April 19th, 2013

What Does A Smile Mean? (Updated x2)

Jeff Bauman in the hospital after the Boston Marathon bombing

Jeff Bauman is in the picture to the right. He is in the news right now because he had the great misfortune of being near one of the Boston Marathon bombs.

In the picture Bauman is smiling and giving a thumb’s up. He is also missing both of his legs. Actor Bradley Cooper is to the left and New England Patriots wide receiver Julian Edelman (who tweeted the picture) is to the right.

As soon as he woke up in the hospital, he asked for pen and paper to write that he saw the bomber and then went on to help the FBI.

I bring this smile photo up today because, over the years, I’ve covered several rulings by courts that deal with defense attorneys asking to fish through the Facebook and other social media sites of plaintiffs. They ask to fish because the plaintiff is smiling in a photo and claim that the smile is inconsistent with suffering.

Here are two examples: In Davids v. Novartis, drug-maker Novartis went fishing on the basis of a smile in a photograph and Magistrate Judge Williams D. Wall slapped it down, writing, “is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff’s account.”

By contrast, a Suffolk County judge permitted access to Facebook based on the same theory, writing in Romano v. Steelcase:

In this regard, it appears that plaintiff’s public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed. (see also, in contrast, Eric Goldman’s commentary on the Romano photo)

Perhaps future courts will take note of the picture of Bauman, with a smile and a thumb’s up, to note that a smile in a snapshot does not magically mean everything is well.

As Bauman makes abundantly clear in this picture, people can smile for a multitude of reasons. It may be because they are happy to be alive. Or because someone said something humorous, even at a funeral. Or simply because of instinct when someone lifts a camera and hollers, “Say cheese.”

Judges and practitioners, please take note.

Updated (4/26/13) – Another smile, this time from bombing victim Heather Abbott. One week after the bombing, she had her leg amputated. Prior attempts to surgically repair the leg had failed.

Three days after the amputation she appeared at a press conference. And smiled. You can see her expression here.

A smile may mean many things.

Updated June 24, 2013: People Magazine ran a cover photo in its June 11, 2013 edition — three amputees, three brave smiles. If a defendant tries to claim a smile in a photograph means the person isn’t injured, just show them this cover.

April 17th, 2013

Boston Marathon Bombing (And the Lives We Lead)

I wish I could say that I was shocked by the explosions that rocked the Boston Marathon on Monday. But I wasn’t. Appalled, disgusted, and cringing for others, yes, but shocked, no.

Since 2001 I have long expected that a major road race would eventually be a target. It is, quite frankly, too easy. A 26.2 mile race course is unsecurable. Boston’s marathon has 500,00 spectators and New York has two million. Those spectators are a large part of what makes such events magnificent pieces of urban theatre.

Do the risks of such events mean that we should not create them or participate?

In 2001 the fires were still burning at the wrecked World Trade Center when 25,000 runners stormed over the Verrazano Bridge to start New York. I was one of them. If not for the attack, I would have deferred my entry due to injury. But the thought of canceling vanished from my mind when I learned the race was going forward; it was better to run slowly than not run at all.

Each of us, runner and spectator alike, knew back then that we wore bulls eyes on our shirts. Yet the crowds were as large as I’ve ever seen. It was important to both commemorate those that had been killed as well as the vitality of lives that we had.

If we want to live in a free society we have to accept such risks. The alternative is unacceptable. Since the September 11 attack I’ve run a dozen races with fields of 15,000+ in New York, Boston and Washington DC, the last of which was the Cherry Blossom 10-miler in the capital last week.

The only acceptable response is to continue on with life, to enjoy what you enjoy doing. Cowering is not an option. I don’t believe that the families of those killed and those injured would want to cede freedom to fear.

Boston Marathon finish line in the winter.
Photo credit: Me.

One point on the bombing that I did want to mention: Unless there was a certain significance to the date, I think New York might have been the original target and that after the race was canceled due to hurricane Sandy the attack was moved to Boston.Why? Because the bombs went off at 4:09 into the race. (That time is based on the first of three waves of runners, each 20 minutes apart.)

