It is not unusual for Buffalo personal injury lawsuits to be decided through a bifurcated trial. Generally, a judge has authority under New York State law to “split up” the issues in a personal injury lawsuit or other court case if he or she finds it would be helpful to the jury.
In personal injury cases, this usually means that the “negligence” portion of the trial will be heard separately from the issues of injury and damages. While bifurcated trials used to be unusual, changes in the law now encourage splitting up of the issues if it will make the case easier for the jury to understand and help resolve the case. The logic behind this is that if the jury does not find the defendant negligent, no court time will have been spent hearing about the injuries. On the other hand, if the defendant is found negligent, the parties may be able to agree on the amount owed in damages without having to bring that issue to the jury – again, saving court time.
Not all cases, however, should be bifurcated. In many personal injury lawsuits, evidence regarding the injuries is relevant to determining issues related to negligence. For example, the seriousness of the injuries in a motor vehicle accident may give the jury some idea of the force of the impact. An experienced personal injury attorney will carefully consider the circumstances of a case when determining whether to seek bifurcation or argue against it.
The time frame during which Buffalo personal injury lawsuits involving minors and municipalities must be pursued can become very complicated. In most cases involving municipalities, the injured party must file a Notice of Claim with the appropriate government agency involved in the case within 90 days of injury. This time frame may be extended by up to an additional year if a reasonable excuse for the delay is provided to the court. A personal injury lawsuit initiated against a government agency without the appropriate filing of a Notice of Claim is likely to be dismissed.
When a minor is injured, this time frame may change. New York State law allows for a delay in the start of the running of the statute of limitations for many cases involving infants up to the time that infant reaches the age of majority. The Court of Appeals – the highest court in New York State – has held that this delay applies not just to the time in which to file a lawsuit, but also to the time in which to file a Notice of Claim.
This delay, however, is not absolute. The Court of Appeals also ruled that while an infant may bring a late Notice of Claim, there is no requirement that the court allow the infant to do so in all cases. Instead, several factors, including prejudice to the defense and the ability to investigate the facts surrounding the event, must be considered when determining whether the infant may still proceed with a personal injury lawsuit against the government agency.
Prior to filing a complaint indicating that a plaintiff is pursuing damages based on a medical malpractice claim, Buffalo personal injury attorneys are required to, in many cases, consult with a physician regarding the matter.
Section 3012-a of the Civil Practice Law and Rules requires that when filing a medical malpractice claim, the complaint submitted by the personal injury attorney must be accompanied by a certificate of merit executed by that attorney. This certificate of merit must state that the attorney has reviewed the case and consulted with at least one physician whom the attorney believes is knowledgeable about the medical issued involved. It must further state that, based on the attorney’s review and consultation with the physician, the personal injury attorney has concluded that there is a reasonable basis for commencing the lawsuit.
Alternately, if the attorney is unable to obtain such a consultation, the certificate must state that the attorney attempted to consult with at least three separate physicians, but they declined to agree to a consultation.
In some cases, medical malpractice may be inferred from the very nature of the injuries caused. This occurs when, for example, a surgeon leaves an object inside a patient. When this happens, the personal injury attorney is not required to consult with a physician, but must instead submit a certificate stating that he or she is relying upon the doctrine of “res ipsa loquitur” when proceeding with the case.
When a Buffalo personal injury lawsuit is brought to trial, New York State law has set forth several limitations on what information may be presented and the form of that presentation. The purpose of a personal injury trial is to allow both parties to have their side of the story heard by an impartial jury, and the law attempts to make that process fair for both sides.
As a result, it would be extremely unusual for a plaintiff to be allowed to discuss undisclosed injuries at a trial. Generally, the defense will request a full list of the plaintiff’s injuries in their Request for a Bill of Particulars, which is submitted to the defense before trial. It would be extremely unusual for the defense not to request this information, and they are entitled to receive it. They also have the right to review the plaintiff’s medical records.
While the plaintiff may update its Bill of Particulars to the defense as the case progresses, New York State law states that the final Bill of Particulars must be provided no later than 30 days before trial. Usually, any injuries not listed in the Bill of Particulars cannot be claimed at trial because the defense has not been given time to examine the medical records or otherwise prepare a defense to this new claim.
If you have suffered a personal injury, we would be happy to help you. Please call us at 716-542-5444.
Many Buffalo personal injury lawsuits hinge upon documentation such as records of maintenance or complaints regarding a dangerous condition. If such documents exist and are requested by the injured party, the defense is usually obligated to disclose them. If documentation has been destroyed, the issue may impact how the case proceeds.
When there is proof that evidence was deliberately destroyed and that evidence was relevant to the case, the court should direct the jury that they may infer that the evidence would have been detrimental to the party that destroyed it. In other words, the jury may assume that the evidence would have undermined that party’s case.
The deliberate mutilation or destruction of evidence, however, is not sufficient to serve as a basis for the inference, it must also be established that the evidence was relevant to the issues being tried in the personal injury lawsuit.
If you have suffered a personal injury, we would be happy to help you. Please feel free to call us at 716-542-5444.
