- Picture of farmer with goose appears on greeting card, he wants $7.5 million [Roanoke Times; earlier]
- More class actions filed over Apple iPhone [Ars Technica on roaming and battery claims, O’Grady’s PowerPage, iPhoneWorld; earlier]
- L.A. Times quotes attorney Stephen Yagman on prison overcrowding, but forgets to mention that he was lately convicted of thirteen felonies [Patterico]
- Bad idea watch: compulsory national service [Somin @ Volokh]
- Doing well representing the little guy: Gerry Spence lists his Wyoming residence for sale at $35 million [WSJ/Chicago Daily Herald]
- “Appropriate”, not “perfect”, justice needed: “We simply have to stop killing litigants with kindness,” says chief judge of Australia’s largest state [The Australian]
- Toddler killed after wandering into heavy traffic, trucker should have been more on guard against such a thing happening [Salt Lake Tribune]
- Pennsylvania pro se litigant sues Google, says it spells his social security number upside down [Ambrogi] More: Coyote says “Up next, the owner of Social Security number 71077345 sues Shell Oil for the same reason.”
- Once billed as “King of Torts”, Miami asbestos lawyer faces fifteen years behind bars for stealing $13 million from clients [Sun-Sentinel]
- Groom sues bride, saying she took the ring and presents and never got the wedding paperwork straightened out leaving them legally unmarried [ClickOnDetroit]
- Surgical resident on the hook for $23 million in Wisconsin case; she was the only one of the docs involved not covered by damage limits [Journal Sentinel via KevinMD]
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.)
The Wyoming injury lawyer is known for his extended rants on the theme of the People versus the Interests, which makes it piquant to see his name turn up so prominently among exploiters of a federal tax provision intended to benefit the needy, in this case — through his Trial Lawyers College — allowing him to maintain his control over a spectacular 220-acre ranch while dodging the taxman. ABC News has the details (Jake Tapper and Avery Miller, “Wealthy Cash In on Charity Tax Loophole”, Mar. 24). Trial lawyer/blogger Mike Cernovich, a satisfied customer of Spence’s seminar operation, praised it here, while his co-blogger Norm Pattis more recently noted the tax-avoidance story.
Many farmers use anhydrous ammonia as fertilizer, because it provides vital nitrogen nutrients to the soil. The combustible material is produced in Louisiana, and then shipped to the Midwest on barges or through pipelines, and then stored on tanks on farms. However, ammonia is also useful for making illegal methamphetamines, and thefts are a regular problem. (KOMU-TV, “Law Officers Fight Ammonia Thefts”, May 19). If a thief injures himself tampering with an ammonia tank, should he be able to sue the farmer for the injury? Three states, Kansas, Missouri, and Wyoming, say no, and provide immunity for those who store, handle, or own ammonia equipment from suit by thieves. Legislatures are considering the issue in other midwestern states.
The misnamed anti-tort reform Center for Justice & Democracy has noticed the success of the ATRA’s judicial hellhole campaign (Dec. 15; Dec. 3, 2003), and decided to respond with its own report, the “Zany Immunity Law Awards”, intended to single out “special interests” who opportunistically subvert the legislative system to get improper immunity from liability. The cover shows a legislator receiving a statuette, cash in his pocket, and roses with a ribbon labeled “Sleaziest Legislation.”
Exposing sleazy special-interest immunity laws is a noble sentiment–but it’s a sure sign of how few and far between such laws are that CJD singles out the sensible anhydrous ammonia immunity laws for its top ten list. The CJD incorrectly blames the law on a supposed “anhydrous ammonia business lobby”; in fact, it’s groups like the Michigan Farm Bureau that push for laws like Michigan S.B. 786. Indeed, the only group to oppose such laws? Trial lawyers’ lobbying groups. See also Kelly Lenz, “Fertilizer law to help farmers”, Farm and Auction, Jun. 12, 2002.
How ridiculous are the CJD awards? One of the top ten “zany immunity laws” refers to “immunity” granted to placebo manufacturers and distributors. Except the immunity in question isn’t immunity–it’s an exception to a criminal statute prohibiting the sale of fake drugs! E.g., Fla. Stat. 817.564(6)(a). (This is the only appearance of the word “placebo” in the Florida Code. It’s telling that CJD omits the statutory cite in its footnotes.) Perhaps this law is zany, but it’s hardly an example of a special interest group buying sleazy legislation that damages consumers. A subject of a research test who is injured by adulterated placebos (has this ever happened?) will still have a cause of action.
