BROOKLYN, N.Y. EDITION
TheLegalAdvocate.com Complimentary Copy A whole new perspective on legal news.
January 2018
PERSONAL INJURY: Playground hazards may put your little ones in jeopardy
WORKERS’ COMP: Learn the must-know basics of workers’ compensation eligibility
MASS TORT: $26 million awarded to Xarelto victim
When seniors are treated as
Second-class Citizens MESOTHELIOMA:
IMMIGRATION:
SERVICES:
1st responders may be at a higher risk for this disease
DACA uncertainty leaves some ‘dreamers’ with nightmares
Pre-settlement funding could be your lifeline during lawsuit
2 | January 2018
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The Legal Advocate | 3
A whole new perspective on legal news.
January 2018 Issue 2 PUBLISHER Joseph P. Belsito Joe@Belsito.com
MARKETING DIRECTOR Gregory W. Buff Greg@Belsito.com
DESIGN Gregory W. Buff Mimi Estes
LEGAL DISCLAIMER The articles published in this publication, The Legal Advocate, are not legal advice, but the reporting of news concerning general information on general legal issues commonly encountered by the public. The Legal Advocate is not a law firm and the content of the articles contained herein are not a substitute for an attorney or law firm. As such, The Legal Advocate cannot provide any kind of advice, explanation, opinion, or recommenda tion to any reader about possible legal rights, remedies, defenses, options, selection of forms or strategies the reader may have. The law is different from jurisdiction to jurisdiction, and may be subject to interpretation by dif ferent courts. Therefore, if you need legal advice for your specific problem, you should consult a licensed attorney in your area. The Legal Advocate does not endorse any particular attorney or legal service who advertises and/or is quoted in The Legal Advocate and cannot guarantee the quality, or reliability of any attorney or legal service who advertises in The Legal Advocate. Nor, does The Le gal Advocate guarantee the reliability or accuracy of any of the statements or opinions provided by any attorney or legal service who is quoted or referenced in The Legal Advocate. The attorneys quoted in The Legal Advocate may or may not be licensed in your state.
CORPORATE INFORMATION ©Copyright 2018. The Legal Advocate® is published by Belsito Communications Inc., 1 Ardmore Street, New Windsor, NY 12553. All rights reserved. Reproduction or redistribution of any part of this publication in any way is prohibited without written permission from the publisher. The Legal Advocate is a free publication. For customer service regarding distribution please call 888-BELSITO (235-7486) or email us at info@thelegaladvocate.com.
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News
Entertainment
Civil Rights...........................................4 Mesothelioma......................................5 Workers’ Comp....................................6 Criminal Law........................................7 Family Law..........................................8 Immigration..........................................9 Employment...................................... 10 Medical Malpractice.......................... 11 DWI/DUI........................................... 12 Personal Injury.................................. 13 Mass Tort.......................................... 14 Business Law................................... 15 Real Estate....................................... 16 Social Security/Disability.................. 17 Class Action...................................... 18 Legal Services.................................. 20 Nursing Home................................... 21 Veterans Administration.................... 22 Elder Care........................................ 23 Bankruptcy........................................ 26 Tax Law............................................ 27 Education.......................................... 28
Trending News................................. 24 Crossword........................................ 29 This Month in History........................ 30 Legal Ease Cartoon.......................... 30 Oddball Law...................................... 31
Cover Story
When seniors are treated like second-class citizens
18
Letter from the Publisher We’re glad you picked up this month’s edition of The Legal Advocate. For those flipping through our pages for the first time, we hope you will enjoy the wide variety of subjects we’re reporting on that will most likely touch on a subject affecting you, a family member or a friend.
Joseph P. Belsito joe@belsito.com
Our cover story this month shines a spotlight on the unfathomable treatment some of our cherished elderly relying on Medicaid are receiving at nursing homes across the country. As a society, we must speak up for seniors who have no real voice and hold these institutions accountable for dangerously putting profits over care. In addition to articles on a wide range of legal topics, you will also find some interesting and entertaining articles, puzzles and cartoons each month to enjoy so we hope you will become a regular reader. To that end, I would love to hear your feedback on our magazine as well as suggestions for articles or ways we can improve.
4 | January 2018
T
hings just seemed to change in the office after you told management that you are expecting your first baby. Your superiors are aloof with you, have diminished your role in day-to-day operations and have given some of your top accounts to an employee with far less experience. You fear that you are being discriminated against because you are pregnant and now even worry about your job security. “Not all employers are as familiar with pregnancy protections as they should be,” said Jeremiah Frei-Pearson, an attorney with Advocates United. “But deciding to terminate an employee during her pregnancy is short-sighted and can be illegal.”
CIVIL RIGHTS
Pregnancy can’t be used as a basis for employment action against an employee and employers must offer reasonable accommodations so that they can continue their duties. Some of these protections can continue after pregnancy, such as making sure your same job exists after maternity leave. State and federal penalties can be levied on employers who fail to comply under civil rights laws prohibiting discrimination against race, religion or disability. In some cases, an employer may change an employee’s duties around due to pregnancy, telling her that she shouldn’t be working as hard in her “delicate condition.” While there might truly be some safety hazards that a pregnant employee may not want to be exposed to or physical duties that might be more difficult, it legally isn’t up to the employer to make these decisions on her behalf.
Can you get fired for being pregnant?
Delicate condition
Frei-Pearson says in some cases, the employee may not be interested in a long court fight or a settlement requiring her to leave a job she generally enjoys. Instead, an attorney can serve as an advocate to help mediate, educate and make sure her rights are protected. “Employers are supposed to tread lightly when working with pregnancy and other protected classes, and clearly document any actions to show that this status isn’t a factor,” Frei-Pearson said. “But case law has plenty of employers who didn’t think through everything well.” Jeremiah Frei-Pearson, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
“Not all employers are as familiar with pregnancy protections as they should be, but deciding to terminate an employee during her pregnancy is short-sighted and can be illegal.” Jeremiah Frei-Pearson, Esq. ATTORNEY
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The Legal Advocate | 5
Silent Dangers You have bravely served in the Fire Department for several years, selflessly risking your life to save others at all hours of the night without hesitation. It’s just what you and first responders across the country do. It’s who you are. However, lately you have slowed down a bit and have MESOTHELIOMA experienced fatigue, nausea, shortness of breath and chest pain. The doctor finds fluid on your lung. A visit to the doctor reveals that you have Mesothelioma, an aggressive form of cancer, caused by your work as a first responder.
FIRST RESPONDERS ARE AT HIGHER RISK FOR MESOTHELIOMA
“When the Twin Towers collapsed, massive clouds of toxic dust and debris covered Manhattan,” said Joe Belluck, an attorney with Advocates United. “The debris contained fireproof materials laced with asbestos fibers, resulting in a rash of cancer in first responders and emergency personnel.” The World Trade Center Health Registry estimates that 410,000 people were exposed to asbestos fibers during the rescue and recovery efforts that followed 9/11. Even months after the attack, emergency personnel, tasked with cleaning up the debris, were still being exposed to asbestos fibers at alarming rates.
One of the most common silent dangers affecting emergency personnel involves asbestos exposure, which can cause cancer. Firefighters, police officers, EMTs, and other first responders are consistently helping victims who are hurt by building damage. They also do boiler inspections. Some firefighting equipment like pumps, valves, hydrants and protective clothing may have also contained exposure.
