You may have seen the screaming New York headlines: Doctors hit with 14% increase in medical malpractice rates! Doctors in high risk specialties paying 6-figure insurance premiums! Insurance reserves so low carriers may become insolvent! Blame the lawyers! came the cry from the doctor's, for surely it must be due to medical malpractice cases. A little protectionism called tort "reform" would go a long way to curing the problem. Right?

Ahh, but truth is another matter. Was it really medical malpractice lawsuits that lead to this increase? Let's take a candid look at some actual facts:

• New York's Superintendent of Insurance, who sets the amount of rate increases, says this jump comes "After years of artificially low rate increases" and that "the rate increase comes after years of setting rates below what was needed." He did it now in order to avert a possible "irreversible crisis." (Did doctors previously complain that their rates were too low?) So, the Superintendent says, New York must play catch-up with a big rate hike;
• The State of New York had previously "appropriated" $691M of medical malpractice insurance reserves to balance the state budget from the Medical Malpractice Insurance Association. This association had been established by the state to satisfy any deficiencies attributable to the premium levels for malpractice policies, and for reinsurance. That surplus would have been used (if not taken for other purposes) for maintaining the solvency of New York's three medical malpractice insurance carriers.

OK, so the "crisis" was caused by lousy state policy under the George Pataki administration, by setting artificially low rates while also swiping the rainy day fund. Surely, however, the problem was also caused in part by increasing medical malpractice cases and payouts, right?

Well, no. In fact a study has shown that the number of medical malpractice cases in New York has remained static, and the amount of payouts has kept pace with other health care costs. When premiums go up, but the payouts are flat, you know you have a problem. But not one created by those who were injured by negligence.

And have high medical malpractice insurance rates in downstate counties chased away physicians, as the fear-mongers suggest? Not even close. It seems the number of doctor in New York jumped by 16% from 1995 to 2003, an increase greater than our growth in population. And the New York Times reported just last week in Few Young Doctors Step in as Upstate Population Ages, that while there was 6 percent growth in the number of doctors from 2001 to 2005, for a total of about 77,000 doctors, the way they are spread throughout the state is wildly uneven. The Times wrote:

While newly licensed doctors flock to New York City, Long Island and Westchester County, where there is already a glut, far fewer choose to practice in the vast upstate region.

As the article makes clear, and as New Yorkers know, upstate has suffered economic woes in past years, much of which was related to the loss of industry. This isn't a doctor issue. People move to the big city for a multitude of reasons, just as they always have.

Perhaps the problem is an onslaught of frivolous litigation? Nope, not that either, according to a report in the New England Journal of Medicine that disproves the myth of frivolous malpractice litigation.

Here's a suggestion for the new Eliot Spitzer administration: Government clearly created this insurance problem, as your Superintendent admits. You therefore need insurance reform. So don't try to fix it on the backs of the most badly injured of New Yorkers with some type of "tort reform" because that won't fix a government created problem. Even insurance company insiders will tell you that "tort reform" will not bring on lower rates.

And while the governor's brother is a neurosurgeon in a downstate county, and therefore probably both at the top end of malpractice rates along with his colleagues and in a good position to lobby his brother, it's hard to evaluate the significance of such expenses without also knowing what their income is. Complaining about a low-six figure premium while taking home a seven-figure income for a high-risk specialty will not bring too much sympathy.

Now here is a reform that the doctor's may want to entertain: With up to 98,000 people per year dying from medical errors, and with 68% of New York's medical malpractice payouts coming from just 7% of the doctors, maybe, just maybe, a little more gazing in the mirror might be in order? Perhaps the medical lobby should inform their physician-constituents about the facts, instead of simply handing them propaganda to put in their waiting rooms?

So what do I expect from all this? Not insurance reform, for that would be the obvious thing. And not greater enforcement from the State Health Department on recurrently problematic doctors. It hasn't happened yet, so why expect it now? No, I believe many will use this governmentally created mess as an excuse to strip rights away from those most severely injured by malpractice. You can almost hear the screams for caps (even though we already have them) and health courts coming from the protectionists who want to shield the negligent from taking responsibility for their mistakes.

While New York's physicians already enjoy wide immunity from litigation payouts due to the horrible economics of taking medical malpractice cases, except in the most disastrous of matters, I fully expect their lobbyists will want more, more, more. And the facts be damned.
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Addendum, after Eliot Spitzer resigns: Eliot's Mess: The Ramifications for Medical Malpractice "Reform" in New York

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

Labels: Eliot Spitzer, Insurance Industry, Medical Malpractice, tort reform

I previously discussed how the iPhone might present an ethical problem for attorneys since the phone must be surrendered to Apple for servicing of the battery. This is a problem for confidential information that might be stored on it if the battery dies without giving the user the chance to purge sensitive information. This makes the phone analogous to a laptop, but one that can't be serviced by your IT department or trusted friend.

Some related follow-up:

• A lawsuit has been filed against Apple for failing to disclose the battery issue. Comments as to whether the case might be meritorious can be found here; and
• New York's Consumer Protection Board gave Apple a bit of a bruise today with a call for the company to amend its repair policy on the new iPhone. (Capitol Confidential)

(Full disclosure: I am a longtime Mac user and Apple shareholder)

File this under attorney ethics.

Labels: Attorney Ethics

A child suffered serious personal injuries when bitten on the face by a dog, and brought this New York action. But the plaintiff's attempt at summary judgment was rejected. Why?

The old saying in the title comes from the concept of notice. As in, the owner of a dog that bites someone must have notice of a dog's vicious propensities in order to make that bite actionable.

In Earl v. Piowaty decided last week by New York's Appellate Division (3rd Dept.), the court returned to the time-honored principle that "the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities."

But, when the only evidence of a prior "viciousness" was a prior "nip" that the child described as "so minor that it did not break the skin or hurt me," then summary judgment would not be granted. Normal canine behavior does not qualify.

Woof.

Labels: FAQ-Personal Injury, Personal Injury

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

Before heading to the trials, let's spend some time focusing on medical malpractice and insurance:

But before heading into that med mal world, we turn to:
The best post of the week: Bill Childs, our favorite TortsProf, points us to an invaluable resource, saying, "It's weekly, it's concise but still funny, and it consistently links to something I haven't noticed before;" Walter Olson had previously discussed this same resource as "invariably worth reading," which is to say, it seems like a site worth plugging to others;

Welcome back (you did check it out, right?) and now on to the promised medical malpractice news:

Tresa Baldas at the National Law Journal writes of the Movement Building to Abolish 'Locality Rules' in Med-Mal Litigation;

Michael Townes Watson discusses how North Carolina is working to strip the right to jury trials from the most badly hurt victims (at TortDeform);

And more on trial practice rules: I asked back on May 18th: Is Medical Testimony Getting A New Standard? (via John Day). The subject is a change in standards from "reasonable degree of medical certainty" to "more likely than not." A debate has now opened up, according to Walter Olson at Point of Law, on the subject, starting with Beck/Herrmann here, with Peter Norbert responding at Blog 702 (Daubert on the Web); and then a rebuttal by BeckHerrmann here. We surely have not heard the last on the subject of the "proper" level of medical certainty an expert physician must have for an opinion to be admissible.

Dainius A. Drukteinis (MD and JD) discusses the Michigan Law Review study that shows medical malpractice juries favor doctors disproportionately to other types of lawsuits, contrary to the accepted "wisdom" that juries favor plaintiffs out of sympathy (at NY Emergency Medicine);

At Concurring Opinions, Melissa Waters opines on the sensitive issues of unauthorized pelvic exams while in the hospital;

And still with malpractice, Orac (a surgeon) at Respectful Insolence first discusses a liposuction death at the hands of a homeopath, and then delves further into "legalized quackery" with the broad range of authority given to Arizona homeopaths;

Newsday also opines on malpractice: Don't blame victims for problems with malpractice (via TortDeform)

And on the non-malpractice front, a federal judge has thrown out as unconstitutional many of New York's new attorney advertising rules. The State will appeal.

