Building collapses in downtown New York, no one believed to be injured

Here is something of interest to New York construction accident lawyers: early this morning an empty building under construction on Duane Street in New York's TriBeCa neighborhood collapsed, The New York Times and the Daily News report. Preliminary reports indicate that no one was injured in the collapse, though a car was destroyed. It is not clear what caused the collapse, though it is possible it was a construction accident.

Workers from the Fire Department, Department of Buildings and Con Edison are investigating the site. Emergency crews are still sifting through the rubble, searching for anyone who may be trapped under the debris. Buildings adjacent to the site of collapse have been evacuated as a safety precaution.

According to Notify NYC, an experimental e-mail alert system set up for downtown residents, the building was under "construction or rehabilitation." Residents told reporters that corner braces had recently been installed on the building, but the building had been deteriorating for some time.

Eric White, a carpenter who worked nearby, told the News he and his colleagues had seen the building crumbling for weeks. "We said it was only a matter of days. We knew it."

New York construction accident lawyers know that buildings, especially buildings under "construction or rehabilitation," should not collapse. Though it is far too early to determine exactly what caused this building to collapse, it is highly unlikely that it was inevitable. Either those in charge of the construction or rehabilitation made some mistake or miscalculation, or the Department of Buildings made some error in authorizing work on a building that was too far gone and should have been torn down in a controlled manner.

In either case, it was incredibly fortunate that the collapse happened early in the morning before workers and residents were out near the site. Had it happened later in the day the collapse would have a whole new layer of tragedy.

Photos of the site, taken by TriBeCa resident Anthony Casalena, can be found here.

Young girl who lost an eye settles medical malpractice case for $750,000

A nine-year-old girl who lost her eye after doctors failed to refer her to an ophthalmologist has received $750,000 after her New York medical malpractice lawyers settled her case, The New York Post reports.

The girl, Maya Thomas, began showing symptoms of retinoblastoma when she was six months old. Her mother, Judy Cruz, brought her to Dr. John Harrington and told him her concerns over some of the early symptoms of the cancer. Ms. Cruz testified that Dr. Harrington repeatedly denied her requests for a referral.

Eventually, Maya received the proper diagnosis, but by then the disease had progressed too far for any of the usual treatments to have any effect. Doctors had no choice but to remove the one-and-a-half-year-old girl's right eye.

Though many people go on to live normal lives after losing an eye, it is a hindrance. A person's depth perception and close-distance eyesight (less than 20 feet away) both get worse if they lose an eye.

Essentially, it is not something anyone would wish on themselves or their child. If it is avoidable, it should be avoided.

All the facts indicate that Maya did not have to lose an eye. Only the most extreme treatments of retinoblastoma involve complete removal of an eye. Had Dr. Harrington referred her to an ophthalmologist at the first sign of trouble the cancer could have been treated normally, with minimum disruption to Maya's life.

But Dr. Harrington was not cautious. His medical malpractice cost a young girl an eye, something which no amount of money can replace.

New York City aims to fight construction accidents during Construction Safety Week

Following a year in which construction accidents killed 18 workers, New York City's Department of Buildings is launching its fifth annual Construction Safety Week with a strong emphasis on educating workers and contractors on the safety practices that can save their lives and the regulations that govern their industry.

Topics covered in seminars this week include safety harnesses, crane safety, obtaining proper licenses, safety plans and 2009's new building and construction regulations. Though open to everyone (even the most seasoned New York construction accident attorney could probably learn something) the seminars have limited seating and advance registration is required. Each seminar is an hour and a half or two hours long and are scheduled at different times throughout the week.

Working with New York construction accident lawyers, I appreciate the Department of Buildings dedicating an entire week to educating workers and contractors on the important issue of construction safety. The popularity of the seminars (the one on 2009's new regulations is already booked solid!) is encouraging.

Unfortunately, in years past, though the event has always been popular, it message has not reached those who most need to hear it. Good, law-abiding contractors and their employees attend seminars to learn more about the latest regulations and best practices in their industry. They also appreciate a refresher course in the most important safety issues in their trade.

The worst contractors, those with a long list of violations and a frequent involvement in construction accidents, simply do not show up.

It is a shame, but it is also consistent with the sort of careless practices that lead to so many construction accidents.

Construction workers to gather tomorrow to remember their colleagues

Construction workers throughout New York City are expected to attend a special Mass at St. Patrick's Cathedral commemorating the 18 construction workers killed on the job in the past year, the Daily News reports.

The event, which falls on Workers' Memorial Day, is organized by various industry organizations and local unions. Activist priest the Reverend Brian Jordan will celebrate tomorrow's Mass.

Twelve of the eighteen construction workers who were killed on the job last year were not members of unions. "At least 10" did not speak English as their first language.

These are the workers who are most at risk in New York. According to OSHA, and reported in the News, in 2008 "69% of workplace accidents in the city involved non-union workers; 58% involved non-English-speaking immigrants."

These numbers make clear that without strong unions and a comprehension of the laws that protect them, construction workers are at the mercy of their employers. Too often these employers don't follow safety regulations, assign workers tasks they are not qualified for and rush through jobs.

These practices hurt workers. These practices can kill workers.

When an accident occurs, with no one else offering aid, these are the workers who seek the assistance of New York construction accident lawyers.

For most of these people their employers no longer consider them employees but liabilities. Many employers work to distance themselves from their injured workers, claiming they never hired them or they weren't actually working on the day of their accident. It is a pitiful, despicable game to play.

Tomorrow, we should all take a moment to reflect on the struggles of the people who died building the city we live in.

If swine flu spreads, workers' compensation claims could get tricky

Workers Comp Insider posted this afternoon on the difficulties a widespread outbreak of swine flu poses for the workers' compensation system. With some of the country's first cases happening right in New York, workers' compensation lawyers should start considering the best way to approach these cases.

Infectious disease cases, always somewhat difficult to prove, could become nearly impossible to establish in the event of an epidemic or pandemic. Showing that an infection occurred at a workplace (or while performing work-related activities away from the workplace) when a disease is everywhere is a tricky proposition.

As Workers Comp Insider says, insurance carriers will likely adopt their usual strategies: allow most of the mild and moderate cases to pass through uncontested while raising a stink over the more severe cases.

With a severe case of swine flu capable of incapacitating someone for months or even killing them, there is much at stake here for employees, employers and insurance carriers alike.

Though it is impossible to say how the situation will play out, if the flu does spread the scenario outlined by Workers Comp Insider seems plausible: a hodgepodge of decisions, varying by carrier, state and judge, regarding who will get compensation and who will not. Consistency has never been a hallmark of the workers' compensation system, and a wave of similar claims will only serve to highlight this deficiency.