As I documented through the night at PointOfLaw.com, voters gave doctors and the business community some major victories in yesterday’s ballot measures. Limits on malpractice lawyers’ fees passed resoundingly in Florida, in a stinging rebuke to the trial bar. Among three other states considering med-mal ballot measures, doctors won decisively in Nevada and lost in Wyoming, while Oregon’s measure was slightly trailing but too close to call. (Update Nov. 9: late returns show one of the two Wyoming measures apparently passing after all.)
In California, in a convincing victory for the business community and good sense, voters approved Proposition 64 by a wide margin, requiring lawyers to demonstrate actual injury before invoking the state’s broad unfair-practices statute in private cases. (Thank you, Arnold.) Colorado voters lopsidedly defeated a trial-lawyer-sponsored measure to expand litigation over alleged construction defects. And in the two hot judicial contests, for seats on the Illinois and West Virginia Supreme Courts, trial-lawyer-backed candidates lost in both. Details on all these races can be found on PointOfLaw.com. Also, voters ignored this site’s advice and passed all eleven state marriage amendments on the ballot.
Finally, some politicians whose ambitions this website has followed were locked in too-close-to-call races: Washington state AG Christine Gregoire (see Oct. 28) was slightly trailing a GOP opponent in her bid for governor, while former trial lawyer lobbyist and Bush HUD secretary Mel Martinez (see Sept. 3) was leading by 80,000 votes in his Florida Senate race against Democrat Betty Castor. (Update: Martinez wins). John Edwards’s vice-presidential ambitions seem at the moment to depend on an unlikely reversal of Ohio results in late vote counting, while his home state of North Carolina went Republican both in the presidential race and in filling Edwards’s old seat. (Update: Kerry and Edwards concede).
As readers of this site know, voters in six states are considering legal-reform initiatives on today’s ballot. At my other website, the Manhattan Institute’s PointOfLaw.com, I’m planning to post regularly updated live coverage tonight of election returns on the measures, with special attention to any instances where the vote totals prove to be close. (I might also post the odd comment on other races of interest.)
The ballot measures are: Florida’s Amendment 3 (limiting lawyers’ med-mal fees), lawyer-sponsored Amendment 7 (removes confidentiality of medical peer review) and Amendment 8 (strips licenses of doctors who lose three malpractice verdicts); Wyoming’s Amendments C and D (authorizes legislative limits on med-mal awards); Oregon’s Measure 35 (limits med-mal awards); Nevada’s Question Three (limits med-mal awards) and lawyer-sponsored Questions Four (undercuts med-mal reform) and Five (forbids legislative reductions of liability); Colorado’s lawyer-sponsored Amendment 34 (expands right to sue over alleged construction defects), and California’s Proposition 64 (narrows scope of s. 17200 “unfair competition” law).
The timing: Florida polls close at 8 pm EST, Colorado and Wyoming at 9 pm, Nevada at 10 pm, and California and Oregon at 11 pm. I’m in the Eastern time zone, and intend to stay up until 2 am (11 pm Pacific) if that’s needed to follow any still-unresolved contests.
How readers can help: I’ll have access to standard online sources that cover these sorts of votes (big-city papers, Secretary of State websites) but in the past those sources have sometimes been slow to post totals, especially on “down-ballot” issues. I won’t have much access to local broadcast sources, for the most part. If you’ve got fresh news on your state to report, such as a local news organization’s calling a ballot contest one way or the other, email me at editor (at) pointoflaw – dotcom.
Once again, the liveblogging tonight will be going on at Point of Law, not here. [cross-posted from Point of Law, with slight changes][bumped 2:30 pm]
Won’t we all be glad when it’s over:
* At Point of Law, I’ve got a post up tracking the current status of the propositions on four states’ ballots that would limit medical malpractice litigation or fees. The situation in Florida looks grim for doctors who’ve pushed such curbs (they’ve been outspent by their lawyer opponents, $22 million to $7 million). Voters in Nevada, Oregon and Wyoming may be better disposed toward their states’ ballot measures.
* On Friday, Ted posted about how critics of trial lawyers are getting sued for running an ad commenting on the Illinois Supreme Court race. Unfortunately, that’s just one of numerous instances in which criticizing the Litigation Lobby in paid advertisements is itself getting to be legally hazardous. In a new post at Point of Law, I list two other recent instances.
* Both the New York Times and the National Law Journal are out with stories on the very nasty and expensive battles between business interests and trial lawyers in state supreme court races, especially those in West Virginia (see May 13, etc.) and Illinois (Adam Liptak, “Judicial Races in Several States Become Partisan Battlegrounds”, Oct. 24; Emily Heller, “Judicial Races Get Meaner”, National Law Journal, Oct. 25).
