Lawsuit-funding companies, which advance litigants cash in exchange for a share of the eventual booty, have apparently departed the state of Ohio since a decision this summer by the Ohio Supreme Court (see Aug. 4) finding that such activities violate a 180-year-old state law against champerty and permit intermeddlers to “gorge upon the fruits of litigation”. “Several states, including Massachusetts, New Hampshire and South Carolina, have lifted their prohibitions against the practice. At least 100 lawsuit-funding companies have emerged nationwide since 1998 when Perry Walton, a litigation-finance pioneer from Nevada, started holding seminars to teach other entrepreneurs how to make money by doing what some critics say is akin to betting on lawsuits.” (“Lawsuit-funding companies avoid Ohio after court ruling”, AP/Miami Herald, Oct. 1)(more on champerty, from The Litigation Explosion).
Archive for October, 2003
Update: La. judge removed from bench
“A unanimous Louisiana Supreme Court removed Orleans Parish Civil District Court Judge C. Hunter King from the bench Tuesday, finding that his misconduct — forcing employees to work on his re-election campaign and then lying about it under oath — demanded a severe penalty. While the justices stopped short of saying King should face criminal prosecution, they said his admitted conduct likely constituted perjury and public salary extortion, both felonies.” (New Orleans Times-Picayune coverage: Gwen Filosa, “Judge is removed from bench” Oct. 22; “An appropriate ouster” (editorial), Oct. 23; James Gill, “Politicking doesn’t do justice to the bench”, Oct. 24). King, named one of “America’s worst judges” in the November Reader’s Digest, presided over a trial this summer in which attorney Johnnie Cochran extracted a $51 million award on behalf of an 11-year-old girl who fell out of the window of a city streetcar, after which jurors posed in celebratory fashion with both Cochran and Judge King. (“A streetcar named excessive”, Aug. 29, Sept. 15).
Corgi menace averted
“A new law that took effect in Italy [last month] brands border collies, corgis and St Bernards as dangerous dogs which children and criminals are barred from owning.” (Bruce Johnston, “Italy out to end the corgi menace”, Daily Telegraph (UK), Sept. 15).
$2-million hug
“Contestant Will Wright had just won $48,400, and the Wheel of Fortune audience was cheering with abandon in a District of Columbia auditorium where the show was being taped. Suddenly, Wright says, host Pat Sajak leapt at his body and wrapped his arms and legs around him. … This week, the 38-year-old puzzle-guessing champion from Lorton, Va., filed a $2 million lawsuit against the show’s producers over the back injuries he says he suffered from Sajak’s moment of unbridled enthusiasm.” (Carol D. Leonnig, “‘Wheel’ contestant suing over injury”, Washington Post/Arizona Republic, Oct. 18) (via SoCalLawBlog)
“Asbestos meltdown”
Despite talk of compromise in Congress, write the editorialists of the Washington Post (Oct. 20), reform of “the spectacularly broken asbestos litigation system” seems to remain out of reach for the moment. “The tort system has failed to provide asbestos victims predictable and fair compensation for the grievous injuries they have suffered even as it has saddled industry with gigantic liability from people who are not actually sick. … [It is] a system that now works to everyone’s detriment — a system in which trial lawyers, representing people who aren’t sick, sue companies that never made asbestos (the asbestos manufacturers themselves being long since insolvent).” See also “Frist asks labor counter-offer on asbestos”, Reuters/Forbes, Oct. 21; Michelle J. White, “Resolving the ‘Elephantine Mass'”, Regulation, Summer (PDF); Doug Bandow, “Quenching the asbestos fire”, syndicated/TownHall, Sept. 8.
Medical privacy madness
HIPAA, the stringent new federal medical-privacy law, took effect in April, and soon had what may be some rather drastic unintended consequences in the town of Craig, Colo.: “To protect the privacy of those needing medical help, 911 dispatchers stopped mentioning residents’ names in radio calls to emergency response teams. That made it more difficult for the teams to find addresses,” which critics charge may have contributed to the death of a local heart attack victim. Moreover, thousands of doctors “have stopped sending out appointment-reminder postcards, figuring the cards could be read by someone other than the patient. Some doctors have stopped leaving messages on patients’ telephone answering machines, fearing that other family members might listen to them. Wives have been told they no longer could verify dental appointments for their husbands” — even though a federal official says such postcards, phone messages and spousal verifications do not violate the law. (Laura Parker, “Medical-privacy law creates wide confusion”, USA Today, Oct. 16).
Medical errors often arise from miscommunication, and the law has also made medical providers more reluctant to share information with each other about patients. Medpundit Sydney Smith (Oct. 20) comments: “Part of the problem is that the penalties are so stiff (they include time in prison) that no one wants to risk any breach, no matter how nonsensical and impractical complying with it may seem. I’ve heard colleagues say that they’ve had requests for old medical records from other practices or hospitals rejected because their request form was deemed ‘non-HIPAA compliant,’ and I’ve heard nurses ask one another if they’re allowed to tell another nurse in another department — say dialysis — details about the patient they’re sending over for care. Most see the law as punitive — one that will be used by the disgruntled and unhappy as one more weapon in their attack arsenal (along with laws on disability, sexual harassment, equal opportunity, etc.). That makes people — especially those who manage large organizations — very nervous. And that’s another reason they abandon common sense so readily.”
Following the standard of care?
