Robert Bork has filed an Amended Complaint for the New York personal injury lawsuit started on June 6th against the Yale Club. The then 79 year-old Bork had fallen a year earlier at the club while ascending to the dais to give remarks to a gathering sponsored by New Criterion magazine, injuring his leg.

A review of the Amended Complaint shows that Bork -- a former appeals court judge, Supreme Court nominee, conservative leader and avid tort reformer -- has kept his claim for "in excess of $1,000,000" plus punitive damages despite widespread ridicule, but has dropped his claim for legal fees. The Amended Complaint, filed June 27th and entered by the clerk of the court today, is here: BorkAmendComplaint.pdf.

The error-riddled original Complaint is here: BorkComplaint.pdf

My open letter to Judge Bork regarding his edits now follows:
-----------------------------------------------------------------------------------------------
Honorable Sir:

Since New York personal injury law is what I do, I decided to peruse your Complaint back on June 11th. I saw a whole mess of errors, and took the liberty at that time of commenting on What Bork Should Do Now to fix the problems. While I was a bit concerned about giving a big-shot judge advice, I see now it didn't really matter because neither you nor your attorney apparently saw my blog. Don't worry, I'm not offended. My wife doesn't read this either.

Nevertheless, I'm gonna take a crack at this once more, because, well, I'm in a good mood and wanted to help. Below are my June 11th comments in red, and today's comments follow in black. Let's see how you and your attorney did with the lawsuit amendments:

10. Voluntarily dismiss the federal court complaint, as of right, before the Yale Club answers (FRCP 41). Once defendant answers, you need permission to dismiss and they may not be so quick to agree without exacting something from you.

Judge, you failed to do the most important thing, and that is get out of federal court while I think you still can. As a result, your litigation will be more expensive since the New York state courts don't provide for expert depositions the way federal courts do, and depositions of examining physicians are rarely undertaken. This means, most likely, depositions of at least one doctor and probably one building inspector (if there are code violations) for each side. Assuming you entered into a standard contingency retainer fee, the out of pocket expenses will be paid off the top, resulting in a lower recovery for you if you should prevail. Just because you were a federal judge doesn't mean that is the best forum for you.

9. Re-start in New York State Supreme Court....
(see above)

8. Dump the punitive damages claim. You know better than that. (And, by the way, it is not a separate cause of action, as your attorneys framed it.)

Incredibly, the punitive damages claim is not only still in the lawsuit, but is also still set forth as a separate cause of action. Given that such a claim has almost zero chance of success -- and I think I am being overly generous by saying "almost zero" -- I thought that, when I saw an Amended Complaint had been filed, this demand would be gone. I know that admitting a mistake is hard, but perpetuating it will only make things worse. If you were sitting on the bench for such a claim, how badly would you rip such a plaintiff?

7. Dump the claim for attorneys fees. They are not allowed in New York.

Appropriately dumped.

6. Dump the claim for pre-judgment interest. It is not allowed in New York.

Despite the fact that we don't allow claims for pre-judgment interest, it is still in your lawsuit. This is clearly frivolous. If you would like to come to Albany with the New York State Trial Lawyers Association next year when we head up for our annual lobby day, and ask our legislators to make this law, you are welcome to join us.

5. Make sure the new complaint explicitly alleges the Yale Club owns the premises. You didn't do it the first time. If they are going to deny it, you want to know now.

Ownership of the premises has now been clearly alleged.

4. Make sure the new complaint explicitly alleges the Yale Club controls and operates the premises. You failed to do this the first time. If the Yale Club contracted operations to a 3rd party, or allowed the New Criterion magazine as a sponsor to undertake these activities, you want to know now. Make sure each fact is separately pleaded so you know exactly what position the Yale Club is taking with respect to who operated and controlled this event and this room when they answer the Complaint with admissions and denials.

Control and operation of the premises has now been clearly set forth, though you failed to put allegations in separate paragraphs. This doesn't kill you, but you are less likely to get an Answer that eliminates certain issues due to admissions.

3. Make sure the new complaint specifically claims the New Criterion did not operate or control this event in any way, or sue them if you think they did. This is important since you alleged they were the "host." (In paragraph 7, you called both Yale and New Criterion the "host.") Whatever you do, just don't leave this vague as you did the first time. It may not be the Yale Club that did the actual set-up for the dais. Do you want to wait for the statute of limitations to expire only to see the Yale Club point at the empty chair?

You cleared up the mistake in the original Complaint of calling New Criterion the "host." But if you are not going to sue New Criterion, you should explicitly allege that they were not responsible for placing steps to the dais. If the Yale Club denies that allegation, it would be quite meaningful.


2. Do not make a claim for future lost speaking fees, unless they are huge. If you do, your prior writings and statements on tort reform may become relevant to show that your stock as a speaker to conservative groups has been devalued as a result of the appearance of hypocrisy in filing a suit with some meritless claims thrown in to the mix. The man-on-the-street may well remember you as a SCOTUS nominee, but they surely don't know of what you have written. You don't want them to know either, because some of the claims in your federal complaint can't be justified under any legal theory. And that makes you, as a former big-shot judge, look bad. And you are not in a position to simply blame your lawyers for having made so many errors.

In paragraph 11 you state that the injury stopped you "from working your typical schedule." It remains to be seen if you will make a claim for lost speaking fees. While I don't know if speaking fees to conservative groups is an element of your lost "schedule," I think it is likely that perceptions of hypocrisy by bringing this action in the form you did will probably hurt you financially if you plan on speaking in the future to conservative groups for a fee. In other words, if you make substantial income from speaking fees, the filing of the lawsuit could hurt you worse than the accident.


1. The New York State Trial Lawyers Association has over 4,500 lawyers. Hire someone that knows what they are doing with this area of law, not a white collar criminal defense or securities lawyer that can't draft a simple trip and fall complaint. And remember also that you don't need a BigLaw "litigator" that probably hasn't tried a case in years. And you do need someone that knows how to move a case efficiently.

I know that the guy you hired, Randy Mastro of Gibson Dunn, is a big mucky-muck. He used to be Deputy Mayor under Rudy Giuliani, among other things. But you know what? That doesn't mean he knows how to handle a simple personal injury lawsuit. And it is clear that he didn't consult one, either prior to filing the original Complaint or after the storm of ridicule that followed.

I wish you all the best, but the legal decisions you have made thus far are nothing to brag about. You have already been ripped as a barbary pirate and hypocrite for making such high monetary demands, but something else is also going on here. A former Supreme Court nominee and his elite BigLaw counsel have been unable to competently draft a decent personal injury complaint after two tries. And I'm not sure which of the blunders is more frightening.

(By the way, congratulations on being celebrated by the Federalist Society this week for your contributions as a conservative thinker and brilliant jurist. I understand about 200 people dropped $100/head to be there. I'll assume these particular legal proceedings weren't part of the discussion.)

Respectfully yours,

Eric Turkewitz

Addendum 7/2/07 For more on Bork's feting at the Federalist Society, see An Interview with Robert Bork by Ilya Somin at The Volokh Conspiracy.

Addendum 7/17/07 -- Bork Attorney Randy Mastro is picked by Rudy Giuliani to be on Justice Advisory Committee



(Eric Turkewitz is a personal injury attorney in New York)

Labels: Bork Trip And Fall Suit

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

Before heading over to the courtroom, we look at risky conduct that leads to lawsuits and check to see that the courthouse doors are open:

Dispute resolution often needs a courthouse, and with corporate interests always looking for ways to get immunity through tort "reform," TortDeform presents: Michigan Lawyer's Weekly has exposed tort deform for what it is: Chamber of Commerce anti-lawyer propaganda based on myths instead of hard data;

And over at the Maryland Injury Law Blog, Ronald Miller scratches his head at a doctor who thinks that limiting the rights of patients is "the most important thing on the planet." Someone give that guy a newspaper;

Courts mean nothing without a judge...and since New York's judges have now gone 9 years without even a cost-of-living pay raise, so our Chief Judge has threatened a lawsuit. But Jason Boog at Judicial Reports sees a potential alternative: Will New York Judges Go On Strike?

In the risk management department, the RFID Law Blog reports on a new bill to help stop counterfeit drugs breaking into our drug supply chain (via Adam Fein at Drug Channels);

And before we get to our new clients and litigation, Rob Sachs from ShragerLaw shares some insight as to why some Philadelphia hospitals are doing well, why some do poorly, and who the bad ones want to blame;

Also regarding hospitals, Kia Franklin at TortDeform takes on the issue of patient dumping in Los Angeles;

As the new client walks into the office, we are reminded of a post from Kevin, M.D. about chatty doctors who lose the focus of the exam when talking about personal events, and we wonder if we make the same error while making small talk with the new client;

And into the courthouse we go...

A federal judge sitting in New York has allowed a Zyprexa class action to go forward, according to Prescription Action Litigation;

Medical care in prisons jumped to the news in The BLT: Blog of Legal Times, as they report on a suit brought due to deprivations of medical care for those incarcerated;

The Medical Quack reports that a medical malpractice case resulted from triple-bypass surgery being done. It seems the doctor was looking at the angiogram films of another patient
(via Kevin, M.D.);

TortsProf William Childs has links to a bunch of new personal injury matters this week: A Kentucky Amusement park ride that resulted in a 13-year-old having both feet sliced off; (with more on theme park safety from Sluggobear and the Kentucky Law Review); Settlement discussions on the Boston death of a woman when a tunnel at the Big Dig collapsed, and a Las Vegas "gentleman's club" altercation involving strippers, bouncers, guns, biting and a former pro-football player;

From tragic to bizarre, the Consumerist writes of a Taco Bell Employee that Allegedly Spit and Urinated in Food;

From bizarre to comical: Lowering the Bar gives us a woman who sued for emotional distress because she was not in the lottery;

From comincal to pathetic: Manny at QuizLaw brings us the case of a woman who injured her jaw because Starburst Fruit Chews were, well, too chewey. I hope the attorney who took this wasn't counting on it to make the rent. And if you guessed that Overlawyered might also have the story, you would be correct;

Following closely behind the Starburst suit in the cateogry of "what the hell was the lawyer thinking?"...from Thomas Swartz at New York Legal Update, a lawsuit that drives the good lawyers crazy because it should never have been brought -- a woman who sued after falling while ice skating, when some 15 minutes before her fall, she observed that the skating surface was deteriorating, and there were ice chips, bumps, and wet spots on the ice. Fancy how that happens after people have been skating;

Can a child sue his own parents for negligence in failing to properly put him in his child seat? The Minnesota Supreme Court says yes in this case reported by The Injury Blog;

And a New Jersey court rules a duty owed by the passengers of a car to aid an injured man, from John Day at Day on Torts;

Billy Merck at Above the Law has a: Lawsuit of the Day: Belk Cosmetics Contractors Win Damages for Being Watched. Who needs a real window to play Peeping Tom, when you can snoop via video?

