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National Football League and Sports in New York, Part 1

Football season is winding down, but the National Football League should soon be winding up for two class action lawsuits that are purportedly being formulated against it. Continued and increasingly in depth research on football related brain injuries has spawned potential legal claims that have the ability to wreak havoc on the now over ninety year old organization.

Seventeen years ago, in 1994, the NFL medical committee on concussions was formed. In the last several years, report after report has surfaced detailing clinical research findings of severe and permanent cognitive harm associated with playing football. But these reports were not from the NFL. Rather, the NFL has put out conflicting statements on the subject and only recently reported similar findings to what reputable researchers have been warning about for years. In 2007 the NFL circulated a pamphlet to players stating, in essence, that a few concussions would not result in permanent brain injury, so long as proper medical treatment was received. Last summer, however, the NFL finally circulated a poster, meant to be hung in locker rooms, revealing that concussions may not be so benign after all (click the image to the right to make larger). Indeed, various studies have found that early dementia, Alzheimer’s disease, Lou Gehrig’s disease, depression, chronic traumatic encephalopathy, and memory problems, among other things, are all associated with head injury.

Some recent players of the league are expected to allege that the NFL was aware of the long term risks of playing football and chose to suppress them, or that the NFL reasonably should have known of the long term risks. The root of these claims is that the NFL’s failure to disclose what they knew made an already dangerous sport even more dangerous and that the NFL made no attempt to lessen the danger. Such claims could result in awards to injured players for economic loss, pain and suffering, and in the case of a fraudulent concealment claim, punitive damages. Wives, and in some states, children of the injured players, could also recover monetary damages if the injured player’s lawsuit is successful.

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Mediation Increases the Success of Injured Clients in New York

Last week I attended the wake of one of New York’s foremost mediators, Michael McAllister. Having been a private mediator with JAMS for the last six years, he had developed a reputation among all litigators in the negligence field as fair, honest, hardworking and a true gentleman. As I watched attorney after attorney and even insurance adjusters pass through the funeral home, I was reminded of the first time I had ever heard of the concept of mediation.

Almost fifteen years ago, I was asked, as a law student working at a prominent New York personal injury firm, to prepare a case for mediation. Having just completed three years of law school, I was kind of surprised that I had not heard of mediation. Furthermore, having worked for over ten years at this firm as a high school student, college student and law student, the concept of trying to settle the case using a private mediation service was something unheard of. We were weeks away from trial and it seemed like everything had been going as planned.

I walked into the managing partner’s office and asked, what is this private mediation and why are we trying this since we are so close to trial? The answers I was given, though strange at first, are so on point and correct in today’s litigation trial strategy.

Private mediation is essentially a mutual agreement by all sides to retain the services of a retired judge or former court attorney so that each side can present the strengths and weaknesses of their case in a forum that allows for open communication and dialogue. The goal is to begin settlement discussions and resolve the matter to the benefit of all parties, more often than not.

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Worker Dies at Queens Construction Site

Labor Law § 240(1), a New York State statute, imposes upon owners and general contractors a non-delegable duty to provide proper and adequate safety devices to afford protection to construction workers working on a building or structure subject to elevation-related hazards. No matter how stringent the safety standards are in New York regarding construction, all construction laborers are at risk every single day while on the job.

Any breach of the statute will impose absolute liability upon the owner and general contractor at the construction site. Moreover, negligence of the injured construction worker is of no consequence against a Labor Law §240(1) claim. This statute, along with Labor Law §241(6) and §200 (codification of common law standards) allows an injured construction worker to recover monetary damages for injuries suffered in a construction site accident.

Earlier this month, a wall collapsed at a construction site in Rego Park, Queens on January 10, 2011, killing a construction worker and seriously injuring three other workers at the site. This was the first construction death recorded in New York City this year, according to New York City’s Department of Buildings. The accident occurred as two workers were perched atop the wall, which was 18 feet tall, pouring concrete into the spaces in the cinder block wall, when it collapsed. There were two workers on the ground near the wall and beneath the scaffolding when the wall began to collapse.

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Summary Jury Trials: Justice or Just Fast?

Human tendency is to want immediately everything that can be obtained immediately. We like one hour photo-labs, microwave ovens, overnight mail, same day dry cleaning, and fast food. Well, as proof that the wheels of justice don’t always turn slowly, our beloved court system has developed the summary jury trial also referred to as the “SJT.” An SJT is an alternative dispute resolution technique that has been around for years but is now gaining increasing use around the country and certainly in New York. It is a break from the regular trial system and can afford a litigant several benefits.

The particular technique of which I have had personal involvement has been the “Binding SJT” in which the parties try the case to a binding verdict rather than simply engaging in a non binding mock trial. The binding SJT’s are generally one or two days in length. The parties stipulate as a prerequisite that each litigant will be bound by the jury’s verdict. The right to move to set aside the verdict may be waived or strictly limited to instances where, for example, fraud was used to obtain the verdict, or there is an error of law that occurred during the trial, or a miscalculation of figures occurred.

