Doing a round-up is a great way to get known in your particular niche of the blogosphere. And that lesson is not lost on:

Blawg Review #152 The TechnoLawyer, demonstrating how the blog carnival is an extraordinary form of social networking;

Monash Medical Student, giving the best of the medical blogosphere for the week at Grand Rounds;

Carolyn Elefant, of My Shingle and Law Blog Watch fame , as seen in this Legal Times article: Carolyn Elefant Wants to Be the Voice of Solo Lawyers;

InsuranceYak.com, who hosts insurance issues this week at The Cavalcade of Risk; And, of course...

Brooks Schuelke hosting this week's Personal Injury Law Round-Up, in one of his best round-ups done to date, chock full of stories and commentary from the week gone by;

And one last thing, related to round-ups only by virtue of my having used running as a theme for a round-up; Running does, in fact, make you high.

In the New York Times, Adam Liptak writes that in Europe punitive damages are not viewed the same way they are here (see: Foreign Courts Wary of U.S. Punitive Damages). The idea of punitive damages "was so offensive to Italian notions of justice that it would not enforce [an] Alabama judgment" in a case Liptak uses to illustrate the point.

In the U.S., of course, punitive damages are a crucial part of our judicial system, where private litigants can punish others for reckless wrongdoing that causes injury. Not so elsewhere, where the idea of punishment and deterrence is strictly a government function. The essence of Liptak's piece is this:

Most of the rest of the world views the idea of punitive damages with alarm. As the Italian court explained, private lawsuits brought by injured people should have only one goal -- compensation for a loss. Allowing separate awards meant to punish the defendant, foreign courts say, is a terrible idea.

Punishments, they say, should be meted out only by the criminal justice system, with its elaborate due process protections and disinterested prosecutors.

Why the difference? I think it's easy. America was founded from the time of the Revolution on limiting the power of government. The political tension between those that want larger government and those that want smaller is seen to this day, and will likely be seen so long as the republic exists. It is seen every time the issue of taxes is broached, for example, because larger government means more payments to government employees, and the money has to come from somewhere.

While I don't profess to be a scholar of European governments, I think most would agree that they are significantly more interventionist in the private lives of the people than here. You see that in nations that restrict free speech or grant universal health care, as two examples. Our notions of freedom are not always the same as elsewhere.

Intervention means not only larger government with larger powers. It also means higher taxes to pay for it. So wrongdoing is handled by the government, which the people pay for.

While comparing tax rates is exceptionally difficult because of all the exemptions and complications, not to mention state and local tax issues, I see that the top rate in Italy is 43%. Our top rate is 35%. And Italy isn't spending bazillions on two wars. A comparison of tax rate changes in the 80s and 90s can be seen in this government report (chart on p. 17). We are clearly at the low end of industrialized nations, despite our significantly higher military expenditures.

So we could, in theory, create criminal penalties to take the place of civil wrongs, and spend much more on criminal prosecutions of those wrongs as they do elsewhere. But we have to pay for that, and money has to come from somewhere if you care about fiscal responsibility.

Or we could let the private sector regulate itself by empowering people to bring the wrongdoers to court themselves, and let the private sector handle the costs. And the public, instead of paying, receives not only the benefits of stopping reckless conduct, but the financial benefits by taxing the punitive damage award.

Now here is the irony in this: Those that want to kill off punitive damages in the U.S. come from the right side of the political spectrum. But in doing so, they are not advocating changes in laws to criminalize civil wrongs and increase taxes to pay for enforcement.

It seems to me that a little ideological consistency is in order, because all I see when arguments pop up for eliminating punitive damages, is hypocrisy.

Your thoughts on the subject are welcome in the comments....

Labels: Punitive Damages

Bad news for prescription drug users out of California. The pharmaceutical industry has once again beaten back attempts at greater consumer safety.

The state had put together a bill to electronically track prescription drugs from the manufacturer all the way to the consumer, to insure that the supply chain was not infiltrated by counterfeit drugs. Every bottle of pills sold to consumers would be tagged. The plan was to go into effect on January 1, 2009, but according to today's New York Times, the drug companies have been given a two year reprieve. The electronic pedigrees were first supposed to have been in place on January 1, 2007, so this is the second delay that they have won.

Drug manufacturers and wholesalers complained that such safety would cost them money.

But if you think the battle for increased safety is over with the new date in place, you would be wrong. Pfizer is claiming they need another five to seven years, though they have somehow managed to put such practices in place for their high revenue drug Viagra.

And for those looking at the big picture of trying to determine when drugs will finally have documented pedigrees from manufacturer down to consumer, the first legislation on the subject was the Prescription Drug Marketing Act of 1987. That dealt with paper pedigrees and was never put into place.

So the industry has thus far succeeded in delaying for 21 years. And I'm guessing that 21 years from now we still won't have it. As Stan Goldenberg, a Los Angeles pharmacist and member of the state's Board of Pharmacy said in today's Los Angeles Times, "In 2011, they'll want 2013. In 2013, they'll want 2015. They'll keep the ball in the air until something bad happens."

And when something bad does happen (as it did to Tim Fagan), you can be sure, as sure as the lord made little green apples, that the drug companies will find ways to ask for immunity from the inevitable lawsuits. And they will try to blame "greedy plaintiffs' lawyers" for the fall out.

