New York Personal Injury Lawyer Blog

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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