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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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In the New York Times on October 30, 2011, there was a very enlightening article by Gina Kolata on screening for three types of cancer: prostate, cervical and breast. Traditionally, the thinking has been that cancer screening is always the best means to prevent a cancer diagnosis. However, in the last two years, the United States Preventive Services Task Force, which reviews screening guidelines and analyzes cancer cases, has reported some eye opening findings and recommendations, including:

1. Women in their forties do not automatically benefit from annual mammograms, and women who are between the ages of 50 and 74 can have mammograms every two years, rather than annually;
2. The P.S.A. screening test for prostate cancer does not save lives, and the treatment performed as a result of abnormal P.S.A. tests can have serious negative effects; and

3. Women should consider having PAP tests for cervical cancer once every three years rather than annually.

The new thinking appears to be grounded on various studies that have analyzed the efficacy of cancer screening. For example, with regard to PSA testing, there were two large studies conducted, one in the United States and one in Europe. The U.S. study concluded that annual PSA tests do not lower the risks of dying from prostate cancer at all. The European study determined that a very small percentage of men in a certain age group might benefit from PSA screening every two to seven years, rather than annually. The issue is that in 90% of cases, prostate cancer grows so slowly that when these cancers are found in the early stage, they will never be life threatening. Further, the problem with PSA results is that if they are abnormal, this can lead to unnecessary procedures such as biopsies, which can cause incontinence and impotence.

There is also a misconception about PSA tests, which many believe can reveal cancer. In fact, PSA tests simply measure inflammation, which can be caused by normal enlargement of the prostate with age, an infection, strenuous bicycle riding or horseback riding, or recent sexual relations. Notably, the American Cancer Society does not recommend PSA testing, nor does the United States government.

Regarding mammograms, the Preventive Services Task force found that although mammograms discover cancer in 138,000 females annually, between 120,00 and 134,000 of these women have cancers which are already malignant or, conversely, at such an early stage that they do not require treatment. Dr. Otis Brawley of the American Cancer Society notes: “We need to be more cautious in our advocacy of these screening tests…no longer is it just, can you find the cancer?…now it is, can you find the cancer, and does finding the cancer lead to decrease in the mortality rate?” Dr. Brawley also pointed out that many if not most cancers grow very slowly, or stop growing altogether, and some even regress and don’t need to be treated at all.

Naturally, urologists, radiologists, and oncologists heavily promote and are firmly behind the annual screening protocol, but without question, there is a financial interest there, with all the money that is earned on testing, particularly MRI’s, CAT Scans, and other radiological examinations. Further, many doctors fear personal injury lawsuits, which cannot be discounted if a particular cancer is not diagnosed in time, even if screening would not have made a difference. Additionally, in many cases, due to the fear of cancer, patients will want to take their chances on the possible risks of screening to prevent the possibility of being diagnosed with a malignancy.

There was an astonishing statistic published in the current issue of the New England Journal of Medicine. Two prostate cancer specialists, Dr. Allan S. Brett and Dr. Richard J. Albin, noted in a recent study that more than 5 million dollars must be spent to prevent one prostate cancer death! Dr. Brett and Dr. Albin concluded that the P.S.A. screening approach is not appropriate in determining health care priorities. Dr. Brawley also pointed to the fact that we are viewing cancer from the 1845 definition of the German physician Dr. Rudolf Virchow, who looked at tumors in autopsies and defined them as uncontrolled growths that spread and kill. Yet Dr. Virchow never examined non-lethal cancers or tumors that stop growing or grow particularly slowly, as in many cases of prostate cancer.

One conclusion that can be drawn from the above studies is that before accepting the necessity of undergoing various screening examinations for cancer, you should have an in depth conversation with your physician as to the risks and benefits of the particular procedure, as well as the likelihood that you are a candidate for that particular type of cancer.

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The National Highway Traffic Safety Administration (NHTSA) recently released a study of seatbelt usage among all age groups and races around the United States. The study was conducted in June of 2009, and involved 70,493 occupants in 49,475 vehicles in 1,496 across the U.S. The study is known as the National Occupant Protection Use Survey (NOPUS), performed by NHTSA”s National Center For Statistics and Analysis, and the focus is on seat belt use, motorcycle helmet use, child restraint use with children under the age of 8, and the use of electronic devices in vehicles.

