Central New York Injury Lawyer Blog

I recently had a win at an appellate court in Rochester, New York, (Thompson v Mather) that has been the subject of chatter within the New York medical malpractice lawyer blogosphere, and even made an entry on one of our nation's top legal blogs, Eric Turkewitz' New York Personal Injury Law Blog. If Turkowitz found my appellate win fit to blog about, I figured I should blog about it myself. So here's the real scoop, from the horse's mouth:

My partner, Lee Michaels, sued a doctor for medical malpractice, and needed to take the deposition of his client's treating cardiologist (whom Lee had NOT sued) because that doctor had information Lee needed to prove his client's injuries. Lee scheduled a video-taped deposition (a deposition to be used at trial in lieu of live testimony) of the doctor-witness in our law office in Auburn, New York.

Lo and behold, the doc witness shows up with a medical malpractice defense lawyer, even though he had not been sued, and was just a witness. Not unusual. Now-a-days, many malpractice insurers require their insured doctors to notify them when they are subpoenaed as a witness in a medical malpractice case, and then send a lawyer with the doc to the deposition.

But this was not just any lawyer. It was an obstructionist lawyer. The lawyer was objecting up and down to many of my partner's questions. She was making it very difficult for Lee to get a nice flow of testimony. She was even suggesting, by her objections, the answers the doctor should be giving.

Lee had enough of that, called the deposition off, and asked me to bring a motion to, well, shut the doc's insurance lawyer up. I researched the issue, and found absolutely no New York cases that talked about what a lawyer for a non-party witness could and could not do or say at a deposition. I found a statute, however, CPLR 3113, that seemed promising. Essentially it said that examination and cross-examination at depositions must proceed just like they would at trial. I thought about this. Hmm . . . at trial, a non-party witness has no right to "lawyer up", so why should he have that right at deposition?

I brought this argument to the judge, but he did not buy my argument --- and instead ruled that Lee's client had to either release the witness-doctor from liability for any malpractice he might ever have committed on her, or else Lee would just have to call the doctor to trial for live testimony instead of taking his video-taped deposition for use at trial.

I appealed and, guess what? The appellate court in Rochester agreed with me. Those guys up in Rochester sure know how to read a statute! The Court specifically held that Lee was entitled to take the videotaped deposition of his client's cardiologist and that the doc's insurer-provided lawyer was barred from objecting or otherwise participating in the deposition. Moreover, the appellate Court seemed pretty miffed at the trial judge for trying to force our client to sign a release in favor of the testifying doctor in exchange for allowing the deposition to proceed. The Court found that placing such a condition on the doctor's duty to testify at deposition was "repugnant to the fundamental obligation of every citizen to participate in our civil trial courts and to provide truthful trial testimony when called to the witness stand." Holy Cow! You can almost see the American flags waving in the background of that sentence!

So there you have it, the story from the horse's mouth.

Cover-ups. Personal injury lawyers here in Syracuse, Central New York, and everywhere, love them. We play them for all they are worth. Think about those big tobacco lawsuits. Would those smokers have rung the bell with those big pain and suffering verdicts without evidence that the tobacco industry had covered up what they knew about smoking and cancer? Nothing makes a jury madder than a cover up. And nothing pushes the size of a personal injury verdict up more than raw anger.

This blog post is about the Toyota defective pedal dilemma. But first, let me digress (again!).

In a Syracuse New York personal injury lawsuit I handled a few years ago, the insurance company hired an expert witness, an orthopedic doctor, to testify that my client's lower back injury was pre-existing and therefore not caused by her slip and fall on the defendant-restaurant's wet floor. He based this opinion in part on the fact that my client had not complained about lower back pain until two weeks after the fall. He was wrong and I knew it. My client had reported back pain at the emergency room. I noticed, when I looked at the list of records the doctor claimed to have reviewed in reaching his opinion, that a key record was missing --- the emergency room records. So my cross-examination of the doctor was all about a "cover up". I insinuated that the insurance company had "covered up" this ER report, that they had deliberately hidden it from the doctor. Maybe they didn't. Maybe it was an innocent mistake. But the cross-examination was brutal, and the insurance company lawyer knew it. A large personal injury settlement soon resulted.

