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

From the last, slow days of August, we start with pre-litigation stuff:

New York bar examiners still can't find complete essay answers for 400 test takers, meaning they face the prospect of taking the exam again;

Smoking by workers at the World Trade Center site at the former Deutsch Bank building has been found to be the cause of a fire that resulted in two firefighter deaths in late June as the contaminated building was being dismantled. A tangled web of owners, leaseholders, construction contractors, subcontractors, the City of New York and the Fire Department, will soon lead to a very messy lawsuit of finger-pointing. Among the many issues will be lack of inspections, lack of experience by the contractors and a broken standpipe that prevented water from being pumped upstairs to the blaze;

Also at the WTC site, Jeff at Tort Burger - Hold the Reform reports on increased rates of asthma for Ground Zero workers; He also responds to yet another attack on judges, this one from Forbes (Courts Gone Wild);

According to TortsProf Bill Childs, the Duke lacrosse players are preparing to file suit;

Moving to legal fees, Perlumtter & Schuelke wrote In Defense of the Contigent Fee as a form of value billing -- as opposed to the billable hour with its inherent conflict of interest between client and attorney. David Giacalone at f/k/a didn't like that, and attacked Perlmutter -- OK, not just Perlmutter but attorneys in general who work on contingency -- in a post entitled why do lawyers lie (about contingency fees)? Among Giacalone's complaints, he asserts that "The client rarely is given essential information (such as the likelihood of success, the probable size of a recovery, and the amount of time and money that is likely to be invested by the lawyer) that would allow him or her to place a value on the lawyer's participation." There's probably a good reason for that, being that the information is often unknown at the time the retainer is signed.

With the papers abuzz over tainted products from China, Ann Brown (former Consumer Products Safety Commission chair) and Pamela Gilbert (former CPSC executive director) lets rip in a harsh Washington Post op-ed that discusses, in part, why we have so little oversight (via TortsProf);

TortDeform's Kia Franklin goes to battle against an article in American Magazine that advocates health courts, dismantling the arguments in: What's The Real Crisis in Medical Malpractice Law? The Threat to Patient Safety;

Also on tort "reform," the Chicago Tribune has an article stating that more medical malpractice insurers are coming to Illinois in the wake of litigation caps on recoveries to those most badly injured. Is anyone else shocked that, when corporate profits increase (on the backs of the injured and disabled), profit-seekers will come in? No word yet on whether insurance rates will actually go down (via Point of Law);

Before heading into the litigation section, Progressive decides it would be nice to slip its investigators into a church sponsored therapy group to investigate a car accident, and record the comments made by the group, and Hans Poppe reports on a PBS documentary on why insurance companies deny legitimate claims;

Into the start of litigation:

The Kentucky Law Review reports that the co-pilot in the Comair crash that killed 49 people in Lexington a year ago has brought suit, claiming poorly designed runway lights;

Charles Toutant at the New Jersey Law Journal has a piece on eight class action suits against Shering-Plough for the off-label promotion of some of its drugs, a policy that led to a whopping $435 million settlement of civil and criminal charges last year. Interestingly, they don't deal with personal injury, but allege fraud under the New Jersey Consumer Fraud Act, unjust enrichment, civil conspiracy, common-law fraud and negligent misrepresentation. From the defense side, Michael Krauss opines on the subject at Point of Law;

Mark McKenna has the story of a $15M verdict from a defective motorcycle tire;

And the Ninth Circuit Court of Appeals dumps a $52M punitive damages verdict in White v. Ford and orders a new trial against the automaker. A third trial, Barry Barnett of Blawgletter tells us, as the first had been for $150M in punitives. Part of the problem, no doubt is that confusing decision of the Supreme Court in Philip Morris v. Williams that will plague courts for years to come.

At Overlawyered, Ted Frank points to a mere $4,100 in damages awarded by a German court to a man who had to have the top of his skull replaced with plastic because of a faulty hospital fridge, and says in his subject heading: One Reason European Healthcare Is Cheaper Than The American Version. Personally, I'd rather pay the few extra bucks and keep my skull;

And finally:

• Blawg Review #123 is up at Texas Appellate Law blog;
• Grand Rounds is up at Rickety Contrivances of Doing Good, for those with medical interests;
• The Cavalcade of Risk is hosted this week by Health Affairs;
• Food poisoning legal guru Bill Marler is the focus of a long (and flattering) magazine profile;
• Trial Ad Notes reports that B-List and C-List celebrities seek new life on Jury Duty, coming to television;
  
• And, a little boy ("I'm not little!") takes in his very first baseball game.

Enjoy the long weekend.

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

Labels: Personal Injury Law Round-Up

Excuse me while I boast:

Congrats to brother Dan! His screenplay, Tranquility Base, just became a finalist at the PAGE International Screenwriting Awards. There are 100 Finalists spread over 10 categories (his is Sci-Fi/Fantasy).

Not bad considering there were 3,411 entries. Way to go bro!

About the script:
Tranquility Base is the story of astronauts stranded in space in 2040. The action moves between the International Space Station, a Space Transport Plane, and a Moon Base Biosphere, as 15 astronauts struggle to secure the six available spots in the self-sustaining environment of the Moon Base. A combination of 2001: A Space Odyssey and Survivor, Tranquility Base examines the challenges man faces when his desire to help others conflicts with his instinct for survival.

So, who knows a good agent?
===============================================================

About PAGE:
The PAGE International Screenwriting Awards competition was established by an alliance of Hollywood producers, agents, and development executives. Our goal: to discover the most exciting new scripts by up-and-coming writers from across the country and around the world. And due to the success of our winning writers, the PAGE screenwriting contest is rapidly becoming one of the most important sources for new talent within the Hollywood community and worldwide.

