Central New York Injury Lawyer Blog

A client of mine is having a very merry Christmas indeed. I already blogged about his Waterloo, New York car accident case. Guy was passenger in his buddy's car, who was stopped and waiting for traffic to clear so he could turn left into a driveway. Driver from behind, lost, looking at a map while driving, rear-ends them at full speed, causing them to flip over. Our guy ends up with a herniated cervical disc that takes him out of his welding job, for good, and requires surgery. The surgery helps, but does not rid him of the pain.

At first, there appeared to be no more than $100,000 in insurance, the policy limit of the driver/owner of the at-fault vehicle. There was no indication in the police report, or anywhere, that the negligent driver was doing anything but his own business when he rear-ended our guy. But an off-the-cuff remark by him at the scene -- about some "bovine sperm bottles" he had in his pickup truck -- tipped us off that perhaps he was working for some company that dealt in such products, even though he owned the vehicle and there was no company emblem or signage on it.

After some investigating, we turned up a California employer. The insurance carrier for the employer discloses a $1,000,000 insurance policy. Now we're talking! But still, we felt our client's case was worth more - what with all his pain and suffering, his completely altered life style, and the loss of his job.

We sued the employer and the driver. We got the judge to rule, without a jury trial, on "motion papers", that the defendants were liable and that our client had a "serious injury". Now all we would have to do was have a jury decide how much our client deserved. But just as we were getting ready for trial, and just after we made a full insurance policy limit demand of $1 million, the insurance carrier finally disclosed there was more --- another $10,000,000 excess policy!

The final result --- a $1.4 million settlement --- was obtained just the other day after a day-long mediation.

Our client is now having the merriest Christmas he has had in several years. And he is smart. He is making sure future Christmases will not leave him out in the cold. He is structuring his settlement into monthly payments that will take care of him for the rest of his life. The total amount of payments he will receive far exceed the cash value of his settlement.

So, yes, Virginia, there is a Santa Clause . . .

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

Hey Mr. tough guy. You had a really good New York car accident case after that car pummeled you from behind. It was all his fault. You were just minding your own business waiting for light to turn green when --- bang! --- that bozo ran right into you. Then your head snapped back and forth like a bobblehead doll gone bonkers.

A Central and Syracuse New York car accident lawyer like me could probably could have gotten that bozo's insurer to pay you some good money for all you have been through --- the pain, the pills, the physical therapy, the trigger point injections, and the future almost certain fusion surgery. But you blew it. How? You refused medical treatment at the scene, and then tried to tough it out for a month before you finally dragged your butt into a doctor's office.

Now the insurance adjuster won't pay your claim. This is how she is thinking: This guy's neck pain can't have been caused by the car accident because he never sought medical treatment, or complained about pain, until a month after the accident. If he were hurt in the accident, he would have immediately, or at least the next day, gone to the hospital. If I take this case to trial, I can probably get the jury to believe he decided to milk his neck pain for all its worth by saying it started right after the accident when in fact it did not start until a month later and had nothing to do with this car accident.

Mr. Tough guy, next time you get clobbered in your car, or on your motorcycle, or wherever, especially if it is someone else's fault, don't take any chances. Don't assume you can tough it out, that it will get better on its own. If some part of you hurts, for Christ's sake, get to an E.R. and get it checked out. You are not in a good position to judge the seriousness (or lack of seriousness) of your injury. Leave that to the professionals. The extent of your injury might not become fully apparent until later. If you check out fine, all you have lost is a few hours in the E.R. instead of being home watching T.V. And a lot of E.R.'s have T.V.'s! And aside from protecting your health, you get the side benefit of having documented that your pain started when you were struck. Then the insurance adjuster won't be thinking you are scamming her, or that she can convince a jury you are scamming her. She knows, and I know, that jury's are very skeptical of personal injury claimants like you.

Now get ready for trial because your case won't settle. And take some extra pills with you --- you will be sitting in the courthouse all week.

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

One thing I have learned as a Central and Syracuse New York injury lawyer is that almost no one over 30 has a perfect spine. If you are over the age of 30, and we were to take an MRI of your spine today, you would probably be surprised by what we would find. Unbeknownst to you, you probably have "degenerative disc disease" (called "DDD", which can include disc protrusions or herniations, spinal stenosis, bone spurs and other changes).

I hear you: "What, me, a spine disease"?! Don't be alarmed. A doctor friend of mine describes DDD as "gray hair of the spine". It's part of the normal aging process. We all get it sooner or later, and it is usually harmless, just like gray hair.

Even though most people with DDD have no pain at all, DDD can be associated with neck or back pain. The pain often begins with a traumatic event, such as a fall or a car crash. Many of my Central and Syracuse New York personal injury clients suffer from painful DDD. Although they were pain-free before their accident, the accident caused their asymptomatic (pain free) DDD to suddenly become painful.

