A doctor that has thrice been sued for medical malpractice, with the same expert coming in against him all three times, got fed up and sued the opposing expert, claiming fraud. For his troubles in the unusual suit, both he and his attorney have been socked with sanctions by a New York judge.

The decision by Justice Marcy Friedman in Cattani v. Marfuggi, filed last week in New York County Supreme Court (our trial level court), ripped both Dr. Robert Cattani and his counsel Richard Paul Stone, for bringing an action she deemed frivolous. Because of an "overwhelming body of case law, reiterated repeatedly by the appellate courts of this state," against such suits, Justice Friedman sanctioned both lawyer and doctor $1,000, and has scheduled a hearing for them to come back to determine reasonable legal fees to be paid.

Judge Friedman reiterated the long-held position that "statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding."

During the pendency of the action, Justice Friedman said that she took Mr. Stone aside in chambers and warned him of the potential for sanctions if he didn't drop a suit that could not be maintained, but that Stone informed the court his client wanted to go forward.

The standard for frivolous conduct is well known here, and is set forth in our rules of court (22 NYCRR 6 130-1.1[a]). Conduct is frivolous if it "is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law."

Lesson to be learned: Learn to say no to potential clients with crazy claims. There is nothing to be gained by bringing frivolous suits, and much to be lost. A successful law practice isn't made simply by hoping you might win the case, but by learning which cases not to take.

Labels: Frivolous Claims

Monster Energy Drink's lawyers seem intent on living up to their product's monster name. Since I consider frivolous legal conduct to be within my wheelhouse, and this evening being Halloween eve, I thought I would look at the monstery conduct of Hansen Natural, the billion dollar company that makes this brew.

Could this company really have issues in this scary season, or am I just trying to piggy-back a play on names today? You be the judge:

In one act of brilliance, the legal wizards thought it would be a fine idea to send a take down notice to a beverage reviewing website. The site is actually called BevReview.com, making it pretty clear at the outset what their focus is. They reviewed the product. And they trashed it:

The color of the drink was dark yellowish... I guess you could call it amber, but who really knows. Think apple juice with a somewhat red tint. As for the taste, well... it was odd. Think citrus + medicine. Yum! There wasn't a lot of carbonation (which reminded me somewhat of how Vault is being positioned as a hybrid soda/energy drink). The aftertaste was somewhat bitter, rather acidic. Not really pleasant, to tell you the truth. I actually couldn't quite place what the heck the flavor actually was. It starts out smooth, and then the aftertaste kicks in and ruins it. (Of course, this might also have to do with the fact that sucralose is listed as an ingredient.)

Overall, the taste was weird and I don't think I'd want to drink this again.

No problem, right? Except that their chief legal eagle, Darlene R. Seymour tried to scare the crap out of this little web site by threatening them with a lawyer letter. Perhaps she missed the class on that First Amendment thingie. The web site posted the letter, apparently telling Hansen to take the proverbial long walk on the long short pier.

And in another attempt at making its name synonymous with evil, the billion dollar company sent a cease and desist letter to the tiny Vermont Rock Art Brewery for trademark infringement for making Vermonster Beer. Hansen thought there might be some confusion in the marketplace, despite the fact that they don't even make beer.

But that didn't work out so well either, as the brewer fought back with a viral marketing campaign including a YouTube video hit. The owner went with the Web Defense under the assumption that the legal defense, while clearly winnable, would bankrupt his tiny brewery. So instead of waiting for the economic end game to hit him, he went after the giant.

In one of the great David v. Goliath battles of the web, which ended with a fast win for the brewery, the brewer turned the tables on the mega-monster when Hansen distributors started to boycott Monster Energy. Instead of punishing the brewer with legal fees, Hansen was now being punished with its products being pulled from shelves.

And others chirped in that, by the way, their stuff tastes like camel piss. Welcome to the web, Hansen.

So instead of pounding the brewer into salt, it was Hansen that got pounded. Just check some of these links out:

• Corporate monster picks on 'Vermonster':

  Where are those lawsuit reform groups when you really need them? You know, such outfits as Citizens Against Lawsuit Abuse that are always squawking about "frivolous" lawsuits and demanding new laws to prevent people from suing big corporations.

