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Tragic Bus Accident Kills 14 in New York
A tragic New York bus accident on I-95 took the lives of 14 passengers and injured 19 others.
A private bus company was hired to bring 31 people back from the Mohegan Sun. The bus left the casino
very early on Saturday morning. At approximately 5:30 AM, the bus crashed on I-95 in Westchester County, crashing
through a highway sign that cut through the entire length of the bus.
The bus driver suffered minor injuries and survived the crash. Initial reports show that the bus driver claimed a
tractor trailor cut him off and clipped the bus. According to an NBC News Report, some passengers have claimed otherwise.
The passengers claim that the bus driver was speeding excessively and possibly even falling asleep at the wheel; the bus was reported to have hit the rumble strips several times before the crash occurred.
The investigation as to the cause of the crash is still ongoing.
At Gersowitz Libo & Korek, P.C., we are dedicated to representing victims of New York bus accidents. If you or a loved one has been injured in a New York bus accident, contact us immediately at 800-LAW-9997 for a free consultation.
The Most Injured Victims Are Victimized By Maryland Law
Caps on Wrongful Death and Medical Malpractice Severely Limit Recoveries for Pain and Suffering (Non-Economic Damages)
In 2006, five year old Connor Freed tragically drowned in a country club swimming pool. Connor’s parents, the Freed family, successfully sued the pool company and were awarded by a jury over $4 million in damages for their grief and mental anguish.
Even though the jury found the pool company liable for $4 million, due to Maryland’s cap on all non-economic damages, the award was reduced to just over $1 million. In 2006, the cap on a victim’s wrongful death with two or more survivors was $1.02 million.
The Maryland Cap on Non-Economic Damages was put in place in 1986. In 1994, the cap was raised from $350,000 to $500,000, with an increase of $15,000 each year on October 1. The cap was put in place on the theory that liability insurance would be more affordable and accessible to individuals and organizations that need it.
The Freed family challenged the constitutionality of this cap with Maryland’s Highest Court, the Court of Appeals (DRD Pool Service v. Freed). They argued that this cap violated the right to redress (Article 19), the right to a jury trial (Articles 5 and 23) of the Maryland Declaration of Rights, and the guarantee of equal protection under the 14th Amendment to the U.S. Constitution.
The Appeals Court claimed that stare decisis (to stand by the thing decided) was the basis for their determination as to whether they would overturn this precedent, since they had already upheld the constitutionality of it on two other occasions (Oaks v. Connors and Murphy v. Edmunds). The Court stated that it is only appropriate to overturn a precedent when the decision is clearly wrong and contrary to established principles or when significant changes in other laws or facts invalidate the precedent.
The Court found that this cap did not violate either circumstance, and stare decisis would not be abandoned. The Court further held that this cap did not interfere with the right to a trial by jury, as a jury of one’s peers still evaluates the facts presented and evaluates the negligence of the parties. The Court concluded that the cap did not prevent a plaintiff from full redress; it simply modifies the law of damages to be applied in tort cases.
The Court also ruled that the 14th Amendment to the U.S. Constitution- the guarantee of equal protection- was not violated. The Freeds argued that those who are less seriously injury are entitled to keep everything awarded by a jury for non-economic damages, while those who are more seriously injured and deserving of more are limited by the cap; thus creating a clear classification and violation. While the Court agreed that this cap would technically favor one party over another, it did not create a classification that would justify heightened scrutiny or review.
Insurance companies and big business argue that other States should implement caps. They contend that caps are necessary to curtail jury awards that they believe are too high to appropriately compensate the injured party. This argument, however, is invalid.
In most States, higher courts act as a safeguard to evaluate whether a jury’s award for non-economic damages is excessive or fair and reasonable. If a defendant believes that a damage award is too high, the defendant has a right to appeal the decision to the Appellate Court. In most instances, the Appellate Court will issue a well reasoned decision outlining the factors involved in maintaining, reducing or increasing a jury’s award.
Simply put, a cap on non-economic damages hinders one’s rights and circumvents the role of a jury. Fortunately, the Citizens of New York and New Jersey have curtailed any effort to put in place caps on recoverable damages for victims of medical malpractice, personal injury or wrongful death.
