Tiger Woods is providing a feast of legal issues as he swiftly morphs from choir boy to bad boy.  And in the process he opens up a veritable bar exam full of questions.

Since at least half of lawyering is first identifying the potential problems, let's take a peak inside the cans of worms he opened.  Your familiarity with the facts is presumed. But since those facts are likely to change within minutes --  since the one thing the media loves more than creating heroes is destroying them, and any story will do for Tiger at the moment --  the current state of affairs is the media claiming extra-marital affairs with 6-10 women. That number changes depending on who is keeping the scorecard, but you can bet they're all are hoping for a round of 18.

The list below is long on the criminal, matrimonial/custody and contract areas of the law, but I also see a smattering of First Amendment, intellectual property, sports and ethics.

Without further ado, and assuming many rumors as true, when some likely aren't:

• Domestic violence possibility;
  

• Drug / alcohol related driving accident;

• Right to silence in discussion with police (see: Tainting Tiger @ Simple Justice);

• Drug addiction (can be an issue both for endorsements and potentially for playing golf with drugs in his system -- I'm just issue spotting, I don't know what golf's drug rules are):
  

• Possible lost endorsements (related either to drugs or for conduct with the women). Gatorade was the first to drop him:
  

• HIPAA violations for whoever disclosed he had overdose written on his chart when he went to the hospital after the accident;

• Divorce;

• Validity of pre-nuptial agreement (as well as disposition of real/personal property) given the unexpected conduct of Woods;
  

• Alienation of affection (still exists in some states, where did Tiger have his affairs? And conflict of laws might go with that). Can wounded spouse Elin Nordegren sue the women Tiger was with, not because she needs the money, but to make it unprofitable for them to sell stories to the press? (see: Should There Be Liability for Intentional Interference With Marriage? @ Lead Counsel Corner);
  

• Custody of two children;

• Custody of children if wife hauls the kids to Sweden (treaties?);

• Taxation - While divorce settlements aren't generally taxable,  what if a confidentiality agreement is attached to it? That  happened in Amos v. Commissioner with a personal injury claim against Dennis Rodman. (And is Woods going to re-invent himself as golf's Dennis Rodman?);
  

• Ethics, regarding lawfirms that may have leaked details of pre-nuptial agreement and/or discussions regarding modification;

• First Amendment / Defamation - For any woman the press falsely asserted was having an affair with Tiger, but wasn't. Is she a public person for whom an actual malice standard applies, or a private one with a different standard? The New York Times Room For Debate Blog batted around the issues of privacy and who is, and is not, a public person.

• Tiger purchasing the exclusive rights to the stories of women he has been with (a/k/a buying silence, see: JDJournal):
  

• For Tiger's Harem you can add contracts to sell stories to others, intellectual property rights regarding those stories (and photos) and the books/movies that are no doubt already being devised; and
  

• Can I trademark One Man Bar Exam? And how do I put that little TM thingie in?
  

While Hollywood is no doubt ramping up for Tiger Woods: The Movie, I'm busy wondering about Tiger Woods: The Bar Exam.

This man could single handedly stop the bleeding of jobs from the legal sector and at the same time give law profs and bar examiners plenty to work with.

OK, so without making any jokes about his putter, or about Tiger's Wood, what legal issues have I missed?

(Photoshopped image of "Tiger Rodman" by Dan Turkewitz)

Labels: Interesting Cases in the News, Tiger Woods

A partner at a leading New York law firm has brought a defamation suit against a local mental hospital, claiming that it defamed him by impersonation in an internet forum, and creating video that asserted he supported "pedophile rapists." The defamation was, according to the suit, retaliation for comments the attorney had made about the hospital.

Glen Feinberg, a partner at Wilson Elser Moskowitz, Edeleman & Dicker (which does a lot of medical malpractice defense among its other lawyering) has been a long-running critic of SLS Residential. According to this story in Courthouse News, Feinberg claimed that the psychiatric hospital was fined "$110,000 for numerous violations, including illegally restraining and medicating patients against their will, depriving patients of the right to their own clothing and money, and preventing them from communicating with the outside world or leaving the facility."

According to Feinberg's suit, comments that were falsely attributed to him started to appear on the web in 2008 followed by videos that appeared on YouTube that called him a "saviour to pedophiles" and a "slime ball who should be disbarred." Feinberg says that the videos were prepared by Andrew Rath of A. Rath Productions, who is also a defendant in the suit.

One lawyer I spoke with that tried a medical malpractice case with him to verdict some years ago had this to say: "Glen was a gentleman and a very capable trial lawyer. He was easy to get along with and trustworthy, both of which are important qualities when standing up in court."

