New York Personal Injury Law Blog

Mother Nature Takes A Shot

2010-03-14T13:05:00.004-04:00

I grabbed the point-and-shoot when I went for a run this morning in one of the nicer areas of New Rochelle, north of New York City. Old houses and older trees.

Soak ground with a foot of snow melt, add a few inches of rain, drop in some high winds, and Mother Nature whips up this casserole, reminding us of how small we are.

There but for the grace of Gd go I. The sirens are wailing and the buzz saws are screaming...

2nd Circuit Rejects Most of New York's Attorney Advertising Rules

2010-03-12T15:52:00.008-05:00

The case concerning the constitutionality of New York's attorney advertising rules was argued over a year ago. And Sonia Sotomayor was on the the panel. Now she has gone up and the decision has come down by the two remaining judges of the panel regarding the rules that went into effect on February 1, 2007.

And the 2nd Circuit has upheld the lower court decision in holding that most of the content-based rules violate the First Amendment. A separate section, regarding a 30-day anti-solicitation rule, was upheld both in the court below as well as in the 2nd Circuit.

The decision is here: /Alexander-v-Cahill-2ndCirc.pdf. The case was brought by Public Citizen on behalf of upstate firm Alexander & Catalano. (Addendum: NY Lawyer Rules Are Unconstitutional)

The new rules had barred, among other things, testimonials from clients relating to pending matters, portrayals of judges or fictitious law firms, attention-getting techniques unrelated to attorney competence, and trade names or nicknames that imply an ability to get results. I had previously criticized some of those rules on First Amendment grounds.

The lower court had dumped those rules. The only part of the lower court's decision that changes is the prohibition on portrayals of fictitious law firms, and that is just a minor modification.

These were the content based restrictions:

An advertisement shall not:

(1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter that is still pending . . .
(3) include the portrayal of a judge, the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case . . .
(5) rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence . . .
(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter.

Those rules, however, can result in some bizarre results if they were implemented. For instance, an attorney's photograph on a web site clearly has no relevance to the legal competence of the individual. So if it has no bearing on competence, is it prohibited? (See: Is My Family Photograph An Ethical Violation in New York? and New York's New Attorney Ad Rules and First Amendment Issues)

The catch-all prohibitions on false and misleading advertising remain in place.

Moving to the 30-day rule, of particular interest is that part of the decision regarding targeted Internet ads. Even before the plane crash in Buffalo last year, I had discussed the myriad ways that savvy marketers might try to circumvent the 30-day rules by targeting the victims with Internet ads and websites, instead of the more traditional types of ambulance chasing, in a post titled Solicitation 2.0. I followed up after the Buffalo crash showing how Google ads and websites were being used (this post has a round-up of numerous posts I did on the subject)

Anecdotal evidence that I collected showed that the 30-day rule was effective in curbing chasing.

So from the opinion comes this:

[W]e conclude that ads targeting certain accident victims that are sent by television, radio, newspapers, or the Internet are more similar to direct-mail solicitations, which can properly be prohibited within a limited time frame, than to "an untargeted letter mailed to society at large," which "involves no willful or knowing affront to or invasion of the tranquility of bereaved or injured individuals and simply does not cause the same kind of reputational harm to the profession" as direct mail solicitations.
...

New York's moratorium permits attorneys to advertise to the general public their expertise with personal injury or wrongful death claims. It thereby fosters reaching the accident victims, so long as these victims are not specifically targeted.

It's a big victory for the First Amendment. But with that will also come more lawyer tasteless ads that embarrass the profession.

hat tip: New York Law Journal

Updated: More coming in:
Lawyer Free Speech Given a Second Chance (Greenfield @ Simple Justice):

As much as I believe that flagrant marketing is distasteful and unprofessional, bad for the profession and part of our race for the bottom, that doesn't mean that I support legal restrictions or prohibitions. The former is bad. The latter is worse.

New York Advertising Rules Held Unconstitutional (Sorensen @ The Ethical Quandary):

So let's recap: William Shatner in a judge's robe? Allowed. Fifty foot lawyers terrorizing Midtown Manhattan? Allowed.

Jim "The Hammer" Shapiro apologizing that he cannot "rip out the hearts of those of have hurt you"? Ok that last one was a trick — already allowed: http://www.youtube.com/watch?v=Q5hn8bhEpMY -- but good idea? Maybe that is the better question.

Is Toyota Hiding "Black Box" Data From Runaway Prius?

2010-03-12T09:45:00.007-05:00

It's just a snippet from the local paper, but there it is: In an accident in Harrison, New York that resulted from an allegedly stuck accelerator in a Prius, Toyota is trying to keep the "black box" data from local police.

Many people don't know this, but many of the cars on our streets today have a "black box" similar to those that exist on planes. They don't reveal our conversations the way the airplane versions do, of course, but they provide a wealth of data to investigators in determining what happened in the moments before a crash.

The car at issue here, which has garnered national attention, was being driven by a housekeeper to a Toyota dealership due the national attention over problems with the cars.

The money quote from the story is this:

[Acting Police Chief] Marraccini said his department sought help from Toyota in accessing information in the car's black box that would reveal what was going on with the car just before the crash. The company declined, and Marraccini said police would try to obtain a federal subpoena to get the information.

A fight over the car seems to be brewing, with mighty Toyota up against a small town police chief:

Toyota Motor Corp. meanwhile let police know that it wanted to inspect the car, but Marraccini said "we are not prepared to release the car to them."

Whether the media attention is ultimately derived from driver errors (foot on wrong pedal), as Ted Frank theorizes, or is the result of real electrical or mechanical problems, will take investigative work. And that work entails looking at a car's data.

But with respect to this particular accident, it appears that the floor mats -- the subject of prior recalls -- was not an issue:

Marraccini said the crash was not caused by the floor mat trapping the accelerator, the culprit that forced a massive recall of Camrys and Priuses in recent months. The mat was already connected to the seat base with plastic ties, he said.

I find it more than a bit odd that Toyota is afraid to have independent investigators look at that data.

See also: Ex-Toyota lawyer says documents prove company hid damaging information (CNN)

Linkworthy (Tort "Reform" edition, and other stuff I like)

2010-03-11T08:00:00.002-05:00

Former Clinton White House lawyer Lanny Davis weighs in on the issue of medical malpractice "reform" in a WSJ interview with Ashby Jones where he spends time whining about punitive damages.

And it's pretty clear to Andrew Barovick, that Lanny Davis is utterly clueless. And the PopTort noticed too, pointing out that the entire state system only had six such cases in an entire year. For medical malpractice, punitive damages is a non-issue;

Hey, Brian Wilson has a modest proposal, why not just get rid of all the personal injury lawsuits?

And if you're a personal injury lawyer, how do you feel about being one?

The NYT ran with an editorial on a case against McDonald's regarding fried chicken and a hot-pocket of undrained oil that burned the lips of a customer. The WSJ Law Blog wants to know if this is the next tort "reform" talking point;

Of course, some lawyers just seem hell-bent on embarrassing themselves;

And while on the subject of medical malpractice, here's the story of a rogue butt-enhancer. No, I didn't make that up;

Other interesting stuff:

FindLaw, that paragon of brilliant blogging that seeks to further embarrass the entire legal profession, is now looking for new writers for it's dreck-blogs. Legal experience is not necessary. Really, you can't make this stuff up;

And more in the crap attorney search department, Bob Ambogi rips BestAttorneysOnline.com to shreds then comes back to pulverize them some more, and then shovels dirt on this clueless company's grave. Woe unto the lawyer that outsources his or her marketing (and ethics) to one of these attorney search outfits;

Class action lawsuits against Toyota could cost the company $3 billion;

When 911 calls get released to the public, is there a violation of privacy rights involved?

Congressional candidate Joe Walsh backs down in dispute with rocker Joe Walsh over use of one of his (rocker Joe's) songs;

New York City gets a new official condom, which has nothing whatsoever to do with the law, but it's my blog and I get to link to stuff like that if I want;

My brother Dan is not the only one to get personal letters from SCOTUS; Justice Thomas opines on McDonald's;

I've been meaning to get around to this for awhile: In case you hadn't noticed, Colin Samuels of Infamy or Praise fame has been doing outstanding round-ups of the legal blogosphere in his "Round Tuit" postings. Unlike my brief commentary by providing links -- where I try to send you away from here -- he does in depth analysis of life in the legal blogosphere. If he isn't part of your RSS feed, then you are missing something good;

And Niki Black has Blawg Review #254 up at Sui Generis, focusing on International Women's Day and National Women's Month.

Report: Medical Malpractice Payments Hit New Low

2010-03-10T15:32:00.009-05:00

The tort "reformers" won't be happy with this; yet more evidence that medical malpractice lawsuits are not the problem with healthcare costs.

OK, here you go, short and sweet, the lede:

Fewer medical malpractice payments were made on behalf of doctors in 2009 than any year on record, according to the National Practitioner Data Bank.