With all the pitfalls in the workers' compensation system in New York, a workers' compensation attorney is practically required - especially in cases with the sort of complications presented by swine flu infections. The best of these lawyers know the system and can get excellent results for their clients.

Hopefully this outbreak of swine flu, like the one in 1976, will not live up to its hype. In the meantime, employers can protect themselves (while doing the right thing) by instructing employees with flu symptoms to stay home, with pay, rather than risk spreading the disease around the workplace.

There's no sense in encouraging behavior that could raise insurance premiums and, more importantly, spread a dangerous infection.

Gospel Singer Dies at Age 61

In New York on April 25, 2009, Reverend Timothy D. Wright, a 61 year old baritone gospel singer, died as a result of an auto accident that occurred last July. 

Wright was hospitalized since the July 4th auto accident which killed his wife (pictured above) and 14 year old grandson. The accident occurred on Interstate 80 when a car driving down the wrong side of the interstate struck Wright's vehicle head first.

Wright was a gospel singer, a choir director and a well known composer of gospel songs. 

Personal Injury How-To Guides on Work.com

David Perecman recently joined Work.com and published a few guides. Work.com is a community of small business owners and operators. Members are encouraged to publish guides in their areas of expertise in order to broaden the knowledge base of the community.

Mr. Perecman's first how-to guide features the New York Personal Injury Attorney's advice about the best steps to take after a construction accident injury. David Perecman simplifies each step of the litigation and compensation process in this How-To guide.

David also published a guide to personal injury, medical malpractice, wrongful death and more. Whether you were injured in a construction accident, premises accident, auto accident, or if you suspect medical malpractice, The Perecman Firm can offer advice and legal services to get you the compensation you deserve.

Labor secretary promises hundreds of new investigators, many to be assigned to OSHA

Labor Secretary Hilda Solis reiterated her commitment to hiring hundreds of new investigators and strengthening enforcement of OSHA rules yesterday, the Las Vegas Sun reports.

Ms. Solis made the announcement after touring a culinary school in Las Vegas, a city which has recently experienced an outbreak of construction accidents. Under Ms. Solis's plan, many of the additional investigators will be used to more closely scrutinize the construction industry, which, according to Ms. Solis, has an unusually high incidence of accidents.

"There shouldn't be any loss of life. Workers should be able to go to work and go home," the Sun quoted Ms. Solis as saying.

This is a fine position - one that many New York construction accident lawyers have been advocating for years. Though OSHA's rules and practices are sometimes imperfect, on the whole greater accordance with its prescriptions would be a very good thing.

A huge majority of the construction accident cases that come through our office would have been avoided if employers had only followed OSHA's regulations. Though 300 or 400 or even 1000 extra investigators will not be able to bring the whole construction industry into compliance, it is an increase that will be felt. It will make the economics of skirting safety regulations less appealing for contractors who would otherwise be willing to trade their workers' safety for a slightly higher profit margin.

With construction projects about to see a major, stimulus-related boost, it is important that the Department of Labor do everything it can to ensure workers' safety. This is a good start, but it still has its work cut out for it.

Suit filed against New York City Housing Authority for poor elevator maintenance

New York lawyers representing a group of seven tenants have filed a class action lawsuit against the New York City Housing Authority, accusing the agency of “widespread and systemic failure to maintain the elevators in its buildings in operable working condition,” The New York Times and the New York Law Journal report.

The tenants allege that the Housing Authority's behavior stands in violation of federal disability and human rights laws. Specifically, the tenants, most of whom have severely impaired mobility, complain that elevators in their buildings break too frequently and, when the elevators are broken, the Housing Authority provides no alternative transport or other assistance to disabled residents.

This is not the first time the Housing Authority has come under fire over the reliability of their elevators. This past August five-year-old Jacob Neuman fell 10 stories to his death after the elevator he was riding malfunctioned. The New York Times follow-up investigation, published last month, revealed a history of terrible injuries that have cost the city millions of dollars.

The Housing Authority has already pledged to improve the elevators, proposing an overhaul of its maintenance practices and pledging $107 million to replace 550 of its worst elevators over five years.

In the class action suit the tenants are not seeking damages but rather asking that the court order the Housing Authority to avoid excessive elevator breakdowns and provide disabled or elderly tenants assistance or other accommodations when there is an elevator outage. Even if the tenants get few concessions from the Housing Authority beyond its existing plans, a court order would help hold the agency to its plans and keep it on schedule.

Working with personal injury lawyers in New York, it is unusual to see a suit filed in anticipation of an accident but that is exactly what is happening here. If the tenants are successful, they may have done a tremendous favor for the Housing Authority.

The present conditions, with elderly and disabled residents struggling down many flights of stairs (some of these tenants are usually confined to wheelchairs!), are extremely dangerous. If an accident were to happen, as seems likely if current conditions persist, not only would it hurt the city financially but it would deal a palpable blow to the agency's already-tarnished reputation.

The Housing Authority should work quickly to satisfy the tenants' demands and thank its luck that they are giving it this chance to right the situation before its elevators cause another tragic accident.

Las Vegas Sun wins Pulitzer for construction death coverage

The Las Vegas Sun, and reporter Alexandra Berzon in particular, won this year's Pulitzer Prize for public service journalism for its coverage of the high death rate among construction workers on the Las Vegas Strip.

Ms. Berzon did yeoman's work to earn her Pulitzer. After nine workers lost their lives over a 16-month period, she wrote more than 50 articles exposing the state's lax enforcement of safety regulations. Her series forced officials to address the problem and no construction workers have died on the Strip since last June.

It takes strong laws to protect people's rights and their safety, and it can take extraordinary effort to get strong laws passed and enforced. In New York, even the best personal injury attorney would be powerless to help people without some good laws in place. Everyone who enjoys the protections our society offers is indebted to the activists, reporters and unions that worked to make them a reality.

Congratulations to Ms. Berzon and the Las Vegas Sun on their Pulitzer. It is a major achievement, earned in the best way possible.

Former plant manager gets 70 months for lying, impeding an OSHA investigation

John Prisque, a Pennsylvania plant manager, was sentenced to 70 months in federal prison on a conspiracy charge that involved polluting the Delaware River, impeding OSHA and EPA investigations, lying to OSHA, EPA and the FBI and "corruptly influencing an OSHA proceeding," Lehigh Valley Live reports.

Over the course of four years managing the Atlantic States Cast Iron Pipe Co. plant, Mr. Prisque broke a number of laws. He lied to OSHA investigators regarding several accidents at the plant and instructed other employees to do the same. He lied to OSHA about instructing his employees to bypass safety equipment. He burned 55 gallons of toxic paint in the plant's furnace and, to top it all off, he pumped oily waste water out of the plant's storm drain, "leading to an 8.5 mile oil slick on the Delaware River."