When you can get an opposing witness to testify multiple times, it ususally helps a case, and litigants in the September 11 litigation got just such a bonus when former EPA head Christie Whitman gave congressional testimony, and Joe at Tort Burger -- Hold the Reform brings us some of the details;

As the trial goes on, I have always wondered just how much background knowledge the jury has on certain subjects. I'm not the only one to wonder, as Anne Reed writes in What Do They Know? which followed up on a Newsweek poll about the lack of knowledge some Americans have on various subjects;

When you started that case, I hoped you picked the right lawyer. As Andrew Bluestone from New York Attorney Malpractice Blog points out, this claimant thinks she did not, after netting just $6.60 from a $35,000 settlement. She has now brought a legal malpractice suit against high profile New York personal injury attorneys, the Barnes Firm; (See also, Suit 'winner' nets pocket change, via Buffalo Pundit)

Some causes of action award legal fees, such as this consumer fraud claim in New Jersey regarding Vioxx. Mark Herrmann at Drug and Device Law complains that the legal fees were $4.9M on a claim that was only worth $4,000 (also Ted Frank at Point of Law) So with that kind of risk, why didn't Merck try to settle that particular claim?

Of course, that case for attorneys fees is not to be confused with that of former Judge Robert Bork who asked for lawyers fees in a New York personal injury case, with a small problem being that such fees are not permitted, even if successful;

After verdict, the action isn't always over, as Princeton Insurance found out the hard way, after a $75M verdict (reduced to $37.5M) in a dram shop case. They had apparently failed to negotiate in good faith on the $1M policy, and they are now stuck with a $21.4M bill (Law.com via The Legal Intelligencer);

As you pack your bags and go home for the weekend, or a full one week Fourth of July respite, a few things to mull over:

• Is this how they usually treat suspected purse snatchers in Texas, by running them over with a truck? (via QuizLaw);
• MonkeyGirl wonders what would it be like to have indicator lights on your head for others to see the reactions to your comments;
  
• And finally, with the Nathan's Hot Dog Eating Championship just days away, it seems the 6-time champ is having problems with his jaw (via Kevin, M.D.). I knew you'd be concerned...
  

Enjoy the upcoming holiday week...

(Submissions for next week's edition, if I feel like doing one, can be made to -->> blog [at] TurkewitzLaw.com)

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Personal Injury Law Round-Up

This comes from the Philadelphia Inquirer:

In one case, doctors removed a patient's healthy thyroid after a laboratory mix-up led to an incorrect cancer diagnosis.

In another, a neurosurgeon halted a procedure after making an incision on the wrong side of the patient's head.

In yet another, a surgeon inserted a needle into a patient's right knee before realizing that the operation was planned for the other leg.

Those surgical misadventures are examples of the 175 errors made by hospitals and surgery centers in Pennsylvania, according to a report released Tuesday from the state's Patient Safety Authority. The survey, the first of its kind, covered the 21/2 years that ended Dec. 31.

Much more at the link above.

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Medical Malpractice

Citizen Action of New York, a government watchdog group, asserts that Blacks, Asians and Hispanics are severely underrepresented in Manhattan jury pools, according to a study they conducted.

As per their press release, while Whites make up 1/2 of the Manhattan population, they make up 3/4 of the jury pool.

"Our survey showed that jury pools have a much higher percentage of whites than their share of the population, while blacks, Hispanics, Asians, and mixed race people are enormously underrepresented," Bob Cohen, Citizen Action policy director and the report's lead author, said in a statement. "This means that defendants in criminal cases and plaintiffs in civil proceedings ... can't be sure they're going to get a fair result from the courts."

An executive summary and the full report are also available from the group.

More at:

• New York Daily News
• Reuters
• New York Press
• Sui Generis (added 6/29/07)
  

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Inside The Jury Room

Avvo, the new attorney ranking website, has been responding to frequent criticisms of its site. This was revealed in a a 1 1/2 hour interview with Paul Bloom, a founder and VP of marketing at Avvo, by Scott Greenfield -- owner, operator, writer, editor, publisher and grand poobah of Simple Justice.

You can read the details at Avvo: My chat with Paul. That's Scott's mug shot at right, not Paul.

Addendum: At the request of Mr. Greenfield, I have added a more up-to-date photo.

See also:

• Ratings Change at Avvo (The BizzBuzz)
• Avvo Changes Ratings Scheme (Screenwerk)
• Avvo Drops Ratings on Some Attorneys (John Cooke's Venture Blog)
• Seattle Lawyers Sue New Lawyer-Rating Web Site (WSJ Law Blog)
• Bravo for Avvo? Not so Quick (Robert Ambrogi)
• Avvo Rates California's Best -- Not Always Kindly (Legal Pad)
• Avvo Launches With Mixed Ratings for Its Lawyer Ratings (Law.Com Blog)
  

Labels: Blogging

The New York Court of Appeals today rejected efforts by the City of New York to dismiss a personal injury lawsuit surrounding the 81-acre Pelham Bay Landfill in the Bronx. The city-owned landfill had been the site of illegal dumping of pollutants and was officially closed in 1978.

Nine lawsuits, representing 29 plaintiffs, had been brought by neighbors living within a mile of the dump, who had developed acute lymphoid leukemia or Hodgkin's disease. The suits, now consolidated, had been brought between 1991 and 1993 claiming that the city's negligence in the creation and maintenance of the site had resulted in elevated levels of toxic substances that caused injury and death.

According to a 2003 article in the Daily News, there was illegal dumping of industrial waste, oil, sludge and benzene, a known carcinogen and a leading cause of childhood leukemia. By the time the dump closed in 1978, more than a million gallons of toxic waste had leaked into Eastchester Bay where local children played and swam. After the landfill was closed, the city received 'millions of dollars' from a lawsuit it brought against companies that had illegally dumped hazardous wastes into the Pelham landfill and four others during the 16 years of its operation.

Two issues had presented themselves in the long-running litigation: The statute of limitations and the central issue of causation. On the issue of causation, which is the heart of today's opinion, New York's high court allowed the case to proceed based on procedural grounds.

Since the original motion was for dismissal for failing to plead a cause of action, and not one for summary judgment based on the merits, the plaintiff's could simply rely on the pleadings, and did not need an expert (though they had presented affidavits from a forensic toxicologist and an environmental health expert, among others). The court held that it is proper at this stage to "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory."

The decision affirmed the 3-2 majority ruling of the Appellate Division, First Department on that basis. The plaintiffs are represented by Shandell, Blitz, Blitz & Bookson of New York.

The decision in Nonnan v. City of New York can be found here.

Addendum 6/28/07 - New York Post covers the decision: 'TOXIC' BX. SUIT FINALLY OFF TO TRIAL (and notes that this is believed to be the longest running case in Bronx County)


(Eric Turkewitz is a New York personal injury attorney.)

Labels: Personal Injury

A two month lead paint trial has ended in Brooklyn with a $12.75M settlement, the largest ever for such a case in New York.

According to this story in the Daily News today, 19 children from an extended family suffered irreversible damage from ingesting lead paint at city housing between 1981 and 1994. The city housing included a notorious and rancid welfare hotel that had been cited for 1,300 code violations before being shut down in 1989.

More at the link above, and from these prior articles:

• Toxic 'nightmare' gets day in court (Daily News, 4/16/07)
• Lead poisoned 19 of us - kids' suit (Daily News, 5/1/07)
  

(Photo credit at right: Daily News)

(Eric Turkewitz is a New York personal injury attorney, who is grateful he never had to live under such decrepit conditions.)

Labels: Personal Injury

Rule #1 in writing a story about how dumb we are: Don't make spelling errors. Especially if you are Newsweek. And it is in the first paragraph.

In this week's copy a story on "Dunce-Cap Nation," we find the following opening:

July 2-9, 2007 issue - For our What You Need to Know Now cover story, we asked our polling firm to test 1,001 adults on a variety of topics, including politics, foreign affairs, business, technology and popular culture. The results were mixed, to be charitible [sic]. NEWSWEEK's first What You Need to Know Poll found many gaps in America's knowledge -- including a lingering misperception about an Iraqi connection to the September 11 terror attacks, an inability to name key figures in the American government and general cultural confusion.

(By the way, from the story, only 11% knew who the Chief Justice of the United States was, 41% thought Saddam Hussein was involved with the September 11 attacks, and most people didn't know that most of the hijackers came from Saudi Arabia.)

And if you find grammatical or spelling mistakes here, rest assured I did it on purpose to see if you are paying attention.
(hat tip to Legal Times)

Labels: Odds and Ends

Administrative Judge Roy Pearson, lampooned high and low for his ludicrous $67M lawsuit over a pair of pants he claims were lost by his dry cleaners, lost his case today. And it didn't even matter that he reduced his demand to only $54M.

He didn't just lose his ridiculous claims for millions of dollars for claims that included emotional distress, he also lost the small claims part of his case for the actual pants themselves.

