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In a very important decision for the safety of bus passengers, the New York Court of Appeals recently held in the case of Doomes v. Best Transit Corp. that a bus company could be found responsible for a failure to install passenger seat belts. Under New York State statutes, there is no specific requirement that passenger buses be equipped with seat belts. However, the Court determined that by common law (not statutory but by decisions over the years) a jury could find that an owner or manufacturer of a bus could be responsible for injuries from an accident due to a lack of seat belts.

The plaintiffs in Doomes were injured when the bus drove off the highway after the bus driver fell asleep. Clearly, the bus driver was at least partially responsible for the accident, but the jury decided that many of the passengers’ injuries would have been averted if the bus had been equipped with passenger seat belts (the driver did have a seat belt).

The defense attempted to argue that federal law, which does not specifically mandate passenger seat belts in buses) preempted the state jury’s decision in Doomes. In fact, the dissent argued that The National Highway Traffic Safety Administration (NHTSA) made a “conscious decision” that seat belts in buses were unnecessary due to their “size and function.” Thus, the dissent contended that the field of bus safety was in fact regulated by federal law, leaving no room for a contrary decision by a state court jury. However, the Court of Appeals noted that a clause in the federal regulation (known as a “savings clause”) “did not expressly prohibit plaintiffs’ seat belt claims.”

The Court did reject another claim by plaintiffs as to the “weight balance” of the bus, in which the plaintiffs argued that the negligent design and manufacture of the chassis affected the weight balance, leading to the rollover. In that regard, the Court ruled that plaintiffs’ arguments were speculative and not supported by sufficient evidence.

The Doomes decision is one more example of the best news for the safety of New York accident victims in 25 years—the ascendancy to Chief Judge of the Court Of Appeals of Jonathan Lippman in February of 2009. Justice Lippman, who has shown in his almost three year tenure that when the evidence warrants same, he is truly dedicated to the rights of those injured through the negligence of others, despite the large scale and well financed efforts of automobile liability insurance companies, hospital CEO’s, and large corporations to fight these efforts at every turn.

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Earlier this month, 12 former NFL players who played in the late 1990’s and early 2000’s instituted a class action lawsuit in the U.S. District Court of New Jersey, contending that the league failed to inform players of the risks and side effects of the pain killer (and blood thinner) Toradol. Ex-players including Joe Horn, Matt Joyce and Scott Dragos would be given injections of Toradol to numb the pain from injuries suffered during games in order to get them back on the field quickly. The suit indicates that Toradol would mask traumatic brain injuries with long term effects, including concussions, which have led these ex-players to suffer from numerous health problems since their retirement from the league.

When a player suffers a “stinger”, (Concussion in NFL lingo), trainers often conduct a cursory examination including a quick memory test, check of reflexes and coordination, and examine pupil size. If this short examination appears normal, the player is cleared to return to action.

The side effects of a concussion, which is a traumatic brain injury caused by various types of collisions, include:

An altered state of consciousness, such as drowsiness;
Confusion and loss of concentration;
Severe headaches of long term or short term variety;
Mood changes;
Amnesia;
Nausea and vomiting;
Changes in alertness;
Muscle weakness on one or both sides of the body;

Difficulty walking and with balance and coordination.

Nate Jackson, one of the plaintiffs, described in an editorial in the New York Times that when he played for the Denver Broncos, Toradol was often administered to the players prior to a game. The evening before game day, a line of 10-20 players formed to receive their injections. They were told that other than a small risk of internal bleeding, Toradol was safe. It is easy to visualize Jackson’s description of the pressure that he felt from team personnel, including trainers and doctors, to get back on the field as soon as possible or risk being replaced by “spare parts”, as Jackson referred to them. Jackson’s description is compelling: “There was no hesitation, no trepidation, no point at which I felt that taking Toradol was a risk. I trusted our team doctors…they wouldn’t suggest a drug if it was dangerous.”

In the lawsuit, the players accuse the NFL of negligence, fraud, fraudulent concealment, misrepresentation and conspiracy. The 2nd, 3rd and 4th of these charges care essentially the same: that the NFL knew of the specific risks of Toradol, yet chose to not divulge these risks to the players to benefit teams by doing whatever was necessary to keep players off of the disabled list.

The NFL denies that it deceived players and argues that they now make safety a priority, with severe penalties and suspensions for helmet to helmet collisions, for example. Presently, there are numerous lawsuits against the NFL after two dozen players have died from the effects of chronic traumatic encephalopathy (CTE), which is a condition caused by multiple blows to the brain (it used to be known as dementia pugilistica as many boxers suffered from the condition). With CTE, a substance known as “tau” forms on the brain and interferes with cognitive functioning. Former star safety Dave Duerson of the Super Bowl champion Bears and New York Giants was so convinced that he was suffering from CTE that in committing suicide, he purposely shot himself in the chest and requested that the coroner examine his unharmed brain, which examination confirmed the CTE diagnosis.