You can view a full transcript of the DRD Pool Service v. Freed by clicking on the name.
For a summary of New York malpractice law, check out the link.
"Level of Awareness" of Comatose Patients Determines Damages for Pain & Suffering
On October 4, 1996, Edith Schaffer suffered a seizure after admitting herself to a psychiatric hospital (Stony Lodge Hospital) in Ossining, NY. After the seizure occurred, she was transferred to a local hospital, and her seizures continued for the next two days. Ms. Schaffer lapsed into a coma, which she remained in for over four years until her death on June 6, 2001. It was determined that her coma was caused by the failure of the physician at the local hospital to diagnose hyponatremia (critically low sodium levels).
A Westchester county jury found the doctor who treated her at the community hospital, Binda Batheja, fully liable for not appreciating the significance of Mrs. Schaffer’s condition. The condition is easily treatable and reversible. The jury awarded $5 million for Mrs. Schaffer’s pain and suffering and $3 million for her husband’s loss of services.
The defense appealed the decision (Schaffer v. Batheja), claiming that it was excessive. The Defendant requested that the appellate court either completely set aside the verdict or at least drastically reduced the sums awarded.
Damages for Pain & Suffering
In order to be awarded damages for pain and suffering, the injured person must demonstrate “some level of awareness of his / her condition and pain level. Claims based upon conjecture, surmise or speculation regarding the person’s ability to appreciate pain will be dismissed by the Court. This standard was set forth by the New York Court of Appeals in McDougald v. Garber (1989).
In Schaffer, the plaintiff attorneys argued that Mrs. Schaffer definitely had some level of awareness of her pain and suffering. The attorney presented medical testimony that Mrs. Schaffers movements in response to outside stimuli demonstrated some level of awareness of her condition.
The defense for Batheja (who died before Mrs. Schaffer and was never disposed in the lawsuit), argued that there was not enough proof that Mrs. Schaffer had any level of awareness. They contended that Mrs. Schaffer’s movements were purely reflexive. In addition, the medical records showed that Mrs. Schaffer was comatose at all times with no ability to communicate or consciously express her pain.
The jury did not believe the defendant’s arguments and awarded Mrs. Schaffer’s estate $5 million dollars for the almost five years of her pain and suffering. The Appellate Division reduced the jury’s award to $2.5 million. Despite the reduction in the jury’s award, the Appellate Division determined that the medical proof submitted in support of Mrs. Schaffer’s claim was sufficient to prove that she was, at times, able to appreciate her pain.
This decision remains a small victory for the many individuals who remain or have been in an vegetative state or coma to seek recovery for their years of suffering. It is important for any person or family member who is interested in pursuing such a claim on behalf of the injured party to document instances of awareness, such as eye movements, crying or tearing, grabbing of hands or other purposeful movements.
Read more about the Schaffer v. Batheja case and outcome on the New York Case Injury Blog website.
How Safe are Off-Label Prescriptions?
Drug Used to Treat Post-Traumatic Stress Disorder for Soldiers May Be Deadly
Seroquel, an anti-psychotic drug approved by the Food and Drug Administration (FDA) to treat schizophrenia, bi-polar disorders, and depression, has been on the market for years. Over the past few years, AstraZeneca, the manufacturer for Seroquel, began marketing this drug to help treat post-traumatic stress disorder (PTSD), insomnia and other conditions not approved by the FDA.
Studies were recently conducted on the side effects of Seoquel. Vanderbuilt University published a study noting that sudden heart failure may be a new side effect. The FDA and AstraZeneca are both reviewing this study to determine its accuracy.
In October of 2009, AstraZeneca paid out $520 million dollars as part of settlement agreements for two federal investigations over clinical trials and off-label promotion, and two whistle-blower lawsuits over aggressive sales and marketing. Details of the federal investigations and whistle-blower lawsuits were not made public. This $520 million barely made a dent in this multi-billion dollar drug, with sales since 2004 totaling over $17 billion.
One of Seroquel’s most recent uses has been for treatment of post-traumatic stress disorder in American soldiers, claiming the drug helps alleviate symptoms of insomnia and restlessness. Thousands of soldiers have been treated for this disorder with Seroquel over the last nine years.
