My hat is off to Elmira Police and the local residents who assisted the police in identifying the hit and run driver who hit the 18 year old skateboarder on Hoffman Street in Elmira, right in front of EFA High School.  As you might imagine, it can be tough to track down hit and run drivers but it’s nice to see that with hard work, persistence and the assistance of eyewitnesses, the police were able to track down the cowardly driver who hit this poor skateboarder.  Although the police have located the driver, they have not publicly released the driver’s name at this time.

From my perspective, I am glad that this driver has been found and I hope he is prosecuted to the fullest extent of the law!  How someone could run down another person and then leave them to die on the side of the road is beyond me……

CRIMINAL CHARGES LIKELY

The hit and run driver will likely be facing a long list of very serious criminal and vehicle & traffic charges:  Leaving the Scene of an Accident, Failure to Yield the Right of Way, Imprudent Speed, Following Too Closely, etc.

CIVIL LAWSUIT LIKELY

In addition to these criminal charges, the driver will also be liable in a civil lawsuit for the injuries and damages his negligent driving has inflicted on the skateboarder.  The skateboarder will need to pursue coverage for his medical bills and lost wages from the insurance carrier for the driver and often times that coverage is insufficient to cover the full extent of the bills so the skateboarder may need to pursue additional coverage from other sources like his own health insurance coverage, coverage from his own car or another car in his household, crime victim trust funds, etc.  Unfortunately, all of these insurance coverage issues can become very complicated so my best advice to this skateboarder is that he should talk to an experience personal injury lawyer ASAP who can guide him through the complex maze of these insurance issues.

SKATEBOARDER IDENTIFIED AS TIMOTHY OLSON

As to the skateboarder, he has now been identified as Timothy Olson of Elmira.  The Elmira Star-Gazette (full story below) lists Tim as still being in critical condition at the Arnot Ogden Medical Center. My best wishes go out to his family for a quick recovery.

Thanks for reading,
_________________________________
James B. Reed
NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
Mailto: jreed@zifflaw.com
Phone: 733-8866

Elmira police find driver in hit-and-run

Elmira police on Thursday said they have found the driver involved in the recent hit-and-run accident with an 18-year-old man on a skateboard, and released the name of the injured man.

Police said Timothy Olson, 18, of Elmira, was injured in the Tuesday night accident on Hoffman Street in Elmira He was listed in critical condition Thursday night at Arnot Ogden Medical Center.

Police did not release the name of the driver, citing an ongoing investigation into the incident.

Police said they used tips from local citizens to find the driver.

I am in the process of drafting a complaint against a doctor, nurse and hospital for extremely egregious medical malpractice that led to the premature and unnecessary death of an Elmira man.  Included in my complaint is a claim for punitive damages.

In drafting the complaint I did a fair amount of research about punitive damages in New York, and learned several helpful tips for both practitioners and potential claimants.

At the onset, it is critical to understand what punitive damages are designed to do as well as the strict limitations New York Courts apply in their application.  New York’s tort system (the system that allows injured people to recover against the people or entities that caused their injuries through negligence, malpractice and intentional conduct,) generally allows an injured person to only be compensated for actual economic and non-economic injuries directly related to his or her injuries.  These types of damages are called “compensatory damages” because they are designed to compensate victims.  Compensatory damages include such things as lost wages, medical bills, pain and suffering, loss of enjoyment of life and future treatment costs.

Punitive damages, on the other hand, are designed to punish and deter the wrongdoer or “tortfeasor”.  In other words, the purpose of awarding punitive damages is to send a message to the torfeasor and all similarly situated persons or entities that the conduct alleged is so egregious and unacceptable as to require punishment in order to deter others from engaging in the same types of acts.

In 2008 the New York Law Journal published a very interesting article called “The Rules On Punitive Damages.”  In this article authors Steven Napalitano and Hayden Coleman explain, “[t]hese damages, also known as exemplary damages, serve a dual purpose: first, to punish the tortfeasor, and second, to deter both the wrongdoer and others similarly situated from engaging in the same conduct in the future.”

