Jail suicide triggers lawsuit. Incident led to disciplinary measures.

By: Bennett Loudon December 3, 2019

The mother of a woman who committed suicide while being held in the Monroe County Jail has filed a lawsuit against the county.

On Sept. 4, 2018, Sitarah Daniels hanged herself with a blanket tied to the bars of her cell. She died the next day at Strong Memorial Hospital. After an internal investigation some jail workers were disciplined.

The lawsuit filed Monday in state Supreme Court accuses the defendants of negligence and disregard for Daniels’ constitutional rights. The complaint does not include a specific amount of damages sought. In addition to Monroe County, the defendants in the suit include:

• Monroe County Sheriff’s Office;
• Sheriff Todd K. Baxter;
• Jail Superintendent Ronald Harling;
• Primecare Medical of New York Inc., which provides medical and mental health services to inmates at the jail;
• Kara Haydanek Capellupo, a registered nurse who worked at the jail; and
• Unnamed deputies and healthcare providers

The plaintiff, Juanita James, is Daniels’ mother, the administrator of Daniels’ estate. James is represented by attorney Michael A. Bottar.

On Aug. 8, 2018, Daniels was taken into custody at the jail and placed under suicide watch. She had a history of several mental health disorders, psychiatric hospitalizations and suicide attempts, including a prior attempted suicide with a bed sheet in the jail in October 2015. Suicide watch includes a deputy stationed directly outside the cell “with the ability to immediately intervene should an inmate need medical attention,” according to the 22-page complaint.

On Aug. 13, 2018, Daniels was taken off suicide watch. Between 2:26 p.m. and 2:40 p.m., on Sept. 4, 2018, a deputy did not properly complete a tour of cells and other areas, even though he recorded that he had in a log book. Because the tour was incomplete, “this produced an alarm in Central Control room that was acknowledged by someone,” according to the complaint. But people working in Central Control did not contact anyone to report the incomplete tour.

During the time the tour should have been conducted, Daniels was recorded on a surveillance camera tying a blanket to the bars of her cell. The camera also recorded her hanging herself at 2:33 p.m., according to the complaint. A deputy also failed to complete a tour between 2:40 p.m. and 2:50 p.m., but he logged it as complete. This triggered another alarm in Central Control, which was acknowledged by someone, but nobody was notified of the incomplete tour for a second time, according to the suit. It wasn’t until 2:57 p.m. that two deputies walked past a surveillance camera monitor and saw Daniels hanging in her cell. The blanket was cut down at 2:58 p.m., 25 minutes after Daniels hanged herself, according to the suit.

Daniels was taken to Strong Memorial Hospital, where she was pronounced dead about 7:20 p.m. on Sept. 5.

During an internal investigation two deputies involved in the incident refused to be interviewed.

In December 2018, Baxter released a statement saying he imposed “serious disciplinary measures” on some workers. An investigation by the New York State Commission of Correction is ongoing.

Monroe County officials declined to comment on the lawsuit.

BLoudon@BridgeTowerMedia.com / (585) 232-2035

The Daily Record’s Attorneys of the Year Awards honor outstanding attorneys through the Leaders in Law and Top Counsel awards. The Leaders in Law Award is presented to attorneys who demonstrate professional accomplishment, exceptional character, integrity and ethics, and commitment to their clients and the community. The Top Counsel Award honors in-house or general counsel, who have a positive impact on the company or organization they serve and who demonstrate exceptional character, integrity and ethics. In addition, they must show a significant contribution to the success of their client.

“The 2016 Attorneys of the Year Awards celebrate the best of our legal community,” said Suzanne Fischer-Huettner, publisher of The Daily Record. “Their bright minds, compassion, due diligence and honor demonstrate their commitment to bettering the communities where they live and work. The Daily Record congratulates them for what they have contributed and what they will continue to contribute to our community and beyond.”

The 2016 Attorneys of the Year Awards will be presented November 10, 2016, at a reception and dinner starting at 5:30 p.m. at the Hyatt Regency Rochester, 125 East Main Street in Rochester. Winners will be profiled in a special magazine that will be inserted into the November 11 issue of The Daily Record and available online at www.NYDailyRecord.com.

About Michael A. Bottar and Bottar Law, PLLC:

Michael A. Bottar is a member of Bottar Law, PLLC, an award-winning upstate New York law firm recognized annually since 2010 by U.S. News and World Report | Best Lawyers as “first tier” for plaintiffs personal injury litigation.

