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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LA Jury Finds Concert Promoter Not Responsible For Michael Jackson’s Death

October 4, 2013 by Mark Siesel

After five months of a grueling, hotly contested legal battle, on October 2, 2013, a Los Angeles jury, comprised of six men and six women, found concert promoter AEG not liable in the June, 2009 wrongful death of pop icon Michael Jackson. Katherine Jackson, the late pop singer’s mother, had sued AEG Live in 2010 in a multi-million dollar lawsuit. Her contention was that AEG had hired Dr. Conrad Murray, the physician who was convicted in November of 2011 of involuntary manslaughter for infusing Jackson with the surgical anesthetic Propofol, which led to Jackson’s drug overdose on June 25, 2009, just days before Jackson was due to commence a mammoth world tour dubbed “This Is It.” AEG argued that they had no way of knowing of the dangerous Propofol infusions, and that Jackson was addicted to a variety of drugs which was the primary factor in his death.

Jackson’s mother alleged in her legal papers that AEG was negligent in “hiring, retaining, or supervising Murray”, and that this was a substantial factor in the 50 year old pop singer’s untimely death. A significant piece of evidence in the case was the contract between AEG and Dr. Murray in which he was paid a whopping $150,000 per month to keep Jackson healthy enough to perform on an extended tour. There was clearly substantial evidence to show that Jackson had “doctor shopped”, seeking a physician who would supply him with regular doses of Propofol (which he referred to as his “milk”) to combat chronic insomnia and allow him to withstand the rigors of touring.

The jurors deliberated for approximately 13 hours over 3 days before reaching their verdict. Jackson’s attorney, Brian Panish, had suggested to jurors that they award between 1 billion and 2 billion dollars in damages to the Jackson family, to compensate his mother and children for the loss of his potential earnings from the age of 50 until the age of approximately 66 when he would allegedly stop touring. This included a specific request for an award of $85 million to each of Jackson’s three children and $35 million to his mother Katherine. However, it is tough to argue on the one hand that Jackson was in such horrible and frail physical condition, as Jackson's attorneys did (Even the name of the tour, 'This Is It", contradicts the claim that Jackson intended to tour for another 16 years), and also claim that Jackson was now going to tour much more extensively than he had previously until he reached retirement age--the jury must have seen that contradiction. Panish did concede in his closing argument that the King of Pop’s own conduct contributed to his death, but asked that the jury limit Jackson’s culpability to 20%.

Unlike in New York, where a wrongful death trial has a jury of 6, with an agreement of five of six jurors necessary to reach a verdict, in Los Angeles, a civil jury is comprised of 12 jurors, with an agreement among nine required for a verdict. The trial was bifurcated, meaning that in order for the jury to have found that AEG had to pay damages to the plaintiffs, they first had to determine “liability”, or legal fault, against AEG, which they obviously decided was not supported by the evidence. Undoubtedly, the jury rejected Jackson’s claims of being a victim, as exemplified in some post verdict comments by juror Kevin Smith: “Michael Jackson was used to getting his way…he could pretty much get what he wanted…anybody that said no, they were out of the mix and he’d find someone else.”

Jackson’s attorneys have indicated that they plan to appeal the verdict. In my opinion, that appeal has little chance of success, as it was apparent from the inception of this case that it would be very hard to prove that AEG could have known that Dr. Murray was performing infusions of a surgical anesthetic in Jackson’s home on a daily basis, and that they would have supported this tremendously dangerous conduct had they been aware of it.

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US Department Of Transportation Sued Over Backup Cameras

September 26, 2013 by Mark Siesel

This morning, the United States Department of Transportation (DOT) was sued by Public Citizen and several consumer advocate groups for a long standing delay in implementing a 5 year old law mandating the revision of rear visibility standards in new vehicles. The lead plaintiff, Greg Gulbransen, claims that if his vehicle had been equipped with a backup camera, this would have saved the life of his infant son, who was killed in 2002 when Mr. Gulbransen backed his vehicle over his son in his driveway.

In 2008, Congress passed a law signed by then President Bush which required the Department of Transportation to revise rear visibility standards by February of 2011. The Public Citizen lawsuit alleges that the DOT has been intentionally delaying implementation of those standards, with tragic results. The National Highway Traffic Safety Administration (NHTSA), a division of the Department of Transportation, estimates that “backover” accidents result in 292 deaths and approximately 18,000 injuries per year. Almost half of the fatal accidents involve children younger than five years, as the infants are in what is known as the “blind zone”, an area behind the vehicle that cannot be viewed by an average driver while seated in the driver’s seat and looking in the rear view mirrors.

NHTSA estimates that if rear view cameras were installed in all new vehicles, the cameras would save 95 lives and prevent more than 7,000 injuries annually. The cost of a backup camera is between $58 and $203 per vehicle. Approximately 70% of all new vehicles are either equipped with the cameras or have them as an option. For an article which describes blind zones, and compares the blind zones for many makes and models of cars, read “The Danger of Blind Zones”, published by Consumer Reports. To give an example, the best blind zone for a small four door sedan (with a driver at an average height of 5’ 8”) is found in a 2011 Chevrolet Cruze, at 9 feet, and the worst is in a 2011 Ford Fiesta, which has a blind zone totaling 19 feet.

The DOT has repeatedly postponed the deadline for enforcement of the legislation, from February of 2011, to December of 2011, to February of 2012. Presently, the agency intends to issue a final rule by January of 2015. However, the plaintiffs, which include the nonprofit groups Consumers Union of United States, Kids and Cars, Inc. and Advocates for Highway and Auto Safety, contend that had the law been implemented as required, countless lives would have been saved and thousands of injuries averted.

The Public Citizen lawsuit requests that the Court direct the USDOT to issue a mandatory rule within 90 days. In researching this story, I found an article published by Consumers Union almost seven years ago (on November 14, 2006) urging Congress to enact federal legislation to “prevent unacceptable death and injury toll or children.” In this instance, unlike the thoroughly ineffectual Congress we have at present, Congress did enact legislation in 2008, and five years later, the Department of Transportation is for some reason delaying full implementation of this legislation, which could lead to a universal requirement for backup cameras in all vehicles. With all the lives that have been lost since ‘08, and with such a cheap cost per vehicle, that is an outrage.

Despite the need for backup cameras, the best advice remains to get out of your vehicle before backing up whenever there is even the remotest possibility that infants (or pets) are behind the car in the “blind zone.”

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Michael Jackson Wrongful Death Lawsuit Enters Final Stages

September 17, 2013 by Mark Siesel

The wrongful death trial of Michael Jackson has been an extensive five month battle in an L.A. courtroom between Katherine Jackson, the mother of the late “King of Pop”, and AEG Live, the concert promoter of Jackson’’ ill fated “This is It” tour which had been scheduled to commence in the summer of 2009 days after Jackson died of a Propofol overdose.

In November of 2011, Jackson’s personal physician Conrad Murray was convicted of involuntary manslaughter in the 50 year old pop singer’s death, based on evidence that Dr. Murray had caused Jackson’s fatal overdose from the surgical anesthetic Propofol. Propofol is a commonly used anesthetic, but only in a controlled environment, such as a hospital where the vital signs of the patient can be monitored. In Michael Jackson’s case, Murray was infusing the singer in his home with no staff to assist him, a medical malpractice disaster waiting to happen.

In the lawsuit, the 83 year old Katherine Jackson contends that AEG hired and supervised Dr. Murray (at the very lucrative rate of $150,000 per month) with the sole purpose of assuring that Jackson would be ready to perform when the tour began. Ms. Jackson also claims that AEG knew that Murray was administering Propofol in an unsafe manner, knowing that there was a substantial risk to Jackson’s health and that the risks could potentially be fatal.

Lastly, Ms. Jackson alleges that AEG created a conflict of interest by paying the debt addled doctor a substantial monthly fee with the understanding that he would be fired if Jackson was unable to perform, thus causing Murray to take unnecessary and unsafe medical decisions which adversely affected his judgment. AEG has undoubtedly brought up the well reported claims that prior to Jackson’s death, he had significant drug problems, using a wide variety of narcotics and other medications for insomnia and other medical issues. Further, Jackson was certainly capable of making his own decisions about his own health, and was in a position to fire Murray himself if he believed that Dr. Murray was not acting in his best interests.

AEG attempted to have the case dismissed this past week, arguing that the company’s executives did not know of the dangerous Propofol infusions administered to Jackson by Dr. Murray. However, L.A. County Superior Court Judge Yvette Palazuelos denied the dismissal motion, stating that substantial evidence had been presented during the trial that AEG “knew or should have known” that Dr. Murray presented an “undue risk of harm” to Michael Jackson.

Nonetheless, Judge Palazuelos did dismiss the case against AEG CEO Randy Phillips and co-CEO Paul Gongaware, holding that they were not personally responsible for any actions or inaction the company took in the Jackson matter. Katherine Jackson is suing AEG for millions in her son’s wrongful death when ironically, due to proceeds from the “This Is It” movie, recordings, and profits from his purchase of the Beatles catalogue, the Jackson estate is now worth several times more than Jackson ever earned in his lifetime, as documented in a CBS “60 Minutes” story this past weekend which interviewed his long time agent Tony Branca.

