thOne thing I love about being a personal injury lawyer (besides all the great jokes that go with it) is that there is always room for improvement.  Yes, that’s right.  Even after twenty-five years of representing injured people against big companies and insurance carriers, I can still learn to do my job better.  Since I can always strive to get better, I never get bored with this job.

Case in point:  Recently a very accomplished fellow New York personal injury lawyer recommended a book to me, “Advanced Depositions”, by Phillip Miller and Paul Scoptur.  The book is designed to teach experienced personal injury lawyers like me additional skills for taking depositions, especially of experts and “tough” witnesses who might be evasive or tricky.

I admit I picked up the book somewhat skeptically, figuring I would already know everything in the book and that it would be a mere “refresher” course for me.  But I was wrong.  I learned some knew techniques for “boxing in” witnesses, for “exhausting” their knowledge on a topic, and for ensuring that the deposition transcript reads well so the jury can easily understand the “points” I scored.  I also learned better ways to make corporate witnesses concede that certain safety rules apply to the conduct of their employees, and even perhaps to get them to admit the rules were broken.

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I am a resident of Geneva, NY, and a personal injury lawyer with experience in “toxic torts”.  I have been following closely the developments regarding the high lead and arsenic levels in the area surrounding the old foundry in Geneva. It is a sad, unfortunate mess.  I feel deeply for the foundry neighbors, especially those who have had children grow up in the area.  If nothing else, the anxiety and fear must be overwhelming.  Many blame — and have filed notices of claim against — our government officials (DEC, Department of Health, etc.) for having failed to notify them of high toxin levels years ago when they first found out about it.  Longtime residents’ worry, fear, and anger are visceral.

As a lawyer, I wish I could bring them good news, some hope that our justice system will eventually bring fair and equitable compensation to those affected.  Unfortunately, I can’t. I have been approached by several Genevans to represent them against the City, the State, DEC and other governmental entities, but have declined.  One of the reasons I have declined is that the plaintiffs (the residents and property owners in the contaminated zone) are unlikely to prevail with their claims against the City, State, DEC, etc.  I am not saying the cases are hopeless, or that winning is impossible, but I can say without a doubt that the cards are stacked against the claimants.  Let me explain.

What Is A “Toxic Tort” and Who Can Be Sued?

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You might think that if you or someone you love gets hit by a commercial truck in New York you should seek out a New York car accident lawyer.  You would be wrong.  Suing a commercial trucking company for personal injuries is NOT the same as suing for a run-of-the-mill car accident.  You need a lawyer who is experienced and knowledgeable in the hyper-specialized field of truck accident litigation.

Don’t get me wrong.  There are many important similarities between truck accident and car accident litigation.  For starters, both trucks and cars are subject to the New York Vehicle & Traffic law, a set of “rules of the road” that applies to all vehicles on New York State roads (even bicycles!).  Thus, for example, all vehicles must stop at stop signs and red lights, yield at yield signs, and signal turns, etc.

But in addition to being subject to the New York Vehicle & Traffic Law, commercial trucks are subject to the Federal Motor Carrier Safety Regulations (FMCSR)(adopted and codified in New York under Title 17, Section 820).  This is an additional set of safety rules that applies only to commercial trucks.  A lawyer with a working knowledge of these rules is better armed to take on the trucking insurance company.  He or she can find additional ways to lock in liability against the negligent truck operator, his employer, and the owner of the tractor and trailer.

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Medical professionals are getting away with murder!  How?  By a New York law that says victims of medical malpractice have only two and a half years to sue the doctor/hospital or other medical professional who negligently injured them, and only two years to sue for wrongful death (CPLR 214-a), REGARDLESS OF WHEN THE VICTIM FOUND OUT THAT THERE WAS A MEDICAL ERROR OR THAT THEY WERE INJURED BY IT.

Here’s an example of the cruel workings of this rule:  Patient gets a lung or breast ex-ray or mammogram.  Radiologist says it looks good.  Three years later patient is diagnosed with stage-four lung or breast cancer.  The new doctors look back at that ex-ray taken three years earlier, which clearly shows the cancer.  The radiologist three years ago clearly overlooked it.  If the cancer had been timely diagnosed, full recovery was likely.  Now it is too late – the patient is dying.

Can this unfortunate patient or her family sue the careless radiologist?  NO!  Not in New York.  That’s because the two-and-a-half year statute of limitations runs from the date of the malpractice, not from the date when the patient discovers the malpractice.

courtroom-300x199Winning is fun, especially when it’s a win not only for your client, but for many other people as well.  I am proud to say I recently helped win a victory for people injured through the negligence of governmental entities such as counties, cities and school districts.  In New York, these entities are known as “public corporations”.  Let me explain.

The case, Newcomb v Middle Country Central School District, was about a teenager struck by a hit-and-run car while attempting to cross an intersection near his high school. He suffered a life-altering brain injury.  His parents hired a lawyer who, among other things, tried to investigate whether other people, besides the driver, might have contributed to accident.  In other words, was anyone besides the driver at fault?  The lawyer did everything he could to get his hands on the police file.  But unfortunately the police delayed eight months in getting the lawyer the photos of the accident scene, the police report and other investigative materials.

