Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘New Jersey’

Vioxx coverage (and more) at Point of Law

For comprehensive coverage of this week’s verdicts in lawsuits against Merck, see Point of Law. In particular, Ted corrects reporters who keep passing on ill-informed assertions that the Cona/McDarby results are going to preclude Merck from raising its earlier defenses in the thousands of Vioxx cases yet to come, and that that New Jersey cases are being heard in “Merck’s home court“.

Other things you’ve been missing if you don’t check our sister site regularly:

* New regular contributors include Larry Ribstein (Ideoblog), Tom Kirkendall (Houston’s Clear Thinkers), and Sam Munson (Manhattan Institute);

* Theodore Dalrymple on a new history of vaccine litigation;

* Jim Copland on Rep. Cynthia McKinney and a class action on behalf of Capitol police;

* Ted on the Supreme Court’s recent Dabit decision on state-court securities suits (here and here); and on a new med-mal study;

* Michael Krauss on a tort suit in the U.S. against ExxonMobil over abuses by the Indonesian military;

* Jonathan B. Wilson on offer-of-judgment reform in Georgia (and more); and joint-and-several-liability reform in Pennsylvania, just vetoed by that state’s Gov. Ed Rendell;

* Posts by me nominating an Arizona lawprof for “the worst and most tendentious analogy in the history of the liability debate”; on doctors’ Good Samaritan liability; a ruling in the New York school finance case, an AG who dissents from his brethren on the tobacco deal; the Rhode Island lead paint verdict (here, here, etc.); Seventh Circuit judge Diane Sykes criticizes the Wisconsin Supreme Court; and lost-overtime suits on behalf of $400,000-a-year stockbrokers. And, of course, much much more — bookmark the site today.

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Licensed Handgun Carry Wins in Kansas

Over-riding the Governor’s veto, the Kansas legislature has enacted a “Shall Issue” law for issuing licenses to carry a concealed handgun for lawful protection. Before, Kansas was one of only four states without any provision for issuing concealed handgun licenses. One of the remaining three states, Nebraska, appears poised to enact a similar law, which the Governor has said he will sign.
Kansas is now among the 39 states which have a fair procedure to allow citizens to carry handguns for protection. Along with the three states (Nebraska, Wisconsin, IIllinois) that currently do not issue permits, eight other states issue permits according to the whim of a local official (Hawaii, California, Maryland, New Jersey, New York, Massachusetts, Rhode Island, and Delaware). A Shall Issue bill is moving through the legislature in Delaware. Rhode Island already has a Shall Issue law, although the law is nullified by administrative practice.
In Wisconsin, a Shall Iissue bill has been vetoed twice, with the vetos sustained by only one or two votes. In every state where Shall Issue proponents have gotten as close as they have in Wisconsin, the state has always eventually enacted a Shall Issue law–although sometimes the process can take a while.
So of the eleven remaining states that are not Shall Issue, two of them (Nebraska and Wisconsin) are nearly certain to change at some point in the future, and there is reasonable possiblity of change in Delaware. All that Rhode Island needs to change is the election of Attorney General who will not interfere with the state law that local goverments must issue carry permits to qualified applicants.
So the number of Shall Issue states could be 43 in the not too distant future. In the seven hold-out states, Shall Issue has passed one body of the legislature at least once in the three largest states: California, New York, and Illinois.
Every year, more and more Shall Issue states create “reciprocity” with each other, so that a person with a permit from her home state can carry her firearm lawfully in a other state while visiting. Currently, a carry permit issued by one state is valid in over half of all states. (See Packing.org for details.)
As the combined total of “no issue” or “whimsical issue” states declines into the single digits, and reciprocity continues to spread, it seems hard to deny that America is concluding that Shall Issue is sensible gun control — one that regulates firearms carrying but does not infringe the right to self-defense.
For more on the Kansas law, see this excellent article in the Wichita Eagle.