My point: Cover-ups piss juries off!

Now back to Toyota (finally!). Congress has apparently gotten its hands on "secret" Toyota documents from a turncoat former Toyota lawyer. Apparently, these secrete documents show that Toyota's own investigators had knowledge of the sticking pedal defect yet covered it up.

A cover-up is a game-changer for a personal injury case. The main issue becomes, what did they know and when did they know it? If Toyota can show it made efforts to investigate the sticking-pedal problem, and then to resolve it, and did not drag its feet, and especially that it did not cover up its findings, it will fair much better in court. But if the jury smells a cover up, all bets are off. Toyota can expect a string of large verdicts against it, maybe with punitive damages to boot. So, Toyota, if you have "covered up", get ready to "pay up"!

Yesterday, as I have done just about every Wednesday this winter (and for the past few winters), I took a van full of Boys & Girls Club kids to the Geneva, New York municipal ice rink for a skate. I pick them up at the Boys & Girls Club of Geneva at 6:30, we skate till 8:15, and then I drive them home. I finish up about 9:00. I can pack about 11 kids in the large van. The kids, ages 5 through about 11, love it. These are kids who otherwise would never get a chance to skate. Most of them don't have transportation to the rink. When Spring comes along, I take the same kids to the YMCA swimming pool. Otherwise, they wouldn't learn to swim.

Here's my law blog question for the day: What is my liability exposure as a volunteer? Does the law cut me any slack for being a good guy, or am I just as liable as anyone else if I accidently crash the van, or fail to properly supervise the kids, and cause them to get injured? If some of these kids and their parents were to bring a New York personal injury lawsuit against me for negligent driving or negligent supervision, what would happen to me?

I hate to admit it, but I am exposing myself to a lawsuit. The law in New York cuts me no slack at all. If I voluntarily agree to take these kids out and I negligently allow harm to befall them, their personal injury lawsuits against me will be valid. The fact that I was trying to give these kids a better life won't count for squat!

So how do I protect myself? Two ways: First, I try to be very careful. I drive carefully, and when I am with them on the ice or at the pool, I try to watch them carefully. Second, I buy lots of insurance, just in case.

Sometimes it can be scary, though. On the trip home, some of the kids can get a little rowdy. I am never 100% sure they are keeping their seat belts on. And when I drop them off at their home, I insist on watching them actually get inside there homes before I drive off because many of them live in "iffy" neighborhoods.

The scariest thing that happened was two years ago. A 6 year-old girl, named Jacqui, who had never swum before, jumped right into the deep end of the pool. She then began flailing around, going under, and taking in water. One of the life guards was able to pull her out. When she finally spit out enough water, and calmed down enough for me to talk to her, I asked her, "Jacqui, why did you jump into the deep end if you did not know how to swim"? Her answer: "But Mr. Bersani, you don't understand, I thought I DID know how to swim. I was so excited about going swimming for my first time that I had been practicing all week - IN MY MOTHER'S BED".

My resonse: "The same mother who would have sued me if you drown, Jacqui!"

I recently blogged about defective roadway cases. A recent New York dangerous road lawsuit demonstrates some of the principles I talked about in that blog post.

In Popolizio v. County of Schenectady, a driver lost control of his car on the steep downgrade of a snowy County road, and slid his car straight across the road as it curved to the right, causing his car to leave the roadway and nose-dive into a steep-sided, twelve-foot wide, four-foot deep ditch. Despite the fact that the driver had lost control of his car and left the roadway, he got a $2,100,000 award after a trial for severe brain injuries he suffered when his car struck the far side of the ditch head-on.

How did he win? The injured man's New York roadway defect attorneys won the case by presenting testimony from a highway engineering expert who explained that the design of the ditch did not meet acceptable engineering standards. The expert said that constructing such a ditch right next to a right-angle curve in the road was unacceptably dangerous because any cars that left the roadway there would plunge into the ditch and hit the bank of the ditch head on. The ditch should have been built so that a car going off the roadway could traverse it, or else guardrails should have been installed to prevent motor vehicles from plunging into the ditch.

