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

A mixed bag of stuff this week, all of it interesting...

A big front page article in the New York Times on Sunday is one I wanted to blog, but didn't get the time for: At Many Homes, More Profit and Less Nursing. It seems that Wall Street has been scooping up nursing homes, cutting medical care to the bone, and reaping the profits. And the patients? A predictable result of injury, death and lawsuits. But hey, they got those profits! Some commentary here: Lara Pettiss Harrill, Angry Bear, NewsInferno, The Consumerist, Financial Armegeddon;

The New York Post has a column on New York's medical malpractice insurance problems (via Kevin, M.D.), but it's too bad the Post didn't first find out what the real cause of the problem is, as I posted in Why New York Medical Malpractice Insurance Jumped 14%;

A million baby cribs have been recalled after three deaths, and Perlmutter and Schuelke want to know whether the recall came about due to the deaths, or due to the impending publicity:

The London Sunday Times peeks behind the scenes at a drug counterfeiting operation in, where else, China, as per Adam Fein at Drug Channels;

Do doctors now need to take a personality test to obtain medical malpractice insurance (The Medical Quack)?

Ben Glass relates from northern Virginia, that a politician has figured out a way to blame trial lawyers for the massacre at Virginia Tech. I kid you not, check out the post;

Ron Miller reports on the Maryland medical malpractice "crisis" that wasn't, and asks if it now time to roll back the "reforms" now that the cooked books have been opened up;

As those that follow drug cases know, the FDA tried in 2006, without congressional approval, to simply claim that their federal regulations regarding drug approval trump state law. This would result, if upheld, in stopping state action in "failure to warn" lawsuits. This federal power grab, by an administration that tries to call itself "conservative," has been hotly disputed, especially since Congress declined to go along. Beck/Herrmann has a scorecard of drug preemption rulings to date on the subject. They also have a medical device preemption scorecard. And for those whose eyes glaze over at the concept of federal preemption for drugs or devices, they also provide a primer on the subject that will get you up to speed.

But...are the primer and drug scorecard outdated already? Ron Miller reports on legislation signed this week that makes clear that regardless of FDA approval, the duty to warn remains with the pharmaceutical companies to adequately provide a meaningful warning about the risks associated with the use of their product. A copy of the bill and the comments of legislators on the subject can be found at People Over Profits;

Are you having trouble with a hip or knee implant? The New Jersey Law Journal reports today on a $311M settlement of kickback charges against four manufacturers as they wooed doctors to use their products;

Consumer Law and Policy blog has a piece on anti-plaintiff bias in the Texas Supreme Court:

TortsProf reminds us of a classic res ipsa case...a toe found in chewing tobacco. I'll be using that cite in the coming weeks in an appeal I am now working on;

Kevin M.D. points to a Newsweek article about spotting medical mistakes and saving lives;

Are laws suits all "about the money" as some like to claim? Apparently not, as this hospital apologized to the parents of a patient that died via a video, and posted it on the web. This facilitated the settlement (via Overlawyered);

A follow-up to the Charlie Weiss medical malpractice story: Kevin M.D. had linked to an article in the Massachusetts Medical Report on what's its like from a doctor's perspective to have a malpractice trial. But in the same issue I also found a front page story on the post-game analysis of the defense verdict in the Weis med-mal trial, so the link is good for two stories;

We're used to seeing punitive damage awards decreased, but here a judge has increased them with respect to a telephone lineman being left a paraplegic after an accident (TortsProf Bill Childs);

If you took the case on contingency, you only get paid at the end. But paid how? From WSJ commentary, a problem of attorneys double-dipping on the legal fee, getting paid once from the client and a second time from the adversary (via How Appealing.

And finally for the weekend:

• The Kansas City Star has a story on the lawyer who fought Jesse James in court. And won (via How Appealing);
• A tip from Susan Cartier Liebel on furnishing your office for free;
• All kinds of risky behavior is blogged about at Cavalcade of Risk #35;
  
• George Bush celebrates February 30th (Legal Antics);
• And a double-amputee police officer returns to the force with bionic legs.

Enjoy the weekend, and pray for the Mets.

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

Labels: Personal Injury Law Round-Up

This deserves a bit more publicity: The First Annual Golden Gobbledygook Award, presented by The Party of the First Part.

Everything you hate about the way (some) lawyers write, and more.

Cryptic and pretentious legal writing, I think I can safely say, is devoid of plaintiff/defendant or conservative/liberal biases. It just sucks. Why anyone would want their reader to work hard to understand something is beyond me.

If I were to give one piece of advice to a legal writer it would be this: Assume the document will be read by someone sitting on a train, plane or perhaps a beach. Which Justice John Paul Stevens revealed he has done. Perhaps it will be read inside some ornate chamber by an individual with all the time in the world to parse the run-on sentences and ancient Latin phrases. But don't count on it.

Labels: Odds and Ends

It started in Brooklyn with an angry Civil Court Judge Margarita Lopez Torres trying to get on the ballot for a Supreme Court slot. And it goes next week to the U.S. Supreme Court.

Judge Lopez Torres merely wanted to move up from a lower court (Civil Court) to Supreme Court (New York's trial court of general jurisdiction). The problem? She couldn't get on the ballot because the nominations for these elected offices were ordained by political bosses at party conventions, and not the electorate via a primary.

And why couldn't she get the nomination from the party bosses to get on the ballot? Because, she contends, the bosses that do the picking wanted to use her staff a dumping ground for unqualified patronage.

So she, and nine others, sued in United States District Court, claiming that the voters were deprived of their civil rights by being disenfranchised by New York's archaic judicial selection practice.

After a 14-day hearing, Judge John Gleeson in the Eastern District of New York (covering Brooklyn, among other local parts) found that Judge Lopez Torres:

"demonstrated . . . that indisputable qualifications for the job and immense popularity among the candidate's fellow party members are neither necessary nor sufficient to get the party's nomination. Something different is required: the imprimatur of the party leadership."

She has now won twice, in U.S. District Court and the Second Circuit Court of Appeals, and oral argument in the U.S. Supreme Court will be heard next Wednesday.

The case centers on this provision of New York's constitution:

the justice of the supreme court shall be chosen by the electors of the judicial district in which they are to serve.

Judge Lopez Torres says that this means the electorate must chose, for to allow the party bosses to make the picks is to leave power in the hands of the entrenched interests.

The party bosses, on the other hand, claim that this can be accomplished either by primary or party convention, as the legislature has prescribed. This is the position of both the Democratic and Republican machines, as well as the Association of Supreme Court Justices.

There are 33 states that election judges. Only one does not allow for primaries to pick them. New York.

Stay tuned...