• Some Kind of Monster: Vermonster vs. Monster:

  All of this got me thinking. I seem to remember a lot of monsters throughout history. These monsters have no problem with Rock Art's Vermonster or Monster energy drink co-opting their name and hopefully when they call for a jury of their peers, some of them will sit on that jury.

• A Corporate Monster vs. "the Vermonster":

  Chance are that you've seen ads, letters-to-the-editor, op-ed pieces and other materials put out by outfits with such civic-sounding names on Citizens Against Lawsuit Abuse. By whatever name, the message is always the same, usually delivered in a sort of urgent, basso profundo voice saying something like this: "Bloodsucking lawyers are constantly filing frivolous lawsuits against beleaguered corporations.

• MONSTER Mash: Analyzing MONSTER ENERGY v. THE VERMONSTER:

  I would predict an outcome in favor of Rock Art. The fact is, Hansen is far from the first to use or register a MONSTER-formative mark for beverages.

• Why Monster's Trademark Claims Against Vermonster Stink

  Hansen's argument, however, is weak for several reasons. First, why would anyone believe that a product named "VERmonster" -- a mark alluding to the state of Vermont -- is affiliated with Monster energy drinks? Second, the term "monster" isn't exactly distinct to Hansen's energy drink. In fact, we correlate the term "monster" with so many things (e.g., job-searching websites, creatures in Loch Ness, etc.). Third, while some energy drinks have moved into the alcoholic beverage market, none of them have yet entered the beer market. For these reasons, it's doubtful that Hansen has a viable argument that Rock Art's "Vermonster" causes a "likelihood of confusion."

And in a note to the shining legal talents that represent Hansen, you should note that my mockery of your product in the image shown here also falls within the ambit of First Amendment protection. (Both ass sweat and camel piss are, as far as I know, natural products, which you seem to tout in your drinks, so I figured you'd appreciate that. You might also like the trailer for Booty Sweat Energy Drink, but that would require an actual sense of humor.))

Perhaps you think my comments made lead to some confusion in the marketplace as to your actual ingredients. But that's unlikely, since I don't presume that readers of this blog are total morons.

I know that I shouldn't have to explain that to you, and that is should be readily apparent to all lawyers (and in fact, everyone that made it out of high school), but you guys do seem to need a bit of help in that department.

Labels: First Amendment, Frivolous Claims

Another victory for the tort "reform" movement. Albert Freed wanted to sue Hanes because of a claim that his underwear gaped open and hurt his penis (and he didn't do anything about it). It's notable that he represented himself, since apparently no lawyer would have been moronic enough to touch it. (Not the plaintiff-->>)

This spectacularly stupid lawsuit (coming to us by way of Above the Law, where there will no doubt be abundant commentary that is NSFW) had its origins in a two week vacation to Hawaii, and new briefs that the plaintiff's wife bought for him. He testified that they gaped open at the fly, that this was apparent to him on the second day of the trip, that he got an abrasion, that he did nothing about it for two week, that he didn't even look at himself, and that some topical ointment cleared the problem up in a day or two when he got home. He brought suit for defectively manufactured briefs.

Previously I'd written about Roy "Pants" Pearson and his $54 million case against a dry cleaner for his lost trousers. OK, pretty much everyone in the world had written about that one. But Freed can now take his place beside Pearson in the pantheon of public humiliation over ill-considered lawsuits. Pearson probably still has the lead here based on the fact that he is an attorney, but still, Freed has given him a run for his money.

Why did Freed do this? I'm going to take a shot at this here: He won the trip as a reward for selling $20,000 of diet products. Yet he weighed 280-290 pounds. Perhaps he thought he could sell anything to anyone.

Why do tort "reformers" like these kinds of nutty suits? Because the corporate-run movement is based on anecdotes and not empirical evidence. If the U.S. Chamber of Commerce trots out a few losers like this, then they think they can make headway into closing the courthouse doors to legitimate suits. It is rare suits like this that make news, not the legitimate suits that are "ordinary" by comparison and that make up the bulk of the cases in the courthouse.

