Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Ohio’

Heads I win, tails don’t count files: Ohio HMO suit

The US Supreme Court denied certiorari on United HealthCare’s attempt to enforce an arbitration agreement in its contracts with doctors who filed an Ohio class action over reimbursements. The underlying class action is essentially identical to one that a federal court threw out as meritless in July, though this isn’t mentioned in the television coverage, much less that from Bizarro-Overlawyered. The Class Action Fairness Act effectively ends this sort of Russian-roulette game where plaintiffs get multiple chances to win a gigantic class action by filing in multiple jurisdictions, but does not apply to class actions (like this one) filed before 2004.

The AMA has supported these lawsuits, which is disappointing, to be sure; as I noted on Point of Law in July, “Next time the AMA complains about the costs of excessive meritless litigation, they can perhaps look in the mirror.”

The plaintiffs’ attorney is Overlawyered favorite Stanley Chesley: see Jul. 4, Mar. 6, Aug. 24, 2005, et cetera.

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Judicial elections and the New York Times

For decades, plaintiffs’ attorneys and labor unions have worked together to elect judges favorable to their interests, and for decades, these elected judges have systematically moved American law in a direction unrecognizable and ridiculed in the rest of the world to create a tort system that takes up a share of the economy more than twice as large as any other Western nation. In response, the business community started supporting judges who had track records of actually following the law; the electorate tended to support these judicial candidates over the plaintiffs’ bar’s candidates. Because these judges aren’t in the pockets of the plaintiffs’ bar, they don’t reflexively vote for the meritless positions taken by the litigation lobby—and now the New York Times and the press suddenly finds it interesting that judges face elections where they fund-raise, and that campaign funds are more likely to be donated to candidates who are sympathetic to the funder’s view of the law. (Adam Liptak and Janet Roberts, “Campaign Cash Mirrors a High Court’s Rulings”, New York Times, Oct. 1).

Read On…

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Dead man suing

Madison County, Illinois, inimitable as ever: “For two-and-a-half years the Lakin Law Firm has carried on a Madison County class action lawsuit with a dead plaintiff,” reports the Madison Record, which says Lakin lawyer Jeffrey Millar did not inform Circuit Judge Daniel Stack about his client’s having assumed room temperature. The defendant, American Family Insurance, eventually twigged to it, and now the Lakin firm plans to switch to a live plaintiff from Ohio so as to keep the suit going. “Millar has confirmed the death of [client Manuel Hernandez of Granite City], but he has not answered questions that American Family Insurance submitted about his knowledge of it. Millar objected to the questions, arguing to Stack that American Family Insurance should submit them not to Hernandez’s attorney but to Hernandez himself.” (Steve Korris, “Dead plaintiff should answer questions, class counsel argues”, Jul. 20)(via Insurance Coverage Blog).

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Watch what you tell your hairdresser, cont’d

The official recruitment of cosmetologists as informants (and as intermediaries steering customers to approved “domestic-violence” programs) continues, with programs reported in Florida, Idaho, Oklahoma, Virginia, Ohio and Maine, as well as Nevada and Connecticut (see Mar. 16 and Mar. 29, 2000). It’s not just black eyes or lacerations that the salon employees are supposed to be on the lookout for, either. A customer’s protestation that “he would not like that”, as a reason to turn down a new hairstyle, might be a sign of “controlling behavior” that needs watching. (“Salons join effort to stop violence”, Bangor Daily News, Jun. 15) (via van Bakel).

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Update: McLeod v. Mt. Sinai Medical Center

We covered this case as Hollins v. Jordan in 2004 on Nov. 20, Oct. 11, and Aug. 31. In a disingenuous 2-1 opinion, an Ohio appellate court overturned the lower court’s grant of a new trial, and reinstated the liability verdict. The court did hold that the $30 million verdict was too high, but it is unlikely to be reduced more than 20%. I found the dissent, starting on page 23, persuasive; the majority opinion falsely claims that the defendants did not challenge liability on appeal to argue that there was no need for a new trial. New detail that the press did not cover: the plaintiff suffered from microcephaly—is there a legitimate doctor out there who wishes to claim that brain damage from microcephaly results from the failure to perform a C-section? Also worth reading in the dissent is the detailing of the dishonesty with which Geoffrey Fieger characterized testimony. Lawyers plan to appeal to the Ohio Supreme Court. (AP/Canton Repository, May 5 (link fixed 5:45 pm)).