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Deep pocket files: Michael Boyle v. Ford

Michael Boyle pleaded guilty to a charge of unsafe driving after he plowed into the back of a truck at 60 mph without braking and with his lights off. Unfortunately for Boyle, the under-ride rear impact guard of the truck, installed by Garden State Engine and Equipment, sheared off in the high-speed collision, and his car submarined under the truck, almost decapitating him, and leaving him with brain damage and facial insensation, though he’s able to work in his family business. This was, the New Jersey jury decided, 70% the fault of Ford Motor, which dared to sell an incomplete cab and chassis that complied with all federal regulations, and which could be modified in many different ways, not all of which require identical under-ride guards to comply with applicable regulations. $26.2 million in damages were assessed. Ford was not allowed to introduce Boyle’s guilty plea at trial. (John Petrick, “Faulting Ford and parts maker, jury awards crash victim $26.2M”, North Jersey, Mar. 22) (via Steenson, who made no mention of the contributory negligence in his summary). Unjust $26 million awards are apparently sufficiently “dog-bites-man” that the local press coverage is the only press coverage so far.

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After the lawsuit settlement, a spending spree

When big-ticket lawsuits are settled, a trust fund is often established for the future maintenance of the person whose injury occasioned the suit. How secure are these trust funds from being raided and squandered by faithless guardians? In New Jersey, apparently not very secure:

Calling it an “extremely sad case,” a judge on Friday sentenced a Fair Haven woman to seven years in prison for misappropriating much of her disabled daughter’s $2.8 million trust to buy drugs and a Porsche, among other things….[Barbara] Marschall in October admitted misappropriating funds from the $2.8 million special-needs trust established through a settlement of a medical malpractice lawsuit against Monmouth Medical Center, Long Branch. She did so between 1996 and 2004. The funds were intended to be used for services and other care for her daughter, Liza, now 20, to supplement care provided by Medicaid.

According to an assistant Monmouth County prosecutor, Marschall, an admitted heroin and cocaine addict, by 2002 had “spent about $614,000 she had received as an award from the medical malpractice settlement in 1995, then turned to the trust fund for Liza, who was born with neurological problems and cerebral palsy. By December 2004, only about $100,000 of the trust fund remained.”

Since it’s common for large funds of money to be set aside for purposes of covering future medical and personal needs for disabled plaintiffs, at least two questions suggest themselves. First, how frequently are such moneys dissipated (whether through criminal depredation, as here, or simply through less spectacular failings of stewardship) before they were supposed to run out? Second, given that they owe their existence in most cases to legal action, shouldn’t such trust funds be better protected from guardians’ criminality or incompetence? Wasn’t anyone required to ask questions — or call in an auditor, or withhold their co-signature — as this mother drained the trust fund at a rate of more than $100,000 a month over more than two years? (Karen Sudol, “7 years for raiding fund of infirm girl”, Asbury Park Press, Feb. 11; Christine Varno, “F.H. woman sentenced for embezzling”, Red Bank Hub, Feb. 16)(via Rovito).

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Update: Trump decamps to Camden

Caesar’s forum-shopping dept.: Donald Trump has filed his $5 billion defamation suit against author and New York Times reporter Timothy O’Brien (see Jan. 25, Feb. 12) not in the courts of some boringly obvious place like, say, Manhattan, but in Camden, New Jersey, which happens to be “where his golf buddy, George Norcross II, the state’s behind-the-scenes political kingmaker, holds court. In 2001, Norcross, an exec at Commerce Bank, was caught on tape boasting of having engineered a judgeship for a political foe ‘just to get rid of him.’ Norcross’s claim to control the New Jersey courts was only bluster, his longtime lawyer, William Tambussi, said at the time. Tambussi has also been retained by Trump in his suit.” (Geoffrey Gray, “Intelligencer: Trump’s Jersey Trump Card”, New York, Mar. 13).

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No more anonymous commenting

…if a New Jersey legislator gets his way. (Reason “Hit and Run”, Mar. 7). The idea is to make sure legal remedies are available “to persons injured by false or defamatory messages posted on public forum websites”. More: Michael Krauss. Update May 9: the legislator is reportedly going to withdraw the bill, following a storm of online criticism (via Reynolds).

