Every year, like clockwork, businesses put items up for sale on Thanksgiving Friday with the idea of creating consumer excitement.

The cameras roll, the doors open, and the masses go hurtling through the door as if eternal life awaits the first person in the big screen TV aisle. And every year people get hurt. Or, like last year at a Wal*Mart in New York, killed.

Having engineered the stampedes, Big Business has a duty to protect against the consequences of their actions. They can not claim that the stampede took them by surprise, since the stampede is what they want. The stampede is cleary foreseeable and there is a duty to provide effective crowd control measures.

Consumers jockeying for under priced goods makes for good video for the store, which makes people believe that there may be more in store at the store, and helps to build a reputation for good deals. But along with the good comes liability if crowd control is not provided.

Once upon a time Thanksgiving Friday was a delightful holiday with no name. Unless you were in retail or worked in the hospital, chances are you took the day off.

Over the last 10-20 years, of course, Big Business has been hell-bent on building "Black Friday" into a temple of consumerism.

Given the death last year at Wal*Mart, and the annual injuries that occur from reckless merchants that don't know jack about crowd control, Black Friday has an altogether different meaning for some.

Update:

• Black Friday brawls, melees, spitting contests, and a real blackout Friday (Examiner.com)

• First Toy Store Melee Reported In Connecticut (Consumerist)

• 78-year-old woman hurt in Black Friday frenzy (9News.com - Colorado)

• Black Friday -- First Blood (Reuters)

• Survive Black Friday? (Timothy Smith - Injury Board)

Labels: Personal Injury

For many years personal injury attorneys fought back against the concept of "independent" medical exams. We didn't argue that defendants weren't entitled to have a doctor evaluate our clients injuries. Rather, we objected to the absurd concept that a doctor hired by one side to do a medical-legal exam is "independent."

And now that unfortunate label seems to be fading into oblivion. In Rowe v. Wahnow, decided last week by a New York appellate court, plaintiff's auto case was tossed out based on the "IME" reports of the defendant's doctors.

But in dissent comes Justice Douglas McKeon, ripping into the concept that such "IME" reports are actually independent. And he does so with support from New York's Chief Judge, Jonathan Lippman:

...the "independent" prong of the term, has long been winked at by the bench and bar. Few consider the physical examination conducted for purposes of litigation as independent; indeed, one court has described it as part of the "adversarial process" (Bazakos v Lewis, rev'd on other grounds) with Chief Judge Lippman forthrightly observing that "[t]hese exams, far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee (id. at 6 [Lippman, Ch. J., dissenting).

When I was younger I would routinely run my pen through those parts of the pre-printed Preliminary Conference Orders that had the word "independent." Now the courts were simply looking for dates on when the exams would be done, and when reports would be furnished, but I'd belly-ache about the language. More than a few opposing lawyers and judges would look at me like I was from Mars.

In recent years, however, I get an understanding nod. Enough of us have raised the issue -- and this language is important because we don't want judges referring to these things as "independent" when a jury is sitting in the box -- that the language is now being challenged in the highest halls of justice.

So let me be the first to proclaim that the "independent" medical exam is dead. Sure, it may still take a few years to see it buried altogether, but make no mistake about it, it is on an irreversible course to the trash heap of litigation history.

Labels: Personal Injury

My wife hurt her tushy bone this past week at a water park. Should she sue?

First off, the lede is not a joke. She was at Jungle Jim's waterpark in Rehoboth Beach, Delaware. Their largest slide has a particularly sharp drop near the top, causing an injury to her coccyx severe enough to warrant a visit to the emergency room and a supply of Percocets. Whether it is broken or badly bruised didn't seem important to the ER staff as there was no treatment for it except pain killers.

Two facts seemed particularly important, from the legal end:

First, she was told by someone at the first aide station (where they gave her Tylenol) that sometimes people wrench their back on that attraction; and

Second, no one took her name or filled out any kind of report.

So they have a ride that they know causes injuries and are failing to track the injuries. This means, of course, that if it is their policy not to take reports, and if they are ever sued for an injury and are asked about prior reports to see how dangerous the ride is, they can simply reply that they don't have any. That's called turning a blind eye to a problem. And the witnesses are gone.

But also lurking in the liability background is the doctrine of "assumption of risk." In New York, where I practice, that means that "by engaging in a sport or recreational activity, a participant consents to those commonly-appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. Participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent, or reasonably foreseeable consequences of participation, but not to unassumed, concealed, or unreasonably increased risks."

That language above comes from last week's appellate decision in Farrell v Hochhauser, where a high school wrestler contracted herpes simplex I while participating in a wrestling match. The court tossed out the suit because the risk of infection in a sport with close bodily contact is known.

And in another recent New York appellate decision, the court tossed the suit of a skydiver that was injured. The lower court had permitted the matter of Nutley v. Sky Dive the Ranch to go forward, but a panel of the First Department reversed. This case was the subject of extended discussion and commentary, at John Hochfelder's New York Injury Cases Blog. The court wrote:

Here, the risk of the main parachute failing to open during a tandem sky dive was perfectly obvious. Indeed, plaintiff was given a reserve parachute. Plaintiff failed to raise a triable issue of fact as to whether the injury-causing event resulted from defendant's negligence, creating unique and dangerous conditions beyond those inherent in the sport.

By contrast, an unusual Little League suit resulted in a $125,000 settlement after a kid was badly injured sliding into second. It sparked much comment at Overlawyered and an article in LawyersUSA Online where I was quoted on the subject. It seems apparent to me that the usual hurdles of the assumption of risk doctrine were overcome based on that case's particular fact pattern and an issue with the bases that were being used.