This finding contradicts claims that medical malpractice litigation is to blame for rising healthcare costs and that changing the liability system to the detriment of patients will not curb costs.

The value of malpractice payments was also the lowest since 1999. Adjusted for inflation, payments were at their lowest since 1992, a Public Citizen analysis of the NPDB shows.

Also part of the article, malpractice payments on behalf of doctors equals just 0.14 of 1% of overall US healthcare spending.

And for that, there are people who want to close the courthouse doors.

You can read the rest here: Analysis: Medical malpractice payments continue to fall.
--------------------
And prior commentary from me here:

The False Premises of Medical Malpractice "Reform" (Response to Richard Epstein in WSJ) (6/30/09)
There's an old saying, "garbage in, garbage out." If you use a false premise to substantiate an argument then the result will be worthless. And that is exactly what University of Chicago law professor Richard A. Epstein does today in the Wall Street Journal (via PofL)...
Do Texas Med-Mal Damage Caps Work? (What Do You Mean By "Work?") (4/14/09)
But what, exactly does it mean for a statute to "work" when it reduces the ability of the most badly injured individuals to recover for their loss?

Does offering government protectionism for tortfeasors mean it works?

Does stopping those who've been victimized from recovering from their loss mean it works?

Does destroying the concept of personal responsibility for one's actions mean it works?
My Tort "Reform" Op-Ed in Today's Journal News (7/29/08)
Re "Tort reform needed in New York state," a July 23 letter by Cortes E. DeRussy of Bronxville that blamed the "trial-bar friendly state Legislature" for refusing to enact malpractice reforms needed to keep doctors from fleeing the state:

The DeRussy letter repeated a common myth in an argument for tort "reform," claiming that one of the primary reasons for increased medical malpractice insurance was "unusually high judgments." DeRussy couldn't be more wrong...
The Medical Malpractice "Crisis" Hoax -- From Public Citizen (1/24/07)
Since others had already pointed out the Public Citizen report exposing the hoax of a medical malpractice "crisis" I wasn't going to bother. But there was Pres. Bush last night at his State of the Union speech once again leading people astray, when he said:

"And to protect good doctors from junk lawsuits, by passing medical liability reform."

Good doctors, however, don't seem to be the problem. Since 1991, according to the report, 5.9 percent of U.S. doctors were responsible for 57.8 percent of the number of medical malpractice payments. That is an extraordinary statistic.
Debunking Yet Another Tort "Reform" Column, This Time in Forbes (7/15/09)
I feel like a broken record sometimes, rebutting the same disingenuous tort "reform" nonsense over and over. The latest comes from Forbes (via PofL), in a piece written by Manhattan Institute fellow John Avlon, regarding the amount that New York City pays out in settlements and verdicts....
Why New York Medical Malpractice Insurance Jumped 14% (7/31/07)
You may have seen the screaming New York headlines: Doctors hit with 14% increase in medical malpractice rates! Doctors in high risk specialties paying 6-figure insurance premiums! Insurance reserves so low carriers may become insolvent! Blame the lawyers! came the cry from the doctor's, for surely it must be due to medical malpractice cases. A little protectionism called tort "reform" would go a long way to curing the problem. Right?

Ahh, but truth is another matter...

hat tip: JusticeDotOrg

New York Appellate Court Gives Lesson in Lousy Legalese (In an important case) - Updated

2010-03-08T06:00:00.017-05:00

It's a contest! For the worst judicial writing in America. And I have here the first entrant.

Now I confess that I publish this with great trepidation, since I appear before this appellate court from time to time. And what I have to say isn't kind.

But at the risk of pissing off some judges before whom I may appear, I have to ask, would you want our briefs to contain sentences with 300+ words? And would you want me to make you strain to figure out the points I'm making?

Exhibit A: A decision from the Second Department in December in Dockery v Sprecher, regarding a $109M medical malpractice verdict that was reduced to $9 million for a brain damaged man. The first sentence of the decision, regarding the procedural history, weighs in at a staggering 303 words. Without any semicolons. Is there a secret law that says writing a procedural history must induce dread on the part of the reader?

But wait! There's more! Not to be outdone, the second sentence of the same decision laughs in the face of the first, stomping it into the ground with a jaw-dropping 343 words. But at least that has two semicolons. (Both re-printed below.)

Really, is such gobstopping exposition necessary? Have simple, declarative sentences been outlawed? Is clarity a crime?

I challenge anyone to find a sentence in another judicial opinion of such length.

The format of this decision is unfortunate given its importance. The decision speaks to the issue of how outlier verdicts -- those that "deviate materially from what would be reasonable compensation," in the parlance of New York law -- get reduced by courts on review by ordering a new trial unless a party stipulates to a lower amount. I had written of the subject as a newbie blogger (How New York Caps Personal Injury Damages -- 1/23/07) due to the popular misperception among the public that the verdicts they see in newspapers are the amounts that actually get collected.

But those verdicts in the papers are there for a reason; either because a celebrity was involved or the verdict was an outlier.

A decision on a blockbuster verdict that helps to define the limits of permissible compensation, and demonstrates how the courts manage those outlier verdicts, is one that would assist the public in understanding how our judicial system works. And it would assist trial judges and lawyers in understanding how the appellate court might see things, and therefore it would be important guidance.

But sentences of 300+ words don't do that. Instead of offering clear explanation, they offer the reader the opportunity to engage in code breaking, with a WW II Engima machine as a required tool.

And that is not the only place this decision lacks clarity. Because the decision also fails to explain the injuries. Imagine that, a $109M verdict reduced to $9M, and no discussion of the damages? John Hochfelder has written quite a bit on that recurring issue, including this:

So I don't at all question the integrity, acumen, or commitment of our appellate court judges. What I do question, though, is why [the Appellate Division] can't make it part of their procedure in personal injury lawsuit appeals to explain their reasons for an increase or decrease of a jury award and to cite prior cases with meaningful and helpful explanations of why they are relevant or controlling. In that way, practicing lawyers will be better able to evaluate and settle cases with the result that fewer cases will clog our court system and more realistic positions will be taken by plaintiff and defense lawyers on the cases that remain.

It takes much hard work to actually figure out what the Appellate Division did in Dockery v. Sprecher, because not only did it reduce the verdict but it also lowered the apportionment of fault for the defendants from 45% to 10%. And it failed to let the reader know what the actual effect of that apportionment change was.

And since this report indicated that there was also a $4.4M pres-suit settlement with a hospital, that means that there would be an offset for the settlement amount under New York's General Obligations Law 15-108, though you wouldn't know if from reading the opinion.

So we have a major decision on the issue of damages, with a new trial ordered unless the plaintiff stipulates to a reduction, a change in the apportionment, a settlement requiring an off-set, but with tortured language in the decision, missing information, and open questions for the reader. And that's a shame.

[Update: Hochfelder unravels the guts of the injury claims in a new post, and comes up with this result:

$4,400,000 (the pre-trial settlement the hospital and one doctor) plus
$957,000 (The 10% share of the remaining defendant, resulting from the new $9,570,000 limit placed by the court)]

So let me politely suggest that our appellate judiciary do a few things:

1. Read the opinions of Justices Scalia, Posner, or Kozinski. Just for style. Ask yourselves this question: Would any of those jurists compose anything resembling the mind-numbing legalese I've re-printed below?

2. Contact legal writing guru Bryan Garner, who has given a gazillion seminars on writing to lawyers and judges;

3. Take the writing manual that you are working from and dump it. Whatever comes out the other end of the recycling process will be of better use.

OK, here they are, the first two sentences, in all their gory glory, followed by my closing thoughts:

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Hart, J.), entered July 10, 2008, as, upon the granting of that branch of the motion of the defendants Stanley Sprecher, Peninsula Radiology Associates, P.C., and Peninsula Hospital Center pursuant to CPLR 4401, made at the close of the plaintiffs' case, which was for judgment as a matter of law dismissing the complaint insofar as asserted against them, upon a jury verdict finding the defendants M. Chris Overby, and Levine Overby Hollis, M.D.s, P.C., 45% at fault, and nonparties Philip Howard Gutin, and Memorial Sloan Kettering Cancer Center 55% at fault for the injuries sustained by the plaintiff Thomas Dockery, and that the plaintiff Thomas Dockery sustained damages in the principal sums of $10,000,000 for past pain and suffering, $27,750,000 for future pain and suffering, $370,000 for past loss of earnings, $80,000 for future loss of earnings over a period of 28 years, and $21,636 for loss of Social Security income, and that the plaintiff Karen Dockery sustained damages in the principal sum of $18,000,000 for past loss of services, and $48,700,000 for future loss of services, and upon so much of an order of the same court entered December 3, 2007, as granted, after the jury verdict, that branch of the motion of the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., pursuant to CPLR 4401, made at the close of the plaintiffs' case, which was for judgment as a matter of law dismissing the complaint insofar as asserted against them, dismissed the complaint insofar as asserted against the defendants Stanley Sprecher, Peninsula Radiology Associates, P.C., Peninsula Hospital Center, M. Chris Overby, and Levine Overby Hollis, M.D.s, P.C.

