New York Injury Talk Blog

The New York Times ran an article today that explored an unusual theory: overweight and obese people are involved in more workplace accidents than other workers. Citing a study of the records of 7,600 aluminum company employees, it found that 85 percent of those who sustained an injury were overweight or obese. This applies to one-time traumas (accidents) as well as repetitive stress injuries. The study shows that injuries and excess weight tend to occur in the same people, not that being overweight causes injuries or vice versa. However, the researchers did some interesting speculation as to why the two could be connected. One suggestion was that safety equipment fits larger people poorly. Another was that overweight people might not be in great health to begin with and could be easily tired, or could be taking medication that affects their judgment.

We're interested in anything that could drive down the rate of workplace injuries, which can be serious and life-threatening. However, we're also interested in the idea that this gives employers another incentive to discriminate against employees or potential employees on the basis of weight. Overweight people are not a specifically protected class under most civil rights legislation, but New York plaintiffs have successfully recovered for weight discrimination before, under the Americans With Disabilities Act. Despite the fact that 66 percent of Americans carry some amount of extra weight, overweight and obese people still face prejudice. They may also face discrimination in health care, as providers may assume that a weight problem translates into current or future health problems. We hope that this study doesn't add to the problem.

In May, Chrysler recalled more than 270,000 minivans in more than 20 states -- including New York -- because they contain defective air bags that might not deploy in an accident. The article from CNN says that 2005 model-year Town and Country and Dodge Caravan minivans are being recalled in states that salt their roads often, because the salt may corrode the sensors that tell the airbags when to open. And as you can imagine, when an air bag fails to open in an accident, the results can be catastrophic: serious head, neck and soft tissue injuries for drivers and passengers who thought they were doing everything they could to stay safe.

We applaud Chrysler for recalling the defective vans. Having handled many auto product defect lawsuits, we know that not all manufacturers are willing to spend money on a recall if they think they can get away with not recalling a defective product and just quietly settling the inevitable lawsuits. But we're interested in why this recall took place more than two years after the defective minivans arrived on the market. The articles on this recall don't say whether it was prompted by consumer complaints, but a search of the federal Department of Transportation's records does show nine complaints about the Caravan's airbag sensors and 21 for the Town and Country. The complaints and the time lag make us suspect that there were quite a few reports of air bags not opening during accidents in the winters since these vans started being sold. Our consumer safety systems favor manufacturers, not individual consumers, by presuming products are safe until reports of injuries and deaths start rolling in. Like most recalls, this one may be coming too late for a few unlucky families.

National Public Radio did a timely story recently on efforts to educate teens on drinking and driving. It comes on the heels of a report showing that young women -- who were once statistically safer drivers than their male counterparts -- are increasingly engaging in risky driving behavior like drinking and driving. And another story in the same newspaper earlier gave us a detailed view of the lives of several teenagers ten years after they were involved in a rollover accident that killed two and left two others with permanent brain damage.

While there's clearly no time of year when drinking and driving is a good idea, it's especially relevant right now, as summer approaches. More pedestrians, bicyclists and motorcyclists will be out on the streets, teens will be out of school, and many of us will be heading for parties and barbecues in the approaching warm evenings. The blood on that teen is false, but they're putting it on him because the risk he runs is, unfortunately, quite real. Car accidents, as the report reminded us, are the number-one killer of American teenagers. We've handled thousands of motor vehicle accident cases, here at Wingate, Russotti & Shapiro, so we know very well how serious the consequences can be -- medical, personal and financial. Especially for a teenager or young adult with an entire life ahead of him or her, it's just not worth it.

An article in May 16's Food and Dining section of the New York Times brought up an issue that interests us greatly: the reliability of the FDA's regulations. As anyone who bought contaminated lettuce, spinach, peanut butter or pet food last year knows, the FDA is not as good at its job as we might like. This quote from Elizabeth Armstrong of Indiana, the mother of two-year-old Ashley, whose kidneys failed after she ate contaminated spinach, is telling:

“You live in the United States of America and this isn’t supposed to happen. There is an assumption that everything is going to be O.K., that someone must have checked this out, but it is not the case.”

Armstrong is absolutely right on both counts. Most Americans assume a product wouldn't be sold if it were dangerous. We make that assumption because we have laws saying manufacturers have a legal duty to offer safe products, and because we have regulatory agencies that are supposed to ensure that products really are safe.

Unfortunately, neither the companies nor the government do their jobs right all the time. The main point of the article seems to be that the FDA is both underfunded and not aggressive enough. Even a representative of an agricultural trade group -- the companies the FDA regulates -- is quoted as saying the agency needs to issue mandatory rules! While we agree, we also know that the ultimate fault lies with manufacturers who negligently or (in the case of the pet food) perhaps even knowingly let unsafe products go to markets, often just to save a few bucks. By the time a regulatory agency catches it, someone may already have been seriously hurt. At that point, your only recourse is a products liability lawsuit. Litigation won't give Ashley Armstrong her healthy kidneys back, but at least it can provide the money her family needs to pay the steep medical bills for the treatments she now must have -- possibly for the rest of her life.

An article from this week about construction accidents in Alberta, Canada, has me wondering whether Canada is as worker-friendly as many Americans think. According to an article by the Canadian Press, a storage tank collapsed at a farm tank site for Canadian Natural Resources Ltd. in Alberta. Nobody was hurt, but it was the second tank collapse at the same work site in a month -- the first one killed two workers and injured four. The tank that collapsed was reported to have fewer than half of the normal number of cables holding it up. And the article mentions that a third tank is already suspected of being on the verge of collapse! The Alberta Federation of Labor, a workers' union, has rightly called for the Canadian federal government to shut down the contractor in charge of the site, but a spokesman for the government says that's premature.

