New York Personal Injury Lawyer Blog

Defendant-doctor and his professional corporation (defendant-one) rendered obstetric care to plaintiff-mother during her pregnancy with and birth of her baby. During the course of her pregnancy, she had four ultrasound examinations for which defendant-two rendered ultrasound reports. A New York Injury Lawyer said that based upon the reports and also the defendant-doctor’s examinations of the mother, it was determined that plaintiff-mother was carrying a large fetus for its gestational age. Defendant-doctor noted that plaintiff-mother should be watched for cephalopelvic disproportion.

On 17 January 1990, plaintiff-mother was admitted to defendant-doctor’s hospital for induction of labor by use of the medication Pitocin. Upon her admission, she was examined by an employee of defendant-doctor’s hospital, who determined that the mother’s pelvis was adequate to deliver the baby, and who administered the Pitocin, as ordered by defendant-doctor.

On 17 January 1990 at 5:00 pm, the mother began to deliver her baby. After emergence of his head, the head retracted back into the uterus, indicating that his shoulders were stuck. At this point, there was a strong fetal heartbeat, and pulsating in the umbilical cord. From 5:05 to 5:24 pm, eight physicians attempted to deliver the baby. Upon his full expulsion, the baby was no longer viable. At no time did he breathe on his own, outside his mother. Upon autopsy, the baby weighed 12 pounds, 12 ounces.

The complaint states three theories of recovery: first, on behalf of the baby for wrongful death and personal injuries (for the birth injury or birth injury accident); second, on behalf of the mother for mental distress, and; third, on behalf of both parents for mental distress based upon the theory of "zone of danger".

On the first issue, plaintiffs contend that since the baby was alive during the birth process, he was not stillborn, and is entitled to maintain a separate cause of action for wrongful death. Defendants maintain that the child was stillborn, based upon the definition of fetal death in Public Health Law: "Death prior to the complete expulsion or extraction from its mother."

There is no reported case which defines stillborn, fetal death, or live birth for the purpose of maintaining a wrongful death action. The Court of Appeals has addressed the issue in the context of homicide with three possible definitions of live birth. Under the first theory, live birth is birth after the child has reached that state of development where it is capable of living an independent life as a viable being. A baby alive during the birth process is a person. On the second theory, a separate and independent existence from the mother after the child has been completely expelled from the mother's body is required. On the third theory, it adds the requirement of independent circulation or respiration.

Whether the second or third theory is the appropriate definition of live birth, it is clear that the baby was not born alive. There is no evidence that the child had any independent existence, independent circulation or independent respiration following full expulsion from the mother at 5:24 pm. While there may be evidence of life of the fetus during childbirth, only evidence of life after full expulsion will confer person status upon the fetus enabling the maintenance of a wrongful death cause of action.

Under these facts, plaintiffs cannot maintain a wrongful death cause of action. A Westchester County Perosnal Injury Lawyer said there is no cause of action on behalf of a baby who is stillborn.

On the second issue, a cause of action for emotional damages must be predicated upon a breach of duty owed to the mother separate from the duty owed to the child, which breach proximately causes a physical injury. A plaintiff mother cannot recover for injuries which are caused by the breach of duty owed to the fetus.

When the alleged medical malpractice occurs during the delivery of the child, the physical injury to the mother must be separate from that which occurs in any normal childbirth, and must flow directly from the claimed malpractice. Plaintiffs claim that the defendants' failure to diagnose macrosomia and the concurrent shoulder dystocia caused a variety of physical injuries including rash and edema, loss of blood due to a particularly large episiotomy, severe pain and bruising occasioned by the attempts to dislodge the baby's shoulders from the mother's pelvis, and plaintiff's own fear of death.

There is no dispute that the rash and edema preceded the inducement of labor, and that plaintiff also suffered from a rash and edema in her first pregnancy. These are not injuries flowing from any breach of duty by defendants. A Suffolk Personal Injury Lawyer said the allegations of loss of blood can be considered a physical injury to the mother flowing from the defendants' malpractice if shown to be beyond normal childbirth. However, the blood loss in this case was the result of a large medial episiotomy, which has been held to be part of the normal childbirth process.

On the other hand, during the twenty minutes of the attempts to extract the child, dislodge his shoulders and break his clavicle to facilitate his removal, plaintiff was subjected to bruising and the fear of danger to her own life. According to the affidavit of her expert witness, these are not a part of normal childbirth. The expert further states that macrosomia, from which plaintiff suffered, can be life-threatening to the mother. This fear of death can be a separate physical injury to plaintiff flowing from the breach of duty owed to her by defendants.

