November 17, 2014

The Joan Rivers New York Medical Malpractice Case.

joan rivers.jpgJoan Rivers went in to the clinic for a routine throat examination and came out dead. She died after she was anesthetized and her renowned medical team took souvenir "selfies" of themselves posing with her. Meanwhile, the doctors did not notice her vital signs trailing off. Fifteen minutes went by. Joan Rivers then went into the cardiac arrest, which deprived her brain of oxygen, which in turn led to her death eight days later.

Investigators have found numerous violations and irregularities during Ms. Rivers' treatment.

Rivers' daughter has announced she will file a New York medical malpractice and wrongful death lawsuit against the clinic and the doctors. The allegations will likely include a failure to properly monitor her Propofol - the sedative administered intravenously during the procedure. This is the same drug that Michael Jackson overdosed on.

Joan Rivers may be more famous than the rest of us, but her New York medical malpractice lawyers will have to prove the same things in Court as the rest of us. Her New York medical malpractice claim will have the same elements of proof. Essentially, the family's lawyers will have to prove that the medical treatment Rivers received at the clinic fell below an acceptable level of medical care, and that this failure - rather than something else - caused her to die.

What can the family sue for? When medical malpractice kills a patient, the family can sue for basically two kinds of relief: (1) compensation for the pain and suffering their loved one suffered before death and (2) "economic" damages, i.e., funeral costs, medical costs, and loss of income or inheritance to the heirs (among other things).

As for the pain and suffering claim, since Rivers was sedated when she was malpracticed, and then fell into a comma until she died, it will be difficult or impossible to prove that she "suffered" at all. You have to have some consciousness to "suffer". This claim is therefore likely worth nothing.

As for the "economic" loss, usually when an 81-year old dies, the family can't prove much economic loss. That's because most 81 year-olds are retired and not supporting their family. The family thus can't claim lost economic support or that their inheritance was diminished by the death. That leaves just funeral and medical expenses as damages.

But Joan Rivers is not like most 81-year olds. Anyone who has seen the movie "Joan Rivers - A Piece of Work" knows that, behind the makeup, behind the plastic surgery, behind the jokes, she was a ridiculously hard worker, someone whose entire life and self-image were wrapped up in her career. She had no intentions of retiring - ever.

Rivers' family will thus have a strong argument that Rivers would have continued to make a lot of money for many years. Assuming she wasn't spending - on herself - all the money she was making, the comedian's continued success would likely have grown her bank accounts, which in turn would have grown the future inheritance. And that could add up to a lot of money.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central & Syracuse NY Medical Malpractice Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

November 11, 2014

Central NY Injury Lawyer's Second Circuit NYC Courtoom Appearance.

images.jpgLast Friday I argued an appeal in the Second Circuit Court of Appeals at 40 Centre Street in Foley Square in downtown Manhattan. I had not done that I quite a while (a decade?).

When you are used to arguing appeals in State court, a Federal appeals court is somewhat intimidating and awe inspiring. But what first impressed me was the security. It is much stricter even than an airport. I flashed my attorney I.D. to the guards, fully expecting to avoid having to subject my possessions to scanning via the conveyer belt. I was wrong. My attorney I.D. was worthless in that Courthouse. Worse, I was told I had to leave my I-pad, I-phone or any other electronic device with Security. No exceptions.

My heart raced! I had my Brief, my notes, and even the entire Record on Appeal for my case in my I-pad. Then I remembered I had outlined my arguments the old-fashioned way on a yellow legal pad, too. I checked to make sure the yellow pad was in my brief case. Whew! It was there.

It was disconcerting to be thrust into the Stone Age in a modern Courthouse. I am hardly ever electronics-free these days.

I stepped into the elevator with my now virtually empty brief case (except a yellow pad and a pen) and pressed "17" to take me to the Courtroom. My opponent was already waiting in the antechamber. When the Courtroom doors finally swung open, my opponent, I, and four other lawyers were ushered in. The calendar consisted of only three arguments that day, so six lawyers.