There is no question the bar for allowing an injured person to recover punitive damages in New York is set very high.  In a recent landmark case, New York’s Court of Appeals (the highest court in New York) observed:

“Punitive damages are permitted when the defendant’s wrongdoing is not simply intentional but evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations”. (Ross v Louise Wise Serv., Inc., 8 NY3d 478, 489, quoting Walker v Sheldon, 10 NY2d 401, 405; see Prozeralik v Capital Cities Communications, 82 NY2d 466, 479; Sharapata v Town of Islip, 56 NY2d 332, 335).

Indeed, Napalitano and Coleman assert “New York courts have strictly limited punitive awards to the most reprehensible instances of wrongdoing; they are only awarded in cases involving gross, wanton or willful fraud, or other morally culpable conduct.”

So, the question emerges: are punitive damages appropriate in my case?  Of course, the analysis required to answer this question must be performed on a case-by-case basis.  However, there are a few general considerations every practitioner and potential claimant should keep in mind:

1.   Does the conduct warrant punitive damages?

This is the million dollar (figuratively speaking, of course) question.  In many ways the answer starts in your gut.  Do the tortfeasor’s actions make you mad? Really mad?  Seething mad?  Do they make you want to call the newspaper and the cops and 20/20 because this sort of thing should never happen in the USA?  If the answer is a resounding yes, then perhaps you have a claim.

Much more critically, do the torfeasor’s actions make your 72 year-old/very fiscally conservative/wary of lawsuits/cheerleader of tort reform mother-in-law seething, red-faced mad?  Too often we see our cases through a rose-colored lens, and, after having sat with a grief-stricken family, believe punitive damages are a given.  They’re not.  Ever.  Vet your case out to your neighbors, your families, your colleagues.  Become part of some active list-serves.  Read verdict sheets.  There is simply no substitute for good old research.  It can save you a lot of time (and face) down the road when you are answering the summary judgment motion the defendant will surely bring.

2.   Would the conduct have made your mother-in-law seething, red-faced mad at the time it occurred?

Do not overlook this step!  Determine when the conduct occurred.  Is this a toxic tort case that involved conduct in the 1950’s?  Is this an asbestos case where the building was erected 50 years ago?

According to Napalitano and Coleman, “a claimant should be precise in defining the time period of the conduct allegedly justifying punitive damages. In cases where the conduct at issue happened many years ago, as is often the case in the toxic tort context, a plaintiff must be prepared to show that the conduct was outrageous based on the norms and knowledge then prevailing. Defense counsel may seek to engage an expert witness to establish that the conduct was not sufficiently malicious or vindictive at the time. Finally, if circumstances have changed so that the allegedly offending conduct could not happen today, as with a change in the law, defense counsel may properly assert that the goal of deterring future improper conduct cannot be satisfied.”

3.   Is the claim for punitive damages insured?

As usual, insurance is the 110 pound gorilla in the room.  It is one thing to be a crusader and secure a 10 million dollar punitive damages verdict for your client, but a whole other beast to actually translate the judgment into money your client can take to the bank.

Unfortunately, it appears claims for punitive damages are generally uninsurable in New York.  New York’s Court have ruled the public policy underlying a claim for punitive damages – that tortfeasors actually endure punishment in order to deter future bad conduct – is eradicated if insurance companies simply pick up the tab.

The law firm McCullough, Campbell & Lane, LLP created a detailed list of the rules governing the interplay of punitive damages and insurance in all 50 states, including New York:

Directly assessed punitive damages are not insurable in New York. See Public Service Mut. Ins. Co. v. Goldfarb, 425 N.E.2d 810 (N.Y. 1981); Hartford Accident & Indem. Co. v. Village of Hempstead, 397 N.E.2d 737 (N.Y. 1979); Soto v. State Farm Ins. Co., 600 N.Y.S.2d 407 (N.Y. App. Div. 1993), aff’d 635 N.E.2d 1222 (N.Y. 1994); National Union Fire Ins. Co. of Pittsburgh, Pa. v. Ambassador Group, Inc., 556 N.Y.S.2d 549 (N.Y. App. Div. 1990), appeal dismissed, 571 N.E.2d 85 (N.Y. 1991).

