Parking Lot Sealer – The Next Asbestos?
January 12, 2010

1243144_asphalt_series__1MSNBC is reporting today that a recently released study by the United States Geological Survey (USGS) has indicated that coal-tar-based black top sealer contains known carcinogens that are being transported into homes by their residents. As early as 2005, the USGS recognized that coal-tar-based black top sealer, the shiny black coating applied to parking lots and driveways, posed a danger to the environment. Over time, the sealer begins to crumble from car and truck traffic and rain washes these particles into nearby streams and lakes. These particles contain polycyclic aromatic hydrocarbons (PAHs), which are known cancer causing carcinogens. The USGS has recently published a study in the journal Environmental Science and Technology that PAHs are showing up at alarming levels in settled house dust. It appears that the broken down particles are tracked into homes on the bottom of our shoes.

The findings are so shocking that congressman Lloyd Dogget from Texas has called for the outright ban of coal-tar-based sealants. The study found the presence of a PAH known as benzo[a]pyrene in the driveways of two suburban homes at levels thousands of times the level that would have triggered an environmental cleanup at a toxic waste site. The United States has no “acceptable limit” for BAHs but a German standard is exceeded based on testing of the dust in the test houses.

A coal-tar-based industry spokesperson has adopted the ususal approach of calling for more testing before any ban should even be considered. Although not denying that the coal-tar-based sealant is a source of PAHs, the spokeperson went on to state that there are other sources of PAHs, including tires and motor oil. This type of behavior by mega-corporations is what usually leads to a health care crisis down the road after years of prolonged exposure to the chemicals. If companies would quickly accept responsibility and try to resolve this problem, we might be able to avoid years of pain and suffering by citizens exposed to PAHs. No one knew how dangerous asbestos was until it was too late. Do we want to make the same mistake with PAHs?

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Toyota Prius Braking System a Danger?
December 29, 2009

1224261152120_1Toyota Prius owner web forums are alive with complaints and concerns about the electric car’s braking system. It seems that when applying the brakes, if the car hits a pothole or other rough surface, a sudden loss of braking power results. Many people describe this loss of braking power as a feeling of helplessness. Although some have described the incident as only a sensation and not an actual event, most of the complaints indicate that the car retains its momentum and the stopping distances increase. Although no injuries have yet to be reported, many Prius owners are concerned that their inability to stop their car quickly could cause an accident.

As of today, 33 complaints have been made to the NHTSA website converning the car’s braking system. The complaints are being tracked by the Office of Defects Investigation to determine if  an engineering issue exists. Toyota is aware of the NHTSA complaints. Some mechanics believe that the problem is due to the brakes that the Prius has. As the Prius is an electric vehicle, the brakes are much more complex than in a gasoline powered vehicle. In order to squeeze out as much mileage as possible, the Prius uses kinetic energy generated during braking to generate electrical power to recharge the batteries. This regenerative braking occurs when the brakes are first pressed. When more braking power is needed, the braking system switches over to traditional hydraulic brakes. Some experts believe that the delay in switching from regenerative to hydraulic braking is causing the sudden perceived surge in acceleration or increased stopping distances.

Regardless that many feel that it is just a perception of acceleration, the NHTSA has recognized that stopping distances unintendedly increased. This increase in stopping distance ”could be fatal for pedestrians — [if] it happens when approaching stop lights if you hit a pothole” according to an internal NHTSA memo.

The danger has been recognized – when will Toyota act? They have already had significant damage to their reputation from the recent recall of defective floor mats. Are they delaying a possible recall because the financial damage to their reputation would be greater than a potential jury verdict involving a low-speed accident? I hope that Toyota will do the right thing and issue a voluntary recall before someone gets seriously hurt.

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Drop-Side Cribs in Urgent Recall
December 3, 2009

824136_15776481_1402x930The U.S Consumer Product Safety Commission, in cooperation with Stork Craft Manufacturing, Inc., announced a voluntary recall of more than 2.1 million Stork Craft drop-side cribs.

The CPSC urges parents and caregivers to immediately stop using the recalled cribs and to contact Stork Craft at (877) 274-0277. The company will send a repair kit that will convert your crib from a drop sided to a fixed sided crib. Do not use the crib until the repair kit has been properly installed.