No sooner had the six of us sat down when what seemed like an army of well-dressed very young lawyers - judicial clerks all of them - marched into the Courtroom and sat in a semicircle around the back of us. I counted twelve of them. Since only three judges sat on the panel, that meant four clerks per judge. They each wielded a legal pad and pen. I wondered what their notes would say about my argument.

The three judges entered through the portico behind their seats. "All rise". The first lawyer to argue had hardly said a word when the judges began peppering him with questions. The panel was "hot", the questioning incisive. The judges knew the issues and the strengths and weaknesses of each position and were itching to flush out all sides of the arguments.

When my case was finally called, my opponent (representing the appellant) climbed up to the podium first. One of the judges immediately began burning a hole right through him with tough and sarcastic questioning about one of his positions. But he held his ground, refusing to cede the point, even though the judge (and I) clearly thought his position was untenable.

My turn came. I got hit by a few tough questions, too, but my positions were easier to defend. It was the luck of the draw. I had the good fortune of having clients with a better legal position. Their arguments made more sense and were better supported by case law. I was glad to be me and not my opponent.

I was also glad to get my I-Pad and I-phone back on the way out of the Courthouse.

The Decision will come out in a few months.

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

November 10, 2014

How The Massive Airbag Recall Affects Central New Yorkers

airbag.jpgIf you haven't heard about the massive airbag recall, you probably don't need to worry about it because you are living under a rock. As long as you stay down there, and don't jump into a car, you're fine.

But for the rest of our readers, we've got some news you can use: You may want to switch out your airbags for new ones. The airbags may have the dangerous shrapnel-shooting parts from Japanese manufacturerTakata.

By the way, recent evidence shows that Takata "saw and hid risk in airbags in 2004". Sound familiar? (hint: think tobacco).

If you own one of the vehicles with defective airbags, and bought it in a "high-humidity state", you should have gotten a recall notice by mail. Humidity can cause the air bag propellant to burn too fast and cause the shrapnel-shooting effect.

If you bought your car in Central New York, you probably won't be getting a recall notice. Not a lot of humidity around here. But what if you are going to be visiting Florida or another high humidity State? What if you are going there for the winter? You might want consider getting your airbags replaced. (Or getting a new car!).

If you are unfortunate enough to get injured by a shrapnel-shooting airbag, call us.

The recall covers the following makes and models:

Acura: 2002-2003 CL and TL; 2003-2006 MDX; 2005 RL

BMW: 2000-2005 3-series sedan and wagon; 2000-2006 3-series coupe and convertible; 2001-2006 M3 coupe and convertible

Chrysler (including Dodge): 2005-2008 Chrysler 300; 2007-2008 Aspen

Dodge/Ram (including Chrysler): 2003-2008 Dodge Ram 1500; 2005-2008 Ram 2500, Dakota, and Durango; 2006-2008 Ram 3500 and 4500; 2008 Ram 5500

Ford: 2004 Ranger; 2005-2006 GT; 2005-2007 Mustang

Honda (including Acura): 2001-2007 Accord; 2001-2005 Civic; 2002-2006 CR-V; 2002-2004 Odyssey; 2003-2011 Element; 2003-2007 Pilot; 2006 Ridgeline

Infiniti: 2001-2004 Infiniti I30/I35; 2002-2003 Infiniti QX4; 2003-2005 Infiniti FX35/FX45

Lexus: 2002-2005 SC430

Mazda: 2003-2007 Mazda 6; 2006-2007 Mazdaspeed 6; 2004-2008 Mazda RX-8; 2004-2005 MPV; 2004 B-series

Mitsubishi: 2004-2005 Lancer; 2006-2007 Raider

Nissan (including Infiniti): 2001-2003 Maxima; 2001-2004 Pathfinder; 2002-2004 Nissan Sentra

Pontiac: 2003-2005 Vibe

Saab: 2005 9-2X

Subaru: 2003-2005 Baja, Legacy, Outback; 2004-2005 Impreza, Impreza WRX, Impreza WRX STI

Toyota: 2002-2005 Toyota Corolla and Sequoia; 2003-2005 Matrix, Tundra

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

November 9, 2014

More On Ebola Malpractice . . . And Tort Reform.