For more info:

• California Delays Law For Tracking Drugs (Pharmalot)
• Can CA's e-pedigree law be Implemented? (Drug Channels)
  
• Counterfeit Drugs Update - Trying to Track The Good (this blog, 4/24/07)
• Counterfeit Drug Trade is Roaring Ahead (this blog, 1/11/07)
• FDA Counterfeit Drug Website
• Counterfeit Drug Resource Page (@ my firm's website)
• Counterfeit Drugs (2003 cover story in Chemical and Engineering News, in which I was interviewed)
  

Labels: counterfeit drugs

New York's new governor, David Paterson, was sent a joint letter yesterday by several consumer groups over the state's medical malpractice insurance issues. Contention arose when former Gov. Eliot Spitzer, in response to a 14% malpractice rate hike (see: Why New York Medical Malpractice Insurance Jumped 14%) created a task force under the supervision of Insurance Superintendent Eric Dinallo to come up with solutions. The commission, however, was stacked with more than 20 medical and insurance interests and just three consumer interests.

A press release was issued yesterday from the Center for Justice and Democracy indicating that the groups were "gravely concerned that any recommendations that are the product of such process will not serve the public interest" due to the stacked deck.

The letter itself details a failure by the task force to turn over information to consumer advocates and that a "major reform proposal" will be unveiled shortly despite the fact there have been no meetings for months. Consumer groups, it appears, are only superficially a part of the task force. The groups claim they are "mere window dressing, to be used as stage props to create the illusion of inclusion."

Given Spitzer's pro-physician bias, the conduct of the task force comes as no surprise (see Eliot's Mess: The Ramifications for Medical Malpractice "Reform" in New York). Hopefully, Gov. Paterson will deal with issues with an even hand.

The letter was sent by: Center for Justice & Democracy, Center for Medical Consumers and Citizen Action of New York (members of a task force) as well as by the statewide consumer group NYPIRG, medical malpractice victim group PULSE, and CURE-NY, a statewide coalition of 13 public interest groups.

See also: It's Not Just Wall Street That's Happy To See Spitzer Go (Mother Jones Blog)

Labels: Insurance Industry, Medical Malpractice

The NY Workers Compensation Alliance Blog analyzes the change from Spitzer to Paterson for Workers Comp issues;

From Ireland's Lex Ferenda came Blawg Review #151 on March 17th, with it's St. Patty's Day theme;

And from Perlmutter & Schuelke comes Personal Injury Round Up #53 and #54.

Labels: Random Notes

Counterfeit heparin may be responsible for at least 19 deaths in the United States and hundreds of allergic reactions. The news came from federal regulators yesterday that part of the anti-clotting drug made by Baxter was an unapproved ingredient from China that was altered to mimic the real thing. Baxter has pulled the drug from the market.

In exploring the potential liability of Baxter below, I first offer up this personal background: I previously represented Timothy Fagan, a 16 year-old New Yorker who had been injected with counterfeit Epogen after an emergency liver transplant. It was one of the few counterfeit drugs cases ever brought in this country, which gives me a unique perspective on the issues that may be encountered should suit be brought against Baxter. His experience was part of a 60 Minutes segment (as well as many other news reports) and featured in a book by Katherine Eban, Dangerous Doses. Legislation named for him, Tim Fagan's Law, is pending in Congress. I have a page at my web site devoted to the subject (Counterfeit Drug Resource Page), have written on the subject here a number of times (though not in the last nine months), and spoken at pharmaceutical conferences on the subject.

Tim's experience, like the one with Baxter's heparin, resulted from problems in the pharmaceutical supply chain. For Tim, the counterfeiting took place after the drugs left the hands of drugmaker Amgen, and low dose vials were "uplabled" with counterfeit labels to appear to be 20x the strength, reportedly by a criminal gang in Florida. The vials were also mishandled, leading to apparent adulteration. Tracing how the drugs moved through a web of secondary wholesalers was a critical part of the investigation.

Baxter now faces a similar problem of supply chain management, though the problems exist upstream instead of downstream. The problems result from outsourcing critical manufacturing to others while also failing to verify the integrity of the product. Any investigation as to Baxter liability will no doubt turn on whether the company turned a blind eye to the product's sourcing, perhaps because the price was so good.

Litigants will also face a critical set of problems that will arise in any drug counterfeiting case:

1. The evidence was destroyed at the time it was injected or ingested and the packaging discarded.
2. Doctors will generally assume that a failure to get better is the result of the underlying condition, not a counterfeit drug.
   
3. Since the patient was already sick (or they wouldn't be getting the drug), proving that death or further disability came from the counterfeit, as opposed to an underlying cardiac condition that they were perhaps being treated for, will represent a real causation issue even if you know the counterfeit was injected/ingested.
4. The drug may not be trackable back to Baxter due to shoddy record keeping regarding the supply chain, which still contains loopholes that allow the "pedigree" of a drug to be washed by "authorized distributors of record" so that prior owners of the drug are unknown.

Litigants will start with an essential fact: It is a prohibited act to sell counterfeit drugs and Baxter appears to have done just that. Most lawyers refer to that as negligence per se.

Since Baxter appears to have committed that prohibited act (assuming the accuracy of press reports), it must therefore try to defend itself with a claim that the company owed no duty of care to the end-user, as there was no direct relationship between the two.

A savvy litigant will respond, however that the since the Food, Drug and Cosmetic Act prohibits introducing defective drugs into interstate commerce, it is not enough to say that Baxter simply didn't know that this is what their sourcing companies were doing. The United States Supreme Court, in the little known 1975 case of US v. Park, has already stated that the Act "imposes not only a positive duty to seek out and remedy violations when they occur but also, and primarily, a duty to implement measures that will insure that violations will not occur." The Act, according to the Court, punishes "neglect where the law requires care, or inaction where it imposes a duty."

Since the measure of Baxter's duty to the end-user will be measured by the foreseeable risk, and counterfeiting is not only a clearly foreseeable risk (see the links back at my resource page), but one that has received much attention lately due to counterfeits coming out of China in particular, the foreseeability issue is easily approached.