Now on to the litigation:

If a woman falls and shatters an ankle while trying to climb up on to a bar and dance, is the bar owner responsible? Walter Olson presents that case at Overlawyered. But if the woman was intoxicated and if the bar employees were cajoling her to do so, is the answer still as one-sided as headlines suggest?

A New Jersey man has sued Starbucks when the lip of the cup lid came off, scalding his hand with 3rd degree burns;

On to drugs: There is a Vioxx Product Liablity Litigation Update Report by Tom Lamb at his Drug Injury Watch that is chock full of information on the state of Vioxx trials if you want to play catch-up. And this interesting bit: Pharmalot reports that two governors have been subpoenaed to testify at a Vioxx trials. Find out why at the link;

In New York, the fiancee of Sean Bell, shot more than 50 times by the NYPD, has brought suit (via Quizlaw);

Bill Childs brings us the story of an Iraq war veteran who committed suicide after coming home with Post-Traumatic Stress Disorder, and his family has now sued the government. Colorado Confidential picks up the story on how PTSD could do that;

From the land of verdicts, Bill (who acts as amusement park guru in his spare time) also brings us a bizarrely bifurcated trial where damages were tried before liability;

Returning to malpractice, a New York appellate court tossed out a case against an obstetrician that was late for a delivery (via New York Law Update). One of the weird parts about this is that the law firm apparently representing the plaintiff-respondent is a well-known local medical malpractice defense firm, Kopf, Nardelli and Dopf;

The LaBovick Injury Law Blog brings us a $40M verdict out of Florida on a Ford truck accident;

Also from Ford and Florida, a $6M verdict in a rollover accident (ABAJournal)

And yet another verdict from Florida, a $21M verdict in a wrongful birth case for failing to detect a genetic defect (from EyeOnDNA);

Robert Ambrogi reports on a $101M verdict for wrongful conviction in Boston;

And in case you missed it, Notre Dame head football coach Charlie Weis was sacked for a loss in the medical malpractice trial he brought against the physicians who did his gastric by-pass surgery. Kevin, M.D. follows up by letting us know that Weis wasn't all that pleased with how it turned out;

From the land of post-verdicts, a New York man shot by the police has his multi-million dollar award thrown out by an appellate court. For the second time. The decision is here: Barnes v. City of New York;

More the issue of the taxability of mental anguish awards (from John Day courtesy of Sylvius von Saucken at The Garretson Firm) that I previously discussed here: Are Emotional Injury Recoveries Tax Exempt? An Appeals Court Dumps Its Own Opinion and about 3/4 the way through Personal Injury Law Round-Up #20;

And from the land of the Supreme Court, Ted Frank does a review on behalf of the business-oriented American Enterprise Institute on the term just concluded: The Roberts Court and Liability Reform.

And finally for the weekend:

• Blawgletter goes for funny at Blawg Review #118;
• New York State Supreme Court Justice Emily Jane Goodman, in Shackled to the Courthouse, blogs on the loneliness of being a judge in New York (at Judicial Reports);
  
• Monkey Girl shows there's more than one way to do a round-up with Change of Shift;
• Grunt Doc tells us how Dick Cheney was almost on the hook for medical malpractice;
• Scott Greenfield at Simple Justice with a terrific essay for small firm and solo practitioners: Why We Don't Belong in Biglaw. And yes, it's for BigLaw people too, though they probably don't read Scott's blog or mine. Best line: "It takes years to learn to wear a pink shirt properly."
  

Enjoy the weekend.


(Eric Turkewitz is personal injury attorney in New York)

Labels: Personal Injury Law Round-Up

Just one day after a federal judge ruled large parts of New York's new attorney advertising rules unconstitutional, the State of New York has said it will appeal. Given what I thought were some particularly empty arguments in the briefs by the State, as opposed to those raised by Public Citizen on behalf of itself and an upstate law firm, I find this surprising.

In a squib in today's New York Law Journal:

The state will appeal a federal judge's ruling that some new attorney advertising rules violate lawyers' free speech rights. Michael Colodner, counsel to Chief Administrative Judge Ann T. Pfau, said yesterday that court administrators have asked Attorney General Andrew Cuomo to appeal Northern District Judge Frederick J. Scullin's decision in Alexander & Catalano v. Cahill, 07 Civ. 117 (NYLJ, July 24). Mr. Colodner said Mr. Cuomo's office will also be asked to move for a stay of a permanent injunction Judge Scullin issued prohibiting the enforcement of portions of the advertising rules he found unconstitutional. The rules, unveiled by the four presiding Appellate Division justices last June and which took effect Feb. 1, are designed to dignify advertisements by lawyers and to prohibit them from promising to deliver monetarily for clients. Judge Scullin ruled the state had failed to show that barring more flamboyant advertising, such as that done by attorneys who dub themselves 'heavy hitters,' would protect the public from misleading attorney promotions. He also observed that less restrictive steps like adding disclaimers at the end of ads might be just as effective as blanket prohibitions of certain kinds of content in the advertisements. New York State Bar Association President Kathryn Grant Madigan said in a statement yesterday that the group agrees with Judge Scullin and wants to work with the appellate divisions to 'develop rules that strike an appropriate balance within the constitutional framework.'

See also:

Nicole Black at Sui Generis has a huge number of blog postings on this subject going back to June 15, 2006, which can be found at this link: NY Lawyer Advertising Rules.

Greg Beck, the lead lawyer at at Public Citizen that handled the matter, wrote this up the other day, at this link: New York's Attorney Advertising Rules Held Unconstitutional

Some of my own blog postings on the subject follow, for those that want more:

• New Attorney Advertising Rules (Is This Blog an Advertisement?) (1/5/07)
• Is My Family Photograph An Ethical Violation in New York? (1/24/07)
• New York's New Attorney Ad Rules and First Amendment Issues (1/27/07)
• New York Responds to Lawsuit Challenging New Attorney Advertising Rules -- By Banning Humor (1/28/07)
• New York Attorney Advertising Rules - Update (5/29/07)
  

Addendum 7/27/07 - Upset of Few Attorney Advertising Rules Could Signal Return of 'Heavy Hitters' (NY Law Journal via Law.com)


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

Labels: Attorney Ethics, First Amendment

That headline might not sound like news. Unless, of course, that deli was one block away from the massive steam pipe explosion last week in New York, and the business has been closed since.

Sitting at the corner of Park and 41st, the street and sidewalks in front of said deli were closed this morning, but open at lunchtime. The workers seemed happy to be back. And this patron was happy to spend a few bucks for a sandwich from them, which is about all they had in the usually bustling place.

I took the picture at the right about an hour ago, from just outside the deli, looking east down 41st street toward the intersection with Lexington where the explosion took place. While Con Ed trucks still fill both the shrinking frozen zone and the surrounding streets, with jackhammering and new piping being laid, bit by bit the area is becoming more accessible.

Labels: Con Ed Explosion

An interesting question was raised yesterday by Sen. Arlen Specter, who chaired the confirmation hearings of Chief Justice Roberts and Justice Alito. Yesterday he called for a probe into decisions this past term that over ruled precedent.

The basis of the probe will be to see if Roberts and Alito have "lived up" to their assurances that they would respect legal precedents.

Since the judges are, of course, lifetime appointees, and there is nothing that can be done about them short of impeachment and removal, then is stands to reason that the only possible outcome of any hearings -- other than seeking publicity, but politicians would never do that -- is to determine if they lied during their confirmation hearings. And if so, to proceed to impeachment, since that is the only remedy available.

