The first reported decision on the subject of bloggers as journalists has been rendered. This is important due to statutory protections that may exist for journalists.

In BidZirk v. Smith, a pro se blogging defendant beat back a lawsuit from an eBay listing company that alleged, among other issues, trademark infringement due to use of the mark by Smith of BidZirk on his blog. Smith responded by saying he could use the mark as a journalist. The decision and analysis are at the Citizen Media Law Project and is also written up by Eric Goldman and Marc Randazza. Since I've now been threatened by Avis over use of its logo on my blog, this has become of interest to me.

[The issue of the blogger-journalist also presented itself in another context recently when Howard Bashman refused to remove a Second Circuit Court of Appeals decision that had been published by the court, then placed on the blog How Appealing, and that the court sought to recall.]

US District Judge Henry Herlong, Jr., sitting in the District Court for South Carolina, wrote the following with respect to bloggers as journalists:

Even if Smith has infringed BidZirk's mark, the court finds that this infringement is excused by a statutory defense. Under §1125(c)(4)(C), no "forms of news reporting and news commentary" are actionable under §1125. These terms are not defined in the Lanham Act. Further, there is no published case deciding whether a blogger is a journalist.

However, in determining whether Smith was engaged in news reporting or news
commentating, the court has applied the functional analysis suggested by commentators and the Plaintiffs in their memorandum in support of a preliminary injunction, which examines the content of the material, not the format, to determine whether it is journalism. See David L. Hudson, Jr., Blogging; (Pls.' Mem. Supp. Preliminary Injunction Ex. 34 (Hudson on Blogging).). In addition, the court has considered the intent of Smith in writing the article. The court agrees that not all bloggers are journalists. However, some bloggers are without question journalists. See CNN BLOGS: YOUR SAY .

Upon review of the content of the article, the court finds that Smith's use of the BidZirk mark in the article was in the context of news reporting or news commentary. The article posted by Smith concerning the Plaintiffs is written for the purpose of conveying information to the public. In the four installments of the article, Smith describes his experience with BidZirk in great detail. (Pls.' Mem. Opp'n Summ. J. Ex. 2 (Article).) In addition, Smith addresses the positive and negative aspects, in his opinion, of dealing with a an eBay listing company, such as BidZirk. (Id.) Further, Smith provides a checklist for using an eBay listing company and tips for selling items on eBay. (Id.) Smith felt that what he learned from his experience with BidZirk would be helpful to others in dealing with an eBay listing company. The fact that Smith reports negatively about his experience with BidZirk does not dictate that the article's function or intent was not news reporting or news commentary.

There is no evidence that the sole purpose of the article was to denigrate BidZirk.
follows:

This is my story as experienced by me personally. I have dealt with a company called BIDZIRK, in my home town. I have also visited several competitors. In doing extensive Google research, I have found that my problems are almost universal . . . but that only larger clients really complain. At the end, I will offer a checklist for you to use when choosing a listing company that includes questions you may not have thought of before.

(Pls.' Mem. Opp'n Summ. J. Ex. 2 (Article).) Smith engaged in background research and provided consumers with a checklist for use in selecting a listing company. Smith's article evidences his intent to report what he believed was a newsworthy story for consumers. Based on the foregoing, no genuine issues of material fact exist and BidZirk's Lanham Act claim fails as a matter of law.

This post may be a substantial deviation from New York personal injury law, but it seems to be a worthwhile one.

Labels: First Amendment

To: Fred Grumman, Associate General Counsel, Avis Budget Group, Inc.

Dear Mr. Grumman:

I had used an Avis trademark on September 17th to discuss a decision holding the Graves Amendment unconstitutional. That amendment, which I believe Avis fought for, granted immunity to car rental and leasing companies from state laws that would hold them vicariously liable when the renters/lessors were negligent and injured someone.

On October 23rd you wrote to me on behalf of Avis in the comments section of that post, to complain about my use of the Avis trademark, which is shown here in the upper, right corner.

So here is my response. I do it publicly, since that is how you chose to contact me.

In writing this blog and engaging in citizen-journalism, I often use the trademarks of companies when discussing their news. That seems to be a pretty clear First Amendment right.

In your letter to me you sought to trump my First Amendment right when you wrote:

We have the greatest respect for your right to express your opinions on your blog, but that does not include the right to use Avis' trademark as you have done in this particular piece.

Understandably, trademark law is not within your area of expertise. Therefore, we trust that this was done out of ignorance and not based on an intent to misuse our mark to the benefit of your personal injury practice.

We ask that you remove it immediately and refrain from any similar use in the future.

Having thought about the issue, and discussed it privately with some, and seen public comment from others (see the comments section here, as well as at Trademark Law, 43(B)log, and Bill McGeveran), I am at a loss to figure out exactly how your trademark claim trumps my free speech rights. Since, as you believe, trademark law is not within my area of expertise, and that I am simply ignorant, perhaps now is the time for you to set forth exactly how and why I should surrender my constitutional rights to your company.

So send me a proper cease and desist letter. Set forth for me with specificity your claims of legal superiority. You now have the opportunity to demonstrate your expertise and analysis in this arena since I, as you indicate, am simply too ignorant to know it myself.

Until you do that, however, I will assume your threat is an empty attempt to bully and intimidate. And so, the mark remains on my original post.

Yours,

Eric Turkewitz
(Just a simple personal injury attorney, not a trademark law guru)

P.S. I note that your trademark is now popping up on other legal blogs, so you might want to consider sending cease and desist letters to other attorneys as well.

Labels: First Amendment

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

Let's start with some pre-litigation issues:

The New York Medical Examiner, under the leadership of long time Chief Charles Hirsch, has rejected the September 11 attack as a cause of death for a 34 year-old retired cop that worked long hours on the pile. There is no lawsuit here, just parents that wants their son recognized as victim of the attack;

Dainius A. Drukteinis (M.D. and J.D.) discussed the legal issues presented when a consultant refuses the request of the ER doc, at NY Emergency Medicine;

Tort "reform" took center state at a Republican presidential debate. Overlawyered's Walter Olson explains how Rudy Giuliani and Fred Thompson squared off against each other;

And since we're on the subject, tort "reformers" like to blame lawyers for "defensive medicine" that increases health care costs, and sometimes the media picks up their talking points. But as Grunt Doc explains after Kevin, M.D. appears on a CBS Evening News report, there is often a reason for that "defensive" procedure;

Ed Van Dorn discusses what happened in New Hampshire after the state instituted a medical malpractice screening system. Did it result in an efficient, time and cost saving method of disposing of claims as tort "reformers" argued would happen? Or did it cause delay, delay, delay (as perhaps, they privately hoped);

Florida dismisses a case against a pharmacy from the family of a teen that OD'd on Oxycontin he got from his college roommate. The drugs had been stolen by a friend of the roommate, and the pharmacy had less than adequate security (via Overlawyered);

Beck/Herrmann discuss a law review article by TortsProf Bill Childs, and broach the subject of litigation driven scholarship. Bill adds some more thoughts at his own place;

Judge Richard Posner tackles Should Hosts Be Liable for Serving Liquor to Guests Who Cause Accidents While Driving under the Influence? The response comes from his co-blogger, Prof. Gary Becker;

Cardiologist Dr. Wes has some thoughts on a recall by heart defibrillator maker Medtronics, due to concerns the lead may tear inside the body: As the advertising by attorneys heats up:

The Newark Star-Ledger has a piece on one of my pet issues: Fake medicine, real problem (via Pharmalot). Why is it a pet issue? Y0u can read the counterfeit drug resource page at my firm's website or click on counterfeit drugs in the sidebar here;

From today's New York Daily News:

A bogus Brooklyn dentist dumped a 71-year-old woman onto the curb like garbage after she began foaming at the mouth and lost consciousness in his chair, police said Thursday.