Other links:

• Brennan Center for Justice at NYU School of Law (counsel for Lopez Torres, with links and documents)
• New York Judicial Conventions: A Failure of Transparency (American Constitution Society Blog);
  
• Supreme Court Docket for the case;
• The questions presented;
• Supreme Court Will Review the Way New York Selects Judicial Candidates (New York Times Linda Greenhouse, 3/21/07)
  

Labels: Judiciary

The story broke yesterday in the local press about the threatening letter that Clinton's attorney had sent to the owner of Osso Buco about Chelsea's picture in the window. Being a local legal story, albeit a type I don't usually cover, I blogged it. The letter contained the demand it being taken down, with this "or else" threat: "We reserve the right to exercise any and all options available to us if you refuse to comply."

I had referred to the letter writer as an attorney, since that was the way the New York Post had referred to Douglas Band, who had signed it. (The Post again refers to Band as an attorney today.)

A copy of the letter is at The Smoking Gun, and with it, Band's signature as "Counselor to President Clinton."

The story has now been picked up by many other bloggers (Above The Law, Volokh, Althouse).

It turns out that Douglas Band is not an attorney, or at least not one in the State of New York. I checked both the Office of Court Administration web site and, in case that was in error, the "red book" (New York Lawyers Diary and Manual -- Bar Directory of the State of New York) that sits on my bookshelf.

It turns out Band was a former White House intern and Bill Clinton's longtime personal assistant, according to New York Magazine.

Whether the letter was meant to be deliberately misleading, coming from a "counselor" with its implied threat of litigation, or was just inadvertently misleading, I will leave to the reader to decide.

"The Letter," by the way, is now in the window of the eatery.


(Eric Turkewitz, on the other hand, is licensed to practice law in New York)

Labels: First Amendment

If a celebrity's photograph with a restaurant owner hangs in the window of the eatery without the individual's permission, is it an unauthorized commercial use of the image? Yes, according to former President Bill Clinton, who has demanded that a photograph of his daughter with the owner, that has been hanging in the window of Osso Buco for five years, be taken down. Clinton's attorney has written on official William Jefferson Clinton letterhead, "We reserve the right to exercise any and all options available to us if you refuse to comply."

The letter goes on to say:

"Ms. Clinton, a private citizen, was not consulted prior to this picture being displayed, and thus, her permission was not given for you to do so. While she may have dined at your restaurant, this does not serve as an endorsement. We ask that you immediately remove that picture and any and all pictures displaying Ms. Clinton."

This type of suit isn't my bailiwick, but so I sure would be interested in knowing what the actual answer is.

I would add, of course, that a simple request from the frequent customer, Chelsea, should have accomplished this goal.

Addendum: Bill Clinton "Counselor" Not A Licensed New York Attorney

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

Labels: First Amendment

The appearance of Iranian President Mahmoud Ahmadinejad at Columbia University was the source of much angst in many quarters. But it was also an important lesson for trial attorneys.

Sometimes, we get witnesses who can't answer a question directly, no matter how straightforward. The witness dodges and weaves and ultimately gives answers that defy credulity.

An example from press reports yesterday, was Ahmadinejad claiming that there were no homosexuals in Iran. Not one.

Sometimes the best way to approach such a witness is not to shut them down, but to let them talk. And talk. And talk. Let the jury see the evasiveness. And when the question isn't answered, simply say, "Perhaps I asked the question poorly, let me try again." Then ask it again the same way. And again.

Hand them all the rope they want to hang themselves.

Labels: Trial Practice

Every personal injury victim that has a case worth taking should have a story worth telling. And there are a million ways to tell it at trial.

The ability to tell that story -- in an engaging manner that keeps the jury interested while you dot the "I"s and cross the "T"s of evidence -- goes to the heart and soul of standing in the well of the courtroom. Those that mechanically travel the linear path from start to end are likely to lose the interest of the jury, and if their interest is lost, so too are your arguments.

When I open, I like to start the story in the middle. It is that particular moment in time, perhaps, when a patient walks into a doctor's office, or a car crosses the double yellow line to the wrong side of the road. It goes to the essence of why you have risen from your chair to address the jury.

And when I say I like to start in the middle of a story, I'm not kidding. I don't waste time thanking the judge, or the jurors for their presence in the courtroom. I don't introduce myself or my client. Chances are, much of that has already been done anyway, but if not, I can get to it later. I need to tell them why they are here. Because they want to know.

You'll never have greater command of the jury's attention than that first 60 seconds of a trial. You can waste it with platitudes the jury doesn't care about, or you can use the time wisely. And so I begin,

"Today we turn the clock back to January 5, 2004. Jane Patient is showing a hard lump in her breast to Dr. Gyno, explaining how she found it while washing herself in the shower, and of her intense anxiety over its appearance. Dr. Gyno, who Jane has trusted for years, examines the lump for a few seconds, and tells Jane not to worry about it."

The jury now knows why they were dragged from their homes or jobs to sit in this courtroom. They know, perhaps intuitively, that Dr. Gyno likely has a different version of events, but that this is the sharp issue of fact that will define the trial. They have also been presented with a moment of anxiety and stress by your client that may be the essence of one of one of your themes -- betrayal of trust. Most importantly, they want to know the details.

From there one can fill in the before and the after, introduce people in the courtroom, witnesses that may appear, and slowly work into the story the various elements. But it is a story you are telling in the trial -- often an emotional, gut-wrenching story that brings the concepts of life and death into sharp focus. This cannot be told in a rote beginning-to-end manner.

Sometimes finding the middle doesn't seem easy. If you were telling your friend about running the NYC Marathon, would you start with your decision to run or the months of training that went into it? Doubtful. The "middle" of such a story may be the moment of greatest anxiety and anticipation: The starting line as you wait for the deep thump of the cannon while looking out across the Verrazano Narrows Bridge, where the great footrace starts.

Telling the narrative can take you into a thousand different directions. There is really no "right" way to do it, other than to stop orating like a lawyer and start talking like a storyteller.

Mark Twain, not a keen fan of attorneys, was a master. On this subject he wrote:

"Narrative is a difficult art; narrative should flow as flows the brook down through the hills and the leafy woodlands, its course changed by every bowlder it comes across and by every grass-clad gravelly spur that projects into its path; its surface broken, but its course not stayed by rocks and gravel on the bottom in the shoal places; a brook that never goes straight for a minute, but goes, and goes briskly, sometimes ungrammatically, and sometimes fetching a horseshoe three-quarters of a mile around, and at the end of the circuit flowing within a yard of the path it traversed an hour before; but always going, and always following at least one law, always loyal to that law, the law of narrative, which has no law. Nothing to do but make the trip; the how of it is not important, so that the trip is made."