“Victims of asbestos exposure, including emergency personnel and first responders, can apply for assistance through the James Zadroga 9/11 Health and Compensation Act of 2010,” Belluck added, “however, the current filing deadline is December 18, 2020.” It is important that people exposed on 9/11 and during the recovery effort contact a lawyer to help with their claim. Although 9/11 was an extraordinary circumstance, it should remind emergency personnel to remain vigilant and protect themselves against asbestos exposure. If a person is responding to an emergency, where a building has collapsed or is on fire, he or she should schedule a screening x-ray with their doctor and advise the doctor that they were potentially exposed to asbestos.
While asbestos containing materials are no longer used in most construction products and boilers, many older homes and buildings were built with asbestos-containing materials. Because there is no safe level of asbestos exposure, ingesting asbestos fibers puts emergency personnel at a higher risk for developing Mesothelioma. One of the most high-profile example of emergency personnel exposure to asbestos fibers involves the World Trade Center on 9/11. However, first responders and emergency service personnel throughout the country have a risk of developing the aggressive cancer in their daily efforts to run to danger as others run away.
“Victims of asbestos exposure, including emergency personnel and first responders, can apply for assistance through the James Zadroga 9/11 Health and Compensation Act of 2010” Joe Belluck, Esq. ATTORNEY
Any individual diagnosed with lung cancer or mesothelioma, should contact a Mesothelioma attorney immediately to navigate the legal process and receive compensation. Joe Belluck, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
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6 | January 2018
The Basics of
Workers’ Compensation Eligibility Workers’ compensation is designed to help people who have been injured, many times seriously, while engaged activities on the job. It covers medical benefits and some lost wages while recovering from the injury. If you are injured at work, you are entitled to workers’ compensation, regardless of who is at fault for the accident. As an employee, workers’ compensation protects you by providing for your medical expenses and lost wages. This benefit system was established to help injured workers receive the necessary care and compensation for their injuries so that they may return to work as soon as possible.
WORKERS’ COMP
The most common hazard that causes injuries and deaths in the workplace is chemicals, followed by motor vehicle accidents on. Unfortunately, many employers do not tell employees how far workers’ compensation coverage extends. These employees may not realize that they can even apply for benefits. If you have been injured while engaging in work activities, you may be eligible for benefits, regardless of where the injury occurred. “Assuming there is no question regarding whether you are considered an employee, you must meet two general criteria to be eligible for workers’ compensation benefits,” explains Vincent J. Rossillo, an attorney with Advocates United. “The accident or injury must have arisen out of your employment and it must have also occurred during the course of your work.” The “arising out of ” requirement means that your injury must have actually been caused by your employment. The “in the course of ” employment requirement refers to the time, place, and circumstances of the injury. There are situations where you are injured while engaging work activities, but your work did not necessarily cause your damage. For
example, you may have suffered a heart attack while at work, but your job didn’t really cause your heart condition that triggered the heart attack. Employees will generally meet the eligibility requirements easily if they are injured at their employer’s physical location. However, you may be eligible for workers’ compensation benefits even when you are not physically on your employer’s property. Traveling employees have extensive coverage when it comes to workers’ compensation. Those who do work outside of their employers’ physical location are often covered as well—as long as they are doing work on behalf of their employer at the time of the injury. Rossillo elaborates: “Many employees make the mistake of assuming that they cannot get workers’ compensation if they travel regularly for work or if they were off their employer’s grounds at the time of the injury. This simply isn’t the case.” Vincent Rossillo, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
“Many employees make the mistake of assuming that they cannot get workers’ compensation if they travel regularly for work or if they were off their employer’s grounds at the time of the injury. This simply isn’t the case.”
Vincent J. Rossillo, Esq. ATTORNEY
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The Legal Advocate | 7
Fled the scene of a car accident you caused? Now what?
ARRESTED?
Don’t Panic!
CRIMINAL
Do these three things instead
Being arrested can be, among other things, embarrassing and intimidating. This unfortunate situation can be compounded if you have never been arrested before. You likely won’t know what to expect during the harrowing process. Keeping your head and politely asserting your rights can help you get through an arrest more smoothly. staying calm and composed, you CRIMINAL By can potentially avoid legal complications and secure the best outcomes if a case moves forward against you. These important tips can help you make it through processing quicker and ensure that you don’t say or do anything that might compromise your case in the future.
You can provide basic information There is some information that you are required to provide. This includes anything that would go on a processing form: Your name, your date of birth, your address and your Social Security number. Refusing to cooperate can greatly extend the amount of time that you spend in jail immediately after your arrest. Without identifying information, you will be processed as a John or Jane Doe, which only slows the process.
Ask for a lawyer
You have a right to legal representation during questioning. Sometimes police will imply that things will go more smoothly for you if you just cooperate without an attorney present. But playing along will not lead to difDon’t answer any questions you don’t have to ferent or better treatment if you are suspected of a crime. Police officers may try to get you to talk, which may be an Under the Fifth Amendment, you have a right to remain effort to trick you into providing evidence against yourself silent. Use this right to protect yourself from any potential self-incrimination. “The questioning is supposed to end that can be used to get a conviction. If you are not required to answer questions, do not answer them. “Officers immediately once an attorney is requested,” said DeVoe. will often tell a detained person that this is his last chance “They’re the magic words.” to talk or give his side of the story,” said Daniel DeVoe, Daniel DeVoe, who was interviewed for this article, is an an attorney with Advocates United. “But if this person attorney at Advocates United. If you would like to contact is already arrested and sitting in an interrogation room, Advocates United to discuss your specific situation you can chances are he’s not getting out of there without being do so at 888-208-8105. charged with a crime. So talking usually doesn’t help, and more likely harms, his case.”
“...(if a) person is already arrested... chances are he’s not getting out of there without being charged with a crime. So talking usually doesn’t help, and more likely harms, his case.”
Daniel DeVoe, Esq. TRIAL ATTORNEY
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8 | January 2018
SECRET’S OUT Discovering Hidden Financial Accounts During Divorce Proceedings Your husband provided a comfortable living for two decades, but now that you are filing for divorce he claims he doesn’t have the assets to maintain the lifestyle you had when you were a happy couple. You think he is hiding some of his assets and income and that could exactly be what is happening. Sometimes when people see their marriage is going south, they look for ways to hide some of their money. If they don’t disclose all assets to the court they can be in legal trouble.
FAMILY LAW
According to Advocates United attorney Jennifer Safier, “During a marriage parties may have accounts in their own name, and all of their financial information can be kept separate if that’s what they choose.” Safier added: “But the problem occurs when a spouse hides their financial information during a divorce proceeding. Both parties legally must disclose their assets in a divorce proceeding, and if they choose not to do that, they can have legal
“Both parties legally must disclose their assets in a divorce proceeding, and if they choose not to do that, they can have legal problems if and when the deception is discovered.” Jennifer Safier, Esq. ATTORNEY
problems if and when the deception is discovered. Most attorneys for the other spouse, along with judges who handle court cases, don’t take kindly to this practice.” When a person suspects their spouse may be hiding money or being untruthful about their finances, they should search for financial records, bank statements etc. They can also hire a private investigator to look for suspicious activity by their soon to be ex-spouse. These days, there is usually a paper trail, or an electronic one, of some kind. “If a person suspects their spouse may be hiding assets during a divorce, talking to a knowledge-
able attorney is a must,’ said Safier. “A lawyer experienced in matrimonial law can protect their client’s rights, whether they be the plaintiff or defendant in a divorce proceeding. There are many ways both through the courts and privately to get information about assets a person may be hiding, but it can be difficult for a person to handle that on their own. An advocate within the legal system can make all the difference.” Jennifer Safier, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
Would you like more information? Visit us at TheLegalAdvocate.com The content of this page is covered by and subject to the Legal Disclaimer found on Page 3 of this edition.
