Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for March, 2007

$11.7 M verdict against bystander doctor

A team of doctors at North Fulton Medical Center worked on Josh Coleman’s back surgery in 2003. Dr. Frank Puhalovich had a minor role: “he was only in the operating room for about 10 minutes making sure a technician properly hooked up a monitor that tracks nerve impulses along the spinal [cord] through electrodes attached to Coleman’s head and feet.” But after Puhalovich left, during surgery, the alarm went off: attorneys blame the surgeons’ failure to respond to the alarm in a timely fashion for Coleman’s paralysis. Coleman sued everyone involved, and all the doctors settled, except Puhalovich. So Coleman proceeded to trial against Puhalovich, blamed him also, and a jury awarded $11.7 million. The press coverage gives no indication what the theory of liability is against Puhalovich.

Joshua Coleman, sitting in a wheelchair next to his attorneys, Bill Stone and David Boone, smiled as the verdict was announced after the two-week civil trial.

“Josh is high as a kite right now,” Stone said. “He’s going to have a great weekend.”

(Beth Warren, “Paralyzed man awarded $11.7 million”, Atlanta Journal-Constitution, Mar. 24).

Update: Kevin, MD post with clever title Shotgun yields a jackpot.

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Bitten by sister’s cat

Flushing, Mich.: The $122,000 jury award should help balm Michael Sabo’s memory of the injury inflicted by the wanton Siamese, but for some reason the whole affair “has created tension between Sabo and his sister,” Jean Toney. (Mary K. Brunskill, “Court Awards Man $122,400 For Cat Bite”, All Headline News/NCBuy, Mar. 19; AP/CBC, Mar. 18).

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Ninth Circuit defends ADA filing mill, resuscitates Molski suit

We’ve had many stories on frequent filer Jared Molski, the vexatious litigant who has filed hundreds of ADA actions in the last five years, and his lawyer Thomas Frankovich, briefly suspended for related ethical violations. Today the Ninth Circuit came down with an opinion in the case of Molski v. M.J. Cable:

Molski, who is paraplegic, sued Cable’s for violations of the
Americans with Disabilities Act (“ADA”) and California’s
Unruh Civil Rights Act (“Unruh Act”), alleging that Cable’s
failed to accommodate the disabled. Although Molski provided
uncontradicted evidence that Cable’s did not identify
and remove architectural barriers, the jury returned a verdict
for the restaurant. The District Court denied Molski’s motion
for a new trial, speculating that the jury could have reasonably
concluded that because of Molski’s record of litigiousness, he
was a “business” and not an “individual” entitled to the
ADA’s protections. We reverse.

[…]

On cross examination, Molski acknowledged that: he did not complain
to any of Cable’s employees about his access problems; he
had filed 374 similar ADA lawsuits as of October 8, 2004;
Frankovich had filed 232 of the 374 lawsuits; even more lawsuits
had been filed since that date; Molski and Frankovich
averaged $4,000 for each case that settled; Molski did not pay
any fees to Frankovich; Molski maintained no employment
besides prosecuting ADA cases, despite his possession of a
law degree; Molski’s projected annual income from settlements
was $800,000; Molski executed blank verification
forms for Frankovich to submit with responses to interrogatories;
they had also filed lawsuits against two other restaurants
owned by Cable’s; they had filed a lawsuit against a nearby
restaurant; and Sarantschin obtained up to 95% of his income
from Frankovich’s firm for performing investigations for
ADA lawsuits.

The court acknowledges Molski’s notorious history as a vexatious litigant, but effectively holds that the ADA permits such strategies. That legal holding appears correct (the ability of professional litigants to extort small businesses is a statutory problem with the ADA and the Unruh Act that needs to be solved by the legislature, rather than by courts). But the jury could have chosen to disbelieve Molski’s testimony, given that Molski had the burden of proof and had substantial pecuniary motivation. The Ninth Circuit simply refuses to acknowledge this possibility in reversing the jury’s verdict. (It’s unclear whether testimony the restaurant vice president provided on cross-examination provides sufficient admissions to justify the appellate court’s decision; it is possible that this is the case.) Worse, in dicta in footnote 3, the Ninth Circuit suggests that it may have been improper for the defendants to have cross-examined Molski on his full-time litigation career because such evidence would have been “irrelevant.” (Via Bashman.)

Update: The On Point blog (sadly still missing permalinks, though now with an RSS feed) posts the trial court decision denying a new trial, which is less than absolutely persuasive.

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Coke Zero “lawsuit”

For a viral marketing campaign, Coca-Cola pranked its own in-house counsel by sending improvisational actors portraying brand-manager employees to attorneys asking if they could sue Coke Zero for tasting so much like Coca-Cola; the results are on a series of videos on YouTube. So far none of the victim lawyers have sued. (Janet Conley, “Frivolous litigation: How Coke ‘punk’d’ its lawyers”, Daily Report, Mar. 23 (via BLT)).

Perhaps related: Mar. 6.

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Like rain on your wedding day

Recently, I left a comment on the Bizarro-Overlawyered website commenting on the Milberg Weiss Fellow’s appallingly dishonest misrepresentation of a Walter Olson column, reprinted on two or three other left-wing websites and still not retracted, though Milberg Weiss Fellow Cyrus Dugger has had time to write over a dozen other posts since then. The comment has not been posted.