Thus, a plaintiff would argue that it is not whether Baxter owes its customers a duty of care, which has existed for decades, but rather, the scope of that duty.

The legal issues of whether a duty of care exists between manufacturer and consumer also might be addressed from the breach of warranty angle. In that respect, relief may exist (among other places) in its uniform commercial code. New York's UCC 2-318, for example, provides that: "A seller's warranty whether express or implied extends to any natural person if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. "

Baxter counsel will argue, in essence, that the company deserves immunity, and will scratch around for any argument that fits that bill. Since any case will likely be faced with a motion to dismiss right away, it is critical that each of the potential issues be addressed in the complaint with proper allegations. There are no cookie cutter forms for this type of complaint, and each of the allegations and potential responses must be thought through and specifically tailored.

Update:

• Baltimore Sun says 21 deaths and 700 injured)
• Senator Edward Kennedy released a statement that said, in part:

  "It is unacceptable that Americans have died and been seriously injured by what appears to be deliberate tampering. Whether this contaminant was introduced intentionally or by accident, the full force of the law must be brought to bear to bring those responsible to justice. To guard against future abuses, every drug manufacturer needs to inform FDA of where it sources its ingredients and what it is doing to ensure that these ingredients are pure and potent."

General counterfeit drug links:

• Counterfeit Drugs and the American Enterprise Institute
• FDA Counterfeit Drugs Website

Counterfeit heparin links:

• Fake Heparin, then Sick and Dead Patients (Healthcare Renewal)
• Heparin Contaminant Identified (PharmExecBlog)
• Behind The Heparin Mystery: A Counterfeit Substance (Pharmalot)
• Heparin Likely Cut With Cheap Counterfeit Ingredient (WSJ Health Blog)
• heparin contaminant? check. lawsuit? coming. (China Esquire) (added 3/21)

Update 3/27/08:

• Baxter And Heparin Liability: Foreseeable Risk (My interview with Ed Silverman at Pharmalot)
  
• Contaminated Heparin: Where is the Outrage? (Womenhealth)
• Heparin scandal reporting ignores corruption (Nancy Reyes @ Blogger News Network)
• Congress Investigates Tainted Heparin (Glenn Hess @ Chemical and Engineering News, which interviewed me back in 2003 in this cover story on counterfeit drugs)

Labels: counterfeit drugs

There are several different reasons that patients (or next of kin) call lawyers regarding potential medical malpractice. Understanding the motivation for the call is important in evaluating the merits of a case during the vetting process.

Two of those reasons are on display now at NY Emergency Medicine, in an extraordinary post by Dr. Brian Fletcher, a fourth year emergency medicine resident recounting a story from his internship. It involves a horrifying code that occurred while he was doing a bedside procedure on a 70 year old man who had undergone surgery some days before. Read that post and come back. It's very much worth a few minutes of your time.

OK, welcome back. Two possible reasons why a medical malpractice attorney might be consulted popped right out at me during the story, and I've added two more to a short list below.

1. An unexpected result and a betrayal of trust: We don't know from the story about what transpired after the code with respect to the patient's family. It is strictly a post through the eyes of the young doctor that went through it. But if a family isn't leveled with, if they think information is being held back from them, then a family may feel a betrayal of trust. It's pretty darn rare to get a call from someone that trusts their doctor, so something must have happened not only with respect to the medicine but with respect to the personal relationship between doctor and patient. (This is one reason doctors are urged to apologize for errors.) One of the most important questions any lawyer asks a potential client regarding the prospect of litigation is, "What will the other side say is the reason this happened?" This will often lead to clues as to whether the matter is worth the time and money to investigate further by paying for the medical records.

2. The hospital rumor mill. A substantial number of calls are generated by nurses, technicians, doctors or others whispering into the ears of the family about what they heard and urging that a lawyer be consulted. As can be seen from Dr. Fletcher's story, a lot of people with no first hand knowledge like to talk. It's old fashioned gossip that often should be appropriately discounted. The important question here is trying to find out what the storyteller really knows.

3. Money, money, money. This is not part of Dr. Fletcher's story, but it tacked on here because I'm rounding up the reasons for the initial inquiry to the lawyer. Money is an easy motivation to discover because, during the initial consult before you even have a chance to evaluate the case, the person asks, "What's the case worth?" Anyone with a lick of common sense knows that all parts of the story must then be appropriately discounted, and if the client's testimony is essential to proving the case (as opposed to being documented on medical records) it is likely a case not worth taking.

4. Outrage. This is usually motivated by a desire to make sure that other patients don't undergo the same fate. The Dennis Quaid case of his twins getting overdosed with heparin is a classic example. Nobody expects that the Quaids need the money from any suit. They have a point to make. And they are not alone. Many, many people, struck by tragedy from the loss of a close family member or injury to a child, will make the call based on nothing less than raw emotion.

Since investigating and litigating potential medical malpractice cases is long, expensive and difficult, any lawyer that is doing their job properly is declining inquiries at a rate of 95-98%. But that initial call is how it all starts.

Other posts on the subject:

• Medical Malpractice - Vetting the Case
• Medical Malpractice Economics
• Medical Malpractice - A Primer
• No, Your Medical Malpractice Case Will NOT Settle Fast

Addendum 3/19/08 -- From TortsProf Sheila B. Scheuerman: "Sorry Works!" - Apology to Prevent Med Mal Claims

Addendum 3/21/08: Why we've never been sued for medical malpractice (Ralph Caldroney @ Medical Economics via Kevin, M.D.)

