Central New York Injury Lawyer Blog

Let's say a guy with a completely limp arm walks into my office. The arm just hangs there, lifeless. The guy will never be able to use that arm again. What happened? Let's say his sleeve got caught in a machine, which drew in his arm, and that his arm was stuck in the machine for many hours while emergency response teams tried to extricate him. My client appears blameless. He was just doing his job the way he always did it, and the way his employer instructed him to do it. Why did the machine suck his arm in? Was it defectively designed? Was it improperly maintained? Why wasn't there a kill switch he could reach? Were the warnings and instructions on it sufficiently clear? Was my client simply not trained right on how to use it?

These facts are similar to several cases I have handled, including one I just recently took in. And I can't answer those questions I just posed, at least not yet. New York workplace injury lawyers like me need to rely on engineers to help us answer these questions. The main question, though, is whether the machine was "defective". By "defective" I mean "unreasonably dangerous", which is the standard for proving a New York product liability lawsuit. My client has a case only if the machine is "defective", and the engineer's main job is to determine whether it is defective.

I have already consulted with such an engineer. We are going to carefully examine the machine together. My expert engineer will then be able to tell me whether, in his opinion, the machine was defective. He will research the relevant standards for designing and building such machines during the time period when this machine was built, and also will research the standard warnings and instructions that should be placed on this kind of machine.

Since my client is poor and can't afford to pay the engineer, I have agreed to "front" the money for it. And it's expensive! But it's also the only way to find out if the client has a case. I sure hope he does have a case, because his workers' compensation payments (60% of his regular wages) don't pay all his bills, and he's got kids to feed.

If there is a defective machine case, it will be against the designer and builder of the machine. He can't sue his employer because workers' compensation law bars him from doing that.

I feel really bad for this client. He is a nice guy, with a bad injury, and has a tough economic situation. One of my worst jobs is to tell a seriously injured and blameless client "you have no case". I am hoping I don't have to tell him that.

So you say you don't like tort lawyers, product liability lawsuits, or personal injury cases? Well, guess what? You need them, as demonstrated (once again) by the headlines in the New York Times!

The New York Times reports that, as early as the fall of 1999, SmithKline Beecham, maker of a popular diabetes medicine called "Avandia", found out, through studies it conducted, that the drug posed significantly greater cardiac risks than other leading diabetes medicines. So what did they do about it? Let's see how smart you are with this multiple choice test: Did SmithKline Beecham: (a) stop production of Avandia; (b) call the FDA and informed them; (c) do more studies to make sure; or (d) bury the study, tell no one, and continue to churn out huge profits on the sale of the dangerous medicine.

If you guessed "d", you get a gold star, not only for getting the right answer, but for understanding how corporate America, with its single-minded profit-lust, works.

The risks to the heart from Avandia did not become public knowledge until eight years later, in May 2007, when the company was forced by a lawsuit to make public its data. During those eight years, the company did some other studies, but not on the drug itself. Rather, they studied how much money they stood to lose should the truth about Avandia become public knowledge. Those studies, which projected lost profits of more than $600 million, spurred the company to undertake a massive cover-up of the drug test results, and thus to put thousands of diabetics (whose health is already at risk) at even greater risk of early death or serious health deterioration.

My experience as a New York product liability and defective consumer goods lawyer has taught me that hiding the results of negative studies, and the dangers of consumer goods generally, is not only widespread in the drug industry, but in every industry across the board. I have said it before and I will say it again: We the people have only two weapons at our disposal for curbing big business' appetite for building castles of wealth on the corpses of our citizens: (1) tight federal regulation and (2) tort lawsuits.

As for number (1), government regulation, when vigorously enforced and fairly applied, is the people's watchdog. It is our way of looking over the shoulder of the producers of potentially life-saving products to make sure they are not producing life-threatening ones.

As for number (2), that's what I, and my fellow New York product liability lawyers, are here for: Good product liability lawsuits are, arguably, even more effective than government regulation at preventing dangerous products from reaching the store shelves. Product liability lawsuits force corporations and manufacturers to factor into their profit equations the high cost, (i.e., a slew of big-verdict lawsuits) of producing dangerous products. It gives them pause --- not always enough pause, but some at least, -- before they embark down that road of putting safety last, instead of first, where it belongs.