The reasoned claim for the hearings, by the way, is not impeachment but to help with future confirmation and candidates who aren't candid. But that is a charade. If the Senate wanted better answers, they should ask better questions. Instead of posturing for the cameras as is all-too-often the case.

(hat tip, American Constitution Society Blog)


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

Labels: Judiciary

Charlie Weis has lost. The crew cut head coach of the Notre Dame football team had brought a medical malpractice case against the surgeons that had performed gastric bypass surgery on him, based on a failure to promptly diagnose and treat post-operative bleeding that had sent Weis into a coma.

The verdict was delivered today after two hours of jury deliberations, according to news accounts. The Wizard of Odds college football blog had been live-blogging the trial. This was the second trial, as the first had ended in mistrial when a juror fell ill and the defendant physicians ran to assist in full view of the rest of the jury.

Nationwide, approximately 2/3 of all malpractice verdicts favor the defendants. This occurs because, generally speaking, it is usually the most difficult of cases that go to verdict, and due to juries favoring physicians over patients according to a recent Michigan Law Review study.

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Other links:

• Doctors cleared in Weis case (Boston Herald)
• Charlie Weis Loses Medical Malpractice Trial (Massachusetts Personal Injury Law Blog)
• Notre Dame coach Charlie Weis loses malpractice suit (Boston Globe)
• Jury finds doctors not negligent in malpractice lawsuit (AP via ESPN)
• Weis Loses Battle of the Bulge (Wizard of Odds)
  

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

Labels: Medical Malpractice

The first of what will surely be many lawsuits over the steam pipe explosion last week in mid-town Manhattan has been filed against the utility company, Con Edison. The plaintiff, whose sister was killed at the World Trade Center in the September 11th attack, suffers from post-traumatic stress disorder.

The explosion -- just one block north and one block east of my office -- certainly rattled more than a few as they fled the scene. In my own office suite, those still in the office heard the eruption and felt the building shake, as the alarms went off and evacuations took place down the stairwells. Out on the streets police were yelling at people to run away from the area, with more than a few pair of women's shoes left by the wayside as folks sought refuge.

In addition to a number of personal injury suits I expect to be filed against Con Ed, there will no doubt be many commercial suits. The site of the explosion, which I walked past just an hour ago as I went for lunch, is still sealed off, and with it access to many businesses.

Labels: Con Ed Explosion, Personal Injury

The American Bar Association has moved into the news and blog arena in a big way, as evidenced by their newly redone website.

A quick view shows terrific free news feeds as well as a great new compendium of blawgs. They have obviously done their homework.

The new ABAJournal also has a featured blawg each week. Let's hope they don't just focus on the big name A-listers from the ivory towers and appellate world, and present the occasional up-and-comers from the "Practical Blawgosphere" that are out there in the courthouses on a day-to-day basis.

Addendum: I noticed that New York, with 75,000 attorneys, has only 21 blogs listed on the ABAJournal site. Justia's Blawgsearch lists 28 and Blawg has 15. What does this mean? That those who think that the growth of blogs has stagnated may not appreciate that we are still very much in the early phases of the medium.

See also:

• ABA Journal: Free and a New Competitor in Legal (Blawg's Blawg)
• ABA Journal overhauls its Web site (Robert Ambrogi)
• Law News Now . . . and More to Come at the ABA Journal (Dennis Kennedy)
• ABA Journal's new website (Ernie the Attorney)
• The ABA Gets It Right (My Shingle)
  

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

Labels: Blogging

Breaking news from Public Citizen, which brought a suit to have New York's new attorney advertising rules held unconstitutional:

PUBLIC CITIZEN PRESS RELEASE

New Lawyer Advertising Rules in New York Violate Free Speech, Federal Court Rules

Public Citizen Wins Injunction Against Unconstitutional Rules

WASHINGTON, D.C. - New rules governing lawyer advertising that took effect in New York on Feb. 1 cannot be enforced because they violate the First Amendment right to free speech, according to a ruling issued today by a federal court in New York.

The U.S. District Court for the Northern District of New York ruled in favor of Public Citizen's request for an injunction against many of the new rules. The organization represented its members and attorney James L. Alexander and his law firm, Alexander & Catalano. The New York firm was forced to change its advertisements to comply with the more restrictive rules.

The new guidelines were part of a revision of the rules contained in New York's Code of Professional Responsibility for lawyers, which is designed to protect consumers by prohibiting false and misleading lawyer advertisements. Public Citizen contended in its lawsuit that the rules' broad language unconstitutionally prohibited truthful communication of information about legal services to New York consumers. The court heard oral argument on June 18.

In a victory for First Amendment rights, the court permanently enjoined enforcement of most of the challenged rules against attorney advertising, including rules against attention-getting techniques, the use of nicknames and mottos, the use of client testimonials, the portrayal of judges and the use of Internet pop-up ads.

"The New York rules went too far in imposing burdensome restrictions on legal free speech that do not protect consumers," said Greg Beck, an attorney for Public Citizen who litigated the case. "The court rightly recognized that the First Amendment prevents states from arbitrarily restricting advertising just because some may find it distasteful."

In today's ruling, the court held that the advertising at issue in the case was a form of speech protected by the First Amendment, and it categorically rejected New York's argument that advertising considered by the state to be trivial or irrelevant was not covered by free speech rights. It noted that the state had not produced any evidence that its restrictions on speech were necessary to protect consumers and found that the prohibitions were much broader than necessary to accomplish the state's claimed objectives.

Public Citizen also challenged the rules' application to non-commercial speech, such as offers by lawyers to represent clients without a fee in civil rights cases. And in what amounted to another victory for free speech, the court construed the challenged amendments not to apply to nonprofit attorneys.

"The main beneficiaries of this decision are New York consumers," Beck said. "Truthful advertising promotes healthy competition between lawyers and allows the public to learn about their rights and available legal services."

To read the decision, visit http://www.citizen.org/documents/alexanderorder.pdf.

To read Public Citizen's lawsuit and other materials in the case, visit http://www.citizen.org/litigation/forms/cases/CaseDetails.cfm?cID=358.

To read more about this issue, visit the Consumer Law & Policy Blog, co-sponsored by Public Citizen's Consumer Justice Project, at http://pubcit.typepad.com/clpblog/advertising/index.html.

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Addendum:

• Greg Beck from Public Citizen, one of the attorneys that handled the matter, has this: New York's Attorney Advertising Rules Held Unconstitutional;
  

• Niki Black at Sui Generis, who has had covered this story as it developed, has this:Summary of Sections of NY Lawyer Advertising Rules Affected by Injunction;

• David Giacalone at f/k/a has: federal court decimates NY lawyer ad rules;
  

My own couple of thoughts:
The state briefs were very weak, and it comes as no surprise that those portions of the new advertising rules that dealt with the content of the advertisements were struck down. It should be noted, however, that the 30-day rule was upheld, prohibiting solicitations within 30 days of a mass tort. (Edit: Links to many of my pre-decision comments can be found off the first link of this post.)

The court had an interesting footnote at the end of the opinion. Why this was buried in a footnote, however, is beyond me:

In sum, the Court notes that it is altogether appropriate for the Appellate Division of the State of New York, having been charged by law with the responsibility of overseeing the professional conduct of attorneys admitted to practice before the courts of New York, to be concerned with the issue of attorney advertising. Without question there has been a proliferation of tasteless, and at times obnoxious, methods of attorney advertising in recent years. New technology and an increase in the types of media available for advertising have exacerbated this problem and made it more ubiquitous. As a result, among other things, the public perception of he legal profession has been greatly diminished. Although the Court finds it commendable that the Appellate Division of the State of New York and the disciplinary committees that function on its behalf pursue ways to regulate the manner and means by which attorneys who choose to advertise may do so, they must be mindful of the protections such advertising has been afforded and take the necessary steps to see that the regulation of such advertising is accomplished in a manner consistent with established First Amendment jurisprudence.