Labels: Medical Malpractice

If the high court takes this case, an interesting question is posed: Can participating in a fantasy baseball league require Unites States Supreme Court judges to recuse themselves? In particular, will Justices Samuel Alito or John Paul Stevens find themselves watching this suit from the sidelines if it goes up to the high court?

Stock investment, we know from the recently decided 4-4 decision in the Rezulin drug case (Warner-Lambert v. Kent), can cause a conflict of interest recusal, as Chief Justice John Roberts didn't participate due to a $15,000 stock investment in Pfizer, parent company of Warner-Lambert. The subjects of recusal and the problems of a 4-4 split have been discussed by many, including Howard Bashman (advocating an appellate judge sit by designation), Drug and Device (the problem of forum shopping due to splits in the Circuits, and its impact on multi-district litigation), and SCOTUSblog (noting that this is a rare occurrence). It had previously been discussed by Eugene Volokh (sell your stock judge!) and Stephen Bainbridge.

That recusal may now come up again, not due to stock holdings, but quite oddly in an altogether different manner: The subject of Rotisserie Baseball (a/k/a "roto" or fantasy baseball) is now before the court on a petition for certiori to determine if baseball statistics are owned by Major League Baseball or are free to the world under the First Amendment (see Above the Law, Sports and the Law: Supreme Court Might Hear Dispute Over Fantasy Sports Property Rights, CBC v. Major League Baseball).

Here's how it impacts players of the game, which could easily include one on or more high court judges: Fantasy team owners draft real players from around the league at the start of the season to form their own teams in their own leagues, and use those very real statistics as their own to compete and trade against other team owners in their fantasy league. But it's not just a few bucks in gambling money at stake for the winner. Those statistics are complied by various services that make them available to the public for a fee. So even if you aren't in a roto money league, you still need the stat service to compile the data to determine which fantasy team has more homers, RBIs, stolen bases, etc. than the other teams in your league. And Major League Baseball wants a cut of that money by licensing the information out.

If you play roto you know this drill well. Now heading into my 20th season, I haven't yet won, despite the heroic efforts of my brother that does 99% of the heavy lifting. But if you have to pay more money at the beginning of the season for the right to use those stats then there will be real economic issues for every single team owner. We fantasy team owners don't want to pay money to the multi-millionaire real team owners just to have our fun.

Setting up dates for the start-of-the-year drafts are going on now across America as the season prepares to open. These fantasy leagues are very popular, with a considerable industry devoted to it (hence the litigation). So this leads us to this oddball question with its constitutional issues: Are any of the Supremes fantasy team owners? If so, they have an interest in the outcome of the suit. What does that lead us to?

Free league or not? Does fair use of the statistics come into play if the league is non-money, meaning no gambling fees, but you still need to pay for the stats? Will free leagues still be required to pay a fee for use of the stats if the court were to decide that Major League Baseball owned them or does the First Amendment protect them? Is it different for leagues with money involved?

Oh, I know what you think, this a silly long shot. But read this from US News and World Report on Justice Samuel Alito:

"A longtime Philadelphia Phillies fan, he uses sports metaphors in speeches. As a child, he played second base and dreamed of becoming a baseball commissioner. As an adult, he coached his son's Essex County Little League team, and his wife once sent him to a fantasy Phillies baseball camp where he played second base alongside professional ballplayers."

Reviewing a photograph of the chambers of Justice John Paul Stevens, I see a signed Cal Ripkin baseball, a picture of The Babe and a 1932 Word Series scorecard. You gotta be a pretty big fan to have a framed scorecard in your chambers.

Roto in the high court? Seems like a possibility.

Either Alito or Stevens (or others) might have to consider recusal since they may be forced to pay money to buy the stats if the case is decided in favor of Major League Baseball.

As ballplayers limber up in Florida and Arizona for the coming season, the issue of money hangs over the heads of fans who play fantasy baseball. Or at least, it will hang over their heads if the Supremes take the matter and render an unfavorable decision.

Last: The petition for certiori, now pending, may tell the tale of whether one or more recusals are in the works.

Labels: Judiciary

A defense verdict was handed down by a California jury today in a medical malpractice trial concerning the death of actor John Ritter from an aortic dissection. (Previously: The Medical Malpractice Trial of John Ritter)

The family had previously settled with other defendants for $14M, according to press reports, and had continued on with respect to a radiologist that had done a study two years before his sudden death, and a cardiologist in the emergency room.

The jury found with respect to the radiologist that he had been advised two years earlier to follow up after the study (but also alleged that it wouldn't have made a difference.) The case against the cardiologist revolved around the failure to do a radiological study that had been ordered when he presented to the emergency room.

When I wrote about the case a few weeks back, I noted:

My personal view: Suits against emergency departments are very difficult, though not impossible. Jurors will, if given half a chance, give the benefit of the doubt to emergency room physicians, often times even if their own protocols are violated. I have no idea what will happen in this particular case since I won't be in the courtroom hearing the evidence, but I say with some confidence that the scenario presented in the news media presents a difficult factual pattern if the hospital was the culprit in failing to get the CT scan done.

(hat tip to TortsProf)

More: Ritter Lawsuit Demonstrates How Medical Malpractice Caps Discriminate On Basis Of Wealth (David Lowe, InjuryBoard:Milwaukee)

Labels: Interesting Cases in the News, Medical Malpractice

My brother Dan, a screenwriter, sat jury duty this week in New York. He live-blogged the experience, for publication when it was over:
-----------------------------------------------------
Tales From The Juror
Thoughts, observations, and ramblings, from the jury room at 111 Centre Street.

8 AM
In an effort to make sure I'm there on time, I get there before the building is even open. Big mistake. Have to wait out on the sidewalk. The day is not off to a good start.

