Personal Injury Lawyers in New York

On February 20, 2008, the Supreme Court ruled 8-1 that manufacturers of medical devices which meet the FDA’s specification and have been approved for marketing, cannot later be sued for any personal injury claimed to have been caused by that device. In other words, FDA pre-market approval of a new medical device takes precedence over later state lawsuits.

Such state lawsuits have been filed in the past, and some patients have won large amounts for injuries held to have been caused by an approved medical device. Many such pending lawsuits will now be moot.

The case before the Supreme Court concerned a man who was injured when a balloon catheter burst as it was being inserted to dilate his coronary artery. The catheter had been approved by the FDA in 1994, two years previously.

Two Approval Processes

Up until 1996, FDA approval was done according to the Medical Device Amendments process of 1976. Since 1996, medical devices have been approved differently, where the FDA has deemed them “substantially equivalent” to the ones marketed before 1976. In 1996, the Supreme Court ruled that this second process does not pre-empt state lawsuits being brought against manufacturers of any “grandfathered” devices.

The situation is not fully clear at this point as to how many of the pending suits will be affected by the ruling. For example, devices which were FDA-approved but subsequently manufactured in a sub-standard way are not included in the 2008 Supreme Court ruling. Further, if a state has laws which mirror the federal laws (rather than differing and supplementing them), some cases may be permissible.

Some State Lawsuits “disrupt the federal scheme”

Justice Antonin Scalia, writing for the majority, said that allowing a state jury to assign liability to a manufacturer who has previously gone through the FDA approval process for the device in question “disrupts the federal scheme”. He noted too that juries see only the injured plaintiff’s situation and therefore tend to consider the dangers of a device more than its benefits. “The patients who reaped those benefits are not represented in court.”

Devices affected by this 2008 opinion tend to be more technologically sophisticated and include devices such as a heart pump, an implantable defibrillator, a drug-coated stent, an artificial heart valve, and artificial knees and hips.

If you have been injured by a medical device, or if you are wondering whether you have, it will help to contact us for a free case evaluation.

Today, February 28, 2008, 24,000 cribs were recalled which were made in Indonesia. They have faulty railings, with brackets which don’t allow the mattresses to be fully lowered. That means there is less vertical space between the mattress top and the railing top. A baby could climb over and fall.

The cribs were imported by Munire Furniture, Inc., a New Jersey-based company which makes furniture for babies, children and teenagers. They have stores in a dozen or so locations. This recall includes cribs called Majestic Curved Top, Majestic Flat Top, Essex, Brighton/Sussex, and Captiva, with different model numbers. They were sold between November, 2005 and November, 2007.

Although as yet no deaths or injuries have been reported caused by these cribs, the Consumer Product Safety Commission (CPSC) has been looking into deaths of children in cribs in general, caused by what is in the crib. Between 2002 and 2004, 241 children below the age of five died in their crib. Soft bedding seems to be the main culprit, as it suffocates a baby who lies face down on it. Soft bedding has also caused deaths for children in playpens.

Ill-fitting mattresses are another culprit – the baby can become trapped and suffocate. Nor should old broken cribs be used, or any crib with a gap between the crib and the sides of the mattress more than two fingers wide.

If your baby has been injured by any defective new crib, or if such a crib has caused a death, please contact Silberstein, Awad and Miklos today for a free case evaluation.

Last week, a judge accepted a $25 million settlement in the wrongful death lawsuit against Durham novelist Michael Peterson, nearly a year after he and his step-daughter reached the agreement. The consent judgment is for $25 million in compensatory damages. Hudson also awarded nearly $1,500 in court costs and another $10,500,000 in interest, bringing the total judgment to $35,501,486.80. Additionally, interest continues to accumulate at a rate of $166,666.67 per month.

Peterson, 64, was convicted in October 2003 of first-degree murder in the 2001 death of his wife, Kathleen Atwater Peterson. Emergency workers found her dead at the bottom of a staircase in the couple's Durham home. Peterson's stepdaughter, Caitlin Atwater, filed the lawsuit against him in October 2002 with the intent that he would never be able to profit from the crime.

On Feb. 1, 2007, they reached the settlement in which Atwater agreed to stay her lawsuit until Peterson's criminal appeals were exhausted. The settlement also states that Peterson admits no guilt or liability in the death of his wife.

The North Carolina Supreme Court upheld Peterson's conviction on Nov. 9, exhausting his direct criminal appeals.

If your loved one suffered a wrongful death in Queens, Brooklyn, Long Island or the Bronx, New York, please contact Silberstein Awad & Miklos today to schedule your initial consultation.

The United States Consumer Product Safety Commission, along with Mission City Press of Franklin, Tennessee, has announced a voluntary recall of A Life of Faith Charm Bracelet Sets. Approximately 11,00 of these bracelets have been recalled due to the following hazard: Surface paint on the pearl white beads of the bracelet contains excessive levels of lead, violating the federal paint standard.