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2nd Addendum:

More blogs/news on the subject:

• N.Y. Federal Judge Strikes Down Many New Attorney Ad Rules (New York Law Journal)
• New York's Attorney Advertising Rules Held Unconstitutional (The Bizop News)
• N.Y. Lawyer Ad Rules Struck Down (ABA Journal)
  
• Federal Judge Nixes Much of New York State's Restrictive Lawyer Advertising Rules (RiversideViews)
• Feb 2007's New York lawyer advertising rules reversed (Personal Brand Marketing Blog)
• Lawyers Get Court Approval for Pop-Up Ads on Internet (New York Times)
• Superhero Lawyer Ads Are Ruled Fit for TV (New York Sun)

Labels: Attorney Ethics, First Amendment

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

Before heading to the trials, let's spend some time focusing on the issues of risky conduct and tort "reform:"

Topping the wee-bit-too-much-risk department: A father takes his 10-year old son for a run with the bulls in Pamploma (via QuizLaw);

Since defective products are often the subject of injuries, Lowell Steiger at Los Angeles Personal Injury Blog brings us a link to a new government website that provides links and recall information from six different government agencies;

And more from Texas on their tort "reform" that, I noted in last week's Round-Up, has now encouraged more doctors to come to Texas. Kevin M.D. points to the benefits of fewer lawsuits, while Stephanie Mencimer at The Tortellini tells us about the convicted sex felon who is now a practicing Texas physician. In the same vein, Ronald Miller at the Maryland Lawyer Blog discusses a West Virginia physician that has 120 malpractice suits against him, and who has just stopped practicing there and changed his name. Will he try to restart his practice elsewhere, and if so, which state is most favorable for him?

The American Constitution Society For Law and Policy Blog has a report on how the U.S. Supreme Court is blocking the courthouse door by making it dramatically more difficult, if not impossible, for ordinary Americans to have their day in court. U.S. Solicitor General Paul D. Clement agrees, as he discussed in a speech in Philadelphia on Tuesday (via How Appealing);

Bill Childs at TortsProf has the story of the California Supreme Court invalidating waivers for gross negligence (via Point of Law), keeping at least one courthouse door propped open; He also reports that there may be an immunity deal surrounding The Big Dig in the works;

David Williams at his Health Business Blog provides an update of the Veggie Booty recall, part of a spate of medical and food issues resulting from goods imported from China; The Consumerist live-blogged the Senate hearings on the Chinese Poison Train; and Bill Marler starts a suit in New York, where the plaintiff had simply asked for an apology and been denied;

Sheila B. Scheuerman, also at TortsProf, brings us a report that Avandia side effects have tripled (See also Pharmalot); This comes at the same time that Avandia's maker, GlaxoSmithKline, is sending out threat letters to attorneys who are advertising for clients (Pharmalot); (See also TortsProf on Avandia spam and my post on the potential ethical issues involved);

David P. Lowe of InjuryBoard:Milwauke Personal InjuryLawyer reports on yet another amusement park fatality, this time in Wisconsin;

Now on to some litigation:

The widow of slain Wall Street Journal Reporter Daniel Pearl filed a federal lawsuit in Brooklyn against the terrorists suspected of killing him and one of Pakistan's largest banks. (Sharon Cobb)

In the picking a jury department: Ken Shigley at Atlanta Injury Law and Civil Litigation Bloghas new data on public opinion and jury selection. Of course, that presumes we have a jury to pick. Anne Reed asks, Is The Jury System Dying over at Deliberations, positing some reasons why we see fewer trials today, and following up with Clients, Choices and the Jury System;

Working with one of Anne's posts, Howard Zimmerle at QuadCities discusses the dangers of over-reaching with your claims, in What Jurors Think of Your Personal Injury Claim;

Judicial Reports reports (in its 2nd item at this link) that the World Trade Center litigation list grew yesterday as three rescue workers announced they will sue the city over Mayor Bloomberg's allegedly "squandered" attempts to use the $1 billion insurance fund for 9-11 victims to help rescue workers who filed work-related injury claims; TortDeform has more on this after the filing of suit;

In verdicts, a practicing physician and mayor has lost a medical malpractice case (Kevin, M.D.)

After the money is in, there could still be problems. Especially if you are Houston attorney John O'Quinn. Ted Frank at Overlawyered reports that he has to refund at least $35M (plus interest) to his breast implant clients. He follows up a day later with a copy of the decision; According to Robert Ambrogi, by the way, Walter Olson's Overlawyered may have been the first ever legal blog;

While on the subject of lawyers, Ken Shigley asks a question I've never heard: Are trial lawyers sharks, wolves or sheep dogs? You have to read Ken's piece to find out;

In the settlements department, the Archdiocese of Los Angles agreed to a whopping $660M settlement for over 500 victims of sexual abuse by priests (USA Today Opinion, also at MassTorts Litigation Blog, RomanCatholicBlog, and LiberalCatNip, among many others;


And finally, Blawg Review #117 was hosted this past week by Austin Criminal Defense Lawyer Jamie Spencer.

Enjoy the weekend.


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

Labels: Personal Injury Law Round-Up

Poets will not be happy. Nor lovers. Nor anyone else that has gazed into the eyes of another to see what they say.

A New York appellate court has decided that the loss of an eye is not a "grave injury" under the Worker's Compensation law. Because the victim had a prosthetic eye, the court ruled, he didn't have a "permanent and severe facial disfigurement" as defined by the law.

The Court wrote:

Here, the record contains no evidence that plaintiff suffered a severe facial disfigurement as a result of the injury sustained. Although a surgically removed eye clearly results in a permanent condition, plaintiff wears a prosthesis which is removed only once a year for cleaning. As Supreme Court aptly noted, the photographs of plaintiff wearing the prosthesis demonstrate little difference, if any, in his facial appearance before and after the accident.

Who needs legislative tort "reform" to strip away rights when a conservative judiciary can do it for you?

Perhaps the plaintiff would have had better luck if he had quoted President George W. Bush discussing Vladamir Putin:

I looked the man in the eye. I found him to be very straight forward and trustworthy and we had a very good dialogue

Of course, that didn't work out so well, so maybe the court was right.

This miserable decision can be found here: Giblin v. Pine Ridge Log Homes, Inc.

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

Labels: Personal Injury, tort reform

My office is closed today. Sitting just one block south and one avenue west of yesterday's steam pipe explosion, my office has been placed in a frozen zone by the police. Telephone voice mail still works.

The frozen zone appears to be rather large, encompassing several square blocks of some of the world's most expensive real estate in the Grand Central station area. Some asbestos has now been found in the debris.

When I exited Grand Central this morning in hopes of getting in to the building, I found the eastern and main southern entrances closed, and 42nd Street closed and in the process of being jack-hammered in parts by one of the many, many Con Ed crews jack-hammering in the area.

Taking a circuitous route south to my building at 40th and Park Avenue, I found the scenes on the right that I snapped with a cell phone camera. I was unable to determine when I would be able to get back in to the office. For some that might be a cause for celebration. But it isn't if you're the one paying the bills.

And yet...it could have been much, much worse.

Labels: Con Ed Explosion, Odds and Ends

My bar exam responses were lost. Not all of them, mind you, just the 200 multi-state multiple choice answers I scored on that computer sheet with a pencil. It was July 1985 and the place was a passenger ship terminal on Manhattan's west side. I was one of 500+ people who got the bad news a few weeks afterward. The answer sheets just disappeared. As in gone. Vanished. The crime (or act of negligence) was never solved. The answer sheets were never recovered from the Hudson River or local garbage dump, wherever it is they went.

