Now that the Supreme Court has placed a police video online in his decision today in Scott v. Harris, the question presents itself: What other materials will be placed online? (Howard Bashman says in a headline: "Online Video Clips: Not Just for Porn Anymore.")

The Court has set a precedent.

The evidence in pornography cases does indeed spring to mind in the never ending debate of what is, or is not, obscene.

According to The Brethren, there was Movie Day at the Supreme Court when the films were viewed. Is the Court now put in the odd position of hiding evidence over which there may be a difference of opinion? That is to say, using one standard for a car chase and a different one for porn? Did the Court just step on to a slippery slope with a multitude of grays between those extremes?

Would a lethal injection execution that was videotaped be placed online if and when the Court debates whether it constitutes cruel and unusual punishment?

Regarding porn, Potter Stewart said, "I shall not today attempt further to define the kinds of material I understand to be embraced . . . [b]ut I know it when I see it . . . " (Jacobellis v. Ohio, concurring)

But will the Court show it?

Labels: Interesting Cases in the News

In a decision released today, the United States Supreme Court includes video as part of its decision. Buried in footnote five of Scott v. Harris, the text of the decision is linked (not just cited) to a car-chase video that automatically downloads 92 MB to your hard drive. According to Howard Bashman (How Appealing) this is a first for the court.

(The Court ruled that police do not act unconstitutionally when they try to stop a suspect fleeing at high speed by ramming the suspect's car from the rear, forcing it to crash (as per SCOTUSBlog).)

Such a citation certainly encourages me to take more liberties with my briefs, incorporating pictures and diagrams into the brief instead of forcing judges to flip back and forth between exhibits and briefs.

Addendum: More Thoughts on Placing Video Online

Labels: Interesting Cases in the News, Odds and Ends

Another lawsuit where good vetting of the client and factual circumstances did not occur:

After being stuck in an elevator, an inebriated passenger decided to take matters into his own hands, pried the doors open and tried to jump or climb out. The elevator was well lit and other passengers had told him help was on the way.

Remarkably, this poor factual circumstance was his second version of events. The first had claimed that the elevator's fifth floor door opened but the elevator was not present, causing him to fall down the elevator shaft. The problem was that this was negated by plaintiff's own expert neurologist, who averred that plaintiff's recollection of the events "may not be reliable" and that plaintiff admitted that he cannot recall the circumstances of his fall.

What seemed to be lacking here was a basic investigation of the facts before putting this loser into suit. Case dismissed by the Appellate Division, Department in Jennings v 1704 Realty, L.L.C..

Labels: Personal Injury

This New York medical malpractice action was brought for a baby with Down's Syndrome, for the extraordinary expenses of raising the child. (An action for "wrongful life" is not allowed on grounds of public policy.)

Defendant moved for summary judgment based on the existence of Medicaid to pay for the child's care. The Appellate Division, First Department, said no way:

[T]he availability of Medicaid should not operate to preclude the recovery against the tortfeasor any more than the availability of health insurance under similar circumstances. We noted as well that such cost should not be borne as a public expense where judgment may be recovered against the culpable party.

The case is Mercado v Institute for Urban Family Health.

Labels: Personal Injury

The New York Personal Injury Law Blog presents the week that was:

We'll start with pre-litigation issues and risks that we see:

William Childs at TortsProf brings us the dueling "state rankings" from the US Chamber of Commerce (worst states for litigation) and the American Association of Justice's (formerly ATLA) sharp response with a list of the "ten worst states to get sick or injured in". (With criticism of that sharpness by Stephanie Mencimer at The Tortellini, and more from Law.com)

Were you given the best drug for your illness? At MassTorts, Byron Stier writes of Pharmaceutical Industry Influence on Doctors. The peddling of drugs to doctors by Pharma was big this week and covered also at the Public Library of Science, in Following the Script: How Drug Reps Make Friends and Influence Doctors. Here's a sample quote, that you shouldn't read if you are on meds:

It's my job to figure out what a physician's price is. For some it's dinner at the finest restaurants, for others it's enough convincing data to let them prescribe confidently and for others it's my attention and friendship...but at the most basic level, everything is for sale and everything is an exchange.

Other articles on the cozy relationship between docs and Pharma at WSJ Health Blog, the New England Journal of Medicine, and Pharmalot. Do you still have confidence in the prescription you were given?

And there's yet more on drugs at Tom Lamb's Drug Injury Watch as he discusses the high number of adverse drug reactions in hospitals, some of whom were given the wrong drug or the wrong dose;

Over at TortDeform, New York State Senator Eric Schneiderman blogs on the 44,000 and 98,000 hospital deaths each year attributed to preventable medical errors, and his sponsorship of legislation that would require doctors to inform patients when significant medical errors take place;

So what makes people call an attorney after a bad experience? Often is it is anger. Or a sense that a trust was betrayed. Paul Levy at Running A Hospital brings a classic complaint from a patient about the care he was rendered in Who can blame him? The patient is apparently also a physician. Imagine how a patient without medical training would feel;

As we sit in the office and sort through the medical records of an unhappy potential client we consider taking for litigation, both we and the medical profession need to be mindful of HIPPA. Thankfully, we can turn here to Jayne Juvan's Health Law Update, as she has information on HIPPA violations, in particular violations of the Privacy Rule and enforcement by the FDA's Office of Civil Rights;

Into the onset of litigation we go: With Howard Erichson at MassTorts reporting that class action lawsuits against Menu Foods, maker of the tainted pet food, are piling up fast. (I had previously written that individual claims might cost more to prosecute than they are worth.)

