- Math curriculum wars in Seattle school district head for court [Seattle Times]
- Stuart Taylor, Jr. reviews new Abigail Thernstrom book on the Voting Rights Act [New Republic]
- Gail Wilensky: Dems could’ve gotten GOP votes for health care reform if they’d compromised on medical liability [The Hill]
- Erin Brockovich swoops down on Florida cancer cluster [Fumento/CEI, more, also on Florida case]
- Barry Goldwater was right: right-leaning bloggers favor lifting military gay ban by 62-37 margin in National Journal bloggers poll;
- Jim Copland vs. Pennsylvania Sen. Arlen Specter [Point of Law, Pittsburgh Post-Gazette, more]
- Why is there no iPod or iPhone equivalent for automobiles? Regulation might have something to do with it [Ryan Avent and more via Sullivan; McArdle and more (commenter: “Motorcycles would never, EVER be approved by NHTSA if they were invented today.”)]
- So reassuring: for now FTC says it’s “unlikely to actually investigate individual bloggers” [Lewis, NYLJ] More from late last year on commission’s semi-retreat on blogger freebies [Publisher’s Weekly, GalleySmith, GalleyCat, Reason “Hit and Run”, William S. Galkin] Icons to make disclosure easy [Louis Gray]
- German law firm demands that Wikipedia remove true information about now-paroled murderers [EFF] More: Eugene Volokh.
- “Class Actions: Some Plaintiffs’ Lawyers Fed Up, Too?” [California Civil Justice]
- Drop that Irish coffee and back away: “F.D.A. Says It May Ban Alcoholic Drinks With Caffeine” [NYT]
- Profile of L.A. tort lawyers Walter Lack and Thomas Girardi, now in hot water following Nicaraguan banana-pesticide scandal [The Recorder; my earlier outing on “Erin Brockovich” case]
- Federalist Society panel on federalism and preemption [BLT]
- Confidence in the courts? PriceWaterhouseCoopers would rather face Satyam securities fraud lawsuits in India than in U.S. [Hartley]
- Allegation: Scruggs continuing to wheel and deal behind bars [Freeland]
- Not much that will be new to longtime readers here: “Ten ridiculous lawsuits against Big Business” [Biz Insider] P.S.: Legal Blog Watch had more lists back in June.
An editorial in the Palm Beach Post advises reader caution about the glamorous tort-chaser’s efforts to drum up clients for Weitz & Luxenberg and Searcy Denney Scarola Barnhart & Shipley based on allegations of a cancer cluster with a claimed link to radioactive drinking water:
The lawyers discussed water samples from 10 homes of cancer patients that showed at least trace amounts of radium, a naturally occurring metal. Those studies, however, echoed Florida Department of Environmental Protection results from 50 randomly selected homes. …
…one resident concluded on a Web site after the meeting: “Last night, we were validated.” Amid the personal appeals came the business pitch. Attorney Jack Scarola explained the contingency contract, which means that clients would pay nothing, even if they lost. He urged residents to take their time reading the contract because if “you inform yourselves well, you will find it’s in your best interest to sign with us.”
- Pants litigation still not over; Roy Pearson takes wrongful termination suit to D.C. Circuit [NLJ, FindLaw “Injured”, my WSJ piece two years ago]
- Microsoft wins stay of “alter Word or stop selling it” ruling [Bloomberg, earlier] More: WSJ Law Blog, Legal Ethics Forum, American Lawyer]
- Masry & Vititoe, law firm of Erin Brockovich fame, files for bankruptcy (she’s no longer with them) [NLJ, background]
- One blogger turns thumbs down on Google Books settlement [Patrick at Popehat] “Laundering orphan works legislation through a class action lawsuit”? [James Grimmelmann, ACS Blog via Mass Tort Lit] Much more: Lynn Chu/Writer’s Reps (who, I should note, has represented my literary interests on matters unrelated to this); WSJ Law Blog; Pasquale/ConcurOp; Kennerly.
