Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for December, 2013

Jahi McMath’s “routine tonsillectomy”

In the season’s highest-profile case of alleged medical negligence, 13-year-old Jahi McMath, described as suffering from sleep apnea, went in to Oakland Children’s Hospital for surgery. After the surgery she began bleeding profusely, went into cardiac arrest and suffered brain death.

A hundred press accounts have described the procedure McMath underwent as a “routine tonsillectomy.” Not so, according to Brandon Peters, M.D. at About.com:

There is a paucity of known facts in this situation. The family and their lawyer have released few specific details. Oakland Children’s Hospital, bound by the privacy restrictions of the Health Insurance Portability and Accountability Act (HIPAA), has offered even less. Jahi underwent three surgical procedures for the treatment of her sleep apnea. This included a tonsillectomy, uvulopalatopharyngoplasty (UPPP), and removal of nasal turbinates. Though initially described as a “routine tonsillectomy,” this degree of surgery in children is not routine. It is extensive. When performed on a child, the risk is high.

More here and on uvulopalatopharyngoplasty (or “UP3”) and its indications and risks here. It should be apparent that with the sparsity of facts agreed on it is still extremely early to begin speculating what went wrong in McMath’s case and what kind of medical negligence if any might have been involved. (& Alkon)

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Those New Year’s police checkpoints

Even if the cops wave you to the side amid flashing lights, and functionaries come out to ask you for saliva or blood samples, and keep asking after you say no, it’s all “voluntary.” Right? Right. “A recent Georgia appellate decision reversed a trial court that held the lights atop a police car were merely an invitation to chat rather than a command to stop, the refusal of which tended to produce death by a hail of gunfire.” [Amy Alkon, Scott Greenfield, earlier here, here, and, on “no-refusal” blood-draw DUI checkpoints, here]

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SCOTUS to consider software patents

More clarity, or even deeper confusion? The Supreme Court has agreed to revisit software patents in the case of Alice Corp. v. CLS International. “A system of property rights is flawed if no one can know what’s protected. That’s what happens when the government grants 20-year patents for vague software ideas in exchange for making the innovation public.” [Gordon Crovitz, WSJ, quoted at Marginal Revolution; Daniel Fisher, Forbes]

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Food roundup

  • Gee, thanks, NIH: “Taxpayer-Funded Propaganda to Show the ‘Evils’ of Private Alcohol Sales” [Michelle Minton, CEI]
  • “So this summer, under the supervision of officials from U.S. Customs, all three thousand two hundred and ninety-seven pounds of Mimolette were tossed into dumpsters and doused in bleach.” [The New Yorker, Dec. 9, subscription; S.F. Chronicle, earlier on French cheese controversy here, here, etc.]
  • FDA forced to back off FSMA regs, NYC soda ban loses twice in court, and other highlights of the year in food freedom [Baylen Linnekin] “Americans Think They Should Be Allowed to Buy Foods with Trans Fats and Caffeinated Energy Drinks” [Emily Ekins on new Reason-RUPE poll] “The Dangers of a Soda Tax” [Trevor Burrus] Linnekin podcast on FDA’s trans-fat ban [Cato, Caleb Brown interview]
  • “Annals of Closing Statements in Exploding Bottle Cases” [Kyle Graham]
  • “Minnesota says raw milk makes more people sick than recognized” [L.A. Times]
  • It’s for the children: proposals for regulating in-store food marketing [Jennifer Pomeranz via Public Citizen]
  • Federal sugar program devastated domestic candy manufacturing, as WaPo (sometimes) recognizes [Chris Edwards]

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Downfall of a California police-union law firm

Last year we linked a report about a series of unfortunate events that kept happening to elected officials in Costa Mesa, Calif. after they resisted negotiating demands from the city’s police union. One saw his supporters’ businesses harassed by cops, while another was picked up on a bogus DUI charge phoned in by a private eye with ties to an Upland, Calif. law firm, Lackie, Dammeier, McGill, and Ethir, known for extremely aggressive representation of police unions around California.

Now the Lackie, Dammeier firm is in turmoil following a raid on its offices by the Orange County District Attorney’s office. Former Costa Mesa councilman Jim Righeimer, target of the bogus DUI report, and council colleague Steve Mensinger have also alleged in a lawsuit that the law firm’s private investigator attached a GPS device to Mensinger’s car. Lawyers for the two believe the device allowed the investigator to trace the pair’s whereabouts to the bar, allowing for the called-in DUI report which failed when Righeimer produced evidence he had consumed only a couple of Diet Cokes. Mensinger “said the device was affixed to his car during the entire 2012 election season and came to his attention only when he was alerted by the Orange County district attorney’s office.” [L.A. Times, more] The Orange County Register reported: “Mensinger and Righeimer are strong supporters of reforming public pensions and privatizing some city services. … Besides Mensinger, [investigator Chris] Lanzillo is also suspected of following former El Monte City Manager Rene Bobadilla to his home in June 2011, according to a police report obtained by the Orange County Register.” And more recently: “Though they made no admissions, lawyers for the law firm and Lanzillo argued in court papers that placing a tracking device on Mensinger’s truck wouldn’t be an invasion of privacy.” The Costa Mesa police union, also named as a defendant, says in a separate filing that it wasn’t involved with any GPS-tracking plan. [Daily Pilot]

