Parents in Buffalo should be aware that the U.S. Consumer Product Safety Commission and Baby Matters LLC, of Berwyn, Pa., have issued a voluntary recall of an apparently dangerous product.  30,000 Nap Nanny® portable baby recliners sold between January 2009 and July 2010 have been recalled.  These items were sold in retail stores nationwide and online, including at www.napnanny.com. 

This recall follows a report of a four month old girl who died in a Nap Nanny® being used in a crib.  Preliminary reports indicate that she was found in her harness hanging over the side of the product, where she had become caught between the Nap Nanny® and the crib bumper.  Use of the product in a crib is against the product’s instructions.

CPSC and Baby Matters have received 22 reports of infants hanging or falling over the side of the product even though most of the infants were in the harness.  Infants can partially fall out or hang over the side of the Nap Nanny® even while the harness is in use.

More information can be found at www.cpsc.gov/cpscpub/prerel/prhtml10/10309.html.  The company’s recall hotline is (800) 638-2772.

If you have purchased this item, please discontinue using it immediately.  If you have lost a family member as a result of a dangerous product and wish to discuss your legal rights following a wrongful death, please feel free to call my office at 716-542-5444.  We would be happy to help you.

The crash of Continental Connection Flight 3407 in Clarence Center last year resulted in the wrongful death of 50 individuals and impacted the lives of families throughout the Buffalo area.  This week, during an appearance before the House Aviation subcommittee regarding the proposed merger between Continental and United Airlines, the CEO of Continental, Jeffery A. Smisek, instead found himself being questioned about Continental Airlines role in the crash.

In the sixteen months since the crash, it has emerged that the pilots of the plane, who were employees of Colgan Air, a smaller, regional airline hired by Continental to handle the flights, had not been fully trained in the use of the plane’s stall-recovery system.  When asked about this fact, Mr. Smisek replied that Continental was not aware of the training deficiency and “That’s the responsibility of the FAA.”

Lawmakers were not satisfied with this response, leading to additional questioning regarding Continental’s commitment to safety and the monitoring of subcarriers that it hires.  Continental’s CEO had never previously been questioned regarding his company’s conduct relating to the crash. 

The airline crash has already resulted in the introduction of new legislation that should result in additional training requirements for airline pilots.  It remains to be seen what impact, if any, CEO Smisek’s comments will have on pending lawsuits brought on behalf of the families of those who died in the crash.

As the summer swimming season in Buffalo arrives, a case involving the wrongful death of a teenager who drowned in a public swimming pool across the state has been sent down for a new trial.  This sad case arose from the drowning death of Jeremy Williams, an eighteen year old who suffered from epilepsy and drowned after suffering a grand mal seizure while swimming.  It will be retried because, although the City of New York was found to be 25% liable for Jeremy’s death, the original jury declined to award any damages for his pain and suffering during the eleven days before he died.

Pain and suffering awards can be much more difficult to address in wrongful death cases than in situations where the injured party survived and can attest to his or her degree of suffering.  Generally, New York State law requires that for pain and suffering damages to be awarded, it must be demonstrated that the deceased had some level of awareness of his or her condition prior to passing away.

 In Jeremy’s case, a doctor testified that hospital records indicated that during the 11 days he was hospitalized prior to his death, he could squeeze the nurse’s hand on request, mouth words, open his eyes in response to verbal and visual stimuli, and respond to touch and painful stimuli.  He would turn his head in the direction of a voice calling his name and had some degree of brain function for several days following the incident.  The doctor also testified that, in his opinion, Jeremy suffered pain in that time.

The appellate court found this unrefuted testimony sufficient to establish that pain and suffering should be awarded in this case and, as a result, the jury’s decision to award zero damages for pain and suffering was wrong.

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.

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.

When an individual in the City of Buffalo is so badly injured by the conduct or negligence of another person or entity that it results in death, that person’s family is allowed to sue the party responsible under New York State Law.

Wrongful deaths in New York State are addressed under Article 5, Part 4, of the Estate, Powers and Trust Law.  Under this statute, the lawful representative of the deceased individual has the right to sue for damages on behalf of the estate. 

Typically, the amount of damages sought revolves around expenses associated with the death, such as medical and funeral expenses, and loss of income based a projection of how much the deceased individual would likely have earned had he or she lived.  There is, however, no bar to seeking compensation for other damages suffered. 

As a result, wrongful death cases may also include issues such as compensation the pain and suffering of individual prior to death and the pursuit of punitive damages to punish the defendant if the death resulted from reckless or depraved behavior.  Under what theory or theories damages may be sought depends of the specific facts surrounding the individual’s death.