Zagat's is now rating doctors. Can attorneys be far behind?

And in to litigation we go:

From the Celebrity Lawsuit Department: Tennessee Titans Pacman Jones has been sued for a shooting outside Vegas strip club, according to John Day; Is a Kid Rock lawsuit far behind?

Tainted food guru Bill Marler is no doubt exceptionally busy these days with the outbreaks of eColi. But that doesn't stop him from blogging, in this case regarding the New York Times article on the problems at Topps;

Medical malpractice suits against cruise lines are getting tossed out with some regularity, according to the Wall Street Journal, based on assertions that the cruise ship doctor is not a crew member, but an independent contractor. And since the doctor is not usually American and the malpractice occurred on the high seas, they must be sued in their own country, and often can't be found leaving the victim without any recourse (W$J, ABA Journal synopsis);

Award winning blogger Matt Lerner at New York Civil Law examines the liability issues of a common carrier in New York, as New York's high court rules on the subject;

The Maryland high court tossed out a case by a powerlifter that was injured trying to hoist 530 pounds. At issue, Ronald Miller explains, was the relationship between the concept of assumption of risk for sporting activities, and the allegations that the spotters were negligently trained;

A $30M medical malpractice case was tossed out by a 5-1 majority of the Ohio Supreme Court, due to the conduct of "famously obnoxious" attorney Geoffrey Fieger (via TortsProf);

Ted Frank at Point of Law has a piece on jurors in long trials v. short trials. While his synopsis of a recent study probably won't come as too much of a surprise, it is worth the look;

Settlements are often tricky in personal injury cases, as it is not easy to place a value on an individual's pain and suffering. A new service, according to Ron Miller and Evan Schaeffer, tries to assist.

And finally:

• David Maister hosts Blawg Review #131;
• Blawg Review hosts Carnival of the Capitalists #211, the longest continuing floating carnival in existence;
• Insurance and law meet up in the Cavalcade of Risk, at Hill's Personal Finance;
• Anne Reed has a very scary post about how we pick politicians by the look on their faces, and that has ramifications for jury selection;
  
• Scott Greenfield follows up on the ironic efforts of Dozier Internet Law to protect their clients, when its ludicrous legal claims become fodder for discussion;
• And finally, are you using animation or medical illustrations in your trials? If not, why? Video link from Street Anatomy via Kevin, M.D.
  

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

Labels: Personal Injury Law Round-Up

Yesterday California attorney Jonathan Stein offered free legal services to southern California fire victims. Today Stein says there are more:

Among the groups offering support are members of AAJ, CAOC, Consumer Attorneys of San Diego, Consumer Attorneys Association of Los Angeles, and United Policyholders, a non-profit group that helps insurance consumers.

His site has the details.

Labels: Odds and Ends

Nikki Black has the winners of her Best New York Blawger and best New York Blawg up at Sui Generis. While yours truly finished out of the money (waaaaay out of the money), one can't argue with who came out on top. But you have to go there to find out.

Labels: Blogging

Jonathan G. Stein, a personal injury attorney with an office in Elk Grove, California, has offered free help to victims of the San Diego fires now ravaging the area.

In a blog posting earlier today, Stein said:

As much as we would all like to help, most of us are not trained in fire suppression. So, I am going to make an offer to the residents of San Diego: if you are a fire victim and you are not getting a response from your insurance company or they are low-balling you, call me. I will help you pro bono. (Yes, that means free.) Heck, if you just have a question and need a quick answer, call me or email me. I hope my fellow attorneys will step up to the plate as well.

J. Craig Williams at May It Please the Court discusses the dangers to his own home, and how media helicopters are interfering with firefighting efforts.

Update: Insurance Tactics and San Diego Fire Victims (Tort Burger - Hold the Reform)

Labels: Odds and Ends

Was my use of the Avis logo last month a violation of its trademark? I need to know because Avis hit me today with a cease and desist demand, asking that its logo be taken down from the old post.

The particular logo at issue, reproduced here at the right so you know what I'm discussing, was placed in my September 17 posting regarding a federal court decision: Car Rental Immunity Law Held Unconstitutional By Federal Judge. The law at issue had been the subject, I believe, of intense lobbying by the major car rental and leasing companies who had succeeded in getting immunity from vicarious liability slipped into a massive transportation bill at an early morning House-Senate conference. So when it was ruled unconstitutional, I thought that using the logos of Avis and Hertz was fair use in the context of the discussion.

Not so, says Fred Grumman, Associate General Counsel at Avis Budget Group, Inc. In a comment he left online earlier today regarding the logo, he wrote:

We have the greatest respect for your right to express your opinions on your blog, but that does not include the right to use Avis' trademark as you have done in this particular piece.

Understandably, trademark law is not within your area of expertise. Therefore, we trust that this was done out of ignorance and not based on an intent to misuse our mark to the benefit of your personal injury practice.

We ask that you remove it immediately and refrain from any similar use in the future.

Now I will concede I am not the world's greatest expert on trademark law, but it seemed perfectly fair to use in the context of major car rental companies lobbying for a law that was tossed out and is now headed to a federal appeals court. And I didn't see how my use of the logo would cause confusion in the marketplace since I don't rent or lease cars to anyone. While it is true some attorneys may have sidelines, like perhaps hair replacement, I most assuredly am not in the car business.

And so this post is an opportunity to seek some friends to help me grapple with the issue. Since my blog is not the only one that needs to wrestle with intellectual property issues and where lines get drawn, it seems ripe for public discussion. I am hopeful that someone, perhaps from this list (or elsewhere), might have a few opinions on the subject:

• Marty Schwimmer;
• Greg Beck (Public Citizen)
• IP Law Blog;
• John Welch;
• William Patry;
• Brian Higgins;
• Ron Coleman;
• Legal Fixtion;
• IP Law Observer;
• Internet Cases;
• Erik Heels
• Rebecca Tushnet;
• Michael Atkins
  

(Eric Turkewitz is most definitely not in the car rental business.)

Update, 10/29/07: Dear Avis (A Public Response To Your Trademark Complaint On My Blog)

Labels: First Amendment

A new legal website is in the making called SueEasy. It apparently hasn't gone live yet, but let me be the first in the legal blogosphere to shred the idea as incredibly stupid. And further, that any attorney that participates for a personal injury case may be committing legal malpractice.

The story comes via Peter Lattman at the WSJ Law Blog a few days ago who got it from TechCrunch.

The website urges people to contact them with their complaints and post their confidential legal papers, and then attorneys they have never met, spoken with or vetted, will bid for their business and the winner will get the case.

