May 18th, 2016

Joan Rivers and New York’s Dreadful Wrongful Death Law

Joan Rivers

My Monday post regarding the settlement of the Joan Rivers wrongful death case was meant to be a two-parter. Part one to laud the lawyers and part two to write about the injustices of our current (and ancient) wrongful death statute that dates to 1847.

New York used to be progressive, with the first in the nation wrongful death law that was designed to protect injured railroad workers.  There was no common law claim for wrongful death. Since an injured worker needed to be compensated, perhaps for life, but a dead one was worthless in the eyes of the law, saving the life of the worker was, ahem, detrimental to the profits of the railroad business.

In fact, not only wasn’t there a wrongful death cause of action, but even a claim for personal injuries (the pain before the death) did not survive the death of the injured person (or of the tortfeasor). It just evaporated. It was better (for the railroads) to kill workers than injure them.

Thus, the 1847 legislation. (You can read the history of it all in Grant v. Guidotti.)

But while once at the forefront of progress, New York is now a laggard in the law’s development. It has not been updated in 170 years. The law provided back then, and continues today, that the survivors may only collect “pecuniary” loss, basically meaning the wages that others depended on. And if your family member that was killed by the negligent conduct was not the family breadwinner, but happened to be an infant, homemaker or retired?

Sorry, Charlie. Children, retired seniors and homemakers have no “value” to the New York Legislature. And disaster-struck families have been told by lawyers, for generations now, that they won’t get to hold the tortfeasors responsible for their grief. They are on their own. You can blame the Leg.

Before I had a chance to fully write that piece though, Marc Dittenhoefer dropped a long comment into that first post on that subject, dealing with the Joan Rivers case. So I just asked Ditt to expand on it a bit and presto, a new guest post on the very topic I wanted to cover.

Take it away Ditt:
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Marc Dittenhoefer

Marc Dittenhoefer

I applaud the outcome in the Joan Rivers case and join in sending kudos to Ben Rubinowitz and his team for the excellent job they did on all counts. However, results like this one always give me pause in that they highlight a great inequity that still bedevils our system.

Joan Rivers endured no conscious pain and suffering, had no impending fear of death or disaster, was the legal and obligatory supporter of no one, and was worth tens – perhaps scores – of millions of dollars at the time of her death. By traditional NYS legal measures of recovery, this case should have limited value. But Joan Rivers was rich, famous, powerful, beloved and white. Ka-Ching!

Now let’s think of an unheralded Ms. Gonzalez, or Johnson, or Yee; with several children dependent upon her for support; with days, weeks even months or years of conscious pain and suffering; and with a dread of impending doom all about her due to someone else’s fault in causing her death. THAT case doesn’t settle so fast, nor for anywhere near sum likely received here.

The reason? In New York, wrongful death damages are measured by two things:

(1) conscious dread, pain and suffering of the decedent, and

(2) monetary loss to those legally dependent upon the decedent for support.

Joan Rivers went to sleep fully well expecting to wake up shortly, felt no pain and suffered not at all, and left behind as an only survivor a fully grown, emancipated and high-earning woman in her own right who stands to inherit generously from her mom’s Estate. But for her fame and public profile, the measure of damages here would be negligible by current legal standards.

But an unknown single mother of 3 with no special skills or educational advantages, earning modest wages and perhaps even lingering in a death-spiral of pain for months on end?  Who also happens to be the family matriarch giving love and guidance to those within her household?

Defendants would be in no particular rush – nor in  the grips of any particular generosity – to amicably resolve that case to the benefit of the motherless children in dire need of whatever recovery their lawsuit might hold. Those moms do not make the headlines: no insurer seeks to avoid bad publicity by paying quickly or generously for them. While the Rivers’ settlement is celebrated by the tabloids with speculation of an 8-figure sum, the lesser recoveries of the “ordinary” litigants are decried as “runaway” results when the press pays attention to them at all. Yet the self-same interest of improved public health is served in both instances.

Fame has its privileges, all right. But NY’s laws need to recognize that:

(1) the current measure for damages in a wrongful death scenario is woefully dysfunctional and out of date, and

(2) “regular” folks need to be afforded the same quality of justice that the rich and famous get, even if their cases do not alway make the papers.

“Wrongful Death” reform is long overdue.

 

 

May 6th, 2016

Starbucks Iced Coffee Lawsuit – A Rebuttal

Marc Dittenhoefer

The one. The only. Marc Dittenhoefer

On Wednesday, I ran a parody of the Starbucks class action lawsuit regarding too much ice in the iced coffee. And yesterday I posted my explanation  as to why I did it: bad suits hurt good clients.