While 4:09 would be ahead of the mid-pack of New York (average time in 2009 was 4:24), it is the back end of the pack for Boston runners. That is because the vast majority get into Boston based on strict qualifying times (average finishing time in 2010 was 3:50), while New York stresses a more democratic lottery system. One of the great allures of Boston is not just its age, but the fact that it is merit-based.

Those in the back of the pack, the ones mostly affected here, were running for charities or sponsors, who didn’t get in based on the swiftness of their legs.

The timing of the bombs is significant because they not only affect those in the immediate vicinity (mostly spectators), but they create city-wide chaos since an army of people are still running toward the spots when it happens.

Attacking the back of the Boston race is much different than attacking the front of New York. While in Boston 17,000 had already finished the race from a starting field of 23,000, in New York most would have been behind the bombing and the starting field would have been almost 50,000. Instead of six thousand Boston runners, it would have been tens of thousands of New York runners. Trying to stop such an event on the fly is a daunting concept, to say the least. And reconnecting each of these people to items that they had checked in bags at the start (hotel keys, car keys, phones to connect with family, money for transportation, etc.) would be a logistical nightmare.

On a final note, the graphic I choose to use here is not one of blood and fear, but a simple photo of the finish line that I shot in December 2008 out the hotel window of the Charlesmark Hotel that sits over the finish line. I wish to remember the excitement that leads up to running one of these races and to remember Boston as I had run it the first time.

Some psychotic(s) want to affect the rest of us by terrorism. But I’m not interested in losing my fond memories, or stopping the creation of new ones.

Remember those killed and injured. Honor them in a manner that you believe is appropriate. Then lace up the sneakers and go for a run, and live the life that you want to lead regardless of those that wish to stand in the way.

December 24th, 2012

Twelve Miles To Newtown

The fire truck that led us into Newtown turned on its speakers. And out came a mournful rendition of Amazing Grace on the bagpipes. I stood this past Saturday with 120 other runners, and headed into town. We were a mile or two away, and we ran slowly toward its center.

We had gathered on the edge of town after running from Roxbury, 12 miles or so from Newtown, to pay our respects, to donate money, and then leave without overstaying our welcome.

While we had the support of local officials for our fundraiser, and the Roxbury fire department had escorted us the whole way, lights blazing, we still didn’t know what to expect in a town overwhelmed with grief, memorials, and visitors. Many, many visitors.

Where is the line between honoring the memories of innocent lives and showing support, and the uncomfortable feeling that some may view outsiders as participating in a morbid sort of tourism? That line, of course, is unknown, as it resides in the ever-shifting sands of emotion within each of us. That which is acceptable and welcome to one may be unacceptable and unwelcome to another.

The run — not a race — was organized by Brian Vanderheiden, a local runner living just eight miles away. He gathered friends in the area, centered around a vibrant running community in Roxbury, and then invited others from the outside to join him. On short notice in a grief-stricken week, he and a supporting crew put this together.

It was cold and cloudy when we left the park that was our staging area, with an ever-so-light sprinkling of fresh snow giving a bucolic covering to the farms and fields on rolling hills that we ran past. We chatted as we went, green and white ribbons flapping in the wind, all the while wondering and worrying about what awaited us.

Losing innocent adults to a hail of gunfire is awful enough, but what is the right thing when a child is lost? What is there to say to the family? To do? On NPR, Linton Weeks discusses that very subject, knowing from tragic experience, having lost two sons in 2009 to an out-of-control tractor-trailer that crashed into their stopped car. He has much to say, even if there might be little to say for the friends, neighbors and others trying to provide support.

As 120 runners approached town in unison, pulling hats from heads and choking up, a few on the sidewalks gave a gentle applause of acknowledgment. Homeowners on nearby porches gave a thumb’s up. A couple of drivers going the other way on our road stopped to say thanks.

The town was filled to the gills with makeshift memorials that would crack the soul of any that breathe. There may easily be a thousand or more stuffed animals within them, along with all manner of flowers, candles, Christmas trees, stockings, personal notes and letters and more. A giant broken heart sits by the firehouse inscribed with the names of those lost. A group of leather-clad bikers walked by, among those paying respects for an incomprehensible tragedy.

