Getting a Recovery for Your Attorney’s Fee in Accident Cases and Insurance Lawsuits

Clients ask  whether they can separately recover their legal fees on top of the recovery for their injury or damage?  Unfortunately, the answer is “no.”

This question makes sense in that if the defendant did not injure the client, the client would not be put to the expense of hiring an attorney to get a recovery.  After all, the client is not profiting from the lawsuit.  He is merely being made “whole” after a loss.   

Under the so-called “American rule”, which is recognized in New York, each party of the lawsuit is responsible for his own legal costs.  In comparison, under the “English rule”, the winner can recover his legal costs against the losing side.

A disadvantage of the American rule is that the injured party is not made “whole”.  He must pay a portion of his recovery for his legal fees.  On the other hand, an advantage is that a losing plaintiff will not burdened with defendant’s legal costs if defendant wins.

 An exception to the rule is where either statute or a contract provides for the award of legal fees.  But, as a general rule legal fees cannot be recovered in personal injury, property damage, and breach of insurance cases.

Mark E. Seitelman, 4/19/12, www.seitelman.com.

Getting a Recovery from a Bankrupt Corporation; Good Luck!

If you have had the misfortune to get injured by a major corporation in bankruptcy, we have a bit of advice:  good luck!

We have a score of clients who have been injured by A & P, Food Emporium, Pathmark, St. Vincent’s Hospital, and Interstate Bakeries.  All of theses defendants are bankrupt even though they are still doing business (with the exception of St. Vincent’s).  Our clients injured by these corporations have little possibility of a recovery.

A case example is Hostess Brands.  We recently read that Hostess Brands, formerly known as Interstate Bakeries, has filed for bankruptcy protection for a second time on January 11, 2012.  Hostess makes many of America’s iconic breads and cakes, such as Wonder Bread, Twinkies, and Ding Dongs.

It seems that Hostess Brands is unable to compete.  It seeks further relief from its obligations.  Essentially, it wants to pay its debtors and retired employees less.  Otherwise, it threatens to liquidate the company.  

Its move to file for a second bankruptcy has delayed all settlements.  We had two clients injured by Interstate Bakeries trucks back in 2004, and we settled their cases almost six years ago.  We have yet to see a dime! 

Therefore, if a corporate defendant goes bankrupt, your recovery may either be delayed greatly or vanish. 

It is highly ironic that an injured person has less of a chance of getting a fair recovery from a bankrupt A & P than from a bankrupt Mom & Pop Grocery, Inc.   This is because A & P self-insures.  In other words, it has no insurance, and it can settle for pennies on the dollar.  In comparison, if Mom & Pop has an insurance policy, it is more likely that the injured client will get a fair recovery.

If you have been injured in an accident, please feel free to contact me for a free consultation at 800-581-1434 or write to contact@seitelman.com.  

Mark E. Seitelman, 4/6/12, www.seitelman.com.

Getting a Recovery for Dangerous Hip Replacements; Metal on Metal Hip Implants

Hip replacement carries a degree of risk even in the best of situations.  However, thousands of patient have had the risk of injury compounded by the use of dangerous “metal on metal” artificial hips.

I.  The Problem of the Metal on Metal Design

In a metal on metal artifical hip, both the “ball and socket” of the hip joint are metal.    In other words, the hip replacement femoral head (the ball) and acetabulum (the socket) are both metal.  In comparison, other hip designs mate polyethylene-line acetabular cups to ceramic or metal femoral heads.

The following drawing shows a hip replacement.  In the metal on metal hip, both the acetabular and the femoral head are metal. 