At the Firm, Michael’s trial practice focuses upon the investigation and prosecution of medical malpractice, wrongful death, and complex personal injury actions, with a focus on claims for birth injuries, brain and spinal cord injuries, misdiagnosis, surgical errors, biomedical product liability, and Federal Tort Claims Act lawsuits. In addition to his practice, Michael is an adjunct professor at Syracuse University College of Law where he publishes annually in the Syracuse Law Review’s Survey on New York Law and serves on the law school’s board of advisors. Michael is rated AV® Preeminent™ by Martindale Hubbell, is listed in The Best Lawyers in America® and Upstate New York Super Lawyers®, and is a fellow in the Litigation Counsel of America. Michael was also selected the Best Lawyers 2017 Product Liability Law “Lawyer of the Year” for Syracuse, and was named to the “Top 50” Upstate New York Super Lawyers list (2016).

Prior results do not guarantee a similar outcome. Some or all of this release may be considered attorney advertising.

There, defendant Garguilo apparently took a text from defendant Fend and, while distracted, hit a motorcycle ridden by plaintiff Daniel Gallatin, who was pinned under the vehicle, dragged 100 feet, and killed. In addition to suing Garguilo, the Estate sued the texter, averring that defendant Fend sent a text message to Gargiulo who he knew, or in the exercise of reasonable care, should have known, was operating a vehicle. The decision was the result of a motion from a preliminary objection, or demurrer, akin to a pre-answer motion to dismiss in New York.

The Court, in arriving at its decision, cited a 2013 case, Kubert v. Best, where the New Jersey Appellate Court held that under certain limited circumstances a texter can be held liable: “the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.” Also, the Pennsylvania Court interestingly cited Section 876 of the Restatement (Second) of Torts, which provides that a third party can be held liable if he or she encourages another in violating a duty. “In reflecting upon [both] Section 876 of the Restatement and Kubert,” the complaint withstood the legal hurdle.

Separate apart from the legal analysis, the attorneys at Bottar Law, PLLC want to remind you that distracted driving kills. According to the National Highway and Traffic Safety Administration:

• People who text while driving are 23 times more likely to die in a crash.
• Five seconds is the average time your eyes are off the road while texting. When traveling at 55mph, that’s enough time to cover the length of a football field blindfolded
• In 2014, 3,179 people were killed and 431,000 were injured due to distracted drivers.
• Ten percent of teen drivers involved in fatal crashes were reported as being distracted at the time of the crash.

This case and the NHTSA’s statistics illustrate the dangers of distracted driving. If you or someone you know was injured in an accident, you should contact Bottar Law, PLLC. The aid of an experienced lawyer can be invaluable in getting you compensated for your injuries.

The Academy’s ROCKSTAR award has been issued to a handful of members who have provided legal instruction on at least thirty (30) occasions. Since 2012, Bottar has lectured more than 1,000 attorneys at seminars held in Syracuse, Albany, Rochester, Buffalo, New York City, and Long Island, as follows:

• Say What? Hearsay Rules In New York (Syracuse 2015)
• Say What? Hearsay Rules In New York (Albany 2015)
• Say What? Hearsay Rules In New York (Rochester 2015)
• Say What? Hearsay Rules In New York (Buffalo 2015)
• Say What? Hearsay Rules In New York (New York 2015)
• Say What? Hearsay Rules In New York (Long Island 2015)
• Federal Tort Claims Act II: Essential Elements for NY Practitioners (Syracuse 2014)
• Federal Tort Claims Act II: Essential Elements for NY Practitioners (Albany 2014)
• Federal Tort Claims Act II: Essential Elements for NY Practitioners (New York 2014)
• Federal Tort Claims Act II: Essential Elements for NY Practitioners (Long Island 2014)
• Trial Practice: After the Verdict (Syracuse 2013)
• Trial Practice: After the Verdict (Albany 2013)
• Trial Practice: After the Verdict (Rochester 2013)
• Trial Practice: After the Verdict (New York 2013)
• Trial Practice: After the Verdict (Long Island 2013)
• Litigating In The Digital Age (Syracuse 2013)
• Litigating In The Digital Age (Albany 2013)
• Litigating In The Digital Age (Rochester 2013)
• Litigating In The Digital Age (Buffalo 2013)
• Proving Damages to the Jury (Syracuse 2012)
• Proving Damages to the Jury (Albany 2012)
• Proving Damages to the Jury (Rochester 2012)
• Proving Damages to the Jury (Buffalo 2012)
• Proving Damages to the Jury (New York 2012)
• Proving Damages to the Jury (Long Island 2012)
• A Primer on the Federal Tort Claims Act (Syracuse 2012)
• A Primer on the Federal Tort Claims Act (Albany 2012)
• A Primer on the Federal Tort Claims Act (Rochester 2012)
• A Primer on the Federal Tort Claims Act (Buffalo 2012)
• A Primer on the Federal Tort Claims Act (New York 2012)
• A Primer on the Federal Tort Claims Act (Long Island 2012)
• The “Nuts & Bolts” of a Trial: Essential Elements at the Core of Every Victory (Syracuse 2012)