On a final note, you really have to read footnote 3 to the opinion, about the lawyer sitting in the gallery "minding his own business" who was suddenly called as an expert witness, since he was the only male available that was watching the proceedings that was not involved.This was a "prominent" local defense lawyer who was "conscripted" into the proceedings to talk about "penile discomfort." The court declined to name him, but acknowledged the lawyer was a "good sport" about it.
Opinion via ATL:/Freed-v-Hanes.pdf

Labels: Frivolous Claims

I swear I didn't make this up. A local defense lawyer sent a demand letter to a plaintiff's attorney that he delete "pain" from the injuries in a suit because "pain is not an injury."

When Eric Gottfried, the plaintiffs attorney, got the letter, his jaw dropped. Pain not an injury? In his response, Gottfried referred the defense lawyer to a "beginning tutorial on how 'pain' is central and essential to a personal injury lawsuit." You can see the demand and response here: /DefendantsNonsense.pdf

The case seems to be a routine personal injury matter, as per Gottfried: Plaintiff is hit in the rear by the defendant in a car accident. Plaintiff has suffered a number of injuries, including a fractured nose (with surgery), three fractured vertebrae, fractured rib and rotator cuff injury, among others.

The tort "reformers" like to use anecdotes to "prove" that there are frivolous lawsuits. (Many of those cases, in turn, are pro se matters.) So here is the flip side: The most utterly worthless and frivolous legal argument that I can imagine coming out of a real law firm.

The difference, of course, is that defendants get paid to make frivolous arguments (when billing hourly) while plaintiffs lose time and money doing so (while using the contingency fee).

Labels: Frivolous Claims

The Chamber of Commerce has blown its own propaganda campaign regarding frivolous lawsuits. At this website designed to spread the myth of the frivolous lawsuit as a bona fide problem, they mistakingly included a pro-consumer eight-minute video called Mr. Fancy Pants. If you hold your cursor over the pictures after the video runs, you will see which one it is.

The video was produced by Injury Board, a collection of plaintiffs attorneys, and discussed last year at TortDeform.

Whoever put the Chamber site together apparently didn't listen past the opening minute or so, which gives the propaganda angle. The rest of the video goes on to explain how the Chamber puts together their lobbying efforts and that judges already have the power to sanction litigants over frivolous cases.

I expect the Chamber to pull down the video after I post this, and perhaps slap someone upside the head for not bothering to actually watch the stuff they put up on their own site. I'm sure their corporate contributors will be delighted. Since it will likely disappear from their site, I'm putting the video here since it is also on available via YouTube. Enjoy the video...now being actively promoted by the U.S. Chamber of Commerce:


P.S.: These additional videos linked at the end of a clip are likely embedded by YouTube. If you look at the bottom of the video that I posted, for example, you will see unrelated "pants" videos. Which means that corporations that want to use this stuff need to re-code the YouTube videos to exclude those frames and links.

Labels: Frivolous Claims, tort reform

Former administrative judge Roy "Pants" Pearson, who infamously brought a $67M lawsuit against a dry cleaner for allegedly losing a pair of trousers, has lost his bid for a new trial. That he subsequently lowered his demand to only $54M didn't seem to matter (Previously: Pants Lawsuit Ends in Victory for Dry Cleaners.)

Covered extensively up down and sideways by every writer with a keyboard, the D.C. Court of Appeals has now weighed in to reject the appeal.

Pearson's claim, briefly summarized by the Court in a 23-page opinion, was:

Pearson's claims regarding the "Satisfaction Guaranteed" sign are premised on his interpretation that the sign is an unconditional and unlimited warranty of satisfaction to the customer as determined solely by the customer, without regard to the facts or to any notion of reasonableness -- a position he has consistently advocated both in the trial court and on appeal...

[Pearson] argued unambiguously that "[a]s a consequence of offering an unconditional guarantee of satisfaction a merchant is required to satisfy a consumer's demand for lawful compensation (for example, for any amount of money). (emphasis added by Court of Appeals, at page 13 of decision)

The trial court, said the appellate bench, showed "basic common sense" to reject the unlimited claims of Pearson and that Pearson's fraud claim "defies logic."