9 AM
In my seat in the holding pen, verify that there is indeed free wifi access. The day gets slightly better.

9:30 AM
The woman running the show, giving instructions:

"You'll notice, on my right, are vending machines, where you can buy snacks. We do not own these vending machines, so if you put your money in, and your snack does not come out, we are not responsible. And there is no number on the machine for you to call. But if it happens, we do allow you to shake the machines a little."

9:45 AM
Ed Bradley (who died 16 months ago), and Diane Sawyer narrate the introduction film, which is supposed to make us feel better about being here. But it's March 12, and half the people here are sniffling, wheezing and coughing. It'll be a miracle if I get out of here alive. I think it was jury duty that did in Bradley.

10:00 AM
There is a severe lack of hot-looking women in this room. All those years of watching courtroom based TV shows, I was lied to! How could TV let me down so badly? There will be no amusing stories to tell my children years from now about how I met their mother while we sent some guy to the chair. (Do we still use Old Sparky in this state?)

If I get picked on a criminal case, and the A.D.A. isn't smokin' hot, I'm going to kick Dick Wolf's ass.

(For those, like my brother, who probably don't know who he is, Dick Wolf is the creator of "Law & Order," a show which usually features an actress playing an A.D.A who looks like she was cast from a Victoria's Secret catalog.)

10:05 AM
My brother e-mails me the following note:

"DO NOT TELL ME ANYTHING ABOUT DETAILS OF THE CASE IF YOU ARE PICKED UNTIL IT IS DONE!"

Apparently my brother thinks I'm an idiot. I'd find him guilty so fast.

10:16 AM
First call for criminal jury selection.

10:18 AM
I didn't get called. Bastards.

10:23 AM
A cell phone goes off in the room. We were told to turn them off. The offender doesn't get yelled at. Damn. I thought it might be the first chance at some drama here.

10:28 AM
Civil selection call.

10:33 AM
Not called

10:35 AM
Next call. This group is going to another building. 60 Centre Street.

10:39 AM
Not called. Good. Don't feel like moving. If I'm going to be asked to hand out justice, let me do it without having to put my coat on.

10:40 AM
The guy behind me is loudly crunching through a bag of potato chips. He's driving me nuts!

10:41 AM
Civil panel being called.

10:45 AM
Not called again.

God help me if I every have to rely on some of these folks to decide my fate.

10:53 AM
My bit to help the system run smoothly includes instant messaging with my 18 year-old niece on spring break in Florida. How did people ever stand jury duty without computers?

11:17 AM
Working on my latest screenplay. The guy behind me is starting to read over my shoulder. He thinks I don't notice, but I do. Time to cause a scene? Humm...how bored am I?

11:21 AM
Taking a break from writing to do what jury duty is truly useful for: preparing for my upcoming rotisserie baseball draft!

11:29 AM
Another criminal panel call.

11:31 AM
I'm picked!!!

1:53 PM
Back from lunch. It's amazing how easy it is to get out of serving. The judge asks "is there anyone here who can't be impartial?" and 1/4 of the people raise their hands. All they have to do is say their name and declare "I can't be impartial," and they're gone. Wow. Of course most of them are full of it. You end up hoping those people get arrested for something and have to rely on a jury some day.

There is one prosecutor, and he is not hot. Dick Wolf, watch your ass.

11:00 PM
Home.
So I was sitting there in the voir dire, one of 16 in the box, and we find out what the case is. It's a drug case. Two Hispanic males from Harlem are caught in an apartment with 20 kilos of cocaine. That's a lot of coke. There's also an unloaded gun and a minor in the apartment, both of which add to the charges. Some jurors have already been chosen, they're looking for more.

All the lawyers seem determined to remind us this isn't CSI or Law & Order, it's real life. I'm not sure if they're being prudent or treating us all like idiots.

When the two defense attorneys started to question us, I was toast. One was hung up on the concept of using "entrapment" as a defense. Do we think it's a legit defense? My response was, it's meaningless as long as the cops followed all the rules they're supposed to follow, and didn't break any laws. At the end of the day, each person, no matter what situation they find themselves in, gets to decide if they're going to be honest and law abiding, or dishonest and crooked. I pretty much knew that would get me tossed. Not that it was my goal to get tossed, I just didn't like this guys' angle, and felt like speaking my mind. The other defense lawyer was pushing the line that the cops went in without a warrant, how did we feel about that. Of course it was mentioned that this was an issue for the judge to decide, that if he says the cops didn't need a warrant, then it was OK. But he got some people to say they felt funny about it.

Midway through the questioning, one of the court officers, an older gentleman, dozes off, with his hand on his gun. It did not inspire confidence. A few of us joked about it at lunch break, while waiting to go back in.

In the end, of the 16 of us questioned first, two were selected. I was not among them. So it's back to the holding pen tomorrow.

The good news is, we don't have to show up till 10 AM. Hot damn!

Day 2

9:50 AM
The holding pen is packed, but I find a seat in the front row. Time to sit and wait. Finally finish off the Sunday Times Magazine.

10:22 AM
They take attendance.

10:26 AM
Attendance over. They didn't call me, and a bunch of others who were in my voir dire yesterday. The woman says they'll try and track down our juror ballots. You do that.

10:45 AM
The missing juror ballots are found. I am now officially here. Oh boy.

10:54 AM
Casting my first jury duty vote: Snickers or M&M's?

10:56 AM
Rotoworld.com says Orioles pitcher Adam Loewen was scratched from his scheduled start Friday because of a sore shoulder. The team president says it's a normal result of his having undergone elbow surgery 9 months ago. I don't care, I'm still not going to buy him at the draft.

Such is the excitement of jury duty.

