Late last month New York Gov. George Pataki signed into law a bill that will abolish the requirement that a personal injury or wrongful death lawsuit specify at the outset (in its “ad damnum” clause) the amount in dollar damages it is seeking. New York thus becomes the latest state to adopt a measure that is relatively rare among litigation reforms in eliciting widespread support from among both defense interests (example: American Medical Association model legislation, PDF) and the plaintiffs’ bar, which is perennially embarrassed by news items such as the one cited in yesterday’s New York Times about how a woman who survived the Staten Island Ferry catastrophe has demanded $200 million for a sore back and lost sleep. Lawyers “often will pick an astronomical figure for fear that a lower number will preclude their clients from recovering damages if they win a case” — or, of course, they may be seeking the publicity that often accompanies huge demands. The state bar association urged Pataki to sign the bill, saying it “will reduce pretrial publicity about how much money is sought from particular defendants, and deals with the common misunderstanding by the general public that the amount sued for is the amount actually obtained by plaintiffs.” (Joel Stashenko, “Pataki Signs Bill Eliminating Damage Amounts In Liability Suits”, AP/Newsday, Oct. 31).
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Election results
Tort reformers did well in Mississippi elections, with GOP challenger Haley Barbour toppling incumbent Gov. Ronnie Musgrove (D) and Republican Lt. Gov. Amy Tuck handily fending off a challenge from trial-lawyer-legislator Barbara Blackmon (Julie Goodman and Patrice Sawyer, “Republican challenger unseats Musgrove”, Jackson Clarion-Ledger, Nov. 5; Andy Kanengiser, “GOP’s Tuck breezes to victory over Blackmon”,
Nov. 5). The Democrats did hold onto the state’s attorney generalship, however. Meanwhile, doctors campaigning for malpractice reform (see Nov. 4) suffered stinging defeats in Pennsylvania, where Democrat Max Baer beat Republican Joan Melvin for a seat on the state supreme court, and New Jersey, where Democratic followers of Gov. Jim McGreevey solidified their hold on the state legislature, in part by outspending their rivals four to one. (“Democrat Baer defeats Melvin for top Pa. court”, AP/Philadelphia Inquirer, Nov. 5; Tom Turcol, “N.J. Democrats secure control of legislature”, Nov. 5).
Tobacco lawyers to Mass.: we’ll sue for the whole $2 billion
Law firms Brown Rudnick Berlack & Israels and Lieff, Cabraser, Heimann & Bernstein now say they’ll sue the state of Massachusetts for the whole $2 billion they say they’re entitled to — a 25 percent contingency share of the state’s $8 billion tobacco-settlement booty — rather than accept the measly $775 million they’ve been awarded in arbitration. The Associated Press says the firms “risk becoming poster children for attorney greed at a time when the profession is already under attack for high damage awards. ‘This lawsuit is about greed and it’s about selfishness. They should be ashamed of themselves,’ said former Maine Attorney General James Tierney, who worked with attorneys general from around the country to help negotiate the $246 billion master settlement.” (“Law firms go to court to make Massachusetts pay full tobacco legal fee”, AP/San Francisco Chronicle, Nov. 3; Steve Bailey, “Pigs at the trough”, Boston Globe, Oct. 10) For earlier coverage of the Massachusetts fees, see May 19; Jan. 2-3, 2002; Aug. 13-14, 2001; Dec. 22, 1999. (& see Dec. 17)
Malpractice key issue in NJ, Pa. races
“In New Jersey, where state-level candidates usually campaign over issues such as property taxes and school funding, the No. 1 issue is now medical malpractice — if political fund-raising totals are any indication.” Doctors are throwing themselves into state politics and are so passionate about the issue that they’re actually outspending trial lawyers by a wide margin. (“Malpractice Issue Draws Most Funding in N.J. State Races”, BestWire/HIMSS (Healthcare Information and Management Systems Society), Oct. 28). Pennsylvania physicians are up in arms as well, hoping to make their voices heard in a key state supreme court contest between Republican Joan Orie Melvin and Democrat Max Baer (Carrie Budoff, “This time, physicians are players in election”, Philadelphia Inquirer, Nov. 3; Marian Uhlman, “As doctor workforce ages, a fear of shortage”, Oct. 12). In Massachusetts, nearly 1,000 doctors descended on the statehouse last spring attired in white coats, demanding malpractice reform (David Kibbe, “Liability insurance hikes scaring off some doctors”, Ottaway/New Bedford Standard-Times, Oct. 6). See also “Tort-reform law could cure ills of malpractice” (editorial), Rockingham News, Oct. 31 (New Hampshire)(suggesting that recent Texas reforms serve as model).