Thumbnail image for ebola.jpgI blogged yesterday about who can, and can't, sue a Hospital for Ebola malpractice in New York. By "Ebola malpractice" I mean a hospital's failure to timely diagnose and treat the disease, and to take precautions to avoid its spreading.

I determined that in New York the patient and the sickened family of the patient probably could successfully sue.

But in Texas - where an Ebola malpractice lawsuit should be brought -- Ebola malpractice suits will almost certainly fail. That's because Texas is a "tort reform" State. Back in 2003 the Lone Star State passed a Republican-led tort deform reform law that just about annihilated medical malpractice claims. Among other things, the law requires emergency room patients to prove not just negligence but "willful and wanton" negligence on the part of the hospital staff. That standard is tough to prove, but even if you can prove it, you face another tort-reform barrier: Damages caps. In Texas, your pain and suffering damages are "capped" at $250,000 for the hospital and $250,000 for the doctor.

The worse effect of the Texas deforms reforms is not how they affect the victims of medical malpractice. It's how they affect the behavior of hospitals and doctors who commit medical malpractice. It's how they put the rest of us at risk for future medical malpractice. That's because for hospitals, as for all businesses, the bottom line is what counts.

The bean counters in a Texas hospital are bound to think along these lines:

Bean counter 1: "Gee, our staff really screwed up in misdiagnosing and releasing that Ebola patient. We put the whole community at risk"!

Bean counter 2: "Maybe we should give our entire staff some Ebola training to avoid a repeat"?

Bean counter 1: "Hell no, that costs money. And if we screw up again, it's another free pass here in the good'ol State of Texas. Thank God we're not in New York!"

Tort deformers reformers (mostly insurance companies and their minions) complain that, without tort deform reform, doctors are forced to practice expensive and useless "defensive medicine". But isn't a little "defensive medicine" better than "you-can't-sue-me-so-who-cares" medicine? Food for thought . . .

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Medical Malpractice Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

November 8, 2014

Suing A Hospital For Ebola Malpractice In New York

ebola.jpgLet's say you just got back from a holiday in Liberia, where, unbeknownst to you, you caught Ebola. You turn yourself into your local hospital with stomach pain and a fever. You even mention that you just got back from Liberia. Let's say the hospital ER folks - unsuspecting of Ebola -- prescribe painkillers and antibiotics and send you on your way. Let's say you end up dying a horrendous death, and that, if the Ebola had been properly and timely treated, you probably would have survived. Let's also say that you contaminated your entire family, and some friends and associates, who either died or survived the harrowing illness. Oh, and let's also say the hospital failed to provide the nurses who treated you with proper Ebola protective outfits, and they got Ebola, too.

Who can sue the hospital? The answers might surprise you.

THE NURSES: In New York, the nurses can't sue because they are barred by workers' compensation law from suing their employer. All they get is workers' compensation benefits. That's 60% of lost wages. In the case of death, their family gets a measly $50,000 in workers' compensation benefits. No compensation for pain, suffering, grief.

THE PATIENT: The patient can sue the hospital and the doctors who treated him for malpractice (negligent failure to properly diagnose and treat). The patient can recover pain and suffering and, in the case of death, his family - what's left of them - can recover for their economic loss (mainly lost income).

