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James Sikes, in case you missed the story, is a poor fellow whose name recently hit the national news when his 2008 Toyota Prius’ accelerator pedal stuck to the floor, sending him rocketing down Interstate 8 at speeds up to 95 miles per hour.

Just the other day, Toyota held a nationally televised news conference to announce that its “investigation” of the Sikes incident has resulted in findings “inconsistent” with Mr. Sikes’ account. Although Toyota does not claim to know what happened, it does claim to know what did NOT happen, and apparently, that means the accelerator pedal did NOT stick.

If you think Mr. Sikes is making it up, google and listen to his 911 call, which documents his frantic attempt to stop the car with law enforcement help.

In my last blog post, I explained that “pain and suffering” is an important part of compensation sought in a personal injury lawsuit. Personal injury lawyers here in Central New York, and everywhere else for that matter, tend to lump the two words, “pain” and “suffering”, together as if they meant the same thing. But they don’t. There is a difference between “pain” and “suffering”. That’s what today’s blog is about.

Generally, “pain” is the physical part of the equation. For example, fractures, broken bones and nerve impingements all cause physical pain. Suffering, on the other hand, is the mental and emotional harm that physical pain can cause. The physical pain inhibits the victim’s ability to work, exercise, or do his or her normal routines. For example, a victim of an accident may not be able to go bowling anymore, or not be able to hold his or her child. This can cause serious psychological suffering, including anxiety, sadness and depression. That is what we call “suffering”.

If the pain is long term, then the suffering is usually correspondingly greater. Long term disabilities can cause a lot of “suffering”. They can create a permanent and dramatic change in lifestyle and life outlook, leading to depression, fear, panic attacks, post traumatic stress disorder (PTSD), or even suicidal thoughts.

“Pain and suffering” is the ugly duckling of personal injury damage claims. Many people roll their eyes when those three words are spoken, especially when spoken by personal injury lawyers. The concept is so unpopular, so despised, that when Syracuse and Central New York personal injury and medical malpractice lawyers pick juries for trial, one of the most important questions we ask, to see whether a juror can be fair, is, “what do you think of awarding compensation for pain and suffering”? Many, many prospective jurors say, “I’m against it” or like words.

Yet New York personal injury law entitles victims of the careless, negligent or intentional acts of others to FULL compensation for all their losses, including lost wages, medical expenses and, yes, “pain and suffering”. Why? Think of the “scale of justice” (pictured on this page). When someone is injured through someone else’s fault, the scale tips down on one side. The “down” side is where the victim is. The whole idea of our civil justice system is to tip the scale back up to a balanced state again. If someone has suffered lost wages, medical expenses, and pain and suffering, would the scale be tipped upright again if he or she were compensated only for lost wages and medical expenses, but not pain and suffering?

Unfortunately, people seriously injured in an accident don’t just jump up off the pavement, brush themselves off, and go on with their lives as if nothing happened. Pain and Suffering sometimes lasts a lifetime. The victim’s way of life can be completely altered. It converts athletes into couch potatoes. It turns happy people into sad, anxious people. It turns families upside down when one parent, or child, is constantly in pain.

Cover-ups. Personal injury lawyers here in Syracuse, Central New York, and everywhere, love them. We play them for all they are worth. Think about those big tobacco lawsuits. Would those smokers have rung the bell with those big pain and suffering verdicts without evidence that the tobacco industry had covered up what they knew about smoking and cancer? Nothing makes a jury madder than a cover up. And nothing pushes the size of a personal injury verdict up more than raw anger.

This blog post is about the Toyota defective pedal dilemma. But first, let me digress (again!).

In a Syracuse New York personal injury lawsuit I handled a few years ago, the insurance company hired an expert witness, an orthopedic doctor, to testify that my client’s lower back injury was pre-existing and therefore not caused by her slip and fall on the defendant-restaurant’s wet floor. He based this opinion in part on the fact that my client had not complained about lower back pain until two weeks after the fall. He was wrong and I knew it. My client had reported back pain at the emergency room. I noticed, when I looked at the list of records the doctor claimed to have reviewed in reaching his opinion, that a key record was missing — the emergency room records. So my cross-examination of the doctor was all about a “cover up”. I insinuated that the insurance company had “covered up” this ER report, that they had deliberately hidden it from the doctor. Maybe they didn’t. Maybe it was an innocent mistake. But the cross-examination was brutal, and the insurance company lawyer knew it. A large personal injury settlement soon resulted.

Do you take you Syracuse or Central New York injury claim seriously? Do you want the insurance company to take it seriously, too? Well, I’ve got some news for you: The sure-fire way to guaranty that the insurance company will NOT take your injury seriously is to represent yourself.

You are not the only injured person the insurance company is dealing with. Other people with injuries, very similar like yours, have retained attorneys to advocate their claims with that same insurance company. All those other people seem to be taking their injury seriously. They are taking their injuries so seriously that they have hired an attorney. They are showing the insurance company that they are prepared to go to court if the insurance company does not take their injuries seriously.

