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The No-Fault Law is an absolute albatross around the necks of injured people and their attorneys in New York State, and has been so since its implementation in 1974. The basic purpose of the law when it was promulgated was twofold: to allow for the expeditious handling of automobile accident claims which were deemed to meet what is known as the “no-fault threshold”, and second, to root out what was perceived to be fraudulent, non meritorious claims. One of the main reasons that this antiquated law needs to be significantly modified in 2013 is that when the law was placed into effect, there were no MRI’s, CAT Scans, and other radiological examinations which could conclusively determine whether the injured driver or passenger had suffered a “soft tissue” (cartilage, ligament, tendon, spinal disc) injury . Thus, the inclusion of a fracture as a “no-fault threshold” injury, (because this injury could be determined by x-rays), but not, for example, a herniated disc of the neck or back, or a torn tendon or ligament.

Thus, as the No-Fault law presently exists, a fractured toe or pinky automatically meets the requirements of a no-fault “threshold” injury, but a person who suffers a torn tendon, ligament, cartilage or other “soft tissue” injury such as a herniated disc, which is in all likelihood, much more serious than a broken toe (for which there is no treatment), may have no case under the No-Fault law!

The No-fault threshold includes several very specific injuries suffered in motor vehicle accidents, as well as three general types of injuries contained in three sections of the statute which are poorly worded, confusing, and constitute a huge percentage of the litigation instituted by the no-fault insurance companies and their lawyers in contesting No-fault claims. The definitive sections are as follows:

Death;
Dismemberment;
Significant disfigurement;
A fracture;
Loss of a fetus;

Permanent loss of use of a body organ, member, function or system.

The problems arise in interpreting the following three sections: 1) “permanent consequential limitation of use of a body organ or member; 2) “significant limitation of use of a body function or system”; and 3) “a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.” That last section is a true example of legislators gone amok.

The problems arise in the interpretation of many of the terms—for example, what is “significant limitation of use”? Isn’t that different for each person who is injured in an accident? What is a “consequential limitation”? What are the “material acts which constitute a person’s usual and customary daily activities”? As can be seen, the vague and inconsistent terminology utilized by the drafters of the No-Fault Law was fraught with difficulty from the inception of the statute, almost forty years ago.

Another problem that has arisen, and which brings us to the point of this article, is interpretations of the law by judges (seemingly supportive of the insurance industry) adding in requirements which were never part of the original statute, and which make claims and cases even more difficult to settle or win in Court. The Ramkumar decision is a classic example of this. In this case, the plaintiff was cut off from treatment by his own no-fault insurance company after only five months of treatment, despite the fact that he had suffered a torn meniscus in the accident in question, for which he required surgery. The lower Court dismissed his case, stating that he had not properly offered documentary evidence and a sufficient explanation for why he didn’t continue treatment after his no-fault insurance company had terminated his benefits. Essentially, the lower Court ruled that after the no-fault carrier booted him from coverage, Mr. Ramkumar was required to either continue treatment with his health insurance company, or if no health insurance was available, provide a “reasonable explanation” why he didn’t pay for his treatment out of his own pocket. Of course, nowhere in the antiquated No-Fault law is this requirement included. Fortunately, the majority in the Court of Appeals noted that although a plaintiff is required to have some explanation why he stopped treatment for his injuries after only five months, not having health insurance nor money to pay for medical treatment out of his pocket WAS a reasonable explanation. Further, the Court stated that the case should not have been dismissed because the evidence showed that the treating surgeon found that the meniscus permanently lost stability due to scar tissue, which Mr. Ramkumar will have for the remainder of his life.

The other irony here is that the no-fault carriers send injured victims of car accidents to no fault “IME”S (Independent medical examinations, which are anything but independent) within weeks, and sometimes days, after car accidents, to be conducted by “examiners” who are paid for by the no-fault insurance companies for a specific purpose—to find that there is nothing wrong with the injured person, thus permitting Allstate, State Farm, Geico, Progressive et. al. to stop paying for treatment. Of course, this is exactly what happened with Mr. Ramkumar, although he was fortunate enough to have obtained five months of treatment before thrown off coverage by the insurance carrier he was paying premiums to.