Mr. Prisque's disregard for the safety of his workers, the environment and the law is extraordinary. The results of his apathy are clear. Mr. Prisque left a trail of maimed and killed workers whose accidents, rather than exposing shortcomings with the plant's safety plan, were hidden, putting more workers at risk.

Working with personal injury lawyers in New York, I have little patience with Mr. Prisque's antics. Any manager who tries to wring productivity from his or her staff at the expense of its safety should be punished. Mr. Prisque did exactly that, taking every shortcut available to him to cut costs and increase the plant's profits.

Now, with the plant facing $500,000 in fines (and skyrocketing insurance premiums) and Mr. Prisque looking at almost six years in jail, I wonder if he thinks it was worth it.

AIG stiffs military contractors injured in Iraq

Everyone's (least) favorite company, AIG, has been denying and delaying claims from military contractors injured in Iraq, ABC News reports.

AIG, which has received nearly $100 billion in public money and has paid out nearly $54 billion to various investment banks, has denied requests for a wheelchair, eyeglasses and a prosthetic limb for John Woodson, "a man who lost a leg, an eye, and 70% of the vision in the remaining eye while working as a contractor in Iraq."

Another claimant, Preston Wheeler, has repeatedly had AIG ignore his requests for a CAT scan to determine if he could have a bullet removed from his arm.

In its defense, AIG issued a statement declaring the "vast majority" of claims are "paid without dispute when the proper supporting medical evidence has been received."

Working with New York workers' compensation lawyers, I know how difficult it can be for claimants to secure the benefits they are legally entitled to. AIG's is a repulsive system where the financial needs of irresponsible investment banks are attended to with much greater care and attention than the physical needs of people injured fighting their country's wars.

Sadly, even insurance carriers less infamous than AIG employ many of the same tactics to avoid paying claimants what they are due. Simple claims that should be resolved quickly are stretched out for months, even years.

In New York, a workers' compensation attorney can cut through a lot of the red tape and insulate claimants' from much of the frustration that the system breeds. They can help their clients navigate a broken system and promptly get them the care and compensation they need to start getting their lives back on track.

10 Tips For Avoiding an Auto Accident

Planet Green, a part of the Discovery Channel, recently published the "Top 19 Ways to Avoid an Automotive Accident". 

A car accident can be one of the most disastrous moments in a person's life. They can be costly, painful and time consuming. The Perecman Firm  is dedicated to getting those who are injured in auto accidents the compensation they deserve, but also in educating drivers so that fewer auto accidents occur.

The next time you sit at the wheel of your automobile, remember these tips:

1. Maintain Good Posture to best reach the steering wheel and floor pedals in preparation for an evasive maneuver. 

2. Position Your Mirrors. Adjust side and rear view mirrors in order to properly see the road behind you.

3. Keep Both Hands on the Wheel at the 3 and 10 o'clock positions for the quickest response.

4. Double Check Your Eyesight. Remember to wear glasses or contacts while driving if you require corrective lenses to see the road.

5. Keep Your Vehicle Safe by checking tire treads, brakes, windshield wipers and liquids frequently.

6. Anticipate Traffic Changes by staying alert and looking for indications of an interruption in the flow of traffic, such as construction or braking ahead.

7. Judge Cars by Their Covers. You may have heard to not judge a book by its cover, but the same is not true for cars. A poorly kept vehicle can be dangerous and should be avoided.

8. Know Your Blindspots. Every vehicle has at least one blindspot, be familiar with their locations and always turn your head to double-check before changing lanes or merging.

9. Know Your Vehicle's Limits. Knowing how fast and maneuverable your car can be is important to know before making a quick decision.

10. Avoid the Fast Lane. Not only does speed kill, but staying in the left lane allows for few escape options and increases the likelihood of being tailgated. Not surprisingly, most highway accidents occur in the left lane.

 

Nine-year-old dies after jumping off Brooklyn rooftop

A nine-year-old boy died Tuesday after jumping off the roof of his Brooklyn apartment building, the Daily News reports. The young boy, Damori Miles, was wearing a parachute he fashioned out of string and a plastic bag.

Family members say that in jumping off the roof the boy, who was enrolled in special education classes, was imitating moves from his favorite wrestling video game. As World Wrestling Entertainment (correctly) points out, though the child's death is a tragedy, none of their wrestlers ever wore parachutes or jumped off buildings.

Far more worrisome are the circumstances that allowed the unattended nine-year-old to reach his building's roof. The door to the roof, which is supposed to remain locked, was left unlocked and the door's alarm, which is supposed to activate whenever the door is opened, had been broken for some time. If either of these safety measures had been in effect at the time of the Damori's accident it seems likely that he would still be alive.

Unfortunately, working with personal injury lawyers in New York, I understand that this child's family is likely to receive very little compensation for its loss.

New York State's antiquated wrongful death laws only take survivors' financial loss into account - pain and suffering, loss of love and affection as well as punitive damages are largely discounted. Thus the wrongful death of a child or retired person, no matter how devastating it may be for the family, is worth very little in court.

It is a brutally unfair, out-of-date law. If there is a bright spot in this situation it is the New York personal injury lawyers who are lobbying to update the law, bringing it into line with wrongful death laws in many other states. For the sake of the families who find themselves in these dreadful situations, I hope they succeed.

Martha Stewart Living Omnimedia employee is fired after breaking her spine

Kiki Paris, an account director at Martha Stewart's Body + Soul magazine, was fired shortly after she was hit by a car and fractured her spine. Now, according to the mediabistro blog fishbowlNY, she is suing her former employer for disability discrimination.

Ms. Paris produced impressive sales numbers prior to her accident with nearly $3 million in new business across 175 pages of advertisements. She received a stellar performance evaluation just two months before her accident in which her supervisor wrote:

"Kiki is a phenomenal sales person and a star on our team. Her efforts over the past year have completely changed the advertising make up of our
publication and the way we are perceived by Madison Ave."

After her accident Ms. Paris had surgery to repair her back and was required to wear a halo necklace for 12 weeks to immobilize her spine. Starting her first day home from the hospital, her supervisor required her to be available to answer calls from the office. Just seven weeks after her accident, under pressure from her employer to get off disability, Ms. Paris began working full time from her home. Less than a month later she was fired.

By pressuring Ms. Paris to cut her disability short and then firing her, Body + Soul prevented her from obtaining long-term disability or taking a potentially costly leave of absence. Sadly, working with New York workers compensation lawyers and New York personal injury lawyers, I see this sort of behavior from employers all the time.

Once a worker is injured many employers do everything they can to distance themselves from these employees. Injured employees can be expensive, and some employers will go so far as to claim they never hired certain employees to avoid these costs. In these cases, it can take a top New York personal injury attorney to get workers the compensation they deserve.