THE FAMILY: What about the sickened family members? Can they sue the hospital for having been infected by the patient? If they die, can the family recover for their loss? This is not an easy question in New York. As a general rule, it is tough to sue a doctor or hospital for medical malpractice if you were not the patient. The law generally requires a doctor-patient relationship for a physician's "duty" to reach you. But exceptions exist, and protecting a patient's family from Ebola contamination probably would fit the bill. For example, in Davis v. Rodman, 147 Ark. 385, 227 S.W. 612 (1921) infected members of a typhoid-fever patient's family sued the treating physician on the basis of the physician's failure to warn and advise them concerning the risk of contagion. The Court found that the physician's duty to the patient extended to the family to protect them from this highly communicable disease. Also, in Tenuto v Lederle Laboratories, 90 N.Y.2d 606 (1997) New York's highest court ruled that a physician had a duty to warn a particularly vulnerable parent that the oral polio vaccine he had given to her child could infect her if she did not take certain precautions. Based on this case law, it seems to me that New York courts would probably allow a family member who caught Ebola from the patient to sue the Hospital for failing to diagnose and treat it properly.

FRIENDS AND ASSOCIATES: So far in New York the courts have not extended the duty of a physician to those outside the immediate family. In fact, in Tenuto the Court specifically said that "the physician did not . . . undertake a duty to the community at large". I can see an argument, though, for extending the duty here. It's not that the hospital had a duty to warn the friends and associates of the patient - this would be unwieldy. But at least the hospital should have a duty to warn the patient that he has a dangerous communicable disease and that he should take certain precautions not to contaminate others. If the hospital does not even recognize the Ebola, and thus fails to warn the patient of his need to take care not to contaminate others, the hospital should, in my view, be held liable to those others. But honestly I think our Courts, in the anti-tort law environment we live in, would want to reign in "limitless liability" and would disallow such lawsuits.

So there you have it. If you are a nurse you can't sue, if you are the patient you can, if you are a family member you probably can, and if you are a friend or associate you probably can't. Go figure. In a sense, Ebola is more even-handed than the law. The virus treats us all equally but our legal system does not.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central and Syracuse NY Medical Malpractice Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

October 7, 2014

Why I Write This Central NY Personal Injury Lawyer Blog.

fishing (2).jpgWhen I started writing this blog a few years ago, I'll admit I was fishing for new cases. I figured that since the internet was where more and more potential clients were looking for New York injury lawyers, blogging about New York injury cases would bring those surfers to my portal. They would then pick up the phone, call me, and - voila - a new case!

Well, I was wrong. I have not gotten a substantial number of direct new cases from this blog. Every once in a while, yes, I do get a case from my blog posts. But that's not a significant part of my intake. I still get most of my cases from my traditional sources: referrals from prior clients, word of mouth, and from a network of very loyal referring attorneys who love our work product.

So why do I keep blogging? Good question. Let me think about that. Hmm. Ok, I have the answer: I have actually come to enjoy it, at least when I'm not too busy with my cases. And I do get a lot of emails about my posts, sometimes from prospective clients, sometimes from other lawyers. I enjoy discussing the issues raised in my blogs with these folks.

Some New York personal injury lawyers post blogs about recent local accidents, hoping that the victims will see the post and hire them. I'll admit I did that a few times early on. But it didn't feel right, at least not for me. I felt it was too tacky, too aggressive. It felt too much like ambulance chasing. I'm not saying it is wrong or unethical, but it just is not for me.

So I'll keep blogging about New York personal injury issues -- but not about specific local accidents -- when I can find the time. And I hope you will keep reading, when you can find the time. Thanks for that.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

October 6, 2014

Should You Sue Your Best Friend For Your Personal Injuries? CNY Injury Lawyer Explains.

car crash.jpgScenario 1: You're a passenger in your mother's car when she crashes and injuries you (her fault). A year later, you're still not back to your construction job. Should you sue her? But wait, she's your MOM!

Scenario 2: Your best friend's dog bites and mauls you, leaving you with a permanent facial scar resembling a map of Indonesia. Should you sue him? But wait, he's your FRIEND!

There are two problems with suing a close relative or friend for personal injuries: (1) How your relative or friend might react and (2) how the jury might react.