Interestingly, even though the jury found that the injured driver was at fault for having lost control of his car, it found that this mistake did not cause his injury. The jury concluded that, if a guardrail had been in place, or if the County had built something over the ditch so that a car could traverse it instead of plunging into it, the driver would not have been hurt at all. Therefore, it was solely the County's fault that the motorist was injured, even though the driver's leaving the road was his own fault.

New York dangerous roadway accident lawyers, including myself, are applauding this decision. It shows that juries are willing to hold governmental entities such as counties responsible for designing and maintaining unsafe roadways.

The Syracuse Post-Standard reports that a Syracuse University student was driving home to Albany in the dark hours of the morning (about 4:30 a.m.) when her car slid off the Thruway and onto the median. She then apparently got out of her car and tried to cross the westbound Thruway to make her way to the onramp in Herkimera a couple of miles west. Unfortunately, a westbound hit-and-run vehicle struck and killed her as she crossed.

When I read this report, the pressing question I had was, "where was her cell phone?"

The nearly ubiquitous cell phone has caused alarm among many, including myself, because of an epidemic of cell-phone distracted driving wreaking havoc on our roadways. I have personally brought several Central New York car accident lawsuits against drivers too busy yapping on their cell phone to pay attention to traffic signals, stop signs, or cars stopped in front of them.

But this recent Central New York car accident reminds us that cell phones are both a blessing and a curse; if this student had a cell phone, would she have needed to exit her car and cross the Thruway to get help? No! She would have just called for help on her cell phone.

And don't forget that emergency responders arrive faster to accident scenes these days, and save more lives, because cell phone users are able report accidents as they happen. Remember the days when you had to run to the nearest house and ask the residents to call the police when you saw an accident?

Finally, don't forget that cell phones are handy for real-time reporting of erratic or road-rage driving..

Just like most human inventions, cell phones are both a blessing and a curse. If used properly, cell phone save lives and avoid accidents. But if used improperly, they reap misery and destruction. How will you use your cell phone?

Would you keep an appliance in your home if you knew these facts about it:

(1) It injures about 800,000 people a year in the USA - with one out of every 6 injuries being serious enough to require medical attention.
(2) 75% of the injuries are to the victim's face.
(3) Its victims are three times more likely to be children than adults.
(4) It is the fifth most frequent cause of emergency hospital visits for children in t he USA.
(5) The most severe injuries occur almost exclusively to children less than 10 years of age.

The answer is "YES", you would keep such a product in your home. The product is called a "dog", a/k/a "man's best friend". We humans love dogs and are willing to live with these risks because of the love, support and companionship that dogs provide. I am a dog owner myself!

But make no mistake; owning a dog is a BIG legal responsibility. If you do not act responsibly as a dog owner, you can, and should, be held accountable for injuries your dog causes. See my previous blog about dog safety tips.

Here are the basic rules for proving a New York dog bit case: In New York, a dog owner (defined as anyone who harbors a dog) is liable for dog attacks if, and only if, the dog bite victim can prove two things: (1) the dog had "vicious propensities" (i.e., a tendency to attack) and (2) the owner knew or should have known it. That's a pretty straightforward two-step process. Or is it?

The problem is proving an owner knew of the dog's vicious propensities. The best and surest way to do so is to show the dog bit someone before. If you can prove that, your case is usually a slam dunk. But sometimes you don't have a prior bite. What then?

You can show "vicious propensities" in other ways, for example, if the dog tended to growl, snap or bare its teeth at people. It also helps if you can show that the owner tended to think of his own dog as dangerous by doing one or more of the following things: tying or chaining the dog up; fencing the dog in, keeping the dog as a guard dog, putting up "beware of dog" signs, or warning people verbally that the dog was dangerous.

