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The National Hockey League was sued by 29 former players in the United States District Court in Minnesota last week, joining several others who brought suit last year against the league contending that the NHL ignored substantial evidence of the long term effects of concussions.  The class action litigation against the NHL is very similar to the massive suit brought by several thousand ex-players and their families, alleging traumatic brain injury and significant degenerative diseases suffered by players from repeated concussions, which, it is contended, the NFL was aware of but chose not to enlighten the players about.  The NFL suit was initially settled in principle last year for approximately $765 million, but ultimately a federal judge determine that the amount was insufficient and the cap on  damages was removed, with no final judicial approval yet.

In the case against the NHL, recent events have moved the case more aggressively.  First, a ten year veteran with a history of concussions, 35 year old Steve Montador, was found dead in his Ontario home on February 15, 2015.  Mr. Montador joins a list of ex NHL players who have died prematurely, confronted by evidence of traumatic brain injury, such as depression and cognitive difficulties.   One month before he died, Mr. Montador retained a lawyer to join the litigation against the NHL, and his brain was donated to science to discover whether he was suffering from chronic traumatic encepholpathy, (CTE), a brain disease brought on by repeated trauma to the brain.  CTE causes deposits of a sticky substance known as “tau”, which interfere with brain function and lead to memory loss, dementia, depression, mood swings, and loss of cognitive abilities.

As in the case of many ex NFL “enforcers” who sought out contact and were unwittingly causing themselves long term damage due to the repeated head trauma they endured, the NHL has seen its own “on ice bodyguards” such as Derek Boogard, Wade Belak (35) and Rick Rypien (27) die prematurely.  These players where known for having regular fist fights with other players, which the league did nothing to discourage, as these battles added to fan interest and only increased TV ratings.  Boogard died of an accidental drug and alcohol overdose at age 28 in 2011.  An autopsy revealed substantial CTE, and a brain that appeared to be that of a man more than twice his age.  Boogard’s family did not join the class action against the NHL and have a wrongful death lawsuit against the league.  Mr. Belak and Mr. Rypien died of apparent suicides.

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On February 11, 2015, famed CBS News and “Sixty Minutes” correspondent Bob Simon, 73, (who won 27 Emmy Awards and reported on the Vietnam War, the 1973 Yom Kippur War, and the Gulf War) was killed in a car crash on the West Side Highway near 30th Street.  Simon was riding in a Lincoln Town Car for hire at approximately 7:00 PM, when the 44 year old driver lost control of the vehicle, striking a Mercedes stopped at a red light, and then the median separating southbound traffic from northbound traffic.  Mr. Simon was seated in the rear seat, and was not wearing a seatbelt.  The vehicle was so mangled that emergency personnel were forced to use the “Jaws of Life” to extract Simon from the vehicle.

Mr. Simon never regained consciousness.  He was taken to St. Luke’s Roosevelt Hospital Center, where he was pronounced dead of blunt force trauma injuries to his head, torso and extremities.  Under the New York Vehicle & Traffic Law Section 1229 (c), rear seat adult passengers are not required to wear seat belts.  Additionally, there is an exemption for livery vehicles by which the drivers of these vehicles, and any occupants, are not required to wear seat belts.

New York is one of twenty states which do not have a law mandating rear seat belt usage for adults.  The other twenty eight states and the District of Columbia do require seat belts for rear seat passengers.  For the most part, all states do require either seat belts or car seats for children and infants.

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Watching the Super Bowl last weekend, there was unmistakable irony in light of a recent HBO Real Sports story highlighting the suffering of many of the Chicago Bears players from the historic “Super Bowl Shuffle” team of 1985. For those of us who were football fans at the time, the ’85 Bears, with wonderful personalities such as William “The Refrigerator” Perry (who was so athletic that despite weighing well over 300 pounds, he was utilized by Coach Mike Ditka as a receiver and running back as well as a stellar defensive lineman), and quarterback Jim McMahon, who wore a headband taunting then Commissioner Pete Rozelle, mooned the cameras, and was a certified flake, but also a tremendous competitor and tough as they come, were a joy to behold, even for New York football fans. Further, the talent level of the team was overwhelming, with Hall of Fame running back Walter Payton, and great defensive stalwarts such as middle linebacker Mike Singletary and defensive end Richard Dent, to name just a few.