We aren't Canadian attorneys here at Wingate, Russotti & Shapiro, but we know a construction site in any country can be dangerous, because by their nature, they're full of heavy equipment, exposed wiring and other potential hazards. That's why workers wear helmets and often work under safety laws that regulate the work site's conditions. Unfortunately, as the article shows, accidents often happen anyway. Sometimes, as with one of our past construction accident clients, they happen to innocent people who just happen to be passing by. In New York, we're fortunate to have a law that allows injured workers to sue negligent companies who are responsible for their injuries while also collecting workers' compensation payments. I'm sure this is partly responsible for the excellent results we've achieved for our New York construction injury clients. Unfortunately, until Alberta -- and other provinces and states -- adopts stringent liability standards similar to New York's, contractors will probably keep putting the bottom line over worker safety.

HBO ran an episode of “Real Sports” recently about the tragic frequency of traumatic brain injuries among NFL athletes. This comes on the heels of a study on brain injuries among amateur boxers, and an announcement from State Sen. Kemp Hannon of Long Island that Albany is authorizing additional funds for the prevention and study of concussions acquired in youth sports.

We applaud Sen. Hannon and the others for raising awareness of athletic brain injuries, which are a significant but silent minority of the 1.4 million traumatic brain injuries Americans acquire every year. According to the Brain Injury Resource Center, about 300,000 of those annual brain injuries are sports-related. Fortunately, most of those are concussions, the mildest type of brain injury. But even mild head injuries shouldn’t be dismissed, because neurological experts say sending an injured player back into the game too soon can expose him or her to serious risk of reinjuring the area, which can happen with even a minor blow, and leaving the field with much more serious brain damage. The problem is compounded by the secret irony of brain injury: even the victims don’t always notice anything wrong at first. For student athletes who are already under pressure to perform and often ordered not to "whine," this can add up to tragedy when they’re sent back onto the field too soon.

Thanks to our work with traumatic brain injury clients, we know head injuries cause a host of very serious symptoms, including mental impairment, problems with speech and memory, problems with movement, seizures, even personality changes. This is very expensive to treat -- and to live with -- which is why we’re proud of having won millions for clients with serious head injuries caused by someone else's negligence. But it's nice to see that our cultural leaders are taking the issue of sports-related brain trauma seriously.

This article about a truck accident that took place upstate, along the New York State Thruway, is a good illustration of why drivers need to be extremely aware of the large trucks around them. According to the Lower Hudson Online:

Jackson Julien, the driver of a tractor-trailer, said he was in the northbound middle lane about a mile north of Exit 15A when the driver of a sport utility vehicle attempted to move left from the right lane.
Julien said he tried to move into the left lane to compensate, but hit another car with his trailer. The truck jackknifed and crashed into the guardrail, taking the SUV with it, and burst into flames, sending plumes of black smoke high into the sky.
"The lady said she didn't see me," he said, referring to the SUV's driver.

Fortunately, everyone involved suffered only minor injuries. But this accident demonstrates that it doesn’t take a high-speed collision to cause a serious, life-threatening accident when there’s a large truck involved. This accident was just a sideswipe (well, two sideswipes), but the size of the truck gave it so much force that it carried the SUV with it into the guardrail, making it a potentially much more serious accident than it would have been if it had taken place between two vehicles of equal size. The SUV driver appears to have been partly or totally at fault, which means she wouldn’t have much of a truck accident claim against Julien, the truck driver -- in fact, he might have a claim against her, though it doesn’t look like he’s seriously injured. (We’d be interested to know how the third driver, who Julien sideswiped while trying to dodge the SUV, fared.) But this accident does underscore the need to be very, very careful around large trucks, not all of which are driven by people who are as alert and conscientious as Julien. Regardless of who is at fault in an accident, the bigger vehicle always “wins.”

You may not have noticed, but last week, we narrowly avoided a serious blow to consumers’ safety and rights. The Consumer Product Safety Commission, the federal agency that regulates product safety and enforces recalls of unsafe products, has been operating with an acting chairwoman for almost a year. The Bush Administration’s response? Nominating a manufacturing industry lobbyist as the new chair! Congressional Democrats squelched that idea after they found out that the nominee, Michael Baroody, was due for a $150,000 severance package from the National Association of Manufacturers.

Putting a manufacturers’ lobbyist in charge of consumer protection is nearly a textbook example of having the fox guard the henhouse. Even ignoring the obvious conflict of interests created by a six-figure payoff from the manufacturers Baroody would have regulated, his past track record raises serious doubts about whether he would have kept consumers’ best interests in mind. He’s lobbied for softer regulations -- and they’re already quite favorable to industry -- for 17 years.

The CPSC’s Web page says unsafe products cost our economy $700 billion a year. More importantly, they kill and injure thousands of Americans each year; the commission’s study on toy injuries alone shows 202,300 injuries and 20 deaths caused by unsafe toys in 2005. The report doesn’t say whether the toys were properly manufactured and labeled, but we know that 100 percent of those children’s injuries and deaths were preventable. In our own products liability practice, we’ve seen one client who was permanently brain damaged by a defective product; another client, who was only 21, lost the sight in one eye.