One of the main reasons that these former players have commenced the Toradol lawsuit, and the other lawsuits claiming undiagnosed CTE, is that the NFL’s health insurance does not cover collision related injuries, so that the ex-players are now left with serious medical problems compounded by major financial difficulties when they have significant medical expenses and can no longer work. Hopefully, this problem will be addressed by the NFL in the near future, as players are faster and bigger than ever and the collisions are likely to lead to an increase in the CTE diagnosis in the future.

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In an analysis of fatal car crashes across the United States for the years 2009 to 2010, the National Highway Traffic Safety Administration (NHTSA) reports that 19 states had an increase in fatalities. However, there were a total of 32,885 traffic deaths in 2010, which was actually a decrease of 2.9% overall from the 33,883 deaths which occurred in 2009. The biggest increase in auto fatalities was seen in Connecticut, where there was an increase of 42% with 224 deaths in 2009 and 319 in 2010. Connecticut officials claim that to form a correct determination, a study should be conducted over a 3-5 year period, because there was a 26% decrease in fatalities from 2008 to 2009 when the economy was at its worst with the onset of the recession.

Other states which had the largest increases in fatalities between 2009 and 2010 were in New Hampshire (16%); Wyoming (16%); Kansas (12%), and Indiana (8.8%). The states with the largest increase in fatal car crashes between 2009 and 2010 were Connecticut, with 95 more deaths, Michigan, with 70 more, Pennsylvania (68 ), Indiana (61) and Ohio with an increase of 58.

Thirty one states, the District of Columbia, and Puerto Rico had reductions in the numbers of traffic deaths between 2009 and 2010. California had the most substantial decrease in fatalities, from 3,090 in 2009 to 2,715 in 2010, which was a 12% decrease. Interestingly, due to the volume of drivers in California as compared to the entire pool of drivers in the United States, California’s 12% drop in deaths accounted for 37% of the national decrease.

California’s 2,715 fatalities were the lowest in the state since 1944, according to the California Office of Traffic Safety. They attribute the substantial decrease to high visibility police enforcement, DWI checkpoints, public awareness programs, safer vehicles, improved road design, quicker EMS response and their statewide safety plan.

Deaths due to DWI decreased 4.9% nationwide in 2010 from 2009. There were 10,228 fatalities in 2010, which accounted for 31% of the overall nationwide deaths, a slight decrease from the 32% in 2009 when there were 10,759 alcohol related deaths in the United States.

Here in New York, the NHTSA study shows that there were 1,158 fatalities in 2009 and 1,200 in 2010, a 3.6% increase. Alcohol accounted for 318 deaths in 2009 and 364 in 2010, so that there was an increase from 27% to 30% of alcohol being the causative factors in road fatalities between 2009 and 2010 in New York.

From 2000 through 2010, fatal car accidents decreased in 47 states and Washington D.C., and increased in Delaware, Connecticut and Hawaii.

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

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

In the Hart case, New York City investigators have determined that the 13 elevators in the twenty eight story, 85 year old building had at least 14 open violations, although allegedly none were safety related. Further, inspection records reportedly reveal 56 violations dating back to 2001, of which 34 were for “failure to maintain elevators.” Apparently, Manhattan Borough President Scott Stringer has been requesting more stringent scrutiny of the elevators at 285 Madison Avenue for several years, and he noted: “I’m very concerned that over a 12 month period, this building received ‘unsatisfactory’ four times on inspections to their elevators.”
Further investigation has uncovered that the building’s elevators were serviced by Transel Elevator Inc., who had last conducted a full inspection of the particular elevator in question in June of 2011, finding no safety issues with the elevators, according to New York City Building Department spokesman Tony Sclafani. Interestingly, however, Transel wrote a report in December of 2010 in which it described the elevators at 285 Madison Avenue as “unsatisfactory.” According to the International Business Times on December 15, 2011, Transel’s representative refused to give details as to the basis for the “unsatisfactory” rating. Scott Stringer noted that it was unclear if the unsatisfactory rating was “for a missing light bulb in the elevator” or “was there real structural damage which caused this horrific accident?”