Where eagles fear to litigate
Eagle Pass, Texas, in Maverick County along the Rio Grande, isn’t likely to shake its reputation for plaintiff-friendly jurisprudence any time soon, as a San Antonio Express-News profile makes clear. “L. Wayne Scott, a professor at St. Mary’s University Law School…. who has mediated civil cases in Eagle Pass, estimates defendants there are roughly 10 times more likely to lose than in conservative Dallas and two or three times more likely to fall than in San Antonio. … Indeed, the prospect of facing a jury in Eagle Pass — where Mayor Joaquin L. Rodriguez also is one of the city’s top plaintiff’s attorneys — frequently makes companies more willing to settle and in higher amounts than they would agree to in other venues.” Although a 1995 round of state tort reforms has somewhat curbed the rampant forum-shopping by which plaintiff’s lawyers used to bring suits from around the state to Eagle Pass, there is still a steady diet of cases to be had against major national defendants, including suits against automakers over road crashes and a case against Connecticut-based shotgun-maker O.F. Mossberg & Sons Inc. over a hunting accident that took place in another Texas county. Local plaintiff’s attorney Earl Herring says that a case worth $10,000 in Eagle Pass would be “worth $500 in Uvalde.” (Greg Jefferson, “Eagle Pass remains known as plaintiff’s attorney paradise”, Nov. 2).
Dollywood ditches disabled discounts
More presumably unintended consequences of ADA litigation: “Dolly Parton’s theme park is stopping its free-entry policy for guests with certain disabilities. Dollywood, Tennessee’s top tourist attraction, said it was responding to a lawsuit by a local woman claiming its discretionary discounts for impaired visitors violated the Americans with Disabilities Act.” For many years the park waived its $40 admission fee for patrons who are blind, deaf or use a wheelchair, but “those discounts will end Jan. 1 on the advice of lawyers. … ‘From a legal standpoint, our staff is not qualified to make decisions on who should or should not be given free admission to the park based on their level of disability,’ the park said on its Web page.” (“Dollywood to end free admission for disabled”, AP/Knoxville News Sentinel, Oct. 30).
Disappearing Australians
Lifeguards: “One of Victoria’s most popular surf beaches may be unpatrolled this summer as its lifesaving club struggles to pay the huge public liability insurance costs. The Torquay club will not put lifesavers on the beach this season if the State Government does not pass legislation protecting members and the club from litigation.” (Stephen Moynihan, “Popular beach may have no lifesavers this season”, Melbourne Age, Nov. 2). Pediatric surgeons: “Eighteen orthopedic surgeons and obstetricians have quit public hospitals in Sydney in the past week because of the Government’s medical indemnity charge.” (Ruth Pollard, “Children’s surgeons quit, more will follow”, Sydney Morning Herald, Oct. 2). Rural obstetricians (Lucy Beaumont, “Insurance fear on rural births”, Melbourne Age, May 6). See David Little, “Left untreated, the indemnity system will cause more suffering”, Sydney Morning Herald, Oct. 9; Richard Ackland, “In a row between doctor and lawyer, you know who the politician will call”, Sydney Morning Herald, Oct. 31)
Whoops
That story about Fox threatening to sue itself, picked up by much of the media and featured in our Oct. 31 item, turns out to have been, um, embellished at a minimum by “Simpsons” creator Matt Groening, and the show’s producers have issued an apology (Washington Post, Oct. 31)
Morales gets four years
“Former Texas Attorney General Dan Morales was sentenced Friday to four years in prison for filing a false income tax return and mail fraud in a case stemming from the state’s $17 billion tobacco settlement.” Although Morales had entered a guilty plea as part of a plea agreement, “he insisted most of the accusations about public misdeeds were untrue.” (AP/Tyler Morning Telegraph , Oct. 31; Janet Elliott, “Morales ordered to prison”, Houston Chronicle, Nov. 1). Background: Oct. 2, Jul. 17, Jun. 26 and links from there.
U.K.: “Poppy pins banned in case people sue”
“The Royal British Legion has stopped supplying pins with its [veterans’-remembrance] poppies because it fears compensation claims from ‘injured’ members of the public.” “People can easily stab themselves with a pin and there is always the worry of litigation,” says the chairman of an RBL branch in Somerset. However, Peter Westwell, county secretary of the Shropshire branch, “called the no-pin rule ‘poppycock’. He said: ‘It is compensation culture gone mad.'” (Elizabeth Day, Daily Telegraph, Nov. 2)