Personal Injury Law Round-Up #38 is up at Perlmutter & Schuelke. So while the ABA chooses to ignore the field of personal injury law, Brooks Schuelke shows that it's blawgosphere is as vibrant as any other, with an ever-expanding array of law, policy and links.

Labels: Personal Injury Law Round-Up

Random notes will be for subjects that I want to blog about or things that need a bit more broadcast, but I just don't have the time for a separate post. They will appear on a, you guessed it, random basis:

• Why is health care so expensive? Might bill padding be involved? (Dr. Wes)

• There is a follow-up to this post from August: Wrong Site Brain Surgery -- Three Times in Six Years at RI Hospital. They've now been fined $50,000;

• Blawg Review #136 is up from down under at Freedom to Differ;

• Blawg Review #135 was a two-parter co-hosted at Transgender Workplace Diversity and the Rainbow Law Center;

• The Impact of Race and Poverty on American Tort Awards (Ron Miller)

• Malpractice awards cap would harm victims (Newsday Op-Ed by Jeffrey Kimmel)

• New York Doctors Claims of Medical Liability Crisis is Deja vu All Over Again (TortDeform)

• NY Lawyers Code of Professional Responsibility Updated Regarding Lawyer Advertising (Sui Generis)

• Did Rudy Giuliani steal 400K from indigent defense fund to pay for dalliances with his mistress? (Simple Justice). And did he commit an Alan Hevesi type felony? (TalkLeft)

• Virtual Hip Replacement Surgery. A very cool interactive tutorial on how it is done (via Kevin, M.D.), and if you want the real thing instead of virtual, go here.

And as a follow-up to the marathon Blawg Review, one last video:

Labels: Random Notes

Out on Long Island, the name Harvey Finkelstein is now widely known. The anesthesiologist has been the subject of several articles this past week concerning a three-year investigation that revealed he had potentially exposed hundreds of patients to blood-borne diseases by routinely reusing syringes in multi-dose vials. This exposed patients to Hepatitis and HIV/AIDS.

While Finkelstein used only one syringe per person, he would stick the syringe into a multi-dose vial that would also be used by others, thereby contaminating the remainder of the vial.

Aside from the conduct of the doctor, this story has a kicker: The state's investigators waited three years to let patients know, sending out 628 letter just this past week. Why is that significant? Two reasons, one medical and one legal.

First, and clearly of paramount importance, if someone was infected they didn't get prompt treatment. Second, because the statute of limitations in medical malpractice in New York is 2 1/2 years, those that may have been infected not only didn't learn about it in a timely manner, but may not be able to institute legal action to redress their grievances. In New York, the statute of limitations is not governed by when the negligence was discovered, but by when it happened or by end of the continuing treatment by that physician.

In today's news, Newsday writes of the secret procedures in New York that keep disciplinary issues as far from the public eye as possible. New York, it seems is one of only five states out of 42 that were surveyd last year in which no parts of the proceedings were public. From the article:

It is among a handful of states that conducts the entire probe in private and withholds a doctor's name unless the complaint is upheld. And even after an investigation is concluded, doctors are not required to notify patients if they are practicing under sanction. What information is available is found on a state Web site that critics argue few people know about.
...

The entry on the Office of Professional Medical Conduct Web site about Finkelstein is this: "Nondisciplinary order of conditions issued pursuant to New York State Public Health Law Section 230. for three years including conditions relating to infection control."

Well, that description tells you a lot, doesn't it?

Finkelstein, by the way, has had 10 malpractice settlements. That makes him one of 127 of New York's 70,000 physicians with a similar history.

See also:

• PATIENTS NOT TOLD ABOUT POTENTIAL DANGER FROM SYRINGES (Legal Medicine)
  
• Dix Hills Doctor Medical Malpractice Investigation Grows, Leads to Finger Pointing (News Inferno)
  
• THE SYRINGE MESS: State Seeks A Remedy; Handling Of Dix Hills Doctor, Hepatitis Scare Prompt Commissioner Of Health To Consider Institutional Changes (Accountability Central)
• After Hepatitis Case, New York State Acts to Speed Alerts to Patients at Risk (New York Times)
• DA investigating needle scare centered on Long Island doctor (Newsday)
  

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

Labels: Medical Malpractice

I'd like to tell you to vote for me in the latest law blog popularity contest. After all, it's being run by the ABA Journal so it has to be prestigious, right?

But I can't tell you that. Because I wasn't nominated. Nor, for that matter, was any other law blog devoted to personal injury law.

Maybe personal injury blogs all stink? Maybe we don't discuss enough law, or have enough visitors? Perhaps all the blogs are poorly written? I mean every last one. Perhaps the bloggers really aren't worthy of mention? How else can an entire field of law be ignored?

So let's take a short look:

• John Day (Day on Torts, who recently published a handbook on tort law)
  
• Evan Schaeffer (Legal Underground and Illinois Trial Practice, and a grand daddy of legal blogging who authored Blawg Review #1 )
• Prof. Bill Childs (TortsProf, dealing with a great deal of PI, as well as more)
• Profs. Byron Stier and Howard Erichson (Mass Tort Litigation Blog)
• Beck/Herrmann (Drug and Device Law including pharmaceutical and medical device product liability, and both of whom are also book authors)
• Bill Marler (Marler Blog, one of many on food poisoning that has, you know, been in the news a bit)

You would think that, with so much noise being made about the need for tort "reform" because personal injury suits are so problematic, there would be at least a few blogs devoted to that subject as part of the top 100.

But if you thought that, you would be wrong. It's not a question of one blog being picked over another since this is, after all, just another vanity contest that small niche blogs don't have a shot of winning. No, the significant thing is that the vaunted American Bar Association simply doesn't think that this field of law is relevant. The decision to ignore a vast segment of the law speaks volumes about the organization.

[Addendum: The "ABA Mission" is at odds with their exclusionary choices:

The Mission of the American Bar Association is to be the national representative of the legal profession, serving the public and the profession by promoting justice, professional excellence and respect for the law.]

OK, short rant over. Cue Rodney...

Labels: Blogging

In a major decision today from New York's highest court, defendants have been granted permission to privately interview the treating physicians of personal injury plaintiffs after the close of discovery. In permitting this, the Court appears to have cast aside the privacy provisions of the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA).

The decision in Arons v. Jutkowitz is expected to open a small floodgate of attempts by insurance companies and defense lawyers to privately approach treating physicians without the knowledge or permission of the patients and take statements without their counsel or any court reporter being present.

The conservative Judge Read, writing for the majority, concluded that plaintiffs can be forced to sign HIPAA compliant authorizations to allow the interviews. Because this will be done outside the formal deposition process, however, the usual safeguards regarding relevance and accuracy are no longer in place.

So how does the court reconcile the privacy that HIPAA affords with its determination to allow private interviews? While some medical conditions are certainly waived by bringing suit, others may not be. The solution, according to Justice Read, is to simply trust the defense lawyers. Justice Read wrote with regard to the HIPAA issue:

"it is of course assumed that attorneys would make their identity and interest known to interviewees and comport themselves ethically"

So that's it. Congress's attempt to safeguard medical privacy by statute has now been overruled by New York's Court of Appeals. If a passenger in a car accident brings lawsuit regarding a broken hip, for instance, the privacy of the person's unrelated drug, pregnancy or psychiatric history is no longer protected by federal statute. It's only protected by trusting the lawyer defending the case for the insurance company. HIPAA is gone.

The dangers and risks of this decision will now play out over the next several years, as doctors are informally interviewed and then confronted with statements at trial that they claim were never made or were taken out of context. It will also come up when doctors are interviewed and questioned about facts that may be wholly unrelated to the injuries in question and still protected by HIPAA.

This is a bad decision that will inevitably result in a mountain of litigation. And given the apparent challenge and conflict to the federally mandated HIPAA, I am left to wonder if an appeal to the US Supreme Court will be attempted.

Justice Piggott, writing in dissent about the judicial activism of the majority, addressed the procedural discovery process we have in New York:

Our holding today grants defense counsel the unprecedented ability to compel a plaintiff, who has placed his or her mental or physical condition in controversy, to execute authorizations allowing defense counsel to speak to his or her treating physicians outside the formal discovery process and without the plaintiff being present...it is "beyond cavil" that "neither the machinery in CPLR Article 31 nor the applicable Uniform Rules [for New York State Trial Courts] provide for the disclosure of this nature."

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

• See previously: Medical Malpractice - Defense Firms Denied Right To Interview Plaintiff's Treating Docs (3/19/07, this site)
• New York, New York! (Arons allows ex parte interviews of treaters) (Beck/Herrmann with opposing view)
  

Labels: Personal Injury

Medical malpractice can happen to anyone. And last week while we celebrated Thanksgiving, actor Dennis Quaid was running back and forth to the hospital because it happened to his two-week old twins when they received a massive overdose of a drug. And it happened at the well-regarded Cedars-Sinai Hospital in Los Angeles.

Now the kids will hopefully be OK despite this, as the overdose was realized and an antidote given. But it's a good lesson on how to make improvements in the mechanic of how hospitals work and how drug companies package their products. If only people would listen.

The kids had IV lines flushed with Heparin, a blood thinner. They were supposed to be flushed with an infant's dose of 10 units/ml. But they got an adult's dose of 10,000u/ml instead. So they received a 1,000x overdose. Oops.