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

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

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

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In the first in what is likely to be a litany of civil lawsuits, a 29 year old man has filed a personal injury civil lawsuit against former Penn State assistant football coach, Jerry Sandusky, the Second Mile, (the charity for “at risk children” that Sandusky founded) and Penn State University. The plaintiff, who is identified only as “John Doe A”, alleges that he first met Sandusky when he was a ten year old boy through a Second Mile program. He alleges that he was sexually assaulted by Sandusky more than 100 times over a 4 year period from 1992 through 1996.

The plaintiff in this civil lawsuit is apparently not one of the eight victims described in the grand jury report released earlier this month. John Doe A claims that Sandusky recruited him with gifts, travel and privileges as a promising athlete, and that the abuse took place at Sandusky’s home, in the locker room on the Penn State campus, and at the site of a bowl game. It is also alleged that Sandusky threatened the plaintiff and his family if he disclosed the ongoing abuse.

Jeffrey Anderson, the attorney for John Doe A, is a well known lawyer from Minnesota who specializes in “clergy sexual abuse.” Anderson’s co-counsel Marci Hamilton indicated that John Doe A had lengthy discussions with Pennsylvania authorities this week.

I have reviewed the 27 page complaint filed on November 30, 2011 in the Court of Common Pleas in Philadelphia County, Pennsylvania. There are eight causes of action against the three defendants, with $50,000 the monetary amount being sought for each count. The complaint recounts the entire history of the sexual abuse scandal at Penn State, including the well publicized incidents in 2000, when Sandusky was allegedly observed orally sodomizing a young boy by a school janitor, and the 2002 incident when he was allegedly caught raping another 10 year old victim by assistant coach Mike McQueary.

In the complaint, there are causes of action for:

1. Childhood sexual abuse and “vicarious liability”;
2. Negligence;
3. Negligent supervision;
4. Premises liability;
5. Negligent misrepresentation;
6. Intentional infliction of emotional distress;
7. Intentional misrepresentation;

8. Civil conspiracy to endanger children.

The complaint was drafted in a way to establish liability against the “deep pocket” defendants, meaning Penn State and to a lesser extent, the Second Mile, as these are the parties likely to have sufficient assets to satisfy a judgment if the case proceeds to trial and liability (fault) is proven against Penn State and the Second Mile. Many of the allegations contain the language ”knew or should have known”, which is a legal concept known as actual and constructive notice. Essentially, Mr. Anderson is alleging that either Penn State and the Second Mile knew of Sandusky’s abuse of children (actual notice), which can be proven through direct observation of witnesses, conversations, or documents, or should have known,(constructive notice) in that these defendants would have to have been oblivious to clear indications that Sandusky was abusing children but chose to ignore these signs. For example, shouldn’t anyone have been questioning why Sandusky continuously was alone in the company of young boys in locker rooms, at his home, at bowl games and other locations? How come no other coaches were ever present for these activities?

The vicarious liability action, which means that one party can be found responsible for the actions of another, is premised on the fact that Sandusky was a representative and employee of the Second Mile and Penn State, who could be held accountable if it is established that Sandusky was acting as their representative in his interactions with children.

Of these eight causes of action, only the first and third were commenced against all three defendants, including Sandusky. Clearly, the manner in which the complaint is written is designed to establish fault against Penn State and Second Mile for placing Sandusky in a position in which he would have access to young children and be in a position to engage in abuse. Anderson knows that Sandusky does not have the assets that a huge corporation such as Penn State has, or to a lesser extent, the Second Mile, to pay a judgment if the case proceeds to trial. Further, there is also a significant insurance coverage question. Many policies are written to exclude coverage for intentional actions, or to exclude insurance coverage for sexual assault.

It is not at all surprising that Sandusky has reportedly transferred the title of his house to his wife, unquestionably fearing civil lawsuits and the loss of his assets. However, there is a concept in the law by which if assets are transferred in anticipation of litigation, the transfer can be voided as fraudulent. On the other hand, some states do have an exemption for the homestead, potentially removing Sandusky’s house as a possible asset to satisfy a judgment. If Sandusky has bank accounts or stocks, those are assets which he will undoubtedly have a problem transferring and or protecting now that the first of several civil lawsuits has been filed.

We will continue to report on the Penn State scandal as it is apparent that this is the inception of what is certain to be a litany of criminal and civil lawsuits, with a wide range of legal issues to be resolved.

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For those of us who have represented the victims of serious New York car accidents over the last 25 years, the No-Fault threshold has proven to be a minefield of inconsistent and unfair results and decisions, particularly when comparing the decisions of Courts in the First Department, which includes Manhattan and the Bronx, with the Second Department, which is comprised of Brooklyn, Staten Island, Queens, and several suburban counties including Westchester, Rockland and Dutchess Counties. More specifically, decisions in Manhattan and the Bronx in cases in which the injured person has suffered injuries other than fractures (which automatically meet the “No-Fault threshold” and thus can be pursued in Court) are much more favorably received by the appellate Courts when the defendant makes a motion to dismiss than they are in the 2nd Department.