True, you can talk to that insurance adjuster yourself when she calls. She might even seem nice on the phone, might promise to treat you fairly. Believe me, she won’t. Not without an attorney. Why? Here’s why, and try to remember it, as it is the most important part of this blog — INSURANCE COMPANIES MAKE THEIR PROFIT BY PAYING AS LITTLE AS THEY CAN ON YOUR CLAIM.

I can think of few laws as unfair as “damages cap” laws. For those readers unfamiliar with this concept, let me explain. A “damages-cap” law essentially says that, in a personal injury or medical malpractice lawsuit, the injured plaintiff is limited to a certain amount of compensation for his or her “non-economic” damages, no matter how devastating the injury. “Non-economic damages” essentially means compensation for pain and suffering and loss of enjoyment of life.

The unfairness of damages caps can best be shown by way of example:

Patient A undergoes neck surgery, his surgeon commits medical malpractice, he ends up with moderate but permanent pain running down both arms. Full and fair compensation for this annoying, painful sensation for a lifetime is about $500,000. Patient A goes to court, the jury awards him $500,000, and he gets it. He is fully and fairly compensated for his injury.

I abhor frivolous lawsuits. I try to bring my New York personal injury lawsuits only against companies and people whom I feel are truly liable for my clients’ injuries. But once in a while I am forced to sue “iffy” claims against those who probably are not responsible for my clients’ injuries. Why? Because of insurance companies and their lawyers, that’s why. Let me explain by way of example.

My client is a passenger in her boyfriend’s motor vehicle. On a snowy night, they come upon a car stopped in the middle of the road, which apparently stopped because of the snowy conditions. It appears, though, that the driver of that car could have done a better job pulling over onto the shoulder of the road. Nevertheless, my client’s boyfriend is able to stop in time. Moments later, a tractor trailer comes from behind and hits the rear of my client’s car, propelling it into the car stopped in front. That tractor trailer driver was clearly going too fast for the snowy conditions. My client suffers serious injuries, can never work again, and no-fault insurance is quickly exhausted.

So who do I sue to get her the compensation she needs and deserves? After all, she was an innocent passenger.

I get this question all the time. A client is hurt by someone else’s negligence and wants to know what to expect, and more specifically, HOW MUCH to expect in settlement for her personal injury.

First, you can usually only tell after the doctor has released you from further treatment. Only then can the doctor tell us whether you will have any permanent injuries, and if so, how bad.

But after the injury has healed as much as it can, the math itself is pretty simple. You take the average jury verdict you expect a jury to give (jury verdicts vary widely, so you simply take what the average jury would probably give), and then multiply it by the percentage chance you believe you have of winning at trial. For example, let’s say you have an injury an average jury would award $100,000 for. But there are some weaknesses in your case, so that about 1 out of 4 juries would rule against you. Doing the math, you have a 75% chance of winning on a $100,000 injury, and thus a fair settlement would be $75,000.

I get it all the time: “I’m not THAT kind of person. I’m not the suing type”. They fidget nervously, from their chair on the other side of my desk, afraid I will think they are “that kind of person” for coming to see me. I think silently, “What must you think of me, who makes a living out of being ‘that kind of person?'”

But I don’t say that, of course. I show compassion. No one wants to be in their position. Here they are, forced by circumstances to become “that kind of person”. Embarrassed by it, really. I tell them what they are feeling is very common. No one wants to sue anyone. No one wants to claim money for an injury. Money won’t make the pain go away. But they need to think about the future, about their lost income, about their medical costs, and of course about their pain, suffering and loss of enjoyment of life that may last forever. And they shake their head in agreement knowingly, relieved that I am not going to judge them to be “that kind of person”.

So what makes them overcome their embarrassment and come to see me? Their life has suddenly changed for the worse because someone was careless. Maybe they got hit by a drunk driver that didn’t stop at the stop sign. Maybe they slipped and fell on an icy walkway that no one bothered salting. Maybe they were injured on a construction job where the safety rules weren’t being enforced, causing them to fall from a ladder or scaffold. Whatever it was, they are hurt, it wasn’t their fault, and after mulling it over for a few days, after seeing how their life has changed, perhaps forever, and how unfair that is, and after feeling the rage, the injustice of it all —- they call. They set up the appointment. They come in. They sign the retainer.

The Syracuse Post Standard reports today that State police have arrested a 28-year old socio-therapist at a residential center for teenage boys on rape charges. The socio-therapist is alleged to have had sexual contact with a 15-year-old resident of Snell Farms Children Center in Bath, in Steuben County.

Criminal charges have been filed, but the question I want to address in today’s blog is, what are the possible CIVIL LAW consequences? In other words, assume the child has suffered some psychological trauma, pain and suffering, and has a need for psychological treatment. Can the child, through a parent or guardian, bring a New York rape or child abuse lawsuit for money damages to pay for his treatment and to compensate him? Who would the child-victim sue and how would he be compensated?

The child, through his guardian or parent, can sue both the alleged rapist and the employer, Snell Farms Children Center. The lawsuit against the rapist would allege assault and battery and other intentional acts. But, even if the child wins at trial, that lawsuit would almost certainly be a waste of time and money. Why? Because even if this socio-therapist has liability insurance, such as homeowner’s insurance, the insurance company won’t pay out a dime on this case. Insurance never covers INTENTIONAL wrongdoing. And what can be more intentional than rape?

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