In addition, the court in Home Ins. Co. v. American Home Products Corp., 550 N.E.2d 930 (N.Y. 1990), aff’d in part, rev’d in part, 902 F.2d 1111 (2d Cir. 1990), applied the prohibition to out-of-state punitive damages awards for which the insured seeks coverage in New York. The court pointed out that “the punitive nature of the award, coupled with the fact that a New York insured seeks to enforce it in New York against a New York insurer … calls for the application of New York public policy.” 550 N.E.2d at 933. See Zurich Ins. Co. v. Shearson Lehman Hutton, Inc., 642 N.E.2d 1065 (N.Y. 1994) (noting that only when a statute allowing indemnification awards damages that serve a wholly punitive, and not compensatory, purpose are they precluded by New York policy).

Vicariously assessed punitive damages are not insurable in New York. See Zurich Ins. Co., 642 N.E.2d 1065.

This of course does not mean claims for punitive damages should never be asserted in NY, nor does it mean they are always uninsured.  It simply means practitioners should have their eyes wide open with respect to collections matters.

Thanks for reading!

Christina

_________________________________
Christina Bruner Sonsire, Esq.
NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
303 William Street
Elmira, New York 14902-1338
csonsire@zifflaw.com
Office: 607.733.8866
Toll-Free: 800.ZIFFLAW (943.3529)
Web: zifflaw.com
Blog: NYInjuryLawBlog.com

I started my legal career at the Chemung County District Attorney’s Office where I prosecuted crimes against women and children, (and just happened meet my wonderful hubby).

Today I received an inquiry from WETM’s Law Talk regarding youthful offender adjudication.  The inquiry read:

I am curious about my Youth Offender status.  I made a stupid mistake and got arrested..small misdemeanor charge, nothing serious…anyways I spent a couple of hours in jail and went to court the next morning.  Since it was my first offense I was put as a Youth Offender and they said it would not be put on my record or “replacing an actual conviction” if I stay out of trouble of course for certain period of time.  Now I called the courthouse and was told my record is “clean” and will remain clean until for that period of time until they throw it out when the time comes.  I also called the Sheriff’s office where I was arrested and they said my arrest record along with the court record is sealed and will be thrown out when I finish my unwatched probation.

I had a background check done on me and nothing shows up…and I was also told that even though I was fingerprinted they will not send my fingerprints to the FBI because again my record is still considered clean.  I understand I can still have this put on my record if I mess up.

I just want verify if this is the case..I don’t want it sent up to the FBI and I want to know what’s your say on this.  Is this basically a 2nd chance for me not to mess up?  How certain is it that they will throw it out if I complete my probation?  Is there a certain law that applies with Youth Offenders?

This gave me a good chance to wade through the cobwebs in my noggin and think about Criminal Law for a few minutes.  I responded:

You are correct.  Unless you have something unrelated to this on your record, your record is clean.

New York State Law essentially allows young people under 18 who are charged with a misdemeanor a free pass the first time they get into trouble.  In other words, the misdemeanor conviction for a person age 18 or younger is replaced with “Youthful Offender Status” and the person’s record remains clear.

The law makes the replacement of a misdemeanor conviction with YO mandatory (called “mandatory YO”) for all people under 18 if that person has not been convicted (i.e. has not received YO in the past), though it may not apply to some misdemeanor sex crimes.   I am not sure.  A judge generally has discretion to grant YO (called “discretionary YO”) to any person under 18 regardless of the person’s past criminal history, though most judges do so very rarely.

My guess is you plead guilty to the misdemeanor and were granted mandatory YO and a conditional discharge or probation, meaning if you stay out of trouble for one year from the time you plead guilty the court will lose jurisdiction to resentence you.  If you get into trouble, the judge can bring you back into court and impose a greater sentence (jail, probation, etc), but, with respect to this charge, you should always be mandatory YO.

The bottom line is if what you say is true, your record is squeaky clean and you should not have any problems.  Keep in mind most background checks ask if you have ever been “convicted” of a crime.  The answer for you is no – YO is NOT a conviction.  But, be careful of the wording in the background check.  It may ask if you have ever been “arrested”, in which case you would have to say yes. Read the rest…

During hot summer days like those we’ve been having recently – when the temperature reaches into the 90s and even above – the Chemung River can look like a pretty inviting place to take a swim.

You can see it from so many spots in the Twin Tiers area. It starts in Painted Post, where Trails.com says the Iroquois Indians held the river sacred and marked its beginning – the convergence of the Tioga and Cohocton rivers – with an actual “painted post.”