Buffalo personal injury accidents involving commercial motor vehicles are, in many ways, similar to any other personal injury lawsuit involving a motor vehicle collision. In some cases, however, the failure of the operator to comply with special regulations involving commercial motor vehicles may be helpful to the plaintiff’s case.
The regulations involving commercial motor vehicles are extensive and complex. Generally, commercial motor vehicles involved in interstate commerce are regulated by the Federal Motor Carrier Safety Administration. This agency has set forth rules and regulations establishing mandatory standards regarding such diverse areas as vehicle maintenance, driver rest periods, and drug testing. Many, but not all, of these federal regulations have been adopted by New York State to regulate the operation of commercial motor vehicles in the state that do not engage in interstate travel.
In some cases, failure to comply with these mandatory regulations may be helpful to the plaintiff’s case. For example, a showing that the driver was not complying with the standards for driver rest periods may help to establish that the commercial motor vehicle driver did not have adequate rest before driving. While this factor alone may not establish the driver’s negligence, it would be helpful in establishing negligence when taken within the context of the driver’s other actions.
Victims of Buffalo personal injury accidents who suffer spinal injury may develop symptoms referred to as radiculopathy. Radiculopathy is not considered a medical condition, but rather a description of symptoms associated with spinal injury.
Radiculopathy is a type of neuropathy, which means that nerves affected by the spinal injury do not work as they normally would. Radiculopathy appears in the arms and legs. Symptoms associated with it include pain, muscle control difficulties, weakness, and tingling and numbness. A common form of radiculopathy is sciatica.
In personal injury cases, radiculopathy is usually results either from bulging or herniated discs applying pressure to the nerves or from other injury leading to pinching or inflammation of the nerves where they exit the spine. The pain or other symptoms felt in the limb are not actually the result of anything wrong with the limb itself. Rather, it is the result of damage to a nerve conducting sensation to that limb at the point where that nerve connects to the spinal column.
Radiculopathy also has several non-traumatic causes such as bone spurs from a degenerated disc or even from a disease of the nerves.
If you have been suffered a personal injury and have any questions, please feel free to call us at 716-542-5444.
When a Buffalo resident is rendered unable to work – or is forced to take a position with lower pay – as a result of injuries sustained in a personal injury accident, he or she may seek compensation for future lost wages as part of a personal injury lawsuit.
The determination of future lost wages is a complicated issue and may be highly contested at trial. An expert may need to be hired to determine the total amount of lost wages based on lifespan, inflation and other factors that would be beyond the knowledge of a typical juror to calculate. In addition to future lost wages, lost benefits may also need to be considered when making this calculation.
Projected lifespan is a very important factor in determining future lost wages. New York courts have long accepted statistical mortality tables prepared by insurance companies as admissible evidence of lifespan. The courts have also noted, however, that these tables are only slight evidence of the life expectancy of a particular person and must be considered in light of the victim’s pre-injury health and personal habits.
If you have been injured in a personal injury accident and rendered unable to work, we would be happy to answer your questions. Please feel free to call us at 716-542-5444.
Photographs of an accident scene or injuries are commonly used as evidence in Buffalo personal injury lawsuits. Generally, photographs are admissible as evidence if it can be established that they are authentic and accurately depict what they purport to show. Because photographic evidence can make such an impact on a jury, a dispute may arise when one party believes the photograph does not accurately depict what it shows or is otherwise being introduced for the sole purpose of swaying the jury.
Courts have broad discretion regarding what evidence may be used at trial. When determining whether a photograph will be admitted, one of the issues a court must weigh is whether its probative value is substantially outweighed by the possibility of it having an unfairly prejudicial effect or an otherwise misleading impact on the jury.
When a party opposes the introduction of a photograph at trial, each party may makes it argument to the judge regarding why the photograph should or should not be admitted. The court will then decide whether to admit it or not. In some cases, the judge may allow evidence to be admitted, but only under carefully monitored conditions or with additional instructions to the jury regarding the extent to which it may be considered.
If you have suffered a personal injury, we would be happy to help you. Please feel free to call us at 716-543-5444.
Buffalo personal injury lawsuits will occasionally involve surveillance of the plaintiff by an investigator working for the defense. This usually occurs when the defense seeks to prove that the plaintiff is overstating his or her injuries, is working while claiming to be incapacitated from work, or is otherwise being untruthful.
New York Civil Practice Law and Rules section 3101(i) was enacted to specifically control the disclosure of recordings and photographs related to litigation. It states: “In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in paragraph one of subdivision (a) of this section [which includes plaintiffs]. There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use. The provisions of this subdivision shall not apply to materials compiled for law enforcement purposes which are exempt from disclosure under section eighty-seven of the public officers law.”
Before the enactment of this section of law, the defense often withheld surveillance videotapes until after the plaintiff had been deposed. After it took effect, however, the Appellate Division Court for the Fourth Department – which includes Western New York – specifically noted that the statute did not contain any provision for withholding surveillance materials and found that they must be provided to the plaintiff in a personal injury lawsuit upon demand.
