A Rochester woman wrongfully charged with child abuse has won a significant victory in New York State Supreme Court. The court ruled unanimously that Deliris Diaz’s lawsuit against the Little Tummys-brand laxative manufacturer should not have been dismissed.

Deliris Diaz had sued on behalf of herself and her infant son, Jose Marquiz-Diaz, who suffered severe burns to his buttocks and genital region after ingesting Little Tummys in December 2007. Jose then had a loose bowel movement in his sleep that remained in his diaper until he woke up the next morning. After discovering the burns, Ms. Diaz took Jose to the hospital, where doctors mistakenly suspected that the burns were caused by scalding the child with hot water. Deliris Diaz was arrested and charged with child abuse.

As a result, Ms. Diaz was separated from Jose and another infant until the court dropped all charges against her following a doctor’s statement that the laxative caused the burns, not any actions of Jose’s mother. Laxatives containing senna had been reported to cause severe burns when mixed with stool and held against a child’s skin by a diaper. Yet the Little Tummys laxative Ms. Diaz purchased contained no warnings or other senna information on its packaging.

Supreme Court Justice Matthew Rosenbaum dismissed the Diaz case against Little Remedies Co. Inc. in March 2010, ruling that all claims were pre-empted under the Federal Food, Drug and Cosmetic Act. However, in its decision, the New York State Appellate Division, Fourth Department, ruled that the case should not have been dismissed on federal pre-emption grounds. The court held that the portion of the federal statute that applied to over-the-counter drugs specifically did not pre-empt state product liability claims, such as the claim made in this case of failure to adequately warn.

In addition, the court held that Ms. Diaz can recover for monetary losses related to damage to her reputation caused by the erroneous child abuse accusations, which resulted in her name being listed on the New York State Child Abuse Registry. Jose, the court ruled, can recover for the pain and suffering and emotional distress caused by the burns and by being separated from his mother.

“We are very gratified by the Appellate Division’s decision, which we believe is the right one under the law,” said attorney Stephen Schwarz, Faraci Lange LLP’s managing partner, who represents the family. “Ms. Diaz brought this claim not only to seek justice for her family, but more importantly, to raise awareness about the risks of senna-containing laxatives. This decision allows us to proceed with the case and to continue raising public consciousness about the danger of these products when given to children in diapers.”

Therefore, a plaintiff ought to think twice before posting anything on his or her Facebook or MySpace pages that could in any way be misconstrued or used against them in the lawsuit. In fact, a plaintiff should assume that anything that he or she posts, including comments, photos, or videos, could eventually end up being viewed by the defendant, and more importantly, by a jury deciding his or her case.

A good example of how courts have begun to treat the discoverability of this information in personal injury lawsuits is Romano v. Steelcase, 907 N.Y.S.2d 650 (Sup. Ct. Suffolk Co. Sept. 21, 2010). In Romano, plaintiff claimed that she sustained permanent injuries that prevented her from engaging in certain activities and otherwise limited her enjoyment of life. Defendant claimed that the public portions of the plaintiff’s MySpace and Facebook pages allegedly showed that she was leading an active lifestyle, including taking out of state trips, which was contrary to her claims in the lawsuit. Defendant sought access to plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information. The court granted defendant access on the grounds that there was a reasonable likelihood that the private portions of plaintiff’s pages might contain further relevant evidence, including information about her activities and her enjoyment of life. The court found that plaintiff’s right to privacy was outweighed by the defendant’s need for the information. The court was persuaded by the fact that, although both MySpace and Facebook permitted plaintiff to select certain privacy settings, neither website guaranteed complete privacy. Therefore, the court reasoned, plaintiff had no legitimate reasonable expectation of privacy in what she posted.

Settlement can happen any time from before the case is started to after the verdict and before an appeal is heard. Frequently settlements occur just before trial and sometimes just before the jury is about to announce its verdict. Whether or not a personal injury case will settle at an early time is dependent upon numerous factors including the type of case, the number of defendants and the strength of the defenses raised. Auto accident cases have a higher rate of pre-litigation settlement than do other types of personal injury cases, although that rate has dropped in recent years since many insurance companies have hired salaried lawyers to represent insured auto accident defendants rather than paying outside firms by the hour to do so. Medical malpractice claims have the lowest settlement rate due to their complexity and the high rate of success the insurers have in defending them at trial. Some statistics suggest that well over 90% of all medical malpractice cases tried result in defense verdicts. However, many of the strongest cases are not tried but settled, so this does not mean that only 10% of medical malpractice victims are successful.