Therefore, separate physical injuries to the mother as a result of the breach of duty owed to her by defendants, and her cause of action for emotional as well as physical damages is permissible.

On the third issue, plaintiffs raise a "zone of danger" theory of recovery for emotional damages. While such theory has been upheld in other cases involving the death of a fetus, it was held inapplicable to an action by a mother against her obstetrician for damages flowing from the death of the child delivered, holding that the legal fiction of a "duty" created in zone of danger cases is unnecessary and inappropriate when a duty was already owed by defendants to the mother. Any fear of death or bodily injury to the mother can be an element of the mother's action for physical and emotional injuries, and need not be raised as a "zone of danger" cause of action.

The plaintiff-father, however, does not meet the tests for a "zone of danger" claim. He was not placed in any fear for his own life. Furthermore, he did not suffer any physical injury.

Meanwhile, defendant-one and defendant-two also claim summary judgment on the basis of a lack of any proximate cause of plaintiff's injuries flowing from any alleged negligence by them. They base this claim on the argument that even if they breached some duty to the plaintiff with respect to properly estimating the size of the fetus, testimony of defendant-doctor shows that he did not rely on any information provided by them in formulating his own estimation of the size of the fetus.

While defendant-doctor may have so testified at his examination before trial, his actions in seeking the ultrasound evaluations from defendant-two and from relying on the assistance of residents and other personnel from defendant-one’s belies his testimony. His actions and the reasonable inferences to be drawn from them, create a factual issue as to proximate cause. Summary judgment cannot be sustained on this ground.

Defendant-one and defendant-two argue no breach of any duty as a matter of law. Defendant-two states that fetal weight was not requested by defendant-doctor so their failure to report fetal weight could not be a breach of a duty. However, the affidavit of plaintiff's expert asserts otherwise. This creates a sufficient factual issue to deny summary judgment.

Defendant-one states that all of its acts were under the direction of defendant-doctor. While the hospital need not intervene in the relationship between the patient and her private physicians, the hospital owes an independent duty to the plaintiff to perform without negligence. Plaintiff's expert raises deviations in the performance of the employees of defendant-one both prior to and during the delivery process. While defendant-one may ultimately be able to show at trial that each act was under the strict orders of defendant-doctor and, thus, avoid liability, there is no indication that this is the case as a matter of law.

Legal matters can be a lot for anyone to handle especially when the person involved has no legal background. If you wish to be enlightened on some legal matters like the aforementioned case, let us help you. Get in touch with Stephen Bilkis & Associates. Our New York City Medical Malpractice Attorneys or our New York City Birth Injury Attorneys, among others, are at your service.

A man was killed in a motor car accident and his only asset is the cause of legal action for wrongful death. The attorneys for the administrators have received an offer of $12,500 in settlement of that claim. The two car accident in which the man was killed gave rise to suits by three different complainants and the $12,500 offer represents one-third of entire policy limits of the two opponent's insurance coverage.

The administrators' petition asks that the entire amount, after payment of attorneys' fees and debts and expenses be paid to the man's mother and father. However, the appointed guardian of the man’s out-of-wedlock son contends that his ward is entitled to the full amount of the recovery. The department of social services entered a claim against the estate in the amount of $6600 for the support of the man’s out-of-wedlock child. A Suffolk County Personal Injury Lawyer said the claims by the department of social services for payments made to support the child cannot be satisfied from the funds recovered in a wrongful death proceeding. However, the only assets of the estate is the wrongful death proceeds, the department of social services has withdrawn its charges. The recovery for pain and suffering belong to the man, his estate and recovery for wrongful death do not become estate assets, but bound to the benefit of those who lose financial support by the wrongful death. By a written agreement with the department of social services the man acknowledged paternity of his son. No evidence of financial injury on the part of the parents of the deceased man was introduced.

After all expenses, attorney's fees and guardian fees there will be only approximately $6,000 left of the wrongful death settlement. The entire net amount is to be given to man's out-of-wedlock child, as the only heir for the wrongful death settlement which suffered financial injury because of his father’s death.

