June 2011 Archives

June 30, 2011

No More Baby Killer Cribs !

crib.jpgDrop-side cribs should have been dropped a long time ago. Why? Because they kill. I blogged about drop-side crib deaths last year. The drop-side sometimes created a gap between the mattress and side rail where babies got caught, suffocated and died. About 40 babies have been strangled to death since 2000. This of course led to product liability lawsuits in New York and around the nation.

Are drop-side cribs convenient? Yes. A lifting side rail allows parents to easily place and pick up their baby. But in a convenience-versus-safety match, especially where babies are concerned, safety should win out.

And finally it did. This week the Consumer Product Safety Commission (CPSC) is finally banning drop-side cribs, even at yard sales! Now, all four sides will be fixed, and so will the problem of baby strangulation.

Better still, all crib models sold in the U.S. will be rigorously tested for tightened hardware that can't shake loose from a baby's rattling.

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

June 25, 2011

The U.S. Supreme Court Deals Victims of Generic Prescription Drug Failure To Warn A Knockout Blow.

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for courtroom.jpgAs every New York prescription drug lawyer knows, prescription drug suppliers don't always do a stellar job warning their customers about risks associated with their products. In fact, sometimes they do a plainly lousy job. And that can cause serious injury, or even death, to prescription drug users.

But every wrong has a legal remedy, right? Who could disagree with that?

The Supreme Court of the United States, that's who. Last Thursday the U.S. Supreme Court, by a 5 to 4 vote, in a case called Pliva v Mensing, , ruled that the makers of generic drugs (as opposed to brand-name drugs) may not be sued for faulty or inadequate warning labels. This is surprising, to say the least, since two years ago the same Court, in Wyeth v Levine, reached an opposite conclusion regarding the makers of brand-name drugs.

The reason for the disparity in treatment? The majority in the Pliva case says that brand-name drug companies can change the labels on their products without seeking permission from the FDA, while generic drug makers cannot. True enough (one of the idiosyncrasies of Federal drug law), but this recent court ruling does not allow consumers to sue generic drug makers even where they can show they failed to make diligent efforts to solicit permission from the FDA to change their labeling when they saw a problem emerging. Instead, they can sit back and relax --- while you lie down and die.

Even the Court seems to recognize the absurdity of having one rule for brand-name drugs and another for generic drugs. Justice Clarence Thomas, who wrote the majority opinion in PLIVA, admitted the distinction between generic and brand-name drugs "makes little sense."

I agree. New York prescription drug lawyers agree. And if you or someone you love gets sick or dies because of faulty warnings on generic prescription drugs, you will agree, too.

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

June 20, 2011

Don't Be A Fool With A Pool; Syracuse New York Personal Injury Lawyer Explains

Today's Syracuse Post Standard reported on a study published in the journal Pediatrics concluding that, in the U.S.A., a child dies in a portable pool every 5 days during the summer months. Ninety four percent of the victims are under 5.

Drowning is the second-leading cause of death among young children. (The first is car accidents). But why so many deaths in these cheap, shallow pools?

I can think of three:

First, there are so many of those portable pools. Almost anyone can afford them. They sell like hotcakes this time of year in Walmarts, malls and other stores. With so many around, it is not surprising that at least some of them would become death traps.

Second, many parents blindly purchase these pools with no awareness of the dangers, especially to small children and toddlers. They don't look dangerous at all --- they look fun, and they are, too. The parents purchasing these pools are not required to take a safety course, or watch a safety video first. (Maybe they should be?).

And third, many of the safety mechanisms prevalent with in-ground pools, such as fencing, safety covers, and pool alarms, are not available, or affordable, to the purchasers of smaller, cheaper pools.

But the real cause of most childhood drownings is lack of adult supervision. Never, ever leave a child who is not a competent swimmer unsupervised anywhere near a pool. And if you are supervising, don't get distracted in conversations, books, electronic devices or anything. Especially with very small children, you must watch with undivided attention. Drowning is usually silent, so don't expect to hear screams for help. You might just read or talk your way through your child's death-by-drowning. Drowning is fast - it only takes a minute or so with small children. That's just a couple of pages of your book, or a little tidbit of gossip from your neighbor across the fence.

Since I'm a New York personal injury lawyer, let me tell you a little about pool liability. If you own any kind of pool, even a plastic kiddy pool, and a neighbor's child makes his way to your property, falls or jumps in, and drowns, you can be held liable. Children are naturally attracted to pools and water. You have to guard the pool when you are not there to watch it. With smaller pools, just empty the water. With larger ones, cover, fence, and lock them.

