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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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Over the last several months, there has been a major initiative by some doctors and former NFL players to review, analyze, and develop a plan for how to prevent or limit what is known as “traumatic brain encephalopathy” (injury to the brain caused by repeated blows to the head). On February 20, 2011, this condition was in the spotlight when Dave Duerson, a former star safety for the Chicago Bears, died from a self-inflicted gunshot wound to the abdomen. Duerson specifically shot himself in the abdomen to ensure that his brain could be examined–a brain that he was convinced was diseased from many years of teeth shattering blows to the head. Duerson was involved in more than 550 tackles during his playing career with the Chicago Bears and New York Giants.

It has been shown that approximately 20 former professional football players died at a young age from brain damage associated with traumatic brain encephalopathy. This figure also includes Mike Webster, (known as “Iron Mike” during his playing career) a hall of fame center for the Pittsburgh Steelers, who died of a heart attack after years of depression, financial losses, and multiple suicide attempts. Neuropathologist Dr. Bennet Omalu, who at the time of Webster’s death was in the Pittsburgh Medical Examiner’s Office, found that Webster’s brain had large deposits of “tau”, a protein which is in the brain’s microskeleton. According to research, with repeated head trauma, tau loses its self repairing ability and begins to accumulate, causing tangles and threads in the neocortex which can mimic the symptoms of Alzheimer’s disease or Lou Gehrig’s Disease.

Dr. Omalu is of the firm opinion that due to the significant risks of brain disease from repeated head trauma, infants under the age of 18 should not play football, and stated in an interview that “There is no reason, no medical justification, for any child younger than 18 to play football, period.” He also noted that: “The brain is not fully developed until about age 18. Impact to the head in younger people may not cause any obvious damage that could be seen on CT or MRI, but on the cellular, epigenetic level there is damage.”

Since the 1920’s, doctors have known that repeated trauma to the brain could lead to neurologic and cognitive deterioration that many boxers suffered from, known initially as “dementia pugilistica.” At one time, the assumption was that former athletes who became depressed, abused drugs and lost their families and fortunes were simply not able to cope with life after the glory and adulation of professional sports. But with numerous cases of traumatic brain encephalopathy being reported in football players, hockey players, boxers and military members over the last several years, Boston University established a research institute known as the Center for the Study of Encephalopathy to more thoroughly investigate the effect of repeated head trauma in athletes.

A report published in the Journal of Neuropathology and Experimental Neurology in 2009 evaluated 5 football players and 30 boxers who were dying at very young ages–the football players at age 44 on average and the boxers at age 60. The symptoms they experienced included severe mood disturbances, memory loss, and aggressiveness. Four of the five football players died tragically in suicides, a high speed car chase, and a gunshot wound. The Boston Institute has started a “brain bank” with approximately 100 living players agreeing to donate their brains for research purposes when they die to study chronic traumatic encephalopathy further.

In a more recent development adding further credence to the theory of trauma induced brain injury in professional athletes, in the last 4 months, 3 professional hockey players have committed suicide. Each of these players were known as “enforcers”, and blows to the head were both expected and routine, leading to numerous concussions. Wade Belak, the 35 year old forward for the Nashville Predators hanged himself on August 31 in Toronto; 27 year old former Winnipeg Jet Rick Rypien committed suicide in August; and 28 year old former New York Ranger Derek Boogaard took a fatal drug overdose in May. Belak fought 136 times in his 549 game career in the N.H.L, and assessed 1,263 penalty minutes.

To force the NFL’s hand on dangers which have been known for many years but not properly addressed, 7 former NFL players filed a class action lawsuit in July of 2011, contending that the league failed to properly treat concussions and attempted to cover up the connection between playing football and developing brain injuries. We intend to closely follow the progress of this case and its implications for athletes across the United States at all levels of football, hockey and other contact sports.

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Bicycle riding is more popular than ever in the United States, and according to studies, is exceeded only by walking for exercise and swimming in popularity. Unfortunately, bicycling can be a very dangerous activity if common sense measures are not followed, for several reasons, but most significantly, due to many bicyclists sharing the roadways with motor vehicles. This fact is shown by National Highway Traffic Safety Administration (NHTSA) studies, which indicate that there were 718 bicyclists killed in fatal accidents in 2008, and 630 in 2009.