The Legal Advocate | 9
DACA Uncertainty Leaving Many Dreamers With Nightmares
Y
ou have made a good life for yourself since arriving to the United States, the land of opportunity, as an immigrant.
You worked three jobs to put yourself through college, started a small family business, which has flourished, and have become a respected member of the community. Talk IMMIGRATION about living the American Dream. You hope your cousin, who came to this country as a child and was granted Deferred Action for Childhood Arrivals (DACA), can enjoy similar success in the U.S. These children and young adults, known as Dreamers, had to renew their applications in order to continue their DACA status. However, Attorney General Jeff Sessions announced that DACA was coming to an end and no more applications would be accepted. That means that unless something is done in Congress, the protections that these Dreamers have come to know will come to an end. “I have many clients who are in DACA status. They are great examples of the American Dream,” said Advocates United attorney Frank Massaro. “They are now looking at an uncertain future. The decision to end DACA has created fear and anxiety for these young Dreamers.” Normally, undocumented individuals who are not in the U.S. legally can be subject to deportation. They may have trouble finding jobs, enrolling in college, or taking out loans. But as Massaro explains, “Dreamers were given the opportunity to get employment authorization and social security numbers. They were finally given the chance to succeed in a country that they always thought of as
“...the Dreamers are caught in a difficult situation. They love this country and it is all they know. The end of DACA sends the wrong signal. It makes them feel unwanted when in truth most of the country understands that they are a great asset for this country.”
Frank Massaro, Esq. ATTORNEY
their home.” DACA let eligible children finally obtain some protection under the law. This protection will not be taken away unless action is taken. Since Deferred Action for Childhood Arrivals (DACA) came into effect, it has helped more than 800,000 young undocumented children and young adults, who wanted to stay in the United States. Many just wanted to go to college, go to work or even join the military. With social security numbers, they were finally able to pay taxes. Even among opponents of immi-
gration, there is very little public support for repealing DACA. An October 2017 poll showed that only 19 percent of Americans were in favor of deporting Dreamers, with more than 4 in 10 Republicans in favor of extending immigration protections to those brought to the U.S. at a young age. This gives Congress plenty of political cover to protect Dreamers, but early debt ceiling negotiations stalled when congressional Democrats tried to use DACA as a bargaining chip to avoid a government shutdown. “In any event,” says Massaro, “the Dreamers are caught in a difficult situation. They love this country and it is all they know. The end of DACA sends the wrong signal. It makes them feel unwanted when in truth most of the country understands that they are a great asset for this country. Most of the country, weather Democrats or Republicans want them to stay and to be granted some type of lawful status. Even if Congress is not able to reach a deal on DACA, this doesn’t mean tens of thousands of Dreamers will be immediately deported. But the end of DACA may make it much more difficult for Dreamers to pursue jobs, education, and dreams. For some Dreamers, it may make sense to proactively seek out guidance instead of reacting to circumstances as they present themselves. It would be a good idea to speak to a lawyer who handles immigration matters. Frank Massaro, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
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10 | January 2018
Harassment prevalent at many restaurants Studies show culture is conducive inappropriate behavior
EDUCATION
At first, you thought the manager at the restaurant you just started working at as a waitress was being friendly.
• Many workers are immigrants with limited English skills and a large number are undoc-
However, his off-color comments began making you feel more and more uncomfortable. Friendly has become flirtatious and the manager constantly puts his hands on your shoulders when giving you directions in the kitchen.
“...all too often female employees are seen as people who can be exploited and degraded while management either participates or looks the other way.”
EMPLOYMENT
According to studies, the restaurant and hospitality industry is infamous for a culture that allows sexual harassment of female employees. Sexual harassment is about power. A harasser will do whatever he thinks he can get away with. If female employees are perceived as powerless and sexual harassment seen as part of the job, they are going to suffer. Sexual harassment statistics in the restaurant industry are sobering. • The Equal Employment Opportunity Commission, the federal agency that enforces most federal employment discrimination laws, received 5,431 complaints of sexual harassment from women in 2015. • Of the 2,036 claims that listed an industry, 12.5 percent were filed by those in the hotel and food industry, more than any other industry, according to the National Women’s Law Center. • A 2014 survey by the Restaurant Opportunities Center United found that two-thirds of female restaurant workers reported sexual harassment by managers, 80 percent stated they were harassed by co-workers and 78 percent by customers. A third of female respondents reported unwanted touching was routine on the job. There are several reasons why sexual harassment is common in the industry:
umented. They won’t complain of harassment out of fear of being fired or deported. • Many female workers are desperate to keep their jobs so they’re easier to manipulate and they won’t report harassment. • Drinking alcohol on the job and after closing is common. Intoxicated employees may be less inhibited and more likely to sexually harass an employee. • Restaurants are traditionally run by men while much of the workforce is female. Male managers may feel entitled to abuse their power. Each workplace is unique and many restaurants are professionally run with managers who won’t put up with bad behavior. But all too often female employees are seen as people who can be exploited and degraded while management either participates or looks the other way. Insight for this article was provided by Advocates United. If you feel you’ve been affected by a situation such as this one you may contact Advocates United at 888-208-8105 to discuss it further.
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The Legal Advocate | 11
MEDICAL MALPRACTICE
Nursing negligence leads to preventable tragedy Your insulin-dependent husband was rushed to the emergency room at midnight due to a foot infection and he was quickly admitted to the respected hospital’s medical surgical unit.
Advocates United. “There are numerous ways that a nurse can harm a patient, from administering the wrong medication to doing nothing when medical action is required and needed.”
Expecting the nurses on staff to constantly monitor and assess your husband’s condition, you left him in their care while you went back home to care for and console your three young children. However, the following day when you arrived at the hospital, your husband seemed anxious, confused and agitated.
In nursing malpractice cases, there is often a question as to who is liable for the nurse’s negligence, the doctor or the hospital, and an experienced attorney can help determine who is responsible. An attorney can also evaluate the case to conclude whether it should consist of both economic and non-economic compen-
“There are numerous ways that a nurse can harm a patient, from administering the wrong medication to doing nothing when medical action is required and needed.” Kenneth Fromson, Esq. ATTORNEY
His mental state was clearly altered, leaving you upset and concerned. Even though you told the nurses that he was getting too much insulin, they did not seem to think the signs were a cause for alarm. You were worried, but trusted the medical professionals to do their jobs.
sation. Medical malpractice law is regulated by an extremely complex framework of rules, which vary considerably from state to state, so a lawyer experienced in medical malpractice, knowledgeable of changes in statutes, is essential in deciding the best approach.
They clearly didn’t. A day later, your husband, the love of your life, is in a hypoglycemic coma. He is fighting for his life because the nurses on staff did not evaluate and treat your hard-working husband properly.
“A nurse’s negligence can result in permanent injuries or even death, leaving a loved one’s family to deal with medical bills and the costs of raising a family alone, on top of the tremendous emotional pain the family suffers,” said Fromson. “You do not have to go through this alone.”
