Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘emotional distress’

Don’t take that client!

Norm Pattis at Crime and Federalism (Nov. 21) describes a temptation felt by many trial lawyers during “the periodic lull in cases of merit”: taking on the cause of a vengeful, deluded or disturbed complainant:

You know the type. The injured, angry, pissed off, ornery cuss of a client who has been waiting, hoping, praying for a lifetime for someone to commit a tort, any tort will do, against them. Armed with this tort, this anger addicted fiend of a plaintiff will demand the scorching of any Earth within one thousand miles of their rubbed raw hangnail.

Will such a client find a lawyer willing to take his case? Very possibly he might:

Each year the bar belches forth a new class of lawyers; we add them faster than they die off. Lawyers need cases or controversies to survive. As the number of lawyers grows, plaintiffs’ lawyers reach ever deeper into the cesspool of human need to find clients. Is it any wonder that the courts are filled to overflowing with litigation that would better be treated with Prozac, Thorazine or some other radical therapy?

Lawyers should turn down such clients, Pattis says, and society should add its own discouragement:

I am a plaintiff’s lawyer. I am a successful plaintiff’s lawyer. But, perhaps this is too much to assert — I am an honest plaintiff’s lawyer. I favor as a matter of policy liberal rules requiring a plaintiff to pay sanctions for a claim brought without merit. A plaintiff who imposes unneeded expense on a defendant should reimburse the defendant.

And he follows that thought up with several other policy recommendations: “Liberalize the use of independent medical examinations for plaintiffs claiming emotional distress”, “Expand Rule 11 type sanctions on lawyers”, and “Make it easier for lawyers to withdraw when they discover that the client’s claims lack merit”. Even if you don’t usually follow the links in our posts, do it this time and read the whole thing. Update Jan. 8: Pattis responds to colleagues’ criticism.

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$3.36M for blind woman replaced by blind woman

Christine L. Boone was fired as director of the Pennsylvania Bureau of Blindness and Visual Services (allegedly for “insubordination” when she refused to carry out a superior’s directive regarding making a college aid program more available to students who weren’t receiving merit scholarships) and was replaced by another blind woman, Pamela Shaw. Nevertheless, Boone sued through her lawyer Arch Stokes, alleging that she was discriminated against because of her blindness, though the AP’s quote of Stokes’ opening statement of the federal trial before U.S. District Judge Sylvia H. Rambo makes it sound like a civil-service dispute. Boone only received $180,000 of the $1 million in the “future lost wages” she sought, but the $1.5 million for emotional distress should provide solace. Boone will ask the judge to reinstate her to her job; the AP did not get comment from Shaw, who currently holds the position. (Mark Scolforo, AP, Nov. 28; Mark Scolforo, AP/Boston Herald, Nov. 8). The National Federation of the Blind of Pennsylvania opposed Boone’s firing; that may or may not make it a bad decision, but a bad decision isn’t federally actionable, only a discriminatory one is.

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Update: Indictments in Roberts sex/extortion case

We reported June 13, 2004:

According to a story in the San Antonio Express-News, husband-and-wife legal partners Ted H. and Mary Schorlemer Roberts received money in a curious sequence of events. Mary, claiming to seek “no strings” discreet encounters, would seduce men over an Internet dating service. Ted would then write the men (in legal documents sometimes typed by Mary) and notify them that he planned to seek intrusive and public civil discovery to investigate whether the affair brought forward potential causes of action that were flimsy at best; the men would pay tens of thousands of dollars for a release and confidentiality agreement.

The Roberts couple’s bankruptcy trustee has since sued the Express-News over the story, on the theory that it “invaded their privacy, inflicted emotional distress and drove them into bankruptcy.” But a Texas grand jury has voted to indict the two on three charges of “theft” (which, in Texas, encompasses extortion); the FBI decided that federal charges weren’t possible. The Roberts couple’s attorney predicts they’ll be exonerated. “You can rest assured that I believe that lawyers are held to the same standards as everyone else in the community,” Bexar County District Attorney Susan Reed said. “The law doesn’t carve out the word ‘lawyer'” for special protection.” (Maro Robbins and Joseph S. Stroud, “Pair facing extortion indictment”, San Antonio Express-News, Sep. 1). The story does not detail what happened to the Roberts’ former partner, Robert V. West III, who originally brought the allegations to light; in return, the Roberts sued him and the Texas bar chose to investigate West rather than the Roberts.