In preparing this blog post, I noticed that a number of other blog postings had referenced Feinberg but have now been taken down.

Feinberg is a long-time critic of SLS, having apparently claimed that they traumatized his son back in 2001 and 2002. He has picketed the hospital in the past and been engaged in First Amendment litigation over it.

In other words, this battle is deeply personal. And one thing I've learned over the years is that there are few people on this planet more motivated than an angry parent.

(hat tip to Hochfelder)

Much more here:

• Attorney Says Mental Hospital Defamed Him (Courthouse News)

• SLS Residential, Inc., et al., v. Feinberg (SLS sued Feinberg for picketing outside their hospital)

• Former patients sue Putnam mental facility (Coalition Against Institutionalized Child Abuse)

• Appeals court restores $100G in fines against SLS mental health firm (Journal News, 11/22/09)

Labels: Interesting Cases in the News

The news that's been leaking out of Los Angeles is that Michael Jackson was administered the anesthesia drug propofol by his doctor, Conrad Murray, the night before he died. And that a manslaughter investigation is under way. Other news is that his doctor may have prescribed drugs to Jackson under multiple names.

So it's time to revisit the post I made the day after he died (Michael Jackson: The Mother of All Malpractice Suits?). At that time I wrote of three potential issues for a doctor that was seeing him if medication issues lead to his death, which I re-examine below:

1. Medical license issues;
2. Medical malpractice; and
3. Criminal prosecution.

I had a number of questions the day after he died, most of which remain unanswered since the autopsy results are not public nor are the toxicology reports. But I wrote this at the time regarding criminal liability:

A. Criminal liability is the big concern if there was one doctor prescribing a bucket load of drugs to Jackson without having the nerve to cut off the famous patient. While prosecutors don't generally bring these kinds of actions, they also don't usually deal with such a high profile figure. That could alter the decision-making process of prosecutors. That doctor would also have separate licensing concerns.

So, assuming that Murray gave the drug, and also assuming that Murray prescribed drugs to Jackson under multiple names (both of which are just rumors), how does this change the equation?

First, let's be clear that the only reason this manslaughter investigation is going on is because the decedent was big-time famous. This type of investigation would not go on for the other 99.999% of the population.

Second, I'll assume without bothering to look it up that giving out prescriptions under phony names violates a few laws.

That being said, if those two things are true, then I predict the following:

1. His license to practice medicine will be revoked. The alternative of suspension doesn't really exist because of the big, bright media spotlight.

2. A malpractice case will be brought and the insurance company (if any) will try to settle quickly for the limits of the policy (in New York the usual primary policy is $1.3M). There are a few reasons for this, the first being it is rare to have government workers do your investigation for you in a malpractice case, but that is the case here. Discovery will all be done by the police and District Attorney. Add in that the insurance carrier won't want to throw good money after bad in a case like this while the world is watching. So while a million bucks might not mean much in terms of Michael Jackson, it's still a million bucks and better in the pockets of the kids then in the pockets of the insurance company.

The big wrench thrown in to this kind of quick settlement is that the lawyer that brings the case for the family will likely have intense pressure to get more than the insurance policy; they will want a whopper of a punitive damage judgment against Dr. Murray.

Why? While I'm guessing that this doctor probably won't have much in the way of assets after he pays his criminal defense fees, he could still make a bucket of money writing a book or otherwise selling the rights to his story. A judgment against him allows him to be pursued for those fees, the same way that OJ Simpson has been pursued by the Goldman family after they collected a big civil judgment against him. The family will want this done so that Murray cannot profit from his conduct.

3. Criminal law. Dr. Murray will likely face fraud charges regarding the phony prescriptions. And I'm guessing he might face a Martha Stewart Charge (obstruction of justice) for lying to the police regarding his actions. That opinion is based on the doctor being interviewed by the police shortly after Jackson's death, but that the room was apparently not treated as a crime scene until much later. A search warrant was issued three weeks after Jackson's death. I therefore guess that Dr. Murray wasn't particularly candid about the degree to which he had been medicating Jackson (if the rumours are true) and that will expose him to an obstruction charge.

But will he face a manslaughter charge based on reckless conduct? If it was my family or yours the answer would be an easy no because the investigation never would have happened. If it happens here, it is only because of the notoriety of the case. So my best guess is no, though the all-important toxicology results have not been made public. If I'm wrong about the charge I think it will be because of community or political pressure or publicity-seeking by the DA, or something truly remarkable in the toxicology results.

So here is my guess from the cheap seats:
1. Loss of license;

2. Malpractice case that nets the limits of any insurance policy, with continued pursuit for a judgment against Murray so that the doctor can't profit by selling the story; and

3. Criminal charges regarding obstruction of justice and fraud regarding the prescriptions. If charged with manslaughter, he will be found not guilty based on what we know right now, but the toxicology results can change that in a New York second.

