Central New York Injury Lawyer Blog

I have a Syracuse New York wrongful death trial coming up in about six weeks. Six weeks may seem like a long time to you, but for preparing a complex trial, it is not. I started gearing up a few weeks ago.

The first thing I do is create a "to do" list for the trial preparation. As I get things done on my list, it feels good to cross them off. My list gets shorter and shorter.

In this case, my "to do" list is still quite long. There will be, I believe, more than 30 witnesses. I have to prepare "direct examinations" of the witnesses I am going to call, and "cross-examinations" of the ones I expect my opponents to call. And you don't just "wing it" up there. No, that's a recipe for disaster. You have to plan out carefully every line of questioning, and have exhibits and deposition transcripts ready to confront any witness who strays from the truth!

Another thing I do before a trial is look at how other experienced lawyers have handled similar trials. This is a wrongful death claim, so will watch some DVD's of opening statements and summations given by other lawyers in wrongful death trials. This gives me fresh ideas of how to structure, organize and present this kind of case.

You also have to figure out how to get all the exhibits into evidence, what witnesses to use to talk about them, and anticipate objections you might receive from opposing counsel.

And that's just the tip of the iceberg.

If you watch "Law and Order" or other TV law programs, you might think being a trial lawyer is just about going to court and trying cases. But that's only about 5% of it. The other 95% is preparation at your desk, on your computer, and on the phone or in conference with witnesses. I can't say it's exciting, and sometimes it's downright boring, but it's absolutely essential.

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

Just read a great article in the New York Times about developmentally disabled people in New York State care, or in the care of not-for-profit homes charged by the State to care for them, who die for "reasons other than natural causes". Check out the stats: One in six such deaths in the past decade have been chalked up to "unnatural" or "unknown" causes. Other states, like Connecticut and Massachusetts for example, count only 1 in 25 such deaths.

The Times, God bless their soul, undertook its own analysis of death records, to find out just what these poor folks were dying from. What they found is very disturbing: Many of these deaths result from errors and preventable deaths, such as drowning in bath tubs where the disabled were not supposed to be left alone in the tub, or choking on food when they were not supposed to be left alone with food; or falling down stairs when they were not supposed to be navigating stairs on their own. Some of the mentally disabled simply ran away, repeatedly, until they died out on their own.

The Times further found that these preventable deaths rarely resulted in measures being implemented to prevent the same mistakes from recurring.

Is this shocking? Yes. Surprising? Maybe for you, but not for me. Why? Well, you might think the State and these private homes would get the pants sued off of them for their deadly neglect, which would cause an about face. But I know better. As a New York personal injury lawyer, the most telling part of the article for me was this sentence: "Lawsuits are relatively rare after the deaths of developmentally disabled people in New York, in part because economic damages are difficult to prove, given that the victims are seldom employed".

The Times is absolutely right. Under New York's wrongful death law, a case can be brought to recover only the "economic loss" to the estate of the deceased. In other words, the family members who the deceased was supporting have a right to claim the "economic loss" of the support money they no longer receive because the bread-winner died. Most states, unlike New York, also allow surviving family members to sue for their grief, but New York does not.

Where does that leave New York victims of wrongful death who were not supporting anyone, such as children, the elderly, or the mentally or physically disabled? In the trash bin, that's where. Their lives are worth NOTHING under New York's antiquated, extremely unjust wrongful death law. I have blogged repeatedly about how unfair this rule is. See my prior blog posts below.

But this law is not just unfair. New York's wrongful death law is literally KILLING US. New York State and the not-for-profit homes that care for the disabled know they can, with impunity, neglect their charges, cause their death, and pay nothing to compensate the family. With no price to pay, why should they bother mending their ways?

To be fair, there is one kind of death claim involving disabled people that New York personal injury lawyers might find worth while pursuing. That's where there is proof of considerable conscious pain and suffering before death. The estate of the deceased, even a deceased disabled person, has a right to claim compensation for that pain and suffering. But since these poor souls often die alone, without witnesses, those cases must be rare.