From pets to people, we go to the recent food poisoning outbreaks in the news that occurred with peanut butter and spinach. This has resulted in a troubling new issue: That the FDA knew of the contamination problems for years (Washington Post via TortsProf);

As we litigate along, we hope our clients are candid with us, unlike this woman who claimed to be permanently paralyzed but was videotaped walking down the street with a cane. As this case shows, litigation can be expensive, in oh so many different ways;

Now on toward trial: Medblogger Flea opens a rare and enlightening public window into preparing for cross-examination for his malpractice trial two weeks from now, in Flea Takes a Screen Test and What Do Malpractice Juries Care About? (Flea seems to have good counsel on how to conduct himself, but not such good counsel when told medical facts matter only 3% of the time);

Flea will be happy to know, however, courtesy of Charles Toutant at the New Jersey Law Journal, that juries tend to side with doctors. This is also covered this week at the Orlando Injury Blog, from Tony Caggiano (Orlando Medical Malpractice Lawyers Find Truth in Jury Bias Study) and was previously covered here (with link to original source);

As the trial starts, we take a few tips from James W. McElhaney at his monthly column in the ABA Journal about how needing themes when you talk to jurors during the trial;

Since we are now standing in the well of the courtroom, Anne Reed at Deliberations has a nice primer on exposing a lie from a witness. You would correctly presume that shouting at the witness is not one of the methods that works with jurors (or anyone else, for that matter);

From cross-exam to summation, we move to Lowell Steiger at the Los Angeles Personal Injury Law Blog and this story of highly prejudicial arguments by the defense that warrants a new trial after a defense verdict: Defense Tricks: Frivolous Lawsuits? I Think Not (hat tip to TortDeform);

With our trial over: Tiffany Sanders at The Total Injury Blog deviates from the blog's usual fare of verdicts and settlements to note that their entire content is being scraped by another blog. One day these intellectual property issues will result in litigation for sure, if it hasn't happened already;

Since the case is resolved, by settlement or verdict, we turn to legal fees (if any). Two posts from Andrew Bluestone's New York Attorney Malpractice Blog on legal fees when the first hired attorney is discharged, in Attorney Fees and Termination, and More Fee Issues;

Legal fees come up in another context, as Walter Olson discusses at Point of Law, this being the issue of government hiring private sector counsel on contingency, setting up a conflict between the neutrality a government attorney must have, and the zealous advocacy that private counsel is ethically bound to provide; In another posting he plugs this round-up as "Invariably worth reading," no doubt knowing I am a sucker for flattery and will now have to buy him a beer if we meet;

As we empty the trial bag with our week done: We welcome a new blogger cutting his teeth at Massachusettes Auto Accident Blog (via California Personal Injury and Insurance Blog). Let's hope they follow the sage advice of Kevin O'Keefe and refrain from making it just another "Call me if you are injured!" island of self-promotion, but instead an interesting, linkable and integrated site. Unless, of course, that island of blogospheric purgatory is the desired result.

And finally, Evan Schaeffer's Legal Underground collects some hits from the past with his description of different types of lawyers, for some kick-off-the-shoes weekend reading; (Schaeffer also plugged the Personal Injury Law Round-Up last month...if this keeps up, I'll move from Z-list blogger to Y-list. And owe a few more beers.)

Enjoy the weekend.

(Submissions for next week's edition may be made to blog[at]TurkewitzLaw.com)

Labels: Personal Injury Law Round-Up

Former CIA Director George Tenet, in a book to be released next week, says that President George Bush wanted trial lawyers to help sell the Iraq war when the evidence for war wasn't strong enough. This story comes from a passage buried deep within an article starting on the front page of today's New York Times.

The Times focuses on Tenet's discussion of how Vice President Dick Cheney was pushing hard for war, when other alternatives existed. Explaining his "slam dunk" comment that the administration has used to justify its rush to war, the article states:

Mr. Tenet says he decided to write the memoir in part because the infamous "slam dunk" episode had come to define his tenure at C.I.A.

He gives a detailed account of the episode, which occurred during an Oval Office meeting in December 2002 when the administration was preparing to make public its case for war against Iraq.

During the meeting, the deputy C.I.A. director, John McLaughlin, unveiled a draft of a proposed public presentation that left the group unimpressed. Mr. Tenet recalls that Mr. Bush suggested that they could "add punch" by bringing in lawyers trained to argue cases before a jury.

"I told the president that strengthening the public presentation was a 'slam dunk,' a phrase that was later taken completely out of context," Mr. Tenet writes. "If I had simply said, 'I'm sure we can do better,' I wouldn't be writing this chapter -- or maybe even this book."

I find it a bit odd that Bush -- well known for trashing trial lawyers every chance he has -- would try to turn in that direction for support.

Tenet will be on 60 Minutes this Sunday pitching his book, and it will no doubt be a topic of some discussion all next week as it moves into circulation and gets reviewed.

Labels: Odds and Ends

Two weeks ago I wrote Medical Malpractice - A Primer, directed toward members of the medical community due to a recurring theme I saw on medical blogs: The idea that such suits are brought cavalierly. (You can this in the comments section of blogs such as Flea, GruntDoc, and Kevin, M.D.)

I promised a follow-up on how cases are selected by a plaintiff's attorney, but first want to deconstruct the time and money needed if the matter is taken. For only by understanding the time and money risks can one appreciate the importance of careful screening for potential litigation.

Though all cases are different, let's assume this simple fact pattern: A 10 month delay in diagnosing and treating breast cancer in a 50 year old woman with a husband and two kids, one of whom is a minor. Her cancer has now spread to two lymph nodes. She has a part time business. All parties and witnesses are local.

The following time and money costs must be assumed to take such a case to verdict:

1. Obtain all medical records of any kind for her;
2. Expert review on the issue of negligence (perhaps a radiologist or OBGYN, depending on the facts of why the cancer was allegedly missed) prior to taking the matter, intermittent reviews as needed during litigation, and a day in court for trial;
3. Expert review on the issue of causation and damages (likely an oncologist), and a day in court for trial;
4. Expert review on the issue of lost wages or household services (economist or vocational economist) and a day in court for trial;
5. Cost of depositions (doctors, nurses and other witnesses);
6. Possible videotaping of depositions for those who may not be present for trial;
7. Daily copy of transcripts from trial;
8. The purchase or creation of demonstrative evidence to explain the medicine, facts of the incident or injuries to the jury. This could be anything from enlargements of documents and x-rays, to medical models, custom illustrations or video footage, as warranted; and
   
9. Due to personal circumstances of the sick woman and her family, they can't pay the out-of-pocket costs.
   

Since the case will always be thrown out without an expert (with the exception of the rare res ipsa case, such as the retained clamp above), the liability and causation experts are not optional.

The attorney's time involved for litigating the case for a few years will entail record reviews, expert discussions, document drafting, depositions (and prep), possible motion practice, and 5-10 court conferences. It will probably be a two week trial if all goes very smoothly -- but depends on the judge's schedule, the schedules of the experts on both sides, and the longwindedness of the attorneys -- and can very easily go longer. It will, in sum, likely be several hundred hours, though it could be more. The opposing attorneys will be top-notch medical malpractice litigators because the insurance companies don't hire a jack-of-all-trades for this sort of thing.

The out of pocket costs will easily be $30,000 -- $50,000, and quite possibly higher depending on the particulars of the case.