(Hat tip to Bryan Garner, Quote of the Day, 4/11/07)

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

Labels: FAQ-Personal Injury, Inside The Well, Trial Practice

Blawg Review #127 is up at Anne Reed's jury-related Deliberations. In what it surely one of the best round-ups of the year, she gives us the "17 Best Tips For Voir Dire."

To get to those tips, she brilliantly analyzes individual law bloggers to see what kind of jurors they, or their subjects, would make.

When they hand out Rookie of the Year honors for 2007, Anne will be a top contender.

Labels: Blogging, Inside The Jury Room

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

The pre-litigation section this week is topped by lawyers, and not their clients, this week...

Miami attorney Louis Robles was headed to his own criminal trial, and MassTorts Prof Howard Erichson explained why no one wanted to try the case. Which is one reason it was then resolved with a plea that includes a 15-year sentence (ABA Journal). Along the same lines, Howard Bashman rounds up posts on the guilty plea of class action king William Lerach; And today co-class-action King Melvyn Weiss was indicted , though Scott Greenfield is wondering where the big crime is;

Less prominent lawyers are also in the bad side of the news: Three New Jersey attorneys have plead guilty to orchestrating false insurance claims (New Jersey Law Journal). As always, the rotten apples in any particular group always make the rest of the group look bad. (On a side note, I wonder if a lawyer wearing scuba gear while filing a complaint might also belong here);

Point of Law points to a series in the San Francisco Examiner on the profession; which Robert Ambrogi at Law.Com Blog calls "blatantly one-sided;"

Ronald Miller discusses the way that insurance companies sometimes race to the door of a negligence victim to get a quick settlement, often offering pennies on the dollar. Does Miller think that's a good idea? Guess first, then read. He also wonders if medical malpractice verdicts are fair to doctors;

No round-up would be complete without something on tort "reform" and this one is no different with Ken Shigley reprinting a critique from his friend Jay Cook of Athens, GA;

It's not a lawsuit yet, but you can bet it will be shortly: The tasering of audience member Andrew Meyer during a speech by John Kerry has lit up the Internet. Why a taser was needed when the guy was already on the ground being held by six cops will no doubt be the subject of endless discussion, which promptly started (Simple Justice, Above the Law, Althouse, Concurring Opinions). Other issues, such as whether he had committed such a grave transgression as to deserve his initial removal and of Senator Kerry's response are also likely to fill a few blog posts going forward. And it will certainly fill the airwaves, at least until the next celebrity arrest or missing blond-haired white girl;

Counterfeit drugs is an issue I cover from time to time. So add to this round-up the busting of a massive counterfeit drug operation in the U.K. (FightTheFakes) as well as more on drug diversion here in the United States, brought to you by The Whistleblower Law Blog and Pharmafraud;

In the Safety Department, Bob Kraft discusses a new radar being used in Texas: It catches tailgaters, not speeders. Hey, bring one to my neck of the woods!

Now on to the actual litigation...

Voir dire in New York is pretty straightforward, and often very fast paced (questioning 30 jurors in 60 minutes will do that). There is little time for shtick. Not so elsewhere as Walter Olson discusses at Overlawyered in the BP explosion case where attorney antics clearly soared over the line of legitimacy;

TortsProf Bill Childs has a particularly interesting wrongful death case against U-Haul (though "interesting" is most likely not the word the bereaved family would use);

In White Plains, New York, a man who served 16 years in prison for a killing he did not commit has brought suit in federal court against the police and medical examiner for fabricating evidence;

From the Department Of The Weird, you would think that a Nebraska State Senator suing the Lord Almighty would take top honors, or perhaps that He (or She) sent a messenger to answer the suit. But you would be wrong. On the Pharm reports that a man woke up during his own autopsy. Oops.

Just because a lawsuit starts doesn't mean you will get to the jury: The family of Rachel Corrie -- the Washington state activist that was killed by a bulldozer in Gaza in 2003 while the Israel Defense Forces were conducting activities -- had their suit against Caterpillar dismissed by the Ninth Circuit Court of Appeals. Mary Whisner at the Washington School of Law explains the basis of the dismissal;

In the Department of Merck: City and State of New York have sued Vioxx maker Merck alleging fraud. Merck is also in the news because a trial is starting in Florida regarding Vioxx (LaBovick Injury Law Blog) and, as Tony Sebok reports from his FindLaw column, the New Jersey Supreme Court decertified a Vioxx class action (part 1 of 2);

I've been following the September 11 suits coming up for trial in New York, and a bunch more just settled. There are 21 cases to go set for trial in the coming weeks;

In the Department of Appeals, a Florida doctor admits he gave false testimony at a trial (via Kevin, M.D.).

And finally, for the weekend:

• Blawg Review #126 is at Small Business Trends;
• John Day has a new book coming out on Tennessee tort law;
• Bruce Kluger and David Slavin planted a microphone in the home of Alberto Gonzalez and caught this conversation with his wife (audio only, office friendly).
  

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

Labels: Personal Injury Law Round-Up

At Overlawyered, Ted Frank writes regarding the sweet plea deal of famed and now disgraced class action lawyer William Lerach:

[N]othing stops plaintiffs' firms from offering small fortunes to Lerach to act as a "non-legal consultant."

This is not accurate. Assuming that Lerach is disbarred for pleading to a felony, any attorney that attempts to employ him, or accept legal advice from him, may themselves run in to trouble. An ethics opinion by the New York City Bar concludes:

It is clearly improper for a lawyer or law firm to employ a disbarred or suspended attorney in any capacity related to the practice of law. What acts constitute the unauthorized practice of law is a question of law for the Appellate Division.

Other states may differ, but it would seem that in New York both Lerach and anyone who tried to employ him in some type of capacity related to the practice of law would find themselves at great risk for additional troubles. I have to assume that if Lerach gives guidance or legal consulting advice to another attorney, that most if not all other states would find that to be the unauthorized practice of law.

And I don't think that simply calling himself a "non-legal consultant" in his area of specialty, as Frank suggests, would hold any water with a court. Because if it walks like a duck and quacks like a duck...

[A Washington Post article on the plea deal is here]


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

Labels: Attorney Ethics

Credit New York Chief Judge Judith Kaye for the idea. Last week the United States Postal Service unveiled, at the New York County Courthouse where I picked my first jury and tried my first case, Jury Duty stamps.

Now it's been a few years since I've used stamps in the office, finally buckling to using the utterly boring Pitney Bowes stamping machine. But mine is a small practice and I get to make the rules, so now the stamps will be coming back for some uses.