Still, if you have a case where a mentally or physically disabled family member died from neglect while in New York State's care, or in a private home-for-the-disabled's care, call me. I would love to sue these guys to teach them a lesson! Lawsuits like that would make them think twice before neglecting their next victim.

Related blog posts:

New York Wrongful Death Law: A Travesty Of Justice For Elderly Victims Of New York Nursing Home Malpractice and their families

New York's Wrongful Death Law Is Wrongful

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 Death Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

People sue for different reasons, and usually for a combination of reasons. When accident victims hire me to file a New York personal injury lawsuit, they often seem apologetic for having to sue, explaining to me, "I'm not the suing type, but . . .".

Usually their voice turns a little angry after the "but", as they explain the reason they must sue. Often it is because the person or company that injured them didn't seem to give a damn about their safety or did not even apologize. They want to make them pay for their wrong.

Very, very often people sue because they have no choice; they can't work and can't pay the medical bills, and they need to sue just to stay afloat.

Sometimes, though, personal injury victims voice a different reason for suing. They say something like, "if I don't sue them, they will keep on doing this, and others will be injured, too. I don't want anyone else to have to go what I am going through". I call this the "social conscience lawsuit". This is a noble reason to sue. It is selfless. It is about social justice and the public good.

Suing people and companies who carelessly cause injuries helps reduce injury-producing behavior. Such lawsuits prevent future injuries by "teaching a lesson", not only to the careless or heartless defendant, but also to other people and companies who want to avoid getting sued. Those people and companies are likely to "mend their ways" if they feel the sting of a lawsuit, or see others who act like them getting sued.

Which brings me to the subject that prompted this blog post: A "social conscience" New York wrongful death lawsuit was recently filed by the mother of a dead 19-year-old sophomore fraternity "pledge" of the Sigma Alpha Epsilon fraternity at Cornell University. He was "kidnapped" by his would-be "brothers", then tied up, blindfolded, and made to answer trivia questions about his fraternity. Wrong answers were punished with, among other things, forced vodka drinking. Eventually he passed out and died of alcohol poisoning.

This was not the first time. Since 1997, this same national fraternity churned out 5 similar deaths.

So the boy's grieving mother sued the fraternity. Why? I love this quote from her: "With the death of my son, I find some comfort in knowing that this lawsuit may bring about changes in fraternities that will prevent other families from suffering as I have."

Yes, personal injury lawsuits help make the world a safer place. And so do brave litigants such as this grieving mother. Courage -- and good luck -- mom.

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

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

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

I can think of three:

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

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

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

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

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

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

Don't be a fool with a pool.

Keep safe!

Mike Bersani

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

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

1-315-253-3293 Toll Free 1-866-698-8169

Swimming pool season is almost here, which means lots of fun and relaxation for many New Yorkers who will finally get to "take in some rays" on the pool deck after an especially long, cold and snowy winter.

But today I had a grisly reminder of the dangers that lurk in pool areas. Two toddlers were pulled from a swimming pool at a Buffalo home on Easter Sunday. One of the boys, only 2 years old, somehow got under the pool's solar cover. He was unresponsive when they pulled him from the water and is now in critical condition at Woman and Children's Hospital. The other boy fared better --- he was found on top of the pool cover and is in good condition. The boys were at a family Easter gathering at the home. Let's hope and pray that the boy in critical condition makes a miraculous, full recovery.

As a parent, reading news stories like this one reminds me of all the nightmares I have ever had about something terrible befalling one of my children because, perhaps for only a second, I was distracted. I once I lost a 3-year old in Kennedy Airport! Fortunately, I found him after what seemed like an eternity, but probably was more like 2 minutes.

For some unfortunate parents, my nightmares are their realities. Last year I blogged about a New York wrongful death case I handled involving a three-year old toddler struck and killed by a car after he had wandered off from his father, who was distracted with an even smaller child.