The Chemung idles through Corning, and passes right through downtown Elmira, practically splitting the city in half. Then it’s on toward the PA border,  past Wilawana, Waverly, Athens and Sayre. South of Athens and Sayre, the Chemung melds into the Susquehanna River, which travels on to Chesapeake Bay and the Atlantic.

The Chemung River is an integral part of the scenery and life of Twin Tiers residents. You can see it from so many of our cities and villages, and its length is peppered with boat launch sites and access points.  The Chemung Basin River Trail Partnership is one of the organizations devoted to keeping residents aware of the river and its beauty.

Unfortunately, recent regional accidents point out that everyone must also be aware of the safety concerns of swimming in the river. In a tragic accident on Tuesday, a 16-year-old girl drowned in the Susquehanna River, pulled under by a strong current. (The story, “Girl Drowns in Susquehanna River,” was covered by the Star-Gazette). The Star-Gazette also reported on the river drowning  death of a 74-year-old man in Northern New York on Monday.

These tragedies illuminate the dangers fire and police authorities hope the public is aware of. WETM-TV covered the story, “Dangers of Swimming in the Chemung River”, pasted below, which included several warnings from the Elmira Fire Chief, Patrick Bermingham. He cautioned that:

• River currents can be deceptively slow on the surface – and stronger beneath.
• Hidden debris can hurt or snag swimmers from the river bottom.
• Town pools offer lifeguards and better supervision for children.

In Corning, a safe “cooling center” has been opened by the American Red Cross. Anyone can stop in the center to take advantage of the lower temperatures inside and get re-hydrated with provided water. WETM also reported on this development, in the story “Cooling Center Open in Corning” It’s the first time such a center has opened in Steuben County – proof positive that we are having one hot summer.

The Chemung River is beautiful - look at it, fish it, take your boat or canoe out on it. But if you choose to swim in it,  be extra careful.

Thanks for reading,

Adam

______________________________

Adam M. Gee, Esq.

NY and PA Personal Injury, Malpractice and Motorcycle Accident Attorney

The Ziff Law Firm, LLP

303 William Street

Elmira, NY 14901

Phone: (607)733-8866

Fax: (607)732-6062

Email: agee@zifflaw.com

www.zifflaw.com

My book, “Would You Ride Your Motorcycle Naked?” It is available FREE to New York or Pennsylvania accident victims; follow the link to order a copy.

“Dangers of Swimming in the Chemung River”

(WETM Nick Natario,  7/06)

ELMIRA – With the temperature surging into the 90′s this week, neighbors are searching for ways to stay cool.

Some of them are turning to the Chemung River.

That’s something the Elmira fire chief urges you not to do.

A number of people were swimming in the water Tuesday at the Grove Street Boat Launch in Elmira.

Elmira Fire Chief Patrick Bermingham says while the current looks slow on top, it’s much stronger underneath.

He says that debris can also be floating down the river which can tangle you.

But neighbors who decide to swim here anyways say they take extra precautions.

“Swim with partners, always be around people and don’t go out too far,” said Samantha Ray.

“We swim with a partner and always make sure there’s somebody with us,” said Valerie Bellows.

“I believe that parents, if they are in there need to be on guard, if you will for the kids who can get into trouble in an instant,” said Bermingham.

Bermingham says there are plenty of other safe alternatives to swim at: such as a local school or county pool instead of the river.

Since shortly before Memorial Day, a cross-country tour has been bringing attention and honor to our nation’s wounded soldiers and earning money to help them and their families.

The 2010 Harley-Davidson Nation of Patriots Tour is a fundraiser and an effort by Harley-Davidson owners to bring attention to the sacrifices our military forces have made. More than 150,ooo motorcyclists will participate nationwide; the tour recently passed through the Twin Tiers. The riders at each leg of the tour pick up an American flag to carry and pass on to the riders for the next leg. The photo with this post is of the riding group and soldiers, June 8 at Southern Tier Harley-Davidson in Binghamton.

The tour began May 28 at a Harley-Davidson store in Oconomowoc, Wisconsin. It’s the hometown dealership of the tour’s founder, Bill Scherer. The tour that Scherer started in 2009 will cross 48 states in 100 days. Check out the Nation of Patriots home page to see a map and locate the riders’ current location (as I write, it’s Binghamton, New York!). WETM-TV reported on local riders participating in the tour in the online story “2010 Patriot Tour”; a copy of the story is pasted below.