The No-fault threshold, which is defined in Section 5102 (d) of the New York State Insurance Law, requires a specific level of injury suffered in a car accident before a plaintiff can successfully commence a lawsuit for compensation. Injuries that automatically meet the no-fault threshold include a fracture, a disfigurement, a dismemberment, death, the death of a fetus, and a series of very specific type of soft tissue injuries which are subject to much interpretation and confusion. This latter group of injuries, including “a significant limitation of use of a body function or system”, and “permanent consequential limitation of use of a body organ or member”, are the specific problem areas, in which the same exact injury might be considered a “serious injury” which meets the no-fault threshold in the Bronx, but does not pass muster in the more conservative and harsh viewpoint of judges in the Second Department.

As a classic example, I have represented clients who suffered torn labrums or rotator cuffs, and had surgery as a result, who are determined to have a “serious injury” meeting the No-fault threshold in the Bronx, yet that same injury and surgery in Westchester does not qualify as “serious” in the view of the presiding judge. Further, herniated discs in the back or neck form the basis of a large percentage of defense motions to dismiss for lack of a threshold injury due to the legal uncertainty and inconsistency that surrounds cases involving these injuries. Ironically, an injury as potentially minor as a fractured pinky or toe without long term treatment is automatically a threshold injury, whereas a victim of a car crash with long term treatment for back or neck herniations could be facing a motion to dismiss their case for lack of a “threshold” injury.

In the last few years, the appellate Courts have added another onerous requirement to cases in which the injured person suffers soft tissue injuries, which the Court of Appeals, and specifically Chief Judge Lippman, has finally dispensed with as not required by Section 5102. That requirement was that the treating doctor for the victim immediately record specific findings of lost range of motion of the injured body part, whether it be an arm, leg, hip, back, neck, or ankle, and if there were no contemporaneous range of motion findings, the case would be subject to dismissal. This harsh result was the scenario in a trio of cases which the Court of Appeals decided to review, and in two of those three cases, the Court of Appeals reversed the dismissal and remanded the cases back to the lower Court for a trial by jury.

The three cases were brought by Joseph Perl, David Adler, and Sheila Travis and for purposes of this article, we are focusing on the first two cases. In the Perl case, Mr. Perl testified that as a result of his accident, he could no longer have marital relations, garden, or carry packages while shopping. Mr. Adler testified that he was having trouble lifting his children and ambulating. In both cases, the treating doctor conducted several tests upon his initial examinations, found that there was some restriction of range of motion and strength, but he did not quantify the lost ranges of motion that he observed in the examinations. However, several years later, the treating doctor did use instruments to document that both men had suffered specific, quantifiable losses of range of motion. As a result of the treating doctor’s failure to provide contemporaneous loss of range of motion, both cases were dismissed at the lower Court level.

Finally, at long last for practitioners in the field of automobile accident litigation, New York’s highest Court clarified the long held belief that the No-Fault statute does not require “a contemporaneous demonstration of restricted range of motion”, and noted that a qualitative assessment of the plaintiff’s condition will also suffice to meet the requirements, as long as this assessment has an objective basis and compares the plaintiff’s limitations to normal function. In music to the ears of plaintiff lawyers in auto accident litigation, the Court stated:

“We agree…that a rule requiring contemporaneous numerical measurements of range of motion could have perverse results. Potential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries. We therefore reject rule that would make contemporaneous quantitative measurements a prerequisite to recovery.”

Our next objective is to lobby the New York State Legislature to expand the definition of a threshold injury to include herniated discs of the cervical or lumbar spine, torn tendons of the arm such as a torn labrum or rotator cuff, and tears of knee cartilage, ligaments or tendons such as a torn anterior cruciate ligament or torn meniscus.

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A recent decision by the Court of Appeals, New York’s highest Court, in the case of Lifson v City of Syracuse and Klink highlights the “emergency doctrine”, which can have a huge effect in motor vehicle accident cases, as it did in this case. Irene Lifson, along with the defendant Derek Klink both worked in the MONY Plaza, a large office building in Syracuse, New York. On February 29, 2000, at approximately 4:00 PM, Mr. Klink made a left turn heading westbound near the building where many employees cross the street to get retrieve their cars. As he was making his left turn, Mr. Klink claimed that he was momentarily blinded by the sun, and his vehicle struck and killed Ms. Lifson.