The most dangerous time to ride a bicycle is between the hours of 4:00 PM and 7:59 PM. 70% of fatal bicycle accidents occur in urban areas, and a majority of accidents happen in non-intersections. Males are much more likely to be involved in fatal accidents as well as suffer serious injuries in bicycle crashes, with 82% of the total fatalities and 80% of injuries, according to NHTSA.

The following are the most important safety measures which bicyclists should follow to avoid serious injuries and death:

A. Wear a bicycle helmet. NHTSA reports that bicycle helmets are 85-88% effective in preventing fatal injuries and non-life threatening injuries;
B. Obey all traffic controls such as stop signs, traffic lights, and yield signs;

C. Bicyclists must comply with all rules of the road, including Section 1231 of the New York Vehicle and Traffic Law, which states in relevant part: “Traffic laws apply to persons riding bicycles…Every person riding a bicycle …upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a motor vehicle by this title.”

D. Bicyclists should wear reflective and bright clothing at nights and use reflective devices on their bicycles to ensure that drivers see them;
E. Comply with Vehicle & Traffic Law Section 1236 (a) and (e) by equipping their bicycles with a front white light that emits light 500 feet forward and a rear red or amber light which emits light 300 feet to the rear between the hours of 30 minutes after sunset to 30 minutes before sunrise;
F. Bicyclists should never travel in the opposite direction of traffic on the roadway;
G. Bicyclists must always be aware of debris in the roadway, pedestrians, animals and weather conditions.

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According to a study by the consumer protection group Public Citizen, medical malpractice awards are at an all time low in the United States. Public Citizen used data collected from the National Practitioner Data Bank (NPDB), which started tracking payments made in medical malpractice cases in 1990. The 2010 report, released recently, found that malpractice payments made for physicians in 2010 was the lowest on record. This information should be imparted to all physicians who claim that personal injury lawyers are responsible for the increase in their malpractice premiums. Clearly, that is not the case, and the true culprits are the powerful insurance companies and their well paid/connected lobbyists, who consistently manage to thwart all reform efforts to remedy the insurance crisis in this country.

The study showed that the number of payments made for malpractice claims dropped from 16,566 in 2001, to 10,195 in 2010. Despite the dramatic decrease in medical malpractice awards, insurance companies are the real winners, continuing to increase premiums and reap significant profits. According to Public Citizen, malpractice payments amounted to a scant 0.13% of total health care costs. They found that total health care costs increased a massive 90% between 2000 and 2010, with medical malpractice claims dropping 11.9% during that same ten year time frame.

There has not been a corresponding decrease in medical mistakes while malpractice payments have decreased, the study finds. They cite three studies published in 2010 and 2011. Among these was from the Inspector General of the Department of Health & Human Services, who reviewed the cases of Medicare patients in U.S. hospitals. This study concluded that one in seven Medicare patients experienced a “serious adverse event”, which contributed to death in 1.5% of patients. Further, they determined that almost half of the adverse events—44%–were preventable.

The authors of the report concluded that the true medical malpractice crisis is not due to substantial medical malpractice awards, but rather the “epidemic of medical errors.” We hasten to add, and a huge insurance problem in which insurance companies make substantial profits but consistently deny legitimate claims while racking up the profits.

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Dominique Strauss-Kahn, the French former managing director of the International Monetary Fund who was just released from criminal jeopardy when the Manhattan District Attorney’s Office dropped sexual assault charges against him on August 23rd, still faces the possibility of a civil damages award. As is well known, Strauss-Khan was accused by 33 year old Hotel Sofitel employee Nafissatou Diallo of forcing her to engage in oral sex when Ms. Diallo entered Strauss-Kahn’s suite to clean on May 14, 2011. Although the initial evidence against Strauss-Kahn seemed compelling, including the fact that Diallo had his semen on her clothing and he attempted to flee the United States soon after the encounter, further investigation by the Manhattan District Attorney’s Office post indictment resulted in major credibility questions as to the accuser. These included the fact that she lied about being gang raped in her native Guinea, lied on an asylum application when she first arrived in the United States, and was recorded speaking with a friend and mentioning Mr. Strauss-Kahn’s finances and stating that she “knew what [she] was doing.”

Earlier this month, as the criminal case appeared to be crumbling, Ms. Diallo went public with her allegations, appearing on major news programs and in national magazines. She filed a civil lawsuit in the Bronx County Supreme Court, alleging that Strauss-Kahn had sexually assaulted her and seeking unspecified money damages. If this case had been brought prior to November of 2003, when the New York Civil Practice Law & Rules was amended to disallow identification of the amount being sued for in lawsuits, it is likely that Diallo would be suing for multi-millions. Under the law presently, the defendant’s attorneys must submit a demand for the “ad damnum”, or amount being sued for, to glean what the alleged damages are.