The first day of the trial is generally used as an evidentiary hearing for purposes of determining which documents and witnesses the jury will learn about and/or hear from during then trial. Related medical treatment records as well as the plaintiff’s and defendant’s expert medical reports are usually stipulated to be admissible. This generally saves money for the both the plaintiffs and defendants. Day two consists of jury selection and the trial. The presentation of evidence and arguments made by the attorneys are governed by strictly enforced time limits to ensure that the entire case is presented and the jury gets the case the same day for deliberation.

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New York City Transit Authority and City of New York Sued by Stranded Passengers

The effects of the blizzard of 2010 are finally ending but not for the New York City Transit Authority (NYCTA) or the City of New York. Hundreds of passengers were stranded for several hours on trains that never should have left the station. THERESA JUVA of amNewYork, who spoke with passengers on a stranded train … Read more New York City Transit Authority and City of New York Sued by Stranded Passengers

Technology: Friend or Foe to New York Personal Injury Attorneys and their Clients?

In September 2010, Nebraska State created an iPhone application that allows realtime searching of its court dockets by date, time, and location. Although it appears the app has its share of kinks to work out, such a tool could be a useful aid to attorneys in all states who need to obtain reliable information when … Read more Technology: Friend or Foe to New York Personal Injury Attorneys and their Clients?

Bronx School Stabbing Results in Serious Injuries

The New York City Board of Education is supposed to provide a safe environment for our children to learn. Unfortunately, some schools fail in this respect, and students are being attacked while attending school. Parents have the right to send their children to school and expect them to come home unharmed. As recently reported in … Read more Bronx School Stabbing Results in Serious Injuries

Overcrowded New York Clinics and Emergency Rooms Cause Serious Delays in Diagnosis and Treatment of Medical Conditions.

As one of the first legislative agendas the U. S. Congress will attempt to repeal the recently enacted National Health Care Reform Act. Despite all of the negative hype this legislation has generated and whether or not you are for or against the present Health Care Bill the need for a major overhaul of the … Read more Overcrowded New York Clinics and Emergency Rooms Cause Serious Delays in Diagnosis and Treatment of Medical Conditions.

New York Apartment Burn Injuries: When is the Hot Water in Your Apartment Too Hot?

Approximately 45,000 Americans are hospitalized each year for the treatment of severe burns, according to the American Burn Association. Tap water scalding injuries have been cited as the most common cause of serious burn injuries, especially among children. The results of a burn can be extremely painful and expensive to treat. For many people, they require admission into specialized burn units of hospitals, as well as prolonged and costly medical care.

Burn injuries can be especially problematic because they are slow to heal, may require surgery (skin grafts, debridement or reconstruction surgery), prone to infection and leave permanent scarring (keloid scars or contracture scars) and disfigurement. There are different levels of burn injuries, consisting of 1st degree, 2nd degree and 3rd degree burns. Both 2nd and 3rd degree burns can be caused by exposure to scalding hot water for mere seconds.

Examples of accidents that cause scalding injuries include (1) defective hot water faucets; (2) sudden and unexpected scalding hot water from the tap; (3) defective boilers and (4) poorly maintained boilers and hot water heating systems.

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Preparing For Trial: Bio Mechanical Breakdown

Biomechanics is the study of how physical forces affect and influence living organisms. It is said to combine mathematics, physics, chemistry and biology. Experts in this field have served in personal injury cases in a variety of factual scenarios including trips and falls and most predominantly now in motor vehicle cases. This entry was prompted by a recent article published in the New York State Bar Association Journal November/December 2010 edition titled The Rise of Biomechanical Experts at Trial which discusses and promotes the increase in the use of biomechanical engineers by defense attorneys in defending automobile cases.

Although the article we reference highlights the trend of retaining experts of this type specifically at the time of an impending jury trial, we note that the warning signs of the involvement of such experts are appearing earlier in the litigation. Within the last 8 months I received pre-suit correspondence from adjusters claiming that the soft tissue injuries claimed by my client were not causally related to the subject low impact collision “from a biomechanical standpoint.” Some plaintiff’s attorneys have reported that they have received reports from defendant’s biomechanical engineer as exhibits in summary judgment motions on the serious injury threshold question served upon completion of depositions. The purpose of the expert disclosures in the motions and trial testimony by the expert is the same. The expert is retained to argue that the injury producing mechanisms were not present in the accident. That is to say, the forces exerted upon the injured body parts were not of a sufficient magnitude to cause the injury alleged by the plaintiff based upon the expert’s knowledge of human anatomy and a mathematical assessment of the forces involved in the collision.

For the injured plaintiff and her attorney this is just one more obstacle to consider in the quest for justice. It would seem that there would be no rise in the use of biomechanical engineers if the use of same did not create a benefit to defense counsel and yet it begs the question: Is it the expert or is it the case?

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