Closing arguments in the case will begin this week, following rebuttal testimony presented by Jackson’s attorneys to contest AEG’s “lack of knowledge” defense. The verdict is truly hard to predict, due to the clear complicity of Conrad Murray, who certainly violated the Hippocratic oath to “do no harm” (but who was convicted in 2011 and is serving his sentence presently), contrasted with the evidence that AEG was undoubtedly exerting enormous pressure on Murray to ensure that Jackson would meet his contractual obligations, combined with the obvious question as to Jackson’s own culpability for his substance abuse and retention of doctors who would do what he requested irrespective of consequences.

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Family of Chappaqua Teen In Fatal MVA Fights Distracted Driving

June 4, 2013 by Mark Siesel

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

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

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

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

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

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

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

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Westchester County Settles Playland Wrongful Death Claim

May 23, 2013 by Mark Siesel

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

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

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

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

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

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First Of Many Lawsuits From Carnival Triumph Disaster Filed In Galveston

March 11, 2013 by Mark Siesel

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

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

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

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

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

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

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

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New York’s Unfair Medical Malpractice Statute

March 6, 2013 by Mark Siesel

Medical%20malpractice%20image.jpgUnder New York State’s medical malpractice statute of limitations, if you have been injured due to the negligence or “departure from good and accepted medical practice” of a physician, hospital or other medical provider in New York, in general, you must commence a lawsuit against that negligent provider within 2 and one half years of the date of your last treatment with that provider. The statute is more onerous if the defendant is a public entity such as a county run hospital. If the negligent party is a public entity, then a notice of claim must be filed within a scant 90 days of the negligence and a lawsuit filed within one year and 90 days of the doctor or hospital’s actions that caused your injuries.

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

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

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

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

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

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National Teen Safety Week Highlights Risks For Teenage Drivers

October 18, 2012 by Mark Siesel

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

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

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

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

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

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

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

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

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

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

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Increases In NYPD Abuse And False Arrest Cases Major Cost To NYC

September 11, 2012 by Mark Siesel

According to an article in the Bloomberg News last week, the City of New York will pay approximately $735 million in 2012 in settlement or jury verdicts as a result of medical malpractice claims, excessive force and false arrest cases against the NYPD, and claims involving collisions with NYC vehicles or due to improperly maintained roadways. This article focuses on the police abuse cases. In my opinion, the tremendous volume of cases against NYC for excessive force and false arrest is not at all surprising, as we have seen an alarming trend of improper police conduct in New York City in recent years. For example, in 2010, the City was forced to settle a class action lawsuit contending that the Department of Corrections illegally strip searched 100,000 inmates upon incarceration for misdemeanors or lesser charges. The City paid a whopping 33 million to resolve this class action litigation.

Further, in 2011, the NYC paid $15 million to resolve a class action lawsuit instituted in 2005 in which 22,000 New York residents were improperly charged with loitering in violation of a regulation which was determined to be unconstitutional thirteen years earlier! There has been an ongoing increase in police abuse cases for several years, with a 46% increase in claim payouts from 2006 to 2010. In 2010, the City of New York paid $136 million in jury verdicts or settlements in false arrest, excessive force or other abuse cases. In 2010, there were 2,657 civil rights claims filed against the NYPD and other City departments.

In other areas of tort litigation, the City of New York has taken proactive measures to improve the safety of the City and its citizens (and to a great extent, protect the City from claims and lawsuits). For example, in 2003, the New York City Administrative Code was amended to include a provision which mandates that adjoining landowners maintain and repair public sidewalks. According to Bloomberg News, this regulation saves the City of New York approximately $40 million annually in trip and fall cases. Similarly with regard to medical malpractice cases, the City created a special legal unit to review practices and analyze procedures. Apparently, this resulted in a 17% reduction in claims costs from 2006 to 2010, with the City paying $134 million in medical malpractice claims against the 11 public hospitals in 2010.

The City contends that in a large majority of cases, their police officers “did the right thing, but from a risk management point of view we want to settle meritorious claims…” Thus, City officials argue that they made a “business decision to settle, rather than run the risk of a much greater tort judgment against us.” However, this defense can hardly explain the conduct of NYPD officers in arresting 10,000 citizens on charges that haven’t been valid for almost 15 years, or strip searching 100,000 people on lowly charges such as disorderly conduct or trespass, which are often not even crimes but rather violations, the equivalent of a traffic infraction. If the City would focus its efforts on enhanced training of its officers and on proper police procedure, undoubtedly the trend of increased brutality and false arrest cases could be reversed.

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New York Car Accidents—Allstate And State Farm’s Policy of “Deny, Delay and Defend”

July 10, 2012 by Mark Siesel

This past week, CNN anchor Anderson Cooper reported on what personal injury attorneys around the country have known for the last several years: Allstate and State Farm Insurance Company have a policy of refusing to pay on legitimate claims for pain and suffering, medical and hospital bills, and lost earnings, particularly in what are known as “low speed impacts” in which the injured car accident victim’s car does not have significant property damage. In this two part report beginning on July 3rd on CNN, the strategy of “Deny, Delay and Defend” is laid bare for exactly what it is, an effort by multi billion dollar companies to avoid payment of claims on the premise that there is fraud, when the true rationale is to maximize profits for corporations which rake in huge monies while doing their level best to avoid showing their profit and loss statements.

Simply put, the strategy is deny: we weren't at fault because your client stopped short or didn't go to the hospital right away; delay: we need several months to evaluate your claim by doctors, therapists, bio-mechanical engineers, or “trauma experts” (a new tactic in which insurance company adjusters have records reviewed by emergency room physicians who has never examined the plaintiff but determine that they could not have been injured in the accident because they didn't complain of a particular injury right away); Lastly, defend: “We are offering you $7,500 and you have until this date to accept. If you do not accept by that date, the offer is withdrawn and will not be made again.”

As a personal injury attorney who has been litigating cases against Allstate and State Farm for over 25 years, one of the classic tactics that these corporations use, particularly in low speed impact cases, is to take the cases to trial, make posters out of the damage photographs, and show them to a jury with the exclamation: “How could this minor accident have caused all of those injuries/this surgery/that amount of treatment?” The fact is, and orthopedists and neurologists will readily acknowledge this, that cars are manufactured now so that there are accidents with substantial damage to the cars and the occupants walk away without any injury, (particularly since the advent of air bags for both front and side collisions) and many crashes in which there is almost no visible damage (due to the improved design of cars, or the point of impact between the vehicles, or damage not visible to the undercarriage of the car, for example), where the previously uninjured person now has severe back or neck pain requiring long term treatment and sometimes surgery.

The report also discusses a book written by Davis Berardinelli, called “From Good Hands To Boxing Gloves”, which illuminates the policy of treating most minor accident claim victims as frauds, and the effort to pay pennies on the dollar on legitimate claims to cause personal injury attorneys to decide that claims against Allstate or State Farm insureds without definitive fractures or noticeable property damage are not worth the expenditure in time or money. As Mr. Berardinelli notes in an interview, if they can save $1,000 on one million claims, “you can do the math.” One ironic story in the report was of a former Allstate claims adjuster who used to believe the company line that virtually all minor impact victims were malingerers—that is, until she was an accident victim herself and now has severe neck and back pain with a car that was barely damaged.

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NTSB Issues Report On March 2011 Bronx Fatal Bus Crash

June 11, 2012 by Mark Siesel

The National Transportation Safety Board (NTSB) released its final report this week concerning the causes of the fatal bus crash in the Bronx last year that killed 15 passengers and seriously injured 18 others. On March 12, 2011, a charter bus that was returning from the Mohegan Lake Casino in Connecticut to Chinatown on Route 95 in the Bronx lost control, flipped over, struck a guardrail and then a stanchion which held a traffic sign. The impact sheared off the roof of the bus, causing the fatalities and severe injuries to the passengers.

Preliminary investigation determined that the driver, Ophadell Williams, was operating the bus at 78 m.p.h just before the crash. The speed limit in that location of Route 95 is 50 m.p.h. Williams also claimed that before the fatal crash, the bus was “clipped” by a truck, but this could not be confirmed, and there were several reports from other truck drivers who witnessed the early morning crash that Williams appeared to be falling asleep as the bus was veering onto the shoulder of the road.

Williams was indicted on several charges of manslaughter and criminally negligent homicide later in 2011 and is being held on $250,000 bail at Rikers Island. Investigators further learned last year that Williams had a criminal record, his driver’s license had been suspended 8 times, and he had been fired from previous employment with the MTA and another bus company. World Wide Travel, the company that operated the bus, was apparently unaware of Williams’’ background as federal law only requires states to provide charter bus companies with the last three years of a commercial bus driver’s driving history.

