Category Archives: Articles

"Can I Borrow Some of Your Personal Injury Settlement Money?" Asks a Friend

“Can I Borrow Some of Your Personal Injury Settlement Money?” Asks a Friend

“Can I Borrow Some Money?” Asks a Friend Who Learns of Your NY Personal Injury Settlement
http://www.Oginski-Law.com/

NY Medical Malpractice & Personal Injury Trial Lawyer
516-487-8207
Email: Gerry@Oginski-Law.com

It’s inevitable. Your friends, your family and even your coworkers will, at some point learn that you have settled your New York personal injury accident lawsuit. They’re happy for you. They’re glad you were able to get compensated for your injuries.

Next thing you know, one of your friends comes to you in desperation asking to borrow money. He knows you just came into a lot of settlement money. He needs money to pay his rent. Otherwise he’s going to be evicted.

You feel bad for him. You are tempted to help him out.

Next thing you know, one of your coworkers comes to you asking for money to buy a car. Shortly after that one of your relatives comes to you and tells you a sob story and asks to borrow money.

These people are all well meaning, but they are under the impression that you have money sitting under your mattress and can loan them money like a bank.

There are tips and strategies you can use in order to avoid being inundated with requests from friends, family and coworkers to borrow your settlement money.

Remember, your settlement is designed to help you with your expenses and to pay for things like your children’s college tuition and is designed to last you for your entire lifetime. If you begin to squander it by spending it or giving it away, you will quickly learn that in a few short years you will have little or no money left.

Watch the video to learn more…

Here’s a cardiac malpractice case where I was able to achieve a $6 million dollar settlement for my client: http://www.oginski-law.com/video/cardiac-malpractice-in-ny.cfm

Here’s a foot surgery case where a Westchester, NY jury awarded my client $1.55 million dollars for her pain and suffering: http://ow.ly/azKg6

To learn more about how medical malpractice cases work in the state of New York, I encourage you to explore my educational website, ‪http://www.Oginski-Law.com‬.

If you have legal questions, I invite you to pick up the phone and call me at 516-487-8207 or by email at Gerry@Oginski-Law.com. This is what I do every day and I’d be happy to chat with you.

Law Office of Gerald Oginski
25 Great Neck Road, Ste. 4
Great Neck, NY 11021
516-487-8207

Email: Gerry@Oginski-Law.com

How Long Does it Take to Develop Symptoms After a Car Accident?

How Long Does it Take to Develop Symptoms After a Car Accident?

http://www.IthacaInjuryLawyer.com

Car and truck accidents can cause injury to the many bones, muscles, tendons, nerves, and ligaments of the wrist. The body is complex and complicated. We rely on our bodies to do precision movements. The many small structures work together to allow us a great range of movements. When the body has been impacted by an accident, it can set off a chain reaction, but often the affects occur gradually. Sometimes we not even notice the headaches, pains, loss of sleep, loss of appetite, or the ability to do the things we did before the crash.

This video helps you understand how injuries and their manifestations can develop slowly over the course of weeks or months.

For more information on bone healing see my blog “How long does it take a Scaphoid to heal” here:

http://ithacadwi.blogspot.com/2012/10/ithaca-lawyer-answers-how-long-does-it.html

I am a doctor of chiropractic, and an attorney at law. My law practice focuses on criminal defense, and auto/truck injury.

To learn more about how injury law works in the State of New York I encourage you to explore my educational materials. I invite you to view my You Tube library. It has an extensive collection of medico-legal videos or you can visit my blog.

If you have any legal questions, I urge you to pick up the phone and call since I can answer them at 607-229-5184 or by e-mail at newman.lawrence@gmail.com. I welcome your call.

Dr. Lawrence (Larry) Newman
Doctor of Chiropractic
Attorney at Law
504 North Aurora Street
Ithaca, NY 14850

607-229-5184

http://www.IthacaInjuryLawyer.com

Controlled Affiliates Under the Massachusetts Tort Claims Act: New Case Law

Does a property owner who is a “controlled affiliate” of a
public housing authority also qualify as a public entity by its affiliation?
More importantly for purposes of personal injury law, is an injured tenant
limited in recovery against the controlled affiliate under the Massachusetts
Tort Claims Act? These questions were addressed by the Appeals Court in
the Massachusetts case of
Acevedo v. Musterfield Place.

