New York State Legislature Assaults Brain Damaged Infants

Special interests have assaulted the right to a jury trial in civil cases for many years. In New York, the last successful assault came in 1985. Among other things, the legislature made a formula called “structured judgments.” This took a jury’s money award for a victim’s future damages over a lifetime, and reduced it to a “present value” number. Present value takes away the award and replaces it with a smaller sum of money to be invested over time. This is merely a tool to take away the jury’s last word.

Now, in 2011, brain-damaged babies are the target. Last week, under the cover of a new “budget”, the Governor and the Legislature slashed the rights of brain-damaged infants facing a life of disability caused by malpractice committed upon them at the time of their birth. These are children who suffer cerebral palsy or other profound neurological injury.

What happened in New York and how? The Governor convened a Medicaid Redesign Team (MRT), supposedly to address the New York budget by reducing Medicaid costs. The team consisted of industry insiders and no victim’s rights or public interest advocates. A new “Neurologically Impaired Infants Fund” will take away all rights to future money damages covering health care costs in a jury trial. This applies to all medical malpractice actions involving “birth related neurological injuries.” Instead, those infants who receive future medical costs through trial or settlement will be relegated to this Fund.

In the past, payment for medical expenses would be determined by the infants’ guardians and a judge. The money would come from their settlement or jury award, administered by a court appointed Trustee. Now, the infants with awards or settlements will have their monetary awards for future medical costs essentially ignored. They must apply for their care to a fund administrator, who can limit their reimbursement, and effectively, the quality of care they receive. Care will be decided based on low fees. Care can be delayed until the injured infant dies. This has been known to happen with Medicaid babies. This fund will be under-funded by design, causing the administrator to be as stingy as possible with the Fund.

How does this plan save the State money? In no discernible way. In fact, it costs the State money by the creation of a new fund and a bureaucracy. Who benefits? Only insurance companies and self-insured hospitals. Very serious questions should be asked as to why the Governor made helping insurance companies a priority in his first hundred days. One might ask who his political friends are for a start.

As a sop to critics, the bill adds some luke warm provisions about hospital safety studies and procedures. But it is clear that in this cruel world, insurance companies matter more than brain damaged infants. It is likely that the very people who warned that healthcare reform meant “death panels” will nonetheless applaud this latest “tort reform,” even though it suggests infant death panels.

Never think that the trial lawyers have all the money or influence. They fought this. But the trial lawyers, like many of their clients, remain the underdogs, trying to preserve the Civil Justice System under the Constitution, against cynical unprincipled assaults.

Know your rights….and protect them. Mitchell Kessler 212-268-2677

Strict Products Liability for Guns: A Pipe Dream

The recent shooting of a congresswoman at a public meeting points up the need for better gun control. The shooting represented a horrid chilling effect on the First Amendment rights of assembly and free speech. But of course the gun lobby still ensures that all such pleas for common sense fall on deaf ears.

The Plaintiffs’ bar has historically fought for consumer protections in the form of Strict Products Liability. (For a discussion of this topic please see earlier posts.) The imposition of Strict Products Liability to gun sales would be a common law or judge-made response to gun safety issues, instead of a legislative one.

In essence, strict Products Liability is a judicial doctrine which protects the public from the sale of dangerously defective products by shifting liability to the manufacturer, distributor and seller. In theory it could apply to gun sales. In pure form, it could be argued that any gun’s danger outweighs its utility, and thus all guns are defective. After all, guns are inherently dangerous. That’s a pipe dream. A more practical approach might be to hold gun dealers responsible for money damages when selling to the wrong purchasers. This could include sale to minors, the mentally handicapped, or people with a criminal record. Liability for resulting harm to others should shift to the seller who does not perform the proper background check. Opening the courthouse to such claims might at least make gun merchants circumspect and more careful when selling.

Mitchell Kessler, Esq. 212 268 2677

Levels of Nonprotection

Recently, a small Cessna airplane crashed in Massachusetts. The crash was caused by a failure of maintenance. The maintenance firm for the plane was Federal Aviation Administration approved. The maintenace firm supposedly had a reason to do its conscientious best in maintaining the plane: The repair firm owned it.

What does this teach us? No matter how many the safeguards, no man made backup plan can be trusted. A product can fail, its maintainer can foul up, and the government agencies overseeing any safety program can turn a blind eye. It happens every day. The result? Injury and death.

Thus, the implicit argument of the tort reformers must be rejected. That implicit argument is that personal injury lawyers are superfluous. There is no need to sue for injuries. We will all be protected if we just let the government agencies, or the repair facilities, or the other fill-in-the-blank “trusted professionals” do their job. It is a false claim. Such mistakes are swept under the rug, and accidents caused by negligence are falsely labelled “unavoidable tragedies” without a cause. The only public servants sure to shine a light on negligence and safety hazards are plaintiffs’ personal injury lawyers. Without our civil justice system, we are all just cannon fodder.

Mitchell Kessler 212-268-2677

Don’t Drink The Water

Many communities enjoy the benefits of natural gas. Unfortunately, we still live with the poisonous legacy of its predecessor: Manufactured gas. For a hundred years, from the late nineteenth century until the 1970s, utility companies made gas from coal and oil. It was used for cooking and heating. Waste from the coal and oil was often simply dumped onto the ground, and thus made its way into the soil. The groundwater thus became toxic. The cleanup is not over.