 

 

Metal on metal implants present the following dangers:

• Loosening.  The hardware becomes loose, and a revision surgery is necessary to remove the hardware and implant a new hip.  This can be due to the design of the cup, which is shallower, so that there is an “edge loading”.  In other words, the hip was not properly engineered to bear the weight and movement of a normal person.  The metal on metal hip does not last longer than the prior hip designs, and it may have a short life.  This is ironic since the manufacturers claimed increased longevity and the need for fewer, future revision surgeries.  
• Illnesses from Metal Shards Released into the Body.    The wear and tear of the metal grinding against metal releases metal shards and metal ions (cobalt and chromium) into the body.  The may cause osteolysis (bone loss), metallosis (an accumulation of thick, gray fluid at the hip joint which can cause tissue death and bone degradation), and neurological problems (e.g., neadaches, persistent metallic taste in moth, memory loss, and cardiac issues). 

 II.  Signs of Trouble

Generally, the first sign of trouble is extreme pain at the hip.  A visit to the surgeon will be necessary. 

However, some patients may not experience pain as an early symptom.  Those patients should be monitored by both their orthopedist and internist.  Patients should have thier cobalt and chromium levels in their blood tested regularly. 

Of course, pain is a sign that the hip may be loosening or that the surrounding hip tissue is being attacked by metallosis.

III.  Metal on Metal Hips

Here are some of the metal on metal hips causing injury:

•        Zimmer Durom Acetabular Cup.  This hip was recalled in 2008 voluntarily by Zimmer when it found its instructions inadequate for use and surgical implantation.

 

•    DePuy ASR.  The primary issues in the DePuy ASR hip device are loosening and metallosis.  DePuy Orthopedics has a program to reimburse patients for expenses related to replacing the DePuy ASR, such as medical and lost income.  Essentially, patients accepting the offer will release their claims for pain and suffering and future medical and lost income losses.  Furthermore, DePuy will take-back the defective hardware after its removal, and this will prevent the patient’s attorney from getting the hardware inspected and evaluated by an expert.  We strongly urge that patients do not accept this offer before reviewing it with an attorney. 

 

• DePuy Pinnacle.   Although the Pinnacle system mostly has ceramic on metal mating, Pinnacle did make metal on metal hardware.  Cup loosening and metallosis are  a problem.

• Wright Conserve.  Wright Medical Technologies had a line of metal on metal implants.

If you or a family member has had a metal on metal hip implant, we recommend that you consult an attorney immediately.  We seriously urge that you talk to an attorney if you have had a DePuy hip and if DePuy has made the offer of paying for a new hip implant.  You should consult with an attorney before deciding on accepting DePuy’s offer.  Please feel free to contact me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 2/7/12, www.seitelman.com.

Getting a Recovery for Transvaginal Mesh Injuries

We are now handling transvaginal mesh cases.

Thousands of women have been injured due to the surgical insertion of a transvaginal mesh. 

A mesh is a plastic device inserted into the body to support a weak wall.  In transvaginal mesh cases, a surgical mesh is inserted in the vagina to support a weakened area.  

Prior to the development of transvaginal mesh, surgical mesh had been used with success in hernia surgery.

I.  The Use of Transvaginal Mesh

In essence, mesh is used to hold-up and support organs in the pelvic region which have moved or sunk due to child-bearing and aging.

Transvaginal mesh is supposed to help the following problems:

1. Pelvic Organ Prolapse (“POP”).  Where the vaginal wall becomes weak, either the bladder or  urethra may sink into the vagina.  As a result a woman may not be able to empty her bladder completely, she may leak urine, and she may suffer from increased bladder infections.  (The bladder condition is called cystecele, and the urethra condition is known as urethrocele.)  There is another condition, rectocele where the lower intestine bulges into the vagina.
2. Stress Urinary incontinence (“SUI”).  The hallmark of stress urinary incontinence is leakage of urine while coughing, laughing, or sneezing.  This condition may exist because of pelvic organ prolapse.  SUI should not be confused with other urinary conditions, such as urge incontinence, overactive bladder, and overflow incontinence.

II.  The Danger of Transvaginal Mesh

The main problem is that the mesh may fail to integrate with the vagina.  This  “erosion” can result in serious inflammation which breaks-down the surrounding tissue.