With newly graduated law students preparing for next week's test, and the folks at Above the Law asking for bar exam anecdotes, I thought I would share mine.

I found out about the missing answer sheets while backpacking around Europe, a reprieve from law school and the stress of the exam. My buddy Murphy had been told, when he called his folks, "Tell Eric to call home right away. It's important." I was relieved to hear that the problem was only the bar exam that I had slaved over.

I was given four choices:

1. Take the whole exam again in February 1986;
2. Take just the multi-state again in February 1986;
3. Take a special make-up exam in September 1985; or
   
4. Cancel the whole thing.

I opted to come home early for the special make-up exam, since the studied material was still relatively fresh in my mind. Then the law-gods intervened.

A week after making my choice, I called home again and found out from my dad that my question booklet had been found. Not the answer sheets, just the booklet. And in the booklet I had circled answers before transferring them to the answer sheets.

Why mark up my booklet? Because when I took the exam 22 summers ago, I had listened to my bar review prep guy, John Pieper, who had told us that, to save time, we should answer the questions 10 at a time and then transfer the answers over.

So the bar reviewers looked at my booklet and could figure out 194 of my 200 answers. I was then offered a fifth option: Did I want them to score up a new answer sheet for me? Which meant that I started off with six wrong. (I later learned that this option was given to about two dozen people, if the examiners could figure out 180 or more answers from the booklets.)

That day I called home and was given this choice, I had gone summer-skiing in Zermatt. On a glacier. With a perfect view of the Matterhorn off to my left. And I was relaxing afterward with a cold beer. Coming home early to re-study didn't, for some reason, really appeal to me. Dad, I said, let's do it.

And that's how I passed the bar exam.

(Eric Turkewitz is a personal injury attorney in New York, receiving the good news on the bar results in December 1985 and being sworn in on the 25th day of February, 1986 in the Eastern District of New York)

Labels: Odds and Ends

Rudy Giuliani unveiled his "Justice Advisory Committee" today, revealing that Randy Mastro, the Gibson Dunn attorney handling Robert Bork's slip-and-fall case against the Yale Club, is on the list.

Judge Bork -- the former SCOTUS nominee, conservative favorite and tort "reformer" -- has been widely ridiculed and lampooned for not just bringing a routine personal injury action for "in excess of $1,000,000" for injuries that appear to be rather limited, but having also asked for punitive damages. The original complaint also included flat-out frivolous claims for attorneys fees and pre-judgment interest, neither of which can be obtained in New York.

So this raises two questions for Giuliani: First, do you want someone on your Justice Advisory Committee that has not only just brought a case with frivolous claims in it, but done so on behalf of a tort "reformer?" Will this reassure conservatives, who are already skittish over Giuliani's social positions and have concerns about his judicial appointees if elected President?

And second, as I pointed out in Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages, do you want someone picking judges that failed to draft a simple personal injury complaint, even when extreme caution was needed for a high-profile client? And then failed to correct all the errors in the amended complaint even after a hurricane of bad press? He was not only out of his depth on this case, but more importantly, apparently didn't seek adequate counsel on how to correct the mistakes. Will that type of throw-caution-to-the-wind conduct appeal to conservatives?

Mastro, by the way, is Giuliani's former Deputy Mayor. He might have fine political skills, and even have terrific skills in his particular areas of expertise. He might be a great guy to have a beer with. Having never met him, I wouldn't know. But having laid bare less than stellar legal skills in a routine case with a high-profile client, and having made frivolous claims in court on behalf of that client, is this the guy conservatives will want on a judicial selection committee?

See also:

• Walter Olson's Personal Political Announcement (Point of Law)
• Gibson Dunn Dominates Giuliani's Legal Team (Legal Pad)
• A Rudy Roundup (Race 4 2008)
• Thoughts on the Rudy and Fred "Brands" (NRO Online)
• Giuliani's Legal Eagles (Weekly Standard)
• Giuliani's Judges: Two Birds, One Stone (Real Clear Politics)
  
• Giuliani's Judges (The Right Coast)
• Rudy's Vaunted (and Conservative!) Justice Advisory Comittee (WSJ Law Blog)
• Better Judges, Better Courts (Pajamas Media, by Rudy Giuliani)
• The Next President's Justices (Conglomerate)
• Obama on Supreme Court appointments... (Althouse)
• Giuliani as Nixon (Race 4 2008)
  

Addendum: A few quotes from the piece Giuliani wrote for Pajamas Media linked above after the list came out, which clearly do not square with Randy Mastro's suit on behalf of Judge Bork:

"As President, I will nominate strict constructionist judges with respect for the rule of law "

"[W]e should reform the system by adopting rules that discourage frivolous lawsuits, such as "loser pays."

"We also need to establish limits on punitive and non-economic damages -- which are too often used to turn the legal system into a lottery system."

Giuliani has now given a speech on the subject. More links:

• Giuliani vows to appoint ’strict constructionist’ judges (CNN Political Ticker)
• Giuliani: Even the Moderate is an Extremist (Irregular Times)
• Update: Giuliani's Judges (Oval Office 2008)
• Tapped (The American Prospect)
  

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

Labels: Odds and Ends, Personal Injury, Political Action

The medical malpractice trial involving Notre Dame head football coach Charlie Weis is now starting again. When we last left the Weis story on February 16th, a mistrial had been declared when a juror fell ill while Weis was on the witness stand, and the two defendant physicians rushed over to assist.

Defendants' counsel vainly tried at that time to claim the trial should continue and that the jury had not been unfairly prejudiced by the conduct of the physicians, though I don't know how they kept a straight face while making that argument.

The story behind the lawsuit is that Weis decided to have gastric bypass surgery in June 2002. He claims that the defendants acted negligently by failing to recognize life-threatening internal bleeding and infection two days after the surgery.

According to this AP story:

In opening statements to the jury, Weis’s lawyer, Michael Mone, said the doctors acted negligently by allowing Weis to bleed internally for 30 hours after the surgery before performing a second operation to correct the complication. Weis was in a coma for two weeks and nearly died.

But William Dailey Jr., a lawyer for Ferguson and Hodin, said internal bleeding was a well-known complication of gastric bypass surgery. Dailey said Ferguson, Hodin and several other doctors who cared for Weis believed the bleeding would stop on its own, as it does in most cases following such surgery.

Claiming a particular bad result is a "complication" of surgery, by the way, is a common defense tactic. The proper response from the plaintiff's side is asking whether this is an avoidable complication, if proper care is exercised.

This trial, by the way, is being live-blogged by a college football blog, The Wizard of Odds (Hat tip, TortsProf).

OK, now here is the weird part: The live-blogging of the trial will come out of Suffolk Superior Court in Massachusetts. Why is that weird? Because that is the same court that Flea was live-blogging his own medical malpractice case from earlier this year.