Former Tigers pitcher Mark Fidrych killed while working on truck

This morning my feeds were filled with news of retired pitcher Mark Fidrych's untimely death. The 1976 Rookie of the Year seems to have been repairing his 10-wheel dump truck when he died.

The local police and district attorney's office have not released any other details, so it remains unknown whether Mr. Fidrych's death was related to his work on the truck although most articles speculate that it was.


After a terrific 1976 season, Mr. Fidrych tore his rotator cuff in one of the first games in 1977. The injury, which was not diagnosed until 1985, hurt his performance and forced him into an early retirement in 1980.


With professional baseball no longer an option, Mr. Fidrych moved to a farm in Northborough, Massachusetts and worked part time as a contractor hauling gravel and asphalt in his truck. He also participated in many charity events and waited tables at his mother-in-law's diner on the weekends.

By all accounts Mr. Fidrych was a stand-up guy who, at 54, died far too young. Working with New York construction accident lawyers, I hear the stories of many others who are killed or injured on the job. Though none ever pitched in an All Star Game, the vast majority were hardworking individuals whose lives or work were cut short by an accident.

Though their stories will never receive the attention Mr. Fidrych's has (there are already more than 1,000 articles on the subject), perhaps his death will remind people that terrible things can happen to anyone and the results are always tragic.

Some work on New York City baseball stadiums performed by allegedly corrupt contractors

The demolition of Shea Stadium as well as the electrical work and some of the excavation and concrete work on the new Yankee Stadium were performed by companies accused of corruption and links to organized crime, The New York Times reports.

Toby Romano, a vice president of the company which performed the $17 million demolition of Shea Stadium, was convicted on federal bribery charges in 1988. Santo Petrocelli Sr., owner of the company that performed electrical work at the new Yankee Stadium, was indicted on charges that "he had been bribing a leading union official for more than a decade." Interstate Industrial, which excavated the Yankee Stadium site and performed cast-in-place concrete work, was the subject of a city investigation which found ties between the company and organized crime.

Interstate Industrial also had the distinction of secretly paying for a $150,000 renovation of disgraced former police commissioner Bernard Kerik's apartment.

New York City had previously blacklisted all three contractors, barring them from competing for city contracts. Though neither ballpark was funded entirely by the city, both received public financing and were overseen by the New York City Economic Development Corporation.

The Development Corporation does not review projects' contractor selections unless they are paid directly with city funds and hired as either a general contractor or subcontractor. Between these two requirements all three companies escaped the Development Corporation's scrutiny.

Working with New York construction accident lawyers, I found it worrisome that the city had such lax rules policing blacklisted companies. Once a company has been blacklisted (and New York City should make every effort to ensure it deserves that classification), it should be kept from working in any capacity on any project that receives public funds.

Companies which have earned condemnation from the city for corruption or other illegal activities are less likely to closely follow safety regulations. They're more likely to hire cheap, poorly trained and uncertified workers. This puts everyone's well being at risk.

Rules that require direct public financing of particular work on a publicly-financed project are silly. That argument is similar to AIG claiming its bonuses were paid from separate, non-bailout money. If a project receives any city money, all of its contractors should meet the city's requirements.

Complaints from the city that its office is inadequately staffed to police a broader jurisdiction are more valid. Perhaps an electronic database in which publicly financed projects register potential companies could help them accomplish more without a drastic staff increase.

The city should expand the rules that limit the work corrupt companies can do in New York. It will make the city a safer place.

Two Fatal NYC Hit and Run Accidents

Two women were fatally injured after to seperate hit and run accidents last night in New York City. The first accident occured on the notorious Queen's Boulevard, aka "The Boulevard of Death". The second accident took place in Hell's Kitchen. 

Police responded to the Queen's Boulevard incident Wednesday night at 9:15. When they arrived on the scene they found an unconscious and unresponsive woman in her early 20s. She was rushed to the hospital and pronounced dead on arrival. Police are still looking for the driver who struck her vehicle.

A woman in her 50s was also struck Wednesday night at the intersection of Ninth Avenue and West 40th street in Hell's Kitchen. The woman was also taken to the hospital and pronounced dead. A garbage truck is believed to have hit her but the sanitation worker driving the vehicle appeared to not know that he struck the woman when questioned. He said he did not see her when the light turned green. The driver was released after questioning. 

NY State Police Look Into Fatal Accident in Buffalo

New York State police have begun an internal investigation as to whether a trooper properly handled the report of a fatal accident on the New York State Thruway. 

Authorities in Western NY received the report from a motorist on Monday April 6th at 5:18pm. However, the trooper who responded to the auto accident found no sign of the car. 

The car was not found until the driver of the vehicle, Dr. Steven Ambrusko of Buffalo, regained consciousness and called for help three hours later. He guided emergency crews to his car down a steep embankment in Chautauqua County. Dr. Ambrusko's two children were pronounced dead at the scene. They were four and six years old.

Ambrusko's mother, Donna, wants to know why the troopers did not keep looking for the car after the accident was reported.

Recent decisions

Ewing v. Brunner Intern., Inc., 2009 N.Y. Slip Op. 02046, --- N.Y.S.2d ----, 2009 WL 724207 (4th Dep't March 20, 2009)

"Memorandum: Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained when a portion of the flat concrete roof on which he was standing collapsed, causing him to fall. We agree with plaintiff that Supreme Court erred in denying his motion seeking partial summary judgment on liability against Brunner International, Inc. (defendant) under Labor Law § 240 (1) as well as dismissal of the affirmative defense alleging that plaintiff's culpable conduct contributed in whole or in part to the accident. Plaintiff met his initial burden inasmuch as “[t]he collapse of a work site itself constitute[s] a prima facie violation of Labor Law § 240 (1)' ” (Bradford v State of New York, 17 AD3d 995, 997, quoting Richardson v Matarese, 206 AD2d 353, 353), and defendant failed to raise a triable issue of fact whether the conduct of plaintiff was the sole proximate cause of his injuries (cf. Tronolone v Praxair, 22 AD3d 1031, 1033; see generally Felker v Corning Inc., 90 NY2d 219, 224). In support of his motion, plaintiff submitted his deposition testimony in which he testified that it was the general practice on the work site to wear safety harnesses only when “tearing off” asphalt or working on “bad concrete” and that, when he fell, he was not tearing off asphalt and all but four inches of the concrete decking requiring replacement had been removed. Defendant failed to submit any evidence raising a triable issue of fact whether plaintiff, a foreman on the roofing project, “ knew or should have known' [that he was expected to wear a safety harness] . . .; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured' ” (Ganger v Anthony Cimato/ACP Partnership, 53 AD3d 1051, 1053; cf. Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40)."