During the wrongful death trial, Klink’s attorney requested that the jury being given the emergency charge, which states in essence that if a driver is confronted with a “sudden and unexpected” condition, not of his or her own making, which leaves little or no time for deliberation, the driver may not be held responsible if his or her actions were reasonable under the circumstances. Giving a jury the emergency instruction is a very powerful and persuasive advantage for a defendant, since it provides the jury with a means to absolve the defendant of all responsibility for his or her negligence, and coming from the presiding judge, implies (even if not intended this way) that the judge believes that an emergency existed at the time of the accident.

This is exactly what occurred in the lower Court trial in the Lifson case, as the jury decided that Mr. Klink had been faced with a sudden emergency of sun glare in his eyes, and the jury decided that the accident was primarily the fault of Irene Lifson and to a smaller extent, the City of Syracuse. However, in a decision written by Judge Lippman, the Chief Judge of the Court of Appeals, the Court reversed the lower Court decision and remanded the Lifson case for a new trial. The rationale for the reversal was that this was not a sudden, unforeseeable emergency that Mr. Klink was confronted with. Rather, at 4:00 PM. on a February day heading westbound, Mr. Klink should have anticipated that he would be faced with sun glare, and he could have taken measures to avoid this (including wearing sunglasses, although this was not mentioned specifically in the decision).

Thus, this was a circumstance of Mr. Klink’s own creation, and not a “sudden, unforeseeable, unexpected” emergency. Judge Lippman distinguished previous cases in which the Court did find a sudden emergency, including the numerous cases involving a child suddenly darting into traffic, leaving the driver no time to react before striking the child, which would constitute a true emergency. Another example of the possible applicability of the emergency doctrine would be cases of black ice when the roads are otherwise completely clear, and the weather is not a factor at the time of the accident.

In my own trial experience, there is a huge battle between plaintiff’s attorneys and defendant’s attorneys on the emergency charge, involving memoranda of law and oral argument, which was exemplified in the original case in Lifson. The charge gives the jury the impression, despite any efforts by the presiding judge to avoid this, that the defendant was confronted with conditions and circumstances that were not of his own creation. This often leads to “defense verdicts”, in which the injured victim is left with no compensation for substantial and sometimes fatal injuries. Luckily, in Lifson, Judge Lippman rectified an unfair and unjustified result from the lower Court, and a new jury will now decide the Lifson case.

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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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Courts that specialize in medical malpractice cases are now increasing in New York City. The initial program was started in Bronx County approximately 15 years ago through the supervision of Justice Douglas McKeon in response to the filing of 4,000 medical malpractice cases annually. The idea was to reduce Court backlogs and save New York City money. More specifically, the New York City Health and Hospitals Corporation was seeking to manage filed claims and reduce payouts with regard to the 11 public hospitals it operates.

Judge McKeon has claimed that since he began focusing on resolving medical malpractice cases, he has settled approximately 1,000 which otherwise would have further clogged an already overtaxed Court calendar. Presently, McKeon meets with attorneys for malpractice litigants in 12-15 cases monthly. Due to the success of this system, it has now been expanded to include courts in Brooklyn, Queens, Manhattan, and upstate in Erie County.

In the 1980’s and early 1990’s in Westchester County, there used to be a program by which before a medical malpractice case could be filed, it would have to be presented to a medical malpractice panel comprised of one judge, one physician and one attorney, which would make a determination whether or not the case had sufficient merit to be instituted. Only if 2 of the 3 panel members decided that the case was meritorious would the plaintiff’s attorney be permitted to file the case in Court.

New York Chief Administrative Judge Ann Pfau noted that the program has been saving City hospitals money and having an impact on physicians’ malpractice premiums. Beginning on December 1, 2011, and utilizing a $3 million dollar federal grant, Judge Pfau will become the coordinating judge of the State Court’s medical malpractice program, responsible to train judges in how to properly handle malpractice claims. Additionally, Judge Pfau will begin conducting conferences to resolve these claims in Brooklyn as Judge McKeon does in the Bronx.

Judge McKeon claims that the City now settles approximately 95% of its medical malpractice claims filed against the Health and Hospitals Corporation. Further, the Health and Hospitals Corp. has announced that its payouts on claims dropped from $196 million in 2003 to $130 million in 2010. The program includes an early investigation of claims and attempts to settle cases before they reach the trial stage. In Counties such as Kings and the Bronx, where litigants can wait for years to obtain a trial date, and be forced to endure numerous delays before the case actually gets into a courtroom, any effort to resolve cases on an expedited basis is most welcome.

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