If the case is lost at trial -- perhaps because of a defense expert who "goes the extra yard" for a fellow physician, a plaintiff less attractive than the defendant doctor, "bad facts" you didn't know about at intake, a tendency for juries to favor doctors, an unexpected scheduling problem that prevents a witness from appearing, or a plain old dispute as to the standard of care -- your money and time should all be assumed to be gone. It is unlikely you will recoup the disbursements from the client. You still have to pay the rent, personnel, utilities, computers and other costs of running a business.

One should never assume that the case will settle, of course, but if it does it will probably only be after you have prepared for, or even started, the actual trial. (See: No, your medical malpractice case will NOT settle fast.)

If you win and get paid back your disbursements and receive a fee, it will still likely take a few years. (You may want it to go quicker, but defendants do not, and the court may not be able to.)

From a cash flow standpoint, this is not an attractive business model. And in New York, those fees if you are successful start at 30% and slide down to 10% as the recovery increases. And if another attorney did some work on the file and then forwarded it on to you, you will be sharing that fee with others.

This, of course, assumes no appeals. If the trial court or appellate thinks the verdict is too high, it will be thrown out. (see, How New York Caps Personal Injury Damages)

In short, the economics from a business standpoint are quite poor, which is why case selection becomes so important for the careful practitioner. It is also why the average malpractice recovery is so high, since the medical community enjoys de facto immunity for smaller cases based on these economics.

To call this a high-risk endeavor would be a significant understatement. The vetting process for such a case is therefore critical, and will be the subject of a future blog posting. [This link added 5/22/07]

Labels: FAQ-Medical Malpractice, Medical Malpractice

From Ed Silverman at Pharmalot:

Four big drugmakers are ponying up a combined $8.1 million to create a new center devoted to health and pharma law at Seton Hall University's law school, which is located in a New Jersey suburb about 30 minutes from Manhattan.

The new Center for Health & Pharmaceutical Law is being funded by Schering-Plough, Sanofi-Aventis, Johnson & Johnson and Bristol-Myers Squibb. The law school claims this will be the only US academic policy center of its kind focusing on legal issues surrounding big pharma.

So, does anyone think Seton Hall's syllabus will be objective, or perhaps, just a tad slanted toward those that are funding them? According to an assistant dean, as quoted in Newsday, "We would like to do so as a neutral academic institution." Uh huh. I'm sure that, notwithstanding the 8 million bucks, they wouldn't hesitate to criticize their benefactors when warranted. [Edit: Excessively snarky comment removed]

Now check out this bit from the Pharmalot piece:

Bristol-Myers Squibb is establishing the chair as part of a resolution of an investigation by the U.S. Attorney Christopher Christie, a Seton Hall alum, who required the drugmaker to sign a Deferred Prosecution Agreement in the wake of an accounting scandal. The DPA expires in June and Christie recently said he's 'very happy' with Bristol's progress.

The lion's share of the money, $5M, came from Bristol-Myers Squibb. Perhaps it was just a coincidence that the U.S. Attorney's alma mater was the one to benefit from this agreement with a big drugmaker? Now that can't be right, can it?

Addendum: William Childs at TortsProf followed up with a comparison of the Seton Hall pharmaceutical deal with Temple University naming its law school after plaintiff's attorney James Beasley, founder of the Beasley Firm. He could have added the Touro College Jacob D. Fuchsberg Law Center, named after the personal injury attorney, and later Court of Appeals judge, of that name.

Second Addendum - (4/27/07) -- The story is covered today at the WSJ Law Blog, and this quote popped off the page for me:

A spokesperson for the U.S. Attorney told the Law Blog that the fact that Bristol Myers donated to Christie’s alma mater is nothing more than a coincidence. He points that there are only two law school in New Jersey and the other -- Rutgers -- already had a business ethics endowed chair.

Why did the money have to go to a law school? Are there no other worthy causes to give 9 million bucks to? The explanation looks particularly lame.

Labels: Odds and Ends

A story in the Houston Chronicle (AP) discusses the possibility:

Five years before the massacre at Virginia Tech, a deeply disturbed student went on a murderous rampage at the Appalachian School of Law, killing three and wounding three others.

Some victims and family members sued the law school and eventually settled for $1 million. Similar lawsuits are virtually certain after the Virginia Tech shootings, but legal experts say it could be very difficult to win damages.

And another one by at FindLaw by Anthony Sebok:

But once an investigation is complete, what will it tell us? If it turns out that there was negligence, or worse, on the part of the university or others, can the wounded victims or the families of the deceased victims of the attack sue Virginia Tech for damages?

The answer is not very reassuring for the families or the surviving victims, and it raises important questions about whether we want to insulate the state from accountability in court for its mistakes.

One thing I can say with some level of certainty, that even if such suits are successful, they will be cold comfort for those in mourning.

Labels: Interesting Cases in the News

A few other blogs have noted developments on the continuing story of how counterfeit drugs enter our pharmaceutical supply chain that are worth noting:

Adam Fein at Drug Channels in RFID Un-Hype covers the failure of the drug industry to embrace radio frequency identity tags as a means of tracking drugs as they wind their way through an often extended supply chain. The extended supply chain is safety weakness as it increases the chances for counterfeit infiltration. The subject is also covered by Ed Silverman at Pharmalot as he notes that the much ballyhooed RFID as a solution to tracking drugs in the supply chain appears dead in the water.

The failure of RFID comes as no surprise to me. When I previously spoke before the FDA's Counterfeit Drug Task Force a few years back, I urged non-technology solutions. The remedy for a weak supply chain is to actually limit the number of hands the drugs pass through, not try to document a dozen different owners of the drugs. The more people that touch the drug, the greater the chance for infiltration of counterfeits (or destruction of the drug through negligent handling). Counterfeiters will always be around to try and corrupt the supply chain, for as Willy Sutton might have said, that's where the money is. One day, some distributor that bought mystery medicine out of the gray market will be looking at dead bodies and trying to feign ignorance of the problem.

And on a related note, Jayne Juvan (Juvan's Health Law Update), reports on an appeal to the Second Circuit Court of Appeals in Rx USA Wholesale v. Department of Health and Human Services, Food and Drug Administration. This dealt with an injunction against the FDA forcing compliance with the rules regarding the drug pedigrees (that's the track of the actual drugs, discussed above). The FDA has now filed its brief, and Jayne has a copy of it along with a synopsis.

See also from this blog (with yet more links) :

• Does Congress Understand the Counterfeit Drug Problem?
  