I feel pretty strongly about the jury system. After all, other than the draft it is the only time the government asks you to drop what you are doing and check in for mandatory civil service. In New York, everyone is called for jury duty, no exceptions. The idea of empowering a select group of robed politicians to make decisions that affect liberty, or to decide who was right or wrong in a civil dispute, was too much for our nation's founders. Anyone who read about the crying Anna Nicole Smith judge and the very deliberative Scooter Libby jury can appreciate this concept.

So we have not one, but two parts of the Bill of Rights that guarantee those rights: The Sixth Amendment to protect those charged with crimes and the Seventh Amendment to guarantee juries in civil trials:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

And this is important because there is no shortage of big business type folks looking for ways to strip that right away, either by forcing arbitration without jurors, or creating some kind of "health courts" or other devices to let the biased decide matters instead of the unbiased.

Of course, there are always some who want to avoid jury duty at all costs. (No doubt they would feel differently if they were the ones in the middle of it all.) But sticking in my brain is a story of one of the greatest juries of all time: The one that tried William Penn in the 1600s, which I recounted back in February while pulling together some quotes on jury nullification.

Perhaps these stamps, if widely used, will be one tiny way to remind recipients of one of the cornerstones of our country's liberty: Power shall not rest with the few but with the many. And that is what jury duty is all about.

You can buy the stamps here. And attorneys, more so than anyone else, should be using them.


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

Labels: Inside The Jury Room

Late Friday, a federal judge held that the "Graves Amendment" is unconstitutional. The 2005 federal law abolished vicarious liability of long-term automobile lessors (edit: and renters) based solely on ownership. Thus, states such as New York that hold the owners of cars vicariously liable for the negligence of people they permit to drive their cars, saw their state statutes or common law superseded by federal legislation. One defense firm had written when the law was passed that:

This law is sure to change the landscape of motor vehicle accident litigation throughout the United States.

One of the remarkable things about this landmark piece of legislation was that it was slipped into a 900 page bill in the wee hours of the morning at a House-Senate conference, and had never been the subject of floor discussion or debate. According to the same article from the defense firm, the legislation affected Florida, Connecticut, Maine, and mostly New York.

But U.S. District Court Judge Michael Moore, sitting in the Southern District of Florida, dumped the law on its head, become the first federal judge to declare the federal meddling in state business to be unconstitutional, finidng that the law violates the Commerce Clause. The decision is here: Vanguard-v-Huchon.pdf. The law had previously been held unconstitutional in New York by a trial court judge, violating both the Tenth Amendment and the Commerce Clause.

The legislation has been a source of concern for the clients of personal injury law practitioners, not simply due to the hypocrisy of an allegedly conservative band of politicians sticking their nose into state matters, but because it allowed owners to rent or lease their cars without regard to the liability concerns of renting to people who use those cars in a negligent manner.

The Washington, DC-based Center for Constitutional Litigation represented the car crash victim. In a press release (update: a press release is below), they wrote:

"In this statute Congress did not even try to regulate commerce. It told the states what their tort law had to be, whether it affected interstate commerce or not. The Constitution does not give Congress that power."

These cases are sure to go up to appellate courts.


(Eric Turkewitz is a personal injury attorney in New York)
----------------------------------------------------------------------------
Addendum September 19, 2007:
This press release was received via email from the American Association for Justice:

Last week the Center for Constitutional Litigation scored a
major win that furthers our fight to assure that victims of corporate
negligence or misconduct can hold wrongdoers accountable in the civil
justice system.

In a ruling with wide implications for federal preemption and
vicarious liability, the U.S. District Court for the Southern District
of Florida on September 14 declared the Graves Amendment
unconstitutional. That amendment had given immunity to automobile rental
agencies for harm caused by their vehicles (Vanguard Car Rental v.
Huchon, Case No. 06-10082-CIV-Moore/Garber, USDC SD FL).

In 2005, the Graves Amendment (49 U.S.C. Section 30106) was
snuck into a 900-page transportation appropriations bill without review
from relevant congressional committees. The move intentionally
pre-empted state laws that imposed vicarious liability on rental car
companies. The amendment was the prized lobbying success of the
politically active rental car industry, which invested a substantial sum
in campaign contributions in the effort.

The Florida ruling holding the Graves Amendment unconstitutional
came in a declaratory judgment action brought by a group of rental car
companies against a person who had been injured in a collision with a
rental car. The United States intervened to defend the statute's
constitutionality. However, U.S. District Judge K. Michael Moore found
the amendment "is an unconstitutional overreaching of Congress' power
under the Commerce Clause."

"Under the rationale set forth" by the rental car companies and
the United States, Judge Moore noted, "this Court is hard pressed to
think of any type of state legislation which could not be pre-empted by
Congress, including state taxes." Simply put, the ruling gives rental
car companies a powerful incentive to assure that their customers are
adequately insured. Striking down the Graves Amendment also helps
ensure that victims of car accidents with rented or leased vehicles will
be adequately compensated for their injuries.

The ruling however could ultimately have wide repercussions
regarding the federal government's preemption powers. In recent years,
Congress has shown little reluctance to legislate in areas of
traditional state concern. Courts, led by the U.S. Supreme Court, have
found such over-reaching legislation in violation of the Constitution.

CCL has numerous cases against the Graves Amendment pending in
Florida state courts, having won many on a statutory interpretation
argument that this federal court chose not to follow. CCL also is
working closely with American Association for Justice members and
affiliated state associations in New York and Connecticut and is counsel
in cases pending in those states.

The CCL entered the case at the request of the attorneys for the
victims, Patricia M. Kennedy and Thomas Scolaro of Leesfield Leighton
and Partners, P.A. in Miami, to address the constitutional issues. John
Vail, CCL Vice President and Senior Litigation Counsel, and Andre Mura,
CCL Litigation Counsel, did the briefing on the constitutional issues,
with Mura arguing the case.

I'm sure you all join me in congratulating CCL for this
milestone victory.
====================================

Addendum - October 24, 2007: Avis has asked me to take down their trademarked logo from this post, as per the comments here. I've addressed the issue in a subsequent post: Avis Tells Me Cease And Desist on Use Of Its Logo.

Addendum - October 29, 2007: Dear Avis (A Public Response To Your Trademark Complaint On My Blog)

Updated, August 22, 2008: The 11th Circuit Court of Appeals has upheld the constitutionality of the Graves Amendment.

Labels: Personal Injury

Two weeks ago I wrote that my kid brother was a finalist in a screenwriting competition.

Today, he took the gold prize in the Sci-Fi/Fantasy category of the PAGE International Screenwriting Awards for Tranquility Base, beating 281 other entrants in his category. Not too shabby.

So when I wrote last time that he needed an agent, I wasn't kidding.
---------------------------------------------
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.