The moral of this story is simple. If you really want to root out fraud, call, fax, email or text your local legislator (if you are fortunate enough to have a cell phone number for the legislator) with a simple message. The No-fault law is unfair. It is outdated. When it was written, there was no means to determine if someone had suffered a “soft tissue” injury, but in case you missed it, now we have MRI’s, CAT Scans, Bone Scans, EMG’s, and numerous other tests for these injuries. The No-Fault law protects the car insurance companies at the expense of innocent victims of automobile accidents. If you want to examine fraud, take a look at no-fault exams by insurance company doctors, who perform dozens of three minute “exams” each week on injured people with the conclusions in their reports written before the person walks into the examiner’s office.

Hopefully, if enough people do this, we will finally get traction with Governor Cuomo, who does not believe this is a problem, apparently.

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After five months of a grueling, hotly contested legal battle, on October 2, 2013, a Los Angeles jury, comprised of six men and six women, found concert promoter AEG not liable in the June, 2009 wrongful death of pop icon Michael Jackson. Katherine Jackson, the late pop singer’s mother, had sued AEG Live in 2010 in a multi-million dollar lawsuit. Her contention was that AEG had hired Dr. Conrad Murray, the physician who was convicted in November of 2011 of involuntary manslaughter for infusing Jackson with the surgical anesthetic Propofol, which led to Jackson’s drug overdose on June 25, 2009, just days before Jackson was due to commence a mammoth world tour dubbed “This Is It.” AEG argued that they had no way of knowing of the dangerous Propofol infusions, and that Jackson was addicted to a variety of drugs which was the primary factor in his death.

Jackson’s mother alleged in her legal papers that AEG was negligent in “hiring, retaining, or supervising Murray”, and that this was a substantial factor in the 50 year old pop singer’s untimely death. A significant piece of evidence in the case was the contract between AEG and Dr. Murray in which he was paid a whopping $150,000 per month to keep Jackson healthy enough to perform on an extended tour. There was clearly substantial evidence to show that Jackson had “doctor shopped”, seeking a physician who would supply him with regular doses of Propofol (which he referred to as his “milk”) to combat chronic insomnia and allow him to withstand the rigors of touring.

The jurors deliberated for approximately 13 hours over 3 days before reaching their verdict. Jackson’s attorney, Brian Panish, had suggested to jurors that they award between 1 billion and 2 billion dollars in damages to the Jackson family, to compensate his mother and children for the loss of his potential earnings from the age of 50 until the age of approximately 66 when he would allegedly stop touring. This included a specific request for an award of $85 million to each of Jackson’s three children and $35 million to his mother Katherine. However, it is tough to argue on the one hand that Jackson was in such horrible and frail physical condition, as Jackson’s attorneys did (Even the name of the tour, ‘This Is It”, contradicts the claim that Jackson intended to tour for another 16 years), and also claim that Jackson was now going to tour much more extensively than he had previously until he reached retirement age–the jury must have seen that contradiction. Panish did concede in his closing argument that the King of Pop’s own conduct contributed to his death, but asked that the jury limit Jackson’s culpability to 20%.

Unlike in New York, where a wrongful death trial has a jury of 6, with an agreement of five of six jurors necessary to reach a verdict, in Los Angeles, a civil jury is comprised of 12 jurors, with an agreement among nine required for a verdict. The trial was bifurcated, meaning that in order for the jury to have found that AEG had to pay damages to the plaintiffs, they first had to determine “liability”, or legal fault, against AEG, which they obviously decided was not supported by the evidence. Undoubtedly, the jury rejected Jackson’s claims of being a victim, as exemplified in some post verdict comments by juror Kevin Smith: “Michael Jackson was used to getting his way…he could pretty much get what he wanted…anybody that said no, they were out of the mix and he’d find someone else.”

Jackson’s attorneys have indicated that they plan to appeal the verdict. In my opinion, that appeal has little chance of success, as it was apparent from the inception of this case that it would be very hard to prove that AEG could have known that Dr. Murray was performing infusions of a surgical anesthetic in Jackson’s home on a daily basis, and that they would have supported this tremendously dangerous conduct had they been aware of it.

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This morning, the United States Department of Transportation (DOT) was sued by Public Citizen and several consumer advocate groups for a long standing delay in implementing a 5 year old law mandating the revision of rear visibility standards in new vehicles. The lead plaintiff, Greg Gulbransen, claims that if his vehicle had been equipped with a backup camera, this would have saved the life of his infant son, who was killed in 2002 when Mr. Gulbransen backed his vehicle over his son in his driveway.

