February 3rd, 2020

The Left Turn Auto Case (And the runaway jury)

You won’t see this appellate decision in any newspaper. You just won’t. It’s not sexy.

Not the actual t-boning at issue here.
Not the actual t-boning at issue here.

There’s nobody famous, the lawyer didn’t sue for a bazillion dollars and the jury didn’t award a gazillion dollars.

Because that’s where the media looks. Fame and money. Runaway juries. That’s what gets the clicks.

Except that this jury was a runaway. It just ran away in favor of a defendant car driver and awarded zippy-do-da to the injured plaintiff. Ergo, no story, or at least no story that gets clicks.

Out of the Appellate Division (4th Department) comes a decision reversing a jury verdict in favor of the defendant.

The facts were simple: A car turned left in front of a motorcycle. The kind of turn you teach your children to fear when they learn to drive. You don’t want to involved in a t-bone. From any perspective. And certainly not from the perspective of a motorcycle.

The view of the turning driver was unobstructed and there was a clear line of sight. The driver admitted at trial that he “never saw the plaintiff or his motorcycle prior to the accident.” There was, in other words, no reason not to “see what what there to be seen.”

The jury, inexplicably, came back with a defense verdict. Maybe they hated lawyers. Maybe they hated lawsuits. Maybe the judge gave them the case late Friday afternoon and they wanted to get the hell out of the courthouse. Maybe they hated the plaintiff or hated motorcycles or hated the lunch that the court officers served to them. Maybe a million things.

Juries are funny that way. They don’t always do that which seems abundantly obvious. They engage in jury nullification, ignoring the law, or simply not listening to the law, or not caring because they have other agendas.

Some auto cases are straightforward. Like a hit in the rear. Or, in this instance, a left turn case.

The trial judge should have tossed the verdict out as against the weight of the evidence. That didn’t happen. So the appellate division did it.

Reversed, as the jury finding “that defendant was not negligent could not have been reached on any fair interpretation of the evidence.”

It’s a tough standard to meet. But the facts as laid out by the Fourth Department make it look like a no-brainer. The case, decided last week, is Cramer v. Schruefer. A new trial was ordered.


January 14th, 2020

So the Secret Service Shot Your Dog…

(Gardiner Anderson/for New York Daily News)

There’s an ugly story in the Daily News today about a couple walking their dog in Brooklyn. They turn a corner and startle an off-duty Secret Service agent.

Secret Service agent pulls weapon and shoots down dog.

Agent claims dog not on leash. Daily News publishes picture of dead dog with leash. Secret Service decides not to comment further.

“She scared a cop who was walking home,” the visibly shaken dog’s owner said as he covered his eyes. “He shot her and she’s dead.”

I told you it was ugly.

Immediately, on Twitter, if you followed the story, there were folks saying that the owners should sue.

They could sue. But they would lose. Unless you count the value of the dog as winning. Which it isn’t.

In New York, dogs are considered property. And there is no claim for emotional distress to the owner of lost/destroyed property, regardless of whether it is your dog, your bike , or your favorite photo of your Great Aunt Gertie that was burned to a crisp. From the Appellate Division in Fowler v. Town of Ticonderoga:

Regarding plaintiff’s claim for damages for psychic trauma, a dog is personal property and damages may not be recovered for mental distress caused by its malicious or negligent destruction

You can recover the value of the property. That’s it.

If you have a physical injury of some kind (busted arm) you can recover for your emotional damage as well as the physical. Your difficulty cutting a piece of chicken with a busted wing is a loss, as is your difficulty pulling on your pants, fastening a bra, whatever.

But there must be a physical injury to recover for emotional loss. The exceptions are very limited.

One of those exceptions is the Zone of Danger case. Mom and child are crossing street at light. Driver is texting while driving and kills kid. Mom is not physically touched. This is one of the few exceptions. But it applies to immediate family only.