And he may get socked for sanctions and attorneys fees for engaging in "in bad faith and vexatious litigation." That seems like an understatement. You can read the decision here: PantsPearsonDecision.pdf

Judge Judith Bartnoff noted at the end of the decision, that:

The issue of the defendants' claim for attorney's fees against the plaintiff will be addressed after the defendant's motions for sanctions and for attorney's fees have been filed and briefed by the parties.

Pants Pearson can't be happy today.

Regarding the actual pants, Judge Bartnoff noted that Pearson had not met his burden of proof:

With regard to the alleged missing pants, the plaintiff has not met his burden of proving that the pants the defendants attempted to return to him were not the pants he brought in for alterations. At best, the evidence on that subject is in equipoise. The Court agrees with the plaintiff that the pants in the defendants' possession do not appear to match the jacket to his burgundy and blue pinstriped suit. The Court also will accept that Mr. Pearson does not like cuffs on his pants. The plaintiff may well believe that he brought the pants to his burgundy and blue pinstriped suit to the defendants, but there also is strong evidence that he did not.

The Court found Soo Chung to be very credible, and her explanation that she recognized the disputed pants as belonging to Mr. Pearson because of the unusual belt inserts was much more credible than his speculation that she took a pair of unclaimed pants from the back of the store and altered them to match his measurements. Mr. Pearson only recently had received four suits back from his son, he brought in several pairs of pants over a period of less than two weeks for alterations, and it certainly is plausible that the pants on the hanger with his blue and burgundy pinstriped suit jacket were not the pants that matched the jacket, even if Mr. Pearson assumed that they were. The Court need not determine what did happen; what it must do is to determine if Mr. Pearson proved that the defendants intentionally misled him and otherwise are liable to him under the CPPA based on the pants. The Court finds that he has not made that proof.

In making its findings, Judge Bartnoff also noted about his prior divorce litigation, that:

[T]he litigation was disproportionately long, despite the relative simplicity of the case, and that Mr. Pearson "in good part is responsible for excessive driving up of everything that went on here" and created "unnecessary litigation." Mr. Pearson therefore was ordered to pay $12,000 of his wife's attorney's fees.

That doesn't bode well for him for the coming hearing on sanctions and attorneys fees.

What's the lesson in all of this?

1. We are a nation of 300 million. There are a few nuts out there.

2. Pearson is an administrative law judge. Those who want to strip the right of trial by jury from the citizenry should note that sometimes people get elected or appointed judge and they may not be the type of person you want sitting in judgment. A community, known as a jury, works a whole lot better than being at the mercy of an individual.

Addendum: The American Association for Justice, the nations largest group of pro-consumer trial attorneys (of which I am a member), issued this statement:

"A multi-million dollar lawsuit over a pair of pants was both ridiculous and offensive to our values. Our civil justice system must be reserved for those who seek fair compensation when they are the victim of true wrongdoing or negligence. The court has ruled wisely in this matter. Opponents of our civil justice system should pay heed to this decision -- it clearly shows that the system works to deny outrageous and ridiculous claims."

AAJ has been sharply critical of Judge Pearson's lawsuit seeking $54 million in damages over a lost pair of pants. In April, AAJ CEO Jon Haber called on the District of Columbia Bar Association to conduct a disciplinary investigation of Judge Pearson for his conduct in this matter. Haber and AAJ President Lewis "Mike" Eidson pledged to support the defendant's defense fund and encouraged the AAJ membership to also contribute (www.customcleanersdefensefund.com).

News links to Pants Pearson decision:

• Plaintiff Gets Nothing in $54M Case of Missing Pants (Washington Post)
• Dry cleaner wins missing pants case (Associated Press)
• Judge Rules in Favor of Dry Cleaners in $54M Pants Lawsuit (ABC News)

Blog Links:

• Justice Prevails (Obsidian Wings)
• Justice Served in Pants Case (Rhymes with Right)
• Should Judge Pearson Lose His Gavel? (WSJ Law Blog - Peter Lattman)
• The Implications of the $54 Million Missing Pants Verdict (Professor Bainbridge)
• Pantsed! (CounterfeitChic)
  

(Eric Turkewitz is a personal injury attorney in New York, who understands that when one lawyer does something incredibly stupid, it tarnishes the entire profession in the eyes of some.)

Labels: Frivolous Claims, Interesting Cases in the News

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

In doing these round-ups I like to start with risky conduct before delving into the litigation, for that is what brings on the injuries and attorneys. So let's start here:

Headlining the arena of risk this week: Doctor Anonymous reports on a 15-year old that performed a C-section "under his parents watch" (via Kevin, M.D.);

Defective toys made in China were big news this week, including the use of lead paint on Thomas the Train toys. The Gun Toting Liberal was unsparing in his commentary of who to blame;

We've seen a lot of food poisoning stories lately. Wonder how it happens? Bill Marler tells us that slaughtering a goat in the kitchen may be the source in one case;

And the Vatican (!) sees danger and risk too, and has issued some new commandments regarding driving (via California Personal Injury and Insurnace Blog);

The New Jersey Law Journal sees that Electronic Health Records Raise New Risks of Malpractice Liability, the coming of which I discussed briefly on December 15, 2006;

The Cavalcade of Risk, with the latest edition by the Workers' Comp Insider, has made my job easier this week, by covering numerous risky issues at the insurance-related blog carnival;

Let's head to the courthouse now and see what we find:

Sheila B. Scheuerman from TortsProf gives us the latest obesity lawsuit, but it might not be quite what you think;

Howard Erichson from MassTorts reports that it was a good week for the paint industry as two state high courts knocked out lead paint nuisance claims;

Sometimes judges turn into litigants. Anyone come to mind? Anthony Sebok at his FindLaw Writ column discusses: Judges Behaving Badly: Their Ill-Considered Suits Against a Dry Cleaner, and Against the Yale Club. For a few more badly behaving judges, see: Judges Gone Wild;

And from the discovery department: Law firms Wiley Rein and Coughlin Duffy learned the hard way about discovery issues when walloped with $1.25M in sanctions by Southern District of New York Judge Alvin Hellerstein (New York Law Journal) due to document destruction and misleading statements that added years and millions of dollars to the cost of prosecuting suits on behalf of people who died or were injured or suffered property loss in the September 11 attacks;

(And since I went to Wiley Rein and Coughlin Duffy's websites for the links above, I might as well add that both firms are in violation of New York's new ethics rules by failing to note on their home pages that their websites are "attorney advertising." Doh!)

It's not just defense lawyers that acted badly this week, but plaintiff's too, as the New Jersey Law Journal reports today on two lawyers indicted for staging phony car accidents;

Returning to discovery, if you need some documents from the FDA to help your case, I hope you asked for them a loooooong time ago. Ed Silverman at Pharmalot reports there are some Freedom of Information Act requests pending for three years;

Sometimes trying a case can involve moments of great drama, but as Howard Zimmerle from Quad Cities Injury Lawyers reminds us, sometimes it is simply nuts-and-bolts lawyering to resolve things like How to get the chiropractor bills paid that is required. I like this this new blog as it addresses actual issues, as opposed to the trap so many personal injury attorneys fall into of reporting on the latest accident...And then writing if you were hurt, call us at blah, blah, blah...

In sorting through the viable claims, Day on Tort's John Day reports that the Kentucky Supreme Court has rules there can be no recovery for pre-impact fear in a wrongful death case, a decision that doesn't make any sense to this New Yorker;

Some fodder for the weekend:

• Thinking of hanging your own shingle? Carolyn Elefant of My Shingle fame creates SOLOFORMANIA! A Cornucopia of Forms for the Busy Solo;
• Fellow blawger Ron Miller and his Maryland Injury Lawyer blog got some nice local press. We could all use a little of that from time to time;
• And not to be missed (via 911doc at M.D.O.D.) from The Onion, I've Got Some Bad News, And I've Got Some Hilarious News. Is this medical malpractice or simple negligence? You decide...

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

Labels: Personal Injury Law Round-Up

Counterfeit Drugs is the subject of a paper released today by the conservative American Enterprise Institute, entitled Bad Medicine In the Market.

The authors, Roger Bate and Kathryn Boateng, do a nice job of summarizing the problem of the dangers of fake drugs, which can find their way into anyone's home if there are weaknesses in the drug distribution system. The authors stop short, however, in suggesting any solution other than curtailing the use of generic drugs that had not been tested.

So with that, I'd like to remind readers of Tim Fagan's Law, first introduced by Rep. Steve Israel in 2005, and currently pending. Named for one of my teenage clients, who was injected in 2002 with counterfeit Epogen after an emergency liver transplant, it provides for the following to help plug up a porous supply chain through which counterfeits enter the mainstream distribution system:

• Increases criminal penalties. The current federal law is three years in prison. Israel’s bill increases penalties and includes up to life in prison.

• Mandates that a manufacturer must alert the FDA of a counterfeited drug in 2 days. Currently, there is no mandate. The pharmaceutical industry has said that it would voluntarily tell the FDA about counterfeited drugs within 5 business days.

• Provides the FDA with the authority to require companies to use anti-counterfeiting technology, as the technology becomes feasible and available.

• Mandates that the FDA implement the paper pedigree rule that was mandated in 1988 and has been postponed for 17 years. It also closes the "authorized wholesaler" loophole and includes manufacturers as needed to start the pedigree.

• Authorizes $60 million for spot-checking for counterfeits for each year between fiscal years 2006 and 2010.

• Authorizes $5 million for each year between fiscal years 2006 and 2010 for educating the public and health care professionals on how to identify counterfeit drugs.

• Provides recall authority to the FDA for prescription drugs. Currently, the FDA can only recall equipment and can only encourage private companies to recall their drugs.

• Authorizes the FDA to issue subpoenas with respect to preventing threats to public health.

The law is spear-headed by Tim's congressman, Steve Israel. It would be nice to see the AEI get on board with this legislation, given its concerns over the issue.