Let's face it; the world is a dangerous place, but especially for toddlers, and pool areas are right up at the top of the most-dangerous-place-for-toddler list.

Keep that in mind parents.

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

So what rights would we New Yorkers have to compensation in the event of a New York Nuclear Power Plant Catastrophe?

Let's assume that Oswego's Nuclear Power Plant suddenly broke down and started spewing out dangerous radioactivity, just like in Japan. Let's assume your family ended up sick, or dead, and that you had to move out of your home --- forever --- and that its market value was reduced to zero dollars. Can you sue the Power Plant owner? If so, for how much?

Well, I've got some bad news for you. Even though under New York common law principles you would be able to sue the power company for every penny of compensation you were entitled to for all those catastrophic losses, a not-well-known federal law trumps New York law, and would probably force you to accept pennies for every dollar you would otherwise be entitled to.

The law is called the Price-Anderson Act of 1957, and it places a damages cap on the liability of nuclear power plant owners or operators. Under this Act, the power plant owners or operators pay an insurance premium each year to create a kind of "no-fault" system for paying damages caused by nuclear accidents. The total payout available from the fund for personal injury and property loss for nuclear accidents amounts to only about $13 billion.

I say "only" because that's such a small amount of money considering the devastating, widespread catastrophic damages a nuclear disaster would unleash to hundreds of thousands of our local central New York residents and businesses. In fact, the damages that would result from a major nuclear catastrophe are estimated at more like $500 billion.

The stated intent of the Price-Anderson Act was to foster commercial development of nuclear power. But what ever happened to the free market system? Why shouldn't big power companies have to pay full dollar for catastrophes that, through their negligence, they unleash? The Act, which seems to me extremely unfair, survived a constitutional challenge in 1978 in Duke Power Co. v Carolina Environment Study Group

Who pays the price for this generous "gift" our federal government gave to the power industry? You do, of course. Should, god forbid, our local nuclear power company, through its negligence or carelessness, unleash a Japan-like disaster, none of us will get anything even close to true justice. We will be stuck with the pennies-on-a-dollar compensation provided for in the Price-Anderson Act. And as a Central New York personal injury lawyer, that both offends and scares me . . . .

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

It's nice to win. And this Central and Syracuse New York personal injury and wrongful death lawyer recently won an appeal for the widow of a wrongful death victim in a Syracuse wrongful death lawsuit. The case is about a tragic accidental death that got extensive news coverage all over New York State. I have received phone calls from lawyers from other parts of the country about this case. Some have asked me for copies of my arguments (Brief) in the appeal.

What's the case about? I am not at liberty to discuss the facts of the case in this blog for reasons I will explain below.

But first let me tell you that this was the second time the appellate court reversed the trial court in this case. Each time, the trial court had thrown my case out, and each time the Appellate Court reversed and reinstated it. I am sure the trial judge did the best he could each time. But the case involves difficult, novel New York wrongful death legal issues, and even I did not know how the Appellate Court would resolve them. I feel fortunate to have won, twice now. And guess what. A third trial court decision is coming, and after that, a third appeal. How do I know? Well, I know I will appeal if I lose, and the defendants will do the same if they lose. It is a big case. Both sides are giving it all they've got, fighting tooth and nail.

Now here's why I can't give you more facts about this case: After I won this second Appeal, a Syracuse TV reporter called me and asked if she could come out to my office in Auburn and interview me for a News story about the case. I told her, "I'll check with my client to see". I did check with my client, the wrongful death victim's widow. She did not want me to talk to the press. So I called the reporter and said, "no thank you". And that is why I am not at liberty to tell you about this case. I don't believe my client would like me too discuss it here, since she did not want me to talk to the press about it.

Would I have rather been on TV? Yes and no. "Yes" because it would have been good publicity for my firm and me, and might have attracted other Central and Syracuse New York personal injury and wrongful death cases to my firm. But "no" because I really don't like trying my cases in the press, either. I am kind of like my client. I like to keep a low profile and quietly go about seeking justice for my clients.