The Associated Press reported on one soldier, Andrew White, who was prescribed the drug after a nine month tour in Iraq after showing signs for PTSD. As his nightmares continued, his dosages of Seroquel were increased over time, and he was taking more than double the maximum dose prescribed to those using it for schizophrenia.
Not long after started this increased dosage, White died in his sleep. There have been atleast a half-dozen deaths among soldiers taking this drug to treat PTSD, but that number is likely grossly understated.
This story raises a much bigger issue. Psychiatrists are allowed to prescribe this drug off-label, which means they can prescribe this drug for unapproved indication. Off-label prescriptions tend to be common place in today’s pharmaceutical-driven society, especially since the FDA procedures to approve a drug are costly and time-consuming.
There is generally substantial literature to support off-label usage, which is what doctors will use to determine whether to prescribe these drugs. Doctors have the ability to issue any drug for an unapproved reason, as long as they use their professional judgment to deem it safe and effective for the condition they are prescribing it for.
Isn’t it time that the FDA crack down on the off-label use of drugs as the risks seem to outweigh any potential benefit?
For more information on the Seroquel case, read the Associated Press article: http://www.google.com/hostednews/ap/article/ALeqM5iPPHBQ6w28w4kTXzANGm6kCzPN1gD9HTRUQ80
For more information on Off-Label Prescriptions, read this article by the American College of Physicians: http://www.annals.org/content/145/4/305.full?etoc
If you or anyone you know has been adversely affected by using Seroquel, contact Gersowitz Libo & Korek, P.C. at 800-LAW-9997
Officer Refuses CPR to Asthmatic Girl; Girl Dies at Hospital
Carmen Ojeda was driving the wrong way down a one-way road in Brooklyn. Why? Her daughter was having a severe asthma attack, and she was taking the most direct route to get her to a hospital in time to save her life.
The end of the street was blocked and Ojeda had already hit a parked vehicle while maneuvering down the wrong way, so she stopped the car and spotted a police car close by. Ojeda begged and pleaded the officer, Alfonzo Mendez, for help for her daughter, and allegedly, the officer refused to help, claiming he did not know CPR.
Several witnesses on the scene stepped in to try and help the 11-year old girl. Finally, after about a five minute delay, Mendez escorted Ojeda and her daughter to the hospital. Her daughter was pronounced dead at the hospital.
If this officer had acted sooner and listened to the cries for help from the mother and people in the crowd, would this young girl still be alive?
To read more about the incident, check out the Wall Street Journal’s article from today: http://online.wsj.com/article/SB10001424052748703467004575464350098369936.html
New York's Wrongful Death Statute: A Time For Change
A History of New York’s Wrongful Death Statute
In New York, individuals can bring a claim for the wrongful death of a family member as a result of the wrongful conduct of another party. Originally, at common law, this cause of action did not exist and individuals were routinely denied the opportunity to seek such redress in the courts. However, in 1847, New York became the first state in the country to enact a wrongful death statute. New York’s wrongful death law was modeled on a 19th century English statute introduced by Lord Campbell, called the Fatal Accidents Act. This law, commonly known as Lord Campbell’s Act, recognized for the first time, the right to recover for the wrongful death of a loved one. Other states have since passed their own wrongful death laws following the enactment of New York’s statute over 160 years ago.
Damages: Who May Recover and When
In New York, the individuals who may recover damages in a wrongful death claim are set forth in the New York Estates, Powers & Trusts Law 5-4.1 et seq. In order to successfully prosecute a claim for wrongful death a party must comply with the requirements set forth in the statute. An appointed representative may bring the wrongful death claim on behalf of the decedent’s distributees for the wrongful act, neglect or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued. E.P.T.L 5-4.1.
The parties entitled to recover damages in a wrongful death action are limited to a decedent’s intestacy distributees with one important exception; if a decedent dies survived by a spouse but no children, a decedent’s parents may also recover damages for pecuniary (financial) losses suffered as a result of their loved one’s death. Abandonment of the decedent by a spouse or parent is grounds for disqualification from recovery.