And worse yet, the hospital had previously been warned by the FDA of the potential for mix ups between these two doses.

Here are the questions for the hospital and the drug manufacturer:

What were the adult strength drugs doing in the neonatal unit?
Why do the bottles look the same?
Why weren't there precautions in place to separate out different dosages?
Why were FDA warnings ignored?

At EverythingHealth (via Grand Rounds at Prudence), Dr. Toni Brayer writes:

The way to prevent these errors and "near-misses" is to put processes into place in health care like we do in aviation safety. Make it hard to do the wrong thing. Labels should have "red alerts" to show different strengths. The background colors on the bottles should be different and the font size needs to be increased. Look alike drug names should be differentiated by using TALL LETTERS. (glipIZIDE vs. glyBURIDE). The bottles should look completely different so it is obvious to every care giver...whether stocking a med cart or administering a medication.

If you think this is a rare occurrence, think again: Each year there are over 1.5 million medication errors in the United States, and as many as 7,000 people will die from them. And our children are the most likely victims (see: Children Are Most Likely Victims of Surgical Medication Errors).

But sometimes, it takes celebrity misfortune to bring home the reality of the problem.

For more:

• Medical errors are not always doctors' fault (Malpractice via Kevin, M.D.)
• Heparin Overdose in Three Infants Raises Safety Questions (MedPage Today)
• Medication Errors (FDA)
• Dennis Quaid Twins Update: Hospital Was Warned About Heparin Dangers (Babble)
  

(Eric Turkewitz is a personal injury attorney in New York)
-------------------------------------------------------------------------------
Update (12/4/07): Dennis Quaid Sues Baxter Healthcare Over Heparin Label Mixup for Twins

Labels: Dennis Quaid Lawsuit, Medical Malpractice

The New York State Board of Law Examiners managed to foul up this year's bar exam, as readers of this space know, by losing many of the essay answers that had been submitted on laptops.

I covered it when 400 answers were still unaccounted for at the end of August: New York Bar Examiners Still Can't Find Complete Essay Answers.

And after the results were made known 11 days ago, and the examiners claimed to have taken educated guesses on the missing results, I wrote about it here: NYS Bar Examiners Do Grade Approximation For Missing Exam Answers

But over the holiday weekend, this anonymous comment appeared on my site, claiming that credit was given for an essay with no answer, and the same credit was given for an essay with a great answer. And there was no indication that this person was told his/her essays were part of the missing ones:

Here's a fair summary (having taken the test, having intense problems down loading and uploading the test) and failed: I left one NYS essay blank. (Ran out of time) I received a 3/10. That's odd...But then, on the essays I KNEW--KNEW so well that I was practically jumping for joy as I took the test--I received a 3/10 on those as well.

BOLE claims they have informed all those who had computer essays lost--I suspect not. I have written away for my answers and I will be intensly interested to see how that blank esay scored a 3/10...I suspect they were ALL blanks, because of the uploads.

If anyone else is in this prdicament, please chime in. There are a few attorneys that specialize in this, and I've contacted a few.

Which leaves all to wonder, especially those that were given a failing grade, exactly how the Board Examiners actually graded the essays. Or if they did at all.

Addendum: There is some discussion at Above the Law about the continued weirdness of the NY exam, and as to the legitimacy of the comment, and understandably so. I am reprinting an exchange from that site where I gave the reason I thought the comment was legit:

Anonymous: Most likely story: 1) Guy is a moron - gets 3/10 on 'esay' he KNEW; 2) BOLE sees blank essay - thinks guy had software problem; 3) BOLE gives guy 3/10 on blank essay, which is his average from the other essays.

Me: That was also my initial reaction. But the writer seems to indicate that s/he was not notified that s/he had a missing essay.

And the fact that the comment was submitted on an 11-day old post (actually 7 days at the time it was made) on a small blog meant it was likely to only be seen by a few, so a hoax didn't seem likely either.

This gave it a certain ring of truth.

We'll see if it amounts to anything.

2nd Addendum 12/16/07 -- There is an appeals process that BOLE has not publicized: New York Bar Examiners Will Entertain Appeals Over Laptop Problems

Labels: Bar Exam, Odds and Ends

As readers know, I stopped doing the personal injury law round-ups because it was too much to sustain for one person on a weekly basis if I also wanted to write about other stuff (and have a law practice).

So thanks to Brooks Schuelke, who has picked up the ball to run with it. In this abbreviated week, he did a great job right out of the box and also introduced me to blogs I've never seen.

So head over to Personal Injury Law Round-Up #37. And please, if you have your own blog, let your own readers know with a link. Those links are a small thank you for the time that was put in creating the round-up.

If others would like to take a turn spinning around the PI blogosphere one week, or be part of a weekly rotation, please let me know. You can email me at Blog [at] Turkewitzlaw.com

Labels: Personal Injury Law Round-Up

It's a safe bet that anyone reading this blog is more fortunate than most of the world's population. So it's a good time to count your blessings.

And be thankful you're not a turkey.

Over at Point of Law, Walter Olson points to a story on medical malpractice panels in New Hampshire and Maine. So I wanted to share New York's experience with the panels before they were disbanded in the mid-1980s shortly after I started practicing law. I did a few of these before they hit the trash heap.

These panels included a judge, an attorney experienced in handling medical malpractice cases, and a doctor from each speciality that was sued. If there was a unanimous finding, the finding would go to the jury.

The first, and most significant, problem was finding doctors to sit on the panels, which is what caused years of delay to an already protracted litigation system.

The second problem was that, unlike jurors, there was no way to question panelists regarding any biases they might have, the way a juror might be questioned.

The third problem was that that no live witnesses appeared before the panels and there was no cross-examination. Submissions were made confidentially, and a short hearing was held that might last an hour at most. This format made it it impossible to resolve disputed issues of fact.

The fourth problem arose when, if a unanimous panel finding went to the jury, the losing side would invariably subpoena the doctor that appeared, and then cross-examine the physician on the flaws in the hearing that took place. Essentially, that the panel never saw a single witness and was therefore unable to resolve disputed factual issues. (This, in turn, made it even less likely that doctors would want to sit on panels.)

The end effect was years of delay, more expense, and more complicated trials.

It was, in essence, a resounding failure.

Labels: Medical Malpractice

An article that appears today in Legal Times by Stewart Weltman (via Law.com) is chock full of good practice tips. I'd like to highlight two. Since the article's vantage point is what defense lawyers can learn from plaintiff's lawyers, it is equally good reading for both sides.

1. [T]he most direct route to obtaining a favorable settlement is to ignore the prospect of settlement and instead prepare from the outset as if your case is going to be tried.

Since I come from the world of medical malpractice, I know that very few cases settle early (see: No, your medical malpractice case will NOT settle fast). If settlement occurs it is often only after a trial has started. And the defendant can see if you are truly ready or not. So my training was always to prepare for trial, because any other type of lawyering was too risky. If I ignored the possibility of settlement and was ready for verdict, I could negotiate from strength if the other side starts to talk about resolutions. Conversely, if you aren't really ready, you panic and may be forced to take the inadequate offer.

2. Many top plaintiffs lawyers will jump-start this process from the outset by articulating out loud a short statement of their best case in a minute or so to see how it sounds, perhaps running it past their assistant, paralegal, associates, or co-counsel. It is a simple yet powerful process that can and should be used in defense matters.

Actually, a minute is too long. Your case should be boiled down to a single sentence, particularly in the personal injury field. When the judge asks what the case is about -- and yours is one of hundreds she is handling -- she will want the nutshell version. If you don't know it, you don't truly know your case. It should look something like this:
"Failure to biopsy a hard nodule in the breast of a 54 year old woman leading to 10-month delay in diagnosis, with bilateral mastectomy and metastasis, instead of lumpectomy." If judges want and need more details, they will ask. More importantly, the issues have been isolated.

The article is a great little primer on keeping the focus for defense lawyers and keeping costs down by following our methods.

Labels: Medical Malpractice, Personal Injury

The calls come to me virtually every week from some website that advertises for lawyers and then sells or in some manner refers the names to attorneys. These sites, generally, offer to send leads from a geographical area that are typed into their site to an attorney in exchange for some kind of payment. The websites act as an advertising front for the firms, without their names being exposed unless an inquiry is made. And so the issue is: What type of ethical responsibility does the lawyer have for the advertising conduct of the service?

Today I'll name names for what appears to me to be clearly unethical conduct.

Here are a couple of the cold-call tactics used to sell the business to attorneys:

One call from MalpracticeLawOffices.com started with this pitch, "I'm a representative of Google.com." Now even I know that this must be false. And so the question immediately arose: If the salesman will lie, what other kinds of ethical breaches will occur while your law firm name is attached to their website? (I decline to provide a link, as I don't want to help them improve their pagerank with Google.)

An attorney in the Bronx I spoke with told me of a company called AnAttorneyForYou.Com that came at him with this pitch: They would take a percentage of the fee for sending personal injury matters to him. The lawyer I spoke with (who asked to remain anonymous) then asked if they were attorneys themselves, since a fee sharing arrangement with a non-attorney is a clear ethical breach. The answer was no, they were not attorneys, and that this was simply a fee for the referral. When the Bronx attorney asked about the ethics of splitting a fee with a non-attorney, the response was a version of, "I only work here."