The first problem can be easily addressed. Here is how I address it:

Client: "I don't want to sue my (relative, friend) but I'm really hurt, can't work, and need some money. Can you help me without hurting my (relative, friend)?"

Me: "Yes, and we can limit your claim to the available insurance coverage so that your claim won't hurt your (relative, friend). It will only 'hurt' their insurance carrier. We need to explain to your (relative, friend) that this is a 'friendly' claim, and that you absolutely will not go after any of (his/her) personal assets and that we are seeking only the available insurance coverage."

Most relatives and friends will understand. There will be no hard feelings. If there are, and you want to "call off" the claim, there will still be time to do so.

What about the jury? That's a tougher nut to crack. We are not allowed to tell the jury about insurance. Insurance is just plain "off limits" when talking to a jury or putting in evidence. Thus, some jurors might think you are actually suing your own mother for her money! They may hate you for that!

But in my experience, at least a few jurors will "get it". At least of few of them will know that homeowners' or auto or business insurance is likely to be "behind the scenes" and that we are really going after that. I help them "get it" by asking, in jury selection, whether any of them work for an insurance company. (I am allowed to ask this question, but not allowed to talk directly about whether there is insurance or not in the case). Many jurors will conclude that since I am asking who works for insurance companies, there must be insurance in the case.Those jurors will generally "educate" the others.

Bottom line: When those who love you hurt you, they should want you to get their available insurance money to help compensate you. Don't be afraid to "sue the ones you love". Have your New York personal injury lawyer help you explain to them that the claim will in no way hurt them, and will help you in a big way.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY and Syracuse Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

October 1, 2014

Can Kevin Ward's Family Sue Nascar Racer Tony Steward For Wrongful Death?

There has been much ado recently about a Nascar incident in my neck of the woods (Ontario County, New York State) in which Tony Stewart struck and killed Kevin Ward Jr. (See video of the incident above). An Ontario County Grand Jury recently declined to indict Steward. The Grand Jury determined that there was simply no probable cause to believe that Stewart intentionally or even recklessly killed Ward. Ontario County District Attorney Tantillo also announced for the first time that Kevin Ward had marijuana in his blood at a level that would have "impaired judgment".

So Stewart has been cleared of criminal wrongdoing. But can Ward's family nevertheless sue him for damages for wrongful death? Such a lawsuit might be in the works. Ward's mother was recently quoted as saying that Stewart "intentionally tried to intimidate Kevin by accelerating and sliding his car towards him" and that she was considering "other remedies" since no criminal charges will be filed.

Remember the OJ trial? The jury acquitted him of murder ("if it doesn't fit, you must acquit") but then the family of Nicole Simpson sued OJ for wrongful death and got a huge verdict. Can the same thing happen here?

Unlikely. Such a lawsuit would almost certainly fail. First, Nascar drivers "assume the risk" of their dangerous sport. Beyond that, Ward went even further and assumed the risk of exiting his disabled car and stepping dangerously close to Stewart's still moving vehicle in an attempt to confront his opponent, presumably because he thought Sewart had deliberately bumped and sidelined him.

Ward's family will have the burden of proof at trial. But the video of the incident, which has been played countless times on YOUTUBE, contains no proof that that Stewart deliberately or even negligently struck Ward. Stewart did not change course as he passed Ward. The fishtailing of his race car appears to happen after the side of Stewart's car swiped Ward.

It would be a different matter if the video showed Ward swerving from his path of travel toward Ward. Instead, the video appears to show Ward stepping dangerously close to Stewart's path of travel after having angrily run from his disabled car into the fray of circling vehicles.

It is of no matter that the video might be interpreted to show Stewart deliberately bumping and sidelining Ward's vehicle. Even if Stewart "played dirty" by engaging in a form of "demolition derby" -- which is not at all clear from the video -- how could Stewart ever have predicted that this would cause Ward to exit his car and step into his path of travel?

