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James T. Snyder Law Blog

The Washington Post: "Lawsuits against companies aren't just about getting money. They're about revealing the truth."

Far too often, plaintiff’s attorneys who pursue damages from tortfeasors are called “ambulance chasers,” “predators,” “sharks,” etc.  Yes, plaintiff’s attorneys make money, but in my experience their primary motivation is to right a wrong from a deep sense of devotion to justice, fairness, and speaking out for and representing average citizens – men and women who could not, in any other way, take on a Fortune 500 company for unfair and deceptive business practices, advertising, or downright unlawful plundering. Included in this blog post is an article from the September 9, 2019, Washington Post, written by Stanford Glantz, Ph.D., a professor of medicine and the Truth Initiative distinguished professor of tobacco control at the University of California at San Francisco.  In this article, Prof. Glantz explains how lawyers for ordinary folks expose the truth about how some unscrupulous corporations involved in mass consumer marketing actually conduct their business to rake in billions in profits from the unsuspecting public.

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James Snyder
Mesothelioma cancer cases continue to increase in New York State: report from the New York State Health Department.

Deadly exposure to asbestos has occurred to people in every corner of New York State – and active exposure can still occur.  Asbestos exposure causes mesothelioma – an aggressive, usually fatal form of cancer that may take up to fifty (50) years to develop.  According to the New York State Health Department, approximately 200 new cases of mesothelioma are diagnosed each year in New York State and that number continues to rise. People at risk for asbestos exposure in the workplace include miners (talc miners in New York State’s North Country), factory workers, insulation manufacturers and installers, railroad and automotive workers, ship builders, gas mask manufacturers, workers in power and chemical plants, plumbers, firefighters, metal workers, and construction workers.  Many are veterans of the U.S. military who were exposed to asbestos while serving our country. 

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James Snyder
New York State Health Department issues formal statewide health advisory warning about dangers of e-cigarettes and vaping.

In a follow-up to our recent blog about the dangers of e-cigarettes and vaping, we have this to add: the New York State Health Department has just reported it is investigating multiple incidents of serious e-cigarette vaping-related injuries across New York, including several near-death incidents. Symptoms include heart attack-type chest pain, flu-like illness, shortness of breath, fatigue and vomiting. Doctors say the illnesses resemble an inhalation injury, with the body apparently reacting to a caustic substance that someone breathed in. The New York State Health Department is so concerned about the dangers of e-cigarettes and vaping that it has just issued an August 2019 formal statewide health advisory, warning individuals to stop the use of e-cigarettes.

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James Snyder
FDA warns about dangers of e-cigarettes and vaping: seizures, BOOP pneumonia, and hemorrhagic strokes.

On April 3, 2019, the Commissioner of the U.S. Food and Drug Administration (FDA), issued a stark warning to Americans about the deadly health dangers of electronic cigarettes (e-cigarettes), or “vaping” -- which are now being recognized as anything but “harmless” water vapor. The FDA noted that e-cigarettes can deliver nicotine chemicals “at higher levels than conventional cigarettes,” that vaping can cause seizures and convulsions in young people, and e-cigarettes can cause pre-cancerous changes to airways and lungs in users. In addition, a 2019 Harvard T.H. Chan School of Public Health study of e-cigarette products sold in the U.S. found they were contaminated with bacterial and fungal toxins, including those related to E-Coli and chlamydia.    

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James Snyder
FDA requests Allergan voluntarily recall its Allergan textured breast implants linked to rare lymphoma cancer.

On July 24, 2019, the U.S. Food and Drug Administration (FDA) requested that the medical device manufacturer Allergan voluntarily recall its BIOCELL textured breast implants and tissue expanders. The recall request was initiated by the FDA “to protect individuals from the increased risk of breast-implant associated anaplastic large cell lymphoma (BIA-ALCL), associated with Allergan BIOCELL textured breast implants.” Of 573 cases of BIA-ALCL reported worldwide, the FDA found that 481 were reported to have Allergan textured breast implants at the time of diagnosis, with more related implant deaths possible.

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James Snyder
Part VIII of damages in personal injury: Proof of damages at trial – tools of the trade.