Finally, arose at the trial the problem of custody of the out-of-wedlock child. The paternal grandfather of the child strongly urged that the child be awarded to his custody to live with him. The child had been voluntarily given by the mother into the custody of the department of social services and for boarding custody and care with one of the social welfare agency. The mother of the child was present in the courtroom but not seeking custody. A Westchester County Personal Injury Lawyer said the department of social services strongly opposed the paternal grandfather's custody request . Under the said situation, the application for custody by the paternal grandfather is denied with leave for him to renew his application in the family court proceeding. In that court, if permanent neglect should be found for the purpose of separating the child from his mother's rights, the social work and probation services available to the family court would better serve the interests of the child. A New York Injury Lawyer said the paternal grandfather's home can be considered with the help of probation or foster care in an adoptive home may become available and may appear preferable to boarding home care. The custody of the child is, therefore, left temporarily on the mother's voluntary consent without change, and subject to further proceedings in a court of competent authority.

The conditional fee of the attorney who succeeded in recovering $12,500 for wrongful death by settlement is limited to $3500 plus $66 disbursements, the guardian claim for $1,000 through final pronouncement is moderate in view of the effort and success he has, with the help of his attorney, achieved for his charges and the travel expenses of the administrators are limited and allowed to the extent of $150 for each. The entire net estate after the said charges shall be deposited for the benefit of the infant child of the man.

It is very hard to accept when we lose someone important. However, it is harder for a family member especially for a child to lose a parent. Lawyers are skillful in handling cases and defending clients in need. If you suffered from malpractice of health care providers and obtain recurring injuries, inquire at Stephen Bilkis & Associates.

A man died and his two of his daughters were removed from the care of his wife and the children’s maternal grandmother by the City Children's Services without a court order. The City Children’s Services filed neglect petitions against all the children’s father, mother and grandmother. A New York Injury Lawyer said the petitions allege that the mother and the father neglected the son by failing to provide adequate supervision and guardianship. Specifically, the petitions allege that when the couple together with their son left the grandmother's home, they stayed in an abandoned building in Brooklyn. A New york he petitions allege that the building had no heat or electricity and access to the building was obtained through a window that the father broke on a prior occasion. The baby fell asleep in a stroller and the couple slept on the mattress on the floor.

When the baby started crying, his father woke up and gave him a bottle propped up with a tee-shirt and went back to sleep. The father woke up six or seven hours later and found the baby cold and stiff. He attempted to revive the baby but failed then told her wife to call 911 in a payphone. The child’s mother went out but returned without making the call and the father was the one to call 911. The baby was taken to the hospital where he was pronounced dead.
The petitions also allege that the children were neglected as a result of the failure of their mother, father and maternal grandmother to provide adequate food, clothing and shelter. Specifically, the petitions allege that the children were dirty and not adequately fed and that the home was dirty and infested with roaches and mice. The petitions also allege that garbage bags, dirty dishes and dirty clothing were observed throughout the residence. Finally, the petitions allege that the two daughters were derivatively neglected children by virtue of the neglect of their baby brother. On the day the petitions were filed, the Court granted the request of the City Children Services for a remand of the two girls.

A fact-finding hearing was conducted for 15 months and the City Children’s Services withdrew the petitions against the maternal grandmother after she moved to dismiss the petitions for failure to establish a legitimate case. A witness of the fact finding was a caseworker who conducted the initial investigation into the allegations of neglect. She visited the case address and testified that various family members were present when she visited. She indicated, however, that the maternal grandmother was rarely present since she was generally at work. She testified that it was in a deplorable condition, infested with roaches and vermin that although the conditions of the home were improved, they subsequently deteriorated. She testified further that the children’s father did not live at the case address and he was not even allowed to visit there.

The Medical Examiner testified and was qualified as an expert in forensic pathology. She testified that the cause of the baby's death was positional asphyxia due to soft bedding covering the baby's mouth and she concluded that it was an accident. She testified that these conclusions were based on a reasonable degree of medical certainty. She further testified that the baby had been placed in the stroller and that he eventually slid down and as a result, the baby's airway was covered by the blanket, tee-shirt and the bottle in the stroller. The Medical Examiner also testified that the child, like all babies younger than six months of age, did not have the musculature in the neck necessary to lift his head, hold it up and move his body to get air. The Autopsy Report lists the manner of death as accident while asleep in stroller with clothing over airway and there was absolutely no intent to cause the death. The Medical Examiner also testified that the baby was dirty, had dirty fingernails and the baby also had areas of thinning hair around the scalp which suggested that the baby had been lying down in the same position for extended periods of time, long enough to kill the hair follicles. The Autopsy Report also indicated that marks were observed on the baby's scalp consistent with lice.