In the case, the plaintiff
slipped and fell while he was walking down the stairs in his apartment in a public housing
authority in Framingham. He suffered serious
injuries and sued the housing authority, the property owner, and the managing agent
in order to recover for his
damages. The property owner and manager filed a motion for summary judgment, asking
that they be regarded as public employers under the Massachusetts Tort
Claims Act. The effect of that would be to limit their liability to $100,000
in damages, which is the limit for public entities prescribed by the act.

The property owner in this case was classified as a “controlled affiliate”—it
is more than a private contractor, as it purchased the property from the
public housing authority in order to assist with its rehabilitation and
maintenance. Under the Code of Massachusetts Regulations, the controlled
affiliate is required to maintain the property in the same manner and
to the same effect as if it were a public housing authority.

The trial judge denied the defendants’ motion, noting that the act
clearly defines public employers, and that “controlled affiliates”
of public entities, such as the defendants, are not considered public
employers. The judge then reported the case to the Appeals Court, recognizing
that this was a case of first impression in Massachusetts.

The Appeals Court concluded that neither a controlled affiliate nor the
manager of a controlled affiliate is a “public employer” as
defined in the Massachusetts Tort Claims Act, noting that the language
of the act does not include controlled affiliates, and in fact, specifically
excludes private contractors.

The Court compared the situation to private contractors. “[I]f a
housing authority that owned a housing development were to retain a private
contractor to manage the development (including delegating to that private
contractor the responsibility for maintenance and repairs in the housing
development), a suit brought by a tenant of the housing development against
the private contractor for injuries arising from the negligent failure
to maintain or repair the premises could not be brought under the act
and, accordingly, would not be subject to the limitations on liability
in the act,” the Court stated. Simply having a contract that required
the contractor to perform the same duties of maintenance and repair that
a housing authority would have does not transform the contractor into
a public housing authority or public employer, the Court noted.

“Accordingly, if a private contractor that manages property owned
by a housing authority is not a public employer (even if it were contractually
obligated to manage the property as if it were a housing authority), then
a controlled affiliate that purchased the property from the housing authority,
but is required by regulation to manage the property “in the same
manner and to the same effect as if it were” a housing authority…is
also not a public employer,” the Court said. “It would be
strange indeed if the sale of the public property by the housing authority
to a private entity could enable that private entity to become a public
employer.” The Appeals Court affirmed the trial judge’s decision
to deny the defendants’ motion.

If you have any questions about motor vehicle accidents, negligence matters,
personal injury law,
tort law, intentional torts, damages, or other legal incidents, please
contact our offices. You may schedule a free consultation with an experienced professional
today. Call 978-225-9030 during business hours or complete a contact form
online, and one of our
experienced personal injury attorneys will get back to you.

Can Generic Consumers Sue a Name Brand Drug Manufacturer for Injuries? New Case Law

Do you take prescription
medication? If so, do you take the name brand medication, or do you sometimes turn
to its generic counterparts? If you are like many of us, you have probably
ingested generic prescription medications.

Under federal regulations, upon first releasing a brand name medicine,
the drug manufacturer must prove that the drug is safe, which includes
proof that the warning labels on the drug are adequate and accurate. The
process is slightly different for generic drugs, however: there is a simpler
and speedier approval process, whereby the manufacturer of the generic
drug has to show that it contains the same active ingredients of the brand
name drug, and that the warning label is the same as its brand name counterpart.
Thus, while a brand name manufacturer has a duty to ensure its label is
adequate and accurate, the generic manufacturer only has a duty to ensure
its label is identical to the brand name one. Moreover, only the brand
name manufacturer has the power to alter the label.

So, what happens when the brand name manufacturer updates its warning label,
but the generic manufacturer doesn’t? When a generic drug fails
to include adequate warnings about the medicine and its side effects,
could an injured party sue the manufacturer of the name brand medicine,
which originally drafted the warning label?