Now today comes a rebuttal from one of my friends, Marc Dittenhoefer. Take it away Ditt…..

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Ok, so let’s get some obviousness out of the way first so we don’t have to waste any more time on it. Of course the “What, there’s Ice in my Iced Coffee!” lawsuit is a bit of a dopey exercise, more than a bit of bad PR, and the latest in a long, long line of easy pickings for satirists, comedians, anti-civil-justice advocates and for dinner table conversations everywhere.

I get that. As a lawyer who has made his living for 40+ years representing harmed people in legitimate lawsuits, these sort of headlines rankle me, too, and do have their effects upon the judges and jury pools that I, too, must practice before. I was no happier than Brother Turkewitz to see this latest juridical jalopy come down the pike. “Whoa Nellie………not, again!!!

Nevertheless, when one thinks about it a bit there are a few legitimate points behind this lawsuit: ones that we should be spending a moment or two on before we jettison this plaintiff and move on to our next exercise in righteous indignation.

Coffee is coffee and ice is ice. One costs money – quite a bit it of it in places such as Starbucks, it turns out – and the other usually is at nominal cost or given free with a purchase. The reason and rationale for why some shops charge the public what they do for a Cup of Joe folks can get for under a buck at a diner is that there IS a difference: you are paying for a comparable amount of beverage which is more expensive to buy and brew than the diner’s.

When someone plunks down $ 6.50 for a “venti” iced Blarfaccino, one has a (I hesitate to use such a lofty word in such prosaic a circumstance) right to expect the comparable 8, 12 or 16 ounces one gets in the diner version of iced coffee from ’round the corner, especially since the sizes of the various servings are posted, advertised and charged for by the Blarfaccino store itself.

It is no different than a can of soda, quart of milk or gallon of gas: what is listed on the signage is what you should receive for your money. But what if your can has only 7.9 ounces of soda, your milk a fraction less than a quart, your gas a tad shy of a gallon?

 To you, the individual Buyer it means perhaps not a whole lot: it might even be healthier for you over all – at least in terms of the coffee or the soda. But to the Seller ? By chintzing a bit on each of a hundred customers, all of a sudden you can sell 110 coffees from the ingredients that used to net 100.

That’s a profit of 10 coffees that have been “stolen” from the clientele. Or 2 TVs falling off every truck; three Mercedes’ off every shipload. Sooner or later, this adds up to some real money from out of the pockets of the unsuspecting and into the till of an already multi-billion dollar corporation. Not so silly any more, is it?

These scams have been done in business for as long as there has been business, and one of the valuable functions that government provides is to guard against such things, via regulation, inspection, quality control and mechanisms for enforcement and restitution. Thus is the “Class Action” invented.

Should a business — say a financial institution — devise a computer program that would take one cent each month from the account of each of its customers and automatically deposit it into the business’ operating account, that would be a theft. Yet most customers would not ever notice it, much less be willing to file a Police Report over it, and no DA would start a criminal action for anyone’s annualized loss of 12 cents. Multiply that amount however by a million customers, and you all of a sudden have a major revenue stream on your hands – or in your pocket.

An old riddle here is instructive: what would you rather have for your birthday, one million bucks or one penny doubled each day for a month? If you took the penny deal, you made the better bargain by far.

So yeah, the suit is dopey, but only in its poor choice of forum. This matter should be handled regulatorily by making Starbucks devise a way to ensure that the proper amount of paid-for coffee is served in their iced offerings. After all, the company that can invent a machine that grinds, brews, and serves up skatey-eight different types of coffee in 3 or more sizes each can certainly find a way to stock themselves with cups large enough to accommodate the proper amount of beverage WITH ice. It ain’t brain surgery – it’s just right. And this lawsuit says so.

As to the rest of it, considering Stella Liebeck’s case against McDonald’s I am convinced that the insurance, big business and and anti-consumer forces are not sitting idly by waiting for things like this to latch onto to further their PR campaigns. They are at it 24/7/365. This case might give them something to work with, true, but it also is one that highlights an area of abuse that could be redirected in a positive, pro-consumer way.

 We should be full-throated in our support, not necessarily of the suit but of the concept that a buyer should get what they pay for, and that sometimes recourse is needed when that does not happen. In this regard – although I am most certainly not of, by or for the “Tea Party” – they have a point. Free and unfettered access to the Courts to air grievances and correct wrongs is as much of a doctrinal touchstone as anything for the “Tea Party”. Why not for coffee ?