In 2008, Congress passed a law signed by then President Bush which required the Department of Transportation to revise rear visibility standards by February of 2011. The Public Citizen lawsuit alleges that the DOT has been intentionally delaying implementation of those standards, with tragic results. The National Highway Traffic Safety Administration (NHTSA), a division of the Department of Transportation, estimates that “backover” accidents result in 292 deaths and approximately 18,000 injuries per year. Almost half of the fatal accidents involve children younger than five years, as the infants are in what is known as the “blind zone”, an area behind the vehicle that cannot be viewed by an average driver while seated in the driver’s seat and looking in the rear view mirrors.

NHTSA estimates that if rear view cameras were installed in all new vehicles, the cameras would save 95 lives and prevent more than 7,000 injuries annually. The cost of a backup camera is between $58 and $203 per vehicle. Approximately 70% of all new vehicles are either equipped with the cameras or have them as an option. For an article which describes blind zones, and compares the blind zones for many makes and models of cars, read “The Danger of Blind Zones”, published by Consumer Reports. To give an example, the best blind zone for a small four door sedan (with a driver at an average height of 5’ 8”) is found in a 2011 Chevrolet Cruze, at 9 feet, and the worst is in a 2011 Ford Fiesta, which has a blind zone totaling 19 feet.

The DOT has repeatedly postponed the deadline for enforcement of the legislation, from February of 2011, to December of 2011, to February of 2012. Presently, the agency intends to issue a final rule by January of 2015. However, the plaintiffs, which include the nonprofit groups Consumers Union of United States, Kids and Cars, Inc. and Advocates for Highway and Auto Safety, contend that had the law been implemented as required, countless lives would have been saved and thousands of injuries averted.

The Public Citizen lawsuit requests that the Court direct the USDOT to issue a mandatory rule within 90 days. In researching this story, I found an article published by Consumers Union almost seven years ago (on November 14, 2006) urging Congress to enact federal legislation to “prevent unacceptable death and injury toll or children.” In this instance, unlike the thoroughly ineffectual Congress we have at present, Congress did enact legislation in 2008, and five years later, the Department of Transportation is for some reason delaying full implementation of this legislation, which could lead to a universal requirement for backup cameras in all vehicles. With all the lives that have been lost since ‘08, and with such a cheap cost per vehicle, that is an outrage.

Despite the need for backup cameras, the best advice remains to get out of your vehicle before backing up whenever there is even the remotest possibility that infants (or pets) are behind the car in the “blind zone.”

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On September 15, 2013, there were two fatal motorcycle accidents in the Hudson Valley. On Bear Mountain Parkway in Cortlandt, 43 year old Christopher Ulacco of Wappingers Falls was killed while on a 2008 Suzuki after he apparently crossed the double yellow line and struck a GMC Acadia on Route 6 near Carhart Avenue. Police are seeking information from another rider who was with Mr. Ulacco at the time of the fatal crash. Ulacco was wearing a helmet. There were several other injuries in the accident, with most of the injured taken to Hudson Valley Hospital for treatment.

In the second accident, 76 year old Julio Gamio was driving north at 11:00 AM on September 15th on Route 9W in Haverstraw, followed on another motorcycle by his daughter, when it appears that he lost control of his Harley Davidson Softail Cruiser and struck a 20 foot brick structure adjacent to Low Tor Storage at 120 Route 9W in Haverstraw. Gamio suffered multiple head and internal injuries and was pronounced dead at Nyack Hospital. Witnesses described Gamio driving into the wall, bouncing and hitting the pavement. The cause of the Gamio accident is under investigation.

Bear Mountain Parkway is a well known destination for motorcyclists, with its combination of winding and scenic roads, particularly in the fall when the foliage can be spectacular. On an annual basis, approximately 317 riders are injured in the Hudson Valley, and 11 motorcyclists are killed, according to the New York State DMV. Motorcycle fatalities have increased annually for the last fourteen years, with the exception of 2009, when there was a decrease of 16 percent. Interestingly, according to a study by the Governors Highway Safety Association, motorcycle fatalities are one of the few categories of highway safety in which strides are not being made. One reason is undoubtedly the inconsistent use of helmets by many riders around the country. In fact, on a recent trip I made to take my son to college, I observed a large majority of riders throughout Pennsylvania and Ohio not utilizing helmets. Helmets prevented approximately 1,600 motorcycle deaths in 2011 according to the National Highway Traffic Safety Administration (NHTSA).