As a mere local Central New York personal injury attorney, I really didn't want to get into commenting on the national disaster that is the ongoing Gulf of Mexico BP oil "spill". (I put "spill" in quotes because this word, bantered about by BP and echoed by news media, hardly seems appropriate. It is more like an underwater oil "volcano". Take a look at the video of it here).

I don't even want to comment about the "perfect storm" combination of cascading mistakes that led to the "spill" itself. After all, as an accident lawyer, I know all too well that big-company accidents, even cascading series of them, are all too common (because corporate cost-cutting carelessness is all too common). Nothing new here. BP, join the club of about a zillion other big corporations who have injured countless Americans with their crappy defective products!

And, heck, I don't even feel like commenting about BP's deliberately underestimating the extent of the "spill". Corporate lies are just too common to push my buttons.

So what do I want to comment about? Glad you asked. Excuse my French, but what really pisses me off, what has my fingers pounding on this key board right now, is that BP HAD NO PLAN TO DEAL WITH THIS KIND OF A LEAK, NO PLAN AT ALL TO STOP IT IF IT HAPPENED!!! This hole they created at the bottom of the sea, which is spewing death to the Gulf, apparently can't be plugged! The latest brilliant idea?: Throw "heavy mud" at it, and if that doesn't work, knotted rope, pieces of tires and golf balls,

Golf balls? Come on! Do you think if BP had put as much money into designing a "what-if" safety device for dealing with this leak as they spent on designing drilling techniques for reaching deep sea oil they could have developed a stop-gap? Of course! But spending the money to GET the oil made them a buck, while spending the money to STOP the oil from reaping an environmental disaster didn't. It's that simple.

So how do we motivate corporations to develop safety devices if the profit motive isn't there? Two answers: (1) better and stronger government regulation and (2) lawsuits. Lawsuits make them "pay" for accidents, and therefore motivate them to be safe.

And I would just love to sue these guys. Come on, somebody, bring me a case against BP! Punitive damages? No question. Maybe as the oily mess makes its way up the east coast (as some are now predicting, via the Keys), there will be some mom-and-pop beach hotel (I love representing the little guy) on the shores of Long Island that will go bust and want to bring a New York lawsuit to recover their losses.

What is the worst kind of defective product? A good candidate is a baby-killer. And that is what the Infanto Baby Slings "SlingRider" and "Wendy Bellissimo" (sold by several large retailiers such as Target, Babies R Us and Burlington Coat) turned out to be.

Today the federal agency responsible for consumer safety, the Consumer Product Safety Commission (CPSC), recalled more than 1 million Infanto baby slings after they apparently caused at least three infant deaths BY SUFFOCATION. The slings are especially dangerous for infants under 4 months old. Babies can suffocate in them in two ways: First, the baby's nose and mouth can get pressed against the sling's soft fabric, thereby blocking its ability to breathe (or cry out in distress). Second, if the baby is placed in the curved position (c-like), the baby's head can flop forward, chin-to-chest, reducing the ability of the infant to breathe (or cry out in distress). Small infants' necks are not strong enough to pick their head up out of this position.

This story is personally distressful to me because of my own blissful experience with baby slings. Baby slings became popular about a dozen years ago, when my boys were still infants. They are great because they allow on-the-go parents (like me and my wife) to bond closely with their babies as they go about their business. I remember a trip we took to New Orleans where I had my one-year old cuddled up against my chest as we strolled all over the French Quarter. He was so peaceful in that sling, with his little head peeking out over the lip of it, checking out the Bourbon Street scene!

I don't want to even try to imagine the horror of a parent who, feeling her warm, peaceful baby snuggled up against her chest, suddenly starts to realize that there is something TOO peaceful about the baby . . . .

Nothing can replace a lost child. It is among the most devastating of human experiences. We at Michaels & Smolak have had the dreadful duty of bringing child wrongful death cases to trial for grieving parents. Sadly, New York wrongful death law allows for NO COMPENSATION to parents for the DEATH of a baby. Incredible, but true. Read my prior blogs about this most horrible law by clicking here and here. But a parent whose baby suffocates because of a defective product has a right to sue the manufacturer, and others involved in the products distribution, for the PAIN AND SUFFERING the infant must have endured while suffocating to death.

A manufacturer of a defective product is strictly (automatically) liable for the harm its dangerous product causes, even if the manufacturer had no reason to know that the product was dangerous. What matters is only this: Was the product UNREASONABLY DANGEROUS? If it was, then the manufacturer is liable, regardless of how careful the manufacturer was in designing and manufacturing the product.

