Mike Wallace, a 41-year-old Charleston attorney, completed his bucolic riverfront playground with a 53-foot-long metal slicky slide from a defunct water resort, and spared no expense of cranes, trucks and barges to get it there. And the irony isn’t lost on him: “I’m a trial lawyer and it was probably trial lawyers that shut that place down.” Guests? “I’ll probably ask people to sign a release.” When the lake resort that had formerly owned the slide closed down in 1987, “its owners said astronomical rises in liability insurance forced their decision”. (Monica Orosz, “Slide from old Rock Lake Pool gets new life on river”, Charleston Daily Mail, Sept. 7)(& thanks to Eric Turkewitz for correcting “slicky slide” from the worse than nonsensical “sticky slide”, which I’d originally typed) .
Posts Tagged ‘West Virginia’
McDonald’s “hold the cheese” suit, cont’d
The U.S. Chamber-affiliated West Virginia Record has some further details on, as well as a selection of media reaction to, the $10 million lawsuit by Jeromy Jackson of Morgantown charging that the burger chain put cheese on his Quarter Pounder despite his requests, thus triggering an allergic reaction. (Cara Bailey, “‘Hold the cheese’ suit draws worldwide attention”, Aug. 17). Earlier: Aug. 10.
West Virginia Supreme Court benchslap
Above the Law calls opinions where judges criticize one another “benchslaps,” and there’s a doozy of one in West Virginia, made all the sweeter by the appropriateness of the facts for Overlawyered.
Robert Cleavenger and Marissa Strahin were lovers, but at some point the relationship ended. Strahin, pregnant with Cleavenger’s child, moved in with Earl Sullivan in Braxton County, West Virginia. This perturbed Cleavenger, who decided to resolve the matter with a high-powered rifle. Thinking discretion the better of valor, Sullivan fled his property in a car, taking Strahin and her brother, Daniel Strahin, with him. Cleavenger pursued, and fired at the fleeing car, hitting Daniel in the arm.
Now the lawyers enter the picture. In 1999, Daniel Strahin and his parents sued Cleavenger and his parents, and also sued Sullivan on the grounds that it was foreseeable that Cleavenger would come after people on Sullivan’s property. The Strahins demanded that Sullivan’s insurers settle for insurance limits; they refused. The Strahins then conspired with Sullivan for the latter to assign a “bad-faith” claim to the plaintiffs in exchange for a covenant not to execute on any judgment against him. A sham of a trial took place, and a jury awarded over a million dollars to the Strahins, holding Cleavenger 70% responsible and Sullivan 30% responsible. The Strahins then went after Sullivan’s insurers.
West Virginia is enough of a judicial hellhole that it affirmed Sullivan’s liability (for which the insurers paid the $100,000 limit), even though there was no longer a case or controversy against him, but even West Virginia courts would not countenance the attempt to team up against the insurer for the bad-faith claim. After all, Sullivan’s assets were never at risk because he already settled with the Strahins, so there was no harm from the insurer’s refusal to settle, even if it were in bad faith.
Amazingly, Justice Larry Starcher dissented from this common-sense result. But none of the cases he cited supported his dissent. This prompted a concurrence, and the aforementioned benchslap:
“The complexity of the issue is quite evident in view of the fact that absolutely none of the fifteen string-cited cases in Mr. Strahin’s brief is on point with the facts of his case. I should note that the dissenting opinion of Justice Starcher repeats Mr. Strahin’s error, by citing to cases that are not on point with the fact pattern presented to and addressed by the majority opinion.”
In the words of the West Virginia Record, “State Supreme Court Chief Justice Robin Jean Davis lectured Justice Larry Starcher so firmly over a dissent that he probably can count it as credit for continuing education.” (Steve Korris, “Davis lectures Starcher in insurance opinion”, Aug. 16; Strahin v. Sullivan (Feb. 21 majority opinion); Starcher dissent (Jun. 29); Davis concurrence (Jul. 19)).
Allergic to cheese, sues McDonald’s for $10 million
Jeromy Jackson says he repeatedly told the McDonald’s in Morgantown, W.V. that he needed his two Quarter Pounders without cheese, because he was allergic to cheese; “From this point forward, Mr. Jackson repeatedly asked as to the status of his food and whether it had no cheese, and took multiple preventive steps to assure his food did not contain cheese,” his suit says. On biting into the sandwich, his suit alleges, he suffered a severe allergic reaction and had to be rushed to a hospital (Cara Bailey, “Man allergic to cheese seeks $10 million from McDonald’s”, West Virginia Record, Aug. 8).
James Taranto is not what you would call sympathetic toward the action (Aug. 9): “So apparently the ‘multiple preventive steps’ he took ‘to assure his food did not contain cheese’ did not include looking at the damn sandwich before eating it”.