It's a Catch 22. While producers and agents continually complain that they can't find good material, talented writers who live outside Los Angeles and have no "connections" within the movie industry find it virtually impossible to penetrate the barriers of the Hollywood system. Our objective is to bridge that gap – giving new screenwriters the opportunity to get their scripts into the hands of industry professionals, and also serving as a much-needed resource for Hollywood producers, agents, and studio execs who are searching for quality material.

Labels: Odds and Ends

A month after taking the New York bar exam, many students still stand in limbo after the New York State Bar Examiners informed some that their essay submissions are incomplete. The missing essays for the July 2007 had been written on laptop computers.

According to New York Lawyer, "the board hired to provide software to take the bar exam, appear to have incomplete essays from about 400 people who sat for July's exam." (see: Son of a Glitch!: Hundreds of NY Bar Exam Takers May Have Had Essay Answers Fouled Up by Software, free reg.)

Test takers have been emailed and asked to send back-up data that they may have from the test.

I had previously recounted my own experience in taking the exam in 1985, when the results of 500+ people taking the test in the passenger ship terminals on Manhattan's west side disappeared. The vast majority had to retake the missing section.

And so, it appears that a high-tech replay of that infamous incident may now be in full swing.

Addendum:

• NYS Bar Examiners Do Grade Approximation For Missing Exam Answers (11/15/07)
• How, Exactly, did New York Grade That Bar Exam? (11/26/07)
  

Labels: Bar Exam, Odds and Ends

He was 14 years old when he was sentenced to hang. The year was 1959 and he had been convicted in Canada of raping and killing a 12-year old.

Due to his age, and the fear of political backlash, his term was commuted to life in prison. He was paroled after 10 years behind bars according to a New York Times article today (sub. req., an AP version is here).

And now, 48 years later, the conviction has been vacated.

According to the Times:

Last year, the Ontario Court of Appeal heard evidence that the original autopsy conclusions allowed for a time of death much later than that cited by the prosecution, perhaps a day later, when Mr. Truscott was in school.

"The conviction, placed in the light of the fresh evidence, constitutes a miscarriage of justice and must be quashed," the court said in a unanimous judgment.

It is hard enough to figure out what "fair and reasonable" is for a broken arm or lost eye. We do it, not because it is perfect, but because it is the best system we have to make one whole.

But 10 years taken away from one's life, and being haunted by the conviction for an additional 38 years? More from the article:

The Ontario attorney general, Michael Bryant, said he would not appeal and asked a judge to advise on compensation. "On behalf of the government, I am truly sorry," Mr. Bryant said.

I'm curious as to what others think, assuming this blog is still being read in the waning days of August...

Labels: Personal Injury

Progressive Northern Insurance stepped waaaaaay over the line in investigating claims, when its investigation included infiltrating and taping private, church sponsored, support groups where people unrelated to any litigant were confidentially bearing their souls.

According to the Atlanta Journal-Constitution, a pair of detectives hired by Progressive became members of the Southside Christian Fellowship Church in August 2005 in order to get damaging information on two church members involved in a 2004 traffic accident.

The detectives talked their way into a private support group where members discussed abortions, sexual orientation and drug addiction, and taped the sessions, the newspaper said.

The CEO of Progressive then apologized after they were caught red-handed by the newspaper.

Under the label of "Insurance Industry" at the right, I have chronicled some of the misconduct in the insurance biz over the last year, but this story has to take the cake.

(hat tip to California Personal Injury and Insurance Blog via Bob Kraft's P.I.S.S.D.)

Labels: Insurance Industry

Sometimes the issue of "assumption of risk" is easy. A person voluntarily does something with a bit of danger and gets hurt. The photo at right is an example. The official legalese, however, looks like this:

The doctrine of assumption of risk is a form of measurement of a defendant's duty to a voluntary participant in a sporting activity. The voluntary participant is deemed to have consented to apparent or reasonably foreseeable consequences of engaging in the sport.

But a gym class is different than the outside world, according to New York's Appellate Division, Second Department, where there is a significant disparity between the learned instructors and the neophyte students, as well as the "persuasion" that may be used to "force" a student to complete a task.

In Calouri v. County of Suffolk, a 40 year old woman suffered a broken leg during a team activity in which she had to clear a rope strung between two chairs without touching it. After several failures (she was not only the oldest, but the shortest student in the class) she stepped onto the knee of a teammate as a makeshift step, who wobbled, and she fell.

Under these circumstances, the court refused to have the case dismissed on summary judgment and ordered it to go to the jury.

(Photo credit: Me)

Labels: Personal Injury

Above the Law, which fashions itself as a legal tabloid, has been chronicling the lack of humor at Nixon Peabody, one of those BigLaw joints that thinks it's a lot of fun to work at. They first created a song for themselves (so that's how those legal fees are spent) and then had a hissy-fit when it was leaked to ATL's David Lat who posted it online.

Some folks are their own worse enemies, as they threatned Lat on intellectual property grounds for publishing it, and then saw the song lampooned by another with a fair use parody. Lat's tablawg now lands in today's New York Times in the business section, so that all their clients can now see what they are doing.

Nixon Peabody has blown the one great rule of the digital age: Don't say, write or create anything that you don't want to see in the newspapers. And blown another rule about making dumb threats, which they can then be mocked for.

Hey, its August, which means slow news, and a chance to claim "tablawg" as my own creation since Google turns up zero hits on the word. Widespread use is not anticipated.

Late August also happens to be a perfect time to resign if you are an embattled attorney general.

Labels: Blogging, Odds and Ends

The 18-year old operator of the Mind Scrambler ride at historic Rye Playland has been faulted for the death of his co-worker and supervisor earlier this summer. The story is reported today on the front page of my local paper, The Journal News. Playland is the only government owned amusement park in the country.

