Central New York Injury Lawyer Blog

just because you did it.pngI came across this lawyer advertising billboard on the web and couldn’t convince myself NOT to post it on my blog. So now I have to justify posting it. I am going to somehow tie this sign into New York personal injury stuff. Just wait and see!

When you think about it, the sign is not just funny, or a sad statement about sleazy lawyering, it is actually true. You may have done the act you are accused of doing, but nevertheless be “not guilty” of the crime for a variety of reasons. For example, Bob Marley may have shot the sheriff, but if it was in self-defense (or if he was insane, or if the gun went off by mistake) there may be no “crime”.

When deciding whether a defendant committed a “crime”, the law looks not only WHAT he did but WHY he did it. What was going on in his head as he did the act? That’s what lawyers call “the mens rea“, i.e., the mental state. If the defendant kills someone deliberately with premeditation, that’s a more serious crime than if it was just careless. And if it was in self-defense, then it was no crime at all.

Ready? Here comes the tie-in to New York personal injury law: The concept of “negligence” – the heart of most personal injury law cases — also looks into the defendant’s state of mind. Was he trying to be careful? Was he looking out for the safety of others? If so he was not “negligent”, no matter the harm he may have caused.

For example, if a motorist crosses over into the oncoming lane of traffic and crashes into an oncoming vehicle, that is normally “negligence” because he was careless. If, however, he crossed over to avoid a deer that jumped in front of him and he had only a split second to make that decision, a jury might find he was not “negligent”, and therefore is not liable. That’s because his mental state was different in each instance.

On the other hand, if the motorist was racing and crossed over to pass another vehicle at break-neck speed, his state of mind could be found to cross over from mere “negligence” into the mental land of “recklessness”. That means he was mentally indifferent or wanton or deliberate in putting the public at great risk. This is also called “gross negligence“. In New York personal injury law, the jury can award a victim of gross negligence not only compensatory damages, but also punitive damages (make him pay additional money beyond what it takes to compensate the victim in order to punish the offender).

So there you go. Do you agree I have fully justified posting this crazy lawyer billboard? Hope so.

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

doctor bad.jpgIf you wanted to hire a driver to drive you on a long trip, would you want access to an easily searchable website where his and other licensed professional drivers’ traffic convictions and accidents were posted?

If your answer is yes, then safety is important to you. And I assume that, if you were going to have major surgery, you would also like an easily searchable website that gives you details about your surgeon’s medical malpractice records, hospital affiliations, and other background information.

Right now, New York State has such a website. It was mandated by a year 2000 Statute, which was passed in response to several high profile medical malpractice failures by doctors with bad – but not easily discoverable – track records.

Now, however, that website is in jeopardy. A two-sentence item buried deep in Governor Cuomo’s proposed budget would eliminate the New York State Physician Profile. The budget savings? $1.2 million annually — chump change in the context of New York State’s annual budget of about $140 billion.

The site — operated by the New York State Health Department — is a big hit with patients. Last December alone 35,000 clicked onto the site.

Cuomo justifies nixing the site by claiming that the same information is available elsewhere on the web. That’s mostly true, but finding it requires sleuth-like skills and patience that many medical consumers don’t have. If you are lucky or persistent enough you might find all the same information on other sites. But why not have one-stop easy “doc shopping” at such a low cost?

The author of the 2000 law creating the State website, Assemblyman Richard Gottfried, summarized the problem: “As we move towards more transparency and public access to healthcare information, this proposal takes us in the opposite direction.

Keep safe!

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

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

1-315-253-3293

Reid.jpgIt’s all over the news: Seventy-four year old Senate Minority Leader Harry Reid’s power workout “backfired” on him. Literally.

In a freak accident
, the senator was using an “elastic exercise band” to do some kind of exercise in his bathroom, with the band attached somehow to his shower door. As he “flexed”, the band “snapped” and sent him flying across his bathroom floor where his face met some cabinets. He suffered such severe facial injuries that he risks losing the sight in one eye. He also broke a number of bones around his right eye and four ribs. See photo!

Ouch!

Moreover, huh???!!!

I am an inveterate exerciser myself, but I am having trouble figuring out what kind of exercise Harry Reid was performing when he managed to turn himself into a human slingshot at that kind of velocity!

What “band” was he using? Was it nuclear powered? And did the band actually break, or did the Senator simply not attach it correctly to the shower door? Or did the shower door fail? Was he following the manufacturer’s instructions, or was he “winging” it (literally)? Did a manufacturing or design defect cause the product to break? Harry, tell us more! Without knowing exactly how this bizarre accident happened, or what kind of band he was using, it is hard to know whether he has a products liability claim against the band manufacturer.