Settlements are usually advantageous because they provide a definite outcome and avoid the risk of an unfavorable jury verdict. However, experience has shown that firms that are prepared to try a case to conclusion have a better record of settlement for higher amounts than firms that have a history of settling all cases. This only makes sense when considered from the perspective of insurance companies. If the insurance company knows that the attorney has rarely tried a case then it also knows that as the deadline of trial approaches he is likely to try and convince his client to accept less to settle. Firms like Faraci Lange which have seasoned trial lawyers with years of experience and the respect of their peers and insurance companies alike will frequently be offered much higher amounts to settle than will firms without this experience and reputation. That is why choosing the right personal injury attorney is very important to the outcome of your case.

The losing side has the right to appeal an adverse verdict to the Appellate Division. Appeals can be based upon a particular ruling that went against the losing party during the case, or upon the evidence as a whole if the verdict was against the weight of that evidence. An appeal can also be based upon the amount awarded being too high or too low. Appellate courts try not to reverse jury verdicts, so to have a jury verdict reversed requires a strong showing that something went wrong at the trial. If the plaintiff succeeds in convincing the jury and receives a verdict in a personal injury case and the defendant does take an appeal, one saving grace is that the defendant must pay statutory interest dating back to the date of the judgment if the appeal is unsuccessful. Because the statutory interest rate is 9% straight interest (not compounded) this can provide a deterrent to frivolous appeals by the losing defendant. The law, however, does not permit the plaintiff to receive interest on the amount awarded back to the date of the injury. Thus, the defendant does not have the same incentive to avoid delay during discovery as it has to avoid unnecessary delay during the appeal.

The first phase of the trial is when the jury is selected. This is referred to as jury selection or sometimes as voir dire. In civil cases in New York this is typically a phase of trial that is conducted by the lawyers under the supervision of a clerk without the trial judge present. During this phase each side’s attorney is permitted to question prospective jurors on their knowledge of the case, parties and witnesses, and also on areas of potential bias for or against a party or a type of lawsuit. Civil juries consist of six jurors as opposed to twelve for a criminal jury. Depending on the length of the trial there will also be one or more alternate jurors chosen in case one of the six primary jurors becomes ill or is otherwise unable to complete the trial. During jury selection each side gets to excuse jurors whose answers to the questions posed provide cause to dismiss them as not likely to be impartial. Each side is also permitted to dismiss any three other potential jurors it chooses without stating any reason why. The dismissal of a juror in this fashion is referred to as a peremptory challenge, while dismissing a juror for cause is referred to as a challenge for cause.

Once the jury is selected, the trial begins in earnest and from that point forward the trial judge is in charge. After the judge provides some initial instructions to the jury, the opening statements are given by each side, with the plaintiff’s attorney always going first. The opening statement is a preview of what the proof is going to be in the case, to set a context for the jury for what they are about to hear. The judge instructs the jury that the opening statements are not evidence, meaning that the jury cannot decide the case based on facts stated by the attorneys, but rather, can only decide the case based upon facts stated by witnesses or found in documents and other physical evidence admitted into evidence.

After the opening statements, the plaintiff presents all of his or her proof. Once this is done, the plaintiff rests his or her case, and it is the defendant’s turn to present proof. Plaintiffs have the burden of proof on all matters alleged in their complaint. This means that they have to prove that each allegation they have made is more likely to be true, than not. This is a different burden of proof than the beyond a reasonable doubt standard in a criminal case. The civil standard, called proof by a preponderance of the evidence, is meant to require the plaintiff’s proof of a given point to outweigh, even slightly, the proof presented opposing that point. Where a defendant has alleged an affirmative defense in his answer, then he must bear the same burden of proof on that defense.

When proof is completed then both sides are permitted to make a closing statement or summation, summarizing the evidence presented and what they think the outcome should be on each issue. In this instance, the defendant goes first and the plaintiff goes last. After the closing statements are made to the jury, the judge then instructs the jury as to the rules of law they must apply to the facts they find. The jury is the ultimate finder of the facts, but the jury must accept the rules of law that that the judge provides to them and apply those rules to the facts that they find to come to an outcome.