How does this happen? Most doctors admit they are not sure, though there are several theories. Essentially, though, nerves near the DDD suddenly become inflamed or irritated by the DDD. In such cases, it is not the DDD on its own that causes the pain. It is the trauma (accident) that activates the DDD causing the pain. And the pain can be chronic, severe, and life-long. It can make life unbearable. It can throw a big monkey wrench into the business of living.

When one of my clients is hurt in a car accident, or in a fall from a scaffold, or is knocked around in any other way, and suddenly ends up with chronic, long term back or neck pain, the insurance company likes to blame all the pain on DDD, and none on the accident. They point to the x-rays and MRI's taken after the accident and say, "hey, this DDD we see here is causing this pain, and all this DDD was there before the accident, so how are we responsible for the pain?

But the insurance company's logic is flawed. Actually, it is deliberately flawed, and there's a word for that: "deceptive". They know perfectly well that the accident caused a harmless DDD to turn into a debilitating pain syndrome, but they refuse to take responsibility for it. They prefer to blame the DDD. Why? Because they can save money by not having to compensate accident victims for their lost wages, medical expenses and pain and suffering.

Only an experienced New York personal injury lawyer can combat this deceptive logic. If you have painful DDD caused by an accident, hire one!

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

Pain is the constant companion of many Central and Syracuse New York accident victims. Believe me, as a Central and Syracuse New York personal injury lawyer, I know! Let me give you a "for example".

The other day I took the trial testimony of an orthopedic surgeon who performed a type of surgery, called a "diskectomy and fusion", on my client's cervical spine. The sole purpose of this operation was to chase the pain out of her body. It was a gruesome operation consisting of slicing open the patient's neck, peeling back the skin and muscle, exposing the vertebra, shaving off two of the spongy discs that separate the vertebral bodies, replacing the discs with cadaver bone, and then screwing in a metal plate to hold the whole mess together.

There are many risks involved in the procedure, including stroke and paralysis. But my client gladly underwent the operation. And the fact that my client was willing, in fact eager, to go under the knife is the best evidence I have as to how much pain she must have been in. No one on the jury will be able to feel her pain, but the operation she was willing to undergo in the hope of removing at least some of it will make them understand, I hope, how intense the pain was.

Before agreeing to let her surgeon cut her open and monkey around with her spinal column, my client had tried every other medically approved neck pain treatment plan, all to no avail. My client lived in pain. Her pain would wake her at night, greet her in the morning, and take her to bed again at night. Her pain was like an uninvited dinner guest. My client tried many times to "disinvite" this guest, to no avail. I sometimes visualize the surgeon as the cop my client called to arrest this vicious intruder.

The operation did relieve some of the pain, and even relieved most of it for a few years, but, like an obsessed ex-boyfriend, it eventually showed up again on her doorstep again. That's what chronic pain is, really: a stalker.

Don't get me wrong; the people who opened the door to let this intruder, pain, into my client's body, did not do it on "on purpose". It was an "accident". They were negligent, careless, in causing the accident, not deliberate. My client is not seeking revenge. She is seeking justice. New York personal injury law, and justice, requires that the responsible parties pay for their mistake by compensating my client for her lost wages, medical expenses and, yes, her pain. Our law requires that those who act negligently or carelessly, and thus cause innocent others to suffer injuries, must fully compensate their victims. That's why people and companies have insurance; to fairly compensate victims of their mistakes.

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

OK, I'll admit it. I have never gotten a $66 Million Dollar verdict. Although all the lawyers in our firm have either gotten million dollar settlements or verdicts, and even multimillion dollar ones, we have never come close to that number. $66 million? That's a lot of money. That's a Western New York personal injury verdict record. And that's what a Western, NY jury awarded a woman who suffered severe spinal in a workplace accident last week.

I am sure there was very good lawyering here (hats off to Michael Law, a good friend of this law firm, and his partner Kevin English) but that alone can't explain a verdict of that size. In my experience as a Central New York personal injury lawyer, a jury will only give that much money away when (1) it really dislikes the defendant, and/or (2) the injuries are devastating beyond belief.

Both of these things appear to have been present here. This was not just a run-of-the-mill back injury. This twenty-something woman was rendered quadriplegic after a large piece of exercise equipment toppled onto her, shattering her cervical vertebrae, and causing massive spinal cord damage.

How did that happen? She was a massage therapist at a business that provided physical therapy. She leaned against a 600-pound "leg extension machine", which then toppled over on top of her. (How could that happen without some negligence on the part of either the manufacturer of the product or the owner who installed and maintained it? Answer: It couldn't). Her Rochester, NY personal injury lawyers brought a New York products liability claim against the manufacturer of the machine and a negligence claim against the business that owned and maintained it. The jury said that the manufacturer was the most at fault (75%) but that the owner was to blame, too (20%). The jury found that the plaintiff had barely any fault at all (5%).

My guess is the jury got angry with the defendants for refusing to accept responsibility for the accident (this same thing had happened to 7 other people before, so clearly there was something dangerous about this machine). The trial strategy, often employed by defense lawyers, of trying to blame the injured plaintiff for the accident can backfire big time, as it appears to have done here. Really, how could this poor young lady have been much to blame for this 600-pound machine, which she did not design or install, toppling over on her?