One of the most significant findings of the most recent study is that seat belt use is lowest among those 16-24 years old. In that category, seat belt usage was at 81%. Those aged 70 and above had the highest usage with 86%, only a small percentage above 25-69 year olds, who wore their seat belts 84% of the time.
Males wear their seatbelts 81% of the time, whereas females are safer at 87%. African Americans wear their seatbelts at a 79% rate, which is a significant increase over the 75% that used the seatbelts in 2008. Caucasian seat belt usage was 84% in 2009, a small increase over the 83% observed in 2008.

Seat belt usage in rear seats has been tracked in this particular study since 2004, with only 70% of passengers in rear seats wearing their seatbelts, although this is a large increase from the 47% that wore seatbelts in the rear seats in 2004. Conversely, seat belt usage overall in front seats has been very consistent, with 80% using their seatbelts in 2004, and 84% wearing their seatbelts in the front seats in 2009. There is a significant difference between rear seat belt usage if the State’s law requires it, with 78% wearing their rear seat belts if the law requires this and only 64 % wearing rear seat belts if there is no regulation in place for rear seat belts.

Children between birth and age 7 are restrained at 88%, a slight increase over 2008 at 87%. The Midwest registered a substantial increase in seat belt usage for infants, from 85% in 2008 to 90% in 2009. Overall, the west had the highest seat belt use in the country, with 95% in 2009, and the south has the lowest, at 82%.

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Earlier this year, over 125 former NFL players, including Mark Duper, Ottis Anderson, and Jim McMahon, filed lawsuits against the N.F.L. in Los Angeles Superior Court and the United States District Court in Pennsylvania. The basic allegations are that the NFL, as well as the helmet manufacturer Riddell, knew that repeated concussions would cause traumatic brain injury and long term debilitating cumulative effects, such as memory loss, dementia, depression, and what is known as CTE, or chronic traumatic encephalopathy. CTE is the more formal name for dementia pugilistica, or “punch drunk syndrome”, which was (not surprisingly by its name) a disease which used to be diagnosed in boxers after years of blows to the head. In CTE, which presently can only be diagnosed on an autopsy, the brain shows evidence of protein deposits called “tau” from damage to brain tissue from repeated blows.

The players have also claimed that in 1994, the N.F.L. authorized a study entitled “NFL Committee on Mild Traumatic Brain Injury” and that this investigation incorrectly resulted in findings that multiple concussions did not lead to chronic cumulative damage to the brain. Thus, the players argue, they were never warned that multiple blows to the head could lead to the devastation of memory loss, depression, mood changes, dementia and severe headaches, along with CTE. Alternatively they have claimed that the findings of the study were fraudulently concealed and that the NFL did have evidence from the study of the long term debilitating effects of repeated head trauma.

Tragic deaths of former NFL stars have brought the CTE issue into the forefront, including, most recently, that of Dave Duerson, a star defensive back for the 1985 Super Bowl champion Chicago Bears and later the New York Giants in their championship 1990 season who committed suicide in February of this year. Duerson was a successful businessman after his NFL career ended, but then began complaining to his family of headaches, blurred vision and a deteriorating memory in the months before his death. Duerson was so convinced that he was suffering from CTE that he shot himself in the chest, rather than the head, so that his brain could be studied by the Boston University Center for the Study of Traumatic Encephalopathy, Duerson’s suspicions were confirmed at autopsy when it was discovered that the Neuropathologist who examined his brain found indisputable evidence of CTE, with “no evidence of any other disorder.” Similarly, in 2002, Mike Webster, the hall of fame, four time Super Bowl Champion center for the Pittsburgh Steelers during their 1970’s heyday, died after years of anguish and cognitive dysfunction caused by damage to his frontal lobe from numerous concussions. Ironically, Webster was known during his playing career as an undersized, overachieving and disciplined ballplayer, who played for 17 seasons, yet he died after suffering from bad health, depression and having pled no contest to forging prescriptions to obtain Ritalin.

The players claim that their motivation for the lawsuit is threefold: to prevent present NFL players from suffering the same fate from repeated concussions; to implement a system by which players will receive the short term and long term medical care they need if suffering from brain injuries; and to obtain compensation for the injuries they suffered. The NFL’s defense is premised on the following: that the players knew of, and assumed any risks of injury when they played football; the NFL was not responsible for any of the injuries that the players suffered; and the appropriate forum for resolving the players’ claims, as contained in the collective bargaining agreement, is arbitration, not a jury trial.

Taking each of the NFL’s arguments in order, if I were arguing for the player’s in these cases, it seems clear that the original practice and thinking about helmet to helmet collisions and concussions was faulty. Routinely from the beginning of NFL history through at least the mid 1990’s, players and coaches would refer to severe collisions as “stingers” or “getting your bell rung.” If a team doctor was even summoned to check out the player, as long as he could answer a few rudimentary questions accurately, they would be allowed to remain in the game. There was tremendous pressure on the player to keep playing, particularly if the player was not a star and could be replaced.

