Deliris Diaz’s infant son suffered burns from Little Tummys® laxative

 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. More…

Anyone bringing a personal injury lawsuit must be aware that any information posted on social networking sites like Facebook, MySpace and LinkedIn could be disclosed in the lawsuit. Defendants to personal injury lawsuits are increasingly asking plaintiffs for access to this information as part of the lawsuit. The law regarding the discoverability of this information is still catching up and is not well-defined, particularly in New York State. However, the few courts that have addressed the issue have either permitted that access or have indicated that access would be permitted based on a proper showing. More…

Settlements

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. More…

Appeals

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 trial

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. More…