The use of mesh is unsafe for a number of reasons.  First, a woman’s pelvic area has too much movement for the safe integration of the mesh.  In comparison, mesh has been used with success in other parts of the body where there is not as much movement and twisting.  Also, the vagina wall is very sensitive and does not adapt to receiving the mesh.  

“Erosion” of the mesh will cause:

1. tremendous pain and discomfort;
2. scarring, including the movement of the mesh outside the vagina;
3. severe infections;
4. damage to the other organs, such as the bladder and intestine; and 
5. an inability to engage in sexual intercourse.

The only treatment is surgery to remove the mesh.  But surgery may be unsuccessful because part or all of the mesh has integrated with the surrounding tissue.  Therefore, surgical removal can cause further damage.

Furthermore, it appears that the mesh does not work.  The FDA has stated that recurrence of POP and SUI is a complication of the surgery. 

On July 13, 2011, the FDA issued an alert stating that complications are not rare from the use of transvaginal mesh.

III.  The Manufacturers

These are the biggest manufacturers:

•  C.R. Bard;
• Ethicon (a subsidiary of Johnson & Johnson);
• American Medical Systems; and
• Boston Scientific. 

III.  What You Need to Do

You should schedule an immediate consultation with an attorney so that work can begin.  There is a great deal of medical work-up that must be done before a suit is filed. 

The major manufacturers are having cases consolidated for joint discovery.  For example, a judge in the New Jersey Superior Court is controlling the discovery of cases involving Ethicon mesh.  Therefore, there will be a coordinated and orderly scheduling of discovery and trial.

Please feel free to contact me for a free consultation at either 800-581-1434 or contact@seitelman.com.  

Mark E. Seitelman, 1/17/12, www.seitelman.com.

We Are Handling Medical Devices and Dangerous Drugs

Our practice is expanding to include defective medical devices and appliances and dangerous pharmaceutical drugs. 

    

Initially, we are expanding into the following areas:

• DePuy Hip Replacement; and
• Transvaginal Mesh Devices.

We are exploring expansion into further areas such as the Zimmer hip implants and Actos (a diabetes drug linked to bladder cancer).

Often, these defective product cases are handled as so-called mass torts.   In a mass tort litigation, a single judge may coordinate discovery in all cases in the USA although the client maintains his individual lawsuit where he resides.  

As with all injury cases, you should consult with an attorney immediately if you suspect that you have been injured.  Please call us for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 1/10/12, www.seitelman.com.

We Are Handling DePuy Hip Implant Cases

We are handling DePuy hip implant cases.

Due to its defective design, patients have had to have their artificial  DePuy hip prosthesis removed and a new one implanted. 

The DePuy ASR hip system was designed to give the greatest mobility of the hip joint.  However, there is insufficient coverage of the acetabular cup to distribute fully the forces of the ball (femoral head) against the cup without concentrating those forces called edge loading.  

As a result of this defective design, patients have experienced metal on metal wear and tear of the metal ball rubbing against the metal cup.  As a result, metal shards from the hardware are released into the body.  

Patients have had the following injuries:

1. loosening of the hardware;
2. a need for removal of the prosthesis and implantation of another artificial hip; and 
3. the release into the body of metal ions (cobalt and chromium) resulting in disease to both the immediate area and the entire body.

One central defect of the implant is the use of metal against metal which causes wear and tear and allows shards of metal to enter the body.  The better design is for a metal ball and a plastic cup.

Many patients have had to have dangerous hip revision surgery.  This involves removal of the DePuy hardware and insertion of new hardware.  A revision surgery may be more extensive than the initial hip replacement, and some patients have required further surgeries beyond the revision. 

As a result of these problems, DePuy made a voluntary recall on August 24, 2010.     

Not all DePuy implants are defective.  DePuy Orthopaedics, Inc., is a major supplier of hip implants and has made other satisfactory types of artificial hips.  DePuy is a division of Johnson & Johnson.