- Dire lesson for lawyers in how not to do social media marketing [Mark Bennett/Defending People, Scott Greenfield, Patrick at Popehat, Carolyn Elefant/Legal Blog Watch]
- Tab-divider scam? For a million bucks? Against a big, sophisticated law firm? [ABA Journal, WSJ Law Blog]
- Lawyer who filed “splashy-dolphin” slip-fall action against Chicago-area zoo is heard from [On Point News, earlier]
- Turnabout fair play? “A Doctor’s Plan for Legal Industry Reform” [Richard Rafal, WSJ]
Contacts on Capitol Hill inform me that Republicans yesterday managed to block a remarkable provision that had been slipped into the House leadership’s 794-page health care bill just before it went to a House Ways & Means markup session. If their description of the provision is accurate — and my initial reading of the language gives me no reason to think it isn’t — it sounds as if they managed to (for the moment) hold off one of the more audacious and far-reaching trial lawyer power grabs seen on Capitol Hill in a while.
For some time now the federal government has been intensifying its pursuit of what are sometimes known as “Medicare liens” against third party defendants (more). In the simplest scenario — not the only scenario, as we will see below — someone is injured in, say, a car accident, and has the resulting medical bills paid by Medicare. They then sue and successfully obtain damages from the other driver. At this point Medicare (i.e. the government) is free to demand that the beneficiary hand over some or all of the settlement to cover the cost of the health care, but under some conditions it is also free to file its own action to recover the medical outlays directly from the negligent driver (who in some circumstances might even wind up paying for the same medical bills twice). It might do this if, for example, it does not expect to get a collectible judgment from the beneficiary.
The newly added language in the Thursday morning version of the health bill (for those following along, it’s Section 1620 on pp. 713-721) would greatly expand the scope of these suits against third parties, while doing something entirely new: allow freelance lawyers to file them on behalf of the government — without asking permission — and collect rich bounties if they manage thereby to extract money from the defendants. Lawyers will recognize this as a qui tam procedure, of the sort that has led to a growing body of litigation filed by freelance bounty-hunters against universities, defense contractors and others alleged to have overcharged the government.
It gets worse. Language on p. 714 of the bill would permit the lawyers to file at least some sorts of Medicare recovery actions based on “any relevant evidence, including but not limited to relevant statistical or epidemiological evidence, or by other similarly reliable means”. This reads very much as if an attempt is being made to lay the groundwork for claims against new classes of defendants who might not be proved liable in an individual case but are responsible in a “statistical” sense. The best known such controversies are over whether suppliers of products such as alcohol, calorie-laden foods, or guns should be compelled to pay compensation for society-wide patterns of illness or injury.
A few other highlights of the provision, pending analysis by persons more familiar with Social Security and Medicare law than myself:
- A bit of language on p. 714, I am told, would remove a significant barrier to litigation, namely a rule authorizing a lien action to be filed on behalf of Medicare only after a previous “judgment”, that is to say, only after the success of an earlier lawsuit (by the injured party) establishing responsibility for the injury.
- Language on p. 715 would double damages in cases of “intentional tort or other intentional wrongdoing”.
- P. 716 specifies that “any person” may bring the action, that is, it need not be a lawyer representing the injured person or any other injured person.
- P. 717: the bounty would be a rich one, 30 percent plus expenses. P. 719 provides that even if the federal government itself intervenes and insists on taking over the lawsuit, the bounty-hunter would still get a minimum of 20 percent, perhaps as reward for winning the race to the courthouse. No one other than the federal government could oust the first-to-file lawyer from control of the action, so other private lawyers who lost the race to the courthouse would be out of luck. Page 720 specifies that the suit may be settled “notwithstanding the objections of the United States” — that is, the objections of the entity on whose behalf it was supposedly filed — if a court so agrees.