From New York’s top court in Bovsun v. Sanperi:

Where a defendant’s conduct is negligent as creating an unreasonable risk of bodily harm to a plaintiff and such conduct is a substantial factor in bringing about injuries to the plaintiff in consequence of shock or fright resulting  from his or her contemporaneous observation of serious physical injury or death inflicted by the defendant’s conduct on a member of the plaintiff’s immediate family in his or her presence, the plaintiff may recover damages for such injuries. (emphasis added)

The problem here, of course, is that the dog is not a family member, no matter how much you want to believe it. We have a dog. We love him. We call him Tucker McDoofusPants. But the State of New York has deemed him property.

So. Sometimes there are horrible things that happen. In this case a law enforcement official shooting down your dog perhaps because he’s a panicky little weanie. He then apparently claimed the dog was unleashed, I suppose to justify the shooting.

But the photo that the Daily News has, that I reproduced above, shows otherwise.

In answer to a request from The Daily News to clarify the characterization of “unleashed” since The News has a photo of the dog’s body at the scene with her leash still attached, a spokesman for the Secret Service said it “will not have further comment.”

Take the guy’s gun. Take his badge. Prosecute for a false report if he made one. Make sure he doesn’t carry a gun again.

But a lawsuit won’t go anywhere meaningful.

Update: A new story from law enforcement now claims the dog was wearing a leash but it was not being held. This doesn’t change the analysis that, in New York, a dog’s only value is that of property.


January 6th, 2020

What’s Your Adventure?

Self portrait

The hammock was striped in four shades of green. It hung by the water’s edge, from the end of a short wooden pier, covered by a thatched roof.

The horizon to the east was limited by only two things: Human eyesight and the curvature of the earth.

As I gently swung in the hammock, I watched the sun give the impression of sunrise, as the planet slowly rotated into position. Nearby, elegant egrets stood sentry and prehistoric looking pelicans skimmed the water’s surface, both looking for breakfast in their own special ways.

I was in Central America on an atoll with my family, 36 miles off the mainland. There was no power line. No plumbing. No cell service. No wi-fi. We were off the grid. I wasn’t even sure where my iPhone was as I hadn’t touched it in days — it being a useless brick except for the redundant camera.

Earlier that day — meaning the dead of night long after moonset — nature had asked me to briefly leave my tent, and I took a few moments to gaze at the Big Dipper ablaze near the northern horizon amidst the brightest stars I’d seen in decades. There was no light pollution to dull their twinkle.

Later that day I planned to kayak and snorkel and dive, to swim with sharks and rays and turtles and eels and a bazillion oddly-shaped, oddly-colored creatures, corals and plants in the waters of the atoll.

A diva take a photo of a shark
Smile and say “cheese.”

It’s strange, sometimes, that one can find comfort when leaving one’s comfort zone. But such is the nature of adventure.

While I was doing this, I also knew that out there on Twitter or Facebook, some folks would spend their time looking for something to be outraged about, some micro-aggression hidden to all but their own tribe, or someone who simply didn’t meet their definition of perfect.

And I knew, with as much certainty as the human brain can muster while swinging from a hammock, that none of them would ever have carved on their headstone, “I wish I’d spent more time fighting on Twitter.”

Going off the grid brings a healthy perspective.

Such travel is limited by three things: Time, money and inspiration. When we are younger, with fewer responsibilities such as jobs, spouses and kids, there is generally more time but less money. And when we are older there is generally more money but less time. But most important for such travel, without inspiration, both time and money are meaningless.

While this might appear, at first blush, to be the opening to a self-indulgent travelogue, it isn’t intended that way. One need not travel down to Belize to engage in discovery — or even up to the relatively close Catskills, Adirondacks or Finger Lakes of New York for some camping and hiking.

Hawksbill turtle.

Adventure can be found at home. It can be found anytime one leaves one’s comfort zone to explore something new. It could be eating new foods, trying new sports or recreations, listening to different kinds of music, or meeting new people. For lawyers, adventure may be in getting sworn into SCOTUS. Each is an adventure in its own way. As long as it’s new.