Related links:

• Counterfeit Drug Resource Page (at my firm's website)
• FDA Counterfeit Drugs Website;
• Dangerous Doses: Kathereine Eban's investigative look into the world of counterfeit prescription drugs, released May 9, 2005;
• On The Loose: Protect Yourself From Counterfeit Drugs (National Consumers League)
• Counterfeit Drugs label (from this blog, for continuing commentary)
• Drug Channels blog (Dr. Adam Fein's continuing coverage and commentary regarding holes in the drug distribution channel)
• Juvan's Health Law Update (Another blog with continuing coverage, focusing on litigation by secondary market wholesalers)
  

Labels: counterfeit drugs

Disgraced New York personal injury attorney Morris Eisen is in the news again. One of the most prominent personal injury attorneys in the city, he had been disbarred and jailed in 1992 after a conviction for racketeering.

His appearance in the news centers on his fight to collect some of the legal fees he claims he is owed for legitimate cases he was handling after he was shipped off to jail for three years for fabricating evidence. You can find some of the ugly details at this New York Law Journal story, as well as numerous other links simply by Googling his name. Some of the conduct included shrinking the size of a ruler down on a xerox machine, so a pothole would appear larger when the "ruler" was used, and paying a witness to give testimony about an accident when, in fact, he was in jail at the time and nowhere near the scene.

There was no shortage of losers in the Eisen story, including the City of New York that was the target of the scams. It also included, though, thousands of legitimate claimants whose cases Eisen was handling while the chicanery was going on, as well as dozens of other attorneys who had worked at his high profile firm over the years who didn't know what was going on.

His conduct substantially contributed to distrust of attorneys and personal injury cases in general, and provided endless fodder for advocates of tort "reform" who wished to extrapolate his criminal conduct to others in order to close the court house doors to legitimate claimants.


Addendum - see also:

• Morris Eisen is still collecting Legal Fees (New York Legal Malpractice Blog)
• Disbarred Personal Injury Lawyer's Suit for Fees Is Permitted to Move Forward (The Legal Reader)
  

(Eric Turkewitz is a personal injury attorney in New York, who was disgusted at Eisen's conduct when it happened and whose feelings on the subject haven't changed.)

Labels: Attorney Ethics, Personal Injury, tort reform

The advertisement for Avandia attorneys came to the inbox as spam, and clearly appear to violate New York's new advertising rules for attorneys.

A few things to consider in doing an analysis: The return address to "stop receiving" the spam is in New York; The spammers claim to be a marketing firm, and not attorneys; The lawfirm(s) that hired the spammers are not identified, but clearly appear to have engaged the spammers as their agents to solicit clients.

Since the unsolicited email appeared in the personal account of William Childs (TortsProf), I am making the assumption of widespread distribution including New Yorkers. With that assumption, let's turn to the analysis (emphasis below is mine):

• Do the attorneys that hired the spammers come within New York's new ethics rules? Clearly, if they are are New York firms, they do. How about if they are non-New York firms? Or non-New York firms appealing for New York clients? The answer appears to be yes. Because, in addition to providing a New York address in the email, New York's rules for solicitation of clients:

  shall apply to a lawyer or members of a law firm not admitted to practice in this State who solicit retention by residents of this State.

• The spam itself violates New York's new advertising rules in that the subject line does not have the words "Attorney Advertising." From the rules:

  Every advertisement other than those appearing in a radio or television advertisement or in a directory, newspaper, magazine or other periodical (and any web sites related thereto), or made in person pursuant to section 1200.8(a)(1) of this Part, shall be labeled "Attorney Advertising" on the first page, or on the home page in the case of a web site. If the communication is in the form of a self-mailing brochure or postcard, the words "Attorney Advertising" shall appear therein. In the case of electronic mail, the subject line shall contain the notation "ATTORNEY ADVERTISING."

• The spam violates New York's advertising rules because no law firm is identified, yet the rules clearly state that:

  Any solicitation covered by this section shall include the name, principal law
  office address and telephone number of the lawyer or law firm whose services
  are being offered.

Additionally, the rules for solicitation include the following provisions. If the easy ones above were violated, I assume there are multiple additional violations here:

(c) A solicitation directed to a recipient in this State, shall be subject to the
following provisions:
(1) a copy of the solicitation shall at the time of its dissemination be filed with the attorney disciplinary committee of the judicial district or judicial department wherein the lawyer or law firm maintains its principal office. Where no
such office is maintained, the filing shall be made in the judicial department
where the solicitation is targeted. A filing shall consist of:
(i) a copy of the solicitation;
(ii) a transcript of the audio portion of any radio or television
solicitation; and
(iii) if the solicitation is in a language other than English, an
accurate English language translation.
(2) such solicitation shall contain no reference to the fact of filing.
(3) if a solicitation is directed to a predetermined recipient, a list containing
the names and addresses of all recipients shall be retained by the lawyer or law firm for a period of not less than three years following the last date of its dissemination.

Will New York take its new rules seriously and investigate? Stay tuned...

(Addendum: Figuring out which law firms have hired the spammer should be easy for an enterprising citizen-journalist, simply by filling out the form at the website that TortsProf linked to and waiting to see who calls or emails in response. Then publish the names online for the world to see.)

2nd Addendum 6/19/07 The spammer may actually be worse than originally thought, and be engaged in outright fraud. At TortsProf, in the comments section, an individual from The Legal Advocate, whose name appeared on the spam mail, says a spammer hijacked their name. But the questions remain as to who is buyng names from such a "marketing" firm, and what New York will do about it as there are clear violations of the ethics rules going on.

Additional links:

• Attorney Advertising Regulations as of February 1 - now with Frequently Asked Questions (New York State Bar Association);
• Avandia Attorney Advertising Heats Up On Google (This blog, two days after Avandia issue hit the news.)
• New York Advertising Rules - Update on Lawsuit (This blog)
  
  

(Eric Turkewitz is a personal injury attorney in New York. He is not handling Avandia lawsuits.)

Labels: Attorney Ethics

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

Lawyers, drugs and money will once again be a recurring subject. But before heading over to the courtroom, let's look at some preliminary issues:

In one of the saddest stories of the last month, a woman in Martin Luther King Jr.-Harbor Hospital in Los Angeles was dying on the floor of the emergency room. So she was arrested. And then died just outside the hospital doors. Though it happened last month it is news again because the 911 tapes were just released. Randall Udelman (Injury Board: Phoenix) discusses the incident in the context of a degradation in California health care since tort "reform" caps were put in place in 1975; and Dr. Deb uses it to describe the mangled state of health care in the country;

Also in the horrible story department: On Staten Island, a seventeen-year-old track star died from an anti-inflammatory found in sports creams such as Bengay and Icy Hot. This Newsday story comes via TortsProf;

At any stage mediation might come up as an option. To that end, we check in with Diane Levin to help us along with Premature negotiation: how to get rid of performance anxiety at the mediation table, featured at her Online Guide to Mediation blog (via Ambrogi at Law.Com);

Ed Silverman at Pharmalot brings us a good dose of irony. Or hypocrisy. Take your pick. It seems that Eli Lilly is complaining about attorney advertising unfairly influencing patients. Except that there own marketing budget encourages people to take the drugs to begin with. You can find out, courtesy of Advertising for Success, what Lilly officials wanted its reps to say about Zyprexa's side effects;

In the "picking the right lawyer category" we stay with Silverman and Avandia: Here Come the Chicken Pluckers!, with a story of two types of law firms: Those that run around advertising for cases (the chicken catchers) and those that actually know how to try them (the chicken plucker's);

OK, let's head head into the courthouse to see what we find:

Still on the subject of picking the right lawyers: Two examples this week of the wrong ones, as Scott Greenfield sets out in You Paid How Much? as well as my own dissection of the counsel Judge Robert Bork chose for his New York personal injury case;

Of course, being your own lawyer has its problems too, as Administrative Law Judge Roy Pearson should know regarding his now-infamous $54M pants lawsuit. It's isn't personal injury law, but since ABC News quoted me, I'll add it to the Round-Up here:

Frivolous lawsuits like this one are an embarrassment to the profession...I see he has a claim for $500,000 in emotional damages. I don't doubt that he has some emotional suffering, but I don't think it's related to the pants.

From picking counsel to picking courts: Philip Morris doesn't like that it when plaintiffs bring their actions in state court instead of federal. So they tried to have a tobacco case removed from state court to federal, a subject discussed here in Round-Up #11. Michael Dorf (Dorf on Law) explains how a unanimous court rejected its arguments that Philip Morris was "assisting a federal officer," simply by complying with the law, and was therefore entitled to force the action into the federal system (more by Amy Howe at SCOTUSblog and by Scott Nelson at Consumer Law & Policy Blog);

But just because you started suit doesn't mean you'll get to finish. At Drug and Device Law, Beck/Herrmann describe Compliance With FDA Regulations As A Defense in drug cases, and list the specific state laws that are available to get your case dismissed without the merits being addressed;

Having survived the motion to dismiss, we go to the practice tip department: Evan Schaeffer at his Illinois Trial Practice Weblog brings up a tactic I've never tried: Ask for the Story in Reverse;

And from the admissibility of evidence department, Ronald Miller at the Maryland Injury Lawyer Blog writes today about getting those photographs of the damaged vehicles into evidence;

At Respectful Insolence, pseudonymous surgeon/scientist Orac discusses a trial now underway regarding the claims that the mercury in the thimerosal in childhood vaccines has caused autism;

As litigation winds on, some personal injury litigants, who might not be able to work anymore, become desperate for cash to keep on going. Andrew Bluestone at his New York Attorney Malpractice Blog describes an attorney's suspension for having loaned money to clients;

Though it could be worse: Three Kentucky fen-phen lawyers were indicted on fraud charges related to overpaying themselves after a $200M settlement on behalf of hundreds of clients (via Point of Law);

As we get to the end of trial, the jury must be charged: The medical malpractice attorneys and doctors who visit here will want to read this post about the emergency doctrine as it applies to childbirth: As Thomas Swartz explains at his New York Legal Update, a New York court Finds Obstetrician Is Not Entitled To Emergency Doctrine Charge involving shoulder dystocia;

With our jury now deliberating we anxiously pace the courthouse hallways, because second-guessing ourselves is the only thing we can do at this point, and wonder if any of our jurors have an agenda. So we turn once again to Anne Reed's Deliberations for a discussion. One probing question I will add to my voir dire repertoire: Do you have any favorite magazines or web sites?