The cribs were constructed of poor materials, notably plastic, that held up the drop-side of the crib. Also, the drop-side could be easily installed upside down, causing the hardware to break. These problems can cause the drop-side to detach, creating space between the drop-side and the mattress. The space can entrap infants and toddlers, causing possible suffocation. In cases where the drop-side detaches, children can fall out of the crib.

Please stop using the crib immediately! The problems with these cribs have already led to the death of 4 infant children by suffocation. Although some of the cribs have the Fisher-Price label, usually a sign of quality, they are still extremely dangerous. Despite the cost of these cribs and the belief that you purchased a safe crib, manufacturers still try to cut corners and manufacture cribs with the cheapest hardware, not the best or the strongest. Such cost-cutting action puts our children’s lives at an unreasonable risk of harm and the government should strictly monitor the initial design and manufacture, not come riding in after children have already died.

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GEICO Reimburses Client for Lost Wage Claim
November 23, 2009

logoI have blogged earlier about a matter where the client’s claim for lost wage benefits resulting from a car accident was denied. After looking into the denial and reviewing my client’s insurance policy, it was apparent that when she purchased her car insurance, GEICO excluded lost wage coverage from her policy for a cheaper rate. The reduction in her premium amounted to $18.00 per year. Understanding the New York State no-fault law, GEICO, or any other insurer, is required to include in every policy of car insurance written in New York State, protection for Basic Economic Loss. Basic Economic Loss provides for medical care and treatment and lost wages, as well as “other necessary” expenses, if you are injured through the use or operation of a motor vehicle. These basic protections are mandated by law and I began to question GEICO’s ability to exclude these protections. Despite numerous phone calls, GEICO continued to deny the client lost wage benefits based on the exclusion in the policy. I told the client that despite what GEICO claimed, they could not issue such a policy of insurance.

I researched the New York State Department of Insurance General Counsel opinions and found a strikingly similar issue. The opinion was issued in response to a request by a consumer asking if he was able to negotiate a cheaper insurance policy by excluding lost wage protection from his coverage. The General Counsel opinion made it clear that what the consumer proposed could not legally be done in New York state. Every insurance policy must include coverage for Basic Economic Loss.

I filed for arbitration to force GEICO to pay the client the lost wages, despite the policy exclusion. As an exhibit, I attached the New York State Department of Insurance General Counsel opinion. GEICO was due to answer the arbitration request on November 20, 2009. Instead of an answer, I received a phone call from an adjuster agreeing to settle the claim for the full amount owed. Despite the opinion, GEICO defended their actions and still maintained that the policy as sold was permitted in New York.

This case should be a reminder to all to use an insurance broker or read the terms of your policy if you decide to buy online or over the phone. I have published a book, “A Lawyer’s Guide to Car Insurance”, to help you understand your insurance policy and to make sure that you are properly protected. You can order the book, free of charge, by following this link.

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Good Morning America Airs Report about Disability Insurance
November 19, 2009

1192511_handicap_signRecently, Good Morning America aired a report about Jack Whitten, a former Walmart employee who suffered a fractured neck in an accidental fall. Mr. Whitten applied for disability benefits under his insurance policy with The Hartford. After filing the claim, Whitten began to receive his disability benefits in 2003. Last year, a claims representative from The Hartford visited Mr. Whitten and his wife at their home. The claims representative produced a video tape of Mr. Whitten going about his daily life. The tape showed him getting out of a van, looking at a magazine and eating salsa and chips at a local restaurant. Soon after, The Hartford stopped his benefits claiming that based upon the videotape and a report from The Hartford’s doctor, who never even examined Mr. Whitten, he was no longer disabled. The Hartford reinstated Mr. Whitten’s benefits after his attorney provided additional information.

This was not the first time that The Hartford terminated benefits. In fact, twice before, The Hartford terminated Mr. Whitten’s benefits. His doctors have declared him permanently disabled. Although The Hartford has apparently agreed that Mr. Whitten is disabled, they are treating him as if he is temporarily disabled. Although he was injured 7 years ago, The Hartford is covertly suggesting “fraud” and attempting to intimidate recipients into foregoing their benefits. When is Mr. Whitten going to be “permanently” disabled in The Hartford’s eyes? Is it fair for The Hartford to constantly reassess the claimant’s medical condition, despite the medical evidence that has already produced and ruled upon? I say no and would like to see more government oversight into the disability insurance area. The disabled person is the least likely to be able to afford an attorney as a major source of income has been taken away. Most companies bet on the fact that the denials will never be appealed because of a lack of money or the fear that they committed a “fraud.”