So, returning to my wife's tush, it would appear that (under New York law) this would be a particularly troublesome case to bring due to assumption of risk. Except for that part about Jungle Jim's failing to track the injuries that take place on the attraction. The failure to track makes it impossible to determine if this attraction at Jungle Jim's has more injuries than others.

Most people, I think, when going on a roller coaster or water park type ride, make the assumption that it is the fear of injury and death that provides the fun, and assume that actual injuries pertain mostly to those with cardiac conditions or pregnancy. There is also some jostling to be expected, and the odd bruise here and there.

But if the ride repeatedly causes injuries, is that something "commonly-appreciated" or a danger that is readily apparent from the sport or recreation? This could, conceivably, crack open the liability door, though that could take substantial work if records aren't being kept.

And what is the law in Delaware where this event happened? While I assume it is similar to New York, I'm not a particularly litigious person, notwithstanding my career choice, so I'm not going to find out. I assume anyway that after a few weeks my wife will be fine. Even if the liability door was open, I would reject the case based on these injuries.

On a final note, when searching for tushy graphics to use on a blog, it is advisable to turn on the SafeSearch feature of Google.

Labels: assumption of risk, Personal Injury

A mom with two kids in her car in Syracuse was pulled over by a cop for allegedly talking on her cell phone. But she wasn't. And because this is easy enough to prove with records, the cop was obviously pissed.

So he did the next logical thing, claiming he was going to give her a ticket for going 50 in a 45 mph zone. Because that is just the sort of thing that police do every day.

The mom at issue, Audra Harmon, said she wanted to see "the tape" from the cop's radar gun and got out of the car. Bad move. Deputy Sean Andrews told her to get back in the car. She complied.

Then he demanded she get out again. I'm not making this up. Finally he yanked her out, and while she stood there in the most inoffensive manner possible, no more threatening to the officer's safety than a butterfly, he tasered her. Twice.

Let's roll the videotape, which you can see with the full story here (because I'm unable for some reason to embed the video here.)

I usually leave the stories of cops tasering people without good cause to Scott Greenfield. But I'm back from a tranquil beach vacation and this jumped out at me.

She will sue, of course. As she should. And with any luck at all Deputy Andrews will be flipping burgers someplace where an assault with a spatula will be less likely to do harm.

One last note: This comes to light in August, but it happened in January. Local officials say the matter is under review. That's a long time to review a simple incident, if you ask me, and isn't exactly a credit to the investigating authorities.

Labels: Personal Injury

The New York Court of Appeals today tossed out a personal injury case premised on a violation of a local leash law. (Petrone v. Fernandez, June 9, 2009)

The dog in question here did nothing wrong. Rather, the defendant's rottweiler was lounging on the unfenced lawn of its owner and the plaintiff, a mail carrier, made a bee-line back to her car in panic. She broke her finger trying to leap through the window to safety. The dog never barked or attacked and returned to its owner when called.

Plaintiff wanted to prove negligence against the owner by virtue of the unleashed dog, as being unleashed was a violation of a local ordinance. But New York's high court tossed that out, since a suit based on personal injury from an animal rests solely in strict liability. The rule of strict liability is simple. It is premised on "harm caused by a domestic animal whose owner knows or should have known of the animal's vicious propensities." So sayeth the court.

And what of the leash law violation being evidence of negligence? Irrelevant. According to the court:

[D]efendant's violation of the local leash law is "irrelevant because such a violation is only some evidence of negligence, and negligence is no longer a basis for imposing liability"

The pictured pup, by the way, is our own. And he's very friendly. Unless you fear being licked to death.

Labels: Personal Injury

You see it every so often in the news, because the media just eats up these kinds of stories: The dead animal sitting in a plate of food at the restaurant. But the dead animal at the heart of the story is not supposed to be part of the food. This time it slithers into our view with a snake head that was found under broccoli at a TGI Fridays. Who knew that TGI Fridays even had broccoli? (h/t Overlawyered)

The story's lede is this:

The sight of a severed snake's head under his broccoli made Jack Pendleton lose interest in dessert. Pendleton said he found the head, the size of the end of his thumb, while eating Sunday at the T.G.I. Friday's in Clifton Park. The chain restaurant said it regrets the appetite-killing error. Pendleton said he has no plans to sue.

I almost handled one of these myself a few years ago. A complaint came in to my office of a mouse that was baked into a hamburger bun. The bun, as seen in the picture here, had obviously not been eaten. But the site revolted the potential client and, to no great surprise, caused her nightmares and loss of appetite. She was a most unhappy camper.

Not being on trial at the time, and my curiosity piqued, I had her come in, took possession of the bag of buns, and sought out an expert to examine the critter. Who to call? I started with the Museum of Natural History, then tried the Bronx Zoo, a couple of vets, and after a dozen or so phone calls, found my way to a mouse lab at a leading cancer hospital. I had myself a bona fide mouse expert.

So I sent the goods off to my mouseologist for examination.

In the meantime, I ponder what, exactly, I am to do with this case? I sent out letters to potential defendants letting them know I represent the client. No demand of any kind, just a notification of representation since they already knew about the issue, and another to the NYS Department of Agriculture and Markets so that they could investigate.

Of course, that didn't resolve the question of what, exactly, is a mouse (or a snake) in the food worth as compensation to an individual in such circumstances?