“When a nurse fails to competently perform medical duties in a way that a normally competent nurse in the same situation would, resulting in harm to a patient, it is considered nursing malpractice,” said Kenneth Fromson, an attorney with
Kenneth Fromson, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
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12 | January 2018
DWI/DUI
Fail a DWI field sobriety test? Sober people often do
Y heading home.
ou just finished working a late shift at the factory and are feeling tired, so you do what you always do: Down an energy drink before getting into your car and
On the way home, much to your surprise, you are pulled over by a police officer and asked how much that you have had to drink. You politely tell the officer that you are returning home and are sober. However, you are still asked to perform the standard field sobriety tests. Between the jolt of caffeine and the late hour, you have difficulty keeping your balance. Next thing you know, you are handcuffed, sitting in the back seat of the squad car, and facing charges for driving while intoxicated (DWI): Even though you are sober! The National Highway Transportation and Safety Administration (NHTSA) created field sobriety tests to help law enforcement personnel identify people who are driving while intoxicated or under the influence of alcohol or drugs (DWI/DUI). However, they don’t always work. “Field sobriety tests are far from an exact
science,” said Daniel DeVoe, an attorney with Advocates United. “They rely heavily on an officer’s subjective determinations.” Light sensitivity, a bad back or knees, exhaustion, or simple nerves can result in a false positive. Poor weather conditions and even embarrassment can also cause a sober person to fail these tests. In addition to these problems, the roadside sobriety tests do not accurately determine someone’s ability to safely drive a car. Most people have difficulty standing on one leg for any length of time without losing their balance and will jerk their head when a bright light is shone into their eyes. There is no connection between these behaviors and road safety. The value of field sobriety test has been successfully challenged in many courts across the country, but is still used for their convenience. Until this changes, many experienced DWI lawyers recommend that people refuse to participate in them. Daniel DeVoe, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
“Field sobriety tests are far from an exact science. They rely heavily on an officer’s subjective determinations.”
Daniel DeVoe, Esq. TRIAL ATTORNEY
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The Legal Advocate | 13
Hidden Dangers in Safe Zones:
Playground Hazards It’s Friday afternoon and school is out, which means one thing: You are taking your seven-yearold son to the Town playground and then for ice cream.
PERSONAL INJURY When you arrive to the playground, like clockwork, your son makes a bee-line to the monkey bars. He hangs from them, laughing and shouting, but the monkey bars give way, sending your son careening to the ground. He suffers a broken arm and a serious head injury.
“The number of children being injured on playgrounds is alarming. The last thing most parents expect is their kids to suffer a serious head, neck, or burn injury at the playground.”
You rush him to the hospital, wondering who if anyone is liable for the playground equipment being dangerous and faulty. “The number of children being injured on playgrounds is alarming,” said Andrew Finkelstein, an attorney with Advocates United. “The last thing most parents expect is their kids to suffer a serious head, neck, or burn injury at the playground. They’re supposed to be safe areas after all.” The Centers for Disease Control (CDC) estimates there are 200,000 injuries to children under the age of 14 in playground accidents. Like any other accident, there are many causes. The problem is when cities and towns lose funding from the state budget, one of the areas that could lose funding
Andrew Finkelstein, Esq. ATTORNEY
is playgrounds. This is a problem for parents who believe playgrounds are safe zones for their kids to have fun and get some exercise. “Playgrounds don’t take care of themselves. Chains on swings rot from weather, metal slides
found in older playgrounds are hot, and seesaw bolts loosen over time,” Finkelstein said. “Sadly, parents don’t always see these hazards, and kids may notice them but ignore them.” The Consumer Product Safety Commission has an important checklist of information for maintaining safe playgrounds. The checklist focuses primarily on the importance of maintenance of equipment to make sure your kids aren’t injured playing in what’s supposed to be a safe area. Playground accidents can lead to life-long disability if your child suffers a head injury. Broken bones, concussions, or burns can result in other medical issues, and high medical bills. Parents might need help with medical bills after these accidents, particularly for serious injuries. Most don’t know where to turn for help, or for advice since the legal process can be complicated when it involves a city or town. Most parents will need the help of an experienced personal injury attorney because it’s not a good idea to go it alone. Andrew Finkelstein, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
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14 | January 2018
Xarelto: “Twenty-six million in punitive damages sends a real message. The jury seems to want to let Bayer know that it was incredibly irresponsible of them not to warn doctors of all the risks of this drug.”
hen “Irreversible” Side Effects Merit W $26 Million in Punitive Damages Your father’s doctor prescribed the blood thinner Xarelto to him to cut his risk of stroke.
MASS TORT Instead, the drugs’ side effects almost killed dad, landing him in an intensive care unit for five days with internal bleeding and other complications caused by Xarelto. If you or a loved one have been adversely affected by prescription drugs such as Xarelto or other medicines, you may be entitled to compensation. A Pennsylvania state jury recently awarded an Indiana couple $1.8 million in compensatory damages and $26 million in punitive damages for Bayer AG Johnson and Johnson’s failure to warn them of Xarelto’s bleeding risks. Xarelto is manufactured by Bayer AG J&J, which had won three previous Xarelto cases in Federal court. Since Xarelto was introduced in 2011, more than 18,000 users have suffered adverse effects and at least 370 have died.
Andrew Finkelstein, Esq. ATTORNEY
“Twenty-six million in punitive damages sends a real message,” said attorney Andrew Finkelstein, of Advocates United. “The jury seems to want to let Bayer know that it was incredibly irresponsible of them not to warn
doctors of all the risks of this drug.” Xarelto is Bayer’s best-selling drug and less expensive than many prescription medications. It contributes billions of dollars to Bayer’s earnings every year. One of the reasons Xarelto is so popular is because it requires very little follow-up. Other blood thinners such as Warfarin can require patients to undergo regular blood screens to rule out any complications, but Xarelto can be taken without monitoring. Unfortunately, this simplicity can come at a cost. Unlike Warfarin, which can be counteracted by anti-coagulants, Xarelto is a new drug with no known antidote. Patients who experience physical trauma while taking Xarelto can develop internal bleeding which doctors can have difficult treating. “Doctors were pushed to prescribe Xarelto when they might have used a more established blood thinner that could be reversed,” explains Finkelstein. Andrew Finkelstein, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
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The Legal Advocate | 15
Asking the wrong questions on an interview could be a
recipe
for
Disaster
Avoid Employment Discrimination During the Hiring Process Your “bakery” began when you started selling gooey chocolate chip cookies and decadent pies to your friends and neighbors.
BUSINESS
However, you went from selling door-to-door, to opening the doors to your own bakery in a bustling downtown location. The bake shop has grown and now you are looking to hire employees, but you have no experience interviewing applicants. You have heard the stories and seen the headlines about small business owners being sued for discrimination due to hiring practices and have your own concerns about the process. “Business owners with no or only a few employees may be inexperienced when it comes to interviews,” said Joseph P. Rones, an attorney with Advocates United. “They could easily ask an innocent question that inadvertently violates an applicant’s rights and leads to a lawsuit.” Something as minor as requesting a picture of a potential applicant or asking if they have children violates federal Equal Employment Opportunity Commission (EEOC) regulations. EEOC regulations prohibit a business from basing their
hiring decisions on any factor other than job qualifications. A business owner cannot hire or reject an applicant because of his or her race, national origin, color, age, sex, sexual orientation, gender identity, pregnancy, religion, disability or genetic information. State and local jurisdictions may also pass their own anti-discrimination laws that protect additional groups. EEOC guidelines generally apply to businesses with more than 15 employees. However, some states do not exempt small businesses from following EEOC regulations, which means job candidates in those states can sue a potential employee whom they believe does not follow fair employment practices.