Any dog can bite, but statistically the most likely dogs to bite are pit bulls and Rottweilers, and when these dogs bite, they mean business; together these breeds account for about 70% of dog-bite-related deaths.

So can you prove your New York dog bite lawsuit simply by showing the dog's breed was dangerous? NO! New York courts have rejected the theory that certain dog breeds can be "assumed" in court to be more "vicious" than others. In other words, the courts reject "breeedism", and instead treat all dogs equally in court, no matter what the breed.

If you or your child has been bitten by a dog, feel free to call or contact me for more information.

I was pleased to read in the Geneva Finger Lakes Times today that a regional representative of OSHA (federal Occupational Safety and Health Administration), Jennifer Lawless, speaking at Geneva's Ramada Inn, announced that, under the Obama administration, OSHA is stepping up compliance enforcement in the Syracuse and Central New York area, especially at outdoor work sites, such as construction sites.

We at Michaels & Smolak have consistently, year after year, brought Syracuse area construction accident lawsuits where compliance with OSHA and other safety regulations would have prevented devastating fall-related injuries. We know firsthand that Construction employers in Central New York often ignore OSHA and other safety regulations.

The OSHA regulations, if followed, would help prevent many of the devastating injuries, and deaths, that result from workers falling off ladders, scaffolds, buildings, roofs and other structures. For example, just this week, OSHA fined a construction company $539,000 for a roofer's 40-foot fall to his death at a Washington, Pennsylvania construction site. According to OSHA's website, the construction company "failed to provide any fall protection to its employees working on a pitched roof 40 feet off the ground". A spokesman from OSHA said the employer "knowingly and willfully failed to protect his workers from falling to their death" and that OSHA "will not tolerate this type of blatant and egregious disregard for the health and safety of workers." The very same day, OSHA fined a Pittsburgh construction company $70,000 for failing to provide fall protection to a construction worker who fell 225 feet to his death on a construction site. The same company had already been fined in 2007 for the same violations, but apparently did not "learn its lesson".

OSHA's increased safety enforcement in Syracuse and Central New York, while welcome, is probably not enough. Unfortunately, OSHA's fines are not a significant enough deterrent for many employers. They still find it cheaper to skirt safety compliance and pay the occasional fines. What really catches the construction employers' attention, though, is not an OSHA fine, but rather a construction accident lawsuit. In New York, special construction accident laws (especially Labor Law sections 200, 240, 241[6]) help injured construction workers and their families get compensation in court for their medical expenses, lost wages, pain and suffering, and loved one's wrongful death. I have posted blogs about these New York Labor Laws before. To read prior blogs on this subject, click here, here, and here.

Michaels & Smolak will continue to do its job of bringing lawsuits on behalf of injured construction workers when construction companies fail to abide by safety regulations, and OSHA will continue to do its job of fining construction companies for such violations. Perhaps this one-two punch will one-day finally deliver the following important message to the construction industry: "Safety pays, and if you don't believe it, you will pay, and pay dearly."

Do you take you Syracuse or Central New York injury claim seriously? Do you want the insurance company to take it seriously, too? Well, I've got some news for you: The sure-fire way to guaranty that the insurance company will NOT take your injury seriously is to represent yourself.

You are not the only injured person the insurance company is dealing with. Other people with injuries, very similar like yours, have retained attorneys to advocate their claims with that same insurance company. All those other people seem to be taking their injury seriously. They are taking their injuries so seriously that they have hired an attorney. They are showing the insurance company that they are prepared to go to court if the insurance company does not take their injuries seriously.

True, you can talk to that insurance adjuster yourself when she calls. She might even seem nice on the phone, might promise to treat you fairly. Believe me, she won't. Not without an attorney. Why? Here's why, and try to remember it, as it is the most important part of this blog --- INSURANCE COMPANIES MAKE THEIR PROFIT BY PAYING AS LITTLE AS THEY CAN ON YOUR CLAIM.

When the adjuster, who works for a faceless money-counting company, sees that you are handling your claim yourself, without an attorney, what is going on in her head? I'll tell you what: "Oh, good, another injured guy without an attorney --- if I seem very caring and am nice to him, I can probably settle his claim for pennies on a dollar and make my boss happy".