“A San Francisco jury has awarded a 9-year-old boy $70.9 million in compensatory damages after finding a hospital and a medical clinic negligent for failing to diagnose his metabolic disease.” The mother of Michael Cook sued Stanford Health Services and the Palo Alto Medical Clinic, saying “that the hospital took Cook’s blood specimen when he was 4 hours old, too early to get accurate results when performing a required screening test for metabolic disorders.” Not until years later was Cook diagnosed with hereditary phenylketonuria, by which time he had suffered brain damage. “The lawyer defending Stanford Health Services, David Sheuerman, of Sheuerman, Martini & Tabari in San Jose, argued that the state didn’t come out with a guideline saying the tests should be done after a baby’s first 12 hours until 1995, the year after Cook was born. Sheuerman said 88,000 infants in California between zero and 12 hours of age were tested in 1994. ‘Stanford did their screening program the same way every other hospital in the (San Francisco) Bay Area did it.'” (Pam Smith, “San Francisco Jury Awards Boy $70.9M”, The Recorder, Sept. 30; Barbara Feder Ostrow, “$70 million awarded for boy’s brain damage”, San Jose Mercury-News, Sept. 30; Bob Egelko, “Brain-damaged boy wins huge verdict”, San Francisco Chronicle, Sept. 30).
U.K.: Prison torturer must share award
“A former prison officer who became incensed after seeing ?75,000 awarded to the inmate responsible for torturing him during a jail siege has used the courts to claim back a share of the money. Malcolm Joyce pursued his action against Marvin Pomfret, 24, as a matter of principle, even though he knew he stood to gain only ?3,500.” Five years after Joyce was injured and held captive for twenty hours at a young offenders’ institution in Morpeth, Northumberland, “he was astonished to learn that one of his assailants, Marvin Pomfret, had won his claim against a local authority for failing to give him a ‘suitable’ education as a child,” a failure that allegedly contributed to the young offender’s later criminal career. (Nigel Bunyan, “Small compensation satisfies”, Daily Telegraph, Oct. 9).
New vs. Old Democrats on class actions
The Class Action Fairness Act, a version of which has already passed the House with White House support, may be brought to the floor of the Senate tomorrow, but Democratic leaders are saying they have enough votes lined up for a filibuster to prevent its passage (Jesse J. Holland, “Supporters looking for more votes to help class action legislation past filibuster”, AP/San Francisco Chronicle, Oct. 20; Helen Dewar, “GOP Pushes Vote to Curb Class-Action Suits”, Washington Post, Oct. 21; Heather Fleming Phillips, “Group tries to rein in lawsuits”, San Jose Mercury News, Oct. 21). If so it’s a shame, the more so as some of the most persuasive argumentation for the CAFA has come from New Democrat circles, especially from Walter Dellinger, solicitor general during the Clinton Administration, now a professor at Duke Law and partner at O’Melveny & Myers (home of our co-blogger Ted Frank). (“The Class Action Fairness Act”, Progressive Policy Institute, Mar. 11). “The states whose courts have honorably decided not to play class action games are, contrary to fundamental federalism principles, being forced to transfer authority over their citizens’ claims and the interpretation of their own laws to other states whose courts seem to have an insatiable appetite for such lawsuits,” according to Dellinger. See New Democrats Online, “Breakthrough in the Courts?”, Feb. 19; “Compromise on Class Action Reform”, May 1.
Damned if you do, damned if you don’t
You may have heard of the $100 million lawsuit filed by postal workers against US Postal Service officials for failing to evacuate the anthrax-contaminated Brentwood facility and to treat workers quickly enough. (Allan Lengel, “Postal Workers File Suit Over Handling of Anthrax Crisis”, Washington Post, Oct. 15). The press coverage universally fails to note that while two workers, Joseph P. Curseen, and Thomas J. Morris, Jr., died from anthrax, the lawsuit was filed on behalf of all 2200 workers in the facility, and none of the five named plaintiffs represent the families of the deceased or, though all the Brentwood postal workers were tested for the disease, allege that they contracted anthrax. Instead, they allege, vaguely, “anthrax-like symptoms” for which they wish to receive damages. (At the press conference, the lead lawyer apparently claimed that there are several other anthrax-linked deaths, a fact we’re sure the CDC would be curious to know even as it was being reported uncritically by the Washington Post.) At least some postal workers who actually contracted anthrax have already brought individual suits that won’t be affected by the class action. (Linell Smith, “More anthrax suits likely against Postal Service”, Baltimore Sun, Jan. 10; “Lawsuit Over Anthrax Death Settled”, Washington Post, Aug. 9, 2002). Again, this went unnoted by the press coverage, which focused on the postal workers who were harmed, rather than the claims of the named plaintiffs. Also less publicized is the fact that New Jersey postal workers are suing Bayer, claiming that they were injured because they took Cipro as a precaution against anthrax exposure, and requesting class action status. (“Postal Workers Sue Maker of Cipro”, AP, Oct. 19).
UPDATE, Oct. 24: Reader William Jones writes to point us to a recent study of Brentwood postal employees in a CDC publication that shows no additional mortality from the anthrax exposure beyond the deaths of Curseen and Morris. (K. Berry et al., “Follow-Up of Deaths Among U.S. Postal Service Workers Potentially Exposed to Bacillus anthracis — District of Columbia, 2001–2002”, Morbidity and Mortality Weekly Report, Oct. 3 ).