Bottar Law, PLLC has decades of experience investigating, prosecuting and trying to verdict all types of medical malpractice, complex accident, wrongful death and severe personal injury cases. To learn more about your rights following an injury or loss, please feel free to contact the Firm by telephone, email, or by submitting an online contact form.

Under the FTCA, “the United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages (28 U.S.C. §2674).” The FTCA is a limited waiver of the United States’ immunity from tort liability and, therefore, the language of the Act is strictly construed.

Relevant to this summary update is the FTCA’s statute of limitations language which provides “a tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented (28 U.S.C. §2401(b)).”

When the FTCA was adopted in 1946, claimants had only one year to file suit in federal district court from claim accrual (see Legislative Reorganization Act of 1946, ch. 753, 60 Stat. 812 (codified at 40 U.S.C. §§2, 33 and 40 (1986)). Originally, there was no requirement for claimants to first submit a tort claim to a federal agency before filing suit. However, where claimants did present a claim to a federal agency within one year of accrual, they had six months to file suit from whenever the claim was denied or withdrawn.

In 1949, the one year limitations period was extended to two years, but no changes were made to the six-month time period applicable to agency denials (see H.R. REP. NO. 81-276 (1949); S. REP. NO. 81-135 (1949); H.R. REP. NO. 80-1754 (1948).

In 1966, the FTCA was amended to include the presentment requirement (see 28 U.S.C. §2401(b)). Under the 1966 changes, an FTCA claimant had two years after accrual to present the claim to the appropriate agency for potential resolution (see 28 U.S.C. §§2401(b) and 2675(a)).

Before 1990, federal courts almost uniformly held that the FTCA’s two-year and six-month limitations periods were not subject to equitable tolling (see, e.g., Leonhard v. U.S., 833 F.2d 599 (2d Cir. 1980), cert. denied, 451 U.S. 908 (1981); Lien v. Beehner, 453 F.Supp. 604 (N.D.N.Y. 1978), Hoch v. Carter, 242 F.Supp. 863 (S.D.N.Y. 1965)).

Irwin v. Dept. of Veterans Affairs

The landscape changed in 1990, when the Supreme Court addressed equitable tolling in Irwin v. Department of Veterans Affairs (see 498 U.S. 89 (1990)). At issue in Irwin was whether the plaintiff could maintain a district court action for violation of Title VII of the Civil Rights Act of 1984 when he did not commence suit within 30 days after the issuance of a right-to-sue letter by the Equal Employment Opportunity Commission (EEOC). Specifically, the plaintiff alleged that, while his attorney received the right-to-sue letter on March 24, 1987, he did not receive the letter until he returned from travel outside of the country on April 10, 1987. In turn, he argued that the action was viable because he commenced suit within 30 days of April 10, 1987 and, moreover, that any error on his part may be excused under equitable tolling principles. The district court dismissed the complaint and the Court of Appeals for the Fifth Circuit affirmed (see 874 F.2d 1092 (1989)).

The Supreme Court granted certiorari to determine when the 30 day period under 42 U.S.C. §2000e-16(c) started running and to resolve a Circuit Court conflict over whether late-filed claims were jurisdictionally barred. The Court noted that “[t]ime requirements in lawsuits between private litigants are customarily subject to equitable tolling,” and that “we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver” of sovereign immunity. While the Court concluded that the plaintiff’s claim was properly dismissed (due to a “garden variety claim of excusable neglect”) it held that “the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States. Congress, of course, may provide otherwise if it wishes to do so.”

After Irwin, most courts held that FTCA limitations periods were not jurisdictional and could be equitably tolled (see, e.g., Kronisch v. U.S., 150 F.3d 12 (2d Cir. 1998); Hyatt v. U.S., 968 F.Supp. 96 (E.D.N.Y. 1997); Long v. Card, 882 F.Supp. 1285 (E.D.N.Y. 1995)).

