March 14 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

“I have found that non-obscure entries in Wikipedia are usually policed carefully to prevent unfounded, unanswered spin.”

At which point, he quoted back to me a Wikipedia entry on the subject that consisted entirely of ATLA talking points and spin that had been refuted numerous times on this site and Point of Law. That Wikipedia is inaccurate on this topic is no surprise: as I’ve noted earlier, a handful of trial lawyer advocates have systematically made thousands of edits to sanitize Wikipedia of just about anything that opposes the official ATLA line or criticizes trial lawyers, even on such minor entries as Jim Shapiro (see OL June 2002) and contingent fee (not to mention more major ones like asbestos, asbestos and the law, and medical malpractice). (And welcome Instapundit readers.)

Wikiality and the media is a post from Overlawyered - Chronicling the high cost of our legal system

We look forward to Kevin Drum giving this paper the same deference he credulously gave AIR’s last bogus report.

One flaw of the paper is that we didn’t include the story of “Bob,” the dummy literally used to scapegoat insurance-company executives by CJD at an ATLA conference. For other CJD shenanigans, see Dec. 23, 2004 and Mar. 19, 2004. (Cross-posted at Point of Law.)

Center for Justice & Democracy and Americans for Insurance Reform is a post from Overlawyered - Chronicling the high cost of our legal system

Elsewhere, it appears that trial-lawyer front-group Center for Justice & Democracy, which held its “First Annual Zany Immunity Awards” in late 2004, has chosen not to repeat the exercise, perhaps because of the fact that we exposed that the immunity laws in question weren’t so zany.

Another warnings contest is a post from Overlawyered - Chronicling the high cost of our legal system

And more: Ted Frank reports on the Wisconsin Supreme Court’s just-announced and “baldly activist” decision striking down caps on non-economic damages, and also on recent claims that anesthesiologists’ success in reducing injury rates somehow refutes the need for liability reform. And I’ve posted items on lawyers’ turning down $500K cases as too small; “patients’-rights” front groups; do lawyers get better care when they are patients, or worse?; and M.D.s’ apologies.

Med-mal at Point of Law is a post from Overlawyered - Chronicling the high cost of our legal system

It was a case study of what can go wrong in American health care today, said the family’s lawyer, Tom Moore.

“If you ever speak to a surgeon, ‘Doc, what can I expect with my hip replacement?’ — at the top of the list is infection, post-operative infection,” he said.

(The CBS Early Show repeated the story a few days later: ask yourself if you could predict from that news coverage that the hospital would be vindicated before trial.) Without being able to tell the jury about germs that act like deadly dinosaurs, Moore invented a new theory and settled for putting Billy Crystal on the stand to wow the jury with tales of Schaap’s generosity and talent. The defense lawyer, Mark Aaronson, seems to have put his finger on the matter:

“Is everybody who dies in a hospital the victim of medical negligence?” he asked rhetorically. “So ultimately, a theory had to be concocted in front of a jury in order for a claim of damages to be made.”

(Andrew Jacobs, “Jury Deliberates Lawsuit Over Death of Dick Schaap”, NY Times, Jun. 23).

Interestingly enough, to this day, the Center for Justice & Democracy cites the ABC Primetime Live broadcast as an argument against medical malpractice reform—as well as a lawsuit brought by the family of Freddy Prinze, Sr., against his psychiatrist for failing to prevent Prinze’s suicide. It’s telling how weak the arguments against malpractice reform are when the anecdotes an anti-reform organization chooses, out of the thousands of cases possible, demonstrate the need for reform.

You may recognize the name of Tom Moore from his pyrrhic results in the Libby Zion malpractice trial broadcast on Court TV.

Another thought on the Dick Schaap lawsuit is a post from Overlawyered - Chronicling the high cost of our legal system

Zulu Coconut Suit is a post from Overlawyered - Chronicling the high cost of our legal system

Neil Pakett v. Phillies is a post from Overlawyered - Chronicling the high cost of our legal system

The misnamed anti-tort reform Center for Justice & Democracy has noticed the success of the ATRA’s judicial hellhole campaign (Dec. 15; Dec. 3, 2003), and decided to respond with its own report, the “Zany Immunity Law Awards”, intended to single out “special interests” who opportunistically subvert the legislative system to get improper immunity from liability. The cover shows a legislator receiving a statuette, cash in his pocket, and roses with a ribbon labeled “Sleaziest Legislation.”

Exposing sleazy special-interest immunity laws is a noble sentiment–but it’s a sure sign of how few and far between such laws are that CJD singles out the sensible anhydrous ammonia immunity laws for its top ten list. The CJD incorrectly blames the law on a supposed “anhydrous ammonia business lobby”; in fact, it’s groups like the Michigan Farm Bureau that push for laws like Michigan S.B. 786. Indeed, the only group to oppose such laws? Trial lawyers’ lobbying groups. See also Kelly Lenz, “Fertilizer law to help farmers”, Farm and Auction, Jun. 12, 2002.

How ridiculous are the CJD awards? One of the top ten “zany immunity laws” refers to “immunity” granted to placebo manufacturers and distributors. Except the immunity in question isn’t immunity–it’s an exception to a criminal statute prohibiting the sale of fake drugs! E.g., Fla. Stat. 817.564(6)(a). (This is the only appearance of the word “placebo” in the Florida Code. It’s telling that CJD omits the statutory cite in its footnotes.) Perhaps this law is zany, but it’s hardly an example of a special interest group buying sleazy legislation that damages consumers. A subject of a research test who is injured by adulterated placebos (has this ever happened?) will still have a cause of action.