Indeed, their own Disclaimer states:

Nothing in this website is intended to imply that anattorneyforyou.com is a referral service certified by any state bar or bar association, or that anattorneyforyou.com satisfies the minimum standards for lawyer referral services established by any state bar or bar association

The implications of attorneys outsourcing advertising to a third party that may be acting unethically represents an area of law that is unexplored by many ethics committees. The company itself is most likely not in your state and not subject to attorney disciplinary rules. So what forces the advertising company that the lawyer is using to act in accordance with local ethics codes?

The very act of engaging such an advertising service should subject the law firm to disciplinary action for any ethical violations committed by the non-attorney advertising company. With this threat hanging over the head of an attorney, it is unlikely they would take such risks with their licenses. It thus makes it impossible to turn a blind eye to any ethical breaches by any service that is used as a front for the law firms.

There is little doubt that if and when attorneys are called on the carpet for problems, they will simply play dumb and say they didn't know. But that should not be an acceptable excuse. And this is a problem that should be nipped in the bud quickly.

Labels: Attorney Ethics

Having now read and linked to hundreds of blogs as part of my postings and round-ups during my first year, and having exceeded my expectations for a niche blog (The End of My Rookie Year: Thoughts, Metrics and Changes), I wanted to list a dozen tips on better blogging to kick off my second year. Perhaps one or two of the points will help someone somewhere, particularly those in my field, but these can be adopted elsewhere:

1. Blog optimization is different than search engine optimization: SEO experts tell you to use the same buzz words as often as possible so that it increases presence with Google. Except that doing so means your writing will probably suck. Does a reader really want to see the phrase "personal injury attorney" in every other sentence? And if the writing sucks, no one will want to read it, link to you, or come back. Incoming links, of course, are important both to bringing in new readers and improving Google PageRank. Otherwise you have to hope that new readers will blindly stumble upon your poorly ranked blog. So forget SEO and work on being a better writer and providing real content.

2. Don't engage in blatant self-promotion: Blog posts that look like advertisements ("If you or a close friend was injured, call me at ...blah, blah, blah") are posts that no one wants to read, and fewer want to link to. Perhaps a potential client will find you, but without the incoming links that come from better writing, it isn't very likely.

3. Don't use crappy back links to yourself in the post: If you continually link back to your own blog or website in the text of a post every time you use a favorite buzz phrase, you have added nothing. In fact, you've made it worse. Perhaps you think all those internal links make Google happy, but don't count on readers who chased bum links coming back again. While I'm not privy to Google's algorithms, you can bet your last pixel that external links are vastly more important than internal links. Google didn't get to be king of the hill by being stupid. I use one identifying link at the bottom of the post, and have an "about" section in the sidebar. That's more than enough if someone wants to find me, and doesn't destroy the text.

4. Breaking the news beats the hell out of commentary on the news: The posts that most readers found to be of interest were those that had originally sourced material. Why? Because other bloggers (and news media) saw them and linked to them, thereby bringing in more readers. Commentary is nice, and allows you to give your views, but it's still just commentary.

5. Link to others often: While this is part of every "how to" on blogging, many people still don't get it. Links are how others find out about you, and they bring in other bloggers who might, if you write well, link back to you bringing in more readers.

6. Your competition is your friend: While you may compete in the same niche for clients with other firms, they are also your readers and sources for stories. A successful blog doesn't ignore that.

7. Quirky is good: If a blog isn't enjoyable to read, then people won't read it. Simple. A little personality is fine. Don't make reading your blog look like work.

8. Stay focused: If you are off-topic more than 20% of the time, people won't really know what you are about, and therefore may not come back. And 20% is probably too high.

9. Add value: A blog that is merely parasitic of news stories or other blogs isn't worth much, unless you intend to be a news aggregator like How Appealing or Kevin M.D. If you're writing about a news story or decision reported by others, add your own thoughts on its significance.

10. Don't try to monetize the blog with ads: Very few blogs have the traffic that will attract meaningful advertising dollars. So if the money is minimal, don't uglify the blog with ads.

11. A blog is indirect promotion: When people write articles for publication, they don't scream "hire me!" Writers for traditional journals simply hope that their reputation will be enhanced by demonstrating knowledge in a field and that this may indirectly help them professionally. It's a form of networking. Treat your blog the same way.

12. Enjoy yourself: If you don't enjoy it, don't do it. If it is done as a hope for obtaining business it will be quite clear in your writing, and more importantly, it won't be fun. Let's face it, no one will ever hire me because of my marathon Blawg Review, but I had a blast doing it. And that's the important part.

This past week has been devoted to blogging due to Blawg Review and my one year anniversary. The navel gazing will now stop and I'll return to the theme of the blog. Unless the mood or a good story messes with my plans.

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

Labels: Blogging

Tomorrow is this blog's first anniversary. So I wanted to share some visitor metrics, upcoming changes, and general thoughts:

1. Metrics:
This tiny corner of cyberspace attracted significantly more visitors than I had imagined a year ago. Weekday readership the last six months has been about 700 unique visitors per day. Roughly 20,000 per month. Here is the data for the year, starting from scratch, as of yesterday:

• Unique visitors: 158,860
• Most unique visitors in one day: 2,485
• Unique Visitors this month: Nov 1 - 15: 11,862 (790/day)
• Visitors: 291,612
• Page views: 524,139
• Number of Posts: 367 (too many)
  
• Number of blogs that linked to me: Over 200 (waaaaay more than I imagined)
• Largest blog sources of referrals: Above the Law, Overlawyered, Kevin, M.D
• Number of legal threats against me: 2 (one published, one not)
  

2. Changes:
OK, the blog was a success. So let's change it...

• The Personal Injury Round-Up that I have been doing is now kaput. It was fun while it lasted, but very time consuming to do on a regular basis.
  
• I hope to spend more time on individual stories and, hopefully, occasionally write stories that are not yet in the press.
  
• I hope to bring in guest bloggers. Interested parties can contact me.

Will the blog improve or will I get hit with the sophomore jinx? Beats me.

3. Blogging Tips:
Since the blog is a success (at least to me), my next entry will be my tips on blogging, for whatever it may be worth to others (perhaps not much).

4. Thoughts on Blogging:
This has been a real hoot, but it has also taken a great deal of time. The one oddity that stood out was that I was placed on the blogroll of Overlaywered while at the same time being a guest contributor to its arch nemesis, Tort Deform. I'm not 100% certain what it means, but I think that has to be good, especially for a beginner.

I've listed some of the most popular posts are here, but my personal favorite was the marathon Blawg Review #134 that I put up earlier this week, essentially the culmination of my rookie year. It was long, not just because marathons are long but, because I had so much fun conceptualizing, researching and writing it. I started making notes in a separate file six months ago on ideas and situations, much the way I make notes on trial themes and tactics from the day a case comes in.

The streets and crowds of New York provided unlimited opportunities to raise different subjects and allowed me to weave a fabric using both fact and fiction that included bloggers, the race and the city. The post got goofier and goofier as the race wore on because that is one thing that happens with exhaustion. A tip of the hat to the people that made it to the finish line.

And a big thank you to all who have visited and commented over the past year. Except, of course, to the two lawyers that threatened me.

Labels: Blogging

The New York Personal Injury Law Blog presents the final edition of the Personal Injury Law Round-Up, as a couple of changes are being made as I hit my first year anniversary...

We'll start with the issue of tort "reform":

In a resounding victory for patients, an Illinois court found that a tort "reform" damages cap is an unconstitutional violation of due process and equal protection by artificially limiting what medical malpractice victims can receive for their pain and suffering. Mark McKenna has more with a link to the decision; And Justinian Lane at TortDeform explains that the failure of this "reform" made no difference for an insurer's decision to stay in the state;

[Edit - 11/19/07: In an email to me, Robert Peck of the Center for Constitutional Litigation, who argued the case, alerted me that the decision was ruled unconstitutional based solely on separation of powers issues. It was therefore unnecessary to reach the other issues.]

John Day gives some statistics from Tennessee on medical malpractice suits, settlements and more, in the context of why further tort "reform" is not necessary;

Ron Miller discusses how non-economic damage caps may be considered discriminatory toward women;

Justinian Lane at TortDeform follows the Texas story of tort "reform," to find out who benefited, and who didn't;

At TortsProf, guest blogger Chris Robinette discusses the efforts in Arizona to kill off as many emergency room negligence cases as they can by raising the standard of proof to "clear and convincing evidence;"

Kanye West's mother died during cosmetic surgery in California, and Hans Poppe wants to know if he would be able to find a medical malpractice lawyer to investigate if he wanted to because, you guessed it, tort "reform" that caps damages;

Also at TortsProf, Robinette finds a notebook from a student of William Prosser (Prosser on Torts) has surfaced, with some of the legendary professor's thoughts.

And into litigation:

Not in suit yet, but...Nine children were hospitalized after eating Aqua Dots that used a toxic glue, according to The Consumerist. The product came from China, naturally.