The Real Sports story focuses on the devastating injuries that have been befallen many players on that glorious team, thirty years later, and whether the cost to them was worth their athletic achievements. By now, many know of the tragedy of Dave Duerson, a terrific defensive back on that team (and later the New York Giants) who suffered severe undiagnosed brain injuries during his career. After years of memory loss, depression and loss of cognitive functioning, Duerson ended his life by shooting himself in the chest, so that his brain could be analyzed. As he had anticipated, an autopsy determined that Duerson suffered from significant chronic traumatic encephalopathy (CTE), a brain disease caused by repeated insults or trauma to the brain, which results in deposits of a sticky substance called “tau”, which interfere with mental function.

Jim McMahon, who is only in his early fifties, describes how he will intend to go to the store from his home, and five minutes later, he is standing in the kitchen having forgotten that he intended to leave or where he was going until his girlfriend reminds him. If he does leave the house, often he can’t remember how to get home. McMahon was asked by Bryant Gumbel if, in light of his present condition, playing football was worth the risks involved, which were never disclosed to the players at that time. McMahon answered with a joking: “people always thought I was crazy anyway”, but it is clear that he was thinking that he might have chosen a different path if he had he been well informed. William Perry, still young, can barely walk anymore, and Richard Dent notes that he is very fearful of losing his memory as his teammates have. Mike Ditka, the hard as nails head coach of the Bears and former tight end for the Dallas Cowboys, stated bluntly that the NFL owes the players who they profited from so mightily to take care of them now, and was definitive in saying he would never want his grandchildren playing football, a startling statement from one of the legends of the game as player, coach and television announcer.

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On Tuesday, February, an otherwise uneventful day, 49 year old Ellen Brody, the married mother of three teenage children, was returning home from work at a jewelry store in Chappaqua, New York, when she made a fateful decision. Due to traffic from an accident, she took a shortcut as many other drivers did, through a cemetery in Valhalla to get to the Taconic Parkway faster. As she approached the Commerce Street entrance to the southbound Taconic Parkway, the gates came down and the red lights went on to notify drivers that a Metro-North train was approaching. At this time, Ms. Brody’s Mercedes SUV was struck by the gates and she exited her car to examine the damage to the rear of the vehicle, not realizing how little time she actually had to get out of the path of the rapidly approaching train.

For reasons we will never know, Ms. Brody then drove her car a few feet further onto the tracks, rather than rearward, and her car was struck by the northbound 5:44 PM train from Grand Central at approximately 48 mph (after slowing from 58 miles per hour according to investigators from the National Transportation Safety Board (NTSB) and Federal Railroad Administration (FRA). Ms. Brody, and five passengers in the first car of the train, were killed instantly, the train passengers from the dislodging of the third rail which entered the passenger compartment of the train, causing a huge fire and explosion.

In the wake of this horrific tragedy, many questions must be answered: Why did the accident happen? Was it preventable? Were safety measures available but not implemented? What safety modifications, if any, will be installed? How often do such accidents occur, at this location and at other railroad crossings around the United States?

Since 2003, there have been 260 accidents at railroad crossings in the New York and New Jersey region. 125 such accidents on New Jersey Transit trains (330 grade crossings), 105 railway crossing accidents on the Long Island Railroad (294 grade crossings), and 30 on Metro North (126 grade crossings). These 260 accidents resulted in 73 deaths and 148 injuries.

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As was expected for several months, Melissa Rivers, the sole daughter of the late comedian and T.V. personality Joan Rivers, has filed a medical malpractice and wrongful death lawsuit in connection with her mother’s death on September 4, 2014.  The suit, filed on January 26, 2015, alleges that Rivers unnecessarily died from cardiac and respiratory arrest due to a series of easily preventable medical errors committed by several treating doctors during the course of a voluntary examination of Ms. Rivers’ vocal cords.