Ordered that the judgment is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof dismissing the complaint insofar as asserted against the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C.; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, the motion of the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., pursuant to CPLR 4401, made at the close of the plaintiffs' case, for judgment as a matter of law dismissing the complaint insofar as asserted against them is denied, the order entered December 3, 2007, is modified accordingly, and the matter is remitted to the Supreme Court, Queens County, for a new trial as to the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., on the issues of apportionment of fault and damages for past and future pain and suffering and past and future loss of services unless, within 30 days after service upon the plaintiffs of a copy of this decision and order with notice of entry, the plaintiffs shall file in the office of the Clerk of the Supreme Court, Queens County, a written stipulation consenting to the apportionment of 10% of the fault to the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., and 90% of the fault to nonparties Philip Howard Gutin and Memorial Sloan Kettering Cancer Center, and to reduce the damages for past pain and suffering from the principal sum of $10,000,000 to the principal sum of $1,200,000, the damages for future pain and suffering from the principal sum of $27,750,000 to the principal sum of $6,750,000, the damages for past loss of services from the principal sum of $18,000,000 to the principal sum of $350,000, and the damages for future loss of services from $48,700,000 to the principal sum of $1,000,000, and to the entry of an amended judgment accordingly; in the event that the plaintiffs so stipulate, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements.

Two final thoughts. One reason that this decision might be written so poorly is that the court doesn't want it to be cited and followed. But, like Hochfelder, I believe that such obfuscation leads to more litigation as it leaves the current state of the law a mystery. If the bar understands that, for example, a verdict for a broken arm will be tossed out if it exceeds (or is lower than) x, then the parties can turn to the liability aspects and make informed judgments with more confidence of the best case and worst case scenarios. And the trial level courts will have guidance on permissible parameters when deciding post-trial motions. And that would mean fewer trials, fewer appeals, and reduced judicial case load. It would, dare I say, promote efficiency.

And last: When I appear before you next, please, please, PLEASE, don't hold my criticisms against my client. I write because I think the courts can do better, and that we are all better served when decisions are clear.

Can a sworn medical opinion that relies on unsworn MRI reports constitute competent evidence? (Is that kosher?)

2010-03-05T11:52:00.005-05:00

Today's issue starts out straightforward with a malpractice case. But pay attention, because the real application of this decision is in New York's No-Fault law and litigation over "serious injuries" in car accidents.

Plaintiff brought a malpractice case against chiropractors alleging that they caused her to suffer severe spinal cord injury requiring surgical intervention. Defendants move to dismiss. In response, plaintiff puts in an affidavit from a chiropractor. Since it's an affidavit, it's sworn. But the chiropractor relies on unsworn MRI reports. Is that OK?

Yes, says the Appellate Division (Third Department) in a decision released yesterday, Caulkins v Vicinanzo. While it is true that "uncertified medical records and unsworn letters or reports are of no probative value" in opposing a summary judgment motion, in this case the affidavit is a sworn document. And the appellate court, in holding that the affidavit could rely on unsworn documents, plucked a footnote from the Court of Appeals decision in Pommells v. Perez, which said:

"Though the MRI reports were unsworn, the various medical opinions relying on those MRI reports are sworn and thus competent evidence."

Now in theory, the case favors neither plaintiffs or defendants, since either can make a motion for summary judgment.

But that's only theory. It's real application comes not in the world of medical malpractice, where summary judgment motions are relatively rare, but in the realm of car accidents and defense allegations that the "serious injury" threshold under New York's miserable No-Fault law was not met.

The reality is that some offices are fighting these types of summary judgment motions every day. (And the courts hate them.) And many of those cases have small insurance policies (25K) that make it essential for personal injury lawyers to litigate with great efficiency. Defense lawyers, of course, being funded by the multi-billion dollar insurance companies, don't have that problem. If the plaintiffs need additional affidavits from radiological experts to corroborate what the initial radiologist said, it is an additional expense.

So you can bet that this case will be cited in the months and years to come for those that fight those battles. Ultimately, it's a win for car wreck victims as it helps to streamline an already miserable part of New York's auto accident practice.

Efficiency is a good thing when you work on contingency. And it's good for the victims too, who often have trouble finding counsel for cases that have limited upside due to small insurance policies.

Linkworthy

2010-03-04T06:56:00.001-05:00

Lots of stuff I wanted to write about, if I only had the time...

Slackoisie has disappeared. Now what are we going to call "a generation of entitled narcissists?" And why doesn't my spellchecker recognize the word?

The idea of "health courts" pops up in the context of the health care bill, and the folks at The Pop Tort don't have anything good to say about them. And there's a good reason. While the details of such experimental courts haven't formed, it's worth noting that New York had a form of such courts (a screening panel) for several years that was a miserable failure;

And while you're perusing The Pop Tort site, you might as well watch Senator Richard Durbin knock the ball out of the park on the issue of medical malpractice "reform;"

Why is Allstate sometimes referred to as AllSnake? Ask Trey Mills, and he'll tell you that the good hands people aren't so good. "I have decided to fight Allstate regardless of the time, resources, and value on the claim;"

I've written before about the Graves Amendment that confers immunity to the owners of cars and trucks that are rented or leased. Roy Mura now has an update with some cases where the lessors may still be liable;

What are the damages if you get a bogus take down message for your blog? Let's just say that legal fees are a big issue; And on the subject of blogs, who owns your content?

Trial lawyers are always cross-examining people who are smarter in certain fields. Orin Kerr shows one way not to do it;

More trial lawyering: Reptile advocacy gets admitted into court. Both Mark Bennett and Max Kennerly on the issue;

Carolyn Elefant, Queen of the legal start-up field, does a roundup of the Solo Blogosphere;

Quotable: "The Republican party is a wholly owned subsidiary of an insurance industry." Yowza.

Batman takes on Superman. Guess who wins?

When Dick Cheney was hospitalized for his heart attack, President Obama called to wish him well. Here is the transcript. Would I steer you wrong?

And Blawg Review # 253 comes up out of South Florida Lawyers while some folks dig out from up to 7 feet of snow.

Is Non-Party Witness Entitled to Attorney at Deposition? (Appellate Court Says No)

2010-02-26T16:10:00.007-05:00

The idea that a witness testifying at a deposition would not be entitled to have an attorney is somewhat startling. But that is, in fact, what the Appellate Division, Fourth Department held earlier this month in Thompson v. Mather, when they firmly established that "counsel for a nonparty witness does not have a right to object during or otherwise to participate in a
pre-trial deposition."

The issue arose during a medical malpractice case involving obstetrical and gynecological treatment and the prescription of oral contraceptives. Plaintiff claimed they were contraindicated. The patient suffered an acute myocardial infarction.

Plaintiff wanted to video the testimony of the treating cardiologists, who were not defendants. The doctors showed up with lawyers provided by their own medical malpractice insurers, who then proceeded to obstruct the questioning. The deposition was abandoned and motion practice ensued.

The lower court, in one of the most bizarre rulings I've ever heard of, suggested that these doctors who had never been sued should be released from liability before unrestricted testimony was to take place! The court suggested that plaintiff and defendants are to

"consider providing general releases to the [physicians] . . . with respect to their initial treatment of [plaintiff]" and that, if such releases are provided, plaintiff will "be entitled to have a videotaped deposition of [the physicians] during which deposition the attorneys for the [physicians] shall not be permitted to speak. . . ."

Holy mackerel. In reversing the lower court, the Appellate Division called that "repugnant."

But first they addressed the issue of having counsel at the deposition, and came down firmly against it. Why? Because CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses "shall proceed as permitted in the trial of actions in open court." The parties can object later, but the witness isn't a party. If this was a trial, the witness would not have a lawyer in the well of the courtroom to object.

And then they kicked the lower court judge but good with respect to that nonsense about providing a release to a witness before testimony could ensue:

...we note that the practice of conditioning the videotaping of depositions of witnesses to be presented at trial upon the provision of general releases is repugnant to the fundamental nonparty obligation of every citizen to participate in our civil trial courts and to provide truthful trial testimony when called to the witness stand. Contrary to nonparty respondents' contention, the fact that the statute of limitations has not expired with respect to a nonparty treating physician witness for the care that he or she provided to a plaintiff provides no basis for such a condition.

The unanswered question that I have, given that the lawyers for the cardiologists were provided by their medical malpractice insurance carrier. Is it the same carrier as the defendants?

And that question was answered by one of the attorneys involved: No. But certainly something to look for if the situation should arise elsewhere, as may well happen with this ruling if such non-party depositions become more common.

Linkworthy (Return to personal injury law edition)

2010-02-25T22:27:00.006-05:00

Clock is tickin', so much I wanted to write about but didn't have the time for...

