Articles Posted in New York

gavelstethescope2The first recorded opinion that I have seen in 2015 is a reminder to medical malpractice victims that there is rarely another option to hiring a lawyer in a medical malpractice case.

In Bagley v. Rochester General Hospital, a woman presented to the renal dialysis unit with complaints of abdominal pain, constipation, and complications from end-stage diabetic renal disease.  This was, regrettably, not a healthy woman.  The hospital did some tests and sent the woman to the emergency room believing that she had bacterial peritonitis as a result of being on dialysis.  The woman’s condition went downhill from there and she died of cardiac arrest.  Plaintiff contends that the real problem was a ruptured acute appendicitis, not peritonitis.

Let me start with a blunt statement: our law firm would never take this case.   Let’s assume it is exactly as the victim’s family says.  The hospital’s doctors screwed up and misdiagnosed the patient.  Even if this is true — I would bet that, although it is just a hunch on these facts —  I don’t think it is a viable medical malpractice action.

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A New York municipality will pay $1.6 million in a settlement to a man against the city of Clarence over his paralyzing fear of frogs. The settlement was forced down their throats by his victory at trial years ago. Let’s all take a deep breath.

Plaintiff’s lawsuit alleged a real estate developer diverted runoff water to his property, flooding almost 40 acres of his property and bringing forth hundreds of frogs. Plaintiff’s suit claimed that he had a great fear of frogs to the point where he was a prisoner in this own home.

This is crazy. These runaway juries make everyone settle. The world has gone mad. Let’s take a second deep breath.

shutterstock_138676277This week the US Court of Appeals, Second Circuit upheld a District Court’s judgment in a New York case, Saladino v. American Airlines. The decision was more than a decade in the making and stems from a highly unusual aviation accident.

In 1999 – 14 years ago which is just crazy – the plaintiff was employed by American Airlines as a baggage handler at JFK in New York. . While on the job he was struck in the head by the hood of a baggage tractor. At the time of the accident, plaintiff was a passenger on the tractor that was parked behind a jet. When the jet engines started to warm up for flight, they caused the tractor hood to flip open and strike the plaintiff’s head. Tragically the accident left him quadriplegic.

In 2001, plaintiffs sued the manufacturers of the tractor, Stewart and Stevenson Tug (S&S). S&S then impleaded American Airlines seeking contribution and indemnification.

There is a new social media opinion from a New York trial court in Fawcett v. Alteri.

Kids get into a fight at a high school tennis match. (Fight at a tennis match? I don’t know. Let’s just move on.) Defendants sought discovery of plaintiff’s social media accounts that were made private.

The defendant had no reason to believe there was something relevant in plaintiff’s social media account. He was just fishing. The court, as many have, drew the line there, finding that an adversary must show substantive facts that the posted information or pictures are relevant. The court refused, as many courts have, to allow “blanket searches for any kind of information or photos to impeach a person’s character, which may be embarrassing, but are irrelevant to the facts of the case at hand.”

Two massage therapists who worked for the New York Jets are suing Brett Favre for sexual harassment. These women contend that they were subjected to sexual harassment and discrimination and lost their part-time – very part time – jobs with the Jets after complaining about sexually suggestive text messages from the retired NFL quarterback during his two-year stint with the team.

Plaintiffs’ attorneys have used an underutilized tool – request for admission – to get concessions from Farve, a married man, that underscores that he inappropriately approaches female team employees and, perhaps more to the overall point, is an overall creep. Accordingly, they asked Farve to admit or deny he regularly solicited women for sexual encounters. As a part of this effort, they want details on the famous (alleged, I guess I should still say) photos of his penis that he sent to former Jets game hostess, Jenn Sterger.

Plaintiffs’ lawyer is pushing this angle, I suspect, for two reasons. First, it helps them prosecute the lawsuit. It is really hard to argue that texting a picture of your penis to a team employee is not some indicia of someone who would sexually harass New York Jets’ employees. I can’t see an argument that this is not discoverable.

A woman was awarded $1.2 million this week in a police brutality lawsuit that she filed against the New York City Police Department, involving injuries she suffered during a fight with police. The kicker that makes this story interesting: the woman is a former playboy playmate (do I capitalize playboy playmate?). Wait, it gets better. The playmate claims she is a direct descendant of John Adams.

The facts are, naturally, goofy. Our playmate claimed that she got into an argument with the cab driver because he refused to carry her bags into her apartment. Why did she think the cab driver was obligated to carry her bags? Obviously, because she is a playboy playmate. So the cab driver tops the plaintiff on the insanity scale by calling the police and saying the woman has a gun. She says the driver refused to help carry her bags into her apartment then called 911 and falsely told police she had a gun and was going to shoot him. He may have also mentioned she had vampire teeth which you would think would diminish his credibility.

The police apparently overreacted and made her drop to the ground to see if she had a firearm. She was dressed as former playmates do, so the idea she had a gun was absurd.

A lawsuit has been filed in New York alleging a YMCA camp counselor raped a girl during camp last July. The worst case scenario allegedly occurred: the 11 year-old girl became pregnant and contracted a sexually transmitted disease as a result. (She had a son.)
The suit ties in the YMCA and complains while it fired the employee when the rape was discovered, the YMCA should have called the police.

While this is true, I can’t see how it is admissible at trial. What is going to matter at trial is whether the girl was raped and whether the YMCA is in some way responsible or vicariously liable. What happened after the crime is not going to be germane to these issues.

The New York bar exam results came out about an hour ago.

There were 3,881 candidates took the New York bar in February all eager and ready to become lawyers. (The fact that there are no attorney jobs available and payments on their student loans start in 20 minutes did not damper their enthusiasm. Or maybe it did.) The pass rate was 48%. So if you passed, you are better than average. Graduates of American Bar Association approved law schools taking the bar for the first time passed at the rate of 76%.

Did your law school girlfriend pass the bar? You won’t find out here. But I doubt this will deter your search.

The average car/truck/motorcycle accident verdict in New York is $837,020, which is stunningly high compared to most other jurisdictions.

Why is this? Are New York jurors just that much more generous than, say, jurors in Maryland?

The answer is that New York’s no-fault accident law requires that plaintiffs suffer a “serious injury” before a lawsuit can be brought against the at-fault driver. While there is some question that having a magical threshold that needs to be crossed is going to be fraught with great flaws, there is no question that this New York scheme, as desultory as the justice it might bring, keeps minor personal injury car accident cases out of court.

What’s my point? My point is that this completely distorts average car accident verdicts in New York. I read Metro Verdicts Monthly and Mealey’s which provide a lot of individual verdicts in car accident cases in Maryland, Virginia, and Washington, D.C. It is amazing how many jury verdicts there are for $10,000 when, if you look at the case, is really not such a bad result. New York has none of these cases deflating their average.

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A recent Jury Verdict Research (JVR) study found that the average verdict in a New York motor vehicle accident case is $837,020. The median verdict is $150,000. This data does not include defense verdicts which, if considered in the data, would obviously reduce the average award.

To be sure, $837,020 is a lot of money for the average car accident case. But you have to keep in mind that in New York because of the threshold level of injury requirement, juries are more likely to hear a serious injury case than a jury would in, say for example, Maryland.

Rear-end accidents accounted for 21% of the successful verdicts in the study. Pedestrian lawsuits were 17% of the verdicts and intersection accidents made up 15%.