New York Wrongful Death Lawyer Blog

A multi-district litigation (MDL) has been commenced in the U.S. District Court for the Southern District of Florida, against GlaxoSmithKline, maker of Poligrip, and Proctor & Gamble, maker of Fixodent denture adhesive.

This type of procedural vehicle is designed to combine the dozens of cases filed against the defendants from across the United State into one action in one Court.

Plaintiffs claim that they have been exposed to toxic levels of zinc, an ingredient of Poligrip and Fixodent, by the continual, daily use of the products. Plaintiffs say that there was no warning of the risks of the serious health conditions that can result from too much zinc accumulation in the body. Accumulation of zinc can lead to significant neurological problems.

The recommended daily allowance of zinc for men is 11 mg., for women, 8 mg. The maximum thought to be safely tolerated is 40 mg. per day. Some denture products have been found to contain up to 330 mg. per day.

The wife and daughter of Rodney Urbanek of Miami, Florida, have filed the first wrongful death lawsuit alleging paralysis and death caused by toxic Poligrip.

It's safe to say that there will be a battle of expert witnesses as the Urbanek's try to satisfy their burden of proof, including demonstrating the cause of death, and the defendants defend their products as benign. "The case reports mentioned in the media involved excessive use or misuse of denture adhesive on a chronic basis. When the product is used as directed, the amount of zinc that might be swallowed is not harmful," said the manufacturer.

As noted in a previous entry MIT & the Suicide of Elizabeth Shin (April, 2000), suicide is the second leading cause of death among students of university age. The number one cause of suicide for college student suicides is untreated depression.

The tragedy of loss may be compounded by the university's administration failure to effectively identify and help students who are or may be depressed and in need, and the parent's unknowing ignorance of their child's desperation.

Six Cornell students have taken their lives this academic year, three since mid-February. The three recent suicides jumped from bridges high over Fall Creek, which runs through a narrow gorge.

University officials have erected barricades on three bridges that Cornell owns, and have asked the City of Ithaca for permission to do the same on city owned structures over the gorges.

In addition, security guards have been stationed on all the bridges crossing over the gorges.

Reportedly, Cornell has consulted experts, both local and national to aid in the prevention of student suicides. All colleges should have a suicide prevention program. Unfortunately, many do not, or the one they have is inadequate.

The lack of a concerted program of depression identification and treatment and suicide prevention may expose colleges and universities to liability for wrongful death.

In Midtown apt. plunge bombshell, the New York Post reported the [evidently] wrongful death of a 24 year old man in the prime of his life.

Connor Donohue had just started a new job for a non-profit organization dedicated to helping the poor.

The reported cause of his death was a "loose and damaged" balcony railing. He fell at about 8:30 a.m. on Sunday, March 14.

It was reported that the management company for the building's owner had neglected to comply with mandated property inspections, including the high rise's terraces.

The City Department of Buildings had cited the building's manger
in 2008 for failing to perform a required 5 year periodic inspection of balconies.

After Mr. Donohue fell, the Department of Buildings fined the building management company.

Tenants of the complex said that they were not surprised by the failure of the balcony railing, as some had asked for repairs which were not accomplished. Others noted that the railings were not attached to the building itself, only to the concrete balcony floor.

On March 17, 2010, while enroute from Orlando, FL to Virginia, an Experimental Lancair IV-P airplane made an emergency landing on a Hilton Head, SC, beach striking and killing a pharmaceutical salesman who was jogging on the shore.

The plane, a single engine kit-built model had lost its propeller, and was descending, gliding quietly. The pilot's vision was impaired by engine oil on the plane's windshield.

The decedent was listening to his iPod while exercising, and likely was not facing in the direction of the landing plane. He was 38 years old, an employee of GlaxoSmithKline, lived near Atlanta, GA, and was the father of two children.

Hypothetically, would the decedent's distributees have a valid cause of action if an action for wrongful death was brought under our New York statute, although it would be more likely be venued in Georgia or South Carolina?

As mentioned in a previous entry, Necessary Elements of Pleading in New York Wrongful Death Action, New York Estates Practice and Trust Law, Section 5-4.1 allows a personal representative to bring an action on behalf of surviving distributees, to recover damages for "a wrongful act, neglect or default" which caused the decedent's death.

As reported, there are at least two surviving distributees, the man's children. As minors, they would suffer "pecuniary damages" by their father's death.