Addendum:
7/17 -- See Battle Lines Are Drawn in Day 1 (Wizard of Odds, after first day of trial).
7/18 -- The Return of Weis' Hired Hand (plaintiff's expert testifies it was malpractice to give Weis the blood thinner Heparin post-operatively while he was hemorrhaging) (Wizard of Odds)
7/19 -- The Big Guy Takes The Stand (Wizard of Odds)
7/19 -- Weis Takes Stand in Lawsuit (AP via Forbes)
7/20 -- Team Weis Scores A Major Victory (Wizard of Odds)
7/20 -- Doctor: Weis went against my medical advice (Boston Herald via Kevin, M.D.)
7/24 -- Hodin Takes Stand, Defends Decisions (Wizard of Odds)
7/24 -- Doctors not backing down against Weis in malpractice suit (ESPN)


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

Labels: Interesting Cases in the News, Medical Malpractice

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

Before heading to the trials, let's spend some time focusing on the issues of risky conduct and tort "reform:"

Historic Rye Playland in Westchester County, New York has seen three deaths in three years , including one last month. With that in mind, TortsProf and amusement park afficienado William Childs points to a story in the New York Post about a spot check done by the paper and some very unhappy findings;

Also in the lawsuit waiting to happen arena, Seth at QuizLaw gives us one truck driver with 131 accident claims in six months;

At Overlawyered, guest blogger Ron Coleman notes a stampede of doctors to Texas in the wake of tort "reform" that places sharp limits on recoveries. Imagine that, the government steps in to give varying degrees of immunity and protections to tortfeasors, and people rush in to the protected palace of immunity. Ironically, the post is captioned "Free Market Magic," despite the quite obvious protectionism of government that does exactly the opposite (also at Kevin, M.D.);

And since Texas tort "reform" is being discussed, I might as well point out that one unwitting loser in the deal could be small Texas businesses, as explained by Austin practitioners Perlmutter & Schuelke;

Quad Cities Lawyers has blogged on an 8-minute video on tort "reform" that includes industry being the guiding force behind the faux movement, the McDonalds case and Pants Pearson;

At Trial Ad Notes, Mary Whisner reports on a study that concluded that the Illinois tort system does not appear to be the cause of the undisputed fact that doctors' liability insurance premiums showed dramatic rises (via Deliberations);

And since we are on the subject of doctors, let's turn to electronic health records, who some had hoped would lead to improved medical care. But according to Theo Francis at the WSJ Health Blog, computerized records aren't much better than paper;

And it seems that the world of ambulance chasing has reached new depths, with David Bershad of Milberg Weiss & Bershad pleading guilty to conspiracy to obstruct justice. (Other blog posts at the link);

Before going on to trial, I note that a Canadian woman died from using counterfeit drugs. Also, Chinese food and drug chief Zheng Xiaoyu was executed for bribery related to unsafe products. This gives me another opportunity to urge Congress to pass Tim Fagans Law, to make our drug supply chain safer;

Now on to some actual trial stuff:

As we pick a jury, we often hear excuses for why people can't serve, inlcuding this one from a personal injury attorney in one of my own jury pools. The Legal Reader brings us an even more extreme example, so bad that charges may be brought;

Howard Zimmerle of Quad Cities Injury Lawyers blogged on a UK study done on the "value" of life lost in wrongful death cases;

Michael Sung at Jurist reports that Judge Alvin Hellerstein in the Southern District of New York has scheduled trial for six wrongful death lawsuits related to the September 11th attack; (also at Sui Generis)

And from the Department of Verdicts:

A federal jury in West Palm Beach, Fla., has awarded $5.5 million to the estate of a young West Palm Beach man who died from an overdose due to the malfunction of a popular prescription pain patch (Duragesic) manufactured by two Johnson & Johnson subsidiaries. (Daily Business Review via Law.com, See also Cuban & Reyes Blog, PharmaGossip, and InjuryBoard: West Palm Beach Personal Injury Lawyer)

After a defense verdict in a lead paint case, David Lowe of InjuryBoard:Milwaukee Personal Injury Lawyer adds to the blawgospheric discussion of governments that hire outside counsel on a contingency basis. Suffice is to say, there will be no caterwauling about the legal fees the government needs to pay this time.

(For those interested, there is a long analysis of the concept of using outside counsel by Michael Dorf at Dorf on Law, an analysis directly at odds with this April 6, 2007 blog by Beck/Herrmann;)

TortsProf has the jury verdict in a suit against basketball star Allen Iverson's bodyguards;

This New York medical malpractice verdict comes courtesy of doctor-attorney Dainius Drukteinis, from NY Emergency Medicine, and involves the amputation of two fingers and delays in the ER with respect to contacting orthopedics for reimplantation surgery;

With a verdict in hand, we wonder about the tax consequences of the pain and suffering part, a subject I covered at that link on January 12th of this year based on Murphy v. IRS in the Court of Appeals for the District of Columbia. The panel has now reheard the matter and upheld the prior determination that the award is taxable. There are several opinions on the subject at the TaxProf Blog;

From Thomas Swartz at New York Legal Update, an appellate court reverses a malpractice award against a psychiatrist that had resulted after a patient committed suicide;

Before leaving the courthouse, we'll let two attorneys reflect on the end game, with Scott Greenfield at Simple Justice discussing his passion for the win in Fighting Form, and Ronald Miller lamenting in Losing at the Maryland Personal Injury Law Blog. The fact is, anyone who tries tough cases for a living will undoubtedly lose some, but that intellectual response doesn't really ease the pain;

And finally, Seventh Circuit Judge Terence Evans is Talkin' Baseball in a suit involving George Brett and a "stealth" bat. (Type in "Brett" at this link to find the case.) How many other judicial opinions have cited a clip of the infamous pine tar incident on YouTube? (Via How Appealing);


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

Labels: Personal Injury Law Round-Up

The Yale Club has Answered Robert Bork's slip and fall personal injury case. Bork --- the former SCOTUS nominee, conservative favorite and tort "reformer" -- had sued the Yale Club for causing him to fall as he attempted to step up to the dais to give remarks. His federal suit, started in the Southern District of New York for "in excess of $1,000,000" plus punitive damages, has been met with widespread ridicule, as noted at the bottom of the post linked above. The then 79-year old former jurist claimed there should have been a step and/or handrail for him.

The Answer is here: YaleClubAnswer.pdf.

The Amended Complaint that it responds to is here:Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages

With Yale now answering, Judge Bork is unable to voluntarily dismiss his case under FRCP 41 without prejudice and re-start it in New York Supreme Court, a more favorable venue as I discussed in What Should Bork Do Now?

To no great surprise, the Yale Club denies the allegations of negligence, specifically blames Judge Bork for the fall, claims the risks incident to "the situation" were open and obvious, and asserts that he has already received some remuneration for his economic loss.

Yale Club counsel is Eric Schnittman, who does not appear to have a website or much in the way of available information. New York's court database lists him as a 1983 graduate of Fordham Law School.

The matter has been assigned to Judge Naomi Buchwald, appointed in 1999 by Pres. Clinton.


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

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

For the New York practitioners who frequent here (all others will be bored):

Effective July 3rd there are new rules for motion practice and the time limits for service of cross-motions and papers. The rules can be found here: New Rules for Motion Practice

Effective 1/1/08 - new rules for service of a trial subpoena that changes the method of service.

Labels: Odds and Ends, Trial Practice

I haven't done any blogospheric naval gazing since I started writing on personal injury law in November 2006, since that isn't what my blog is about. But Dave Hoffman at Concurring Opinions just wrote on The Flat Legal Blogosphere And What to Do About It, and I'd like to hit a few points despite the fact I'm just a rookie.

First, read his post at the link above and then come back.

Welcome back (and yes, I stole his naval gazing graphic). Hoffman's comments in red and mine in black:

Group Blogs Do Not Predominate: Unlike the political blogosphere, the one-person operation remains a very important part of the short- and the long-tail of the blogosphere. Among the highest traffic sites are many run by one individual (Berman, Bainbridge, Leiter, Caron, Ribstein, Althouse/Reynolds (if the last two count as law bloggers). Others are run as groups (Scotusblog, Balkinization, Volokh, CO, Prawfs, Discourse, Conglomerate). But there is no clear trend, as I once predicted, toward further consolidation.

The political blogs, of course, are heavily dominated by two parties and massive amounts of money, thus making for a poor contrast. The reason for the lack of consolidation in legal blogs, I think, is that solo and small firm practitioners still practice in wide numbers across America. (cite, anyone?) While almost every other industry has consolidated -- how many solo doctors do you know now, as opposed to 25 years ago? -- attorneys have resisted. The blawgosphere merely mirrors the actual practice of law. If you need to do a comparison, look to other professions. Without looking, I'd bet accountants, architects and other professionals are similarly one-person operations.