NHTSA also reports that there were 4,612 motorcyclists killed in accidents on U.S. highways in 2011, which was 2% higher than in 2010. Motorcycle deaths accounted for 14% of all highway deaths in 2011, even though motorcycle registrations comprise only 3% of all vehicles on the road. Motorcyclists are killed 30 times more than occupants of cars, and are five times more likely to be injured.

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The wrongful death trial of Michael Jackson has been an extensive five month battle in an L.A. courtroom between Katherine Jackson, the mother of the late “King of Pop”, and AEG Live, the concert promoter of Jackson’’ ill fated “This is It” tour which had been scheduled to commence in the summer of 2009 days after Jackson died of a Propofol overdose.

In November of 2011, Jackson’s personal physician Conrad Murray was convicted of involuntary manslaughter in the 50 year old pop singer’s death, based on evidence that Dr. Murray had caused Jackson’s fatal overdose from the surgical anesthetic Propofol. Propofol is a commonly used anesthetic, but only in a controlled environment, such as a hospital where the vital signs of the patient can be monitored. In Michael Jackson’s case, Murray was infusing the singer in his home with no staff to assist him, a medical malpractice disaster waiting to happen.

In the lawsuit, the 83 year old Katherine Jackson contends that AEG hired and supervised Dr. Murray (at the very lucrative rate of $150,000 per month) with the sole purpose of assuring that Jackson would be ready to perform when the tour began. Ms. Jackson also claims that AEG knew that Murray was administering Propofol in an unsafe manner, knowing that there was a substantial risk to Jackson’s health and that the risks could potentially be fatal.

Lastly, Ms. Jackson alleges that AEG created a conflict of interest by paying the debt addled doctor a substantial monthly fee with the understanding that he would be fired if Jackson was unable to perform, thus causing Murray to take unnecessary and unsafe medical decisions which adversely affected his judgment. AEG has undoubtedly brought up the well reported claims that prior to Jackson’s death, he had significant drug problems, using a wide variety of narcotics and other medications for insomnia and other medical issues. Further, Jackson was certainly capable of making his own decisions about his own health, and was in a position to fire Murray himself if he believed that Dr. Murray was not acting in his best interests.

AEG attempted to have the case dismissed this past week, arguing that the company’s executives did not know of the dangerous Propofol infusions administered to Jackson by Dr. Murray. However, L.A. County Superior Court Judge Yvette Palazuelos denied the dismissal motion, stating that substantial evidence had been presented during the trial that AEG “knew or should have known” that Dr. Murray presented an “undue risk of harm” to Michael Jackson.

Nonetheless, Judge Palazuelos did dismiss the case against AEG CEO Randy Phillips and co-CEO Paul Gongaware, holding that they were not personally responsible for any actions or inaction the company took in the Jackson matter. Katherine Jackson is suing AEG for millions in her son’s wrongful death when ironically, due to proceeds from the “This Is It” movie, recordings, and profits from his purchase of the Beatles catalogue, the Jackson estate is now worth several times more than Jackson ever earned in his lifetime, as documented in a CBS “60 Minutes” story this past weekend which interviewed his long time agent Tony Branca.

Closing arguments in the case will begin this week, following rebuttal testimony presented by Jackson’s attorneys to contest AEG’s “lack of knowledge” defense. The verdict is truly hard to predict, due to the clear complicity of Conrad Murray, who certainly violated the Hippocratic oath to “do no harm” (but who was convicted in 2011 and is serving his sentence presently), contrasted with the evidence that AEG was undoubtedly exerting enormous pressure on Murray to ensure that Jackson would meet his contractual obligations, combined with the obvious question as to Jackson’s own culpability for his substance abuse and retention of doctors who would do what he requested irrespective of consequences.

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A recent report in the New York Times focuses on the increasing problem of women dying from an overdose of prescription painkillers such as OxyContin, Percocet and Vicodin. The report highlighted a study that was conducted by the Centers for Disease Control (CDC) and concluded with data from 2010.

The article examined the painkiller abuse in the city of Portsmouth, Ohio, which is located on the edge of Appalachia in Scioto County. Prescription painkiller addiction was originally more of a problem with men, who would be given opoids such as Vicodin for back pain from working in the coal mines and factories. However, the CDC notes that since 1999, the death rate among women from prescription painkiller overdoses has quintupled.

Women are now more likely to dies from overdoses of OxyContin than from homicide or cervical cancer. The study reveals that white women are much more likely to suffer a fatal overdose than African American women, and older women (defined by the CDC as the age group of 45-51) are dying in greater numbers than younger women, even though abuse of these opoids is seen more frequently in younger women.