In any event, the important thing is to respect the client's wishes. A lawyer has to remember that the client's interests always come first.

Convenience and safety often clash. Quick example: In the old days, before the era of car seats and booster seats, getting the kids into the car was so easy, so convenient. You just threw them in and off you went. Early on, there weren't even seatbelts. Only problem was that kids were getting mangled, crushed and killed in car accidents. Enter car seats and booster seats. What a pain in the a--! All that strapping in, tying down. Inconvenient, isn't it? But safe.

Now let's take cribs. Several decades ago some smart engineers invented a great convenience: Drop-side cribs (see photograph featured here). No more leaning over the side of the crib to awkwardly place baby to bed. It was a hit!

Only problem was babies were dying. The drop-side sometimes created a V-shaped gap between the mattress and side rail where babies got caught, suffocated and died. At least 32 infants have died this way since 2000.

When you think of all those babies, thousands of them, who have successfully used drop-side cribs over the last decade, 32 deaths do not seem like a lot. Unless it's your baby. Then it seems like way too many. Then, after you have buried your baby, and have cried rivers of tears, you may say to yourself, between spasms of guilt and grief, "hey, the guys who made this crib knew that other babies had died in them, but they sold it to me anyway. They made money. And they killed my baby". You might long for justice. Then you might stop in to see someone like me, a New York defective product lawyer. And then together we might file a New York products liability lawsuit against the company who put the baby-killing product on the market.

Many of the companies who made these cribs had recalled them over the year. They knew they had a problem. And despite repeated attempts, they were unable to design or manufacture a fool-proof drop-side crib. So last Wednesday the Consumer Product Safety Commission finally voted unanimously to ban the manufacture, sale and resale of the cribs.

The ban makes sense. Convenience is not worth the lives of 30 babies a decade.

The Auburn Citizen recently reported on a Cayuga County Nursing Home Negligence case, and that's my topic for today.

At first blush, it seems like a compelling case. The nursing home's negligence is clear cut. So clear cut that when the State Department of Health cited the Home with violations, the Home almost immediately paid the $12,000 fine without protest. And the resulting injury was severe; death! And the nursing home has been sued. But even though the negligence is clear, and the injury severe, I may have declined to take this Auburn New York nursing home negligence wrongful death case. Why?

Glad you asked. First, a few facts. The nursing home nurses gave this 94-year-old resident (I'll call her "the victim") the wrong medication. The mix-up happened because two drugs' names - metolazone and methimazole - have many letters in common. But in fact they were nothing alike; one would help treat this woman's ailments and the other would kill her. (New York prescriptions errors like this one are, unfortunately, all too common). The mistake started when a pharmacy (which has also been sued) entered the order incorrectly, but the nurses failed to detect the mistake and gave the victim this wrong drug repeatedly.

During 18 days, the victim developed symptoms that should have tipped off the nurses that something was amiss; she developed an inflamed large intestine and became wane and dehydrated and then suffered an "unresponsive episode". The victim eventually died of heart problems from kidney failure aggravated by the medication.

Sounds like a great case, right? So why might this Central New York wrongful death lawyer have rejected the case?

The problem is not the facts of the case, which are compelling, but rather New York wrongful death law. Unlike the law in almost all other States, New York wrongful death law does not allow for compensation for the grief of family members. The law allows only for "economic" loss, which means funeral expenses and any loss of economic support to close family members (spouse and children). But when you are 94 and in a nursing home, you aren't supporting anyone, and therefore you have no compensable loss under New York wrongful death law, except perhaps for some funeral expenses.

The only way this case makes economic sense to bring is if the victim endured, before she died, "conscious pain and suffering" as a result of the prescription error. If she did, her estate can claim compensation for it. From the newspaper article I have read, it seems there might be a problem proving that the patient endured any conscious pain and suffering. But I could be wrong. I would need to review the medical records and talk to the family members and other witnesses to find out.