Labels: Odds and Ends

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

We start, as usual, with pre-litigation issues:

TortsProf Bill Childs discusses a man who died on the Coney Island Cyclone this summer. Or did he?

The failed tort "reform" experiment in Michigan was in the Detroit Free Press, and Tort Burger - Hold the Reform has the details;

But another type of "reform" has been percolating along, where state court actions get "preempted" by the federal government. Perlmutter and Schuelke have the details of tort "reform" by preemption. (Ironically advocated by those who usually argue about keeping the federal nose out of the state business. But political ideology often disappears when Fortune 500 companies have the checkbook out at election time.)

An article in the National Law Journal ponders whether the Bush administration is now targeting plaintiffs' attorneys;

John Day (Day on Torts) reports on the tough jury climate in a case where a jury awarded zero dollars for pain and suffering despite a herniated disc with surgery and the defendant was at fault; But Ronald Miller (The Maryland Injury Lawyer Blog) has a different view, as seen through the eyes of a 28-year old article he was reading on the same subject;

And since we are talking herniated discs, if you need a refresher course or haven't dealt with the subject before, David Gottlieb's No Fault Paradise points to this site on disc anatomy;

Ted Frank at Overlawyered writes about lawsuits where the passenger was injured while sitting in a reclined seat. The comments section goes wild since the story doesn't say how far reclined the seat was, giving everyone a chance to spin the story any way they want;

Moving on to the numerous recalls of painted children's toys that originated in China, the New York Times reports that lead was used because (surprise!) it helped to increase industry profits;

Still overseas, Howard Erichson at MassTorts discusses a new article on suing Saudi Arabia for terrorism activities;

Before moving to litigation, doctor/attorney Dainius A. Drukteinis (NY Emergency Medicine) analyzes the conflicting issues of a patient in handcuffs that has swallowed crack cocaine and a cop that wants his stomach pumped;

Of course, to have a trial you need a judge, and as readers of this space know, New York's judges are woefully underpaid. And while New York's Chief Judge Judith Kaye had threatened suit, she then backed down much to the disappointment of her judicial flock. But as Daniel Wise now reports from the New York Law Journal, that didn't stop four other judges from suing this week for that pay raise, with Chief Judge's Kaye former Associate Judge on the court, George Bundy Smith, acting as plaintiffs' counsel. Matthew Lerner has a copy of the Complaint.

Now on to litigation:

Evan Schaeffer starts us off with practice tips on readying your trial notebook;

The Illinois Injury Lawyer Blog reports that a man shot to death by the cops (with 42 bullets) has been sued by one of them;

Showing up for trial is pretty important. And Hans Poppe has this legal malpractice story regarding a car accident, a $1.7M verdict, and the failure by the insurance company lawyer to even contact the defendant to let him know the trial was happening.

Michael Jeffcoat reports on a whopping $55M verdict for a 10 year-old girl catastrophically injured by a U.S. gov't vehicle, awarded by a U.S. District Court judge;

In the Settlements Department, the ABA Journal reports that Roman Catholic Diocese of San Diego has agreed to pay $198 million to settle claims of clergy sex abuse by 144 alleged victims, following another settlement for $660M for 508 cases in July;

The ABA Journal also brings us this unusual $1.8M settlement from a Washington city, when a drunk driver they mistakenly released from jail killed a man in a hit-and-run accident;

Turning to legal fees, the Legal Pad reports some California courts are capping contingency fees on minors at 25%, a one-size-fits-all judicial rule that seems really bizarre since some cases may settle pre-suit and others may go to verdict, appeal and re-trial.

And finally:

• Blawg Review # 125 was hosted by Kevin O'Keefe at his newly re-designed blog, Real Lawyers Have Blogs, with tips about law blogging;
• Grand Rounds, the medical equivalent to Blawg Review, was hosted by The Efficient MD, for those of you whose practices straddle the medical-legal world;
• The Cavalcade of Risk was hosted this week by David Williams at his Health Business Blog;
  
• Scott Greenfield (Simple Justice) ruminates on the 9/11 anniversary, from his vantage point in my old stomping ground at The Woolworth Building, just steps away from the towers, and discusses a case of gross incompetence in the courthouse;
• Paul Levy (Running a Hospital) tells us that some people will check their Blackberry most anywhere...and I do mean anywhere;

And to those celebrating the New Year, L'Shana Tova Tikatevu.

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

Labels: Personal Injury Law Round-Up

The other day I wrote about two blogs with almost identical names -- The Angry Pharmacist and The Angriest Pharmacist -- and wondered about the intellectual property issues that would arise if such blogs could be shown to have real value.

And now...Angry Doc and The Angry Doctor.

And so, a word of warning: If anyone tries to take my name I'm gonna sic one of those angry medical people on you, because it may be more fun than suing. I don't think there is any shortage in this department:

There is also The Angry Medic, Angry Scientist, Angry Astronomer, Angry Bear, An Angry Young Man, Angry 365 Days A Year, Angry Blog, Angry Chinese Blogger, and of course, Just Another Angry Blog. Not to mention an Angry Lab Rat.

It seems that, for some reason, AngryLawyer.com and AngryAttorney.com are still available, leaving me to scratch my head at the absence of righteous indignation in the profession.

But if you take one of those domains for yourself, please don't tread on the grounds of the Angry Pregnant Lawyer, who's been posting now for 33 months. So she clearly has a right to be pissed.

Labels: Blogging

I didn't feel like writing or talking yesterday about my experiences and feelings on September 11, 2001. I rarely do, even though I was in the city at the time.

But writing about the days after is something different. And in that regard, one lawyer I had the pleasure of meeting deserves a tribute: Kenneth Feinberg.

Feinberg was the Special Master that ran the September 11 Victim Compensation Fund and was responsible for establishing the awards for over 7,300 claims, including over 4,400 for physical injury. But he didn't just administer the program. He actually conducted many of the hearings. From before dawn until after dusk, in cities throughout the country, he sat in rooms and personally listened to one horror story after another of broken families. According to the final report (p. 73):

During the course of the Fund, 3,962 hearings were held. Of these hearings, the Special Master conducted 931.

Feinberg didn't just absorb the stories and make the financial decisions, but he also navigated through a ton of abuse from traumatized families due to the way Congress had so quickly set the fund up, which was beyond his control. How well did he do it? Charles Wolf, whose wife died in the north tower, was furious at the start and turned to the web to vent his feelings and rally anti-fund support, but then renamed his critical web site called "Fix the Fund" to "The Fund is Fixed!" He wrote to Feinberg,

"To have one of your sharpest critics follow through on a promise and not only join the program he was criticizing, but promote it to his peers, says a lot about you and the way you have adjusted both the program and your attitude. Today, I have complete faith in you."