The recommendations by the NTSB are as follows:

1. States would now require an onboard safety monitoring system which would permit the charter bus company to detect unsafe driving by its drivers. This would have permitted Williams’ employer to send a warning before the bus left the travel lanes of 95 and struck the guardrail;

2. States would be required to maintain 10 years of a commercial bus driver’s history, rather than the 3 years it presently requires. Had World Wide Travel received more substantial information on Mr. Williams’ criminal and employment background, it seems clear he would not have been permitted to operate any buses at any time;

3. That the National Highway Traffic Safety Board develop equipment which would limit the top speed that buses, motor coaches and trucks can travel at—Williams was operating the bus at 78 m.p.h. and investigation revealed that even at impact, the bus was traveling at 64 m.p.h.;

4. That safety equipment protocols for charter buses such as seat belts and shoulder harnesses be reassessed. Presently, this equipment is not federally mandated for bus passengers, (only drivers) but clearly some of the passengers who were either killed or seriously injured would have had a much better chance of surviving or being less seriously injured if they weren't thrown from their seats;

5. A directive that the American Association of State Highway and Transportation officials work on developing high performance barriers on new construction and rehabilitation projects to improve guardrails. The barrier surrounding the stanchion in this crash was constructed to prevent only cars, and not commercial vehicles, from striking the support post.

As stated by the chairwoman of the NTSB, Deborah Hersman: “Together, fatigue and speed are an especially lethal combination…[this was] a deadly crash that did not have to happen.”

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NJ Judge Rejects Concept Of “Electronic Presence” In Texting Accident

May 29, 2012 by Mark Siesel

In a case believed to be the first of its kind in the United States, a New Jersey judge ruled on May 25, 2012 that a woman who was texting her boyfriend when the boyfriend was involved in an accident with a motorcycle and seriously injured a husband and wife is not liable for their injuries. On September 21, 2009, Shannon Colonna was texting her boyfriend, Kyle Best, 18, who was driving a Chevy truck in Mine Hill, New Jersey. Best was in the process of returning one of Colonna’s texts when his truck struck a motorcycle occupied by David and Linda Kubert. In the car accident, David Kubert had his left leg torn off above the knee, and Linda Kubert suffered injuries to her left leg which ultimately led to amputation.

David Kubert described that they observed Best holding the steering wheel with his elbows and with his head down. The Chevy truck swerved across a double yellow line and struck the Kuberts’ motorcycle head on. Mr. Kubert saw his left leg torn off and Ms. Kubert observed that the bones in her left leg were coming out of her pants.

The Kuberts’ lawyer sued both Mr. Best and Ms. Colonna, arguing that although Ms. Colonna was not in the vehicle at the time of the accident, she was “electronically present” and knew that Mr. Best was driving while responding to her texts. Phone records showed that Colonna and Best had texted each other 62 times the day of the accident, including just prior to the impact. At a deposition during the “discovery” stage of the case, however, Ms. Colonna denied any knowledge that Mr. Best was driving as he was answering her text messages.

In the criminal case, Best pled guilty to distracted driving, acknowledging that he was using his cell phone and responding to a series of text messages he received from Colonna around the time of the accident. The judge ordered Mr. Best to speak at 14 high schools about the dangers of texting while driving. He must also pay $775.00 in fines. No action has been taken against Best’s driver’s license at this time.

38 states across the Unites States have banned texting while driving, including New York in 2011.

State Superior Court Judge David Rand agreed with the defense that Ms. Colonna could not be held legally responsible for the accident and horrendous injuries suffered by the Kuberts. It appears that Judge Rand determined that his role is to interpret the existing law, not create new laws, and that if state legislators want to ban sending texts to drivers, they will have to pass a law to that effect. Clearly, however, the trend is moving in the direction of more enforcement against distracted driving, and the next logical step may be to institute liability against those who cause distracted driving as well as those who commit the violation. However, in this case, the bottom line is that if Best had simply waited until he stopped driving to respond, or even pulled over, the accident would never have occurred.

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Fatal Roll-Up Gate Accident In Brooklyn Claims 12 Year Old

May 14, 2012 by Mark Siesel

Last week, there was a fatal accident in a Brooklyn apartment complex partially owned by ex- MLB first baseman Mo Vaughn, when 12 year old Yakim McDaniels was killed while playing “chicken” on a roll-up gate. Apparently, McDaniels and two other teens were riding the gate as it proceeded upward. The two other boys jumped off, but McDaniel’s hand got caught in the gate, he could not dislodge it, and his head and upper body was forced into the mechanism, fracturing his neck and killing him.

The gate has a sensor by which it will not continue downward if pedestrians are underneath it, but nothing to prevent it from rising. McDaniels suffered severe head trauma and had to be cut out of the gate before he could receive medical treatment. He was taken to Brookdale Hospital where he was pronounced dead within hours of the May 6, 2012 accident.

Residents of the area interviewed shortly after the accident stated that they had complained to Omni New York on numerous occasions that kids were playing on the gates, to no avail. Supposedly, management had set up a basketball program on the premises but it was closed by management due to tenant complaints about noise. Omni office manager Arleigh Hardy noted that there is a playground on the property, but acknowledged that it was for younger children. She stated that it was a “tragic accident”, and claimed that the owner will pay for funeral expenses.

There is a possibility that the family will sue for the wrongful death of Yakim McDaniels, and pain and suffering (if it can be proven) before he died. When someone dies almost instantaneously, the only way to prove “conscious” pain and suffering is to obtain witness testimony that the fatally injured person either complained of pain, or even moaned in pain, before they died. Even a few seconds of conscious pain and suffering can be compensable.

However, this will be a difficult case to establish negligence in due to the issue of what is called “comparative negligence.” Comparative negligence is the responsibility of the person who is suing for injuries for causing their own injuries. (in this instance, a family member would have to be appointed to be Yakim’s legal guardian for a lawsuit to proceed). If however, management received numerous letters and complaints documenting the dangerousness of the activity and failed to prevent it from continuing, there is a possibility that there could be a finding of negligence against Omni New York as well.

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Fatal Elevator Accident Due To Disabled Safety Device

March 1, 2012 by Mark Siesel

After an investigation by the New York City Department of Buildings, a determination has been made that the December 14, 2011 fatal accident at 285 Madison Avenue in Manhattan involving 41 year old advertising executive Suzanne Hart was caused by a disabled safety circuit. The tragic elevator accident occurred at approximately 10:00 am last December 14th, when Ms. Hart attempted to board elevator 9 at 285 Madison Avenue in Manhattan on her way to work at Young & Rubicam, where she was employed as a director of new business. When Ms. Hart was partially in the elevator, the car suddenly lurched upward, and her body was pinned in the elevator shaft between the first and second floors of the building.

There were two passengers on the elevator when the fatal accident occurred. They were trapped in the elevator and required rescue workers to free them from the car. Transel Elevator Inc. had been servicing the 13 elevators in the building pursuant to an agreement with the owners of the building, Young and Rubicam. On December 11, 2011, two of the Transel employees disabled a safety circuit on elevator number 9 in order to perform upgrade work on the elevator. However, in a clear safety breach, the maintenance workers forgot to enable the circuit before placing the elevator back in service.

Apparently video depicts the two Transel employees leaving the building at 9:55 am on December 14th, and Ms. Hart stepping onto the elevator one minute later. The car apparently lurched upward with its doors still open. It has been determined that the workers bypassed the door safety circuit with a jumper wire.

Robert D. LiMandri, the Commissioner of the NYC Building Department, stated: “These workers and their supervisors failed to follow the most basic safety procedures, and their carelessness cost a woman her life.” The three safety violations according to city officials were:
1. Failing to re-enable the safety circuit after completing the upgrade;
2. Failing to post a sign that the work was being performed on the elevator; and
3. Failing to contact the Buildings Department to schedule a mandatory inspection prior to placing the elevator back in service.

Transel’s license has been suspended pending a hearing, where it is possible that the license will be permanently revoked. It faces 23 violations with minimum penalties of $117,000. Transel reports on its website that it services 2,500 elevators in New York City. There are approximately 60,000 elevators in the entire city and there were 43 reported accidents in 2011. After the Hart accident, the Buildings Department performed an inspection of 658 elevators in 169 New York City buildings, 370 of which were maintained by Transel. 135 violations were issued at that time, with 71 issued to Transel.

Since the accident, the building manager replaced Transel with PS Marcato to maintain the elevators in the building. Transel previously had many high profile clients including the Graybar Building, the BMW Building, Carnegie Hall, the Hippodrome Building and the Plaza Hotel. No lawsuit has been filed by the estate of Suzanne Hart as of the date of this article, but that certainly seems likely, particularly after the damning results of the Buildings Department investigation.

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Putnam County Bar Owner Sues For $60 Million In False Arrest Case

February 22, 2012 by Mark Siesel

Raymond Knox, the former owner of The Paddock in Patterson, New York, has commenced a federal lawsuit claiming false arrest and malicious prosecution arising out of a tragic fatal DWI accident case on Super Bowl Sunday in 2007 involving his bar manager. The background is that on February 4, 2007, Sandra Longchamps, an off duty bar manager at The Paddock in Patterson, New York, allegedly was served between 12-14 drinks, and then was a driver on Route 22 involved in a head on collision with a minivan operated by 34 year old Kirsten Henry. Ms. Henry’s husband and three children were passengers in the car. Both Longchamps and Ms. Henry died in the accident, and Henry’s three children and husband suffered serious injuries but survived.