Quadriplegic cases often result in very high verdicts because of the great expense of long-term medical care. And when the victim is in her 20's, as here, multiplying the yearly medical care cost out into the future makes for a big number. Also, lost wages over a life time adds up.

Here, the jury determined that the injured woman's medical care would cost almost $30 million. In fact, almost exactly half the $66 million award was for "economic loss" (a life time of medical expenses and lost wages) and only half was to compensate her for pain and suffering and loss of enjoyment of life.

Is $33 million too much for her pain and suffering? What is having to live your life as a quadriplegic really worth? Would you allow me to crush your cervical spinal chord and render you quadriplegic if I paid you $33 million dollars? Think about it and let me know if this verdict was excessive.

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

I blogged just the other day about spine injuries and "pre-existing" or "degenerative" spinal conditions and how they can negatively impact New York personal injury and accident settlements and trials. My partner, David Kalabanka, a great Central New York personal injury lawyer, read the post and sent me the following email, which I think makes a great post itself. (By the way, David used to work as an insurance company defense lawyer in Syracuse. His job was to beat us in court! We litigated several Syracuse New York accident cases against him, and he defended them with such skill that we decided to bring him into our firm to work with us instead of against us. He came aboard about 8 years ago and never looked back. But I digress!) Here's David's email to me:

You should tell your readers that sometimes the injured accident victim has radicular symptoms. What are radicular symptoms? An injury may cause nerve root or a spinal cord compression or irritation. The irritation/compression follows the nerve that innervates another part of the body and cause pain there. The back is complex--and injury to a certain area of the back will cause pain in one or both feet The most commonly known back injury that causes pain elsewhere is sciatica where an injury to the back causes pain in the buttocks or the back part of the leg or calf. That is why it is so important for thorough testing, not just one time examination or review because an injury may not be what it initially appears to be. A foot pain could actually be originating at a certain level of the back and it may take the medical providers time to determine the actual source of the pain. An injury to the neck may cause pain in the elbow, wrist or hands or certain fingers depending upon where the injury in the neck is located.

Thanks, David, for your very astute email. You made today's blog post a breeze!

The Syracuse and Central New York accident law firm of Michaels & Smolak represent lots of people with spine injuries. That's not surprising; spine (neck and back) injuries are very common in car crashes, falls from scaffolds or ladders, slip and falls, and other accidents. But in the world of New York personal injury claims, spine injury cases pose special problems in court. Let me explain why.

Our injured clients often have never in their life had any back or neck pain, but ever since the accident they have had excruciating pain in the neck (cervical spine), or mid back (thoracic spine), or lower back (lumbar spine), sometimes with "radiculopathy" (radiating pain) down into the legs or arms. The pain is sometimes so severe it prevents them from working in anything but sedentary jobs, or from working at all.

But even though our clients never had any problems with their back or neck before the accident, after they undergo an MRI or CT Scan, the radiologist will sometimes say that their spine was already compromised before the accident. The radiologist will see evidence, in the MRI or CAT scan, of something known as "degenerative" spinal changes or disease. It might be a herniated disc (a protrusion or budge in the intervertebral disc that can compress nerves around the spine) or.a spinal stenosis (a narrowing of the spinal canal causing swelling of the tissue around the spine, which can compress the nerves around the spine).

Even though these "degenerative" conditions, which are caused by the natural aging process, were present before the accident, they were causing no pain or symptoms of any kind. That is why medical professionals refer to them as "preexisting asymptomatic degenerative disease".

Now here's the problem: Even though the accident caused the symptoms, and even though the client would probably never have developed the symptoms but for the accident, and even though the symptoms may now require extensive surgery (to relieve the pain), such as a fusion of the discs, or a "discectomy" (removal of a portion of the problem disc), the insurance company lawyers will argue that the accident did not cause the injury. Rather, they will argue, the injury was already there, and therefore, they are not responsible for compensating the accident victim.

And some juries buy that! That's why, when, as a New York personal injury lawyer, I read my clients' medical records, and I see the words "pre-existing" or "degenerative", I cringe. This is not good for my client's case. I know the insurance company will take those words and run with them. They will often try to low ball the settlement offer based on their argument that the injury was already there before the accident.

But it wasn't. What was there BEFORE the accident was merely a "condition", and a completely benign one (no pain!). What was there AFTER the accident was a painful disability, caused by the physical trauma of the accident.

We believe our clients are entitled to full compensation for the symptoms that the accident caused, regardless of whether underlying asymptomatic "degenerative changes" were already there. And many, but not all, juries agree with us. But in the end, it is the client's decision whether to risk a trial, where a jury may decide to discount his or her injury because the underlying condition was "pre-existing", or to settle, sometimes for less than they deserve, with the insurance carrier.

And we always support our clients, no matter what they decide.