The damages recoverable in a wrongful death action are set forth in New York Estates, Powers & Trusts Law 5-4.3 and are limited to fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought. Pecuniary damages include future financial assistance and support the decedent would have provided, loss of services and loss of a parent’s guidance. Additionally, damages may include funeral and medical expenses the distributee incurred related to the decedent’s death as well as potential future inheritance they may have received. It is important to remember that a wrongful death claim is not brought on behalf of the decedent’s estate and does not include damages the decedent would have recovered in his or her own personal injury action had they lived. Instead, damages in a wrongful death action are divided in proportion to the pecuniary injury suffered by each of the decedent’s statutory distibutees.
A wrongful death claim is meant to compensate a family member for the future support and assistance they would have received from their lost loved one had he or she not died. In calculating this, the court looks to factors such as the decedent’s income and future earning potential as well as the likelihood of future support and guidance to the family member in question. In assessing damages, the court will also take into account the decedent’s age and health as well as the nature of the relationship between the parties.
A Time For Change
While New York’s wrongful death statute is meant to address the pecuniary effect a family member’s death has on those they support, the statute itself poses many problems. Most notably, New York’s wrongful death law does not compensate individuals for the pain and suffering or grief associated with losing a loved one.
New York’s wrongful death law and its focus on pecuniary loss is particularly problematic in cases where the decedent did not work outside of the home or was a low-wage earner. This includes instances where the lost loved one was a stay at home mom, a minor child, an elderly person, or a disabled individual. Since recovery in a wrongful death lawsuit is premised on an individual’s expected economic contribution and support, damages in wrongful death cases are unfairly limited when the decedent is not of working age, did not work outside of the home or was of limited financial means.
In the case of a non-wage earner such as a stay at home parent, damages may include the replacement cost of the individual’s services within the home. However, quantifying the value of these services is often problematic. Similarly, in the case of a minor child, damages are limited to the pecuniary loss the parent suffers as a result of the child’s death. While the court may look to future support the child could potentially provide to a parent, assessing these damages is difficult since at the time of a child’s death pecuniary support is often nominal. Likewise, the courts have routinely cut-down awards to the distributees of a single parent of adult children, or a single adult without children.
Furthermore, the focus on pecuniary damages in New York’s wrongful death law is troubling because there is reduced accountability for the wrongdoer in cases which involve children, the elderly and other low or non-wage earners. Facilities that cater to children and the elderly like hospitals, nursing homes, day-care centers and corporations have less of an incentive to guarantee the safety of their customers and patrons if they face reduced damage awards in court. In order to ensure the safety of societies most vulnerable citizens, all individuals must be treated equally in the eyes of the law.
New York wrongful death attorneys and New York wrongful death lawyers believe one person’s life should not be worth more than another’s. As it now stands, New York’s wrongful death statute does not take into account the personal and emotional loss associated with losing a loved one. Despite the fact that much has changed since 1847, New York’s wrongful death statute has not been modified to reflect societal changes.
We need to pass a law that will permit grieving families to recover just compensation for their horrific loss. We need to obtain justice for grief-stricken parents who have lost a child. We need to restore value to the life of an elderly grandparent. We need to recognize that a woman who gives up a promising career to be a full time mother is not worth less in New York State courts than a woman who works in an office.
After 163 years, New York’s archaic wrongful death statute still lives on in this state. Grieving families in our state continue to suffer the unconscionable injury of an antiquated law. We cannot, and we will not, let it stand.
TERROR ON LONG ISLAND
Family Mourning Loss Hires GLK for Justice
On the day after Thanksgiving 2008, tragedy struck a Walmart department store in Valley Stream, New York. A horde of shoppers trampled Walmart employee Jdimytai Damour in their eagerness to get to the store’s Black Friday sales.
Jdimytai, 34, was hired as a temporary maintenance worker at the Walmart in Green Acres Mall during the holiday season. In the early morning of November 28, Jdimytai was pulled away from his duties in order to control the crowd that had gathered in anticipation of the store’s post-Thanksgiving bargains. Managers chose Jdimytai to guard the doors because of his imposing frame, even though he had never received any security training.
When Jdimytai opened the doors at 5am, the crowd of eager shoppers began to force their way in, pushing past Jdimytai and into the store. Alone facing the mob, Jdimytai fell to the ground and was trampled to death while trying to protect a woman who was 8-months pregnant from the crush of the crowd. Four other shoppers suffered injuries during the mob scene, including the 28-year-old pregnant woman, who was hospitalized with minor injuries, and might have died had it not been for Jdimytai’s determination to keep her safe.