• Counterfeit Drug Legislation Stalls in Court
  

Labels: counterfeit drugs

Five rescue workers who responded to the September 11th attacks at the World Trade Center, and who brought action against Christine Whitman (then the head of the Environmental Protection Agency) have had the dismissal of their case affirmed.

The suit had alleged that various public officials had issued reassuring -- and knowingly false -- announcements about the air quality in lower Manhattan; that the plaintiffs therefore believed it was safe to work at the site without needed respiratory protection, and did; and that the defendants’ conduct violated plaintiffs’ right to substantive due process.

The appeals court affirmed the dismissal of the case because the complaint’s allegations did not "shock the conscience even if the defendants acted with deliberate indifference." The court, moreover, said that when agency officials decided how to reconcile competing governmental obligations in the face of disaster, only an intent to cause harm arbitrarily can shock the conscience in a way that justifies constitutional liability.

The ruling by the Second Circuit Court of Appeals was issued late last week, and is available at the Second Circuit website (Lombardi v. Whitman).

Labels: Interesting Cases in the News, Personal Injury

The New York Personal Injury Law Blog presents the week that was:

Just a few posts today as I've been too busy to search many blogs for personal injury material.

David Lowe reflects on showing up for jury selection, Jury Service-- Seeing It From The Other Side, (InjuryBoard/Milwaukee), an experience significantly different than that of the personal injury attorney who appeared in one of my jury pools recently and talked himself off;

Ronald Miller at the Maryland Injury Lawyer Blog discusses medical malpractice cases by professional athletes against team doctors in Medical Malpractice Lawsuit Filed Against Carolina Panthers' Team Doctor;

An article in the Chicago Tribune reports on Catholic Charities dropping its Chicago foster care program after its insurance company dropped them as a result of a $12M payout in a civil action from three abused minors. Christopher Hurley, one of the lawyers that obtained that settlement, wants to make sure you know The Truth About Catholic Charities Foster Care Settlement;

A new article on punitive damages is available at the Social Science Research Network, with extract courtesy of William Childs at TortsProf, Punitive Damages and Valuing Harm;

Dr. Paula Hartzell at MedicalEconomics shares her experience as a defendant who lost a medical malpractice case, in The Way I See It: Medicine is a blame game;

And, just moments ago, a Texas judge has apparently dismissed about 1,000 Vioxx claims, based on federal preemption. The text of the decision is not available at the moment.

Finally, at age 100, Richard Bird is still practicing law, Monday-Friday, 9-5.

(Submissions for next week's edition may be made to blog[at]TurkewitzLaw.com)

Labels: Personal Injury Law Round-Up

Last week I wrote that a Texas judge anticipated dismissing 1,000 Vioxx claims. The dismissal was not on the merits, but based on an FDA regulation that asserts it can preempt state law, and grant immunity to companies whose drugs have been FDA approved. This is claimed despite the fact that Congress has passed no such law.

As per a report today (Harris Martin Publishing), the judge has now signed an order to that effect. My own check of the court's website, however, does not show it to be online at this point.

This time of regulatory tort "reform" is a far more subtle and insidious way of protecting big business than those that advocate caps for those with catastrophic injuries.

Addendum: 4/22/07 -- A copy of the decision is now available here.
You can find stories at Drug and Device Law (the most detailed coverage), WSJ Law Blog, and Point of Law.

Labels: Personal Injury, tort reform

Certainly one of the more unusual lawsuits I've seen, from New Rochelle, NY:

The city's largest park, Ward Acres, had long been the domain of dog owners who allowed their pets to run around unleashed, to the detriment of others who wished to use the park. So when the city put in new regulations -- and fees for the dog owners, with larger fees for non-residents -- a local uproar was created.

Now comes a lawsuit challenging the new regulations, and this one looks more than a bit odd. From The Journal News:

Three dog owners unleashed a lawsuit against the city over new dog-walking regulations at Ward Acres Park.

The suit is a response to an ordinance effective April 1 stipulating hours when dogs must wear leashes and requiring dog-walking permits.

The plaintiffs, a city couple and a Mount Vernon resident, seek a suspension of the ordinance on the grounds that it discriminates against nonresidents, charges a fee to use a public park, violates state dog licensing rules and subjects dog owners to unreasonable searches and seizures by police.

"The word 'unprecedented' is very helpful," said Jeffrey P. Wiegand, one of the lawyers representing Dennis C. During of Mount Vernon and Michael S. Friscia and Marci Malone of New Rochelle. "(The new ordinance) charges ordinary citizens almost an admission fee to Ward Acres Park, which is open parkland."

I've seen plenty of local parks with user fees and/or restrictions to the taxpayers for that municipality, so this suit certainly seems to be unusual.

Woof.

Labels: Interesting Cases in the News

Celebrity matrimonial lawyer, talking head and author Raoul Felder is all over the legal news these days because of a new book he co-wrote with Jackie Mason. (see: N.Y. Judicial Conduct Commission Throws the Book at Chairman-Author)

The uproar is due to his also being the chairman of a state commission that oversees judges, and he has now been given a unanimous vote of no confidence by the other nine members of the commission for helping to write the book they said is racially and ethnically inflammatory.

So I checked out Felder's law firm website, as I did once before on February 8th (Rudy Giuliani Among New York Attorneys That Violate New Ethics Rules), and it seems Felder has still failed to comply with New York's new ethics rules that require law firm websites to be properly labeled as attorney advertising.

It just seems to be that if you want to be in the limelight, you ought to be extra careful to make sure you don't run afoul of ethics rules.

Labels: Attorney Ethics, First Amendment

This has nothing to do with New York Personal Injury Law. But I'm a runner, and this is my blog, so that's that.

The nor'easter that deluged New York yesterday is swamping Boston today for the 111th running of the race.

At the marathon start, wind gusts hitting 50 pmh. Much of the staging area is underwater. Temps in the 40s and heavy rain predicted.

It's going to be epic. There's nothing like a foul weather run to put the zest back in your step (that's me on a trail run, at right).

May the winds be at their backs...

Labels: Odds and Ends, Running

After oral argument on Friday, Northern District Judge Frederick J. Scullin Jr., sitting in Syracuse, ruled against the New York Attorney General's motion to dismiss this First Amendment lawsuit. He set June 18 for the beginning of a trial on the constitutionality of the state's new guidelines on attorney advertising. Public Citizen brought the action on behalf of itself and an upstate law firm that advertises heavily.