I had previously written of the story here in Round-Up #20, and it has been extensively covered by TortsProf Bill Childs.

Labels: Personal Injury

Will Westlaw and Lexis be going the way of the dinosaur? A new website to find legal opinions may do just that.

From Thomas Swartz at the New York Legal Update:, noting that the information on the new site will be easy to use, free, searchable, free, fast, and of course, free,

Columbia Law School and the University of Colorado Law School have launched a new Web site called AltLaw.org. AltLaw.org contains nearly 170,000 decisions dating back to the early 1990s from the U.S. Supreme Court and Federal Appellate courts. The site's creators, Columbia Law School’s Timothy Wu and Stuart Sierra, and University of Colorado Law School's Paul Ohm, said the site's database will grow over time. [More at the link]

The future may not be so bright for those companies when their bread and butter is delivered free to the legal world.

Labels: Odds and Ends

The New York Personal Injury Law Blog presents the weeks that were:

Before the lawsuits, let's look at risks and pre-litigation issues:

We start with the Accident Prevention Department: Less speeding means fewer accidents, and Dr. Wes brings us a rather unique method of reducing speeding. Trust me, you haven't seen an ad campaign quite like this before;

In the Risk Management Department, a person vents anger at a doctor on a blog (via Kevin, M.D.). Yet another good reason for all professionals to be on their best behavior;

And in a related matter (sort of), Tony Caggiano at the Orlando Injury Lawyer Blog discusses the secrecy surrounding disciplinary actions against doctors;

Ben Glass has a post that touches on personal injury law: How one health insurer not only wastes his premium money, but is violating the law as it does so; While another health insurer refuses to pay surgical bills because it claims its insured was 56 cents short in his payments; (via The Medical Quack);

Perlumtter & Shuelke have a copy of the Baylor Law School study: Straight From the Horse's Mouth: Judicial Observations of Jury Behavior and the Need for Tort Reform. Ted Frank at Overlawyered thinks the real problem is corrupt Texas judges ("in the pocket of the plaintiffs' bar," is the phrase Frank uses);

The New York Sun rips trials lawyers over a medical malpractice commission being formed after a 14% malpractice rate hike (see my prior post, Why New York Medical Malpractice Insurance Jumped 14%), and the New York State Trial Lawyers Association sets them straight in a response.

As we move into litigation:

With dangerous products filling the front pages of the papers -- mostly as a result of Chinese manufacturing and the use of lead paing on toys and, perhaps, American importers turning a blind eye to what is going on -- NPR does an interview with the Chair of the Consumer Products Safety Commission; And class actions have been filed against Mattel seeking medical monitoring;

Mark R. McKenna has more on the Minneapolis bridge collapse, including pre-collapse warnings; The first suit has already been reported. In addition, Minneapolis firms are teaming up for pro bono representation for the bridge collapse victims.

Who says the law is a boring subject? Not John Day, who reports on whether a husband is liable for injuries his wife inflicts on his girlfriend. Ouch.

Howard Erichson at the Mass Torts Litigation Blog reports on a unique effort to have four simultaneous trials in the Atlantic City courthouse, where Judge Carol Higbee has been overseeing the action;

Oddly, Vioxx litigation also landed on the front page of the New York Times with a story saying Merck hadn't settled a single suit. Why this was front page news is beyond me since there doesn't seem to be anything surprising about it. Taking a hard stand was, from a litigation perspective, the only rational thing Merck could have done. In fact, in New York medical malpractice cases the exact same thing occurs. It's standard operating procedure;

Also in the defense arena, Beck/Herrmann has a blog on how to defend a case if you believe that the plaintiff has used prescription drugs in an illegal manner;

The Cerebral Palsy Blog writes about the $70M verdict in New Jersey that was recently upheld by an appellate court. The blog follows up on this article from the New Jersey Law Journal;

This verdict was for the defense, as Bary Barnett at Blawgletter tells us, where a court refused to ask jury panel members on their feelings about personal injury lawsuits in a personal injury lawsuit (via Point of Law);

And an Illinois lawsuit against Philip Morris over "light" cigarettes, that at one time had been subject to a $10B verdict, has been snuffed out.

And finally:

• From the Worst Attempt At A Bogus Lawsuit Department, see QuizLaw;
• Scott Greenfield on how he fended off a punch in the nose and it impacted a client's life; and the issue of cameras in the courtroom;
  
• Blawg Review #122 presented by David Gulbransen as a syllabus;

Enjoy the weekend.


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

Labels: Personal Injury Law Round-Up

This isn't New York personal injury law, but interesting enough to note:

1. Mike Leavitt, Secretary of Health and Human Services in the Bush administration, has become the first Cabinet-level official to blog.

2. The country's first blogging coroner? (via Dr. Wes)

3. A fake law blog from the producers of the law show Damages with Glenn Close (via WSJ Law Blog), perhaps stealing a page from the Fake Steve Jobs. But if they really want to do it right, they would remove the references to the TV show that exist in the header, interact with the blawgosphere with outgoing links, and mingle real-world law and current events with their fictional show. Now that would be worth reading.

Labels: Blogging

Model Naomi Campbell lost her bid to have a New York personal injury suit against her tossed out. The allegations of physical and psychological abuse were brought by her maid.

The motion to dismiss was brought before an answer was submitted so, for the purposes of the motion, the claims set forth in the complaint were accepted as true. Only the contract claim was tossed out, for lack of specificity, but the claims for intentional infliction of emotional distress, false imprisonment and punitive damaged were not.

The New York Post reported the story here today.

I've procured a copy of the decision: Gibson-V-Campbell.pdf

Update: AP story here.

Labels: Interesting Cases in the News, Personal Injury

You can't have it both ways. So says a New York judge in ruling that an undocumented alien can sue after an accident left him paralyzed, according to a New York Daily News story. If you want them on the work site because they are cheap labor, then a duty is owed to the worker to follow appropriate safety practices.