My point is that New York wrongful death law often results in a travesty of justice for elderly victims of medical malpractice and their families. Negligent and careless doctors and nurses can almost literally "get away with murder" as long as the patient experiences no conscious pain and suffering. Fair-minded people have been lobbying Albany for years to change the law, but the insurance and doctor lobby has pushed back all assaults on this horrendous law. Maybe one day justice will prevail . . . .. Let's hope so.

related posts:

Central New York Prescription Malpractice Lawyer Explains How Medication Errors Happen

>Syracuse Medical Malpractice Lawyer Explains: Medical Malpractice Is Killing Us.

Federal Law Regarding Compensating Wrongful Death at Sea Is, Like New York's Wrongful Death Law, Unfair and Harsh

Syracuse Malpractice Lawyer: Nursing Home Neglect and Maplractice Is Pandemic, As Demonstrated by Recent Fines Issued to Syracuse Nursing Homes.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

A small, inconspicuous article caught my eye in the Geneva Finger Lakes times today. It was titled, "Teen Inmate Found Hanging in Jail Cell" and described how a 17-year old at the Yates County Jail in Penn Yan had apparently hung himself Friday evening by tying his bed sheet to his jail bars.

New York prison suicide lawyers know that suicides like this are usually preventable.

The kid was only 17-years old! Think of his poor family! Unlike prisons, which house convicted criminals, county jails hold many pre-trial detainees who may have committed no crime at all. The ones who are jailed there post-trial are usually guilty of lesser crimes. This young prisoner may have been just a bone-headed kid who temporarily ended up on the wrong-side of the law, and who would have eventually become a good, upstanding citizen.

Here are some facts that might surprise most my readers: (1) the family of a jailhouse suicide victim has a potential New York wrongful death claim against the jail authorities for having failed to prevent the suicide and (2) prison suicide is not at all uncommon, especially in small jails.

As for number (1), New York prison authorities have a legal duty to prevent a prison suicide when they know or should know that a prisoner is prone to suicide. The prison guards must use reasonable care to assure that such a prisoner does not harm himself. Therefore, proper and thorough screening of a newly admitted inmate is essential in determining suicide risk, and if there is a risk, proper monitoring and supervision is required.

Unfortunately, smaller jails, unlike maximum security mega-prisons (e.g., Auburn, Attica), often suffer from inadequate and undertrained staff who don't properly screen inmates for suicide risk, and later fail to monitor and supervise them to prevent suicide. Further, small county jails often lack proper anti-suicide equipment such as tear-proof blankets and sheets that can't be turned in suicide ropes (as this 17-year-old inmate did with his sheets).

Most rural counties, such as Yates, are struggling to just meet the basic federally mandated requirements for jails. They cut corners on needed anti-suicide training, staffing and equipment. But these cost-cutting measures wind up costing lives in smaller jails, where, according to Bureau of Justice statistics, 2/5 of all deaths are from suicides.

Some jails are worse than others. For example, the Erie County jail is under investigation by the Department of Justice for having 5 times the national average in suicides.

The highest suicide rate is with newly admitted inmates. Some may be depressed following the events that led to their arrest, or from the mere trauma of being arrested and jailed for the first time. About a quarter of suicides happen within 48 hours of admission, and half occur within the first week. That's why initial suicide-risk screening is so important.

People charged with crimes need to be temporarily incarcerated until bail is established. People who are convicted of crimes need to pay the price. But jailhouse suicides are preventable, And suicide is not part of our criminal justice system. This is especially true when the jailed person has not even been convicted of a crime.

In this New York personal injury lawyer's humble opinion, the family of a jailhouse suicide victim should always check with a New York jail suicide lawyer to investigate whether a claim can and should be brought against the jail or prison authorities.

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

Laws should be fair and just, but are sometimes unfair and harsh. Think of the laws that allowed slavery, and later the Jim Crow laws. Think of the Nazi laws that allowed Jews to be arrested and deported or worse just for being Jews. Or think of the Roman laws that allowed Jesus to be crucified. All these laws were perfectly "legal" and they were carried out "by the book"!. So don't think that just because it's the law, it's right.

