The Lacrosse Ball and the Lawsuit

Addy Tauro head shot, Syracuse University

I’ve got this thing about sports, injuries and lawsuits. And that’s because of two things that seem to be in conflict: First, I bring lawsuits regarding injuries for a living. But second, I am also the race director for a 13-mile trail race.

And you know what? Folks get injured while trying to run fast over rocks, roots and other hazards that include other runners. The risk of wiping out comes with the territory.

So over the past years I’ve written about injuries (and lawsuits) from snowboarding, softball practice, horseback riding, auto racing, and water slides.

With that intro now over, we turn to lacrosse and a decision from last week.

The lacrosse drill at Syracuse University was conceptually simple for the women’s varsity team: Athletes ran down the sidelines while a line of coaches roll balls to them from about 20-25 feet away. The athletes scoop them up and toss them back to the coaches. Then repeat with the next coach.

According to the suit that was ultimately filed, the ground ball part of the drill had never been performed any other way. Except that one coach decided on this one day in the middle of the rolling drill to wing the ball overhand to Addy Tauro as if it were a pass.

Now if Tauro survived said winging of said lacrosse ball without injury, would I be writing about this today?

When one of the coaches whipped it at her head, it was wholly unexpected and she “never even saw it coming,” as she stated in her affidavit.

She suffered a concussion.

She claimed in her suit that throwing a hard rubber lacrosse ball at someone’s head, when she’s not expecting it, is grossly negligent and reckless.

So. Does this case get dismissed under New York’s assumption of risk doctrine because, when engaging in recreational activities, she consented to the commonly appreciated risks of the sport that flow from such participation?

I’ll wait while you ponder. Time’s up.

Rather than answer the lawsuit and go through discovery, Syracuse moved immediately for summary judgment based on the assumption of risk doctrine, and also based on a written waiver that Tauro had signed. They countered her version of events.

And the answer is: Summary judgment for Syracuse was denied on both counts and the case goes forward.

The Appellate Division (Fourth Department) first dispensed with the waiver issue, since such waivers are against public policy for people who act with gross negligence or recklessness. (see Gross v. Sweet and GOL 5-326)

And on the assumption of risk doctrine, the court stated that if the claims by the plaintiff were true (and at this early stage a court must make that assumption) that she did not assume these kinds of risks. This risk was not part of the game, as this was a practice. Nor was it an anticipated risk of a pick-up drill that a ball would be thrown at her head.

The court held that a player will not assume the risks of reckless or intentional conduct, or dangerous conditions that the coach created over and above the usual dangers that are inherent in the activity.

Assumption of risk goes to the anticipated and appreciated risks. Which is why, if one is writing a waiver, it might be wise to educate the participant as to all of the anticipated risks. Thus, while a waiver might not excuse negligence based on public policy grounds, it might be quite useful for assumption of risk grounds.  “Look!,” a defendant could now safely claim, “she knew about this risk!”

You know those sports waivers written in ALL CAPS that appear designed to dissuade the participant from actually reading them? They are for shit, in my opinion, and really don’t serve the purpose of educating to real risks. Because they are not being read. Nobody reads them except for the lawyers that wrote them. And then they hope that the legal mumbo jumbo somehow imparts knowledge of the risks?

The one I wrote for my trail race gets read. And I know that because people will routinely come up to me and tell me so. It was crowd-sourced  years ago, with the idea of doing everything possible to make it readable, and therefore useful for actually educating people on the risks of participating. If anyone decides to create a Waiver Hall of Fame, I’m going to submit it.

The case is Tauro v. Gait and Syracuse University


The Lacrosse Ball and the Lawsuit syndicated from


Does Short-Term Disability Transition Into Long-Term Disability?

Have you been injured and now you want to see what benefits you qualify for in regards to short-term or long-term disability? You have options. The problem is, many people don’t understand how the transition works when you are moving from short-term disability to long-term disability. The truth is, some people will not make it past short-term disability, as they may not have an injury severe enough to keep them out of work for several months or years. But what happens if your injury is extremely severe and you are wondering how to make the transition?

From Short-Term to Long-Term Disability

long term disability appealShort-term disability is supposed to support you financially, of course, for a short amount of time. This type of disability will usually provide benefits to you for the first 3-12 months of your disability. But what happens if you have to move past that? This happens in cases where you have sustained a severe injury. Sometimes a doctor is unsure of how a treatment plan will work over a year’s time and can’t give you a statement right off the bat on how long you should expect to be out of work. But if your short-term disability is running out of time and you are still suffering from your injury, there is a good chance you will receive long-term.