The results are not guaranteed. And that is part of the point. For if you knew in advance that the sun would shine, your health would be good, that special someone would say yes to a date, and that new food you tried to cook would come out great, where would be the adventure? Where is the thrill of mystery and learning and reward for time spent?

When we are younger, adventure is easy. Because everything is new, everything is an adventure. When I was 28 I quit lawyering and took a year off to backpack the world. Every hour of every day brought something new. And every so often, I still remember new stories to bore my family with.

The fam

But this year I’ll reach the 30th anniversary of my 30th birthday, and I appreciate even more how easy it is for folks to be stuck in a rut. One of my jobs now is to inspire my kids to explore and seek adventure for what it is, for each one wizens us to new experiences, new people, new views and further enlightens us to the human condition. And it’s fun.

The vast majority of my posts are on personal injury law in some manifestation, mostly geared toward New York, which kinda makes sense when you title your blog New York Personal Injury Law. This one isn’t. Unless one wants to consider that New York City’s trial lawyers, both civil and criminal, will meet jurors from across the globe and it’s good to know a bit more about the backgrounds and experiences they might have had in the old country.

So exploring and learning new things for lawyering might be a bonus. It also helps us appreciate that just because the law says x it doesn’t mean the jurors will follow that. Because their gut may tell them otherwise.

But adventure isn’t done to make us better at our jobs because then it would be called work. It is an end unto itself, like a hobby is to many, that we do merely for the experiences they bring.

As the clock struck midnight and we started the new decade, I knew that people elsewhere were out partying big time. I was asleep. Out by 9:30, as was everyone else in our camp. If you want to feel the earth turn as the sun gives the appearance of that sunrise across that unlimited tropical horizon, staying up until midnight for the artificial change of a calendar makes little sense. Besides that, watching my digital watch change from 11:59 to 12:00 isn’t terribly exciting.

The excuse of a new year (and a new decade) has brought many people, no doubt, to make resolutions. Each year I make the same one with my standard dad joke: I will make no resolutions except the one not to make resolutions. I’ve always kept it.

But this year, as I swung in the hammock on the warm morning breeze, I finally made one and relayed it to my college-aged daughter likewise swinging nearby. My resolution was to go forth and have more adventures, though I readily concede having had far more than my fair share in this lifetime. The resolution is to actively seek and find new experiences for no other reason than this is what makes each of us sparkle just a little more, and makes each of us smarter and wiser about the world around us, and it brings perspective to what we do on a day-to-day basis.

Happy New Year to everyone. And happy new decade. You may be older today than you’ve ever been but you’re younger than you’ll ever be. Go forth and have an adventure.

Now what are you intending to do?


December 12th, 2019

A Feres Doctrine Repeal? Not so Fast…(Updated)

Lt. Rudolph Feres, for whom the Feres doctrine was named, parachuted into the darkness in the first hours of D-Day in 1944. He was killed later in a stateside barracks fire and his estate was barred from bringing suit. Photo via NY Times.

The rule is as old as government itself: You can’t sue the King.

The concept of “sovereign immunity” protects governments from suit unless they specifically consent. In the U.S. we are permitted to do so by various statutes, and in the case of the federal government, under the Federal Tort Claims Act.

Well, sometimes, anyway. Because there’s a big, fat hairy exception to that rule, and that exception is for those on active duty in the military. You can’t bring suit for acts “arising out of combatant activities.” The problem here is that it’s been extended to plain old negligence away from the battlefield.

Did your stateside barracks burn down? Sorry Charlie. Or in this case, sorry Rudolph Feres. We’re you raped by your drill sergeant? Tough noogies. Your wife died from blood loss after child birth because of a looooong delay in giving blood? You get our condolences and we wish you well raising the kid as a single parent.

The Feres Doctrine prevents all suits, because the U.S. Supreme Court extended the prohibition on suits from “combatant activities” to all situations. It has long been an unfair abomination of the law.