Neither parent testified on the hearing. The father called a witness doctor who was qualified as an expert in pediatrics and child abuse. A Brooklyn Personal Injury Laywer said the expert testified that the circumstances surrounding the baby's death were similar to Sudden Infant Death Syndrome. The accused parties assert that the petitions should be dismissed because the baby's death was an accident. They emphasize that they never intended to hurt their son and that the Medical Examiner's testimony establishes that the death was unintentional.

The City Children’s Services and the Attorney for the two daughters disagree. They contend that a finding of neglect can be based on an unintentional injury and although the parents did not specifically intend to harm their son, they failed to exercise a minimum degree of care that resulted to his death. Accordingly, they assert that findings of neglect are warranted against both parents.

For the reasons more fully set forth, the Court agrees with the City Children’s Services and the Attorney for the Children and enters findings of neglect against the mother and findings of derivative neglect against both parents. A Queens Personal Injury Lawyer said both parents equate the term accident with unintentional injury. They assert that since the son’s death was unintentional, it was accidental and should be immune from liability of neglect. The Court disagrees with the conclusion. The Court states that the parents ignore the plain language of the Family Court Act, which specifically provides for a finding of neglect based on an unintentional injury. Furthermore, the parents ignore the fundamental concerts of tort law; specifically, that liability in negligence does not require intent to cause injury. It requires only a failure to exercise reasonable care, which results in an injury that was reasonably foreseeable. Lastly, the Court states that the term accident does not apply when the parties' intentional acts had unintended consequences and it is therefore not a defense to allegations of neglect.

The Court rejects the parents’ assertion that the child's death was accidental and finds instead that it was the result of the parents' failure to exercise a reasonable degree of care. Accordingly, the Court enters findings of neglect and derivative neglect against the mother and findings of derivative neglect against the father.

The death of the couple’s son may have been unintended but it was not the result of an unavoidable or inevitable accident. There was nothing in the circumstances leading up to the death that was unusual or unexpected. Although the couple did not intend to harm their baby and the results of their conduct were unplanned, their actions were otherwise deliberate. They intentionally removed a two-month-old infant from his home late in the night while he was recovering from a cold, without making adequate sleeping arrangements or taking necessary precautions against the cold, in order to bring him to an abandoned building without heat or electricity and allow him to sleep in a stroller for six hours without supervision, with a bottle propped into his mouth by a tee-shirt. The actions clearly demonstrate a failure to exercise a minimum degree of care. The evidence establishes that the children's physical, mental or emotional condition was placed in imminent danger of impairment. In reaching the conclusions, the Court notes that both parents chose not to testify and such warrants the drawing of the strongest negative inference against them that the evidence will allow.

Children rely on their families to protect them and make sure that all their needs are satisfied. When you know of children with such needs not being met, you may consult a skilled attorney from Stephen Bilkis and Associates. whether you have a wrongful death action, negligence, or medical malpractice action, their office can help.

Four separate actions were commenced against the defendant, City of New York, plaintiffs from over 40 families sought to recover damages for personal injuries and wrongful death based on allegations that the diseases they suffered from were caused by exposure to toxic substances at the Brookfield and Fresh Kills landfills on Staten Island. The plaintiffs are residents or former residents of neighborhoods located near the landfills. The four separate actions were later consolidated into one case.

Each of the plaintiffs served a notice of claim on the defendant in May or June 1992. A New York Injury Lawyer said that the notices of claim alleged, inter alia, that the defendant was negligent in allowing health hazards to exist at the landfills and that the plaintiffs or their decedents were exposed to toxic emissions from the landfills into the air, water, and ground. All of the notices of claim of the plaintiffs stated that each plaintiff discovered the cause of his or her injury in March 1992, except one plaintiff’s notice of claim, which did not indicate when the cause of her injury was discovered. In August 1992, the plaintiffs moved to amend their notices of claim to allege that the landfills continued to present health hazards and that the time when the claim arose is a question of fact to be determined by the jury.

The defendant concedes that, for Statute of Limitations purposes, the plaintiffs’ action was commenced on June 1, 1993. In June 1994, the defendant moved for summary judgment dismissing the claims of 19 plaintiffs, belonging to the 1st action as time-barred under the provisions of CPLR. A Staten Island Personal Injury Lawyer said that subsequently, in its reply papers, the defendant withdrew the motion with respect to three of the 19 plaintiffs.

The Supreme Court dismissed the claims of five of the plaintiffs as time barred, and the court denied the defendant's motion with respect to the remaining eleven plaintiffs.

