Posts Tagged ‘Kentucky’

ADA filing mills: get those facts straight!

Taking advantage of the liberal (and lucrative) provisions of disabled-rights law in the Golden State, wheelchair user Jerry Doran has filed “more than 200 lawsuits in state and federal court against restaurants and other public establishments throughout California, alleging insufficient disability access. He has filed so many suits, in fact, that he has begun to lose track,” notes George Wallace at Declarations and Exclusions. Last month U.S. District Court Judge Cormac J. Carney returned judgment in favor of a Del Taco restaurant in Mission Viejo — 500 miles from where Doran lives — against Doran’s claim of having suffered improper lack of accommodation. Wallace (Jul. 18) takes up the tale:

Although there was no question that Mr. Doran is disabled, Judge Carney was ultimately unable to persuade himself that there was evidence sufficient to prove that Doran had actually sustained any harm at, or had ever actually been to, the Mission Viejo Del Taco.

After describing and praising the purposes of the ADA, Judge Carney’s Memorandum Decision [PDF] notes that it is a tool prone to misuse:

Despite the important mission of the ADA, there are those individuals who would abuse its private cause of action provision by filing lawsuits solely with the intent to profit financially. This potential for abuse of the ADA has been well documented in the Central District of California . . . . Courts have referred to this proliferation of ADA lawsuits as a ‘cottage industry’ and have labeled plaintiffs who file these lawsuits ‘professional plaintiffs,’ ‘serial plaintiffs,’ and ‘professional pawns.’

* * *

The consequences of this abuse of the ADA are severe: businesses and insurers are harmed, the integrity of the bar is called into question, and the public’s confidence in the courts is impaired. . . . Simply put, this litigation abuse of the ADA results in the exact harmful consequences that Congress sought to eradicate by passing the ADA. As more than one court has observed, the result of this abusive litigation is that ‘the means for enforcing the ADA (attorney’s fees) have become more important and more desirable than the end (accessibility for disabled individuals).’

Most of the remainder of the opinion focuses on the discrepancies in Doran’s responses to interrogatories, his responses to questions in deposition three weeks later, and his testimony at trial, in which key details — such as how often and when he had actually visited the Mission Viejo Del Taco — slipped and slid uncontrollably. Highlights:

* Doran first went to Del Taco #415 in Spring of 2002 or in Spring of 2003, unless his first visit was in 1988.

* Prior to filing suit, he went to the location twice, or perhaps three times, or possibly just once, although he may have gone there on as many as five or six occasions.

* “Mr. Doran’s complaint refers to objects — display racks and vending machines — which do not even exist at Del Taco restaurant #415.”

* “When Mr. Doran stated that he ordered an enchilada to eat during his alleged visit, he must have been testifying about a trip to a Taco Bell restaurant since Taco Bell — and not Del Taco — serves enchiladas.”

* “When describing the barriers he encountered at Del Taco restaurant #415, Mr. Doran stated that the hand dryers in the restroom were located too high. . . . Because Del Taco restaurant #415 does not have hand dryers in its restrooms, it is clear that Mr. Doran was testifying about a visit to another restaurant, or place of public accommodation, when asked to identify the barriers he encountered.”

* “When asked if there were any fast food chains that Mr. Doran frequented that he had not sued, he replied that he had not sued Kentucky Fried Chicken. In fact, Mr. Doran has sued Kentucky Fried Chicken. When asked to try again, Mr. Doran replied that he had not sued Jack in the Box. Although apparently unbeknownst to him, Mr. Doran has sued Jack in the Box also.”

(Doran v. Del Taco, opinion in PDF format courtesy Decs & Excs; post, Jul. 18). For more on the dubious practices of ADA filing mills, see our disabled rights page.