Just think of the trial testimony, regarding conduct that takes place before any attorney-client privilege is created:

Defense Counsel: How did you find your counsel?
Client: I used a website called SueEasy.
Defense Counsel: What is that?
Client: I submit information to a website and lawyers bid for my case.
Defense Counsel: Lawyers you've never spoken with?
Client: Yes.
Defense Counsel: So your lawyer bid for your case before ever speaking with you?
Client: Yup.
Defense Counsel: Based on information you submitted before s/he was retained?
Client: Yup
Defense Counsel: And xyz wasn't in the packet of information you sent in to SueEasy, was it?
Client: No.
Defense Counsel: So your lawyer was asking for this case without even knowing about xyz?
Client: Yes.

This kind of crap, presented ever so briefly here, can easily go on for a half-hour or more, all about how the client used some anonymous website -- that pitches how easy it is to sue a company or person -- provided limited information, and found an attorney willing to bid on the case on that basis.

If one is looking to distract from the merits of a personal injury case and help drive a nail into its coffin, then using such a website is a great idea.

According to TechCrunch:

The site is kind of a reverse directory for lawyers that's sure to be a haven for personal injury lawsuits.

The biggest beneficiaries will no doubt be defense lawyers and insurance companies who will have a field day with anyone caught using such a system. Any case that is close on the merits is surely likely to suffer from any halfway decent cross examination.

And I think that any practitioner that uses it should make sure their professional liability premiums are fully paid up. While the client may not know better, the attorney should.

Addendum, 10/24/07:

• Ben Glass thinks SueEasy is a hoax perpetrated by tort "reformers."
• TortsProf Bill Childs thinks it is not a hoax, and explains why.
  

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

Labels: Attorney Ethics, Personal Injury

Poor communication is a major cause of medical malpractice, especially among staff in training, according to a study in today's edition of the Archives of Internal Medicine. (See Medical News Today.)

Researchers examining 889 closed medical malpractice cases found that 27 percent involved trainees whose role in the error was considered to be at least moderately important, of which 87 percent involved residents. According to the Medical News Today summary:

Cognitive factors contributed to the majority of trainee errors, according to the study. Nearly three-fourths (72 percent) involved errors in judgment, more than half (58 percent) were caused by a lack of technical knowledge, and more than half (57 percent) were due to failure of vigilance or memory. Teamwork factors, notably lack of supervision and handoff problems, were also a significant issue, accounting for 70 percent of the cases involving trainee errors. A lack of supervision accounted for more than half (54 percent) of the trainee errors, and handoff problems accounted for nearly one-fifth (19 percent). Because multiple factors contributed to trainee errors, the percentages do not add up to 100 percent.

Further, attending physicians' failure to oversee the work of trainees was identified as a factor in 82 percent of the 129 cases where a lack of supervision contributed to a medical error.

None of this comes as a surprise to medical malpractice practitioners, as the failure to properly communicate and supervise often comes up. The degree to which this is due to the high pressure of managed care, systems breakdowns, or simple sloppiness varies from case to case.

Since hand written notes in medical charts are a primary tool of communication from doctor to doctor, and since such writing is often unintelligible (sometimes even to the doctor that wrote it) you can be sure that communications problems will continue to exist to the detriment of patients.

On the web:
Archives of Internal Medicine (article not yet available online)


(Eric Turkewitz is a personal injury attorney in New York, most of whose practice has been medical malpractice for the past 20 years.)

Labels: Medical Malpractice

One of my favorite Saturday Night Live commercial spoofs was for Shimmer. (It's a dessert topping! No, It's a floor wax!)

Well, now the law seems to have its own version. Mister Thorne over at his blog on legal writing, Set in Style, has discovered that the San Francisco firm of Wineberg Simmonds & Narita is offering both legal services and hair replacement.

Check with Mister Throne as to how he found it. If anyone knows of a more bizarre combo, I'd love to hear it.

No word yet on discounts for bald litigants who need both services.

Labels: Odds and Ends

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

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

Adam Liptak in his Monday Sidebar column for the New York Times takes on the very high price of Google ads for attorneys, mostly those who deal with personal injury. Cited in the article are blawgospheric regulars Ted Frank, Walter Olson and Prof. William Childs. Oddly absent from the column is any interview with people who actually run the ads;

Following up on the Texas tort "reform" issue in the October 5th Times (see Texas Tort "Reform" and The New York Times and Personal Injury Law Round-Up #32), there are two letters to the editor worth noting: Kenneth E. Raske, President of the Greater New York Hospital Association printed in the Times and Jay Harvey from the Texas Trial Lawyers Association (which the Times apparently declined to run, but is offered via Bob Kraft's P.I.S.S.D.);

And Stephanie Mencimer at The Tortellini points out that of all those docs heading into Texas, none seem to be going to the poor counties, just the rich ones already stocked with docs, with more on the subject from Perlmutter & Schuelke;

Kia Franklin at TortDeform has a piece on the White Coat of Silence, with medical practitioners at health care giant Kaiser Permanente being punished for reporting negligence concerns over their colleagues;

Anne Reed tackles the subject of ferreting out anti-Semitism in voir dire over at Deliberations, fresh on the heels of comments made by David Duke in drag while on the Donny Deutsch show;

Doctor Anonymous reports that a dentist charged with fondling the breasts of 27 women has his defense ready: It was medically necessary (via Kevin, M.D.).

And on to some actual litigation:

A federal judge has allowed suits against airlines to go forward that charge them with causing deep vein thrombosis when a passenger complained of pain from a cramped seat and was denied the opportunity to move to a less-cramped space (Justin Scheck, The Recorder, via Law.com);

New York's high court has refused to recognize the independent tort of spoliation of evidence, according to Thomas Swartz at New York Legal Update;

In Pennsylvania, the Supreme Court said a podiatrist can not testify against an orthopedist in a bunion surgery case, according to Leon Aussprong (M.D., & J.D.) at his new Philadelphia Medical Malpractice Lawyer Blog;

In New York, about 9,000 ground zero workers may be near a billion dollar settlement (Daily News via TortDeform);

That potential settlement comes as the first of the September 11 suits gets set for trial (see: September 11 Judge Says Families Should Settle And Move On) before Judge Alvin Hellerstein, in the Southern District of New York. He made pre-trial rulings on the damages phase for the remaining 16 claims -- which will precede the liability phase in hopes of encouraging settlements -- according to this New York Times report;

Colin Miller makes his Personal Injury Law Round-Up debut with a post at EvidenceProf regarding the suit against Lindsey Lohan, and the admissibility of a police report (I also note that under New York law the result he suggests would likely be different) (via TortsProf):

Last week a jury returned with a verdict of $134.5M in compensatory damages against Wyeth related to its hormone replacement drugs Prempro and Premarin (Personal Injury Round-Up #32). Then the jury said "Oops!" because it had included punitive damages in its award, and so it reduced the award by $100M. And what did they then do in the punitive phase? To no one's surprise, they gave the money right back. (Howard Erichson at MassTorts, with more at Pharmalot);

Emergency room physician Shadowfox ruminates on a $5.4M medical malpractice verdict in the state of Washington over at Movin' Meat, and says his first instinct is sympathy for the doctor, not the family of the decedent (via Overlawyered).

