May 6, 2012

Words Matter To Syracuse NY Personal Injury Lawyer

what's your story.jpg.jpgWhat are the most important weapons a personal injury lawyer brings to court? Give up? OK, I'll tell you: words.

Words are the arrows in the personal injury lawyer's quiver. The "mot juste" (the right word), as the French say, can make all the difference. That's why the best New York personal injury lawyers spend lots of time before a trial deciding what words to use in describing what happened to their client, and how they are suffering as a result.

Don't think words matter that much? Watch this short video and you might change your mind:


So there you have it. A personal injury lawyer representing a blind client, let's call him Bill, can stand up at summation and say, "ladies and gentlemen, Bill is blind". Or he can say, "ladies and gentlemen, I just took Bill out for lunch during recess. As you know, it's a beautiful day out there. [pause]. But Bill couldn't see it. (note: much of the power of the words is unleashed by skillful use of the voice, intonation, emphasis, and pauses. This obviously cannot be transcribed).

Yes, words are powerful weapons. The late Moe Levine, one of the best New York personal injury lawyers who ever lived, delivered one of the most famous summations in a personal injury trial in New York. The words he chose mattered. He was representing a man who had lost both arms. In his summation, he could have rattled on and on about what it was like for his client to live without any arms. But he chose to make it simple and to the point, and very, very graphic. He told the jury that he had just taken his client to lunch at a restaurant across the street. Then, after a long pause, he said, "he eats like a DOG"! Then he sat down. The jury gave his armless client the biggest New York personal injury verdict ever recorded until that day.

The best lawyers find, and use, the best words.

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 Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

May 1, 2012

Van Soaring Over Guardrail On New York's Bronx River Parkway Is Deja Vu.

rocket.jpg.jpgLast Sunday a van careered across several lanes of traffic on a highway overpass on the Bronx River Parkway before plunging off the side of the road and landing, upside down, in the Bronx Zoo, where all seven occupants, including three children, met their death. Yes, the van driver was surely at fault. He was probably speeding (68 in a 50 mile per hour zone), and he should not have lost control of his vehicle. But that doesn't let the State of New York off the hook if it failed to design and maintain a safe roadway.

And it sure looks like New York State screwed up here. The van apparently hit a concrete curb on the right side of the roadway, which catapulted the van so high that it completely cleared, without touching, the four-foot high guardrail/fence.

This is totally unacceptable. What kind of engineering genius would put concrete curbs that act as launching pads for errant cars and send them flying over the guardrails? Make no sense at all.

And this was not the first time! Last year a car cleared the guardrail at nearly the same place. This section of the parkway is on the New York State Transportation Department's "5 Percent List," which is a federally mandated list of locations "exhibiting the most severe highway safety needs."

This sad case reminds me of another case I wrote about in last year's municipal liability outline, Garner v. State, where a motorist lost control of his car on a highway bridge, then ran into a snow bank packed against the concrete barrier guard at the edge of the bridge. The snow bank acted like a ramp, vaulting the car off the bridge and onto a roadway below. The State lost that case, but apparently the State still has not learned its lesson.

Here's the lesson: we, the citizens of New York State, do not want to be launched into orbit if we, for whatever reason, lose control of our vehicles on your roadways, bridges and overpasses. Please remove your launching pads. Donate them to NASA!

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 Negligent Roadway Design Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


April 28, 2012

Fellow NY Personal Injury Lawyers, Please Stand Up!

71LV8ogrzXL._SL1405_.jpgI consider myself in pretty good shape for my age. But when my brother just a year older than me recently died of a sudden heart attack, I decided to get all the testing I could for heart disease. One test I got is called a "cardiac CT scan for calcium". It measures the amount of plaque deposits in the arteries near your heart.

Alas, I did not do so well. I scored a 61, which is in the 59th percentile for my age. That means that 59% of American men my age have less plaque build up than me. Very surprising considering my lifestyle: I exercise regularly (about an hour and a half a day of biking, swimming or running), eat well, keep my cholesterol under control, and am thin.

So I started investigating why I might have such plaque build-up. Clearly genetics is one factor, and I can't change that. But there was one thing in my lifestyle, I discovered, that could be causing the fat in my blood to deposit on my artery walls; sitting. Recent studies show that, even if you work out regularly, if you are sitting a lot during the rest of the day, you are more likely to develop plaque in your arteries, and thus more likely to suffer heart attacks and strokes.