And so, as I took the train home yesterday and read in the NY Times that a portion of the Feres Doctrine was to be repealed for medical malpractice under the pending National Defense Authorization Act, I was elated for those that had been victimized twice.

But. And you knew there had to be a “but,” didn’t you? According to the Military Times, most claims are limited to $100,000. And the military doesn’t pay the legal fees. And it doesn’t happen under the Federal Tort Claims act, but under some kind of (not yet written) administrative procedure. You can find the text here.

If the claims are limited to $100,000 this medical malpractice exception is virtually useless. Because in order to prove the claim experts will be required. The military wouldn’t be responsible for the original illness, after all. Only for that which was caused by medical malpractice. And you need experts for that.

And experts cost money. As do depositions and medical records. And with military personnel involved, probably lots of travel too.

The military, of course has unlimited resources to defend and hire experts. And all medical malpractice cases are vigorously defended.

Even a simple medical malpractice case can cost a plaintiff $25,000 – $50,000 when you figure in experts for liability, causation and damages. And that doesn’t include a trial.

And more — the legal fee is capped at 20%.

The soldier or sailor is unlikely to have that money. It will be lent by the attorneys. But which attorneys are going to pony up so much money with so much risk for so little fee? It’s a path to bankruptcy.

A $100,000 limit is a shonda. A shame. An embarrassment. It’s like putting a band aid on an amputated limb. Few people will ever find a lawyer to handle such a small case at such great risk and cost.

The text of the bill says that the Secretary of Defense can create regulations that allow them to pay more. Regulations that haven’t been written.

So what is the purpose of setting that $100,000 bar? Will future Secretaries of Defense be paying those damages out of their own budgets? Who shall they take the money from?

Why is Congress allowing the Secretary of Defense to set its own rules? Why isn’t this done under the existing rules of the Federal Tort Claims act? Why wouldn’t the Judiciary handle such a claim?

Congress should treat our soldiers and sailors better. If they are mistreated by the military doctors they are compelled to use they should have access to justice. Real justice. Not this pretend crap.

It’s often said that perfect is the enemy of the good, but I can’t see how this will end out as good if this bill is so watered down that the Secretary of Defense can so easily circumvent Congress.

See also:

Addendum: The following press release came from Rep. Jackie Speier, who spearheaded the campaign to fix the Feres Doctrine. She asserts that there will be congressional oversight of the rule making and that the potential recovery is “unlimited.” The devil, it is often said, is in the details:

December 10, 2019  Press Release 

Washington, D.C.- Last night, the House and Senate Armed Services Committees released a conference report for the fiscal year 2020 National Defense Authorization Act (NDAA) that included an administrative claims process that will compensate servicemembers harmed by medical malpractice in military facilities. As Chair of the House Armed Services Military Personnel Subcommittee, Congresswoman Jackie Speier (D-CA) has led the campaign to achieve justice for victims of military medical malpractice over the last year.

“Today will be remembered as a landmark day in the fight for justice for servicemembers and their families,” Rep. Speier said. “After nearly 70 years of the FeresDoctrine, servicemembers and their families finally have a path forward in seeking compensation for medical malpractice committed by military health care providers, and the Defense Department will have to take their claims seriously. This victory belongs to the hundreds if not thousands of injured servicemembers and their loved ones who have spoken out about this injustice and forced Congress to listen. In particular, today belongs to Army Green Beret and SFC Richard Stayskal, who, after receiving a terminal cancer diagnosis that stemmed from military medical malpractice, forged a bipartisan coalition to achieve this legislative breakthrough through his countless visits to DC and heroic advocacy.”

Though this provision will not create an exemption to the Feres doctrine nor will it allow servicemembers to sue the Department of Defense (DOD) for medical malpractice in federal court, it will allow servicemembers to receive uncapped monetary compensation under the Military Claims Act for malpractice. It also forces the DOD to document and respond to these cases. The legislation also contains provisions to enable congressional oversight of DOD’s rulemaking and administration of the claims process so that it can be improved in future years.