- Medicare would have to cooperate with the private lawyers, whether or not the government joined or approved of the action, by handing over various documents useful to them.
For the moment, at least, the bullet seems to have been dodged. Some Republicans on the committee spotted the issue and raised strong protests, and by the end of the day an agreement had been reached with Democratic managers to withdraw the provision. That still provides no guarantee that it will not rear its head later in the process at some stage that proponents judge more favorable to their designs.
The idea being promoted here is an atrocious one. Even when it comes to garden-variety torts, there are many entirely legitimate reasons why federal managers might not decide to pursue Medicare liens from every possible defendant. To take only one example, they might have scruples about suing peripheral defendants who might be made to cough up settlement money to avoid the costs of litigation but against whom liability was doubtful. Freelance private lawyers would be free to sue everyone in sight and employ the most hardball tactics along the way. If the language about epidemiological and statistical evidence is indeed meant to pave the way for future suits against liquor, gun or cheeseburger purveyors, it represents a stealth attempt to restore via fine print a lawyerly dream that the courts have almost uniformly rejected over the past decade, as well as personally enrich lawyers with fees that could soar beyond even those of the scandalous tobacco-Medicaid litigation. Who in Congress slipped this language in, anyway — and on whose behalf?
Incidentally, this is not the first time the idea of Medicare-lien/”secondary payer” qui tam has been given an outing. In 2006 the famous Erin Brockovich lent her name and efforts to lawsuits filed by Wilkes & McHugh and another law firm pursuing the highly adventurous theory that a qui tam right to sue over tort-induced Medicare overpayments already exists, at least against hospitals. This campaign fared extremely poorly in court (see our earlier coverage here, here, and here). Last year, in a case argued by Kenneth Connor for Wilkes & McHugh, the Sixth Circuit ruled that claims brought by Wilkes’s client against dozens of hospitals were “utterly frivolous” and ordered counsel to show cause why sanctions should not be imposed for “unreasonable and vexatious” appeals (Stalley v. Methodist Healthcare, PDF; more at Jones Day site). (reposted with slight changes and bumped from an earlier post this morning) (& welcome Popehat, Coyote, Weisenthal/Business Insider, Hemingway/NRO “Corner”, For What It’s Worth, Blogs for Victory, TigerHawk, The Agitator, Colossus of Rhodey readers).
- Watch where you click: “Kentucky (secretly) commandeers world’s most popular gambling sites” [The Register/OUT-LAW]
- Erin Brockovich enlists as pitchwoman for NYC tort firm Weitz & Luxenberg [PoL roundup]
- U.K.: “Millionaire Claims Ghosts Caused Him to Flee His Mortgage, I Mean Mansion” [Lowering the Bar]
- Prosecution of Lori Drew (MySpace imposture followed by victim’s suicide) a “case study in overcriminalization” [Andrew Grossman, Heritage; earlier; some other resources on overcriminalization here, here, and here]
- Exonerated Marine plans to sue Rep. John Murtha for defamation [Pittsburgh Post-Gazette]
- Snooping on jurors’ online profiles? “Everything is fair game” since “this is war”, says one jury consultant [L.A. Times; earlier]
- Allentown, Pa. attorney John Karoly, known for police-brutality suits, indicted on charges of forging will to obtain large chunk of his brother’s estate; “Charged with the same offenses are J.P. Karoly, 28, who is John Karoly’s son, and John J. Shane, 72, who has served as an expert medical witness in some of John Karoly’s cases.” [Express-Times, AP, Legal Intelligencer]
- School safety: “What do the teachers think they might do with the Hula-Hoop, choke on it?” [Betsy Hart, Chicago Sun-Times/Common Good]
Thomas Girardi, of Girardi & Keese, and Walter Lack, of Engstrom Lipscomb & Lack, are among California’s highest-profile plaintiff’s lawyers, often working closely together on litigation; perhaps their best-known case was the “Erin Brockovich” action against Pacific Gas & Electric, which I covered here and again here (highlight: the chartered Mediterranean cruise to which Girardi and Lack invited the three arbitrators soon after winning their split of $133 million in fees). Now both men are in a spot of bother with the Ninth Circuit, where a special master, senior circuit judge A. Wallace Tashima, has recommended hundreds of thousands of dollars in sanctions against them and where a three-judge panel (Kozinski, Reinhardt, Berzon) has just moved to appoint a special prosecutor to recommend further discipline in the case.
