The term ‘toxic tort’ covers a variety of types of cases stemming from the harm or injury that can result for ingestion or exposure to harmful substances. The exposure often occurs in one or more of the following ways:

1)  Occupational – when exposure occurs at your workplace or as a result of your job (such as asbestos exposure)

2)  Household – when exposure occurs at your home or someone else’s (such as mold or lead paint)

3)  Medical – when harm occurs as a result of medication you have taken

4)  Products – when harm occurs as a result of the use of a consumer product (such as pesticide or chemical)

Liability or fault for toxic torts can be based on several theories, depending on the type of case. Liability can be based on the defendant not using the amount of care necessary with respect to the harmful substance, on strict liability (where no showing of carelessness is needed), or on intentional misrepresentation or concealment.

Toxic tort cases are complex.

• Exposure can occur years, even decades before a person develops an illness or symptoms related to the exposure develop. It can be difficult to determine who the person or entity is that is at fault for the exposure, often resulting in cases with numerous defendants.
• The illness and injuries are also often complex, particularly trying to determine whether an illness or injury was actually caused by the exposure or ingestion of the harmful substance.
• The defendants in toxic tort cases have a large incentive to fight them vigorously – for fear that a finding of fault in one case could open them up to numerous similar cases.

As a result, it is important for you to contact attorneys experienced with these cases. The personal injury attorneys at Maynard, O’Connor, Smith and Catalinotto, LLP can answer your questions and guide you through the complex process of a toxic tort case if you have been exposed to a harmful substance. Give us a call at (800) 721-3553 to set up your free consultation.

Recently, the law in New York State has gotten tougher on people who send text messages while driving. With Werner Herzog’s documentary, ‘From One Second to the Next’ and a general increased awareness of this all-too-common occurrence, people are starting to realize just how catastrophic texting while driving can be.

Texting while driving causes many car accidents resulting in severe injuries and deaths each year. If someone causes a car accident because they were texting while driving, or otherwise distracted, they should be held liable.

An appellate court in New Jersey has gone one step further. In Kubert v. Colonna, the Appellate Division of the Superior Court of New Jersey held that a person who sends a text message to a driver and knows the driver will review that message while driving can also be held liable. Analogizing the sender of the text message to a passenger who distracts a driver, the Appellate Division held that a passenger must avoid distracting the driver. The remote sender of a text who knows the recipient is then driving must do the same.

The personal injury attorneys at Maynard O’Connor have a proven track record of protecting the rights of our clients who are injured by negligent drivers. We know how to obtain the electronic evidence to prove when someone is distracted by his or her phone rather than paying attention to the road. If you are injured because another driver is distracted by his or her phone, let us help you recover the money you are entitled to. Call us at 800-721-3553 or contact us to schedule a free consultation at one of our offices in Albany, Saugerties or Johnstown NY.

The initial litigation in your personal injury case occurs in the Supreme Court, also known as the ‘trial court’ level.  Under New York Law, either party can pursue an appeal from virtually any Decision, ruling, or verdict.  Appeals from the New York Supreme Court are taken to the Appellate Division, and from there, possibly to the Court of Appeals.  Practice in the New York State appellate courts is highly specialized and requires knowledge of the unique rules of practice and procedure applicable to those courts.

At Maynard, O’Connor, our appellate practitioners have experience in prosecuting and defending appeals in all state and federal appellate courts.  This firm has argued appeals on virtually every type of legal issue arising out of personal injury litigation.  Members of the firm are admitted to handle appeals in each of the New York State appellate departments, the New York State Court of Appeals, the federal District Courts for the Southern, Northern, and Western Districts,  the US Second Circuit Court of Appeals, and the US Supreme Court.  In 2013, Rob Rausch was honored by Super Lawyers and included in its limited selection of upstate Appellate practitioners.

If you have suffered a personal injury and are considering pursuing an appeal from an adverse Decision or verdict, please consult the attorneys at Maynard, O’Connor, Smith & Catalinotto for assistance with your case.

Complex Regional Pain Syndrome (CRPS), also sometimes called Reflex Sympathetic Dystrophy (RSD) or Causalgia, is a chronic pain condition affecting the nervous system.  People with CRPS often experience severe and long lasting pain, swelling, changes in skin color, changes in temperature, and changes in hair and/or nail growth to the injured part of their body.

People who suffer an injury with CRPS feel pain that is more extreme and disproportionate to the injury suffered.  CRPS can be a serious and chronic (long lasting and reoccurring) condition.  People who suffer an injury with CRPS as a result of the negligence of others, are entitled to recover money for all of their pain and suffering.

Insurance companies and their attorneys are often skeptical of these cases because they suspect the injured person is exaggerating his or her injuries.  This is because people with CRPS feel more pain than other people.  The attorneys as Maynard O’Connor have experience handling CRPS cases, and understand the medical science of this condition.  We know how to prove, through objective evidence, when an injured person is suffering from CRPS.