Knox was convicted in a bench trial in Patterson, New York before Judge John King in March of 2008 of the misdemeanor charges of allowing Longchamps to be served alcohol when she was visibly intoxicated pursuant to New York State General Obligations Law Section 11-101, and allowing gambling in the tavern. The trial included testimony by the County’s toxicology expert Betsy Spratt, who reported that the autopsy results showed Ms. Longchamps’ blood alcohol concentration (BAC) to be between a 0.34 to 0.41%, several times the legal limit of 0.08%. Victim impact statements were read to the Court by members of the Henry family, and Mr. Knox was sentenced to nine months in jail.

Mr. Knox served approximately five months of the nine month sentence and was released for good behavior. In 2009, the Appellate Term in the 2nd Department (which covers local Courts in Putnam County and other lower Hudson Valley Courts, among others), reversed the conviction. Knox’ attorney had claimed that Longchamps was in fact drinking at another establishment that night, the Alpine Restaurant, and that the investigating officer, Sgt. Timothy Gannon of the Putnam County Sheriff’s Office, did not investigate this information. The attorney representing the County and Sgt. Gannon claims that Longchamps was never at the Alpine Restaurant, (he asserts that witnesses never saw Longchamps at the Alpine that evening), states that Knox was not denied any rights under the U.S. Constitution, and claims that Officer Gannon had probable cause to arrest Mr. Knox.

The New York Court of Claims, which has jurisdiction over all cases against New York State, awarded Mr. Knox $150,000 in 2011 for being “unjustly convicted and imprisoned.”

In the federal lawsuit, Mr. Knox claims that he never would have been arrested if the Putnam County Sheriff’s Office conducted a proper investigation, including speaking with all potential witnesses from the Paddock and the Alpine. He is seeking compensation for the five months that he was falsely arrested and imprisoned. Mr. Knox has also claimed malicious prosecution. In order to be successful on the malicious prosecution claim, Mr. Knox must prove that there was no probable cause to commence the lawsuit against him, that the lawsuit was commenced with malice, that the case was dismissed, and that he has suffered damages as a result of the prosecution.

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Wrongful Death Lawsuits Filed In Italian Cruise Ship Disaster

February 6, 2012 by Mark Siesel

Several of the surviving passengers of the Costa Concordia cruise ship have filed a wrongful death lawsuit in Miami, Florida, where the parent corporation of Costa Cruises, Carnival Cruise Lines has its headquarters. According to the lawyers for the plaintiffs in the Miami lawsuit, the case could soon be amended to include hundreds of plaintiffs, seeking compensatory and punitive damages in an amount of $450 million dollars. Punitive damages are only awarded when there is proof of egregious, outrageous conduct on the part of defendants, and are not only difficult to obtain but not covered by insurance, certainly a concern for any corporation.

The lawsuit filed in Florida seeks damages on at least four causes of action, maritime negligence, gross negligence, intentional infliction of emotional distress, and negligent retention. The last cause of action is based on the fact that it is alleged that Costa Concordia was negligent in continuing to employ someone, Captain Francesco Schettino, who was not competent to meet the duties and obligations as the ship’s captain.

As most of the world knows by now, on January 13, 2012, a cruise ship carrying 3,000 passengers and over 1,000 crew members crashed into rocks and rolled onto its side off an island on Italy’s Tuscan coast. 16 people died and at least 16 are still missing. It is rumored that the ship’s captain Schettino diverted from the ship’s intended path to allow one of the crew members to wave to family members onshore, at which time the ship struck rock and flipped onto its side. Schettino apparently abandoned ship prior to the passengers disembarking and is now being held on house arrest for causing the fatal accident and abandoning the ship.

There are some major difficulties with the lawsuit against Carnival, however. To begin with, the fine print on the tickets purchased and signed by the passengers has a “choice of forum” clause which requires that the lawsuits be filed in Italy. This provision is particularly onerous for several reasons, including the financial and practical problems of commencing a lawsuit in Genoa, Italy. (where Costa Concordia is based). Italian law requires that plaintiffs post a judiciary tax that is a certain percentage of potential damages, and even more significantly, the Costa ticket contains a clause that its liability for death or injury to a passenger is limited to approximately $71,000, an amount which pales in comparison to the amount that could be awarded to the family member of the decedent of a fatal accident in the United States. In the United States, a wrongful death claim could potentially include damages for pain and suffering, loss of parental guidance, and pecuniary loss, which could be huge if the person killed had a substantial income and was supporting a family.

Another issue with commencing lawsuits in Florida or other U.S. forums is that crew members likely have contracts which require that they first submit to arbitration before instituting litigation. Traditionally, arbitration awards, issued by purportedly objective judges, are much smaller than amounts decided upon by juries, who would be much more likely to consider the emotional and devastating impact of the injuries to passengers and their surviving family members.

In an effort to ward off litigation, Costa Concordia has offered the passengers a sum of 11,000 euros, or $14,400, as total compensation for all personal injury, property and financial damages, which is without question a paltry amount, particularly for those who were grievously injured or to family members of those who died.

Another lawsuit, filed by crew member Gary Lobaton, was commenced in an Illinois Court on January 26. This suit alleges that Costa Concordia was negligent due to an unsafe evacuation of passengers and crew and seeks 100 million in damages. The Lobaton lawsuit is seeking class action status on behalf of all passengers and crew members. If past history is any guide regarding the pending cases, maritime experts note that the U.S. Supreme Court has upheld the choice of forum clauses in the past, which is obviously not good news for plaintiffs and their attorneys. If the Costa cruise had touched port in any U.S. city, there would be a jurisdictional basis to file the cases in the U.S., but the ship left port near Rome and was headed for Barcelona and Majorca when the tragedy occurred.

In an 11th U.S. Circuit Court appellate case last August, the Court sustained a forum clause in a case in which a California plaintiff who broke her leg on a Regent Seven Seas cruise ship would be required to sue in Paris rather than Fort Lauderdale, Florida, pursuant to a clause in her passenger ticket. One other possibility to resolve the multitude of claims would be for Carnival and Costa to set up a claims fund similar to that developed by BP after the Gulf of Mexico spill, which would involve plaintiffs agreeing to accept an award from the fund in lieu of a case against the cruise line. The advantages are for the company in avoiding jury trials and to the passengers in obtaining a settlement without protracted litigation.

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New York Elevator Accidents--Tragic Death of Advertising Executive

December 19, 2011 by Mark Siesel

On December 14, 2011, 41 year old advertising executive Suzanne Hart was tragically killed in an elevator accident at 285 Madison Avenue in Manhattan. Apparently, as Ms. Hart was stepping into the elevator, the car suddenly accelerated upward with the door still open, pinning her along the wall between the first and second floors of the building. The horrific accident was witnessed by two other occupants in the elevator who were helpless to prevent the accident, as it happened before either person could reach the stop button inside the elevator.

There are approximately 60,000 elevators in New York City, and according to a December 15, 2011 article by Cara Buckley and Andy Newman in the New York Times, there were 53 reported accidents last year, of which 3 were fatal. reports that fatal elevator accidents are very rare, with approximately 27 people killed annually in elevator related incidents based upon data from the U.S. Bureau of Labor Statistics and the Consumer Product Safety Commission (CPSC). Ironically, considering the rarity of fatalities in elevators, Ms. Hart’s death comes only one week after a 48 year old California State University employee Annette Lujan was killed when she attempted to escape a stuck elevator and the elevator suddenly dropped.

In the Hart case, New York City investigators have determined that the 13 elevators in the twenty eight story, 85 year old building had at least 14 open violations, although allegedly none were safety related. Further, inspection records reportedly reveal 56 violations dating back to 2001, of which 34 were for “failure to maintain elevators.” Apparently, Manhattan Borough President Scott Stringer has been requesting more stringent scrutiny of the elevators at 285 Madison Avenue for several years, and he noted: “I’m very concerned that over a 12 month period, this building received ‘unsatisfactory’ four times on inspections to their elevators.”

Further investigation has uncovered that the building’s elevators were serviced by Transel Elevator Inc., who had last conducted a full inspection of the particular elevator in question in June of 2011, finding no safety issues with the elevators, according to New York City Building Department spokesman Tony Sclafani. Interestingly, however, Transel wrote a report in December of 2010 in which it described the elevators at 285 Madison Avenue as “unsatisfactory.” According to the International Business Times on December 15, 2011, Transel’s representative refused to give details as to the basis for the “unsatisfactory” rating. Scott Stringer noted that it was unclear if the unsatisfactory rating was “for a missing light bulb in the elevator” or “was there real structural damage which caused this horrific accident?”

Most recently, Fox New York is reporting that the elevator in question was being worked on by Transel mechanics within hours of the accident. If this proves to be true, there are two likely causes for the fatal accident. First, there could be human error. Second, there could be a faulty relay on the elevator controller. Typically, elevator mechanics inspect elevators by riding the elevators for 15 to 20 minutes, up and down, and stopping at various floors. They check the door operation by placing their hands in front of the doors to ensure that they immediately return to the open position.

According to Patrick Carrajat, an elevator expert retained to investigate this accident, the NY State Building Code requires that elevators be inspected 5 times over a two year period. However, due to budgetary constraints, presently elevators are not inspected more than once annually in New York State. New York, unlike many other states such as Connecticut, Florida, and Massachusetts, does not require that elevator inspectors be licensed. Further, it was only in the last year that New York mandated that elevator inspections be independently witnessed. Previously, the elevator inspections could be conducted by the same companies that were maintaining the elevators, obviously leading to question marks as to their objectivity.

