In Philadelphia, Common Pleas Judge Norman Ackerman “has begun tossing out lawsuits by people who said they suffered strokes after taking Alka-Seltzer Plus Cold medicine, saying the claims should be dealt with in other states. … ‘Most of those cases, like this one, involve out-of-state plaintiffs who chose to file (in Philadelphia) for no apparent reason other than the fact that their attorneys have their offices here,’ Ackerman wrote in the case of Larry Hunter, of Seattle.” (Another apparent reason might be the city’s famously generous juries.) For background on suits blaming phenylpropanolamine (PPA) for strokes, see Apr. 6-8, 2001. (“Alka-Seltzer Suit Thrown Out”, WPVI.com, Oct. 1). More: May 1, 2004, Jan. 21, 2006 (further setbacks to litigation)
The Philadelphia Inquirer reports on an unintended, but predictable, consequence of the Supreme Court’s 2002 decision forbidding executions of the mentally retarded: hundreds of prisoners sentenced to death claiming for the first time that they are retarded. Pennsylvania has two bills pending to address the tens of such claims in their state, but any laws passed on the subject are surely only the source of additional litigation. (L. Stuart Ditzen, “Suddenly, prisons full of ‘retarded'”, Sep. 28; Atkins v. Virginia decision).
Okay, we picked it in part just as an excuse to quote that headline, but the story actually does show how litigation reform can work as intended: the Philadelphia Inquirer editorially hails a precipitous drop in filings of malpractice cases in that city since the state legislature enacted a bill (meant to curb forum-shopping by plaintiff’s lawyers) which requires that suits against doctors be filed where the care was delivered. It is not yet clear to what extent the drop in Philadelphia filings will be counterbalanced by an expected rise in filings in suburban and rural counties; some cases, which had been premised on the generosity or unpredictability of juries in the center city, may wind up not being filed at all. (editorial, Sept. 4; Josh Goldstein, “Medical lawsuits plummet in Phila.”, Aug. 31). The Pennsylvania Medical Society comments (other liability resources at its site).
In other Pennsylvania-related malpractice news, a website of doctors in neighboring New Jersey is posting the text of the “Liability Update” newsletter put out by PaMedSoc Legislative Issues Chair Donna Baver Rovito (sample), packed with news clips of interest to anyone interested in the medical liability crisis whether resident in Pennsylvania/New Jersey or not (mirror AOL site with comments) (also available at Politically Active Physicians’ Association (www.fightingdocs.com), click through “News and Information” on left column). [Corrected Sept. 13 to repair/improve nonworking links]
We’re named among the weekly “Web Winners” picks of Philadelphia Inquirer columnist Reid Kanaley, who recommends us for “such class-action gems as the one in California demanding discounts for men on ‘ladies night.'” (Aug. 14). Vincent Carroll, writing in Denver’s Rocky Mountain News, predicts that the forthcoming Kobe Bryant trial is unlikely to resemble the atrocious O.J. Simpson trial, and quotes our editor on the question of jury selection and its abuse (“Spectacle of O.J. trial won’t repeat itself here”, Aug. 16).
Hillsborough, N.C.: “A Guilford County high school graduate who recorded a perfect SAT score is suing UNC Chapel Hill, alleging the school refused to admit him after his grade point average dropped. Mark Edmonson, a National Merit Scholarship finalist, scored a perfect 1,600 on his SAT last year, but his grade point average fell from 3.8 to 3.5 in his senior year at Northwest Guilford High School. … ‘His senior year grades are C’s, D’s and F’s,’ Ziko said [Thomas Ziko, a lawyer for the state].” (“Student who aced SAT sues UNC for denying entry”, Charlotte Observer, Aug. 20). An earlier acceptance letter from UNC had said, “We expect you to continue to achieve at the same level that enabled us to provide this offer of admission”. Edmonson’s family is beginning to talk about how the university didn’t sufficiently take into account the consequences of his having a disability, attention-deficit disorder (Eric Ferreri, “UNC admission rescission sparks suit”, Durham Herald-Sun, Aug. 19) (via “Begging to Differ”, Aug. 21; Kimberly Swygert at No. 2 Pencil also comments (Aug. 21)).
Meanwhile, as Joanne Jacobs notes, “Blair Hornstine, who sued her school district for $2.7 million for trying to name a co-valedictorian, has settled for $60,000, reports the Philadelphia Inquirer. She’ll get $15,000; the rest will go to her lawyers.” (see Jul. 12 and links from there). Kimberly Swygert has more as does the Weekly Standard’s Jonathan Last (Aug. 20)(& letter to the editor, Sept. 18).