If you have suffered an injury with CRPS, it is important that you seek immediate and appropriate medical attention.  If that injury was caused by the negligence of someone else, it’s important that you contact the attorneys at Maynard O’Connor so that we can help you get all of the money you are entitled to.

Social media is playing an increasingly prominent role in litigation. Personal posts and comments online can impact the outcome of a court case, something very important for social media users to understand. The destruction or deactivation of a Facebook or other social media account can undermine your case. “Spoliation” occurs where evidence is destroyed or significantly altered, or when a party fails to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation. “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.”¹ This duty to preserve has been extended to electronically stored information, including email and other electronic documents and data.²

Under the traditional law of spoliation of evidence, “[w]hen a party alters, loses or destroys key evidence before it can be examined, the court can dismiss the pleadings of the party responsible for the spoliation.”³ On a motion for spoliation sanctions involving the destruction of electronic evidence, the party seeking sanctions must establish that: (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a “culpable state of mind”; and, (3) the destroyed evidence was “relevant” to the moving party’s claim or defense.⁴

Establishing that the electronic data was destroyed with a “culpable state of mind” does not require proof that the destruction was imminent or even reckless. “Spoliation sanctions … are not limited to cases where the evidence was destroyed willfully or in bad faith, since a party’s negligent loss of evidence can be just as fatal to the other party’s ability to present a defense.”⁵ Thus, “[a] culpable state of mind” includes ordinary negligence.⁶

In addition, the party deprived of evidence as a result of its adversary’s spoliation does not need to prove the relevance of the destroyed evidence in most cases.⁷

As the use of social media continues to become more prevalent in society, so too will the role of social media in litigation. A recent example of this is the case entitled Gatto v United Air Lines, et al., Civil Action No. 10-cv-1090 [2013], in which the United States District Court for the District of New Jersey granted a litigant’s motion for sanctions based upon spoliation of evidence. In that case, the plaintiff alleged various physical limitations and loss of quality and enjoyment of life. The defendants contended there was evidence to the contrary contained on the plaintiff’s Facebook page. The plaintiff deactivated his Facebook account before it could be reviewed by the defendants. The court determined that the sanction of an adverse inference charge was warranted based upon the plaintiff’s failure to preserve his Facebook account.

In light of the rapidly changing role of social media in litigation, it is important to have an attorney who understands the interplay between this ever-evolving technology and this emerging area of the law. The attorneys at Maynard O’Connor are abreast of the interplay between technology and litigation, and are leading the way in developing this new area of the law. We can assist you to make sure that no evidence is lost, and that your case is not compromised due to the inadvertent destruction of evidence.

References
1. Voom VD Holdings LLC v EchoStar Satellite L.L.C., 69 AD3d 912, 2010 N.Y. Slip Op. 00658 [1st Dept.2012], quoting Zubulake v UBS Warburg LLC, 220 FRD 212, 218 [SDNY2003]
2. see e.g. McCarthy v. Phillips Elec. N.A., Index No. 112522/03, at 3 [Sup Ct, N.Y. County June 9, 2005]
3. Squitieri v City of New York, 248 A.D.2d 201, 202 [1st Dept.1998]
4. Ahroner v Israel Discount Bank of New York, 79 AD3d 481, 482 [1^st Dept.2010]
5. Standard Fire Ins. Co. v Fed. Pac. Elec. Co., 14 AD3d 213, 218 [1st Dept.2004]
6. Ahroner, 79 AD3d at 482; see e.g. Mudge, Rose, Guthrie, Alexander & Ferdon v Penguin Air Conditioning Corp., 221 A.D.2d 243, 243 [1st Dept.1995][dismissing plaintiff’s claims due to its “negligent loss of a key piece of evidence which defendants never had the opportunity to examine”]
7. Ahroner, 79 AD3d at 482, citing Sage Realty Corp. v Proskauer Rose, 275 A.D.2d 11 [1st Dept.2000], lv dismissed 96 N.Y.2d 937 [2001]

Effective June 1, 2013, penalties for using a cell phone and texting while driving have increased from a 3-point violation to a 5-point violation on one’s driver’s license. Governor Cuomo has strengthened these penalties and directed the New York State Police to increase enforcement of this infraction in an effort to curb the rising number of cellphone-use-related accidents.

According to statistics from the Governor’s office, there has been a 143% increase in cell phone-related crashes and a six-fold increase in fatal and personal injury crashes involving distracted driving in New York State since 2005. Texting while driving involves both visual, manual, and cognitive distraction, and removes a driver’s eyes from the road for an average of 4.6 seconds. At highway speeds, that is the equivalent of driving the length of an entire football field while blind.

In recent years, we have seen a significant number of cases involving accidents caused by cell phone use. Texting, talking on a cell phone, or any type of distracted driving, can lead to devastating consequences, and is particularly tragic because it is entirely avoidable.

If you have been involved in an accident that involves texting or cell phone use please call Maynard, O’Connor, Smith & Catalinotto, and we will be happy to assist you.

References:

Governor Cuomo Announces Actions to Strengthen Penalties for Texting-While-Driving and Protect New Yorkers on the Road, May 31, 2013.