But as a New York personal injury lawyer, sitting is about all I do all day! My job requires me to be at my desk, and on the phone or computer, almost all day long. Even at home in the evenings I often continue to work sitting. In Court I am mostly seated. And I am seated when I drive to and from court, and between my home and the office. Now that I think about it, I spend almost all my waking hours on my butt!

Solution? a standing desk . Yes, standing is good for you. Even without trying, your leg muscles are working when you stand. The cholesterol doesn't deposit to the walls of your arteries as easily.

And so I just ordered my standing desk from amazon.com. Fellow desk-bound lawyers, please join me in standing up against heart disease!

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

April 24, 2012

Why NY Personal Injury Cases Settle On The Eve Of Trial

money handshake.jpgMonday I was scheduled to try a Seneca County NY motorcycle accident case in the Seneca County Courthouse in Waterloo. But as often happens, the case settled on the eve of trial, in this case Sunday afternoon.

Why do personal injury cases settle so late in the game, after the attorneys have put so much work into preparing for trial"? In one word, "pressure". The pressure of an upcoming trial transforms the psychology of the parties and the lawyers. The weaknesses of your own case suddenly come into focus as never before. The risks of trial loom larger. This happens on both sides. When the parties' positions are not far apart to begin with, splitting the difference suddenly seems more palatable.

Trying cases is exciting, fun and, yes, frightening, especially for the client who usually has never been to court. The cases that get tried are the ones where the parties are miles apart. Where the positions are "within firing range" of each other, the pressures of trial often lead to a settlement on the courthouse steps.

My client was happy, and relieved, with the settlement. The amount we got was almost exactly what the lawyers in my firm had predicted an average jury would give us.

One of my partners always says, "hey, you can't lose a settled case". When I told that to my client, he laughed and said, "amen".

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


April 23, 2012

More Motorcycles Means Fewer Motorcycle Accidents, Says Syracuse NY Motorcycle Accident Lawyer

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for motorcycle riders.jpgThe Syracuse Post Standard reports, in an article titled, "Oswego County Motorcycle Deaths Increasing", that three motorcyclists have been killed already this year in Oswego County, and we are only in April. This totals more than the full-year of motorcycle fatalities in 2008, 2009 and 2010.

Why? Warm weather has meant more bikers out earlier and, as the Post Standard notes, "drivers may not be prepared to see them".

But the warm weather is not the only factor responsible for more motorcycles on the road: high gas prices have pushed more motorists to switch to motorcycles. As a result, motorcycle registration is up all over New York State, including in Oswego County.

In the long run, more motorcycles on the road is good news for bikers. That's because there's safety in numbers. If car and truck drivers get used to seeing lots of motorcycles, they will be looking for them, and avoid colliding into them, with greater frequency.

I didn't just make up this "safety in numbers" theory. (Wish I could take credit for it). Proven examples abound, especially with regard to bicycles When the number of bicycle trips increased by 72% in Finland there was a corresponding 75% drop in the number of cyclists deaths. Another example: Between 2000 and 2008, the number of bicycle trips made in London doubled, but during the same period of time serious bicycle injuries declined by 12%. Similar studies have been conducted in other cities.

Still, motorcycles are a minority on our roads, and are likely to remain so unless and until gas prices get obscenely high -- say $10 per gallon. And their minority status is what makes them so hard for other motorists to notice. So until that 10-dollar-a-gallon day of reckoning comes, watch out for those cars, because they sure as hell ain't watchin' out for you!

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 Motorcycle Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

April 13, 2012

My Car Hit A Wandering Cow. Can I Sue The Farmer?

cow in road.jpg.jpgEric Turkewitz, a celebrated New York personal injury blogger, recently blogged about the case of Hastings v. Suave, in which a cow wandered from a fenced-in pasture into a road at night and caused a car to collide with it, injuring its driver. Eric noted that the Third Department (intermediate appellate court) affirmed dismissal of the case because, under a weird quirk of New York law, an owner of a domestic animal cannot be held liable for negligence in allowing his animal to escape. Rather, he can only be held liable if he knew or should have known the animal had vicious propensities. The Third Department Court was reluctant to dismiss the case, but its hand was forced by existing case law, which clearly requires a finding that the animal was vicious or at least "abnormal". As Eric points out, the law in New York does not recognize a cause of action for negligent failure to restrain a large, but passive, animal such as a cow.