We will report further on this fatal elevator accident as more information is released by the Department of Building and other investigative agencies.

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Penn State Exemption From Right To Know Law

November 18, 2011 by Mark Siesel

Since the November 5, 2011 criminal charges against former Penn State defensive coach Jerry Sandusky, there has been a public clamor to discover what Penn State officials and employees knew about Sandusky’s alleged sexual assault of young boys, and when they knew this information. Clearly, the Grand Jury was of the opinion that athletic director Tim Curley, finance chief Gary Schultz, and legendary head coach Joe Paterno knew about incidents involving Sandusky in 1998, and in 2002, which has resulted in perjury charges against Curley and Schultz, the firing of Paterno and University President Gary Spanier, and the resignation of Wendell Courtney, the recent attorney for Second Mile (The charity for underprivileged children that Sandusky founded in 1977) and the previous attorney for Penn State.

Originally, Pennsylvania had one of the most restrictive open records laws of any state in the United States, with state records presumed unavailable to Freedom of Information requests unless the citizen could prove why the information should be disclosed. This changed after campaign finance scandals and 2008 spending abuses by a state agency with the revision of the Pennsylvania Right To Know Law in 2008, whereby state records were deemed to be available at the request of the public unless public officials could substantiate a basis for their non-disclosure.

Gary Spanier, the former president of Penn State, was in the forefront requesting, and obtaining, an exemption from the open records law for Penn State by which the records of the University—and those of its police force—are not open to the public. (this exemption also applies to the University of Pittsburgh, Temple University and Lincoln University, based on their status as entities which receive public financing but have independent administrative control). Spanier’s argument in obtaining the exemption was premised on the contention that the school would have great difficulty attracting private donors if their identities could be divulged in an FOIA request, and intellectual property rights could be implicated as well.

Presently, all that Penn State is required to do with regard to disclosure obligations under the Right To Know Law is to issue annual reports by May 30 and publicize the salaries of officers, directors and the 25 most well paid employees. However, a very good argument could be made that an institution which will receive a reported $272 million (New York Times, November 12, 2011) from taxpayers this fiscal year must have its books and records open to those that are paying the tab.

Further, even if an argument could be supported that private donors or those with potential intellectual property rights could be deterred if they had publicity concerns, this does not explain the exemption for the Penn State campus police force, which essentially operates as a municipal entity and has all of the duties and responsibilities to serve the public beyond simply employees or students at Penn State. An example of this exemption in action can be seen at present, with assistant coach Mike McQueary insisting that he did report the 2002 alleged rape of a ten year old boy by Sandusky to the police. Previously it was reported that McQueary informed Joe Paterno of the rape, who then notified Curley and Schultz. With the law as presently constituted, the Penn State campus police can refuse requests for reports, phone records, e-mails and other written evidence as to the 2002 alleged assault simply by asserting the exemption carved out of the open records law for the campus police. This lack of accountability certainly needs to be addressed, particularly when the same would not hold true if the disclosure were requested of a municipal police force protecting these same citizens.

State Senator John Blake, a Democrat from northeast Pennsylvania, is in the process of introducing legislation which would revoke the exemption for state funded institutions, including Penn State. Blake noted that Penn State shouldn't be entitled to any exclusion from public disclosure requirements, and stated: “It seems to me whether a citizen, organization, business or media interest wants access to public records, the hurdles shouldn't be any different.”

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Penn State Sex Scandal--Civil Lawsuits Next

November 15, 2011 by Mark Siesel

The November 5, 2011 sexual abuse charges against former Penn State defensive coach Jerry Sandusky have thrown the renowned institution into utter turmoil, and cost several people their jobs, including legendary coach Joe Paterno. Additionally, the school president Graham Spanier has been ousted, and athletic director Tim Curley and finance chief Gary Schultz may be facing perjury charges as a result of their testimony before the Grand Jury. Curley and Schultz’ potential legal problems stem from the testimony of assistant coach Mike McQueary, who testified before the Grand Jury that he informed Paterno that he had observed Sandusky raping a ten year old boy in the school locker room in 2002. Paterno then reportedly informed Schultz and Curley about the incident. Schultz and Curley denied that they knew anything about the rape, and claim they had only been informed of “inappropriate conduct” and “horseplay”. Prosecutors and the Grand Jury did not believe that Curley and Schultz' denials were credible.

In reviewing the 23 page indictment, it is readily apparent that several defendants will face civil lawsuits by many, if not all of the eight alleged victims (identified only by numbers 1-8) who have alleged that Sandusky assaulted them over a 15 year period, and there are allegdely another ten victims coming forward . Penn State has numerous reasons for concern as to its liability. There is testimony that as early as 1998, the school was on notice that Sandusky was observed showering with young boys in the school locker room. Sandusky has acknowledged this fact, both in earlier statements that he gave to one of the victim’s parents, to the prosecutors, local detectives, and most recently, through his attorney Joe Amendola in an interview with CNN on November 14, 2011.

Although clearly inappropriate, showering with ten year old boys may not necessarily be a criminal act (it may be an assault depending on the remainder of the evidence), but this knowledge certainly placed Penn State on notice in 1998 that Sandusky’s conduct needed to be monitored and his access to school facilities restricted. Sandusky apologized to the mother of one of the children that he showered with while two detectives were listening in on the conversation. Surprisingly, this incident was apparently turned over to local police and to the prosecutors, who declined to file charges at that time. Importantly, however, Sandusky was allowed to continue using school facilities unfettered for several more years after the 1998 incident. If Penn State would have prohibited further access to Sandusky in 1998, the 2002 purported rape could not have occurred on school grounds. Allegedly, the 2002 rape observed by McQueary and reported to Paterno was never brought to the attention of local police and child welfare agencies.

In addition to Penn State and its officials, there will be civil cases against the Second Mile, a group Sandusky founded for foster children in 1977 to purportedly help underprivileged athletes. In light of recent disclosures and allegations, that motivation can certainly be held up to some scrutiny. Pennsylvania Governor Tom Corbett, who initiated the investigation of Penn State when he was attorney general, has requested that the authorities investigate Second Mile. The CEO of Second Mile, Jack Raykovitz, resigned to the Charity’s Board on November 13th. It is a virtual certainty that Second Mile will be sued by many of the victims charging that Second Mile failed to supervise Sandusky’s relationship with the participants of the foundation.

Second Mile has admitted that they were informed of at least two incidents of Sandusky's inappropriate conduct, but they dispute that they received the details of the 2002 rape observed by McQueary. Raykowitz claims that he received a report that an employee observed Sandusky in the shower with a young boy, but denies that he was notified of the rape. Amazingly, Raykowitz, along with Curley, Schultz and even Paterno, seemed to believe that this conduct did not justify taking some action against Sandusky, even if that response was simply to prohibit Sandusky from further access to school facilities. This is evidence that is going to be hard for the various defendants to convince a civil jury to disregard, and defense attorney Mr. Amendola is kidding himself if he believes that a jury will accept that Jerry was “just a big kid” who liked to give bear hugs, snap towels and joke around with kids—while naked in the shower with ten year old kids and no one else around?

The Grand Jury also noted that the ’98 showering incident was reported to Penn State’s attorney, Wendell Courtney, who was alleged to also be the attorney for Second Mile at that time. Courtney denies that he worked for Second Mile in 1998, and also denies ever informing Second Mile administrators what he knew of the police investigation. There certainly appears to be a pattern with McQueary, Curley, Schultz, Raykowitz, and Courtney, of having at least some knowledge of inappropriate conduct by Sandusky with children and no one taking responsibility to bring this conduct to an end.

Finally, in 2008, When Sandusky informed Second Mile that he was being investigated for another incident with a young boy, his access to school facilities was restricted, and Sandusky suddenly resigned from Second Mile in 2009 to “devote more time to my family and personal matters.” Notably, Sandusky was a top defensive coach for a hugely successful football program whose coaching abilities were well regarded, yet after his sudden retirement in 1999, no one ever offered him a coaching job anywhere else.

In this writer’s opinion, Penn State and Second Mile are likely meeting with their attorneys to plan defense strategy and confirm their insurance coverage for incidents of sexual abuse. These parties should be very concerned that they have sufficient insurance coverage and that their coverage is not subject to disclaimers for intentional conduct, as many such policies are.

Continue reading "Penn State Sex Scandal--Civil Lawsuits Next" »

Port Authority Not Legally Responsible For '93 WTC Attack

September 28, 2011 by Mark Siesel

The New York Court of Appeals, the highest Court in New York State, ruled on September 22, 2011 that the Port Authority of New York and New Jersey was not liable for the severe injuries and six fatalities caused in the first terrorist bombing of the World Trade Center on February 26, 2003. In the original attack, a car bomb was driven into an underground parking garage and exploded, injuring 1,000 and killing 6.

The theory of the plaintiffs was that the Port Authority had been given numerous warnings from security consultants that the underground garage was a likely and a vulnerable target for a terrorist attack. Under New York State Law, in order to prevail in a personal injury case, a plaintiff must be able to prove that a defendant either knew or should have known that an accident was likely to occur (the concept of legal “notice”) and failed to take reasonable measures to prevent the accident or incident. Notice can be either “actual”, which means through a writing, an e-mail, telephone call or in person conversation, or “constructive”, which means that the defendant should have known based upon the circumstances that the accident was likely to occur and failed to take preventive steps.

