Articles Posted in In The News

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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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.

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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.

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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.

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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.

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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.

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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 mediation. If a settlement is reached, the defendant still has 90 days to issue payment to the plaintiff.

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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…

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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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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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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.

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