The following DePuy artificial hips are involved:

1. ASR XL Acetabular System.  This has been distributed worldwide.
2. ASR Hip Resurfacing System.  This system has been licensed outside the United States.

You should consult an attorney immediately if

• You are experiencing pain and other illnesses connected to your DePuy hip implant; or
• You have been told by your orthopedist that your problems are caused by a defective DePuy hip; or
• You are either scheduled for hip revision or are contemplating the surgery; or
• You have had your DePuy device removed and have undergone a full hip revision.  

As with all cases we urge clients to contact an attorney immediately so that there is no issue as to the timeliness of commencing suit.

Please feel free to call me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 1/9/12, www.seitelman.com.

Mark E. Seitelman Is in Super Lawyers

    I am pleased to announce that I am in the 2010 edition of Super Lawyers and that I am featured in a profile in a special advertising supplement to The New York Times Magazine (Sunday, October 3rd). 

The same profile will appear in the free-standing Super Lawyers magazine which is being mailed to all the lawyers in Metro New York.  

     Only 5% of New Y0rk attorneys are elected into Super Lawyers.  They are nominated by fellow lawyers, and attorneys enter Super Lawyers based on their credentials, experience, and reputation for excellence and integrity.

I have been named a Super Lawyer in the following fields:

1. plaintiffs’ personal injury (general);
2. medical malpractice; and
3. insurance coverage.

I am honored to be selected again into the ranks of Super Lawyers.  This has been my 4th year.  I thank my clients and colleagues for allowing me to be of service to them.

Mark E. Seitelman, 10/1/10, www.seitelman.com.

See an Attorney Early; Do Not Let Time Deadlines Pass

Every once in a while a client comes to us when it is too late.  

I discussed the prudence of seeing an attorney early in a prior post.

Last week a client asked our help on the following case:

Mrs. Mary Moore sustained a substantial loss of  her personal property due to a flooded basement.  The flood was caused by construction next door.  The contractor struck a water main.

There appears to be no question that the contractor was negligent.  His insurance company paid other people damaged by the flood.

Mrs. Moore sustained about $1,000,000 in personal property damage, such as damaged artwork, antique furniture, collectibles, and a vast designer clothing collection which included many unworn garments with their tags.

First, Mrs. Moore sought recovery from her own homeowner’s insurer, Allstate.  About 2 years after the flood, Allstate paid its full limits of $350,000.  She then sought to collect $650,000 from the contractor’s insurance company, Old State Dominion Insurance Company.

Mrs. Moore engaged in much negotiation with Old State’s representative.  Documentation was exchanged, and there were inspections of the property.

According to Mrs. Moore Old State’s adjustor told Mrs. Moore a number of times that a “claim must be filed no later than July 8th”, which was 3 years from the flood.  Mrs. Moore took it to mean that she must send-in all of her claims documentation.  There was also a conversation where Old State’s adjustor’s asked whether Mrs. Moore hired an attorney.  Mrs. Moore answered “no”.  “Good” was the adjustor’s response because “we can settle faster without an attorney.”

Mrs. Moore sent extensive and very organized paperwork supporting her claim to Old State before the 3 year deadline.  On July 16th, a week after  the 3 year anniversary, Mrs. Moore and the adjustor had an all day meeting to review the claim submission.  After this session another meeting was planned for August 2nd in which numbers would be discussed.

However, that August 2nd meeting was cancelled.  Old State sent a denial letter to Mrs. Moore on July 28th.  The claim was denied since suit was not filed within the 3 year statute of limitations.

We could not help Mrs. Moore.  She failed to file suit before the statute of limitations expired.  If suit had been filed, negotiations could have continued and may have led to an eventual settlement.