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Update: “Million Little Pieces” class actions

Following the revelation that author James Frey presented fantasies as if they were autobiographical fact, enough outraged readers have stepped forward to demand cash damages — or at least enough class action lawyers have simulated the stepping forward of such outraged readers — that defendants Random House and Doubleday are now seeking the consolidation of no fewer than twelve lawsuits filed around the country. The federal Judicial Panel on Multidistrict Litigation will soon consider (PDF, scroll to p. 11) the publishers’ motion to aggregate into one proceeding suits filed in the Southern District of New York, Northern District of Illinois, Western District of Washington, Eastern District of Michigan, Central District of California, and Southern District of Ohio (via Childs). For Ted’s extensive coverage of the Frey scandal and suits, see Jan. 31 and links from there.

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“Wrongful birth” roundup

Stacy Dow, of Perth, Scotland, is suing a hospital over the birth of her healthy daughter Jayde. Dow had been given an abortion at her request but unbeknownst to both her and the doctors she had been pregnant with twins, one of whom remained unharmed after the procedure. Dow told a court she suffered physical pain, distress and anxiety from the resulting pregnancy and Caesarean delivery; she also wants money for the cost of raising the girl to adulthood. (Sarah Womack, “Mother sues for birth of ‘aborted’ twin”, Telegraph, Mar. 21)(via KevinMD). The New York Times Magazine caused a stir last month with an article about a family that sued doctors over failure to recommend amniocentesis whose results would have led them to decide to abort their handicapped child (Elizabeth Weil, “A Wrongful Birth?”, Mar. 12). Ann Althouse notes an AP story reporting that there are waiting lists of parents interested in adopting Down’s Syndrome children (Mar. 10). And in the Dec. 2004 Journal of Legal Education, Gonzaga lawprof David K. DeWolf relates an extraordinary story about what happened one year when he assigned his students the wrongful-birth/wrongful-life case of Harbeson v. Parke-Davis, decided by the Washington Supreme Court in 1983 (via Childs). More on wrongful-birth suits: Mar. 4, etc.

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Ohio high court OKs wrongful-birth cases

By a 4-3 margin, the Ohio Supreme Court has approved (PDF) a “wrongful birth” suit against doctors by parents who say they would have aborted their child had they not been given inaccurate genetic counseling. The court did reject the views of Justices Paul Pfeifer and Alice Resnick (as well as that of a lower court judge) who thought the damages payable should include the cost of raising the child through adulthood, plus pain and suffering. (Andrew Welsh-Huggins, “Supreme Court allows lawsuits over missed genetic disorders”, AP/Akron Beacon Journal, Mar. 3). However, some Ohio legislators are proposing to enact a law precluding wrongful-birth lawsuits; a bill to that effect passed the state senate this past week, but has not yet been considered by the house (Jim Provence, “Bill would protect doctors from ‘wrongful birth’ suits”, Toledo Blade, Mar. 1). More on wrongful-birth suits: Sept. 16, 2004 and links from there; May 1 (Australia) and Jun. 14, 2005. More: WizBang takes an extremely dim view of the parents in the case (Mar. 3).

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Update: licensing eBay sellers

Now it’s California legislators: “California residents who sell goods on eBay could have to pay a $295 fee and be regulated in the same way as pawnbrokers under legislation designed to crack down on the sale of stolen property.” Opponents say the bill would drive out of business thousands of antique dealers and consignment shops, as well as eBay sellers and the dropoff shops and sellers’ agents that work with them. Pawnbrokers, who are pushing the legislation, say that state law already requires that sales of secondhand goods be reported to local law enforcement, but that the law has gone unenforced against everyone but themselves. In recent years influential Sacramento legislators, including Senate President Pro Tem John Burton (D-San Francisco), have unsuccessfully proposed measures to require secondhand sellers to report transactions to a state law enforcement database, which is the pawnbrokers’ key demand. (Greg Lucas, “Pawnbrokers try, try and try again”, San Francisco Chronicle, Feb. 25). We earlier discussed proposals for licensing of eBay sellers in Ohio (Mar. 21, 2005) and North Dakota (Oct. 13, 2005).

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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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