And finally...

• Blawg Review #130 was a twofer this week, with one part coming from Geoff Sharp's Mediator Blah Blah from New Zealand and the other from Diane Levin's Online Guide to Mediation in Massachusetts;
• Grand Rounds is presented by NY Emergency Medicine, often of interest to those following medical-legal issues;
• The Healthcare Economist has the Health Wonk Review;
• One angry Grandma takes the law into her own hands and goes after Comcast, with a hammer; And another wields a gun.
  
• Lastly, Improv Everywhere understands it is legal for men to take their shirts off in public, but how about inside Abercrombie & Fitch? Video at right (via NY Mag)...
  

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

Labels: Personal Injury Law Round-Up

Some lawyers are dumb. I don't know how else to put it. And this particular pratfall has to be the fault of an attorney.

Last month I wrote of Progressive Insurance spying on a church group -- and taping private support group discussions where people were confidentially bearing their souls -- in order to obtain information on a claimant that was a member of the group.

After the Atlanta Journal Constitution busted this tactic on its pages, the CEO of Progressive apologized for the appalling conduct and said:

"When I read that story I was appalled and, frankly, didn't believe that it could possibly be accurate. I have since learned that the essential facts in the story are correct. What the investigators and Progressive people involved in that case did was wrong --period. I personally want to apologize to anyone who was affected by this incident."

So what happens now? According to yet another story in the AJC yesterday, Progressive is now defending a violation of privacy lawsuit that arose out of the spying on the confessionals, and now says its spying was reasonable. But this isn't because the defense lawyers are clueless and created the defense inadvertently. Progressive's spokesperson, according to the article, has defended the defense. That means, to me, that the idea either came from, or is being defended by, the general counsel to the company.

So when the CEO said it was wrong. Period. I guess he didn't really mean "period" as in we-have-no-excuse-or-justification-and-won't-even-try. Because now the conduct is reasonable.

Some folks, it seems, know the fine art of taking a bad situation and making it worse.

(hat tips: The Consumerist and Shigley)

Addendum: Perlumtter & Schuelke weigh in with frivolous defenses driving up litigation costs.


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

Labels: Insurance Industry

I mentioned the other day that Nicole Black at Sui Generis was accepting nominations for contests for best New York Blawg and Best New York Blawger.

The nominations are closed and the ballots are now posted. So if you care to vote, or simply wonder who else is blogging either from New York or about New York) then head on over. The ballots are only open for one week. Though I would never suggest you vote for me. Not my style.

Rumors of ballot-stuffing have, of course, already surfaced.

Labels: Blogging

This is how bureaucracy can kill a person.

At a high school in Queens, New York a memo went out to staff that in the event of an emergency, 911 should not be called. Because calling 911 in an emergency was apparently too easy. It wouldn't allow the Powers That Be to be in the middle of the emergency. So instead, according to this Daily News story, the staffer should do these four things:

1. Emergencies must be reported to the school's nurse, an assistant principal and the principal.
2. The child's parents must be notified. If the parents can't be reached, the nurse can decide whether to call an ambulance.
3. If no one is in the nurse's office, educators should report the matter to the nearest assistant principal and the principal.
4. And if they aren't available, the deans' office should be charged with obtaining the medical care.

Of course, if it's an emergency, by this point there's a good chance it's too late. I can't even begin to fathom what kind of bureaucrat would create such a dumb memo, but clearly they need to be canned for the safety of, well, everyone else. Even more incredibly, this policy was implemented October 1st at a Jamaica high school that had seen a 14 year old have a stroke earlier this year in April, and wait an hour before treatment.

This policy was reminiscent of an incident a few years ago while I was in Atlantic City. A patron collapsed on the casino floor. One of my brothers, who is a physician, knelt down to help. After a quick evaluation he looked up to the security guard standing nearby and told him to call an ambulance. So what did the guard do? He said, "Let me call my supervisor."

At that point my brother, with Warner Brothers cartoon character logo firmly emblazoned on his ball cap,looked at the guard and barked, "No. You will call 911 NOW. You can tell your supervisor later." It didn't take the guard long to understand the folly of the administrative procedures from the guy with the funny hat.

Sometimes negligence is a single event, like a red light that is run while a driver is in a hurry. And sometimes the negligence is institutionalized.


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

Labels: Personal Injury

It's not every day I land on the front page of the local sports section, above the fold no less. But I think the story fits in with personal injury law given the countless ways people get hurt, so I want to discuss it. (Runners' safety a high priority as days grow shorter.)

It's about safety, personal responsibility and assumption of risk. It is, in essence, about risk management. In this case, the risks are tripping over the unseen or being hit by a car when running in the dark. And the management part revolves around lights and reflective clothes. And fashion be damned.

The theme of personal responsibility is one I often use at trial. Defense lawyers like it too. So in picking the cases to take, it's a crucial parts of the analysis, regardless of whether it is a simple trip and fall on a broken sidewalk or a complex medical malpractice case. A jury wants to know what each of the parties did to prevent the incident that led to the injuries.

Oftentimes there is no clear cut answer, but a long sliding scale of grays. For example, a fall over a busted up portion of sidewalk may mean one thing to a juror if it occurred to a healthy 25 year old in clear weather in broad daylight (the failure to see that which is open and obvious) and something completely different if it's a senior citizen walking the same sidewalk at dusk in the rain. In either case a juror will want to know what the injured person did to keep themselves safe as they measure the liability of the owner of the land.

And yet, cases land in the courts all the time where it seems as if the plaintiff's attorney simply ignored substantial culpable conduct from his client. I can't imagine it is the more experienced attorneys that are accepting such cases. It's important to tread warily on matters where there may be a large degree of comparative fault.

There is also another lesson in this. The gut reaction of most defense attorneys, I think, would be to kick me off a jury panel in a civil case once they learned what I do for a living. But after reading the above, do you think they would be making a mistake in doing so?

Returning to the article, here is the money quote from yours truly for those too lazy to read the story:

"The headlamp is a great device to see and be seen - no matter how dorky it looks."

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

Labels: Personal Injury, Running

Nicole Black at Sui Generis is looking to crown both a best New York Blawg as well as a best New York Blawger. Nominations are open at this site. These things are always useful for discovering new blogs that others like. I've been nominated so far in the blawger category along with others, but I won't tell you to vote for me. I'd never do that. Hint at it perhaps, but beg and grovel for votes? I wouldn't stoop so low.

And a Best Blawg category exists at the 2007 Weblog Awards. I've also been nominated here (along with a bunch of A-listers, one of whom will obviously win). But there is a place to show your support by hitting the + button next to a nomination. I mean, if you want to. I wouldn't ask or beg or anything.

Anyway, since I'm still in my rookie year, suffice it to say I am flattered.