Kentucky fen-phen lawyers suspended

Melbourne Mills, Shirley Cunningham Jr. and William Gallion were “temporarily suspended” from the practice of law by the Kentucky Supreme Court this week. The three had taken well over half of a $200 million settlement Wyeth had given them on behalf of 440 fen-phen users they had represented. (Brandon Ortiz, “3 Fen-phen case lawyers are suspended”, Lexington Herald-Leader, Aug. 25; Andrew Wolfson, “Fen-phen case fees poured into racehorses”, Louisville Courier-Journal, May 30; Andrew Wolfson, “Judge: Fen-phen lawyers breached duty”, Louisville Courier-Journal, Mar. 10; Beth Musgrave and Jim Warren, “Fen-phen settlement is back in the courtroom”, Lexington Herald-Leader, Jan. 29, 2005 (reprint)). More: May 10, 2005 (civil lawsuit); Mar. 6 (judge who profited from approval of settlement resigns).

Mills was recently in the news because he won a suit against a secretary who claimed (with the help of a recording) that he promised her an “Erin-Brockovich”-style payment for her help in the settlement. (Brandon Ortiz, “Ruling benefits Melbourne Mills Jr.”, Lexington Herald-Leader, Apr. 4). (cross-posted at Point of Law)

UK: Holed-up perp had right to fried chicken

Gloucester, England:

A suspected car thief who bombarded police with bricks and tiles during a rooftop siege was given a Kentucky Fried Chicken takeaway meal by officers to ensure his “well-being and human rights”….

A spokesman for Gloucester police said: “He has been demanding various things and one was a KFC bargain bucket. Although he’s a nuisance, we still have to look after his well-being and human rights. He’s also been given cigarettes.”

(Richard Savill, “KFC meal ‘ensures siege man’s rights'”, Daily Telegraph, Jun. 7).

$20 million for nursing home death

[84-year-old Loren] Richards died on March 2, 2002, at Beverly Health and Rehabilitation of Frankfort.

Richards’ daughter, Wanda Delaplane, sued the home, alleging that nurses had ignored her father’s repeated calls for help with abdominal pain. With an impacted bowel, he later died of a heart attack and a blood clot in his left lung.

The home argued that Richards had a heart attack because he had smoked for years and had severely blocked arteries. The Kentucky jury also awarded $200,000 for failing to immediately notify the family of a downward turn in Richards’ health. The Richards family had asked for over $150 million in total damages. Delaplane is an attorney with the Kentucky Attorney General’s office, so you know which government agency not to complain to when nursing home expenses go through the roof because of the liability insurance costs. (Greg Kocher, “Man’s estate to get $20 million”, Lexington Herald-Leader, May 5; Greg Kocher, “Nursing home provided proper care, attorney says in closing arguments”, Lexington Herald-Leader, May 3; Steve Lannen, “Nursing home sued for $155 million”, Lexington Herald-Leader, Mar. 23).

Judge resigns in Ky. fen-phen scandal

Last May 10 we reported on the questions that were being asked about a sealed settlement of Kentucky fen-phen claims which had included (along with vast sums in legal fees) the quiet diversion of $20 million into a mysterious new charitable entity called the Kentucky Fund for Healthy Living. Now the mystery has turned to scandal: the judge who approved the settlement, Joseph F. (“Jay”) Bamberger has resigned after allegations surfaced that he was serving as a director of the fund, receiving $5,000 a month (three of the plaintiff’s lawyers were also paid directors). The state’s Judicial Conduct Commission said Bamberger’s actions “shock the conscience” and he faced possible removal had he not resigned. Particular attention is being focused on Bamberger’s close ties to Mark Modlin, a trial consultant in the fen-phen case who has had co-investments with the judge. The alleged closeness between Bamberger and Modlin had led to protests from litigants in a number of earlier cases, including a high-profile priest-abuse case against the Catholic Diocese of Covington.