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Update: Kreimer gets another settlement

Richard Kreimer, the homeless man who made headlines in 1991 when he won $230,000 from officials of the Morristown, N.J. public library, who had ejected him for his strongly offensive body odor and for repeatedly staring at patrons, has now obtained a settlement in his lawsuit against a New Jersey bus company whose drivers allegedly refused to let him board their vehicles for similar reasons (see Mar. 17, 2005). Kreimer says that as a condition of receiving money he is bound not to discuss the terms of the settlement. He still has individual lawsuits pending against the two bus drivers involved, as well as a separate federal lawsuit pending “against NJ Transit, the city of Summit, and others, alleging he was wrongly ejected from train stations because he is homeless.” Although a court later overturned the ruling on which the 1991 settlement had been based, it proved impossible to reclaim the $230,000 settlement paid him, which according to AP was spent about half on lawyers’ fees and half on Kreimer’s living expenses. (Wayne Parry, “Homeless man settles lawsuit against bus company”, AP/NJ.com, Feb. 17; New Jersey for Change, Feb. 18)(& welcome Fark readers — and apologies for the practice of Hosting Matters, which, we just now learned, blocks referrers from that popular site because it doesn’t want to process the burst of traffic. If you get a blocking message, try “refresh/reload” or go to our main page and scroll down).

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Retailers Settle Katrina Gas-Price Suits

Over at Coyote Blog today, I observe that while most of us have shifted our attention away from Katrina, gas price “gouging” lawsuits against gasoline retailers still continue. Sunoco became the latest retailer to settle, paying New Jersey over $300,000 to be left alone. Many other states have also gotten into the act, including Aspiring Governor Eliot Spitzer, who would never miss an opportunity to score some populist points.

So, having spent months trying to explain markets and supply & demand and refute the silliness of the “price-gouging” concept, what are gasoline retailers doing today? Why, they are hauling credit card companies in front of Congress to accuse them of … price gouging (Coyote Blog, Feb 17). Also see Sept 2, Sept 1.

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Jury selection, while you wait

The Lay-Skilling Enron criminal trial will be one of the highest-profile Houston trials in many years, but in the courtroom of U.S. District Judge Sim Lake the process of jury selection was over within a day. That should be a lesson to judges elsewhere — especially in state-court proceedings — who allow lawyers to turn voir dire into a manipulative process that can last weeks or even months. Tom Kirkendall and Norm Pattis comment.

P.S. The Wall Street Journal’s news side covers the issue today: Paul Davies and John Emshwiller, “Split Verdict on Selecting Juries Quickly”, Feb. 1 (sub only). Washington U. (St. Louis) law dean Kent Syverud says, “I think Enron ought to be a wake-up call to show everyone that it can be done”. Among those complaining of a too-short process is Christopher Seeger, the attorney for the plaintiff in the New Jersey Vioxx case recently won by Merck, who “said the case was lost in the jury selection. ‘If I had an opportunity to flesh out some of the biases I believe I would’ve been able to talk some of those people off the jury'”. P.P.S. The New Yorker has more about the jury questionnaires and consultants (Mimi Swartz, “Talk of the Town: Enron Multiple Choice”, Jan. 30).

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“2005’s Top Ten Jury Verdicts”

The new WSJ Law Blog summarizes (Jan. 16) Lawyers Weekly’s annual compilation of cases. As Lawyers Weekly tells it, the top verdicts this year were both somewhat lower and more closely linked to actual damages (i.e., less crazy) than last year’s. Among the ten: the Miami bus shelter electrocution discussed by Ted Jul. 10 (and linked to by the WSJ); Coleman v. Morgan Stanley, discussed in this space May 18 and Nov. 17; the $253 million verdict in Ernst v. Merck; the $105 million verdict against beer servers at New Jersey’s Giants Stadium (Jan. 21 and Feb. 2); and Hall-Edwards v. Ford Motor, involving an Explorer rollover.

Another interesting case on the list: Baker v. PrivatAir, in which a pilot forced out of his California job at age 63 won $64 million for age discrimination, wrongful termination, emotional distress and defamation. Some other employees with whom the pilot had had conflicts had joined forces to get him fired; one of the steps they took against him was to get him written up on safety charges, which the employer then did not adequately investigate.

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