Walk down any block in cities large or small, and you will inevitably see people walking across the street, into crosswalks, onto roadways, through parking lots with moving traffic, and along sidewalks, never looking up from their cell phones while they busily send a text or email. Worse, there have been ample examples on You tube of people walking into telephone poles, falling into Lake Michigan, falling onto train tracks, tripping on uneven areas of the sidewalk or into holes, into other pedestrians on the sidewalk, or in one heavily viewed video, a woman walks into the wall of a fountain in a mall, falling directly into the water while passersby look on.

At the University of Ohio in 2010, researcher Jack Nasar conducted a study of 1,500 pedestrians who suffered injuries while using their cell phones and who were treated at emergency rooms. The study showed that there were six times more injuries suffered by texting pedestrians than five years earlier. Nasar’s study included a teenager who fell into a ditch after he walked off of a bridge, and a 23 year old man who was hit by a car and suffered hip injuries when he walked into the street without paying attention.

Safe Kids Worldwide performed a survey this past October, noting that 40% of the 1,000 teens they interviewed admitted they had been struck by, or almost hit by a car while walking. Of those interviewed, 85% indicated that they were listening to music, texting, or on their cell phones when they were struck or almost hit. Dr. Barry Smith, director of the emergency medicine department at St. John’s Medical Center in Yonkers, noted that he sees many patients with orthopedic injuries suffered when they were walking and trip on the sidewalk, striking their heads or fracturing a limb. Obviously, the problems is greatly exacerbated when the pedestrian is focused on the music they are listening to, sending or reading a text or email, and not looking at what is in front of them.

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Knee replacement surgery has become more and more prevalent over the last fifteen years.  However, two recent studies from researchers at Virginia Commonwealth University in Richmond, after reviewing the records of 200 patients, suggest that in many cases, the surgery may not be appropriate or warranted.  The studies concluded that knee replacement should be performed only for those people who are suffering from advanced arthritis in the knee joint.  This is defined as encompassing severe pain, and impaired range of motion and function which hampers the person from getting out of a chair and walking without assistance.

According to data from the American Academy of Orthopedic Surgeons, knee replacements in people ages 45-64 skyrocketed 205% between 2000 and 2012.  For those aged 65 and older, the increase was a still substantial 95%.  The Virginia Commonwealth researchers indicate that surgical replacements are more indicated for patients over age 65 because the implanted materials last approximately 20 years.  Thus, if a 45 year old patient has the replacement, they will likely need another one during his or her lifetime. The researchers determined that about one third of the subjects were probably not good candidates for knee replacement surgery, because their arthritis was not substantial, and they had only slight pain and physical impairment.

Conversely, those whose arthritis was advanced benefited tremendously from knee replacement, with much improved function, and significantly less knee pain in the two years after the procedure.  Additionally, their knee function scores improved about 2o points.  In contrast, those whose knees didn’t justify the surgery had only a 2 point improvement in function scores.

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Melissa Rivers, the only daughter of the late Joan Rivers, the 81 year old comedian who died on September 4, 2014, has announced her intention to file a multimillion dollar medical malpractice and wrongful death lawsuit against the Yorkville Endoscopy Clinic in New York City. The facts are that Ms. Rivers was seen at the clinic on August 28, 2014 for a voluntary procedure to examine her upper gastrointestinal tract and vocal chords. She was under sedation with Propofol, (ironically the same drug that was responsible for the death of the pop performer Michael Jackson in June of 2009).  Rivers went into cardiac arrest during the procedure, and the allegations include the charge that Yorkville did not properly monitor her intake of Propofol, which was administered prior to the operation. Ms. Rivers was rushed to Mount Sinai Hospital from Yorkville Endoscopy, and died of low blood oxygen to her brain for an extended time, resulting in irreversible brain damage.

Melissa Rivers is the sole heir to the Rivers estate (her father, Edgar Rosenberg, committed suicide in August of 1987), and the estate has been valued as high as $100-150 million. She claims that the lawsuit is not to seek compensation, but rather to “fully determine the facts and circumstances surrounding [Joan Rivers] death.” The official cause of death was “anoxic encephalopathy due to hypoxic arrest during laryngoscopy and upper gastrointestinal endoscopy with Propofol sedation for evaluation of voice changes and gastroesophageal disease.”

Ms. Rivers was in a coma from the throat procedure on August 28, 2014 through her death on September 4, 2014. Thus, with regard to the medical malpractice allegations, which would require that her attorneys prove “conscious pain and suffering”, this will be difficult to establish unless there is some evidence that Rivers had some conscious awareness of her condition.