Clarke v. The Morgan Contracting Corporation, 2009 N.Y. Slip Op. 01917, 2009 WL 702410 (1st Dep't March 19, 2009)

"Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered July 15, 2008, which, insofar as appealed from, granted plaintiffs' motion for summary judgment on the issue of liability pursuant to Labor Law § 240(1), and denied defendant's cross motion for summary judgment dismissing plaintiffs' claim pursuant to Labor Law § 241(6), unanimously affirmed, without costs.

Plaintiff, who was employed to perform carpentry work on a construction project at SUNY Downstate Medical Center, was injured when two metal stud beams that were being hoisted from the street were dropped from a sidewalk bridge and landed on his face, chest and shoulders. Plaintiffs met their burden of demonstrating that defendant's failure to provide adequate safety devices was a contributing cause of plaintiff's injuries in

violation of § 240(1) (see Kielar v Metro. Museum of Art, 55 AD3d 456, 458 [2008]; Greaves v Obayashi Corp., 55 AD3d 409 [2008]), and plaintiff was not, under any view of the evidence, the sole proximate cause of his injuries (see Zuluaga v P.P.C. Constr., LLC, 45 AD3d 479, 480 [2007]; Kyle v City of New York, 268 AD2d 192, 196 [2000], lv denied 97 NY2d 608 [2002]).

The court properly denied defendant's motion for summary judgment on plaintiffs' § 241(6) claim premised on Industrial Code (12 NYCRR) § 23-1.7(a)(1). This rule is sufficiently specific to support a cause of action under § 241(6) (see Murtha v Integral Constr. Corp., 253 AD2d 637, 639 [1998]), and a material question of fact remains as to whether the area where the accident occurred was an area “normally exposed to falling material or objects,” and as to whether the sidewalk bridge without safety netting provided appropriate overhead protection to workers in that area"

Abreo v. URS Greiner Woodward Clyde, 2009 N.Y. Slip Op. 02308, 2009 WL 792086 (2nd Dep't March 24, 2009)

"The plaintiff allegedly was injured while working on a renovation/demolition project. At examinations before trial, the plaintiff testified that he was on a scaffold using an electric chisel to remove bricks from a fourth-floor corner of the exterior facade of a building. He had just finished removing bricks from the fifth floor. According to the plaintiff, the scaffolding was inadequate to allow him to reach the uppermost bricks of each level of work. He testified that, as a result, in order to complete his work he needed to stand on a pile of bricks one to two feet high that had accumulated on the planking of the scaffold from his work on the fifth floor. The plaintiff testified that he had never requested a ladder for his work because “[t]here wasn't one,” but that he had complained to his employer (nonparty Graciano Corp.) that he could not reach the uppermost bricks, to no avail. The plaintiff testified that he was injured when the scaffold moved or shifted, and he lost his balance and fell from the pile of bricks to the planking of the scaffold.

...

Labor Law § 240(1) requires owners and contractors to provide protective devices when there is a significant risk inherent in a particular task because of the relative elevation at which the task must be performed, or at which materials or loads must be positioned or secured (see Toefer v Long Is. R.R., 4 NY3d 399; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Rocovich v Consolidated Edison Co., 78 NY2d 509). Here, URS failed to demonstrate, prima facie, that “falling worker” liability under Labor Law § 240(1) is inapplicable. Rather, the plaintiff's task of removing bricks from the fourth floor exterior of a building exposed him to the type of elevation-related risk within the contemplation of Labor Law § 240(1), and his deposition testimony raises triable issues of fact as to whether the protective device provided was adequate. Contrary to URS's contention, the fact that the plaintiff did not fall completely off of the scaffolding is not controlling (see Ienco v RFD Second Ave., LLC, 41 AD3d 537; Ortiz v Turner Constr. Co., 28 AD3d 627; Cordero v Kaiser Org., 288 AD2d 424; Lacey v Turner Constr., Co., 275 AD2d 734). In sum, the Supreme Court properly denied that branch of URS's motion which was for summary judgment dismissing the plaintiff's Labor Law § 240(1) cause of action.

The Supreme Court also properly denied that branch of URS's motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as premised upon alleged violations of 12 NYCRR §§ 23-5.1(b), (c), and (h), and 23-5.3(g) and (h). Contrary to URS's contention, each of the provisions at issue sets forth specific, rather than general, safety standards, and is sufficient to support a Labor Law § 241(6) cause of action (see Tomyuk v Junefield Assoc., 57 AD3d 518; Lavore v Kir Munsey Park 020, LLC, 40 AD3d 711; O'Connor v Spencer [1997] Inv. Ltd. Partnership, 2 AD3d 513; see generally Comes v New York State Elec. & Gas Corp., 82 NY2d 876; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494). Further, URS failed to demonstrate, prima facie, either that the Industrial Code provisions cited were inapplicable to the facts, or that the alleged violation of the same was not a proximate cause of the damages alleged (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Payne v 100 Motor Parkway Asso., LLC, 45 AD3d 550; Rivera v Santos, 35 AD3d 700)."

Cantineri v. Carrere, 2009 N.Y. Slip Op. 02051, 2009 WL 724213 (4th Dep't March 20, 2009)

"Plaintiff commenced this action seeking damages for injuries he sustained while installing drywall in a residence under construction. In order to reach the higher parts of the room in which they were working, plaintiff and third-party defendant Kevin Tibbitts, doing business as K & J Drywall (Tibbitts), erected a makeshift scaffold by placing one end of a wooden plank on a ladder rung and the other end of the plank on top of a wall. The plank slipped from the ladder rung when Tibbitts stepped off the scaffold, causing the plank to strike plaintiff while he was working at floor level.

...

Supreme Court properly denied plaintiff's motion seeking partial summary judgment on liability pursuant to Labor Law § 240 (1) but erred in granting that part of defendant's cross motion seeking summary judgment dismissing that cause of action, and we therefore modify the order accordingly. Contrary to defendant's contention, "falling object" liability under Labor Law § 240 (1) is not limited to cases in which the falling object is in the process of being hoisted or secured” (Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757, 758-759). The collapse of a scaffold establishes a prima facie case of liability under the statute “whenever the employee is injured as a result of [the] collapse, regardless of whether the employee was on or under the scaffold when it collapsed” (Thompson v St. Charles Condominiums, 303 AD2d 152, 154, lv dismissed 100 NY2d 556). Neither plaintiff nor defendant established entitlement to judgment as a matter of law on the Labor Law § 240 (1) cause of action, however, because the evidence submitted by both parties raises triable issues of fact whether adequate safety devices were provided for plaintiff's use and whether the actions of plaintiff were the sole proximate cause of the accident (see Brown v Concord Nurseries, Inc., 37 AD3d 1076, 1077).