Here's some reasons not to make any representation as to what a case is worth when you take it in: Settle it Now, Negotiation Blog;

Sometimes the mistake gets made, but the damages aren't there: New mom given wrong baby to nurse, wants settlement from hospital;

Baseball mascot flings hot dog. Said doggie hits fan in the eye. Did the fan assume the risk of having a mascot fling a hot dog at him during a game? And would John Hochfelder have taken the case?

Let me guess, the new client is overseas and they want you to collect an easy $400,000 or so for them, right? And you get a nice big piece? Uh huh. Law Firms Swindled Out of $500K in E-Mail Scam and a personal experience with the scammer;

How's this for a quote regarding the Toyota scandal: "Yet for all the demonizing of trial lawyers, the reality is that product-liability litigation has become an ever more important means of keeping consumers safe." It appeared on the WSJ OP-Ed page;

A post at Concurring Opinions on medical liability uses this graphic at left. But the image looks Photoshopped to me as the instrument seems too small to actually hold. Want to see what a retained surgical instrument really looks like?

Bob Dylan is dead. You didn't know? Ann Althouse finds out due to a computer program that ambulance chases. When I wrote Attorney Solicitation 2.0 back in 2007, I never thought of that one;

TortsProf is still chugging along with the Personal Injury Law round-ups;

Blawg Review #252 is frightening;

My three posts on Justice Scalia's letter to my brother regarding secession have had 40,000 page views as it roared around the web with thousands of forum comments, tweets and blog postings, finding a home at NYT, WSJ, WaPo, NBC, CBS and The Hollywood Reporter, among others. And if Eugene Volokh hadn't put up this post, the letter would still be in a drawer as a fun, family curiosity. But no one has tackled my suggestion that Scalia flat out blew it on whether the court could ever hear such a case.

I'm going to bed, hope there aren't too many typos and blown links.

Welcome New Readers (Due to Scalia Secession Post) -- Bumped & Updated

2010-02-24T06:00:00.001-05:00

OK, that little post about a letter my brother got from Justice Antonin Scalia about states seceding from the nation seems to have set off quite a bit of activity on political blogs.

(Updated 2/24: It has now hit Hollywood and mainstream press, an item in The Hollywood Reporter being picked up by Reuters and on to Yahoo! News, and now the New York Times)

While I know that the vast majority of you folks will be here and gone in a heartbeat -- and perhaps quicker -- if you have a hankering to see what kind of stuff haunts my humble corner of the interwebs, you can look at these two "Best Of" posts to get a sampling:

Greatest hits 2009

Greatest hits 2006-2008

My guess is that, given the nature of the newcomers, last year's Sonia Sotomayor posts, one of which ended out in a Washington Times editorial, will be of some interest. Though my appearance in an editorial for the Economic Times of India (regarding George Bush's dog, go figure), might be a close second.

And Supreme Court aficionados may be interested in this news that I broke asome time back, which also involved Justice Scalia: Supreme Court Grants Cert in "Fantasy Baseball" Case; Three Justices Recuse Themselves Due To Participation in High Court League

And feel free to add me to your RSS feed, or follow on Twitter (@Turkewitz). The price is double what you're paying now, but I think I'm worth it.

(originally posted 2/16/10)

How the Supreme Court Could Hear the Secession Issue (A Response to Justice Scalia)

2010-02-23T06:00:00.001-05:00

In responding to my brother Dan's letter regarding the legal plausibility of Maine seceding from the union to join Canada, Justice Antonin Scalia raised two points. First, he said that the Civil War settled the issue of the constitutional basis for secession. Second, he indicated that he didn't see how such an issue could even reach this nation's high court.

I'm here today to take issue with both points before turning this blog (hopefully) back toward the personal injury field that is my bailiwick. With respect to the first assertion, Scalia's exact words were:

If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.

There are no shortage of people willing to criticize such a position, because he simply states that might makes right. But the physically stronger side winning is not legal analysis, it is merely guns and tactics and doesn't tell you squat about any legal basis. Many found that odd from a guy like Scalia who thrives on analysis.

It is this first part that garnered almost all of the media attention that I noted yesterday when I published the rejection letters of other justices, and which Chris Matthews discussed on Hardball (brief video segment below).

But this post is really dedicated to Justice Scalia's second assertion regarding who the actual parties to such a suit would be. And despite many dozens of blog postings regarding The Letter, I haven't seen any discussion of this second point. Justice Scalia wrote:

Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

Well, let me take a crack at envisioning it: The United States is not party to the action for secession. Rather it is State v. State. Because if one state quits the union the others are saddled with the quitter's share of the national debt. The other states, being unhappy about Maine (or Texas, Vermont, South Carolina, etc.) shirking its obligations, sue the departing state for its share.

And they bring that suit in the Supreme Court since the court has original jurisdiction to hear matters "between two or more states." There isn't any need for years worth of lower court legal wrangling, which is a nice bonus when writing a comedy for the big screen.

In fact, it's this "It's the money, stupid" plot line that my brother was using when he wrote to the justices, presaging the conservative Tea Party movement by three years. The set-up in the story, in a nutshell, has three University of Maine stoners in a midnight stupor in desperate need of a political science paper for the next day. They write up a manifesto on the vast sums of money that Mainers owe due to the rapidly escalating irresponsibility in Washington, and then urge Maine to join Canada. Manifesto, of course, is the charitable word for rant. The rant hits the college rag. The local paper picks it up on a slow news day, it strikes a chord with many and people press their state government to address the issue, which ultimately goes to a state-wide referendum as the political farce takes off. Our three heroes use their status as potential founding fathers to further the never-ending pursuit of weed and women.

A Supreme Court battle forms part of the script, albeit not a giant one because courts aren't as funny as standard-issue politicians or stoners, with the other states insisting that if Maine leaves they take their part of the debt with them. It's all about the money.

But wait!, I hear you say regarding the legalities. If a state has left the union then the suit is no longer "between two or more states." An exiting state would most assuredly claim that the high court doesn't have jurisdiction to hear the matter. Lack of jurisdiction is a common defense in suits, and a court must do an analysis to determine its merit when raised.

And therein lies the issue of how secession can land before the Supremes; the court must resolve a jurisdictional issue. In order for the court to resolve the merits of the money suit they must first decide whether or not the exiting state has legally left. If the state has legally left, the court can't hear the case because it is not between "two or more states."

This analysis seems backwards from the way jurisdiction is usually discussed. Merits generally come after jurisdiction has been established. But in this case the merits discussion has to do with money owed. And the issue of whether the court can even hear the case as a dispute between states must first be resolved, and that means looking at the issue of whether secession was legal.

How the case would be resolved in the real world is, of course, beside the point. This is, after all, a movie and the level of detail above wouldn't be in it.

But Justice Scalia had written that he can't think of how the matter of secession would get to the court. Well judge, I see how the issue can get to you. At least in theory. And it's a pure jurisdictional question in a battle between states over money.

And for those wondering how, exactly, the Supreme Court could enforce a judgment against a seceding state in the event the court dumped the unhappy secessionists? Well, that has always been a problem since the judiciary doesn't have a military wing to it. In 1957, the Army was called in on Executive Order to integrate Central High School in Little Rock. It remains a problem today out in Maricopa County, Arizona, where a court officer was caught on camera reading the files of a defense lawyer while she was addressing the court. The guy was held in contempt, and ordered to apologize on the courthouse steps. This was followed by a law enforcement sick-out. Enforcement can be tricky.

But the difficulty with enforcement of a court order is an issue separate from having the matter heard in the first place. Under this scenario, if a military solution were to be used to stop secession, it would come after a legal analysis of the merits.

Dan's script, being a political farce, obviously doesn't end with a military solution. I can't give away more since it is just now being entered in competitions and my brother is still scrapping for an agent to represent him. (Anyone out there? Is this thing on?) But of his five finished screenplays, this is the best. And all the others have advanced in competitions.

So in the end, Justice Scalia, I think it can be done. Granted, I'm pretty far afield of personal injury law -- you really can't get any further afield than this -- but then, so is almost everyone else that opines on the subject with the exception of a few scholars.

If I've completely blown the analysis -- and I admit that despite its simplicity that is certainly possible -- I'm sure people will let me know.

Graphic by Dan Turkewitz

The Supreme Court's Other Responses to the Screenwriter's Secession Question

2010-02-21T22:00:00.001-05:00

Geez, you go to Florida for a few days vacation and that is the time for a post to go viral? It seems the interest in Justice Antonin Scalia's response to my brother Dan's request for assistance on his screenplay, dealing with Maine seceding from the U.S., drew interest not only from legal blogs but from numerous political ones as well. Maybe I should have published all the responses?

I watched (from my iPhone) with fascination as the story on my little post exploded across big time blogs/media (Washington Post, NBC, CBS, WSJ, Volokh, ATL, Politico, and many more). It's tough to blog with an iPhone though, and Mrs. NYPILB would not have been pleased if I was tethered to a laptop instead of frolicking on Floridian beaches, pools and golf courses. (That's Dan with my kids above, in his alter ego role as Super Uncle.)

