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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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Event data recorders (EDR), more popularly known as black boxes, have been around since the 1970’s, and are well known as an invaluable tool in the investigation of plane crashes. According to the National Highway Traffic Safety Administration, (NHTSA), as of 2008, between 65% and 90% of cars now manufactured are equipped with EDR’s. However, the data from EDR’s is not readily available to third parties such as insurance companies and litigants in car crash cases.

This will all change in 2013, when the NHTSA will require that all vehicles which contain black boxes must capture the same data in the same format. Further, the federal agency will mandate that there be a tool available to access the data. And what is that data? A treasure trove of information, including: Change in forward speed of the vehicle; maximum change in forward speed; vehicle speed prior to impact; whether or not the driver applied the brake; whether the driver was using his or her seat belt; the number of crash events; and the time between the two crash events, if applicable. This is a sampling, but not all that the EDR can record.

Due to the number of cars that will have black boxes and access to this data, the world of auto accident litigation will change in dramatic ways over the next several years. In a concession to privacy concerns, 13 states, including Arkansas, California, Colorado, Maine, North Dakota, New Hampshire, New York, Oregon, Texas, Virginia and Washington, have enacted laws requiring an owner’s permission to download the data. But who is an owner? In some states, such as California, the owner is the registered owner of the car. In New York, it is the titled owner. In Arkansas, it’s simply the owner of the vehicle at the time the accident occurred.

In addition to the aforementioned privacy issues, are concerns about what is known as spoliation, or intentional/negligent/unintentional loss of the data. The data in a black box is only temporarily stored, apparently for what is known as 200 “ignition cycles” or about 6 to 8 weeks of normal use of the vehicle. Thus, if the vehicle is destroyed, sold or more than 6 to 8 weeks of use occur in vehicles that are not as badly damaged, the information could be lost forever. Clearly, the data in a EDR will go a long way to either establishing, or in other cases, minimizing or refuting liability (fault in an accident). It will also assist in determining whether injuries claimed in an accident are consistent with the physics of an accident. Presently, this is often accomplished through the testimony of treating physicians, or in addition, in more serious cases, biomechancial engineers. Undoubtedly, there will be motions made by both insurance companies, and attorneys for those injured in car crashes, to preserve the EDR before this occurs. In sum, 2013 and beyond will be quite a different world in the field of automobile crash litigation, that is for certain.

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In a victory for safety and for undocumented workers in construction accidents, a recent appellate court decision from the First Department, which reviews cases from the Bronx and New York Counties, upheld a trial court’s decision not to consider a plaintiff’s immigration status because it would be unfairly prejudicial and not relevant in determining his damages.

In 2003, Jorge Angamarca, a carpentry worker, fell two stories through an improperly covered opening in a roof. Under New York Labor Law Section 240, unless a worker is provided with safety equipment, including proper scaffolding, ladders, safety harnesses, and other devices which would protect him from falls from heights, there is “absolute liability” (meaning absolute responsibility against those parties with very few exceptions) against the owners, general contractors, and construction managers of the property where the accident occurred. Mr. Angamarca, an illegal immigrant from Ecuador, suffered severe brain and spinal cord injuries in the accident. Most of the defendants in the case settled prior to trial, but the builder and property owner, Jefferson Townhouses, decided to go to trial, a very risky proposition in a Labor Law 240 case. In 2009, a jury awarded Mr. Angamarca a total of $20 million, including: $100,000 for past pain and suffering; $1 million for future pain and suffering; $1.5 million for past medical expenses; $16.7 million for future medical expenses; $74,000 for past lost earnings; and $573,000 for future lost earnings.

The Appellate Court in Angamarca followed the directive of the highest court in New York, which has ruled that immigrants working in the United States illegally can still recover lost wages after an injury. The Court held that regardless of a worker’s immigration status, he or she can recover damages when the worker’s injuries are so severe that the worker is physically incapable of working.

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On July 26, 2009, Diane Schuler, a 36 year old wife, mother of two and aunt of three, drove southbound in the northbound lanes of the Taconic Parkway for 1.7 miles in an intoxicated condition (with a blood alcohol concentration of 0.19%, more than double the legal limit) with her 2 year old daughter, five year old son, and three nieces between the ages of 5 and 8 in the vehicle. There was a head-on collision with a car proceeding northbound driven by Guy Bastardi, with his father Michael Bastardi Sr. and family friend Daniel Longo passengers in the vehicle. With the exception of Schuler’s son Bryan, who suffered serious injuries but survived the horrific accident, everyone else in both vehicles died in the fatal crash.

Two years after the crash, a spate of lawsuits have been filed by the families of the occupants of both cars, as well as by Dean and Angela Tallarico, who suffered minor injuries in a third vehicle in the accident.

In 2009, Roseanne Guzzo, the sister of Guy and daughter of Michael Bastardi, Sr., filed a wrongful death suit against the Schuler estate and Warren Hance (Diane’s brother and the owner of the SUV she was driving), claiming that Schuler negligently operated the vehicle in an intoxicated condition and caused the deaths of her brother and father.

This month, with the two year wrongful death statute of limitation about to expire, five other lawsuits were filed, including:

A lawsuit by Daniel Schuler, the husband of Diane Schuler, against the State of New York, alleging that the accident was caused by negligent roadway design, maintenance, and improper signage, resulting in the death of his 2 year old daughter Erin and injuries to his surviving son Bryan;
A second lawsuit by Daniel Schuler against his brother in law Warren Hance, claiming that Hance was responsible for the accident as the owner of the minivan driven by Hance’s sister Diane Schuler;

A suit by Jackie Hance, the mother of Katie, 5, Alyson, 7 and Emma 8, alleging that due to Diane Schuler’s negligent and intoxicated operation of the minivan, her daughters suffered “pre-impact fear and terror, fear of impending death, extreme horror and mental anguish.” This lawsuit was commenced in the Suffolk County Supreme Court.