Update: See Michael Jackson's Mom To Start Wrongful Death Action Against Concert Promoter? (8/18/09)

Labels: Interesting Cases in the News, Michael Jackson

With Michael Jackson's sudden death yesterday at 50 have come swirls of rumors about prescription medications he was taking for dancing related injuries. And if toxicology tests show over-medication being a substantial cause of death, that leads to the inevitable questions regarding potential medical malpractice as well as potential criminal liability.

So these are the issues and questions that would/should float about if those rumors prove accurate:

1. Were the medications all provided by a single doctor? If the self-proclaimed King of Pop was getting all the medication from one place, then the prescribing doctor ought to have a good lawyer due to issues of criminal prosecution (possible but unlikely), action against the medical license (much higher probability) and civil suit (discussed below).

2. If there was more than one doctor, did they know about each other and what the other was prescribing?

3. Did all the drugs all come from one pharmacy? Did that pharmacy have an internal system to tickle the pharmacist if there is an inordinate amount of medication going to one person or that some of the drugs are contraindicated given the other meds? If so, did that pharmacist make a call to the doctor(s) issuing the prescriptions?

4. Where were the prescriptions written and filled? This would be a jurisdictional issue that could be particularly important for a pharmacist, who may have immunity if s/he simply followed the doctor's orders. There is no way to know at the moment if the drugs were prescribed, or even filled, in the U.S. given that Jackson spent a substantial amount of time overseas.

5. Who has standing to bring such a suit? That is a two-part question, as his personal property may be governed by an executor or administrator. But he also has three kids that are all minors and need a legal guardian. Will the mother of two of them, who reportedly gave up legal rights to the kids, be seeking that position in a fight with family members? (This also assumes proper paternity.)

6. From the point of a medical malpractice suit, does it even matter? Jackson was allegedly in debt to the tune of over $300 million, though I suspect a forensic accounting may take some time. But if this was the case of one or two doctors/pharmacists, then there would likely not be much more than a million dollar (or two) insurance policy. When you are that steeply in hock, a malpractice suit may be too insignificant to matter (assuming a limited insurance policy). The estate's executor and creditors may be unlikely to have an interest, concentrating on the big picture.

7. You can toss out #6 above if the investigating authorities make a slam-dunk decision on liability. That makes a lawsuit easy, and no one would give up an easy million if it were there.

8. In a wrongful death suit, by contrast, the losses suffered by the children would likely go directly to them, bypassing the estate. And if the estate itself is bankrupt, then the kids might actually need the money depending on how Jackson managed his affairs and the nature of any trusts he did (or did not) set up for his children. You'd like to think he was a savvy music mogul, but if he also saw himself as a forever young child, then estate planning could well be something he put off for the future. No one really likes to make decisions about their death, least of all someone with a child's view of the world.

Best guess from my perch in the cheap seats:


A. Criminal liability is the big concern if there was one doctor prescribing a bucket load of drugs to Jackson without having the nerve to cut off the famous patient. While prosecutors don't generally bring these kinds of actions, they also don't usually deal with such a high profile figure. That could alter the decision-making process of prosecutors. That doctor would also have separate licensing concerns.

B. Civil liability in a medical malpractice suit on behalf of the estate is not likely to garner much of a return relative to the debt. It only comes if authorities find an easy case against someone.

C. The kids will pursue a wrongful death case (via their guardian, whoever it may be) only if: Jackson failed to provide for them; there is little left in the estate after the creditors tear it to pieces; and the case is an easy one.

Update:

• Did Demerol Cause Michael Jackson's cardiac arrest and death? (Kevin, M.D.)

• LAPD 'searching for Michael Jackson doctor' (TimesOnline)

(Top photo courtesy of Rolling Stone, with more here. Headline from Extra, Rio de Janeiro)

Labels: Interesting Cases in the News, Medical Malpractice, Michael Jackson

A Brooklyn man filed suit yesterday against Match.com for humiliation and disappointment. That humiliation, of course, will be nothing compared to being known as the guy that sued Match.com for humiliation and disappointment. His name is Sean McGinn.

Labels: Interesting Cases in the News

A new account of the JetBlue toilet lawsuit by Gokhan Mutlu is now out, differing substantially from the original story. The version that was in the news on Monday resulted from a $2M suit filed in New York for forcing this passenger to sit in the toilet. The story sounded "ludicrous" to me, and I said so (See: Jet Blue Hit With Toilet Lawsuit).

While JetBlue didn't respond in public to the allegations, another version, albeit third hand, dripped out in the comments in my blog in the post above.