Nine of the eleven plaintiffs claimed damages for personal injuries to themselves. The plaintiffs do not dispute the accuracy of evidence provided by the defendant, based on the notices of claim and General Municipal Law hearings, that their various illnesses (i.e., leukemia, Hodgkin's disease, seizure disorder, non-Hodgkin's lymphoma) were diagnosed on the dates stated.

Two of the eleven plaintiffs claimed damages for wrongful death.

The key issues presented are - whether the personal injury claims of 11 remaining plaintiffs, belonging to the 1st of the four actions, should have been dismissed as untimely under the "date of discovery" rule in Civil Practice Law and Rules (CPLR); and that the remaining plaintiffs were improperly joined; and, that the consolidation of the four actions were also improper.

In a cause of action to recover damages for personal injuries caused by the latent effects of exposure of the body to toxic substances, the accrual date is determined by the discovery rule set forth in CPLR. Prior to the enactment of CPLR in 1986, the Statute of Limitations commenced to run upon the date of exposure to the harmful substance, even though the ill effects of such exposure were not manifested until years later. The harshness of this rule was remedied by CPLR, which provides that the cause of action accrues, and the Statute of Limitations commences to run, upon discovery of the injury itself. Thus, the three-year Statute of Limitations for personal injury actions commences to run upon the date of discovery of the injury or "the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier" . Where, as here, General Municipal Law are applicable because the claim is asserted against a municipality, the Statute of Limitations of one year and 90 days is measured from the date of discovery of the injury or from the date when, through the exercise of reasonable diligence, the injury should have been discovered, whichever is earlier. The time within which to commence an action under CPLR may be extended - "Notwithstanding the provisions of subdivisions two and three of this section, where the discovery of the cause of the injury is alleged to have occurred less than five years after discovery of the injury or when with reasonable diligence such injury should have been discovered, whichever is earlier, an action may be commenced or a claim filed within one year of such discovery of the cause of the injury; provided, however, if any such action is commenced or claim filed after the period in which it would otherwise have been authorized pursuant to subdivision two or three of this section the plaintiff or claimant shall be required to allege and prove that technical, scientific or medical knowledge and information sufficient to ascertain the cause of his injury had not been discovered, identified or determined prior to the expiration of the period within which the action or claim would have been authorized and that he has otherwise satisfied the requirements of subdivisions two and three of this section".

On the issue with regard to the timeliness of the wrongful death causes of action of the plaintiffs, the court concludes that their causes of action are barred by the two-year Statute of Limitations in General Municipal Law, which runs from the date of death the two (2) plaintiffs died in 1990 and 1988, respectively, and the 1st action was not commenced until 1993.
The Statute of Limitations period in General Municipal Law for wrongful death actions is not affected by the discovery rule in CPLR, which, by its express language is limited to causes of action to recover damages for personal injury and injury to property. If the wrongful death causes of action had been timely commenced, the provisions of CPLR would be relevant to the issue of whether the decedents had viable personal injury causes of action at the time of their deaths.

Although the wrongful death causes of action are untimely, since the complaint in the 1st action is not included in the record on appeal, the court assumes for purposes of this appeal that the two (2) plaintiffs also asserted causes of action for personal injuries to their decedents which are governed by CPLR. Hence, upon consideration of the provisions in CPLR and their purpose, the court concludes that the defendant's motion to dismiss the subject plaintiffs' personal injury causes of action should have been granted.

The court notes that the plaintiffs do not dispute that the date their causes of action accrued, i.e., the "date of discovery of the injury" under CPLR 214-c(3), is the date their illnesses were diagnosed. As the illnesses of the plaintiffs in question were all diagnosed by the end of 1991, the action commenced in June 1993, more than one year and 90 days later, was untimely under CPLR. Accordingly, the plaintiffs in question must rely on CPLR, which applies in those situations where the cause of the injury is unknown at the time that the injury is discovered.
In order to take advantage of CPLR, the plaintiffs in question had to present evidence that they could meet three criteria: (1) they learned that harmful substances at the landfills caused their illnesses within five years after their illnesses were diagnosed, (2) this action was commenced within one year of discovery of the cause, and (3) there was insufficient information available to discover the cause prior to the expiration of the one year and 90-day Statute of Limitations. Contrary to the parties' contentions, the court does not find the subject plaintiffs' notices of claim helpful in resolving these issues. It is true that the allegation in the original notices of claim that the cause of the subject plaintiffs' injuries was discovered in March 1992 renders the causes of action interposed in June 1993 untimely on their face under CPLR. However, the plaintiffs disavowed this allegation and amended their notices of claim so as to leave open the possibility that the cause was discovered at another, presumably later, time. On the other hand, we disagree with the subject plaintiffs' contention that the defendant's failure to oppose their motion to amend the notices of claim constituted a concession with respect to any legal issues surrounding its Statute of Limitations defense.