Other “awards,” such as a complaint that owners of baseball facilities in three states are immune from liability for spectator injuries caused by baseballs used in a game, are similarly misguided. For example, CJD complains about Louisiana immunity for Mardi Gras parade injuries from thrown prizes–but neglects to mention that the immunity came about from community outrage when the predominantly African-American “Zulu Krewe” announced in 1987 that it would no longer engage in the decades-old tradition of throwing decorated coconuts from floats because of liability concerns. In any event, the immunity provided by the law is sufficiently limited that even today, the Zulu Krewe only hands out the coconuts rather than throws them. Heaven forfend. (Nora Sherman, “Guide to the Mardi Gras Parades”, Tulane Arcade, Feb. 13; Zulu history).

In some cases, CJD simply misleads about the scope of the immunity.

CJD: [A]fter an autopsy, there are some extra body parts hanging around so the coroner puts them in [the wrong] coffin. … Indiana’s morticians lobby made sure they wouldn’t be legally accountable for any of this.

Fact: A mortician is only immune for this mistake if those remains have been “hanging around” for three years without being placed in a coffin or urn and there is no written contract specifying where those remains go. IC 23-14-55-2(c). (And why should a cemetery owner be liable for a coroner’s mistake anyway?)

CJD: [I]n a bunch of states, an agent or real estate owner can’t be held liable for failing to tell a potential buyer or renter that the house is “psychologically affected.” What’s scarier than a haunted house? A statehouse that grants immunities like this one.

Fact: The only law that CJD cites, Indiana’s, provides “an owner or agent may not intentionally misrepresent a fact concerning a psychologically affected property in response to a direct inquiry from a transferee.” IC 32-21-6-6. Connecticut law similarly strips immunity when a purchaser makes affirmative inquiries. Sec. 20-329ee. Are you really concerned whether an HIV+ person used to live in a house? A buyer is entitled to ask and demand disclosure (though the federal fair housing laws may come into play). But why is CJD so concerned about protecting the rights of bigots to sue on the psychological damage self-imposed by their bigotry? Where’s the justice in requiring a seller to admit their HIV+ status on pain of liability for failing to affirmatively do so?

The complaint about haunted house immunity is especially ironic, given that the famous New York haunted house case of Stambovsky v. Ackley–where a court held that a buyer could back out of a home purchase because the seller failed to disclose poltergeists–is a famous poster child for a justice system run amok. 169 A.D.2d 254, 572 N.Y.S.2d 672 (1st Dept. 1991).

CJD: [M]aybe you leave [a deer] carcass out in the sun while celebrating the joy of hunting. Does that mean you can’t donate the meat to a charity…? … And if someone gets sick from eating the meat that’s gone bad, is that your fault? Not in a bunch of states, it isn’t! [A donor] of wild game meat for free use by a charity (a soup kitchen, for example) has limited liability for injuries or death caused by the age, condition, or packaging of the meat.

Fact: The fact pattern described wouldn’t result in immunity; in all of the states cited by CJD, the hunters could be sued for being grossly negligent or even reckless.

CJD: In Oklahoma, institutions using dogs unclaimed at the pound aren’t liable to the dog’s owners if they kill or injure the dog during a “scientific” experiment.

Is CJD seriously arguing that a research lab that purchases a dog about to be euthanized at the pound should bear the risk that an owner will claim the dog later?

CJD: In Arizona, a veterinarian who files a report with a local law enforcement agency, stating that he believes a dog he’s treated or examined has participated in a dogfight, is immune from liability.

Is CJD seriously claiming that vets should be liable for mistakenly reporting suspected cruelty to animals? That’s a good way to ensure that such cruelty doesn’t get reported.

CJD: Pawnbrokers in Missouri and Nevada who don’t release or dispose of pledged property, because they’ve been ordered to hold it by a police officer, are immune from liability.

Amazing! CJD actually contends that someone should be sued for obeying a lawful order of the police.

If ever there was proof that the Center for Justice and Democracy cares little for justice or democracy or consumers, it’s this report that shows the only things CJD cares about are trial lawyers and creating as much litigation as possible, regardless of its effect on justice, democracy, or consumers.

Center for Justice & Democracy’s Zany “Zany Immunity Law Awards” is a post from Overlawyered - Chronicling the high cost of our legal system

The CJD’s accusation of “racism” against tort reformers (Mar. 19) was based in part on the following reasoning: Minorities have poorer access to affordable health-care; minorities are therefore more likely to suffer from medical malpractice; minorities are therefore more likely to be “disproportionately” affected by medical malpractice reform; therefore, tort reformers are racist. (I’m reminded of the old joke that posits that when the world ends, the New York Times’s subhead will be “Women, Minorities Hardest Hit.”) Of course, by that reasoning, tort reform opponents are “racist” because they oppose a measure that would make health care more affordable for minorities, and the main beneficiary of this opposition is the (disproportionately white) trial lawyer bar. This website assumes no liability for any damages caused by you holding your breath waiting for the CJD to come to that equally faulty conclusion.

Update: Jon Klick points me to his paper with Thomas Stratmann, “Does Medical Malpractice Reform Help States Retain Physicians and Does it Matter?” (October 2, 2003), which finds that damages caps reduces infant mortality rates among African-Americans by increasing the likelihood of ob-gyn doctors to locate in-state, thus increasing the availability of pre-natal care.

Does tort reform affect insurance rates? is a post from Overlawyered - Chronicling the high cost of our legal system