The court's opinion is rather matter-of-fact about the case, with a long recitation of the facts and extensive citation to case law. There are no gratuitous comments about the ludicrous nature of the demand, other than the legal analysis of it being without basis, and no discussion of sanctions.

The court may realize that such sanctions and commentary are unnecessary since, in the court of public opinion, Pearson has been tried and convicted and there was nothing new to add.

The decision is here, courtesy of How Appealing: Pearson-v-Chung.pdf

Labels: Frivolous Claims

Will Brooklyn lawyer Marina Tylo be spanked for a frivolous defamation suit against a New York law blogger?That is the question being asked by Scott Greenfield over at Simple Justice. It seems that Tylo screwed up by serving a Summons prior to purchasing an index number. That's a no-no in New York, and has been for years. You have to first pay the index number fee to start the suit, then serve the summons.

Tylo was sued for legal malpractice as a result. But because the subsequent attorney still had time to rectify her blunder, the malpractice case against her was dismissed.

Andrew Bluestone, whose blog focuses on New York attorney malpractice, wrote the story up. Sort of. He actually just wrote a prefatory paragraph that introduced the decision. You can see his posting with the decision here: Serving a Summons before Buying an Index Number

But that blog post seemed to make Tylo upset. So she sued Bluestone, apparently because he had the audacity to report the story. Her claims include libel, negligence, gross negligence, intentional infliction of emotional distress, and "tortious interference with prospective contractual relations."

According to her legal filing, this is the entire text of Bluestone's allegedly tortious conduct, this being his introduction to the court's decision:

Here is the full text cite for a legal malpractice case in which plaintiff's attorney served a summons before buying the index number. Khlevner v. Tylo, 10733/07

That's it! You want the definition of frivolous? You got it right there in that filing. A simple factual statement. He didn't even offer his opinion, which of course, would be protected anyway under that little First Amendment thingie.

(Addendum: The exact definition of a frivolous suit is right here. Conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another;)

And what kind of relief does Tylo seek? Aside from 10 million bucks, she wants Bluestone to remove his posting. The relief she requests includes:

• A retraction of his "libelous" statement; and
• "Removal of above stated statements, as well as other like and similar statements, from all publications, blogs and other media."
  

Perhaps she thought that by suing him she could purge the Internet of this posting, so people wouldn't see it when they looked her up. Tylo, of course, is not the first to have this brilliant idea of trying to purge the Internet of unfavorable references. She apparently has no clue about something called the Streisand Effect. (She also might find Dan Solove's book, The Future of Reputation On the Internet, to be of interest. Though reading it before filing suit would have been wise.)

So as a result of her idiotic suit against Bluestone she has drawn more attention to herself. Which probably wasn't what she had in mind. Especially since others might now offer their opinions. Like Greenfield did. Like I do now. And those would be constitutionally protected opinions I might add, though frankly, anyone with a license to practice law in this country should already know that.

One last thing, by the way, since I found her bio. If she cares about her Internet reputation, she might want to put a bit more care into how she presents herself:

I am a very experienced and competant attorney. I finished NYU law school and have over 14 years expiernce in legal matters relating to Real Estate. Even though by using a great attorney such as my self you can save a whole lot of money I do not charge excessive legal fees. I also have a lot of expeirnce in investing and owning real estate and thus I am in a position to trully understand and appreciate any pitfalls associated with all types of real estate transactions including Litigation, Closings, Tenant issues, and transactional negotiational matters. I am licenced in the State of New York and all Federal courts, and Supreme Court of the United States. I will fight for my Clients tooth and nail to get the desired results.

Ms. Tylo, welcome to the electronic age.

You can find more on the subject here (updated periodically as more write on the subject):

• Brooklyn Lawyer Marina Tylo Deserves a Good Spanking (Simple Justice)
  

"From the annals of the truly stupid comes this latest attempt to shut down a blawger."

• Does Marina Tylo File Frivolous Lawsuits? (Crime and Federalism)
  

"If some books are destined to on the big screen, there are some lawsuits destined to appear at Overlawyered.com."

• I Trully Hope She Learns From This Expiernce! (Defending People)

"I can't disagree with Scott, but the more salient point, in my view, is that Tylo chose the wrong defendant..."