The subject plaintiffs were unable to satisfy the first two criteria in CPLR because they made it very clear in their submissions to the Supreme Court that they had not as yet discovered the cause of their injuries. Although the plaintiffs contended that scientists were in the process of identifying clusters of illnesses in residents who lived near the landfills and that they believed such illnesses would ultimately be traced to chemicals at the landfills, their own expert acknowledged that any link between the landfills and the plaintiffs' illnesses was still in the hypothetical stage.

In cases where the medical diagnosis of the injury does not indicate that a toxic substance was the cause, a determination as to when there was sufficient information available to a plaintiff to discover the cause will often present a factual issue for the jury. But that issue arises after the cause of the injury is discovered, when the plaintiff must show that the cause could not have been discovered within the statutory periods. If a plaintiff does not discover the cause within five years of discovery of the injury, the issue of whether it was possible to discover the cause sooner is irrelevant.

The court recognizes that CPLR should be read liberally to further its remedial purposes. However, there is no question that the plaintiffs' claims are untimely under CPLR which provides only a limited amount of time for an injured plaintiff, whose claim is time barred, to discover the cause of his injury and commence suit. A Westchester County Personal Injury Lawyer said that the statute does not contemplate that a plaintiff may in effect indefinitely toll the Statute of Limitations while searching for the cause of the injury.

Our determination is limited to the narrow holding that the subject plaintiffs' claims are time barred under CPLR and that they have failed to show that another section of the provision applies. Since CPLR provides the subject plaintiffs with a five-year period in which to discover the cause of their injuries, and that five-year period has not yet elapsed for some plaintiffs, we do not reach the issue of whether they may commence another action if they succeed in discovering a connection between their illnesses and harmful substances at the landfills within that period. In addition, since the subject plaintiffs asserted that they had not yet discovered that any substances at the landfills caused their injuries, it is unnecessary to reach the issue raised that discovery of the cause of the injury for CPLR purposes requires discovery of the particular substance at fault.

The court concludes that these plaintiffs' claims are time-barred under CPLR, and their allegation that they have not, as yet, discovered the cause of their injuries precludes a finding that their claims are timely under CPLR.

Meanwhile, plaintiffs raise two alternative arguments regarding the Statute of Limitations. The plaintiffs allege that they were still being exposed to toxic emissions from the landfills which would not affect the accrual date of their causes of action since the date of discovery of the injury is the key under CPLR, and there is no continuing-wrong exception to the comprehensive rules in CPLR. The court concludes that these arguments are unwarranted.

The court concludes that the defendant's motion to dismiss the claims of the 11 plaintiffs under CPLR should have been granted and the Supreme Court's order should be modified accordingly.
On the issue that the remaining plaintiffs in the 1st action were improperly joined because their claims involve different disorders, different allegations as to exposure to the substances at the landfills, and different issues of proximate, the defendant's moved to sever the claims in the 1st action. The court denies the same. The plaintiffs' claims involve common questions of law and fact regarding, inter alia, the defendant's operation of the landfills, the substances deposited there and the health effects of exposure to such. The defendant has failed to establish that the factual differences among the plaintiffs' claims in the 1st action warrant a severance at this stage of the proceedings.

However, the consolidation of the four actions is improper. The record contains insufficient information about the individual claims of the plaintiffs in the 2nd, 3rd and 4th actions to determine whether consolidation or a joint trial would be appropriate and whether the presentation of the claims in all four actions before a single jury would unfairly bolster the case against the defendant. The motion for consolidation is therefore denied without prejudice to renewal. The court notes that the plaintiffs sought consolidation primarily in order to facilitate common disclosure. The defendant does not dispute that common disclosure would avoid needless duplication, as it appears that the plaintiffs in the four actions will be relying on the same scientific investigation of the landfills. Nevertheless, consolidation is unnecessary since the parties can consent to the joint use of discovery material if they be so advised.

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The accused moves to dismiss the complainant’s amended objection by reason of the complainant having been added as an accused following the expiration of the law of limitations. For the reasons set forth, the accused person’s motion is granted in part and denied in part.