I queried some local counsel while scratching my head trying to decide what to make of this and while waiting for the expert to report back, appellate lawyer and wordsmith Jay Breakstone responded. With poetry:

A full mouse, I think,
Is not so distinct,
I seem to have seen,
One here in my sink.

But half a mouse, well,
That's a mouse not so full,
Yet better than that,
It's quite actionable.

A full mouse, I fear,
Is just not so rare,
Despite the view of,
A tail and some hair.

But half a mouse asks,
Where the other half is,
And that's the mouse half,
Where a lawsuit might live.

And then my mouseologist got back to me with the results. She did this after taking photographs, cuts, and firing up the old x-ray machine to make sure. And as you can see from this last photo, it wasn't a mouse. It's a funny looking burn of the bread. The potential client, who had been sick to her stomach over this even though she hadn't eaten any, was relieved. Letters immediately went out to those I'd previously contacted letting them know that the goods were good.

But the snake head at TGI Friday's appears to be real, and so the question is clear: Where is the rest of the snake? Now this is not really an intellectual question for the customer who found it under his broccoli, because the response of getting sick to your stomach over something like this is a visceral reaction based on emotion.

In the article, the customer said he had no intention of hiring a lawyer. A perfectly logical first reaction for someone who would likely want to shake off the event and forget about it. As quickly as possible. But this is also part of the story:

When he started to eat his broccoli, he saw something gray on the plate he at first thought was a mushroom. "I start to turn it over. I see this gray-green patch," he said.

Next he saw a V-shape that turned out to be the mouth of a snake. "I could see these black, rotted eye sockets on the top," he said. The severed head also had bits of tendon and part of the spine attached, he said.

If the nightmares come and a loss of appetite ensues, that decision not to hire counsel could easily change. And that is because many traumas affect our intellects and our emotions in very different ways.
--------------------------------

Update: According to The Consumerist, which first broke the story, the snake head was not cooked with the broccoli, which seems to indicate something malevolent by either an employee or a customer.

Related: "Gross-Out" Food Stories - Cases We Do Not Take, But They Sure Catch Your Eye (Food Poison Blog)

Labels: Personal Injury

A clearly frustrated Bronx judge vented heavily in an opinion Monday on the vast waste of judicial resources that New York's No-Fault law has wrought. Supreme Court Justice Paul Victor, trial judge in Vidal v. Maldonado, cited to legislative defects, inconsistent decisions from his superiors at the Appellate Division, First Department, and "cookie cutter" motion practice in implicitly urging legislative reform of the confusing law.

New York's No-Fault law had originally been designed "to weed out frivolous claims and limit recovery to significant injuries." In return, car accident victims received some guaranteed medical and lost wage benefits, regardless of who was at fault. (See New York's No-Fault Law Problem With "Serious Injuries.")

But instead, due to legislative failure to explain the terms it used in defining what constitutes a "serious injury" under the Insurance Law, it has become a morass of motion practice and inconsistent decisions. This results in "a great expenditure of limited judicial time" trying to define "elusive standards" in the law.

One part of the "serious injury" definition, for example, is that the injury results in "significant limitations of a body function or system," while another definition is that the injury was a "consequential limitation of a body organ or member." Justice Victor wrote of the legislature that "The enabling legislation for the No-Fault Law itself provides little or no guidance to the bench and bar as to the scope of the terms used," and that with respect to the terms above "there appears to be no practical difference."

Justice Victor has now seen enough, a fact that is evident in the first caption of his opinion: Another Frustrating Assembly Line "Serious Injury" Motion. He goes on to explain how so many of these motions are fought, from both the defendants and plaintiffs perspectives.

The judicial time spent is extraordinary, the judge pointed out. That is because

"a thorough review of the record and current appellate decisions requires a great expenditure of limited judicial time. In any event, the decision rendered is usually challenged and refuted by the losing side; and thus many (too many) of these cases are appealed , and many of those appeals result in non-unanimous (and sometimes acrimonious ) decisions which are often difficult to reconcile with prior precedent."

He then goes on to discuss some of the precedent from the Court of Appeals, as well as the conflicting opinions of the Appellate Division, First Department, which reviews his decisions on appeal. And there seems to be little doubt they will be seeing this one.

One reason the appellate court is likely to see this is that Justice Victor explicitly rejected one of its opinions calling it "questionable and out of step with the more liberal guidelines provided by the Court of Appeals" with respect to how the law is to be applied. He did this while acknowledging that it is "a precedent which ordinarily would be absolutely binding on this Court."

In his view, however, he had no choice in rejecting appellate case law. In a section of the opinion after the details of the case are explored -- a section entitled Competing Statutes and Rules of Construction -- "A Judicial Dilemna" -- he says that due to conflicts, he must choose one or the other of how to approach the "difficult and frustrating" task of a judge weeding out frivolous claims or small cases, based solely on paper submissions.

According to the judge, "This legislatively imposed task has caused more than a season of judicial discontent and frustration, it has resulted in an extremely difficult and flawed process which results too often in an inconsistent and unfair application of the law."

The decision is a must-read for any New York practitioner that deals with automobile cases and the "serious injury" threshold of our No-Fault insurance law. It is a terrific exposition on the confusing state of the law brought on by the legislature.

Labels: No-Fault, Personal Injury

I've previously described how this particular recession may affect personal injury lawsuits, which are generally perceived to be recession proof given since folks get hurt regardless of how the economy is doing.