I have hated writing this blog, but I feel it is my duty both to warn my fellow Central New York and Syracuse area parents of this dangerous product, and inform them of their rights, should, God forbid, tragedy strike their family.

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"!

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.

Child safety is a major personal concern of mine. I have five children; three grown, and two not quite. As such, I know first-hand the worries of a parent about dangerous or defective toys. Although toys are not always safe in the U.S., I believe we have the safest toys in the world. Why?

The most potent engine in America for protecting consumers from dangerous and defective products, including toys, is the products liability lawyer. Defective product attorneys in Central New York and elsewhere have saved thousands of lives by forcing manufacturers of dangerous or defective products to make their products safer or else pay the consequences by way of large jury verdicts for pain and suffering, lost wages, wrongful death and medical expenses.

The second most powerful engine in the U.S. for making consumer goods safer is arguably the Consumer Product Safety Commission (the CPSC). It is the U.S. agency charged with protecting consumers from dangerous and defective products. The CPSC decides when "recalls" of products are required. In this year alone (2009) the CPSC recalled 466 products. For example, the CPSC recently ordered the recall of Roman shades and roll-up blinds after the shades had already caused five deaths and 16 near-strangulations. The agency monitors the safety of about 15,000 products, including household goods, sports equipment, furniture and toys. (Other Federal agencies are charged with monitoring, and recalling if necessary, dangerous automobiles, food, beverages, pesticides and cosmetics).

But the CPSC does not always put safety first. Although a 2008 congressional overhaul of the CPSC put more emphasis on childhood safety and increased the CPSC's budget for this purpose, the agency's commissioners voted last week to delay, for a second time, requiring certification and independent third-party testing of lead in children's products. Lead in children can cause, among other harms, permanent brain damage. The agency appears to have bowed to pressure from manufacturers who were worried about the business cost of the new requirement. In another compromise of safety, the CPSC commissioners voted to permit manufacturers and importers to rely on lead testing from the suppliers of zippers, paint, buttons and other parts that are used in toys, clothing or other children's products, rather than have them test the entire finished product.

What does this mean for you, the consumer? You still can't trust that the toys and other products you buy for your kids are lead-free. Be careful about what your infant or toddler puts in his or her mouth.

This holiday season, hundreds of central New Yorkers will unknowingly purchase dangerous defective toys in malls and stores in Syracuse, Rochester, Auburn, Geneva, Waterloo and other upstate cities. Dangerous Toys Lead to Injury, Death and, eventually, to defective product Lawsuits.

According to the most recent U.S. Consumer Product Safety Commission data, last year, 2008, defective toys caused the deaths of 19 children and resulted in more than 82,000 emergency room visits by children under age 5. Many of these injuries and deaths lead to product liability lawsuits in which the injured or killed children's parents alleged that the toys were defective or overly dangerous.

Despite all the bad publicity dangerous toys bring to their manufacturers, toy makers continue to make some toys that are unreasonably dangerous for children, especially small children.

The U.S. Public Interest Research Group (PIRG) recently released its 24th annual "Trouble in Toyland" report. Once again, the three most dangerous characteristics of the toys on its list were: (1) choking hazard; (2) excessively loud; (3) contained toxic chemicals.

CHOKING HAZARDS: This is the number one cause of toy-related deaths. The danger is mostly for children three years old or younger. The good news: You can easily learn to identify a choking hazard. Check toys to see if they have small parts that can fit into a toilet paper tube. If they can, the toy is a choking hazard. Also, avoid small balls and round objects for small children. Balls should be at least 1.75" in diameter. Also, be aware that balloons, and pieces of balloons, can completely block a child's airway. Children under 8 years of age should never be given balloons.

NOISE HAZARDS: Children's ears are more sensitive than adults', and thus are vulnerable to noise-induced hearing loss. If a toy seems too loud for an adult's ears, it is surely too loud for a child's. Most toys should be no louder than 85 decibels at 10 inches away. If the toy seems too loud, cover the area emitting the noise with duct tape to reduce the volume.