U.S. v. Brockamp and U.S. v. Beggerly

The Supreme Court decisions in United States v. Brockamp (see 519 U.S. 347 (1997)) and United States v. Beggerly (see 524 U.S. 38 (1998)), cast doubt on the availability of equitable tolling in FTCA cases. In Brockamp, the Court rejected the plaintiff’s reliance upon Irwin, and held that Congress did not intend the equitable tolling doctrine to apply to §6511 of the Internal Revenue Code of 1986. In Beggerly, the Court also rejected the plaintiff’s reliance upon Irwin, and held that equitable tolling was not available in a suit brought pursuant to the Quiet Title Act.

After Brockamp and Beggerly, courts took a number of approaches to equitable tolling. Some appear to have altogether ignored the decisions, while others distinguished the FTCA from the statutes at issue in Brockamp and Beggerly, or crafted case-specific justifications to keep equitable tolling alive. Regardless, doubt remained.

U.S. v. Wong

On April 22, 2015, the Supreme Court issued a seminal decision in United States v. Kwai Fun Wong (575 U.S. __ (2015)). In sum, equitable tolling is alive and well in FTCA cases.

Two cases were before the Court in Wong. In the first (U.S. v. Wong), the plaintiff alleged that she was falsely imprisoned for five days by the Immigration and Naturalization Service (INS). On May 18, 2001, she timely presented an administrative tort claim to the INS. That same day, she also filed suit in district court asserting various non-FTCA claims against the Government arising out of the same misconduct.

Perhaps anticipating that her claim would be denied by the INS, the plaintiff moved in mid-November of 2001 to amend the complaint to include her FTCA claims. INS denied her claim on December 3, 2001. Thus, under the FTCA, Wong had until June 3, 2002 to file an FTCA action in federal court.

On April 5, 2002, a Magistrate Judge recommended granting leave to amend, but the district court did not adopt the Magistrate’s recommendation until June 25, 2002 – twenty-two (22) days after expiration of the FTCA’s six-month deadline. An amended complaint was filed on August 13, 2002. The Government moved to dismiss the FTCA claim on the ground that it was filed late. Initially, the district court rejected the motion, recognizing equitable tolling for the time between the Magistrate’s recommendation and the district court’s order.

Several years later, the Government moved for reconsideration relying upon Marley v. U.S. (567 F.3d 1030 (9th Cir. 2009)), and argued that the 2401(b) six-month time-period was jurisdictional and not subject to equitable tolling. The district court dismissed the plaintiff’s claim, but the Ninth Circuit heard the case en banc, holding that the six-month time limit was not jurisdictional and that equitable tolling was available (see Wong v. Beebe, 732 F.3d 1030 (9th Cir. 2013)).

In the second case (U.S. v. June), the plaintiff filed a wrongful death action against the State of Arizona for the 2005 death of Andrew Booth, who was killed in a collision that occurred after his car crossed through a cable median barrier. Years into the state court litigation, the plaintiff learned that the Federal Highway Administration (FHWA) had approved installation of the barrier despite knowledge that the barrier had not been crash tested.

In 2010, the plaintiff presented a tort claim to the FHWA. After the claim was denied, the plaintiff filed suit in district court and argued that equitable tolling should apply because the Government concealed the absence of crash testing. The district court dismissed the action as untimely under the FTCA’s two-year bar, but the Ninth Circuit reversed in light of its recent decision in Wong v. Beebe (see 732 F.3d 1030 (9th Cir. 2013)).

The Supreme Court granted certiorari in both cases (see 573 U.S. __ (2014)), to resolve a Circuit Court split about whether courts may equitably toll §2401(b)’s two-year and six-month time limits (compare, e.g., In re FEMA Trailer Formaldehyde Prods. Liability Litigation, 646 F.3d 185 (5th Cir. 2011) (tolling unavailable), with Arteaga v. U.S., 711 F.3d 828 (7th Cir. 2013 (tolling available).

The Court’s analysis in Wong began with a review of Irwin including, specifically, the notion of the “rebuttable presumption” of equitable tolling. “One way to meet that burden – and the way the Government pursued here – is to show that Congress made the time bar at issue jurisdictional. Where that is so, a litigant’s failure to comply with the bar deprives a court of all authority to hear a case. Hence, a court must enforce the limitation even if the other party has waived any timeliness objection . . . [a]nd, more crucially here, a court must do so even if equitable considerations would support extending the prescribed time period.”

Noting that the “Government must clear a high bar to establish that a statute of limitations is jurisdictional,” and that “most time bars are nonjursdictional,” the Court held that in order for a deadline to be jurisdictional, Congress “must do something special, beyond setting a exception-free deadline, to tag a statute of limitations as jurisdictional and so prohibit the court from tolling it.” In the case of the FTCA, “Congress did nothing of that kind.”