The court also erred in granting that part of defendant's cross motion seeking summary judgment dismissing the Labor Law § 241 (6) cause of action insofar as it is premised upon defendant's alleged violation of 12 NYCRR 23-1.8 (c) (1), and we therefore further modify the order accordingly. Defendant did not meet his burden of establishing that the regulation was not violated or that the alleged violation did not cause or contribute to plaintiff's injury (see generally Montalvo v J. Petrocelli Constr., Inc., 8 AD3d 173, 176)."

Johnson v. Ebidenergy, Inc., 2009 N.Y. Slip Op. 02189, 2009 WL 725189 (4th Dep't March 20, 2009)

"We conclude with respect to action No. 1 that the court properly denied defendants' motion seeking dismissal of David's Labor Law § 241 (6) cause of action. Contrary to defendants' contention, David was engaged in “altering” a building within the purview of Labor Law § 241 (6) at the time of the accident (see Joblon v Solow, 91 NY2d 457, 466; Smith v Pergament Enters. of S.I., 271 AD2d 870, 873; Dedario v New York Tel. Co., 162 AD2d 1001, 1003). Prior to the accident, David spent six hours installing the metering equipment, which involved screwing 12 d-ring screws into the wall, threading low voltage pulse wire through the rings, connecting one end of the pulse wires to the recorder and the other end to current transducers (CTs), snapping the CTs around the outgoing wires of the switch box, installing a slave recorder, tandem wiring the slave recorder to a previously installed recorder, and powering up the CTs using fusible CT leads.

Contrary to the further contention of Ebidenergy, it may be held liable as a contractor pursuant to Labor Law § 241 (6). It is the entity's “ right to exercise control over the work [that] denotes its status as a contractor, regardless of whether it actually exercised that right' ” (Mulcaire v Buffalo Structural Steel Constr. Corp., 45 AD3d 1426, 1428). Here, the record establishes that Ebidenergy had the contractual authority to enforce safety standards, had the power to hire responsible contractors, and had some control over the methods used by subcontractors in performing installations. We further reject Ebidenergy's contention that the Industrial Code provisions upon which the plaintiffs in action No. 1 rely, namely 12 NYCRR 23-1.13 (b) (4) and (5), do not apply in this case because they refer only to employers and employees. While those provisions refer to duties of an employer, we note that 12 NYCRR 23-1.3 expressly provides that part 23, which includes the provisions upon which the plaintiffs in action No. 1 rely, “applies to persons employed in construction, demolition and excavation operations, to their employers and to owners, contractors and their agents obligated by the Labor Law to provide such persons with safe working conditions and safe places to work” (see 12 NYCRR 23-1.5; Rice v City of Cortland, 262 AD2d 770, 773-774).

We further conclude that the court properly denied those parts of defendants' motions in action No. 1 with respect to common-law negligence and Labor Law § 200. There is an issue of fact whether either of those defendants had some control over the method and manner of David's work (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877; see also Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352), and whether Yonder Farms helped to create the hazardous condition (see Bonura v KWK Assoc., Inc., 2 AD3d 207, 207-208). With respect to Ebidenergy, the record establishes that it was the policy of Ebidenergy for installers to work on energized circuits, if possible, and David confirmed that it was his understanding that “there would be no power shutdowns in any facility.” With respect to Yonder Farms, the record establishes that a representative of Yonder Farms requested that David replace the blown fuse and that, when David asked that the power be shut off in order to change the fuse, the representative denied David's request."

Konopczynski v. ADF Const. Corp., 2009 N.Y. Slip Op. 02040, 2009 WL 724148 (4th Dep't March 20, 2009)

"We agree with plaintiff, however, that the court erred in granting those parts of defendant's motion with respect to the Labor Law § 200 and common-law negligence claims, and we therefore modify the order accordingly. A “defendant may bear responsibility under Labor Law § 200 and for common-law negligence if it had actual or constructive notice of the allegedly dangerous condition on the premises which caused the . . . plaintiff's injuries, regardless of whether [it] supervised [plaintiff's] work' ” (Riordan v BOCES of Rochester, 4 AD3d 869, 870-871; see Militello v New Plan Realty Trust, 16 AD3d 1092, 1093). Here, defendant failed to meet its initial burden because it failed to establish that it had no constructive notice of the allegedly hazardous conditions in the floor. Indeed, by its own submissions, defendant established that the depressions were seven inches long, five inches wide and six inches deep, and that there were approximately 132 of these depressions throughout the floor, and its expert failed to address whether the condition of the floor was reasonably safe. Although defendant contended that it was not aware of any previous injuries as a result of the depressions, it offered no evidence to support its contention that it was unaware that workers at the site had repeatedly tripped in the holes, as testified to by plaintiff at his deposition. Contrary to defendant's further contention, “the open and obvious nature of the allegedly dangerous condition in this case does not negate the duty to maintain [the] premises in a reasonably safe condition but, [instead], bears only on the injured person's comparative fault' ” (Verel, 41 AD3d at 1156)."

Crash upstate kills two young children, injures father

The Buffalo News (among a slew of other local news outlets) has the story of a tragic car crash that killed a four- and six-year-old and left their father in the hospital with brain injuries and a broken spine.

Police believe that Dr. Steven J. Ambrusko, the children's father, fell asleep as he was driving his son and daughter to his house after picking them up from his ex-wife in Erie, Pennsylvania. Police found his car more than 300 feet from the road, its roof crushed and both children already dead.

Although a nearby motorist who witnessed the accident called it in at 5:15 PM police did not discover the crash until three hours later. The first officer to respond to the scene did not find the vehicle or see anything amiss and cleared the call. It was only after Dr. Ambrusko regained consciousness hours later and made his own 911 call that police revisited the scene and discovered the crash.

Police are conducting an internal investigation of the conduct of the officer who first responded to the scene. It is not yet known whether the children may have lived had policed discovered the car earlier.

The details of this auto accident are particularly sad. Even without knowing for sure whether an extra three hours would have saved their children's lives, the possibility that it may have must be devastating to both the mother and father.

I hope the police conduct a thorough investigation of this accident and determine just what happened. There may be nothing that even the best New York auto accident attorney could do to help this family. Even if there isn't, I hope the parents find some peace in whatever conclusions the police draw.

Former safety blogger to serve as deputy assistant secretary of OSHA

Public health blog The Pump Handle has obtained an internal e-mail announcing that Jordan Barab, a former safety blogger and OSHA special assistant, will serve as deputy assistant secretary and acting assistant secretary of OSHA. Both positions are currently vacant.

A quick look through Mr. Barab's retired blog, Confined Spaces, shows that he is just the sort of person workers need at OSHA's helm. For five years Mr. Barab took a no-nonsense approach to safety issues big and small. His genuine concern for workers' safety was matched by his disgust and impatience with employers who ignored that safety.