John Day and on the discoverability of insurance policy limits (which is standard disclosure in New York);

Bill Childs on a suit against the KKK for the beating of a man, with the announced purpose of putting the Klan out of business;

Bill Marler discusses the lame excuses Cargill is giving for distributing contaminated beef;

From the land of settlements: Drug and Device Law has more on the Vioxx settlement and expands upon a subject I mentioned in my marathon Blawg Review #134 (discussed just after the 21 mile point), that being the impact of those that choose not to settle, which are likely to be the more substantial cases. And as Ed Silverman points out at Pharmalot, the settlement is only for U.S. claimants. Ted Frank has a good round up of analysis on the potential problems spots at Point of Law; And Howard Erichson reports on a plaintiffs-only conference to discuss the settlement;

From the miscellaneous category: New York State practitioners should take note of a reversal in Raffellini v. State Farm regarding the issue of whether a "serious injury" threshold applies to supplemental insurance. No Fault Paradise has the scoop;

And finally:

• Dr. Wes on why medical errors are good for you;
• An animated cartoon about aging baby boomers that has absolutely nothing to do with personal injury law;
• And the New York Personal Injury Law Blog ends these round-ups on a sad note, for we did not get an invite to Mark Lanier's annual holiday bash.

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

Labels: Personal Injury Law Round-Up

The New York Bar Examiners reported grades today for the July 2007 bar exam that included a scandal whereby essay answers that had been submitted on laptops for 47 students had disappeared. The Board of Law Examiners did a grade approximation for 15 of those students and failed six of them based on an approximation of grades. The other 32 students either passed or failed based on the rest of the exam. The information was disclosed as part of this press release on the passing grades and the availability of exam results.

The release had this to say about questions regarding the missing essay answers, which I had covered previously (New York Bar Examiners Still Can't Find Complete Essay Answers):

...one or more of the essay answers for 47 candidates could not be recovered. Fifteen of these candidates passed the examination based on their performance on the balance of the examination, with no credit being given for any missing essay. Seventeen candidates failed the examination even when attributed a perfect score on any missing essays. The remaining 15 candidates were given estimated scores based upon their performance on the balance of the examination, and their probability of passing was computed. The Board worked with researchers at the National Conference of Bar Examiners to develop and apply this methodology, which resulted in nine of the remaining 15 candidates passing and six failing the examination. Candidates with missing essays who were unsuccessful on the examination have been notified by the Board as to how their results were determined.

As to the exam results for the rest: The 15 New York law schools had a record pass rate for first time test-takers in the July 2007 exam, with 88.2%. According to the press release:

Not only did this group achieve a historically high passing rate, they also surpassed the passing rate of their counterparts from American Bar Association-approved law schools outside of New York. The passing rate for graduates of such law schools who took the bar examination for the first time in New York this July was 85.7%

When accounting for foreign students taking the exam and their 45.6% rate, the total pass rate was 70.6%

Exam results can be found at this link.

Addendum: 11/26/07: How, Exactly, did New York Grade That Bar Exam?

Labels: Bar Exam, Odds and Ends

If Blawg Review #134 was a bit daunting due to its marathon length and you were waiting to see what others wrote before lacing up your sneakers for the event, then here are some of the first reviews to check out:

• Colin Samuels (Infamy or Praise, and winner of the Best Blawg Review in both 2005 and 2006): an "instant classic."
• George Wallace (Declarations and Exclusions): "epic...run wild and free through an astonishing range of legal webloggery."
• Anita Campbell (Small Business Trends): "a marvel of a post."
• Anne Reed (Deliberations): a "tour de force" [in the comments]
  
• Dan Hull (What About Clients): "We're in awe. Quality and quantity. Really nice job...."[in the comments]
  
• Nicole Black (Sui Generis): "thorough and impressive"
• Carolyn Elefant (Law.com:Legal Blog Watch): "Exhilarating...Turkewitz's Blawg Review sets a record pace, covering at least sixty different posts around the blogosphere without once stepping out of its marathon-themed stride."
• Editor (Blawg Review): "an insightful run through the best of the legal blogosphere with an exemplary law blogger, who demonstrates once again that this project has legs...it's worth reading from start to finish"
• Diane Levin (Online Guide to Mediation): "Marathon Edition of Blawg Review A Winner"
  
• Evan Schaeffer (Legal Underground): "An entertaining Blawg Review"
• David Lat (Above the Law): Very cool!
• Monica Bay (The Common Scold): his Blawg Review #134 is an hysterical spin on the ING New York City Marathon
  

Other links:

• Stephen Albainy-Jenei (Patent Baristas): it's definitely a marathon!
  
• Walter Olson (Overlawyered): a truly marathon Blawg Review
• Ron Coleman (Likelihood of Confusion): "will leave you huffing and puffing"
  

If additional reviews come in, I will supplement this list with more links. But, of course, only if they're good.

Labels: Blawg Review, Blogging

According to an AP report, there were 200 lawyers at the rally yesterday to support Pakistani lawyers who have been manning the barricades for restoration of the rule of law.

But according to the New York Law Journal, the number was 700.

What's going on? Now it's true that inflating and deflating crowd numbers is a time-honored tradition among those that support/oppose any particular rally. But those are news organizations, not advocates, and estimating in the hundreds is not nearly as difficult as estimating in the tens of thousands.

My own estimate, based on many years of playing "guess the attendance today" at Shea Stadium was 300-400, which I stand by. And as I mentioned yesterday, a number much higher than I had expected.

See also:

• Today I'm proud to be a lawyer (Self-Absorbed Boomer)
• New York Lawyers Rally in Support of our Pakistani Brethren (Swan Lake Samba Girl)
• Lawyers to the Barricades II (Dorf on Law)
  

Labels: Political Action

Hundreds of New York attorneys tuned out at 1:00 today to rally in support of Pakistani lawyers that were arrested for demonstrating against the firing of the Pakistani Supreme Court. Some news reports have estimated that 25% of Pakistan's lawyers are now in prison due to protests against Gen. Pervez Musharraf's new decrees.

I just returned from the rally, held on the steps of the historic New York County Supreme Court building, moments ago, so this is likely a first report on the web.

By my eye, the crowd looked to be about 300-400 lawyers, well in excess of what I had anticipated. Attorneys filled the steps of the courthouse and spilled out onto the sidewalk below.

The rally had been organized by the New York State, New York County and New York City bar associations, and supported by others.

Speakers included a New York Pakistani lawyer whose father has been imprisoned.

An email was read from students at Pakistan's Lahore University about this rally, and they were grateful to see that American lawyers had taken notice and were showing support.

(Photo: This photograph that I took may be used without obtaining permission so long as attribution is given. It may not, however, be used for a commercial purpose.)

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

Labels: Odds and Ends, Political Action

My dispute with Avis, in which they asked that I take down their logo from this post back in September, has now gone international. It has been featured in the online journal The Register, published by Pinsent Masons, which is one of the largest British law firms and part of the Global 100.

Thus far, I have not heard back Avis them regarding my response, and the logo remains in place. I presume that, notwithstanding their attorney's assertion that it was I that was ignorant of the law, they have stopped their efforts knowing that my use of the logo was proper.

Labels: First Amendment

(The New York Personal Injury Law Blog presents Blawg Review, a round-up of legal blogs, or "blawgs." It is hosted each week at a different site.)

"The World's Longest Urinal holds a special place in my heart," Marty told me. "It's not that I'm a fan of urinals," my friend said, "but that trough is symbolic of the massive scale of the New York City Marathon, and the complexity of moving so many people across the landscape of this city."

Walking among the anxious runners in the staging area for the race at Fort Wadsworth in Staten Island, sitting in the shadow of the Verazanno-Narrows Bridge, Marty and I found the anonymous Editor of Blawg Review. It wasn't too difficult, despite the record 39,085 runners that were assembling there, since he was dressed as Gumby and had painted his face green. He was the gathering point for dozens of law bloggers who had answered his call to meet and run together. With two million spectators and 26.2 miles of roadway ahead of us, toeing the line for the awe inspiring charge across the city would be a once in a lifetime fantasy for many. It would also give us ample time to meet each other, which the Editor was trying to encourage. The video invitation he emailed, seen at left, had been met with an unexpectedly high response.

We had a couple of hours to wait in the cold morning air for the canon that would start the race -- no pip-squeak starter's pistol for this collection -- so I eased over to the Jewish services being held. It's the only minyan on earth where congregants might be found sporting disposable clothing and trash bag ponchos for warmth while wearing promotional Sponge Bob painter's hats for yarmulkes. I met Peter Lattman and Sarah Waldeck at the close of the service, and the two of them struck up a conversation regarding the Oregon Supreme Court considering the legal issues of circumcision for a 12-year-old boy.

Ambling through Fort Wadsworth, which protected New York for almost 200 years, it was hard not to think of soldiers and war as we waited, especially given Veterans Day. Michael Stevens talked of some that gave their all, and all that gave some, with the Editor in agreement, lest we forget. Deven Desai joined in, bringing the discussion back to its post WWI origins, the munitions and bodies still being dug up in France, the apparently oxymoronic law of war, and the continuing efforts regarding land mines.

We couldn't talk of past wars, of course, without discussing the present circumstances. Distracting himself from the race he was about to undertake, Devon Chaffee joined us to chat about his trip to Guantanamo Bay and the difficulty tracking military commissions, while Peter Spiro wondered if amending the War Powers Resolution was in the works due to the situation in Iran. Alexandra Lahav sidled up to join the shifting conversation with news of a class action suit against a military contractor for abuse that was allowed to move forward.

