Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Minnesota’

Sued if you do, sued if you don’t.

Hospital X was grossly — if not criminally — negligent, and you ought to award zillions of dollars in punitive damages for their misconduct! Consider this list of sins: this hospital knew that its surgeon was mentally ill. He had been diagnosed with bipolar disorder, and they knew it. He had been locked up in mental institutions at least twice before. The danger here was very real. Don’t let them try to claim they didn’t foresee danger. Why, once when that surgeon was operating on a patient, multiple witnesses will tell you that he “became disoriented during the surgery, forgot the names of certain instruments and at one point appeared to be talking to the wall!” Even after he was treated, two different psychiatrists who evaluated him refused to unequivocally state that he was competent. And they let him continue to operate on vulnerable patients. Without any supervision. Even though they knew he had a history of failing to take his medication.

Well, that would be the summary of my argument to the jury if the surgeon in question botched my poor client’s operation and left him permanently injured. So a hospital would have to be crazy to let this state of affairs go on, right?

Right. Except that when Wyoming Valley Health Care System decided not to take any chances, and refused to let mentally ill surgeon Jonathan Haas operate without supervision, he sued the hospital in federal court for violating the Americans with Disabilities Act. And this week, a Pennsylvania jury awarded $250,000 to Haas for this violation of his rights. That’s the case, even though the Americans with Disabilities Act ostensibly has an exception for situations where employing the disabled person would be a threat to the health or safety of other people.

Haas’s complaint was that since he couldn’t find anybody to supervise him, the hospital’s condition effectively prevented him from acting as a surgeon. (Oddly, once this happened, Haas moved on to a hospital in Minnesota which imposed exactly the same supervisory requirement on him, which he accepted. But neither the judge nor jury found that relevant to the question of whether the requirement was reasonable.)

In short, the hospital had the choice of risking a patient’s life and being sued for malpractice, or restricting the privileges of the surgeon and being sued for discrimination. (And we know that had a patient sued for malpractice, the hospital couldn’t possibly have defended itself by pointing to the requirements of the ADA and saying that it was forced to employ the surgeon.)

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Flying-imams case: sued passengers may get help

Following up on Mar. 15 and before that Dec. 6: “Lawyers and a Muslim group say they will defend at no cost airline passengers caught up in a lawsuit between a group of imams and U.S. Airways if the passengers are named as ‘John Does’ and sued for reporting suspicious behavior that got the Muslim clerics booted from a November flight. … Gerry Nolting, whose Minnesota law firm Faegre & Benson LLP is offering to represent passengers for free, says the judicial system is being ‘used for intimidation purposes’ and that it is ‘just flat wrong and needs to be strongly, strongly discouraged.'” Also offering help is “Dr. M. Zuhdi Jasser, a Phoenix-area physician and director of American Islamic Forum for Democracy — a group founded in 2003 to promote moderate Muslim ideas through its Web site — [who] told The Washington Times his group will raise money for legal fees for passengers if they are sued by the imams.” (Audrey Hudson, “Muslims offer to help ‘John Does’ sued by imams”, Washington Times, Mar. 21).

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Enviro suits sap wilderness upkeep budgets

The Boundary Waters Canoe Area Wilderness in Minnesota, described as the nation’s most heavily visited wilderness area, is a part of the Superior National Forest. These days the forest’s managers

face the financial repercussions of legal decisions they say are stripping scarce resources from their wilderness budget, undermining maintenance work, and leaving many wilderness restoration projects on hold….

While many environmentalists fervently believe that such suits help protect the wilderness, Forest Service officials say many of the agency’s legal expenses come straight from the Superior’s wilderness budget— money that would otherwise pay for the kind of on-the-ground maintenance and restoration work that everyone seems to agree is badly needed in the nation’s most heavily-visited wilderness area.