“Create and follow a non-discriminatory hiring process, and focus on objective and job-related criteria as you evaluate applications,” Rones said. “Use an interview form, too, that helps you focus only on job responsibilities and duties and avoid discriminatory questions during the interview.” Because the hiring process is complicated, business owners may wish to discuss their interview and hiring procedures with an attorney who understands the law. With the right process, a small business can hire the best employees and avoid employment discrimination. Joseph P. Rones, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
“Business owners with no or only a few employees may be inexperienced when it comes to interviews. They could easily ask an innocent question that inadvertently violates an applicant’s rights and leads to a lawsuit.” Joseph P. Rones, Esq. ATTORNEY
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16 | January 2018
REAL ESTATE
Disclosures important to remember in real estate transaction
Hush-hush No-no Your starter home, a cute Cape, just went on the real estate market and you expect to get top dollar for it. Sure, home sweet home, has a few issues. The boiler is about to go and the roof needs to be replaced after springing a few leaks. However, that’s going to stay your little secret because you don’t want these issues to affect the sales price of the home. But there is one problem! “While disclosing issues regarding the home may lower the value of the house, not following the law and failing to disclose any serious problems could result in a lawsuit by a buyer that could cost you far more than what you may have gained,” says Jennifer Safier, an attorney with Advocates United.
“While disclosing issues regarding the home may lower the value of the house, ... failing to disclose any serious problems could result in a lawsuit by a buyer that could cost you far more than what you may have gained.”
• Sellers may be required to be proactive and create written disclosures about the condition of the property • Sellers are generally responsible for disclosing problems they’re aware of, however it is up to the buyer to have the property inspected • In some states, a seller must search for certain problems even if he or she is unaware of them Federal law requires sellers to disclose potential
• Disclose known lead based paint and hazards • Provide buyers with a pamphlet written by the Federal Environmental Protection Agency titled “Protect Your Family from Lead in Your Home” • Include any warnings spelled out by state law in the sales contract • Have signed statements from the parties stating all legal requirements were met • Save signed acknowledgements for three years as proof of compliance, and • Provide a buyer with a ten-day time frame for lead testing.
Disclosure requirements vary from state to state. However, home sellers should know: • It’s against the law in many states to fraudulently hide major physical defects to your home
Reduction Act of 1992, requiring sellers to:
Jennifer Safier, Esq. ATTORNEY
lead based paint hazards. Lead paint was common in the past but was banned in 1978. Too much lead in a person’s body, especially that of a child, either by inhaling lead paint dust or eating paint flakes, can lead to serious physical, mental and intellectual problems. If your house was built before 1978, you need to follow the Residential Lead-Based Paint Hazard
Failure to comply with the above requirements could result in the purchaser filing suit against the seller and possibly being awarded as much as three times the amount of damages actually suffered. “There are also practical concerns regarding prior disclosure of known issues,” says Safier. “Virtually all homes are inspected prior to the sale. If an inspector finds a serious problem that wasn’t disclosed you could lose the sale. If you know about it, is it worth the risk?” Jennifer Safier, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
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The Legal Advocate | 17
Knowing the Red Flags when filing for
Social Security Disability You need to file a Social Security Disability Insurance claim after a serious illness. Shouldn’t be a problem, right? You can just head to the nearest Social Security office or fill out the necessary paperwork. If only if it was that easy and we didn’t in a world SOCIAL SECURITY/ live of red tape and DISABILITY bureaucracy. “Filing a claim for Social Security Disability Insurance isn’t as easy you might think it is,” Pam Thomas, an attorney with Advocates United said. “There are a number of things that factor into determining your eligibility and whether or not you will receive SSDI benefits. Things as simple as wages, not following prescribed therapy or missing medical records make it impossible to move forward with your application.” Some of these potential issues might not seem like a red-flag to you. To the Social Security Administration, they can be the deciding factor when it comes to signing off on your application or declining it. Working with an attorney can not only make the process less stressful, but he or she is trained on how to proceed with the necessary
“There are a number of things that factor into determining your eligibility and whether or not you will receive SSDI benefits... wages, not following prescribed therapy or missing medical records make it impossible to move forward with your application.” Pam Thomas, Esq. ATTORNEY
steps and can make sure your application is fully correct. An attorney will also make sure you’re supplying the necessary paperwork to the Social Security Administration. It can also be difficult to collect the appropriate medical records for your claim. In some cases, doctors prefer not to get involved with the Social Security Administration, leaving their patients to fend on their own when it comes to important records and information for their case. “It happens more than you think,” Thomas said.
“A claim is denied because someone was unable to gather the correct medical records, and the Administration is left with an incomplete picture of the person’s medical history.” However, that can change when you have an attorney on your side. An attorney will also review your wages and file a closed period on your behalf if necessary, assessing the case and fighting for a specific time period in which you should receive much-needed benefits. The Administration doesn’t usually advise on how to go about this type of claim. “Sometimes closed periods can be a very easy win, but not many people know about them,” Thomas observed. “Usually only advocates and attorneys handle these types of claims since they can be very technical and need to be presented correctly the first time in front of an Administrative Law Judge.” Pam Thomas, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
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18 | January 2018
Medicaid residents treated as
Second-class Citizens
The Legal Advocate | 19
T
he flower beds and plush tree lined walkways entering the nursing home were inviting. The staff, everyone from management to the physical therapists, was charming.
CLASS ACTION
With your aging father on Medicaid and battling health issues, this seemed like the perfect new “home” for him. However, after only a few months at the nursing home, you observe troubling signs that your beloved dad is being neglected and abuse. According to data from the federal Nursing Home Compare website, facilities with a high percentage of Medicaid residents are more likely to be cited for neglect and abuse than other nursing homes. Private pay residents often receive preferential treatment over Medicaid residents, leaving this already vulnerable group at true risk of sickness, injury, and even death. “Many nursing homes across the country are chronically understaffed,” stated Jeremiah Frei-Pearson, an attorney with Advocates United. “This can result in unhealthy and dangerous living
conditions for the residents of the facility.” Under federal law, facilities cannot provide lesser care to Medicaid residents. Unfortunately, too many nursing homes ignore this law. Medicaid residents are often treated as second class citizens and are segregated in separate hallways with fewer comforts. Staffs can have an “out of sight, out of mind” mentality regarding these frail and elderly people, and do not provide even the most basic services. “In some situations, people are left sitting in their urine or feces for hours, which is both cruel and can cause additional serious health problems,” said Frei-Pearson. “This level of neglect is the result of the owners placing profits over the welfare of their residents. They often cut corners with Medicaid residents specifically because they receive lower payments for this group of individuals.”
Frei-Pearson recently filed a class action lawsuit against the James Square Health and Rehabilitation Centre in Syracuse, New All residents of a Nursing Home York and invites anyone have the legal right to: aware of other nursing homes engaging in this • Receive the same services unless medically required. behavior to contact him. as other residents. • Receive visits from family
• Participate in developing their care plan. • Have their needs and preferences honored. • Receive all necessary care without further payment. • Live free of restraints
members whenever they choose. • Have access to a private space to meet with family members. • Remain a resident even if they are “difficult” or refuse medical treatment.