• Marina Tylo Meets Barbara Streisand (Crime and Federalism)

"This wasn't a very good idea, since filing a frivolous lawsuit against a law blogger is not the type of event that other bloggers will ignore."

• Brooklyn lawyer Marina Tylo sues blogger for reporting that she was sued for malpractice (South Carolina Criminal Defense Blog)

  "...this ridiculous effort by Tylo to silence a blogger will end up earning her much more bad press than the one small post on Bluestone's malpractice blog did"

• New York Lawyer Sues Law Blogger for Reporting on Malpractice Lawsuit (Citizen Media Law Project)

  "Unless I'm missing something, this looks like a purely frivolous case, perhaps a situation where sanctions against Tylo are appropriate."

• Two Bloggers Sued, One by a Lawyer (Ambrogi/Legal Blog Watch)

  "What did Bluestone allegedly do to injure Tylo to the tune of $10 million? He quoted from a court decision in a legal malpractice case against Tylo."

• Watch What you Say About Lawyers (Overlawyered)

  "...several blogs have already 1) mentioned the strong privilege that attaches to fair reports of court proceedings and 2) suggested that Tylo will before long be well acquainted with the phrase 'Streisand effect'."

Labels: Frivolous Claims, http://www.blogger.com/img/gl.link.gifAttorney Ethics

Administrative Judge Roy Pearson, lampooned high and low for his ludicrous $67M lawsuit over a pair of pants he claims were lost by his dry cleaners, lost his case today. And it didn't even matter that he reduced his demand to only $54M.

He didn't just lose his ridiculous claims for millions of dollars for claims that included emotional distress, he also lost the small claims part of his case for the actual pants themselves.

And he may get socked for sanctions and attorneys fees for engaging in "in bad faith and vexatious litigation." That seems like an understatement. You can read the decision here: PantsPearsonDecision.pdf

Judge Judith Bartnoff noted at the end of the decision, that:

The issue of the defendants' claim for attorney's fees against the plaintiff will be addressed after the defendant's motions for sanctions and for attorney's fees have been filed and briefed by the parties.

Pants Pearson can't be happy today.

Regarding the actual pants, Judge Bartnoff noted that Pearson had not met his burden of proof:

With regard to the alleged missing pants, the plaintiff has not met his burden of proving that the pants the defendants attempted to return to him were not the pants he brought in for alterations. At best, the evidence on that subject is in equipoise. The Court agrees with the plaintiff that the pants in the defendants' possession do not appear to match the jacket to his burgundy and blue pinstriped suit. The Court also will accept that Mr. Pearson does not like cuffs on his pants. The plaintiff may well believe that he brought the pants to his burgundy and blue pinstriped suit to the defendants, but there also is strong evidence that he did not.

The Court found Soo Chung to be very credible, and her explanation that she recognized the disputed pants as belonging to Mr. Pearson because of the unusual belt inserts was much more credible than his speculation that she took a pair of unclaimed pants from the back of the store and altered them to match his measurements. Mr. Pearson only recently had received four suits back from his son, he brought in several pairs of pants over a period of less than two weeks for alterations, and it certainly is plausible that the pants on the hanger with his blue and burgundy pinstriped suit jacket were not the pants that matched the jacket, even if Mr. Pearson assumed that they were. The Court need not determine what did happen; what it must do is to determine if Mr. Pearson proved that the defendants intentionally misled him and otherwise are liable to him under the CPPA based on the pants. The Court finds that he has not made that proof.

In making its findings, Judge Bartnoff also noted about his prior divorce litigation, that:

[T]he litigation was disproportionately long, despite the relative simplicity of the case, and that Mr. Pearson "in good part is responsible for excessive driving up of everything that went on here" and created "unnecessary litigation." Mr. Pearson therefore was ordered to pay $12,000 of his wife's attorney's fees.

That doesn't bode well for him for the coming hearing on sanctions and attorneys fees.

What's the lesson in all of this?

1. We are a nation of 300 million. There are a few nuts out there.

2. Pearson is an administrative law judge. Those who want to strip the right of trial by jury from the citizenry should note that sometimes people get elected or appointed judge and they may not be the type of person you want sitting in judgment. A community, known as a jury, works a whole lot better than being at the mercy of an individual.