“Though today’s conference report was an accomplishment in many respects, this fix is far from perfect,” Rep. Speier added. “Servicemembers – like their families, federal civilian employees, and even prisoners – who suffer from malpractice deserve their day in federal court. And I have serious concerns about allowing the DOD to run the entire claims process as they will write the rules, investigate malpractice incidents, and adjudicate claims. But it was important that we seize this unique political moment, created by the hard work of Richard Stayskal and other victims and their loves ones, as well as the availability of funds to pay for claims under Congressional budget rules. Rest assured that I will closely oversee the implementation of these changes and continue to work to address the myriad injustices that remain due to the Feres doctrine.”

Rep. Speier chaired a Military Personnel Subcommittee hearing on the impact of the Feres doctrine and prospects for reform after meeting with SFC Stayskal in late 2018. Subsequently, she introduced H.R. 2422, the SFC Richard Stayskal Military Medical Accountability Act of 2019, which passed as part of the House’s NDAA bill.


December 5th, 2019

Jury Nullification and the Trump Impeachment

We have criminal trials. We have civil trials. And we have, rarely, impeachment trials.

Today Mark Bower explores the concept of jury nullification in the context of jurors doing whatever they hell they feel like, regardless of the law. I explored jury nullification once before, albeit it briefly, many years ago.

This fuller discussion comes in the wake of news of President Trump wooing Congressmen and Senators with Camp David visits and special lunches.


A primer on jury nullification:

The United States Constitution guarantees a trial by jury to all persons accused of a crime. That jury is comprised of average citizens from all walks of life with no special training or skills to serve other than being a U.S. citizen who is at least 18 years old, residing in the judicial  district for a set period of time (typically one year), being proficient in English, having no disqualifying mental or physical conditions, and (in most states) not having a pending or previous felony conviction. In fact, more than 32 million people are called for jury service every year, according to the National Center for State Courts.

Serving on a jury is a hallmark of our justice system and a cornerstone of democracy. But did you know that, unlike judges, juries historically have been able to ignore the law in order to achieve justice in individual cases that involve unjust rules or their unjust application? This is known as jury nullification. Below, you will find a discussion of jury nullification, including how it’s defined, its legality, examples, and how this applies to the impeachment of Trump.

Jury Nullification Defined:

Jury nullification might sound like a convoluted concept in an already confusing legal system, but the idea is actually quite simple. It happens when a jury returns a verdict of Not Guilty despite its belief that the defendant is guilty of the violation charged. Why would a jury do this? Don’t jurors swear an oath to uphold the law? Yes, but oftentimes it is a tool juries can use to set aside a law they believe is immoral or wrongly applied to the accused.

For example, in the 1800s the government passed stringent fugitive slave laws that compelled citizens of all states to assist law enforcement with the apprehension of suspected runaway slaves. Known as the Fugitive Slave Act of 1850, the law included large fines for anyone who aided a slave in an escape, even by simply giving the person food or shelter.

Northerners used the jury box to voice their protest by refusing to convict in these cases and thereby “nullifying” the law on moral grounds. A mirror-image may be found in the countless acquittals in the South of whites charged with lynching black men, regardless of clear guilt-in-fact. In other cases, juries nullified prohibition era laws and drug laws that they disagreed with. Put crudely but accurately, the jurors rejected the charges based on personal beliefs that the laws were wrongheaded.

Jury nullification also exists in civil cases but is relatively uncommented-on. Every trial lawyer knows that cases may be won or lost based on intangibles, such as the likeability or unlikeability of the client, that has nothing to do with the merits of the case. A jury nullification advocacy group estimates that 3–4% of all jury trials involve nullification. A recent rise in hung juries is seen by some as being indirect evidence that juries have begun to consider the validity or fairness of the laws themselves.