As a New York and Pennsylvania motorcycle accident attorney, I think this charity is a fantastic idea. It puts together  Harley riders from across the country all riding and raising money for a common cause.

The 2010 Nation of Patriots Tour will cross the United States and return to the starting point in Wisconson. You can learn more about the charity at the Nation of Patriots home page and even make a direct donation.

Thank for reading,

Adam
______________________________
Adam M. Gee, Esq.
NY and PA Motorcycle Accident Attorney
The Ziff Law Firm, LLP
303 William Street
Elmira, NY 14901
Phone: (607)733-8866
Fax: (607)732-6062
Email: agee@zifflaw.com
www.zifflaw.com

My book, “Would You Ride Your Motorcycle Naked?” is available FREE to New York or Pennsylvania accident victims; follow the link to order a copy.

2010 Patriot Tour

(Reported by Sofia Ojeda on WETM-TV)

Painted Post, N.Y.- Harley Davidson riders across the country are honoring our nation’s troops.
It’s all part of the 2010 Patriot Tour.
3 Harley Davidson riders left Painted Post and headed to Binghamton Monday morning carrying the american flag.
The riders were part of the tour carrying the flag through 48 states in 100 days.
They rode a little over an hour away.
There they would hand off the flag to another group of riders.
Paul Koekebacker says, “You should honor our troops and fallen veterans in any possible way. We got a lot of families paying a big price for some of these things, it’s one way to recognize it, to honor it. If you can take a flag, the same flag and go to all 48 states, i think it’s important to do that.”
Stan Mosher says, “It’ll leave Binghamton tomorrow and go to Albany then from there it goes up to New England back down the East Coast to Florida, across the United States up the West Coast and back to Wisconsin.”
The tour began in Wisconsin on Memorial Day.
The tour will end there on Labor Day.

Ziff Law Firm Attorney Adam Gee is developing quite a name for himself in the area of motorcycle law.  Adam handles  motorcycle  cases from all over New York and Pennsylvania, not just in the firm’s headquarters in Elmira (Chemung County).  On any given day, Adam could be in Buffalo, Rochester, Syracuse, Albany, Scranton/Wilkes Barre, Williamsport and anywhere in between.  It makes for some hectic days, but Adam wouldn’t have it any other way!

Readers of this NY Injury Law Blog already know Adam literally wrote the book on motorcycle insurance in NY, “Would You Ride Your Motorcycle Naked?”.  You can request your free copy here. Since the book was published more than a year ago, Adam has distributed more than 500 copies to area bikers.  The reception to Adam’s book has been amazing.  Bikers have been shocked to find how poorly covered they were with their insurance, and that they could increase their coverage by 5-10 times for just a fraction of the cost.

Adam is also proud of his involvement with Solo Practice University, an online forum that allows Adam to teach other lawyers from across the country how to handle motorcycle classes.  Adam and fellow Ziff Law Personal Injury Attorney Jim Reed are both faculty members of Solo Practice University

The Ziff Law firm is now proud to announce that Adam has presented a live webinar, Motorcycle Law 101 on Avvo.com. Avvo is a national site that allows consumers to obtain free legal information from attorneys.  The site also ranks attorneys on a scale from 1-10, and allows prior clients to review their attorney’s performance.  Please feel free to join Adam as he covers the basics of motorcycle law  and answers listeners’ questions

The use of smart phones grows everyday.  What used to be the size of a brick (with about the same reception) is now smaller than a wallet and capable of handling multiple e-mail accounts, surfing the web, performing google searches, browsing documents and even doing legal research.  Through e-mail and mobile social networking sites like facebook and twitter – we can instantly have access to friends and relatives and their expertise.  While that kind of power is a wonderful tool to have in everyday life, there is one place where instant access to information is banned:  the jury room.