After your short-term benefits have concluded, therefore, you will transition into the approval for long-term benefits. Usually, the insurer will administer both short and long-term benefits in the same way. If you are eligible for one, you will probably be eligible for the other if you need more time to recover. The only difference is that sometimes the transition can be difficult because of this element: When short-term disability ends, you might end up having to go through the whole process of applying for long-term all over again. Going through a new claim can be time-consuming as you work to prove your disability and gather documents that support what you have experienced.

Luckily, at Edelstein Martin & Nelson, we can get you proven results when you are suffering from a disability and need urgent help with your case. No matter your disability, uncommon or common, we have worked a variety of cases and want to see you gain results and make your transition as easy as possible.

Why It’s Important to Act

All too often, employees say things like, “It won’t happen to me” and sadly, it does. Getting injured on the job can happen to anyone in the blink of an eye. Many people wait until it’s too late and an injury occurs, and then find out the hard way that long-term disability insurance has a waiting period of 3-6 months before you’re able to secure benefits. As such, you should always act, because short-term disability can pick up and leave you in a better position while you wait. This is why it helps to talk to your employer and stay prepared for any event.

Are you looking for more information on how long-term disability insurance can benefit you? If you live in or around the Philadelphia area and you have been injured, you have rights to compensation for your injuries, and one of these benefits could be a long-term disability if your injuries were especially severe. Call us today at Edelstein Martin & Nelson for more information, at 800-300-0909.




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Trump’s Lawyer, the Porn Actress, the 130G Payoff and Attorney Ethics

Stephanie Clifford (aka Stormy Daniels)

Yesterday news broke that longtime Donald Trump attorney, Michael D. Cohen, was responsible for paying $130,000 to porn actress Stephanie Clifford (aka Stormy Daniels) on behalf of Trump in 2016, before the election.

“In a private transaction in 2016, I used my own personal funds to facilitate a payment of $130,000 to Ms. Stephanie Clifford,” Michael Cohen said in a statement. “Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly.”

When the underlying stories of they payoff started in January, many folks immediately started looking to see if such a payment violated campaign finance laws. And indeed, that is what most of his statement addressed yesterday.

But I’m looking at the New York Rules of Professional Conduct. Those of us in the personal injury bar know, for example, that advancing funds to clients is a big fat no-no. Does the same provision apply here?

The relevant rule reads as follows:

RULE 1.8:


(e) While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client…

OK, you see that ellipses and you want to know what comes after, right? There are three exceptions, each of which invite an investigation to see if they apply:

(1) the transaction is fair and reasonable to the client and the terms of the transaction are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking, and is given a reasonable opportunity to seek, the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

The full statement is below and you can decide for yourself if you think it looks like an advance or guarantee of financial assistance (not because Trump needs it, but to hide it). Oner problem may be that, from Trump’s perspective, this isn’t a transaction.

At the very least, it seems that Cohen has invited an investigation from the Disciplinary Committee. I’ve long said that Trump is a one-man bar exam with never-ending legal issues unlike any other person. That pattern continues today.

The statement:


Trump’s Lawyer, the Porn Actress, the 130G Payoff and Attorney Ethics syndicated from

Aetna’s Death Panels?

When I first saw the story, half of me believed it, the other half not. A former medical director at Aetna testified that he didn’t look at patient medical records when deciding whether to (dis)approve medical treatment.

Yeah, I did a double take also. But now there’s an investigation going on.. As CNN reported,

California’s insurance commissioner has launched an investigation into Aetna after learning a former medical director for the insurer admitted under oath he never looked at patients’ records when deciding whether to approve or deny care.

But it’s actually far worse than that. Because, it seems that the medical director wasn’t going rogue because he was lazy and out playing golf. No. He was actually following Aetna policy by rubber-stamping the recommendations of nurses:

The California probe centers on a deposition by Dr. Jay Ken Iinuma, who served as medical director for Aetna for Southern California from March 2012 to February 2015…During the deposition, the doctor said he was following Aetna’s training, in which nurses reviewed records and made recommendations to him.

The deposition came up as part of a breach of contract lawsuit for denying medical treatment under a healthcare policy:

The deposition by Aetna’s former medical director came as part of a lawsuit filed against Aetna by a college student who suffers from a rare immune disorder. The case is expected to go to trial later this week in California Superior Court.
Gillen Washington, 23, is suing Aetna for breach of contract and bad faith, saying he was denied coverage for an infusion of intravenous immunoglobulin (IVIG) when he was 19. His suit alleges Aetna’s “reckless withholding of benefits almost killed him.”

The treatment was expensive, costing some $20,000 per infusion. And it was covered by Washington’s prior insurer. Aetna is trying to claim that the denial was the young man’s failure to get a blood test. His own doctor, however, said it was medically necessary.