The Square Health suit was brought by both a current resident of the facility, and the family of a resident who they believe died because of poor care the resident received. Between March 2013 and February 2017, the state Department of Health has
issued 110 citations to the nursing home. Nursing homes must provide a clean and safe environment, including nutritious meals, to all residents. They must also meet all care needs, including providing assistance with bathing, dressing and grooming as needed. Support care may also include managing incontinence and feeding residents who are at risk of choking or are unable to feed themselves. In facilities with several residents requiring a high level of care, some owners choose to limit the quality of that care rather than hire additional staff. In these situations, residents may be forced to wait several days to be bathed, or have a food tray set in front of them and then removed, untouched by the resident, with no regard for the fact that the person did not eat. “Class action lawsuits are too often the only way to protect vulnerable nursing home residents,” Frei-Pearson said. “Unfortunately, sometimes litigation is the best way to make nursing homes provide proper care for elderly people.” Jeremiah Frie-Pearson, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
“Nursing homes across the country are chronically understaffed. This can result in unhealthy and dangerous living conditions for the residents of
the facility.” Jeremiah Frie-Pearson, Esq. ATTORNEY
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20 | January 2018
Consumer legal funding could be your lifeline It’s possible to get cash before your settlement with no risk of the outcome Being a provider for your family isn’t easy but, at least before the accident, you were able to pay your bills on time so your family could finally have some financial security. After your injuries caused a loss of income, the bills, unfortunately, kept coming. And now with the holiday season upon us, you are left wondering how you will make ends meet.
LEGAL SERVICES
credit card payments or payments on other necessities which could have an immediate and longterm impact on a family’s finances. Consumer legal funding helps families avoid these financial traumas caused by accidents.
Would you like more information? Visit us at TheLegalAdvocate.com
Phil Greenberg, who was interviewed for this article, is General Counsel at Oasis Financial. If you would like to contact Oasis Financial to discuss your specific situation you can do so at 800-694-6084.
You’ve been assured that the proceeds expected from your lawsuit will more than cover your medical and living expenses, but lawsuits can take a long time to be resolved. What are you supposed to do right now? It may be years before you get your day in court, and until you get the compensation you deserve, you need a way to pay your bills now. Pre-settlement funding, or consumer legal funding, may be a way to get you the cash you need now. A consumer legal funding company provides non-recourse money in exchange for a portion of the anticipated future settlement proceeds. If the case is settled, the consumer legal funding company receives the previously agreed upon amount they purchased. It is not a loan. There are no periodic payments or fees. Best of all, there is no risk to the consumer. If you lose your case, there is nothing owed to the consumer legal funding company. According to Phil Greenberg, General Counsel at Oasis Financial, “Consumer legal funding helps families by providing a safe financial choice to replace lost income now, not years after an accident occurred that disrupts or changes your life.” Many families are unprepared to face a life-altering emergency. More than half of U.S. households are surviving paycheck-to-paycheck, which means that a car accident, job loss, illness, or injury could put a family at serious financial risk. If an injury prevents a plaintiff from working, it may be difficult to stay up-to-date on bills. While waiting for a claim to settle, a family may be forced to miss
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“Consumer legal funding helps families by providing a safe financial choice to replace lost income now, not years after an accident occurred that disrupts or changes your life.” Phil Greenberg GENERAL COUNSEL, OASIS FINANCIAL
The Legal Advocate | 21
The Eviction Problem
Hurting Nursing Home Residents You arrive to the nursing home with flowers for your beloved 73-year-old mother and two of her favorites, a turkey sandwich on rye from the deli and a slice of cheesecake. However, as you settle in to catch up mom who is excited for your visit, a stern-looking administrator from the facility summons you out into the hallway and delivers a bombshell: “Your mom is moody and therefore is being evicted we don’t have space to NURSING HOME accommodate her,” he states. You are shocked and don’t know if you have any recourse to stop the facility from evicting your mother. “While it may seem reasonable to evict difficult patients, there are federal laws that prohibit a nursing home from arbitrarily removing a patient because of his or her perceived difficulty,” said Michael Feldman, an attorney with Advocates United. “There are six legal reasons for evicting a nursing home resident. They include refusing to pay, no longer needing nursing home care, surpassing the experience of nursing home staff, endangering other patient’s safety, endangering other patient’s health, and the nursing home going out of business.”
along with instructions about how to appeal.” Because of the short turn around after an eviction notice, nursing home residents will need to develop a plan to combat any unfair charges brought against them. Most elderly people do not have many friends they can ask for advice, so an elder law attorney is a valuable asset to have during difficult moments that require swift decision making. If an eviction has already taken place and a person wants to file a claim against the nursing home, it is important that he or she know the statute of limitations for nursing/elder abuse claims in that particular state.
“While it may seem reasonable to evict difficult patients, there are federal laws that prohibit a nursing home from arbitrarily removing a patient because of his or her perceived difficulty.”
Michael Feldman, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
Michael Feldman, Esq. ATTORNEY
According to Feldman, there are also rules dictating how a patient can be evicted. The nursing home facility must provide the resident with a written notice of eviction within thirty days of the discharge, along with facts supporting their decision. “By providing information about the eviction decision, nursing homes are giving the evicted resident a chance to review the information and potentially appeal the decision,” Feldman added. “The eviction notice must also include telephone numbers of the nursing home inspection and licensing authorities,
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22 | January 2018
No need to go it alone when the VA denies your eligibility A year after serving two decorated military tours in Iraq, you start experiencing classic Post-Traumatic Stress Disorder (PTSD) symptoms: They include irritability, VETERANS insomnia, anxiety and ADMINISTRATION loneliness. Now a civilian, you are forced to quit your wonderful new job in the private sector due to your condition. However, your benefits claim is denied by the U.S. Department of Veterans Affairs (VA), leaving you shocked. You wonder if you have any recourse and if you can take on the VA to gain the benefits that you deserve. “Like other federal benefits programs, decisions of the Veterans Administration concerning benefit eligibility can be appealed,” said Nancy Morgan, an attorney with Advocates United. “Once a veteran receives a denial for VA benefits, he or she can be represented by counsel and Notice of Disagreement (NOD) can be filed.”
Vietnam Veterans were currently diagnosed with PTSD at the time of the most recent study in the late 1980s, the National Vietnam Veterans Readjustment Study (NVVRS). “If you’re dealing with PTSD and your request for benefits is denied, the last thing you need is to be even more overwhelmed appealing your claim to the VA,” said Morgan. “The good news is that, typically, attorneys that are accredited by the VA to handle veterans disability benefits do not require any upfront payment for representation and only receive a reasonable fee if they are successful recovering past
For many servicemen and servicewomen, serving in the military includes seeing combat. Soldiers are often exposed to terrifying and life-threatening experiences. According to the National Center for PTSD, this type of trauma can lead to PTSD. PTSD statistics are sobering: • Operations Iraqi Freedom (OIF) and Enduring Freedom (OEF): About 11-20 out of every 100 veterans who served in OIF or OEF have PTSD in a given year. • Gulf War (Desert Storm): Approximately 12 out of every 100 Gulf War Veterans have PTSD in a given year. • Vietnam War: About 15 out of every 100
benefits the veteran should have received. There is no legal fee for future monthly benefits awarded.” Nancy Y. Morgan, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
“...typically, attorneys that are accredited by the VA to handle veterans disability benefits do not require any upfront payment for representation and only receive a reasonable fee if they are successful recovering past benefits... Nancy Y. Morgan, Esq. ATTORNEY
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The Legal Advocate | 23
The
Importance of a
Health Care Proxy Your elderly mother suffers a stroke at a local restaurant and is rushed to the hospital. Her heart stops and emergency personnel begin resuscitation procedures. You plead with them, screaming: “Don’t do this. I have her Health Care Proxy and she wouldn’t want you to resuscitate her.”
