“A federal judge in Manhattan took the unusual step on Thursday of overturning settlements in four lawsuits filed on behalf of victims of the Sept. 11 attacks, saying the firm that negotiated the deals was seeking excessive legal fees and that the settlement amounts themselves were unreasonable.” Judge Alvin Hellerstein declared that to give the Maryland-based firm, Azrael, Gann & Franz $7 million for representing four Pentagon workers’ families “would reflect a very large windfall,” given that the firm’s “entire strategy seems to have been to coast on the work of others.” Hellerstein also noted that the settlement figures, averaging $7 million per victim, seemed out of line with earlier 9/11 awards for the families of modest wage earners. (Benjamin Weiser, “Judge Overturns Accords in 4 Suits by 9/11 Victims”, New York Times, Jul. 26). More: David Giacalone.
Archive for July, 2008
Spiraling damage awards
Not what you think, this is in Saudi Arabia:
“Tribes like to say, ‘We got this amount of money for a member of our tribe,’ ” he said. “People start to think the more money you can get for a member of your family, the more valuable your tribe is.”
And the defendant who doesn’t settle the case is executed. (Faiza Saleh Ambah, “Saudis Face Soaring Blood-Money Sums: Tribes, Families Are Demanding Millions”, Washington Post, Jul. 27).
“The trial bar goes on the offensive”
I’m quoted by Quin Hillyer in an Examiner story today about the dozens of bills pending in Congress that engage in tort deform–favors for the trial bar. The new Trial Lawyer Earmarks website does a marvelous job documenting most of the bills out there, though one wishes it would provide direct links to THOMAS rather than forcing one to engage in separate searches. (Mislink and misspelling corrected.)
Suit: your milkcrates were an attractive nuisance
15-year-old honor student and SADD member Lindsey Billman snuck out of a slumber party with three of her friends and had an alcohol-fueled night with two 18-year-old boys. Around 2:45 a.m., two boys and two girls had the clever idea of stacking milk crates to reach an air-conditioning unit that allowed them to clamber onto the roof of Anna S. Kuhl Elementary School. The two couples went to separate sides of the roof. Billman and Nicholas Moscatiello then had the further clever idea of doing whatever they were doing while sitting on a skylight, which didn’t support their weight, and the 33-foot-fall onto the gymnasium floor below killed Billman.
This is, alleges an Orange County, New York, suit filed by Lindsey’s parents, the fault of the school district and the city of Port Jervis, New York. After all, the district was “irresponsible” stacking milk crates by the school. A curious choice of words: out of the number of people irresponsible here, it seems to me that the district is at most a distant eighth. (Steve Sacco, “Parents suing Port Jervis, school in girl’s fatal fall through roof”, Times Herald-Record, Jul. 26; Adam Bosch, “1 teen dead, 1 critical in fall”, Times Herald-Record, Jan. 27). The attorney is Corey Stark, a 2001 law-school graduate in New York City who has single-handedly refuted the proposition that New York state needs more law schools. (Thought experiment: if the milk crates are an attractive nuisance, why isn’t the dairy liable?)
An interesting double-standard
Justinian Lane crows: Pfizer fined by an Australian trade group! Indeed it was; drug reps went off the reservation of what they were supposed to talk about without telling managers, and exaggerated the health effects of a competing drugs for personal profit. (Note that there was no need for a regulator or plaintiffs’ attorneys to get involved; this was entirely an Australian free-market self-policing arrangement through contractual agreements that fined Pfizer. Lane forgets to mention that part.)
Lane thinks this is a just result worth noting. So let us consider that trial lawyers do the same thing every day: lie about or exaggerate health effects of drugs for profit (just Google the name of any prescription drug to get a lawyer’s ad)–and without the intermediating effects of doctors to assess the claims and correctly inform patients, so it is clearly worse. But the lawyers do so with impunity, with no consequences for the adverse health effects on patients. (E.g., POL June 2007; POL Feb. 12.) There’s no private cause of action; and the trial bar and its professional organizations lionize such tactics, rather than punish them. All we can do is criticize plaintiffs’ lawyers for putting profits before people.