And always, always supervise your neighbors' kids when they are visiting and the pool is accessible.

Don't be a fool with a pool.

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

June 18, 2011

Five Deadly Mistakes You Can, And Probably Will, Make If You Try To Settle Your Personal Injury Case Without A Lawyer, PART V.

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for checklist.jpgThis is the fifth and final part of the 5-part blog series about the pitfalls of trying to settle your own New York personal injury claim without a lawyer. Here's pitfall number 5:

5. WATCH OUT FOR VULTURES. In some cases, you can't take the settlement money without others, officially called "lien holders", but whom I call "vultures", holding out their hand for a piece of the pie. I call the lien holders "vultures" because they don't participate in the "hunt", i.e., the hard work of getting the settlement, but sit around and wait for you to make the kill, and then swoop in for a piece of the meat.

Unfortunately, this is their legal right. In a New York personal injury case, this is true especially if Medicare or Medicaid or ERISA-qualified health insurance policy paid for some or all of your treatment. Also, workers' compensation will have a lien to recover any medical treatment or wage loss payments. If you take the settlement money, and then spend it, without first paying off the vultures, bad things will happen! They will come after you for reimbursement, and in the case of workers' compensation, they might cut you off completely from any further comp benefits. And if you did not calculate these liens into your settlement demand, well, you'll have to sit back and watch them eat the whole carcass of your settlement, leaving you nothing but scraps, or nothing at all.

By the way, if you hired a New York personal injury lawyer, he or she would know how to negotiate these liens downward. But if you have elected to go it alone, you can just about forget about that --- it is too complicated. That's another reason why you should have hired --- and maybe still should hire --- a lawyer!

So remember, DON'T FORGET TO INVESTIGATE LIENS AGAINST YOUR SETTLEMENT.

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

June 17, 2011

Five Deadly Mistakes You Can, And Probably Will, Make If You Try To Settle Your Personal Injury Case Without A Lawyer, PART IV.

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for checklist.jpgThis is the fourth part of the 5-part blog series about the pitfalls of trying to settle your own New York personal injury claim without a lawyer. Here's pitfall number 4

4. DON'T ASK FOR TOO MUCH, OR TOO LITTLE, TO SETTLE YOUR CASE. Let's face it; you have no idea how much your case is worth. Even an experienced New York personal injury lawyer has a hard time putting a number on some injury cases. So many factors come into play: your age, how strong your "liability" looks, how bad the injury is, and how long it will last, your state of health and whether you have "pre-existing injuries", what county the case must be tried in, and a few dozen other factors.

You might think you know how much your case is worth because a friend of a friend had the same or a similar injury, and his lawyer got him x amount. But that friend of a friend might have had a stronger or weaker liability case than you, and he might be older or younger, and he might have had, or not, pre-existing injuries to the same body part. All these things will make your case different from his, so it is a mistake to think your case is worth what he got.

No matter what you ask for, it is probably going to be a mistake. If you ask for too little, the adjuster will convince you it is too much, and low-ball you to hell. And if you ask for too much, and stick to it, the adjuster will not settle at all. Then you will have to go to trial --- and if you do that without a lawyer, well, in law school they used to say, "anyone who represents himself has a fool for a lawyer" . . .

But anyway, remember, DON'T ASK FOR TOO MUCH, OR TOO LITTLE. Ask for a little more than what's fair (enough to give you some bargaining room).

Stay tuned for Party V.

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

June 16, 2011

Five Deadly Mistakes You Can, And Probably Will, Make If You Try To Settle Your Personal Injury Case Without A Lawyer, PART III.

Thumbnail image for Thumbnail image for Thumbnail image for checklist.jpgThis is the third part of the 5-part blog series about the pitfalls of trying to settle your own New York personal injury claim without a lawyer. Here's pitfall number 3:

3. DON'T BELIEVE THE INSURANCE ADJUSTER WANTS TO HELP YOU. She (or he) doesn't. She wants to get you to settle for as little as possible, fairness be damned. Her job, especially if she knows you have no lawyer, is to try to get you to sign something called a "release", which puts the nails in the coffin of your case, for peanuts. The adjuster might seem nice, friendly, kind. And maybe she is, in real life. But this is not real life. This is business. And her business, sorry to be so blunt, is to screw you.

Don't befriend her. Figure out what your claim is worth and convince her to pay you that amount, and if she won't, tell her you will hire an experienced New York personal injury lawyer to get it in court (problem: She probably won't believe you, though, since you have managed to avoid hiring a lawyer up to this point).