According to this account, Mutlu was riding free and the captain was the one who got him on the flight:

He begged [captain] to help him get on flight - excersising Caring value CA said he would ASK jumpseating (Not [deadheading]) FA if she was willing to give up seat for pass rider. She was.

Then when the captain went to answer the call of nature mid-flight:

When on bathroom break, non rev approaches barrier and again really thanks CA for helping him get on. CA replies no problem - I didn't really do anything -if you want to say thanks its the FA who gave up her seat..have a nice day.

And that, apparently, was the last the captain saw of the man until after the flight:

Sees nonrev after flight - very upset. He let [flight attendant] sit in his seat and she fell asleep. Other FA's would (correctly) not let him sit on FA jumpseat. He was too timid to wake up FA and didn't know what to do.

I can't say if this is inaccurate water-cooler gossip or an accurate account. The account is likely a mixed bag, as most such stories are when passed along like the game of telephone, but I think it's safe to say that JetBlue's account will likely vary substantially when they do respond to the suit.

The original story just seems a bit too bizarre. There would simply be waaay too many witnesses for any flight crew to allow such a violation of flight regulations to occur -- and it would involve the entire flight crew letting this happen. I remain skeptical of the original account.

More:

• JetBlue Sued by Man Forced to Ride in Lavatory (Lowering the Bar)

  [T]his guy (and/or his lawyer) is demanding more than the entire lifetime economic output of most Americans as compensation for being required to sit on the toilet for about three hours.
  
  I had a roommate that used to do that for free.

• Man Claims Jet Blue Made Him Sit in Airplane Lavatory for Hours ($2 Million Lawsuit Included) (The Gothamist)

  If this is what a Jet Blue "buddy pass" is, we totally pass.

• Follow-up: Forced to sit in the toilet stinks, but does it deserve $2 million (Gadling)

  My point, which is really a question, is this: Why $2 million? Although I am on Mutlu's side, for what that it's worth, I'm wondering whether his suing JetBlue for $2 million doesn't seem a tad, well, greedy, like he saw an opportunity (no doubt goaded by some lawyer) for a quick pay day and took it.

Photo credit: Wikimedia Commons

Labels: Interesting Cases in the News, Personal Injury

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

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

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

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

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

(hat tip to TortsProf)

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

Labels: Interesting Cases in the News, Medical Malpractice

In 2006 Jeb Corliss tried to jump off the Empire State Building with a parachute and was arrested. After being charged with reckless endangerment, a lower court dismissed the case. Yesterday an appellate court reversed and demanded he stand trial.

The appellate decision in People v. Corliss focused on Corliss being overcharged with reckless endangerment in the first degree, because that meant he had to have acted with a depraved indifference to human life. While he may be a moron for thinking it could be done safely, or perhaps he's just delusional, his conduct was not seen to be wicked as demonstrated by grand jury testimony of steps he took to try to do is safely. Thus, the court held, he should only be charged with reckless endangerment in the second degree, instead of the firs degree, since the lesser charge does not require the same mental state.

In the meantime, and this is the reason it appears here on a personal injury blog, Corliss had the chutzpah to sue the Empire State Building for intentional infliction of emotional distress because he got scared he might get hurt when security stopped him; As if someone that jumps off of buildings with a parachute would be distressed at this. Maybe it wasn't chutzpah, of course, but just a desperate need for publicity. The quicker that case gets tossed out, with sanctions, the better for our legal system.

Now comes the really, really hard part, since there is zero chance he will enter a plea, in my opinion, because a trial gets him yet more publicity. But how do you find any New York juror that would state that they have an open mind about whether he endangered the people in the street below by trying to parachuting down into the street? It's like asking if someone can keep an open mind on whether the sun rises in the east. I discussed those dangers in a post last month (see: Empire State Building v. Jeb Corliss).

Unless, of course, he goes with the insanity defense. Then, I think, he's got a shot at an acquittal. If he doesn't kill himself first in another stunt.

On a final note, Corliss complained in these comments on a blog just two days ago that the risk of jumping injuries is for suicides, and not BASE jumpers, citing four past examples of safe jumps. Readers will note that his entire argument is self-centered, focusing only on his own conduct. And he utterly ignores the fact that folks will stop in their tracks if they see someone float down from the sky in midtown Manhattan, while buses, trucks, cabs all zip by. The Appellate Division, however, did not ignore that, writing in words that mirrored my own prior post: "Even a properly functioning parachute that landed a jumper safely might cause a variety of accidents."