Those, of course, are extreme examples of unfair, harsh laws. But lesser examples of harsh, unfair laws abound in our law books even today.

The families of the 11 workers who died in the Deepwater Horizon explosion are now discovering how unfair and harsh one of our laws is. In their lawsuit against BP for the loss of their loved ones, they are limited, by a 90-year old Federal law, known as the Death on the High Seas Act, to "pecuniary loss" compensation, which consists mostly of lost income stemming from their loved one's death. They have no right at all to claim compensation for their grief, loss of care, comfort and companionship, and emotional suffering.

But when someone dies, his or her close family members lose far more than just money. Indeed, the emotional loss that death provokes is one of the most profoundly painful experiences a human can endure. Maritime law, however, does not recognize that loss, or compensate it. This harsh law will limit compensation to YOUR family, too, if you die at sea, for example in a cruise ship.

But here's good news: The BP Gulf of Mexico rig explosion that killed 11 workers has brought to the fore the harshness and injustice of this old law. As a result, a bill has been proposed in Congress, HR 5503, entitled "Securing Protections for the Injured from Limitations on Liability Act" (SPILL Act), which would, if passed, change this old, outdated law to (among other things) permit recovery of non-pecuniary damages (e.g., grief, loss of care, comfort, and companionship of the dead family member) by the family of a decedent killed at sea. You can read all about it on this CNN report.

It is time we recognize the gross injustice of denying a grieving family compensation beyond mere "pecuniary loss". But don't take it from me. Take it from Keith Jones, who lost his son, Gordon Jones, aboard the Deepwater Horizon rig. Gordon left behind a pregnant wife and a small child. Under current law, they will get nothing for their sadness, suffering and grief. BP won't have to compensate the fatherless children for the loss of their dad's love, guidance and nurture. Before the House Judiciary Committee, Gordon Jones testified that: "I want to say how offensive it is when the law recognizes only pecuniary loss in cases like these eleven deaths. . . Please believe me; no amount of money can ever compensate us for Gordon's death. We know that. But this is the only means available to begin to make things right."

Now let's shift the spotlight from Federal Law to New York State law. As a Central New York personal Injury and wrongful death lawyer, I am outraged and embarrassed to have to tell you that New York is one of the few States in the Union that does NOT recognize emotional loss in wrongful death cases. Compensation is limited to pecuniary loss. In other words, New York's wrongful death law is just like the Death on the High Seas Act that some in Congress are proposing to change. And it is just as outdated, unfair and harsh. And it is just as in need of change.

I have blogged about this before. Now's the time. New York should follow Congress' lead and revamp its Wrongful Death law.

This photograph was taken at the Geneva, New York YMCA swimming pool last Friday, June 18. That big kid in the middle who looks a lot older than the others is me. The occasion was the last Friday evening swim outing of the school year for the Boys & Girls Club kids of Geneva. Every Friday after work during the spring months I take about 11 of them with me in a van to the YMCA pool where I teach them how to swim and to safely enjoy the water. Most of them have never been in the water before they came with me. Some of them stay with me for several years.

Why do I do it? Lots of reasons, really. Giving back to the community. Really caring about children (I have five myself!). Paying back a debt I owe to the world for being so damn lucky in life. But here's another reason: To save lives.

You see, drowning is the second leading cause of accidental death among children. And one demographic in particularly at risk. Which one? Take another look at the photo. Yes, mostly African American kids. As discussed in a recent ABC news report, black children drown at three times the rate of white children. This is because while 60% of white children can swim, only 30% of black kids can.

As a Syracuse and Geneva New York area personal injury attorney, I also handle New York child drowning cases. These cases just drive me crazy, because the harm is so preventable! Usually the accidental drowning claim is brought against whoever was in charge of supervising the child that drown, or against the pool owner for not providing a secure, safe pool. Research shows that proper use and installation of barriers or fencing, as well as additional layers of protection, can prevent child swimming pool drownings.

