Category Archives: Personal Injury

 

July 3rd, 2007

Vioxx Caused Heart Attacks in Just Two Weeks?

A soon to be published study suggests that increased heart risks associated with Vioxx began immediately after people took the painkiller. That contradicts Merck’s assertion that the drug caused serious heart risks only after 18 months of use. (via, Pharmalot)

A pre-publication review of the study is published in today’s Wall $treet Journal. As per the Journal:

The new study, known as Victor, was conducted by researchers at Oxford University in England…

The study, which was designed to see whether the drug would curb progression of colon cancer, compared Vioxx, known generically as rofecoxib, with placebo in a total of 2,434 patients who were followed for two years. The study was halted when Merck pulled Vioxx from the market after another study, known as Approve, linked the drug to an increased risk of heart attacks and strokes. The new report includes only information about cardiovascular findings.

According to the manuscript, 16 of the 23 cardiovascular events occurred in the Vioxx patents, and half of those occurred in patients within 12 months of taking the drug. “It would appear…that patients do not need to take rofecoxib for 18 months to be at increased risk of a cardiovascular thrombotic event,” the authors wrote. The study also suggests that by 14 days after patients stopped taking the drug, the risk of heart and stroke went away.

The study is to be published in the New England Journal of Medicine. The WSJ reviewed the article prior to publication.

 

June 27th, 2007

Court of Appeals Allows Toxic Landfill Lawsuit to Proceed

The New York Court of Appeals today rejected efforts by the City of New York to dismiss a personal injury lawsuit surrounding the 81-acre Pelham Bay Landfill in the Bronx. The city-owned landfill had been the site of illegal dumping of pollutants and was officially closed in 1978.

Nine lawsuits, representing 29 plaintiffs, had been brought by neighbors living within a mile of the dump, who had developed acute lymphoid leukemia or Hodgkin’s disease. The suits, now consolidated, had been brought between 1991 and 1993 claiming that the city’s negligence in the creation and maintenance of the site had resulted in elevated levels of toxic substances that caused injury and death.

According to a 2003 article in the Daily News, there was illegal dumping of industrial waste, oil, sludge and benzene, a known carcinogen and a leading cause of childhood leukemia. By the time the dump closed in 1978, more than a million gallons of toxic waste had leaked into Eastchester Bay where local children played and swam. After the landfill was closed, the city received ‘millions of dollars’ from a lawsuit it brought against companies that had illegally dumped hazardous wastes into the Pelham landfill and four others during the 16 years of its operation.

Two issues had presented themselves in the long-running litigation: The statute of limitations and the central issue of causation. On the issue of causation, which is the heart of today’s opinion, New York’s high court allowed the case to proceed based on procedural grounds.

Since the original motion was for dismissal for failing to plead a cause of action, and not one for summary judgment based on the merits, the plaintiff’s could simply rely on the pleadings, and did not need an expert (though they had presented affidavits from a forensic toxicologist and an environmental health expert, among others). The court held that it is proper at this stage to “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.”

The decision affirmed the 3-2 majority ruling of the Appellate Division, First Department on that basis. The plaintiffs are represented by Shandell, Blitz, Blitz & Bookson of New York.

The decision in Nonnan v. City of New York can be found here.

Addendum 6/28/07 – New York Post covers the decision: ‘TOXIC’ BX. SUIT FINALLY OFF TO TRIAL (and notes that this is believed to be the longest running case in Bronx County)

(Eric Turkewitz is a New York personal injury attorney.)

 

June 26th, 2007

New York Lead Paint Case Settles for Record $12.75M

A two month lead paint trial has ended in Brooklyn with a $12.75M settlement, the largest ever for such a case in New York.

According to this story in the Daily News today, 19 children from an extended family suffered irreversible damage from ingesting lead paint at city housing between 1981 and 1994. The city housing included a notorious and rancid welfare hotel that had been cited for 1,300 code violations before being shut down in 1989.

More at the link above, and from these prior articles:

(Photo credit at right: Daily News)

(Eric Turkewitz is a New York personal injury attorney, who is grateful he never had to live under such decrepit conditions.)

 

June 19th, 2007

Disbarred New York Personal Injury Attorney Fights For Legal Fees

Disgraced New York personal injury attorney Morris Eisen is in the news again. One of the most prominent personal injury attorneys in the city, he had been disbarred and jailed in 1992 after a conviction for racketeering.

His appearance in the news centers on his fight to collect some of the legal fees he claims he is owed for legitimate cases he was handling after he was shipped off to jail for three years for fabricating evidence. You can find some of the ugly details at this New York Law Journal story, as well as numerous other links simply by Googling his name. Some of the conduct included shrinking the size of a ruler down on a xerox machine, so a pothole would appear larger when the “ruler” was used, and paying a witness to give testimony about an accident when, in fact, he was in jail at the time and nowhere near the scene.