Other posts on this:

• When He Says "Jump", You Ask "How High?" (Greenfield @ Simple Justice)
• Jeb Corliss Lawsuit Update (Marc Randazza - With video of the attempt)
• Man who attempted Empire State jump faces reckless endangerment charges (Daily News)
• Parachute Jumping Off The Empire State Building -- Is It A Crime? (Swartz @ New York Legal Update)
  

Labels: Interesting Cases in the News, Personal Injury

Actor Henry Winkler took the stand yesterday in the John Ritter medical malpractice trial.

According to a story at E-Online, two hours before Ritter was taken to the hospital (where he died of aortic dissection):

"We were talking in the middle of the soundstage," Winkler said. "He was sweating, and told me, 'You know, I really need to get some water.' I went one direction and he went the other, and that was the last time I ever saw him."

More on the story at the LA Times and Huffington Post, among others.

(Hat tip to Christopher J. Robinette at TortsProf)

Labels: Interesting Cases in the News

Four years ago comic actor John Ritter suddenly died from an aortic dissection after being rushed to the emergency room from the set of his sitcom, 8 Simple Rules ... For Dating My Teenage Daughter. A medical malpractice action ensued. The defendants include a radiologist that did a scan two years before and failed to note any enlargement of the aorta in the 54-year old actor, and a cardiologist that saw him in the emergency room at Providence St. Joseph Medical Center in Burbank, California.

According to this story in USA Today:

[T]he cardiologist [was] summoned to the emergency room at Providence St. Joseph Medical Center in Burbank after Ritter was taken there complaining of nausea, vomiting and chest pain. Plaintiff's lawyers say a chest X-ray should have been performed before Lee treated Ritter.

The doctor's lawyers say that there wasn't enough time for that and that a chest X-ray ordered earlier inexplicably was not done. They say Ritter's symptoms were more consistent with a heart attack than anything else and had to be treated quickly.

Kevin M.D. has previously written on this case. But, not being in the courtroom, he has to work from public accounts. He offers us this along with a longer analysis at the link:

Was it malpractice? Tough to say. The question I'd be interested in would be how long it took for the ER to order that chest CT scan.

His family says that he likely would have survived with prompt treatment and that the treatment for the aortic dissection is the opposite of treating him for a heart attack. The hospital, by the way, has already settled.

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

With respect to the radiology films from two years earlier, that will be a classic "battle of the experts" that cannot be evaluated by people outside the courtroom unless they have seen the actual films at issue.

Jury selection starts today.

Labels: Interesting Cases in the News, Medical Malpractice

It was hard to miss the stories this week on a lawsuit about a forced rectal exam in an emergency room. The blogospheric responses to it were, in a word, extraordinary.

The story itself is certainly odd, but not complex: Brian Persaud walks into a New York hospital with a head injury over the brow that needs eight stitches, and the ER staff then forces him to have a rectal exam against his will. Words are exchanged, he physically lashes out, he's sedated, apparently placed on a ventilator (?) and arrested. Charges were dismissed, but he sues the hospital, and in the process raises issues of ethics, informed consent, medical necessity and assault.

Now here's the striking part, and it jumped out at me when I first saw the story at Kevin, M.D. Kevin's easy to pick on because he has a great blog even though I often disagree with him, so when I challenge his opinion as being out to lunch, it comes with the caveat that I still routinely check his site for stories and opinions.

So here's the part that jumped at me: He immediately called it a "frivolous lawsuit." And not just him, but many, many others in the comments couldn't wait to rush to judgment. Based solely on an article that first appeared in a NY Times blog.

The patient's ability to give consent for the procedure is, of course, dependent on the actual facts. And given the commotion this must have caused -- the man was, after all, restrained and arrested -- you know there are many witnesses to the man's ability to make rational consent decisions. But have those that leaped to the conclusion that the case is frivolous actually seen or heard any witnesses? Well, of course not. The opinion offered on the merits has nothing to do with the actual facts, but on the political bent of the people offering up their opinions. (Volokh has 114 comments already.)

This reminds me, to some degree, of the criminal trial surrounding New York subway gunman Bernhard Goetz when he shot four teens on a subway in 1984 that he said were threatening him. It reminds me of that because, when the trial was held, there were competing demonstrators outside the court. One side wanted to crucify him as a racist and the other side wanted to hail him as a hero. And they all had one thing in common: Not a single one of them was actually in the subway to see what happened, nor had the evidence even been fully presented in court.

The rectal exam case makes for an interesting legal Rorschach test, just as the Goetz case had.

Labels: Interesting Cases in the News

An epic medical malpractice battle that is shaping up in West Virginia has two attorney brothers squaring off against each other. The case involves injury to over 100 patients due to the reckless hiring of Dr. John King without checking his credentials. The doctor, it seems, never actually finished his residency. A jury has already found against the nation's largest for-profit hospital chain, HCA Inc. on liability.