As we crossed the grounds of the fort to the bridge our anxiety mounted, as we passed vast quantities of discarded outer clothing. Our own runners joined others in protecting feet, thighs, arms and nipples to prevent damage during the race, with various bits of tape, jelly or clothing. We continued to drink. There were countless discarded water bottles, food refuse, newspapers and blankets, while folks downed coffee and pre-race energy gels.

Out on to the plaza of the Verrazano we finally went with the throngs, 15 minutes before the start. Helicopters circled above in the clear, blue sky looking down on the madness of the mass endeavor. And all I could think, despite the 15-20 mile training runs I had done in preparation for this moment, was "What the hell am I doing here?"

More warm-up clothes were shed, flying this way and that toward the edges of a crowd so massive, it would take half an hour for everyone to clear the start. As the clock ticked down, former BigLaw partner and now New York Road Runners CEO and Race Director Mary Wittenberg presided over the gathering from a small stage. The colors flew, the national anthem was sung, a few words from Wittenberg, and then...

The canon erupted with a deep thud, the voice of Frank Sinatra followed in the air, the crowd surged forward toward the very heart of New York, and the race was afoot. Ascending the roadway of what was once the world's longest suspension bridge, we felt it bounce beneath the stampede as photographers in the air and on the giant towers sought to capture one of the planet's most spectacular movements of humanity.

Nicole Black caught up with me as we crested the Verrazano at the one-mile mark after a 150 foot climb, and we watched fire boats spewing celebratory streams into the air over New York Harbor. Ahead of us and to the left, we looked toward the downtown skyline of Manhattan, and the gaping hole that still exists. The queen of New York blawgers told me that when she ran this race on the first Sunday in November 2001 the ground was still burning. Black went on to tell me of her present homeland security concerns, from the vantage point of an overreaching government. She had done an investigative report on what may be a government trying to profile our kids at a young age and indoctrinate them into accepting governmentally defined ethics.

On the down slope of the bridge, we passed dozens of men who stopped to relieve themselves because they had failed to take aim at the famous half-pipe of piss in the staging area. Feminist Law Prof Ralph Stein pulled up to me to tell me had seen the long lines that stretched for the women at the hundreds of less-than-ideal portable toilets. Many women, he reported, put societal conventions aside to pop a squat near a fence, reminding him of some of the changing societal norms he discussed in A Tale of Two Books.

Marty, who had left my side in the athlete's village, reappeared to whisper, "Are you sure you want to go down this route, with a feminist law blog and semi-public urination? Mightn't you be taking a risk?"

Ignoring Marty, I went on to tell Stein how legendary nine-time winner Grete Waitz dispensed with modesty while dealing with mid-race intestinal upset in 1984 to claim a shit-kicking victory here in full view of a national television audience. Said Waitz in her 1997 book On The Run, "When you are running a major race and in the lead, you don't stop to go to the bathroom." Since I couldn't find the quote online, I scanned the pages from her book: Waitz-Book.pdf.

Copyright guru William Patry glided up to me, having just seen me scan and publish here pages of a book, as we came off the bridge and under an overpass. Passing the first cheering spectators yelling for names that so many of us had written on our shirts, he talked to me about issues of potential copyright infringement and the concept of fair use. Interestingly enough, he told me, Sean "Diddy" Combs -- who finished this marathon in 2003 while raising $2M for charity -- may be a copyright bad boy. Patry had "Not Diddy" scrawled on his shirt to avoid confusion.

Marty slipped back in to quickly chide me, a pattern that would recur throughout the day. "How can you talk copyright when this is not within your area of expertise and you are ignorant of intellectual property issues?"

Into the heart of Brooklyn we went, quickly passing another legend of this race: Zoe Koplowitz and her purple-painted crutches. She went on to finish the race dead last. As she always does. My hero.

Then out on to Fourth Avenue! Long, glorious Fourth Avenue, packed with huddled masses from around the globe breathing free within the magnificent tapestry of New York. We saw signs in languages too numerous to mention, fire truck's from New York's Bravest parked on side streets with ladders extended high out over the course, and thousands upon thousands of screaming children stretching out their hands to be slapped by passing runners. Immigration Prof Kevin Johnson moved swiftly through the extraordinary diversity of this crowd that lined both sides of the road, and took the opportunity to let me know that anti-immigration alarmists didn't fare well this week in elections. "This is a city of a thousand cities," he said looking out in wonderment. "And this is a nation of a thousand nations. And it's stretching before our eyes."

Marty glided up to me again, unseen by others, trying hard to contain himself: "Warning! Warning! Stay away from politics! That's not a Blawg Review!"

Seeing all the cops on Fourth Avenue, not just supplying security and crowd control, but actively cheering us on, had taken Mark Bennett by surprise. Bennett, who is now live-blogging a Texas murder trial he is defending and seems pretty fast on his feet, was completely unaccustomed to having cops on his side. He told me that, as a matter or practice, he refuses to represent a snitch and help the government. In a heartbeat, other criminal defense lawyers drew near to weigh in on the subject, including Norm Pattis, who couldn't comprehend that cooperation with the government is wrong, and Scott Greenfield who said he has a position between the two of them.

Coming up to seven miles, Steve Bainbridge and I squeezed down energy gels followed by water and Gatorade chasers handed us by some of the many thousands of volunteers helping out. Marvelling at the landmark Williamsburg Bank tower that had come into view, Brooklyn's tallest building with a magnificent clock tower, he turned our gathering group to a favorite subject: The marriage of business and law. And with that, he went on to discuss the fifth anniversary of Sarbanes-Oxley, passed in response to corporate and accounting scandals, and the excerpts from his book on the subject he made available. Leon Gettler was listening, and stopped Bainbridge to note that the number of corporate fraud investigations was plummeting. He too had marvelled at the Williamsburg Bank tower, which had started this conversation, and which we were fast approaching. (I didn't have the heart to tell them the building had gone condo.)

The tower stands at the eight mile mark, and we made a sharp right turn onto the tight confines of Lafayette Street, passing the Brooklyn Academy of Music where mid-race marriages have been known to take place. Then past a high school band playing the tune from Rocky. Like they do every year. Conversation stopped while runners stretched their vocal chords and pumped their hands high, a scene that was repeated again and again for many of the 120 bands that lined the route.

Then on through Bedford-Stuyvesant and into Williamsburg at 10 miles, where the late, legendary Fred Lebow used to scream in Yiddish from the pace vehicle at the black-hatted Hasidim for more enthusiasm, as they looked curiously at the throngs passing through their enclave. His efforts here can still be felt.

In to Greenpoint we went, passing Polish immigrants and gentrifying hipsters that help make Brooklyn one of the great melting pots of the world. As we did, a sweet, smoky and unmistakable smell wafted our way, leading James Peters, who flew here with many other California bloggers to run with us, to pull up by my shoulder. "It's been a while since I thought about smoking that," he told me, "But it really isn't compatible with training for a marathon." He went on to talk of the case currently before his high court, regarding an employees' medical marijuana use and the collision of three different laws. Vikram Amar, flashing across the New York blacktop to catch up, gave us an even more extensive view on the medical marijuana issue.

Our band of running attorneys had grown significantly, for the difficulty finding us in the crowd was greatly eased by the Editor's Gumby costume. Anne Reed turned serious to wonder about another group of attorneys, with far more on their minds than our frivolity -- the mass of lawyers that have taken to the streets in Pakistan after the Supreme Court was fired by Gen. Pervez Musharraf. Bob Ambrogi, now joining our group, had no doubt those lawyers are heroes, as did Michael Dorf and Barry Barnett (who wrote an open letter to our own top politicians). Scott Greenfield, who still followed close after the snitch discussion and with boundless energy to discuss more, was reminded of Dick the Butcher's idea of how to seize power: First thing we do, let's kill all the lawyers. Since lawyers will never agree on everything, however, David Giacalone took on Greenfield's interpretation of the (in)famous Shakespearean line. But Giacalaone no doubt endorses the rally planned by New York attorneys in support of our Pakistani brethren of the bar. Jamie Spencer openly wondered how American lawyers would react under such circumstances, but rallies by American lawyers, George Wallace piped in, was not something he expected.

The subject of Pakistan's attorneys followed us to the halfway mark at the Pulaski Bridge. That bridge led us up and over Newton Creek, the most polluted and noxious waterway in the United States as we crossed from Brooklyn to Queens. This environmental disaster brought Mike Millikin to my side (while testing some new running shoes) to talk of changing times, and discussed the suit Gov. Arnold Schwarzenegger brought this week against the Environmental Protection Agency to curb greenhouse gas emissions.

While law and politics occupied much of the running commentary, we psychologically prepared for the 59th Street Bridge that would shortly take us from Queens to Manhattan. Then David Lat sidled up to the group looking for dirt for his legal tabloid. Running in a discreet costume so that he might hopefully sneak a peek under some judicial robes, he was looking for tablawg gossip on a judge that may have played a role in changing his kid's bar exam grade from fail to pass.

It was also in Queens that a very excited Bill Marler caught up as I grabbed orange slices from bystanders. Marler, a well-travelled expert in food contamination cases, told me how Queens is now home to some of the most exotic restaurants in the city given its huge Asian population. Queens has its own Chinatown, Koreatown and Little India, and the 7 train that runs through the borough is known locally as The Orient Express. We talked of fueling up for the race and our pre-race meals (peanut butter, banana and chocolate chip sandwich for me). But what he really wanted to know as we turned back to the subject of law, and couldn't yet figure out, was why there was such an upsurge in eColi contamination in the beef industry this year.