This issue was recently discussed by the Massachusetts Supreme Court in
the case of
Rafferty v. Merck. At issue was whether an
injured party may bring a common-law general negligence claim and a statutory
consumer protection claim against the brand-name drug manufacturer that
created the warning label of medication which caused injury to the plaintiff.

In the case, the plaintiff was prescribed the drug finasteride in order
to treat an enlarged prostate. Shortly after he started taking the generic
version of the drug, the plaintiff began to experience side effects causing
sexual dysfunction. Though he weaned himself off the drug, the side effects
continued. The plaintiff was eventually diagnosed with hypogodanism and
androgen deficiency allegedly induced by the finasteride, and his treatments
will continue indefinitely. Though the product label warned of the side
effects in question at the time the plaintiff took the drug, the label
noted that the side effects would resolve after discontinuing the drug.

The plaintiff sued Merck in the Massachusetts Superior Court, asserting
claims of
negligence for failure to warn, and a violation of the state consumer protection
statute. The plaintiff alleged that by the time he was prescribed finasteride,
several reports and studies had already emerged suggesting that those
side effects could in fact persist even after discontinued use, but Merck
had not changed its warning label. He further alleged that although he
never took Merck’s name brand version of finasteride, Merck nevertheless
owed him a duty to warn of its dangers because, under Federal law, Merck
controlled the label on the generic version. The trial judge allowed Merck’s
motion to dismiss. The plaintiff appealed, and the Supreme Judicial Court
transferred the case on its own accord.

The high court discussed the difficulties in federal labeling laws. “This
allocation of labeling responsibilities under Federal law has proved difficult
to reconcile with the duties required of generic drug manufacturers under
State tort law,” the Court explained. “Many States, including
this one, impose on manufacturers a duty to warn consumers of dangers
arising from the use of their products where the manufacturers know or
should have known of the dangers.”

Normally, the Court acknowledged, a defendant’s common law duty of
care would not extend to a product which was technically not its own.
However, based on public policy reasons, the Court also acknowledged that
imposing no liability on brand name manufacturers leaves the consumer
with zero chance of obtaining compensation for their injuries. Essentially,
the Court needed to balance various competing considerations: imposing
liability might chill invention, but failing to do so might leave consumers
in a lurch.

“Having weighed these considerations, we conclude as a matter of
public policy that allowing a generic drug consumer to bring a general
negligence claim for failure to warn against a brand-name manufacturer
poses too great a risk of chilling drug innovation, contrary to the public
policy goals embodied in the Hatch-Waxman amendments. But we also conclude
that public policy is not served if generic drug consumers have no remedy
for the failure of a brand-name manufacturer to warn in cases where such
failure exceeds ordinary negligence, and rises to the level of recklessness,”
the Court held. “We therefore hold that a brand-name manufacturer
that controls the contents of the label on a generic drug owes a duty
to consumers of that generic drug not to act in reckless disregard of
an unreasonable risk of death or grave bodily injury. This recklessness
standard strikes the most appropriate balance between competing public
policy interests, limiting liability for brand-name manufacturers while
also providing remedies for the most serious injuries and deterring the
most dangerous forms of conduct.”

By establishing a “recklessness” standard, the Court noted
that it stayed within the confines of established tort law and required
proof of more than mere negligence in order to hold a brand name drug
manufacturer liable in this situation. The Massachusetts court here deviated
from the majority of courts, which do not impose a duty to warn generic
consumers on brand-name manufacturers. It also created the only ruling
to limit the scope of liability to a reckless disregard standard. “Under
this standard, a brand-name manufacturer that intentionally fails to update
the label on its drug to warn of an unreasonable risk of death or grave
bodily injury, where the manufacturer knows of this risk or knows of facts
that would disclose this risk to any reasonable person, will be held responsible
for the resulting harm,” the Supreme Judicial Court noted.

Ultimately, the high court vacated the dismissal of the case and remanded
it to the Superior Court, in order for the trial court to decide the question
of whether the plaintiff stated a failure to warn claim that meets the
standard of a reckless disregard of an unreasonable risk of death or grave
bodily injury.

If you have any questions about motor vehicle accidents, negligence matters,
personal injury law, tort law, intentional torts, damages, or other legal
incidents, please
contact our offices. You may schedule a free consultation with an experienced professional
today. Call 978-225-9030 during business hours or complete a contact form
online, and one of our
experienced personal injury attorneys will get back to you.

