Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for December, 2006

“Blaming cars in California”

Steve Chapman on attorney general Lockyer’s suit against automakers for facilitating carbon emissions:

So serious is the harm from this conduct that Lockyer wants automakers to … keep doing it. The usual remedy for a public nuisance–say, someone in a residential neighborhood holding raucous parties every night till dawn, or letting vicious dogs run loose–is to stop it. But the state doesn’t propose that they quit selling their products to Californians or switch to zero-emission cars. Instead, it asks the manufacturers to turn over large sums of money while continuing to commit their terrible wrongs.

That should be a clue to something Lockyer passes over: While cars may have drawbacks, they also have benefits, and most people would not be willing to give up those benefits or pay a lot more to enjoy them. That combination of virtues and vices makes autos well-suited to regulations reflecting a democratic consensus, and a poor candidate for control by the courts.

Read the whole thing (Chicago Tribune, Dec. 21).

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Oh, Snap! The Cold Claws of Justice Close on Fraudulent Work Comp Claimant

Via Insurance Journal (Dec. 21), the story of William Fennelly, now sentenced to seven months in jail for perjury committed in support of a fraudulent workers’ compensation claim. 

Fennelly claimed to have been totally incapacitated by an on the job back injury, and was collecting benefits from Maine Employers Mutual Insurance Company [MEMIC].  At the same time that he maintained he was unable to work, Fennelly was busily toiling away and collecting wages from several employers as a lobsterman.

As investigators trawled deeper, the truth got murkier.  Not only was Fennelly commercial fishing while collecting workers’ compensation, he was also employed at the Town of Lamoine Transfer Station and earned wages as a sternman aboard another boat — none of which he report to MEMIC, which he was obligated to do by Maine law.

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Under oath, he repeatedly denied working.  When confronted with Trenton Bridge Lobster Pound records, he said he didn’t make ‘one penny’ and declared he only drove the boat to train an apprentice.  He then testified there was no way to prove earnings because he did not have a bank account due to back child support that he owed.

When a subpoena turned up two bank accounts, one with deposited checks from the lobster pound, a new story of fronting the apprentice with workers’ comp money for bait unfolded.  But Fennelly had no answer as to why he deposited a Trenton Bridge check, a MEMIC check and a Town of Lamoine check all on the same day.  And evidence to confirm the apprenticeship story never materialized.

Note that Fennelly was witholding support payments at the same time he lied to the insurer.  An all around upstanding citizen and now a guest of the State, tangled in the net of his own deceptions.

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“So, Probably I’ll Sue Her, Because It Would Be Fun”

In many if not most cases, lawsuits that are held up to scorn on this site are filed by people who, in their heart of hearts and however misguidedly, believe in the justice of their cause.   Those people can and should be criticized when their cause is misguided, or when it camouflages some other agenda, or when their only real impact is the introduction of unjustified costs, frictions, and obstacles in to the path of valuable and legitimate economic or creative activity (not to mention the unjustified enrichment of a small class of my fellow attorneys). 

Worse than these, though, in many ways, are wealthy and/or powerful egotists who use the legal system on a whim, as their personal payback mechanism or as a means of venting their pettiest grievances.   At the risk of fatally lowering the tone of Overlawyered and of prematurely ending my tenure as a guestblogger, I note the latest example, a tiff between two deeply unpleasant but inescapable self-anointed celebrities: Rosie O’Donnell and Donald Trump (MSNBC, "Trump to Rosie O’Donnell: You’re sued!", Dec. 21).

Earlier this afternoon Trump announced he is filing suit against the TV talk show host. ‘She says things that come to her mouth, she’s not smart, she’s crude, she’s ignorant and to be honest I look forward to suing Rosie,’ he told our cameras. ‘I’m gonna sue her and I look forward to it.  She’s really very dangerous for the show.’

Trump declined to elaborate on the details of his proposed legal filings, but added O’Donnell will understand his reasoning.  ‘Rosie will find out what we’re suing her for.  She knows what we’re suing her for,’ he said adding the lawsuit is already in the works.  ‘It’s something I look very forward to,’ he added.