Perhaps I have badmouthed insurance adjusters too much here. That is not my intent. Insurance adjusters can be good people. They are trying to make a living, trying to feed their families. But to keep their job, to get praised by their supervisors, to "make it" in their world, they need to settle cases on the cheap. The adjuster working on your case might even get a promotion or a raise for doing such a good job at selling you short.

Even if you and the adjuster really "hit it off", and he or she really does want to help you because of some "bond" you have developed on the phone, the adjuster has a supervisor, a claims examiner, a regional manager, and a corporate office that looks at only one thing --- the bottom line.

To an insurance company you are nothing but an injured person without an attorney, which is by far the best kind of injured person in their book.

Take your injury seriously. Show the insurance company that you take your injury seriously and want it dealt with seriously. Hire a competent personal injury lawyer. Seriously.

I can think of few laws as unfair as "damages cap" laws. For those readers unfamiliar with this concept, let me explain. A "damages-cap" law essentially says that, in a personal injury or medical malpractice lawsuit, the injured plaintiff is limited to a certain amount of compensation for his or her "non-economic" damages, no matter how devastating the injury. "Non-economic damages" essentially means compensation for pain and suffering and loss of enjoyment of life.

The unfairness of damages caps can best be shown by way of example:

Patient A undergoes neck surgery, his surgeon commits medical malpractice, he ends up with moderate but permanent pain running down both arms. Full and fair compensation for this annoying, painful sensation for a lifetime is about $500,000. Patient A goes to court, the jury awards him $500,000, and he gets it. He is fully and fairly compensated for his injury.

Patient B undergoes the same operation, the surgeon commits medical malpractice, but this time renders the patient QUADRIPLEGIC. Patient B is now nothing but a head on a pillow for the rest of his life. Patient B goes to court, the jury says he should get $3,000,000, but the judge says, "sorry, the medical malpractice damages cap law requires me to reduce this verdict to $500,000, which is the maximum allowable, no matter what the injury".

So the guy with the less serious injury gets full and fair compensation for his injury, while the guy with the devastating, catastrophic injury gets pennies-on-the-dollar for his injury. Sound fair? Of course not.

The Illinois Supreme Court doesn't think it's fair either. Just this week, in Lebron v. Gottlieb Memorial Hospital, the Court overturned the State of Illinois' landmark 2005 "Medical Malpractice Reform Law", which featured a $500,000 cap on medical malpractice pain-and-suffering damages. The Court ruled the law unconstitutional because it violated the principle of "separation of powers". In other words, the LEGISLATIVE branch of government should mind its own business and not tell the JUDICIAL branch of government how much it can award for pain and suffering in court.

This is a big win for trial lawyers and patients' rights advocates, and a black eye for tort-reformers.

I hate damages caps because I love justice. Damages caps are unfair because they disproportionately impact those who have suffered the worst injuries. Why should only the catastrophically injured "pay" for tort reform?

Several courts around the United States agree with me. They have tossed out such laws, either because they violate the separation of powers, or because they deny citizens the right to a fair jury trial, or because they violate equal protection principles.

Fortunately, New York State has never adopted damages caps, though the insurance industry has had its cronies in Albany propose such laws. Let's hope our legislature never passes such a law and, if it does, that New York courts would have the guts to strike them down as unconstitutional.

I abhor frivolous lawsuits. I try to bring my New York personal injury lawsuits only against companies and people whom I feel are truly liable for my clients' injuries. But once in a while I am forced to sue "iffy" claims against those who probably are not responsible for my clients' injuries. Why? Because of insurance companies and their lawyers, that's why. Let me explain by way of example.

My client is a passenger in her boyfriend's motor vehicle. On a snowy night, they come upon a car stopped in the middle of the road, which apparently stopped because of the snowy conditions. It appears, though, that the driver of that car could have done a better job pulling over onto the shoulder of the road. Nevertheless, my client's boyfriend is able to stop in time. Moments later, a tractor trailer comes from behind and hits the rear of my client's car, propelling it into the car stopped in front. That tractor trailer driver was clearly going too fast for the snowy conditions. My client suffers serious injuries, can never work again, and no-fault insurance is quickly exhausted.