The battling brothers are Tyler and Todd Thompson of Louisville, Kentucky. The story can be found at their local paper, the Courier-Journal. (hat tip: Kentucky Law Review)

Now here's the kicker to this story: Dr. King -- who falsely boasted that he had been director of spine surgery for the famed Cleveland Clinic and team doctor for the New York Yankees, operated on the limbs and spines of 500 patients in seven months and has 122 suits filed against him -- has had his license stripped from him in ten different states. But he is still practicing medicine in Kentucky.

Labels: Interesting Cases in the News, Medical Malpractice

Model Naomi Campbell lost her bid to have a New York personal injury suit against her tossed out. The allegations of physical and psychological abuse were brought by her maid.

The motion to dismiss was brought before an answer was submitted so, for the purposes of the motion, the claims set forth in the complaint were accepted as true. Only the contract claim was tossed out, for lack of specificity, but the claims for intentional infliction of emotional distress, false imprisonment and punitive damaged were not.

The New York Post reported the story here today.

I've procured a copy of the decision: Gibson-V-Campbell.pdf

Update: AP story here.

Labels: Interesting Cases in the News, Personal Injury

We've seen a doctor live-blogging his malpractice case with Flea. We've seen the Charlie Weis malpractice case live-blogged.

Now we see attorneys apparently using YouTube to influence the jury, by downloading segments of depositions and surveillance video to the popular video-sharing website. (This doctor has 122 malpractice cases pending against him, which I had mentioned in Personal Injury Round-Up #21)

According to this AP story (via Kevin, M.D.):

The three-minute video features outtakes from the pretrial testimony, or depositions, of six people suing [former West Virginia doctor] John A. King. Five of the snippets are followed by surveillance-style video or photos that purport to contradict those persons' claims.
...

The defendants had apparently shared the footage with a public relations firm. The plaintiffs had also posted information about the case online. [Judge] Spaulding barred both sides from releasing anything further to the media.

"I decided that both sides were trying potentially to influence the public before we went to trial," Spaulding said Wednesday.

What next? A live-blogging judge?

Labels: Interesting Cases in the News

The medical malpractice trial involving Notre Dame head football coach Charlie Weis is now starting again. When we last left the Weis story on February 16th, a mistrial had been declared when a juror fell ill while Weis was on the witness stand, and the two defendant physicians rushed over to assist.

Defendants' counsel vainly tried at that time to claim the trial should continue and that the jury had not been unfairly prejudiced by the conduct of the physicians, though I don't know how they kept a straight face while making that argument.

The story behind the lawsuit is that Weis decided to have gastric bypass surgery in June 2002. He claims that the defendants acted negligently by failing to recognize life-threatening internal bleeding and infection two days after the surgery.

According to this AP story:

In opening statements to the jury, Weis’s lawyer, Michael Mone, said the doctors acted negligently by allowing Weis to bleed internally for 30 hours after the surgery before performing a second operation to correct the complication. Weis was in a coma for two weeks and nearly died.

But William Dailey Jr., a lawyer for Ferguson and Hodin, said internal bleeding was a well-known complication of gastric bypass surgery. Dailey said Ferguson, Hodin and several other doctors who cared for Weis believed the bleeding would stop on its own, as it does in most cases following such surgery.

Claiming a particular bad result is a "complication" of surgery, by the way, is a common defense tactic. The proper response from the plaintiff's side is asking whether this is an avoidable complication, if proper care is exercised.

This trial, by the way, is being live-blogged by a college football blog, The Wizard of Odds (Hat tip, TortsProf).

OK, now here is the weird part: The live-blogging of the trial will come out of Suffolk Superior Court in Massachusetts. Why is that weird? Because that is the same court that Flea was live-blogging his own medical malpractice case from earlier this year.

Addendum:
7/17 -- See Battle Lines Are Drawn in Day 1 (Wizard of Odds, after first day of trial).
7/18 -- The Return of Weis' Hired Hand (plaintiff's expert testifies it was malpractice to give Weis the blood thinner Heparin post-operatively while he was hemorrhaging) (Wizard of Odds)
7/19 -- The Big Guy Takes The Stand (Wizard of Odds)
7/19 -- Weis Takes Stand in Lawsuit (AP via Forbes)
7/20 -- Team Weis Scores A Major Victory (Wizard of Odds)
7/20 -- Doctor: Weis went against my medical advice (Boston Herald via Kevin, M.D.)
7/24 -- Hodin Takes Stand, Defends Decisions (Wizard of Odds)
7/24 -- Doctors not backing down against Weis in malpractice suit (ESPN)


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

Labels: Interesting Cases in the News, Medical Malpractice

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

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

From today's New York Post:

May 23, 2007 -- Dr. Sherrell Aston, one of the world's most acclaimed cosmetic surgeons, is being sued by a Connecticut man who claims the renowned doctor's "gross negligence" led to his wife's death.