The plaintiff had previously been accorded summary judgment in this decision:
GomezSJ.pdf.

Related story: Court Nominee Withdraws Over Illegal Alien Claim (ABAJournal)

Labels: Labor Law, Personal Injury

When pigs fly, I hear you say.

Would the oldest legal blog in America -- dedicated to documenting the high cost of our legal system and, perhaps, savoring some of the outrageousness that exists (Pants Pearson, anyone?) for the anecdotal benefits -- actually add a dyed-in-the-wool, 100% personal injury attorney to their blogroll? An individual that takes tort "reformers" to task every so often? One who is a guest contributor at Overlawyered's arch nemesis, TortDeform? Well, yes. They would.

Has Overlawyered gone soft? Have they fallen under the spell of Judge Robert Bork's new found convictions?

For reasons known only to those within the super-secret confines of the conservative Manhattan Institute (and senior fellow Walter Olson) that runs the site, they have added this trial lawyer (cough, cough, spit, spit) to their blogroll -- apparently the only plaintiff's PI attorney to appear there. And the blogger they added is still a rookie. Will Olson have to turn in his secret decoder ring for this? Will that trial lawyer guy be ostracized and banished from the PI Secret Society and have to turn in his own secret decoder ring?

Stay tuned. It seems that pigs can sprout wings.
--------------------------------------------------------------------------------

I don't get around to updating my blogroll too often, but I think it's time to add a few:

• Overlawyered -- Just for fun, I'll place this entry right between TortDeform and The Tortellini. Excuse me while I grunt and flap my own new wings;
  
• Kevin, M.D. -- While Dr. Kevin Pho also has a position contrary to mine on some issues, he is a magnificent resource of stories and opinions from the field of medicine;
• Deliberations -- Anne Reed's terrific blog on everything related to juries. Also a rookie;
• Above the Law -- David Lat's legal tabloid...need I really say more?
  
• TortsProf -- Brought to you by Prof. Bill Childs from Western New England School of Law, who does a great job rooting out tort cases from everywhere the sun shines, and some places it doesn't.
  

Labels: Blogging

Medicare's decision to withhold payment to hospitals when they commit certain acts of medical malpractice raises interesting legal issues. That decision, which I briefly mentioned in Round-Up # 24, has Medicare refusing to pay hospitals to fix preventable errors they cause. With this comes the hope of better care as malpractice continues to increase in some hospitals. This includes not only such res ipsa loquitor subjects as retained surgical equipment and wrong site surgery, but also severe bed sores and certain items that could be subject to debate.

According to the Medicare press release, the policy will apply for "never events" -- errors in medical care that are clearly identifiable, preventable, and serious in their consequences for patients, and that indicate a real problem in the safety and credibility of a health care facility. Since the Institute of Medicine found in 1999 that up to 98,000 people die from medical errors each year, this is clearly an extraordinary problem.

For instance, from the list of "Never Events" is this:

Intraoperative or immediately post-operative death in a normal health patient (defined as a Class 1 patient for purposes of the American Society of Anesthesiologists patient safety initiative.

Now if that case came into my office it would be vigorously defended by the hospital. (Never mind if the defense has merit.) But it also raises an issue: What will be the forum to defend against Medicare's decision?

Here is another from the press release:

Patient death or serious disability associated with a medication error (e.g., error involving the wrong drug, wrong dose, wrong patient, wrong time, wrong rate, wrong preparation, or wrong route of administration

While some medication errors are clear, they are nonetheless staunchly defended. There is no shortage of doctor-experts to come to the aid of their fellow physicians when accused of malpractice. And many dosage questions may not be so clear cut if the "wrong" dosage that was given was the same one that was prescribed. The defense to the "wrong" drug being given is that the doctor did it on purpose, thus making it a judgment call. (Medicare will need to clarify what it means by "wrong.")

All this raises a bunch of questions:

How will Medicare implement the policy? If they sweep too broadly into absolutism, they will need a quasi-judicial forum to resolve the issues.

What will be the effect of a Medicare decision not to provide payment have on a court in a malpractice case?

What will happen to the patient when the hospital isn't being paid? Will the patient suddenly become such a low priority for treatment that they get worse? Or die?

This story came out as I was returning from vacation, and others have already spoken on the subject. For more opinions:

• Big News on Medicare (Day on Torts)
• Medicare Won't Pay for Certain Preventable Procedures (Kentucky Law Review)
• Preventing medical errors: an official incentive (Health Counter-Spin, via Paul Levy)
• More on the New Medicare Payment Rules (Health Care for All)
• Medical Errors and Medicare (The Physician Exectutive)
• Medicare Will Not Pary for Hospital Errors (medinnovationblog)
• Medicare Wises Up (Socialized Medicine)
  

Labels: Personal Injury

Wachtell Lipton may be saying one thing about its advertising and marketing while doing the opposite.

Dave Hoffman at Concurring Opinions today did a search of law firms that edit their Wikipedia pages in order to burnish their image. Wachtell, despite a prior disavowal of any marketing or advertising activities, apparently made 168 Wikipedia edits that included their own page as well as those of Cravath and Kramer Levin, according to Hoffman.

It is the law firm related edits that bring up the issue of duplicity. Because Wachtell already told the New York Times earlier this year that it didn't engage in marekting or advertising. From a story on March 2nd on New York's new attorney advertising rules:

Another big law firm, Wachtell Lipton Rosen & Katz -- did nothing immediately after the new advertising rules went into effect on Feb. 1. After the firm was contacted by a reporter, it put up a disclaimer.

"I did that in an overabundance of caution," said Meyer G. Koplow, Wachtell's executive partner. "Somebody was obviously asking questions."