That’s not the only trouble facing the firm: “A statewide police defense fund is no longer sending [it cases] after a forensic audit uncovered triple-billing, bogus travel expenses and ‘serious acts of misconduct.'” [Orange County Register] According to press reports, the firm is in the course of dissolving.

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Most popular posts October-December 2013

Our most heavily trafficked post in October 2013 was “USPS To Destroy ‘Just Move’ Stamps Over Safety Concerns’” The most commented-on posts were “Update: $2.2 M verdict reinstated for client whose chair collapsed at law firm,” “A slippery slope to polygamy?” and the USPS post above.

November’s most clicked-on post was “San Rafael, Calif. passes own-home smoking ban.” The most commented-on posts were that post, “NYC: ‘Meet the seemingly unfirable female firefighter’,” and “FDA orders 23andMe to shut down home genome test.”

The most visited post in December was “Drunk driver will recover $6.6 million from two Pennsylvania bars.” (In fact, by being linked on Reddit, it brought us the highest number of visitors of any day in the site’s history, since moving onto WordPress at least.) The most commented-on posts, subject to change should there be some last-minute wave of comments, were “Megan McArdle: ‘Lead paint verdict sets dangerous precedent’,” “Liberty cake wrecks, cont’d,” and the drunk driver post above.

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Torts roundup

  • Bad lawsuit on bad theory: “Cantor Fitzgerald, American Airlines Settle 9/11 Lawsuit” [Financial Advisor mag]
  • New Jersey court: only golfer, not his companions, responsible for yelling “Fore” to warn of errant ball [TortsProf]
  • “The New Lawsuit Ecosystem: Trends, Targets and Players,” 158-page report for Chamber of Commerce, topics include emerging areas of litigation (food class actions, data privacy); also lists leading plaintiff’s lawyers in various areas [Chamber’s Institute for Legal Reform]
  • “Eleventh Circuit Stacks Deck Against Defendants in Never-Ending Engle Product Liability Litigation” [Cory Andrews, WLF]
  • Beck vs. Prof. Chemerinsky on prescription drugs and pre-emption [Drug and Device Law]
  • “Outrageous Court Decisions: O’Brien v. Muskin Corp.” [Schearer; above-ground pool dive defect claim, New Jersey 1983]
  • New York rejects medical monitoring cause of action [Behrens]

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Most popular posts July-September 2013

Our most heavily trafficked post in July 2013 was “Keep prosecuting until they get the result they want?” The most commented-on posts were that one, “Kickback allegations — and fountains of unearned cash — at the BP gulf spill fund” and “Imagine what a genuine malfunction might have cost.”

August’s most clicked-on post was “Shock! “Double Stuf Oreos Don’t Actually Have Double The Creme” (Update: co. denies)” The most commented-on posts were “Solomon wept: Baby Veronica decision followup“, the Oreos post, and “Can restaurants take your keys if you are intoxicated?”

The most visited post in September was “Boston Globe tackles attractiveness discrimination.” The most commented-on posts were “Just don’t call them quotas: disabled-hiring benchmarks for federal contractors“, the Boston Globe post above, and “The California disease.”

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Great moments in NIMBY-ism

A group in Iceland has sued to block construction of highway arguing (among other things) that it would disturb the ancient elves or “hidden folk” of the Icelandic countryside. “The group also claims the area the new highway would run through is of particular importance because it contains an elf church. A 2007 survey by the University of Iceland found that while only 8 percent of the population believe in elves, 54 percent would not actually deny their existence.” [PBS]

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Most popular posts April-June 2013

Our most heavily trafficked post in April 2013 was “Overlawyered: Now a Cato Institute blog.” The most commented-on posts were “Teen throws concrete onto highway, truck driver gravely injured“, “‘Lance Armstrong Lied, Cheated, Doped…’,” and “Great moments in law school outreach.” (Kathy Boudin at NYU)

May’s most clicked-on post was “Daily Caller fires a blank at Lois Lerner.” The most commented-on posts were “Government is simply the name for the things we do together…” (IRS targeting scandal), the Daily Caller post above, and “Liability for the Boston Marathon bombing?”

The most visited post in June was “Storming the homes of political enemies, cont’d.” The most commented-on posts were that one, “Goodbye to most unpaid internships?” and “It’s alive.” (John Edwards)

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