Susan Malitz, 56, had gone to Manhattan Eye, Ear and Throat Hospital in 2004 for what was supposed to be a routine face-lift operation by Aston, whose patients have reportedly included Tipper Gore, Anna Wintour and Catherine Deneuve.

Two hours later, Malitz was dead - the second patient to die during cosmetic surgery at the hospital in a two-month period.

The claim is lidocaine toxicity, as found by the New York Medical Examiner. Dr. Aston says the medical examiner is wrong. An article from 2004 in the New York Times on the matter is here.

Addendum 5/25/07 - The case has now settled for $3.1M, with the anesthesiologist, Dr. Gary Mellen, paying $2.7M and the hospital $400K. Settlement also appears in the New York Post.

Labels: Interesting Cases in the News, Medical Malpractice

The story broke on Monday regarding the cardiac problems with Avandia, a diabetes drug by GlaxoSmithKline.

On Tuesday I took a look at Google's sponsored links for the search phrase, "Avandia Attorneys" and it showed three results, shown here in this screen shot: AvandiaAttorneysMay22.pdf

I checked again this afternoon and, no big surprise, the number has jumped. Now there are 11 seen at this screen shot: AvandiaAttorneysMay23.pdf

[Addendum 5/24, 9:00 a.m. - Overnight, two new websites appeared in the pay-per-click Google ad space with Avandia as part of the domain name. A week from now, the landscape will no doubt be far more cluttered than today.]

For those interested in the subject of attorney advertising, it will be an interesting metric to watch.

And if, by chance, you were wondering if this violates New York's new "30 day rule" that prohibits attorney advertising within that time frame for an incident, the New York State Bar Association has this helpful FAQ:

Question:

Do web sites which are aimed at lawsuits against specific manufacturers or causes of action (i.e., vioxx, etc.) fall in the "specific incident" provision of DR 7-111 such that, for example, once the FDA reports the danger of the drug publicly, the 30 day rule is triggered?

Answer: The use of the term "incident" in DR 7-111 apparently does not relate to the announcement of information. Rather it appears to relate to the injurious incident -- i.e., an incident such as the Staten Island Ferry crash.

Labels: Attorney Ethics, Interesting Cases in the News, Odds and Ends

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

Now that the Supreme Court has placed a police video online in his decision today in Scott v. Harris, the question presents itself: What other materials will be placed online? (Howard Bashman says in a headline: "Online Video Clips: Not Just for Porn Anymore.")

The Court has set a precedent.

The evidence in pornography cases does indeed spring to mind in the never ending debate of what is, or is not, obscene.

According to The Brethren, there was Movie Day at the Supreme Court when the films were viewed. Is the Court now put in the odd position of hiding evidence over which there may be a difference of opinion? That is to say, using one standard for a car chase and a different one for porn? Did the Court just step on to a slippery slope with a multitude of grays between those extremes?

Would a lethal injection execution that was videotaped be placed online if and when the Court debates whether it constitutes cruel and unusual punishment?

Regarding porn, Potter Stewart said, "I shall not today attempt further to define the kinds of material I understand to be embraced . . . [b]ut I know it when I see it . . . " (Jacobellis v. Ohio, concurring)

But will the Court show it?

Labels: Interesting Cases in the News

In a decision released today, the United States Supreme Court includes video as part of its decision. Buried in footnote five of Scott v. Harris, the text of the decision is linked (not just cited) to a car-chase video that automatically downloads 92 MB to your hard drive. According to Howard Bashman (How Appealing) this is a first for the court.

(The Court ruled that police do not act unconstitutionally when they try to stop a suspect fleeing at high speed by ramming the suspect's car from the rear, forcing it to crash (as per SCOTUSBlog).)

Such a citation certainly encourages me to take more liberties with my briefs, incorporating pictures and diagrams into the brief instead of forcing judges to flip back and forth between exhibits and briefs.

Addendum: More Thoughts on Placing Video Online

Labels: Interesting Cases in the News, Odds and Ends

A story in the Houston Chronicle (AP) discusses the possibility:

Five years before the massacre at Virginia Tech, a deeply disturbed student went on a murderous rampage at the Appalachian School of Law, killing three and wounding three others.

Some victims and family members sued the law school and eventually settled for $1 million. Similar lawsuits are virtually certain after the Virginia Tech shootings, but legal experts say it could be very difficult to win damages.