The imbroglio arose from a pesticide toxic tort which resulted in a Nicaraguan court’s $489 million judgment against defendants including Shell Oil, Dow Chemical and Dole Food, which plaintiffs had sought to enforce in this country. Amid mounting evidence that many of the various American and Nicaraguan lawyers involved had not been entirely (as they say) candid with the tribunal on a variety of points, the court has been trying to sort out who knew what when. “In his 65-page report, Tashima said Lack had a personal role in asserting repeatedly that a writ of execution made by the Nicaraguan judge to enforce the judgment in America was corrected to name Dole Food Co. and Shell Chemical Co. Girardi, meanwhile, allegedly allowed the misstatements to continue on his behalf without becoming directly involved.” (Evan Hill, “9th Circuit Taps Special Prosecutor for Toxic-Tort Case”, The Recorder, Jun. 10; latest order and March special master’s report from Judge Tashima, both PDF, via California Appellate Report). We understand that changes to California ethics rules have put a crimp in Girardi and Lack’s former practice of throwing luxurious events for judges, but even aside from that, we don’t think judges Tashima, Kozinski, Reinhardt and Berzon would probably have been making any plans to attend.
- “Dog owners in Switzerland will have to pass a test to prove they can control and care for their animal, or risk losing it, the Swiss government said yesterday.” [Daily Telegraph]
- 72-year-old mom visits daughter’s Southport, Ct. home, falls down stairs searching for bathroom at night, sues daughter for lack of night light, law firm boasts of her $2.475 million win on its website [Casper & deToledo, scroll to “Jeremy C. Virgil”]
- Can’t possibly be right: “Every American enjoys a constitutional right to sue any other American in a West Virginia court” [W.V. Record]
- Video contest for best spoof personal injury attorney ads [Sick of Lawsuits; YouTube]
- Good profile of Kathleen Seidel, courageous blogger nemesis of autism/vaccine litigation [Concord Monitor*, Orac]. Plus: all three White House hopefuls now pander to anti-vaxers, Dems having matched McCain [Orac]
- One dollar for every defamed Chinese person amounts to a mighty big lawsuit demand against CNN anchor Jack Cafferty [NYDN link now dead; Independent (U.K.)]
- Hapless Ben Stein whipped up one side of the street [Salmon on financial regulation] and down the other [Derbyshire on creationism]
- If only Weimar Germany had Canada-style hate-speech laws to prevent the rise of — wait, you mean they did? [Steyn/Maclean’s] Plus: unlawful in Alberta to expose a person to contempt based on his “source of income” [Levant quoting sec. 3 (1)(b) of Human Rights Law]
- Hey, these coupon settlements are giving all of us class action lawyers a bad name [Leviant/The Complex Litigator]
- Because patent law is bad enough all by itself? D.C. Circuit tosses out FTC’s antitrust ruling against Rambus [GrokLaw; earlier]
- “The fell attorney prowls for prey” — who wrote that line, and about which city? [four years ago on Overlawyered]
*Okay, one flaw in the profile: If Prof. Irving Gottesman compares Seidel to Erin Brockovich he probably doesn’t know much about Brockovich.
I was very amused by Brockovich’s remark “It is no coincidence that thousands on Avandia now have heart attacks.” Really? Thousands of people who saw Erin Brockovich in the theaters have had heart attacks, and many others have had strokes. Some even contracted cancer! Coincidence, or has Ms. Brockovich put movie royalties ahead of safety?