Once the lawyer got the photos, he noticed that the School District had placed a temporary sign (announcing a high school musical) at the corner of the intersection.  The sign appeared to obstruct the line of sight between pedestrian and driver. This was likely a cause of the pedestrian not seeing the car approaching, and the driver not seeing the teenager as he stepped off the curb.

I came across a New York Times article the other day with the above title.  I didn’t have to read the article to know it was true; having worked as a New York car accident lawyer for more that two decades, I have personally witnessed the effects of smartphones on driving accidents.

Some of the apps for smart phones out there seem almost designed to kill drivers (and those they collide with). Take for instance the “snapchat” app’s speed filter.   Want to impress your friends as you are driving along the highway?  Ratchet your speed up to 120 miles per hour and then snap a video of your view from the car. Now you can post the video on snapchat instantly.  Your friends will see the video with your speed — “120 mph” — superimposed on it.  They will think you are so cool!

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Another dangerous app is Waze.  Full disclosure:  I love Waze. I use it every time I am driving in big urban areas like New York City or Philadelphia.  It works just like any other navigator but it actually finds you the quickest route to get where you are going based on the current traffic conditions, including construction slow-downs, roadway accidents blocking traffic, traffic jams, and even objects in the road blocking a lane of travel.  But how does Waze know about all these conditions?  Other Waze users observe these conditions as they drive by and then hit buttons on Waze’ app screen to notify Waze about them.  Those drivers might feel like good Samaritans by helping other Waze users steer clear of traffic obstructions, but they are risking their own and other lives by paying attention to their phone screen instead of the road.

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I blogged sometime ago about a New Jersey case where a Court found that someone sending a text to someone else who he knows is driving can be held liable — along with the driver — for the resulting crash and injuries caused to others. What was new was the Court extending liability to  include the outsider –  who may be thousands of miles away — who is participating in the texting with the driver.

A Pennsylvania court soon followed New Jersey’s lead.  In that case, a volunteer firefighter was stopped to make a turn on his motorcycle. A texting SUV driver rammed him from behind, causing him to die. The man’s family sued not only the driver, but also the person who had sent the driver the text.  (The police obtained a search warrant and found the text still open on the texting driver’s phone).  A Pennsylvania judge  allowed the legal theory that the sender of the text was also liable to go forward to a jury.

In Pennsylvania, however, sending texts to a driver can now be a crime.   Last week Gov. Tom Wolf (D) signed a bill that criminalizes the practice, and allows courts to mete out penalties of up to five years behind bars for a non-drivers texting with drivers involved in  fatal crashes.  So we are talking not only about civil liability, but criminal liability as well.

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We did it again!  Once again, Michaels & Smolak has been named in the annual U.S. News & World Report “Best Law Firms” in the practice area of both Personal Injury Law and Products Liability.  Is this a small honor? No it is not. The Michaels & Smolak Law Firm was the only personal injury law firm anywhere between Syracuse and Rochester (not including those two cities) to be named to this nationally recognized 2017 directory of top personal injury law firms in the United States.  Moreover, we are one of only three Syracuse area firms to be ranked in the “first tier” of personal injury law firms in the directory.

Awards are nice.  It sure is great to be recognized for our hard work and success.  But in the end “awards” are not the “rewards” we seek. Winning for our clients is its own reward.

The four Michaels & Smolak lawyers are so proud of our team’s incredible successes over the years.  Hard work and authentic concern for our clients have paid off.  Our support staff is the best!  And of course we could never have reached this high place without amazing referring attorneys and clients who put all their trust and confidence in us. To all of you, we give you our eternal thanks.

banana peelMy mom is turning 89 in about a month.  Her short-term memory is tarnished, but otherwise she is doing just fine.

I worry about her, though.  One thing I worry about, especially with the winter months now approaching, is her falling.  As a personal injury lawyer, I see a lot of slip-and-falls, trip-and-falls, and all other kinds of falls!  So I know first hand the kind of serious harm a fall can cause.

So far mom has avoided any falls at all in her senior years.  Will her luck continue?

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Car accident fatalities are on the rise.  Why?  You probably know (especially if you regularly read this blog):  Smart phone texting and social media.  Drivers, especially young ones, are crashing as they gaze down at their phones.  Sure the texting driver is liable, but is anyone else?  What about the friend that was texting to the driver and who knew he was driving?  An appellate court last year in New Jersey said, yes, that guy can be liable, too.

But here’s a new twist:  What about Apple or other companies that make the phones that are distracting us?  What if I told you that Apple has a powerful technology that can detect when the person using the phone is driving a car, and that the same technology can block access to the phone when that is happening?  Shouldn’t Apple be liable for having failed to implement that technology?  After all, it is now well known that social media is an “addiction” and some of those who are glued to their screens can’t seem to help themselves from “sneaking a peek” even while driving in heavy traffic.

Can Apple, or any of the other smart phone producers, be held liable?  That’s what a new lawsuit in Texas will help decide.  The product liability lawsuit, filed against Apple by families of the victim of a car crash caused by a texting driver, contends that Apple (1) knew its phones would be used for texting while driving, (2) had gone so far as to design technology to block drivers’ phones from being operational, but (3) did not deploy the life-saving technology.

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