December 29th, 2010

A Tony Hawk Christmas (Shred Game, Updated)

If Christmas Day isn’t the slowest day of the year for a law blog, then it’s darn close. But not this year. Rather than see a spike downward, I saw a spike upward and comments started to pour in.

Because on Christmas, it seems, a lot of kids open presents. And many of those kids were unfortunate enough to receive a Wii game created by skateboarder Tony Hawk, which I reviewed a month ago: See, Tony Hawk’s Shred for Wii by Activision (Review: How Many Ways Can you Say Awful?)

If you don’t know what I’m talking about, read that review and return.

Welcome back. It seems I wasn’t alone in finding problems calibrating the skateboard controller to the Wii. In fact, since that posting a month ago, a couple thousand people have stumbled in here to view it, with over a thousand using some combination of the word Hawk and calibrate, using search terms like these:

Tony hawk shred calibration
tony hawk shred calibration wii
tony hawk shred board won’t calibrate
how to calibrate tony hawk shred
can’t calibrate tony hawk shred
what do i do if the tony hawk shred calibration doesnt work?
cannot get tony hawk shred board to do initial calibration with wii

There are hundreds of these search combinations as people wasted hours on Christmas Day trying to get this computer game to work, and then had to scour the Internet for information as they tried to find some way to put a smile on a kid’s face because the gift sucked the big wazoo. A nice way to spend Christmas with the family, right? This was my favorite comment on my first posting on the subject, from “Laura”:

electrical engineer PhD husband who can fix ANYTHING could not resolve the calibration problem

But the agony of children across the land on Christmas does have its humor, if you like black humor that is. There were lots of comments and ideas on how to get the thing working, such as:

Try “gently used” batteries
Turn the lights off in the room
Hold the controller right next to the game system
Rotate the console so the “dongle” is in a different position relative to the board
Elevate the board to a height not recommended by the game’s maker
Move all furniture away from the game
Remove all metal in the area

Several seemed ready to hang Hawk from the nearest light post, though I may be reading between the lines. Messing with a kid’s Christmas, oddly enough, tends to bring out unhappy parents. A couple suggested class action lawsuits against Hawk for putting this lemon on the market.

Can you imagine? Some gently used athlete puts out a game where you have to possibly find gently used batteries, turn out the lights, put the game on a pedestal and adjust its dongle. Trust me, the set up instructions that came with the game don’t read that way. Maybe said athlete has spent a little too much time on his own pedestal. Perhaps Hawk has a defective dongle. Perhaps he thinks he can do no wrong. Yet wrong is exactly what he did.

I went to the Tony Hawk Shred website (coded “nofollow“) to see if there was an apology there for the thousands of screwed over customers who had wasted untold hours with sad-faced children looking on. I like to amuse myself that way sometimes, pretending that those who owe apologies are sane enough to actually issue one. You may not be surprised to learn that there were none to be seen.

The site even has a blog that I checked. It’s last entry is dated November 29, 2010. It says to “Stay tuned for weekly updates.” They seem to have missed a few weeks during the biggest sales time of the year.

Hawk, perhaps, knew that he laid an egg, though he didn’t yank the game from the market. (Or he’s completely clueless, take your pick.) Maybe he’s now looking for just the right crisis manager to put out an artfully worded statement. Now that the money is in the door.

December 27th, 2010

Hacked! (And Did I Meet My Hacker at Killington?)

It happened last week. I found out right after I posted a story on a $50M personal injury verdict, and just hours before I headed off for four days of skiing at Killington. This blog was hacked.

And oddly enough, while skiing, I think I met the hacker. Or at least someone just like him.

The emails and alerts started last Tuesday, as people began getting redirected from here to a porn site, with a message asking them to click on something having to do with a virus alert. Frantic messages from me to my tech guy then followed, who updated everything and cleaned up the area. Then, apparently, I got hit again. Once again, stuff restored.

Calling me pissed off would be an understatement as I imagined a parade of horribles that I wished would descend on the hacker’s head. It isn’t often that I actually run into people with such an utter contempt for their fellow humans. After all, as an attorney I deal in the world of negligence, not the criminal arena that so often deals with deliberate attacks.