(hat tip to Andrew Bluestone, New York Attorney Malpractice Blog)

For more on the issue, including copies of the briefs:

• New York Attorney Advertising Lawsuit -- Reply Brief
  
• New York Responds to Lawsuit Challenging New Attorney Advertising Rules -- By Banning Humor;
• Skadden Website and Others Named In Ethics Lawsuit;
• New York Advertising Rules (Sui Generis, numerous posts)
  

Labels: Attorney Ethics, First Amendment

The New York Personal Injury Law Blog presents the week that was:

No discussion of personal injury law can take place without talking juries. And so, an interesting paper on medical malpractice juries by Philip Peters, Jr. at the Social Science Research Network, Doctors and Juries, is worth reading. One of its conclusions: "From the perspective of defendants at least, jury performance is remarkably good" (free download, and hat tip to Anne Reed's well-written Deliberations);

And since we discuss doctors and hospitals here, I want to point out something startling: A hospital CEO engaging in transparency. Paul Levy, CEO of Beth Israel Deaconess Medical Center in Boston, who started Running a Hospital last year, blogged Central Line Infections, both better and worse for his own hospital. This post goes hand-in-hand with the trend of states to immunize doctors for saying they are sorry to patients. If this pattern keeps up, patients might actually feel better informed, and more tolerant when errors occur, causing a decrease in medical malpractice cases.

Tony Sebok at FindLaw has the second half of his series on reopening the September 11 Victim Compensation Fund for the thousands of relief workers who were injured in the aftermath;

Brian Wolfman at Public Citizen's Consumer Law and Policy blog discusses a danger I had not previously heard of: 15-20 million lightweight stoves installed in kitchens around the country that have an awful tendency to tip over when weight was applied to the oven door.

William Childs at his TortsProf Blog notes a new abstract at the Social Sciences Research Network called "Judicial Tort Reform in Texas." From the abstract, it appears the tort "reform" is judicially created rather than legislatively. I wonder if former Gov. George Bush will decry the judicial activism?

This Texas "reform" coincides with an article by Mimi Schwartz in Texas Monthly, Hurt? Injured? Need a Lawyer? Too Bad! (hat tip to TortDeform);

Moving on to the military, Jonathon Turley at the USA Today Blog writes about the immunity the military enjoys for negligent conduct, and how there is little deterrence for military negligence beyond self-regulation, bad publicity or a political scandal. And perhaps that military immunity is why the gov't ignores dangers? Justinian Lane of TortDeform points out a story where the military is refusing to do a risk assessment of toxic fumes near 100 military family homes. Are the two connected?

Walter Olson at Point of Law discusses Ohio's decision to follow Rhode Island in pursuing lead paint manufacturers. (Also Byron Stier at MassTortsProf; Jonathan Adler at Volokh) My question: If the states hire private counsel on a contingency bases for such a risky endeavor (Jane Genova at Law and More), and they prevail, will the states then try to renege on the fee agreement as was done in the smoking cases?

Also at Point of Law, Ted Frank discusses experts who cut their fees after a trial is lost, in the context of an improper contingency fee arrangement;

And yet more from Point of Law, Frank discusses the categories of class action Vioxx cases;

The big Vioxx news, however, will come next week when a Texas judge is expected to dismiss 1,000 Vioxx cases from state court. This means (among many other things) that Evan Schaeffer at his Legal Underground site will have to quickly update the schedule of upcoming Vioxx trial he posted just before this news broke late yesterday.

And from the world of tabloid stories, the Duke lacrosse case was dismissed. Carolyn Elefant at the Law.com Blog speculates on possible suits the Duke players might bring.

And finally, Bill Gratsch's Blawg's Blawg lets loose with some interesting statistics about the size and growth of legal blogs.

Enjoy the weekend.

(Submissions for next week's edition may be made to blog[at]TurkewitzLaw.com)

Labels: Personal Injury Law Round-Up

The Wall Street Journal is reporting that a Texas judge is about to toss out 1,000 Vioxx lawsuits, under a Merck claim that an FDA ruling in February 2006 preempts lawsuits in state court. The court's ruling is expected next week.

That FDA rule says the agency's approval process trumps state law in how manufacturers of health-care products must warn consumers about their potential risks.

This, in my opinion, is anything but a slam dunk on appeal, as the FDA isn't Congress and may not have the authority to create such a preemption rule. If Congress wanted to create such a preemption statute as they have for other things (such as medical devices) it could have done so. But it has decided not to.

While some attempts to preempt state law in this fashion have succeeded, others have failed. When the ruling is published next week, expect much talk in the legal blogosphere on the subject, and a visit one day to the U.S. Supreme Court.

WSJ, by Heather Won Tesoriero (subscription needed $): Ruling in Texas Vioxx Case Could Be a Boon for Merck

Addendum 4/13/07 - WSJ Health Blog now has the story without need for subscription.

Addendum 2.0 -- 4/13/07 -- Closing the courthouse doors by regulation instead of legislation is the type of tort "reform" that Walter Olson discussed at Point of Law on March 1, 2007: Liability reform's new direction: procedure

Labels: Personal Injury

I've been reading a lot of medical blogs lately, and medical professionals have been reading mine. And as many doctors have ranted about attorneys (such as those in the comments at Kevin, M.D. and Flea) I've noticed a lack of some basic legal principles on the subject of medical malpractice. Many think that any bad result brings on a lawsuit.

Since those misunderstandings no doubt contributed to the rants, this posting serves as a basic primer on the subject. It is based on New York law, but there's a pretty good chance your own state is similar.

We start with the definition of negligence. (Which I like to define by example: backing out of the driveway without looking.) Here's the court's more formal definition that will be given to the jury:

Negligence is lack of ordinary care. It is a failure to use that degree of care that a reasonably prudent person would have used under the same circumstances. Negligence may arise from doing an act that a reasonably prudent person would not have done under the same circumstances, or, on the other hand, from failing to do an act that a reasonably prudent person would have done under the same circumstances.

From there, the court discusses medical negligence. Note the part I placed in bold:

Malpractice is professional negligence and medical malpractice is the negligence of a doctor. Negligence is the failure to use reasonable care under the circumstances, doing something that a reasonably prudent doctor would not do under the circumstances, or failing to do something that a reasonably prudent doctor would do under the circumstances. It is a deviation or departure from accepted practice.