I wish Ward's family peace. I am sure Stewart is struggling with what happened, too. There are no winners here, and a civil lawsuit for wrongful death is unlikely to bring any "justice" to either side.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Wrongful Death Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

September 30, 2014

Central New York Injury Lawyer Finshes Up Trial

photo.JPGI just finished trying a case in Federal Court in Syracuse. It was an unusual case for me. I normally try only New York personal injury cases. But in this trial I represented a fellow lawyer who got fired from her job as Cayuga County Assistant Attorney. We claimed she was fired in retaliation for taking time off under the Family & Medical Leave Act, which would be illegal. Her employer claimed she was fired for job performance issues. I won't have a result for several months; the judge reserved decision.

As with any trial, I put everything I had into it. I took this photo after I had delivered my "blizzard" of exhibits to the Courtroom tables. I had to put together and manage about 125 exhibits. I called about 10 witnesses to the stand -- several of them fellow Cayuga County attorneys -- and cross-examined almost as many. It was a busy trial!

Whatever the result, I am proud of the job I did. My client was pleased with my courtroom performance, as was my "second chair", retired Cayuga County Judge Peter Corning. Judge Corning had handled the case through discovery, and then asked me, with the client's consent, to try it for him.

I am especially proud that a retired Judge whom I have appeared before countless times selected me to try this case for him. I am also proud that a fellow lawyer wanted me to represent her in Court. There is no higher honor for a lawyer than being a lawyer's lawyer.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

September 28, 2014

A Future Free of Car Accidents? CNY Car Accident Lawyer's Prediction.

scared driver.jpgI sometimes tell people that safe driving would drive me out of business. As a New York car accident lawyer, someone's negligent driving puts bread on my table. Now isn't that just sick?

Sure it is, which is why I am perfectly prepared to move into another line of work should motor vehicle accidents ever become a thing of the past. I'm tired of seeing good people get crushed and mangled, or worse, in avoidable accidents. I am tired of seeing my clients pay the price of someone else's negligence.

And, believe it or not, car accidents most likely WILL become a thing of the past someday soon. By the end of the decade, the typical American vehicle will be navigating as part of a network, constantly sharing information as it travels via transmitters. Your car will have a brain, and one that doesn't get distracted like human brains. Your car's brain will monitor your blind spots and warn you when you start to veer out of your lane. Sophisticated sensors, lasers and cameras will scan the road like electronic eyes.

But the wireless technology will go even further, allowing your car not only to "talk" to other cars (The car in front of you will shoot a message, "brake lights on", to your car) but to communicate with the road itself, and with traffic lights. See that curve up ahead? It will send a signal to your car, "hey, I'm here". See that traffic light ahead? It will beam a message to your car, as you approach, "stop, red light".

Go ahead, future. Blast this Central New York car accident lawyer's business to smithereens. No, don't worry about ME. In a few years I hope to have no car accidents to blog about. Unfortunately, there are still a lot of other types of injury cases out there . . . .

Check out this video for a peek into the future:


Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Car Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

August 24, 2014

Why Cars Are Killing More Pedestrians (Syracuse NY Injury Lawyer Explains)

crosswalk.jpgI came upon some surprising statistics recently: Just as motor vehicle travel is getting safer (for those inside the vehicles), walking is getting more dangerous because motor vehicles are striking and killing more and more pedestrians.

Just look at the statistics: 22 percent fewer traffic fatalities from 2003 to 2012, while pedestrian fatalities have been climbing steadily since 2010. In 2012 alone, the pedestrian fatalities were up 6 percent from the year before. A motor vehicle kills a pedestrian every two hours and injures one every seven minutes, according to the National Highway Traffic and Safety Administration ("NHTSA"). Fourteen percent of all road fatalities are pedestrians. There are 4,000 to 5,000 pedestrian fatalities per year in the U.S.