And just because you won at trial doesn't mean the battle is over. Justinian Lane at TortDeform reports on a study showing appeals judges favor defendants in jury verdicts by 2:1;

In the miscellaneous-but-still-important category, Jacob Goldstein at the WSJ Health Blog reports that, When Hospitals Err, Medicare Might Not Pay. Which is to say, a hospital may no longer get paid for fixing certain problems that they created. Will they discharge patients and make them worse? Time will tell...

As you pack up the trial bag and go home of the weekend, a few things to check out:

• At Nicole Black's Legal Antics she has a contest for the Top 10 Funniest Law Blogs;

• Though none of those bloggers hold a candle to this patient, who uttered the best one-liner ever from a patient, according to Paul Levy at Running a Hospital;

• And if you wanted to add some medical bloggers to your own RSS, but didn't know which ones? Kevin M.D. rounds up his top eight.

Enjoy the weekend.

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

Labels: Personal Injury Law Round-Up

John Edwards appears to have completely capitulated to the tort "reformers" that seek to close the courthouse doors to those injured by medical malpractice. In a 26-page Health Care policy statement issued today, buried on page 13, is this bit (hat tip to TortsProf):

Stop Frivolous Lawsuits: To discourage frivolous suits, Edwards will require lawyers to have an expert testify that actual malpractice has occurred before bringing a suit. There will be mandatory sanctions for lawyers who file frivolous cases, and any lawyer who files three frivolous cases will be forbidden from bringing another suit for the next 10 years. (emphasis mine)

Now Edwards is a former medical malpractice trial lawyer so he should know better. A few points need addressing:

1. It is often impossible to prove prior to discovery that malpractice has taken place. It is one thing to require a physician's review prior to suit, and have a doctor state that based on the available records there is a reasonable basis to proceed. That's good practice when vetting the claim. It is another thing entirely to require that malpractice be proven before discovery, or even suit, is undertaken. This would result in the absurd situation of immunizing those doctors who have lousy records.
2. Testify before whom? If there is no suit, there is no one to testify in front of. Does the potential defendant have to testify too, to help reconstruct events from poorly written notes? Is there a trial before the suit starts?
   
3. If there must be testimony pre-suit, it requires significant additional funding, thereby granting even more immunity to the medical profession than they have now. Currently, the economics of malpractice litigation immunize the medical profession for most mistakes. Basically, it means a mini-suit before a real suit.
   
4. If doctor-experts are forced to testify, and therefore disclose their identities before necessary, it will make it even more difficult for injured parties to retain experts, due to peer pressure physicians face when they become known as someone willing to testify. They also will be forced to testify based on incomplete information.
   
5. The Federal Rules of Civil Procedure already have sanctions in place for frivolous conduct. It's called Rule 11.
   

I have no problem with sanctions for those that bring frivolous suits. And for those that bring frivolous defenses (like blaming the patient for an injury that happened while she was under anesthesia.) Frivolous claims of any kind hurt everyone concerned and should be sanctioned.

But the concept that a case must be proven before it is even started will work only to close the courthouse doors even further.

Either Edwards has completely capitulated to the money of the health care industry at the expense of the downtrodden he claims to represent, or he needs someone to proof-read the policy statements that go out under his name.

Labels: Medical Malpractice, Political Action, tort reform

The New York Times weighs in today on Judge Robert Bork's New York personal injury case, skewering him for bringing the type of case that Bork, as a judge, would have derided.

Bork -- a former Court of Appeals judge, Reagan nominee to the Supreme Court, and long time advocate of tort "reform" -- sued the Yale Club on June 6th for "in excess of $1,000,000." I had previously described this run-of-the-mill slip and fall case with injuries that, based on the Complaint, won't even come close. Notably, he also asked for punitive damages, attorneys fees and pre-judgment interest, and his white-shoed attorneys have apparently little, if any, experience handling such matters. (Irony duly noted.)

The Times writes:

In an op-ed article, he once complained that "juries dispense lottery-like windfalls," and compared the civil justice system to "Barbary pirates."
...

We can imagine what Mr. Bork the legal scholar would ask if he had a chance to question Mr. Bork the plaintiff. If it was "reasonably foreseeable" that without stairs and a handrail, "a guest such as Mr. Bork" would be injured, why did Mr. Bork try to climb up to the dais? Where does personal responsibility enter in? And wouldn't $1 million-plus punitive damages amount to a "lottery-like windfall"?

It is also worth noting that Judge Bork, a conservative icon, is scheduled to be feted at The Federalist Society on June 26th, an event no doubt scheduled well in advance of the filing of the lawsuit. It is likewise worth noting that this suit has not been mentioned by any of the dozens of conservative columnists over at Town Hall, despite widespread ridicule heaped upon him (see links at bottom). One wonders how many more such honors Judge Bork will receive if those who celebrate him won't even rise to his defense.

Addendum 6/29/07 - Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages

Labels: Bork Trip And Fall Suit

When looking for stories on personal injury law for this blog, I often come across comments bashing the jury system. So consider this: Would you want any of these judges sitting on your case:

• Judge Roy Pearson (D.C.), crying in court over his $54M pants;
• Elizabeth Halverson (Las Vegas), Ordering her staff to give her foot rubs, among other transgressions;
• Judge Larry Seidlin (Florida) - crying in the Anna Nicole Smith baby case;
• Judge Lance Ito - Who turned the O.J. Simpson case into a three-ring circcus

And they are not alone. Others get "selected" from time-to-time for their "jurisprudence:"

Readers Digest: America's Worst Judges;
Overlawyered: Worst Judges, cont'd.;
The Legal Reader: Memphis Judge Banned From Florida Resort For Harassment;

And these links don't even involve scandal of the bribery or bench-buying kind, as we've seen in Brooklyn, or those with political biases judges might bring to the bench.

The point, however, is not to bash judges in general. Not even close, since most I've seen are hard-working and conscientious (and I have to appear in front of them). But rather, to highlight that just as there may be bad jurors from time-to-time, so too are there bad judges. Humans are fallible.

When the nations founders enshrined the right to trial by jury, even in civil cases, they knew what they were doing.

Labels: Judiciary

Not all suits are good ones, as we've seen with some of the claims of Judge Robert Bork (as well as the $67M pants story, now on trial), and here is another fine example:

A couple of doctors, including Dr. Michael Zeide pictured at right, who do a lot of work examining claimants for an insurance company, were called P.I.M.P.S., as in Professional Independent Medical Practitioners. So they sued the personal injury attorneys who made the comments.

The full report is in the Palm Beach Post (via Kevin.M.D.).

A bizarre part of the suit is that they sued as "John Does," a tactic attorneys usually reserve for sexual assault types of cases.

I'm betting the First Amendment will make very swift work of this matter. I would also note that people who routinely bend over backwards to make claims as an expert are often referred to as, ahem, the employee of the pimp.

Labels: Frivolous Claims, Insurance Industry, Medical Malpractice

As you likely know, Judge Robert Bork filed a New York personal injury lawsuit last week in federal court here. Due to his prior advocacy for tort reform, he has been lampooned, mocked and otherwise pilloried for having engaged in excessive claims over what appears to be a routine trip-and-fall action at the Yale Club.

But this post is not about mockery or political criticism. The issue today is, given the error-riddled Complaint that has contributed to the scorn, what should he do next? Since this is, after all, the New York Personal Injury Law Blog, I figure I'm the guy to take a shot at this.

So here are the top 10 things Judge Bork should consider:

10. Voluntarily dismiss the federal court complaint, as of right, before the Yale Club answers (FRCP 41). Once defendant answers, you need permission to dismiss and they may not be so quick to agree without exacting something from you.

9. Re-start in New York State Supreme Court. State court actions are cheaper because we don't have expert depositions and don't generally depose treating physicians. (In this case, expect for each side one or two doctors depending on your actual ailments, and a buildings inspector for code violations.) If the expense of litigation has been one of your court reform mantras, this is a good excuse to re-start here, since there are fewer legal hours and less cold, hard cash involved. Since you will be financially accountable for the disbursements (if a standard retainer agreement were entered into), this is particularly important for you as your attorneys would be repaid the money they laid out for you from the gross recovery. (With a local defendant, they may not be able to remove back to federal court, notwithstanding diversity.)

8. Dump the punitive damages claim. You know better than that. (And, by the way, it is not a separate cause of action, as your attorneys framed it.)

7. Dump the claim for attorneys fees. They are not allowed in New York.

6. Dump the claim for pre-judgment interest. It is not allowed in New York.

5. Make sure the new complaint explicitly alleges the Yale Club owns the premises. You didn't do it the first time. If they are going to deny it, you want to know now.

4. Make sure the new complaint explicitly alleges the Yale Club controls and operates the premises. You failed to do this the first time. If the Yale Club contracted operations to a 3rd party, or allowed the New Criterion magazine as a sponsor to undertake these activities, you want to know now. Make sure each fact is separately pleaded so you know exactly what position the Yale Club is taking with respect to who operated and controlled this event and this room when they answer the Complaint with admissions and denials.

3. Make sure the new complaint specifically claims the New Criterion did not operate or control this event in any way, or sue them if you think they did. This is important since you alleged they were the "host." (In paragraph 7, you called both Yale and New Criterion the "host.") Whatever you do, just don't leave this vague as you did the first time. It may not be the Yale Club that did the actual set-up for the dais. Do you want to wait for the statute of limitations to expire only to see the Yale Club point at the empty chair?