Addendum: The American Association for Justice, the nations largest group of pro-consumer trial attorneys (of which I am a member), issued this statement:

"A multi-million dollar lawsuit over a pair of pants was both ridiculous and offensive to our values. Our civil justice system must be reserved for those who seek fair compensation when they are the victim of true wrongdoing or negligence. The court has ruled wisely in this matter. Opponents of our civil justice system should pay heed to this decision -- it clearly shows that the system works to deny outrageous and ridiculous claims."

AAJ has been sharply critical of Judge Pearson's lawsuit seeking $54 million in damages over a lost pair of pants. In April, AAJ CEO Jon Haber called on the District of Columbia Bar Association to conduct a disciplinary investigation of Judge Pearson for his conduct in this matter. Haber and AAJ President Lewis "Mike" Eidson pledged to support the defendant's defense fund and encouraged the AAJ membership to also contribute (www.customcleanersdefensefund.com).

News links to Pants Pearson decision:

• Plaintiff Gets Nothing in $54M Case of Missing Pants (Washington Post)
• Dry cleaner wins missing pants case (Associated Press)
• Judge Rules in Favor of Dry Cleaners in $54M Pants Lawsuit (ABC News)

Blog Links:

• Justice Prevails (Obsidian Wings)
• Justice Served in Pants Case (Rhymes with Right)
• Should Judge Pearson Lose His Gavel? (WSJ Law Blog - Peter Lattman)
• The Implications of the $54 Million Missing Pants Verdict (Professor Bainbridge)
• Pantsed! (CounterfeitChic)
  

(Eric Turkewitz is a personal injury attorney in New York, who understands that when one lawyer does something incredibly stupid, it tarnishes the entire profession in the eyes of some.)

Labels: Frivolous Claims, Interesting Cases in the News

Not all suits are good ones, as we've seen with some of the claims of Judge Robert Bork (as well as the $67M pants story, now on trial), and here is another fine example:

A couple of doctors, including Dr. Michael Zeide pictured at right, who do a lot of work examining claimants for an insurance company, were called P.I.M.P.S., as in Professional Independent Medical Practitioners. So they sued the personal injury attorneys who made the comments.

The full report is in the Palm Beach Post (via Kevin.M.D.).

A bizarre part of the suit is that they sued as "John Does," a tactic attorneys usually reserve for sexual assault types of cases.

I'm betting the First Amendment will make very swift work of this matter. I would also note that people who routinely bend over backwards to make claims as an expert are often referred to as, ahem, the employee of the pimp.

Labels: Frivolous Claims, Insurance Industry, Medical Malpractice

Former Supreme Court nominee Robert Bork has sued the Yale Club for an amount "in excess of $1,000,000," plus punitive damages, as a result of a trip and fall accident on June 6, 2006. The Complaint is here via the WSJ. The accident happened while he was climbing to the dais for a speech, and there were no steps or handrail for the 79-year old Bork to hold on to.

The main injury he claims to have suffered were a hematoma in the leg that required surgery and months of rehabilitation. The New York Times notes that he proceeded to deliver the speech after he had fallen.

My thoughts on the Complaint:

1. This is a routine New York personal injury case. There is nothing particularly exceptional about it from the Complaint other than the plaintiff, a noted conservative jurist who has been part of the American Enterprise Institute, which engages in tort "reform" activities.
2. Since no hospitalization is mentioned, I assume that the surgery for the hematoma was out-patient and may have been a simple drainage of some kind. Perhaps the med-bloggers who visit here can offer up a bit more on what kind of surgery was likely;
3. The Complaint doesn't even come close to explaining why punitive damages would be warranted in such a routine negligence matter. My gut reaction is that it is frivolous.
   
4. The Complaint asked for attorneys fees. Why? You can't get them in New York for a standard personal injury claim.
5. The Complaint asks for pre-judgment interest. Why? You can't get that here either. Sad, but true. Interest runs from the date of the judgment not from the date of the accident, thereby giving insurance companies a reason to delay litigation as long as possible. Perhaps Judge Bork wants to come with me the next time I lobby the legislature to amend the law to include pre-judgment interest?
6. The Complaint asks for an amount "in excess of $1,000,000" (not merely $1M, but in excess of). Where are the damages for making such a huge demand?
   