Apparently, how Reid turned his body into a speeding bullet will remain a mystery. Although small pieces of the story keep dribbling out (he recently told a radio show he was using the second-strongest band there is — a gray color band) the whole story — like a steamy bathroom — is clouded in mystery.

I am tempted to repeat the jokes I read in the Daily Beast — about Reid enduring the “slings and arrows of politics”, or about him attempting to “bounce back” from his injury, but I will refrain.

Oops, I didn’t.

Seriously, accidents aren’t funny! Be careful out there!

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 Product Liabilty Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

icyroad.jpgI just read about a spectacular rollover crash on Interstate 690 in Geddes, NY (near Syracuse) a few hours ago. Fortunately, there were only minor injuries.

I don’t usually blog about local accidents, but I did want to make folks aware that – even though the heavy snow we have been getting is partially to blame for this kind of car accident, New York car accident lawyers routinely bring these kinds of claims successfully against the drivers of the out-of-control vehicles. Yes, insurance defense lawyers often raise the “act of God” defense to weather related accidents. But that defense usually works only where the driver is totally blameless, which is hardly ever the case.

Always remember that you, as the driver, have an absolute duty to your passengers and to other motorists or pedestrians to KEEP CONTROL OF YOUR VEHICLE. Usually, “the road was real icy” or “I hit a snowy patch” are not valid excuses in Court. The only exception usually is where there was no ice or snow anywhere on the roadway before you hit a patch. If you already know there is snow and ice on some areas of the roadway, you have a duty to drive at a speed and in a manner that allows you to control your car even given those conditions.

Almost nothing is harder to live with than causing the death of a loved one – your passenger – because you did not drive at a prudent speed for the conditions. Please drive carefully!

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 Auto Accident Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

If you are the injured passenger of such a vehicle, do not hesitate to call me for more information.

th.jpgA spurned man was recently on trial for posting threats against his ex on FACEBOOK. His defense? The “threats” were just a joke, and she should have known it. To support this claim, he pointed to certain emoticons (a facial glyph, used especially in e-mail and online posts, indicating an emotion or attitude) that accompanied the “threats”. For example, there was one of a face with a tongue sticking out. This emoticon meant the “threats” were in jest, he claimed.

The prosecutor wanted the threatening posts “read” to the jury, but the man’s lawyer – wisely – wanted to bar any open court “reading” of the posts. He wanted the jury to only SEE the posts so they could take into account emoticons. The man’s lawyer argued that it would be unfair to merely read in court the posts because the accompanying emoticons could not be “read” aloud. The jury would hear the “threat” without “hearing” the accompanying (and mitigating) emoticon. The posts had to be SHOWN and only SHOWN to the jury!

The lawyer had a point. Certain forms of writing — like repeated question marks (“???”), distorted words (like “soooo”) and emoticons — can’t be reliably or adequately conveyed orally. To do so distorts the meaning.

How did the judge rule? The Judge allowed the posts to be read in open court, but also instructed the jury that the messages had not been communicated that way to the ex. The ex, like everyone else in the FACEBOOK world, would have SEEN the postings with the accompanying emoticons. “The jury should read them,” the judge said. “They are meant to be read. The jury should note the emoticons.”

Think of how an emoticon can change the meaning of a sentence. “I’m going to kill you!” followed by a wink, tongue out, or a smiley is not same message as a bare “I’m going to kill you”.

Fellow lawyers, if you have a case where online postings or emails or texts are coming into evidence, and they were accompanied by emoticons, and the emoticons change the tenor, tone, or the meaning of the post, fight like hell to have the post SHOWN to the jury on a big screen, or at least passed onto the jury at the same time or shortly after they are read aloud in court.

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

jail despair.jpgIf you’ve been wrongfully convicted of a crime, and you want to be compensated for it, you need to explore several legal avenues of redress. If there was some government wrongdoing – on behalf of the police, prosecutor, or judge — you may be able to bring a case based on “malicious prosecution” or based on deprivation of civil rights (42 U.S.C. 1983). But what if there really was no “wrongdoing” on the part of the prosecutor, judge or police? What if you were simply convicted – for example – based on mistaken identity?

That’s where Court of Claims Act §8-b can be a lifesaver. Under this very special Statute, you don’t have to prove anyone did anything wrong. All you have to prove is that you were convicted for a crime you did not commit, that the conviction was duly vacated, and that (by clear and convincing evidence) you were not guilty of that crime nor of any of the offenses for which you was charged.