Labels: Blogging

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

Before getting to the lawsuits, let's look at related issues:

From the Department of Medical Mishaps: The Medical Quack lets us know that a man's dentures were lost during surgery, and found a few days later in his throat;

Last week I wrote about Texas tort "reform" and the New York Times article on the increasing number of doctors in Texas. The Times, I asserted, blew the statistics it used regarding increasing disciplinary actions, asserting a mere 8% rise instead of 79%. This was noted by Prof. Bill Childs at TortsProf, who has now started a study of the disciplined physicians to see how many are new arrivals. Prof. Tony Sebok at FindLaw also picked up the story with Does Texas Really Have More Doctors as a Result of Medical Malpractice Reform? Why a New York Times Article Making that Claim Is Seriously Misleading.

This is not the first we've heard about Texas and doctors (nor likely the last), as Prof. Charles Silver wrote in November 2006 at TortDeform: What's Up Doc? Not The Number of Physicians Practicing in Texas, with more discussion in the comments with Ted Frank. As the new doctors get credentialed and set up their practices, we will see, perhaps, if doctors facing troubles in one state pack their bags and flea to Texas, as I think they will due to the various immunities and protections afforded to them for negligence;

A battle over three jailed lawyers in Kentucky related to misappropriating tens of millions in legal fees heated up even more with the discovery that an assistant to one of the lawyers was an FBI mole that tape recorded conversations (ABAJournal). Was the wiretapping ethical will be the next issue, according to the Kentucky Law Review;

Personal injury attorney John Arthur Eaves, Jr is running for Governor of Mississippi, but as MassTorts prof Howard Erichson explains, it isn't on the usual Democratic platform;

As many as 40 doctors, nurses and other hospital employees are under investigation or suspension for leaking information regarding the medical care of actor George Clooney after a motorcycle accident (via Kevin, M.D.). Bob Coffield at Health Care Law Blog tackles the HIPAA violation, as does Orac at Respectful Insolence and girlvet at Tales of an Emergency Room Nurse;

Dr. Wes has information on "fake" medical board certifications, something to keep in mind when checking the credentials of any medical witness that claims to be "board certified;"

And now on some actual lawsuits:

John Bisnar at the California Injury Blog has sued the California Supreme Court regarding its issuance of an unpublished opinion that strikes down a jury award. The suit is premised on a violation of due process and equal protection rights. Days later, Daniel Solove posts, Should Courts Issue Unpublished Opinions? at Concurring Opinions, wondering where the compelling argument is for such things;

Kentucky has sued Purdue, according to Bill Childs, for misrepresentation of the addictiveness of Oxycontin, for the expenses related to treatment;

Sean "Diddy" Combs, rapper, promoter and marathon runner, has been sued in New York with an allegation that his guards beat the stuffings out of a fellow promoter at at a Bronx nightclub (via Sui Generis). The suit claims $5 in damages, though making this type of claim violates New York's prohibition against specific damage claims as per New York's Civil Practice Law and Rules, section 3017(c):

In an action to recover damages for personal injuries or wrongful death, the complaint, counterclaim, cross-claim, interpleader complaint, and third-party complaint shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled. (See also New York Cleans Up Claims Act);

A cop has sued the parents of a brain damaged child (via Jeralyn Merritt at TalkLeft). The child had been pulled from the family pool and the officer was there for resuscitation and slipped on the water. So where is the negligence? Was the family supposed to mop up the water while trying to save the life of their child?

Blackwater has been sued for its activities in Iraq by the Center for Constitutional Rights, also from TalkLeft, for allegedly opening fire on unarmed Iraqis;

A trial against Allstate (PI Round-Up #31) based on improper claims procedures has resulted, according to Kentucky Law Review, in a defense verdict; And blawger Hans Poppe pops up in another interview;

A $143M verdict came in against Wyeth related to increases in breast cancer for those that took hormone replacement therapy Prepro/Premarin (Howard Erichson, Mass Torts); [Update from MassTorts: Jury reduces damages by $100M, as they had included punitive damages in the compensatory award. Punitive damage hearing to follow.]

The Legal Reader notes a Rocky Mountain News story of a Colorado judge that tossed out a $1.2M verdict because, he said, the plaintiff's attorney engaged in "disrespectful cockalorum, grandstanding, bombast, bullying and hyperbole." (Other than that, your honor, how was the show?)

Notorious child killer Joel Steinberg succeeds in getting part of the $15M judgment against him thrown out by New York's high court. (Decision, Launders v. Steinberg). I covered the matter previously in: NY Child Killer Wants $15M Award Tossed -- Decision May Have Wider Repercussions. More commentary by Nicole Black at Sui Generis;

And Evan Shaeffer has a list of upcoming Vioxx trials, for those who are keeping score.

And finally:

• David Harlow puts up Blawg Review #129 over at HealthBlawg, as he explores the best of the blawgosphere;
• The Cavalcade of Risk is up at Robert Laszewski's Health Care Policy and Marketplace Review, taking a look at risk management, that special place in the world where law and insurance come together;
  
• And a YouTube search of "personal injury attorney" returns 879 hits, showing how some are using video to pitch their services, and how others just want to have fun.
  

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

Labels: Personal Injury Law Round-Up

In my Friday round-up I briefly wrote about the lame attempt of the Dozier law firm to claim copyright infringement if any part of their cease and desist letter was published. Public Citizen had published the letter on behalf of the recipient, as fair use, and challenged Dozier to sue them. I followed up with a fuller post on Tuesday (Don't Post This Letter On The Internet!). While not what I usually write about, the sheer audacity of it caught my interest.

As a result of Dozier's claim of a copyright infringement for publishing any part of their cease and desist letters, The Streisand Effect seems to be taking hold, and others are now writing on the issue. Additional links follow, of which the first, by leading copyright attorney William Patry, is particularly enlightening on how he thinks Dozier misused the copyright claim in their letter:

• Misuse via Cease and Desist Letters (The Patry Copyright Blog);
• More DirectBuy Complaints (before they hired Dozier Internet Law) (tdaxp.com)

But rather than let the issue fade away, as I think would have been wise, Dozier has now published more on the subject at their own website here, as well as by making nasty remarks in the comments section here. Those comments first acknowledged that they had no U.S. authority for their position and then sought to change the subject by saying a personal injury attorney should keep his nose out of this. Blaming the messenger, while a fairly old and traditional tactic for distraction, obviously ignores the issue.

The publication of the new letter by Dozier will, of course, lead to yet more discussion not only of the issue, but of their client DirectBuy and the original allegations that the company was a scam. It was those allegations Dozier had apparently been trying to squash. Here is the first I have seen in response to that new letter, though I suspect other responses may follow:

• How not to handle negative feedback: A preliminary case study of Dozier Internet Law (tdaxp.com);

I can only think of two reasons for Dozier to publish such a letter on their site: The first is sheer folly, since it draws yet more attention to the charges against the company they wish to defend.

The second is more troublesome. Is Dozier simply trying to create more controversy, and thus more links to their website and hopefully more business? That will surely be one result of publishing a letter to Public Citizen on their website instead of reaching out to them privately. But this would also raise very troubling issues regarding attorney ethics and legal malpractice since this is seems to me clearly detrimental to their client. I prefer the first explanation -- that it is sheer folly and not an ethical breach -- though a savvy Internet based business must surely anticipate the repercussions to their client of additional commentary on the subject.