So remember, THE INSURANCE ADJUSTER IS NOT YOUR FRIEND.

Stay tuned for Part IV.

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

June 15, 2011

Five Deadly Mistakes You Can, And Probably Will, Make If You Try To Settle Your Personal Injury Case Without A Lawyer, PART II.

Thumbnail image for Thumbnail image for checklist.jpgThis is the second part of the 5-part blog series about the pitfalls of trying to settle your own New York personal injury claim without a lawyer. Here's pitfall number 2:

2. DON'T SETTLE TOO SOON. Would you buy a house without carefully examining every room? Of course not. So why would you settle a case without having walked through every "room" of your injury? If you are still having problems, still hurting, still getting medical treatment, then you still have not visited the "rooms" of your injury that await you in the future. What will your body feel like in a year? Will you have a permanent limitation? Will you need surgery? You haven't visited those "rooms" yet. You can't visit those "rooms" until you let your injury "play itself out", and this may take longer than a year, especially if you are seriously injured. In most cases the New York personal injury statute of limitations is 3 years (but this can vary, which is another reason why you need a New York personal injury lawyer!).

So remember, WAIT TILL YOU ARE DONE TREATING BEFORE YOU EVEN CONSIDER SETTLING.

Stay tuned for Part III.

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

June 13, 2011

Five Deadly Mistakes You Can, And Probably Will Make, If You Try To Settle Your Personal Injury Case Without A Lawyer, PART I.

Thumbnail image for checklist.jpgThis is the first o a five-part blog series about the pitfalls of trying to settle your own New York personal injury claim without a lawyer. I don't recommend that anyone actually do this, without at least first consulting with a New York personal injury lawyer. In rare cases, I have recommended to accident victims that they settle their claim on their own so as to avoid paying me a 1/3 contingency fee. But that's only when the injury is minor, has totally healed, and there are no complications such as "liens". Otherwise, having a New York personal injury lawyer represent you will almost always "pay off" because the settlement will be enhanced by far more than the 1/3 fee.

But if you want to throw all caution to the wind and settle your own claim without even consulting with a personal injury lawyer, at least try to avoid making these common do-it-your-selfer mistakes:

1. DON'T GIVE A RECORDED STATEMENT. The insurance adjuster will seem friendly, compassionate. He or she will say, "we just want to know what happened so we can pay your claim. Can we record a statement from you"? If you say "yes", you just fell into a trap. That recorded statement, which you believe represents the total "truth" about what happened, is likely to boomerang back and hit you in the back of the head. The insurance adjuster will rely on portions of your recorded statement, which she will call "admissions", to low ball your settlement offer, or worse yet, the insurance company lawyer will use your "admissions" to cross-examine you at trial. You, of course, won't know what hit you because you believe there was nothing "wrong" with what you said. But there almost certainly will be. The insurance adjuster is very good at getting you to say the wrong thing.

Remember, just say "no" to recorded statements!

Stay tuned for Part II in the series . . .

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


June 12, 2011

Hot Coffee --- A Must-See Documentary About The (In)Famous McDonald's Case

images.jpgWhen folks find out I am a New York personal injury lawyer, it doesn't take them long to ask me, usually with a snide grin on their face, about the McDonald's case. The undercurrent of the question, no matter how it is posed, is something like this: "You scumbag personal injury lawyers sure know how to milk the system, tricking juries into raining huge piles of money on undeserving clients." Well, maybe it's not quite that bad, but you get the point.

That one case has done more to tarnish personal injury lawyers than any other in history. Late night comics have had a field day with the case. To conservative politicians and their insurance-company/big-business lobbyists, it has been the poster child for everything wrong with personal injury lawsuits and our civil justice system.

But all of this was actually the result of a deliberate misinformation campaign by corporate America to undermine the civil justice system. I know you won't believe this (yet), but the case actually showcases everything that is right about our civil justice system. A recent documentary spotlights the McDonald's case, and shows how corporate America distorted its true meaning. Skeptical? Don't believe your mind has been manipulated about that case? See the new documentary, Hot Coffee, which premieres on HBO June 27. You can see the trailer below. See it, then watch the film, then email me and tell me what you think.

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

June 10, 2011

Auburn New York Personal Injury Lawyers Move!

moving.jpgYour favorite (we hope) Central New York personal injury lawyers are moving! Not far. A stone's throw -- well maybe a sling shot -- away. Our new address is 17 East Genesee Street in Auburn. We're on the fourth floor, but there's an elevator. Starting Monday, June 13, that's where you'll find us.