The law has a strong policy in upholding statutes of limitations.  The law favors  an end to claims and lawsuits.  In order to claim that the statute of limitations would not apply, we would have to show fraud by the insurance company.  Negotiation before or after the deadline will not be deemed a waiver of the statute of limitations.  Furthermore, there was no fraud in the adjustor’s statement that it was good that an attorney was not hired.  This was not tantamount to lulling the client into not hiring an attorney.   Furthermore, there was no offer made which could cause the client to think that the case was settled.  In sum, we could not show any of the extraordinary circumstances which would allow the case to proceed.

The lesson for clients is to consult with an attorney as soon as possible after a loss or an injury.  An injured client should be aware that there are strict time limits in which to pursue a claim or lawsuit.  Defendant will take every advantage of the statute of limitations which is a “slam dunk” defense.  

Mark E. Seitelman, 8/16/10, www.seitelman.com.

Getting a Recovery for Your Child’s Injuries in a Dangerous Park or Playground; A Follow-Up to the Brooklyn Bridge Park “Hot” Play Surfaces

The dangerous “play domes” in the new Brooklyn Bridge Park have been removed by New York City.   The park had been opened only a couple of months.

See our prior post about how these steel domes became burning hot in the sun.  One child suffered 2nd degree burns.

This is a flagrant example of dangerous playground equipment that was defectively designed.

If your child has been injured due to a fall or other accident on playground equipment, such as monkey bars, jungle gym, or slide, here are some issues for consideration:

• Did the equipment create a falling or tripping hazard?  A safety engineer will need to inspect the equipment.  As in the example of the “play domes”, the equipment may be inherently unsafe by its design.
• Was there adequate padding on the ground surface?  As a general rule, it is considered unsafe to leave exposed a concrete floor.  It is considered safer  to have rubber padding cushion a fall.  It has been the practice to use a rubber floor surface below swings and monkey bars.
• Is the equipment in sound condition?  For example, if a rung were either missing or loose on the sliding pond ladder, such would be negligent maintainance of the equipment.  Another example would be rubber padding which had been old and torn and should have been replaced if there were adequate, regular maintainance.

We have handled playground accident cases.  If your child has been injured in a playground accident, please feel free to call me for a free consultation  at 800-581-1434 or write to letters@seitelman.com. 

Mark E. Seitelman, 7/16/10, www.seitelman.com.  

Getting a Recovery for Your Injuries When Defendant Becomes Bankrupt

A defendant’s bankruptcy could end your personal injury case.  It all depends upon the facts.

As a general rule, a corporation’s bankruptcy is a bad thing if you have a bodily injury claim or lawsuit..  It can either delay or end the case.

Here is a recent bankruptcy problem:

Our client was injured in a Bally’s gym.  We settled the claim before filing suit.  The client initially refused the settlement, but he re-considered and accepted it two months later.

At the time that we mailed the release to Bally’s, it filed for bankruptcy.  The payment of the settlement was stayed along with all other matters affecting Bally’s.  The settlement would not be paid until the bankruptcy court determined the amount that would be paid.

Finally, after about 1.5 years later, the bankruptcy court ruled that our client will be paid only 1% of the settlement offer that he accepted! 

In this case, as in all bankruptcies, the court has the power to determine how much of a settlement will be actually paid.  This is because the court must dole-out a bankrupt corporation’s limited, remaining assets on a fair and equal basis to all creditors, including landlords and suppliers.  Generally, an injured client could expect to collect only pennies on the dollar.

Also, in this case the defendant was self-insured.  There was no insurance to pay the claim.  All settlement funds had to come out of Bally’s very shallow pocket.

Also, a bankruptcy will greatly delay the payment of a settlement.  In another case involving another national company, Continental Bakeries, we had two clients in two different cases.  We  settled almost 4 years ago.  We have yet to be paid.

Therefore, a defendant’s bankruptcy can have a terrible impact on your case.  The individual facts of your case will have to be reviewed with your attorney.

Mark E. Seitelman, 7/14/10, www.seitelman.com.