The complainant was diagnosed with asbestosis in February of 1994. He filed a lawsuit to recover for damages arising from his condition in August of 1994. The accused Kitchen and Bath Company was not named in that complaint. More than fourteen years later, the complainant was diagnosed with lung cancer. He passed away shortly thereafter. On July 12, 2011, the complainant’s family filed an amended complaint alleging new causes of action both as against the accused named in the original complaint, against the Kitchen and Bath Company, and others as new accused.

A New York Injury Lawyer said that in the motion, the Kitchen and Bath Company argue that the complainants were lawfully time barred from amending the original complaint to add it as an accused because the applicable law of limitations had long since run. The Kitchen and Bath Company submits that since the complainants are time-barred from suing for personal injuries, the deceased man’s estate is also time-barred from suing wrongful death. The complainant concedes that their claims are time-barred. However, they argue that the injury claims are governed by a different limitations period and are therefore duly pled. In general, the two claims are materially different.

The Court of Appeals clarified that the two causes of action are predicated on essentially different theories of loss which accrue to different parties. In the context, personal injury actions are brought to recover for a deceased person’s conscious pain and suffering prior to his death. It also accrues to a deceased person’s estate. The law sets a three year statute of limitations for such claims arising from the latent effects of exposure to toxic substances, including asbestos. The period begins to run from the date of discovery of the injury by the complainant or from the date when through the exercise of reasonable diligence such injury should have been discovered by the complainant, whichever is earlier. Wrongful death claims, on the other hand, are designed to compensate a deceased person’s beneficiaries who have suffered financial injury as a result of the wrongful death. These claims may only be brought on behalf of the deceased person’s beneficiaries. Given the stark differences, it is not surprising that each cause of action is governed by a different statute of limitations. These claims are governed by the law which provides that such claims must be commenced within two years after the person’s death.

In terms of the complainant’s unjust death claim, the deceased passed away on March 21, 2009 and the amended complaint was not filed until July 12, 2011, more than two years later. As the complainants concede, the death claims herein plainly are time-barred and to the extent, the accused party’s motion is granted.

A NYC Personal Injury Lawyer said the only dispute is whether the deceased man’s injury claims are actionable. In such regard, the Kitchen and Bath Company argues that such claims are time-barred as to it because it was added to the lawsuit as an accused almost seventeen years after the original complaint was filed. In alternative, the Kitchen and Bath Company also argues that the deceased man’s ability to sue for his personal injury claims expired upon his death.

It is established that a party's lung cancer constitutes a separate and distinct injury from his asbestosis so as to trigger New York's second injury rule. Manifestations of toxic injury cases do not become apparent until many years of exposure and may be actionable if they are separate and distinct from an earlier medical problem caused by the same problem, even if the statute of limitations on the previous injury has expired. Further, it is axiomatic that claims are not lost simply because the injured party has died. It is therefore immaterial that the deceased filed his original asbestos-related injury claim in 1994 or that he passed away prior to amending the complaint. What is important is that the complainants amended the original complaint, within three years of the manifestation of the deceased man’s lung cancer, which is a separate and distinct disease from asbestosis and a second injury under the law. Therefore, the complainants claim in relation to the deceased man’s lung cancer is timely.

Accordingly, the Kitchen and Bath Company’s motion to dismiss is granted in part and denied in part. An NY Personal Injury Lawyer said the court ruled it is further ordered that the complainant’s cause of action for wrongful death is dismissed as against all the accused and it is further ordered that the complainant’s cause of action for personal injuries relating to the deceased man’s lung cancer is severed and shall continue as against all the accused, including the Kitchen and Batch company.

As a family member, we may feel weighed down as we try to center our attention on taking care of our ill loved ones during a hard time. Let us at Stephen Bilkis and Associates fight for the financial worries that your family member experienced due to the injuries sustained.

A pedestrian was fatally hit by a drunken driver on Route 35 earlier in the month. One New York Injury Lawyer says a strong case exists as the driver left the scene, though he later returned and stated that a pedestrian had been hit.

At around 1:35 A.M. the California Highway Patrol and Pacifica police department responded to a call. The report stated that someone called in to report a possibly deceased pedestrian that had been hit on the Sharp Park Road and Route 35. A New York Injury Lawyer reflects on the fact that a resident of Leopoldo Tobilla showed up shortly after the police to say he was driving and hit the pedestrian. The resident was immediately arrested and was found to be intoxicated. His DUI arrest was for DUI resulting in fatal injury and leaving the scene of an accident.