Why are pedestrian fatalities up while motor vehicle fatalities are down? No clear answer out there. But I have a theory (are you listening NHTSA?)

In a word (actually two): smart phones. Drivers are using them, and so are pedestrians. More and more pedestrians are "texting while walking" or listening to music with earphones, and are thus unable to hear or see oncoming dangers. Meanwhile, more and more drivers are texting or dialing while driving.

What do you get when a texting driver turns in a busy intersection and meets a texting or dialing pedestrian crossing in a crosswalk? Bang!

Moral of story: Don't text or phone and drive. If you are a pedestrian, don't cross a road while texting or talking on the phone. Also, take those ear buds out before you cross.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Syracuse NY Pedestrian Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

August 22, 2014

Why You Should Turn Down That First Offer From The Insurance Adjuster.

money.jpgA first offer from an insurance adjuster is like the first kiss on a date: It usually leads to something more substantial. At least that's my experience (recently in law, and a long time ago in dating). Yes, I have plenty of recent experience (more than 20 years) in New York personal injury law.

When you are hurt because of someone else's negligence, you are likely to get a call from an insurance adjuster fairly soon. He or she will offer you money to settle. It probably won't be enough. My advice? Think of it as a first date. If you simply take that offer, and sign a "release", and say goodbye, you'll never find out what would have happened on the second date.

As Nancy Reagan used to say, "just say no"! Don't worry about the offer evaporating. As a New York personal injury lawyer with many years' experience, I have never seen that first offer "disappear". I have never even seen and insurance adjuster LOWER an offer, much less take it off the table. And I have seen many, many times, indeed most times, insurance adjusters INCREASE their offer.

What makes the adjuster increase her offer?
(1) As you continue to treat for your injuries, the medical records often document more serious injuries than the adjuster or you were aware of at the first offer.
(2) If you hire a New York personal injury lawyer who has a good track record in court, the adjuster is likely to immediately rethink her initial offer.
(3) If you hire a New York personal injury lawyer worth his or her salt, they will know how to "build" your case with the adjuster, by highlighting the significant features of your medical records and the other facts of your case.

Bottom line: Don't take that first offer. See a lawyer. Your offer is likely to increase significantly, and it is almost unheard of for it to decrease or disappear. Call me to find out more.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer

Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

August 20, 2014

Lawyer Gets Sanctioned For Calling Other Lawyer An A**hole.

iStock_000008918307Small.jpgLitigation lawyers are, in a sense, at war. Each lawyer is fighting for his client to prevail. A spirited fight requires, sometimes, spirited verbal exchanges.

But there are limits. Fellow lawyers, here's a little rule of thumb: Don't call your opponent an "asshole".

That's exactly what one lawyer called another in Alexander Interactive v. Adorama Inc., a case involving a simple business dispute, and not, as one would expect given the level of vitriol, a roiling matrimonial case. The insult-hurling lawyer -- whose surname is coincidentally "Savage" -- dropped the "A-bomb" in an email to her opponent. Then the "Savaged" opponent - who apparently denied the charge -- one-upped her by flipping the email over to the judge, who then sanctioned Ms. Savage with an admonishment, despite Ms. Savage's pleas that her opponent had "provoked" her into her transgression.

The full email contained other "foul language", too. Here it is in full:

You're an asshole Dan. I have everything taped. And yes, under ny law and the rules of professional conduct, it's allowed. If you think you're going to sully my clients with your fictions, you're a fool. If you try any shitt with the court, I welcome it. We have provided all requested data, all requested backups and have provided it in an orderly and accessible manner, unlike your clients. Don't fuck me. I'm done with your unethical behavior. Any motions by you, if you're trying to build a case for some unmeritorious motion to deflect from your clients' unethical behavior, will include my recordings from today.
Please govern yourself accordingly.

It's no surprise to me that this exchange happened down in New York City, where lawyerly decorum is notoriously lacking. I can't say this would never happen in upstate New York where I practice, but I can say I have never seen it happen. Hopefully, I never will . . .