11:01 AM
It's amazing how quiet a room with well over 100 people can get. Reminds me of taking tests back in college.

The first day of jury duty, you actually look forward to getting selected. (at least I did) A little bit of excitement. A chance to do your civic duty. A chance to throw a bad guy in the slammer, or decide who really cheated who in some business deal gone bad.

The second day, all that crap goes out the window. Please, oh please don't call my name. Just let the clock run out and let me go home.

11:36 AM
First panel called. 19 people. Not me. Good.

2:25 PM
Back from lunch. The immediate area definitely needs a better selection of eateries.

Only a couple of hours to go, and my time as a good citizen is over. Which is great, as the guy behind me in the packed jury holding pen is snoring something fierce.

4:00 PM
It's over! With only one panel called all day, they've decided to cut us all loose. The guy setting us free decides to work on his standup routine.

"Some of you will be sad to be going home. (big laughs) Some of you will be glad. Just remember this: the last two days you had two-hour lunches. Tomorrow, it's back to grabbing a sandwich at your desk. Today, you strolled in at 10. Tomorrow, it"s back to getting up at 7 AM."

So there it is. My two-day odyssey through our judicial system has come to a close. I didn't get to send any bad guys to the old gray-bar hotel, like I hoped. Nor did I set free any wrongly accused innocents, as my brother reminded me was also a possibility. No courthouse romances, no shootouts, nobody in handcuffs, no weeping family members, no mobs of reporters looking for courthouse steps sound bites. No courthouse steps, for that matter, at 111 Centre Street. All in all a thoroughly boring two days, interrupted briefly by a quick story about 20 kilos of coke.

And to think; sometime soon, some lucky jurors will get to sit in the box and hear about the ex-governor's whoring around. I bet that won't be a boring jury duty experience. Why couldn't I get called then?

Labels: Inside The Jury Room

The following is a test of the Post by Email function of this blog. This is only a test. In the event of an actual blog posting you would be given instructions. Of some kind. This is only a test.

"Have you ever patronized a prostitute?" was the question asked of New York's incoming governor, David (just one "t") Paterson who is replacing Eliot (just one "l") Spitzer. The answer is at Capitol Confidential;

A Google seach of "New York State" shows that Paterson is already the Governor, even though he won't be sworn in for four more days (also via Capitol Confidential); Here's the screenshot: Who's The Gov.pdf

A reminder for new New York bloggers: Each Monday Nicole Black at Sui Generis does a round-up of New York blog postings for the last week and on Wednesday a round-up of news stories;

Blawg Review #150 is up at the Trusted Advisor, with a theme of, well, trust;

Marc (with a "c") Randazza at The Legal Satryicon, in addition to opining on why Frank Zappa would have been a good elected official, adds me to his blogroll, writing:

Turkewitz' blawg might be a head scratcher. What the heck does a personal injury blawg have to do with my areas of expertise and interest? Nothing. Nevertheless, I find his blawg to be thought provoking as all hell, and frankly quite addictive and detrimental to my billing!

Yikes! Talk about setting a high bar. Marc's own idiosyncratic blawg -- he clearly doesn't write the way most law professors do -- has been added to my blogroll.

Kevin, M.D.'s blogging leads to an op-ed in USA Today, while Anne Reed's blogging leads to a trip to Japan. Which says something about the power of the blog.

--Eric (with a "c")

Labels: Random Notes

In case anyone wondered why a personal injury blogger was covering the Eliot Spitzer scandal -- aside from the fact that his New York office is two blocks away from me and news helicopters are buzzing overhead as he prepares to resign -- it's because it may have deep ramifications for medical-legal issues here.

Just two days ago, before the scandal broke, I wrote about 1,500 doctors rallying in Albany. I debunked the myths that the New York Medical Society was using to support artificial one-size-fits-all caps on medical malpractice suits in their discussions with elected officials.

Part of the Medical Society press release, which I didn't discuss at the time, has this quote from Spitzer:

"I look forward to standing with you when we sign these medical liability changes into law."

So Spitzer, who's brother is also a neurosurgeon, was an important ally of the physicians in trying to limit patient rights. Victimized patients will not be sorry to see him go if this was the issue that they held most dear to their hearts.

Assembly Republican Leader Jim Tedisco (R,C,I-Schenectady-Saratoga) had this to say about incoming Governor David Paterson, as he set the bar high:

"David Paterson's life story is, in a word, inspirational. His public record is one of overcoming obstacles, showing true character in the face of daunting adversity and being able to bridge Albany's bitter partisan divide that has, regrettably, widened into a chasm in recent years."

"Governor Paterson knows the meaning of honor and has shown in both his deeds and words that he is a man of the highest public and personal integrity. His inherent decency and desire to put advancing the interests of the 18 and a half million New Yorkers we represent ahead of political partisanship will truly be a breath of fresh air."

Addendum on 3/13/08: Last year, after a 14% medical malpractice insurance hike, Spitzer enacted a medial malpractice liability task force to suggest solutions. It remains to be seen what will happen to it.

More (3/19/08): The National Association of Manufacturers gives its take here: On the Tort Reform Angle, Too Bad about Spitzer

Labels: Eliot Spitzer, Medical Malpractice, tort reform

Vice President Dick Cheney has an implanted cardiac defibrillator. And it now appears that such devices can be hacked.

From an article in today's Boston Globe (via Dr. Wes):

A new study demonstrates a large gap in the security of implanted devices that help regulate heartbeats and use wireless technology, researchers from Beth Israel Deaconess Medical Center, the University of Massachusetts, and elsewhere report today.