Mr. Koplow said that the firm views its site only as a tool in recruiting law students.

"You're not going to see highlights of our flashy cases," he said. "This is a law firm that has no marketing department, no marketing director and does not engage in advertising activities."

If they are not going to show "highlights of their flashy cases" then why was I so quickly able to find this edit (I stopped looking after finding one, there may well be others) touting the firm from edit #72441900 (addition in red):

The firm is also known for its skill in business litigation. It has handled many of the precedent-setting Delaware corporate governance cases.

It seems to me that if the firm wasn't interested in touting their "flashy cases" they would have let others do the writing.

No marketing or advertising? Leaving aside the existence of a web site, doesn't editing your profile on Wikipedia to improve your image qualify as marketing? It seems like a reasonable question to ask since such conduct would be the type of thing one might expect from a marketing department.

Labels: Odds and Ends

One of my pet peeves is the demand for damages that often gets placed in personal injury suits. Sometimes those claims for a bazillion dollars end up in the paper. Which is to say, they make the attorney (and the bar as a whole) look stupid and greedy. The folks at Overlawyered and other tort "reform" sites love that kind of stuff.

Except that the ad damnum clause -- as it is still known to latin-loving lawyers who want to look smart in front of others -- is usually all-but-meaningless. The claims are often put in because the lawyer has no choice, since putting a number in may be statutorily required (though putting a stupid number in is not). The basic problem in determining what the demand will be is that, quite often, it is unknown how extensive the injuries will be when the complaint is drafted. So an attorney, scared of putting in a number too low and being bound by it if the injuries turn out worse than currently known, puts in a whopper of a number to be safe. Making a $100,000 demand on a case that turns out to be worth $300,000 could lead to big problems depending on where you are.

Back in the 80s, New York did away with this foolishness in medical malpractice cases, because the doctors' lobby thought the big numbers in the complaints were outrageous. Big numbers made big headlines. When the case settled for less, or was resolved on some "normal" terms, it certainly wasn't newsworthy. The medical community was right to want this demand removed from the filings.

Then New York expanded the rule to all personal injury cases in 2003. Thankfully, we were no longer required to create some number to put in the papers.

But there was one catch. If you sued the State of New York in the Court of Claims, you were required to make that damages demand. And a case was dismissed this year for failing to do so. New York clearly needed to get its act together on this.

As of last week, that problem no longer exists as it has been legislated out of existence.

Other states that still require such a speculative demand at the outset of a suit should likewise send this rule to the trash heap. It is unfair to a plaintiff that is forced to create it and likewise unfair to a defendant that must endure it.

Labels: Personal Injury

The New York Times is expected to announce tomorrow the start of a health blog, according to Gawker.com (via Kevin, M.D.). The writer will be Wall Street Journal columnist Tara Parker-Pope.

If the Times is expanding its blog menu into such a heavy-duty area, and you can find a list existing Times blogs of them here, then I have to believe that law will soon follow. That's not based on any inside information (though I will gladly accept tips on that subject), but on a basic gut feeling given the prominence the Times gives to law news and the current lack of such an offering.

Labels: Blogging

For those who want yet more on the saga of Flea, the pediatrician who was live-blogging his own medical malpractice trial under his pseudonym until he was outed on the witness stand by plaintiff's counsel, the American Medical Association's American Medical News has an article, Internet won't protect your secret identity. It includes an interview I did with them last month.

Labels: Flea Medical Malpractice Case

I think it's safe to say this has nothing to do with New York personal injury law....

(Photo credit: Niece Julie)

Labels: Odds and Ends

I wasn't going to blog anything this week from vacation, but my nephew Max but this together with me and one of my kids, so it gives me a chance to experiment with video. Sort of.

Labels: Odds and Ends

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

Consider this the dog days of August edition, part 1:

Starting with the tort "reform" movement, a bill is proposed in Congress to ban mandatory arbitration agreements entered into before a dispute arises (ABAJournal);

John Day is contacted by a Tennessee Supreme Court judge regarding his posting on the effects of bankruptcy on a personal injury case. I wonder if the judge found Day in the maternity ward?

The collapse of a bridge in Minneapolis may have claims up to $1B, according to Robert Ambrogi at Law.com.

Ambrogi also points out, in the attorneys-acting-badly department, the ambulance chasing going on. This is the same type of conduct that occurred in New York after the 2003 Staten Island Ferry disaster that killed 10 -- newspaper ads being submitted before the injured and dead were all taken from the scene -- that led to new rules on attorney advertising and solicitation, including a 30-day prohibition on certain conduct. More by Mark Cohen at the Minnesota Lawyer Blog.

In addition, New Jersey has chalked up its first convictions for using "runners" to find clients according to Maria Vogel-Short and his former firm, the winners being Irwin Seligsohn and his firm Seligsohn, Goldberger & Shinrod (New Jersey Law Journal via Law.com). This comes fresh on the heals of last week's action by the Manhattan District Attorney on the same subject; and three Kentucky Fen-Phen lawyers being forced to cough up $42M (plus interest) in legal fees to former clients. Kentucky blawgers Hans Poppe and the Kentucky Law Review have that story;

And lest you think lawyers-acting-badly is confined to just personal injury counsel: San Diego federal Judge Rudi Brewster accused Qualcomm and its trial counsel of committing "gross litigation misconduct" by withholding crucial evidence in Qualcomm's patent infringement case against Broadcom Corp. (Jessie Seyfer for The Recorder, via Law.com);

The Big Dig tunnel collapse has resulted in a charge of involuntary manslaughter against a New York epoxy manufacturer. Whether this is just the first, or the last, remains to be seen. Ted Frank of Overlawyered tells us why prosecuting the company is really just a plot to carry water for trial lawyers;

If you get cancer from a kidney transplant, is it malpractice or simple negligence? Thomas Swartz at New York Legal Update lets us know what one of our appellate courts said, and why it was important;

And in other transplant-legal news, Jacob Goldstein reports that a California transplant physician has been accused of hastening death in order to harvest the organs (WSJ Healthblog);

Tom Lamb tackles the latest research paper on the risks of Avandia, at Drug Injury Watch;

Bill Childs notes at TortsProf that not only is the Consumer Product Safety Commission investigating toys, but that attorneys have taken notice;

Doctors and medical malpractice practitioners take note: Theo Francis at the WSJ Health Blog reports that Medicare, recognizing that hospitals actually profit from malpractice because of the need for continued treatment, will stop paying bills to remedy their flubs;

Some matters in litigation...