2. Do not make a claim for future lost speaking fees, unless they are huge. If you do, your prior writings and statements on tort reform may become relevant to show that your stock as a speaker to conservative groups has been devalued as a result of the appearance of hypocrisy in filing a suit with some meritless claims thrown in to the mix. The man-on-the-street may well remember you as a SCOTUS nominee, but they surely don't know of what you have written. You don't want them to know either, because some of the claims in your federal complaint can't be justified under any legal theory. And that makes you, as a former big-shot judge, look bad. And you are not in a position to simply blame your lawyers for having made so many errors.

1. The New York State Trial Lawyers Association has over 4,500 lawyers. Hire someone that knows what they are doing with this area of law, not a white collar criminal defense or securities lawyer that can't draft a simple trip and fall complaint. And remember also that you don't need a BigLaw "litigator" that probably hasn't tried a case in years. And you do need someone that knows how to move a case efficiently.

BigLaw doesn't mean best law.

Addendum 6/29/07 -- Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Bork Trip And Fall Suit, Personal Injury, Slip and Fall

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

Before heading over to the courtroom, let's look at some preliminary issues:

Prior to undertaking litigation, we may want to get a bird's eye view of the whole thing. Beck/Herrmann at Drug and Device Law give the Anatomy of a Mass Tort, from a defendant's perspective;

Of course, you need the right lawyer to give you that bird's eye view, and how do you find one? Will the brand new ratings system by Avvo help you out? Scott Greenfield has a few thoughts after taking the system for a trial spin in Yippee! The Avvo Ratings Are Here!

It's not only important to have the right lawyer, but to make sure suit is timely. Cases against Vioxx maker Merck in Oregon had been barred by the statute of limitations. But as Ed Silverman at Pharmalot reports, that may be about to change as a bill passes the Senate ezxtending the time to file suit for Vioxx claims;

The claims that can be made in a wrongful death case vary from state to state. Edmund Scanlan of the Chicago Accident Law Blog tells us that Illinois Wrongful Death Act now allows jurors to award damages for "grief, sorrow, and mental suffering," thereby bringing them into the modern age. New York and five other states remain in the dark ages with respect to these damages;

But before we head to litigation, let's consider the ethical dilemma faced by Dr. Smak, when she knows she has missed a diagnosis and knows her patient has suffered harm;

OK, let's head head into the courthouse to see what we find:

In a unique suit that deserves watching, Anthony Sebok writes of a suit against Jeppesen Dataplan, Inc., a Boeing subsidiary that is a contractor to the CIA. The suit results from human rights violations arising out of the Bush policy of "extraordinary rendition" and torture. The column is: A Bid to Litigate the Legality of U.S.-Sponsored Torture in Federal Court: Will It Succeed? (via TortsProf). A copy of the Complaint is here.

In another unique suit, Law.com reports that a Miami sole practitioner, J.B. Harris, has brought a suit that Accuses Tobacco Firms of Targeting Black Consumers. For some other links on this subject from the skeptical side, head over to Walter Olson at Overlawyered;

Former SCOTUS nominee, and conservative leader Robert Bork, brought a trip and fall case against the Yale Club, claiming "in excess of $1,000,000," plus punitive damages, plus a couple things he couldn't get no matter how bad the alleged wrongdoing was. If he was the judge on his own case, I wonder what he would think about some of those claims?

And now, a group of lawyers who seem hell-bent on giving the rest of us a bad name, one plaintiff's side and three on the defense:

• From the plaintiff's side: A cop sues McDonalds because of the slimy stuff a couple of teens put in his sandwich. His biggest problem may be that he didn't even take a bite. (via California Injury Blog);
• From the defense side: One of the cardinal ethics rules of lawyers: Don't talk to the other party if they are represented by counsel. Except that, as Lisa Brennan reports from the New Jersey Law Journal (Law.com), someone apparently forgot that part of lawyering, and a judge was seething over such conduct in one of the Menu Foods pet food cases;
• Another good ethical rule to remember: Don't alter the documents!!! You wouldn't think I wouldn't have to write that out (via Day on Torts)
• Destroying evidence is also a pretty big no-no, as Greedy Trial Lawyer tells us in Hospital Risk Management Carried To Its Dishonest Extreme (via TortDeform)

Practice tips are always a good thing for this section, so we'll start with the basics: Defending the plaintiff's personal injury deposition by Ron Miller, at the Trial Lawyer Resource Center.

A more complex practice tip goes to Suing Uncle Sam Under the Federal Tort Claims Act, courtesy of the Georgia Injury Lawyer Blog;

This story comes out of Japan from The Asahi Shimbun, Patient died after "live" demo operation (via Kevin, M.D.)

The trial itself often exudes drama. This is not a play where all the lines are known in advance. So if you like dramatic courtroom scenes, though this isn't a personal injury case, go to Anne Reed's Deliberations and make sure you read to the end of Tears, Pain, And History In The James Seale Voir Dire;

Of course, just because you try a case to verdict doesn't mean the case is over, as those following the Vioxx trials know. Sometimes a jury will do a wacky thing, like award $50M in compensatory damages to someone who had a heart attack due to Vioxx. Or an expert witness will be less than candid in discussing his credentials. Ted Frank at Point of Law discusses these issues in Rulings in Barnett and Plunkett Vioxx cases;

Here is another verdict that seems destined for appeal, with The Injury Blog reporting: Mother of Shooting Victim Awarded $10 Million in Bronx Personal Injury Lawsuit;


With the week done, we pack our trial bag up and go home with some lighter weekend reading:

• Since the issue of live-blogging trials has been in the news, Kevin O'Keefe reports on a case study of live-blogging a trial that was a big success;
  
• A great round up of last week's legal blogs: Blawg's Blog blawgs Blawg Review #111. Now say that ten times fast.
• If you're interested in how insurance company bloggers think, you can crack open the Cavalcade of Risk: 1st Anniversary Edition;
• And last -- particularly important if you have small children -- Dr. Wes tells us that the 5-second rule has merit. Maybe I'm not such a bad parent after all.
  

Enjoy the weekend.

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

Labels: Personal Injury Law Round-Up

Former Supreme Court nominee Robert Bork has sued the Yale Club for an amount "in excess of $1,000,000," plus punitive damages, as a result of a trip and fall accident on June 6, 2006. The Complaint is here via the WSJ. The accident happened while he was climbing to the dais for a speech, and there were no steps or handrail for the 79-year old Bork to hold on to.

The main injury he claims to have suffered were a hematoma in the leg that required surgery and months of rehabilitation. The New York Times notes that he proceeded to deliver the speech after he had fallen.

My thoughts on the Complaint:

1. This is a routine New York personal injury case. There is nothing particularly exceptional about it from the Complaint other than the plaintiff, a noted conservative jurist who has been part of the American Enterprise Institute, which engages in tort "reform" activities.
2. Since no hospitalization is mentioned, I assume that the surgery for the hematoma was out-patient and may have been a simple drainage of some kind. Perhaps the med-bloggers who visit here can offer up a bit more on what kind of surgery was likely;
3. The Complaint doesn't even come close to explaining why punitive damages would be warranted in such a routine negligence matter. My gut reaction is that it is frivolous.
   
4. The Complaint asked for attorneys fees. Why? You can't get them in New York for a standard personal injury claim.
5. The Complaint asks for pre-judgment interest. Why? You can't get that here either. Sad, but true. Interest runs from the date of the judgment not from the date of the accident, thereby giving insurance companies a reason to delay litigation as long as possible. Perhaps Judge Bork wants to come with me the next time I lobby the legislature to amend the law to include pre-judgment interest?
6. The Complaint asks for an amount "in excess of $1,000,000" (not merely $1M, but in excess of). Where are the damages for making such a huge demand?
   

Ted Frank at Overlawyered has already jumped on this case and called it "embarrassingly silly," noting the defenses of assumption of risk and a condition that was "open and obvious." He adds in the comments, interestingly, that "it's conceivable that there might be an [Americans with Disabilities Act] claim of some sort."

A quote from Bork, from Bloomberg news:

In a 1995 opinion piece published in the Washington Times, Bork and Theodore Olson, who later became a top Justice Department official, criticized what they called the ``expensive, capricious and unpredictable'' civil justice system in the U.S.

``Today's merchant enters the marketplace with trepidation -- anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates,'' they wrote.

I suspect that the folks at TortDeform will now add Bork to their roster of "Do as I say, not as I do" hypocrites of tort reform that suddenly changed their minds when it was no longer someone else's injuries at stake.

Finally, the Complaint is signed by Bork's counsel Randy Mastro, of Gibson Dunn & Crutcher. Mastro's bio asserts that he "is a litigation partner who handles both civil and white collar criminal cases." Also listed is Brian Lutz, who does "securities litigation, corporate control contests, antitrust matters (both civil and criminal), insurance/reinsurance coverage disputes, and white collar defense." This is a white shoe firm with a dozen offices around the world. They apparently have lots of BigLaw experience. There is no personal injury law experience noted for either.

The case is Bork v. Yale Club, 07-cv-4826, U.S. District Court, Southern District of New York (Manhattan)

Addendum:

• More thoughts on choosing the right counsel from Carolyn Elefant: What Judge Bork's Choice of PI Counsel Says About Lawyer Rankings like Avvo and Marketing;
• Robert Bork, Jr. defends his father's suit at Overlawyered;
• This post now appears at Volokh, where I added the following comments in response to another:

  This was not a standard complaint. If it were, his counsel would have explicitly alleged that the Yale Club owned, operated and controlled the premises. (It can still be inferred, but it was poor drafting.)
  
  The complaint is filled with specifics about the incident (usually not done locally, it is usually very general), also meaning it is not boilerplate.
  
  They make multiple, unrelated , allegations in a single paragraph, making it impossible to admit or deny any of the facts in the answer (thereby destroying any benefit to putting in specifics) . And while not fatal, it is against the rules.
  
  It is certainly not boilerplate to allege punitive damages in a trip and fall case unless there is something particularly outrageous. And it isn't a separate cause of action for punitives as they have alleged.
  
