Attorneys in Buffalo will occasionally be involved in personal injury cases that are resolved through a structured settlement.  Simply put, a structured settlement is an agreement between the plaintiff and the defendant that the injured party will receive compensation through periodic payments instead of in one lump sum.  A structured settlement most commonly occurs in cases that are settled for very large amounts of money.

There are several things for the plaintiff to consider when determining whether to enter into a structured settlement versus a lump sum payment.  These include the tax implications of each type of payment and how good the plaintiff is at handling finances.  Because structured settlement payments may cease upon the plaintiff’s death, life expectancy may also be a consideration.

Whether a structured settlement is to the plaintiff’s benefit hinges on the individual factors of each case.  When determining whether to accept such a settlement, it is important to consult with an attorney who is not only experienced in this area, but one who will also take the time to develop an understanding of his or her client’s specific circumstances.

In Buffalo, and most other jurisdictions throughout the country, manufacturers are required to include proper warnings on labels on products or product packaging if that product presents a danger that is known to the manufacturer.  As a result, failure to properly label a product may be helpful if you are seeking compensation in a product liability case.

When determining whether a product should have carried a warning or not, courts consider issues such as whether the product is inherently dangerous, whether the manufacturer is aware of that danger, whether the product is dangerous when used for its intended purpose, and whether the danger should have been obvious to the user. 

As an example, objects such as knives generally do not need to bear a warning label because their danger should be obvious to anyone using them.  Medication, however, is required to carry warnings about possible side effects since the potential problems that could arise from use are not obvious to the user.

If you suffer an injury while using a product as directed by the manufacturer, the danger of the product was not obvious, and the manufacturer failed to adequately warn you of the potential danger, you may have the right to file a product liability lawsuit against that manufacturer.  In this situation, you should consult an attorney experienced in product liability law to help you evaluate whether you have a potential claim for damages.

The parties in a personal injury case have a right to trial by jury.  This applies not just to cases in Buffalo, but throughout the United States under the U.S. Constitution.

In New York State courts, the usual procedure when making this decision is for the plaintiff to be given the choice of whether or not to seek a jury trial after the parties have completed discovery (the exchange of information about the case) and are preparing to go to trial.

If the plaintiff chooses not to seek a jury trial, the defendant may still exercise the option of having the case heard by a jury.  In personal injury lawsuits, both parties have the right for the case to be heard by a jury instead of a judge.  As a result, if only one party requests a jury, the case will be heard by a jury.

For cases in federal court or in other states, the time frame during which the decision to hold the trial in front of a jury or a judge may differ.  As a result, you should consult with your attorney not just about whether it is to your advantage to seek a jury trial, but also about when that decision needs to be made.

If someone suffers a wrongful death in Buffalo, their estate can sue for the pain and suffering that individual experienced prior to death.  This area of law may, however, be a very difficult to prove.

Unlike other issues that may form a basis for monetary compensation in a wrongful death case, such as loss of the deceased’s future income, pain and suffering is very subjective.  This problem is compounded by the fact that, unlike a personal injury case, the individual who suffered pain obviously cannot provide testimony regarding the experience. 

As a result, the degree of pain and suffering experienced usually can only be determined based on factors such as how long the deceased individual survived after being injured, whether he or she was conscious, and the testimony of other individuals about what that individual seemed to be experiencing.

Because of the variety of factors involved and its subjective nature, the amount of compensation awarded for pain and suffering in wrongful death cases varies greatly.  An experienced personal injury attorney can provide guidance regarding how important a role this factor should play given the specific facts surrounding a wrongful death.

When personal injury lawsuits in Buffalo are preparing to go to trial, it is not unusual for the defense to request that the injured person be examined by one or more doctors chosen by the defense.  Under New York State law, the defense does have a right to have such medical examinations conducted in most cases.

While you may be required to undergo this examination, bear in mind that the doctor conducting the examination has been chosen by the defense in the hopes that he or she will be able to provide medical evidence that your injuries are not as extensive as you claim.  He or she is not your doctor and is not there to help you with your treatment or provide medical advice.

Because the defense has requested this medical examination in the hopes of developing evidence against you, your lawyer may wish to either attend the examination or have another person, such as medical person hired by your lawyer, attend it, to make sure that the individual conducting the examination does not overstep the bounds of the examination or treat you unfairly. 

If you are required to attend such an examination, you should speak with your attorney.  He or she can provide you with additional information and provide advice regarding how to conduct yourself at the examination.

Buffalo personal injury attorneys, and I suspect those elsewhere, can often develop the bad habit of using a form of “legal shorthand” when speaking to their clients.  Another lawyer would know what an attorney means when he uses the term “Discovery,” but there is no reason a client would.