TOXINS: Children are more vulnerable than adults to harmful chemicals because of their young, developing systems. The two most important chemicals to avoid are lead and phthalates. Lead is still often found in costume/novelty jewelry. Young children who tend to put things in their mouths should not be given such "toys". Lead exposure in children can lower IQ, delay mental and physical development, and even lead to death. The other chemical mentioned, phthalate, is linked to reproductive defects, genital abnormalities and early puberty. Phthalates are used to make plastic softer. A 2008 federal law banned them in children's products. When buying soft plastic toys, look for toys labeled "phthalate-free." Avoid plastic bath toys or bath books, unless they have the label.

PIRG has also made available a new interactive tool that can be accessed by computer or smart phone to help parents avoid dangerous toys. Parents can also report an unsafe toy on the site, which PIRG will then investigate.

Buy safe toys. Have a happy and safe holiday season,

In a New York product liability case, the jury recently awarded $8.75 Million to a pedestrian whose leg was crushed, and later amputated, when he was hit by a 1987 Volvo 740 wagon. The car did not have a "clutch starter safety switch", which requires the clutch to be pressed all the way down before the standard transmission car can be started. This safety device prevents a driver from accidentally starting the vehicle while in gear, thus causing the car to lurch forward, which is exactly what happened in this case. Volvo did not start installing these devices in its vehicles until the year 2000. One of the representatives for Volvo admitted, under oath, that the safety switch was available back in 1987, but that the company had declined to install it on cars sold in the U.S. In finding Volvo liable for this decision, the jury considered the fact that the safety device would have cost Volvo only $5 to install. This large New York defective product award includes compensation for medical expenses, lost earnings, and past and future pain and suffering.

This case demonstrates an important principle of product liability law: Whether a product is deemed "defective" often depends on whether a safer design existed at the time of its manufacture. If the safer design would have been relatively cheap to implement, when balanced against the dangers of not implementing it, a jury will often find that the manufacturer's product was defectively designed, which means that it was UNREASONABLY dangerous. Sure, all cars are SOMEWHAT dangerous; they are heavy machines designed for travel at fast speeds. But why make them more dangerous than they have to be? That is the whole purpose of product liability law; to hold manufacturers responsible for the harm they cause when they produce products that are more dangerous than they need to be. This jury, and juries like them, help make the world a safer place for all of us. Volvo and other manufacturers will think twice the next time they decide whether to omit a safety device that would cost them only $5 per car to install.

On Tuesday, November 24, I took my two children (Sebastian, 12 and Nico, 10) to get their H1NI flu vaccination at the Bristol Field House at Hobart William Smith College in Geneva, Ontario County, New York, where we live. Although I firmly believe this was the right decision, I can never just "relax" when my kids are getting medical treatment, especially a new and relatively untested treatment such as this vaccine. A nagging voice in my brain always asks, "what if the authorities make a mistake, for example, give them the wrong doses?" This "what if" thinking haunts me more than most parents because of what I do all day long; I review and handle, among other types of personal injury cases, medical malpractice cases, in Geneva, Phelps, Penn Yan, Seneca Falls, Waterloo, Auburn, Weedsport and Syracuse, New York, and in a lot of other places in New York State as well. I see a lot of medical mistakes. I am therefore perhaps overly wary of them.

Maybe that little voice in my head wasn't so off base. I just read today that the Center for Disease Control and Prevention alerted residents of Needham, Massachusetts that a vaccine wrongly labeled H1N1 was administered to 47 residents. The residents were instead vaccinated against another strand of the flu. This happened on November 24, the same day my kids were getting vaccinated! The Massachusetts Health Department contacted all 47 recipients to inform them that they had gotten the wrong flu shot. Fortunately, no one got sick. The recipients are simply immunized against a more common seasonal flu and not immunized against the swine flu.

What if one of them contracts the swine flu and dies before he has the opportunity to get the REAL swine flu vaccine? In my opinion, the estate of that person would have a slam dunk lawsuit against who ever made the error. If it was a doctor or hospital, the case would be framed as a medical malpractice case. If it was a pharmaceutical company, the suit would be brought as a products liability case. Either way, I cannot think of a single defense that would defeat such a claim.

On the other hand, if the recipients of the wrong flu vaccine do not now diligently seek out the "real McCoy" swine flu vaccine, and then contract the swine flu and die, the defense could argue both that the deceased "failed to mitigate her damages" (legalize for "you could have prevented or minimized the harm to you but chose not to") and that the deceased''s own decision to not pursue the available swine flu vaccine caused her death rather than the pharmaceutical or medical error that occurred earlier.

My advice to those 47 Massachusetts residents: Go get that HINI flu shot as soon as you can.