There is a significant difference between the burden of proof that the prosecution must establish in a criminal case, known as “beyond a reasonable doubt”, and that the plaintiff’s attorney must prove in a civil case for money damages, which is “a preponderance of the evidence.” Beyond a reasonable doubt is defined as “proven to a moral certainty…the facts proven must, by virtue of their probative force, establish guilt…any doubt must not be fanciful or imagined but based on reason and arising from the evidence.” In contrast, a preponderance of the evidence literally means evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it.” Obviously, a much easier burden to prove in the civil case.

Nonetheless, Ms. Diallo will have major difficulty overcoming the evidence of her fabrications in matters of major importance, including the asylum application, and even more damning, the false accounting of a sexual assault in Guinea, which could lead a jury to believe that she lied in this instance as well. Further, there is a jury instruction which would be give to jurors in the civil case if it were deliberating known as “Falsus in Uno”, which states: “If you find that a witness has willfully testified falsely as to any material fact…the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything.” One factor which works in Ms. Diallo’s favor if the case did proceed to a verdict is that in a criminal case, the 12 person jury must be unanimous in its verdict, whereas in a civil case, the 6 person jury does not have to be united—only five of the six jurors must agree.

There is also the issue of the venue of the case, as Bronx County jurors are the most favorable to plaintiffs of any the 62 counties in New York, with the possible close exception of Kings County jurors. Simply put, Bronx and Brooklyn jurors will likely be more receptive to a case in which an African American immigrant is suing a very wealthy and well represented French financier. The defense might consider a possible transfer of the case to the Federal Court, where the jury pool would not be drawn from the Bronx, but rather New York County, where jurors are substantially more conservative and would likely be favorable in their treatment of someone with Strauss-Kahn’s wealth. However, the down side for Strauss-Kahn in moving the case to federal Court might be his somewhat checkered past, in which he has been accused on numerous occasions in France of sexual assault, (and has a pending case against him now by a French journalist) and some of these allegations might be more likely to be received in evidence in federal Court than in state Court.

Another possibility is that as in the Kobe Bryant and the late Michael Jackson (twice) cases, the victim will receive a rather large monetary settlement and agree to discontinue all further proceedings. However, in the Bryant and Jackson cases, the settlement was made while the criminal proceedings were ongoing, so the scenario here is somewhat different now that the Manhattan D.A. has dropped all charges. We will keep monitoring developments in this fascinating case.

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Red light cameras have become a way of life in New York City and Nassau County, and if City of Yonkers officials are successful, these cameras will be installed at major intersections in Westchester’s largest city as well. The main stated purpose of the red light cameras is to catch red light violators “red handed” so to speak, and according to the Insurance Institute for Highway Safety, they have saved 159 lives in the 14 largest U.S. cities between 2004 and 2008. Further, the Institute estimates that had red light cameras been in place in all large cities during that 4 year period, 815 fatalities would have been prevented.

There are certainly skeptics about the red light camera program, especially in light of the budgetary woes of many municipalities in recent years. What is the prime motivation for the program, to maximize safety, or income for the jurisdiction? Millions of violations which are for the most part not contested (another major savings to the municipality in less overtime for police officers) can be a major cash stream to a struggling city or town.

Nassau County has installed 152 cameras in 50 intersections since 2009, and although county officials projected that they would gross 38.2 million from fines in 2011, according to the American Automotive Association, the $50.00 fines will end up garnering approximately half of that amount. There is little incentive for drivers to fight the violations, as they are not reported to insurance companies, there are no points assessed on the violator’s license, and the driver can go online to watch him or herself in action committing the violation. The “pay rate” in Nassau County fro these tickets is reportedly 85%.

According to the Nassau Department of Public Works, the red light program has reduced roadway fatalities 21% since its inception. There has been a reduction in both serious crashes and injuries, according to Christopher Mistron, the traffic safety educator for the county. Many of the violators, rather than going through the red light, fail to slow down before making a right turn. This accounts for 38% of all of Nassau County’s red light revenue.

We will follow up on this article if and when the red light camera programs are expanded to other jurisdictions.

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