In either case, I think a legal malpractice claim could theoretically be made against Dozier for taking a bad situation and making it worse, in the event DirectBuy is harmed by their counsel's conduct. But only time will tell on that.

Labels: First Amendment

How many lawsuits to you see where the entire incident is captured on film, in front of a studio audience? Former child star Danny Bonaduce has been sued by former Survivor contestant Jon "Johnny Fairplay" Dalton after he was dumped over the shoulder onto his face at an awards show.

The altercation happened last week at the FOX Reality Really Channel awards, which I oddly seem to have missed.

So, is it Dalton's fault for initially jumping on Bonaduce?

Or Bonaduce's fault for dumping Dalton over his shoulder?

Or is this a classic case of trying to apportion fault among both participants, and if so, what percent fault for each?

The clip you see here is less than a minute. You decide.


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

Labels: Personal Injury

Public Citizen wants to be sued. Really. They asked for it.

Some lawyer at an outfit calling itself Dozier Internet Law sent a cease and desist letter on behalf of one of its clients, along with this threat:

Please be aware that this letter is copyrighted by our law firm, and you are not authorized to republish this in any matter. Use of this letter in a posting, in full or in part, will subject you to further legal causes of action.

Right. So Public Citizen, after publishing the entire letter on its website, tossed down the gauntlet on behalf of their client with this repsonse:

By this letter, we are inviting you to test the validity of your theory that the writer of a cease and desist letter can avoid public scrutiny by threatening to file a copyright law suit if his letter is disclosed publicly on the internet.

The writer of the original letter, Donald Morris, seems to have clearly done his client a grave disservice with this stupidity. (I mentioned this the other day in my personal injury law round-up, but thought this chuckleheaded conduct needed its own post.) Perhaps his threats have succeeded before, but the result is that the letter, and the claims against his client, are now being re-broadcast across the internet.

And what was the dispute about? Seems his client is a company called DirectBuy, and it has been the subject of negative reviews from contributors to a couple websites. Whether the claims are true or not I have no way of knowing, but now there are certainly more people discussing whether their client, DirectBuy, is a a scam or a rip-off and wondering if they should stay away from them.

Public Citizen, by the way, isn't the only one who wants to be sued. The full text of the letter can be found at tdaxp.com, and I hate Linux published this Don't Forget To Sue Me Too demand:

Well hot damn... I think I just violated their copyright as well... and of course for such threats to be meaningful... they have to be willing to make good on them.

With that said... I hereby demand that you Mr. Morris immediately file a copyright infringement suit against Mr. Leonard in this matter and name me as a co-defendant for my blatant disregard for your copyrights in my reproduction of parts of your letter that is marked as "for negotiation and settlement purposes only," not to mention hosting a full copy of it here, as well as all other persons and groups who reproduced, hosted, discussed, read or thought about any part of this letter.

This blog post puts you on notice that should you refuse to comply with our demands by October 15, 2007, I will have no choice but to recommend that the blogosphere pursue all legal causes of action, including the further reproductions of your letter, to protect its interests and that of all free people in this country who may wish to express an opinion you or your client may not agree with.

Considering that Dozier Internet Law brags that they are "The Lawyers for Internet Business," they sure did a great job of tripping over their own feet.

And then there is this boast from their site:

John Dozier was interviewed for the news report below in Silicon Valley in August, 2007 and Youtube recognized it with a "most linked to" honor

OK, so now they have another link. Though it might not be what they wanted. And I suspect they'll get a few more.

[Addendum: More on Dozier v. Public Citizen, and Potential Legal Malpractice]
-------------------------------------------------------------------------------
(Eric Turkewitz is a personal injury attorney in New York)

Labels: First Amendment

New York is building new bike lanes, but not the usual kind. And that is why it is of interest to personal injury attorneys, since those in the field are accustomed to looking at an accident, and asking why something wasn't safer.

The video at this link runs for only two minutes, and shows the recent change to Ninth Avenue in Manhattan, and the new separation between drivers and bikers, with a lane of parked cars between the two. It shows something every city should be doing to enhance safety (among other benefits).

It should be notable when things change for the better. New York's Mayor Mike Bloomberg apparently "gets it." The bike lane is currently only seven blocks long, but the Department of Transportation is calling it the street of the future.

Between 1996 and 2003 there were 225 fatalities and 3,500 injuries to bikers.

It's easy to complain when things go wrong from a safety standpoint. In fact, that is much of what attorneys do. And applauding when things are done right often falls by the wayside. Well, I see something being done right, and New York deserves the acclaim.

Addendum: Now that I figured out how to add the video clip, here it is:

Labels: Odds and Ends

A trial against McDonalds out of Kentucky regarding a strip search hoax has resulted in a $5M punitive damage award and a $1.1M compensatory damage award.

It is not yet on the newswires, but just turned up at Know More Media.

Background on the case can be found at:

• Kentucky Law Review
• Hans Poppe Law Blog
  

Labels: Personal Injury, Punitive Damages

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

Let's start with what's really important. Me. I'm pleased to announce that this blog (and this round-up) has been added to an electronic law library at Western New England College, School of Law via their monthly Cybercites. Thanks to TortsProf Bill Childs (who was also added) for the heads up.

And now off to the races, with a top-heavy helping of tort "reform" pieces from various states:

Ben Glass gives an example of the harshness of Virginia's tort "reform" law that caps both economic and non-economic damages, which sacrifices the most badly injured on the alter of insurance company profits; and Wisconsin's harsh "reform" statute that forces the taxpayers to pick up the tab for repeatedly negligent doctors;

Out of California, J. Craig Williams at May It Please The Court looks at the same tort "reform" issue in California, and the immunity for negligence so many medical practitioners now enjoy;

In Texas, Dr. Forney Fleming, a leading tort "reform" advocate that seeks immunities and protections for defendants and has done the talking head bit on TV for the cause, turns out to have been reprimanded by the Texas Medical Board on one case and accused by the Board of providing substandard care to at least six others. You can get lots of the gory details at TortDeform, The Burnt Orange Report, and Perlmutter & Schuelke, including that he has also been sued at least 14 times and admitted to practicing medicine while drugged up. But hey, you know that it is all really the fault of those darned plaintiffs' attorneys, right? Stay low so the black helicopters don't get you;

Texas tort "reform" also landed on the front page of today's New York Times, with a focus on the huge increase in doctors flooding into the state. But did the Times blow the story on the escalation of disciplinary actions also occurring? I hit that subject earlier today with links to many other bloggers on the subject;

And at Overlawyered, tort "reformer" Walter Olson addresses Fred Thompson's opposition to congressional limits on liability on federalist grounds. Those on my side of the bar may be surprised at Olson's opinion;

Meanwhile, Anderson Cooper this week presented Insurance companies fight law on punitive payouts on CNN, as the industry fights back against a law that punishes them for bad faith. No Fault Paradise ruminates on just how such a law would work;

Moving on to the problems of those injured in accidents, a new report referenced by Stark & Stark, finds that those who have suffered a brain or spinal injury are 33% more likely to file for bankruptcy;

From the Department of Dangerous Crocs: Are the popular shoes dangerous on escalators? A rash of accidents and injuries, reports the Southern California Injury Blog, have been appearing around the nation and could give rise to product liability suits;

We'll need good shoes to climb the ivory tower to visit TortsProf Sheila Scheuerman, who has a useful list of the 10 top downloads in tort and liability law from the Social Science Research Network;

And from the Department of Blown Apologies: Thomas and Friends customers were sent an apology for lead paint in their toys. And a gift!!! Which was painted with...ahem...lead paint. Story at The Consumerist.