But then, on Saturday morning, after just a couple of ski runs, my wife hurt her knee high up on the mountain. She needed the dreaded toboggan ride down to the base lodge and a trip to Rutland Regional Medical Center.

In the course of that experience, we saw a lot of good old-fashioned human empathy. People stopped on the slope to see if we needed assistance (we did, thank you for stopping). And then they went off to get help. Everyone on the mountain, no doubt, could imagine this happening to them and knew exactly how they would want others to react. They responded with The Golden Rule of treating others the way they would want to be treated. They offered to stay with us if need be, and do whatever they could (nothing to do but wait for Ski Patrol, but thank you for asking).

And then there he was, my hacker. Or as I said at the top, someone just like him.

As Mrs. NYPILB was pulled on the sled at the first aid station at Killington base near 11 a.m. — and this had the potential to be far more serious than her tushy bone injury last summer — we went past a ticket window. And a voice called out, with what sounded like a German accent, “You done skiing today?” Huh? Was he talking to me? I turned to see him looking at me, and he repeated the question.

What a bizarre question I thought, as I hauled our skis to a rack and ran to catch up with the uber-nice ski patrollers who were getting ready to unload her. Yeah, I said, I’m done. Dumb question, I thought. And then…

“Want to sell your ticket?” If I wasn’t a bit rattled at worrying about my wife, and so perfectly stunned by the question, I might actually have walked up to him and knocked him down. Which, if you know me, would be quite out of character having never done such a thing. But I simply couldn’t recall having ever seen a person so completely lacking in empathy. Here was someone getting ready to take his wife to the hospital for lord knows what kind of injury — and you didn’t need an imagination of any kind to come to that conclusion given my wife laying there on the sled — and the thing that ran into this young punk’s mind was saving a few dollars on his lift ticket.

And it occurred to me, as I waited a bit at the hospital for the x-ray results (negative, visit to local ortho coming soon with ACL concerns) that this creep is just the sort of person that hacks. Absolutely no concern for their fellow man. No ability to identify with the plight of another. Zero emotional capacity to put themselves into the shoes of others.

At trial, empathy is something that lawyers look for and try to use. Now we can’t say to a jury, imagine if this was you — that is a violation of a different Golden Rule, this one for juries, and might result in a mistrial. But many a lawyer does ask during jury selection if people would avail themselves of the jury system if they felt they had been wronged. That gets both to the feelings they have about the civil justice system, and incidentally asks jurors to consider what they would do if they were the injured party.

I hope that there weren’t too many of my readers that were affected by the hack. I confess to some complacency on the subject of hacks and viruses since I use a Mac, as Macs aren’t exactly ground zero for hacking. Mac users don’t generally even use any kind of anti-virus software, other than what Steve Jobs might build into the system to quietly work. But this didn’t take place on my computer. It happened on some server somewhere in the back of beyond of the information superhighway.

Perhaps one day the hacker will find himself (and you just know it’s a him, and not a her, don’t you?) in need of assistance. Or the victim of some accident or attack. And will think back on his life and the stuff he has done. But until then, I expect he will remain a slime ball. And perhaps a slime ball forever.

The hacker might be tech smart, but is utterly barbaric in the world of human relations. We can only hope this will prevent the creation of similarly inclined offspring.

December 22nd, 2010

New York Jury Returns $50.5M Verdict For Brain Injured, Paralyzed Scaffold Worker

David Golomb, plaintiff's lead counsel

Late Tuesday afternoon, a New York jury returned a blockbuster $50.5 million verdict for a brain injured, paralyzed scaffold worker. Daniel Savillo, who was 29-years-old on the date of the accident, had mis-stepped and fallen while working on a 15-foot high scaffold storage platform on February 12, 2007.

Since the owner and chief foreman had admitted that there was no fall protection provided to workers, Justice Emily Jane Goodman granted summary judgment in favor of Mr. Savillo in September of this year. That determination came in accordance with New York’s Labor Law. As Justice Goodman wrote:

Because Labor Law § 240 (1) “imposes absolute liability on owners who fail to provide adequate safety devices to workers laboring at elevated work sites, when that failure is a proximate cause of the workers’ injuries” , and because Greenpoint Landing provided no safety devices and that failure was a proximate cause of plaintiff’s injuries, that part of plaintiff’s motion which seeks summary judgment on the issue of Greenpoint Landing’s liability under Labor Law § 240 (1) is granted

With respect to the employer, All-Safe, Justice Goodman added in a footnote:

Given All-Safe’s complete disregard for safety (discussed infra), the name of this company strikes this Court as very ironic.