Here's my personal footnote to Eric's great blog post: In upstate New york, where I practice personal injury litigation, there are lots of cows, and some of them invariably stray off into roadways. And I have settled "wandering cow" cases with insurance adjusters for significant money. I recall a case a few years ago where the cow had escaped at night because the dairy farmer had failed to mend a gap in the fence for several weeks. A car collided with the cow, causing injuries to its driver and passengers. The insurance adjuster never even challenged me on liability.

Yes, I know the law. But I also know that most insurance adjusters do not. They simply assume a farmer can be held liable for negligently failing to fence in, leash, or restrain an animal. That's because such a rule makes sense, even if it is not the rule in New york.

Am I acting unethically by presenting such a claim to an insurance adjuster? I am an advocate for my clients. While I am prohibited from filing "frivolous" lawsuits, that is, cases I know have no legal merit, nothing prohibits me from negotiating a settlement with an adjuster who doesn't bother to check out the law.

P.S. to insurance adjusters: Please do not read this blog post.

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 Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

April 12, 2012

What is a "voluntary" product safety recall? Central and Syracuse NY Product Liability Lawyer Explains

toy house on fire.jpg.jpgI always chuckle a bit when I read that a manufacturer or distributor is "voluntarily" recalling one of its products for safety concerns. From my perspective as a Central and Syracuse New York products liability lawyer, companies never "voluntarily" recall anything. In fact, left to their own devices, most corporations wouldn't even recall an exploding toy, as long as its sale is turning a profit.

Why not? Because a "corporation" is a legal creature designed for one sole purpose - to maximize profit. Nothing else matters. All that counts is the bottom line. Corporate boards are duty-bound to maximize their shareholder's dividends and share value, and morality is completely outside, even contrary, to their duty.

So why do manufacturers and distributors of dangerous or defective goods sometimes "voluntarily" recall them? Because they have no choice. They are required to report safety concerns about their products within a short period of time (days) subject to significant sanctions if they don't. Then, if they don't recall the product, the Consumer Protection Safety Commission (CPSC), or a similar government safety agency, will start proceedings against them or simply "mandate" the recall. (The CPSC, by the way, is charged with protecting the public from injury or death from unreasonably dangerous consumer products.)

Beyond that, distributors and manufacturers of defective and dangerous products know that if their dangerous product hurts and kills people, those people and their families are going to hire product liability lawyers like me to sue their pants off. Continuing to sell dangerously defective consumer goods thus becomes more expensive than recalling them, which hurts their bottom line. And remember, the bottom line is all that matters to corporations.

So are recalls really "voluntary"? It's kind of like how you "voluntarily" pay your taxes. You do it "voluntarily" because you know there will be serious consequences if you don't.

If you or a member of your family has been injured or killed because of a dangerous consumer good, machine, drug or other product, just email or call me and we'll talk --- for free.

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 Defective Product Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

April 10, 2012

Can Syracuse Be Sued By Sodomized Child And The Child's Parents?

playground.jpgThe Syracuse Post Standard published a story today titled, "How the city of Syracuse hired a registered sex offender". When I first glanced at the title, I thought --- "hmm, there could be some liability here". I was thinking that perhaps the City had unwittingly hired a registered sex offender to work around kids and the guy had raped or abused one of them. But that's not what happened.

Here's what did happen. Three years after the City of Syracuse hired a garbage collector, he was indicted for sodomizing a boy (not on-the-job, though). When the City hired the guy, the City had not checked his criminal history, nor New York's sex offender registry. If the City had done so , it would have turned up several criminal convictions, including one for sodomizing a 15-year old boy, which is in fact just about the same thing he is again being accused of.

The City makes no apologies, nor should it, in my opinion. The City's policy, which makes sense to me, is to perform criminal background and sex registry checks only for sensitive job hiring positions, like camp counselors, summer park staff, firefighters, police, etc. In fact, for jobs like garbage collecting, the City often knowingly hires ex-cons. The City feels, and I agree, that someone has to give these guys a way to make a living, and a second chance in life. Hiring ex-cons keeps them off the Syracuse "streets" where, without a job or a penny in their pocket, they are likely to commit more crimes.

So why did the City fire this guy after this latest allegation? (Remember, he hasn't been convicted of the latest charge, and is innocent until proven guilty). Because he lied on his job application three years early, that's why. Well, he didn't actually lie. He just left blank the part where they ask for his "criminal convictions". The City says that was fraudulent because he did so to hide his background. But the irony is that, if he had answered truthfully, he probably would have been hired anyway. And if he had told the truth, he probably would not be getting fired now, and least not until (and if) he is convicted.