And off into litigation we go...

Arkansas prepares a $600M lawsuit against pharmaceutical makers for marketing off-label uses of their goods (Lawsuits and Judgments);

Greedy Trial Lawyer has info Allstate being the "Good Hands People," at least for those that accept their low ball offers, and the trial starting this week against Allstate for fraud. The Poppe Law Firm Blog also has coverage. I previously asked about "Allsnake" here.

Tony Seebok at FindLaw continues with the second of his two-part series on Vioxx and whether class action certification is appropriate (part one is in Round-Up #29 with other Vioxx posts): When Is A Class Action Superior to Multiple Individual Lawsuits?;

When 21 million pounds of ecoli tainted hamburger beef gets recalled, it is time to check in with food poisoning guru Bill Marler for the scoop, and yes, the lawsuits against Topps have already started. And late-breaking news, the company is going out of business, proving once again the ruthless efficiency of capitalism: If you screw up, your company goes down;

A furious federal judge has levied up to $5M in sanctions against defense counsel and their clients in a medical insurance class action (via ABAJournal);

In Kentucky, a case against McDonalds regarding a strip search has gone to the jury, with Kentucky Law Review providing many links. Hans Poppe was interviewed by local television for the story, and gives his opinion. (Addendum: Late-breaking, according to an email from Hans, there is a $6.1M verdict against McDonalds with $1.1M in compensatory damages and $5M in punitive damages);

In Miami, a retained surgical sponge has resulted in a $2.4M medical malpractice verdict;

Isiah Thomas, James Dolan, and the owners of the New York Knicks, have been hit with an $11.6 million punitive damage award for sexual harassment in a New York courtroom. Ted Frank at Overlawyered complains the award is too high, but of course the award must still pass judicial review at the trial court level and an appeal. The case is far from over;

Isiah Thomas and Clarence Thomas. Both about race and both about sexual harassment and both at the same time. What were the odds? Bridget Crawford at Feminist Law Professors ties together the two Thomases and sexual harassment, as does Megan Izen at RaceWire, Lisa Takeuchi Cullen at Time-blog, Kia Franklin at TortDeform and Michael Dorf at Dorf on Law (my own thoughts on the judge are here: Is Clarence Thomas Playing the Race Card Again?)

But litigation sometimes keeps going, even after verdict or settlement. Alexandra Lahav at MassTorts covers the story of New York's continuation of prisoner strip searches in violation of a prior settlement, that may affect tens of thousands of people.

And finally:

• Blawg Review #128 comes to us out of Lex Ferenda from Trinity College in Dublin;
• Grand Rounds 4.02, the medical world's own blog carnival, arrives in Seussian fashion at Musings of a Distractable Mind;
• This one is priceless and really deserves its own post if I weren't so busy: From Public Citizen's Consumer Law and Policy Blog comes: Don't Post This Cease-and-Desist Letter, Or Else. Seems some chuckleheaded lawyer representing DirectBuy -- which isn't happy that some folks think the company's direct buy plan is a "scam" and a "nightmare" -- thinks his threatening cease and desist letter is copyrighted and can't be posted online. Ha! says Public Citizen, which tells Dozier Internet Law, P.C to stick it where the sun don't shine. And yes, "chuckleheaded lawyer" is clearly an opinion.
  
• Finally, while I thought I had some pretty good x-rays at my web site, this one beats them all: (Radiology Picture of The Day, via Respectful Insolence).
  

Enjoy the weekend.


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

Labels: Personal Injury Law Round-Up

The New York Times reports today on the huge increase in doctors flooding into the Texas since medical malpractice damages were severely capped in 2003. Want to know what else has gone up? Patient complaints and actions against doctors by the Texas Medical Board.

The article quotes an official as saying that disciplinary actions have risen only 8 percent. But is that really true? Not when I look at the numbers.

Here's the quote buried on page 2:

Since 2003, investigations of doctors have gone up 40 percent, patient complaints have gone up 25 percent, and disciplinary actions about 8 percent, said Jill Wiggins, a board spokeswoman.

Maybe that official isn't looking at these statistics. Nor, apparently was the New York Times.

Total Disciplinary Actions:
2002: 187
2003: 277
2004: 256
2005: 304
2006: 335

If you measure from 2002, the last full year before the caps were imposed, then disciplinary actions rose 79%. If one is going to do a "before" and "after" comparison that seems the likely year to use.

If, on the other hand, you are trying to spin the New York Times to claim only a minimal change, then you ignore the rapid increase over four years and minimize the damage by only discussing the change from 2005 to 2006.

By the way, 2007 isn't shaping up much better, with 88 doctors disciplined at the Medical Board's August meeting, 30 in June, 34 in April, and 41 in February. That's 193 so far, with two more meetings to go, on a pace to well exceed the 2002 numbers.

So Texas is clearly getting more doctors. They just might not be the ones you want.

See also:

• More Docs Messin' w/ Texas ...While Texas Messes with Patient-Plaintiffs (TortDeform)
• Well What Do You Know - Tort Reform Works (AnkleBitingPundits)
• Medical Malpractice Caps Work (Health Care BS)
• Texas: A Study in Tort Reform (Below the Beltway)
• How About that Tort Reform (Off the Kuff)
• Medical Malpractice: More Docs in Texas (Perlmutter & Schuelke)
• After Texas Caps Malpractice, Docs Move In (WSJ Health Blog)
  

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

Labels: tort reform

I've been asked by Anne Reed at Deliberations to compose a top ten blawg list, as she in turn was asked to do by the anonymous editor of Blawg Review, because she is "simply the best." I can't argue with that.

So, without further ado, and without replicating any blawgs on the two lists linked above:

1. Overlawyered - Walter Olson's blawg that needs little introduction, giving you the skinny on suits that should never have been brought, and politics from the Big Business side;
2. TortDeform - The polar opposite of Overlawyered, currently written by Kia Franklin and bringing you the consumer side of the equation. If you read one you must read the other;
3. WSJ Law Blog - Peter Lattman brings quirkiness to his employer's staid personality;
4. How Appealing - Howard Bashman is the best aggregator of law stories around, even though the brand new ABAJournal is breathing down his neck with competition. The only bad part is I now have to root for his Phillies since my Mets choked;
   
5. Sui Generis - Nicole Black is the reigning Queen of New York blawgers, and the first to link to my little corner of cyberspace;
6. Simple Justice - I don't even practice criminal law, but Scott Greenfield is such a great writer, original and funny, that this should be part of anyone's must read list. You won't see the mere repetition of someone else's thoughts coming off his keyboard.
7. Real Lawyers Have Blogs - Kevin O'Keefe has provided plenty of tips on blogging, and should be required reading for anyone who wants to do it well;
8. New York Attorney Malpractice Blog - Andrew Bluestone's blog covers cases from all over, and is great reading for examples of how lawyers get themselves in trouble, and serves as a constant reminder on protecting oneself;
9. TortsProf - Bill Childs supplies a never-ending series of stories about torts, making him a must read in the field;
10. Kevin, M.D. - Not a blawg you say? Dr. Kevin Pho hits the intersection of law and medicine with his aggregated medical content on a regular basis. The Bashman of the med-bloggers.
    