The old Curmudgeonly Clerk weblog explored the legal legitimacy of the underlying Roberts lawsuits back in 2004.

In the original story, the newspaper asked Texas law professor and legal ethics specialist John Dzienkowski if legal ethics prohibited the Roberts’ tactics. “In the spectrum of Rambo litigation, and in the spectrum of trying to push people a little bit, just sending that piece of paper is probably on the mild side,” said Dzienkowski. “That’s why ethically I don’t really see a problem with it.” But who says reform of the legal profession is needed?

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And now the lawsuits…

As we predicted on July 16, the ridiculous lawsuits over the Grand Theft Auto video game “scandal” have begun. The lead plaintiff in the putative class action is an 85-year-old grandmother, Florence Cohen, who bought the game for her 14-year-old grandson, who may have his own claims for emotional distress when his ninth-grade classmates beat him up. I suspect the eventual lead-plaintiff deposition I imagined is likely to be more entertaining than the game itself.

“Laurence D. Paskowitz, the lawyer who filed the lawsuit on behalf of Cohen, said no parent would knowingly buy an adult-only video game for their children.” Because a “M-for-Mature” 17-or-over game featuring graphic violence, profanity, and “strong sexual content” is so much more appropriate. The sex scenes that are the subject of the lawsuit are only available by taking affirmative steps to download a modification from the Internet and install it: if her 14-year-old grandson has that much freedom with a computer to be able to experience the pixeled sex (an allegation that is missing from press accounts), what else is he downloading?

The Class Action Fairness Act is already paying dividends; the case was filed in federal court, which increases the likelihood that federal judges will correctly decide that class certification is inappropriate. (AP, “Grandmother sues maker of ‘Grand Theft Auto'”, Jul. 27; hat-tip to W.F. and A.B.). Update: Jul. 28.

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Jackpot justice in LA: Dr. Robert Johnson

When he was 81, Dr. Robert Johnson’s supervisors at the Lancaster state prison complained to the state medical board that he suffered from memory loss that impaired his work as a surgeon and suggested he retire. Johnson’s lawyer, Ralph B. Wegis, says the investigation cleared him, but also ended his career, and Johnson sued. A Los Angeles County Superior Court jury awarded $1.6 million in lost wages (apparently based on testimony that Johnson was going to continue to be a practicing surgeon until he was 96) and damages for emotional distress adding up to $20 million. (Jean Guccione, “Prison Doctor Awarded $20 Million in Age Case”, LA Times, Jul. 20). Imagine the lawsuit that would’ve bankrupted the prison if Johnson had committed malpractice and the prison hadn’t investigated suspected problems. Cf. also Aug. 30.

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Grand Theft Auto “Hot Coffee Mod”

Bill Clinton made a name for himself as a moderate by criticizing violent rap in 1992, and Hillary is following in his footsteps with what ALOTT5MA’s “Phil Throckmorton” calls “an executive-quality display of deep moral concern” over an alleged modification possible in the popular “Grand Theft Auto: San Andreas” video game that makes the simulated sex in the game somewhat more explicit, and thus worthy of an “AO” Adults Only rating instead of a “M” Mature rating. (Under the voluntary system, AO is 18+, while M is 17+.)

Me, I’m just amused by the thought of class action attorneys trolling for a named plaintiff parent who will testify that, while she was okay for her little Johnny to buy a game involving drug dealing, gambling, carjacking, cop-shooting, prostitution, throat-slashing, baseball-bat beatings, drive-by shootings, street-racing, gang wars, profanity-laced rap music, homosexual lovers’ quarrels, blood and gore, and “Strong Sexual Content,” she is shocked, shocked to learn that the game also includes an animation at about the level of a Ken doll rubbing up against an unclothed Barbie doll with X-rated sound effects, and is thus a victim of both consumer fraud and intense emotional distress, entitled to actual and punitive damages totalling $74,999 per identically-situated class member in the state. The Grand Theft Auto series has already been the target of some pretty silly suits (Feb. 19 and links therein), and we can pretty much expect the trend to continue. (And I beg the eventual defense attorney to pass along a public version of the deposition of the stooge named plaintiff, which will have tremendous entertainment value.) One is hopeful that the Class Action Fairness Act will give Take-Two Interactive Software the backbone to resist the extortion attempt. But if not, expect to see $5 coupons for the next edition of Grand Theft Auto in the offing.