So who do I sue to get her the compensation she needs and deserves? After all, she was an innocent passenger.

I think it was mostly the tractor trailer driver's fault, but perhaps also the driver of the first car, for stopping completely or for not pulling far enough over onto the shoulder. I think my client's boyfriend is without fault. All he did was stop to avoid hitting the car stopped in front of him.

But as the 3-year statute of limitations approaches, I know I have to sue not only the two drivers whom I think may be responsible, but also my client's boyfriend, whom I think is not responsible. Why? Because I know from experience that, if I don't sue him, the insurance company lawyers for the other two drivers will point the finger at "the empty chair" in the courtroom, that is, my client's boyfriend whom I did not sue. They will try to pass all the blame onto the one person I did not sue on any number of theories, for example, for not putting his flashers on, for not pulling over enough, for not passing around the stopped car --- who knows! I will only find out AFTER the statute of limitations expires, and then I will be in a jam. If somehow these insurance company lawyers convince a jury it was entirely my client's boyfriend's fault, then the jury will return a big goose-egg verdict for my client.

My client will not be left without recourse, though --- she can still file a New York legal malpractice lawsuit against me for failing to sue her boyfriend! So there you have it --- sometimes I have to sue people who probably aren't to blame.

Legend has it that, during the crusades, when a Christian army was invading a middle-eastern city whose residents were mostly Muslim, but which contained a significant minority of Christians, a soldier asked his military commander, "sir, how do I know which ones are Muslims, and which Christian", to which the commander replied, "kill them all, and let god sort them out".

So there you have it. Sometimes you have to "sue them all, and let the jury sort them out".

Yesterday New York's Appellate Division, Fourth Department handed one of our clients, a motorcycle accident victim, a great victory. Here's the story: Our client was riding his motorcycle in a rural area of Ontario County when a farmer in a pickup truck failed to see him, failed to yield to him, and caused a car/motorcycle collision that ended up costing our client a leg and a life-time of excruciating pain.

The pickup truck was insured by an auto policy to the tune of $300,000, but that wasn't nearly enough to cover the medical expenses, lost wages and permanent, unremitting pain and suffering. After a little hunting, we discovered that the farmer, in addition to the $300,000 auto insurance policy, had a $ 1 million farm insurance policy. Since the farmer was actually conducting farm business when the accident happened (had been checking on some crops and picking up a part for farm machinery) we figured the farm policy should be on the table.

Of course the insurance company disagreed. After all, insurance companies make their profit by disclaiming coverage whenever they can. Yes, I mean it; hanging their insured clients out to dry is how they grow their bottom line.

In this case, the insurance company's main argument was that the insurance policy they had issued to the farmer covered only accidents caused by vehicles registered as "farm vehicles", but the farmer's pickup truck was not registered as a "farm vehicle" but rather as an "agricultural vehicle". Say what? Don't "farm vehicle" and "agricultural vehicle" mean the same thing? Hell no! Welcome to the hairsplitting world of insurance disclaimers!

So, since the insurance company wouldn't pony up, we took a judgment against the poor farmer for the $1.3 Million, collected on his $300,000 auto policy, and went to Court to collect on the $1 million farm policy. The trial Court handed us a victor, the insurance company appealed (of course), and yesterday the appellate court out of Rochester -- surprise, surprise -- found no significant difference between a "farm vehicle" and an "agricultural vehicle" and thus affirmed our trial court victory.

So now they have to pay up. But there is frosting on this cake: During the years that the insurance company was refusing to pay, making us take a judgment against its insured, making us sue them for failure to pay on that judgment, and making us fight an appeal, 9% annual INTEREST WAS RUNNING on the $1 million judgment pursuant to New York State law. As a result, the insurance company, who could have settled for the $1 million policy limit early on, now owes our client the $1 million plus interest, which amounts to a whopping $1.4 million.