So when would the City be liable for negligent hiring of a convicted child abuser or sex offender? Well, if this same guy had been hired to work in a city park frequented by children, and ended up raping some kid "on the job", or whom he met at the park, Syracuse New York personal injury lawyers would be standing in line for a chance to represent the child victim and his parents in a negligent hiring case against the City. But thankfully, that's not what happened here.

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

April 3, 2012

Syracuse NY Crouse Hospital Medical Malpractice Case Heats Up

welder.jpgIf your tummy just happened to catch fire during a C-section (yes, I said catch fire) and caused you permanent, painful napalm-like burn injuries, would you wonder if your doctor made some kind of mistake? In fact, would you wonder if he was a witch practicing some form of hell art?

This is pretty much the story of a Crouse Hospital medical malpractice case filed in Onondaga County, New York. The patient knew something was wrong when, as the doctor cut away down there, she started smelling something burning. Little did she know it was her! When she mentioned the smell to the doc and nurses, they responded, "nothing to worry about", but then there was smoke. And where there's smoke, there's fire. "I see the smoke," her mother said, who was standing right beside her.

Apparently, an electrical cauterizing tool the doctor was using lit the alcohol-based antiseptic they had spread on her skin. This was a risk the manufacturer had warned the Hospital about just a month before the surgery, and had given specific instructions on how to avoid, but clearly the instructions were ignored.

If this story is not bizarre enough already, wait, there's more! If you sued your surgeon and the hospital staff for setting you on fire, wouldn't you expect them to roll over and cry, "how much do we owe you"? You wouldn't expect them to defend the medical malpractice case you brought against them, would you? After all, what defense can there be to setting your patient on fire!?

Welcome to the amazing world of medical malpractice defense. Think there are frivolous lawsuits? What about frivolous defenses. Listen to this perfect example of lawyer double talk coming from the mouth of Crouse Hospital's lawyer: "Crouse takes full responsibility for [the patient's] injuries, but does not admit it was negligent". Huh?! Excuse me, if you take "full responsibility" for the patient's injuries, how can you not admit you were negligent? That's like say, gee, I sure screwed that up, but it wasn't my fault!

Even the patient's plastic surgeon appears outraged at his fellow medical providers' defense of the case. He wrote, "I certainly cannot understand the rationale of defending it."

Maybe it really is not their fault. Maybe, through no fault of their own, these doctors and nurses just landed in the wrong profession. They should have been a welders.

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

April 1, 2012

NY Bike Accident Lawyer -- Die On Your Bike With Good Protection

bicyclists racing.jpgMaybe you can, but I can't. I can't do it. I can't get on my road bike without thinking, at least a little bit, about getting injured or killed on it. That's probably because, as a Central and Syracuse New York bicycle accident lawyer, I see some pretty nasty bike injuries, and worse, all the time.

It's not easy to forget the danger. Just today my cousin, an avid cyclist, was hit and killed by a pickup truck while biking out in Oregon where he lived and worked. As I heard about him, all I could think was, "but for the grace of God, there go I".

Death seems to be falling all around me, like killer raindrops. I blogged the other day about my brother's recent sudden death, and now my cousin, only 60 years old.

Hey, I know I am going to die. After all, death runs in my family! I guess dying on a bike is as good a place as any. And although I can't avoid death, at least not in the long run, I can avoid the financial hardship it might cause my family, especially if I get whacked by some negligent motorist while I'm on my bike. How? By getting a lot of "supplemental underinsured motorist" (SUM) coverage on my auto insurance policy. What?! Insurance on my car to protect me on my BIKE!? How does that make sense?

Well, I can't buy "bike insurance" to protect me if I get injured or killed on my bike. Why not? Because it doesn't exist! Maybe one day some smart insurance guy will invent it, but so far, not. But what does exist is SUM coverage on my auto policy, which I purchased for a very, very small premium increase, just a few dollars a month. This will give me, and my family, financial protection should some negligent motorist kill or injury me while I am out there on my bike.

To find out more, read New York Bike accident lawyer Jim Reed's recent blog post on the topic. Jim discusses Jordan Rapp's account of his near-fatal bike accident, and how it taught him to look carefully at his car insurance. Yes, that's right, his car insurance. . . . Just read it, and do it.

Try not to die or get killed out there on your bike. But be ready, just in case. SUM up, dude!