 

 

February 17th, 2016

Unicorn Sighting in New York

three unicornsGuest Blog by Mike Greenspan
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Another day, another scam. This time it deals with three unicorns.

Frankly, it’s hard enough to be a plaintiff’s personal injury law practitioner fending off the relentless efforts of the “tort reform” movement, the cynicism of juries and the saturation of the market with attorneys. So when lawyers have to face competition from runners; ambulance chasers  and the like, you can understand why so many of us are stressed out.

Today, we bring you our latest entry into our Hall of Shame, a trio of actual unicorns -Jose, Lisa, Mark, Marie and the rest of the gang over at Personalinjuryattorneyrocklandcounty.com.  No, we won’t give this a link.

What? You’ve never heard of them? Funny that you should mention it, because neither had we.

Imagine that you were injured and you were looking for a well qualified attorney based in Rockland County, New York to sue the company you thought responsible. A quick Google search for a personal injury attorney in Rockland County brings up a number of results that unsurprisingly includes personalinjuryattorneyrocklandcounty.com because of the matching keywords.

You click on the site and see a banner inviting you to “Discuss your criminal defense and personal injury legal matters with skilled, experienced lawyers.” What follows is a seemingly impressive lineup of attorneys: Partners Jose Anderson, Lisa Wilson and Mark Thomas have each been practicing for over forty years.

Jose’s biography tells us that he has “ recovered tens of millions of dollars in verdicts and settlements for victims of personal injuries.”  (How exactly does one become a “victim of personal injuries?”)

Glowing testimonials appear on the site such as this gem

From my initial contact with Lisa, I immediately develop huge respect for her. She was explicit with her information, as direct as can be. She explained what you would be up against, what to expect and what not to look out for.

With credentials and testimonials like those, you’d think that the seriously injured in that area would be jumping out of their hospital beds to call and get an appointment with these folks. There are even two offices to contact in case you wanted to do just that.

So what is the issue? Well, there a just a few wee problems that we thought to highlight:

1. New York Law prohibits attorneys from practicing under a trade name.

Yeah it is a bummer that lawyers cannot advertize under a trade name in New York like they do in other states such as Arizona, Florida or Louisiana so you won’t find kickasslawyers.com or “TheArizonaDUITeam” here in the Empire State (Rules of Professional Conduct 7.1 ). So right away, we have an issue with Jose and his buddies doing so in our neck of the woods.

2. New York law prohibits the portrayal of a fictitious law firm. 

That big, fat, no no is right there in black and white in RPC 7.1(c)(2). This so called law firm is fictitious, because….

3. These “attorneys” aren’t licensed in New York.

Really? After all Jose supposedly graduated St. John’s Law in ‘71 and claims to be admitted to practice in New York since ‘72 and has even made it all of the way up to the Supreme Court!

Sadly, this is news to the Office of Court Administration who has no record of an attorney by the name of Jose Anderson nor is there a record of a Lisa Wilson, or a Mark Thomas being admitted to practice in New York – ever. Run a search yourselfand see. We do recall learning about something known as the unauthorized practice of law and how that is generally frowned upon by the authorities. This sure looks like the unauthorized practice of law to us.

When we said unicorns we weren’t kidding — these attorneys simply don’t seem to exist.

100% authentic unicorn poop

100% authentic unicorn poop

4. The registrant of the domain name is hidden

Yeah, that is another problem here because if you have a website in New York, the information is supposed to contain some important information and hiding the owner of the site is prohibited. That hasn’t seemed to bother Lisa and Jose (perhaps Mark, but who knows?). A search on whois.com reveals that the registrant used a service -whoisproof LLP to register the name anonymously. Now why would they do that? Hmm

5. The Phone Numbers go right to voice mail.

Try it for yourself. Call the New City number (845) 335-4345 or the Spring Valley number (845) 520-5075. See if you can in to see one of the trio grande of “ skilled and experienced attorneys .”

So somebody has taken a lot of time and effort creating and editing a website devoted to attracting potential personal injury clients while disguising their true identities. We say editing , because the website has undergone revisions since the summer of 2015 when it blatantly copied sections of text from legitimate websites of New York City area law firms and placed that text in its practice areas. That text and those references are no longer present on the site.

We sure would like to find out…

  • Who is returning the phone calls left on the website’s two phone numbers?
  • Is there someone who goes out and meets with the unsuspecting people who call looking for a lawyer?
  • What lawyer or law firm is signing up these people and undertaking to represent them in court?

 

February 13th, 2016

The Huntington Post Office Did WHAT?!