What The Hartford has done is to lump Mr. Whitten in with those who commit “fraud.” Rocky will forever be equated with the video of a supposedly disabled man carrying a flat of shingles up a ladder or of another man playing all types of sports. Think about the video – would you want that to be your daily life? Was Mr. Whitten working in the video? Was he lifting anything heavy? No he wasn’t so why should he be equated with “fraud?”

The Hartford makes mention of an “Independent Medical Examination” that determined he was able to perform some type of work. Such a medical examination is certainly not independent. In fact, it is anything but. The doctor is hired by the insurance company to evaluate claimants and their injuries. The doctor is paid by the insurance company and will testify on its behalf. Independent Medical Examinations are big business. Doctor’s are intelligent enough to understand that insurance companies really don’t want to pay out on a claim. If they approve every claim, do they really think that the insurance company is going to use their services? The Hartford’s doctor never even examined Mr. Whitten. He made his decision based on medical records – wouldn’t Mr. Whitten’s own doctors be in the best position to determine if he is disabled? The claims process must be regulated as the companies prey on those least likely to be able to shoulder the burden, especially after paying thousand of dollars in premiums.

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U.S. Change in Mammogram Policy A First Step in Healthcare Reform?
November 18, 2009

880557_15534872A government panel unexpectedly raised the recommended age from 40 to 50 for women to undergo a mammogram, and then continue every two years. The U.S. Preventive Services Task Force issued the startling recommendation, which was quickly rejected by the American Cancer Society. The ACS continues to recommend that women receive their first mammogram at age 40 and continue routine testing annually. Despite the task force’s recommendations, which have no legal bearing on health care policy, concern is building over the potential for health insurance companies to deny coverage for mammograms. The financial savings realized by the new guidelines would be a windfall for health insurance companies, who again put their finances ahead of your health.

With heavy negotiations going on behind the scenes to push the health care bill through, I have to question the reasons behind the issuance of the new recommendations and wonder if this is part of the cost saving measures that will be needed to get this bill passed. There is no questions that the current guidelines save lives but the government belives that they don’t save enough lives to justify the cost! Any change will result in more cancer diagnosis at a later stage, making them more difficult to treat successfully, not to mention the difficulty women will have in obtaining authorization for the examination. I’m curious if the doctors who claim that they practice “defensive medicine” will adhere to the new recommendations or continue to order annual mammograms for women over 40? For the public sake, lets hope that they continue to follow the American Cancer Society guidelines.

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Judge Dismisses Injured Man’s Claim agains the City of New York
November 5, 2009

301905_old_bailey_1After a two-day trial in Brooklyn federal court, a visiting federal judge from Louisiana has dismissed the case of a 66-year old Bronx resident, Joseph Adde, who claimed he was injured in the crash of the Staten Island Ferry Andrew J. Barberi.  

The crash, which occurred on October 15, 2003, caused the death of 11 ferry passengers and resulted in over 170 lawsuits filed against the City of New York for their negligence in breaking their own rule requiring two pilots present in the pilot house. The sole pilot in the pilothouse passed out, causing the ferry to crash into a concrete maintenance pier. Mr. Adde claimed that he suffered a herniated disc in his back when other passengers fell on him during the accident. The City claimed that Mr. Adde wasn’t even on the ferry that day. The back injury ultimately required surgery. At Mr. Adde’s deposition, he testified that after the ferry crashed, he walked to Battery Park from the ferry’s Manhattan Terminal, although the crash happened near the Staten Island Terminal. The City also claimed that Mr. Adde’s back injury was pre-existing. After a two day bench trial, which means that the judge and not a jury decided the case, the court concluded that Mr. Adde’s testimony was “much less than credible.”

The City claimed fraud and Mr. Adde’s attorney claimed that his client is an African immigrant who speaks English as his 4th language. The City will vigorously defend lawsuits that they believe are fraudulent and refused to settle the case before trial. However, the claimant will most likely appeal the judge’s ruling in the hopes of getting a new trial, so i am sure that we have not heard the last about it.