In the jury room, jurors are supposed the weight the evidence they hear from the witness stand, apply it to the law as relayed to them by the judge, and render a verdict.  Outside information and influence is strictly prohibited.  The courts have traditionally been very slow to respond the existence of new technology, but in recognition of the prevalence of smart phones and their instant access to information, the Courts have now amended their instruction to juries about discussing the case with others.  That instruction is found in New York’s Pattern Jury Instructions at PJI 1.11 as follows:

PJI 1:11. Discussion With Others – Independent Research
In fairness to the parties to this lawsuit, it is very important that you keep an open mind
throughout the trial. Then, after you have heard both sides fully, you will reach your
verdict only on the evidence as it is presented to you in this courtroom, and only in this
courtroom, and then only after you have heard the summations of each of the attorneys
and my instructions to you on the law. You will then have an opportunity to exchange
views with each member of the jury during your deliberations to reach your verdict.
Please do not discuss this case either among yourselves or with anyone else during the
course of the trial. Do not do any independent research on any topic you might hear about
in the testimony or see in the exhibits, whether by consulting others, reading books or
magazines or conducting an internet search of any kind. All electronic devices including
any cell phones, Blackberries, iphones, laptops or any other personal electronic devices

must be turned off while you are in the courtroom and while you are deliberating after I

have given you the law applicable to this case. [In the event that the court requires the jurors                                                                                                                                                                                        to relinquish their devices, the charge should be modified to reflect the court’s practice]
It is important to remember that you may not use any internet services, such as Google,
Facebook, Twitter or any others to individually or collectively research topics concerning
the trial, which includes the law, information about any of the issues in contention, the
parties, the lawyers or the court. After you have rendered your verdict and have been
discharged, you will be free to do any research you choose, or to share your experiences,
either directly, or through your favorite electronic means.
For now, be careful to remember these rules whenever you use a computer or other
personal electronic device during the time you are serving as a juror but you are not in the
courtroom.
While this instruction may seem unduly restrictive, it is vital that you carefully follow these
directions.

So – if you are called to serve on a jury, please be ready to heed the judge’s instructions.  Failure to do so will result in you being removed from the jury, and may require a mistrial, which means the lawyers would be required to re-try the case.  Also, don’t be surprised if the judge asks you to surrender your smart phone!

Thanks for reading,
_______________________________

Adam M. Gee, Esq.

NY and PA Injury Attorney

The Ziff Law Firm, LLP
303 William Street
Elmira, NY  14901
Phone: (607)733-8866
Fax: (607)732-6062
Email: agee@zifflaw.com
www.zifflaw.com

Are you a biker or thinking of becoming one?  Interested in conversing with other bikers, learning about group rides, sharing pictures and stories, or looking to give or get advice on a mechanical issue?  Well, you are in luck!

There is a new resource for bikers in the Twin Tiers which is much more personal and specific than any nationwide website could hope to be.  607 Riders Forum is a relatively new website dedicated to the two wheel (and even three wheelers and quads) lifestyle.   I recently became a member, and was warmly welcomed by the members of the site.  Over the last week, I have perused the site to see what it offers, and was impressed by the breadth of knowledge in the mechanical sections of the site.  The members are diverse; young and old, experienced, new to biking, or still looking to get their first bike.  What struck me the most, though, was how friendly everyone seems to be.  There are even sections for off road enthusiasts and stunt bikes!  All in all, in seems like a great site!

So, as you gear up for the riding season, feel free to take a look at 607 Riders Forum.  You may just make some new friends, and find out they are riding through your neighborhood soon.

Ride safe everyone!

Thanks for reading,
_______________________________

Adam M. Gee, Esq.

NY and PA Motorcycle Attorney

The Ziff Law Firm, LLP
303 William Street
Elmira, NY  14901
Phone: (607)733-8866
Fax: (607)732-6062
Email: agee@zifflaw.com
www.zifflaw.com

Richard Binko, Esq., a lawyer from Cheektowaga, NY and the current President of the NYS Trial Lawyers Association, wrote a commentary piece that was published in the Syracuse Post Standard on March 15, 2010.  The online version of that article can be found here.  I felt the piece deserved an even broader audience, so we are including it here as well.

“The police in Auburn want to know what’s in Toyota’s black boxes — or at least the one in the 2010 Camry that killed Colleen Trousdale when it ran wild and slammed into her car the day after Thanksgiving. But Toyota isn’t telling.

The box, called an “event data recorder,” is similar to those in airplanes, but it locks up the data in a system so secret that federal investigators, and even Toyota itself, say they cannot yet decode it.