“When you start figuring out what that means in terms of hiring wilderness rangers or buying fire grates or latrines, it has a huge impact,” said Barb Soderberg, public affairs officer for the Superior National Forest. …

The local forest officials receive a modest $1.5 million a year to manage the 1.1 million-acre wilderness area. According to its supervisor, the forest has been in court continuously since 1949. Under the “one-way” fee structure of federal environmental law, the forest like other defendants can be ordered to pay a plaintiff’s full attorneys’ fees even if the plaintiff wins on only some issues in a case, but cannot collect itself even if it manages to prevail on all issues. Last year a court ordered the forest to fork over $90,000 to prevailing environmentalist lawyers from the elite Twin Cities law firm of Faegre & Benson. Not by coincidence, the forest has found itself obliged to slash its budget for temporary wilderness rangers, from $240,000 to $135,000, “in large part due to ongoing litigation costs”.

The environmental representatives contacted for this story all acknowledged they don’t weigh the costs to the Forest Service when deciding whether or not to file suit against an agency decision….Brad Sagen, the new board chairman of Northeastern Minnesotans for Wilderness, said it isn’t his organization’s job to consider costs of lawsuits— indeed, he called the question “absurd.”

In fact, Sagen and another environmentalist expressed surprise that legal expenses and payouts come out of the agency’s operating budget, apparently unaware that such a practice is widespread in government, commonly defended as a variety of accountability that helps give agency officials proper incentives to bring their activities into full compliance with all applicable laws (if that’s possible).

Meanwhile, environmentalists are piling on with more new lawsuits, over a new forest management plan and a snowmobile trail, while continuing to pursue an old one about motor quotas. Much, much more here for those with an interest in this area. (Marshall Helmberger, “Environmental lawsuits sap U.S.F.S. wilderness maintenance budgets”, Ely, Minn. Timberjay, Jan. 26)(profile of author at Minnesota Public Radio).

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Should retired judges practice law?

Not according to the view of many in Britain:

The London Solicitors Litigation Association has attacked Government proposals to allow some judges to return to private practice, warning that public perception of judicial impartiality could be compromised. The body, which represents around 800 City litigators, called the proposals “a retrograde step”.

(“The Water Cooler”, Times Online, scroll to Dec. 13). For the benefit of international readers, it should be noted that retired judges in the U.S. can and often do return to private practice. Most elect to practice relatively sedate forms of law, but an exception familiar to Minnesotans is former federal judge Miles Lord, whose personal injury practice, established after he departed his controversial tenure on the bench, has taken out full-page Yellow Pages ads touting his background.

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Imams: we want to “hit [US Airways] where it hurts, the pocketbook”

Six imams (who had just attended a private conference on imams and the media and politics) were waiting for US Airways Flight 300 and decided to act rather provocatively: they shouted “Allahu Akbar!” loudly while praying in the waiting area, refused to take their assigned seats (instead squatting in the front row of first class and the exit rows—consistent with trying to control the entry and exit areas of the plane), demanded use of a seatbelt extension for the morbidly obese despite being only moderately overweight (and then placed the heavy-buckled potential weapons under their seats instead of on their seatbelts), and started speaking to one another in Arabic (which a fellow passenger translated as angry denunciations of America). They succeeded in the attempt to draw attention to themselves; the captain asked them to leave the plane, they refused, and were then arrested; the plane then underwent a 3.5-hour search for bombs.

“They should have been denied boarding and been investigated,” former air marshal Robert MacLean said. “It looks like they are trying to create public sympathy or maybe setting someone up for a lawsuit.”

Sure enough, the victimizers are now playing victim and threatening to sue under the auspices of the Muslim American Society (which was previously in the news for demanding that Muslim cab-drivers be permitted to refuse rides to passengers carrying alcohol) and the litigious Council on American-Islamic Relations (Apr. 25). The provocation, helped along by new Congressman Keith Ellison (D-Minn.), also appears to have its desired effect: “The Minneapolis airport plans to add a prayer room for Muslims, and Democrats plan to hold hearings on Muslim profiling.” (Audrey Hudson, “How the Imams Terrorized an Airliner”, Washington Times/Front Page, Nov. 29; Arizona Republic op-ed, Nov. 29; Debra Burlingame, “On a Wing and a Prayer”, Wall Street Journal, Dec. 6; LGF blog, Nov. 21; “Tale of Fibbing Imams”, Investors Business Daily, Dec. 4 via Powerline blog, Dec. 6).