When your personal injury attorney says discovery is beginning in your case, he or she means that your attorney and the attorney representing the defendant will begin making formal requests for information from each other.  The documents the lawyers submit on these issues carry names such as “Notice for Discovery and Inspection” and “Verified Bill of Particulars,” each of which is used to seek specific types of information.

These documents usually include requests for items such as a list of the injuries being claimed, who provided medical treatment, and the names of any witnesses to the accident leading to the injury.  Once the lawyers exchange this type of information, they can better evaluate the strength and weaknesses of their position regarding the case.

Here in Buffalo, most lawsuits involving brain injuries arise from blows to the head or sudden acceleration/deceleration leading to brain damage.  Occasionally, however, an individual may suffer an anoxic brain injury. 

An anoxic brain injury occurs when the brain is deprived of oxygen for a significant time. This occurs in incidences of, for example, drowning, choking, or strangulation. This lack of oxygen over an extended period of time results in brain cells dying.

Anoxic brain injury may occur even if an individual has not lost consciousness, and its effects may be permanent.  While this type of injury may not initially seem as serious as a blow to the head leading to a fracture, concussion or even a coma, it still may have lifelong consequences for the individual who suffered the injury. 

Although this type of injury may be more difficult to prove than other types of head injuries, an individual who has suffered an anoxic brain injury as a result of another’s negligence is entitled to seek compensation through a personal injury lawsuit.  If you or someone you know has suffered such an injury, you should consider consulting with an experienced personal injury attorney.

Hockey is a big sport in Buffalo, and many of our children are involved in this activity.  Parents should warn their children, however, to take all necessary steps to avoid injury when playing.  This is especially important because if a child is seriously injured while playing a sport or in gym, it is often difficult to obtain compensation for the injury.

The recent case of Bramswig v. Pleasantville Middle School offers a good example of this fact.  In that case, twelve year old Sean Bramswig was playing floor hockey in gym when he was accidently struck in the mouth by a high stick.  He required oral surgery to stabilize his front teeth and required stitches on his lip.

In his personal injury claim, Sean’s lawyers asserted that he was injured due to inadequate instruction and supervision and failure by the school to provide proper safety equipment.  Many of their claims, such as failure to provide mouth guards, were dismissed by the lower court before trial based on prior legal precedent.

The final claim by the plaintiff, that the defendant did not provide adequate instruction regarding high sticking by failing to distinguish between high sticking above the knee versus above the waist, was dismissed on appeal by the Appellate Division for the Second Department.  Since Sean was struck by a stick raised above the waist in violation of the supervisor’s directions, the Appellate Division reasoned that it did not matter whether the children were provided with any direction distinguishing between the knees and the waist as the appropriate level to keep the stick under.

Most people in Buffalo are old enough to remember Love Canal, where hazardous waste buried in the ground leaked into the environment, causing cancer, birth defects and other injuries among the local population.  Love Canal is an example of a toxic tort.

Toxic tort lawsuits involve injuries caused by chemicals or materials that are linked to physical ailments such as cancer and other diseases.  They often involve the release of dangerous material into the environment or exposure to such materials at a worksite.  Substances such as asbestos, pesticides and hazardous waste are examples of the types of materials frequently addressed in this type of litigation.

Because of the difficulties that may arise in linking a specific injury to exposure to a dangerous substance, these cases are often difficult to prove on an individual level.  As a result, toxic tort cases usually, put not always, involve a large number of plaintiffs who have been exposed to the dangerous material and exhibit similar physical problems or incidents of birth defects beyond those seen among the general population.

Across the State from Buffalo, a heart wrenching case has ended with the Westchester County Health Care Corporation paying the estate of Michael Colombini $2.9 million as a result of this six year old’s death while being treated at Westchester Medical Center.

In July of 2001, Michael Colombini was undergoing a magnetic resonance imaging (MRI) test at Westchester Medical Center to check for a brain tumor.  While he lay in the machine, a nurse brought an oxygen tank made of ferrous metal into the room.  Because of their magnetic properties, objects made of ferrous metal are banned from areas where MRI are performed.  The ferrous metal oxygen tank was magnetically propelled into the MRI machine, striking the child in the head.  He died two days later.

Shortly after the incident, the hospital offered $1 million to settle the case, which was rejected by the estate.  The estate then filed a claim against the hospital based on wrongful death, pre-death conscious pain and suffering and punitive damages. 

Over the next nine years, the parties engaged in pre-trial discovery and the hospital attempted to have the case dismissed on multiple occasions.  The case was finally preparing to go to trial when the hospital nearly tripled its original offer and the case was settled.