The commission’s reprimand (PDF) revealed a startling fact. “The attorney fees approved were at least $86 million and perhaps as much as $104 million” — well exceeding the $74 million that was split among the 431 claimants in settlement. A lawsuit continues on behalf of some allegedly victimized clients against four plaintiff’s lawyers involved in the settlement, including big-league Cincinnati operator Stanley Chesley. (Beth Musgrave, “Fen-phen lawsuit judge resigns”, Lexington Herald-Leader, Feb. 28; Jim Hannah, “Judge quits amid allegations”, Cincinnati Enquirer, Feb. 28; “Investigation of Bamberger warranted” (editorial), Cincinnati Enquirer, Mar. 1; “A blistering rebuke” (editorial), Cincinnati Post, Mar. 1; Peter Bronson, “Hold this judge in contempt”, Cincinnati Enquirer, Mar. 2)(cross-posted from Point of Law).

Making Everyone a Lawyer

This is a bit off-topic from litigation, but one of the issues I touch on from time to time in my own blog is just how hard the government makes it to conduct business. While Ted and Walter seem to enjoy what they do, not all of us want to shuffle documents through the legal system every day.

As brief background, my small business runs recreation facilities on public lands under concession contracts. This week we won our first contract with the National Park Service, to run a restaurant and a couple of marinas in Colorado. Since this is our first foray into that state, there are a lot of legal hoops we must jump through to get all the permissions we need to conduct business in Colorado. In fact, as I describe on my blog, my work list is up to 20 fairly time-consuming approvals we need to obtain. And I am sure this list will grow. Even after years in a state, we still can have some random inspector coming by looking for our (fill-in-the-blank) licence, which we had never heard of to that point. My favorite so far is probably Kentucky’s requirement that I get a licence to sell eggs.

About six months ago, a business school professor asked if I would just write down what I was working on that day, as a part of a lesson in entrepreneurship for his students. Later, I posted the list on my blog. I ended the post by saying, “An alien from another planet in reading this post might question whether I am really working for myself or this ‘government’ entity”

Guest Blogger

Hey folks. I’m Caleb Brown. I work in radio and I do occasional freelance writing. If my blog were a child, social services would have taken her away a long time ago for neglect. I have a dog and I play the banjo. And to answer your questions: Yes, I live in Kentucky and yes, I do drink bourbon. Guestbloggin’ commences later today. My thanks to Walter Olson for the opportunity.

New at Point of Law

There are all sorts of new posts over at our sister website Point Of Law. Attorney Leah Lorber, who’s appeared on this site in the past, has just joined for a week’s worth of guestblogging contributions, including posts on a Mississippi Supreme Court case undoing the joinder of 264 asbestos cases and a Kentucky punitive award against Ford Motor (in a “park-to-reverse” transmission case). On medical malpractice, Ted Frank examines the benefits of the damage limits approved by Texas voters, Jim Copland discusses my WSJ op-ed on the Kerry campaign’s ideas for reform, and I link to an informative paper by Richard Anderson of the Doctor’s Company. Law professors Lester Brickman and Richard Painter, both experts on the ethics of contingency fees, have now completed their featured discussion of the issue.

Plus lots more, including posts by me on the ABA’s plans to push reform of jury trials; how contingency-fee litigation by the state of California is straining U.S. relations with France; Eliot Spitzer, the comparison-shopper’s friend; two posts (here and here) comparing the American way of litigation with that prevailing in other democracies; how liability law affects the way certain products smell; and who you can’t trust to explain the new overtime regulations.

Behind in your child payments? We’ve got a knife here

A Kentucky family court judge is ordering some dads who fall behind in their court-ordered child support payments to choose between going to jail and submitting to a vasectomy. That’s part of a growing trend (see Jan. 7-8, 2003) for courts to issue edicts against procreation, notwithstanding the bad odor that court-ordered sterilization has been in for the past few decades. (Dee McAree, “Deadbeat Dads Face Ban on Procreation”, National Law Journal, Jun. 10). For more on child support, see Feb. 3, Sept. 18, Feb. 25; more.