But this was the kicker to his personal story — the medical director who denied the treatment hadn’t actually read the records, had no idea how to treat the disease or what to do:

During his videotaped deposition in October 2016, Iinuma — who signed the pre-authorization denial — said he never read Washington’s medical records and knew next to nothing about his disorder.

Questioned about Washington’s condition, Iinuma said he wasn’t sure what the drug of choice would be for people who suffer from his condition.
Iinuma further says he’s not sure what the symptoms are for the disorder or what might happen if treatment is suddenly stopped for a patient.

Well, so much for the doctor’s oath to “Do no harm.”

To my eyes, this looks like Aetna engaging in a staggering case of insurance fraud, not simply for denying Washington treatment by having a no-nothing doctor doing the denying, but rather, because this was the way Aetna trained him to engage in denials. This was policy.

And if it’s policy, there are many people involved in the conspiracy.

Some years ago, regular readers might remember, there was a lot of hollering and screaming about “death panels” when Obamacare was being debated, in the event government got further involved in health care. That is to say, that treatment would be denied because it was cheaper to let the patients die. That was the political line.

Well, guess what? It looks like we’ve arrived, but it isn’t because of the government trying to save a few bucks. Having insurance panels deny benefits, for the sake of profit, is better?

And you know why Aetna is doing it? Because it’s a publicly traded company that has, at its core, a fundamental duty to maximize profits for shareholders. That’s what publicly traded companies do.

Given that Aetna has 23 million customers nationwide, this scandal is likely to be massive in its repercussions as most surely some have died as a result denials of care — denials that took place without a doctor’s review of the records.  And we go here beyond mere negligence, but to a corporate policy of recklessness with people’s lives.

Perhaps this should not really come as a surprise, however, as I see the same thing happen elsewhere in the insurance industry. It is routine in New York, for example, for victims of car collisions to get cut off from no-fault healthcare benefits based on quickie medical exams that last only a few minutes. And doctors doing “independent” reviews for insurance companies in personal injury cases likewise do these quickie exams to deprive those injured from negligence from recoveries, which was the subject of a multi-part series I did in 2013.

All of this is tied together with a common theme of doctors who went to medical school to care for others now doing the bidding of insurance companies. Because the insurance companies ask for it, living, breathing humans are losing healthcare benefits and rights while doctors allow themselves to be used as cover as they prostitute their services. Except that prostitutes generally have more integrity and don’t hurt or kill others as a matter of policy.

Whenever a scandal pops up, the big question is always the same: Who makes the profit? In this case, it is clearly Aetna shareholders. And the doctors who’ve sold their licenses to Aetna in exchange for nice, tasteful, fees.


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Moving to Health Improvement: Will I Lose My Benefits?

If you qualify for long-term disability benefits because of a serious injury, you may feel a sense of accomplishment and peace knowing that your benefits will protect your best interests and keep you from going into debt over medical bills and more. But what happens if your benefits are cut suddenly due to a variety of reasons? Are there reasons for your benefits to end? Today we will discuss some of these scenarios to prepare you in case any of these circumstances happen to you.

Reasons for Losing Benefits

denied disability claimHealth Improvement: It is obvious that, if your health improves, you will no longer qualify for long-term disability benefits. These programs are available to those who are suffering from severe impairments due to injury on the job. Long-term disability, for instance, is for those who are expected to be disabled for quite some time, usually longer than a year. If your health improves and your doctor believes that you are able to return to work, you may be able to re-enter the workforce without issue, which could lead to a decrease or cut-off of your benefits.

Most often, your eligibility will all depend upon the health status and a review of your status over time. If your health improves, then you could be disqualified from benefits.

Earning Too Much Income: If your health has not improved but you are earning enough money, you could lose your benefits. You may even go through a trial period where you must return to work for a period of time so that you can be monitored to ensure that you are actually able to return to work.

The same can occur if your household income changes as a whole. If you are married and your spouse starts making more income, then you could lose your benefits. You could also be disqualified if you start to receive benefits from another person’s earnings in other ways.

Retirement Benefits: If you have reached retirement age and you start receiving retirement benefits at your qualifying age, you may no longer qualify for long-term disability.

Moving Outside of the Country: If you move outside of the United States, you could lose your benefits as well. In many cases, other countries prohibit you receiving these benefits, though this is subject to the country’s discretion, which is why you should always make phone calls.

Long-term disability is important to you and your lifestyle, which is why you should always follow all the rules that coincide with your benefits and understand them at-length so that you do not risk losing them in your time of need. Understanding these regulations can sometimes be a difficult procedure and you may need help in every aspect. Call the disability lawyers who can help you in your time of need at Edelstein Martin & Nelson. We are waiting to hear from you at 800-300-0909.



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