You’re off to trial.  Congratulations.  As a trial lawyer in New York, you’ve spent a ton of time working out a theory of liability.  You may even have made a global demand for settlement -- which was, in truth, likely formulated without much detailed thought.  But now you’re going to trial, and you have to really consider the question: “What are damages?  How am I going to articulate them to the judge and jury?”  What’s in your potential damages tool kit before and during the trial?  What must you and/or have you adduced at trial to establish “damages”?  Fundamentally, damages rest on proof adduced during the trial -- nothing more.

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James Snyder
A.I., Big Data and the threat of proxy discrimination: a revolution in the U.S. insurance industry.

Artificial Intelligence (“A.I.”) and mass data collection (“Big Data”) is changing the face of the insurance industry -- and not for the better for you and me. A New York Times article dated April 10, 2019, entitled “A.I. Is Changing Insurance: Some technologies are better left in the laboratory,” by Sarah Jeong, examines a massive effort by insurance carriers to utilize machine learning and secret algorithms to collect both public and private data on customers.  Use of this data raises serious concerns about how and to what extent insurance carriers may be engaging in what is called “proxy discrimination,” the use of facially-neutral information gained from other, “proxy” sources (i.e., not blatant racial or sex classification alone, but use of ZIP codes, grade point averages, credit card purchase information, facial recognition analysis, etc.), to identify targeted customers whom the carriers do not wish to insure, or will only insure at a higher premium payment.    

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James Snyder
Just out: rare N.Y. Court of Appeals opinion re: D.W.I. stops and refusal to submit to a breathalyzer: Matter of Schoonmaker v. N.Y.S. Department of Motor Vehicles.

Someone clearly had enough money, interest and aggravation to take an administrative law determination on a traffic stop violation to New York State’s highest court, the Court of Appeals.  That rarely happens. The case, Matter of Schoonmaker v. New York State Department of Motor Vehicles, 2019 N.Y. Slip Op. 02259 (Ct. App. 3-28-19), 2019 N.Y. LEXIS 614, involved the appellant Schoonmaker’s appeal of a Department of Motor Vehicles determination revoking his driver’s license for refusing to submit to a chemical test for driving while intoxicated in violation of N.Y. Vehicle and Traffic Law (“V.T.L.”) § 1194. 

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James Snyder
Part VII of damages in personal injury: Emotional distress and the physical consequences thereof, including being in the "zone-of-danger."

As part of our on-going discussion of damages in personal injury cases, Part VII of this blog series addresses “Emotional Distress and Physical Consequences Thereof,” which is described at New York State Pattern Jury Instruction (“P.J.I.”) 2:284.  That section -- which is separate from the pain and suffering and loss of enjoyment of life charge -- can be read read to a jury if there is evidence in the record that the injured party’s injury caused additional, verifiable emotional or neurological sequelae, and may apply to claims when the plaintiff is in the zone-of-danger.

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James Snyder
Arrowhead Capital Finance, Ltd. v. Cheyne Specialty Finance Fund, L.P.: New York Court of Appeals speaks to N.Y. Judiciary Law § 470.

Potential personal injury (and all other legal case) clients beware: lawyers who are admitted to practice law in New York State but who reside in another state must maintain a physical office in the State of New York to practice law here and conduct legal business in the New York State courts.  This is the rule contained in N.Y. Judiciary Law § 470 (first enacted in 1862), which may come as a surprise -- and a trap -- to many attorneys licensed in New York but residing outside of New York State.

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James Snyder
Part VI of damages in personal injury: Brain injury or death for a motorcyclist in a motorcycle versus car or truck accident.

Let’s get concrete for just a minute. Some of this “damages in personal injury” material is kind of abstract.  Let’s bring it down to earth with an actual case, involving a tragic, fatal motorcycle accident. How are pain and suffering and loss of enjoyment of life established if there was a traumatic incident that led to death? Consider this (very unfortunate, sad) fact pattern:  A motorcyclist going straight with the right-of-way strikes the passenger side of an automobile making a left turn from the opposite lane crossing directly across the path of the motorcycle.  The driver of the automobile testifies at deposition: “I never saw the motorcycle before I turned.”  That’s negligence as a matter of law as against the car driver. Now for damages.