Same phone and fax. Still in lovely Auburn, New York. Still handling all types of New York personal injury and medical malpractice cases. Same four "super" lawyers. Same great staff. Same great service, and we expect the same great results.

Why are we moving? More efficient space, better parking, better location. The old office, an 1830's home, was charming with its high ceilings, thick molding, faux marble fireplaces, and so on. And we'd been there for about 25 years. But, those heating bills were killing us, maintenance was tough to keep up with, and the space was very inefficient.

Moving has side benefits. It makes you shed years of accumulated junk. It makes you leaner and meaner. It makes you rethink efficiency and use of space. And it brings the whole "team" together --- lawyers, staff, technology providers --- into the collective enterprise of relocating.

Come see us in our new digs! But wait a few days --- unless you don't mind a mess! Actually, come sooner. You can help us unpack some boxes!

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

June 5, 2011

Central And Syracuse NY Personal Injury Lawyer On Albion NY ATV Trail Accident

atv.jpgWhen I read the story this morning about a Pulaski ATV operator who was killed when his neck ran into a wire strung across a private trail in Albion, I got that "déjà vu" experience. I handled a similar case about 4 years ago. That case involved a dirt bike rider on a trail down in the Watkins Glen area. In that case, there were little red plastic flags strung along the wire that had worn out and become almost invisible with time. The owner had meant to prohibit entry onto the trail. We resolved this case with a settlement.

This Albion ATV accident happened on private trail. The owner of the trail might be held liable, depending on the facts. Some important facts a New York personal injury lawyer would consider are: (1) Who put the wire there (was it deliberately installed by the trail owner to keep users off, or was it placed there by some unknown persons as a kind of cruel joke? Obviously, it will be much easier to prove liability if the owner placed it there or had notice that it was there); (2) Was the wire visible or did it have visible markings on it? (This accident happened at about 8:50 p.m., so visibility would probably be minimal or non-existent); and (3) Were there any prior signs or warnings to stay off the trail?

If the owner meant to keep ATV riders and others off his property, this was a dangerous and cruel way to do so. Let's hope that was not the case.

Should the family of the deceased ATV operator, or his injured passenger, choose to bring a New York wrongful death or an ATV injury claim against the trail owner, they will face one major legal hurdle. It is called the New York "Recreational Use Statute". This law isolates property owners from liability for injury to recreational users of their land. The law was meant to encourage landowners to open up their land for public recreational use by alleviating the landowners' fear of lawsuits.

The Statute has built-in exceptions, though, most notably: (1) "willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity". Also, the owner cannot benefit from the protection of the Statute if he charged the ATV operator for use of the trails.

Our condolences to the family of the deceased driver, and we wish his injured passenger a speedy recovery.

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

June 3, 2011

Syracuse Construction Accident Lawyer Considers Painting His House

house painter.jpgWhen I was a college student, I used to paint houses in the summer to make a few bucks. I was fearless then. I would climb way up high on extension ladders and paint the peaks of three-story homes. And I would climb on roofs, lie down and dangle my head over the edge, and paint the eeves. Nothing was holding me to the roof except gravity and guts. I was in my 20's and I did not think I could ever die, or even get injured. And work was plentiful. Homeowners readily hired me because I had a reputation for doing a good job on the cheap.

Now, much older, wiser, and having represented too many fallen workers in my job as a Central New York and Syracuse construction accident lawyer, I dare not climb a ladder even to clean my own gutters. Being a Central New York construction accident lawyer has its downside - I have lost my nerve. I take six steps up the ladder, my mind's eye sees three or four clients who fell when the ladder they were on toppled, or when they lost their grip, I then think of how my family will fare without a breadwinner, and before you know it, I have backed my way down the ladder to the safety of mother earth.

My house needs painting. Even though I have painted over 50 houses in the day, I am not going to paint mine. I would much rather represent fallen workers than be one.

I want to hire a reputable painting company. I don't want some inexperienced fly-by-night kid (like I was!) climbing up on my roof and courting death or serious injury. Am I worried about getting sued? No. That's because I know that under the New York Labor Law, a homeowner is protected from liability for falling workers. Generally, only owners of buildings with a commercial purpose can be held liable for injuries suffered by a worker who falls from the building.

I want to hire a company of professional painters. A good professional painting company will follow proper ladder and scaffold safety rules, which includes tying the ladder down both from the bottom and the top, and using secure scaffolding whenever possible.

Yes, real professional painters are a bit more expensive than daredevil college kids. But life is too valuable to risk it.

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