But problems in a severe one can come up be due to insurance companies going belly-up and forcing delays as the suits get managed by the State Liquidation Bureau. Or there can be problems financing the cases if credit lines dry up.

Now a third reason: Cash-strapped New Hampshire is suspending jury trials and leaving judgeships vacant.

Labels: Personal Injury

The family of Jdimytai Damour, the Wal-Mart worker that was stampeded to death last week out on Long Island, has brought suit in New York, in Bronx County (where he presumably lives).

The stampede apparently occurred when a group of shoppers waiting in their cars rushed the doors when they opened, clashing with a group that was waiting on a "no-cutting" line. According to this Newsday account, an estimated 2,000 people were there.

A critical issue in the ability to bring suit was a determination of whether he was a Wal-Mart employee or not. Since he was a seasonal worker, I doubted he was employed by the retailer. If he was, then New York's Worker's Compensation laws would have prevented suit, as WC would provide the exclusive remedy. According to this Reuters account, however, the victim was an independent contractor, and not an employee.

I blasted Wal-Mart for the stampede as soon as the news hit for failing to have adequate security. Nassau County police made the same claim. Wal-Mart, however, claims that they had security in place.

Plaintiff's counsel, Jordan Hecht, named Wal-Mart and the mall's owner (Vornado Realty Trust), manager and security firm as defendants in the suit. According to Hecht in a statement he released:

"When they heard of how he was eventually killed, that he died of asphyxiation, they were visibly shaken. They are angry because this was preventable, and have therefore exercised their right to seek justice in the court"

A substitution of parties will no doubt take place in the future after a proper administrator or executor is appointed for his estate.

Ron Miller at the Maryland Injury Lawyer Blog, it should be noted, is a bit critical of the rush to suit, writing:

Do the personal injury lawyers who are trying the case lose credibility with the jury when they know the lawyer filed a lawsuit without knowing all of the facts that are the foundation for their case?

While I would ordinarily agree with Miller about the rush to suit, in this particular case I think there may be justification for doing it as long as the main parties can be identified, as it may bring witnesses to the attention of the lawyers who might not be too keen, for their own personal reasons, of approaching the police. Sometimes, a rush to suit may bring an appropriate dividend for the client.

Addendum: One other potential reason for quickly filing suit; a very angry family may have demanded it. This could be due to a hope that the publicity would hurt Wal-Mart, to see that it would never happen again, and/or to make sure the police did everything in their power to investigate. This is, of course, speculation on my part. But grief-stricken family members may be doing whatever they feel they can under truly horrible circumstances.

Updated:

• Walter Olson at Overlawyered thinks the race to the courthouse door was for publicity

• TortsProf Bill Childs thinks it could be to get quick discovery before memories fade

• Tony Rosasco thinks that New York Workers' Compensation Law Will Prevent Lawyer from Suing Wal-Mart Directly for Negligence; He also thinks, as do I, that Wal-Mart could face a criminal investigation due to the death.
  

Labels: Personal Injury

(Updated 12/3/08 at bottom)
The stampede at a Long Island Wal-Mart that resulted in the death of a worker yesterday was rather predictable. Every year the news cameras are out early on Thanksgiving Friday as the stores engineer crowds to come in to their stores for "door buster" bargains.

The stampedes result from lousy crowd control for which it isn't difficult to foresee civil liability. But while the police are out looking for the stampeders, they should also be looking at Wal-Mart's own conduct and potential charges of criminal negligence.

(original publication, 11/29)
-----------------------
Updated 12/3/08:

According to CNN, two other individuals that were injured have filed a $2M lawsuit against the Nassau County Police citing poor crowd control by the police. The police claim non-existent security by Wal-Mart.

At the outset let me note that the statements in the article about a lawsuit are likely an error in reporting, since a claim against the county must be preceded by a Notice of Claim, which Notice must be filed within 90 days. The Notice forces potential litigants to state an amount of damages, whereas the lawsuit forbids stating an amount (see New York Cleans Up Claims Act).

Nevertheless, the interesting thing about the article are the statements that Wal-Mart failed to provide security for crowd control, despite the fact that such a stampede was not only predictable, but such things are often sought after by merchants for the publicity they get for their "door buster" deals on Thanksgiving Friday.

According to the article:

Lt. Kevin Smith of the Nassau County Police Department said, "it's our policy that we don't comment on open litigations" and would not respond directly to [plaintiffs' counsel] Mollins and his clients claim that officers left the scene.

He said it is "incumbent upon the store to provide security" but noted that there was no security force present when officers responded to an initial phone call after 3 a.m. Friday for an unknown disturbance at the site.

Smith said the officers noticed a lack of order with the crowd and began to organize them into a line, remaining on site for about 30 minutes until the crowd had become orderly.

Of course, it is not the duty of the Nassau County Police to provide crowd control on private property. That duty belongs to Wal-Mart who should have had that set up long ago. Whether the police subsequently assumed that duty by their actions is another matter, but clearly the duty in the first instance is with Wal-Mart knows well this is an issue on this particular shopping day.

If the part about Wal-Mart not having security is accurate, then they very clearly dropped the ball and endangered public safety by not having crowd control personnel on the scene. There is really no excuse for that.

(Hat tip to Overlawyered)

---------------------------------
Update 12/4/08: Wal-Mart Stampede Victim's Family Brings Suit

Labels: Personal Injury

Barney bit someone. Not Barney the purple dinosaur. Barney the White House dog, a Scottish terrier. The victim was Reuters reporter Jon Decker, who must now live down the fact that he was even covering the pooch to begin with. He received medical attention and antibiotics from the White House doctor because the skin was broken.