And another one by at FindLaw by Anthony Sebok:

But once an investigation is complete, what will it tell us? If it turns out that there was negligence, or worse, on the part of the university or others, can the wounded victims or the families of the deceased victims of the attack sue Virginia Tech for damages?

The answer is not very reassuring for the families or the surviving victims, and it raises important questions about whether we want to insulate the state from accountability in court for its mistakes.

One thing I can say with some level of certainty, that even if such suits are successful, they will be cold comfort for those in mourning.

Labels: Interesting Cases in the News

Five rescue workers who responded to the September 11th attacks at the World Trade Center, and who brought action against Christine Whitman (then the head of the Environmental Protection Agency) have had the dismissal of their case affirmed.

The suit had alleged that various public officials had issued reassuring -- and knowingly false -- announcements about the air quality in lower Manhattan; that the plaintiffs therefore believed it was safe to work at the site without needed respiratory protection, and did; and that the defendants’ conduct violated plaintiffs’ right to substantive due process.

The appeals court affirmed the dismissal of the case because the complaint’s allegations did not "shock the conscience even if the defendants acted with deliberate indifference." The court, moreover, said that when agency officials decided how to reconcile competing governmental obligations in the face of disaster, only an intent to cause harm arbitrarily can shock the conscience in a way that justifies constitutional liability.

The ruling by the Second Circuit Court of Appeals was issued late last week, and is available at the Second Circuit website (Lombardi v. Whitman).

Labels: Interesting Cases in the News, Personal Injury

Certainly one of the more unusual lawsuits I've seen, from New Rochelle, NY:

The city's largest park, Ward Acres, had long been the domain of dog owners who allowed their pets to run around unleashed, to the detriment of others who wished to use the park. So when the city put in new regulations -- and fees for the dog owners, with larger fees for non-residents -- a local uproar was created.

Now comes a lawsuit challenging the new regulations, and this one looks more than a bit odd. From The Journal News:

Three dog owners unleashed a lawsuit against the city over new dog-walking regulations at Ward Acres Park.

The suit is a response to an ordinance effective April 1 stipulating hours when dogs must wear leashes and requiring dog-walking permits.

The plaintiffs, a city couple and a Mount Vernon resident, seek a suspension of the ordinance on the grounds that it discriminates against nonresidents, charges a fee to use a public park, violates state dog licensing rules and subjects dog owners to unreasonable searches and seizures by police.

"The word 'unprecedented' is very helpful," said Jeffrey P. Wiegand, one of the lawyers representing Dennis C. During of Mount Vernon and Michael S. Friscia and Marci Malone of New Rochelle. "(The new ordinance) charges ordinary citizens almost an admission fee to Ward Acres Park, which is open parkland."

I've seen plenty of local parks with user fees and/or restrictions to the taxpayers for that municipality, so this suit certainly seems to be unusual.

Woof.

Labels: Interesting Cases in the News

Over at Concurring Opinions, Alfred Yen speculates about the oncoming litigation against pet food maker Menu Foods, with the food apparently tainted by rat poison.

While appreciating his thoughts on possible res ipsa or strict liability potentials in what may be uncharted waters for a mass pet case, there are issues aplenty to prevent easy resolution. Proving negligence will likely be the easiest part (especially with gov't investigations), but that isn't enough for the average owner facing this problem. Here are the big three that I see:

• The evidence is probably gone. The contents were consumed by the pet and the packaging was likely tossed away when empty (especially if they were single serving sizes); [Addendum: If the food was scanned at check-out at a major market and some type of store discount card was used, it might be possible to track the tainted food from store to home]
  
• The pet may be gone, or the evidence of injuries not well documented, making causation very difficult to prove. Pets, after all, get sick without tainted food; and
  
• The cost to prove causation may well exceed the value of the case. In New York, at least, the emotional distress of the owner is not compensable, meaning that even if one can prove a pet consumed the tainted food and that it was this food that made the animal sick, the recovery is likely limited to the vet fees and/or the cost of the pet. How much will the veterinary expert set you back as compared to what you may recover?

This may be one high profile case where the efforts of creating new law and proving damages vastly exceed that which may be recovered. While I certainly see aggrieved owners insisting on suit -- as this may be their only means of justice for the loss of a beloved pet -- I think any attorney taking such a case must appreciate it will likely be similar to pro bono work.

[Addendum: A class action simply for the cost of the food is an altogether different issue, but one that is likely to leave very unhappy clients due to the emotional attachment to their pets and the minimal amounts likely to be recovered by any given owner.]

And if the eye is on punitive damages, the road ahead is completely uncharted in light of Philip Morris v. Williams, and the court's admonition that harm to others cannot be considered as part of a jury's determination.


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

Labels: Interesting Cases in the News