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This week, ten former NFL players filed objections to the NFL Concussion Lawsuit settlement due to concerns that the settlement does not adequately compensate the victims of chronic traumatic encephalopathy, or CTE. CTE is a brain injury of progressive neurological deterioration caused by repeated blows to the head. It was previously known as “dementia pugilistica”, as the condition was frequently observed in boxers. CTE has symptoms including memory loss, behavioral and mood disorders, personality changes, speech and gait abnormalities, impulsive actions and rage. 

The settlement covers approximately 20,000 players, and the great majority of those players or their families for those who are deceased are accepting the terms of the settlement. But Robert Stern, a Boston University professor of neurology and leasing expert on CTE, has declared that players “who suffer from many of the most disturbing and disabling symptoms of CTE will not be compensated under the settlement.” 

Since CTE cannot be diagnosed in living players, the 76 cases of the diagnosis in football players were all discovered during autopsies, which is part of the reason that the CTE diagnosis was not given the same weight as other conditions when determining the compensation provided to ex-players in the settlement. For example, conditions including Alzheimer’s disease, Parkinson’s disease, ALS, (Amyotrophic Lateral Sclerosis, also known as Lou Gehrig’s Disease), and dementia do not have the same restrictions as does CTE, ostensibly because each of these diagnoses can be determined while the player is alive. As presently constituted and approved by federal justice Anita Brody of the 3rd District in Philadelphia, all caps as to total compensation were removed. However, former NFL players who were diagnosed with CTE prior to January 1, 2006, or after July 7 of this year, are not covered by the settlement.

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On September 18th, Jill Tarlov, 59, a married mother of two and former employee of WINS News, was crossing West Drive near West 63rd Street when she was struck by a bicyclist, 31 year old Jason Marshall.  Apparently, Marshall was travelling in excess of the 25 mph speed limit in Central Park, and swerved to avoid a group of pedestrians when he collided with Ms. Tarlov.  Marshall allegedly screamed “Get out of the way!” a couple of times before the tragic collision.  It is unclear who had the traffic light, but according to the New York Times, Marshall admitted during questioning that he was in the car lane, not the bike lane, when he struck Ms. Tarlov.  She struck her head on the roadway and suffered severe head injuries.

Ms. Tarlov was taken to New York Presbyterian Hospital/Cornell Medical Center and shortly thereafter, declared brain dead.  This past Monday, September 22, Ms. Tarlov died of her injuries.  The issue here is whether Central Park is safe for pedestrians in light of the large volume of pedestrians, runners, horse drawn carriages, cars, in-line skaters, and leisurely bikers who share the roadway with racing cyclists, who frequently violate the rules of the road with regard to speeding and disregarding traffic control devices. According to the Times, the police have issued 468 moving violations (speeding tickets, unsafe lane change, failing to yield to pedestrians, disregarding a stop sign or red light) to bicyclists so far in 2014.  Last year, by this date, there were only 151 summonses handed out by police for these infractions.

The fatal crash this month is only 45 days after another similar tragedy on August 3rd of this year.  On that date, 75 year old Irving Schacter, who was training for the 2014 New York City Marathon and was an avid cyclist himself, was struck by a 17 year old cyclist while he was jogging on the east park loop near East 72nd Street.  Mr. Schacter was taken to New York Presbyterian Hospital with head trauma and died two days later.

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In a stunning and sudden change of position, the National Football League now acknowledges that 1 in 3 former players are likely to develop some long term brain damage from repeated head trauma and TBI suffered during their playing careers. The data was compiled by actuaries retained by the NFL and provided to United States District Court Justice Anita B. Brody of Philadelphia, who has been supervising the settlement of approximately 5,000 former players’ claims against the league that the NFL knew that repeated concussions led to long term permanent injuries and diagnoses but intentionally withheld this information.

Specifically, the ex-players contended in their lawsuit that the NFL was well aware for many years that repeated head trauma would cause Alzheimer’s Disease, Parkinson’s Disease, ALS, (Amyotrophic Lateral Sclerosis, also known as Lou Gehrig’s Disease), dementia, depression, mood disorders, and chronic traumatic encephalopathy, (CTE) which is not possible to diagnose until an autopsy is performed. Last fall, a $675 million settlement was entered into between the players’ lawyers and the NFL. However, Justice Brody rejected the settlement amount, considering the proceeds to be inadequate to fairly compensate all potential claimants over the 65 year life of the settlement. Justice Brody directed counsel for both sides to submit a more substantial total settlement package.