The second argument by the NFL that the league is not responsible for the spate of injuries and deaths of former players is belied by recent changes that the NFL has now made in recognition of the clear evidence otherwise. Players who commit helmet to helmet penalties are now subject to suspension and fines. A player who suffers a concussion is not permitted to remain in the game under the new “return to play guidelines” implemented in 2009. Certainly, if that 1994 study did in fact warn of the dangers of repeated concussions and these warnings were concealed by the NFL, this would create significant liability problems for the league.

Lastly, it is blatantly obvious why the NFL would want to keep these cases in an arbitration setting. If a jury believes that the NFL concealed or lied about evidence of long term effects from repeated concussion or head injuries, there could be huge verdicts which would likely be more substantial that any potential arbitration determination.

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Ridge Barden, a 16 year old Phoenix, New York high school football player, died on October 14, 2011 after suffering a concussion and traumatic brain injury (TBI) during a game for Homer High School. Barden was a defensive tackle for the team, and died a few hours after falling to the turf in the 3rd quarter of the game following a blow to the head. The coroner determined the cause of death to be subdural hematoma, and massive swelling of the brain.

A subdural hematoma occurs when blood vessels rupture between the brain and the outermost of three membranes that cover the brain, (the dura) resulting in a collection of blood. Subdural hematomas can occur acutely, from a severe blow to the head, subacutely, in which the signs and symptoms can occur days or weeks later, or chronically, in which the precipitating cause might not even be known or remembered by the person suffering the condition. (Additionally, the elderly, people taking aspirin daily, or alcohol abusers can also suffer a subdural hematoma).

Coaches and school administrators watched a video of the game to determine if they noted a particularly violent collision which caused the fatal injury to Barden. Also under scrutiny was the helmet that Ridge was wearing, known as a Riddell “Revolution”. There are lawsuits pending by former NFL players against the league and Riddell Sports, Inc., the manufacturer of football helmets, alleging that former players now suffer from severe injuries from repeated collisions and concussions, including dementia, and CTE, meaning chronic traumatic encephalopathy. Chronic traumatic encephalopathy is a progressive debilitating disease suffered by people who have had multiple concussions or other head injuries. The brain tissue deteriorates from the blows and a protein called “tau” accumulates on the brain. CTE is also known as “dementia pugilistica”, since until recently the huge majority of these cases were diagnosed in boxers.
Teenagers are considered to be more at risk for concussions and traumatic brain injuries as the brain tissue is not completely developed. The National Center for Catastrophic Sports Injury Research notes that Ridge Barden was the 13th high school football player to die from a brain injury since 2005 and the third in 2011. An additional 5 college football players have suffered fatal brain injuries during a game in that same 6 year span. In Ridge Barden’s case, there was apparently no prior history of head trauma or concussion, and the autopsy did not reveal any previous brain injury.
During a recent Senate Commerce Committee Hearing, the topic being addressed was whether manufacturers of sports equipment made misleading statements and claims about their products. Several neurosurgeons and sports concussion experts testified who specialize in traumatic brain injury and sports concussions. Dr. Kevin Guskiewicz, the chairman of the department of Exercise and Sports Science at the University of North Carolina testified that Ridge Barden’s life could only have been saved if he had undergone an immediate operation to relieve the pressure on his brain as a result of the subdural hematoma. However, the problem is that in order to diagnose the issue, a CAT Scan must be ordered, and Barden’s condition deteriorated to quickly allow him to undergo a CAT Scan.

Dr. Robert Cantu, a neurosurgeon at Boston University and well known expert in the field of sports related head trauma and injuries, explained that when a person is conscious immediately after a trauma, and then deteriorates quickly as in Ridge Barden’s case, the cause of death is not the subdural hematoma, but massive brain swelling. Frequently, the fatal injury is due to a previous trauma to the brain compounded by a second impact in close proximity in time to the first. Dr. Cantu calls this “second impact syndrome” in association with subdural hematoma.

After a House Judiciary Committee hearing in October of 2009 in which NFL Commissioner Roger Goodell was pounded with questions about the NFL’s concussion policies, the NFL changed its rules to require that a player diagnosed with a concussion would not be permitted to return to that same game even if he was not experiencing any symptoms.