Bonus Blog - Not technically a blog, but a blawg search tool, Justia.com allows you to click on a category and then get an RSS feed for that entire category. Pretty handy if your RSS feed is filling up with so many individual blogs, and you want to see some of the more irregular ones that float about.

And so this meme is now passed on to the above. But don't blame me for starting it.

Addendum:
I've also now been tagged by Kevin Underhill at Lowering the Bar, who was in my rough draft along with other legal comics at Quizlaw, Legal Antics and SayWhat? The problem, of course, is that once you start with the comedians you never know what will come flying back at you. (I've also been tagged by Nicole Black who not only runs Legal Antics, but Sui Generis.)

I could easily fill another post with more bloggers. I felt guilty about cutting Judicial Reports, Matt Lerner's terrific New York Civil Law, and Thomas Swartz's New York Legal Update, for instance, but I was already top heavy with New Yorkers.

And since I read so many personal injury blogs, I felt bad not writing about up-and-comers such as Hans Poppe, Ronald Miller or Perlmutter & Schuelke, especially since most of the blawgosphere doesn't usually see them.

And I thought about tagging a Highly Trained Monkey, not because she has anything do with law, but simply because she hates getting tagged with memes.

So I could list another 10, but it wouldn't be right.

Labels: Blogging

Both breasts were removed. Why? Because a lab technician admitted to cutting corners while labelling tissue specimens.

According to an ABC News report, a 35-year old woman underwent a double mastectomy after being told she had breast cancer, when in fact, she did not. The Long Beach, Long Island victim has now filed suit in Nassau County Supreme Court.

If, in fact, the technician was cutting corners either to save time or money, then we may be looking at a very rare beast: A matter of punitive damages in a medical malpractice case (though this could also be a matter of general negligence if done by the lab and not medical malpractice). The standard here in New York for punitive damages is reckless conduct that endangers the health, safety and well-being of the public (as opposed to negligent conduct). And this must be proven by clear and convincing evidence (as opposed to preponderance of the evidence).

In fact, just last week the Appellate Division Second Department (where this case resides) issued an opinion on the subject of punitive damages in the context of an abortion case. In Randi A. J. v Long Is. Surgi-Center, the defendant disclosed to the mother of the patient that her daughter had been in, allowing the mother to deduce her daughter had an abortion. While the case was sent back to the trial court on other grounds, it is a good discussion of the state of punitive damages law in New York.


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

Labels: Medical Malpractice, Punitive Damages

Sol Wachtler, formerly the Chief Judge of New York's highest court, has been readmitted to the New York bar. Wachtler, who had served in the Court of Appeals for 20 years, had plead guilty to threatening and harassing his former lover 14 years ago. I had covered his motion to be re-admitted on February 21st (Sol Wachtler Getting Law License Back?).

Amongst other transgressions that involved stalking and hiring a private detective and anonymous obscene messages so that she would turn to him for help, he also had threatened to kidnap her teenage daughter.

He served a 13 month jail sentence and wrote a book about his experiences in which he blamed an undiagnosed mental illness and prescription drugs for his problems.

In a a biography of Wachtler (King of the Mountain) by Albany Times Union editor John Caher, he writes of the former Chief Judge:

"Wachtler struck down the 'marital exemption' to rape. Prior to his court's decision, there was an exemption in the rape statute that essentially allowed a man to rape his wife, even a wife with whom he was estranged, with absolute impunity," Caher says.

"Wachtler declared the law unconstitutional and initiated a reform. Other Wachtler decisions broadened the human rights law to prohibit discrimination against obese people and provided women with a far stronger sword against gender bias. He wrote a passionate dissent when his court found nothing wrong with a prison guard openly displaying his affinity for the KKK. Long before it was socially acceptable to tolerate homosexuality, Wachtler publicly and gratefully accepted the endorsement of a gay rights group."

Coverage can be found here:

• Once a top judge, now 'delighted' just to be a licensed lawyer (Newsday)
• Sol Wachtler, former chief judge, able to practice again (NY Daily News)
• Disgraced Ex-Chief Judge Is Readmitted to Bar (New York Law Journal, via New York Lawyer)

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

Labels: Judiciary

When I watched the Clarence Thomas confirmation hearings many moons ago, I was more than a bit surprised to hear him fight back with a claim that the Anita Hill allegations of the hearings were, in his words, a "high-tech lynching for uppity blacks."

And so I waited for the questions that would address the issue:

Judge Thomas, do you think that allegations of sexual harassment against a candidate for the Supreme Court should be investigated by this committee as part of the advice and consent function of the Senate?

If such allegations were true -- for a hypothetical candidate, for we know you deny them -- do you think that they would be fair grounds for us to deny our consent?

Those questions, I think, would most fairly be answered as "yes." And if the answers are yes, then the investigation has nothing whatsoever to do with race.

One could quibble with whether the allegations should be aired in open or closed session, but that doesn't address the issue of whether the issue should be explored. Ultimately, those that were interested in the classic he said / she said dispute claimed to believe the person that aligned with their politics.

But as far as I could tell, those important questions never came, and Senators were too cowed by the remarks to respond to the issue.

And now Judge Thomas is doing it again in a new book. From Jan Crawford Greenburg at ABC News:

Thomas says he had told [his wife] Virginia that some of his opponents "would try to kill me," and he had grasped how. It dawned on him that he was being treated no differently that those Southern blacks in his grandfather's time.

"We knew what their weapon of choice was to be: the age-old blunt instrument of accusing a black man of sexual misconduct," Thomas wrote. "And it did not matter that a black woman was being used to make the accusations."

And so, Judge Thomas once again walks down the road of blaming racisim for the sexual harrassment investigation.

And I am wondering who will call him on it.

See also:

• The Smear This Time (Anita Hill, New York Times Op-ed)
• The Clarence Thomas-Anita Hill Controversy and Irrational Hatred of Ideological Adversaries (Ilya Somin @ Volokh)
• The Left's Strategic Mistake (?) Regarding Clarence Thomas (David Bernstein @ Volokh)
• Witness for the Persecution (Eugene Robinson at Washington Post)
  
• Anita Hill reemerges, as she must, to respond to the Clarence Thomas memoir (Ann Althouse)
• Anita Hill Fights Back (Peter Lattman @ WSJ Law Blog)
• An Angry Justice Thomas Targets Liberal Groups (ABA Journal)

Addendum:

• ABC Sympathetically Spins 'Withering' Media Attacks on Anita Hill (Scott Whitlock, NewsBusters)
• Justice Thomas: I'm not "bitter", you "uninformed ... traitor" (PrawfsBlog)
• Justice Thomas Appreciation Page;
• Clarence Thomas: "Character" is What Matters (Subject to Complete Defeasance)
  

Labels: Judiciary