In a very closely divided decision, (4-3), the Court ruled that the Port Authority was entitled to what is known as “governmental immunity”, in which governmental bodies, such as the Port Authority, are shielded from certain types of liability for discretionary or ministerial acts that they take. The Court determined that the Port Authority should not be treated in the same manner as a private landlord, who likely would have been held responsible on similar facts. The Court of Appeals focused on the fact that the Port Authority, although made aware of the potential risk of a car bomb in the garage, in its discretion, focused its attention and resources on other areas which it believed warranted enhanced security, including the public concourse and lobbies of the two towers.

The majority decision was written by Judge Theodore T. Jones, Jr., who stated: “Governmental entities cannot be expected to be absolutely infallible guarantors of public safety.” Jones noted that security experts found that the parking garage was a much less significant risk than the concourse and plaza area.

There were 600 plaintiffs in the lawsuit, including many victims employed by Cantor Fitzgerald, the investment firm that was decimated in the September 11, 2001 attacks 8 ½ years later. The February 26, 1993 attack involved two men driving a Ryder truck with several bombs inside into the underground garage, causing the massive explosion.

Many of the lawsuits were settled, but there are some that are still pending. The case was originally heard in 2005, with a Manhattan jury determining that the Port Authority was 68% responsible for the attack, and the terrorists were 32% to blame. The lower level appellate Court in New York, called the Appellate Division, affirmed the lower Court decision in 2008. In the subsequent trial on injuries and damages, after fault was assessed as described above, one victim was awarded $824,100. It was this decision which was appealed to the Court of Appeals and reversed on September 22, 2011.

In the dissent, Judge Ciparick wrote that the Port Authority acted as a landlord, even though it is a governmental entity, and “should be held responsible for not taking basic security measures that would be expected of any private landlord of a large commercial building.”
Since the Court of Appeals is New York’s highest Court, this does not leave recourse for the plaintiffs to appeal the reversal of the $824,000 award.

Continue reading "Port Authority Not Legally Responsible For '93 WTC Attack" »

Player Suicides Proof Of Link Between Head Trauma And Brain Injury?

September 12, 2011 by Mark Siesel

Over the last several months, there has been a major initiative by some doctors and former NFL players to review, analyze, and develop a plan for how to prevent or limit what is known as "traumatic brain encephalopathy" (injury to the brain caused by repeated blows to the head). On February 20, 2011, this condition was in the spotlight when Dave Duerson, a former star safety for the Chicago Bears, died from a self-inflicted gunshot wound to the abdomen. Duerson specifically shot himself in the abdomen to ensure that his brain could be examined--a brain that he was convinced was diseased from many years of teeth shattering blows to the head. Duerson was involved in more than 550 tackles during his playing career with the Chicago Bears and New York Giants.

It has been shown that approximately 20 former professional football players died at a young age from brain damage associated with traumatic brain encephalopathy. This figure also includes Mike Webster, (known as "Iron Mike” during his playing career) a hall of fame center for the Pittsburgh Steelers, who died of a heart attack after years of depression, financial losses, and multiple suicide attempts. Neuropathologist Dr. Bennet Omalu, who at the time of Webster's death was in the Pittsburgh Medical Examiner's Office, found that Webster's brain had large deposits of "tau", a protein which is in the brain’s microskeleton. According to research, with repeated head trauma, tau loses its self repairing ability and begins to accumulate, causing tangles and threads in the neocortex which can mimic the symptoms of Alzheimer’s disease or Lou Gehrig's Disease.

Dr. Omalu is of the firm opinion that due to the significant risks of brain disease from repeated head trauma, infants under the age of 18 should not play football, and stated in an interview that "There is no reason, no medical justification, for any child younger than 18 to play football, period." He also noted that: "The brain is not fully developed until about age 18. Impact to the head in younger people may not cause any obvious damage that could be seen on CT or MRI, but on the cellular, epigenetic level there is damage."

Since the 1920's, doctors have known that repeated trauma to the brain could lead to neurologic and cognitive deterioration that many boxers suffered from, known initially as "dementia pugilistica." At one time, the assumption was that former athletes who became depressed, abused drugs and lost their families and fortunes were simply not able to cope with life after the glory and adulation of professional sports. But with numerous cases of traumatic brain encephalopathy being reported in football players, hockey players, boxers and military members over the last several years, Boston University established a research institute known as the Center for the Study of Encephalopathy to more thoroughly investigate the effect of repeated head trauma in athletes.

A report published in the Journal of Neuropathology and Experimental Neurology in 2009 evaluated 5 football players and 30 boxers who were dying at very young ages--the football players at age 44 on average and the boxers at age 60. The symptoms they experienced included severe mood disturbances, memory loss, and aggressiveness. Four of the five football players died tragically in suicides, a high speed car chase, and a gunshot wound. The Boston Institute has started a "brain bank" with approximately 100 living players agreeing to donate their brains for research purposes when they die to study chronic traumatic encephalopathy further.

In a more recent development adding further credence to the theory of trauma induced brain injury in professional athletes, in the last 4 months, 3 professional hockey players have committed suicide. Each of these players were known as "enforcers", and blows to the head were both expected and routine, leading to numerous concussions. Wade Belak, the 35 year old forward for the Nashville Predators hanged himself on August 31 in Toronto; 27 year old former Winnipeg Jet Rick Rypien committed suicide in August; and 28 year old former New York Ranger Derek Boogaard took a fatal drug overdose in May. Belak fought 136 times in his 549 game career in the N.H.L, and assessed 1,263 penalty minutes.

To force the NFL's hand on dangers which have been known for many years but not properly addressed, 7 former NFL players filed a class action lawsuit in July of 2011, contending that the league failed to properly treat concussions and attempted to cover up the connection between playing football and developing brain injuries. We intend to closely follow the progress of this case and its implications for athletes across the United States at all levels of football, hockey and other contact sports.

Continue reading "Player Suicides Proof Of Link Between Head Trauma And Brain Injury?" »

Strauss-Kahn Not Out Of Legal Trouble Yet

August 26, 2011 by Mark Siesel

Dominique Strauss-Kahn, the French former managing director of the International Monetary Fund who was just released from criminal jeopardy when the Manhattan District Attorney's Office dropped sexual assault charges against him on August 23rd, still faces the possibility of a civil damages award. As is well known, Strauss-Khan was accused by 33 year old Hotel Sofitel employee Nafissatou Diallo of forcing her to engage in oral sex when Ms. Diallo entered Strauss-Kahn's suite to clean on May 14, 2011. Although the initial evidence against Strauss-Kahn seemed compelling, including the fact that Diallo had his semen on her clothing and he attempted to flee the United States soon after the encounter, further investigation by the Manhattan District Attorney's Office post indictment resulted in major credibility questions as to the accuser. These included the fact that she lied about being gang raped in her native Guinea, lied on an asylum application when she first arrived in the United States, and was recorded speaking with a friend and mentioning Mr. Strauss-Kahn's finances and stating that she "knew what [she] was doing."

Earlier this month, as the criminal case appeared to be crumbling, Ms. Diallo went public with her allegations, appearing on major news programs and in national magazines. She filed a civil lawsuit in the Bronx County Supreme Court, alleging that Strauss-Kahn had sexually assaulted her and seeking unspecified money damages. If this case had been brought prior to November of 2003, when the New York Civil Practice Law & Rules was amended to disallow identification of the amount being sued for in lawsuits, it is likely that Diallo would be suing for multi-millions. Under the law presently, the defendant's attorneys must submit a demand for the "ad damnum", or amount being sued for, to glean what the alleged damages are.

There is a significant difference between the burden of proof that the prosecution must establish in a criminal case, known as "beyond a reasonable doubt", and that the plaintiff's attorney must prove in a civil case for money damages, which is "a preponderance of the evidence." Beyond a reasonable doubt is defined as "proven to a moral certainty...the facts proven must, by virtue of their probative force, establish guilt...any doubt must not be fanciful or imagined but based on reason and arising from the evidence." In contrast, a preponderance of the evidence literally means evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it." Obviously, a much easier burden to prove in the civil case.

Nonetheless, Ms. Diallo will have major difficulty overcoming the evidence of her fabrications in matters of major importance, including the asylum application, and even more damning, the false accounting of a sexual assault in Guinea, which could lead a jury to believe that she lied in this instance as well. Further, there is a jury instruction which would be give to jurors in the civil case if it were deliberating known as "Falsus in Uno", which states: “If you find that a witness has willfully testified falsely as to any material fact…the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything.” One factor which works in Ms. Diallo’s favor if the case did proceed to a verdict is that in a criminal case, the 12 person jury must be unanimous in its verdict, whereas in a civil case, the 6 person jury does not have to be united—only five of the six jurors must agree.