The nine-day trial before Justice Goodman in Manhattan (who also blogs for the Huffington Post) was, therefore, only to assess the amount of damages.

Prior to the trial, the plaintiff had rejected a settlement offer of $8.125M, holding firm in a demand for $14.5M. Given the breathtaking jury verdict, as well as the huge settlement offer that had been rejected, it’s worth taking a closer look at the verdict and damages.

As a result of the fall, Mr. Savillo suffered a complete cord injury at level T11 and had no sensation below an inch below his umbilicus. He had spinal surgery, screws, rods and cross-pieces placed in his back extending from from T7 to L2.

One of the many custom made exhibits used at trial

He also suffered significant brain contusions and hemorrhages, though no surgery was done on the brain. Evidence was presented of traumatic brain injury, with significant cognitive deficits, particularly in mental flexibility, information retrieval, processing speed, visual memory, short-term memory. He is unable to do more than a single task at one time. The progression of the brain damage can be seen from this exhibit that was used at trial (click to enlarge).

Other injuries consisted of a n eurogenic bladder and bowel. This forces him to self-catheterize six to eight times each day for urination, and to manually evacuate stool after inserting suppositories on a daily basis.

The $50.5M jury award was broken down as follows:

Past medicals expenses, approximately $600k;
Past lost earnings, $200K;
Past lost fringe benefits, approximately $50k
A life care plan demonstrated over $9.224M for future medical care;
Lost earnings and fringe benefits were approximately $5.6M;
Past pain and suffering was $10M; and
Future pain and suffering was $25M

The jury was unanimous in its determination. And of particular note, two of the jurors were lawyers. One was a fourth year tax associate at a major firm and the other works for the City of New York defending civil rights cases.

The plaintiffs called as expert witnesses: a neuroradiologist regarding the films, a rehabilitation expert, the neurosurgeon who repaired the spine an economist, and a vocational rehabilitation expert. The defendants conducted five separate defense medical exams, but didn’t bother to call three of the people that did exams (neurosurgeon, orthopedist and wound care surgeon). The plaintiff also called the defendants’ own rehabilitation expert on his own case, since his report was so devastating to the defendants.

The defendants called a neuropsychologist and an economist.

All of which is to say, that there were a lot of witnesses in a short amount of time.

A final word on the numbers. The jury total is about $50.5M. To that gets added interest, at a 9% annual rate, from the date that summary judgment was granted in September. From that gets subtracted certain things too. For example, the future economic costs must be reduced to present value at a later proceeding pursuant to CPLR 50-B. In addition, there may be a set-off for Social Security Disability payments that have been made, and with reasonable certainty will continue to be made going forward under CPLR 4545.

One can also assume that the pain and suffering verdicts will be challenged as excessive. How New York courts go about reducing (or increasing) verdicts from time to time was the subject of one of the first posts on this blog: How New York Caps Personal Injury Damages.

In other words, while the headlines will scream $50M, as this one does, the reality will one day be something else. And it will take quite a bit of lawyering to figure out what that will be.

The stars seemed aligned for a mega-verdict here, given the catastrophic injuries, that liability was already determined, that 9% interest would be running on any verdict (thus giving a comfort level to the plaintiff regarding the potential for defendants dragging out the litigation), that numerous experts were lined up and ready to go, that defendants had a fear of their own experts, and that an experienced trial lawyer was ready to take the verdict.

The case was Daniel Savillo v. Greenpoint Landing Associates, LLC (landowner) v. All Safe Heights Contracting Corp. (scaffolding co., employer). The plaintiff here sued the landowner, who turned around and sued the employer. In New York, those who are injured on the job generally can’t sue their employers under the Workers Compensation Law.