A federal judge has ruled that a private boys’ school is not obliged to offer a summer instruction program as a way of accommodating a disabled student who would otherwise fall behind his class. The Haverford School in suburban Philadelphia had already extensively accommodated previous requests by the junior, who has been diagnosed with chronic fatigue syndrome and sleeping disorders. Could this be what the American Constitution Society is talking about when it refers in alarmist tones to the “vanishing” Americans with Disabilities Act? (Shannon P. Duffy, “School Not Obliged to Offer Summer Program Under ADA”, The Legal Intelligencer, Aug. 7).
“A federal appeals court has revived an abuse of process suit against a law firm and lawyer that allegedly used unfair tactics in litigation — including hiding documents, obstructing discovery and fabricating privilege claims — after finding that a lower court improperly determined that such conduct was immune from suit under the doctrine of judicial privilege.” A Philadelphia judge had found that insurer Fireman’s Fund and its Washington, D.C.-based law firm, Gilberg & Kiernan, had committed extensive misconduct in defending asbestos coverage claims brought by policyholder General Refractories Corp. GRC proceeded to file an abuse of process action against the insurer and its law firm, but a federal judge ruled that lawyers enjoy near-absolute immunity from abuse of process claims when engaged in litigation, under a privilege for “judicial communications”. Not so, said an appeals court, which construed the privilege more narrowly and reinstated the suit: it would frustrate the purpose of rules against abuse of process to let lawyers exempt themselves so sweepingly from liability for such abuse. (Shannon P. Duffy, “Suit Over Litigation Tactics Revived”, The Legal Intelligencer, Jul. 30)(via Legal Reader).
On Monday NBC News ran a supposed “in-depth report” on the gun-suit preemption bill now pending in Congress (no transcript online), essentially parroting the arguments of the bill’s critics. Blogger Alphecca provides a concise critique (Jul. 28). See Apr. 4-6, Apr. 25-27. J.R. Labbe of the Fort Worth Star-Telegram scoffs at the rather desperate efforts of some gun-litigation backers to spin Judge Weinstein’s dismissal of the NAACP lawsuit as somehow a victory for them (“Gun debate lacks common sense”, Tallahassee Democrat, Jul. 30). The National Association of Manufacturers warned this March that the precedents being sought by anti-gun litigators, “if widely applied, could result in bankruptcies for countless manufacturers of lawful products … ‘Today it?s handguns, but tomorrow it could be power tools, golf clubs or automobiles,’ said NAM Vice President for Litigation Quentin Riegel.” (NAM press release, Mar. 26). See also Dave Kopel, “Ban lawsuits that hurt legal gun industry”, Philadelphia Inquirer, May 19 (“At an American Bar Association symposium in 1999, one of the plaintiffs’ attorneys for the antigun lawsuits explained that the attorneys had read the Dun & Bradstreet reports on the firearms companies, estimated how much the companies could spend defending themselves against litigation, and then filed so many cases in so many jurisdictions that the gun companies would not be able to spend the money to see the cases through to a verdict.”)
“[N]o area of U.S. civil justice cries out more urgently for reform than the high-stakes extortion racket of class actions, in which truly crazy rules permit trial lawyers to cash in at the expense of businesses. Passing this bill would be an important start to rationalizing a system that’s out of control,” editorializes the Washington Post (“Reforming Class Actions”, Jun. 14). “Federal courts are better equipped to handle complex cases with national implications. Of course, they’re also more likely to dismiss class-action suits. So it’s no wonder that trial lawyers are up in arms about this legislation,” notes the Chicago Tribune, which likewise supports the bill (“The class action money-chase”, Jun. 18). As does the Las Vegas Review-Journal (“A real class act”, Jun. 13) (& see Apr. 25-27 (Christian Science Monitor).
The bill passed the House Jun. 12 by a 253-170 vote with not only near-unanimous GOP support but also significant backing among liberal lawmakers, including Emanuel (D-Ill.), Harman (D-Calif.), Ford (D-Tenn.), Peterson (D-Minn.) and McCarthy (D-N.Y.), according to roll calls posted by the National Association of Manufacturers, which like the U.S. Chamber and virtually every other business group supports the bill. See also Christopher Armstrong, “Class Action Reform Gets Verdict in the House, Jury Still Out in the Senate”, Center for Individual Freedom, Jun. 19. Opposed: New York Times, Philadelphia Inquirer, Columbus Dispatch, Rep. John Conyers, as well as L.A. Times and Milwaukee Journal-Sentinel (not online).