If ever there was a case for "loser pays," this is it.   Trouble is, with relentlessly meaningless suits like this one gumming up the works, we’re all the losers.

Of Related Interest: The scurrilous Los Angeles gossip site, Defamer, has the Trump video from which I have drawn the post title (Dec. 20).   Not that I would recommend watching it, of course.

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December 20 roundup

  • The part of the Zyprexa story the New York Times didn’t tell you. [Point of Law; relatedly, Childs]
  • 10-2 DC City Council vote: DC businesses who don’t want to hire a “rehabilitated” convicted sex offender to work with children (or DC residents who don’t want to rent a room to one) can now be sued for punitive damages. WaPo doesn’t think this worth mentioning in the newspaper. Thanks, Marion Barry, for making my Arlington condo worth more money! [Open Market blog]
  • Of course, not all convicted sex offenders are equal, as the case of a 17-year-old who had consensual oral sex with a 15-year-old shows. That ten-year prison conviction (without parole) would have been a misdemeanor if he had just had intercourse and gotten her pregnant. [Bashman roundup; Volokh; Berman]
  • Tradeoffs and scarcity: why medical safety isn’t as easy as it seems. [Point of Law; Kevin MD]
  • Jury’s lack of smoking break not reason to undo death penalty. [AP/law.com]
  • I know I stocked up on Sudafed when they changed the law. It’s worse for allergy sufferers with kids below 18. [WQAD; Fisher @ WaPo]
  • Murnane on the judicial hellholes report. [Illinois Justice]
  • Remember when those left-wing groups tell you about how profitable insurance companies are, and thus need more regulation? They somehow forget the most highly regulated category, Florida homeowners’ insurance. Which, not coincidentally, is high-priced, loses money, and increasingly taxpayer subsidized as private industry flees. [Risk Prof]
  • “We’re trying to figure out what changes we can make, short of putting up signs saying, ‘Don’t put your baby through the X-ray machine.'” [LA Times]
  • Blogger doc: $4M/breast is too high, even in Florida [Docsurg]
  • No, a semicolon in your middle name doesn’t grant you magical legal properties. [Above the Law]
  • Word limits and law school exams. [Above the Law]
  • Milton Friedman and General Pinochet. [Reason]
  • “This is the painful part,” he said. “Sometimes you do everything right in neurosurgery and the patient doesn’t do well.” No lawsuits in this story, just interesting medicine. [NYT]
  • With only 17 “fascinating”s in 3.5 years, Overlawyered is more selective than Volokh or Prawfsblawg. [Still Angry]
  • Overlawyered and Walter get a shout-out in an article about the top ten insurance cases of the year. [Mealey’s]

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Oklahoma Supreme Court Eliminates “Affidavit of Merit” Requirement in Med Mal Cases

The Oklahoma legislature, following the lead of a number of other states, attempted to limit unfounded claims for medical malpractice by mandating that all med mal suits be accompanied by an expert’s affidavit stating the expert’s opinion that the claim possesses merit.  The Oklahoma Supreme Court has now declared that requirement to be unconstitutional.  (See Business Insurance, "Okla. Expert Opinion Law Rules Unconstitutional", Dec. 20).

The Court states two grounds for its conclusion. First, the Oklahoma Constitution bars the legislature from adopting "special laws" in which different members of the same class are treated differently.  The Court concludes that the affidavit of merit requirement distinguishes medical negligence claims from all other negligence claims, in violation of the "special law" prohibition.  Second, the Court concludes that requiring potential med mal plaintiffs to bear the expense of obtaining a medical expert’s pre-litigation opinion — the Court estimates it to be between $500 to $5,000 — creates an economic bar at the courthouse door that impedes less wealthy claimants’ access to redress, thus depriving them of due process of law.

The court’s opinion in Monica B. Zeier vs. Zimmer Inc. and Theron S. Nichols, M.D., Oklahoma Supreme Court, No. 102472 (Decided Dec. 19, 2006) — which is not quite final and official as of this writing — is accessible through the Court’s website, here.

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