Articles Posted in In The News

For the last several years, several European countries, including Sweden, the Netherlands, and Norway, and some states in the U.S., have adopted a program known as “Vision Zero” in an all-out effort to reduce traffic fatalities and serious injuries. The program includes better traffic signs and roadway design, and a reduction of speed limits on local roads and highways. Research has determined that the human tolerance for a collision with a well-designed motor vehicle is approximately 19 miles per hour. When Mayor Bill de Blasio entered office last year, he announced that New York City was going to adopt the Vision Zero program to emphasize an effort to make New York City streets safer for pedestrians and bicyclists. This was after a personal plea by more than 4,500 letters from members of Families for Safe Streets, an organization that was created by family members of those killed or seriously injured in pedestrian, bicycle or car crashes in New York City.

The Vision Zero program involves improving traffic signage and reducing speed limits. In New York annually, approximately 4,000 people are seriously injured and there are more than 250 fatalities in traffic crashes. For children under the age of 14, being hit by a car is the leading cause of injury-related death, and is the second leading cause of death due to injury of seniors. On average, vehicles seriously injure or kill a New Yorker every two hours. Interestingly, although Mayor de Blasio has placed a major impetus on implementing the Vision Zero program, traffic fatalities in New York City have been steadily decreasing from 701 in 1990, 381 in 2000, to 249 in 2011. Obviously, any traffic fatalities are a problem when it comes to the huge volume of pedestrians in the City of New York.

Vision Zero has also been implemented in major cities across the U.S., including Boston, where in March of 2014, personal injury attorney John Sheehan initiated the “Vision Zero Auto Accident Prevention Scholarship” to encourage young adults to recognize the benefits of safer driving, and San Francisco, where district supervisors introduced the Vision Zero plan after 25 pedestrian and bicyclist fatalities in 2013 alone.

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

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

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

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

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

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

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