The defendants include:  Dr. Gwen Korovin, Ms. Rivers’ private doctor; the Yorkville Endoscopy Clinic; (which has been temporarily shuttered to determine if it will continue to be permitted to receive Medicaid and Medicare funding); Dr. Renuka Bankulla, the anesthesiologist; and Dr. Lawrence Cohen, the medical director of Yorkville, where the procedure was performed. The case revolves around complaints that Ms. Rivers had concerning unusual hoarseness and inflamed vocal cords.  Dr. Korovin, who reportedly did not have privileges at the clinic, was to insert a small instrument into Ms. Rivers’ windpipe to examine her vocal cords.  However, Dr. Bankulla appears to have noted that Ms. Rivers’ vocal cords were very swollen, and could seize up, causing her to be unable to breathe.  It is alleged in the suit that Dr. Cohen dismissed those concerns with a claim that Dr. Bankulla was “paranoid.”  In fact, it is further claimed that Dr. Cohen was so unconcerned about Ms. Rivers’ condition that he took cellphone photographs of Ms. Rivers while she was lying unresponsive on the operating table. Continue reading ›

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The family of the late James McNair, 63, good friend and mentor of “30 Rock” and Saturday Night Live” comedian Tracy Morgan, announced last month that it settled a wrongful death lawsuit filed against Wal-Mart.  Mr. McNair, along with Mr. Morgan and three other friends, were travelling home from a comedy club performance in Dover, Delaware, and were on the New Jersey Turnpike on June 7, 2014, when Morgan’s Mercedes limousine bus was struck in the rear by a Wal-Mart tractor-trailer operated by Kevin Roper.

Roper, 35, had apparently been operating the tractor-trailer for more than 24 hours straight in violation of federal D.O.T regulations.  The National Transportation Safety Board performed an investigation of the accident.  In its investigation, the NTSB determined that Roper was operating the vehicle at 65 miles per hour in the seconds before the truck struck the rear of the Morgan vehicle, suggesting that he either fell asleep or was distracted prior to the crash.  The initial impact led to a chain reaction crash with another tractor-trailer, an SUV and two other cars.

In the accident, Mc. McNair apparently died at the scene as a result of his injuries. McNair was from Peekskill, New York and was a close friend of Mr. Morgan.  Morgan sustained traumatic brain injuries, a fractured femur, several broken ribs and a broken nose. He was hospitalized in critical condition for several weeks.  Another occupant of the Mercedes, 37 year old Harris Stanton, suffered a fractured wrist in the accident.

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In an interesting article in the Journal News in December of 2014, the issue of the how local Westchester County high schools respond to concussions suffered by young athletes was analyzed. Dr. Mark Herceg, the director of Neuropsychology at Burke Rehabilitation Hospital in White Plains, was interviewed to discuss what the proper protocol should be when a player suffers head trauma and a concussion is suspected, in the course of a football game, for example. It is Dr. Herceg’s opinion that the correct approach to begin with is that all high schools should have a full time athletic trainer and sideline testing.

Dr. Herceg discussed the case of a local high school football player (for privacy reasons the student’s name was not disclosed) who suffered a concussion on the first day of practice. He was told to go home, without any further testing, returned to practice the next day, and had another concussion on the second day of practice. The next day, amazingly enough, he was allowed to practice again, and suffered a third concussion, which necessitated a trip to the emergency room. Despite the overwhelming and thorough coverage of the one billion dollar settlement that the NFL has entered into with former players suffering from Alzheimer’s Disease, Parkinson’s Disease, dementia, ALS, mood disorders and a whole variety of other devastating effects of traumatic brain injuries suffered during the course of their careers, it would appear that the seriousness of the traumatic brain injury issue is not being heard at the high school level.

New York State requires only that an athlete suspected of suffering a concussion be removed from play, and that coaches, school nurses and athletic trainers take an online course on concussions. However, there is no state requirement that “pre-injury cognitive testing”, or post injury sideline testing be performed on athletes, nor that school districts employ part time or full time athletic trainers. In the Westchester County town of North Salem and the City of Peekskill, for example, their high schools have no part time or full time athletic trainers.

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The Metropolitan Transportation Authority has announced that beginning in the fall of 2015, buses in New York City will be equipped with “collision avoidance devices”, which will alert bus drivers to the location of pedestrians, bicyclists and motor vehicles which are in the operator’s blind spots. The system will utilize radar and sensors with speakers mounted on the exteriors of the buses, and will sound warnings to pedestrians and others as the bus is turning, to stay clear of the direct area.