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James Snyder
Part V of damages in personal injury: Pain and suffering and loss of enjoyment of life.

In this and the blog entries that follow, we will explain the different types of general damages recognized under New York State negligence law. First and foremost, let’s address the two “big” general damages categories in personal injury: (i) pain and suffering; and (ii) loss of enjoyment of life. In New York law, they go together like ham and eggs. If an injured plaintiff sustains pain and suffering, he or she almost always can identify and quantify related loss of enjoyment of life.  

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James Snyder
Part IV of damages in personal injury: Piercing the veil on computer-based claims modeling.

In our last blog post, at Part III, we began the discussion about the insurance industry utilizing computer software to analyze personal injury claims, including equalizing claims payments across localities, regions and the U.S. generally.  The name of this computerized game is “Reduce Risk, Raise Profits, Repeat.” To really understand the liability insurance business in America, you have to grasp just one concept: risk.  That is all the insurance companies care about: minimizing, reducing and even eliminating risk that they will have to pay money -- big money, little money, any money at all -- to resolve a claim for damages against their insureds.

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James Snyder
Part III of damages in personal injury: Settlement versus trial, and what's a Colossus?

According to Black’s Law Dictionary, approximately 95 percent of personal injury cases in the U.S. settle.  The other five (5) percent are cases where: (i) the insurance carrier thinks the demand is too high and the case defensible, or (ii) the plaintiff has an outstanding case that appears a sure winner and the offer is too low -- so the case goes to trial.  Black’s tells us further that of the 5 percent that go to trial, approximately 90 percent of the time plaintiffs lose.  Of those trial cases where a plaintiff does win, damages are better and paid at a higher monetary rate when the case is before a trial judge, rather than a jury.

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James Snyder
Part II of damages in personal injury: Drilling deeper: how much, and how much is too much?

Damages in personal injury can seem mysterious to both attorneys and laypersons alike.  In this series of posts, we attempt to lift the veil and shed light on these concepts.  The ultimate cost of damages falls upon the party who was negligent and caused the incident and injuries (called the “tortfeasor”), and their insurer.  In this post, Part II, we drill down deeper into those concepts, especially in actual practice in the real world of tort settlements and litigation.  

 

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James Snyder
What are "damages" in personal injury, and how are they determined? Part I: Introduction

In this post, we begin the first of a series of informative blog analyses and discussions regarding the award of monetary damages in negligence for personal injury cases in New York State. These blog posts are not meant to offer specific legal advice, which can only occur where an attorney-client relationship exists, but we trust they will be helpful to you in a general way.

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James Snyder
Johnson & Johnson hit with $4.69 billion damages verdict in baby powder-asbestos ovarian cancer trial in Missouri.

It was a jaw-dropping verdict: on July 12, 2018, a jury in Missouri awarded 22 women who were alleged to have contracted ovarian cancer by using Johnson & Johnson baby powder $550 million in compensatory damages and $4.14 billion in punitive damages, for a total award of almost $4.7 billion.  The plaintiffs in this case alleged that the Johnson & Johnson talc-based powders, sold as “Baby Powder” and “Shower to Shower” contained asbestos -- a well-known carcinogen -- and, when applied as a feminine-hygiene product, was absorbed through the skin and caused ovarian cancer.  Six of the 22 women plaintiffs had died from their cancer at the time of trial.

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James Snyder
"Face-to-face" counseling obligation of New York pharmacies for people with disabilities.

In New York State, for on-premises pharmaceutical delivery/pick-up by a patient or patient representative, pharmacists have a mandatory, non-delegable legal duty, pursuant to 8 N.Y.C.R.R. § 63.6(b)(8)(i)(a), to personally counsel each patient or patient representative “on the premises of the pharmacy … who presents a prescription … in person in a face-to-face meeting whenever practicable.

But imagine for a moment you are blind or deaf, or have a serious vision impairment or a utilize a cochlear implant for hearing loss.  What would you do to ensure you know all about your medicine in consultation with a pharmacist referring to a prescription label you cannot see, or a speaking with a pharmacist you cannot hear?

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James Snyder