But let's leave aside the cute comments about Barney being upset by the election, lame duck dogs and Carl Rove as dog trainer, and cut to the real issue: Can Decker sue President Bush for the dog bite? Each state has different rules.

In New York, as it happens, our highest court dealt with the subject this year in Bernstein v Penny Whistle Toys, Inc. The bite took place, not at a home where these things usually happen but, in a store. The eight year old plaintiff had stopped to pet, hug and kiss Scooter, a Labrador mix, and he bit her on the cheek. She took 40-50 stitches on the outside. Scooter -- no relation to convicted Cheney aide Libby -- had no prior history of growling, jumping, biting or otherwise abusing people in the past.

Now the rule has been for almost 200 years, according to the majority opinion of the lower appellate court, that in order for a victim to recover from an animal's owner, s/he must show that the dog's owner knew or should have known of the dog's "vicious propensities." If the victim could prove this, then strict liability applied to the dog's owner.

But the circumstance of this happening in a store raised a novel issue for the appellate court below that resulted in a split decision. It wasn't a matter of dog ownership, but the responsibilities of an owner of a business to keep it safe for customers. The dissent argued that a plaintiff might prevail under a premises liability theory using general negligence as to the store owner instead of strict liability that applies to dog owners. In colorful writing, Justice Saxe wrote of the foreseeability of such an incident:

Defendants ... own and operate a business, the primary purpose of which is to sell its wares to and for children. It is necessarily their goal to attract children into the store as customers. It may be assumed that, especially in the summertime, many of those young customers will arrive in the store holding or eating ice cream, custard, or other sweets or foods. Similarly, it is quite likely that a dog, otherwise perfectly friendly and well behaved, might experience an instinct to sniff out and attempt to obtain and consume a morsel of food or something sweet that was placed in close proximity.

The Court of Appeals rejected the reasoning of that dissent, and summary judgment was granted for the store owner. The rule that an owner must have notice of the vicious propensities -- also known as the "every dog gets one bite" rule-- remains in effect.

So is Barney a dangerous dog that has bitten or threatened before? Yes, in fact, he has, which may come as no surprise to Bush bashers. President Bush owns a dog with known vicious propensities -- he has bitten White House visitors before according to this ABC News story:

On West Wing White House tours, visitors are not permitted in the Rose Garden if Barney is outside because he has bitten visitors in the past.

If this happened in New York, therefore, Bush would no doubt be in deep doo-doo for injuries Barney inflicts.

Of course, this happened at the White House. So we turn to D.C. doggie law, albeit only quickly since, well, the guy wasn't bitten too badly and he's probably more embarrassed than anything else. So there's only so far I'm going to go with this. But here goes...

In Washington D.C. our humiliated Reuters reporter also has a case. Because, according to D.C. Code section 8-1808:

"[n]o person who has control or custody of a dog shall, direct, encourage, cause, allow or otherwise aid or assist that dog to threaten, charge, bite, or attack a person or other animal..."

This apparently brings on the presumption of negligence against the dog handler, assuming the accuracy of this website. In this case that means a White House staffer. (Whether suit would be against the government under the Federal Tort Claims Act for employing the negligent dog handler, or against Bush personally for owning the vicious dog, is an interesting question, but one for another day.)

It's also worth noting that, because the dog has bitten before and wasn't muzzled, that things look pretty good for our reporter as plaintiff. Though I'm guessing he would have preferred not to be bitten to begin with.

But there seems to be one other little catch to our proposed lawsuit. In Washington D.C., if a victim is even one percent responsible for the injury, s/he apparently can't recover. Was the reporter at least one percent responsible for bending down and petting Barney?

For that we return to the story from ABC News that notes that reporter Decker first asked the dog handler if he could pet Barney, and did so only after getting the go-ahead. Given that the dog had known "vicious propensities," as lawyers like to say, that was a pretty big no-no.

So, it seems, our reporter has a case. For small claims court. Very, very small claims court.
---------------------

Update, since I know you are all dying for more on this breaking story:

• Barney The First Dog Strikes First Republican Blow Against Corrupt And Biased Media (Start Thinking Right)

• Barney Bites Reporter (RightPundits.com)

• First Dog takes a bite at White House reporter (CNN Political Ticker)

• Barney Speaks Out (An Interview with the First Pooch)

• One Free (Presidential) Bite Rule: Bush’s Dog Barney Bites Reporter (Jonathan Turley):

  The Scottish terrier bit Reuters reporter Jonathan Decker in a dream of any personal injury lawyer: a well photographed, unprovoked attack. The greatest danger to Decker was being crushed by the hundreds of lawyers on nearby K St, rushing to give him their business cards.

• Barney Bush: "I'll Take Off His Ear Next" (Comedy Central)

  "Yeah, that's right, I drew blood," said Barney, interviewed after the "accident." "Look, I'm eight years old. You do the math. You know what I'm saying? I'm on the Zoloft to keep from killing y'all!"

Labels: Personal Injury

This is two stories in one. First, a Target store down in South Carolina falsely accused a woman of using a counterfeit $100 bill. She sued Target and won $100K in compensatory damages and Target was hit by the jury with $3M in punitive damages. Then Ted Frank at Overlawyered decided this would be a good fit for that site, but the facts he used didn't seem to fit the story. If you want to see how some lawsuits get turned into urban legends, this might be a good example to follow.