  And it is certainly not boilerplate to ask for things such as pre-judgment interest and attorneys' fees in such an action, when they are clearly not allowed.
  
  Claiming something is boilerplate only works for a rookie lawyer who didn't know better. Not for a former SCOTUS nominee with counsel from a BigLaw firm. (What would Bork say if he were on the bench and presented with such an excuse?)
  
  The reality is that there are thousands of solo and small firm practitioners who know this stuff cold, and Bork picked counsel with a lack of experience. That's what I glean from the Complaint, and is the most likely reason frivolous claims appear.

A sampling of some other commentary:

• Tort reformer Robert Bork sues Yale Club (Think Progress)
  
• Bork: Tort Reform for Thee But Not for Me (Booman Tribune)
• Milking It (The Moderate Voice)
• Leading Conservative Activist Seeks Punitive Damages (American Constitution Society)
• The Urgent Need for Tort Reform (Grasping Reality With Both Hands)
• Lawsuit of the Day: Robert Bork Hearts Plaintiffs? (Above The Law)
• Bork and the Barbary Pirates (Volokh - David Bernstein)
• The Fall of Bork (Reason Magazine - Brian Doherty)
• Tort Reform Bork sues for 1 million dollars (Crooks and Liars)
• Is Bork's Trip and Fall a Misstep? (New York Times Opinionater - Tobin Harshaw)
• Groucho & Javert (Slacktivist)
• Legal Funnies (Alas, A Blog)
• Advocate for tort reform sues for over $1M (Bring it on!)
• Robert Bork, tort-reform advocate, files slip-and-fall lawsuit (The Carpetbagger Report)
• When Tort Reformers Slip And Fall (Mother Jones)
  

Addendum 6/11/07 - I have a new post on the subject: What Should Bork Do Now?

Addendum 6/13/07 - I searched TownHall, a site with dozens of conservative commentators, to add additional viewpoints to this collection, but could find no reference whatsoever to the lawsuit.

Addendum 6/14/07 - New comments after New York Times weighs in with editorial: Bork's New York Personal Injury Case and The New York Times

Addendum 6/29/07 -- Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages

Addendum 7/17/07 -- Bork Attorney Randy Mastro is picked by Rudy Giuliani to be on Justice Advisory Committee


(Eric Turkewitz is a personal injury attorney in New York)

Labels: Bork Trip And Fall Suit, Frivolous Claims, Interesting Cases in the News, Personal Injury, Slip and Fall

In the comments of this post, MD/PhD Student raised many different medical-legal issues. My response grew so long, I decided to give it its own post:

...I see med-mal as a reason why medical costs are rapidly increasing. Malpractice insurance premiums, while obscene, are not the biggest factor in this increase. Instead, from what I have seen and been told by physicians, unnecessary (and extremely expensive) tests are routinely ordered to cover the one-in-a-million possibility of disease so that doctors can more successfully defend themselves if sued.

As a general practice, premiums go up when the stock market goes down and vice versa. Insurance companies make their money there. Try this link: Medical Malpractice Insurers Price-Gouged Doctors During This Decade as well as the links at the end of that post.

One reason that doctors feel the need to practice CYA medicine (and the reason that many bloggers have speculated Flea settled the case) is the perception that juries are easily swayed by charismatic lawyers and sympathetic patients and are reputed to ignore science and medicine when making decisions.

Research actually says otherwise, that jurors give doctors the benefit of the doubt more often than other defendants: Juries and Doctors: Not What You Think and Doctors and Juries.

While tort reform is an idea I strongly support, might there not be another way to mitigate frivolous lawsuits and unconscionably large awards (and in so doing, reduce the cost of malpractice insurance and CYA medicine)?

Two more links for you:
The Myth of Frivolous Litigation and How New York Caps Personal Injury Damages

What would your opinion be on have something like a "medical court" where grievances can be brought to be heard by a panel of judges and physicians who are more likely to be swayed by actual facts and true damages than emotional appeals and theatrics?

See: Health Court Legislation Again Introduced To Congress

Labels: FAQ-Medical Malpractice

(Having discussed the trial of medical blogger Flea, I turn today to coverage by the Boston Globe)

Was it just me, I wondered? Flea's name was plastered on the front page of the Boston Globe and I thought, "Is that really necessary?"

Leaving aside the issue of whether this pediatrician brought undue attention on himself due to his blog entries about his medical malpractice trial, we have to turn to the conduct of the Globe and ask some questions:

Was the outing of a doctor's pseudonymous blog in a courtroom a human interest story? Yes.

Was it interesting enough to write about? Yes.

Was his name critical to the story? Well, no.

Did this deserve to be a front-page story, above the fold (without his name)? Maybe. Human interest stories do appear there, but when they sit atop a human tragedy, in this case the death of a 12-year-old, there really isn't much of the "fun" quotient usually associated with such prominent placement. Page 10 of the local news, maybe.

When I saw the article appear I was surprised both by its extraordiary placement on the front page, and more significantly, the outing of the doctor's actual name by the Globe in such a spot. So too with the names of the patient and his father. While the episode was surely interesting, these informational nuggets added little to the story. They were, however, guaranteed to bring heartache and pain for those named.

This is not a discussion of whether the Globe could do this -- the First Amendment clearly protects them -- but whether they should do it in the manner they did. It goes to morality, not to law.

After deciding to use the names, and deciding to blast the story with the acerbic blog comments across the front page, the writer then engages in a self-fulfilling prophecy:

The case is a startling illustration of how blogging, already implicated in destroying friendships and ruining job prospects, could interfere in other important arenas.

That's true. It can interfere in important arenas. So why did they do it? Is it the policy of the Globe to inflict pain on people simply because they can? Was there some kind of sick gratification in seeing a young doctor get his comeuppance for perceived arrogance in his writings, and damn the consequences? While he was outed in the courtroom, it was an outing no one else knew of beyond those limited confines. Until, that is, the Globe thought it would be fun to blast it to the rest of the world.

I asked the plaintiff's attorney, Elizabeth Mulvey, about the Globe article, which appeared over two weeks after the trial was over. She said:

I asked the Globe not to use either party's name, as I felt both sides had been through enough and that it really didn't add anything to the story, and also that I was not the original source of the story, which was leaked to the Globe by someone not involved with the case. Although I would have preferred not to comment at all, I felt that it was necessary to correct some misinformation supplied by this source. I really feel that it is regrettable that, because of this source's indiscretion, both my clients and the doctor were subjected to unnecessary pain.

The result of the Globe's decision to use names is that this story will repeatedly pop up when new patients Google this doctor years from now, since numerous blogs have now reprinted Flea's name while quoting the article. That seems grossly unfair given that it results from his prominence as a medical blogger rather than any wrongdoing as a doctor.

But those bloggers that have already published his name, simply by quoting directly from the article, can un-do some of the damage they may have inadvertantly done if, upon reflection, they feel an injustice has been done. They can go back to their blog postings and edit out his name -- using instead his initials, first name, or pseudonym -- so that they are not unintended accomplices to the Globe's lack of good judgment. The question to ask: Should Flea be permanently branded, in his real-life profession, because of this? Bloggers may not only wish to make that modest edit, but to explain to their readers what they have done and why, so that others might follow.

Will that scrub the Internet of such references? Of course not. But it might cut down on what could be page, after page, after page of such results. No matter what some might think of the comments Flea made, the punishment that the Globe sought to inflict upon him seems vastly disproportional to any sins he committed with his blog.

The Globe created a very high profile problem. The blogosphere magnified it. Can any of that damage be undone? It seems like an experiment worth trying.

Labels: Blogging, Flea Medical Malpractice Case

(In Part 1, I discussed how a plaintiff's attorney discovered the identity of medical blogger Flea, and used it during his medical malpractice trial.)

When this trial ended in settlement many people wanted to know: Was the existence of the blog and the Boston Globe's description of a "Perry Mason" moment a factor in the settlement?

The answer I come up with, after discussing limited facets of the case with plaintiff's attorney Elizabeth Mulvey, is that while I doubt the blog or the Perry Mason moment made a big difference, the reality is that only the jurors would ever know. And they didn't hear all the evidence.

While Mulvey wouldn't discuss the facts of the case -- the agreement is confidential and I doubt either the parents of the boy that died or Flea want to talk about it -- I did learn that there had been five witnesses before the settlement, including Flea and two experts.

The trial started with Flea on the stand. It is a common tactic for the defendant to be called first by the plaintiff's attorney. There was then a break in his testimony after Mulvey had done her direct exam so that the experts could testify, with Flea to return later. (This is not unusual, as scheduling expert witnesses is always a problem unless they are retired.) The blog outing occurred on the fifth day of trial. In addition to more testimony from Flea, there were still likely to be a couple more witnesses, with the defense team having another expert ready that could have testified if the trial continued.

Thus, even if a synopsis of the facts were available by someone, they would likely have been disputed. That's why we have juries to look in the eyes of the witnesses and consider all of the available evidence placed before them. It is difficult for a summary by a newspaper or blogger to fully capture two weeks of trial for an in-depth analysis.

(As to the timing of the settlement, it is not at all unusual to have cases settle mid-trial, after the attorneys can evaluate the evidence. In fact, I've had four medical malpractice cases settle while the jury was deliberating on the verdict.)

And about that "Perry Mason moment?" Mulvey told me that while it was certainly interesting, it hardly amounted to the melodramatic rendering of it by the Boston Globe. Trial attorneys, you see, routinely confront witnesses with prior inconsistent statements. Sometimes it means something to jurors. And other times they shrug it off.