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November 7 roundup

  • My informal debate with Professor Silver over the effect of reform on physician supply continues. [Point of Law; Silver]
  • If you’ve been intrigued by Professor E. Volokh’s idea of medical self-defense (and thus payment for organs) as a constitutional right, he’ll be discussing it with Richard Epstein and Jeffrey Rosen at AEI. [Volokh; Harvard Law Review @ SSRN; AEI]
  • Peter Wallison on how over-regulation and over-litigation is killing American competitiveness in the capital markets. [Wall Street Journal @ AEI]
  • Press coverage is finally starting to break through in the Milberg Weiss scandal with a lengthy Fortune profile. [Point of Law]
  • Economists and scholars file Supreme Court amicus brief calling for federal preemption of state “anti-predatory lending laws” in important Watters v. Wachovia case. [Zywicki @ Volokh; CEI]
  • One-sided coverage by the New York Times on the issue of web accessibility for the blind. Earlier: Oct. 27; Feb. 8. [New York Times]
  • Deep Pocket Files update: MADD tries to intervene in stadium vendor case where appellate court tossed $105 million verdict because of unfair trial. See Aug. 4 and links therein. [New Jersey Law Journal]
  • Lawsuit: my dead father’s baseball card mischaracterizes his nickname. [Lattman]
  • Lawsuit: I have legal right to the letter W. [Times Record News via Bashman]
  • Samuel Abady and Harvey Silverglate on libel tourism. [Boston Globe via Bashman]
  • Another roundup of Justice Robert Thomas libel lawsuit stories. [Bashman]
  • $15M Minnesota verdict blaming a delayed delivery for cerebral palsy, despite evidence it was caused by an unrelated infection. [Pioneer Press]

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Minn. court: traffic-cam ticketing unlawful

The Minnesota appeals court took exception to a provision of the law providing that a car owner would be responsible for traffic infractions caught on camera unless he or should could prove someone else was driving. (Joy Powell, “Court upholds ruling against traffic cameras”, Minneapolis Star-Tribune, Sept. 23). For more on the evils of traffic-cams and contingency-fee law enforcement, see Sept. 6, 2001, Apr. 8-9 and Apr. 19-21, 2002, Mar. 10, 2004, and Mar. 31, 2005.

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Update: assigning air carrier poor safety grade not defamation

Following up on our item of last May 12: the Eighth Circuit federal court of appeals ruled last year that the safety rating group ARGUS (Aviation Research Group) had not defamed Aviation Charter Inc. in 2001 by assigning the charter operator its lowest safety rating, “DNQ” or “Does Not Qualify”. Aviation Charter Inc. operated the plane whose crash a year later, in 2002, killed Sen. Paul Wellstone of Minnesota and seven others. The Eighth Circuit affirmed a lower court’s decision to dismiss the suit, saying ARGUS’s comparative ratings involved subjective interpretations of data and were not “sufficiently factual to be susceptible of being proved true or false”. So for now, at least, it seems that if you want to rate air carriers’ safety, go ahead and rate away. (“Court decisions: Air carrier’s poor safety rating isn’t defamatory”, National Law Journal, Aug. 1, 2005, not online).

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“Midwest Oil fined for selling gas too cheaply”

Yep, it’s happened again: “The Minnesota Commerce Department on Thursday announced plans to fine a gas station chain $140,000 for repeatedly selling gas below the state’s legal minimum price.” (Tom Ford, Minneapolis Star-Tribune, Feb. 24). For earlier installments, see Jun. 5, 2004 (Minnesota again), May 21, 2005 (Maryland). And, of course, for the reverse, see Feb. 17, etc.

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Proliferation of Taser Suits

Taser International has experienced tremendous growth over the last few years, but now is facing a growing number of lawsuits. Some of these suits narrowly focus on police departments for their use of the Taser, while others name Taser itself in defective product suits. A quick scan of the news over just the last few days reveals suits in Georgia, Ohio, Tennessee, Canada, Florida, and Minnesota.

Taser claims that many of these suits have been dismissed. Taser faces some of the same problems faced by vaccine makers and even airbag makers – their product clearly saves lives vs. the alternative (i.e. getting shot with a real gun), but this “safer product” value proposition gets confused with “completely safe,” which leads to careless use and mistaken expectations.

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