It will be interesting to see how the charges will play out since the man seemingly turned himself in. The arrested is being held at San Mateo County jail in Redwood City. He is currently charged with vehicular manslaughter, leaving the scene of a vehicle collision resulting in fatal injury, and driving while intoxicated. The suspect was arrested on scene after he returned explaining to officers that he had hit someone walking on the roadway. Any witnesses to the accident are asked to contact the local police to explain what happened. Though the pedestrian was declared dead on the scene it has not been released whether death was immediate upon impact. The accused is a fifty seven year old male and the level of his intoxication has not been released to news sources.

Information about where the suspect had been, what he had been drinking, his alcohol levels, and why he left or returned has not been released. It can be assumed that the driver felt some remorse in order to return to the scene and turn himself into the police. The information is not clear on how prosecutors are choosing to proceed in this case or whether all charges will be pursued.

If you or a loved one are involved in an accident involving a vehicle or a drunken driver, that has resulted in injury, or even wrongful death, contact Stephen Bilkis and Associates immediately. Only the best should represent you in court so that your legal needs are met, and you receive the compensation you deserve.

The Deepwater Horizon Oilrig explosion and subsequent oil spill devastated many families, lives, and coastlines. The man made devastation was incalculable. A New York Injury Lawyer has learned that the widow of one of the 20 crewmen that was killed by the explosion has settled her lawsuit with BP. As a result of the settlement, the presiding U.S. District Judge agreed to dismiss the suit.

While the exact terms of the settlement were not disclosed, her lawsuit against the BP partners that were named as a part of the suit was also dismissed. It appears that the only party involved in the disaster that was not named in her suit was Transocean, who was the owner of the rig.

This lawsuit is but one of the more than 350 lawsuits that have been filed against BP, Transocean, and the many companies and contractors that were part of the oil-drilling project, sources told a NYC Personal Injury Lawyer. Each of these are from parties who claim to have been injured and/or suffered economic loss due to either the explosion itself, or due to the resulting oil spill that affected so many beachfronts and communities.

The owner of the rig, Transocean, still faces at least one federal lawsuit from the victims. For those victims who want to file a claim in that lawsuit, the deadline the federal court has set is April 20, which incidentally is the one-year anniversary of the oil rig’s explosion.

While it may be relatively simple to attempt to assess the blame for the tragedy, what many of the people in the Gulf region have experienced can defy belief. While there are those whose losses may be simplified by their having a little oil wash up on their beaches, others have endured events that are more dramatic--events, which have altered the course of their lives forever. No one should ever forget about those who died as a result of this disaster.

During the course of these events, one thing remains explicably clear, with all of the technologically advanced equipment and instruments, no one, according to the official reports, prepared for the ultimate worst-case scenario, which ultimately happened.

If you have experienced the loss of a loved one becase of a wrongful death, or have suffered an injury because of a the negligence of another, it is important to seek legal guidance right away. You may be entitled to compensation for your injuries, including reimbursement for medical expenses, loss of income, and for pain and suffering.

Continue reading "Deepwater Horizon Widow Settles Lawsuit" »

Carlos Castro, the Portuguese celebrity journalist who was found murdered and mutilated in his Times Square in New York City hotel room told friends that he was being threatened by his handsome companion just days before the murder, police said.

Castro, age 65, who was a prominent gay activist and a society columnist, was beaten to death, and had his scrotum severed with a broken wine bottle during a fight with his former lover. Renato Seabra, the 20-year old suspected murderer was discovered hours after the brawl at Roosevelt Hospital, sporting wounds that may have been from a suicide attempt. He is now in police custody at Bellevue Hospital psychiatric ward, according to a source.

Investigators have stated that they believe Seabra, who is a former Portuguese reality-show contestant, was stringing Castro along. They also believe he attacked Castro when he wouldn’t buy Seabra bigger gifts. Seabra had told friends back home that he wasn’t gay; he was merely using Castro as a route to fame and fortune.

Castro’s body was found when friends in Queens of the journalist became concerned and went to his hotel room to check on him. Reportedly, Castro had confided in his friends that he was scared to sleep in the hotel room with Seabra present, stated a reporter.

Seabra disappeared for a few hours after the murder, and turned up at a local hospital around 11 pm. The cab driver who had driven Seabra to the hospital saw news reports and dialed 911 after recognizing Seabra’s picture. A few minutes later, a nurse also contacted authorities after viewing his photo on the news. Charges like wrongful death are pending.

Continue reading "Murdered Portuguese Journalist Admitted His Lover Was Scaring Him" »