To address the concerns of Justice Brody, the NFL agreed in June of 2014 to pay an unlimited amount in awards for brain injuries suffered by former players who filed claims under the settlement agreement. Some former players, or their families, (as in the case of Junior Seau, the all-star linebacker for the San Diego Chargers who killed himself and requested that his brain be studied for brain injury), “opted out” of the settlement and will sue the NFL individually.

A significant percentage of the payouts to ex-players will be for those diagnosed with Alzheimer’s disease or advanced dementia. They will receive approximately 800 million dollars. The NFL and players’ attorneys believe that the largest payouts will go to players suffering from Parkinson’s Disease, ALS or CTE. Estimates by lawyers for the players are that approximately 28% of players (5,900) will develop injuries for which they are entitled to compensation. About 60 percent of these players are expected to file claims which would comprise about $950 million.

The actuarial reports are magnifying one of the main concerns of the players who have joined the class action, as well as those who have not—namely, that players with less severe brain injuries due to repeated concussions will not receive any compensation or minimal compensation at best. Seven retired players submitted papers to a federal appeals court requesting that the Court review the issue of compensation for less severely affected ex-players, but the appeals Court declined to do so.

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Over the last three years, 4,500 former NFL players filed lawsuits against the league alleging that for many year, the NFL deceived them as to the risks of repeated concussions and traumatic brain injury (tbi), resulting in numerous long term neurological conditions and the long term effects of these conditions, including dementia, Alzheimer’s Disease, chronic traumatic encephalopathy (CTE), Parkinson’s Disease and ALS (amyotrophic lateral sclerosis), also known as “Lou Gehrig’s Disease.” The lawsuits were consolidated into once class action and filed in the U. S. District Court in Philadelphia before Justice Anita Brody.

Several months ago, attorneys for the NFL and attorney’s for the players worked out a tentative settlement of the lawsuits, which included the following: A cap of $675 million for financial awards to ex-players for pain and suffering arising out of their medical conditions, (without the requirement to prove that the conditions were caused by the repeated concussions); $75 million for baseline neurologic and neuropsychological testing for any legible retired players; and $10 million from the league for programs to promote safety and the prevention of head injuries. However, Justice Brody balked at approving the settlement last fall, contending that the $675 million cap on payments to former players was inadequate and needed to be bolstered. Certainly, the NFL’s annual estimated revenue of $10 billion reflects the fact that the $675 million over the 65 year life of the agreement would not even make a dent in the league’s finances. Further, it is expected that the number of players who will make claims for brain injuries incurred during their playing careers will continue to escalate as awareness of the damage from repeated concussions increases.

The revised agreement presented to Justice Brody removes the cap of $675 million for claims by ex-players. Former players will be notified of the terms of the settlement and provided with an opportunity to accept the terms or “opt out”, allowing the individual players to file their own lawsuits. Justice Brody will conduct a hearing this fall to determine whether the settlement is now in the best interests of the former players and is fair and adequate. The settlement as presently constituted provides awards of $3.5 million for Parkinson’s disease; $4 million for a diagnosis after a player’s death of CTE; and $5 million for ALS. Additionally, the settlement would encompass payouts for early dementia and “severe decline in cognitive function”, although it is unclear how those terms are defined or what the amount awarded for those diagnoses would be.

We will follow the evolution of the settlement between the NFL and the players’ attorneys and report further after the notification period to the ex-NFL players.

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Air bag recalls have risen exponentially in the last year due to increased oversight by the National Highway Traffic Safety Administration (NHTSA). 10 million of the 30 million vehicles recalled in 2014 have been as a result of air bag defects which cause the inflator canister to explode inside vehicles, leading to metal shards flying around inside the passenger compartment.

The defective air bags were manufactured by the Takata Corporation, who began manufacturing air bags in 1988. Takata is one of the three largest worldwide air bags producers, along with the Swedish company Autoliv, and an American supplier TRW Automotive. Seven automobile manufacturers have announced recalls of vehicles containing the Takata air bags, including Toyota, Honda, Nissan, Mazda, Ford, Chrysler and BMW. Honda acknowledged that it was aware of in excess of 30 injuries and two fatalities from defective air bags manufactured by Takata. Despite the fact that Takata had a questionable safety record, with defective seatbelts manufactured by the company leading to 9 million recalls in the 1990’s, automakers have continued to retain Takata for production of air bags.