ELDER CARE
doesn’t,” explained Joseph P. Rones, an attorney with Advocates United. “Without proof of a Health Care Proxy, the hospital staff is legally required to provide the most comprehensive care possible. Simply stating that you have a Health Care Proxy isn’t enough.”
After a brief discussion, the medical staff continues treatment, ignoring your plea and your mom’s wishes. Why would medical personnel decline to listen to someone in a situation such as this?
If unprepared for a medical emergency, many people receive unwanted treatment and are forced to suffer in pain or in other conditions they would prefer not to. Even if the family can later produce a valid Health Care Proxy, they can’t undo what has already occurred, such as the use of a ventilator or resuscitation.
“Many people create a Health Care Proxy and then file it in a drawer or keep a draft on their computer, believing that this has provided the protection that they need, but it
These types of situations can be avoided by drafting and executing a valid Health Care Proxy. A specific person must be named as having the power to make medical decisions
“Without proof of a Health Care Proxy, the hospital staff is legally required to provide the most comprehensive care possible. Simply stating that you have a Health Care Proxy isn’t enough.” Joseph P. Rones, Esq.
on behalf of someone else and the document must be notarized. It should always be easily accessible. Several copies of the Health Care Proxy can be notarized and then placed in a car, purse of other location to be available as needed. A copy can also be placed in a red bag in the elderly person’s entryway, where it will likely be seen by emergency responders and hopefully taken to the hospital. This is also a good place to keep a current list of the person’s medications, primary care physician’s name and telephone number, as well as family contact information. The goal is to present a valid Health Care Proxy to healthcare providers before they begin treatment to assure that the appropriate person can make necessary medical decisions. In some states, the Health Care Proxy is called a Medical Power of Attorney, a Health Care Advance Directive or some similar term. Joseph P. Rones, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
ATTORNEY
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24 | January 2018
Trending News Huffington Post sued for defamation of “rapist” reporter The Huffington Post is facing a lawsuit for accusing a former political reporter of being a rapist following an incident the plaintiff claims was consensual.
So who got
31-year-old Jordan Chariton created the site Truth Against the Machine - a leftist news site, while working for The Young Turks. According to the suit, he had consensual sex with his accuser, Carly Hammond, who was married at the time. Afterwords, the Huffington Post published an article titled, “Jordan
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Family of man killed during beer pong game receives $16 million The family of a man who died after a game of beer pong went fatally wrong had sued the other three players involved in the January 2013 game. A Connecticut jury has decided to award the family nearly $16 million. According to the suit, Salomon Martinez was playing beer pong with his three friends on one of their fourth story apartments. After the two men on the team opposing Martinez lost a $10
bet, Martinez was accused of cheating and a fight broke out. He then allegedly locked himself in a child’s bedroom, but that didn’t stop the angered and drunken players. Martinez was later found dead on the cement outside the child’s window, and two of the men admitted to manslaughter. The married father from Stratford was allegedly already gone when the third player entered the room and tried to intervene.
Chariton Accused by Former Employees of Sexual Abuse, Harassment.” Chariton claims Hammond wanted to create an opposing news outlet, and used their sexual intercourse to ruin his reputation. After the article was published, Chariton was fired, and is now seeking to clear his name and receive justice for defamation. The alleged false accuser and the author of the misinforming article are not named as defendants. Huffington Post, however, is being sued for $23.5 million.
The Legal Advocate | 25
Woman suffers severe frostbite from cryotherapy treatment A woman is suing Equinox and Nordic Cryotherapy after undergoing a controversial treatment in a freezing chamber that left her with frostbite and permanent skin damage. Cherie Glassman of Westchester, N.Y. was invited to try the Shaquille O’Neal and LeBron James-endorsed cryotherapy treatment machine. She entered a 300-degrees-below-zero capsule for two or three minutes, with the purpose of enhancing her mood and easing her pain. According to her suit, she was complaining about the pain to her skin while inside the capsule, but Equinox employees ignored her complaints. Afterwards, she was left with “severe and permanent burns to her body and limbs,” and needed skin grafts. An attorney for the plaintiff stated, “They’re putting people in this chamber, which is supposed to help them as far as recovery and health benefits; it did the exact opposite.” He added, “She’s still trying to recover.”
A cryotherapy capsule exposes the skin to minus 300-degree temperatures.
Joe’s Pizza sues copycat Joe’s Pizza, an iconic pizzeria in New York City, has filed yet another suit against a copycat restaurant for stealing its name and sign design. According to the lawsuit, Victor Zarco worked for the original Joe’s Pizza for 17 years before leaving and starting his own chain called “Joe’s Pizza of the Village.” Zarco’s website sites the reasoning for naming the restaurant after Joe because “Joe had become such an important name in [his] vocabulary.” The chain had been in existence
for over a decade before the original Joe’s Pizza filed the lawsuit. The suit claims the knockoff chain recently changed the signs at all four locations to resemble Joe’s Pizza’s logo, a decision that instigated the lawsuit. Not to long ago, Joe’s Pizza successfully sued another copycat called Little Joe’s Pizza. In that case, the courts ruled to change its name. In this case, the plaintiffs are demanding the copycat chain remove the new signage and pay unspecified damages.
26 | January 2018
Can I Keep My House If I File Bankruptcy?
Seeking Shelter You are swimming in overwhelming debt and now it has come to this: You are contemplating filing for bankruptcy. However, you are reluctant to file because you fear you might lose your home, the place where you and your wife raised your family.
BANKRUPTCY, FORECLOSURES & MODIFICATIONS
“Many people who need to file bankruptcy are reluctant to do it because they think they’ll lose everything, including their home,” said Cristina Dulay, an attorney with Advocates United. “That is far from the truth. The bankruptcy code is designed to help people get a fresh start without having to start over.” If you file for bankruptcy, you may be able to keep your home, depending on the circumstances. You have a few choices if you file for bankruptcy. Most consumers file Chapter 13 reorganization or Chapter 7 liquidation. Some individuals – as opposed to businesses – may be able to file under Chapter 11 reorganization if they own a large amount of real estate or their net worth is extremely high. The bankruptcy code has built in exemptions. While the code is federal, the exemptions may vary from state to state. However, you do have an exemption for a home that you may want to keep. If your circumstances fall within the rules of the code, you may still keep your home, even if you file Chapter 7 liquidation. Chapter 7 also provides for exemptions for your primary home and personal items. Bankruptcy laws are complicated and several “schedules” must be completed to determine which chapter to file under is best for your personal situation. If you file Chapter 13, you will be able to keep your
home in most cases since Chapter 13 is reorganization instead of liquidation. During a Chapter 13 bankruptcy, you will have to create a plan. The plan is filed with the court and, if accepted by the court and the trustee, shows how you will pay down the arrearages on your debts. Should you file Chapter 13 and you want to keep your home, you’ll have to pay the current mortgage every month and on time. The amount that is arrears is included in the plan as a secured liability. The plan shows how much of each debt you will pay per month as a percentage out of the disposable income you have.