That part in bold is important so as to contrast with what is not malpractice:

By undertaking to perform a medical service, a doctor does not guarantee a good result. The fact that there was a bad result to the patient, by itself, does not make the doctor liable. Doctors are liable only if they are negligent. Whether a doctor was negligent is to be decided on the basis of the facts and conditions existing at the time of the claimed negligence.

Doctors are not liable for errors in judgment if they decide, after careful evaluation, if it is a judgment that a reasonably prudent doctor could have made under the circumstances. If the doctor is negligent, that is, lacks the skill or knowledge required of him or her in providing a medical service, or fails to use reasonable care in providing the service, or fails to exercise his or her best judgment, and such failure is a substantial factor in causing harm to the patient, then the doctor is responsible for the injury or harm caused.

The issue of what constitutes a "deviation from accepted practice" and what constitutes a mere "error in judgment" often frame the testimony and arguments of a trial. The error of judgment defense is so critical that, even if an error was made due to inadvertence, the defense is likely to be that it was done on purpose. Thus, the defense will be that this was merely an error of judgment and the jury shouldn't engage in Monday morning quarterbacking.

It is also important to note that doctors are not held to the highest standards of knowledge. The jury will be told:

The law recognizes that there are differences in the abilities of doctors, just as there are differences in the abilities of people engaged in other activities. To practice medicine a doctor is not required to have the extraordinary knowledge and ability that belongs to a few doctors of exceptional ability. However doctors are required to keep reasonably informed of new developments in their fields and to practice medicine in accordance with approved methods and means of treatment in general use. A doctor must also use his or her best judgment and whatever superior knowledge and skill he or she possesses, even if the knowledge and skill exceeds that possessed by the average doctor or specialist in the medical community where the doctor practices.

Thus, at any malpractice trial, the plaintiff-patient will have to prove these three things (for which an expert is required):

1. The standard of care is breached with a departure from customary and usual practice, and not a mere error of judgment;

2. That the departure was a substantial cause of injury to the patient;

3. That the injury was very substantial. While those words don't exist as a legal threshold, they exist as a practical one. One can't spend hundreds of hours and tens of thousands of dollars to prove a case where the damages don't cover the time and money put forth. Since the cases are vigorously defended (see: No, Your medical malpractice case will NOT settle early), and defense malpractice attorneys form some of the elite of the trial bar, it would be rare for any attorney who knew what they were doing to take on a smaller case.

I hope to follow up with a post on how malpractice cases are screened and selected.

Addendum:

• 4/25/07 - Medical Malpractice Economics;
• 5/22/07 - Medical Malpractice - Vetting The Case
  

Labels: FAQ-Medical Malpractice

A bill being considered by Rhode Island could mean they will join the ranks of other states that encourage doctors to apologize for mistakes. The story is here.

I've always believed, based on the manner in which calls come in to my office, that poor communication (bad bedside manner) is the primary reason patients call attorneys. They are angry, or confused, or both.

Which is why I found this particular quote at the end of the article really interesting...an insurance company that encourages more of the same thing that has gotten docs into trouble in the past...

Boston-based ProMutual Group, which insures 18,000 doctors, dentists and health care facilities in the Northeast, warns its clients against apologies that admit guilt -- even in states that have laws protecting doctors who say they are sorry.

It distributes a tip sheet cautioning doctors against uttering the words "error," "mistake," "fault" or "negligence."

"We encourage physicians to apologize about the outcome, not necessarily for any error that may have occurred," ProMutual spokeswoman Nina Akerley said. "Apology is not about confession."

Some folks never learn.

Labels: Medical Malpractice

Since New York's Labor Law provides some of the best protections to workers in the nation due to the requirement of safety equipment for workers, I was intrigued with a post from Walter Olson at Point of Law describing it as the nation's most employer-hostile law. Having checked out the link Olson used, it is understandable why he has that opinion.

Olson's link brings us to The Worker's Comp Insider, with a post entitled: New York Labor Law: No Such Thing as a Free Fall.

Jon Coppleman, who writes the piece, claims that:

The law, going back to 1885, holds employers absolutely and completely liable for any injuries resulting from a fall. (emphasis in original)

This is false. While New York's scaffold law, and the case law that flows from it, does provide for strict liability for injuries regarding falls in some circumstances, this only applies to injuries resulting from a failure to provide the proper safety equipment. Mostly this is for work that occurs at elevation, though there are other safety requirements for elevator shafts, stairwells and the like.

Additionally, it does not apply to the recalcitrant worker whose injury is brought on by his/her failure to use safety equipment that has been provided, nor to the worker who is injured solely due to his or her own negligence.

The claim that strict liability applies to "any injuries resulting from a fall" is simply wrong. There is no liability without a violation of safety standards, and that violation must have been a cause of the accident.

New York is currently one of the safest states in the nation as a result of construction laws that hold people accountable for violating safety standards. And as my dad once told me, if it ain't broke, don't fix it.

I find it odd when I see people argue for looser standards that would inevitably bring on additional injury and death to an already dangerous job. Personally, I refuse to put corporate profits ahead of human lives.

Labels: Labor Law

As Blawg Review #103 ran the bases yesterday with a weekly recap of the posts in the legal blogosphere, some of my brothers and I hit Shea Stadium for the home opener (that's me on the left).

Completely missing from the recap, however, is a discussion of how the upper reaches of Shea can be the coldest place on earth in April (though beating the Phillies 11-5 helped).

We're talkin' baseball
Kluzuski Campanella
Talkin' baseball
The man and Bobby Fella
The Scooter, the Barber, and the Newc
They knew them all from Boston to Dubuque
Especially Willie, Mickey, and the Duke.

Labels: Blogging, Odds and Ends

With badly needed judicial pay raises being left out of New York's April 1st budget agreement, New York Chief Judge Judith Kaye threatened to bring suit against the legislative and executive branches for the raises. In harsh and emotional language she held a press conference and put out a statement on the issue.

New York's trial court judges have starting salaries at $136,700, and now trail the starting salaries of first year associates at Big Law firms by tens of thousands of dollars.

Chief Judge Kaye called the failure to give the raises "distressing and infuriating" in her press release. The New York Law Journal is reporting as follows:

An emotional Chief Judge Judith S. Kaye said yesterday the judiciary will not remain "docile in the face of the shabby treatment" it is receiving from officials of other governmental branches and is prepared to sue to get judges their first raises in more than eight years.

The chief judge said a suit would be the "very last resort," but she said she may take that step if lawmakers and the governor do not authorize a pay increase between now and June.

