September 15 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

February 11 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

In February 2006, Jamie Leigh Jones filed an arbitration complaint, complaining that, for her administrative assistant job with KBR in the Iraq Green Zone, she was placed in an all-male dorm for living arrangements, and a co-worker sexually assaulted her. (KBR says the co-worker claimed the sex was consensual, though Jones claims physical injuries, such as burst breast implants and torn pectoral muscles, that are plainly not consistent with consensual sex. The EEOC’s Letter of Determination credited the allegation of sexual assault.)

Fifteen months later, after extensive discovery in the arbitration, Jones, who lives in Houston, and whose lawyer is based in Houston, and who worked for KBR in Houston, sued KBR and a bunch of other entities (including Halliburton, for whom she never worked, and the United States), in federal court in Beaumont, Texas. The claims were suddenly of much more outrageous conduct: the original allegation of a single he-said/she-said sexual assault was now an allegation of gang rape by several unknown John Doe rapists who worked as firemen (though she did make a claim of multiple rape to the EEOC, though it is unclear when that claim was made); she claims that after she reported the rape, “Halliburton locked her in a container” (the EEOC found that KBR provided immediate medical treatment and safety and shipped her home immediately) and she threw in an allegation that a “sexual favor” she provided a supervisor in Houston was the result of improper “influence.” (But she no longer makes the implausible claim that she was living in an all-male dorm in Iraq.)

The US got the claim dismissed quickly (Jones hasn’t yet followed the appropriate administrative claims procedure); the case was transferred back to Houston where it belonged (the trial lawyer’s ludicrous brief in opposition didn’t help). But the fact that the defendants are pointing out that the lawsuit over a pending arbitration violates 28 U.S.C. § 1927 and are asking for the court to mandate only one single proceeding in arbitration rather than a multiplicity of parallel proceedings, is now being treated as a cause célèbre by the left-wing blogosphere in its campaign against the contractual freedom to arbitrate. (Note that two elements explicitly designed to arouse the ire and inflame the passions of the left—Halliburton and gang-rape—only came about after Jones switched attorneys.)

The Public Citizen blog complains that “the allegations of corporate and governmental misconduct will never see the light of day” in arbitration. Which is absurd:

1) For crying out loud, her case is on 20/20, which, as is its ken, happily unquestioningly gives the plaintiffs’ opening statement in handy manipulative video newsertainment form without mentioning any of the counterevidence. That sort of widespread publicity is hardly the lack of “light of day.” (Update, Dec. 15: the KBR arbitration procedure provides a transcript without confidentiality restrictions, permitting exactly the same publicity as an open court proceeding.)
2) If the government fails to offer Jones an adequate settlement for their alleged bungling of the criminal investigation, she has recourse under the Federal Tort Claims Act against the federal government—though she likely will not have any more recourse against them than any other criminal victim does when the government fails to protect them against crime or prosecute the criminal.
3) If the court system is about having recourse for injuries, she has that recourse. The judicial system is not for public storytelling; if you want to send a message, use Western Union (or ABC News, as the case may be).

20/20 repeats the meaningless claim that “In recent testimony before Congress, employment lawyer Cathy Ventrell-Monsees said that Halliburton won more than 80 percent of arbitration proceedings brought against it”—meaningless because (1) it doesn’t include the cases that settle before arbitration with a favorable result to the employee and (2) there’s no comparison with how well such employees would do in the far more expensive forum of litigation (where the vast majority of employees lose at trial as well). (Update, Dec. 16: KBR (which is not Halliburton) says that 96% of employee claims settle before they get to an arbitrator.)

20/20 also adds the claim (absent in the arbitration and in the otherwise-lurid civil complaint) that Jones was threatened that she would be fired if she sought medical treatment.

It goes without saying that any criminal assault should be prosecuted to the full extent of the law. I haven’t seen any support for the contention that there is a loophole that leaves an American contractor’s attack on an American outside the scope of criminal prosecution, as some blogs have claimed. The Military Extraterritorial Jurisdiction Act of 2000, 18 U.S.C. § 3261 ff., permits prosecutions of criminal acts committed by defense contractors working with troops overseas, and there has been a child porn and an attempted rape prosecution under this law for crimes committed in Iraq. The loophole in the news applies to contractors working overseas with the State Department.

People with legitimate claims usually don’t have lawyers trying so desperately to forum-shop that they file amateurish briefs like this, and Jones loses a ton of credibility with me over that. At a minimum, Jones’s story has changed over time, and has gotten considerably more lurid.

The original allegations are bad enough, and, if true, actionable. If the implant rupture and other physical injuries are true, I’m inclined to believe that she was raped, perhaps even gang raped. (Machismo environments like fraternity houses and athletes’ dorms are responsible for a disproportionate number of gang rapes, which is why the Duke Lacrosse allegations had so much weight in the early going.) I’m inclined to believe that there was a hostile work environment, and that it was possible that KBR was not doing enough to correct that problem. I’m not currently inclined to believe that the criminal action was the employer’s fault, unless the employee in question had shown signs of criminal behavior while working for KBR. And it is entirely consistent with what I know about government if Jones’s allegation that the government botched the criminal investigation is true.