We hit the 59th Street bridge just past 15 miles, and talk around us slowed. We heard the sounds of our feet hitting the asphalt and our labored breathing as we climbed the structure, and little else. Except that due to the absence of crowds here, I could overhear newlywed Peter Lattman, now riding in the press truck with his colleague Amir Efrati because he's too tuckered to run, talking about the marathon running prosecutor of Olympic track start Marion Jones. While watching us huff and puff up the bridge, he comfortably went on to discuss a different marathon: The run by Miami defense lawyer and sole practitioner Rick Diaz from the local courthouse to Washington to argue before the Supreme Court on a high-profile Internet pornography case, holding on to it despite the efforts of some in BigLaw to snatch it away. But a little guy doesn't make it to the big leagues without criticism. Indefatigable Eugene Volokh was able to carry on the conversation notwithstanding the hill, and told us he was less than enthused about Diaz's brief. Carolyn Elefant, while not keen on talking through the climb, wanted to make sure we heard her own thoughts on a fellow solo heading to the Supremes and Volokh's criticisms.

Lyle Denniston, who did a post-race analysis of Diaz's case, caught his breath as we hit the bridge summit and gazed out at the midtown Manhattan skyline spread before us. He wanted to talk to me about security, and as a veteran of this race, he knew this spot would be the last quiet one for many miles. Each of us knew that despite the best efforts of the city for this annual stampede, the race is really unsecurable. This concern turned to guns and brought up a Second Amendment case that the Supreme Court considered this week, taking on a subject it had not broached in seven decades: Is the right to bear arms a personal right, or a collective one belonging only to a well organized militia? The ramifications, in terms of the number of guns on the street, are enormous.

Coming down the other side of the bridge we started to hear the buzz. Louder and louder. Then down off the ramp it turned into a roar!

Into the teeth of a thundering crowd stacked 5-10 deep we ran, swooping through a 270 degree turn that took us under the bridge and out onto the broad expanse we call First Avenue. It has been described as the greatest thrill any recreational athlete will ever experience.

Now who could think of law at a time like this? Not with the voices of a million people screaming, bouncing off the canyon-like wall of condos and co-ops that line the boulevard. But it was even better than you might imagine, for the leaders were long gone. The crowd wasn't there for them, but for us. Their friends. Their neighbors. And complete strangers.

Elite athletes have been known to burn out on this 3+ mile strip due to the crowds, exhausting themselves well before the finish, across this great stage that one writer called a magnificent piece of urban theatre. Conversation with other bloggers was virtually impossible as we scanned the delirious multitudes waving signs, shouting encouragement, hanging from balconies and open windows, or comfortably quaffing beer at open air cafes.

David Giacalone found me again in the crowd, this to time to remind me that themed blawg reviews tend to be "annoying, strained and distracting." "Too late," I shouted back. "I'm having way too much fun, and besides, I'm on a roll."

The roll slowed a bit though, as we entered Spanish Harlem at mile 19 on the upper reaches of First Avenue. Moving through the barrio, Colin Samuels excitedly told me of the Stars Wars storm trooper he passed, snapping the picture at left on the camera he carried during the race. "I can't believe it!" he shouted at me. "I just blogged about him in that famous Star Wars bar scene in, How is open software different from the Mos Eisley cantina?" I confessed it was a question I never asked myself, though the more technologically inclined may wonder, as I waved to a group of nuns cheering us on.

The Willis Avenue Bridge leading in to the Bronx is the 20 mile mark. The Wall. That special point in time where the body starts to ask blunt and impolite questions about what, exactly, the brain is asking it to do. Marty returned to tell me that the conversation turned ugly.

"You didn't think I would miss this, did you?" It was Howard Wasserman from the Sports Law Blog, and he was looking a lot better than I felt as we crossed over the electronic mats at 20 that were monitoring our race. With each runner having a radio frequency ID tag tied to their shoes, Wasserman told me as he continued the technology discussion, we were not only being tracked every few miles, but our times were being posted live on the web and emailed to spectators looking for particular runners. "And most importantly," he said, "it makes it vastly more difficult for a cheater like Rose Ruiz to skip part of the race." But once on the subject of sports cheating, he would not let go, and we turned to football and the potential for the currently undefeated New England Patriots having an asterisk next to their names after being busted for cheating.

"Back in the day Rosie cheated, the business of sports wasn't nearly as big as today." Mark, from the SportsBiz blog had joined us, but he wanted to talk horse racing, not human, as we moved through the south Bronx. As I squished another gel down the pipe, hoping to fend off bonking, Mark went on to describe how Curlin, winner of the 2007 Preakness and Breaders Cup Classic, found his way into a scandal involving lawyers, drugs and money that may put him into an extraordinary public auction.

And then, to no one's surprise, we saw Monica Bay in the Bronx, sign in one hand, beer in the other, ball cap on head and sitting in seats she dragged to the course, hooting and hollering. Seeing our group, she lept up to discuss the excitement of the race and to offer much-needed encouragement, running a short distance with us (without spilling) to contrast our race to the bland, bland, bland book she just reviewed from the high-profile president of Hearst magazines. Before heading back to her cozy seats she lied like hell and told us we looked great, and that the finish was near.

Up and over the Madison Avenue Bridge we headed back into Manhatten and Harlem as we hit the 21 mile mark. First we heard and then we saw the sounds of gospel, with a robed church choir singing and swinging on church steps, inspiring us forward against the growing revolt in our legs. Harlem brought thoughts of civil rights battles of years gone by. Kia Franklin didn't want to talk of the past though, but of the present, and the compromises just made in Congress with respect to civil rights for gays and lesbians in the Employment Non-Discrimination Act (ENDA). Brooklyn Representative Yvette Clarke, running with us now, voted no on the controversial and deeply emotional measure and told us why. Quizlaw's Dustin then appeared and wondered if this was a good time to discuss Out Magazine's poll that Bill O'Reilly was the gayest ever. (Note to Dustin: Work on your timing.)

Racing down Fifth, and at this point "racing" is a somewhat flexible word, we passed the 22 mile mark hitting Museum Mile, with its remarkable collection of nine different institutions. We passed Mount Sinai Hospital where my kids were born, and where I stopped briefly for a kiss from my wife. She had been watching the race and talking with Evan Schaeffer as he reminisced about Norman Mailer, who had just passed away inside Mount Sinai. Passing the hospital was just the excuse that blogging newcomer Bob Wachter needed to pull up next to me to discuss medical errors becoming a crime.

And the talk of medicine also brought up the $4.85B settlement with Merck regarding Vioxx with payments estimated at $150K - 200K per person. Byron Stier, a mass tort expert, who by the look on his face at the time was clearly going to be needing his own painkillers the next day, thought the tort system worked fairly well for the Vioxx litigation. He ran with his fellow mass tort proffessor Howard Erichson, who analyzed for me the benefits of the settlement to all of the parties.

Walter Olson and Ted Frank were now in the thick of it, dressed together in matching black suits, hats, sideburns and sunglasses, doing their best to deal with the crowds from the running explosion. "We're on a mission to blawg," Frank explained, and he launched into his own analysis of the Vioxx settlement, calling it extortionate. My own unanswered question is whether those with the biggest claims and the strongest liability will agree to settle and are included in that $4.85B, or will they continue on to verdict.

"We're on a mission to blawg?!?" Dustin was still with me. "Did Ted Frank really say that? "Now hugging," he said, "that can be funny." Kevin Underhill, not to be outclowned by the likes of Dustin, slipped in between runners to catch my ear and go for the comedy kill with a lawsuit about a dancing dentist that drilled his way into trouble. Jerry Buchmeyer, with a racing bib pinned to his judicial robes, called each of the above amateurs. "Read this excerpt from a will," he said, "and get back to me." And then (out of nowhere!) Deepak Gupta from Public Citizen comes racing up to present a video of Stephen Colbert lifting the veil on a faux-consumer rights advocate that is actually a front for industry. "Now that's my idea of funny," he said as he ran though a water stop grabbing fluids, but getting a third up his nose.

Our exhaustion is met with some welcome relief when we find the Hash House Hariers on Fifth Avenue. The hashers, a drinking club with a running problem, insist we stop for a beer. Who could refuse? But when some in our group didn't drink fast enough, they started singing, in words that made the parents of small children shudder.

Now gently numbed, we headed into Central Park where the road twisted and turned through the rolling hills and changing leaves of Olmstead and Vaux's masterful park creation. The shade of the trees, the super oxygenated air of the park, the shortening course and the tight roadway that brought the crowd in close, inspired us (along with the beer) against the growing pain in the quads that we tried to fend off. We caught our second wind in the park, with the help of a sign in the crowd.

Eyeballing that sign, Michael Dorf pulled up beside me to discuss the First Amendment issues of public signs, not in the fun context of a marathon, but in the harsh context of vile protests at a funeral and an historic jury verdict. Eugene Volokh joined us again, this time to discuss the First Amendment coming into conflict with the act of intentionally inflicting emotional distress.