Huntington Post Office, Long Island

Huntington Post Office, Long Island

This story comes to me from an incident this week at the post office in Huntington, New York, out on Long Island.

We all know about postal workers, don’t we?  So let’s add this to the collection:

From Carol Schlitt:
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My youngest son, John, has Down Syndrome.  He turned 20 today.  After school each day he works in my office and walks to the local post office to take care of the mail.

He is excellent at his job and he loves doing it.

Yesterday, he told the postal workers that today was his birthday.

When he arrived at 4:45 this afternoon, everybody in the post office broke into “Happy Birthday” and presented him with a cake.

It seems remarkable to me that postal workers would do this.  It made me regret complaints I’ve made about postal workers over the years.  It also made my day that my son is so accepted and loved in our community.

I just wanted to share a “feel good” story and make us re-think some of the stereotypes that so many of us carry around.

 

October 21st, 2015

The Kool-Aid Drinking Lawyer

Helene Blank

Helene Blank

Even though Helene Blank has tried cases for both defendants and plaintiffs, and has been doing so since 1979 in roughly 130+ trials, and lectures widely, she is still stunned by what she sees.

She last appeared here in a good rant about bad faith and insurance companies.

She guest blogs today on lawyers that have surrendered their objectivity, and with it their ability to actually assist their clients…

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Kool-Aid drinkers to a plaintiff’s lawyer are defendants’ lawyers who, no matter how stark the evidence that the plaintiff is seriously injured, refuses to believe it and does everything they can to make sure your client isn’t properly compensated for their injuries. The insurance company must be protected from really hurt people at all costs.

I always thought the true Kool-Aid drinker was really a mythological beast not any more real than Bigfoot, Yeti or a werewolf. That was until last week.

I ran into a defense lawyer I hadn’t seen since we tried a damages only case of a client of mine who was irreparably and horribly injured from the accident caused by her client. This poor, sad soul developed what is known as RSD or CRPS – which stands for Reflex Sympathetic Dystrophy or Complex Regional Pain Syndrome — the people who have the true misfortune of getting this call it CRAPS — ’cause that’s what your life becomes, crap.

This syndrome happens to an unlucky person after an injury, their brain just goes haywire – and the affected limb is in constant unending pain. You become hypersensitive. You can’t be touched, you can barely wear clothes, you can’t use the limb, and it atrophies or wastes away.

This poor soul had even worse misfortune when the CRPS jumped from his left arm to his right leg — a not unknown phenomenon for these poor people.

His life as he knew it was ruined. He couldn’t sleep in a bed, be touched by another human, not his wife, not his children. He had a pain pump inserted into his spine in the hopes of gaining some relief.

He routinely begged his doctor to cut off his arm. If only it were that simple and such a barbaric act would cure him. Too bad, but it wouldn’t.

He was unable to really walk and he couldn’t use the affect arm to do much of anything.

The defense had him examined twice by a wonderfully credentialed doctor from one of the best hospitals in the world – the Hospital for Special Surgery. After each exam, this doctor reported that it was his opinion that my client did indeed suffer from RSD/CRPS.

But they never produced that doctor for the trial.

Instead, they hired for trial what plaintiffs’ lawyers in gentle circles call “a witness for hire” to testify that my client did not suffer from this. A witness who spends her career traveling the country testifying against injured victims who suffer from this. This doctor never once examined my client and completely discounted the defense’s medical exams. But okay –I know that’s what defense lawyers do. It’s their job to try and get the best possible settlement for their client.

I understand that, really I do. I was once one of them. But my encounter with this adversary last week so saddened me that it’s hard to get out of my mind.

After we exchanged niceties, she actually said to me:  your client, he’s out somewhere partying with all that money he got and he has finally taken that bandage off his arm. A “bandage” that he wore constantly to protect himself from human touch which he found excruciating.

I was shocked. Truly, absolutely shocked. This seemingly intelligent woman, who had all the truth in front of her during the trial, really drank the Kool-Aid. She just simply refused to believe that this poor man was so badly hurt.

I answered that she must be kidding. Did she really truly believe he was a fraud?

She actually said yes, and said she regretted not doing surveillance on my client. I told her that so did I, if for no other reason than I could have used the footage against her client because all she would have seen was what she saw in court. A beaten, hurt human being whose life was destroyed.

Her bizarre response to that was this made her feel better. It all made me feel so sad for this lawyer whose humanity was somehow lost along her way. It made me realize why I stopped being a defense lawyer a long time ago. I never was going to lose my humanity for any insurance company.