In the wake of the truly tragic death of Ridge Barden, numerous other high school and college football players like him, and the continuing litigation by former NFL players against the league and Riddell, changes must be contemplated and hopefully implemented. One possibility would be to terminate the three point stance for linemen, (with one hand on the ground as well as two feet), and go to a two point stance, in the expectation that this would limit helmet to helmet contact and result in more blocking with arms and hands. Another possibility would be to eliminate the purposeful helmet hit whereby running backs lower their heads into a defender to garner some additional yardage, and defenders respond by lowering their heads as well. Something else to consider would be fewer full contact drills, which undoubtedly contribute to the long term problem—after all, there are no referees blowing a whistle for helmet on helmet contact, and it is certainly unlikely that a head coach or assistant coach at any level would lecture a player for being too aggressive with an opposing teammate in practice.

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In an article written by Barry Meier in the New York Times on October 1, 2011, there has been a significant failure rate of metallic artificial hips of late, which has led to recalls and defective product lawsuits. Across the United States and in Europe as well, numerous patients are looking to have metal on metal artificial hips removed and replaced. The problems stem from small pieces of metallic debris that break off the devices causing tissue damage and loss of muscle surrounding the artificial hip.

It appears that many when patients sought out their original surgeons to complain of substantial pain and muscle problems, they were informed they were fine, (normal diagnostic scans and/or blood tests) which allowed the issues to be exacerbated, with the possibility of lasting tissue damage.

The failure process is generally seen as occurring in the following manner:

1. Metal fragments get released into the body;
2. Scavenger cells try to engulf them and to digest some of the fragments;
3. The metal fragments are broken down into ions, which react with tissues;

4. Ions react chemically with tissue, causing some tissue to die and the possibility of early failure of the hip.

The research at present points to only a small percentage of the 500,000 people who received all metal hips that are now encountering problems. However, since some patients may not report pain, tissue damage could be occurring without them knowing it. The article discusses Dr. Young-Min Kwon, an orthopedic surgeon at Massachusetts General Hospital, who has been treating many patients with failed metallic hips, and who is seeing increasing numbers of patients with failures. Dr. Kwon noted that: “what we are seeing is a complex phenomenon.”

A study in England determined that all metal hips failed 3 times as often as metal hips that contained plastic components as well. The Food and Drug Administration (FDA) reported more than 5,000 complaints about all metal hips in the first six months of 2011. There have been recalls in the Johnson and Johnson Depuy division of artificial hips due to the significant early failure rate. Further, there have been numerous product liability lawsuits, including one mentioned in the article by Cyndi Lafuente, an IRS advisor who found out in 2010 that the artificial hip she received in 2007 was being recalled by Johnson and Johnson.

Often, the problem is not determined by diagnostic examinations or blood tests, which can be normal despite the ongoing tissue damage engendered by the metallic debris turning into ions in the body. The FDA has ordered manufacturers of artificial hips to institute studies to determine how often the metal artificial hips are failing and the effects on patients from that failure. However these studies will not be completed for several years while the failures continue. Interestingly, there have been patients with high level of metallic debris that nevertheless do not have tissue damage, and some patients with tissue damage yet normal metal blood levels.

In Ms. Lafuente’s situation, she was having occasional groin discomfort and excessive subluxing, or partial dislocation, of the hip joint. As is typical in these cases, her physician referred her for an MRI and CAT Scan, which both came back as normal, as did a blood test. She was concerned that metallosis was causing permanent injury to the bone and muscle surrounding her hip joint, and not satisfied with the “wait and see” approach of her physician.

Fortunately for Ms. Lafuente, an Internet search resulted in an informal consultation with Dr. David Langton, an orthopedist in England who recommended that she undergo a hip aspiration. Hip aspiration involves the removal of synovial fluid from the hip joint to determine if there is an infection or other ongoing process. In the U.S., aspiration is not generally performed until radiological and blood tests have been completed, although metallic debris initially accumulates in the synovial fluid rather than the blood. Ms. Lafuente returned to her surgeon, he aspirated her hip, and the results showed that she had a full 10 times the normal amount of metal in the synovial fluid. Based on this significantly high metal count, the surgeon performed hip revision surgery shortly thereafter, and fortunately for Ms. Lafuente, there was no permanent damage to the bone or muscle surrounding the artificial hip. She is still recovering, albeit the process has apparently been slow and arduous. The conclusion from this seems to be that in artificial hip cases, do not simply rely on normal MRI, CAT scan, and blood tests, nor should you accept a surgeon’s “wait and see approach”, especially in cases where the artificial hip has been recalled.

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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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