ARCHIVE -- APRIL 2003
April 10-13 --
Posting slowdown. Updates will be sparse for a while as
our editor responds to a family emergency. See you, most likely,
early next week. (DURABLE LINK)
April 10-13 --
Public Citizen's bogus numbers. The supposed consumer
group now concedes that it put out erroneous numbers which made Pennsylvania
doctors look artificially bad ("Watchdog group backs off claim that Pa.
doctors top nation's repeat malpractice payouts", AP/Scranton Times,
2; see our Mar. 15-16 report). In January,
in a move timed to undercut President Bush's Scranton speech calling for
reform, Public Citizen claimed that 10.6 percent of Keystone State
doctors had paid out on more than one malpractice allegation; it now admits
it can verify only a figure of 5.4 percent. The false numbers were
widely reported in the press, and the AP last week published an unusual
correction (AP/Kansas City Star,
4). Pennsylvania Medical Society spokesman Chuck Moran called for Public
Citizen to apologize: "It's ironic that they initiated a report called
'Medical Misdiagnosis: challenging the malpractice claims of the doctor's
lobby', when, in fact, they are the ones that misdiagnosed the situation."
The accuracy of the group's figures have also been challenged in Colorado
("Monitoring malpractice" (editorial), Denver Post, Mar.
There is at any rate a more fundamental problem with the litigation
lobby's contention that the current crisis is caused by a small number
of bad doctors who attract most malpractice suits and should simply be
driven out of practice. As Binghamton, N.Y. neurologist Dr. Jeffrey
Riben points out, the number of malpractice lawsuits doctors face often
have less to do with their competence than with their specialty and geographic
location. "If you look around at physicians that get sued a lot, they tend
to be highly prestigious names, people who get difficult cases in difficult
specialties where the results are predestined not to be as good as those
of people who handle simpler cases, Riben said. 'Those are the people who
have litigation. So it you want to eliminate those people with multiple
suits, you would have to eliminate all of our neurosurgeons, all of our
orthopedic surgeons, all of our obstetricians, anybody working in an emergency
room and everybody reading mammograms,' he said. 'I think you would agree
if we eliminated those specialties we would not improve health care.'"
(Eric Durr, "Docs, public interest groups battle over malpractice issues",
Albany Business Review, Mar.
14). (DURABLE LINK)
April 10-13 --
Employers liable for not filtering raunchy spam? At least
if workers have complained, employers may be at risk of liability under
harassment law if they fail to install blocking software on email inboxes,
say various legal experts. Quotes our editor (Declan McCullagh, "Por
nspam: Are employers liable?", CNET News, Apr.
April 10-13 --
Best and worst state courts for business. The U.S. Chamber
of Commerce releases the results of a detailed Harris poll of business
respondents. The "top five states today as evaluated by corporate
America at doing the best job at creating a fair and reasonable litigation
environment are: Delaware, Nebraska, Iowa, South Dakota, and Indiana whereas
in 2002 Delaware, Virginia, Washington, Kansas, and Iowa were listed as
the top 5. The worst perceived states today are: Mississippi, West
Virginia, Alabama, Louisiana, and Texas, exactly the same as in 2002."
California scores low marks for punitive damages and treatment of class
actions; Hawaii is criticized for onerous discovery and the difficulty
of getting weak cases thrown out quickly; New York and Minnesota win plaudits
for their handling of scientific and technical evidence. Where does
your state rank? (overview)
release in PDF format) (poll
results as Word document) (press
conference) (DURABLE LINK)
April 9 -- Schools
roundup. In Camden, N.J., second grade teacher Eileen
Blau has sued student Daniel Allen for running into her in a school
hallway at an "excessive rate of speed", thus inflicting "severe and multiple
injuries, some of which are permanent in nature," according to her suit.
Young Allen, who at the time of the incident was 11 and weighed about 90
pounds, didn't know his family was the target of a claim until the sheriff's
deputy showed up at the door. "He didn't understand why someone would
want to do this to him," said his mother. "He said 'Why does she hate me?
Why is she doing this. I said I was sorry.'" (Bill Duhart, "Teacher sues
student over hall collision", Cherry Hill, N.J., Courier-Post, Mar.
29). The American Bar Association Journal presents an
overview of suits arising when girls aren't picked for the cheerleading
squad (Stephanie Francis Cahill, "Bring It On", Apr.
4; see Jun. 4, 2001). And
"[a] group of attorneys who sued Mississippi schools for millions of dollars
on behalf of custodians, bus drivers and cafeteria workers has turned to
Alabama, filing more than 60 similar lawsuits". (Scott Parrott, "Local
school systems sued", Tuscaloosa News,
4). More on the Jackson, Miss.-based School Litigation Group, which
according to one of its principals, former congressman and secretary of
agriculture Mike Espy, "takes a contingency fee of between 40 percent and
50 percent, depending on the complexity of the case": Gary Young, "Overtime
Suits 101", National Law Journal, Mar.
19. (DURABLE LINK)
April 7-8 -- Bag
of treasures. Cornell Curry, 57 and homeless in New York
City, says the Partnership for the Homeless's drop-in center on W. 23rd
St. negligently lost a duffel bag of his belongings last fall; he had been
unable to stop by to retrieve the belongings because he was spending three
weeks in jail after being arrested for public urination. The shelter
"admits it did toss one of Curry's bags in the garbage, but said that one
contained only three soiled pieces of clothing." Au contraire,
says Curry in his lawsuit: he avers that the contents of the lost duffel
bag included "an $18,000 star sapphire ring, a $4,000 gold watch, $200
in cash and 'extremely valuable' photographs, including his parents' 1937
wedding photo", entitling him to $2 million in compensatory and $2 million
in punitive damages. Last month Manhattan Supreme Court Justice Rosalyn
Richter denied a motion to throw out the claim: "It is simply too early
to resolve whether the plaintiff did, in fact, leave the bag in the defendant's
possession and whether the plaintiff also shares some responsibility for
the alleged loss," Richter said. (Helen Peterson, "Homeless, or Mister
money bag?", New York Daily News, Mar.
20). (DURABLE LINK)
April 7-8 -- Malpractice
crisis hits sports-team docs. Some of organized sports'
most memorable highlights have come when athletes played through pain and
injury, but increasingly the result is to create a risk of litigation against
team physicians, who are exposed
to monetary damages that are potentially enormous given their patients'
potential loss of earning power. Some doctors are withdrawing from
the care of professional athletes, and organized football is discussing
schemes to indemnify team doctors for their escalating insurance bills.
(Jason Cole, "With malpractice rates skyrocketing, many doctors are hesitant
to care for professional athletes", Miami Herald, Apr.
2). Our editor's Feb. 27 Wall Street Journal piece on lawsuits
blaming obstetricians for cerebral palsy is now
online, thanks to the folks at Texans for Lawsuit Reform. And
from Sydney Smith's excellent medical weblog MedPundit,
which has run posts in recent weeks on California's
MICRA and insurance rates, what
happens to patients who win awards (plus North Carolina crisis notes),
problem with physician "report cards", Public
Citizen, and a link to this Tallahassee Democrat op-ed (Mar.
3) on how Florida's malpractice crisis is harming its medical schools.
April 7-8 -- Edwards
leads in fund-raising. The North
Carolina senator aces his Democratic rivals in the White House money
race: "The key to Edwards' success may have come from trial lawyers, a
group of which Edwards is a part and from whom he received 80 percent of
political action committee money in recent years." ("Dem Presidential
Hopefuls Compete for Cash", FoxNews.com, Apr.
2; Richard A. Oppel, Jr., "With $7 Million in Donations, Kerry Trails
Democratic Rival", New York Times, Apr.
3). However, a January poll conducted for the Raleigh News
& Observer found the senator none too popular in his home state:
"The poll found that 47 percent of active Tar Heel voters disapprove of
Edwards' decision to seek the presidency, while 37 percent approve".
("Poll: Edwards wouldn't beat Bush in North Carolina", AP/Charlotte Observer,
18) (via "Robert
Musil"). (DURABLE LINK)
April 7-8 -- U.K.:
"Killer wrongly sacked for axe attack". "A convicted
murderer who tried to attack a colleague with an axe was wrongly sacked
from his job, an employment tribunal
ruled yesterday." The tribunal in the British Midlands ruled that
Preston city council was wrong to fire James Robertson, 50, without notice
from his health inspector post after he "brandished the [axe] in an Indian
restaurant in Preston after an argument". However, the tribunal ordered
the council to pay only "two weeks' wages, or £807, for breach of
contract," rejecting a plea for more extensive compensation by Robertson,
who "gave evidence while handcuffed to a prison guard." The council
"had employed him when he was released from jail on licence after being
convicted of kicking a man to death in Glasgow in 1971." (Daily
3) (& welcome Dave Barry readers -- the great humorist generously
calls us "the always fascinating Overlawyered.com" (archives not working,
7)). (DURABLE LINK)
April 4-6 -- Gun
lawsuit preemption moves forward. On Wednesday a House
Judiciary subcommittee held a hearing on H.R. 1036, the Protection of Lawful
Commerce in Arms Act, which would “prohibit civil liability actions from
being brought or continued against manufacturers, distributors, dealers,
or importers of firearms or ammunition
for damages resulting from the misuse of their products by others.” Our
editor testified in favor of the measure (his prepared statement).
The proceedings were televised live on C-SPAN III and rebroadcast overnight
on C-SPAN II (schedule, Apr.
2). Yesterday the full House Judiciary Committee gave its approval
to the legislation, with Virginia Democrat Rick Boucher joining all panel
Republicans in support of the measure. John Tierney's New York Times
account ("A New Push to Grant Gun Industry Immunity From Suits", Apr.
4) quotes our editor on the subject and mentions The Rule of Lawyers
(see second page of article). (DURABLE
April 4-6 -- C-SPAN
again. Speaking of C-SPAN II, the network's "BookTV" feature
will be rebroadcasting our editor's Manhattan Institute speech on The
Rule of Lawyers at 3:30 p.m.
Eastern on Saturday, April 5. (DURABLE
April 4-6 -- A
bond too far. Even the editorialists of the New York Times
agree that it's "absurd" and "the kind of ruling that erodes the credibility
of our legal system" to require Philip Morris to post a ruinous $12 billion
bond before it can appeal the class action ruling of a judge in plaintiff-friendly
Madison County, Ill. ("Too Costly an Appeal", New York Times, Apr.
4)(see Wednesday's post; more).
"As for Judge [Nicholas] Byron, it's difficult to divine if he was playing
jurist or friendly croupier. He sought to sweeten the pot by awarding the
State of Illinois $3 billion in punitive damages, out of the total $10.1
billion judgment." ("A Madison County jackpot", Chicago Tribune,
2). Perhaps influenced by the prospect that the state will be
thrown this slice of the booty, the Illinois Senate is refusing (for now)
to lift a finger to reduce the bonding requirement ("Panel nixes bill to
help Philip Morris", Chicago Sun-Times, Apr.
4)(Update Apr. 30: judge agrees
to reduce bond somewhat). (DURABLE
April 2-3 -- Appeals
bonds, again. Once again the business end of an otherwise
outlandish mega-verdict turns out to be the requirement that a defendant
post a bond before it can appeal: Philip Morris says it is unable to put
up the requisite $12 billion needed to appeal the recent Madison County,
Ill, verdict against it (see Mar. 24).
Officials of the fifty states are running around in near-hysteria: they're
bothered not by the possible injustice or community-and-investor disruption
involved in bankrupting the giant company, whose holdings include Kraft
Foods and Oscar Mayer, but instead by the prospect that an insolvency will
jeopardize the flow of billions of dollars into their own coffers under
the tobacco settlement. So
the AGs, supposedly second to none in their loathing of the tobacco companies,
are making noises about intervening to try to get the appeals bond requirement
lowered. This is the second time around (at least) for this issue:
state governments also mobilized after the Engle tobacco case in
Florida threatened bonding requirements high enough to destroy the industry.