Of course, more facts could come to light that change my mind in either direction. There’s already been a lot of discovery, but Jones’s papers in court seem to focus on me-too evidence (that should eventually be held to be inadmissible) rather than evidence related to Jones. I’d love to see the pending motions for summary judgment in the arbitration that led Jones to file a second lawsuit.

And one hopes Jones realizes that she’s being used by attorneys who are pursuing their own agenda to promote the litigation lobby’s pet anti-consumer/pro-lawyer legislation. The shenanigans of bringing a second lawsuit and suing the irrelevant Halliburton are not helping her case if she has a legitimate one.

Here is the EEOC Letter of Determination. Bill Childs provides many other court documents. A typical unskeptical adoption of the Public Citizen line can be found at Jezebel and many other blogs. Some Republican partisans are even more skeptical than I am. A more nuanced discussion is at Amber Taylor’s blog and Ben Domenech. (And welcome Malkin readers.)

Update: There is a Jamie Jones Foundation; its chronology omits the arbitration claim Jones filed in 2006. The “take action” page makes clear the ulterior motives of lobbying for a Congressional ban on arbitration clauses—though the arbitration clause has nothing to do with bringing any rapists to justice.

A bipartisan Congressional investigation into the Justice Department’s criminal investigation is now in the works (h/t Marsh), so we should see some answers about why there were no prosecutions.

Update 2: Pajamas Media notes that portions of Jamie’s website contradict the ABC story and the civil lawsuit allegations:

May 3, 2007- I was told by the state department that my rape kit was missing. The state department had previously ensured both of my parents that the rape kit had made it back to Washington before I even arrived back to the US . I had my mom call the state department to refresh their memories.

May 4, 2007- The rape kit was found, however the pictures of the bruises and the doctor’s notes from that day were still (and are currently) missing.

May 7, 2007- I was told to sign a release form so that the state department agent assigned to my case could try and recover the lost pictures and doctor’s notes, by giving the signed medical release form to the hospital that I went to in Baghdad and to the doctor that performed the rape kit.

Update, Dec. 15: KBR responds.

“Halliburton”, gang rape, and fear of arbitration: the Jamie Leigh Jones case is a post from Overlawyered - Chronicling the high cost of our legal system

“US says it’s blowing whistle on lawyer’s fee” is a post from Overlawyered - Chronicling the high cost of our legal system

An influx of doctors lured to Texas by new limits on malpractice lawsuits has overwhelmed the state board that screens candidates for medical licenses, creating a backlog that forces many applicants to wait months before they can start seeing patients.

Officials said many of the relocating physicians are filling shortages in areas such as Beaumont, where trauma patients previously had to be flown other cities because there weren’t enough surgeons to treat them.

(Italicized part added:)This sounds like great news — more doctors coming back into the system. But who knows? Chances are the plaintiffs’ bar can find a way to spin this as an ominous development — the return of the malpracticers. Now it’s entirely possible that this represents an influx of marginally competent doctors who can’t afford to practice elsewhere because their malpractice premiums are justifiably sky-high. As it is, the article in the Houston Chronicle quoted above says that a simple background check takes 41 days — hence the huge bottleneck — and that more complex histories such as those of veteran or out-of-state doctors will take correspondingly more time. So it doesn’t seem as if the Texas regulatory authorities are lowering the bar too too low.

Indeed, any supply-and-demand interplay where the market is allowed to be distorted by an industry like the insurance business, whose operations seem to defy normal ways of doing business and which is itself hopelessly regulated, is going to be hard to predict.

But in fact, one thing that happened shortly after Texas’s Proposition 12 was passed is that malpractice insurance rates started dropping almost immediately. That’s consistent with reduced financial exposure, but certainly not with an influx of incompetent physicians coming to the “market” (i.e., seeking medical malpractice insurance). The pushmepullyou of the interplay between these things is the sort of thing that makes insurance underwriters such exciting company at a weenie roast, so I won’t even try to have at it.

Again, in any event, this is a stunning example of the invisible hand at work. But surely there is a down side, and not only to med-mal plaintiffs’ lawyers? Of course: Med-mal plaintiffs themselves, who no longer can play in the Texas state court injury lottery. That doesn’t mean other personal injury plaintiffs can’t, unfortunately. But one step at a time.

God forbid anyone reading this or their loved one should be in a position to be seeking damages, economic or otherwise, for medical malpractice. But short of the argument that, well, higher non-economic damages should be available just because they should — or proof, in ten years, that there’s more malpractice in Texas than there was before because of the influx of quack doctors attracted to the free bread crumbs of “easy” med-mal limits — this quacks like a policy that works.