Marie Telismond, Jdimytai’s mother, reached out to Gersowitz Libo & Korek, P.C. to help her family navigate the legal waters in the aftermath of her son’s death. The Walmart store in which this tragedy occurred had no policies in place concerning crowd control, even during large sales events such as the one on Black Friday.
The store’s inadequate security measures and safety protocols, coupled with their lack of regard for Jdimytai’s inexperience in dealing with crowds, led to the untimely death of the young man. This tragic story was immediately picked up by news media around the country.
Ms. Telismond and the rest of Jdimytai’s family were hounded for interviews by major broadcast companies who were interested in a headline that involved the nation’s largest retailer.
In response to the tragedy, New York City Council Member Jim Gennaro and Nassau County Legislator Joseph Scannell introduced legislation to prevent stores from putting workers in the position Jdimytai found himself the only barrier between an angry mob and the gadgets they desired. These bills impose safety precautions on stores that hold door buster sales like the one that ended in tragedy at the Valley Stream Walmart.
Hopefully, with Gersowitz Libo & Korek, P.C. on the case and legislation at the city and county level, the story of Jdimytai’s wrongful death will change the negligent culture of companies who have these kinds of sales and prevent a similar tragedy from happening again.
Widespread Liability Exposure Resulting from the Toyota Recall
In recent years, there have been persistent complaints with several models of Toyota vehicles with regard to episodes of uncontrollable acceleration. Consumers have complained of instances in which their Toyota vehicle was unresponsive to efforts to slow down or stop, resulting in essentially a runaway vehicle. Collisions, crashes, damage & destruction of vehicles and property, and injury & death have all resulted from these instances of uncontrolled acceleration.
As these complaints mounted, Toyota assured the public that all was well with their vehicles, and that a dangerous or defective vehicle was not to blame. As a result, in cases of crashes, liability was often assigned to the driver (based upon negligence) and the role of the vehicle in potentially causing the collision was overlooked.
In the past few months, evidence contradicting Toyota’s claims that their vehicles were not at fault became impossible to ignore. Following widespread media attention and the threat of both legal action and governmental intervention, in February, 2010 Toyota finally responded with a recall of a large number of their most popular models, citing two problems (existing individually or in combination) that they have termed Floor Mat Pedal Entrapment and Sticking Accelerator Pedal as the cause of the complaints. The affected models include the following:
Toyota
- 2005-2010 Avalon
- 2007-2010 Camry
- 2009-2010 Corolla
- 2008-2010 Highlander
- 2009-2010 Matrix
- 2004-2009 Prius
- 2010 Prius
- 2009-2010 RAV4
- 2008-2010 Sequoia
- 2005-2010 Tacoma
- 2007-2010 Tundra
- 2009-2010 Venza
Lexus
- 2006-2010 IS 250
- 2006-2010 IS 350
- 2007-2010 ES 350
Floor Mat Pedal Entrapment and Sticking Accelerator Pedal are two different problems that both may result in difficulty/inability to control or slow your vehicle; the first involves the potential of the floor mat to trap the accelerator pedal in the wide-open position, and the second involves the likelihood that normal wear & tear on a portion of the pedal assembly may result in friction that has the potential to leave the throttle partially open, or delay its return to a closed position.
Ensure Your Legal Rights in the Toyota Recall
Gersowitz Libo & Korek, P.C. is eager to assist consumers in cases of property damage, loss or destruction, or personal injury or death, as a result of manufacturing defects contained within these recalled vehicles. Those impacted include not only the owners of these cars, but any individuals who have been involved in accidents with these vehicles. Additionally, prior liability judgments are being reviewed in the wake of this new recall information, and in one celebrated case a man that has been jailed for several years may be set free: http://www.today.msnbc.msn.com/id/35589163/.
If you own one of these models, or have been involved in an accident with one, you may be entitled to additional compensation. Contact Gersowitz Libo & Korek, P.C. for a free consultation in order to explore your full legal rights. We specialize in both automobile accidents and product liability, and our team of skilled attorneys has the experience, knowledge, and determination to ensure that you receive the full recompense that you are legally entitled to.