Further, the Court stated that “2401(b)’s text speaks only to a claim’s timeliness, not to a court’s power. It states that a tort claim against the United States shall be forever barred unless it is presented to the agency within two years . . . or unless action is begun within six months of the agency’s denial of the claim. That is mundane statute-of-limitations language, saying only what every time bar, by definition, must: that after a certain time a claim is barred. The language is mandatory – “shall” be barred – but (as just noted) this is true of most such statutes, and we have consistently found it of no consequence.”

In closing, Justice Kagan noted “[a]nd so we wind up back where we started, with Irwin’s “general rule” that equitable tolling is available in suits against the Government. The justification the Government offers for departing from that principle fails: Section 2401(b) is not a jurisdictional requirement. The time limits in the FTCA are just time limits, nothing more. Even though they govern litigation against the Government, a court can toll them on equitable grounds.”

A dissent authored by Justice Alito, and joined by Chief Justice Roberts, and Justices Scalia and Thomas, noted that the FTCA’s filing deadlines are jurisdictional because the Act states that untimely claims “shall be forever barred” and this is not generally understood to mean “should be allowed sometimes.”

Michael A. Bottar is a member of Bottar Law, PLLC, where his practice is limited to the pursuit of medical malpractice, wrongful death, workplace accident and other complex personal injury actions, with a focus on claims arising out of birth injuries, stroke, governmental negligence and biomedical product liability. He also an adjunct professor at Syracuse University College of Law, authors the Civil Practice chapter of the Syracuse Law Review’s Survey on New York Law, and is a member of the board of directors of the New York State Academy of Trial Lawyers.

Bottar Law, PLLC has decades of experience investigating and pursuing claims for injured patients, workers, motorists, and consumers. To speak with us about a potential medical malpractice or birth injury claim, please contact the Firm by telephone, email, or click here to submit an online contact form.

The FTCA, 28 U.S.C. 1346(b), 2401(b) and 2671-2680, constitutes a limited waiver by the United States of its sovereign immunity” and allows for a tort suit against the United States under specified circumstances. Under the FTCA, a private citizen may sue for injuries caused by “the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. Under the FTCA, sovereign immunity is waived if a claim meets six requirements (1) brought against the United States, (2) for money damages, (3) for injury to or loss of property, or personal injury, or death, (4) caused by the negligent or wrongful act or omission of any employee of the Government, (5) while acting within the scope of his or her office or employment, and (6) under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

The general public and many lawyers do not know that a lawsuit against the Government cannot proceed unless an administrative claim is submitted to the appropriate federal agency within two (2) years of claim “accrual.” “Accrual” is a legal term of art that should be defined by an attorney. If an agency denies the claim, or does not respond to the claim within 6 months, a lawsuit may be filed.

Identifying the relevant agency, determining what information to present, and where/how to preset it can be complicated. Indeed, the particulars of a federal tort claim formed the basis of an 84 page guide recently published by Syracuse personal injury lawyer Michael A. Bottar, titled “A Desktop Guide to Federal Tort Claims Within the United States Court of Appeals for the Second Circuit.”

There is a limited amount of time to file appropriate documents to protect your rights. To determine whether you have a case against the Government, contact Bottar Law, PLLC, to speak with a New York Federal Tort Claims Act attorney.

One type of trench collapse is known as a “soil pile slide.” A soil pile slide occurs when dirt removed from the trench is piled too close to the edge. If the dirt is piled too high, becomes too wet, or is exposed to vibration fro machinery, it may slide back into the hole. Even though the soil pile slide is the most common trench collapse, it causes few fatalities. The second type of trench collapse is known as a “shear wall collapse.” A shear wall collapse occurs when the top part of the trench wall breaks free from the surrounding earth and fills the trench. Shear wall collapses occur most often in clay-based soil. They occur without warning and usually result in fatalities because, on average, 2-3 yards of soil weighing 5-8,000 pounds can fill the trench. The third type of trench collapse is known as a “belly slough.” A belly slough occurs when the middle part of the trench wall (i.e., the belly) breaks free from the surrounding earth and fills the trench. A belly slough usually occurs around underground utilities or where there is running water near the trench. This type of cave in usually results in deep burial and worker fatalities. The fourth type of trench collapse is known as a “lip slide.” A lip slide occurs when the lip of the trench fractures and a small portion of dirt falls into the trench. Sometimes, a lip slide will precede or cause a soil pile slide or shear wall collapse. Click here to view the CDC and NIOSH web-based training tutorial called “Trench Safety Awareness,” with trench collapse animations. While trench cave-ins can be prevented with sloping, benching, shoring and shielding, many contractors fail to take steps to protect workers. Recently, OSHA found that two trenches in Hahira, Georgia were dangerous because they lacked trench cave-in protection. There was no shield system in place. While on site, OSHA also found that the contractor failed to have a ladder on site to gain safe access to the trench, that employees were exposed to unreasonable fall hazards, and that employees were not properly trained about excavation hazards.