First the suit, which comes via Turley, citing a local news story:

Rita Cantrell of Greer went to two Target stores in the Greenville area in Feb. 2006, and both times employees accused her of using a counterfeit bill. Cantrell tried to buy items at the store and pay with an older series $100 bill.

[A Target] store employee sent out an e-mail to dozens of other retailers and law enforcement agencies warning them that Cantrell was a shoplifter who tried to spend bogus cash. The e-mail also included Cantrell's picture.

According to Target's own brief in their failed motion for summary judgment, Ms. Cantrell visited a Target store (just one store, not two as in the news story above) where a counterfeit was suspected. They declined to take the money when offered and asked her if she had another form of payment. She shook her head no, took the goods out of her basket, and walked out of the store. Then came the accusatory email.

The problems were that the bill was legit, and the email also went to her place of employment. And Target didn't identify the money as a "possible" counterfeit. No sirree. The email said "The lady pictured attempted to use a counterfeit 100 dollar bill today." So the accusation was unambiguous. (See Order denying judgment.)

The Secret Service was called in, verified the money as real, and Target was sued for the embarrassment and humiliation that Ms. Cantrell suffered, with the jury ordering 100K in compensatory damages and $3M in punitives.

From the original article came this response: Target spokeswoman Bethany Zucco said Friday the company will challenge the ruling.

"We are extremely disappointed by the magnitude of the compensatory and punitive damages awarded by the jury in this case," Zucco said in a statement. "We sincerely regret any inconvenience incurred by the plaintiff.

Scott Greenfield wrote about this case the other day ($3M to the Target of Target) and remarked about this pathetic response:

Any inconvenience? You sent out a mass email, with her picture, telling the world that she's a thief and forger, and you're sorry for the inconvenience? There's an "apology" that demands some serious puni's alone.

And now comes the urban legend part. Ted Frank, a well known tort "reformer" at Overlawyered jumps into the action (Cantrell v. Target: $200 medical bill = $3.1M verdict). Except some of the facts in his post look a little different from the Target brief and the judge's opinion.

1. As noted above, Target clearly identified the money as counterfeit, writing in the email, "The lady pictured attempted to use a counterfeit 100 dollar bill today." But not according to Frank. In his version of the story, the central accusation is watered down to this:

Target employees were foolish in being unable to recognize the old currency, and mistakenly identified it as a possible counterfeit.

Now that, my friends, is just flat out wrong. They did not use any qualifying language about this being a "possible" counterfeit. That's why there was a lawsuit and a jury verdict. Because the language was not qualified the way Frank wrote it. Hopefully Frank will fix this before his new version of the story becomes an urban legend.

2. Next up: When the incident happened, Ms. Cantrell "shook her head no and walked out of the store" in response to Target's query of whether or not she had any other way to pay for the merchandise -- as described in Target's own brief to the court. But Frank says she "fled." That's right. Instead of an angry or anguished person simply walking away without the goods they came for after indicating they had no other funds to pay with, he claims she "fled" the scene. Now that's just wrong (defamatory?).

Hopefully Frank will fix this too before his new version of the story becomes an urban legend. (I'm not being snarky, by the way. We all make errors and he has fixed his in the past.)

3. Next up, the Frank headline refers to a $200 bill and says that is no reason for a big award. Apparently, mental anguish and humiliation are not compensable under Frank's view. We know this because he calls her experience merely an "inconvenience'" though there is no evidence in Frank's piece to suggest he actually heard any of the testimony of what she went through. And when I challenged him in the comments to his post, he responded by writing that "the plaintiff suffered no actual injury." Obviously the people who actually heard the evidence feel otherwise. When people who haven't heard the evidence make such comments about those who have, it would be appropriate to immediately question the objectivity of that critic and question how their political leanings have affected their view of the facts.

If is fine, of course, for Frank to have a strong opinion and political leanings and write about them -- only a fool would question his rights to criticize -- but that should not lead to changing the facts of a case.

Frank brings up medical costs and their relationship to injuries in order to minimize Ms. Cantrell's experience, and it is true that sometimes medical costs have a relationship to the seriousness of an injury. But not always. While a high bill usually means a pretty serious injury, a low bill does not necessarily mean a small injury. Psychological injuries are a perfect example of something that can torment an individual but have very low (or non-existent) medical bills. Another example is ongoing back pain that may be almost crippling to an individual but have no viable medical treatment. Looking at medical bills in a defamation action, and pretending it will have some bearing on the injury, is almost bizarre.

There are plenty of frivolous claims around to keep law bloggers busy if they want to write about them. With a nation of 300 million people this will happen. I write about them from time to time, as do others, because there are lessons to be learned in doing so. But there is no evidence this suit falls into that category. So long as one sticks to the actual facts.

Last note: Will the damage awards be sustained on appeal? That's hard to say, since I didn't hear the testimony nor have I seen a full record of the trial. But the 30-1 ratio may well be sustainable in general for a personal injury case. My analysis on why this is so is based on decisions and argument from the US Supreme Court here: Philip Morris Punitive Damages Decision -- Why It Was Good For Plaintiffs

Labels: Personal Injury, Punitive Damages, tort reform

The legal fees for a firm that tried one of the cases resulting from the 2003 Staten Island Ferry disaster has been dropped by 40% by Eastern District Judge Jack B. Weinstein. The accident killed 11 and injured dozens more. This represented a fee reduction from one-third, as set forth in the retainer agreement, to 20%. (New York Law Journal: Judge Cuts Attorney Fees in Award to Ferry Victim)

The case involved a victim that had been left paralyzed from the shoulders down after the accident. Plaintiff's counsel had previously rejected a $10M offer and went to a finding before an advisory jury. The resulting $22.9M verdict was then reduced by the court to $18.3M (which both sides apparently agreed to).