And he did all of it pro bono for almost three years, through the intense anger and raw emotion of family after family after family.

The fund was set up, if you recall, when the airline lobby raced into the Capitol to scream for immunity from litigation immediately after the attack, regardless of any negligent conduct they may have had that allowed the terrorists to breach their security. The planes had about $1.6B in insurance each, which was enough to cover people on the plane but not people or property on the ground. Bankruptcy was a real possibility.

Meanwhile, the American Association for Justice (ATLA at the time), under then President Leo Boyle, had called for a moratorium on any litigation as a result of the attack. When alerted to what the airlines were doing, they insisted to Congress that the injured and families of the dead should not be abandoned while a bailout was given to potentially negligent airlines.

Thus, the fund was born with an airline bailout on one hand, and guaranteed payments to the injured and families of the dead, regardless of fault, on the other. This deal came with the provision that if people participated in the fund they waived their rights to any lawsuit and waived any appeal of the fund's decision. The fund had 98% participation. A few victims declined to participate and their trials will start shortly.

And in response to the formation of the fund, AAJ gave birth to Trial Lawyers Care. With over 1,000 trial attorneys from every state in the Union, it was the largest pro bono offer of legal services ever created. I was honored to have played a tiny part of this effort estimated at $200M in donated legal services.

I appeared before Feinberg in one of my two hearings -- a woman from one WTC building with a head injury she incurred while escaping down a stairwell. And the one thing that occurred to me more than anything else as we sat there, was that he had to have extraordinary intestinal fortitude to listen to so many horror stories, day after day, week after week, month after month. The many boxes of tissues that stood at the ready in the hearing room spoke volumes.

And so I think it is fitting to tip my hat in Ken Feinberg's direction. In fact, it is fitting for all lawyers to tip their hats in his direction. Not on September 11 when the victims are remembered. But for his contributions in the days after when he got to work.

More Info:

• History of the fund and Trial Lawyers Care (American Association of Justice)
• Final Report of the Special Master for the September 11th Victim Compensation Fund of 2001 (Department of Justice)

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

Labels: Odds and Ends

The New York judge scheduled to hear the 41 lawsuits remaining from the September 11 attack says the families should settle.

Family members are reported to be fuming, according to this New York Post report, at Southern District Court Judge Alvin Hellerstein who said "money is the universal lubricant." At a recent hearing he said that:

"Each of us has a choice: Either to never forget that pain and have it ever present in our lives, or to fashion a life beyond the pain...Somehow, we need to get past Sept. 11, 2001, as a country and individually."

After a story about the trials appeared on the front page of the New York Times last week I wrote about the problem many of the families face in The September 11th Lawsuits And The Problem Of Compensable Grief in NY.

The litigating families had refused to participate in the September 11 Victim Compensation Fund due to low awards for those who were not working (such as children, retirees, those with disabilities).

It seems likely that the demand for accountability will, for some, supersede any desire to move on.

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

Labels: Personal Injury, Wrongful Death

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

Prior to suit, we'll explore some related issues:

Ronald Miller starts us off with a discussion of medical malpractice caps in Illinois and Maryland at the Maryland Lawyer Blog;

The Consumer Law and Policy Blog picks up a New York Times story on the Consumer Product Safety Commission and how the Bush administration has allowed corporate lobbyists into policy making positions to further the position of big business over consumer protections. The result? Injuries, death and tainted products. They also pick up on the third recall from Mattel. This time it's Barbie accessories;

David Lowe picks up the story of lung disease from an ingredient in artificially flavored popcorn (which previously was found to affect workers, not consumers, see Round-Up #24). You'll find the most comprehensive materials on the web regarding "Popcorn Lung" at The Pump Handle. There's also an interview on the subject with pulmonologist Cecile Rose at the WSJ Health Blog;

Drug safety pops up in a New England Journal of Medicine editorial, and the FDA's inadequate response to the Institute of Medicine's 2006 report (via TortsProf);

Last week's round-up had a small give-and-take on the contingency fee, and David Giacalone continues on at f/k/a with contingency fees and the clueless fiduciary. This part of his post jumped out at me: "Tort lawyers ...obtain repayment of substantially all litigation expenses they advance, including expenses advanced in the cases where they do not prevail." Perhaps in academic theory the expenses can be recouped on a lost case, but not in the real world where many claimants simply don't have the money. Not only is the risk of laying out many thousands in disbursements real, but from the business end it doesn't even begin to address the harsh cash-flow problems of funding cases for years before they finally come to trial (see for example, Medical Malpractice Economics);

At Point of Law, Walter Olson points to a New York Times article today that questions the accuracy of some of the data regarding health problems to ground zero workers.

And into the cauldron of litigation we go:

Sheila Scheuerman from TortsProf reports that Greek victims of a Nazi atrocity may sue Germany;

The Kentucky Law Review reports that a trial against an obstetrician accused of unnecessary hysterectomies was continued due to protests (note: Only lawyers use the word "continued" when we really mean postponed). The protests were due, in part, to a letter circulated around the medical community. The eventual verdict is here;

With trials coming up regarding the September 11 attacks, MassTorts prof Howard Erichson tries to figure out exactly what it is that the plaintiff's want...is it really money?

A trial is starting in Texas over the 2005 BP explosion that killed 15 people and will be about, as TortDeform reports, whether the oil giant put profits over safety;

A partial settlement was reached in the catastrophic Rhode Island night club fire that killed 100 people and injured 200 more in 2003 when the manager for Great White ignited a pyrotechnics display. Four defendants coughed up $13.5M. There are still 93 other defendants. The New York Times (reg. req.) has the story as does the Boston Globe (no reg.):

Mary Whisner from Trial AD notes a $5M medical malpractice verdict in a case where the jury disagreed with a report from the state's Department of Health that claimed the doctor's conduct fell within the standard of care. From the comment section of the blog, it looks as if a juror has responded. I let jury blogging guru Anne Reed know, and she followed up at Deliberations with, If Your Juror Were Writing Online, Could You Find It?

And a federal judge has ordered Iran to pay $2.65 billion to the families of the 241 U.S. service members killed in the 1983 bombing of the U.S. Marine barracks in Beirut. A bit more from PrairiePundit.


And finally:

• George Lenard's Employment Blawg brings us a Labor Day special, Blawg Review #124;
• Bary Barnett finds out that "trial lawyer" is not a "regular occupation;"
• In case you wanted to ditch that PC for a Mac, The Mac Lawyer has a synopsis of the available business applications an attorney might use;
• While Senator Larry "I'm not gay" Craig tries to take a mulligan on his resignation, his face pops up on a new t-shirt;
• Don't forget to put your car in park when you get out;
  
• And a young lady goes back to school after having a blast this summer.