But there is a layer of security that goes beyond proper supervision and proper pool safety. I am talking about teaching kids to swim. It's very simple, really: Kids who can swim usually don't drown, and kids that can't, often do, So in my little corner of the world, in Geneva, New York, I am helping kids, mostly black kids, learn how to swim away from those disturbing statistics.

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.

Today I read news reports that, on Friday evening, December 5, a woman drove her car into a pedestrian in Cicero, Onondaga County, New York. Twenty-nine-year-old Leann Doyle of Canastota struck 51-year-old Joanne Schoenfelder of Bridgeport while she was standing in front of a residential mailbox on Route 298. The car accident happened at about 7:30 p.m. The Ciceroauto accident victim was taken by ambulance to SUNY (University Hospital) in Syracuse where she was pronounced dead. It is not clear whether the pedestrian killed by the car was standing in the roadway or on the shoulder.

I didn't read these news reports like a NORMAL person. Instead, by force of habit, my personal-injury-lawyer brain began dissecting and analyzing them as I read. Let me share with you my legal thoughts as I read of this tragic accident.

First, without knowing more about this case, it is hard to determine whether the driver, pedestrian, or both were at fault. If the pedestrian's family files a claim for wrongful death and conscious pain and suffering against the driver, the jury will be allowed to tag each side for its percentage of fault. This directly affects the verdict. For example, if the jury determines the case is worth $1,000,000, and that the driver was 70% at fault, but the pedestrian was 30% at fault, the plaintiff (pedestrian's family) would end up with only 70% of the $1,000,000, which is $700,000. The verdict is "discounted" to the tune of the victim's percentage of fault.

In this Cicero case, what would make the pedestrian "at fault", at least a little? Perhaps she was standing out in the roadway, rather than on the shoulder, or was wearing dark clothing (it was night time), or was standing with her back to traffic, or was talking on her cell phone, was distracted, was not watching traffic, etc. Believe me; the driver's insurance company lawyer will be combing the evidence for such arguments.

I also thought about how the proof would go at trial. Obviously, the dead pedestrian can't testify. The driver is thus the only living eye witness to the accident. Surely she will give testimony favorable to herself. Won't this make it easy for the driver's insurance company to beat the pedestrian's claim?

Not so fast. New York State courts have adopted a rule known as "the Noseworthy Doctrine" (first established in the case of Noseworthy v City of New York, 298 NY 76), which permits the jury to draw an inference in favor of the dead victim of a car accident such as this one. Since the dead victim can't speak for herself, the law allows the jury to tip the scales a little in her favor.

The physical evidence at the scene may also help the pedestrian's case. For example, the length and location of the skid marks can help determine the speed and location of the car in the roadway, and the physical damage to the car and injuries to the pedestrian can help determine the location of the pedestrian.

In sum, this pedestian's family needs to quickly retain a good wrongful death lawyer who understands New York State motor vehicle accident law and how to properly investigate such claims.

Let me tell you about another heartbreaking wrongful death settlement. Heartbreaking for two reasons, as I will explain below.

A middle-aged married woman was walking to work in Geneva, Ontario County, New York. To get to work she had to cross Routes 5/20, also known as Hamilton Street. She crossed in a crosswalk, which meant she had the right of way, and vehicles traveling down Routes 5/20 had to yield to her. But the driver of an 18-wheeler, who was traveling along Routes 5/20, mowed her down. She did not survive.

Her heartbroken widower sought out a Geneva

The widower's emotional loss dwarfed his economic loss. But New York's wrongful death law turned a blind eye to all that grief, and,instead offered him only compensation for his economic losses. But he didn't even want compensation for that! He wanted compensation for his REAL loss; his emotional loss.

I am sad to report that he did not get compensation for that, and therefore, he did not get justice. Chalk another one up to New York's very wrongful,

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