Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for September, 2003

“Venue wish upon a star”

Okay, we picked it in part just as an excuse to quote that headline, but the story actually does show how litigation reform can work as intended: the Philadelphia Inquirer editorially hails a precipitous drop in filings of malpractice cases in that city since the state legislature enacted a bill (meant to curb forum-shopping by plaintiff’s lawyers) which requires that suits against doctors be filed where the care was delivered. It is not yet clear to what extent the drop in Philadelphia filings will be counterbalanced by an expected rise in filings in suburban and rural counties; some cases, which had been premised on the generosity or unpredictability of juries in the center city, may wind up not being filed at all. (editorial, Sept. 4; Josh Goldstein, “Medical lawsuits plummet in Phila.”, Aug. 31). The Pennsylvania Medical Society comments (other liability resources at its site).

In other Pennsylvania-related malpractice news, a website of doctors in neighboring New Jersey is posting the text of the “Liability Update” newsletter put out by PaMedSoc Legislative Issues Chair Donna Baver Rovito (sample), packed with news clips of interest to anyone interested in the medical liability crisis whether resident in Pennsylvania/New Jersey or not (mirror AOL site with comments) (also available at Politically Active Physicians’ Association (www.fightingdocs.com), click through “News and Information” on left column). [Corrected Sept. 13 to repair/improve nonworking links]

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Texas tort reform update

The Texas tort reform initiative is unique because it seeks to accomplish reform through constitutional amendment; on some other occasions, plaintiff-friendly judges have struck down state tort-reform measures by claiming that they conflict with state constitutions. Early voting for tomorrow’s election shows larger-than-normal turnout. (Kris Axtman, “Texas vote tests a new tactic to curb jury awards,” Christian Science Monitor, Sep. 12). Lara Squires writes at length in support of Proposition 12 in the Fort Worth Business Press, noting a 400% increase in some insurance costs:

[Dr. John] Durand is an interventional cardiologist with Consultants in Cardiology of Fort Worth. He says that in a three-year period, his 12-physician group?s insurance premiums have gone from $125,000 a year to close to $700,000 a year, despite an impeccable claims history.

?We had been setting aside funds for our practice growth. We were going to build an outpatient congestive heart failure clinic, to meet the needs of a growing population facing this major health problem,? Durand said. ?Instead, we had to cut back on services, freeze hiring of more medical staff and scrap plans for the outpatient center. It?s the first time in 35 years of our practice that we?ve identified a need in the community and haven?t been able to implement the solution.? (Sep. 10).

One unintended consequence of the ballot initiative: a backlog of over a thousand medical malpractice cases filed in Harris County in a three-month stretch in an effort to beat the deadline that would be imposed by the amendment. (AP, “Backlog of malpractice cases results from deadline,” Sep. 11; previous Overlawyered discussion Sep. 6).

SEP. 14 UPDATE: The constitutional amendment passes, 51-49. (Kelly Shannon, “Texans Vote to Limit Lawsuit Awards”, AP, Sep. 14; Janet Elliott, “Texans pass Prop. 12 in statewide election”, Houston Chronicle, Sep. 14; amendment text). (via Bashman)

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UK: “New rules are thatchers’ final straw”

When authenticity menaces authenticity: the head of Britain’s National Society of Master Thatchers is warning that the 2,000-year-old craft of roof-thatching could be killed off if historic-preservation authorities enforce rules insisting on the use of locally grown thatching materials, such as Cotswold long straw and East Anglia water reed. Because the English materials are not as durable as thatching supplies imported from growers in Turkey, Russia and South Africa, some homeowners face frequent need for rethatching which can make it uneconomical for them to keep up centuries-old cottages. “There are about 50,000 thatched buildings in Britain, around half of which are listed buildings and therefore come under the jurisdiction of English Heritage.” “We are traditionally a passive bunch,” said the head of the thatchers’ group. “But we are livid that English Heritage are determined to kill off new developments in thatching.” (Rajeev Syal, Daily Telegraph, Sept. 7).

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“Grief does not justify greed”

A few more excerpts from Gregg Easterbrook’s devastating commentary of yesterday: “Now some 9/11 families are saying $1.6 million isn’t enough. Set aside whether they should be receiving anything from taxpayers, given the myriad other circumstances in which Americans die in various horrible events every bit as traumatic and devastating to their families, who receive nothing at all. Assume for the sake of argument that something about 9/11 justifies offering victims’ estates a very large special payment. Yet some 9/11 families are saying very large is not large enough. … If the families for whom $6.1 million is not enough persist in their avaricious desire to sue — and if the lawyers who would get shares of court awards, but get no shares of federal fund awards, persist in their ghoulish desire to encourage such suits–the country’s two largest airlines, and largest aircraft manufacturer, may fail. This will cause significant harm the United States. And it seems unlikely that the dying thoughts of the noble victims of 9/11 were, ‘I hope my survivors really screw the United States for money.'” (unnamed new Gregg Easterbrook weblog, The New Republic, Sept. 10). See also Apr. 1-2, 2002 (Roger Parloff); Nov. 21-22, 2001; John Lehmann, “Rush to file $uits”, New York Post, Sept. 11 (Lisa Beamer and other survivors suing airport screening equipment makers).