I, and all the New York personal injury lawyers I work with, wish Mr. Barab the best of luck in his new post. He is now in a position to protect workers from the conditions he has found so frustrating. I am sure he will do his best.

OSHA fines bridge contractor $180,000 for 13 alleged violations

Yesterday, I wasn't so sure about OSHA's decision to fine the Buffalo News for the deficiencies of a local high school's stadium. Today, I'm positive OSHA did the right thing in proposing fines of $180,950 on bridge contractor Brunalli Construction Co. for 3 willful and 10 serious alleged violations at a Connecticut work site.

The worst alleged violations concerned the complete lack of fall and drowning protection (the bridge in question crosses the Housatonic River) and an access ladder that is too short. These three violations accounted for $147,000 of the fines. Other violations accounted for the remainder of the fines, including a damaged guardrail, amputation and laceration hazards and a situation in which certain workers were not issued the hardhats they need for proper protection.

OSHA proposed the fines following a December, 2008 investigation of the work site. No accidents have occurred at the site before or after the inspection.

Working with New York construction accident lawyers, it is great to see OSHA aggressively pursuing contractors that do not make the safety of their workers a top priority. OSHA is penalizing conditions here that are exactly the sort that lead to injuries or deaths.

The precautions OSHA requires are not a luxury nor are they frivolous. They are a necessity. They save lives. OSHA is right to punish employers who would flaunt its rules.

With some luck, OSHA's fines will motivate Brunalli Construction to bring its work site up to code. Unfortunately, it seems concern for its workers' safety was not enough.

OSHA fingers Buffalo News in reporter's accident at football game

An article in today's Buffalo News poses an interesting question to New York personal injury lawyers: should OSHA fine a newspaper when a reporter dies while covering a story?

OSHA inspectors recommended fining the News $31,500 for an accident Tom Borrelli, a News sportswriter, had on November 8 while covering a high school football game. Mr. Borrelli died from his injuries on November 20.

The accident occurred as Mr. Borrelli was reaching the top of the stairs leading to All High Stadium's press box. He apparently hit his head and fell down the stairs, injuring his head and neck. In the days before his death, Mr. Borrelli was paralyzed from the neck down.

Both New York State and OSHA conducted inspections of the accident site. The state found serious violations and set a strict deadline for Buffalo Public Schools to bring its stadium up to code. OSHA's investigation also discovered problems with the stadium, finding five serious violations - all of which concerned the stairs leading to the press box.

But OSHA is holding the News responsible for the accident and charging them with the fines related to each of the violations.

The News's article is understandably one-sided - it doesn't believe it should have to pay the fines. The News maintains that it never required its reporters to use the press box. It points out that many of its reporters successfully covered stories from the sidelines.

In addition, as the News points out, 62 journalists died in the course of their work in the past year and the News was the only paper cited by OSHA (the News is fudging its facts slightly here - that figure is for deaths worldwide, many of which fall outside OSHA's jurisdiction).

Still, the News has a point. Many journalists' jobs are intrinsically dangerous. They regularly cover wars, crime and natural disasters. There are unavoidable risks associated with this work. If OSHA holds newspapers accountable for every risk these reporters are exposed to, these important topics will become even harder to cover.

Even so, Mr. Borrelli's death was surely avoidable. His family has secured a New York personal injury attorney and seems to have a strong case against the school system. The poor design and maintenance of the press box are inexcusable.

I am just not sure if OSHA's fining the News was the right thing to do.

What do you think? Sound off in the comments.

Undocumented Workers and their rights

The law in New York has become clear, an undocumented alien can sue when injured, can recover lost wages and can prove their right to future lost earnings even if they provided their employer with false documentation. Recent case law has addressed this topic and it was decided that if the employer failed to verify that the worker was a documented worker by seeking proper proof, the worker's acts of giving improper information does not prevent them from making their claim.

This is extremely important to most such workers because, it is the experience of this New York personal injury lawyer that very few employers who hire undocumented workers ask for documents and if they do, they do so knowing exactly who they are hiring.

Although many people in this country continue to voice concern over the existence of undocumented workers in the United States and in New York there can be no question that without those very workers many jobs simply would not get done or get done at a cost that most Americans are unwilling to pay. In these tough economic times peoples views about such topics change as their views of what they would be willing to do to earn a living changes.

This is not about that very hotly debated topic but rather is about the fact the the New York State Courts have recently clarified the right of these workers not only to come to court if they are injured but to present their claim as any other injured person would.

The law all across the United States is clear. An injured person has the right to bring their claim to court and be compensated as any other citizen could. After all, we all bleed red blood and we all suffer pain the same way.

The question for workers who were injured was, if they could not go back to work because their injuries were so disabling, how would a jury calculate the value of the worker's claim for future loss of earnings. This is no trivial matter as a lifetime of lost earnings can be very substantial.

The law was clear and has always been that such a worker can make such a claim for future earnings. But do we calculate the future loss at the rates of pay they were earning here in the United States or at the rate they could earn back in their own country.

Several years ago I presented such a case to the Court and in a decision called Klapa v. O & Y Liberty Plaza Company, Justice Lorraine Miller made clear that a jury should not be prejudiced by knowledge of the fact that the plaintiff was an undocumented alien unless there was additional proof that such person was about to or would become deported. Thus the fact that they were likely to have remained in the United States and continue to earn income at United States was enough to overcome the defendant's desire to show a jury that they are not documented because such information could be highly prejudicial.

The court here recognized that the information that a worker is not documented would not only be used by the jury to calculate future earnings rates but would likely prejudice them across the board against the injured undocumented worker and it was that which the Court sought to avoid.

In 2006 The New York Court of Appeals decided the case of Balbuena v. IDR Realty, LLC, where the rights of undocumented workers to bring suit and recover future lost earnings was decided in favor of the worker, as long as the worker had not fooled their employer into hiring them by providing false documentation.

While this decision made great strides, it left open the most common situation where a worker provides improper information or documents to the employer but the employer is not fooled into hiring them by the documentation or information given by the worker because the employer knew of or suspected the workers status was unclear.

Recently the Appellate Division, Second Department addressed this situation in the case of Coque v. Wildflower Estates Developers Inc. The court there found that since the employer did not follow the rules regarding verification of employment status by obtaining proper documentation they could not claim they were fooled or duped into hiring the worker
In other words the Court recognized what all the best New York Personal injury Lawyers know; that employers know who they are hiring and they know they are hiring undocumented workers. That's what they want, because they are cheap labor and they don't make complaints about conditions or safety.

I for one am very proud to be a member of the bar of New York particularly when the justices of this great New York State follow the great American tradition of fairness for all, even when economic times are tough.

New York Crane may have been warned about equipment prior to collapse

There is considerable evidence that the owner of the crane that collapsed in New York City last May received several warnings that the crane was not repaired properly and was unfit for use.