If you want to ask me some questions about SUM coverage, just shoot me an email or give me a call.

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


March 31, 2012

Brain Injured Snowmobile Accident Victim Paints For CNY Injury Lawyer.

20120331_145723.jpgSome of our former Central and Syracuse New York personal injury clients become lifelong friends. One example is Mary. Even six years or so after we settled her case, she keeps in touch, stops by the office, and emails us regularly.

Mary suffered a terrible traumatic brain injury ("TBI").. She was a passenger in a snowmobile that collided with another snowmobile. About 6 years ago, my partner, David Kalabanka, got her a 7 figure settlement against the responsible party's insurance carrier and worked out a structured settlement that will pay her several millions of dollars, in monthly installments, over the rest of her life. David did an awesome job representing her.

Mary can't work a conventional job. No one would hire her. Her brain injury has left her noticeably "different". She talks with an unsettling voice and intonation. She speaks whatever she thinks, and this, of course, is not socially acceptable. She sees double, too.

It's easy to take advantage of Mary, and many people do. Why? She has a big heart, a good monthly income (from the structured settlement), likes helping, is lonely, and wants friends. Her brain injury has left her without a healthy skepticism about people's selfishness. It's easy to talk her into buying you stuff. And doing free work. She'll clean your house, or paint it, for free, just to be your friend.

Mary likes to paint. My wife and I needed our bathroom and kitchen repainted. So we invited her over. Here she is, in the photo, removing the wallpaper from our bathroom. She offered to do the job for free, which will take about a week, but I of course insisted on paying her the going rate. I just hope she spends it on herself and not on what others talk her into buying them.

By the way, "Mary" is not her real name. I am so afraid people will take advantage of her that I have changed her name and used a photo that does not show her face.

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 Traumatic Brain Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

March 27, 2012

Cornell University Student Suicides - Can Cornell Be Held Liable?

Anyone familiar with Ithaca is also familiar with the ubiquitous bumper sticker and City slogan "Ithaca Is Gorges". Bridges span those gorges, right on or near Cornell University's campus, and students traverse those bridges by foot on their way to and from classes and town. When you combine Ithaca's gloomy climate with the Ivy League pressure cooker, it's no surprise that many of those students (a Cornell study says about 15%) frequently contemplate suicide, including jumping from the bridges. And over the years, many have! More specifically, from 1990 to 2010, there were 29 suicide attempts, 27 of which were successful, on the seven bridges located on or near campus.

Cornell was concerned enough about the bridges' magnet-like pull on suicide contemplators so as to undertake anti-suicide bridge renovations in 2006 or so. At that time a virtually suicide-proof alteration --- the installation of nets under the bridge -- was rejected apparently because it would tarnish the scenery. Instead Cornell took half-measures, like building the parapets of the bridges a bit higher, and curving them somewhat. When several more kids threw themselves to their death from those same bridges, Cornell did an about face and is now implementing the net concept.

But in the meantime, the parents of one of those recent suicides have brought a New York wrongful death case against Cornell, and the City of Ithaca as owner of the bridge in question, alleging, basically, that they should have gotten it right the first time.

Cornell and Ithaca moved to dismiss the lawsuit, but a Federal Court judge, himself a Cornell graduate, denied the motion, holding that Cornell and the City had a "duty to maintain the . . . bridge in a reasonably safe condition [so] as to prevent suicides". The case will probably get to a jury eventually.

I know it might be hard for some people to wrap their brain around the concept of holding a University liable for a student's self-inflicted death, but there is another way to look at it. Cornell's failure to suicide-proof those bridges, when it knew their deadly history, and knew that hundreds of impressionable, depressed and stressed young people, whom they invited to live on their campus, would continue to traverse those bridges day in and day out, was equivalent to leaving a loaded gun on each students' dormitory night table. If a student were to pick the gun up off the table, stick it in his mouth, and ends his life, would you blame Cornell, at least a little? Think about 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

March 26, 2012

Syracuse NY Personal Injury Lawyer Wins More Than $3 Million For Security Guard Shot in Rochester Convenience Store Holdup

armed robber.jpg.jpgMy fellow Syracuse personal injury lawyer, Joseph Cote, who besides being a great lawyer, is a really nice guy, recently won a nearly $3.4 million Rochester NY personal injury verdict for a security guard shot in the face during a robbery at a Wilson Farms convenience store in Rochester.