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Can Auto Insurance Companies “Discount” Basic Benefits?
October 29, 2009

With the proliferation of online car insurance, consumers aren’t always aware of what insurance they are getting for their money. Most people I speak with tell me that they purchased their car insurance based upon price alone and didn’t compare the benefits between different policies. Aware of the price competition, insurance companies are doing their best to shave every dollar in order to gain you as a customer. One company in particular, GEICO, has allowed their customers a “discount” for New York Work Loss. This discount, on the policy that I have viewed, amounts to $9.40. What most people don’t realize is that the “discount” takes away certain basic benefits that the New York State Legislature intended you to you receive in the event you were injured in a car accident and could not work.

After I applied for lost wage benefits on behalf of my client, I received a denial based upon my client’s election of the “discount.” I felt that although the client did receive the discount, GEICO couldn’t reach such an agreement without violating the insurance law. Research disclosed a 2002 New York Department of Insurance General Counsel Opinion that addressed the exact question. The Opinion states that “New York State Law specifies the minimum requirements for motor vehicle financial security coverage as a matter of public policy.” Based upon this Opinion, I have filed for Arbitration to recover my client’s lost wages.  Besides the, fact that a $9.40 discount cost my client over $12,000, insurance companies cannot be allowed to interfere with the legislatures intent. The benefits enacted as law refers to them as “basic” and as such are legally mandated. The matter is currently in Conciliation with GEICO’s response due by 11/20/09. I will provide updates on this case as they become available.

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What to do if “lawyers” call you after an accident.
October 29, 2009

677683_ambulance__ecnalubmaI have always told clients and friends that good lawyers do not call you first. When I first started in practice, I was naive enough to believe that “ambulance chaser” was just a nickname for personal injury attorneys. I never realized that the nickname came from actual attorneys chasing an ambulance to the hospital to try and sign up a  case. Nowadays, I don’t know if attorneys still hop in their car to follow a potential client to the hospital, but I do know that lawyers are still calling accident victims at their homes. Usually a few days after the accident, you’ll receive a phone call from a person asking how you are feeling and say that a friend asked them to call you. The person that calls you is very skilled and disarming. They engage you in a conversation about your accident and your injuries and then speak to you about making an appointment for you to sign up your case.

New York law prohibits in-person or telephone contact unless the recipient is a close friend, relative, former client or existing client. The law also prohibits any form of communication relating to an incident involving potential claims for personal injury or wrongful death that are disseminated before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.

These ethics rules were put in place to protect you when you are most vulnerable and may not be able to make the best decisions. If a lawyer calls you after you have had an accident, don’t engage them. It is your right to report that lawyer to the local ethics committee for violation of the anti-solicitation rules and to help put an end to this practice. Personal injury attorneys are not well-known for the help that they provide to injured victims and attorneys that solicit injured people only adds to that reputation.

There are many qualified lawyers that can successfully handle your case, especially on Staten Island. Speak to a few different attorneys. Most offer a free consultation and you are under no obligation to sign anything. Ask them if they are familiar with your type of case, the attorneys qualifications and testimonials from past clients, and who will handle your case in the office. You should feel comfortable with your attorney as they will represent you through some difficult times, all the while advising you on the proper course of action.

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Halloween T.O.T Safety Program
October 1, 2009

With Halloween just around the corner, the dangers present should become all too apparent. Selecting the right costume, which children want to start buying in August, can help to make a safe Trick or Treat. Children love to wear masks. The problem is that most masks severely restrict a child’s vision. If it doesn’t fit well, children will also devote most of their attention to adjusting the mask when they should be paying attention to crossing the street. When trick or treating at night, while wearing a dark costume, small children are very difficult to see. I recommend that a child hold a small flashlight or glow stick so that they are visible to drivers. We all need to do our part to help make Halloween safe. My frm has started a T.o.T. (Trick or Treat) Halloween Safety Program. We are giving away free reflective Trick or Treat bags and safety glow sticks, as well as a free report, “Halloween Safety Tips”, that you can download and learn simple tips to help make Halloween safe for all involved. You can access the free report and participate in the T.o.T. Safety program by clicking on the link, T.O.T. Safety Program.

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