The New York personal injury lawyers representing the family of one of the victims recently uncovered e-mails sent among New York Crane and Equipment Corp., city officials and RTR Bearings, a crane-repair company in Shanghai.

The e-mails describe a damaged turntable (the component of a tower crane where the rotational machinery is located) that some city officials thought should be destroyed but New York Crane wanted to repair. Unfortunately, New York Crane did not want to spend very much on the repair, so when Avon Bearings, an Ohio company, offered to repair the turntable for $120,127 in 28 weeks New York Crane turned them down.

New York Crane found out that RTR Bearings could do the job for $20,000 - they just could not do it very well. After reviewing the job's specifications, RTR employee Joyce Wang sent New York Crane an e-mail: “And honest speaking we dont [sic] have confidence on this welding.” New York Crane hired RTR Bearings anyway.

Though Brady Marine performed some additional welding work on the turntable after it returned from China, investigators believe deficiencies in the component caused last year's fatal crane collapse.

New York Crane wanted to save some money, which is understandable. Every business should strive to be as thrifty and efficient as possible. No one likes to pay too much for anything. But the moment New York Crane was told that it was not just paying less but getting a whole lot less it should have backed up and paid what it took to get the job done right.

By ignoring repeated warnings and trying to save $100,000, New York Crane may have cost two workers their lives. I, for one, think a life is worth far more than $50,000. By the time the New York personal injury lawyers have finished with this case, I hope New York Crane feels the same way

Davids Weekend Tally: The New York Worker's Compensation System exposed as are the Insurance company doctors

For thirty years I have practiced as a New York Personal Injury Lawyer and try to explain to people, jurors and friends what it's like to try to navigate the courts and the New York Worker's Compensation system to get your client taken care of.
Finally, due to an investigative report by The New York Times, the public has a bird's eye view into what we trial lawyers and worker's compensation lawyers know...it is a difficult maze to navigate.
What I appreciated the most was the exposure of the "IME", independent medical examination doctors. We plaintiff personal injury lawyers who deal with the same doctors and practices laugh at the phrase, IME. What is "independent"about a doctor who is paid hundreds of thousands of dollars per year to examine people and write reports regarding thier injuries when they know what the insurance company and their lawyers want to see and hear. They want to hear, they are exaggerating, they are healed, they never got hurt in the first instance... it's a preexisting problem, it's degenerative, not traumatic. The doctors are well aware who butters their bread and that they get the repeat business because they write reports favorable to the insurance companies interests. Not all doctors do this but many do. In my experience, I dare say most.
One of the doctor's featured in the New York Times article has testified twice in personal injury cases against my clients and I had the opportunity to cross examine him.
Some of the things I have heard said by these doctors on the witness stand, under oath, are unbelievable. Like when a doctor said that his examination was independent because he didn't even know the examination was related to a lawsuit. No kidding, I asked so how come on the top few lines of your report you mention that the person came to your office together with a representative from their attorney's office. Do all your patients who come to see you bring their lawyer along with them. I asked. He said you know how people are. I said... maybe in your practice.
Or better yet was the time this same doctor testified about an x-ray of a person who fractured their ankle badly in several places and required surgical placement of a plate a screws to put the fracture back together, what doctors call ORIF...open reduction internal fixation. I was just trying to show the jury that when the fracture occurred you could see the bones were significantly separated, or what doctors call displaced, which is one way to gauge the severity of the trauma. The more displacement, the more the possible need for surgery and probably the greater the trauma was.
This doctor being shown the large dark triangular wedge in the ankle bone refused to even admit it was a fracture. Make no mistake, this was not a matter of opinion or interpretation. When an x-ray is taken the bone shows as white because it blocks the x ray from passing through to the film. Where there is no bone it shows dark, such as where the fracture or break in the bone is. Any top doctor or for that matter a good personal injury lawyer, like I like to consider myself to be, who has seen a lot of x-rays can see an obvious fracture. It's plain as day. But jurors are not experienced, so the doctor takes a shot at it, see if it flies.
One time I cross examined an oncologist who was produced by the defense in a case of a man who fell of a building while doing construction worker and suffered what we call a wrongful death. He was there to prove that the deceased plaintiff had an underlying cancer and wouldn't have lived long anyway. so no biggie right!!!! The testimony was based on the autopsy that showed something that was consistent with a cancerous spot. But since he was dead no biopsy was done. I pointed out that with these types of lesions, the non cancerous ones resemble the cancerous ones. He agreed but said that the autopsy doctor said it was cancerous. I said but since they look alike the only way to be sure was with a biopsy, right??? No... he said he has diagnosed cancer in people without a biopsy of the suspicious lesion. I asked him you tell LIVE people they have cancer without a biopsy. He said clearly and emphatically...YES.
Another doosie was the orthopedist who wanted to make light of the fact that my clients, in the joint (intraarticular) fracture was not painful, even though it had become very arthritic. So I took him through the explanation of how when bones break in the joint, the cartilage on the end of the bone breaks too (articular cartilage, like what you see on the end of leg of a chicken bone) and that this cartilage never heals as smoothly, evenly or with the same exact type body tissue as the original. Then as time goes on it rubs when the joint moves and it irritates the opposing surface [ joints are made of bones that meet (like at the elbow or knee) at the joint and are supposed to be separated by cartilage and fluid to keep them moving smoothly and painlessly). but the rubbing goes on and on.... and voila... post traumatic osteoarthritis. And when it rubs enough the cartilage eventually rubs away. Then the opposing bones are what we call "bone on bone" and that is painful. So painful that people with joints like that have them replaced or fused. But NOOOOO, this doctor said... the bones rub themselves smooth again!!!! Oh please I said say that one more time... I just have to hear that again... knowing there was a surgical nurse on the jury who had seen joint fusions and I knew would not believe that line of malarkey.
There was even one orthopedist who testified that bone on bone isn't necessarily painful.
You can't make this stuff up. The truth is far more astounding.
And how bad does it get. Lets see.
Last year, while Elliot Spitzer was still Governor, he had a task force put together to heal the system. But the task force hired a man named Dr. Christopher Brigham who was going to help the healing, being a doctor and all. He had a contract for this work for $162,500.00 for his help. But as reported in the New York Times and elsewhere he himself was one of those "IME" doctors. In fact some argue he is amongst the best known IME doctors. They say he writes articles instructing IME doctors on how to write reports and testify to defeat worker's claims. He owns several IME facilities.
However, the New York State Trial Lawyers Association of which I am a proud chairman of it's Labor Law Committee caught wind of this. I along with others at the organization and other groups, like the New York Worker's Compensation Alliance exposed him for who he is. Those who appointed him had to back down. They paid him, although his work and help would no longer be needed.