Traffic is Stagnant: Critics notwithstanding, I still think I'm right that the legal blogosphere's growth has slowed significantly. One major law blog has seen a large increase in daily visits (SCOTUS Blog), and a few others (Opinio Juris, for example) have seen a gradual increase to around 1,000 visitors a day. But on the whole, the explosive growth in traffic of 2002-2005 no longer exists. Sites are bumping around basically where they were a year ago.

I don't know the basis of this since no link to a survey was provided, and I don't think traffic stats for particular sites are public knowledge, except for those that volunteer the info. My own small, recently-started niche blog that you now look at averaged over 700 unique visitors a day in June. I don't know if that is good or bad and would love to know what others get, but this is still just anecdotal. Absent some type of actual survey of the legal blogosphere, I don't see how one can say traffic is stagnant.

New Entrants are Rare: I think (though we need a new census). I imagine that almost every law professor or lawyer who wants to blog has now heard of the medium and has either joined the fray or decided to abstain. Moreover, it is becoming increasingly hard, as I'll discuss in a moment, to break into the game and find readers.

Most attorneys I speak with are unfamiliar with blogs. Many still don't have web sites. And I managed to find new readers starting from scratch (albeit while expending a great deal of time). While I am still very new at this, my gut tells me that tremendous growth lies ahead. Here's why: New York probably has over 10,000 attorneys who practice personal injury law (based on about 75,000 total attorneys, with the largest plaintiff's attorney group having about 4,500 members). Yet how many blawgs on that subject can you find? Since this is my area, I've looked. And you won't find much. Justia shows just 28 for the whole state covering all areas of law. There are a million attorneys in the U.S., but how many blawgs in total are there that post at least once a week? About a thousand?

There are Few Professionals: Here, we can see some parallels to political blogging. A few reporters and the gossip-hounds are doing this full-time, but by and large lawyers aren't quitting their day jobs to make money from blogging. The amateur/hobby status of law blogging is likely driven by the smaller audience of readers for law than for partisan political analysis. With the exception of Reynolds and Volokh, I imagine that no law blog could, even when fully monetized, gross more the low five-figures a year.

Yikes. I italicized the last point because it is the most important part of this response. If someone published an article in a legal journal, will that gross them any money? No. Except as an indirect form of marketing as they become known in their field for what they do. Blogging is conceptually no different. Most blawgers, I think, do it simply for enjoyment, or to network with other attorneys for possible referrals, or perhaps hope a future client stumbles on the blog while looking for counsel. Trying to place a financial figure on such an indirect form of networking is not only impossible, but would completely miss any real benefits that might accrue based on new contacts and clients.

Law Blogs Are Largely Reactive: Here, some qualification is in order. Some law blogs, like Berman's, Balkin's and Volokh's, have driven national debates on issues like torture and sentencing. They have done so through "original" reporting on legal issues, in a significantly deeper and more comprehensive way than reporters on the "law beat" ever could. These blogs really show the value added of law blogging. But, overall, most law blogging, even at high-traffic sites, remains parasitic on the main-stream media.

True, they are reactive. I've also noticed, though, that in two stories where I was presenting original material (that supplemented that of the main stream media) my traffic spiked upward. I think it is clear that those that pursue original content will flourish and those that are strictly parasitic will stagnate. Very Darwinian. Very capitalistic. Isn't that how it should be?

Addendum: See Also:

• Blawgosphere: Revenge of the Old Guard (Simple Justice)
• Hoffman's "Stagnation" and the Future of Legal Blogging (PrawfsBlog)
• Why Do Lawyers Blog? (Concurring Opinions)
• Welcome to the Practical Blawgosphere (Mark Bennett)
• Practical Blawgosphere Rollcall (Mark Bennett)
  

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

Labels: Blogging

This isn't about New York personal injury law, but is related in a fashion. Related because it is the personal injury attorneys who are usually accused of ambulance chasing.

But high-powered class action law firm Milberg Weiss & Bershad is not only accused of paying money to obtain clients, most certainly a form of ambulance chasing, but named partner David Bershad has now plead guilty to conspiracy to obstruct justice. This investigation has been going for six years.

Byron Stier at the Mass Torts Litigation Blog has this excerpt:

According to a person familiar with the situation, Bershad's plea will relate to the core allegations of the indictment: misleading judges into believing that plaintiffs were being paid by Milberg Weiss, when in fact the firm was paying them. A "factual statement" accompanying the plea is also expected to unveil new details of the government's allegations against the still unindicted "Partner A" and "Partner B," who are widely assumed to be, respectively, name partner Melvyn Weiss and former name partner William Lerach. Lerach and the San Diego-based west coast office of Milberg Weiss split away from Milberg Weiss in 2004 to found Lerach Coughlin Stoia Geller Rudman & Robbins.

So what punishment awaits Bershad (whose archived biography from Milberg Weiss can be found here)? According to the Wall Street Journal:

He said in court papers that he and others agreed to conceal from judges secret payment arrangements that the firm had with named plaintiffs in class actions. He will forfeit $7.75 million and pay a $250,000 fine. He could face as much as five years in prison; how much time if any he serves may depend in part on his cooperation, the plea agreement says.

So, do you think those who thought Scooter Libby's obstruction of justice sentence too harsh will be starting a campaign for commutation of Bershad's eventual jail sentence?

See also:

• Are Weiss and Lerach About to Go Down? (Professor Bainbridge)
• Bershad, Formerly with Milberg Weiss, Pleads Guilty (Securities Law Prof Blog)
• David Bershad pleads guilty in class action kickback scheme (FindLaw)
• Bershad plea update (The Dirt Lawyer's Blog)
• Lawyer of the Day: David Bershad (Above the Law)
• Milberg Weis Partner Pleads Guilty in Kickback Scheme (TalkLeft)
• Government Tightens Noose on Top Securities Class Action Attorneys (Stock Broker Fraud Blog)
• Bershad's Plea Deal and What it May Mean (The D & O Diary)
• Into the memory hole (Point of Law)
• Milberg Weis plea deal (The Practice)
  
• Ex-Partner at Milberg Pleads Guilty to Conspiracy (How Appealing with a round-up of traditional media articles)
  

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

Labels: Attorney Ethics

New York's Chief Judge Judith Kaye has abandoned her previous threat of a lawsuit against the legislative and executive branches for the failure to grant even a cost-of-living pay raise over the last nine years.

In a letter to the judiciary over the past holiday week, Chief Judge Kaye, pictured at right, backed down. In an unsigned, four page letter marked "Confidential," she wrote that any such lawsuit by the Third Branch of government against the other two "must withstand the strong light of day," and that formulating an appropriate theory has "not be an easy task." The judge added that had such a suit already been brought, it would not "have helped us one whit" and "it would have damaged our cause."

How did this conidential letter come to light? Because sitting Justice Emily Jane Goodman of Manhattan has now written about it, publishing both the Chief Judge's letter and her own response online in an exclusive report at Judicial Reports. And Justice Goodman wants to know why, if such a suit would not have been helpful or couldn't be brought, was the threat so publicly made?

Justice Goodman, using an extraordinarily sharp tone considering her target, and often dripping with sarcasm that attorneys are unaccustomed to hearing from the bench, is anything but kind to Chief Judge Kaye. A few snippets of of Justice Goodman's response:

The Chief Judge writes that she understands my "mounting frustration," though I suspect she will find it unseemly when I, a New York State Supreme Court Justice, am forced into bankruptcy. She's assuring me that our problems with the Governor and Legislature are not unique in the nation; but show me one other judicial entity in its ninth year without a pay raise or cost of living increase.

...