Thus far, over 23,000 page views for that one post.

A little back story on why he wrote to the members of the court, over my objection, might be helpful. When he wrote his award-winning sci-fi thriller of astronauts stranded in space and fighting with each other for survival, he sought expertise on the plausibility of his plot. So he wrote to astronauts. And he got responses.

If astronauts would respond to him, he figured, why not Supreme Court justices, especially given the lack of people that could speak authoritatively on the issue of secession? When I told him he wouldn't get meaningful responses, I was right on 9/10 of the justices he wrote to. Scalia was the exception.

But while Scalia was the only one to respond to the substance of my brother's request, other responses did come in. He received three personally signed rejection letters from Justices Clarence Thomas, Samuel Alito and Stephen Breyer, which are all lovingly reproduced here. While reproducing rejection letters isn't exactly the norm, these happen to be first rate, classy rejections. If you're gonna get dumped, it might as well be by the best. Frankly, I was stunned that he even got these. And, as you can see, none of them are form letters. And they use top-notch stationary. Just in case you were wondering.

On the actual substance of Scalia's letter, I will follow in another post with my thoughts on how the issue could reach the high court, despite Scalia's protest in the letter that:

"Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit."

[Now added: How the Supreme Court Could Hear the Secession Issue (A Response to Justice Scalia)]

Regardless of whether one agrees with Scalia's political-judicial beliefs, the guy clearly picked up major cool points for giving my brother a substantive response. Justices Thomas, Alito and Breyer also picked up a few of those points, to the extent that they did take the time to respond, albeit with rejection. Justice Souter picked up a single point for having a secretary respond.

On the flight back from Florida I pondered a question: Is there any significance to the fact that the responding troika of Scalia-Alito-Thomas form 3/4 of the conservative wing?

I'll leave it to others to opine on that subject.

Addendum: A commenter notes that Justice Alito spelled our last name wrong and that this deserves a head-shaking response: "'Turkwitz??' Not true, Justice Alito, not true."

(And yes, Dan still needs an agent.)

Scalia: "There Is No Right to Secede"

2010-02-16T11:24:00.011-05:00

The right of a state to secede from the nation is way outside my personal injury wheelhouse. But it has become a source of conversation on professorial and political blogs, and the concept has generated interest from the Tea Party movement.

As it happens, my brother has a letter from Justice Antonin Scalia that is directly on point as to the legitimacy of secession. How he got that letter, and its contents, are the subject of today's post.

The inspiration for writing, and the release of the letter, comes from Prof. Eugene Volokh, who wrote, "I keep hearing the claim that the legitimacy of secession from the U.S. was 'settled at Appomattox,' and I wanted to say a few words about why I think that makes little sense."

The good prof goes on to write that, while clearly not supporting secession of any State in concept, that the issue is far from settled. He writes:

If in 2065 Alaska, California, Hawaii, or Texas (just to consider some examples) assert a right to secede, the argument that "in 1865, the victorious Union government concluded that no state has a right to secede in opposition to the wishes of the Union, so therefore you lack such a right" will have precisely the weight that the Americans of 2065 will choose to give it -- which should be very little.

Thus far, that post has generated 152 comments.

Well prof, Justice Scalia disagrees with you. Explicitly. Why did he do so in a letter to my brother? Glad you asked.

Dan is a screenwriter (whose screenplay Tranquility Base was just named a finalist at the Vail Film Festival, and previously took top honors elsewhere). Back in 2006 he started working on a political farce that had Maine seceding from the United States and joining Canada.

Bro was well ahead of the tea partiers in contemplating impending problems as we racked up massive debt. This doesn't get him an agent or a foot in the door of Hollywood to get his screenplays made into films -- it isn't what you write, but who you know -- but it does make him a prophet of sorts.

So, on a lark, he wrote to each of the 10 Supreme Court justices (including O'Connor) with this request:

I'm a screenwriter in New York City, and am writing to see if you might be willing to assist me in a project that involves a unique constitutional issue.

My latest screenplay is a comedy about Maine seceding from the United States and joining Canada. There are parts of the story that deal with the legality of such an event and, of course, a big showdown in the Supreme Court is part of the story.

At the moment my story is a 12 page treatment. As an architect turned screenwriter, it is fair to say that I come up a bit short in the art of Supreme Court advocacy. If you could spare a few moments on a serious subject that is treated in a comedic way, I would greatly appreciate your thoughts. I'm sure you'll find the story very entertaining.

I told Dan he was nuts. I told him his letter would be placed in the circular file. And then Scalia wrote back. Personally. Explicitly rejecting the right to secede:

I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, "one Nation, indivisible.") Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

I am sure that poetic license can overcome all that -- but you do not need legal advice for that. Good luck with your screenplay.

So there you have it. At least one vote solidly on record as saying that there is no right to secede. And it likely comes from a place the right wing secessionists most wanted to have a vote.

And yes, Dan still needs an agent. Because writing great scripts isn't enough if you don't know The Powers That Be on the other coast. And, for what it's worth, his now-completed script of Maine joining Canada is better than his award-winning one about a mis-adventure in space.

(Update: -- Welcome new readers...there seems to be a fair share of incoming to this little joint)

Update #2 -

The Supreme Court's Other Responses to the Screenwriter's Secession Question (2/21/10)

How the Supreme Court Could Hear the Secession Issue (A Response to Justice Scalia) (2/23/10)

Elsewhere on the issue of secession:

Why the Issue of Secession Isn't "Settled" (Somin @ Volokh)
...I will say that I don't think that secession is either clearly unconstitutional...

Secession in the Air (Patrick Buchanan)
No, it is not 1860 again.

But with all the talk of the 10th Amendment, nullification and interposition, states rights and secession -- following Gov. Rick Perry's misstatement that Texas, on entering the Union in 1845, reserved in its constitution a right to secede -- one might think so.

DailyKos poll: Nearly one-third of Georgia Republicans favor independence from U.S. (Jim Galloway @ AJC - with 670 comments to date)

Nearly one-third of Georgia Republicans would be in favor of leaving the United States, its polling shows. Pause here for any ironic thoughts about the party of Abraham Lincoln that suddenly spring to mind.

Poll: Texas Republicans Approve Of Rick Perry's Secession Remarks (TPM)
A new Daily Kos/Research 2000 poll finds that Rick Perry's suggestion at the Tea Party last week, that Texas might have to secede from the Union, actually has significant support from his home state's Republican voters.

Glenn Beck: Secession or Suicide (Jason Linkins @ Huffington Post)
But you can't convince me that the founding fathers wouldn't allow you to secede. The Constitution is not a suicide pact. And if a state says, I don't want to go there, because that's suicide, they have a right to back out. They have a right.

Texas v. White a Roadblock To Secession; But It Might Also Provide an Escape Route (Brian Stanley @ Lew Rockwell)
In the 1868 case of Texas v. White, 74 U.S. (7 Wall.) 700, a case dealing with the title to some U.S. bonds, the Supreme Court ruled that Texas', and hence the South's, attempted secession in 1861 was unconstitutional. But the opinion also contained some wording that might give secessionists a way around White.

New York Slip and Fall -- A New Theory of Liability?

2010-02-13T07:49:00.005-05:00

I've been rather busy work-wise, but didn't want to let this one slip through the cracks like so many other potential posts. Because how can you let a new theory of liability on a common fact pattern, apparently never tested before in New York, just slip away?

The fact pattern is this: A self-service store (supermarket, Wal-Mart, etc.) with refuse on the floor. Patron slips, falls and is injured on the refuse. A fairly typical type of personal injury case.

To hold the market accountable, we've long been taught that notice of that banana peel sitting there was needed to prove liability. This can be done either by showing that the store had actual notice of the debris (someone complained or an employee saw it), or that the store should have known it was there (constructive notice). Constructive notice might come up if the injured person points out that the banana peel was black, for instance, in trying to show it had been there for a long time. Because we've been taught that you can hold a store liable if it knew (or should have known) of the mess.

But wait! As per Lou and the Law, New York counsel may be overlooking a theory of liability that has been accepted in 20 states, yet there aren't any citations in New York state courts for the attempt to use that theory. It isn't even discussed, much less analyzed. Lou refers to the Mode of Operation Rule. According to Lou:

The rule provides that If a proprietor could reasonably anticipate a hazard could arise based on the manner in which his business regularly operates, a plaintiff does not have to prove actual or constructive notice of the hazard....

When greens are sold from open bins on a self-service basis, there is the likelihood that some will fall or be dropped to the floor. If the operator chooses to sell in this way, he must do what is reasonably necessary to protect the customer from the risk of injury that mode of operation is likely to generate; and this whether the risk arises from the act of his employee or of someone else he invites to the premises. The operator's vigilance must be commensurate with that risk...