"If there is no action on judicial salaries before the Legislature adjourns in June, the only remaining course of action available to us may well be to institute litigation with the full weight of the state judiciary behind it," Chief Judge Kaye said yesterday at a rare news conference at her Albany courthouse. "That truly would be a sad day for us, for state government and for the people of New York."

In the press release put out by the Chief Judge, she said that it was "disgraceful" that New York judges have not even had a cost of living increase in eight years, and that they must go "begging and pleading" for even such an adjustment.

When Eliot Spitzer was inaugurated as our new governor, I had written of my hope that this particular wrong would be righted. It is embarrassing for New York to continue on this path, and justice itself will suffer if we can not pay a decent salary to retain quality judges. While no one would expect head-to-head competition with the salaries a judge could earn in the private sector, if we can't even keep pace with inflation, the bench will seriously deteriorate.

Labels: Judiciary

Trip and fall cases are interesting because of two competing defenses:

1. That the defect was so small as to be "trivial"; and
2. That the defect was so large as to be "open and obvious."

In this case, the defendant prevails on the first of the two defenses:

The plaintiff asserts that there was a height differential of 5/8 of an inch between the two surfaces, and contends that this height differential caused the accident.

"[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury." However, a property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip. In this case, the defendants made a prima facie showing, through the plaintiff's testimony and the photographs identified by her as accurately depicting the condition of the curb cut at the time of the accident, that the alleged defect did not constitute a trap or nuisance and was merely a trivial defect which was not actionable as a matter of law. The evidence which the plaintiffs submitted in opposition to this showing failed to raise a triable issue of fact.

If a defendant does not prevail on one, a claimant should expect the defendant will then pursue the other.

The case is: Joseph v Villages at Huntington Home Owners Assn., Inc.

Labels: FAQ-Personal Injury, Personal Injury, Slip and Fall

Just because you read about that verdict in the papers doesn't mean the plaintiff will actually get the money. This is another example of how verdicts get reduced by the courts.

In this case, a New York trial court reduced the award for future pain and suffering from 200K to 20K, because the plaintiff did an insufficient job of justifying the damages. The appellate court affirmed that reduction:

The result of plaintiff's nasal reconstructive surgery was cosmetically not to her satisfaction. The court found no medical support for future pain or difficulty in breathing. Reduction of damages for future pain and suffering was thus warranted because the amount awarded by the jury deviated materially from what would be reasonable compensation under the circumstances (CPLR 5501[c]).

As I had discussed earlier in How New York Caps Personal Injury Damages, one should never accept the verdict in a newspaper as the amount the person will get. Because there is a good chance they will not see that amount.

The case can be found here: Nardella v. Gerut

Labels: Medical Malpractice

The New York Personal Injury Law Blog presents the week that was:

We start with a patient that had the wrong testicle removed by the VA, (tip to Kevin, M.D), because I know that is one way to get your attention.

And I'll try to keep that attention by turning to Randall Udelman of InjuryBoard (Phoenix) to talk about carnivals -- referring not to Blawg Review #102, the April Fool's Blawg Review Prequel, or a similar round-up of common-subject posts -- but to talk of actual rides (fun!), and the problem of state laxity of control (OK, maybe not-so-fun) in Carnival Safety in Arizona;

From testicles and carnivals and into the courtroom: Charles Silver at TortDeform does an analysis of the "haircuts" that jury verdicts often receive after you have read about that big verdict in the papers; And there is a response to Professor Silver from Ted Frank at Point of Law on the subject;

Sticking with verdicts, John Day at Day on Torts has a summary of one state's jury verdicts, and the low number of plaintiff's verdicts for those cases that go all the way; he also brings up data that shows hospital errors are increasing, not decreasing, over the past few years;

Medical malpractice also brings up the difficult subject of "wrongful life," which Ronen Perry wrote of at the Social Science Research Network;

From medical malpractice to legal: Andrew Bluestone writes of a doctor that is suing his defense lawyer for legal malpractice after a $217 million verdict in Florida at his New York Attorney Malpractice Blog. The original article is here. Seems the defense lawyer may have been doing the bidding of the insurance company instead of the doctor when he refused the offer to settle for the policy limits;

And since we talk of insurance companies, long a subject of complaints, Michael Stevens at the Kentucky Law Review discusses some of the eye-popping profits that insurance companies have been making;

Since all personal injury litigation involves evidence, almost all attorneys will ultimately face the issue of evidence spoliation, which includes anything from a wrecked car to a fetal monitor strip gone missing. Matthew Lerner at New York Civil Law notes that New York's high court will hear argument on whether spoliation of evidence can exist as an independent cause of action;

And we close with John Bisnar at the California Injury Blog ruminating on Elderly drivers, how old is too old? It is worth checking out for an absolutely priceless deposition quote.

Enjoy the weekend.

(Submissions for next week's edition may be made to blog[at]TurkewitzLaw.com)

Labels: Personal Injury Law Round-Up

If you thought that increases in technology have caused medical errors to drop, then you would be wrong.

A new study out today makes these findings based on data from 2003-2005:

• Approximately 1.16 million total patient safety incidents occurred in over 40 million hospitalizations in the Medicare population, which is almost a three-percent incident rate. These incidents were associated with $8.6 billion of excess cost during 2003 through 2005.

• More than half (10 of 16) of the patient safety incident rates studied worsened from 2003 to 2005. These ten indicators worsened, on average, by over 11.5 percent while the other six indicators improved, on average, by eight percent.
  

• The total patient safety incident rate worsened by an additional 2.0 incidents per 1,000 hospitalizations in 2005 compared to 2003.
  

• The [Patient Safety Indicators] with the highest incidence rates were decubitus ulcer, failure to rescue, and post-operative respiratory failure. Failure to rescue improved six percent during the study period, while both decubitus ulcer and post-operative respiratory failure worsened by almost 10 and 20 percent, respectively.
  

• Of the 284,798 deaths that occurred among patients who developed one or more patient safety incidents, 247,662 were potentially preventable.
  

• Medicare beneficiaries that developed one or more patient safety incidents had a one-in-four chance of dying during the hospitalization during 2003 to 2005.
  

• There were wide, highly significant gaps in individual PSI and overall performance between the Distinguished Hospitals for Patient Safety and the bottom ranked hospitals.
  

• Medicare patients in the Distinguished Hospitals for Patient Safety had, on average, approximately a 40-percent lower occurrence of experiencing one or more PSIs compared to patients at the bottom ranked hospitals. This finding was consistent across all 13 PSIs studied.
  