There is no question that the aircraft striking the man caused his death.

Was there "a wrongful act, neglect or default" that caused the plane to land on the beach? It is too soon to tell. The Federal Aviation Agency and the National Transportation Safety Board will launch investigations into the cause of the plane's engine failure.

It may be that everything was properly done to this kit-built plane to make it as airworthy as it could possibly be. If that becomes the case, hopefully the jogging dad had plenty of life insurance.

A US District Court Judge in Manhattan is soon to rule on 9/11 settlements for 2 of 3 remaining plaintiffs who did not opt to participate in the special no-fault fund as detailed in my entry World Trade Center: What Is A Life Worth? of January 11, 2010.

Thus far, 93 of 96 non-participating plaintiffs have settled their cases against airline companies, aviation security companies and others.

Strangely, money amounts are not disclosed, either for the 93 cases so far, nor for the two now pending settlement. (It is thought that the 93 cases have received a total of $500 million.)

The District Court Judge is going to cap legal fees at 15%. The attorneys say that they have earned their fees, and their clients the large settlements, given the unique factors of each case, the applicable laws, the years of work in representation and the risks of litigating the case.

A 44 year-old employee of the Finger Lakes Service Group fell from the roof of a building under construction near the old Genesee Hospital in Rochester, and died from his injuries shortly after being taken to Strong Memorial Hospital.

Other than that the death involved a fall of a worker on a construction site, there is no further information contained in the March 5, 2010, Democrat & Chronicle article by Gary McLendon.

A wrongful death lawsuit based on facts as presented here would seek monetary damages from the owner of the project, and the contractors involved, alleging causes of action under Labor Law §§240(1), 241(6), 200(1), and for common law negligence.

Labor Law § 240 (1), commonly known as the Scaffold Law, provides, in part, that: "All contractors and owners and their agents... in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed".

Labor Law § 241 (6) requires owners, contractors, and their agents to "provide reasonable and adequate protection and safety" for workers performing the inherently dangerous activities of construction, excavation and demolition work. Under this section of law, a plaintiff has the burden of identifying one or more provisions of the New York State Industrial Code, that were alleged to be violated.

Labor Law § 200 is a codification of the common-law duty imposed upon owners and general contractors to maintain a safe workplace.

In a death case such as this, one or more governmental entities, such as the NYS Department of Labor, or the Occupational Health and Safety Administration (OSHA), will conduct an investigation of the occurrence.

It may be determined that, under the circumstances, the accident was unavoidable. However, if it is shown that there were violations of safety codes, the applicable portions of the Labor Law may be used as basis for suit.

Although the report says that the unfortunate worker was not conscious when he was taken from the scene by ambulance, any plaintiff would also sue for conscious pain and suffering, including "pre-impact terror" for the fall the man took from the roof.

In Coogan v. D'Angelo, decided on October 2, 2009, the Appellate Division, Fourth Department, granted the defendant's summary judgment motion, ruling that a wrongful death suit was barred by New York State's "Recreational Use Statute".

A youth, driving an all terrain vehicle onto unfamiliar property owned by defendant D'Angelo, struck a metal cable strung across a path, fatally injuring him.

The appeals court affirmed the decision of the trial court that the landowner-defendant was immune from liability for negligence based on the recreational use statute, General Obligations Law §9103[1](a), which states, in part: an owner, lessee or occupant of premises..., owes no duty to keep the premises safe for entry or use by others for hunting, fishing, organized gleaning, canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleological activities, horseback riding, bicycle riding, hang gliding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for non-commercial purposes or training of dogs, or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes;

NY courts had previously ruled that GOL §9103 applied also to landowners that attempted to prevent members of the public from using their lands.

"Recreational Use Statute" is a term used to describe and promote the free use of private lands by granting landowners who allow access to the public, immunity from liability for personal injuries suffered by persons pursuing recreational activities on the owner's land.

While the appellate court made mention that ATV use is specified (as I have highlighted above) in the NY law, I wonder if this case was appealed because the plaintiff (father of the deceased youth) was upset by the mechanism of fatal injury, by "clothesline".

Landowners are not required to keep their premises safe or to warn visitors of hazardous conditions, however they may not deliberately endanger people who enter on their property.

While I understand the legal reasoning and public policy reaffirmed in this appeal, it is not easy to accept the loss of the youth; a warning of some kind may have prevented his death.