So we at Michaels & Smolak would like to thank the insurance company (which will remain unnamed) for having provided our severely injured client with an extra $400,000.

The Syracuse Post Standard today reported that a sleepy tractor trailer driver on the Thruway, near Bethlehem, was dozing at the wheel when he crashed into the back of a second big rig at 1:20 a.m. Only twenty minutes later, when police and rescue workers were on the scene to respond to the tractor trailer crash, a car, whose driver had also dozed off, slammed into the rear of the line of traffic stopped for the first accident, creating in the most literal sense a "double whammy". Several injuries were reported.

So here's our legal quiz question for the day: If you prove that the driver that struck your car had fallen asleep at the wheel, do you automatically win your case? The answer? . . . .(drum roll --- Jeopardy music -- whatever) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . ..

The answer is "NO", but almost. Here's how the rule works in New York:
While New York courts don't consider falling asleep while driving "negligence as a matter of law" (in other words, the driver is not automatically liable for falling asleep), evidence that the driver fell asleep at the wheel and caused an accident creates what we lawyers call a "rebuttable presumption" of negligence.

What does that mean? It means that once you show in court that the driver fell asleep, you have made out a "prima facie" case, which means you have proved your case subject to the driver getting a chance to explain why it wasn't his fault he fell asleep. (As the old Saturday Night Live skit put it, the driver has "got some splaining to do"). But even though the driver gets a chance to "explain", you will almost always win your case, and the sleepy driver will almost always lose. Why?

Think about it. How does the asleep-at-the-wheel driver show that it was "not his fault" that he fell asleep? People just don't suddenly fall asleep. Before sleep sets in, there is a warning sign --- called "sleepiness" or "drowsiness" --- which almost always comes on before actual sleep. That is when the driver should have pulled over and stopped driving and gotten some rest ---- but no, he decided to risk it, and to keep driving, despite his sleepiness.

I am telling you these cases are just about slam dunks. While they are not "automatic" wins, they are damn close.

So to those injured victims of the double whammy on the New York State Thruway --- get a good car accident lawyer, or even a not-so-good one, and you will almost certainly end up getting compensated for your pain, suffering, and other loses.

I get this question all the time. A client is hurt by someone else's negligence and wants to know what to expect, and more specifically, HOW MUCH to expect in settlement for her personal injury.

First, you can usually only tell after the doctor has released you from further treatment. Only then can the doctor tell us whether you will have any permanent injuries, and if so, how bad.

But after the injury has healed as much as it can, the math itself is pretty simple. You take the average jury verdict you expect a jury to give (jury verdicts vary widely, so you simply take what the average jury would probably give), and then multiply it by the percentage chance you believe you have of winning at trial. For example, let's say you have an injury an average jury would award $100,000 for. But there are some weaknesses in your case, so that about 1 out of 4 juries would rule against you. Doing the math, you have a 75% chance of winning on a $100,000 injury, and thus a fair settlement would be $75,000.

But it is really not that simple. The hard part is figuring out what an average jury would give you to compensate you for your pain and suffering. Pain and suffering is a pretty loosey-goosy concept. How do lawyers figure this out? Well, here at Michaels & Smolak we have a system. First, all our lawyers read religiously a publication called "The Jury Verdict Reporter", which reports personal injury and medical malpractice verdicts all over New York State. This is like having our finger on the pulse of juries. It gives us a very good idea of what juries are generally giving for certain types of injuries. We also have taken many verdicts ourselves, so those too act as a point of reference. Next, we take into consideration the age of our client (younger clients get more because they have more years to suffer with their injuries), the place where we have to try the case (some counties produce juries that are traditionally more stingy, and others are more generous - see my previous blog on this), and how the injury has affected our client's life (physically active clients who are rendered inactive because of an injury usually get bigger verdicts than couch potatoes). Insurance policy limits are also taken into consideration. Other factors count too, but I have listed the main ones.