Construction sites can be dangerous, especially where property owners, contractors and subcontractors do not protect workers from known hazards. If you were injured in a New York trench collapse and would like to learn about you right to seek compensation for, e.g., lost wages and medical bills, including but not limited to Workers Compensation, contact our legal team at (315) 933-4448 or by email at info@bottarlaw.com.

New York has a “No-Fault” law which pays for lost wages and medical bills following a car accident. However, in order to receive the benefits, an injured person must do everything the No-Fault insurer says. One of the requirements will be to attend an independent medical examination, also known as an IME. At the IME, a doctor selected by the insurance company will see the injured person, usually for 15-20 minutes, and then generate a report. In almost all circumstances, the IME report will provide that there is nothing wrong with the person. No-Fault benefits then terminate (i.e., instant financial savings). A similar process exists under New York’s workers compensation law. If a worker is injured on-the-job, they are entitled to lost wages and medical care provided they follow the directions of the Workers Compensation insurance carrier. One of the requirements will be to attend an IME. As is the case with No-Fault, often the IME report will provide that there is nothing wrong with the person. Workers Compensation benefits then terminate.

Until recently, you could not file a New York medical malpractice lawsuit against the IME doctor for incorrect advice, e.g., that the injured person is not hurt, has no disability and/or is fit to return to work, because of the absence of a “doctor-patient” relationship. This is no longer the case.

Following the First Department’s decision in Baldato v. Rosenberg, an IME doctor can be sued for medical malpractice if: (1) s/he gives incorrect advice, (2) it was foreseeable that the person would rely upon the advice, and (3) reliance on the advice causes harm. By way of example, if an IME doctor opines that an injury to a person’s lumbar spine has healed and the person has no physical limitations that prevent return to work, the person will return to work (because the IME report will lead to a termination of benefits). If the person suffers a debilitating injury lifting a heavy object (that they should not have been lifting), the IME doctor may be liable for medical malpractice.

To avoid medical malpractice liability, an IME doctor will have to talk out of both sides of his/her mouth. Reports will now have to say that the person can go back to work, but also that the person should not rely upon the contents of the report. Translation: the IME doctor’s opinion is not worth the price of the paper it’s written on.

Nota bene: IME doctors…we will be watching.

Some Syracuse-area employers who received a letter from OSHA include: TAG Mechanical Systems, Inc.; Metalico Aluminum Recovery; Optogenics; Hanford Pharmaceuticals; Cardinal Health; Pepsi-Cola; Estes Express; Berry Plastics; Syracuse Haulers; C&S Technical; Penn Traffic Company; Lowe’s Home Centers. Utica-area employers who received a letter from OSHA include: Matt Brewing Company; and Sturges Manufacturing Company. Rome-area employers who received a letter from OSHA include: RPNH, Inc.; International Wire Group; and Conmed Corporation. Oswego-area employers who received a letter from OSHA include: Oswego Wire Incorporated; Golden Sun Bus Service; Loretto-Oswego Residential; and Sunrise Nursing Home. Watertown-area employers who received a letter from OSHA include: Car-Freshener Corporation; Tontarski, inc; and Atlas Health Care. Binghamton-area employers who received a letter from OSHA include:Johnson Outdoors Gear; Methodist HM; and Dons Automotive Mall.

What does receipt of a letter mean? Probably nothing more than an employer’s employees missed an above average number of days of work. Possible explanations could include illnesses such as the flu, or accidents due to unsafe working conditions. These accidents may render a laborer unable to work and permanently disabled. In order to secure compensation for serious personal injuries, you may need to hire a Syracuse site construction accident lawyer to file a construction accident lawsuit for nerve damage, or a Utica construction site fall lawyer to file an industrial accident lawsuit for brain damage, a Rome workplace accident lawyer to file a workplace accident lawsuit for complex regional pain syndrome, an Oswego jobsite injury lawyer to file a jobsite injury lawsuit for an amputation, a Binghamton scaffolding accident lawyer to file a scaffolding accident lawsuit for paralysis, or a Watertown falling object lawyer to file a injured worker lawsuit for a concussion.