Liability to Protect Against Foreseeable Car Accidents: New Case Law

A recent Massachusetts appellate case addressed the issue of liability
of a convenience store to protect against foreseeable
car accidents on its property.

The case,
Dubuque v. Cumberland Farms, dealt with a terrifying 2010 accident where the victim was hit by a speeding
sport utility vehicle while she was walking into a Cumberland Farms convenience
store. The victim died instantly. The car was traveling at high speed
across an intersection and crashed through the façade of the store.
At the trial, much evidence was admitted showing that the entrance into
the store’s parking lot was an apex, making it much more difficult
to navigate at a high speed.

The husband of the victim, as executor of her estate, brought suit against
Cumberland Farms for
negligence and gross negligence. The husband claimed that Cumberland Farms was on
notice of the risks that cars posed to customers at its stores. The husband
claimed that Cumberland Farms could have prevented the victim’s
death by installing bollards or other protective barriers, as well as
installing barriers at the apex entrance to the parking lot.

In defense, Cumberland Farms argued that it should not be held liable
for the accident, as there have been no prior car strikes at that particular
store in the past. Further, the defendant argued that the accident was
not foreseeable and was random, and that no reasonable measures would
have prevented the accident because it involves such a large vehicle traveling
at such a high speed.

A jury found Cumberland Farms negligent and awarded to the plaintiff over
$32 million in compensatory damages. The trial judge reduced those damages
upon motion by the defendant, concluding that they were disproportionately
high compared to the evidence. The judge noted that the damages were the
product of some degree of passion, partiality, or prejudice. The judge
ordered a new trial on the issue of damages, unless the plaintiff accepted
a damages award of $20 million, which the plaintiff did accept. Both parties
filed for appeal.

The Appeals Court addressed Cumberland Farms’ argument that in order
for evidence of previous car accidents to be admitted at trial, those
accidents must bear a substantial similarity to the accident in question.
The Court held against that argument. “Absolute identity of circumstance
was not required, and the reasons for the uncontrolled car strikes need
not be the same,” the Court noted. “It is enough that the
evidence showed that Cumberland Farms was aware of the risk of the uncontrolled
car strikes at its stores; the evidence was relevant to both foreseeability
and breach of duty.” There was no need for the trial judge to examine
individual driver behavior and reasons for each accident prior to allowing
the jury to hear about those accidents taking place, the Court said. Rather,
“what was relevant was whether Cumberland Farms was aware of the
risk of uncontrolled vehicles striking the fronts of its stores and endangering
customers and employees. The judge did not abuse his discretion when he
decided that uncontrolled car strikes, rather than the precise reason
for the car strikes, were relevant to the jury’s consideration of
whether the risk was foreseeable and whether Cumberland Farms was aware
of that risk.”

The defendant then argued that the admission of an internal report (which
discussed, among other things, the various car accidents experienced on
the defendant’s properties) into evidence was highly prejudicial due
to the sheer number of car accidents referenced, at 485, which was much
higher than the number of accidents admitted in any other negligence case.
The Court again disagreed: “The facts spoke for themselves — Cumberland
Farms had experienced an average of one car strike per week for a sustained
period of time at various stores. Cumberland Farms was on notice of these
occurrences and took steps to protect its property, such as the sign at
the Chicopee store. The evidence was not presented in a way that overshadowed
the trial.”

Next, the defendant argued that the accident was random and unforeseeable
as a matter of law, citing that the driver unintentionally encroached
on the adjacent public way and drove at “highway-like speeds.”
Cumberland Farms argued that because the accident was unforeseeable, it
owed no duty, as the risks of harm were not the type it knew or reasonably
should have known about, and not the types against which it could have
employed reasonable preventive measures.