The black box is only the latest episode in the mystery of the runaway Toyotas. Despite a public uproar, no one has determined what caused so many to accelerate uncontrollably, killing and maiming dozens of people around the country. Federal regulators were satisfied with Toyota’s limited recalls, even when they clearly didn’t resolve the problems.

So, in this era of deregulation and rising corporate influence, victims are turning to the one branch of government that isn’t compromised: the courts. Here, they hope, they can force Toyota to grant access to its black-box data and the records of the last awful moments in the company’s crashing cars.

These are not litigious opportunists. They are victims. And our civil justice system, older than the country itself, is designed to find the causes of injury inflicted on the unsuspecting. In the courts, victims of countless hazardous products — Chevrolet Corvairs and Ford Pintos, toxic drugs, cancer-causing asbestos, defective baby seats and cribs — have found both justice and answers.

As for Toyota, consider the record so far. The company insists that faulty floor mats and pedals are to blame, and in the face of evidence that the acceleration problem is not just mechanical but electronic, Toyota is sticking to its story.

Congressional committees elicited very few answers in their recent hearings. And the auto industry’s chief regulator, the National Highway Traffic Safety Administration, is only slowly awakening from eight years of industry-friendly torpor.

NHTSA turned away Toyota owners who complained, citing a “need to allocate and prioritize NHTSA’s limited resources,” according to the agency’s own documents. And not once in six years did the agency use its subpoena power to get information from the company.

At the same time, Toyota, like many regulated manufacturers, hired away its regulators. Two former NHTSA officials “managed” federal investigations and recalls for Toyota, which boasted at one point that their efforts saved the company $100 million.

The agency may or may not uncover the secrets in Toyota’s black boxes. But the courts can and will. And the result will be an enormous correction for individual victims and, more importantly, for all Americans. The civil justice system is designed not to punish, but to find the facts, inform the public and provide incentives for manufacturers to police themselves.

Champions of “tort reform” would cripple the system even as manufacturing becomes more complex and government more compromised. Let’s not go there.”

Attorney Binko makes several excellent points.  The NHTSA, the supposed watchdog of the car companies, has been asleep at the switch for years and has no real teeth.  These huge multinational car companies don’t give a flip about you or me or our families.  The only place you can hurt them is in the pocketbook.  The court systems of this country are the only place the average person can get justice from companies like these, the only place where the average Joes of the world stand on equal footing with the Toyotas of the world.  The next time someone mentions “tort reform” like its a good thing, think where you will go to obtain justice if it is your family that gets wiped out by a dangerous product that no one cared enough about to fix.

Thanks for reading,

_______________________________
Adam M. Gee, Esq.
NY and PA Personal Injury and Malpractice Attorney
The Ziff Law Firm, LLP
303 William Street
Elmira, NY  14901
Phone: (607)733-8866
Fax: (607)732-6062
Email: agee@zifflaw.com
www.zifflaw.com

As a Plaintiff’s Attorney who conducts depositions on a regular basis, one of the more frustrating issues I encounter is the non-party witness (NPW) who is represented by counsel.  Sometimes the NPW brings in their own outside counsel to represent them.  More commonly, the NPW has some loose affiliation with the interests of the Defendants in the case, and defense counsel tries to claim that they are also representing the NPW.  Defense counsel then obstructs objects and delays, hoping to prevent me from obtaining damaging information from the NPW.  These kinds of tactics usually end up in the deposition being adjourned, or a call to the judge to determine the extent to which the defense attorney will be allowed to participate, with wildly varying decisions froom the judges who have addressed the issue.

Thankfully, the Appellate Division has finally ruled on the issue.  In Thompson v. Mather, the NYS Appellate Division, Fourth Department recently ruled that while an NPW is certainly entitled to whatever counsel they want, the NPW’s attorney IS NOT entitled to participate in the deposition.  So they can’t object or obstruct or delay or do any of the many other things that slow, and sometimes stop a deposition dead in its tracks.

This is a boon for not just plaintiffs attorneys, but for every attorney who handles depositions.  The trial judges who have to field phone calls from attorneys complaining of these tactics will be happy to hear of this decision as well.  Many thanks to our good friend Eric Turkewitz, who wrote about the topic here.  It seems that the scales of justice may be tipping toward common sense!

Thanks for reading,

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Adam M. Gee, Esq.