The jury held the chain-convenience store's corporate owner 50% responsible and the robber (who was never caught) 50% liable. How could the store be held liable, even half liable, for an armed robber shooting its security guard? Well, Joe argued that the convenience store should have required its employees to move cash from the store to the bank more often. Instead, Wilson Farms became a favorite piggy bank for armed robbers because they knew there was likely to be a big payday inside. In the past decade, armed robbers targeted the Rochester area Wilson Farms stores a grand total of 126 times, which included six shootings and one death.

Joe's argument reminds me of what Jesse James said when asked why he robbed banks: "Because that's where the money is", he quipped.

The 50% finding probably means the Store will have to pay out only half of the pain-and-suffering portion of the verdict. Under New York CPLR Article 16, subject to certain exceptions, a defendant who is 50% or less at fault has to pay the injured plaintiff only its own proportionate share of the pain and suffering compensation. If the jury had found the store 51% liable, the store would likely have had to pay 100% of the pain and suffering compensation, with a right to sue the robber for his 49% share (good luck!).

Congratulations to Joe Cote on a great win.

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 Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293

March 25, 2012

Is A New York Driver Who Has A Seizure And Causes An Accident Liable For The Injuries And Death He May Cause?

scared driver.jpgLast week in Auburn, NY, on Lake Avenue, not too far from the New York personal injury and auto accident law firm of Michaels & Smolak, P.C., a 24-year old driver had a seizure and crashed his car into a house porch. No one, except the driver, was injured, but what if they were? What if someone was on the porch and got hurt? Could that person sue the driver for the injuries?

You might think, "gee, it wasn't really the kid's fault that he had a seizure, so how can you blame him"? You might be right. Or not.

All 50 states require drivers with a seizure history to report this in their application for a driver's license or license renewal. All 50 states deny drivers' licenses to those who suffer frequent seizures that cannot be controlled by medication. All 50 states have rules regarding when and how a license may be acquired for those with seizures that can be controlled by medication.

In New York, in order to get, or renew, a driver's license, anyone who has experienced loss of consciousness or seizures is generally required to produce, on a scheduled basis, a doctor's statement that the seizures are actively controlled by medication, unless the applicant has been seizure-free without medication for at least one year, in which case this is not required (see, 15 NYCRR 9.5).

As you can see, the law attempts to strike a balance between the interests of those unfortunate enough to suffer from seizures with the interest of the rest of us in being protected from seizure-induced accidents.

In general, seizure-related traffic accidents are unlikely when the driver has been seizure-free for a year. People who experience an "aura" before a seizure are also at reduced risk; the aura is nature's warning to pull over before the seizure begins.

Obviously, not taking antiepileptic medication, or even missing one dose, can increase the risk of a seizure-induced accident.

Getting back to this Auburn case, if the driver had obtained, or renewed, his a license without reporting past seizures, he will most likely be held liable. If he was supposed to take anti-seizure medicine, but did not, he will most likely be held liable. If he was denied a license because of seizures, but drove anyway, he will most likely be held liable.

Bottom line: If you suffer from seizures, be honest. Report them when you apply for, or renew, your driver's license. If you are on seizure-controlling meds, take them, always. If you follow these rules, but nevertheless end up killing or hurting someone after a seizure, you should be alright from a liability perspective. After all, you really do have to drive to make a living and get around in most parts of the United States. The law will be on your side as long as you are on the right side of the law!

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 & Central NY Car Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

March 23, 2012

Can You Sue Drug Manufacturers For Failure to Warn? It May Depend On Whether You Purchased Generic Or Name-Brand Drugs

pills.jpgThe New York Times just reported on a problem I blogged about many months ago: Brand-name drug producers can be sued for failing to provide adequate warnings of prescription drug dangers while the producers of the generic form of the drug cannot. Why? Because the Supreme Court says so. I refer you to the Times article as well as to my previous blog post.

The Times article demonstrates the stark unfairness of this state of the law with a "tale of two cities". In the first case, a woman had to have her hand amputated after an emergency room nurse injected her with an anti-nausea drug, causing gangrene. The drug happened to be a generic drug. She sued for the manufacturer for failure to warn about the risks of injecting it, and her case was dismissed. Another woman with the same injury who was injected with the same drug, but of the brand-name variety, sued on the same facts, and won big ($6.8 million). A $6.8 million dollar difference due solely to the "luck of the draw" in that the hospital in the first case used a generic drug and in the second case used a brand name.

Justice? Go figure.

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