Just a few weeks ago Anne Reed wrote on this very subject at Deliberations, in The Overrated Prior Inconsistent Statement. From that posting, which has many links to original sources:

But are jurors really going to throw out a witness's testimony because of one inconsistency, or even one lie? Think about it. Do you have a co-worker who has lied to you but with whom you still manage to work well? A family member who has lied to you whom you still love? Perhaps you yourself might have told a lie once, long ago? For most of us, the idea of falsus in uno is too simple to be useful in real life. [The latin phrase means that someone who lies about one thing is likely to lie about another, and a jury is therefore permitted to disregard all the testimony of the witness -- ET]

Jurors are often forgiving and practical when a witness lies. That's the conclusion of an empirical study by Jones Day lawyer Richard Stuhan, and trial consultants Melissa Gomez and Daniel Wolfe of TrialGraphix, Inc, collecting data from over 800 mock jurors in "over a dozen states." Stuhan, Gomez, and Wolfe authored an extensive post about their study (and its limitations) at the Drug and Device Law blog, and plan to publish it in full in the April 2007 edition of DRI's For the Defense magazine.

And so, while the confrontation with the blog may have been presented in the Boston Globe as exceptional, it appears that the only exceptional thing was where the prior statement came from.

This article was blasted across the front page a full two weeks after the trial was over. So the guy who wrote it, and the editors that placed it above the fold on the first page, weren't even there.

Tomorrow, my final bit on the trial of Flea. But it really isn't about him. It's about the Boston Globe.

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

(This is a follow-up to Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court. regarding a pediatrician that was live-blogging his own trial. I first discussed the legal ramifications of doing so on May 8, in Medical Malpractice Trial Starting For Med-Blogger)

Were you wondering how Flea was exposed in court and how his blog would be used? So was I. Curiosity got the better of me, since the details weren't in the Boston Globe story from last week.

So I called plaintiff's counsel, Elizabeth Mulvey, of Crowe & Mulvey to find out. She told me she was tipped off to his blog by another attorney. How did the other attorney know? Because Flea had blogged about a subject that Mulvey had spoken on some time back and the other attorney realized that she had the case. Flea had unwittingly given out the identifying information when he discussed her talk. On this cached version of Flea's site, you can see his comments discussing Mulvey on April 28th.

With that information in hand Mulvey scoured his blog for helpful information, much the way any attorney would review writings produced by a witness for the other side. She found a post where Flea referred to Nelson's Pediatrics as the bible of pediatrics. (I have the 11th ed. from 1979 on my own bookshelf.) So she asked him on the witness stand if he considered Nelson's the bible for pediatrics. He said no. Lawyers call that a "prior inconsistent statement" that allows us to confront the witness with the other statement. That meant asking him if he was Flea and confronting him with the blog posting.

This testimony came out during the direct exam of Flea by Mulvey (she called him as her own witness making it "direct" even though he was adverse and it more realistically resembles cross-examination). She did not use the comments about the meetings with jury consultants that I discussed back on May 8th, but then, she still had another opportunity to examine him when his own attorneys were done. The tips he received on how to conduct himself on the witness stand could still have come up.

She never got to that second part of her exam, however, because the case settled. The details are confidential.

Mulvey considered this just another type of prior inconsistent statement. The most frequent use is when deposition testimony deviates from trial testimony. It could also come out if a witness has published an article where the contents of the article differ from the testimony. That it came out on a blog was novel, but the concept was not. (William Childs at TortsProf hit this point on May 31st.)

Tomorrow, more details concerning the trial...

Addendum 6/5/07 - Part 2 now available at this link.

Addendum 6/6/07 -- Flea, The Boston Globe and Morality in Journalism and Blogging

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice

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

Before heading over to the courtroom, we look in on risky conduct that leads to lawsuits, check to see that the courthouse doors are open, and that we've selected the right attorney for the job:

The lawyer flying commercial flights with a dangerous strain of tuberculosis landed on the front page of the New York Times today. But Daniel Solove at Concurring Opinions had already taken a crack at the subject with Can the TB Patient Be Sued? Professor Bainbridge also opines on it in Flying TB Infected Lawyer's Liabilities. The carrier is Atlanta attorney Andrew Speaker of The Speaker Law Firm, but don't bother going to his site, as it has been taken down. Incredibly, he is the son-in-law of a microbiologist. Did he also give his new son-in-law some fatherly advice? Which leads to the next question of who might be sued if someone else contracted the disease...

Last week's Round-Up heavily covered the breaking story of diabetes drug Avandia, and this week the responses: Ed Silverman at Pharmalot on the drop (to zero) of new prescriptions for the drug; The WSJ jumps all over the issue claiming NEJM editors gave short shrift to the study's flaws; David Phillips at 10Q Detective points an accusatory finger at the press in Who Benefits from Glaxo's Drug Disaster?; Glaxo defends itself in the British journal Lancet (WSJ Health Blog) and Derek Lowe from In The Pipeline does an analysis in The Avandia Wars Continue. (several via Kevin, M.D.) Mark at A Georgia Lawyer discusses the FDA smear campaign against the Avandia critic;

One question that comes up prior to starting a suit is the extent of insurance coverage (because you can't get blood from a stone), but in this accident, I'm betting it is one issue that the parties won't worry about (via South Carolina Trial Law Blog);

Andrew Bluestone from New York Attorney Malpractice Blog brings us a story that will no doubt result in lawsuits against many: A man had his conviction overturned, and then spent the next 17 years in jail, while his attorney, the prosecutor and the courts all dropped the ball;

Still on the subject of attorneys and clients, this one is too good not to include even though it doesn't deal with personal injury law: From Scott Greenfield's Simple Justice, The Wrong Things Potential Clients Say To Criminal Defense Lawyers And Why;

Moving on to the start of litigation:

Here is a litigant that apparently wishes they never started suit...Jewish Hospital in Louisville, Kentucky brought a retaliatory lawsuit against two attorneys that had alleged unclean conditions at the hospital in numerous lawsuits, and then saw most of them dismissed. So the hospital turned around and sued, and was more than happy to talk about it to the press. Perhaps what they didn't expect, for some bizarre reason, is that the attorneys who had been sued would actually defend themselves and publicly give the basis of their suit...and it wasn't pretty since it dealt with unclean conditions. Now what? The hospital, after starting the suit and starting the comments in the press, turns around and asks the court for a gag order. Michael Stevens at the Kentucky Law Review has all the details...and then...late breaking news, the Hospital asks the court to gag their gag order. I wonder how much they billed for all that.

William Childs at TortsProf writes of an asbestos case where the judge rejected a pre-packaged bankruptcy;

Baseball fans have no doubt heard of St. Louis Cardinal pitcher Josh Hancock being killed in a car accident April 29 when he slammed into a tow truck. Published reports said he was drunk, speeding and talking on his cell phone. His father sued the bar on a dram shop theory, as well as the tow truck operator for not having appropriate warning devices, as well as the driver of the car needing aid. A sober legal analysis of the claims comes from Howard Wasserman at the Sports Law Blog (via TortsProf) and a snarky analysis from David Nieporent at Overlawyered;

As we get ready for trial, we always wonder about juries and jury selection. And so, we turn once again to Anne Reed at Deliberations for more insight and tips in: "Do Juries Deliberate?" A Survey In Seattle;

Now in the middle of trial, we turn to Flea, the pseudonymous med-blogger that was outed during his cross-examination. In Round-Up #11 back on May 11th, I wrote this:

In part of an extraordinary medical-legal series, pediatrician (and blogger) Flea repeatedly let loose with his observations and emotions regarding his own medical malpractice trial: as defendant in a wrongful death case. Jury selection is now complete, and he reflected on the jurors chosen and the traumatized parents. Except that Flea has now taken down some, though not all, of those the posts on the subject. Why has he chosen some, but not all? With the death of a child at stake, it is clear Flea's trial is not just about money...Will the nail-biting drama end in verdict or sigh-producing settlement? I'm guessing we haven't heard the last of this.

From settlement to verdict: In New Jersey, an Accutane trial has resulted in a $2.6M award for inflammatory bowel disease, based on a failure to warn of the disease, according to Tom Lamb at his Drug Injury Watch;

And finally a little weekend reading:

• From Kevin, M.D.: The best anti-smoking ad ever created.
• From Sheila Scheuerman at TortsProf, top 10 downloads for papers posted on the Social Science Research Network for the last three months in the Journal of Torts & Products Liability Law.
• Blawg Review #110, by Norman Fernandez at the Biker Law Blog was all about Memorial Day and our veterans. Since it was updated during the week, it's worth going back even if you've seen it once.
  

Enjoy the weekend.

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

Labels: Personal Injury Law Round-Up

I was updating the blog postings on Flea's outing, and was stunned at how many there are...and they continue to pour in and are now expanding beyond the legal and medical blogospheres.

But this particular posting is important for Flea, if he or his friends are reading this: Blog Scandal Hits Home

When I got home I found an email from a friend requesting an urgent referral to a new pediatrician. I emailed back and said, oh, so-and-so loves her pediatrician, ask her. My friend then replied, yeah, so-and-so has the SAME one and is also looking for a new one - see sordid story on front page of Boston Globe. So I read the story, and there was that blogger scandal again. I couldn't believe it - a Law and Order type of story in my friends' lives...

...Judging from my friends' responses, I imagine his entire practice scurrying to jump ship. It's scary to think that someone who had some good qualities as a clinician, judging from what my friends told me, and from some stuff he has written for his practice's website, might have his career ruined by poor judgment (or perhaps hubris? or a false sense of security behind a pseudonym?) about where and how to vent his frustrations / indignation / contempt / stress.

With the Globe's decision to blast Flea's name on the front page, Flea has, as I see it, two choices as his practice that will no doubt undergo a substantial drop-off in the coming months:

1. Crawl under a rock and hide;
2. Find a good crisis manager to help go public by saying:

• It was really stupid to blog this stuff in real time;
• I should not have let my distress at being sued get the better of me in my writings;
  
• This was a tragic case that not only devastated the parents of the child, but has caused me endless sleepless nights due to the death of a patient. But it settled due to my blogging and not my medical conduct;
• Do not say anything that, in any way, requires a response from the parents;
• Read Kevin, M.D.'s post on the importantance of your Google reputation, and start a plan to take back your name so that this story doesn't pop up on the first page of Google three years from now when new patients pop your name into the search box.
  

Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice