Profoundly depressing: “A Manhattan appeals court [last week] reinstated a $1.3 billion fee award for attorneys who helped to settle tobacco litigation in California, saying the arbitrators who awarded the fee did not exceed their authority and should not have been second-guessed by a state judge.” A year and a half ago Manhattan judge Nicholas Figueroa (Sept. 27-29, 2002) struck down as “irrational” the $1.25 billion fee award to the so-called Castano Group of lawyers, who had filed many different legal actions including one under a California private attorney general statute. As we commented at the time, the lawyers in question “didn’t actually represent California — the state’s own lawyers did that — and were in fact rivals, rather than allies, of the Scruggs-Moore team of lawyers who did manage to pull off the settlement. The Castano lawyers, however, repositioned themselves as somehow a catalyst for the national settlement and thus entitled to fees”. With an appellate panel’s quashing last August of Judge Charles Ramos’s inquiry into tobacco fees (see Aug. 10), the tobacconeers have now compiled a well-nigh perfect record of rolling over judicial opposition, with the notable exception of the Freedom Holdings v. Spitzer case in the Second Circuit (see Jan. 12). (Tom Perrotta, “$1.3 Billion Fee Upheld in California Tobacco Case”, New York Law Journal, May 19).
Author Archive
Vindicated — and violated
One day before the statute of limitations would have expired, a doctor is sued over a patient’s post-surgical complications. She is in for a shock. “Before this case, I’d never realized that we have a system of law where one person can stand up in a public forum and assassinate someone else’s character without a single piece of substantiating evidence (known in legalese as ‘closing arguments’). He faces no consequences for doing this. He isn’t even expected to apologize. We have a system of law that requires the witnesses to tell the whole truth, but then encourages attorneys to manipulate and hide that truth.
“I know that most of my friends will tell me to ‘get over it.’ They’ll tell me that I shouldn’t worry about what the jury thinks of me — I’ll never see these people again. They’ll tell me that the only important thing is that I won.” Trouble is, “I don’t feel like I won; I feel like I have been violated.” (Patricia I. Carney, “Our system lives on personal attacks”, Medical Economics, May 7).
Update: Dropping “The Hammer”
David Giacalone (May 4) has another update in the ongoing saga of Rochester, N.Y. attorney Jim (“The Hammer”) Shapiro, who advertised that “I want to get YOU the biggest, fattest cash award I can, as fast as I can, from as many defendants as I can find. Just call me! Day or night, I’ll talk to you free.” but later admitted in a deposition that he lived in Florida and had never tried a case (see Jun. 17-18, 2002 and Dec. 5, 2003). It seems a state court has now suspended Shapiro from practice in New York for a year over transgressions that include misleading commercials as well as “a solicitation letter to a comatose hospital patient”. Shapiro said he sold his Rochester law practice six months ago. (Matter of James J. Shapiro, Apr. 30; “NY Lawyer Known for Ads Suspended”, AP/New York Lawyer, May 3). More: Apr. 15, 2005.
Dept. of truly bad ideas
“Republican Californian Congressman Duncan Hunter has introduced a bill titled the ‘Parents’ Empowerment Act,’ which would allow the parent or guardian of a minor to sue (in federal court) anyone who knowingly disseminates any media which contains ‘material that is harmful to minors.'” The bill would apply in cases where “a reasonable person would expect a substantial number of minors to be exposed to the material” and “the minor as a result of exposure to that material is likely to suffer personal or emotional injury or injury to mental or moral welfare.” “Compensatory damages under the bill would start at no less than $10,000 for any instance a minor is exposed to harmful entertainment products”, and liability would apparently extend to original publishers, final retailers, and everyone in between. (“House Bill Threatens Retailers”, icv2.com News, May 21; Jonah Weiland, “CBLDF: New Censorship Bill Turns Parents Into Prosecutors”, May 21; Alan Connor, “The Parents’ Empowerment Act: finding the porn in Harry Potter”, London Review of Books, May 20)(text of H.R. 4239, introduced Apr. 28, courtesy TheOrator.com). Focus on the Family, the religious-right group, likes the idea (Keith Peters, “Congress Considers Parents’ Empowerment Act”, Family News in Focus, May 3)(more on free speech and media law).
FDA intervenes in drug liability cases
To the horror of the litigation lobby, the Food and Drug Administration has begun intervening in liability lawsuits urging courts not to second-guess design and marketing issues already contemplated and resolved by the federal regulatory agency. For many years now it has been commonplace for lawyers suing over side effects to claim that a drug’s marketer should have, e.g., given a stronger warning even though the FDA had considered and rejected the idea of its doing so. Agency general counsel Daniel Troy is credited with the new policy, which is based on the longstanding principle that state government action should not undercut comprehensive federal regulatory schemes. (“FDA stepping into liability lawsuits on side of drug makers”, Newhouse/Seattle Times, May 11).
For your own good
From the Canadian Arctic: “On May 1, the workers’ compensation board for Nunavut and neighboring Northwest Territories prohibited smoking in any enclosed business or work site, including office buildings and bars. Ever since, smokers have been required to step outside to smoke in a region where temperatures can drop farther than 40 below zero in winter.” (Clifford Krauss, “Snuffing Out a Smoky Way of Life in the Canadian Arctic”, New York Times, May 21).
“Lawsuit in deaths of aliens lingers”
“A lawsuit many called frivolous because it sought more than $41 million from the U.S. government for the relatives of 11 Mexican nationals who died trying to cross illegally into the United States has proven to have more staying power than predicted. A federal court in Tucson has given the relatives another two months to prove accusations that their family members died in the treacherous southern Arizona desert in May 2001 because the Interior Department failed to approve the installation of water stations ‘in the exact area’ of the desert where the Mexicans were found dead. … [The] suit said the illegal aliens died in the Interior Department-managed Cabeza Prieta National Wildlife Refuge north of Yuma after department officials denied a request by Humane Borders, a Tucson-based social-welfare organization, to place water stations in the area. The suit seeks $3.75 million for each of the victims.” (Jerry Seper, Washington Times, May 17; “Dead illegal aliens’ lawsuit to continue”, UPI/Washington Times, May 17). We originally covered the case May 10-12, 2002.
Damage caps for me, but not for thee (cont’d)
Last week (May 13) we commented that it we found somewhat ironic that lawyer client protection funds, run collectively on behalf of the legal profession, generally cap recoveries by defrauded clients at a very stingy level, given the profession’s jaundiced view of capping recoveries in other settings. David Giacalone, with whom we agree on so many other issues, very strongly disagrees with our comments (May 20) and we respond to his criticisms in a three-paragraph addendum to our original post.
Pennsylvania obstetrics
Consider having your baby somewhere else: hit hard by the state’s malpractice crisis, the “five-county Philadelphia region [lost] 25 percent of its staffed OB beds between 1993 and 2003, according to Delaware Valley Healthcare Council President Andrew Wigglesworth. Within the past 18 to 24 months, he says, the region lost 10 hospital OB departments, including those at MCP, Methodist, Nazareth, Warminster, Mercy Fitzgerald, Episcopal and Elkins Park; while OB services were also lost from hospital closures including City Line, Sacred Heart in Norristown and Community Hospital in Chester.
“Liability issues have put extraordinary pressure on OB programs in southeastern Pa., while well over 50 percent of practicing obstetricians in the region, perhaps closer to 75 percent, have become employees whose liability coverage is paid for by hospitals, says Wigglesworth, who adds that the trend toward employed OB status in southeastern Pa. has accelerated over the past three and a half years. ‘It is clear that, without the intervention of hospitals to employ and cover obstetricians in the region, we would have an extraordinary crisis, in terms of availability of OB services,’ he says…
“Wigglesworth [notes] that liability costs alone have approached two-thirds of the reimbursement level. …’Surviving’ OB programs in the region are mostly represented by teaching hospitals, including Hospital of the University of Pennsylvania (HUP), Pennsylvania Hospital, Einstein, Hahnemann, Jefferson and Temple.” (Christopher Guadagnino, “Obstetrician scarcity in Pennsylvania”, Physicians News Digest, May)(via Donna Rovito) (& letter to the editor Aug. 16).
Another traffic record; welcome FARK visitors
Easily breaking our previous one-day record set in January, we drew 33,369 unique visitors yesterday, the great majority of them coming when FARK.com picked up our item on the lawyer mobile van. Our readers’ generosity (rattles tip jar) helped make it possible for us to upgrade our hosting service a couple of months ago, which makes the difference in allowing us to accommodate the added traffic. Thanks for your support!