Ted Frank at Overlawyered has already jumped on this case and called it "embarrassingly silly," noting the defenses of assumption of risk and a condition that was "open and obvious." He adds in the comments, interestingly, that "it's conceivable that there might be an [Americans with Disabilities Act] claim of some sort."

A quote from Bork, from Bloomberg news:

In a 1995 opinion piece published in the Washington Times, Bork and Theodore Olson, who later became a top Justice Department official, criticized what they called the ``expensive, capricious and unpredictable'' civil justice system in the U.S.

``Today's merchant enters the marketplace with trepidation -- anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates,'' they wrote.

I suspect that the folks at TortDeform will now add Bork to their roster of "Do as I say, not as I do" hypocrites of tort reform that suddenly changed their minds when it was no longer someone else's injuries at stake.

Finally, the Complaint is signed by Bork's counsel Randy Mastro, of Gibson Dunn & Crutcher. Mastro's bio asserts that he "is a litigation partner who handles both civil and white collar criminal cases." Also listed is Brian Lutz, who does "securities litigation, corporate control contests, antitrust matters (both civil and criminal), insurance/reinsurance coverage disputes, and white collar defense." This is a white shoe firm with a dozen offices around the world. They apparently have lots of BigLaw experience. There is no personal injury law experience noted for either.

The case is Bork v. Yale Club, 07-cv-4826, U.S. District Court, Southern District of New York (Manhattan)

Addendum:

• More thoughts on choosing the right counsel from Carolyn Elefant: What Judge Bork's Choice of PI Counsel Says About Lawyer Rankings like Avvo and Marketing;
• Robert Bork, Jr. defends his father's suit at Overlawyered;
• This post now appears at Volokh, where I added the following comments in response to another:

  This was not a standard complaint. If it were, his counsel would have explicitly alleged that the Yale Club owned, operated and controlled the premises. (It can still be inferred, but it was poor drafting.)
  
  The complaint is filled with specifics about the incident (usually not done locally, it is usually very general), also meaning it is not boilerplate.
  
  They make multiple, unrelated , allegations in a single paragraph, making it impossible to admit or deny any of the facts in the answer (thereby destroying any benefit to putting in specifics) . And while not fatal, it is against the rules.
  
  It is certainly not boilerplate to allege punitive damages in a trip and fall case unless there is something particularly outrageous. And it isn't a separate cause of action for punitives as they have alleged.
  
  And it is certainly not boilerplate to ask for things such as pre-judgment interest and attorneys' fees in such an action, when they are clearly not allowed.
  
  Claiming something is boilerplate only works for a rookie lawyer who didn't know better. Not for a former SCOTUS nominee with counsel from a BigLaw firm. (What would Bork say if he were on the bench and presented with such an excuse?)
  
  The reality is that there are thousands of solo and small firm practitioners who know this stuff cold, and Bork picked counsel with a lack of experience. That's what I glean from the Complaint, and is the most likely reason frivolous claims appear.

A sampling of some other commentary:

• Tort reformer Robert Bork sues Yale Club (Think Progress)
  
• Bork: Tort Reform for Thee But Not for Me (Booman Tribune)
• Milking It (The Moderate Voice)
• Leading Conservative Activist Seeks Punitive Damages (American Constitution Society)
• The Urgent Need for Tort Reform (Grasping Reality With Both Hands)
• Lawsuit of the Day: Robert Bork Hearts Plaintiffs? (Above The Law)
• Bork and the Barbary Pirates (Volokh - David Bernstein)
• The Fall of Bork (Reason Magazine - Brian Doherty)
• Tort Reform Bork sues for 1 million dollars (Crooks and Liars)
• Is Bork's Trip and Fall a Misstep? (New York Times Opinionater - Tobin Harshaw)
• Groucho & Javert (Slacktivist)
• Legal Funnies (Alas, A Blog)
• Advocate for tort reform sues for over $1M (Bring it on!)
• Robert Bork, tort-reform advocate, files slip-and-fall lawsuit (The Carpetbagger Report)
• When Tort Reformers Slip And Fall (Mother Jones)
  

Addendum 6/11/07 - I have a new post on the subject: What Should Bork Do Now?