Update: Reason’s Daniel Koffler notes “[T]oday, kids might only be able to download explicit content into their video games, but given a few years and a couple of leaps in technology, they might even be able to find hardcore pornography on the Internet.”

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In Alabama, the tusks are looser

Auburn, Washington dentist Robert Woo mysteriously thought it would be funny to photograph a staff assistant who was under anesthesia with a pair of fake boar tusks in her mouth. When confronted with the photos, she quit and sued for “post-traumatic stress disorder” allegedly triggered by the battery, eventually settling for a quarter-million dollars. Any argument Woo has to victimhood for the ridiculous damages claimed is obliterated, however, because he himself turned around and sued his insurance company for emotional distress for failing “in bad faith” to cover the incident as “dental services.” A judge let the matter get to trial, and a jury hit Fireman’s Fund Insurance for three times the amount of the original law suit, $750,000, plus another $600,000 in attorneys’ fees, before the Washington Court of Appeals threw the case out last week. (Maureen O’Hagan, “Appeals court rules against dentist”, Seattle Times, Jun. 16; Woo v. Fireman’s Fund Insurance Co. (Wash. App. Jun. 13, 2005); Romensko blog, Jun. 20). Other stories of bad-faith-insurance litigation: Sep. 7 and May 5, 2004.

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It’s a common carrier, after all

Amusement park managements in California are unhappy about a new 4-3 decision by the state’s supreme court holding that operators of park rides constitute “common carriers” akin to bus and trolley lines for safety purposes, thus exposing them to a higher standard of care in injury lawsuits. Of particular concern: given that passengers on ordinary conveyances are supposed to be protected from dangers that would occasion acute personal fear and emotional distress, what are the implications for roller coasters and other thrill rides in which conveying sensations of that sort is the whole idea? Maybe the brass at Disney (which was the defendant in the suit at hand) weren’t being entirely overcautious when they slowed down the Mad Hatter’s spinning teacups (see Mar. 4 and Mar. 9, 2004). (Maura Dolan and Kimi Yoshino, “High Court Raises Bar for Safety of Thrill Rides”, Los Angeles Times, Jun. 17)(via Ken Masugi, Claremont).

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Made ill by colleague’s perfume; jury votes $10.6 million

After eight days of deliberation, an all-female federal jury in Detroit has voted $10.6 million, including $7 million in punitive damages, $2 million for mental anguish and emotional distress and $1.6 million in compensatory damages, to former radio host Erin Weber, who said she was made ill by a co-worker’s perfume and later fired after WYCD-FM’s owner, Infinity Broadcasting, failed to resolve her complaints. Weber said that exposure to colleagues’ use of nail polish remover triggered sensitivity to the emanations of a co-worker wearing Tresor, a popular scent which Lancome describes as “romantic, sensual, emotional” and as based on such ingredients as rose and lilac. “Weber claimed exposure to Tresor caused her to lose her voice and take lengthy absences from work. She also said she once ‘felt an electric shock quell through my entire body’ and required heavy medication to combat the effects,” according to the Detroit News. In addition, Weber claimed, the co-worker, who is also a radio host, continued exposing her to the perfume despite her complaints and even walked by her on purpose. Infinity lawyer Daniel Tukel said the company had ordered the co-worker to stop wearing perfume and disputed Weber’s claim that it had “blacklisted” her from radio employment. The company says it will appeal, and a reduction in the award is likely, since federal law “generally caps punitive damages at $300,000 for the claims that Weber brought.” (David Shepardson, “Radio DJ wins $10.6 million in stink over perfume”, Detroit News, May 24; Kim North Shine, “DJ takes in sweet smell of victory”, Detroit Free Press, May 24). For some earlier posts involving claims of unusual sensitivity to widely encountered chemicals, see May 6, 2002, Apr. 25, 2001, and Jul. 3-4, 2000. For complaints about perfume, see May 17-19, 2002 and Apr. 24, 2000 (& welcome James Taranto readers). Update Jul. 6, 2007: federal judge after trial reduced Weber’s award to $814,000.

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