The CDC analysis noted that Asians and Hispanics had the lowest fatality rates from prescription painkiller overdose. In 2010, 6631 women died from painkiller overdoses. One of the major contributing factors in the increase in female deaths appears to be that women are more likely to also be on anti-depressants and anti-anxiety medications, which can be a lethal combination in conjunction with opoids. Another contributing factor according to the CDC is that chronic pain syndromes such as fibromyalgia are more commonly seen in women than men. Further, the CDC indicates that statistics show that women are more likely to obtain prescriptions of OxyContin, Vicodin and Percocet, to get higher doses, and to use these drugs more frequently.

The article also discusses other factors contributing to the problem, such as financial distress, single mothers with little support from the fathers of their children, and a family history of child abuse and alcohol abuse.

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In a story by Terence Corcoran in the May 20, 2013 edition of the Journal News, the family of Evan Lieberman, a 19 year old student at the University of Connecticut who was killed in a motor vehicle crash on June 16, 2011, has taken on the battle against distracted driving. Evan Lieberman was a passenger in a car driven by a high school friend named Michael A. Fiddle along with two other friends from Chappaqua when the fatal accident occurred at 7:50 AM on June 16, 2011. Fiddle was driving on Route 6 in Orange County to their summer employment in Woodbury, New York.

Fiddle claimed to state police investigators that he had fallen asleep at the wheel before veering into oncoming traffic. Mr. Lieberman suffered massive injuries and was hospitalized for one month before dying of his injuries on July 18, 2011, after several surgeries were unsuccessful in saving his life. The case was presented to a grand jury on the theory that Fiddle had been texting and driving or otherwise using his cell phone at time of the accident. Apparently, the grand jury decided not to indict Mr. Fiddle.

Lieberman’s father, Ben Lieberman, was not satisfied with the explanation given by Fiddle that he had fallen asleep at the wheel. Mr. Lieberman pushed investigators to look at the case more closely. Although the state police never charged Mr. Fiddle or cited him for any violations of the New York Vehicle & Traffic Law with regard to the accident, Evan’s father decided to file a civil suit on behalf of his late son so that he could obtain cell phone records. The state police apparently never sought the phone records of Mr. Fiddle, and claimed they could not prove definitively whether Mr. Fiddle was using a cell phone at the time of the accident.

Whenever there is a fatality in a car accident, the Department of Motor Vehicles automatically conducts a hearing to determine if action should be taken against the driver of the car with regard to his or her driving in that fatal accident. Mr. Fiddle, as was his option, (and is usually on the advice of counsel when there is potential criminal responsibility) did not testify at the hearing. The estate’s attorneys introduced statements made by Mr. Fiddle in the civil suits filed by the Lieberman family and other passengers in the car. Lieberman’s attorneys were also able to establish that the browser on Fiddle’s phone was on from 7:00 AM through the moment of the fatal accident.

Mr. Fiddle’s attorney argued that the phone records should not be used during the hearing, contending that the police did not file any charges against his client. He also made the claim that investigators concluded that there was no evidence connecting texting or speaking on a portable device with the accident. However, Judge Marinacci was not persuaded by these claims.

During the hearing, (which is generally recorded only on a cassette tape recorder unless one of the parties pays for a court reporter), Administrative Judge Donna Marinacci determined that Mr. Fiddle had in fact been using a portable device while “driving drowsy”, (unlike the police, Judge Marinacci did obtain the cell phone records). Judge Marinacci ruled that Fiddle’s driving “constituted gross negligence in the operation of a motor vehicle”, and “showed a reckless disregard for life” and “caused or contributed to the accident.” Judge Marinacci ruled that Fiddle violated several sections of the Vehicle & Traffic Law in the fatal accident, and suspended Fiddle’s license for one year.

Evan’s parents have set up an organization to combat distracted driving known as “DORCs”–“Distracted Operators Risk Casualties.” Additionally, the entire Lieberman family has organized a non profit called “Evan’s Team”, to raise funds and awareness for community concerns and issues.

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In a case we wrote about almost six years ago, Westchester County and the owner of the “Mind Scrambler” ride at Playland have agreed to settle the wrongful death case of the late Gabriela Garin, a 21 year old Playland employee who was killed on June 29, 2007. On the date of the accident, Ms. Garin was working as one of the operators of the Mind Scrambler ride, and purportedly stood up on the back of the seat without being buckled in when the ride began. Ms. Garin was thrown from the ride, and died shortly thereafter. Her family disputed the account of the fatal accident.