Once again, the Court held against the defendant, affirming the judgment.
“Cumberland Farms had experienced numerous car strikes at its stores,
including uncontrolled vehicles unintentionally encroaching upon store
property at high rates of speed. It also was on notice that the apex entrance
posed particular dangers, and, in fact, vehicles had entered the Chicopee
store property at dangerously high rates of speed through the apex entrance,”
the Court noted. “Finally, the plaintiff presented sufficient evidence
to support a finding that Cumberland Farms could have employed reasonable
preventive measures to address those risks. All told, therefore, we cannot
conclude, as a matter of law, that no rational view of the evidence would
warrant a finding of foreseeability.”

If you have any questions about motor vehicle accidents, negligence matters,
personal injury law, tort law, intentional torts, damages, or other legal
incidents, please
contact our offices. You may schedule a free consultation with an experienced professional
today. Call 978-225-9030 during business hours or complete a contact form
online, and one of our
experienced personal injury attorneys will get back to you.

The Massachusetts Rule Regarding Neighbors’ Trees: New Case Law

As the expression goes, “good fences make good neighbors.”
Under some circumstances, however, neighborly disputes can – and
do – arise. One of those circumstances deals with Mother Nature
at her finest: what happens when a neighbor’s tree branches reach
over another’s property, causing
damages?

This was the issue in a recent case decided by the Massachusetts Supreme
Judicial Court. In the case,
Shiel v. Rowell, the plaintiffs filed a complaint for private nuisance and trespass against
the defendant, a neighbor. The plaintiffs alleged that the neighbor’s
tree caused algae buildup on the roof of the plaintiffs’ home. Though
the plaintiffs asked the defendant neighbor to cut it down, the defendants
refused. The plaintiff sought money damages as well as an injunction requesting
that the overhanging branches be cut back. At trial, the judge dismissed
the plaintiffs’ claims. The plaintiffs appealed.

The case was originally decided based on the so-called “Massachusetts
rule,” which has long held that a landowner may not hold a neighbor
liable when a healthy tree on the neighbor’s property causes damage.
This rule was established by a case named
Michaelson v. Nutting–as that case pointed out, a Massachusetts landowner has the right
to use his or her land, and all of his or her land, to grow trees. In
that case, the Massachusetts courts recognized the plaintiff’s right
to cut off intruding boughs and roots in order to protect their own property
from harm.

The plaintiffs in this case urged the Massachusetts court to adopt the
so-called “Hawaii rule,” which grants neighbors the right
of action in order to resolve a dispute in court over healthy trees. The
Hawaii rule allows the neighbor to recover for damage and cut back branches
and roots if the tree causes imminent danger or sensible harm to the neighbor’s
property. The plaintiffs argued that the Massachusetts rule is outdated
and should be replaced. The plaintiff noted that today, people are living
closer to one another and on smaller tracts of land than at the time when
the Massachusetts rule was adopted. The defendants, on the other hand,
argued that the Massachusetts rule was more sensible and should not be
disturbed.

The Supreme Judicial Court sided with the defendants. In its decision,
the court discussed the steps towards disturbing precedent, and noted
that doing so would require something above and beyond mere disagreement.
“We may uproot precedent when ‘the values in so doing outweigh
the values underlying stare decisis.’ Overruling precedent requires
something above and beyond mere disagreement with its analysis,”
the Court noted.

In this regard, the Court refused to uproot the precedent set by the Massachusetts
rule. “We see no reason to consider the Massachusetts rule outdated.
It may be true that people today are living in closer proximity to one
another on smaller tracts of land than they were when the Massachusetts
rule was adopted in the early Twentieth Century,” the Court explained.
“But if changes in property ownership would lead us to believe that
tree owners are now better able to monitor their trees, the same would
be true for their neighbors to monitor and trim encroaching trees. It
may be easier to recognize impending or potential harm to one’s own
property from overhanging branches and intruding roots than it would be
for the tree owner to recognize what is happening next door. And even
if it is also true that trees today are more likely to cause property
damage to neighbors’ property, it would be ‘undesirable to categorize
living trees, plants, roots, or vines as a ‘nuisance’ to be abated.’”

If you have any questions about motor vehicle accidents, negligence matters,
personal injury law, tort law, intentional torts, damages, or other legal
incidents, please
contact our offices. You may schedule a free consultation with an experienced professional
today. Call 978-225-9030 during business hours or complete a contact form
online, and one of our
experienced personal injury attorneys will get back to you.