are paid for by the no-fault insurance companies for a specific purpose—to find that there is nothing wrong with the injured person, thus permitting Allstate, State Farm, Geico, Progressive et. al. to stop paying for treatment. Of course, this is exactly what happened with Mr. Ramkumar, although he was fortunate enough to have obtained five months of treatment before thrown off coverage by the insurance carrier he was paying premiums to.

The moral of this story is simple. If you really want to root out fraud, call, fax, email or text your local legislator (if you are fortunate enough to have a cell phone number for the legislator) with a simple message. The No-fault law is unfair. It is outdated. When it was written, there was no means to determine if someone had suffered a “soft tissue” injury, but in case you missed it, now we have MRI’s, CAT Scans, Bone Scans, EMG’s, and numerous other tests for these injuries. The No-Fault law protects the car insurance companies at the expense of innocent victims of automobile accidents. If you want to examine fraud, take a look at no-fault exams by insurance company doctors, who perform dozens of three minute “exams” each week on injured people with the conclusions in their reports written before the person walks into the examiner’s office.

Hopefully, if enough people do this, we will finally get traction with Governor Cuomo, who does not believe this is a problem, apparently.

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