Several years earlier, a 7 year old girl was also killed on the Mind Scrambler ride. In all, there have been four fatal accidents at Rye Playland over the last 8 years, including the case of Jon-Kely Cassara, a 7 year old boy who died on the “Ye Olde Mill ride on August 3, 2005, when he got stuck under the boat in a dark tunnel and drowned. The County has added a second operator to observe riders prior to the Garin accident to improve safety of the ride, but it was reported at the time that there was a County rule that no employees were to be on the ride while on duty; it was also reported that she was on duty when the accident occurred. After the Garin accident, the Mind Scrambler was removed from the park.

Under the terms of the settlement, Ms. Garin’s estate will receive a total settlement of $700,000. The settlement proceeds will be paid by the County of Westchester, who will contribute $275,000, and the owner of the Mind Scrambler ride, S & L Amusement Corp., which will contribute $475,000 toward the settlement. Ms. Garin had a two year old daughter, had worked at Playland for 7 years and was a student at Westchester Community College.

It is very unusual for a case in Westchester County, unlike the Bronx with its huge caseload, to last six years before resolution by settlement or trial. It is possible that there were appeals that needed to be decided prior to the settlement, and also possible estate issues. The usual amount of time in a personal injury case in Westchester County from the date of an accident to the conclusion of litigation is approximately two years.

The Westchester County Board of Legislators must approve the settlement before it can proceed to completion. In his argument for approval of the settlement, Westchester County Attorney Robert Meehan stated: “At trial, the plaintiff will argue, and a jury may believe, that both the county and S & L share a portion of responsibility for plaintiff’s accident. Plaintiff will also argue that although the county neither owned or operated the Mind Scrambler, the county nevertheless made changes, including the addition of a second ride employee to observe ride operation, to improve safety and should have taken measures to ensure that S & L employees were properly using the newly installed safety features.” Interestingly, it has been my experience that the County usually adopts a more hard line approach in what are known as “assumption of risk” cases, in which the argument is made by the defendant that the plaintiff was engaged in a high risk activity, such as in this case standing up on the ride and not bucking her seat belt, and has therefore “assumed the risk” of injuries or death by engaging in the risky activity. There was a famous case called Maddox v. City of New York, et. al. in the 1980’s which highlights the occasionally very unfair result of the “assumption of risk” defense. Elliott Maddox, who was a centerfielder for New York Yankees in 1975 (and playing at Shea Stadium while Yankee Stadium was being renovated) suffered a very serious right knee injury on a wet and muddy outfield which ultimately led to three knee surgeries and the end of his career. Maddox had reported the conditions to both the grounds crew and the manager, but certainly wasn’t in a position to demand that he be removed for the game. However, the Court of Appeals, the highest Court in New York, felt otherwise, and declared that because Maddox knew of the risks of a wet and muddy field, and continued to play, he could not bring a claim for his career ending injuries against the City of New York, the owners of Shea Stadium and miscellaneous other defendants.

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The New York Times reported this week that the family of Derek Boogard, the ex-New York Rangers and Minnesota Wild defenseman, has filed a wrongful death lawsuit against the NHL. The suit alleges, among its many claims, that the league failed to protect Boogard by allowing him to return too quickly to play after suffering numerous concussions, despite the league’s knowledge that repeated blows to the head can lead to chronic traumatic encephalopathy (CTE). CTE, which causes dementia, depression, dizziness, loss of balance and coordination, has recently been determined as the cause of death in the autopsies of numerous NFL and NHL players, including former defensive stars Junior Seau and Dave Duerson, who were hard hitting players that endured numerous violent head collisions during their NFL careers. In the cases of both Seau and Duerson, they committed suicide by shooting themselves in the chest so that their brains could be examined for CTE.

The lawsuit by the family of David Duerson against the NFL, who committed suicide at age 50 in 2011, was consolidated with those of approximately 4,200 former National Football League players who have sued the league for brain injuries suffered during their careers. Mr. Boogard, who was known as an “enforcer” during his six year NHL career, which lasted 277 games, was found dead of an accidental overdose of prescription painkillers on May 13, 2011. His last game was on December 9, 2010, when he was diagnosed with what is believed to be one of many concussions he suffered during his short NHL career.