“Certain debts, such as trustee and bankruptcy attorney fees are paid first, then secured debts, such as back-mortgage payments, and then non-secured debts are paid,” Dulay added. “Plans are in place for three to five years and you must be able to pay the current monthly mortgage on your home throughout the length of the plan if you want to keep your home. The plan is created in such a way so that with your current income, you should have no problem keeping up mortgage payments to keep your home.” Cristina Dulay, who was interviewed for this article, is an attorney at Advocates United. If you would like
“Plans are in place for three to five years and you must be able to pay the mortgage on your home throughout the length of the plan if you want to keep your home.” Cristina Dulay, Esq. ATTORNEY
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The Legal Advocate | 27
BACKFIRE?
Filing for bankruptcy could have unforeseen consequences The decision was gut-wrenching, but it was the only option. With debt and stress mounting, you have decided to file for TAX bankruptcy. At least, now your financial issues will disappear. Or will they? Filing for bankruptcy doesn’t always mean your money trouble will vanish. You could actually face problems you have never imagined, especially with your taxes. Since most tax debt can’t be part of a bankruptcy, any past-due taxes still have to be paid. This is a problem, particularly if you’re filing Chapter 13. Since you’re making regular payments on your other debt. To make matters worse, if you’re entitled to a refund, the IRS will keep that money.
If you haven’t filed your taxes, the IRS could file a Federal tax lien after you file bankruptcy. The amount of the lien will be estimated, which means it could be for more than you might really owe the IRS. These liens can remain as a blemish on your credit, even after your bankruptcy is discharged. After your bankruptcy is discharged, you could face additional taxes because of cancelled debt. Most debtors don’t know the company who takes partial payment can send you a 1099 form at the end of the year. If you get this form, the cancelled debt is taxable. Some bankruptcy attorneys don’t tell you about the tax problems you could face filing bankruptcy. That’s why it’s important to have a discussion with a tax attorney before you
file, which can save you some surprises later, especially since you’ve been told bankruptcy is a fresh start. If you’re filing bankruptcy, you must file your taxes on time while your case is open. This also means paying any taxes you owe, or making a payment agreement with the IRS. This is important, failing to file will just lead to more problems. If you can’t avoid filing bankruptcy, then you should talk to a lawyer to help you file for relief. The bankruptcy code is there to help when you’ve suffered a financial setback because of divorce, health, or job loss. Make sure you talk to a qualified tax attorney about the tax problems you could be facing when filing bankruptcy, the last thing you want to do is get a handle on your debt and then face long-term problems with the IRS.
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28 | January 2018
Diagnosis key to child’s education Children with learning disabilities may not get the help they need if this important step is missed Your sweet child is having difficulties in school, which is heartbreaking and frustrating. Making matters worse is that the school he attends refuses to acknowledge his issues and make the necessary accommodations for him to receive the education he is entitled to.
EDUCATION
If the school system won’t, a parent or guardian can start the process to ensure a child with a learning disability receives the education he or she needs. To create a plan to help the student (known as an Individualized Education Plan or IEP) the nature and scope of the learning disability needs to be determined. School districts often rely on their school psychologists to test students. However, these professionals may not have the expertise, resources or tools to properly diagnose a student with a learning disability. “Getting the diagnosis right is critical to establishing an IEP that will best serve the student and a school’s psychologist may not be equipped to make a diagnosis,” said Jennifer Safier, an attorney with Advocates United who represents families of special needs students. “If the reason for a child’s difficulty in learning is not properly assessed the solution provided may not be effective. Time is critical for these students, the more time passes without the student making progress, the farther behind the child will be compared to his or her peers.” The Federal Rehabilitation Act of 1973 (known as Section 504) and the Individuals with Disabilities Education Act protect students with learning disabilities and guarantee them a free appropriate public
education (or FAPE). State laws also cover special education and may set their own requirements for school systems. According to Safier, properly diagnosing a learning disability is like identifying a serious illness: A second opinion makes sense. Through the IEP process, parents can request an independent exam at the school system’s expense. If the parents have the resources, they can retain a private school psychologist to test the student. Testing should not be limited to a school psychologist, as other areas of expertise may be necessary such as a speech therapist or occupational therapist. “If the diagnosis is correct and an IEP is properly established and executed a special needs student can be put on a path to success. If the diagnosis is wrong, the student won’t get the education he or she needs,” Safier said. Jennifer Safier, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
Would you like more information? Visit us at TheLegalAdvocate.com
The content of this page is covered by and subject to the Legal Disclaimer found on Page 3 of this edition.
“If the reason for a child’s difficulty in learning is not properly assessed the solution provided may not be effective. Time is critical for these students, the more time passes without the student making progress, the farther behind the child will be compared to his or her peers.”
Jennifer Safier, Esq. ATTORNEY
The Legal Advocate | 29
Crossword
by Myles Melor
Medical Malpractice
32 Hospital room for emergencies 33 Arguable in court 34 Settle a monetary obligation 35 Responsibility
Down
Across
1 Professional wrongdoing that results in damage or injury 7 Put ___ request for, 2 words 9 Medical practitioners 10 Prevent from happening 11 Decision 13 Delayed, as in producing docu ments or holding hearings etc. 15 High exam scores 17 Condition where someone or a company is obliged to pay money
to someone else 20 Large joint that is sometimes replaced 21 Pass away 22 Get a monetary award from a defendant for wrong, damage or injury 24 The elder 26 Piece of legislation 28 Pleading in a case which alleges a claim against the defendant 30 Be indebted
1 Relating to treatment such as surgery or drugs for example 2 Type of anesthetic 3 Tooth part 4 Legal suits where a person seeks a remedy 5 Lawsuit that does not have to prove criminal liability 6 Compass direction 8 Lines to the heart 12 Place where tests are carried out 14 Small child 16 A judge may demand it in court 18 End goal 19 ___ a good plan! 20 50th state, abbr. 21 Letter of claim requesting the setting right of a wrong, usually by payment 22 Legal statement as to a right for recompense or damages 23 Put to good use 25 Hear again, as a case 27 In addition 29 Profit amount 31 Weight, for short Stumped? Find our crossword solution on the next page. Our puzze is also available online at TheLegalAdvocate.com
30 | January 2018
This month in legal history against or of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.�
January 1, 1975 President Nixon’s top aides, Attorney General John Mitchell, Domestic Affairs Advisor, John Ehrlichman and Chief of Staff, H.R Halderman were found guilty of Obstructing Justice.
January 10, 1878 Senator A.A Sargent, from California introduced an amendment to grant women the right to vote. Forty-two years later the bill finally became law.
January 7, 1999 After President Clinton was charged with Perjury and Obstructing Justice, the House of Representatives held a vote on whether to remove Clinton from office. After passing the House, the vote went on to the Senate.
January 29, 1919 Known as Prohibition, the 18th Amendment was ratified. It forbade the sale, manufacture or transportation of alcoholic beverages throughout the U.S. The unintended consequences of the amendment, contributed to an explosive growth in organized crime. The law was repealed fourteen years later on December 5, 1933.
January 8, 1798 The 11th Amendment was ratified which states, the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted
Legal Ease
by Marty Bucella
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The Legal Advocate | 31
Oddball Law
by Alyssa Stalzer
Jersey girls don’t pump gas An N.J. statute that dates back to 1949 makes it illegal for motorists to pump their own gasoline. Every station has attendants to do it for you.
Profanity and justice for all You might want to think twice about raising your voice to a youngster in the state of Georgia. There is a law in place that makes it illegal to use profane language to any child under the age of 14, either on the phone or in person.
In Florida every child is priceless! In the Sunshine State the selling and buying of minors is officially banned. Do so, and you could be guilty of a felony of the first degree, punishable by up to 30 years.
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32 January 2018 The| Legal Advocate
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