The trial lawyers at Bottar Law, PLLC, have decades of experience investigating, prosecuting and trying to verdict all types cases involving on-the-job injuries. If you or a loved one have been injured, you, your child and/or your family may be entitled to compensation for lifelong health care, medical expenses, special education, medical bills, loss of income, and pain and suffering.

To discuss your case or concerns with an experienced Central New York severe injury attorney, contact us now at (315) 933-4448, or by e-mail at info@bottarlaw.com.

The plaintiff in the lawsuit captioned Marcus J. (Marc) Mathews v. Big Bear American Made Choppers, Inc. (Case No.: 5:04-cv-1206), is a forty year old resident of Solvay, New York. He is represented by Anthony S. Bottar and Michael A. Bottar, of the Syracuse, New York law firm of Bottar Law, PLLC.

According to the complaint, on June 13, 2004, the plaintiff was riding his three month old Venom ProStreet motorcycle in Alton, New Hampshire when the front fender assembly failed causing the nearly 10 pound fender to come into contact with and lock the front tire of the motorcycle. The plaintiff then lost control of the motorcycle, crashed into another motorcycle, and was thrown into a ravine where he sustained severe arm and leg injuries. After more than two years of surgeries, the plaintiff’s right leg was amputated above the knee.

According to court records, the Alton Police Department, with assistance from New Hampshire State Troopers, conducted an investigation after the accident which revealed that two of the four ¼”-20 screws intended to hold the motorcycle’s front fender to the bike had fallen out prior to the accident. Eye witness accounts, a tire imprint on the underside of the front fender, and a distinct skid signature left on the roadway led the police to conclude that a defect in the motorcycle caused the accident.

After three years of discovery, the plaintiff’s attorneys claim that Big Bear American Made Choppers had actual or constructive notice, more than one year prior to the plaintiff’s accident, that the method it selected to attach the Venom’s front fender to its lower legs was inadequate.

The trial lawyers at Bottar Law, PLLC, have decades of experience investigating, prosecuting and trying to verdict all types of accident and product liability cases, including injuries due to unsafe consumer goods, including cars and motorcycles. If you or a loved one have been injured because a product failed or did not function as intended, you and/or your family may be entitled to compensation for lifelong health care, medical expenses, medical bills, loss of income, and pain and suffering.

To discuss your case or concerns with an experienced Central New York defective product attorney, contact Bottar Law, PLLC now at (315) 933-4448, or by e-mail at info@bottarlaw.com.

Many of the gardens, which are located on the City’s north and south sides, are maintained by resident gardeners who have worked for years in the dirt and soil. These residents, who today learned that they may have been exposed to lead and other toxic chemicals, are understandably upset. Especially as, according to the study, the City of Syracuse may have been once source of the contamination.

Normal lead levels are 40-50 ppm. The levels in the gardens tested ranged from 46-820 ppm. More disturbing was the fact that the arsenic levels were even higher. Normal arsenic levels are 0.4 ppm. In all but one garden tested, the levels were 8-17 ppm. Possible sources of the lead contamination include roadway runoff laced with pre-1986 lead gasoline additives, lead-paint from homes, and topsoil trucked by the City to the gardens – topsoil which the City collected from Syracuse-area yard waste. The arsenic contamination like came from decomposing pressure-treated wood and/or pesticides.

Chemicals in the gardens is a cause of concern for many, as dozens of residents have worked the soil for years. Some of the gardens have also been used to grow food. Without proper precautions, lead and arsenic can be absorbed by the body through contact.

There is no safe level of exposure to lead or paint. Lead exposure can make adults sick and can cause permanent neurological and brain damage in children. Arsenic exposure has been linked to damage to the circulatory systems as well as cancer.

The Post Standard quoted Mable Wilsonm founder of the Newell Street Community Garden, as saying that “[i]t feels like environmental discrimination. This is our community. You are tearing it down. At least put down good soil.”

The trial lawyers at Bottar Law, PLLC, have decades of experience investigating, prosecuting and trying to verdict all types of pollution, air contamination, soil contamination and toxic exposure cases, including injuries due to exposure to cigarette smoke, automobile pollution, gasoline vapors, asbestos, lead and mold. If you or a loved one have been sickened due to exposure to unhealthy air or soil, you and/or your family may be entitled to compensation for lifelong health care, medical expenses, medical bills, loss of income, and pain and suffering.

To discuss your case or concerns with an experienced Central New York toxic tort attorney, contact Bottar Law, PLLC now at (315) 933-4448, or by e-mail at info@bottarlaw.com.