Fee reductions will happen on occasion in New York when the court must oversee the settlement of someone that is incapacitated, either due to being a minor or having medical problems. But on those occasions that a reduction occurs, it generally happens only if a case settles early or easily. This one, by contrast, concerned a plaintiff that didn't have a brain injury, and the case was litigated in full. It also occurred after a $10M settlement offer was rejected, thereby increasing the risk to the plaintiff and counsel.

Essentially, plaintiff's counsel received no credit from the court for the risks inherent in rejecting the settlement and increasing the award from $10M to $18.3M.

Labels: Personal Injury

Talk about weird. Down in Galveston, Texas a man had a piece of his skull removed due to brain swelling after a stroke. He was supposed to have it put back after the swelling went down. But, as you may have guessed from the headline here, the hospital lost that part of his skull. That's not supposed to happen.

And it doesn't seem to be a small piece of skull that got lost. This was an eight inch by four inch piece. That's a lot of head bone, as one of my kids might say. Three times he was scheduled for surgery and three times it was cancelled before hospital officials finally admitted they couldn't find the piece of skull that should have been sent to the bone bank. Instead, he had to have titanium mesh implanted.

Suit was filed yesterday against the University of Texas Medical Branch on behalf of 53-year-old Marvin Simmons. Interestingly, plaintiff's counsel Tony Buzbee wrote in the suit, "This is not a case for medical malpractice."

Why go out of your way to say it wasn't malpractice but just plain vanilla negligence? My guess is the 2003 tort "reform" in Texas that provides protection for doctors and hospitals for any non-economic verdict over $250,000 for each of them, forcing the victims of malpractice to bear the burden of serious injuries themselves. So given a case that might be malpractice or might be negligence, depending on how the bone was lost, the attorney opts out of the malpractice choice in the suit.

Since I don't practice in Texas, I can't comment on that choice. Brooks Schuelke down in Austin would be better on that part. But if it happened in New York, I would plead the case both ways and decide after discovery how to proceed.

Update: Here is a copy of the Complaint: Simmons-v-UTMB.pdf

Labels: Medical Malpractice, Personal Injury

This post originally appeared April 13, 2008. It has been bumped up due to another moronic entrant into the field of trolling for lawsuits. The new site, at the bottom of this post, is WhoCanISue.com. And it, like SueEasy discussed here, raises substantial ethical and litigation issues:
----------------------------------------------------------------

When I first heard about SueEasy, I thought it was an April Fool's joke. But it was October when it first appeared as a development concept (see 10/23/07 post:So How Did You Find Your Attorney? SueEasy!!!). Then I thought it must be a practical joke created by some tort "reformers" to highlight really bad advertising that sometimes takes place. Standard operating procedure is to use anecdotes to tar everyone else to win further protections and immunities for big business.

Sad to say, it has now gone live and appears to be yet another grotesque form of marketing, except that this one is actually dangerous and can help kill legitimate cases. (Note: SueEasy links provided by a TinyUrl redirect, so that this embarrassment to the profession doesn't benefit from any PageRank by my linking to it.)

According to the site, "SueEasy is neither a law firm, nor is it a lawyer referral service." That leaves only one thing, a marketing portal of some kind, presumably where lawyers buy space. These types of dumps are a dime a dozen on the web, and I get calls from them all the time. (See: The Ethics of Attorney Search Services.)

But unlike other attorney search services, this one has the potential for some serious damage in a unique way to both client and attorney in personal injury matters.

First, from the client perspective. One question you might expect at a deposition or trial will be this: How did you find your attorney? That doesn't mean defense counsel can ask what was said, but they might certainly ask how you got to the lawyer you are using. Now can you imagine a jury finding out you used some company called Sue Easy? Perhaps a judge will allow the testimony, perhaps not, but I sure as hell wouldn't want to be in a position to find out when the answer is SueEasy.

And since you may share documents or write something to this company that advertises it is not a law firm, that stuff you send may not be protected by the attorney-client privilege and may be discoverable (and possibly admissible at trial). Which is to say, that is a way for a defense lawyer to get the SueEasy name in front of a jury.

Here's something else you might to consider: During jury selection one of the standard issues raised by defense lawyers is that anyone can bring a lawsuit. So if ever there was a way to reinforce that idea, contacting an advertising portal named SueEasy would do it. It's like handing a big, fat gift to the defendants.

Second, from the attorneys perspective. You have not only shot a stomach churning hole in your own client's case (and any fee you hope to recover), but you are also at the mercy of the advertising portal to act ethically. As I demonstrated in my other post on the ethics of these portals, this could be a real issue. For example, the site appears to be in violation of New York's ethical rules because it fails to state that it is attorney advertising.

You might also note the site owners are too embarrassed to identify themselves, so a participating lawyer would be ceding their marketing to an anonymous individual or company. Imagine that, a lawyer putting his or her law license into the hands of anonymous people. Try explaining that one to the disciplinary committee one day.

If you agree to be marketed by that portal, the disciplinary committee of your state may well say that they are your agent, and you are responsible for the content of their site and the conduct of the employees. And they may not look kindly on the willful blindness defense that you will try. ("Really? The site did that? Oh, my, I'm shocked, just shocked to find out. I'll have a talk with my people and maybe we'll do something else. Oh, thank you so much for telling me, Madame Chair of the Disciplinary Committee.")