"Damn the Queen!" The voice of Brit Tim Kevan caught me by surprise as we hit the 25 mile mark. He explained that the marathon was lengthened from 24.85 miles (40,000 meters) at the 1896 Olympics in Greece to 26.2 miles in London in 1908 so that the race could finish for the royal family in front of their viewing box. If not for them, he said, we would now be sipping tea. Having caught my ear, he gives me a wrap up of recent British lawsuits.

Hearing a discussion of the original length of the race as we headed south past the Central Park Zoo, academics David Strauss and Jack Balkin started debating originalism in the constitution. I, on the other hand, barely able to do simple math to time my splits and badly overheating, grabbed water to toss over my head, only to find I had stupidly dumped Gatorade.

"How the hell do those guys do that?" Marty was back. "And why aren't those two wiped out by now?"

"How the hell do you guys do that?" I demanded. "I'm wiped." Strauss and Balkin looked sheepish, but confided they had just jumped into the race a mile back. They were heading to the final quarter-mile where they will act, as they do each year, as volunteer bandit-catchers to pull rogue runners off the course. "I just hope I don't have to tackle anyone this year," Balkin remarked.

Leaving the park near the Plaza Hotel we turned west on Central Park South, bracing ourselves for an almost demonic fact that few discuss: The road that stretched to Columbus Circle past the grand hotels on the park's southern border is a long, subtle uphill in the 26th mile that can be a misery. It was for Jonathan Adler, who came to New York running on a dream, but who was now running on empty, and in an almost psychedelic state of mind from dehydration unable to tell heaven from hell or blue skies from pain.

Pushing up toward the new Time Warner Center and Columbus Circle -- past the spot where Mexico's "Wrong Way" Silva inadvertently turned off the course in 1994 a half-mile from the finish, then recovered to win by two seconds -- the course turned sharply right back into Central Park.

Our last turn! The course here is but a single lane through a tunnel of trees. And from that tunnel we emerged into the park and the waiting crowds, in our own minds like Olympians entering the stadium.

And out onto West Drive! The final approach. The distance now marked in yards ... 300 ... 200 ... 100. The finish line bleachers packed. A banner over the finish line. A last blast of crowds screaming its exhortations, for a final uphill surge to the clock.

Before crossing we tossed a salute to Fred Lebow, who ran this race in 1992 while his brain cancer was in remission. He was standing by the finish waiting for us, as if frozen in bronze.

Exhaustion and exhultation. Euphoria and pain. Undisguised raw emotions. Runners poured across the line into the finishing chute.

In the finish area, our pace now a shuffle, Jacob Goldstein of the WSJ Health Blog discussed with Jake Young his interview with the medical director of the race, as he volunteeed his services in part of the largest medical team ever assembled for an athletic event. Young listened while watching finishers stream across the line. He talked of the tragedy of Olympic hopeful Ryan Shay the day before, and the 5.5 mile memorial run just set up in his honor with cardiologist Dr. Wes, who had his own thoughts on the athlete's sudden death.

The crinkling sound of heat shields. The ringing sound of finishers' medals. The sound of discarded water bottles kicked and rolling. Food. Our hands quickly filled with essential items geared toward health and recovery.

Walking toward the baggage claim area, Dan Solove approached to talk about the fictions in this post. "You know," he said, "there are some who might think your recitation of today's events actually held some morsels of truth." Having started his book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, I told him I understood the problem of false statements on the web and their lingering effects, but that even lawyers have a sense of humor. Or at least I hoped so. And besides, I told him, not all of it was fiction. (Nevertheless, the issues of rumor and gossip were a good enough reason to edit out his hockin' a loogie at mile 21 that hit my shoes.)

The Editor was the only one left with me as we baby-stepped the road north through the park into the world's largest locker room, which stretched almost two miles in order to hold the moving swell of humanity. His face was smeared with Gumby green paint that ran and mixed both with sticky lime green Gatorade and with his own accumulated body salts, a nightmarish look that was lit up by the sun's reflection off his heat shield. But his eyes were electric and ecstatic and shone through the gloppy mess, giving the volunteering medical staff all the information they really needed about his health. He was delighted not only with the run, but because so many law bloggers were able to meet in person.

As we stripped out of sweat-soaked running gear into dry clothes and headed out to Central Park West, where family reunions take place, he was curious as to how I would put together this week's review of the best of the blawgosphere. He wanted to know if I would devote the review to personal injury law. My mind was a blur given all I had seen and heard during the day, but I was clear that my review theme would be different: If newcomers wanted to know what I usually write about, they could peruse some of the popular posts from the last year at the New York Personal Injury Blog.

Just before parting ways I noted an odd grin on his face, not quite evil but certainly mysterious. "You know," he told me, "I emailed that inspirational video you used at the top of this review to get people to show up. But if they saw this other one on the left, they might not have shown up." I told him I would check it out tomorrow.

Marty was back again, not to chastise me thank goodness, but to reassure as I looked for my wife in the reunion area. He helped as I tried to figure out how to put the review together. "You're a trial lawyer," he whispered. "You should know how to tell a story."


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(Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.)

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

Labels: Blawg Review, Blogging

Due to an influx of new visitors from Blawg Review, I have put together a "best of" so that folks can roam around with some sense of what my site is about. [This post is now updated on occasion with more recent postings at the bottom. Last updated 6/26/09]
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Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court
I followed medical blogger Flea as he live-blogged his own medical malpractice trial under a pseudonym, was outed on the stand by plaintiff's counsel, took down his blog and then saw his name and face blasted across the front page of the Boston Globe above the fold. I followed up with an interview with the attorney who tried the case, and added information not available in previously published reports. Some have called this one of the most fascinating stories in either the medical or legal blogospheres this year.

Philip Morris Punitive Damages Decision -- Why It Was Good For Plaintiffs
My analysis of the Supreme Court's decision in Philip Morris v. Williams that tossed out a $79.5M personal injury punitive damage award, and why a careful reading of the opinions and judicial comments at oral argument brings a surprising conclusion.

Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees
A former Supreme Court nominee (and a tort "reformer") brings a personal injury suit in New York. Gee, you think I'll cover that? I also did an analysis of the Complaint by his BigLaw firm and pointed out how to fix the many blunders.

Your Bar Exam Answer Sheet Is Gone -- Now What?
New York managed to screw up this year's bar exam, losing some of the essay questions submitted by computer. The last time they screwed up, in 1985, I was one of the recent grads taking the exam. This is the story, complete with four-part harmony and dancing girls.

Don't Post This Letter On The Internet!
It's not personal injury law, but about a cease and desist letter regarding a blog, where the lawyer tried to claim a copyright on the letter itself. It didn't turn out so well for the lawyer (or his client). As it happens, I also got a take-down letter shortly after this blog posting was made, due to my using the Avis logo for a decision regarding car leasing and rental companies. Those folks have no sense of humor. The logo is still there, by the way.

Conseco Insurance Scandal Follows Movie Plot
When life follows art you have to sit back and chuckle, except it wasn't so funny for the people that bought policies from this insurer.

Practice Tip: One Way to Cross-Examine The Attractive Doctor
I'm not retired and I'm not in academics. I handle cases from intake through trial and sometimes appeal. And this was one of the popular practice tips I put out.

How New York Caps Personal Injury Damages
Since tort "reform" is a constant issue, I addressed how damages are limited in the real world, without the one-size-fits-all damage caps that big business tries to push.

Personal Injury Law Round-Ups
Weekly round-ups of personal injury news and blog postings that I did from February-November 2007. (Links to other round-ups also appear at this link at the top of the results.)

And that's my tiny corner of cyberspace -- a focus on personal injury and medical malpractice, sometimes oriented toward New York, but reserving the right to go wherever the hell I want. So go ahead, add me to your RSS feed. What's the downside? Maybe next year I'll actually say something intelligent.
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Addendum: I've added this post to the sidebar, and will add to it periodically to keep as a running "best of" list.

Blawg Review #134 -- Published immediately after this Welcome post, it was a round-up of the best of the legal blogosphere for the week, done in the context of the New York City Marathon, and was my favorite post of the year. Thankfully, it was also critically acclaimed.

How to Fool A Jury (Is it Insurance Fraud?) - My expose on an "independent" medical exam company that directed its doctors to give reports that were biased. (Feb. 12, 2008)

Supreme Court Grants Cert in "Fantasy Baseball" Case; Three Justices Recuse Themselves Due To Participation in High Court League - (April 1, 2008, with a deconstruction of the fantasy here.

Blawg Review #188 -- Arlo Guthrie came to my place for Thanksgiving Dinner with a bunch of law bloggers for a Thanksgiving dinner that couldn't be beat, and we discussed the week's events.

New York's Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified (1/22/09):

This posting discusses how the anti-solicitation rule can be circumvented and why it causes First Amendment problems in certain circumstances due to the breadth of its definition of solicitation. Indeed, under the rules, this very posting could qualify as an ethical violation as I use the US Airways Flight 1549 splash landing in the Hudson River as a case example on how the solicitations can occur. In fact, the ethics rule is so full of holes that it would sink in a true disaster.

Twitter and the Age of Information Overload (1/25/09):

The internet and the burgeoning social networks that it has spawned have made it possible to acquire information in ways that our parents never envisioned. Information now pours over the transom in an unprecedented deluge, being pushed and pulled in myriad ways.