Lou, who defended cases for decades as a trial lawyer with Liberty Mutual, has much more at this link: When will New York adopt the Mode of Operation Rule?

Michael Jackson and Prosecuting Doctors for Killing Patients

2010-02-11T12:56:00.000-05:00

The day after Michael Jackson died I speculated about a very rare prosecution; that of a doctor for the death of a patient. I later explored two other risks that Dr. Conrad Murray faced, one for malpractice and one for his license (see: Michael Jackson: Malpractice or Manslaughter (Or Something Else?). Now Dr. Murray has been charged with involuntary manslaughter, clearly the most significant of the three risks.

With the concept of such rare criminal prosecutions firmly in mind, we re-visit the death of a patient 17 years ago at the hands of a New York doctor in this guest blog by Eric Rothstein. He was a young prosecutor in the office of the Queens District Attorney that charged Dr. David Benjamin with second degree murder.
----------------------------------------------

By Eric Rothstein

The news that the Los Angeles County District Attorney has charged Conrad Murray with Involuntary Manslaughter in connection with Michael Jackson's death has people debating whether his actions warrant a criminal prosecution, in addition to a potential wrongful death suit by Jackson's estate and possible revocation of his medical license. The decision to criminally charge Dr. Murray is rare, but not unprecedented.

In 1993, a grand jury in Queens County, New York, charged Dr. David Benjamin with Murder in the Second Degree after his 33 year old patient, Guadalupe Negron, died due to complications from a botched and illegal abortion that he performed in his storefront medical office. Dr. Benjamin was thought to be the first doctor charged with murder in New York State due to a patient's death during a medical procedure. At the time of Mrs. Negron's death, Dr. Benjamin's license to practice medicine was in the process of being revoked for "gross incompetence and negligence" in five previous cases in which the women he treated suffered life-threatening perforations to their uteruses -- the same injury that led to Mrs. Negron's death.

Mrs. Negron learned of Dr. Benjamin's clinic from a newspaper advertisement in a Spanish-language newspaper. She paid Dr. Benjamin $800 for the abortion because she needed to go to work to help support her four children, three of them living in Honduras.

The evidence at trial showed that Dr. Benjamin performed a second-trimester abortion; Mrs. Benjamin was likely between nineteen and twenty weeks pregnant at the time. The abortion procedure lasted between one hour and fifteen minutes and two hours. Because there are greater risks involved in performing an abortion on a woman who is between nineteen and twenty weeks pregnant than in one in the first trimester, heightened safety measures were required. However, Dr. Benjamin did not adjust his procedure to account for the increased risk. During the procedure, Dr. Benjamin caused a three-inch laceration, extending from Mrs. Negron's vagina through her cervix, which perforated her uterus. The perforation of the uterus caused massive bleeding.

Following the abortion, Dr. Benjamin had Mrs. Negron wheeled into the recovery room while he performed another abortion even though she complained of feeling ill. Following such an abortion procedure, appropriate medical practice requires that the patient be monitored by trained medical personnel every five minutes for at least an hour. Dr. Benjamin ignored Mrs. Negron for at least one hour and there were no other trained medical personnel, no equipment to monitor her vital signs and no established emergency procedures.

After approximately one hour and ten minutes, Dr. Benjamin reexamined Mrs. Negron, who was cold. Dr. Benjamin's receptionist called 911. In a panicked attempt to revive the victim, Dr. Benjamin inserted an air tube into her esophagus, rather than her trachea. When the paramedics arrived, Dr. Benjamin falsely informed them that the abortion was performed without complications. When Mrs. Negron was lifted off the examining table to be transported to the hospital, about a liter of her blood remained on the table. In the end, Dr. Benjamin compounded his botched abortion by misleading paramedics about what happened.

After being convicted by a jury, the Judge sentenced Dr. Benjamin to 25 years to life in jail. Having exhausted his appellate rights, he remains incarcerated in a New York State penitentiary.

As part of the District Attorney's investigation, the Office executed a search warrant at Dr. Benjamin's office. I was a young Assistant District Attorney at the time and was present when the warrant was served. While I do not remember everything, I do recall the blood stained couch where Mrs. Negron rested following the procedure and seeing what appeared to be dirty instruments strewn about in various places in Dr. Benjamin's facility. I definitely remember feeling sorry for the people who had no other options but to turn to this storefront abortion clinic.

Though rare, prosecution of physicians is sometime appropriate. Dr. Benjamin's actions showed depraved indifference to human life and thus warranted the murder charge. It is probably safe to say that we have yet to learn all the facts in Dr. Murray's case. However, Dr. Murray allegedly gave Mr. Jackson propofol, a powerful sedative that is not supposed to be used outside of a hospital setting and needs careful monitoring, which a coroner determined caused Jackson's death with other drugs as contributing factors. Legally, Dr. Murray's alleged degree of culpability appears much less than Dr. Benjamin's. Hence, the lesser charge. Nevertheless, if Dr. Murray prescribed Mr. Jackson a powerful sedative that is not supposed to be used outside of a hospital and then failed to adequately monitor his condition, the prosecution appears warranted. If convicted, Dr. Murray faces a possible maximum four-year state prison term.

Snow Days and the Statute of Limitations

2010-02-10T15:01:00.006-05:00

Courts in New York City are closed today for the snow storm, as they are in various places up and down the eastern seaboard. So what happens if the statute of limitations expires today, and the courts are closed?

I popped that question to David Gottlieb, who runs No-Fault Paradise (and theCPLRblog). In the comments of this post: Snow Day? he tackled the issue.

And the good news for New York practitioners (and their clients): We are safe. He found Martin v. J.C. Penney Co., Inc. 275 A.D.2d 910 (App. Div., 4th, 2000), which arose when the courts in Buffalo were closed for a storm on the same day the SOL was to run. We get the extra day because Judiciary Law 282-a provides that,

"[w]henever the last day on which any paper is required to be filed with a clerk of a court * * * expires on a Saturday, Sunday, a public holiday or a day when the office of such clerk is closed for the transaction of business, the time therefor is hereby extended to and including the next business day such office is open for the transaction of business."

Check out comment #2 of his post for the decision. So unless someone can challenge the power of the court to close itself down, you're good.

Of course, it would be slightly better practice NOT TO WAIT UNTIL THE LAST DAY TO FILE YOUR PAPERS.

That is all.

Coney Island stock photo credit: Dan Turkewitz

Did Rep. John Murtha Die From Medical Malpractice?

2010-02-09T09:44:00.008-05:00

Rep. John Murtha (D-PA) died yesterday, a week after routine gall bladder surgery (cholecystectomy). He was a powerful congressman with his finger on the button of Pentagon appropriations.

And with his high-profile death comes an opportunity to explore some medical malpractice issues.

So let's do this in Q & A form:

What is the first reaction as to why this happened?

First up is the most common reason for malpractice litigation with gall bladder surgery: That the common bile duct was mistakenly cut. I don't know what happened here, of course, since I don't have the medical records or the autopsy results, but you can bet that is one of the first places people will look.

As basic background, the liver produces bile that helps us digest. It is transmitted to the intestines via ducts. The gallbladder stores bile. A schematic is seen here at left.

Was this due to infection, instead of a common bile duct injury?
Some are claiming that the death occurred because the intestine was mistakenly cut during surgery, and that this caused an infection. Someone investigating the case would then naturally ask the following questions:

Was the cut intestine noticed during surgery, and if not, why not? Cutting something that you're not supposed to cut is one thing. But failing to notice that it was cut is a whole different thing. This is often the dividing line between when a malpractice case is successful or not. Bad results by themselves don't mean malpractice. Failing to recognize mistakes, however, is a different concept entirely.

If noticed during surgery, what was the response? This surgery was done via a laparoscope, in which the scope is passed through a small incision, with surgery done with a camera-assist. Depending on when and where the bad surgical cut happened, and whether it was noticed at the time, the logical questions are who, if anyone, was called in to assist in the repair and how was it done?

When were the first signs and symptoms of infection noticed and reported and what was done about it? If the cut was noticed during surgery, then in addition to any potential antibiotics that may have been given, would have been very strict discharge instructions to the patient on the signs and symptoms of infection and the critical nature of prompt action.

If this is a known risk of the procedure, why blame the doctor?
This one is a classic, and defendants love it in the courtroom. But it is the wrong question to ask. The issue is not whether something was a known complication or risk, but whether it was avoidable with good care.

Think of it this way: Is a car accident a risk of driving? Does the fact that accidents are a risk of driving mean that the guy who ran the stop sign is not responsible?

Was Murtha just one of up to 98,000 estimated deaths from malpractice in the US each year (Study: To Err is Human)? Time will tell on that one. And we will see to what extent if death has an effect on the health care debate in Congress and the desire by some to grant certain immunities to the medical industry for malpractice.

On a last note, not only was Murtha deeply involved in political-military issues, but the surgery took place at the National Naval Hospital in Bethesda, MD. This adds another potential political element to any investigation or legal action in the event that family moves in that direction.