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“The terrorists have failed”

“[O]n Sept. 11, 2003, America may be a politically divided nation, but it is hardly a broken one. The terrorists have failed. The resolve of a people to eradicate those who attacked this country hasn’t wavered. Now, as then, the most heartbreaking aspect of Sept. 11 is the 3,000 people who are not here with us to observe it.” (Chicago Tribune (editorial), Sept. 11).

Class action roundup: lap dances, Register.com, Poland Spring

Houston attorney David George has filed intended class-action lawsuits on behalf of local resident Paul Brian Meekey against three strip clubs, claiming the clubs violated Texas law by adding a $5 credit card surcharge to the $20 price of a lap dance. The suit demands a refund of all such charges paid over the past four years, plus attorney’s fees. According to attorney George, state law flatly forbids merchants from imposing surcharges on credit card transactions, even, presumably, in cases where those transactions are costly for merchants to provide because of a high later dispute rate. “Another lawyer tried filing similar cases in 1999 but abandoned them, in part out of fear that clients would only be angry when they received notice at home about refunds.” (Mary Flood, “Seeking a redress of lap-dance surcharges”, Houston Chronicle, Aug. 31). (Update May 3, 2005: appeals court lets suits proceed).

In other news, Register.com has settled a class action over its supposedly deceptive former practice of initially pointing newly registered domain names to a “Coming Soon” Page which included advertising. Class members will get a $5-off coupon toward future Register.com services, named plaintiff Michael Zurakov will get $12,500, and the lawyers will ask for up to $642,500. Thanks, lawyers! (settlement notice; Ed Foster, The Gripe Line, InfoWorld, Aug. 27; Slashdot thread). And Nestle’s Poland Spring bottled water subsidiary “has negotiated a proposed settlement for a class-action lawsuit alleging that the company’s bottled water does not come from a spring and is not completely safe. … The settlement calls for Poland Spring to offer discounts or free water worth $8,050,000 over the next five years, contribute $2.75 million to charities during the same period and step up its monitoring of water quality. It also would pay the two lawyers involved in that case $1.35 million.” The deal is drawing peals of outrage from lawyers pushing ten similar class actions who are upset that the class was not properly represented — being angry about the possibility of being cut out without fees has absolutely nothing to do with it. “Each of the lawsuits contends that Poland Spring’s water is not actually natural spring water because it is drawn from wells.” (Edward D. Murphy, “Poland Spring makes deal on lawsuit”, Portland Press-Herald, Sept. 3; notice of settlement (PDF)). Update Jun. 25: how much did consumers actually get? Darned if one columnist can find out.

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9/11 lawsuit moves forward

Gregg Easterbrook, in his new blog for The New Republic, is critical of the lawsuit against airlines over 9/11 and a recent decision of a federal judge to permit that lawsuit to go forward:

We were all going through those checkpoints and riding on those planes, all as a society sharing the risk–including the federal judge who himself was getting on those planes though he now says it could have reasonably been foreseen they would be crashed into buildings. How odd he himself didn’t foresee it. (Sep. 10).

Judge Hellerstein’s Sep. 9 opinion is on-line.

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Rx: Hired-gun control

“Two physicians fed up with medical expert witness testimony gathered lawyers and doctors and founded the Coalition and Center for Ethical Medical Testimony this summer. … Their goal is to expose physicians who falsify credentials or mislead juries about standards of care, and they’re planning to arm physicians with the tools necessary to do the job.” (Tanya Albert, “Group aims to weed out deficient medical expert witnesses”, American Medical News (AMA), Aug. 18). Meanwhile, in a trend that outrages the organized plaintiff’s bar, medical societies are establishing tribunals to review and discipline doctors over expert witness testimony that they present in court. “Doctors whose testimony does not pass muster can be suspended or expelled from the societies.” Critics from the plaintiff’s bar say the medical societies will not conduct objective evaluations because of their members’ interest in retaliating against those of their number who testify against fellow doctors. “The giving of expert testimony should be considered the practice of medicine, and it should be the subject of peer review,” counters AMA president Donald J. Palmisano. “If someone comes into court and gives junk science, we don’t want fraudulent testimony in court.” Although attorney Robert Peck, who works closely with ATLA, is menacing the associations with charges of antitrust violation and witness intimidation, an opinion by the Seventh Circuit’s influential Judge Posner in 2001 upheld medical testimony peer review as socially valuable self-regulation that “furthers rather than impedes the cause of justice.” (Adam Liptak, “Doctors’ testimony under scrutiny”, New York Times, Jul. 6).

Read On…

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It’s our swirl

Lawyers for Jamba Juice, a national chain known for fruit smoothies, have sent a cease-and-desist letter to the owners of Hullaballoo, a restaurant in the Old Town neighborhood of Salinas, Calif., demanding that the restaurant stop using its logo, which like Jamba’s is based on a tornado-like swirl. “‘What, are you kidding me?’ Hullaballoo co-owner Todd Fisher said of his initial reaction to the letter. ‘You serve everything you have in a paper cup. We’re fine dining. Our (logo) is a wine glass swirling with a fork and knife and spoon, yours is a blender. Quite different.'” Bob Wecker of the Wecker Group advertising agency, who devised the Hullaballoo logo, said whirls and swirls were commonplace long before Jamba came on the scene. (Virginia Hennessey, “A great big Hullaballoo”, Monterey County Herald, Sept. 7). Jamba’s mission statement says the company believes in “Fun, Integrity, Balance, Empowerment, Respect”.

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