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February 18, 2009

Manhattan Jury Awards $2.3 Million in MTA Leg Amputation Case: Frivolous Lawsuit? I think not...

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Dustin dibble The New York Post just published a story about a young guy who lost his leg just below the calf when an MTA Train ran over him while he lay on the tracks.  The public is outraged by this story because the 25 year old victim, Dustin Dibble, was drunk and fell onto the tracks. 

The outrage should not be directed at Dibble, however, because the ultimate cause of his injury arose when, per Dibble's attorney Andrew Smiley, "a subway-train operator is obligated to stop a subway train before it strikes a large object on the tracks, even if it is not known that the object is actually an intoxicated person."

The train operator, Michael Moore, was deposed and testified that "I saw what I thought was garbage on the track" and continued into the station.  He hit the emergency brakes when he saw the "garbage" move.  Too little, too late because NYC Transit rules mandate that the train operator is to stop the train if there's a mass on the tracks.  Moore failed to follow procedure and, in so doing, because the legal cause of Dibble's catastrophic injury.

I am blown away by the outrage expressed in the comments section of the New York Post article and the spin that the Post puts on it beginning with their title "Drunk Rides Gravy Train."  The comments range from calling the jurors stupid, the lawyer slimy, the judge being on the take and the like.  What people who were not on the jury don't realize is that there are legal thresholds that plaintiff Dibble must surpass in order to find the MTA liable.  Trial is not a circus.  It is a forum where both sides, while adhering to the rules of evidence, present their case and a jury of 12 people then decides whose story to believe.  In this case they found for both the plaintiff AND the defendant in that their actual damages award was $3.5 million but they found Dibble to be 35% at fault for his own injuries.  Therefore the total award to him was reduced by that percentage to a net of $2.3.

What worries me about this case is that the general public will see it as another frivolous lawsuit.   However, if they delve into the facts of the lawsuit, they will see that it is not frivolous and that, in fact, the frivolous lawsuit theory is nothing more than a myth.  See previous postings on the Myth of the Frivolous Lawsuit.  In particular, people may liken this to the McDonald's Hot Coffee case which is, again, NOT a frivolous lawsuit but one which had great merit.

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As a traumatic injury trial lawyer in New York representing plaintiffs only, I must respectfully disagree. There are many frivolous lawsuits and even one would do us and our clients harm in the court of public opinion. It is simply not credible to deny there is any such thing. We can, though, discuss and analyze the cases one by one and we can discuss the policy implications and our own reasoned opinions on the issues. That's what I tried to do in my own blog post on this issue on 2/19/09 and it's what thoughtful leaders such as Walter Olson at Overlawyered.com do all the time.

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