Legality of Jury Nullification:

Jury nullification is legal according to the U.S. Supreme Court, but whether or not juries may be instructed on this right is a different matter. Although the power of jury nullification exists, lawyers are generally prohibited from urging a jury to disregard the law. Although no precedent revokes the power of nullification, courts have since the 19th century tended to restrain juries from considering it, and to insist on their deference to court-given law.

The 1895 decision in Sparf v. United States written by Justice John Marshall Harlan, held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5–4 decision. This decision, often cited, has led to a common practice by United States judges to penalize anyone who attempts to present legal argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.

A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the power of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect:

“We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.”

Nevertheless, in upholding the refusal to permit the jury to be so instructed, the Court held that:

“…by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to ensure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed.”

The right to disregard the law if one disagrees with it on moral grounds, also comes from the fact that jurors cannot be punished for the verdict they render, no matter how unpopular it is to the general public or the specific judge presiding over the case. Also, defendants found not guilty, cannot be retried for the same crime, that would violate the double jeopardy concept.

Hence, once a jury finds a defendant not guilty, there is no mechanism for a prosecutor to bring the case against the same defendant again. (See: Bushel’s Case, from the 1670 trial of William Penn.)

Several cases that were speculated to be instances of jury nullification included the prosecution of Washington, D.C.’s former mayor, Marion Barry; the trial of Lorena Bobbitt; the prosecution of the police officers accused of beating Rodney King; the prosecution of two men charged with beating Reginald Denny in the resulting riots; the trial of the surviving Branch Davidian members; the trial of the Menendez brothers for the murder of their parents; and perhaps most famously, the O. J. Simpson murder trial. In the days preceding Jack Kevorkian’s trial for assisted suicide in Michigan, Kevorkian’s lawyer, Geoffrey Fieger, told the press that he would urge the jury to disregard the law. Prosecutors prevailed upon the judge to enter a pretrial order banning any mention of nullification during the trial, but Fieger’s statements had already been extensively reported in the media.

In a 1998 article, Vanderbilt University Law Professor Nancy J. King wrote that “recent Looking to the Clinton impeachment trial for guidance on the Chief Justice’s role has been unsatisfying. C.J. William Rehnquist’s low-key role is remembered mainly for two minor things: (1) His decision to adorn his black robe with glittering gold stripes – an idea lifted from Gilbert & Sullivan’s “Iolanthe;” and (2) his ruling preventing the Senators from being referred to as “jurors”. It is not likely that C.J. John Roberts will get much precedent from Rehnquist’s presiding over the Clinton impeachment.

Will the Trump Impeachment Call for Nullification?

As of this writing, the Trump defense strategy has essentially been to contend that Trump’s pressuring Ukraine to “dig up dirt” on the Bidens, while perhaps unappealing, is too minor a transgression to rise to the “high crimes and misdemeanors” standard for impeachment. So far as I know, no legal commentator has yet called this “jury nullification.”

But conceptually, this is every bit as much “jury nullification” as northern jurors refusing to convict those who helped slaves escape bondage because of their revulsion to slavery, or Southern jurors refusing to convict lynchers. And so, without say so explicitly, the G.O.P. defense strategy is to appeal to the public and Senators to embrace jury nullification and prevent impeachment and conviction.

As the Supreme Court has never rejected jury nullification but won’t allow defense attorneys to explicitly advocate that jurors substitute their personal beliefs for following the law, I expect Chief Justice Roberts will follow that path, not explicitly allowing the Senate to disregard the law while simultaneously allowing them to “vote their consciences.” That will allow the jury nullification strategy that is currently playing out in the media, to play out in the Senate without ever saying so outright.

Will the jury nullification strategy succeed? I can tell you the answer with complete certainty: Maybe. Ask me again in a year, and I will give you an even more certain answer.

* – Mark R. Bower is a former Court TV Commentator and is a board-certified medical malpractice lawyer in NYC. .