"With some technical expertise, we were able to retrieve information from the device in an unauthorized fashion," said Dr. William H. Maisel, senior author of the report. "We were able to send commands to the device in an unauthorized fashion and could reprogram settings and even tell the device to deliver a high-voltage shock."

So if someone can get information on Cheney's heart, what exactly will they find?

See also: How to hack a defibrillator (WSJ Health Blog)

Labels: Odds and Ends

After I posted yesterday morning that Eliot Spitzer's problems were likely well beyond the $4,300 of published reports, the New York Daily News reports today said that he may have spent as much as $80,000 on prostitutes, and that the may have used state funds to fly to and from the rendezvous points. The report also states that the liaisons have been found to go back about 18 months.

If true, this adds yet another layer to the hypocrisy of Spitzer, whose office last year went after New York State Senator Joe Bruno, the top Republican in the state, for using state funds (a helicopter) for political business.

Labels: Eliot Spitzer

Update: 3/12/08 -- Payments may be as high as $80,000, and state funds may have been used for transportation.
----------------------------
Original on 3/11/08 -- Did Eliot Spitzer's payments to the prostitution ring exceed $10,000, well above the $4,300 of initial reports?

I don't generally delve into criminal law, but this jumped out at me, and it deals with "structuring." According to a post at Overlawyered, these are the elements:

31 U.S.C. 5324 prohibits certain actions by any person who acts with the purpose of evading the reporting requirements of Section 5313 (Currency Transaction Reports). The definition of structuring for purposes of currency transaction reporting is found at 31 C.F.R. 103.11(gg). The elements of the structuring regulations are:

A person acting alone, in conjunction with others, or on behalf of others,

Conducts or attempts to conduct,

One or more transactions in currency,

In any amount,

At one or more financial institutions,

On one or more days,

For the purpose of evading the reporting requirements of 31 C.F.R. 103.22 (requiring CTRs).

But something is missing, and that is the follow-up to 31 CFR 103.22, if in fact, that is what was being investigated.

And according to 31 CFR 103.22, the amount must exceed $10,000. So while folks are talking about $4,300 in payments to the prostitution ring, that smaller amount of money wouldn't have tickled the bank into reporting this potential structuring crime to the IRS, would it?

It seems likely that an amount in excess of $10,000 must be at issue if this is what was being investigated, which means more of a mess than Eliot already has. And to tickle the bank to act, it may be a sum well in excess of that amount, because I wouldn't think an investigation would be opened if they simply saw two transactions of, say, $6,000 each a few days apart. There could be substantially more at play here.

Addendum: Forty television trucks have encircled the Capitol for the media feeding frenzy.

Labels: Eliot Spitzer

A small upgrade to the blog this week; Posts can now be emailed to people on a daily or weekly basis.

The Reason: While I had assumed that most folks would get blog postings via RSS feed, I noticed in the past month many coming to the site because some of my posts were passed around by email. Specifically, there were four posts that dealt with expert witnesses that bought a lot of new traffic: I posted a piece of evidence from one trial, about RICO suits against Allstate and State Farm, and a response from one of the RICO defendants.

Since many of the new visitors for this, or other stories, may be unfamiliar with RSS, I've added an email option.

Privacy: While it may be really tempting to sell all those email addresses I get -- I bet I can get almost a penny apiece for the 50-100 that I may gather -- I think I can resist that veritable gold mine. So even if I can figure out how to access those email addresses, I won't do anything with them.

Removal: If you sign up and decide after a week or a month that I am really annoying or posting nonsense, then you can say adios to me very easily. Each email gives you the option to remove yourself from the service.

Labels: Blogging

Rumors out of Albany, via CBS radio is that Spitzer will resign and swear in Lt. Gov. David Paterson tonight. [Note: Paterson has only one "t," which we might as well start getting used to.]

Feds have at least six different recordings from Client #9, believed to be Spitzer.

Spitzer's statement:

Today, I want to briefly address a private matter. I have acted in a way that violates my obligations to my family and that violates my or any sense of right and wrong. I apologize to my family. I apologize to the public, to whom I promised better. I do not believe that politics in the long run is about individuals; it is about ideas, the public good and doing what is best for the State of New York. I am disappointed. I failed to live up to the standard I expect of myself. I must now dedicate some time to regain the trust of my family. I will not be taking questions. Thank you very much. I will report back to you in short order.

He took no questions. Video of very brief press conference is here.

It's hard to run as a law and order candidate, presenting yourself as squeaky clean, and survive this type of thing. It shouldn't matter, but it does. It also doesn't help him that he antagonized so many people, on both the left and the right. Who's going to go to bat for him and tell him to ride it out?

On a final note, it appears from news reports that Spitzer called for, umm, service, on February 13th. Pretty weird way to plan for Valentines Day if you ask me.

Labels: Eliot Spitzer

Charges have been brought by the US Attorneys office for the Southern District of New York against four people involved in a prostitution ring. New York Gov. Eliot Spitzer's name has surfaced as one of the customers as "Client #9".

Fox News and CBS televison both report that Spitzer, famous for his law and order approach as New York Attorney General that he rode to the Capitol, will quit. Another report has called him Client #9 in a high priced prostitution ring.

According to a March 7 story in the New York Times regarding the ring:

The ring, known as the Emperor's Club V.I.P., had 50 prostitutes available for appointments in New York, Washington, Miami, London and Paris, according to a complaint unsealed on Thursday in Federal District Court in Manhattan. The appointments, made by telephone or through an online booking service, cost $1,000 to $5,500 an hour and could be paid for with cash, credit card, wire transfers or money orders, the complaint said.

..

After obtaining authorization to tap the club's phones, federal agents recorded more than 5,000 calls and text messages and had access to 6,000 e-mail messages, court papers said.