Putnam County Hospital update
We earlier discussed the case of osteopath John King (who now calls himself Christopher Wallace Martin after surrendering his medical license in two states). We’ll state up front: King was apparently deservedly fired for incompetence, and that undoubtedly includes some legitimate cases of malpractice. (Indeed, our original note was how West Virginia’s Putnam County Hospital could have perhaps avoided hiring King had not liability concerns prevented his previous employers from communicating problems to the hospital.) Whether it’s asbestos, fen-phen, or an incompetent osteopath, however, the legal system creates incentives for attorneys and plaintiffs to fake cases and free-ride off of the legitimately injured. A YouTube video documents some curious inconsistencies (which, to be frank, are not entirely persuasive to me for all six plaintiffs in the video). The judge has responded to the video by barring both sides from further communications with the media. (Lawrence Messina, AP/Lexington Herald Leader, Aug. 1; Chris Dickerson, West Virginia Record, Aug. 1; Turkewitz blog). The West Virginia Record calls for a prosecutorial investigation.
Location, Location, Location: The Best & Worst Legal Climates in America
Given the economic costs imposed by today’s legal system (a staggering $865 billion per year according to one recent estimate), it’s surprising more companies don’t take into account a state’s liability climate when making critical decisions like where to open a new plant or invest in existing facilities.
A new report could help change that.
Risky Business: The Annual Boardroom Guide to Litigation in the 50 States provides the first ever ranking of state legal environments that combines economic science, real world corporate experience and input from state legal reform experts – people with the most current intelligence from the front lines.
It builds on a few landmark studies, including the American Tort Reform Association’s “Judicial Hellholes,” the Pacific Research Institute’s U.S. Tort Liability Index, and the Institute for Legal Reform/Harris Interactive survey.
So where are the soundest states – and where is the swampland?
Nebraska and Virginia top the list with the best legal climates. What do they have in common? Reasonable limits on punitive damages, a “rule of law” majority on the state Supreme Court, and Attorneys General who specialize in law enforcement, not grabbing the spotlight at the expense of businesses.
In stark contrast, West Virginia, Rhode Island and Florida round out the bottom of the list. All have activist Supreme Court majorities who consistently rule in favor of trial lawyers. West Virginia has a governor who supports legal reform – a reminder that having a pro-reform governor does not necessarily translate into a sound legal environment.
To see the full list go here.
Updates – May 31
Updating a couple of stories recently covered here on Overlawyered:
- First rule of damage control: when you’re in a hole, stop digging. A few weeks ago, we mentioned the West Virginia Attorney General Medicaid scandal (May 19) in which AG Darrell McGraw took it upon himself to spend state funds that he had recovered from Purdue Pharma after suing them for selling Oxycontin. This upset both the federal government, which argues that it has a legal right to some of these funds, and the state legislature, which felt that it should decide how to appropriate state funds. McGraw appears unapologetic and unworried about the federal investigation, but his office did promise the legislature that he would stop spending money. Now LegalNewsline reports that he’s going back on that promise:
Despite promises and a federal investigation, West Virginia Attorney General Darrell McGraw on Wednesday handed out even more of the settlement funds gained in a 2004 agreement with Purdue Pharma.
McGraw gave $75,000 to the Kanawha Valley Fellowship Home, which will use the money for its drug treatment and education program. He says the program will affect 20 counties.
The real problem here is not that the state legislature is annoyed — that’s local politics. The real problem is that if the federal government decides that it is entitled to a share of this money, the state is going to have to come up with millions of dollars to give to the federal government — money that McGraw already spent.
- Three weeks ago, we noted that a prominent anonymous medical blogger, “Flea,” was liveblogging his malpractice trial, and we discussed the ramifications for Flea’s case. A few hours after we posted about this, Flea stopped — presumably after his attorney had a fit. But apparently that was at least a few hours, or a few weeks, too late; Flea had left enough clues to enable the plaintiff’s lawyer to figure out that Flea is Robert Lindeman, and she questioned him about it on the stand:
With the jury looking on in puzzlement, Lindeman admitted that he was, in fact, Flea.
The next morning, on May 15, he agreed to pay what members of Boston’s tight-knit legal community describe as a substantial settlement — case closed.
The Globe also quotes a trial lawyer as claiming that the plaintiff’s attorney “had telegraphed that she was ready to share Lindeman’s blog — containing his unvarnished views of lawyers, jurors, and the legal process — with the jury,” although it’s not clear to me how his views of lawyers, jurors, and the legal process would be relevant to a medical-malpractice case.
Incidentally, Flea’s blog is apparently now totally kaput.
West Virginia Attorney General Involved in Medicaid Fraud?
One of the tricks states have used in recent years to raise money without raising taxes is to sue companies for the products they manufacture, on the legal theory that the use of those products lead to increased state health care spending. (The most prominent example, obviously, is the tobacco Master Settlement Agreement.) Not surprisingly, it often turns out that this legal theory is more of a pretext by state attorney generals to get their names in the paper than it is to actually remedy the alleged harms caused by the companies.
In 2004, West Virginia settled with Purdue Pharma, the manufacturer of Oxycontin, over the increased Medicaid costs allegedly caused by addiction to the drug. The settlement was worth $10 million. Logically, then, that $10 million should have gone to the state’s Department of Health and Human Resources to defray Medicaid costs. But there was a problem. Two problems, actually. The first was that giving the money to the DHHR wouldn’t allow Darrell McGraw, the state Attorney General, to dole out money as he saw fit. The second was that the state shares its Medicaid expenses with the federal government, so giving money to the DHHR would enable the federal government to recover part of the settlement.