One last thing: You must show that you “did not by [your] own conduct cause or bring about [your] conviction” (Court of Claims Act §8-b[5]). Why would you have done anything to bring about your own conviction? The most common way is if you were trying to protect someone else. Did you help cover up evidence that your spouse or friend did the crime? That might have done you in! Did you help bring about your own conviction by giving a non-coerced confession? Did you attempt to induce a witness to give false testimony, or attempt to suppress testimony, or testify untruthfully in court? If you did, a Court might find your own conduct caused your own wrongful conviction.

Bottom line: If you want to bring a wrongful conviction claim against the State of New York based on Court of Claims Act § 8, you had better have clean hands.

Keep safe!

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

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

1-315-253-3293

brain.jpgI tried a traumatic brain injury case about a year and a half ago in Syracuse, New York. Although I got a “verdict”, it was not the one I wanted. The jury did not think my client was very hurt, and thus awarded him a lot less than we believe he deserved and needed.

Misery loves company. Traumatic brain injury cases are statistically among the toughest to win for a plaintiff’s lawyer, as a very recent – and well reported — Syracuse New York brain injury verdict bears out.

Before I go into the case, why is this kind of case so tough? The symptoms of mild traumatic brain injury are often “invisible” to a jury: headaches, cognitive slowdown, depression, blurred vision, memory or concentration problems, mood swings, confusion, and balance issues. Nothing you can show the jury on an MRI slide.

Worse, the injured plaintiff usually looks and talks “normal”. It is easy for a jury to conclude — especially in this post-MacDonald’s case environment – that the plaintiff is “faking” or at least exaggerating.

The press was all over the recent Syracuse traumatic brain injury trial because it involved a famous entertainer – Rick Springfield. A fan at his 2004 NYS Fair performance – 45-year old Vick Calcagno — claimed that, while dancing on stage, he had fallen on her, knocked her down, and caused her to suffer a traumatic brain injury. She claimed that Springfield had been “careless and negligent” during the course of his concert by “performing, hopping and/or jumping” on chairs and benches.

After a week of testimony and only about an hour of deliberations on a recent Friday morning in the Courtroom of Judge Anthony Paris in Syracuse, a jury determined in only one hour that the singer and actor had not caused any brain injuries – or any injuries at all.

Calcagno’s credibility quickly and repeatedly came under fire. Although this is typical in brain injury cases, this case presented even greater hurdles for the plaintiff. She had no witnesses to back up her story that Springfield had fallen on her. There were no videos showing what happened. She conceded that she did not leave the concert or seek medical attention at the time. The defense pointed out that, although she had emailed the NYS Fair about the incident, she did not mention specific injuries but rather asked only for Springfield’s contact information.

She also attended a Cyndi Lauper concert a week after the Springfield concert, which probably convinced the jury she could not have suffered a brain injury at all (apparently the jury did not think — as I do — that wanting to see a Cyndi Lauper concert at all is indicative of a brain injury).

Although plaintiff’s lawyer tried to explain all these seeming contradictions away, he failed. This case was a perfect storm for a brain injury lawyer. No good proof of what happened, post-accident behavior that could lead a jury to conclude the plaintiff was not very hurt – if at all, and only “invisible” symptoms that could not be clearly demonstrated on the stand.

There are of course ways to win traumatic brain injury cases, and each case turns on its own facts. I have attended seminars on how to try and win these cases, but they can — and often are — lost. If you have a traumatic brain injury, be sure to hire an experienced brain injury attorney so that you have the best chance at trial.

Keep safe!

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

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

1-315-253-3293

xarelto.jpgA couple of years ago, I developed arterial fibrillation, more commonly known as “afib”, which is not uncommon with people 50 and older. My dad had it from the time he was 50 until he died at age 86. It’s not life threatening, but does raise the risk of blood clots, which can lead to strokes.

The treatment? Blood thinners. “Thin” blood can’t clot so easily, and thus prevents stokes. My dad used the blood thinner of his era – Coumadin (warfarin) – for 35 years. The problem with Coumadin was it was not user friendly. Dosage depended on diet, age, and other medications being taken. With Coumadin, patients had to get blood tests monthly or more often and watch their intake of vitamin K, which could lessen the effectiveness of warfarin.