New York succession rules mean that Lt. Gov. David Patterson would take over in the event of a resignation. He was a Harlem Senator previously and will be the state's first black Governor.

Press Release from US Attorney's Office on the arrests: US-Atty-PressRelease.pdf
-----------------------------------------

Press conference slated to start at 2:15. Eliot "The Sheriff of Wall Street" Spitzer has not yet appeared.

Labels: Eliot Spitzer

Breaking story from the New York Times:

Spitzer Is Linked to Prostitution Ring
By DANNY HAKIM
Gov. Eliot Spitzer has informed his most senior administration officials that he had been involved in a prostitution ring, an administration official said this morning. He is set to make an announcement at about 2:15 this afternoon.

Labels: Eliot Spitzer

New York's doctors, led by the state Medical Society, rallied last week for tort "reform," blaming lawsuits for the increase in insurance premiums. According to a medical society press release, 1,500 physicians traveled to Albany last Tuesday to protest on the steps of the State Capitol. The issue they brought to the legislators was high medical malpractice premiums, which I reported last July jumped 14% (see: Why New York Medical Malpractice Insurance Jumped 14%).

As you can see from that link (You did read that link, didn't you? I hope so because it's important), the jump was related to artificially low rates set by the New York Insurance Department for years combined with the state swiping almost $700M from the rainy day fund.

But when the doctors rallied in Albany, it was injured patients that were their targets. In a surreal moment, Dr. Robert Goldberg, the head of the Medical Society, offered up in a press release this humdinger of Doublespeak:

Physicians firmly believe that patients who truly suffer injury due to medical error should be fully reimbursed for economic damages, but non-economic awards must be reined in and the litigation process must be made equitable.

In other words, caps on lawsuits must be imposed on the most badly injured individuals because it would be inequitable to fully compensate them. Equity, it appears, demands giving some level of protectionism to the person that caused the injury. George Orwell would certainly be proud.

One of the reasons this bit of propaganda is important is because payments to the injured had nothing to do with the rate hike. In fact, both the number of malpractice case and the amount of payments made have been relatively flat nationwide since 1991.

And the nationwide trend does not differ in New York. In November 2007, Public Citizen put out a report (that I discussed previously here: Will NY Doctors Be Hit With $50,000 Surcharge?) that reached these conclusions, among many others:

• There have been fewer medical malpractice payments in the past five years than in any five-year period on record;
• Amounts paid out, when adjusted for inflation and population, have either risen slightly in the past five years or declined slightly, depending on the measure used;
• Only about 1 percent of New York's doctors are enrolled in the state's program for physicians deemed too risky by commercial insurance providers. Yet these doctors' payments have been so massive that they and other losses have drowned the program in more than $500 million in red ink this decade;
• A sliver of doctors are responsible for nearly half of the dollars paid out for medical malpractice in New York. Physicians who made three or more malpractice payments between 1990 and 2006 -- accounting for no more than 4 percent of New York's doctors -- were responsible for nearly half (49.6 percent) of medical malpractice dollars paid out on behalf of doctors in the time period.
• Costs for cases involving brain damage, blamed by some for rising insurance rates, are in fact modest in comparison with other types of cases. The category for injuries including brain damage ranks 5th of 10 in total amounts paid out. This fact exposes the lunacy of the radical proposal to deprive newborn babies of their legal rights and cede their care to a state-run fund.
• Researchers have found that premiums consistently make up only a small percentage of doctors' total expenses and that rising premiums have not, historically, depressed physicians' incomes.

Has any of this stopped the doctor's lobby from claiming that hitting victims a second time, by depriving them of a right to fully recovery, will help? Of course not. The only real questions are these:

• Will the doctors abandon the White Coat of Silence that stops them from turning in bad physicians?
• Will the doctors finally help to rid the state of the of the small percentage of doctors that are responsible for the majority of malpractice payouts?
• Was the medical society's propaganda known to the doctors who answered their call to lobby, or where they snookered by their own people?
  

--------------------
Full disclosure: I have lobbied New York's legislators several times in the past to keep the courthouse doors open for the injured, and am currently scheduled for a return visit in May with the New York State Trial Lawyers Association.
--------------------

Addendum - see also:

• Patient Safety Express (The PopTort):

  "Only 4% of New York's doctors are responsible for half of all of the state's medical malpractice payouts. How many more people have to be infected by deadly diseases, or killed by incompetent practitioners before the state will act?"

• Patient Safety Express, Day Two (The PopTort):

  This morning, the "Patient Safety Express" made its way to Albany. The 15-foot syringe and handful more medical malpractice survivors made it through the metal detectors at the State Capitol to tell their stories to the media....

Labels: Insurance Industry, Medical Malpractice

David Giacalone reviews An Almost Life by Kevin Mednick, a novel by an upstate plaintiff's personal injury lawyer. A snippet of the review:

If you enjoy novels about (realistic) lawyers and lawyering, or you're looking to be entertained by characters you care about, while learning a bit about the human predicament and the workings of an important (and often misunderstood) social institution, you should read An Almost Life;

David Fischer at Antitrust Review puts up Blawg Review #149;

Six days in jail for an overdue book might not be the best use of taxpayer money (Quizlaw);

The Health Wonk Review is up at Jon Coppelman's Workers Comp Insider;

A day in the life of a New York emergency room...and a good time to count your blessings (NY Emergency Medicine);

And the Personal Injury Law Round-Up celebrates its first birthday with a post at Perlmuttter & Schuelke. And a year's worth of great personal injury links shows that the American Bar Association doesn't know jack about blogging.

Labels: Random Notes

Over at Susan Cartier Liebel's Build a Solo Practice she