The first issue has caused political controversy in West Virginia, because McGraw has given out the settlement proceeds to pretty much everybody except the underfunded DHHR, including private law firms that he hired to work on the case. But even the money that the state actually kept was handed out by McGraw based on his personal whims ($500,000 to establish a state pharmacy school (!) at the University of Charleston) rather than by the state legislature, which is constitutionally tasked with making spending decisions about state money.
But the second issue may be causing legal controversy. Legalnewsline reports that the federal government is now investigating the state’s handling of the funds, trying to find out why it hasn’t been credited for its share of the Medicaid funds. But it’s not as if it’s a secret; the deputy attorney general recently testified as to their thinking:
“We have arranged a methodology that has prevented the federal government from coming back and seizing money,” Hughes said.
Or maybe not. If you’re going to try to cheat the federal government, you should probably be a little more subtle about it. No formal charges have been filed, to be sure, and the federal government may simply resolve the problem by withholding future federal payments to the state. But that certainly won’t fix the problem caused by McGraw’s behavior; it will leave a large hole in the state’s budget which could make them worse off than if he hadn’t sued Purdue in the first place.
Walks like a contingency, quacks like a contingency
An article in the West Virginia Record discusses a survey of physicians complaining about questionable expert witnesses in medical malpractice cases. For some reason, physicians seem to think that experts will say whatever they’re paid to say. But the president of the West Virginia Trial Lawyers Association denounces the survey, including the doctors’ complaints about experts being paid on contingency:
“And you can’t have contingency experts. I abhor that, anyway. There are State Bar rules are [sic] against that.”
In fact, pretty much everyone agrees that it’s unethical to pay expert witnesses on a contingency fee basis. Most states seem to have explicit ethical rules against it; New Jersey certainly does.
But how effective do you think those rules are? They didn’t stop Nagel Rice and Mazie, a New Jersey plaintiff’s law firm, from trying to weasel out of paying its expert witness recently for his work on a med-mal case, leading the expert to sue the firm for his fees. Why did Nagel try to get out of paying? Because, as Nagel admitted in his testimony in that case, they had lost the med-mal lawsuit:
And I said, “And in addition to that, we lost the case. It’s cost my firm over $100,000 in out-of-pockets.” I said, “So, I want you to consider two things: one, it was your first time on the stand; two, I think your 17 hours is really heavy-handed; and, number three, we took a blood bath in this case. And what I do with experts over the course — I’ve been doing this almost 30 years is that where you take a huge loss, experts will virtually always work with you.”
In case that wasn’t clear, he clarified, according to the New Jersey Law Journal (subscription required):
Nagel says his firm does not seek discounts from experts on losing verdicts. Rather, expert witnesses who have an ongoing relationship with his firm tend, of their own volition, to increase their bills in the event of a victory and to cut them after a defeat.
Yup. Spontaneously. “Of their own volition.” If there’s a difference between charging more if you win/less if you lose, and a forbidden contingency, let me know.
Incidentally, perhaps Nagel ought not to have invested $100,000 in the med-mal case in the first place, without doing a little due diligence. One reason that they might have lost was because the plaintiff’s claim that she suffered severe back pain and was permanently disabled by her doctor was successfully undermined by the defendants. As explained by the Appellate Division (PDF):
Video surveillance tapes showed Meegan walking, driving, bending over to talk to children, and lifting her daughter’s bicycle into the back of a car, all without any difficulty whatsoever.
Oops. Pesky facts.
She gets an A+ in Litigation
Reader and huge fan Richard Nieporent passes along a story of a West Virginia High School student with a 4.5 GPA suing her teacher and the school board because she didn’t like the grade she received in biology. She was on a school trip on the date a big project was due, and failed to turn it in on time; the teacher failed her on the project because it was late. Naturally, litigation has followed:
“It was the intent of the defendant, Jane Schultz, to punish the minor plaintiff for being in student council by intentionally ruining her ‘A’ average,” the lawsuit says.
The student’s parents are seeking an injunction, punitive damages, and damages for “emotional stress, loss of enjoyment of life, loss of scholarship potential.”
If causing emotional stress to high school students by giving them bad grades is actionable, I think an awful lot of teachers will be in trouble.
Bill McGinley, legal counsel for the West Virginia Education Association, said the union would be watching the lawsuit closely.
“We’re very interested in this,” he said. “Especially in the notion of protecting the integrity of teacher’s grading, as well as student responsibility.
“It’s a terrible thing that people want to clog up the courts with students and their leaf projects,” he said. “The court has so much more important stuff to deal with.”
McGinley said he agrees with Withrow, the county school board’s attorney, that students need to learn responsibility.
“When they fail to meet a deadline and they start suing over leaf collections, it’s not really teaching them important life lessons,” McGinley said.
Maybe it’s teaching them the important life lesson that every disappointment in life is grounds for a lawsuit.