The Boogard suit also alleges that the league was well aware of, and failed to monitor, his drug use and numerous prescriptions, and in fact facilitated the serious addiction that Mr. Boogard had to “prescription pain medications, sleeping pills, and painkiller injections”, which were prescribed by “physicians, dentists, trainers and staff.” Boogard apparently received approximately 13 injections of Toradol, which is a masking drug for pain, and the suit claims that in the 2008-2009 season, in a 16 day stretch, physicians prescribed Boogard 150 pills of Oxycodone, a controlled substance. There are also allegations that the NHL knew that Mr. Boogard had failed numerous drug tests in his last year, yet the league never took any disciplinary action against him, as its own substance abuse program mandates.

There are huge legal implications for both the NFL and NHL as a result of the lawsuits brought by the families of Mr. Seau, Duerson, and Boogard, in conjunction with the cases of the 4,200 players whose cases have been consolidated in federal Court. It is fairly clear that the NFL knew for many years that players were suffering serious side effects from repeated concussions, but it is only in recent seasons that rules have been placed in effect to prevent players from re-entering games in which they have “had their bell rung” (euphemism used for a concussion) and requiring additional medical clearance before players may return to action after suffering a diagnosed concussion. Clearly, if these cases proceed to trial and result in a liability finding against the NFL and or NHL, the damages awarded to the players and their families could be astronomical and would have a significant financial impact on professional sports as a whole. Without question, however, something must be done to curtail the excessive violence in football and hockey, with the protective head gear clearly inadequate in many cases to prevent long term brain damage to the players.

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Last week, a Los Angeles County jury awarded 8.3 million dollars to retired Montana prison guard Loren Kransky for pain and suffering and medical expenses he suffered from a defective artificial hip implant manufactured by a division of Johnson & Johnson, which has since been recalled. The implant is known as an Articular Surface Replacement or A.S.R., and was manufactured by the company’s Depuy orthopedics unit from 2003 until 2010, when Johnson & Johnson ordered a recall of the product. Mr. Kransky’s lawsuit was the first of approximately 10,000 that Johnson & Johnson is facing, with another trial set to start in Chicago on March 11, 2013, and numerous other cases scheduled for later this year.

The Depuy artificial hip is made of all metal, and the design would cause the cup and ball to rub against each other as the person moved, leading to some splintering of metallic debris, which caused damaged to tissue and bone, severe pain, and in some cases, permanent injuries to patients. The 12 member jury in Mr. Kransky’s case ordered the company to pay him 8 million for pain and suffering, and $338,000 for medical expenses. Defense lawyers for Johnson and Johnson were unable to overcome evidence which showed that the company was told by surgeons that the design of the Depuy implant was flawed. Consultants to the company had recommended slowing sales of the devices, which was ignored, and Johnson also been considering redesigning the implant but decided against this measure due to a costs benefits analysis that unimpressive sales of the implant did not justify the costs of the redesign.

The A.S.R. is part of a group of extensively used hip replacements with an all metal design, which replaced the design which used metal and plastic. Presently, all metal hips are rarely used by surgeons. Traditional hip replacements are expected to last 15 years before a replacement is recommended, and generally, their failure rate is approximately 5% after five years. Jurors in the Kransky case saw an internal memorandum that Johnson knew that 40% of patients who had an A.S.R. would require a second operation within 5 years to have the Depuy implant removed and replaced. The jurors deliberated for a full five days before reaching their verdict. Mr. Kransky’s lawyers had requested that the jury award him between 36 and 144 million, and award punitive damages to punish the company for intentional and egregious conduct. However, jurors declined to award punitive damages, and their verdict, while substantial, was certainly not anywhere close to the amounts requested of them. Mr. Kransky’s case was expedited as he is suffering from terminal cancer and it was unclear if he would survive until the trial.

Thousands of the other cases against Johnson & Johnson have been consolidated into a class action in federal Court in Ohio. If those cases are settled, it may lead to an analysis of how to calculate the remaining plaintiffs’ damages and a basis for a settlement of the remaining cases. Despite dodging a proverbial bullet in the size of the Kransky verdict, Johnson & Johnson has announced that they will appeal and argue that the design of the Depuy implant was not defective. That could lead to a settlement of the Kransky matter in that if Mr. Kransky is that ill, he will probably not survive until the resolution of the appeal, which can take at least several months to a year for a decision in many Appellate Courts.

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