One person in our runner’s group wrote on Facebook about the reaction she had received:

At the finish a friend and I were approached by three teenage girls who thanked us for what we did today.

I don’t know what we did, but they were in tears.

Life doesn’t always present us with clear choices on which road to take, as the potential choices may defy empirical analysis. We cannot always appreciate how others will view our actions. We go sometimes with our gut, and we hope for the best.

November 2nd, 2012

Legal Implications for Cancelling NYC Marathon? (Updated)

I assume that my readers know already, as this is the type of news that flies quickly around the web, that the NYC Marathon was cancelled. And that this cancellation came just hours after Mayor Michael Bloomberg had reiterated his position that the marathon would go forward. Will there be legal fallout (a/k/a lawsuits) over that decision?

When the decision was first made about the race going forward, there was one key point in my mind: Would any resources be diverted from those hit hard by the tsunami of water that was Hurricane Sandy? If the answer is yes, then you don’t run the race. You just don’t let people struggle any longer than necessary to put on the event. An emergency had been declared, the race would be cancelled and that would be that. Those that paid money for airlines, hotels and whatnot would have to fend for themselves with any trip insurance that they might have had, if any, but that is life for things we lawyers like to call Acts of God. This certainly qualifies.

But if the answer was no, that the city had sufficient resources to cover the race logistics and handle the areas most badly affected, then you can consider putting on the event. Reasonable minds may differ over whether it should go forward, but logistically it could take place.

Mayor Bloomberg, however, has now done something odd. He said New York City had enough resources to put the race on, and said repeatedly that it would go on, and then reversed course.

But he didn’t reverse course because the city needed those extra cops, according to this statement. He cancelled because it was politically unpopular. His statement was released jointly with the New York Road Runners Club, but whether there are sufficient police to staff the marathon and handle the disaster is obviously a city decision, not a Road Runners decision. The joint statement read (and note my highlights in the middle):

“The Marathon has been an integral part of New York City’s life for 40 years and is an event tens of thousands of New Yorkers participate in and millions more watch. While holding the race would not require diverting resources from the recovery effort, it is clear that it has become the source of controversy and division. The marathon has always brought our city together and inspired us with stories of courage and determination. We would not want a cloud to hang over the race or its participants, and so we have decided to cancel it. We cannot allow a controversy over an athletic event — even one as meaningful as this — to distract attention away from all the critically important work that is being done to recover from the storm and get our city back on track.

So what of those that relied on his comments to come to the city from overseas, of which they anticipated about 20,000? And those that traveled here from distant states?

If he canceled because he underestimated the needs of the police, that would be one thing. Things can change in a state of emergency as officials try hard to gain as much information as possible from broken information systems. If there was an understaffing possibility, he could have, and should have, hedged. He should have ‘fessed up that he messed up when it came to resources.

It’s also worth noting that the ability to staff the race may not be as certain as the mayor said. Patrick J. Lynch, president of the police officers’ union said staffing was too low, with many members of the department suffering the effects of Hurricane Sandy, to hold the marathon. “We are spread far too thin fighting crime, terrorism and the effects of this disaster,” Mr. Lynch said in a statement.

I’ve never heard of such a circumstance before, and the lack of precedent opens the door to the inevitable: Those that spent money relying on assurances the event would go forward only to have it canceled because it was a politically unpopular decision, may be angry.

Finish line, 2010, with my kids

Long time readers know, of course, that this is one of my favorite races, I currently appear in ads for one of the sponsors, once did a Blawg Review based on it and had a letter published in the New York Times regarding it. If you have an interest in suing, in other words, don’t call me. I’m not your man and that isn’t what I use this blog for.

But I have to think that, due to the way Bloomberg fumbled this situation and people lost money relying on his assurances, that someone may try to hold him (or the New York Road Runners, of which I’m a member) accountable.