Volkswagen key class action
Two readers have written to alert us to this settlement (PDF), including frequent commenter Todd Rogers:
I received notice in the mail [this month] that I’m party to a class action suit against VW USA. I drive a Passat with a “Smart Key.” According to the suit, VW has been naughty because they did not make the key duplication apparatus available enough to locksmiths, third party key duplicators, and the like, in the event that I (we) want to make another key. What would my settlement be? I’m the benefactor of “greater communication” from VW USA.
What do you know…owners of Mercedes Benz suffered the same injury and it was the same firm, Lurie & Weiss, who helped make them whole, as well. Who’s next?
Objections and requests for exclusion must by filed by the end of August, and a fairness hearing is scheduled for Sept. 22 in the courtroom of the Hon. Audrey B. Collins in federal court in Los Angeles.
Problems with access to Overlawyered
We continue to hear reports, scattered and so far unexplained, from readers around the world who get an “unavailable” or “forbidden” message when they call up https://www.overlawyered.com in their browser. Thus some readers in Australia have no problem with access to the site, while others have reported that they are blocked; and we got a similarly inconsistent report the other day from New Zealand.
The Australian lawyer who writes the interesting blog Stumblng Tumblr writes to say that
I have outflanked the problem. I only regret that it took me so long to think of it. I use Bloglines and it permits me to choose how much of a feed I want to see in Bloglines itself. It finally occurred to me to change the setting for Overlawyered to show the full post in Bloglines in every case, rather than just a summary. That means that I don’t have to go to your site. I just read it all in Bloglines.
I’m very happy to be able to read Overlawyered again!
Med-mal: Massachusetts adopts “loss of a chance” doctrine
In a key victory for plaintiffs and their lawyers, the Massachusetts Supreme Court has for the first time adopted the “loss of a chance” doctrine, which allows plaintiffs to recover money without having to show that it was more likely than not that the charged medical negligence made the difference in their recovery or survival. (Denise Lavoie, “Doctor held liable for a ‘loss of chance'”, AP/Boston Globe, Jul. 24). When Medical Economics surveyed the field two years ago, they found that about half the states had accepted the more liberal doctrine, which runs counter to the Anglo-American “more likely than not” prerequisite for establishing causation. More on the inexact and contradictory standards used in such cases here.
Readers of this site will not be the least surprised to learn that American courts have shown little or no interest in extending the “loss of a chance” doctrine for the benefit of plaintiffs in legal malpractice cases filed against attorneys whose inattention might have (but probably didn’t) deprive their clients of a favorable outcome in court proceedings.
California trans fats: Terminator Nanny
Governor Schwarzenegger has signed into law the first statewide ban on the use of the maligned ingredient by restaurants and food service facilities. (Samantha Sondag, “Gov. signs nation’s first statewide ban on trans fats in restaurants”, San Francisco Chronicle, Jul. 25).
P.S. Speaking of the nanny state in California, Los Angeles is moving to ban new fast food restaurants from poorer sections of South Central L.A. on the explicitly paternalistic grounds that it knows better than local residents what they should be eating. Prof. Bainbridge has more.
Granite kitchen countertops
Apparently a few of the ones with exotic striations have enough radioactive mineral content that you might have to worry if you spent many of your waking hours strapped to them as to a hospital gurney. (Staying even a few inches away should be enough to lower the risk to pretty much zero, which is fortunate given that the posture most of us use while chopping celery does not involved prolonged whole-body contact.) Nonetheless, per a New York Times account yesterday that does little to discourage reader alarmism, “Personal injury lawyers are already advertising on the Web for clients who think they may have been injured by countertops.” (Kate Murphy, “What’s Lurking In Your Countertop?”, Jul. 24).
Let me be the first to predict that if such litigation has any future, it will not be in recovering large sums for the unprovable (because almost certainly nonexistent) toxic effects, but in $20,000 claims against insurers and contractors for rip-out and replacement*, which, in the usual circular fashion, will be stimulated by alarmist accounts like the one in the Times. And the predominant injury risk from a chunk of hewn granite will continue to be, as it has always been, being in the way when it drops.
*I’m not sure why people choose a countertop material that will dull their knives and chip their china, to say nothing of being cold and ungrateful to the touch. But that’s another topic.
P.S. The EPA has a statement (scroll).