In tobacco litigation, the daughter and husband of a woman who died of lung cancer can proceed with their lawsuit against Philip Morris and other tobacco companies under a design-defect theory and can seek punitive damages in New York state court (New York Law Journal via Law.com);

In New York the steam pipe blast in NYC has resulted in litigation and yesterday, a temporary restraining order was signed to prevent Con Ed from destroying evidence;

In the popcorn lawsuit department (you didn't know we had one?) 44 more plaintiffs have filed suit claiming they were suffered lung disease from popcorn flavoring, as per Tort Burger, Hold the Reform [Edit: much more at The Pump Handle, via TortsProf];

Mary Whisner points to an article on whether summary judgment is unconstitutional;

In the jury deliberation department, Sam Yospe at Concurring Opinions discusses blogging jurors. (Edit: I wonder if Brad Pitt blogged his jury duty? If so, QuizLaw might have something in common with him);

When the case is over, will you get paid for your time? Check out this ABAJournal horror story on a contingent fee, involving a cut from 20% to 4% in a case with 35,000 clients and $22M in charged costs;

And finally for the lazy, summer weekend, a mixed bag of law and medicine:

• Medical blogger Dr. Hsien-Hsien Lei takes Grand Rounds to his beach house;
• Dr. Wes describes what happens when a fly enters a no-fly zone after the incision is made;
  
• Professor Kingsfield steps out of the celluloid to present Blawg Review #120;
• The Workers' Comp Insider hosts the Health Wonk Review;
• And lastly, in the children's department: Dinosaur Musings points to the lyrics of Tom Chapin (brother of Harry) reflecting on No Child Left Behind, and courtesy of Kevin, M.D., this x-ray shows why you teach your children to carry pencils point down, with the point in their hand.

Enjoy the weekend.

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

Labels: Personal Injury Law Round-Up

That violent thunderstorm that knocked New York's subways and trains out yesterday was confirmed as a tornado that touched down in Brooklyn and Staten Island. This is the first such tornado in Brooklyn since records started being kept this century, giving the Coney Island Cyclone some new bragging rights. Prior to official record keeping, one was reported in Brooklyn the late 1800s.

Amazingly, no one was killed.

Right in Bay Ridge - Tracks the twister
New York Daily News: Brooklyn Becomes Tornado Alley
Newsday: A Brooklyn Tornado Is A Rarity
New York Times: Chronicling a Day of Chaos

Labels: Odds and Ends

Two people in a red tow truck at the center of the massive New York steam pipe explosion on July 18th have filed suit, according to newspaper reports. Both were badly burned as they jumped to safety from the truck through the steam. At least two other suits have been filed, one of which I discussed here.

The explosion near Grand Central station, right near my office, resulted in frozen streets and businesses in addition to one death and numerous injuries. The intersection at Lexington and 41st street is still closed, and barriers, trucks and temporary piping still fill the streets.

The news of the lawsuits, not exactly unexpected, came the same day that Con Ed officials appeared before the City Council and failed to explain how and why the explosion occurred.

Labels: Con Ed Explosion, Personal Injury

Brooklyn Law School Professor Aaron Twerski will be honored by the American Bar Association on Sunday with the 2007 Robert B. McKay Law Professor Award.

According to the Brooklyn Daily Eagle (via TortsProf) the award "recognizes law professors who are committed to the advancement of justice, scholarship and the legal profession in the fields of tort and insurance law." Prior recipients of the award included Judge Richard A. Posner, and the late Charles Alan Wright.

According to the article:

"Twerski, an authority in the areas of product liability and tort law, has contributed to the fields through his service as both a scholar and a teacher. He has published dozens of law review articles as well as books on torts and product liability law. He was named the R. Ammi Cutter Reporter for his outstanding work as co-reporter for the American Law Institute’s Restatement of the Law (Third) Torts: Products Liability, published in 1998. His most recent articles were published in the Yale Law Journal, Cornell Law Review and the Georgetown Law Journal. He is co-author of the leading textbook, Products Liability: Problems and Process as well as Torts, Cases and Materials, with Cornell Law School professor James A. Henderson Jr."

But he doesn't blog.

Labels: Odds and Ends

A New York Town Court justice was removed yesterday from his position for an anti-Semitic remark and making a travesty of a land dispute for being biased against one of the sides, who was related to him.

In a decision dated July 24, but released yesterday, the New York State Commission on Judicial Conduct removed Jerome Ellis, a Justice of the Leon Town Court, Cattaraugus County, for his comments during a dispute involving a property dispute. According to the findings of the court referee, Ellis stated that one of the parties should "stop jewing other landlords." Ellis -- who has been a justice since 1990 but is not an attorney -- testified in the Commission proceeding that the term "jewing" is "a slang word to me for swindling or cheating people out of money or not paying your bill, just out and out stealing."

My only editorial comment: Goodbye and good riddance.