But at some point I need to stem this tide...

Do Attorney Anti-Solicitation Rules Work? (A Brief Analysis of Three Disasters) (2/26/09):

The ads are gone. All of them. In the wake of the crash of Continental 3407 near Buffalo I tracked seven different law firms using Google Adwords to advertise for victims, and every ad has now disappeared. ...

So here is a quick and dirty analysis as to whether or not attorney anti-solicitation rules were the reason, based on three recent disasters.

New York's No-Fault Mess (Do Our Judges Want Doctors To Go To Law School?) (3/5/09):

New York's No-Fault law is out of control. It seems to have reached the point where judges are almost demanding one of two things from injured patients: That their doctors get legal tutoring on how to write reports that will satisfy the judiciary, or alternatively, that injured patients seek treatment from only those doctors that already know how to write medical-legal reports.

Boston Marathon (Drinking Beer, Kissing Wellesley Women and Abstract Journeys) (4/21/09)

(Amtrak - northbound, April 18) Every adventure starts with a journey. As I leave my wife and kids behind I experience that rarest of moments -- leaving town by myself when it isn't for business. As the steel wheels rumble underneath me heading north toward Boston, I slip on the iPod and tune in Arlo:

The SCOTUS Nominee and the Tissue Box Test (5/12/09):

I want a nominee that knows what it's like to have someone cry in their office. I want a nominee that has been there when someone tells them that their mother/father/brother/daughter was arrested/injured/killed and that they are desperate for help.

I want a nominee to know what it's like to see real people -- not political philosophies or corporate giants trying to add a few cents per share to their earnings -- in their office in distress, and to represent them. I want a nominee that has experienced being the last, best hope for a downtrodden individual and the problem brought in the door. I want someone who knows what it's like to be the underdog against corporate or government interests.

I Hate My Website (5/26/09):

It isn't the style or functionality of my website that I hate, it's my writing. The site is my firm's electronic brochure and it's designed so that folks in need of a personal injury attorney can find it and consider retaining my firm. But creating such a website is a real problem because of three conflicting concepts:

Labels: Blogging

The New York Personal Injury Law Blog is hosting the next weekly Blawg Review, a round-up of the most interesting blog postings from throughout the legal blogosphere. So do me a favor and write something intriguing for this round up, or I won't have anything to work with.

Two complex rules for a post to be considered:

1. It has to be well written;
2. You have to let me know it exists in time for inclusion.
   

The way to submit your blog posting (or someone else's) is at this link, not by sending it directly to me.

And this is important: The theme is not going to be personal injury law. I do those types of reviews each week in my personal injury law round-up. So while there will be personal injury posts if I get quality submissions, this Blawg Review will be completely different from my other postings. Suffice it to say that I can, and will, fit any topic into the review. (My PI round-ups will return the following week.)

Deadline for submissions is 11:59 p.m. on Saturday, for publication Monday. It would be appreciated if submissions were sent throughout the week, and not left to the last minute, so that I'm able to organize the Blawg Review ahead of time.

I invite you to return on Monday so that we can race together across the legal landscape.

Labels: Blawg Review, Blogging

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

We start with pre-litigation issues:

I've covered Texas with some frequency recently (see: Texas Tort "Reform" and the New York Times, Round-Up #31, Round-Up #33). And so, following up, a Houston Chronicle article discusses a lot of doctors angry at the state's medical board for its aggressive investigations, which started when Texas also granted some immunity for negligent conduct with its tort "reform" (via Kevin, M.D.). The number of disciplinary actions brought against physicians has nearly tripled since 2001.

And since we're starting with the Lone Star State, you might as well check out Texas medical-blogger GruntDoc writing on one of his favorite topics, "defensive" medicine that is actually good care. The cardiac death of a 33 year old man waiting for hours in the ER without tests tends to put things in sharp focus. Don't miss the comments;

The Boston Globe ran a piece last Friday on the efforts to curb medical malpractice in Massachusetts;

The New York Times Blog ran a piece on the emotional toll of medical malpractice victims, raising once again the issue of doctors saying they are sorry (via Ben Glass);

As the story of beef tainted with eColi continues to grow, Bill Marler tells us that not only are the Canadians having problems with the same beef, but the left hand of the Canadian government doesn't know what the right hand is doing (are we exporting bureaucrats in addition to beef?);

From bad beef to bad products, the Consumerist says over 14 million products have been recalled due to lead contamination so far this year;

Two stories from the I'm Sorry Department: Jacob Goldstein at the WSJ Health blog asks, Does Medical Liability Mean Never Saying You're Sorry? While The Medical Quack reports on the flip side: An actual apology from a hospital for its medical malpractice;

The myth of arbitrary medical malpractice verdicts continues at White Coat Notes (via Kevin, M.D.) despite research that shows juries actually favor doctors and that plaintiffs rarely win a weak case. Nevertheless, even in the face of empirical evidence, we should expect immunity-seekers to continue propagating the myth of frivolous litigation;

Medtronic heart defibrillator leads were in the news last week after a recall (Personal Injury Round-Up #34), and this week again on the front page of the WSJ. Cardiologist-blogger Dr. Wes discusses the ramifications;

And in my own neck of the woods, disbarred New York personal injury attorney Richard Boter pleads guilty in court to stealing $148K from clients, a result that came out of the New York District Attorney's probe into the use of runners to recruit clients (see previously: New York Personal Injury Attorney Probe Catches Another Ambulance Chaser);

And in to litigation we go:

The family of a 12 year-old New Yorker has filed a $25M Notice of Claim (notice of an intention to sue) against the City of New York for releasing the MRSA (a drug-resistant staph infection) infected boy from the emergency room of a city hospital, who later died. The amount, by the way, is well in excess of anything the judiciary would allow even if awarded by a jury. And 10,000 hand sanitizing pens are about to get distributed to city school kids in a sign of deep worry and possible panic regarding the MRSA infections;

A trial lawyer reflects on being called for jury duty;

An Arizona doctor accused of medical malpractice when three different people died during or after liposuction, has fled, according to Ron Miller;

Returning to Bill Marler, he is less than amused when Nebraska Beef, defending itself for selling eColi contaminated meat, decides to sue a church that served its tainted product;

Jeremy Colby reports on the growing body of law regarding the constitutionality of the Graves Amendment (granting immunity to auto renting and leasing companies from vicarious liability) with a New York lower court ruling that upholds the law;

Newdorf Legal has suggested questions for experts at depositions (rules in your jurisdiction may vary as what is allowed, but a good list to start with);

On Halloween, Proof & Hearsay reports that an entire jury in a lead paint case came in dressed in judicial robes (via Deliberations);

John Day discusses what happens to the verdict when counsel misbehaves in front of the jury;

A disastrous fire that killed 100 people at The Station nightclub in Rhode Island in 2003, set off by fireworks while the band Great White was playing, has resulted in additional settlements, as per TortsProf Bill Childs;

From the Trial Technology Department, Mac users get a quick tutorial on using Keynote to make blow-ups for the jury at The Trial Technologists View (via The Mac Lawyer).

And finally:

• Blawg Review #132 is up at Home Office Lawyer;
• Grand Rounds, where medicine and law sometimes meet, is hosted at Running a Hospital;
• Insure Blog has the Health Wonk review (anti-Halloween edition), where health and law often meet;
  
• Alan Henderson found some law bloggers dressed up for Halloween;
• Beck/Herrmann celebrate one year in the blawgosphere at Drug and Device Law this week, and they ruminate on life, law and the hard work of blogging;
• The anonymous Editor of Blawg Review posts a list of finalists for Best Law Blog of 2007, which includes two New York-centric Blawgs. The terrific Sui Generis by Nicole Black, and edging her out by a hair for my vote, Scott Greenfield's superb Simple Justice, both sitting there among an impressive bunch of A-list law bloggers. You can vote for them here. Or one of those other people. Scott, of course, doesn't have a chance in hell of winning, so I didn't feel bad voting for him twice, now giving him a three vote total.
  

Enjoy the weekend.

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

Labels: Personal Injury Law Round-Up

The family of a 12 year-old New Yorker has filed a Notice of Claim (notice of an intention to sue) against the City of New York for releasing an MRSA infected boy from the emergency room of Kings County Hospital, a city hospital (via ATL). The child later died.

The big-number headline, a demand for $25M, reveals a quirk in New York law. While a claimant is forbidden from making a demand for damages in a Complaint that starts a suit (see: New York Cleans Up Claims Act), one is required to put a demand in the pre-suit Notice of Claim against the City of New York (or the Health and Hospitals Corporation that actually runs the city hospitals).

The amount claimed, by the way, is well in excess of any amount the courts of New York would uphold, even if a jury awarded it (see: How New York Caps Personal Injury Damages). While the amount claimed in such a notice might be a ceiling for a recovery, and thus provide an incentive to use the highest legally sustainable amount, the amount here is utterly ridiculous under New York law. The claim will be limited to the pain and suffering of the child and the pecuniary loss of the parents due to the child's wrongful death (assuming liability is established). That actual pecuniary loss will be, by definition, limited due to the fact the child was 12.

New York law does not, sadly, allow compensation for parental grief (see, The September 11th Lawsuits And The Problem Of Compensable Grief in NY). In that regard, we are in the dark ages as most states now allow it.

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

Labels: Personal Injury