One devastating example is that of Kristy Williams. In 2010, while waiting at a red light in Georgia, the Takata air bags in her 2001 Honda Civic spontaneously deployed. Ms. Williams was struck by metal shards from the canister that contained the air bag propellant. The sharp shards went through the air bag fabric and punctured her neck and carotid artery. She underwent numerous operations and had several seizures and strokes. Honda and Takata worked out a settlement with Ms. Williams attorneys, with the usual non-disclosed financial terms. There have also been two deaths reported from the defective air bags in Oklahoma and Virginia. Both of these fatal accidents occurred in 2009 and involved Honda vehicles. The cases were settled by Honda and Takata with undisclosed terms.

Takata believes that the defective air bags are due to excessive moisture and humidity seeping inside the inflators, which then destabilizes the propellant inside the air bag. The NHTSA has received 6 reports of air bag inflator ruptures which all occurred in Florida and Puerto Rico, which would be consistent with the theory that moisture and humidity plays a strong part in these incidents. The Administration noted in a statement that it “supports efforts by automakers to address the immediate risk in areas that have consistently hot, humid conditions over extended periods of time.” If the driver’s side air bag explodes, the metal shards are likely to strike the driver, as they did to Ms. Williams in 2010. However, because of its placement in the glove compartment, an exploding air bag on the passenger side will likely send the shards toward the roof of the car, and not toward the passenger.

Honda recently recalled approximately 2 million vehicles with the Takata air bags, Toyota recalled 2.3 million cars, Nissan recalled 755,000 cars, and Mazda recalled 160,000 vehicles.

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The June 7, 2014 accident in which 30 Rock star Tracy Morgan was seriously injured, his close friend James McNair killed, and several passengers injured when a Wal-Mart truck rear ended their Mercedes limousine, has highlighted the significant issue of truck driver fatigue leading to many fatal accidents and serious injuries to occupants of other vehicles.

Prosecutors allege that Kevin Roper, 35, drove a Wal-Mart tractor-trailer into the rear of the Mercedes carrying the six men after Roper had not slept for over 24 hours. In addition to denying the allegations at his arraignment last week, Roper has taken to social media, including Twitter, to deny the allegations. Mr. Roper was charged with one count of death by auto and four counts of assault by auto.

Drowsy driving is a significant safety issue on U.S. roads in 2014. This month alone, there have been at least three fatal accidents involving truck driver fatigue in Austin, Texas, Marseilles, Illinois, and Madison County, Ohio, in addition to the Cranberry, New Jersey accident on the New Jersey Turnpike involving Mr. Morgan, Mr. McNair and the other passengers. Last year, federal regulations were modified to limit truckers’ weekly hours from 82 to 70. These federal rules require that drivers must not work more than an eleven hour day, are required to take a 30 minute break, and must rest at least two nights per week from 1:00 AM to 5:00 AM.

Trucking industry lobbyists are pushing hard to reverse the strengthened safety regulations, claiming that driver fatigue is an exaggerated issue, and that there is no solid evidence that the spate of fatal accidents and serious injuries are attributable to driver fatigue or drowsy driving. Susan Collins, the Republican U.S. Senator from Maine, has introduced an amendment through the Senate Appropriations Committee designed to freeze the application of the modified safety rules until “further study” has been conducted—in other words, Collins is trying to kill the enhanced regulations as she is undoubtedly well supported by the trucking industry in her state. A representative of the Teamsters Union noted that fatigue has long been underreported at accident scenes, and stated: Congestion on the highways is greater than ever, there are more vehicles on the road than ever before, and drivers have to be more attentive than ever…drivers need to get proper rest to do the job that they do.”
In 1990, the National Transportation Safety Board (NTSB) conducted a study of 182 heavy truck accidents in which the driver was killed and determined that fatigue was a factor in 31 % of the accidents, more than drugs or alcohol. The Federal Department of Transportation created the new safety rules using an estimate that fatigue related accidents were approximately 13% of the total trucking accidents. This figure was calculated in a 2006 project called the “Large Truck Crash Causation Study.”

In the Morgan accident on June 7th, the Wal-Mart truck was supposed to be equipped with technology by which the truck would automatically slow down if it approached slow moving traffic or stopped traffic, which obviously did not work. Wal-Mart has refused to provide Mr. Roper’s schedule prior to the crash, despite denying the claims that he was fatigued or had driven for more than 24 hours straight without a break. The company claimed that the investigation into the accident was “incomplete” in refusing to provide Roper’s driving schedule, although this obviously adds to the “incomplete” status of the investigation.

We will continue to follow this story as the enhanced truck safety regulations are fought over in the Senate over the next several months.

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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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