Enjoy the weekend.

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

Labels: Personal Injury Law Round-Up

The New York City Health and Hospitals Corporation, which runs 11 city-owned hospitals, will start today to put data online on infection and death rates. The hospitals treat 1.3 million patients a year.

According to an article in the Metro section of today's New York Times, the effort for greater transparency is driven by Mayor Michael Bloomberg as part of a public health initiative. It also comes due to an effort by the hospitals to improve patient safety. (See also, New York City Reports Lowest Number of Claims In 10 Years.)

This web site will allow the public to see, among other things, the overall death rate, the rate of deaths after heart attacks, preventable bloodstream infections and pneumonia cases.

The medical industry is not exactly known for its transparency when it comes to medical errors and poor outcomes. Which seems to put this initiative near the forefront of identifying, and hopefully treating, systemic problems within the institutions that have led to incalculable misery, death and medical malpractice lawsuits.

This initiative comes on the heels of the federal Centers for Disease Control and Prevention projecting that 1.7 million patients nationwide get infections each year during a hospital stay, and that of those, 99,000 would die. The centers estimate the cost of treating such infections at more than $30 billion a year.

It also comes on the heels of Medicare refusing to pay for the treatment of avoidable infections and other hospital-caused injuries. According to a Jacob Goldstein WSJ Health Blog posting earlier this week, with money on the line, hospitals have already responded by changing policies for the better.

All of which leads one to wonder: Is there a hospital health care revolution taking place?


More info at: The Committee to Reduce Infection Deaths

Labels: Hospital Malpractice

It had to come up eventually: Two blogs with almost idential names, and the issue of what intellectual property rights bloggers have to those names.

Here they are:
The Angry Pharmacist (started two years ago); and
The Angriest Pharmacist (started seven months ago).

Needless to say, Angry is not too pleased with Angriest, who concedes, "I did happen upon his site and loved it...so, I semi-jacked the name."

The original is (can you guess?) angry about the poaching of his or her name.

Complicating the issue for The Original Angry is that he uses a pseudonym. Assuming he could find out who Angriest is and bring a suit, how can he ever prove he was damaged?

Now intellectual property is not my long suit, but I am curious since the same thing can (and most likely will) happen in the legal blogosphere eventually, where use of real names is the norm. After all, there are about 1,000 legal blogs but about 1,000,000 lawyers in the country, and the future blawgosphere (for us less talented people who can't create pithy names) could look something like this:

The Podunk Criminal Law Blog;
The Podunk Criminal Blog;
The Podunk Criminal Law Blawg;
The Podunk Criminal Law Legal Blog.

I toss this out there with the hope that someone, somewhere, might have a few thoughts on this...

(Hat tip to Monkey Girl).

Labels: Blogging

How much is too much when it comes to pain and suffering? While I have dealt with that subject before (see: How New York Caps Personal Injury Damages), New York's Court of Appeals will re-visit today the issue in one of the saddest cases ever brought. And if they follow the law, they may be forced to reduce a compensatory damage award against a monstrous child killer.

The year was 1987 and now-disbarred lawyer Joel Steinberg beat his six-year old daughter Lisa to death. In 2004 the executor of Lisa's estate procured a $15M judgment: $5 million for Lisa's pain and suffering that day, $5 million for her pain and suffering as a battered child, and $5 million in punitive damages.

In a split decision from New York's Appellate Division First Department in January 2007 that upheld the award from trial judge Louis York, Justice James Catterson, wrote for the majority as he bluntly summarized the case:

Joel Steinberg, the defendant-appellant, is a convicted child killer and abuser who fatally felled his six-year-old daughter with one blow of his hand, and then went out to dinner as she lay on a bathroom floor losing consciousness over the next eight to ten hours. He appeals now from a judgment that awarded damages against him for the pain and suffering he caused the little girl during her life, and in the tormented hours before her death.

Steinberg who appears pro se in this action complains, inter alia, that because the first-grader's death was preceded by "at most eight hours of pain and suffering" and "quick loss of consciousness [emphasis supplied]," the award of $15 million in compensatory and punitive damages is excessive. We disagree, and in simply so stating acknowledge that sometimes words fail even those who use the language to render judgments on a daily basis.

In upholding the award, the Court specifically rejected its prior case law, with this rationale:

This case of an abusive father killing his child by knocking her down with a "staggering" blow to her head and then leaving her without medical attention while he enjoyed dinner and freebased cocaine is without precedential analog. Consequently, we find ourselves free to evaluate the award on the basis of "subjective opinions which are formulated without the availability, or guidance of precise mathematical quantification. [emphasis added]

The repercussions on New York law could be quite dramatic, unless the court rules (as it may try) that the facts of the conduct are so without precedent that even if the compensatory award is upheld, it could not be used on any other cases.

But wait! If New York's high court goes that route, they have a major problem. As Justice James McGuire notes in a separate dissent:

In reviewing this award of compensatory damages, it is important to bear in mind that the outrageousness of appellant's conduct is not a relevant factor.

He goes on from there to cite U.S. Supreme Court precedent:

"Although compensatory damages and punitive damages are typically awarded at the same time by the same decisionmaker, they serve distinct purposes. The former are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant's wrongful conduct. See Restatement (Second) of Torts § 903, pp. 453-454 (1979); Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 54 [111 S.Ct. 1032, 113 L.Ed.2d 1] (1991) (O'Connor, J., dissenting). The latter, which have been described as 'quasi-criminal,' id. at 19 [111 S.Ct. 1032], operate as 'private fines' intended to punish the defendant and to deter future wrongdoing. A jury's assessment of the extent of a plaintiff's injury is essentially a factual determination, whereas its imposition of punitive damages is an expression of its moral condemnation" (Cooper Indus. v. Leatherman Tool Group, 532 U.S. 424, 432 [121 S.Ct. 1678, 149 L.Ed.2d 674] [2001] ).

And so there is, I think, the ultimate battle: On one side a huge award against a despised individual who did unspeakable acts. And on the other, a real issue that while punitive damages are to punish, compensatory damages are not supposed to take into account the nature of how the injury occurred. The bottom line: By considering the nature of the conduct for both punitive damages as well as compensatory damages, the court is allowing double-dipping. They are using the exact same conduct to justify two different awards.

This analysis of the extent of compensatory damages, by the way, brings me back to the September 11 lawsuits that I discussed yesterday, and the limited amount of damages that might be available to claimants. It seems likely that, if the compensatory award in Steinberg is upheld, claimants attorneys will attempt to cite it whenever possible in trying to uphold large awards, notwithstanding any caveat the court attempts to use in stating that this was a one-of-a-kind suit based on the reprehensible nature of the conduct.