Donations to those in need can be made here:

Red Cross, Greater New York Region

New York Road Runners

Updated 11/7/12 – Two articles worth mentioning: The first is from Runner’s World discussing the potential legal implications of canceling the event, whether this represents a breach of contract, and whether the “no refund” policy was prominent and clear:

While runners wait to hear what the New York Road Runners will do regarding entry fees for this year’s canceled marathon, some have wondered how a court of law would view the matter.

(In that same vein, I just created a page on the no refund policy for my own race on the Paine to Pain site that will be linked to the home page for next year’s event.)

The second article comes from the New York Times, discussing the hostility that exists for some runners over the late cancellation of the race. It should be noted, of course, that while some are hostile, many others agreed with the decision to cancel. And some who had planned to run with mixed feelings were actually relieved at the decision.

October 17th, 2012

Larger than Life (Updated x3)

The pictures in this blog are real. They are not Photoshopped. It is not part of an Internet meme. It is not April Fool’s Day.

Yes, that is my face on a billboard to your right. It is in Columbus Circle, in the Time Warner Center.

The first indication that my mug was staring out at others came Friday night, when my niece stumbled across it and texted me:

Am I crazy, or is this you?!

I assured her that the face — an ASICS ad produced in conjunction with the NYC Marathon — was in fact mine.

The first time that picture was used was on this blog, two years back, when I did an off-topic post on the race. ASICS then stumbled across it and asked for rights to the photograph.

It is the best picture ever taken of me, which I know because pics of me usually suck so my choices are limited. But this one was different. I was in the family reunion area after I had just run the race of my life at age 50. My eight-year-old son had borrowed a camera from my brother (the same one with the Antonin “There is no right to secede” Scalia letter). The lighting was overcast, which means perfect. The equipment was top notch, with great resolution. And I was looking down at a cute kid holding that big camera. He’s the little kid in the orange and black jacket in this picture. I felt good. Click.

In late August an email came that I almost deleted as spam from Vitro Agency:

We are working on a project for the 2012 NYC Marathon on behalf of our client ASICS. We are looking for inspirational photos of runners who have completed the marathon to use in some of our marketing materials for this year’s race. We found the attached photo on your blog and think it would work well with the other images we are using.

I thought it a joke but responded, and a deal was very quickly struck after a few minor edits to the contract. My son, who was the photographer, would get the money. Vitro was a lot easier to work with, I might add, than Oprah Winfrey. When Harpo Productions tried to license some x-rays that I have for an Oprah show, the negotiations were a comical disaster. Oprah, it seemed clear, suceeded despite the staff she’d hired.

I assumed my picture would be one out of a hundred that Vitro would kick around and ultimately reject in favor of others. Boy, was I wrong. And I knew I was wrong when my brother called me Saturday night, just 12 hours before a trail race that I created was set to go, to tell me my face was on the side of a bus. A bus. He snapped the photo you see here. I was larger than life. My wife told me she had never seen me turn beet red before, as I looked at the picture my brother had emailed us. She and the kids were hysterical with laughter. As was I.

Further sightings have now occurred, another bus in Brooklyn and this much larger display in the Time Warner Center. Even if you wanted to draw a mustache on me, you would need a ladder to get there.

Mrs. NYPILB (she loves that acronym!) is now looking up in the air for blimps. She feels like she’s in the middle of a Seinfeld episode.

The only remaining question is, how the hell we’re going to get my swelled head out the door.

Update: OK, things just got a wee bit freakier. It seems my picture is now on the back cover of the New York Road Runner’s marathon edition of their magazine. I’ve received word from several runner friends that it started landing in mailboxes today. Can you imagine if I used Foursquare to “check in” at my locations? I’m on 45th Street. I’m on 46th. I’m on 47th. I’m in your freakin’ mailbox.

Andy Warhol once famously said that everyone would be famous for 15 minutes. But it’s starting to look like I might get 16.

Back cover of the 2012 NYC Marathon Official Program

Update #2: I finally solved the perennial October question my kids have for me; what kind of Halloween costume will I wear to take them trick or treating? Easy. I’m going as that guy on the side of the bus.

Update #3: I finally got a copy of the magazine. Frankly, this is a photo I never would have guessed I would be taking.