Transit authorities in Los Angeles, Baltimore and Portland have either adopted the program or tested it, with the two main providers being ProTran from Newtown, New Jersey, and Clever Devices, with headquarters located in Long Island. In 2010, the Cleveland Regional Transit Authority installed the devices on 400 buses after averaging six pedestrian deaths a year. Since 2010, there have apparently been no pedestrian fatalities reported in Cleveland.

Ironically, the bus collision rate in NYC has dropped significantly (46%) from 92 collisions per million miles travelled in 1988, to 50 per million miles travelled in 2014. Nonetheless, there were 55 pedestrians and 7 bicyclists killed in bus collisions (including buses operated by private companies) in the City since 2010. Further, 131 pedestrians died in all types of traffic accidents in NYC in 2014, which is the lowest number of fatalities reported since 1910 (when record keeping of fatalities began), but still an unacceptably high number.

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For the last several years, several European countries, including Sweden, the Netherlands, and Norway, and some states in the U.S., have adopted a program known as “Vision Zero” in an all-out effort to reduce traffic fatalities and serious injuries. The program includes better traffic signs and roadway design, and a reduction of speed limits on local roads and highways. Research has determined that the human tolerance for a collision with a well-designed motor vehicle is approximately 19 miles per hour. When Mayor Bill de Blasio entered office last year, he announced that New York City was going to adopt the Vision Zero program to emphasize an effort to make New York City streets safer for pedestrians and bicyclists. This was after a personal plea by more than 4,500 letters from members of Families for Safe Streets, an organization that was created by family members of those killed or seriously injured in pedestrian, bicycle or car crashes in New York City.

The Vision Zero program involves improving traffic signage and reducing speed limits. In New York annually, approximately 4,000 people are seriously injured and there are more than 250 fatalities in traffic crashes. For children under the age of 14, being hit by a car is the leading cause of injury-related death, and is the second leading cause of death due to injury of seniors. On average, vehicles seriously injure or kill a New Yorker every two hours. Interestingly, although Mayor de Blasio has placed a major impetus on implementing the Vision Zero program, traffic fatalities in New York City have been steadily decreasing from 701 in 1990, 381 in 2000, to 249 in 2011. Obviously, any traffic fatalities are a problem when it comes to the huge volume of pedestrians in the City of New York.

Vision Zero has also been implemented in major cities across the U.S., including Boston, where in March of 2014, personal injury attorney John Sheehan initiated the “Vision Zero Auto Accident Prevention Scholarship” to encourage young adults to recognize the benefits of safer driving, and San Francisco, where district supervisors introduced the Vision Zero plan after 25 pedestrian and bicyclist fatalities in 2013 alone.

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On December 1, 2013, an otherwise ordinary early Sunday morning after the Thanksgiving holiday, a southbound Metro North train bound for Grand Central Station from Poughkeepsie derailed just north of the Spuyten Duyvil station in the Bronx. The train engineer, William Rockefeller, who had been employed by Metro North for fifteen years, fell asleep at the controls, (or fell into a trance sometimes called “highway hypnosis), allowing the train to hurtle along the tracks at 82 miles per hour in an area where the speed limit is 30 m.p.h. The derailment was investigated by the National Transportation Safety Board (NTSB), the MTA Police, the NYPD and the Bronx District Attorney’s Office to determine if a crime was committed, but none of these agencies found any basis for criminal charges. The brakes on the train were in working order and a check of Mr. Rockefeller’s phone revealed that he was not texting or using his cell phone prior to the crash. Rockefeller awoke just prior to the derailment and attempted to slow the out of control train to no avail as the train went flying off the tracks. Of the more than 100 passengers on the early morning train, four were killed and more than 80 injured. Mr. Rockefeller’s shift had been switched two weeks earlier from a night to the early morning run starting in Poughkeepsie at 5:04 AM. He was diagnosed with sleep apnea, which certainly contributed significantly to the tragic incident. No drugs or alcohol were found in his system. Continue reading ›