See also the Loewen
case (Ameet Sachdev, "States line up against smoking case bond", Chicago
1; Neil Buckley, "Philip Morris 'cannot afford' $12bn bond", Financial
1; "Philip Morris woes hurt stock", AP/Seattle Times, Apr.
1; "Appeals bond a symptom of need for tort reform", Bloomington (Ill.)
April 2-3 -- After
the R.I. club fire. "Ignoring calls from peers to hold
off on lawsuits for now, a Providence lawyer [earlier this month] fired
the second salvo in what is expected to become a barrage of litigation
resulting from the fire at The Station. The lawsuit was filed in
Providence Superior Court on behalf of Lisa Kelly of Swansea, a 27-year-old
single mom who was among the 99 people killed in the Feb. 20 blaze at the
West Warwick, R.I., nightclub. The lawsuit was filed by Ronald Kingsley,
the father of Kelly's daughter, Zoe Jean Kingsley. Kelly's mother, Barbara
Nagle of Attleboro, yesterday said she knew nothing about the suit and
that Kingsley hadn't had any contact with his daughter in three years as
far as she knew....
"The latest lawsuit names 19 individuals and companies as defendants,
including the St. Louis-based beer giant Anheuser-Busch Inc., whose Budweiser
brand accompanied some advertising for the ill-fated show. Anheuser-Busch
Inc. yesterday denied any role in promoting or sponsoring the concert in
a statement sent to the Herald. 'The company that distributes Anheuser-Busch
Inc. products in Rhode Island is an independent business that has the right
to use our beer brand name in its advertising,' wrote Stephen Lambright,
a company lawyer." (Thomas Caywood, "Second suit filed over fire at Station",
11)(see Mar. 10-11). See also Roger Parloff;
"Where There's Smoke, There's Ire", Fortune, Mar.
19; Deroy Murdock, "Lawyers turn tragedy to farce", Scripps Howard/Naples,
Fla. Daily News, Mar.
28. (DURABLE LINK)
April 2-3 -- "Mayor:
WTC Personal Injury Suits Could Bankrupt NYC". "New York
City Mayor Michael Bloomberg on Monday warned that personal injury lawsuits
filed by people who claim their long-term health was damaged by the clean-up
of the World Trade Center site could bankrupt the city in the next 20 years."
31). See also Paul Howard (Manhattan Institute), "A 9/11 Tort-Fest",
New York Post, Aug.
10, 2002, and New York Law Journal coverage: Mark Hamblett,
"9/11 Victims' Suits Flood Court to Meet One-Year Time Limit", Sept.
11; Tom Perrotta, "New York City Creates Unit for Suits From Sept.
12; Daniel Wise, "Sept. 11 Fund Master Found to Give 'Fair Compensation'",
April 1 -- Maybe
crime pays dept.: not an April Fool's joke. Gerald
Skoning's annual National Law Journal roundup of the year's weirdest
cases in labor and employment law
includes the following gem: "Richard N. Shick -- while employed as a caseworker
in the Illinois Department of Public Aid -- robbed
a convenience store in Joliet, Ill., armed with a sawed-off shotgun. Afterward,
he sued the department, claiming that he was discriminated against because
of his disabilities and his sex, the trauma of which caused him to commit
the robbery. The jury awarded him $5 million in damages and $166,700 in
back pay. The U.S. District Court for the Southern District of Illinois
partially vacated and dismissed the judgment, but awarded $303,830 in front
pay, even while he serves a 10-year sentence. Thankfully, the 7th Circuit
reversed." ("Legal Weirdness at Work", Mar.
26; Gail Diane Cox, "Here's the tort reform poster boy for 2002", National
Law Journal, Oct.
28). Also on Skoning's list: voodoo signs ruled not an unfair
labor practice; employer dodges harassment charge after conduct is ruled
"even-handedly offensive" rather than discriminatory; hemorrhoids not a
protected disability under ADA. (DURABLE