Next, we have to figure out our chances of winning at trial. That's also tricky. It is more of an art than a science. Some cases are clear slam dunks (drunk blows stop sign and crashes into client), but most cases have some "holes" in them. The lawyer just has to roughly measure the size of those holes! Before I enter into settlement talks, though, I have in my head what my "chances" at trial are (slam dunk, 50-50 chance, 30% chance, long shot, etc.). The Jury Verdict Reporter I mentioned earlier really helps; you see cases with your same fact pattern in there, and if the jury is consistently rejecting those cases, you know you are fighting an uphill battle.

And by the way, what I think would be a fair settlement really doesn't matter --- we always let the client decide whether to settle, and if so, for how much. All I can do is advise my client what I think would be fair.

And that's pretty much the nuts and bolts of it. If you want to know more, email or call me

Surprise, surprise. Toyota is getting sued. Just this past Monday, a grieving Texas widower filed a wrongful death lawsuit against Toyota, claiming that a defective accelerator pedal in a 2009 Corolla caused his wife's death. There have been about 10 lawsuits filed in the U.S. and Canada so far for injuries allegedly caused by the sticking-pedal problem.

Some of Toyota's most popular models, such as Corolla, Camry, Tundra and Rav, are subject to a Toyota recall, mainly for vehicles built between 2008 and today. But even as Toyota has already recalled about 6.5 million vehicles, some people are getting hurt, and they are suing.

When you manufacture a car whose pedal tends to stick in the down position, either because it just sticks, or because a dangerously designed floor mat catches it and makes it stick, you should expect to get sued. Under New York products liability (defective products) case law, which is similar in most states, a manufacturer or distributor of a defective product can be held liable even if it was careful in designing and manufacturing the product. The only thing that counts, really, is if the product ends up, for whatever reason, being "unreasonably dangerous". If it is, then the manufacturer and distributors must generally pay for the harm in a New York defective product liability lawsuit.

An accellerator pedal that stick is sure a good candidate for "unreasonably dangerous".

But still, I was feeling sorry for Toyota. After all, they gave us the Prius, a nice green-step forward. And they made good, reliable cars.

Then one of Toyota's former lawyers, Dmitrios Biller, hit the news waves claiming that Toyota had tried to suppress evidence of the pedal-sticking defects, and that it had ignored safety concerns that could have prevented fatal accidents. (Sound familiar? How about tobacco litigation?)

But even then I was still in Toyota's corner, at least a little. Weren't they the little guys of the 60's who made it big in the 80's through sheer guts and competitive spirit?

But then Biller, the whistle-blowing former Toyota lawyer, told ABC News that "Toyota in Japan does not have any respect for our legal system. They did not have any respect for our laws".

Now that got to me. Our U.S. legal system not good enough for you, you say? Well, then, we'll just teach you a lesson with some good'ol U.S. lawsuits.

New York car accident lawyers like me are taking in more and more car crash cases where our clients were struck by a "texting" driver.

Why is texting while driving so dangerous? Research shows that texters take their eyes off the road for an average of 4.6 seconds out of every 6 seconds. At 55 miles per hour, that means a driver is traveling the length of a football field without looking at the road! Studies show that drivers who text while driving get into 20 times more accidents than non-distracted drivers.

Sure it's dangerous for a car driver to text while driving, but think how much more damage a distracted tractor trailer driver can do while texting from his big rig. And that's precisely why today U.S Transportation Secretary Ray LaHood announced a regulatory guidance that expressly outlaws "texting" by drivers of commercial vehicles such as tractor trailers and buses. The prohibition is effective immediately. Under the new rule, truck and bus drivers who text while driving commercial vehicles can get slammed for up to $2,750 in civil or criminal penalties.

This won't be the last measure the federal government takes to combat distracted driving. During a September 2009 "Distracted Driving Summit", Secretary LaHood announced his goal of reducing the risks posed by distracted driving. President Obama has also recently signed an Executive Order directing federal employees not to text while driving government-owned vehicles. More to come. You can follow the progress of the U.S. Department of Transportation in combating distracted driving www.distraction.gov.