Caveat Jurista! (Let the Lawyer Beware And Welcome ABA Journal Readers)

2010-02-06T14:51:00.010-05:00

Maybe someone that knows Latin can help me. I'm looking for the proper way to write "Let the Lawyer Beware!" much the way the buyer must beware (caveat emptor). An online dictionary tells me that consultus is the Latin for legal expert, and from which consultant is derived; though jurista seems like a possibility and it also looks and sounds better.

So this post has nothing to do with being afraid of lawyers, but rather, as a warning to those with the juris doctorate.

Frankly, I've always hated the use of Latin phrases in the law, as it always seemed pretentious. My usage is usually de minimis, limited to res ipsa loquitor and a few other well known phrases. But if using Latin helps save someone from outsourcing their marketing (and ethics) to others, it will be a good thing.

Why write on this again? Because I'm featured in the ABA Journal this week, in an edition that deals with online activities, Wired! The article is part of The Business of Law section, entitled Search and Deceive, and dedicated to comment spam and the problems hiring marketers for law firms. (Kevin O'Keefe is featured also, and as you can see from the picture they used, he's clearly more photogenic than yours truly.)

Their piece is inspired by Martindale-Hubbel's use of comment spam that I wrote about late last year (Martindale-Hubbell Apologizes For Blog Spam; Suspends Spammer; Promises to Answer Questions)

The essence of the article is this:

With the proliferation of social media forums and fly-by-night legal directories, lawyers need to be even more cautious when they enlist the services of outside sales and marketing firms to improve website traffic and search engine rankings.

The many problems with FindLaw, of course, equally apply, but the FindLaw postings occurred after the original article was written.

It's good to see these problems now leaking out of the legal blogosphere to mainstream legal publications.

But I still need that Latin phrase. Though I'll accept Middle French, Middle English and any other dead language. Anyone? Bueller? (Yeah, I know, like he'd ever know Latin...)

John Stossel, You Gotta Love Him

2010-02-03T21:10:00.007-05:00

Now I know what you're thinking with this headline: "John Stossel? You love the guy? He is always whining about trial lawyers, how can you love him?"

No, really, I do. Because for a writer, hypocrites like Stossel are like manna from heaven. This story is inspired by a little fluff interview with New York Magazine earlier today where this question and answer appeared:

Who is your mortal enemy?
Smug, ignorant, and arrogant Upper West Side Lefties and personal-injury lawyers

Awww, isn't that cute. Johnny-boy wants to kill me and all the other personal injury attorneys in the country. We're his "mortal enemy."

The guy must have been sued big time and got clobbered to have that type of hissy fit. Oh wait. It was the other way around.

That's why Stossel is so much fun to write about. You see, he was the plaintiff in a lawsuit after professional wrestler Dave Schultz slapped him twice. But he didn't just sue the wrestler that smacked him down, but the World Wrestling Federation as well. The case reportedly settled for $400,000. Here is the video of the two slaps (with an out take above):

So what happened to change his mind? Usually, I refer to tort "reformers" as people who have never been seriously injured by the negligence of another. The hypocrites suddenly see the light when they become injured.

So here's my list of theories on why Stossel flipped backward after being compensated for his injury:

1. He wasn't seriously injured, but claimed that he was, and therefore assumes others that make claims are just like him;

2. He hated his own attorney, and therefore assumes others are just like him or her;

3. He realized that beating up on lawyers is super easy to do because when we defend ourselves we sound like, well, lawyers;

4. If you shill for big business, you get lots of speaking fees for conventions.

5. Since the time of that incident, he's been sued or threatened with suit a number of times and isn't too keen on being on the other side. From a profile on Stossel comes these revealing incidents that tend to support the "I hate being on the other side" theory:

Accuracy isn't one of Stossel's strong suits. He's admitted to making a number of serious mistakes in the past, he's been sued in connection with his reporting, and the "research" he's used to prop up his arguments has been routinely debunked by leading academics. In 2000, for example, Stossel declared that organic produce was worse for you than conventional fruits and vegetables; it turned out his report had been based on faulty research and he was forced to issue a public apology. When he argued that global warming was a myth, no less than 104 Nobel Prize winners took him to task. (For his part, Stossel said he was relying on another group of "unnamed" scientists.) More recently, he had to issue a correction and an apology to the evangelical pastor of an African-American church after he distorted his words.

Stossel is -- and this is fun to add -- not just a hypocrite on tort "reform" but on his avowed libertarian philosophy. He has stated that "Free markets, not coercive governments, are the consumer's best friend. The people who are really ripping us off are the lawyers, the politicians, and the regulators." Yet, when it comes to litigation, he wants Big Government to come riding to the rescue to protect him.

From a 2004 Washington Monthly story by Stephanie Mencimer comes this:

In April 2002, Stossel hosted a fundraiser in south Texas for Citizens Against Lawsuit Abuse, a corporate front group that was helping doctors seeking caps on malpractice lawsuit damages.

Ahh yes, Big Government coming in to protect negligent doctors. That is just what anti-government libertarianism is all about. Way to go Johnny-boy.

And now, after digging around a bit, I come to The Admission as to why he actually flipped. From the same Washington Monthly piece comes this whopper:

While he doesn't include it in the book, Stossel did once offer the real explanation. In what was perhaps a moment of candor back in 1996, when he was giving a speech to the conservative legal group, the Federalist Society, someone asked Stossel why he had abandoned consumer reporting to bash government and trial lawyers. According to the Corporate Crime Reporter, Stossel replied, "I got sick of it. I also now make so much money I just lost interest in saving a buck on a can of peas."

If he ever decides to give up his career as a pseudo-journalist, he would make a perfect spokesman for the US Chamber of Commerce, which has, ahem, started its own frivolous lawsuit.

As a famous reporter has been heard to say, Hey, give me a break.

SuperLawyers Gets Sold, Creates Conflict With FindLaw (And My Days As A SuperLawyer Seem Numbered)

2010-02-02T23:20:00.011-05:00

I was amused some months back when I was named one of New York's personal injury "SuperLawyers." I had some ambivalence about it since it was difficult to know much about the magazine's methodology in making selections.

But no matter now; the company has now been sold to Thomson West and my days on the list, it seems safe to say, are numbered. I'd bet good money I won't be on it next year.

Why? Because Thomson West also happens to own FindLaw, whose dreadful history of selling links, ripping off a certain blog name, exploiting dead victims for its dreck-blogs by a writer who appears to know little about the law, and diminishing the profession of law in general, has been a recent topic here. FindLaw gets paid big buck by some lawyers, and it has lost business as a result of my posts regarding its conduct. And if you charge $10,000 a year to lawyers, it doesn't take more than a few lost ~~pigeons~~ accounts to tick people off.

So you can bet that FindLaw will make sure that SuperLawyers keeps a healthy distance from me next year. But they really have a bigger problem than little old me.

You see, folks, FindLaw will want it's big-paying customers to be included in the SuperLawyer listings. And since SuperLawyers thrives on the very expensive magazine ads that supplement its listings, and FindLaw has an existing catalogue of lawyers willing to spend heavily on marketing, those lawyers are real important. Some B-law grad was whispering the magic word "synergy" into the ears of the powers-that-be.

So while the purchase by Thomson West would seem at first blush to bolster the credibility of SuperLawyers, the company actually runs smack into an inherent conflict of interest that gums up the works. While it tries to build an objective rating system with SuperLawyers it is also taking big money for the FindLaw listings. And that is a big problem if you want to claim objectivity in ratings.

Over at Bob Ambrogi's Law Sites, he writes that Thomson West intends to build a Chinese Wall of sorts between the companies. He writes:

[Christopher Kibarian, president of the Business of Law group] said that a key priority for Thomson will be to provide assurances of the independence and integrity of Super Lawyers ratings. Super Lawyers already employs a rigorous selection process, he said, one that has been recognized by bar associations and courts across the country for its credibility and sophistication. It combines peer nominations and evaluations with third-party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.

On top of that, Thomson will create an independent advisory board to ensure the integrity and independence of the ratings process.

Will it operate independently? Ask yourself this: Do you trust any company that would exploit a dead child for ad copy on a faux-blog?

FindLaw's credibility is currently around zilch. And that means that everything that comes near it will be adversely affected. Thomson West will try to build up the SuperLawyer's brand, which already suffers from credibility problems. But as long as they keep FindLaw's dreck-blogs, they will run into continuing problems. And that is in addition to the conflict and credibility issues.

If Thomson West has any hope of success here it will have to figure out way to rise to a higher place. As the legal blogosphere confronts ugly lawyer commercials, ghostbloggers (more, more and more) comment spammers, and marketing hustlers of every stripe, the major companies should be trying to reassure its customers that if they are entrusted with the marketing of a lawyer (and therefore with the lawyer's ethics) they won't screw things up. And right now, the opposite is happening.