Free market magic is a post from Overlawyered - Chronicling the high cost of our legal system

And more May 17 updates is a post from Overlawyered - Chronicling the high cost of our legal system

April 24 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

There has, however, been plenty of press coverage of one of O’Quinn’s other clients, Anna Nicole Smith’s mother. In that circus, O’Quinn finds himself a defendant in a civil defamation suit brought by Smith’s, er, widower, attorney Howard K. Stern, for going on national television and accusing Stern of murdering Smith. [AP/ABC News] The fact of having this client gave cause TMZ.com to dig up some of the more obvious scandals in O’Quinn’s past, though they still missed the more recent ones covered by Point of Law.

Elsewhere in O’Quinn news: the firm settled its $1 billion fen-phen verdict (Apr. 28, 2004) for an unknown amount on the eve of appeal as part of a global settlement of O’Quinn’s caseload of fen-phen cases. (Brenda Sapino Jeffreys, “$1 Billion Fen-Phen Case Settles Before Appellate Oral Arguments”, Texas Lawyer, Apr. 16). The verdict was tainted because the plaintiffs blamed fen-phen for Cynthia Cappel-Coffey’s PPH, but Ms. Cappel-Coffey had been taking four other diet drugs since fen-phen had been pulled from the market that had the known risk of causing PPH. Yet that evidence was excluded from the jury, though the Texas Lawyer coverage barely touches upon this outrage. The state court in judicial hellhole Beaumont also improperly applied Texas caps on punitive damages.

Complete text of the breast implant order after the jump, if you don’t want to read the order in PDF format.

This matter came before the Court on a report from the Claims Administrator,
Settlement Facility –Dow Corning Trust (the “SF-DCT”) that The O’Quinn Law Firm and a
predecessor firm, O’Quinn & Laminack (the “law firms”) are and have been charging interest
to the law firms’ clients as part of funds disbursed by the law firms as the result of settlements
with the SF-DCT.

On October 6, 2005, this Court entered an Agreed Order Adopting Additional Q&A
Pursuant To Article IX of Annex A, The Claims Resolution Procedures (the “Order”) (Docket
No. 231). The Order clarified the extent to which allowable attorney’s fees and expenses could
be charged by the law firms as part of SF-DCT settlements, and presented the clarification in
Exhibit 1 to the Order in a question-and-answer format, as follows:

Q12. Can a law firm charge interest on expenses the firm advanced or for a loan
the firm took out to handle a claimant’s case?

A8. [sic] No. Interest on either a loan or on expenses advanced are not chargeable to
the claimant.

Q13. Can a law firm charge each client it represents a percentage of expenses it
incurred on behalf of all clients?

A13. No. The allowable expenses must be related to the client’s individual case
as set forth in Q11-4 in the Claimant Information Guide.

Q14. Can a law firm charge the client for expenses incurred in attending
meetings or seminars on breast implant issues?

A14. No.

(October 6, 1005 Order, Docket No. 231)

The Claims Administrator of the SF-DCT has reported to this Court that clients of the
law firms have complained to the Claimants Assistance Program (“CAP”) at the SF-DCT that
the law firms are insisting that, as a condition precedent to payments to the clients, that such
clients agree to reimburse the law firms out of the proceeds of SF-DCT settlements for interest
charged on funds disbursed by the law firms on behalf of the clients.

Based on the foregoing, accordingly,

1. IT IS ORDERED that Counsel for the law firms noted above must Show Cause, in
writing, by April 20, 2007, why the law firms should not be held in contempt for violating the
terms of the Amended Joint Plan of Reorganization, as more specifically noted above. The
Claims Administrator of the SF-DCT shall have until May 4, 2007 to respond to any filings by
the law firms. If after review of the submissions it is determined a hearing is required, the
parties will be notified of the date, time and place of the hearing.

2. IT IS FURTHER ORDERED that the Claims Administrator shall serve a copy of
this Order to the law firms noted above, the clients of the law firms who are affected by this
matter, the Reorganized Debtor, the Claimants’ Advisory Committee, and the Finance
Committee.

/s/ Denise Page Hood

DENISE PAGE HOOD

United States District Judge

DATED: April 5, 2007

John O’Quinn update is a post from Overlawyered - Chronicling the high cost of our legal system

Now back to your previously scheduled news story about excessive CEO compensation.

Party like you’re a tobacco lawyer is a post from Overlawyered - Chronicling the high cost of our legal system

More (7:30 p.m. Eastern): I’ll be on WCBS-TV again tomorrow between 9 and 10 a.m. for a second appearance. And (updated) on Monday morning I did two Texas radio phone interviews, including KTSA (San Antonio) with Steve Gehrlein, on the battle over Justice O’Connor’s seat, and KOLE (Beaumont), on the litigation explosion. P.S. on WCBS I mentioned Judge Edith Jones. It’s fun to be a mentioner!

Broadcast appearances is a post from Overlawyered - Chronicling the high cost of our legal system