The recalled bracelets have a silver-colored chain and silver-colored charms that include a Bible, angel, cross, heart and praying hands. The recalled sets include a bracelet for a girl to wear plus a smaller matching one for her doll.

The recalled bracelets were soled in book, gift and specialty toy stores nationwide from October 2006 to November 2007 for about fifteen dollars.

If your daughter or someone you know owns this bracelet, take it away immediately and return it to Mission City Press in Tennessee for a full refund. The mailing address Mission City Press, Attn: Bracelet Fund, 202 Second Avenue, South Franklin, TN 37064. To get a refund you must include the bracelet, your name, mailing address, phone number and email address if you have one. For additional information, you can call Mission City Press at 800.840.2641 during regular business hours or visit their web site at www.alifeoffaith.com/bracelet or email them at customerservice@missioncitypress.com.

A San Luis Obispo, Texas County jury has recommended nearly $2 million in damages for the family members of two women killed in the collapse of a building in Paso Robles in the 2003 San Simeon Earthquake, saying the owner of that building was negligent in not reinforcing it.

The wrongful death trial against Mary Mastagni, 84, and her family, the owners of the historic, 111-year-old Acorn building in downtown Paso Robles, began Nov. 27.

The families of Marilyn Frost-Zafuto, 55, and Jennifer Myrick, 20, had sued saying Mastagni was negligent in not working more quickly to retrofit the un-reinforced masonry building and did not adequately warn the victims who were working in a clothing shop at the time the 6.5 earthquake hit.

The defendants had argued that they still had time under state law to retrofit the building.

The jury returned its verdict Monday afternoon, awarding $600,000 in damages each to Myrick's parents, Leroy and Vicky Myrick of King City. As well, the jury awarded $600,000 to Alison Phillips, the daughter of Frost-Zafuto, and $100,000 to Dennis Zafuto, the victim's husband.

If you or a loved one has been injured or killed due to an unsafe building in Queens or Long Island, New York, please contact the attorneys at Silberstein, Awad & Miklos today to schedule your initial consultation.

The maker of 'Thomas & Friends Wooden Railway toys has agreed to pay $30 million to settle a nationwide class-action lawsuit by thousands of families who purchased lead-tainted products, a plaintiffs' attorney said Wednesday.

Under the deal, Oak Brook-based RC2 Brands will offer cash refunds or replacements toys, plus what the company calls a bonus toy; it also promises to implement new quality controls, said Jay Edelson, a plaintiffs' attorney in the case.

The lawsuit was filed in the Circuit Court of Cook County, Illinois last year, and the court gave the settlement preliminary approval on Tuesday. The judge is expected to give final approval at a hearing set for May 6, Edelson said.

In June of last year, the Consumer Product Safety Commission announced that RC2 was voluntarily recalling about 1.5 million items in what would become the first of several major roundups involving lead paint on toys made in China. Children who ingest even small amounts of lead can suffer brain damage; large doses can kill.

The company, which had 2006 sales of about $500 million, has dropped its supplier, Hansheng Wood Products, which made the Toad pieces as well as the items in the first recall.

If your child has been sickened by the ingestion of lead in Long Island, Queens, Brooklyn, or the Bronx, New York, please contact the attorneys at Silberstein Awad & Miklos today to schedule your initial consultation.

Kaiser Permanente is paying $3.2 million to a 14-year-old Lake Forest, California girl who was not breathing and suffered brain damage when delivered by Caesarean section.

The birthing malpractice settlement was reached this month after a binding arbitration decision in favor of the family of Ariana Ehtemam. Court documents show the girl now suffers physical and behavioral problems.

The $3.2 million has purchased an annuity worth $20 million over her lifetime. She will receive the first payment when she turns 18 years old.

If you or a loved one has suffered or died due to medical malpractice in Queens, Brooklyn, Long Island or The Bronx, New York, please contact the law offices of Silberstein Awad & Miklos today to schedule your initial consultation.

Testimony is expected to get underway during the last week of January in a personal injury lawsuit against Union Pacific over a deadly train wreck that happened in 2004.

Kenneth Schoenfield is seeking an unspecific amount of damages in a claim that he suffered permanent injuries after inhaling chlorine gas being carried by the train when it collided with another train head-on.

"They ran a caution, be-prepared-to-stop light and they ran through a red light without ever putting the brakes on and ran into another train," said Dana Kirk, Schoenfield’s attorney. "When you're carrying hazardous materials, that kind of conduct is simply unacceptable."

Three people, including the train's conductor, were killed in the train wreck and about 30 people were injured. The collision and subsequent derailment happened at about 5 a.m. on June 28, 2004, near Loop 1604 and Nelson Road in southwest Bexar County in Texas.

If you or a loved one has been injured or killed in a train accident in Queens, Brooklyn, the Bronx or Long Island, please contact the experienced train accident attorneys at Silberstein Awad & Miklos today to schedule your initial consultation.