According to a New York Times review of workers’ compensation case files, medical records, and patient interviews, “independent medical examinations” and the reports that follow are are frequently conducted or prepared in a fashion that benefits insurers by minimizing injuries or by attributing injuries to some other cause or event. Unlike a visit to a treating physician, an IME physician may meet with an injured worker for less than ten minutes. During that ten minute period, the IME doctor may take an abbreviated history, skim medical records, perform a very limited physical examination and send the patient on his or her way without an ounce of compassion. After that examination, the majority of IME reports conclude that the patient is not injured or, if injured, is not disabled.

Many refer to Syracuse-area IME doctors as “Dr. No” or “Dr. Says-No,” because no matter how badly injured, certain doctors will consistently find no injury or no disability. The New York Times interviewed Dr. Alan Zimmerman, an orthopedic surgeon practicing in Queens, New York. According to Dr. Zimmerman, “[b]asically, if you haven’t murdered anyone and you have a medical license, you get certified.” Dr. Zimmerman added that its “clearly a nice was to semi-retire.” Dr. Zimmerman, 75, conducts orthopedic IMEs.

IME examinations are very profitable for doctors (some earning nearly $1,000,000 per year performing examinations and testifying in court), and were poorly regulated until 2001. In 2000, a Long Island doctor conducted five IMEs in a Long Island bar. Some examiners, of course, do furnish honest examinations.

A small study conducted a few years ago at the Central New York Occupational Health Clinical Center in Syracuse, New York, revealed that the clinic’s treating physicians and local independent medical examiners almost always disagreed on whether an injured worker was disabled.

The trial lawyers at Bottar Law, PLLC, have decades of experience investigating, prosecuting and trying to verdict all types accident and injury cases, including those arising out of construction site accidents, industrial accidents, jobsite and workplace accidents, falls, scaffolding and structural failures, and car, SUCV, bus and tractor trailer accident. If you or a loved one have been injured, or have lost a loved one due to a work injury or serious accident, you and/or your family may be entitled to compensation for lifelong health care, medical expenses, medical bills, loss of income, and pain and suffering.

To discuss your case or concerns with an experienced Central New York catastrophic injury attorney contact Bottar Law, PLLC now at (315) 933-4448, or by e-mail at info@bottarlaw.com.

On June 4, 2004, the plaintiffs, Stephen D. Salisbury, Jr. and Christine K. Dannible, were on a motorcycle driven by Mr. Salisbury. While stopped at a red traffic light, an automobile operated by defendant, Jonelle Christian and owned by defendant, Central National Bank (leased to defendant, Anthony Christian) rear-ended the motorcycle. The violent collision threw the plaintiffs from the motorcycle, causing Mr. Salisbury to suffer a compound tibia fracture requiring surgical correction, and causing Ms. Dannible to suffer a “mild” traumatic brain injury.

At trial, the defendants did not dispute that the collision caused Mr. Salisbury’s broken tibia, but contended that there was no radiological or diagnostic evidence that Ms. Dannible suffered a brain injury.

Mr. Salisbury called his treating orthopedic surgeon. Ms. Dannible called her treating neurosurgeon, psychologist and concussion management program director, internist, nurse practitioner and physical therapist who unanimously opined that she suffered a mild traumatic brain injury in the collision, and is and will continue to suffer from the effects of post-concussive syndrome. Defendants called a neurologist and neuropsychologist who, on cross-examination, conceded that Ms. Dannible suffered a mild brain injury in the collision.

The case went to the jury after eight days of trial. After deliberating for three hours, the jury awarded Mr. Salisbury $12,061.24 for past medical expenses and $150,000.00 for past pain and suffering. The jury awarded Ms. Dannible $34,098.36 for past medical expenses, $122,246.00 for past loss of earnings, and $300,000.00 for past pain and suffering, as well as $1,000.000.00 for future medical and rehabilitation expenses (including medication), $800,000.00 for future loss of earnings, and $1,000,000.00 for future pain and suffering. Plaintiffs are entitled to statutory interest, increasing the total verdict to more thabn $4,000,000.00.

The trial lawyers at Bottar Law, PLLC, have decades of experience investigating, prosecuting and trying to verdict all types of brain injury cases, including traumatic brain injuries (mild, moderate and severe), brain damage, concussions, post-concussion symdrome and related adjustment disorders. If your or a loved one have been diagnosed with a brain injury, you and/or your family may be entitled to compensation for lifelong health care, special education, rehabilitation, medical expenses, medical bills, loss of income, and pain and suffering.

To discuss your case or concerns with an experienced Central New York brain injury attorney, contact Bottar Law, PLLC now at (315) 933-4448, or by e-mail at info@bottarlaw.com.