• If all hospitals performed at the level of Distinguished Hospitals for Patient Safety, approximately 206,286 patient safety incidents and 34,393 Medicare deaths could have been avoided while saving the U.S. approximately $1.74 billion during 2003 to 2005.

Patient safety is defined in this report as care that is "freedom from accidental injury due to medical care, or medical errors."

(hat tip to Day on Torts)

Labels: FAQ-Medical Malpractice

Chubb, which claims to insure 90% of the law firms listed in The American Lawyer's AM Law 200, seems to have tripped over itself in first trying to stop its insured from blogging, and is now trying to draw a distinction between "informational" and "advisory" blogs.

What the difference exactly is, escapes me. And that is because there are an unlimited number of shades of gray within this constantly morphing space.

Here are the definitions they are trying to create in their own bumbling way:

• An informational blog presents information or offers a forum for discussing issues in a neutral, unbiased way. This type of blog offers information similar to that found in an article or presented by an individual in a seminar -- informational blogs do not provide advice to a specific individual on a unique matter. Typically, these blogs pose a minimal level of risk from Chubb's underwriting perspective.

• In an advisory blog, however, a law firm offers advice. By its nature, then, it increases the risk of a malpractice lawsuit against the firm. An advisory blog can potentially establish an attorney-client relationship, possibly bypassing such safeguards as determining the suitability of a potential client and checking for possible conflicts of interest. As always, Chubb's underwriters will evaluate each submission on its own merits.

Now in one recent post of mine I discussed the tough legal issues that any individual claimant faced in regard to the tainted pet food in the news. Is that "informational" or "advisory?" (I would call it my opinion.) The news story is certainly a unique matter.

And if I decide to rip into Chubb for trying to draw a line that doesn't really exist, does that mean I am not discussing it in a neutral and unbiased way and therefore the blog is now outside their coverage? If I mock them for failing to have counsel review this new policy and I advise them to get it reviewed -- for no attorneys in their right mind would ever try to draw such a line, so it stands to reason it wasn't reviewed -- is my posting now advisory instead of informational? If I strongly suggest it was foolish to do this, are my comments advisory or informational?

And how an "advisory blog" establishes an attorney-client relationship, by the way, is beyond me. To establish a relationship one needs to have one-to-one communications, not just an opinion shouted to the world. (I wonder if Chubb considers that comment of mine informational or advisory, regardless of whether it is right or wrong?)

In trying to define the legal blogosphere and place these ever-changing formats into neat categories, Chubb is creating a problem by trying to graft static definitions onto a dynamic beast.

If this is the place that Chubb wants to go, then law bloggers who have them as their insurer need to bring their business elsewhere.

The only thing Chubb seems to have done right here is place a bulls-eye on its back for ridicule.

(hat tip to Kevin O'Keefe at LexBlog, who also has a copy of the Chubb press release)
Addendum: Rush Nigut has a great response at Kevin's blog:

Chubb is trying to save face. The company realizes it made a mistake with its blanket denial and the press release is a way to say, "We really didn't mean we wouldn't cover law firms that have blogs . . . you must have misunderstood us."

2nd Addendum: Robert Ambrogi at the Law.Com Blog Network chips in more with: Insurer: 'We Do Cover Blogs, Sort Of'

Labels: Blogging, Insurance Industry

The reply brief was filed regarding the lawsuit challenging New York's new advertising rules for attorneys. A copy of the brief by Public Citizen is here:Reply.pdf

I previously covered the opposition brief filed by New York's Attorney General here: New York Responds to Lawsuit Challenging New Attorney Advertising Rules -- By Banning Humor

The issue I had written on was the vagueness of the rules, and that even a simple family photograph could be viewed as a violation, and I had remarked that the State had failed to address the issue of vagueness. This is how Public Citizen responded:

Defendants Do Not Dispute That the Rules Are Unconstitutionally Vague and Thus Invite Arbitrary Enforcement.

Defendants do not respond to plaintiffs' argument that the rules are too vague to give adequate guidance to those seeking to avoid discipline and to prevent arbitrary enforcement. See Pls.' Mem. at 15-17. As explained in plaintiffs' opening memorandum, the rules do not define a "technique[] to obtain attention" or explain what sorts of techniques are "relevan[t] to the selection of counsel." Id. Nor do they provide any guidance as to what lawyer characteristics are deemed to be "unrelated to legal competence" or what sorts of statements "impl[y] an ability to obtain results in a matter." The vagueness of the rules creates a risk of self-censorship and arbitrary enforcement that cannot be tolerated under the First Amendment. Id. For this independent reason, the validity of which defendants effectively acknowledge, the amended rules are unconstitutional.

Additional links are at my prior posts linked above.

Labels: Attorney Ethics, Judiciary

This New York slip and fall case is one that should never have been taken by the attorney:

While attempting to disembark a bus owned and operated by the defendants, the plaintiff slipped on a step which she described as wet and slushy, and fell from the bus. It is undisputed that a heavy snow had fallen several days earlier and that passengers were tracking snow, slush, and water from the ground onto the bus.

In trying to establish liability against the bus company, however, the court ruled that:

under the weather conditions which [sic] existed at the time of the accident, it would be unreasonable to expect the defendants to constantly clean the floors of their buses.

My own feeling is that juries don't like such cases, and great care should be taken when selecting them. If a sidewalk trap has existed for years it is one thing, but sloppy/slushy conditions bring with it risks that are sometimes unreasonable to shift to another.

On the flip side, an interesting approach to the issue might have been to discuss the flooring of the steps, and the potential use of outdoor carpets or other materials to make the steps slip-resistant in adverse conditions (the way office buildings lay out the mats) but there was no such discussion in the record.

The case is McKenizie v. County of Westchester, from New York's Appellate Division, Second Department.

Labels: Personal Injury, Slip and Fall

Let the debunking continue.

Last week, a "study" was released by Pacific Research called "Jackpot Justice" that claimed the "real costs" of the tort system was $865B.

The Becker-Posner Blog has now weighed in with Judge Richard Posner sorting through some of the fictitious claims and double-dipping that was used to trump the numbers up as high as possible. Professor Gary Becker agrees with Posner that "the authors of the study considerably exaggerate the cost of the tort system" while he goes on to recommend some of his own ideas to help an imperfect system. (Hat tip to TortsProf)

This debunking can be added to the one from The Blawgletter (Does Tort Litigation Kill People?) the other day.

Ted Frank at Overlawyered loved it, sight unseen.

Labels: Frivolous Claims, tort reform