Coumadin – with all those hassles – is now considered “old school”. I am using a new generation blood thinner called “Xarelto” (rivaroxaban). The advantage of Xarelto over Coumadin is that one size fits all. Almost anyone can take 20 miligrams and be protected from blood clotting, and thus protected from strokes. No need for monthly blood tests. Just pop the pill once a day and your good.

Or are you? The problem with Xarelto is that there is no ”antidote” if you start to bleed excessively. Vitamin K acts as an antidote to Coumadin if you start bleeding excessively, but it has no effect on Xarelto.

So, because I am on Xarelto, if I develop serious bleeding, there may be little the doctors will be able to do to stymie it. Death may follow.

I have nevertheless made the decision to continue to use Xarelto rather than deal with the hassle of Coumadin and its monthly blood tests. You might say I have “assumed the risks” of Xarelto in order to avoid the hassles of Coumadin.

When I watch TV during my YMCA workouts, I see many ads on TV for Xarelto followed shortly by ads like this one:

It’s kind of funny seeing ads for Xarelto back-to-back with ads inviting those harmed by it to sue.

Xarelto lawsuits exist because of products liability law, which essentially says that a product is “defective” if it is “unreasonably dangerous”. Is Xarelto unreasonably dangerous? Our courts will have to test that. But for me – unless there are hidden risks I am unaware of – the small (I hope) risk of unstoppable bleeding is outweighed by the convenience of not having to get my blood tested once a month. Too busy!

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

Honda.jpgMaking big auto companies self-report to the government fatal accidents and injuries caused by their vehicles is kind of like having the fox report to the farmer how many hens he ate. The fox is likely to under-report.

Same with Honda. And as a result, the “farmer” (the National Highway Traffic Safety Administration — our top federal auto safety agency) has fined Honda a record $70 million for its gross under-reporting.

The penalty is double the one slapped on General Motors just last year for being slow to identify safety problems.

Honda ran afoul of the law by failing to report hundreds of death and injury claims as well as certain warranty and other claims. This mandatory self-reporting helps regulators identify safety defects, which in turn helps them decide on recalls to save our lives. Honda’s lack of reporting put its customers’ lives on the line.

But who cares? Big business is all about making money, not saving lives, right? When the fox is hungry, what difference do a few hens make?

Will Honda continue to under-report fatalities, injuries and warranty claims? Or will the fine slapped on them – the largest ever – act as a deterrent? In my opinion, not likely. What’s a measly $70,000,000 to a multi-billion dollar global company like Honda? A drop in the bucket. A slap on the wrist. Choose your metaphor.

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 Car Accident Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

DUI flyer.jpgI don’t do criminal law. I’m New York personal injury lawyer. But I came across an interesting article about a controversial way to avoid getting “busted” at a sobriety checkpoint. This is criminal defense lawyer stuff. I am not recommending this, or even saying I agree with it. But I just find the technique interesting and wanted to pass it on to my readers.

Here’s how it works: As you approach a sobriety checkpoint (a/k/a drunk trap), put your license, registration, proof of insurance and a “note” like the one depicted above in a plastic baggie attached to the exterior of your driver’s side window and then roll up the window as you approach the checkpoint.

Then just remember to shut up. Don’t answer any questions. Don’t talk. The officer outside won’t be able to say he smelled any odor of alcohol from behind your closed window, nor will he be able to say he heard you slur words (if you keep quiet). The cop will thus have no “probably cause” to arrest you.

Worried he might get pissed off at your sealed-in silence? You have the right to remain silent! What if he asks you to open your door or window? You have a right to keep them locked and closed! You have a Fourth Amendment right against unreasonable searches!

Unless the officer can say he saw you driving erratically, or you happen to have a bottle Jack Daniels in your hand, he won’t be able to find probable cause to arrest you. Or to make you open the door to search your car.

A video of this technique being tested by a brave Florida driver this past New Year’s Eve has gone viral on the internet. How did the cop react? He waved the car on! Will you be so lucky? What if the cop challenges you? What if he threatens to arrest you for failing to obey his order to open your window? In Florida, where this technique has emerged, certain sheriffs have threatened to arrest motorists for “obstruction”- if they try the technique. Yet Constitutional experts say the technique is probably perfectly legal.

I am asking my brave New York readers to drive into a sobriety check point (sober please!), and try this technique. Let me know if it works. Film it for me. Remember, this is not legal advice. In fact, it might be illegal advice. But I’m dying to know how it turns out for you. And if you call me from jail, remember, I am not a criminal defense lawyer!

Keep safe!

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

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

1-315-253-3293