There was no shortage of losers in the Eisen story, including the City of New York that was the target of the scams. It also included, though, thousands of legitimate claimants whose cases Eisen was handling while the chicanery was going on, as well as dozens of other attorneys who had worked at his high profile firm over the years who didn’t know what was going on.

His conduct substantially contributed to distrust of attorneys and personal injury cases in general, and provided endless fodder for advocates of tort “reform” who wished to extrapolate his criminal conduct to others in order to close the court house doors to legitimate claimants.

Addendum – see also:

(Eric Turkewitz is a personal injury attorney in New York, who was disgusted at Eisen’s conduct when it happened and whose feelings on the subject haven’t changed.)

 

June 11th, 2007

What Should Bork Do Now?


As you likely know, Judge Robert Bork filed a New York personal injury lawsuit last week in federal court here. Due to his prior advocacy for tort reform, he has been lampooned, mocked and otherwise pilloried for having engaged in excessive claims over what appears to be a routine trip-and-fall action at the Yale Club.

But this post is not about mockery or political criticism. The issue today is, given the error-riddled Complaint that has contributed to the scorn, what should he do next? Since this is, after all, the New York Personal Injury Law Blog, I figure I’m the guy to take a shot at this.

So here are the top 10 things Judge Bork should consider:

10. Voluntarily dismiss the federal court complaint, as of right, before the Yale Club answers (FRCP 41). Once defendant answers, you need permission to dismiss and they may not be so quick to agree without exacting something from you.

9. Re-start in New York State Supreme Court. State court actions are cheaper because we don’t have expert depositions and don’t generally depose treating physicians. (In this case, expect for each side one or two doctors depending on your actual ailments, and a buildings inspector for code violations.) If the expense of litigation has been one of your court reform mantras, this is a good excuse to re-start here, since there are fewer legal hours and less cold, hard cash involved. Since you will be financially accountable for the disbursements (if a standard retainer agreement were entered into), this is particularly important for you as your attorneys would be repaid the money they laid out for you from the gross recovery. (With a local defendant, they may not be able to remove back to federal court, notwithstanding diversity.)

8. Dump the punitive damages claim. You know better than that. (And, by the way, it is not a separate cause of action, as your attorneys framed it.)

7. Dump the claim for attorneys fees. They are not allowed in New York.

6. Dump the claim for pre-judgment interest. It is not allowed in New York.

5. Make sure the new complaint explicitly alleges the Yale Club owns the premises. You didn’t do it the first time. If they are going to deny it, you want to know now.

4. Make sure the new complaint explicitly alleges the Yale Club controls and operates the premises. You failed to do this the first time. If the Yale Club contracted operations to a 3rd party, or allowed the New Criterion magazine as a sponsor to undertake these activities, you want to know now. Make sure each fact is separately pleaded so you know exactly what position the Yale Club is taking with respect to who operated and controlled this event and this room when they answer the Complaint with admissions and denials.

3. Make sure the new complaint specifically claims the New Criterion did not operate or control this event in any way, or sue them if you think they did. This is important since you alleged they were the “host.” (In paragraph 7, you called both Yale and New Criterion the “host.”) Whatever you do, just don’t leave this vague as you did the first time. It may not be the Yale Club that did the actual set-up for the dais. Do you want to wait for the statute of limitations to expire only to see the Yale Club point at the empty chair?

2. Do not make a claim for future lost speaking fees, unless they are huge. If you do, your prior writings and statements on tort reform may become relevant to show that your stock as a speaker to conservative groups has been devalued as a result of the appearance of hypocrisy in filing a suit with some meritless claims thrown in to the mix. The man-on-the-street may well remember you as a SCOTUS nominee, but they surely don’t know of what you have written. You don’t want them to know either, because some of the claims in your federal complaint can’t be justified under any legal theory. And that makes you, as a former big-shot judge, look bad. And you are not in a position to simply blame your lawyers for having made so many errors.

1. The New York State Trial Lawyers Association has over 4,500 lawyers. Hire someone that knows what they are doing with this area of law, not a white collar criminal defense or securities lawyer that can’t draft a simple trip and fall complaint. And remember also that you don’t need a BigLaw “litigator” that probably hasn’t tried a case in years. And you do need someone that knows how to move a case efficiently.

BigLaw doesn’t mean best law.

Addendum 6/29/07 — Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages

(Eric Turkewitz is a personal injury attorney in New York)