There is also the issue of the venue of the case, as Bronx County jurors are the most favorable to plaintiffs of any the 62 counties in New York, with the possible close exception of Kings County jurors. Simply put, Bronx and Brooklyn jurors will likely be more receptive to a case in which an African American immigrant is suing a very wealthy and well represented French financier. The defense might consider a possible transfer of the case to the Federal Court, where the jury pool would not be drawn from the Bronx, but rather New York County, where jurors are substantially more conservative and would likely be favorable in their treatment of someone with Strauss-Kahn’s wealth. However, the down side for Strauss-Kahn in moving the case to federal Court might be his somewhat checkered past, in which he has been accused on numerous occasions in France of sexual assault, (and has a pending case against him now by a French journalist) and some of these allegations might be more likely to be received in evidence in federal Court than in state Court.

Another possibility is that as in the Kobe Bryant and the late Michael Jackson (twice) cases, the victim will receive a rather large monetary settlement and agree to discontinue all further proceedings. However, in the Bryant and Jackson cases, the settlement was made while the criminal proceedings were ongoing, so the scenario here is somewhat different now that the Manhattan D.A. has dropped all charges. We will keep monitoring developments in this fascinating case.

Continue reading "Strauss-Kahn Not Out Of Legal Trouble Yet" »

New York Car Crashes--Black Box Data Will Change Everything

August 8, 2011 by Mark Siesel

Event data recorders (EDR), more popularly known as black boxes, have been around since the 1970's, and are well known as an invaluable tool in the investigation of plane crashes. According to the National Highway Traffic Safety Administration, (NHTSA), as of 2008, between 65% and 90% of cars now manufactured are equipped with EDR's. However, the data from EDR's is not readily available to third parties such as insurance companies and litigants in car crash cases.

This will all change in 2013, when the NHTSA will require that all vehicles which contain black boxes must capture the same data in the same format. Further, the federal agency will mandate that there be a tool available to access the data. And what is that data? A treasure trove of information, including: Change in forward speed of the vehicle; maximum change in forward speed; vehicle speed prior to impact; whether or not the driver applied the brake; whether the driver was using his or her seat belt; the number of crash events; and the time between the two crash events, if applicable. This is a sampling, but not all that the EDR can record.

Due to the number of cars that will have black boxes and access to this data, the world of auto accident litigation will change in dramatic ways over the next several years. In a concession to privacy concerns, 13 states, including Arkansas, California, Colorado, Maine, North Dakota, New Hampshire, New York, Oregon, Texas, Virginia and Washington, have enacted laws requiring an owner's permission to download the data. But who is an owner? In some states, such as California, the owner is the registered owner of the car. In New York, it is the titled owner. In Arkansas, it's simply the owner of the vehicle at the time the accident occurred.

In addition to the aforementioned privacy issues, are concerns about what is known as spoliation, or intentional/negligent/unintentional loss of the data. The data in a black box is only temporarily stored, apparently for what is known as 200 "ignition cycles" or about 6 to 8 weeks of normal use of the vehicle. Thus, if the vehicle is destroyed, sold or more than 6 to 8 weeks of use occur in vehicles that are not as badly damaged, the information could be lost forever. Clearly, the data in a EDR will go a long way to either establishing, or in other cases, minimizing or refuting liability (fault in an accident). It will also assist in determining whether injuries claimed in an accident are consistent with the physics of an accident. Presently, this is often accomplished through the testimony of treating physicians, or in addition, in more serious cases, biomechancial engineers. Undoubtedly, there will be motions made by both insurance companies, and attorneys for those injured in car crashes, to preserve the EDR before this occurs. In sum, 2013 and beyond will be quite a different world in the field of automobile crash litigation, that is for certain.

Continue reading "New York Car Crashes--Black Box Data Will Change Everything" »

Police Misconduct Cases Now Sent To Mediation in Federal Court

July 19, 2011 by Mark Siesel

In October 2010, the judges for the Southern District of New York (Covering counties including Westchester, Manhattan, and the Bronx among others) voted to change its rules to allow specific categories of cases to be designated for automatic mediation. Effective August 1, 2011, excluding class actions, civil rights violations under 42 U.S.C. § 1983 filed in federal court in the Southern District of New York will be automatically designated for mediation. Civil rights violations under § 1983 include police misconduct, false arrest, excessive force, and malicious prosecution claims. Often, these federal claims are paired with state law causes of action of false imprisonment, assault and battery, and malicious prosecution. This has major implications for the New York City Police Department, who is named as a defendant in hundreds of lawsuits in the Southern District each year.

Most of these §1983 civil rights cases settle. This program is designed to start the settlement process as soon as possible. Setting early will reduce the total cost of litigation, saving parties thousands of dollars, and reduce volume of cases on the federal Court’s docket. Mediation is efficient, and fair to all involved. Since mediation is non-binding, the parties may still proceed forward in the normal course of litigation if early settlement talks fail.

Under the new program, both parties are required to disclose key information quickly, at the beginning of the lawsuit. All plaintiffs must now include HIPAA releases for medical records and arrest records with the summons and complaint. Within 28 days of the the defendant’s answer, the police department must exchange records from Internal Affairs, any Civilian Complaint Review Board, similar complaints involving the same defendant police officer, and key information from the defendant officer’s file. Within 45 days of the answer, the plaintiff must make a settlement demand, and within 14 days, the defendant police department must respond. Within 90 days of the answer, both parties must go to meditation. If a settlement is reached, the defendant still has 90 days to issue payment to the plaintiff.

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NYS Senate Passes Tougher Texting While Driving Law

May 24, 2011 by Mark Siesel

Earlier this month, the New York State Senate voted in favor of a law which would strengthen New York's texting while driving ban. Presently, texting while driving is a secondary violation, meaning that in order for a ticket to be issued, the police officer must first observe the motorist commit a separate driving infraction, such as speeding or passing a traffic control device. Under the Senate version, which was promoted by Senator Fuschillo, Chairman of the Senate Transportation Committee, texting while driving would become a primary offense.

Distracted driving has become a major safety issue across the United States, and texting while driving is a large part of this problem, with the major increase in text messaging as a means of communication. In a study by the Virginia Tech Transportation Institute, it was found that a motorist is 23 times more likely to have an accident while text messaging. The American Automobile Association (AAA) has reported that any activity which diverts a driver's attention from the road for more than 2 seconds can double the risk of an accident. John Corlett, the AAA Legislative Committee chair noted that "

The secondary nature of the current New York State law dilutes its deterrence value...there is overwhelming public consensus on the unique threat of text-messaging while driving...

The Senate bill has now been sent to the New York State Assembly, which has in the past been supportive of a primary texting while driving prohibition. We will monitor the progress of this legislation and report on any major developments.

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Gov. Cuomo Attempting To Install Caps On Medical Malpractice Awards

March 21, 2011 by Mark Siesel

As part of his effort to obtain a balanced budget by April 1, Gov. Cuomo has selected a "Medicaid Redesign Team", whose purported function is to "reduce Medicaid spending." While this goal might have some merit, the problem is that the team he put together is comprised solely and wholly of hospital CEO's, administrators, doctors and insurance representatives. Not one single patient representative on that team to provide some level of objectivity. Naturally, the "team" included in it's proposal something that doctors have been pushing for many years. A blatant attack on patient safety in the form of a arbitrary $250,000 cap on all medical malpractice awards in the State of New York. Imagine a relative or friend has been left paralyzed, blind, brain damaged, disfigured, or dead through the negligence or carelessness of their doctor or hospital. If this cap is instituted, these grievously injured people would be limited to a total award of $250,000, regardless of the doctor or hospital's gross neglect, carelessness or recklessness.

For many years now, doctors and hospitals have been making the argument that their medical malpractice premiums are excessive, and that they are forced to practice defensive medicine to avoid lawsuits. However, this specious claim has been refuted time and again by studies and statistics. For example, as reported in the February 2011 edition of the American Journal of Obstetrics & Gynecology, by instituting a comprehensive patient safety program in 2002, New York Presbyterian Hospital was able to reduce "sentinel events" (defined as avoidable deaths and serious injuries) from 5 in 2000 to none in 2008 and 2009. Further, medical malpractice payouts shrank from a high of $50,940,309 in 2003 to an amazing low of only $250,000 in 2009!

In another example proving that the issue is not costs but rather patient safety, a June 2005 report in the Wall Street Journal found that anesthesiologists substantially reduced their malpractice premiums (paying less in 2005 than they did 20 years earlier) by initiating the use of devices that alerted doctors to potentially fatal operating room problems. Further, they instituted procedures that protected patients from potentially fatal carbon monoxide poisoning, The results of these measures are impressive indeed--patient deaths dropped from 1 in every 5,000 cases to 1 death per 200,000-300,000 cases.

Statistically speaking, despite the complaints of doctors and hospitals about medical malpractice lawsuits, they are in fact steadily decreasing in New York State. The New York State Office Of Court Administration (OCA) reports that malpractice filings in 2009 were 3,961, from 2005 when 4,270 such cases were filed.

Normally, this blog focuses on interesting cases, changes in the law and advice to plaintiffs on how to have a successful personal injury case. However, the grossly unfair and arbitrary effort to shift the responsibility of doctor and hospital errors away from those who should ultimately be held responsible--the doctors and hospitals that cause these injuries and deaths--must be stopped in its tracks before it is too late. Please urge your local legislator to vote no to the arbitrary and unfair malpractice caps, and yes to patient safety in allowing grievously injured patients to receive just compensation for their injuries.

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Will Second Fatal Tour Bus Crash Lead To Increased Safety?