Fair enough: it’s their website, and they’re entitled to slant their comments section so that critical comments are not posted, and I could use all the disincentives I can get not to waste time in comments sections of other blogs. But I find it quite amusing that this policy is engaged in by a website that (1) threw a veritable tantrum because we stopped posting obsolete trackbacks and accused us of censorship because we wouldn’t let Justinian Lane monopolize the comments section with off-topic comments and (2) cares more about hypocrisy than actual wrongdoing.

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One Big Happy Family

No, this case isn’t going to get messy: in 2004, a Long Island couple went to a fertility clinic to help them get pregnant with a biological child. Apparently, the clinic botched the procedure by using the wrong sperm (Oops!); the couple figured it out when they noticed that the child was black and they weren’t.

So they sued the clinic for malpractice and infliction of emotional distress. (Just for good measure, they sued their obstetrician, who had nothing whatsoever to do with the actual fertilization; the court dismissed that claim. Gee, I wonder why medical malpractice insurance rates are so high.) The court rejected the emotional distress claim, ruling that (as most courts do) a baby being born is not an injury to the parents, but it allowed the malpractice claim to proceed.

Speaking of emotional distress, the judge handling the case quoted the parents as saying things every child wants to hear from her parents:

“[W]e are reminded of this terrible mistake each and every time we look at her.”

and

“We are conscious of and distressed by this mistake each and every time we appear in public.”

Read On…

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There’s no such thing as cheap litigation

In response to my post below about inadequate sanctions in the Econo Lodge case, Stephanie Mencimer asks how the costs of frivolous litigation can be so oppressive, how it can cost millions of dollars to defend against them, given that — in her view — the defendants can just hire paralegals to prepare boilerplate responses.

Well — as Ted points out in the comments to her post — I had said “thousands,” not “millions.” But the bigger problem with what she wrote is that she dramatically underestimates the burden and cost of litigation. We’ll put aside the fact that her proposal — to have paralegals file boilerplate responses — would constitute legal malpractice on the part of the defense attorney. Of course it’s cheaper when cases can be decided (as Mencimer suggests) “with no discovery, no depositions and apparently not even a court appearance” — although it’s not clear from the Econo Lodge case that in fact there were no court appearances. But other cases, even ones that are completely meritless, require a lot more before the defendant can be vindicated.

Case in point: Kinderstart v. Google. The complaint was yet another attempt to sue Google over its rankings of web pages for search results. (Another suit along those same lines: Mar 1) Only part of the case was frivolous (the federal judge awarded sanctions against the plaintiff on two points (PDF of sanctions decision), but the entire case was meritless, as the court ruled (PDF). Google is a private business, and the courts keep rejecting the notion that lawyers should decide how Google can rank websites. Every claim made by Kinderstart was resoundingly rejected; Eric Goldman has the gory details.

But even though the case was dismissed before discovery even began, that didn’t make it — contrary to the beliefs of so many anti-tort reformers such as Mencimer — quick. In fact, it took a full year to dismiss the case (and there’s always the possibility of appeal). So why, if it was such a loser, did it take so long? Because after the court dismissed it the first time, the judge allowed the plaintiffs to amend the complaint; in all there three versions of the complaint filed. Google had to respond to each one, and there were in-court hearings each time Google moved to dismiss the case. Google also had to file an anti-SLAPP motion, a motion to strike the complaint, and a motion for sanctions.

Google “won” this case, and even won a yet-to-be-calculated sanctions award. But in the end, it took a year and Google spent, conservatively, tens of thousands of dollars to do it, even without discovery. Now, I don’t expect every non-lawyer to realize how long and expensive the legal process is — but Mencimer holds herself out as a pundit on tort reform; you’d think she’d have a little more of a sense of how the system works.

(Previous mention of this case, Oct. 2006.)

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Government rules raising litigation costs

Todd Zywicki posts at the Volokh Conspiracy on the issue of professional licensing as a form of economic protectionism; the comment section quickly turns to the issue of attorney licensing. Eliminating lawyer licensing might be one way to lower the costs of litigation; another way would be to allow “unbundling” of lawyer services — to allow lawyers to provide some services to litigants but not full service representation. (For instance, allowing lawyers to provide research and prepare papers on behalf of litigants, but not to go into court.)

The current legal system is hostile to such an approach, however. On Wednesday, a Federal magistrate judge ruled that a New Jersey lawyer violated ethics rules when he “ghostwrote” pleadings on behalf of a pro-se litigant:

First and foremost, she said, courts generally construe pro se litigants’ pleadings liberally and are more flexible in applying procedural rules. “Simply stated, courts often act as referees charged with ensuring a fair fight,” she said. “This becomes an obvious problem when the Court is giving extra latitude to a purported pro se litigant who is receiving secret professional help.”

[…]

As for the societal benefits of unbundled services, Bongiovanni remarked, “This is not to say that this court does not believe that unbundled legal services, in some form, may be beneficial to the equal administration of justice. But, when viewed under the current RPC, ghostwriting is antithetical to the public interest.”

Bongiovanni ordered that Shapiro enter an appearance by March 30 if he wants to represent Delso, or else cease communicating with her about the case.

The problem, according to the judge, was that the lawyer’s assistance to the litigant wasn’t disclosed to the court. You may wonder why they didn’t just disclose it; the reason likely was because disclosing it could unravel the whole non-full service scheme, and force the attorney to represent the litigant in court.

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March 23 roundup

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