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169


August 19, 2014

NY Wrongful Conviction Settlement Is Big, As It Should Be (Central NY Personal Injury Lawyer Explains)

SETTLEweb-master675.jpgWrongful convictions in New York are probably a lot more common than we think. But proving a wrongfully conviction is indeed rare. It's not easy peeling away at a skillful prosecutor's evidence, especially from behind bars.

But some convicts have done it. And when they do, we should all rejoice because, "but for the grace of God, there go I".

Does society owe such a person compensation? You bet. And compensation is what happened today in New York when Jabbar Collins (shown in the photo), a man who spent 16 years in prison for a murder he did not commit, and then spent three years in litigation against the City of New York, reached a $10,000,000 settlement. That's about $600,000 per year in prison.

Collins was convicted of shooting to death a rabbi rent-collector in Williamsburg, Brooklyn. But Collins, who doggedly investigated his own conviction from jail, discovered, from behind bars, that the D.A.'s office had hidden important exculpatory evidence from him at the trial. He then got some help from a New York wrongful conviction lawyer, and together they discovered that the prosecutors had used the same dirty tricks in many other cases, which led to those other convictions being overturned as well.

Turns out Collins was no criminal. He's a hero.

In all, Collins will receive a total of $13 million after settling a separate unjust conviction and imprisonment suit against New York State for $3 million last month.

And if you think that's too much money, close your eyes and imagine the bitter despair in Collin's heart and the black, suicidal thoughts in his mind as that prison door slammed behind him, knowing it wouldn't open for him for a long, long time. Imagine his knowing that the world believed he committed a heinous crime he had nothing to do with. Imagine him knowing that his family had to carry the stigma of his infamy. Imagine his life behind bars surrounded by real dangerous criminals.

Personally, I'd rather have a terminal cancer diagnosis. I'd rather have my eyes pocked out. Sixteen years locked up, deprived of family, friends, joy, sun, sky, hope, love, sex, freedom. Nope, not for $13 million, not for $1 billion. If you're honest with yourself, you probably feel the same way . . .
Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Wrongful Conviction Lawyers

Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169


June 26, 2014

What Are The "Rights To The Road" For New York Cyclists? Syracuse Bike Accident Lawyer Explains

I've recently been blogging about New York bicycle law and how to investigate and prove bike accident cases in New York. Today I am going to answer a common question I get from other cyclists.

Because I am both a New York personal injury lawyer and an avid bicyclist, my biking buddies often ask me about bicycle laws in New York. One thing they often want to know is whether it legal for them to "take the lane" rather than stay to the far right.

The answer is "sometimes". Section 1234(a) of New York's Vehicle and Traffic Law (not applicable in New York City) provides that, "upon all roadways, any bicycle . . . shall be driven either on a usable bicycle . . . lane or, if a usable bicycle . . . lane has not been provided, near the right-hand curb or edge of the roadway or upon a usable right-hand shoulder in such a manner as to prevent undue interference with the flow of traffic except when preparing for a left turn or when reasonably necessary to avoid conditions that would make it unsafe to continue along near the right-hand curb or edge. Conditions to be taken into consideration include, but are not limited to, fixed or moving objects, vehicles, bicycles, in-line skates, pedestrians, animals, surface hazards or traffic lanes too narrow for a bicycle or person on in-line skates and a vehicle to travel safely side-by-side within the lane."

So there you have it. You should "take the lane" to turn left. Be sure to signal left! Otherwise, stay right, unless you need to avoid some danger there.

Other important New York bicycle rules to remember:

You may ride side by side, but only two abreast, and must switch to single file when being overtaken by other vehicles. Sec 1234(b).

Keep at least one hand on the handlebar at all times Sec. 1235.

Never wear more than one earphone attached to a radio, tape player or other audio device Sec 375(24-a).

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central & Syracuse NY Bike Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169