For now, the Department of Environmental Protection sanctions a cleanup process called oxygenation. This is the injection of oxygen into the poisoned groundwater, in the hope it will help bacteria to consume the toxins. The problem is, oxygenation can make matters worse by creating compounds just as dangerous.

The Department of Environmental Protection does not approach such problems proactively. Instead of leaving no stone unturned to ensure our children are not poisoned, the DEC just assumes the cleanup process is safe until it is hit over the head with overwhelming evidence otherwise. The DEP has turned up its nose at recent studies showing the oxygenation process is useless. Often costs get in the way of decent testing and verification. This passive-aggressive approach characterizes most government oversight for consumer protection. All is assumed safe until overwhelmingly proved otherwise. In the meantime, people get sick. As of now, the EPA is turning a blind eye to the perils of oxygenation.

To rely blindly on the government to protect us from harm is to ignore peril. Sadly, the first to be harmed may protect the rest of us. Only after children die from toxins, and a multimillion lawsuit is brought, will the private wrongdoers and their public apologists refrain from polluting our bedroom communities with toxic dumping and illusory cleanups.

Mitchell Kessler, Personal Injury Lawyer 212-268-2677

Municipal Liability: Roadway Design and Accidents

If you’ve read this blog before, you know that municipalities generally cannot be sued, based on the principle of “sovereign immunity.” This principle goes beyond the ancient and now dead idea that “The King can do no wrong.” Rather, it is the principle that government cannot be sued for policy decisions gone wrong. That is what we have a government for: to make value judgments and act upon them. No one expects them all to work out. To sue the government for bad calls on policy would be to end government itself.

However, where government acts as a manager or maintenance supervisor, it is not making policy. There, government assumes a duty of care. In that case, sovereign immunity does not apply.

Imagine now that over the years, many car accidents have happened at a certain intersection in your town. It is a five way intersection with three traffic lights, and no turn arrows. As a result, cars trying to make a turn end up in the middle of the intersection, right in the path of oncoming traffic. Collision accidents, injury and death result.

Here, the municipality has breached a duty to follow safety and roadway design principles. This is not a policy decision, it is a mere act of negligence. Here, the municipality can be sued for its breach of a duty of care to its citizens.

Know your rights.

Mitchell Kessler 212-268-2677

Blame The Victim, or Better: Blame the Victim’s Lawyer

Municipalities pay billions annually for settlements or judgments involving car accidents, negligent supervision, poor maintenance or police brutality. One recent case involved a man killed on his wedding day by a spray of fifty police bullets.

Instead of acknowledging that they have injured the citizens they are sworn to protect, municipal political demagogues complain that the cities are the victims, just targets and deep pockets. The death of a citizen? A mere detail.

One cynical aspect of this municipal anti-plaintiff campaign is to mention that tax payer dollars go for settlements. The idea is to turn the public against their own interests, by appealing to baser instincts: if they are paying, well it must be wrong. Instead of avoiding the mistakes which make them the wrongdoers, the municipal politicians cast the victims as the wrongdoers for daring to exercise their right to access the court system. Their “solution” to the “lawsuit problem”? Close the courthouse to plaintiffs. Take away their rights. Make a travesty of the Constitution.

Another favorite strategy of the municipal tort reformers, is to refer to “greedy lawyers.” The idea is to build resentment for the lawyers’ fee, hoping the public will forget that the case is about the clients. Are we to be jealous of those injured for life because they have received compensation? No. But if we focus on the legal fee, then we can mislead the public.

If it is your tax dollars which go to pay tort plaintiffs, then those tax dollars should certainly be there for you if the need arises.

Mitchell Kessler 212-268-2677

Malicious Prosecution and False Imprisonment

It goes without saying that our police are important protectors of public safety. I am always astonished to consider that they often risk their lives for the rest of us. At the same time it should not go unnoticed that the police receive from the state extraordinary powers, such as the power to detain us, to search persons and homes, the power that comes with a sidearm.

The police officer’s job is often a balancing act between the judicious use of power, and the abuse of power. While we rely on police, law abiding citizens should never fear them. Our republic was founded on the principle that the strong should not be allowed to overpower the weak, and that the public always has a right to hold the power of the state in check, lest it become the power of the police state.

Supervision of these powers rests partly with the courts. The police may be penalized in criminal court by a dismissal of a criminal case, and they may also be liable in civil damages for the abuse or misuse of their authority. When police arrest an individual they must have probable cause or a search warrant. This protects the individual against tyrannical use of the state’s power. This protection against an abuse of the state’s power is one of America’s founding principles. If these rights are not respected, a criminal suspect may go free. The wrongfully obtained evidence is discarded as poisonous fruit.

However, our rights go beyond this. A civil tort claim is available to the falsely accused: malicious prosecution. An individual wrongly put through the ordeal of a criminal trial may claim damages as compensation. For the falsely incarcerated, a claim for damages may lie for false imprisonment. The amount of damages for that depends on the circumstances of incarceration: Was the plaintiff beaten? Was he in jail for a night or for a month or a year? The right to seek money damages in these circumstances is a further expression of our constitutional rights.

Mitchell Kessler 212 268 2677