Last, Daniel Longo’s brother Joseph sued both the Schuler Estate and Warren Hance for the wrongful death of his brother. To be very blunt, both lawsuits by Daniel Schuler have a substantial likelihood of being dismissed, due to the incontrovertible fact that Diane Schuler’s operation of the minivan in the wrong direction in an intoxicated condition with a blood alcohol concentration more than double the legal limit was the proximate cause (substantial factor) in causing the accident, and not improper signage, negligent design of the Taconic, or Mr. Hance’s ownership of the vehicle.

It is also highly unlikely that any jury in Westchester County or Suffolk County would determine that there was anything Guy Bastardi could have done to avoid the car accident, with a vehicle coming at him between 65 and 70 miles per hour in his lane with an intoxicated driver behind the wheel. Clearly, the only reason that Mr. Bastardi was sued in the various cases was an effort by the attorneys to secure a settlement from the insurance carrier for Bastardi. In my opinion, there is no chance that that will happen. As for Warren Hance, he was sued in several of the cases simply due to his status as the owner of the minivan that his sister Diane was driving. However, it does not appear that there is any evidence that he knew that his sister was driving his minivan in an intoxicated condition, except for a brief phone call shortly before the fatal crash when Diane called him by the Tappan Zee Bridge within minutes of the accident. At that time,it apparently was too late to stop her, although it is believed he tried. Further, in my opinion, no jury in the world would find a man who lost his three daughters in the crash responsible for the accident, when he did not know his sister was going to drive drunk and high on marijuana.

As fro the other lawsuits by Jackie Hance, Roseann Guzzo, and to a lesser extent, the Tallaricos, they are all very solid cases on liability (fault). The only question will be the amount of insurance coverage available on the Hance vehicle (and any potential additional coverage under Diane Schuler’s policy), which will certainly fall well short of compensating the victims of this awful accident.

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In October 2010, the judges for the Southern District of New York (Covering counties including Westchester, Manhattan, and the Bronx among others) voted to change its rules to allow specific categories of cases to be designated for automatic mediation. Effective August 1, 2011, excluding class actions, civil rights violations under 42 U.S.C. § 1983 filed in federal court in the Southern District of New York will be automatically designated for mediation. Civil rights violations under § 1983 include police misconduct, false arrest, excessive force, and malicious prosecution claims. Often, these federal claims are paired with state law causes of action of false imprisonment, assault and battery, and malicious prosecution. This has major implications for the New York City Police Department, who is named as a defendant in hundreds of lawsuits in the Southern District each year.

Most of these §1983 civil rights cases settle. This program is designed to start the settlement process as soon as possible. Setting early will reduce the total cost of litigation, saving parties thousands of dollars, and reduce volume of cases on the federal Court’s docket. Mediation is efficient, and fair to all involved. Since mediation is non-binding, the parties may still proceed forward in the normal course of litigation if early settlement talks fail.

Under the new program, both parties are required to disclose key information quickly, at the beginning of the lawsuit. All plaintiffs must now include HIPAA releases for medical records and arrest records with the summons and complaint. Within 28 days of the the defendant’s answer, the police department must exchange records from Internal Affairs, any Civilian Complaint Review Board, similar complaints involving the same defendant police officer, and key information from the defendant officer’s file. Within 45 days of the answer, the plaintiff must make a settlement demand, and within 14 days, the defendant police department must respond. Within 90 days of the answer, both parties must go to mediation. If a settlement is reached, the defendant still has 90 days to issue payment to the plaintiff.

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In the wake of the most recent fatal bus accident on May 31 on a Virginia highway, U.S. Transportation Secretary Raymond LaHood criticized the Federal Motor Carrier Safety Administration (FMCSA), the Department of Transportation agency in charge of bus and truck safety, for failing to shut the bus company down. Essentially, LaHood was taking his own department to task regarding the latest tragic bus accident, in which a Sky Express bus on its way to Chinatown in Manhattan rolled over, killing four people.

The company, Sky Express of Charlotte, had a history of substantial safety violations, and had received an unsatisfactory safety rating on April 12, 2011. However, based on FMCSA rules, Sky Express had received an extension to continue operations while the investigation of its safety record continued, although the company could have been shut down on May 28, 2011, three days prior to the fatal crash in Virginia.

Mr. LaHood has been pushing for increased bus safety measures, including seat belts for passengers, sturdier roofs and windows that would prevent passengers from being ejected in a rollover. Additionally, LaHood put forth a plan in 2009 to reduce distracted driving and fatigued bus drivers. There have been a spate of horrific bus accidents in 2011, including the bus that rolled over on March 12 on I-95 in the Bronx, with the roof being sheared off and 15 passenger deaths, the fatal accident two days later on the New Jersey Turnpike, killing 2 and injuring 41, and more recently, another fatal accident in Cle Elum, Washington, which killed two and caused many injuries. LaHood stated: “There is no excuse for delay when a bus operator should be put out of business for safety’s sake…on my watch, there will never be another extension granted to a carrier we believe is unsafe.” Unfortunately, this pronouncement came a little late for the victims of the Virginia, New Jersey, Washington and Bronx crashes, but hopefully the increased attention from the Department of Transportation and Congress will finally result in some concrete safety measures to protect bus passengers in this country.

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