* “Voters may run a gantlet of lawyers before reaching the ballot box on Nov. 2.” The two major parties are deploying lawyers by the thousand to challenge state procedures and individual votes (Miles Benson, “Voting in a Battleground State? Prepare to Meet a Lawyer at the Polls”, syndicated/Newhouse, Oct. 23).
In West Virginia, insurer NCRIC was paying out $1.07 in claims for every $1 in premiums collected; it almost left the state until regulators allowed them to raise rates to make up the difference. Of course, some doctors can’t afford the new rates, and have had to stop practicing at hospitals and nursing homes that require insurance. ATLA once again blames the insurance companies for failing to invest premiums in such a way to pay the rising claims. The insurer’s problems were exacerbated when a D.C. jury levied a $18 million countersuit verdict against NCRIC when it tried to collect $3 million in unpaid premiums from the defunct Columbia Hospital for Women Medical Center. (Dina ElBoghdady, “D.C. Malpractice Insurer Feels Squeeze”, Washington Post, Sep. 6).
In Illinois, the political debate continues over the need for tort reform, as doctors continue to flee the state. Ed Murnane, of the Illinois Civil Justice League, notes that 40% of the doctors in St. Clair and Madison Counties have been named as defendants in lawsuits between 2000 and 2003; even though the overwhelming majority of plaintiffs collect nothing from such cases, the costs of defense are high. (Mark Samuels, “Group: Tort Reform Can Stop Malpractice Crisis”, The Southern, Sep. 3; Rob Stroud and Herb Meeker, “Illinois physicians say insurance rates are driving them out of state”, Journal Gazette/Times-Courier, Sep. 3).
An editorial signed by 25 Washington County, Maryland doctors protests the legislature’s failure to reform the medical malpractice system. (“Lawsuits will drive doctors away”, The Herald-Mail, Sep. 5).
In Nevada, the trial lawyers groups are trying to obstruct reform by putting forward faux reform measures on the initiative ballot that would wipe out the real reform measure, Question 3. For example, Question 5, proposes penalties for filing or defending “frivolous” lawsuits–but redefines “frivolous” to narrow the classification as to be meaningless. At the same time, it bars the legislature from ever implementing caps. An earlier attempt to stop Question 3 with a last-minute lawsuit failed. (Tanya Albert, “Nevada tort reform ballot fight now brewing”, American Medical News, Sep. 13; AP, Aug. 25; No on 4 and 5 website).
Washington state doctors are traditionally politics-free, but the medical malpractice crisis could change that and force them to lobby for the reform Initiative 330. “‘Physicians in the main have an aversion to mixing politics with their professional medical practice,’ said Dr. Kevin Ware, president of the county medical society. ‘But under the current circumstances, the need for malpractice insurance reform is so desperate that physicians are having to look seriously at departing from that custom.'” (Sharon Salyer, “Doctors may lift ban on politics”, The Herald, Sep. 6; Wallace blog, Aug. 31).
Wyoming has lost 10 percent of its doctors in the last eighteen months, and the state’s largest malpractice carrier will stop renewing policies October 1. A constitutional amendment is necessary for reform there. (Lee Lockhart, “Lawmaker predicts heated debate over damage caps”, Casper Star Tribune, Aug. 27).
Good news! Florida federal agents have apparently done such a good job clearing the shores of criminals and terrorists that they’ve moved to tackling the perversely trivial.
Wyoming teacher’s aide Hope Clarke stayed in Yellowstone last year, and was fined $50 for failing to put away her marshmallows in violation of the park’s food storage requirements, a fine she was required to pay before leaving the park. But, somehow, she ended up on a bench warrant list; when her cruise ship returned from Mexico, she was rousted and handcuffed by federal agents at 6:30 am, and haled before a court in “shackles and short shorts” hours later–even though the copy of the citation showed the fine had been paid. Magistrate Judge John O’Sullivan apologized, and ordered her released over the prosecutor’s suggestion that the case be transferred to Wyoming. (Catherine Wilson, AP, Jun. 19) (via Weinstein)(& letter to the editor, Sept. 10).
“After six years of regulations and restrictions that have cost builders, local governments and landowners an estimated $100 million, new research suggests the ‘threatened’ Preble’s mouse in fact never existed. It instead seems to be genetically identical to the Bear Lodge meadow jumping mouse, which is considered common enough not to need protection.” (Mead Gruver, “Research: Endangered Mouse Never Existed”, AP/Las Vegas Sun, Jun. 11; “More mice could muddy waters in Preble’s mouse fight”, AP/Casper Star Tribune, May 14)(more on endangered species).