See also: NY Judge Faces Removal From Bench Over Anti-Semitic Slurs From Bench (NY Lawyer)

It wasn't always this way. Automatic exemptions from jury duty in New York went to many different professions , including attorneys, doctors, and cops. Until it changed in 1995. Mayor Rudy Giuliani famously sat jury duty in 1999 (and was picked for a civil case). Chief Judge Kaye was not-so-famously called the same year (and was not picked). I was called (and picked in a criminal case), in 1997. Celebrity jurors are routine.

Now it is Mayor Mike Bloomberg's turn, as the New York Times reports. He showed up yesterday, in the same historic Manhattan Court that I tried my first case and a few others. He showed up in room 452. He waited. He was dismissed at the end of the day, unchosen. Today, he is there again.

According to the Daily News:

"I'd be one voice out of six, but I have a strong personality," Bloomberg said. "You'd have to ask the other jurors what they'd think."

And the question every trial attorney asks: Would you keep Hizzoner or bounce him?

Update: Mayor Bloomberg was dismissed today after serving two days. He was not selected.

Labels: Inside The Jury Room

Does Rhode Island Hospital have a problem? For the third time in six years (and the second time this year) a surgeon has operated on the wrong part of the brain, the Insurance Journal reports.

The latest act of medical malpractice occurred on an 86 year-old man who was bleeding between the brain and skull, but the surgeon operated on the wrong side. (It was not the same surgeon as the other patients.)

As a result, the state's Health Department has required the hospital to hire an independent consultant to review its neurosurgery practices and to have a second physician double-check surgery plans.

According to Dr. Peter Angood of the Joint Commission on Accreditation, wrong site surgery is "a persistent problem in American healthcare," despite years of efforts to combat it. "No patient wants to have the wrong procedure, and we need to do whatever we can to prevent that."

Rhode Island Hospital, by the way, is the larges in the state and affiliated with prestigious Brown University. One would think a place like that would have some pretty well-oiled procedures to make sure such mistakes do not occur.

So why, then, does it continue to occur?

See also: Wrong-site surgery case leads to probe (Boston Globe)

Labels: Medical Malpractice

This has nothing to do with New York personal injury law, but I like mysteries. And one legal mystery may have been solved.

Some folks had heard radio ads calling for clients disgruntled with Hogan and Hartson to call a number to complain (See Above the Law and Overlawyered), particularly if clients felt that a junior associate had handled a case where a partner had been retained.

Now, according to New York Lawyer (free sub.), Hogan's chairman, J. Warren Gorrell Jr., has stated:

"This is a fee dispute with a former client. They're causing an unusual level of harassment to make their case. But if there were much of a case, I think they would have gone a different route."

The name of the unhappy mystery client, that apparently thinks he was over billed, remains unknown to the public.

Labels: Odds and Ends

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

Before starting, however, thanks to Tom Mighell at Inter Alia for making my tiny corner of the web the Blawg of the Day on Monday. That was a nice way to start the week.

Now on to some pre-litigation issues:

Starting with tort "reform" we get this heads-up from Perlmutter & Schuelke on a not-yet-published study from Baylor Law School surveying Texas judges, and their thoughts on whether juries were too liberal with awards. Here's a hint at what the article will show: Well over 80% of the judges did not think there needed to be additional "reform" to address frivolous lawsuits;

An anesthesiologist has blown the whistle in Florida on unnecessary surgeries on Medicare patients. More at the Labovick firm's Whistleblower Law Blog;

At Dorf on Law, Michael Dorf returns to the issue of contingent fee relationships between government and private counsel, specifically responding to a Walter Olsen piece printed in the Wall Street Journal; (and a subject I addressed in May, in a less academic fashion, at Bush Prohibits Contingency Fees for Gov't Attorneys, with many links by Beck/Herrmann here);

Dora the Explorer and other Fisher-Price toys face a recall for lead paint, just six weeks after Thomas the Train underwent the same fate (Round-Up #17). In recent weeks we've also seen tainted food products, toothpaste and pet food. Want to guess what country they were all imported from? (More at ConsumerReports and The Peon).

In North Carolina a man gets the crap beat out of him (that's a technical term) by the local police for desecrating the American flag by flying it upside down with a picture of President Bush and anti-war slogans. The police, it seems, were trying to protect the flag and all that it stands for by shredding the First Amendment. QuizLaw has the gory details. It's not a lawsuit. Yet.

And John Day discusses the liability issues of the Minneapolis bridge collapse and the immunity issues that exist if such an event happened in his state;

And now on to litigation, including a few that didn't make it too far...

A federal judge in New York barred a punitive damage claim in a smoker's suit against Philip Morris, based on New York's participation in a 1998 settlement with 46 states. Previously, a Florida judge had reached an opposite conclusion. The court also rejected a design-defect claim that had been the source of a $20M state court verdict in another case (New York Law Journal via Law.com);

John Day discusses a case being dismissed because the plaintiff had filed for bankruptcy and had failed to disclose that when filing the bankruptcy claim. Since the personal injury claim would belong to the trustee, the injured person was not a proper party. Only the trustee could assert the claim. And since many personal injury victims fall into hard times as a result of the accident, every personal injury attorney should make question, "Have you ever filed for bankruptcy?" part of every intake questionnaire;

The family of St. Louis pitcher Josh Hancock, who came under withering scorn for having brought a wrongful death lawsuit after he was killed when he crashed into a stopped tow truck, while drunk and talking on his cell phone (Round-Up #14), has voluntarily discontinued the case. The explanation is furnished by Sheila Scheuerman at TortsProf;

Roy "Pants" Pearson has now lost more than his $54M trousers. He's lost his job (Washington Post). Let me be the first to predict he will bring a lawsuit as a result;

Suit has been filed in a Florida federal court regarding the July 17th plane crash on a Brazilian runway that killed 199 people (ABAJournal);

The WSJ Law Blog has more on the $101M wrongful conviction bench-trial verdict out of Boston, with an interview with plaintiff's counsel, Juliane Balliro;

Every trial lawyer wonders what the jury is thinking. This juror was doodling during trial. Anne Reed at Deliberations tells us what happened as a result;

In the Uncategorized category, some bloggers aren't happy with each other: Ogan Gurel of Life Sciences Daily lets go with his opinions on the nasty ad hominum attacks that permutate the DrugWonks blog, by using a statistical analysis (via TortsProf). Personally, I find the DrugWonks style so off-putting I often don't get past the openings, as the attacks cloud the issues. Perhaps they have some good material in there, but it takes work to find it; And Scott Greenfield lets rip against William McGeveran at Concurring Opinions for wasting so much time in the fantasy world instead of the real one, with: Harry Potter and Legal Scholarship. Give Me A Break!