Yet all is not lost. They are "doing something," and, "please be assured that we are wholly dedicated to achieving our objectives and unrelenting in our daily calls and visits." Calls and visits are sweet, but have little to do with the urgency felt by those of us who are losing control of our lives.

I'm sure the Chief Judge believes that these contacts will do the trick. But, by the way, she and the other administrators have never been elected, have never run for office or been touched by politics, in a way that would enable them to understand politics and political negotiation. Those who are appointed are the beneficiaries of politics, without experiencing the dynamics themselves. Almost all court administrators (I can think of few exceptions) are appointed, and almost none have ever been elected to the Supreme Court.

There is much more at the Judicial Reports link above.

The publication of the confidential letter and the sharp commentary accompanying it, has the sound of an insurrection against Chief Judge Kaye from the ranks of our trial judges, if others feel as betrayed as Justice Goodman. And it is possible that, if the trial judges don't see acceptable action from their leadership or the legislature, that a work "slow down" may be in the future.

Addendum 7/15/07: See also A Bold Move By Justice E.J. Goodman (Simple Justice)


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

Labels: Judiciary

"Hell at Woodhull," blasts New York's Daily News today from the front page of the dead tree edition. Woodhull Hospital is a public city hospital here in New York.

A 10 year old girl had died there of asthma after what appears to be spectacular mismanagement over 4 1/2 hours in the emergency department. A $3.5M jury personal injury verdict was the sad ending.

And so, while tort "reformers" race around trying to make "Pants" Pearson the reason to close the courthouse doors to legitimate claimants, the Daily News is reporting on these nuggets from the trial that recently ended on the asthmatic girl:

• Doctors and nurses put a breathing tube down the girl's throat without giving her proper sedatives.
• Her hands and feet were tied to her bed.
• After leaving her bucking and screaming for at least an hour, they improperly pulled out and reinserted her endotracheal tube, then pumped so much air into her lungs that they burst.
• Finally, after she became unresponsive, they administered huge overdoses of an adrenaline drug to keep her heart beating.
  

A state Health Department investigation of the girl's death in April 1999 also concluded that Woodhull had failed to meet "generally acceptable standards of professional practice" in its treatment of the girl.

According to the Daily News story:

A nurse who was in the room when Anna died testified that while the girl's body was still on the bed, officials from the hospital's risk management unit suddenly appeared and began scooping up X-rays and medical charts - several of which were never found afterward.

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

Labels: Medical Malpractice

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

A shortened version due to the holiday week. But before heading over to the courtroom for a few interesting suits, let's look at risky conduct that leads to lawsuits and check to see that the courthouse doors are open:

Since we start with risk, let's peak in at the Consumer Products Safety Commission and their list of recalls for the month of June. (via Consumer Law & Policy) Anything you bought on that list?

Tort "reform" issues usually find a place at the beginning of these round-ups, so we turn to Michael Townes Watson at TortDeform to discuss the detrimental effects of medical malpractice caps in Texas;

In the world of drug lawsuits, the issue of federal preemption comes up as defendants try to gain immunity for their pharma clients by claiming federal law trumps state law, and that FDA approval grants immunity to their clients. As Byron Stier at the Mass Tort Litigation Blog blog points out, the Vioxx judge in the multi district litigation has rejected that claim of immunity;

And finally, before heading into the lawsuit section, a study finds that 20% of hospitals give bad emergency room advice on strokes, heart disease and other cardiovascular conditions (via The Medical Quack):

A look inside the courthouse:

Bill Marler weighs in with the first lawsuit concerning salmonella poisoning arising out of Veggie Booty;

When I reported in last week's Round-Up on the Starburst Fruit Chew lawsuit I called it "pathetic" and wrote, "hope the attorney who took this wasn't counting on it to make the rent." Well, John Day is not nearly as nice as I was about that, shredding the plaintiff's lawyer who brought that frivolous suit. Sadly, because the attorney doesn't have a web site, I am unable to Google Bomb his site by linking the words "frivolous lawsuit attorney" to it;

Perhaps the most unusual, but I think inevitable, suit is the one where a mother sued over her son's 90-minute execution (via Above the Law).

With a verdict or settlement in hand, our client wants to know which parts he has to pay taxes on. For personal injury suits, we know that pain and suffering awards are tax exempt since they merely replace that which was lost, as opposed to being income. But Andrew Bluestone at the New York Attorney Malpractice Blog tells us of one appellate court that believes a recovery for mental anguish is taxable;

And finally, a woman who almost died from a bikini wax (via Kevin, M.D.)

Hope your holiday week was as good as mine.

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

Labels: Personal Injury Law Round-Up

A soon to be published study suggests that increased heart risks associated with Vioxx began immediately after people took the painkiller. That contradicts Merck's assertion that the drug caused serious heart risks only after 18 months of use. (via, Pharmalot)

A pre-publication review of the study is published in today's Wall $treet Journal. As per the Journal:

The new study, known as Victor, was conducted by researchers at Oxford University in England...

The study, which was designed to see whether the drug would curb progression of colon cancer, compared Vioxx, known generically as rofecoxib, with placebo in a total of 2,434 patients who were followed for two years. The study was halted when Merck pulled Vioxx from the market after another study, known as Approve, linked the drug to an increased risk of heart attacks and strokes. The new report includes only information about cardiovascular findings.

According to the manuscript, 16 of the 23 cardiovascular events occurred in the Vioxx patents, and half of those occurred in patients within 12 months of taking the drug. "It would appear...that patients do not need to take rofecoxib for 18 months to be at increased risk of a cardiovascular thrombotic event," the authors wrote. The study also suggests that by 14 days after patients stopped taking the drug, the risk of heart and stroke went away.

The study is to be published in the New England Journal of Medicine. The WSJ reviewed the article prior to publication.

Labels: Personal Injury

Apple's white-hot iPhone presents an ethical problem for attorneys. The problem is that, since the battery is not removable by the consumer for replacement, the phone must be sent to Apple for this repair. And since the batter is expected to fail after 300-400 charges, then one must assume the gizmo goes back to Apple after two years.

But what about all that confidential email on the iPhone? Unlike a regular cell, or a PDA whose battery can be popped out and replaced, an iPhone user may have to surrender it to Apple for a week or two. Even assuming a replacement cell can be used in the interim, it doesn't ameliorate the bigger problem of compromising client security. Therein lies the ethics issue.

New York's Code of Professional Responsibility, along with many if not all others, includes the canon that "A Lawyer Should Preserve the Confidences and Secrets of a Client."

And since the iPhone is, by definition, not working when it goes in for service, confidential information can not simply be deleted.

For attorneys, it may be impossible to send the iPhone to Apple for servicing. In fact, it could easily be said to constitute legal malpractice to release the iPhone from your custody, and therefore make version 1.0 of hte iPhone impossible to purchase as anything other than a disposable toy.

For a dissection of the iPhone and the problem with the battery, see Wired Magazine's IPhone Autopsy: Wired News Voids the Warranty.

Addendum: Apple just announced their battery replacement program for out-of-warranty iPhones (via The Apple Phone Show). Interestingly, it says that:

[T]he repair process will clear all data from your iPhone. It is important to sync your iPhone with iTunes to back up your contacts, photos, email account settings, text messages, and more.

Will that be sufficient to send an iPhone loaded with data off to a stranger at Apple, instead of having an in-house IT department or your local computer handyman take a crack at it the way you would for a laptop? From the perspective of an attorney with client confidences (or physician with medical records or businessman with trade secrets at stake), I doubt it.

Addendum 7/4/07 -- iPhone Review for Attorneys (TechnoEsq)

(Eric Turkewitz is a personal injury attorney in New York, Mac user since ~1994 and Apple shareholder since 1999.)

Labels: Odds and Ends