Court Finds Insurance Covers Fireman in Own Car

2010-02-02T06:40:00.007-05:00

This is the issue in a nutshell: If a volunteer firefighter is in an accident while responding to an emergency, and the insurance policy of the car that clobbered him is already exhausted, can he get the benefits of the fire department's own Supplemental Uninsured/Underinsured Motorist Endorsement (a/k/a the SUM policy)?

In a matter of first impression, the trial court in American Alternative Insurance v. Pelszynski said yes. The matter came before Suffolk County Supreme Court Justice Mark Cohen when the fireman filed for arbitration on the policy and the insurance carrier brought an action in Supreme Court to stay the proceedings, claiming the fireman's car was not part of the coverage.

Justice Cohen shot down that idea, relying on a New York State Insurance Department informal opinion, dated February 8, 2002, which interpreted the SUM policy as similar to one where a person drives his own car for a business. He wrote that:

The opinion found that an employee of the business operating their own vehicle during the course of employment and while acting within the scope of their duty would be covered under the SUM endorsement.

If the coverage was available to someone in their own car using it for a business, then it should likewise be applicable to the fire department.

If it was the fireman's lawyers that found that insurance department opinion for the judge, then that was some good lawyering by his counsel, Kevin Grennan.

h/t NYLJ ($)

Addendum: More from Roy Mura in the comments and at Coverage Counsel

R.I.P. Jane Jarvis, Shea's Queen of Melody (And a Lesson For Lawyers)

2010-02-01T09:22:00.010-05:00

Jane Jarvis, the long-time organist for the New York Mets at Shea Stadium, died last week at age 94. Shea Stadium's Queen of Melody inspired fans over the course of 15 years, and her playing, oddly enough, held lessons for lawyers. Stay with me here. I have a point this time.

Those of my age that grew up spending times watching the Mets at Shea remember her playing for the fans, and the fans responding, and Jarvis tinkling the ivories back at us. It was like an exuberant conversation during her 1964-1979 tenure as she kept us entertained between innings and during other breaks. Anyone who spent time at the now-gone ball yard remembers Jarvis doing Meet the Mets on the Thomas organ.

Ultimately she was replaced by over-amplified canned music (and a thousand other distractions of the modern ball park). But canned music, of course, can't respond to the fans. Her playing was personal. She could see and hear what was going on, and speed up, slow down and modify on the fly. Live music is like that.

So where does the law come in to this? Lawyers often used canned materials too. We borrow briefs and memos from others for use.

But here is the important part: Too many lawyers, it seems, borrow the brief and don't actually read it. They don't make it personal to the actual facts of the case. The writing doesn't crackle with originality and pertinence, because oft times it is neither.

I once read a brief that was filled with "this honorable court" and "respectfully" this and "respectfully" that, and behind all the obsequious writing was garbage. I always figured that if one wanted to be respectful to the court, one would tailor the brief to the actual facts and points that needed to be made. The writer would make it easy on the eyes instead of forcing the judge (or clerk) to go burrowing through the darn thing trying to figure out what the actual point is.

Other briefs I've seen over the years have clearly been filled with cut-and-paste from other briefs, or straight out of WestLaw. It's pure laziness and the message that the judge no doubt receives is, "If the lawyer didn't care, why should I?"

There isn't anything intrinsically wrong with a form book, of course. If you are doing something for the first time it's good to see how someone else did it. The mistakes are in believing that this the only way to do it, or that the form shouldn't be changed at all. The mistake is in ignoring your audience.

Jarvis used sheet music to get her songs down when learning them. But then she adapted each song, just as the lawyer must adapt each and every argument (if, that is, you actually want to communicate a point to the judge)

Jarvis was a virtuoso when it came to the organ and the crowd. And that was because she didn't sit back and rely on the forms she started with.

A 2008 article in the Daily News described Jarvis's experience this way:

When it comes to music and the Mets, Jarvis once wrote the book. "I made all the decisions," she says. She had a song for when the Mets trotted to their positions, and a song for when they smacked a homer, and then there was the Mexican Hat Dance to get things going when the home team really needed it during the seventh-inning stretch. An entire generation of Met fans came to identify the team's championship run in 1969 with her lilting keyboard work.

Rest in peace.

(P.S. Pitchers and catchers report in 17 days. I think Jarvis would want me to mention that)

Updated:

New York Times obituary
Recalling a Meeting With the Pied Piper of Shea (NYT)

FindLaw's Continuing Problems with its "Blogs"

2010-01-29T12:09:00.014-05:00

FindLaw continues to have problems with its so-called law blogs. Today's problem: Their writer doesn't appear to know a damn thing about law.

Why does FindLaw continue this charade of having blogs by producing crap content?

From its Philadelphia Personal Injury Law Blog (coded "NoFollow" so it doesn't get Google juice) comes this mega-screw-up of a headline:

Doctor Found Innocent Of Malpractice

Oy. That's what happens when non-lawyers try to write law blogs. Legal terms get thrown around willy-nilly without the writer knowing what they are doing.

It's always been one of my pet peeves in newspapers when I see a headline declaring that someone was found "innocent" of a crime. Criminal juries, of course, don't determine innocence. (Nor do civil trials.) Criminal trials just determine whether the prosecution sustained its burden of proof beyond a reasonable doubt. But at least when I see newspapers do it they aren't conflating the criminal with the civil.

Memo to writer Emily Grube who continues to churn out this awful dreck at the behest of her employer: This was a civil trial and you used the language of the criminal world by waltzing into the guilt-innocence issue. That's a whopper of a mistake, as we say in legalese.

But it's clear this wasn't an inadvertent mistake, because it continues in the content with this gibberish:

It took the jury less than an hour to find that Dr. Robert Stratton was not guilty of providing poor emergency room care to Dennis J. Kowalick.

Civil juries don't determine "guilt." That is a criminal law term. The civil jury in a malpractice case will determine negligence. And I can't believe anyone would hire a writer for a law blog when that writer didn't understand such fundamentals.

FindLaw obviously continues this crap because it thinks it will get SEO juice. These "blogs" are merely ads designed to dump as many SEO friendly terms onto the web, quality be damned. And if FindLaw need to use a dead child for its self-promotion, well so what, because the ends of self-promotion and making money are more important than anything else, right?

I assume that no one at FindLaw cares, since they've permitted this stuff to go on for months now. I would have thought that its professor-contributors from Writ: Anthony Sebok, Marci Hamilton, Michael Dorf, Carl Tobias, Sherry Colb, Joanna Grossman, Neil Buchanan, and Julie Hilden, to name a few, would have raised a ruckus since they are now associated with these shitblogs. Perhaps they don't care either.

If FindLaw can find professors to write Writ, you would think they could find a lawyer or two to write blogs. But then, FindLaw would have to actually give a damn. Marketing appears to trump all else and remains the holy grail; produce quantity and not quality.

As Scott Greenfield discusses, anyone can have a blog, but not everyone should.

The wonder of it all is that there are lawyers that actually outsource their marketing to FindLaw. I assume that they remain utterly clueless as to what this company does in their names, though if they find out they could save a bundle (and their reputations) by taking their business elsewhere.

And a final obligatory note: You don't have to be a lawyer to write a law blog, as Walter Olson shows at Overlawyered and Point of Law.

More:
Are FindLaw's "Blogs" Tainting Its Clients, Commentators and the Profession of Law? (1/4/10)

Detroit Lawyer Fined For Chasing Buffalo Air Crash Victims

2010-01-25T22:48:00.007-05:00

Detroit attorney Carl Collins III has paid a $5,000 fine for chasing victims in the wake of the February 2009 crash of Continental/Colgan Flight 3407 near Buffalo, according to The Detroit News. According to the US Attorney's Office he sent letters out to victims' families 12 days after the crash, in violation of federal law that bans solicitations within 45 days of air disasters. This is the second such settlement regarding the crash, with New Jersey attorney Richard Weiner having likewise been fined $5,000 for chasing clients with letters.

Both of these actions came from federal authorities. New York has its own 30-day anti-solicitation rule (for all mass disasters), which applies to out-of-state attorneys as well. New York has thus far been silent on the issue of whether anyone has been pursued for violations.

The chasing was a big topic for me early in the year, as I tracked a string of law firms that started to electronically chase clients by running Google Adwords, before pulling the ads after they were exposed. You can read those posts at this tag: Buffalo Air Crash. This air crash was the first true test of New York's 30-day rule that went into effect in February 2007. The 30-day rule was not affected when other parts of the new rules were tossed out by a federal judge in July 2007.

Some of those ads had been run through various marketers, with the effect that lawyers had outsourced their ethics along with their marketing. I had discussed the concept of such ethics laundering to beat New York's 30-day anti-solicitation rule a year ago.

As of today, I am not aware of any attorney having yet been sanctioned for such e-chasing (which I covered two years ago in Attorney Solicitation 2.0 - Is It Ethical?) but that day is surely coming.

My thanks to Buffalo attorney Roy Mura, of Coverage Counsel fame, for passing on the Detroit News story.