As you head home for the weekend, you might find the round-ups of others of some interest:

• David Williams hosted Grand Rounds, a round-up of medical blogs at Health Business Blog (that includes a post from me);
• David Lat at Above the Law hosted Blawg Review (that includes a different post from me);
• Jason Shafrin at The Healthcare Economist hosted Cavalcade of Risk, a round-up of insurance related issues (that includes yet two other post from me);
• And Howard Zimmerle of Quad Cities Injury Lawyers points us to The Law of the Simpsons (that, thankfully, does not include anything from me).
  

Enjoy the weekend.

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

Labels: Personal Injury Law Round-Up

We've seen a doctor live-blogging his malpractice case with Flea. We've seen the Charlie Weis malpractice case live-blogged.

Now we see attorneys apparently using YouTube to influence the jury, by downloading segments of depositions and surveillance video to the popular video-sharing website. (This doctor has 122 malpractice cases pending against him, which I had mentioned in Personal Injury Round-Up #21)

According to this AP story (via Kevin, M.D.):

The three-minute video features outtakes from the pretrial testimony, or depositions, of six people suing [former West Virginia doctor] John A. King. Five of the snippets are followed by surveillance-style video or photos that purport to contradict those persons' claims.
...

The defendants had apparently shared the footage with a public relations firm. The plaintiffs had also posted information about the case online. [Judge] Spaulding barred both sides from releasing anything further to the media.

"I decided that both sides were trying potentially to influence the public before we went to trial," Spaulding said Wednesday.

What next? A live-blogging judge?

Labels: Interesting Cases in the News

A Manhattan District Attorney investigation into ambulance chasing has yielded its 11th attorney conviction. The probe, ongoing since 1999, involves a "runner" bribing hospital officials for the names of patients and then selling them to corrupt attorneys for $500, according to this New York Law Journal article.

The attorneys who bought the names have been convicted of a felony for filing a false statement, and disbarred. The filed document is a "Retainer Statement" that New York personal injury attorneys must furnish to the Office of Court Administration that sets forth the terms of the contingency arrangement, and also mandates that the attorney set forth how the law firm was found by the client. A subsequent filing must be made at the end of representation detailing exactly what happened to the proceeds (if any) of a matter taken on contingency.

My opinion:
I am of mixed feelings on seeing this. On the one hand, it is a continuing embarrassment to the profession to see this conduct happen. The image of all attorneys, and those who practice personal injury law in particular, are further smeared leaving a sour taste in the mouths of the public.

On the other hand, and far more importantly, I know this crap happens and I want it stopped. I have heard it through the grapevine as new clients reported on how they were approached by others after being hospitalized. It is utterly infuriating, and I am pleased that the Manhattan District Attorney is working on the issue. I have often quietly hoped (and today, not so quietly) that District Attorneys in the Bronx, Brooklyn, Queens and Staten Island would follow suit, not only investigating based on tips they receive, but even running sting operations.

Seven other now-convicted New York attorneys were listed in the article for using the runner (Jean Phillipe Landi) named in the article:

• David Sheeger (Kafko, Schnitzer & Sheeger);
• Scott Sessler (Sessler & Chilewich);
• Daniel Chilewich (Sessler & Chilewich);
Anthony Ferrandino (Dicker & Ferrandino);
• Lawrence Dicker (Dicker & Ferrandino);
• Lloyd Berns (Berns & Castro);
• Eugene Castro (Berns & Castro); and
  
• Olga Sorkin.

In addition, two other attorneys uncovered in this probe had previously been convicted of stealing from clients, Michael Mann and Joshua Just (Mann & Just). The conviction was based on charging clients for expenses such as medical reports that had never been incurred. I had previously covered that here: Two Personal Injury Lawyers Sentenced in Billing Scam.

Addendum:

• I broached the topic of runners last November in one of my first posts, on how to pick a personal injury attorney.)
• The New York State Trial Lawyers Association, in discussing the new attorney advertising rules, made this strong comment last October regarding runners:
  

We strongly urge not only enforcement, but also outreach by the disciplinary committees to [the Office of Court Administration] itself and/or other State agencies for the resources needed to address what may be the most extraordinarily offensive variety of client solicitation. They must undertake the investigative efforts necessary to identify and prosecute those attorneys and hospital employees who are responsible for inserting "runners" into hospitals to solicit clients at their bedsides. Currently, the "don't ask, don't tell" approach effectively encourages wrongdoers. Our membership believes that hospitals are in a unique position to stop this practice and that it is in the best interests of their patients to do so.

Labels: Attorney Ethics

The appeal was argued in June 2000. The decision came down last week. Let the bar take notice.

The case was one of employment discrimination. There were no exceptional or unusual points of law.

It comes from the District of Columbia Court of Appeals. The decision is here: SevenYearOpinion.PDF

A footnote on page 24 says:

The court sincerely regrets the unusual delay in issuing this opinion.

Has the court set a record for judicial delinquency?

(hat tip: Ben Glass)

Labels: Judiciary