Updates – May 31

Updating a couple of stories recently covered here on Overlawyered:

  • First rule of damage control: when you’re in a hole, stop digging. A few weeks ago, we mentioned the West Virginia Attorney General Medicaid scandal (May 19) in which AG Darrell McGraw took it upon himself to spend state funds that he had recovered from Purdue Pharma after suing them for selling Oxycontin. This upset both the federal government, which argues that it has a legal right to some of these funds, and the state legislature, which felt that it should decide how to appropriate state funds. McGraw appears unapologetic and unworried about the federal investigation, but his office did promise the legislature that he would stop spending money. Now LegalNewsline reports that he’s going back on that promise:

    Despite promises and a federal investigation, West Virginia Attorney General Darrell McGraw on Wednesday handed out even more of the settlement funds gained in a 2004 agreement with Purdue Pharma.

    McGraw gave $75,000 to the Kanawha Valley Fellowship Home, which will use the money for its drug treatment and education program. He says the program will affect 20 counties.

    The real problem here is not that the state legislature is annoyed — that’s local politics. The real problem is that if the federal government decides that it is entitled to a share of this money, the state is going to have to come up with millions of dollars to give to the federal government — money that McGraw already spent.

  • Three weeks ago, we noted that a prominent anonymous medical blogger, “Flea,” was liveblogging his malpractice trial, and we discussed the ramifications for Flea’s case. A few hours after we posted about this, Flea stopped — presumably after his attorney had a fit. But apparently that was at least a few hours, or a few weeks, too late; Flea had left enough clues to enable the plaintiff’s lawyer to figure out that Flea is Robert Lindeman, and she questioned him about it on the stand:

    With the jury looking on in puzzlement, Lindeman admitted that he was, in fact, Flea.

    The next morning, on May 15, he agreed to pay what members of Boston’s tight-knit legal community describe as a substantial settlement — case closed.

    The Globe also quotes a trial lawyer as claiming that the plaintiff’s attorney “had telegraphed that she was ready to share Lindeman’s blog — containing his unvarnished views of lawyers, jurors, and the legal process — with the jury,” although it’s not clear to me how his views of lawyers, jurors, and the legal process would be relevant to a medical-malpractice case.

    Incidentally, Flea’s blog is apparently now totally kaput.

11 Comments

  • I have a copy of Flea’s blog, thanks to my RSS reader: http://marklyon.org/drflearss.pdf.

  • The Flea is squashed. Ouch. What a story. I should mention that Overlawyered commenters were correct in their prediction of what could happen.

  • although it’s not clear to me how his views of lawyers, jurors, and the legal process would be relevant to a medical-malpractice case.

    I didn’t follow Flea’s blog while it was up but, according to the press coverage, he apparently blogged about how his lawyers prepared him to testify. Blogging about that would arguably waive the attorney-client privilege and open him up to cross-examination about those prep sessions. That cross-examination would be relevant and might be quite harmful.

  • Elliot: I understand the theory that some of his posts may have waived attorney-client privilege on some issues… but they didn’t waive the relevancy objection. Questions about the advice the jury consultant gave him might speak to credibility if the judge is feeling generous, but Flea’s opinions of the jurors simply aren’t relevant to a malpractice claim. (And even if they were, the questions would likely be so grossly prejudicial as to outweigh any probative value.)

  • I consider this to be a major indictment of the civil judicial system in this country. It appears that “Flea” didn’t settle based on an objective standard of culpability, but on entirely superficial matters. Worse, it creates the perception, rightly or wrongly, that the legal community circled the wagons and tossed this scoflaw overboard for daring to expose their charade for what it is.

  • What irritates me about this case is that it was not settled on the merits. Flea’s poor judgment notwithstanding, a few dumb blog posts should not be the criteria upon which justice is dispensed. I know that seems naive, but it is nonetheless true.

  • When I was involved with a case I was told to discuss it with NO ONE.
    Unfortunately I had PTSD for unrelated reasons and I had to discuss the stress with my therapist. I also had to discuss my stress with my family. Alternative? Discuss with no one and have a nervous breakdown. So I did discuss the problems with my therapist and my father. I would have loved to see some lawyer get my 85 year old father with advanced Parkinson’s Disease on the stand and grill him as to what I talked to him about. He wasn’t one to curse, but I bet he would have had a few choice words for the plaintiff’s lawyer. What are they going to do, throw a crippled 85 yr old doctor into jail for contempt?
    Fortunately, there was a settlement which did not involve me.
    Of course, none of this has any relationship to the facts as to who is responsible. Surprise, surprise.

  • I think David’s probably right about the relevance problem of pure trial-prep material. I suppose there could be something in the blog or the comments that appears to suggest that the doctor was being prepped not to be fully truthful, but that seems unlikely. Also, there may have been some exchange in the comments to the blog that touched upon the substance of the case. Or there could have been some earlier blog entry that was not trial-related but touched upon an arguably relevant issue, like the doctor’s practice habits in general. All this is sheer speculation, of course.

  • “I consider this to be a major indictment of the civil judicial system in this country. It appears that “Flea” didn’t settle based on an objective standard of culpability, but on entirely superficial matters.”

    Joe, I have bad news for you. That’s not an indictment of the civil justice system. That IS the civil justice system.

  • What David Wilson said, +1.