Additional sources:

• N.Y. High Court to Review $15 Million Award in Steinberg Case (New York Law Journal)
  
• Joel Steinberg wants $15M damage award thrown out (New York Daily News)
• Evil Joel Shock (New York Post)

Labels: Personal Injury, Punitive Damages

The New York City Comptroller's Office reported that personal injury claims against the city have dropped to a 10-year low. This includes cases in the most expensive claims category, medical malpractice. From the Executive Summary of the report comes this:

In Fiscal Year 2005, the cost of claims totaled $529.8 million. In Fiscal Year 2006, the cost of claims totaled $496.4 million. This represents a decline of 10 percent and 16 percent respectively from the historic high of $589 million in Fiscal Year 2001.

The most remarkable part of the report was not all the facts and figures in the report, but that the city just created a new division regarding risk management (Can you believe the City didn't already do this?):

The Risk Management Division focuses on City-wide loss prevention efforts and provides litigation support for the Comptroller's Early Intervention Units. Most importantly, by reviewing the notices of claim filed with the Office, the Division seeks to identify patterns in claims at an earlier stage in order to implement risk prevention strategies.

After complaining for years about the high cost of the tort system, could the city actually be doing something about it by cleaning up their act (instead of blaming the victims)?

Regarding medical malpractice, the biggest of the cases, the report states about these new risk management units:

The units, handling carefully selected claims, strive to negotiate reasonable and fair settlements prior to extensive discovery and before expensive legal and expert witness fees have accumulated. The units also develop risk management and loss prevention programs from the information gathered through these cases.

Thus, the city's management of the biggest of the cases is now changing, with a view toward earlier (and cheaper) resolution and preventive efforts for the future. It's hard to believe this wasn't done 20 years ago, but better late than never, especially for those that find themselves stuck in some of the city-owned hospitals.

A few of the bullet-pointed facts from the press release:

• In FY 2006, the costliest personal injury claims category was medical malpractice, which cost the City $155.2 million for 293 cases. In FY 2005, the cost was $145.9 million for 327 cases.
• 699 medical malpractice claims were filed in FY 2006, the lowest number in the last ten years. In FY 2005, 824 medical malpractice claims were filed. (See the chart on page 16 of the report)
  
• The three hospitals for which the City paid the highest total amount for medical malpractice claims in FY 2006 were Kings County ($33.6 million), Elmhurst ($25.7 million), and Woodhull ($15.1 million).
• Three hospitals (Elmhurst, Kings County and Queens) had increases in the number of medical malpractice claims filed from FY 2005 to FY 2006.
• 1,351 personal injury motor vehicle accident claims were filed in FY 2006. This represents a decrease from the 1,396 claims filed in FY 2005.
• In FY 2006, claim filings against the Health and Hospitals Corporation, the Department of Transportation, Department of Buildings, Department of Corrections, and the Department of Environmental Protection were the lowest for each of those agencies in the last ten fiscal years.
  

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

Labels: Personal Injury

"Eak the Geek" starts law school today. After 15 years as Coney Island sideshow performer, where he specialized in eating nails, he starts today at Thomas M. Cooley Law School in Michigan, according to this report in AM New York.

Money quote: "I know it sounds weird, but I want to be a freak lawyer ...I hope to have a little office in New York and work with the alternative people ... all the so-called riff-raff, to give them legal representation that is not judgmental."

And the good news is that he has a blog. OK, it's on MySpace, but still, the potential is there for a new and unique window into the world of law.

Labels: Odds and Ends

As the New York Times reports today, 41 lawsuits are heading for trial this fall resulting from the September 11th attacks. These trials are for those that opted out of the September 11 Victim Compensation Fund -- usually because the amounts offered to a certain class of survivors were so low, and no doubt because the wounds were too raw for many to "put a number" on the loss of a loved one so quickly.

Here is the problem in a nutshell: The economic losses of the victims were evaluated with a schedule dependant on earnings that resulted in an average award of $2M. But the non-economic loss was limited to a flat $250,000, plus $100,000 to surviving spouses and children, regardless of whether death came instantly and without warning based on a direct hit by an aircraft, or whether a victim was on board a flight for 45 minutes in fear, or stranded on a high floor of a tower before it collapsed. (The feeling at the time was that this was too difficult a task for 3,000 people, many of whose stories would never come out.)

So those who lost family members who were not earning any money, children, retirees, etc., felt they were treated unfairly and could not, or would not, simply take a small sum without exploring the accountability of numerous entities, such as the airlines, Boeing or security companies that were supposed to be screening passengers. Here is one example of some of the thinking:

The plaintiffs are people like Mike Low, whose 28-year-old daughter, Sara, was a flight attendant on American Airlines Flight 11, the first plane to crash into the World Trade Center. For Mr. Low, it is strange for the airlines to deny that they could have anticipated the attacks, because, he says, his daughter was offered antiterrorist insurance as one of her fringe benefits, and took it.

Now here is the "problem" from the subject heading: Under New York law, grief of the surviving family members is not compensable. Unlike the vast majority of other states, New York remains in the dark ages when it comes to this subject. So a child that has been lost is viewed through the eyes of the law based solely on their earnings (none) and their suffering. But not the grief of the parents or siblings. So while some will always scream "It's just about the money," the reality is that for many it is mostly about raw emotion. Like this:

The Cottoms' lawyers would not say how much Asia might have received from the fund. Mrs. Cottom said she believed they would have received little more than the minimum $250,000 -- an amount she found "insulting."

She lost a daughter, she said, who had her first menstrual period just before the fatal flight, a school trip to Los Angeles. "I took her to Wal-Mart to buy sanitary napkins," Mrs. Cottom said. "So she was growing up one day and the next day she's gone."

Her decision to reject the fund was not hard, she said. "To me, it just smelled of dishonesty. How do you justify, O.K., an 11-year-old is worth $2, but because you're the pilot of that plane, that's worth $2 million?"

While the passage of time may have made it easier for some to settle this matter, it is clear that some will want a jury hold various entities accountable for their malfeasance. But while the actual amounts awarded may surpass that which was awarded by the Victim Compensation Fund if claimants can show what their lost family members went through, the awards will not be exceptionally high. And if they are, they will be reduced by the courts afterward.

In an unusual twist, damages will be tried before liability, in the hope I assume, that this will assist with settlement talks.

(Eric Turkewitz is a personal injury attorney in New York. He also represented two claimants before the Victim Compensation Fund)

Labels: Personal Injury, Wrongful Death