Plaintiff’s counsel was David Golomb, who is a past president of the New York State Trial Lawyers Association and a frequent lecturer on medical malpractice (and who I’ve known for many years). He is also a founder of Trial Lawyers Care, the massive pro bono effort put forward by the nation’s trial lawyers in response to the September 11 attack and the establishment of the September 11 Victim Compensation Fund. He was assisted at trial by Roy Jaghab, of Jaghab, Jaghab & Jaghab.

Greenpoint’s attorney was Edward Lomena.

All Safe’s attorneys were Scott Miller and Michael Manarel.

December 20th, 2010

How Much is a Breast Worth?

The fact pattern is not complex: A 32-year-old single woman had a mastectomy. But she didn’t have cancer. The modified radical mastectomy was unnecessary. A Bronx jury found malpractice and awarded her $3 million for past pain and suffering and $3.5 million for future pain and suffering extending over 41.9 years. The trial judge then directed a new trial as to damages unless the plaintiff stipulated to a reduced total award of $1 million.

The legal arguments are not about the issues of liability here in Williams v. New York City Health & Hospitals Corporation, but as to what is considered an excessive verdict.

Up the case went to the Appellate Division, First Department (which, for out-of-towners, sits in Manhattan). And a divided panel agreed with the trial judge and set the limit for such a case at $1M. There was a furious dissent by Judge James Catterson, who agreed that while the verdict was excessive, also believed that the $1 million award substantially undervalued the emotional trauma of such an incident to a 32-year-old single woman.

Why the dispute? Because in the words of the majority:

The dissent’s suggestion that plaintiff must have suffered extreme emotional distress is not supported by the record.

Not supported by the record? There was no question that the woman lost her breast unnecessarily. The jury saw photographs. Some injuries are abundantly obvious. And yet, the majority simply accepted the defendants’ argument that there is no proof of future pain and suffering because the plaintiff did not testify extensively about her emotional distress. In other words, if you don’t state the obvious, the court will toss your verdict.

According to Judge Catterson, as the majority tried to compare this case with another verdict:

Appellate Division Judge James Catterson

The defendants appear to believe that because the plaintiff in this case was not able to articulate a similar experience of shame, embarrassment and humiliation, she therefore does not suffer such emotional distress. The defendants appear not to have heard the oft-quoted phrase “a picture is worth a thousand words.”

Moreover, the majority’s view that the plaintiff’s extreme emotional distress is not supported by the record clearly indicates that the majority has not viewed the photos in the record. Given the post-operative photos of the plaintiff, I believe any testimony by the plaintiff as to distress, for example, over not being able to wear a bathing suit; or of her fears of never finding someone to love or desire her would be simply superfluous, if not overkill.

New York, contrary to popular belief, has a means of reducing excess verdicts (and similarly raising up excessively low ones). But it isn’t the one-size-figs-all approach that tort “reformers” want in order to protect the wrongdoers. (See: How New York Caps Personal Injury Damages) And in this case, we see the application of that procedure.

Since this appellate decision had two dissenting voices, the plaintiffs may appeal as of right to New York’s high court, which is what I would expect since they have much to gain and nothing to lose.

More on this case from John Hochfelder (from whom I swiped the breast image above). He does an analysis of the “similar” cases that the majority and dissent relied upon, and also adds inside info that he got from calling the lawyers involved.

December 15th, 2010

Bill of Rights Day

Since today is Bill of Rights Day, I thought I would re-direct you to a post of mine from 2008 on the subject: The Bill of Rights and John Peter Zenger.

You can test your civics knowledge by seeing how many of the 10 rights you can name, without looking it up.

Bonus question: How many different rights are incorporated in the First Amendment? (Listed here)

Second Bonus question: Which President established today as Bill of Rights Day? And before looking, is the person Democrat or Republican? (Answer is here.) And do you think that political orientation means anything when it comes to the Bill of Rights?

Some other posts on the subject, from this year and years’ past:

Bill of Rights Day (Cato Institute, 12/15/10)

EDITORIAL: Celebrate the Bill of Rights (Washington Times, 12/15/10)

National Constitution Center with 15 minute webcast

It’s Bill of Rights Day (f/k/a, 12/15/08)

Blawg Review 190 – Bill of Rights Day (Legal Satyricon, 12/15/08)

Photo credit: Me