Addendum 6/13/07 - I searched TownHall, a site with dozens of conservative commentators, to add additional viewpoints to this collection, but could find no reference whatsoever to the lawsuit.

Addendum 6/14/07 - New comments after New York Times weighs in with editorial: Bork's New York Personal Injury Case and The New York Times

Addendum 6/29/07 -- Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages

Addendum 7/17/07 -- Bork Attorney Randy Mastro is picked by Rudy Giuliani to be on Justice Advisory Committee


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

Labels: Bork Trip And Fall Suit, Frivolous Claims, Interesting Cases in the News, Personal Injury, Slip and Fall

Probably no group of people is more outraged over the $65M Pants Case than lawyers, as such outrageous behavior from another attorney works to disparage us all.

The American Association for Justice has therefore asked for a disciplinary investigation regarding the attorney (and administrative judge) and is also soliciting for the defense fund.

The details are here: Disciplinary Investigation Called for in Dry Cleaners Case.

The attorneys' alleged favorite pants are at right.

Labels: Attorney Ethics, Frivolous Claims, Interesting Cases in the News

Let the debunking continue.

Last week, a "study" was released by Pacific Research called "Jackpot Justice" that claimed the "real costs" of the tort system was $865B.

The Becker-Posner Blog has now weighed in with Judge Richard Posner sorting through some of the fictitious claims and double-dipping that was used to trump the numbers up as high as possible. Professor Gary Becker agrees with Posner that "the authors of the study considerably exaggerate the cost of the tort system" while he goes on to recommend some of his own ideas to help an imperfect system. (Hat tip to TortsProf)

This debunking can be added to the one from The Blawgletter (Does Tort Litigation Kill People?) the other day.

Ted Frank at Overlawyered loved it, sight unseen.

Labels: Frivolous Claims, tort reform

Some accept as gospel that frivolous lawsuits are a big part of medical malpractice litigation: Baseless claims brought by uninjured people, or whose injuries were not caused by negligence. Not so, according to "Claims, Errors, and Compensation Payments in Medical Malpractice Litigation," a study by the Harvard School of Public Health and the Harvard Risk Management Foundation that was published earlier this year in the New England Journal of Medicine.

The results, in fact, are the opposite of what the tort "deformers" claim, based on results from 1,452 randomly selected, closed medical malpractice files. The reviewers found that 97 percent had indeed suffered harm. In about one-third of these patients, the damage wasn't clearly attributable to negligent medical treatment, a wrong prescription, or a misdiagnosis. Most of those claims were correctly denied compensation, the team reports.

According to the study, 73 percent of plaintiffs whose claims had merit received compensation.

The study also found that just six people had received compensation that were uninjured and 145 had injuries that had not been convincingly linked to medical error. On the other hand, 236 plaintiffs who did suffer an injury from medical error received no compensation. The authors wrote:

One in six claims involved errors and received no payment. The plaintiffs behind such unrequited claims must shoulder the substantial economic and noneconomic burdens that flow from preventable injury. Moreover, failure to pay claims involving error adds to a larger phenomenon of underpayment generated by the vast number of negligent injuries that never surface as claims.

Eighty percent of the claims involved injuries deemed to have caused significant or major disability or death. In only 3% of the claims, no adverse outcomes from medical care were evident.

Since the majority of payments from insurance companies went to people who had been harmed by medical errors and not to people with baseless claims, the authors said that the "moves to combat frivolous litigation will have a limited effect on total costs."

Taking direct aim at politicians and business lobbyists, the authors wrote that:

"The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers. Previous research has described tort litigation as a process in which information is cumulatively acquired."

It is not the first time that a Harvard study has debunked the popular myths spread by insurance companies or politicians with respect to medical malpractice. It had happened back in 1991 by the Harvard Medical Practice Study that found that only eight percent of those injured by medical negligence brought lawsuits. But that is a post for another day.

[Addendum, 1/29/07 -- This blog was cross-posted to TortDeform on January 25, 2007, resulting in much spirited commentary]

Labels: Frivolous Claims, Medical Malpractice, tort reform