March 18, 2011 by Mark Siesel

In a follow up to our blog "Fatal Bus Accident Under Federal Investigation" earlier this week, the tour bus industry was rocked again after a second fatal accident occurred, this time on the New Jersey Turnpike on March 14, 2011. In the second accident, a bus operated by Super Luxury Tours crashed after it went onto the grassy median and struck a concrete support for an overpass. The bus was traveling from Chinatown to Philadelphia. The 50 year old driver, Wei Wang, who was not wearing his seat belt as required by statute, was thrown through the windshield and died, as did one 20 year old passenger. 41 other passengers were hospitalized subsequent to the accident. This follows the March 12, 2011 accident on I-95 in the Bronx in which 15 people died when a bus driven by Ophadell Williams rolled onto its side and struck a road sign stanchion. Investigation has revealed that the 40 year old Williams was driving with a suspended license, and had previously been convicted for manslaughter and theft.

Federal investigators from the National Transportation Safety Board (NTSB) have conducted an initial interview of Mr. Williams, who claimed that the bus was clipped by a tractor trailer, causing him to lose control of the bus and causing the horrific accident. Investigators are examining both the bus and the tractor trailer to determine if there is any damage to either vehicle substantiating Mr. Williams' version of events. Allegedly, witnesses have given statements that the bus had been veering onto the shoulder of the road on several occasions prior to the accident, leading to speculation that Mr. Williams was falling asleep at the wheel before the accident happened. Federal and state investigators questioned Mr. Williams as length about how much sleep he had both prior to and during the overnight trip to draw conclusions as to whether fatigue was a factor in the accident.

Under regulations in place enforced by the Federal Motor Carrier Safety Administration, which oversees the tour bus industry, Williams should not have been driving for more than 10 hours during a 15 hour workday. Legislators including U.S. Senator Charles Schumer have called the safety guidelines inadequate, including the fact that rules are often enforced by roadside inspections carried out by state officials on a random basis.

Another questionable safety practice is that only the driver must be seat belted, and tour buses are generally not equipped with seat belts for passengers. The NTSB is studying whether having seat belts would have reduced the number of fatalities in the I-95 crash that claimed 15 lives. It is also looking at whether new technologies such as a warning system to alert the driver that he is veering off the road or heading for an obstacle would have made any difference.

According to the Federal Motor Carrier Safety Administration website (FMCSA), Super Luxury Tours, the operator of the bus in the NJ Turnpike accident, had one of the worst safety records, faring worse than 99.6 similar companies in the unsafe driving category. World Wide Tours, the operator of the bus in the March 12th I-95 accident, was rated almost right in the middle of all similar companies, with 52.6 operators having a better safety record regarding driver fatigue.

Continue reading "Will Second Fatal Tour Bus Crash Lead To Increased Safety? " »

Fatal Bus Accident Under Federal Investigation

March 14, 2011 by Mark Siesel

On Saturday, March 12, 2011, 14 passengers on a tour bus returning to Chinatown from the Mohegan Sun Casino were killed when the driver lost control of the bus, it rolled onto its side, and struck a sign stanchion on southbound 1-95 near the Bronx border. The fatal accident is now being investigated by the National Transportation Safety Board (NTSB) , who are interviewing the owners of World Wide Travel of Greater New York, and examining the crash site for physical clues to explain the horrific accident.

What is known is that on March 12th, thirty one passengers on the bus were returning from a day trip to the Mohegan Sun Casino. The driver of the bus, Ophadel E. Williams, (who suffered non life threatening injuries in the accident including a fractured hip), has informed investigators that he was attempting to avoid a tractor trailer which swerved into his lane and then lost control of the bus. Apparently, the bus tipped onto its right side, slid down the shoulder of the highway (the bus is alleged to have slid 480 feet from first contact with the guardrail until stopping), and then hit a sign stanchion which tore through the middle of the bus, leading to the massive injuries and fatalities. It has also been reported that World Wide Travel has been cited in the past for driver fatigue. Police investigators are working to retrace the driver's actions for 72 hours before the crash. It has been reported that witnesses observed the bus moving at an excessive rate of speed.

In cases such as this, there are several pieces of evidence which will be instrumental in determining the true cause of the accident. These include:

Debris from the accident scene;

Tire marks, skid marks and other roadway evidence;

Damage to the vehicles involved;

GPS tracking information, which could indicate the route and speed of the tractor-trailer;

Statements from the drivers and occupants of the bus;

A review of the engine control module in the bus, which might assist the police in determining the speed of the bus at the time of the accident;

Driver's logs which both the bus driver and truck driver and required to maintain by federal regulation;

Maintenance records for both vehicles.

There will undoubtedly be several lawsuits for wrongful death, and for the non-fatally injured passengers, for pain and suffering, medical and hospital expenses, lost earnings, loss of enjoyment of life, and long term care. I would assume that World Wide Travel would carry significant liability insurance coverage, but whether that coverage will be sufficient to compensate all of the victims of this tragic accident is a big question. If the evidence substantiates that the tractor-trailer's actions contributed to the accident, there will be additional insurance from the owners of the trucking company, but there may still be insufficient insurance to compensate all victims.

We will continue to report on this case in future installments as the investigation continues.

Continue reading "Fatal Bus Accident Under Federal Investigation" »

Schuler Driving 85 M.P.H In Fatal Taconic Parkway Crash

July 20, 2010 by Mark Siesel

According to the final New York State Police report, issued last month, Diane Schuler was speeding at a whopping 85 miles per hour in last July's fatal car crash on the Taconic Parkway in which 8 people died. The fiery crash occurred on July 26, 2009, when Ms. Schuler, traveling with her three nieces and two children, was driving southbound in the northbound lanes of the Taconic Parkway with a blood alcohol content of .19 (more than twice the legal limit) and high on marijuana. Everyone was killed in the Schuler vehicle with the exception of her then 5 year old son Bryan, and all three occupants of the vehicle driven by Guy Bastardi, which was traveling northbound in the left lane, were also killed.

Daniel Schuler, the husband of Diane Schuler, claimed last year that his wife must have had an illness or medical problem which caused her to drive so recklessly on the wrong side of the parkway. There was talk of exhuming Ms. Schuler's body to conduct a separate autopsy to potentially rebut the findings of the Westchester County Medical Examiner's Office, but to date there has been no evidence to refute the Westchester Coroner's findings that Schuler was high and intoxicated at the time of the accident.

Understandably, the Bastardi family has commenced litigation against the Estate of Diane Schuler for the deaths of 81 year old Michael Bastardi, Sr. and his 49 year old son, Guy Bastardi, who was behind the wheel when the tragic accident occurred. The lawsuit is pending.

When you combine the speed of the Schuler vehicle at 85 m.p.h with the alleged speed of the Bastardi vehicle at 74 miles per hour, the vehicles were approaching each other at 233 feet per second--(Total of 159 miles per hour X 1.466 feet per second= 233 feet per second). Thus, there is no question that Guy Bastardi had no time to react or take evasive action from the Schuler vehicle. The only real question in this lawsuit is how much automobile insurance or umbrella insurance coverage the Schuler family had in effect on the date of the accident to compensate the Bastardi family. To date, we are not aware whether the family of the late Daniel Longo, also in the Bastardi vehicle, intends to commence legal action against Schuler's estate.

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Toyota Reeling In The Wake Of Recalls And Congressional Investigation

February 26, 2010 by Mark Siesel

Toyota is in the midst of an absolute legal and public relations disaster as the result of its delay in responding to deadly defects in its cars and trucks which have apparently led to at least 34 deaths in the last decade. The problem is sudden acceleration, which has been blamed on floor mat interference and sticky gas pedals, but which many safety experts are attributing to the electronic systems in these vehicles. Toyota has recalled approximately 8.5 million cars, and supposedly repaired about 800,000 to date, but the company has run into two huge public relations and credibility nightmares. First, despite initially claiming that it first learned of the sudden acceleration problem last October, it is now known that a year earlier, in October of 2008, there was an issue with sticky pedals in Europe, particularly in Britain and Ireland. Toyota's CEO for North America, Yoshimi Inaba, claimed that the company "Did not hide [the problem]...but it was not properly shared...with the United States to see if there was any danger to American consumers." Sure seems like hiding the problem to this writer.

Second, the Congressional oversight committee found that Toyota had given a presentation that stated "Toyota safety wins", noting that they had been able to save $100 million by convincing the government initially to allow them to recall floor mats on 55,000 Toyota Camry and Lexus ES 350 sedans rather than recalling the vehicles themselves. This past Tuesday, in testimony to the House Energy and Commerce Committee, James E. Lentz, the president of Toyota Motor Sales U.S.A., informed the committee that the ongoing repairs might "not totally" solve the sudden acceleration problem--certainly not exactly comforting words for Toyota owners nationwide.

To attempt to quell the growing swirl of controversy and anger at the delayed and insufficient response to their defective vehicles, Toyota has announced that they will commence at home pickups of vehicles, reimbursement of consumer's transportation expenses and free rental cars while cars are being repaired. New York State's Attorney General has started a website- to provide information about this program. Toyota has also announced that new models will allow brakes to override gas pedals in an added effort to solve the sudden acceleration issue.

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