Wednesday, July 15, 2009

Judge Sotomayor's Supreme Court Nomination Hearings

Litigants, including injury victims, are not simply affected by the judges and juries who hear their individual cases. They are not just affected by the laws of the state in which they live. Litigants are affected by the interpretations and rulings of law made by the United States Supreme Court.

For example, I would cite the Supreme Court's recent decision in Wyeth v. Levine. The Supreme Court ruled that people injured by drugs may file lawsuits against the drugs' manufacturers in state courts, even if the drugs in question had been approved by the Food and Drug Administration. This decision protects and perhaps even expands the rights of injury victims.

On the other side of the coin, the Supreme Court has also recently ruled against the interest of injury victims. In CSX Transportation, Inc. v Thurston Hensley, a railroad worker who's exposure to asbestos has caused him to develop asbestoses, was denied a cause of action for mental anguish.

What's my point? As you probably know, the U.S. Senate is holding the confirmation hearings for Judge Sonia Sotomayor. We at Tolmage Peskin are advocates for our clients. In that, we take no Democratic or Republican positions. As such, we take no formal position for or against Judge Sotomayor for Supreme Court justice. However, we do recognize that a new justice, with different views and interpretations of the Constitution will affect injury victims and their pursuit of compensation. That is why why are following the hearings closely.

We believe that an informed and capable public is as important informed and educated attorneys. For your convenience, click for transcripts of day 1 and day 2. of the hearings. Check back for transcripts of the rest of the hearing as it goes forward.

-Matthew Lomabrdi, Assocaite Attorney

Thursday, July 9, 2009

Dog Bites Man

There are a lot of dogs in the New York City area; thousands, actually. Most encounters with the City's dogs are friendly and fun. Sometimes, unfortunately, they do not end up as one intended. If a dog attacks and injures you, can you hold the owner liable? The short answer is, maybe. An owner is strictly liable for a dog bite if the injured person can show that the owner knew or should have known of the dog's vicious propensity.

Of course, that means that injured person must show that the dog does in fact have a vicious propensity. Technically, factors such as the dog being “known to growl, snap or bare its teeth," or that "the owner chose to restrain the dog, and the manner in which the dog was restrained” can be considered to determine if the dog has a vicious propensity. But in practice, the old cliché, “every dog gets one bite” holds sway. In other words, if you can't show that the dog bit someone else, you'll probably lose your law suit.

New York's dog bite law is not based on common law negligence. There is no analysis of what the owner did or should have done vis-a-vis minding and controlling his or her dog. There is only an analysis of the dog's history. Let me give you an example. Let us assume that a person brings a dog into a hospital nursery and leaves it there. If the dog hurts a baby, the owner is not liable unless it can be shown that the dog had vicious propensity. There's no argument that a reasonable person would not leave a dog unattended in a nursery. Its all about the dog's prior behavior. (There would most likely be a viable claim against the hospital for allowing the dog into such a sensitive place).

The problems with the dog bite law now becomes apparent. How do you prove that this dog had a vicious propensity? Unless a prior bite victim had the expertise to lodge a complaint with the NYC Department of Health and Mental Hygiene, there would be no record of a prior bite. How does one know that a dog would regularly snap, growl or bare its teeth, if the first time you saw the dog was when it bit you? Would the dog owner's neighbor take your side and rat on the dog, if asked? New York law makes it quite difficult to win a dog bite case

Please do not mistake me for someone who dislikes dogs. I love them; there are two in my family. And that is why the law in New York should be changed. The law should not focus so much on the past conduct of the dog. Instead the law should focus on the owner, on the human. After all, a person can control and explain their conduct much more than an animal can. Focusing on the lapse of judgment, or negligence, of a human can ensure that a person injured by a dog gets his day in court without having to paint a dog a viscous beast.

Matthew Lombardi, Associate Attorney

Tuesday, July 7, 2009

Thursday, July 2, 2009

Lead Poisoning

Living in New York City, with its many older building, lead poisoning in children takes on a special concern. In 2008, there were almost 2,000 reported cases of lead poisoning im kids. We here at Tolmage Peskin have done many many lead cases. Let's go through one:

A child lead exposure case includes several elements that must be addressed
1) Show lead poisoning
2) Show the poisoning damaged your child
3) Establish that the lead came from a specific source, usually your home

A general case can illustrate these principles. The client, we’ll call him “John,” lived with his parents in a NYC apartment. When John was one year old, he was diagnosed as having a blood lead level of 15 mcg/dL (micrograms per decaliter). According to the Centers for Disease Control and Prevention (CDC), a blood lead level of over 10 mcg/dL is considered lead poisoning. John’s lead level, despite treatment rose to 61mcg/dL. This is dangerously high. Lead poisoning can cause learning disabilities and impairments, slowed growth, nervous system problems, seizures and death. The New York City Department of Health was notified and they performed a lead test of the apartment. The testing found that the apartment contained multiple lead hazards and violations.

Lets plug this into the elements: 1)Lead poisoning was medically shown. 2) The high lead levels resulted in serious harm for John. He suffered from growth problems, major learning disabilities requiring placement in special education and behavioral problems. 3) The lead was traced to a specific source, the apartment. The testing of the home was contemporaneous with the finding of lead poisoning, establishing a firm link to John’s poisoning.

Despite obtaining compensation for John, the case wasnt really done. Like with many victims of lead poisoning, John's injuries left him in need of special services such as special education, specialized private tutoring, an attendant, and frequent medical treatments. As a lead poisoning victim's parent, you should be aware that a special needs trust can be set up to provide the funds needed for this type of after accident care. Such treatments, coupled with a good lawyer, can ensure a lead poinsoing victim can grow up to lead a successful life.