So my advice to those seeking an attorney:

1. Ask around first. Your friends, relatives and neighbors are the best place to start.
2. Ask another attorney, even if outside the field you need. While you wouldn't want a medical malpractice attorney to handle your real estate venture, and vice versa, there's a pretty good chance that the attorney will at least know where to look for the right person.
3. After you get a few names from the above methods, you can check out their websites to see if they give clues as to what field(s) the attorney(s) claim to be proficient in, and interview the attorneys as to other cases in the field that they have handled.
4. An attorney search service such as Sue Easy is not just a bad idea, but a spectacularly bad idea, with this possibly be so dangerous as to harm your case or career. Any attorney who uses it for serious personal injury cases may well be committing malpractice.
   

This company is a bona fide twofer for defendants. They get both the horrible anti-plaintiff's lawyer press and they get stuff they can actually use in the courtroom. I keep thinking this must be a joke, as no right-minded lawyer would ever affiliate themselves with this outfit. But I fear that is not the case.

See also:

• Beware lawyers: Web 2.0 brings out same crazies as Web 1.0 (Real Lawyers Have Blogs):

  Please do not spend a lot of time evaluating whether your law firm should sign up for all the wacky services you hear of.

• SueEasy, So Easy It Can't Be Good, Really (Blawgraphy):

  As for potential litigators - talk about a hairball generator.

• SueEasy Goes Live -- Your Class Action Lawsuit Lottery Ticket (Michael Arrington @ TechCrunch)

  The site allows people to file (or search for) grievances, join with others looking for a payout, and eventually get the attention of a first class ambulance chaser to take your case.

• SueEasy.com (Walter Olson @ Overlawyered)

  Michael Arrington [TechCrunch] likely is a great deal too flattering in terming it a "Shangri-La for ambulance chasers"

• Only in America: SueEasy.com (Above the Law) updated 4/17/08, with this comment:
  

  i'm going to post a false advertising complaint against "www.sueeasy.com" for promising "instant legal bliss" while being aware that such a thing does not exist.

• Another Way For Lawyers to Embarrass Themselves (Simple Justice), updated 4/19/08 with a related post:

  Every few hours an email comes in touting some new scheme to suck in desperate attorneys.

-----------------------------------
August 7, 2008 Update: Another idiotically named marketing business has popped up, called WhoCanISue.com. TortsProf goes in search of the mystery owners (and read the comments). Screen shots of the commercials for this business are here.

Any lawyer that participates in these operations is an embarrassment to the profession.

More on this at:

• WhoCanISue.com (Walter Olson @ Overlawyered)
• Who Can You Sue? Click Here (Time Magazine)
• Is WhoCanISue.com a Scam? (Justinian Lane @ TortDeform)
• Another Lawyer Directory -- WhoCanISue.com (Carolyn Elefant @ Legal Blog Watch)
  

Labels: Attorney Ethics, Marketing, Personal Injury

You have to see it to believe it. One of New York's Finest, while monitoring a monthly demonstration that favors bikes over cars, simply walks over to a cyclist and clobbers him. If I didn't see it on video, I wouldn't believe it. Worse yet, the cop then arrests the bicyclist for attempted assault, disorderly conduct and resisting arrest.

First, the video (with a hat tip to Simple Justice and Concurring Opinions):



Perhaps even more incredible than the flat out assault on the rider is that apologists have started to come out of the woodwork because, you know, for some people cops can never do wrong. Here is the New York Post's pathetic attempt to defend the indefensible:

It looks like one thing led to another Friday, and the unidentified officer seemingly pushed a Critical Mass rider to the ground as the group snaked through Times Square.

Nobody was hurt.

And, since the rider got a traffic ticket and was cited for resisting arrest, there may be more to the story than what's on one online video.

Seemingly pushed? That reminds me of Groucho Marx: "Who you gonna believe, me or your own eyes?"

And "Nobody was hurt" is now a justification for assault by the police? The rider, now identified as Christopher Long, could have broken his neck with that fall. Why do I think that if the spouse of the unnamed editorial writer was the victim, s/he might be singing a slightly different tune?

And "there may be more to the story?" Good grief. If there was more to the story -- if Long was a trouble-maker that the cops were looking for -- you wouldn't see the other cop in the video just standing there. The two would have cornered and held Long.

The Post goes on to sum up: "It's hard to root against the cops." Well the masses are not rooting against the cops. That is a miserable straw man argument. This cop (Patrick Pogan, a 22 year-old rookie) should be terminated. This cop should go on trial for assault. This cop should pay the piper. For our safety.

And if the video isn't enough to convince the Post, maybe they should look at the flat-out lies Pogan made about the incident in the supporting deposition that he gave about the Long arrest, where he claimed that Long deliberately rode into him (click the image below to enlarge):

Obviously, the video shows Long doing exactly the opposite, trying to steer away from Pogan as Pogan started walking into a path that would intercept Long.

And here's the really interesting part: The cop did this in full view of a big NYC crowd. And yet still believed he could get away with it. And without video, there is a good chance he would. Because what jurors -- unless they happen to be defense lawyers in which case they would get booted from the jury panel -- would believe a cop would act that way?

With a little bit of luck, the cop will not only be arrested, but a civil suit will be brought. And perhaps, and I know this is fanciful thinking, other cops will actually start to get rid of bad apples as they tarnish the names of the good ones.

Elsewhere:

• Video shows NYPD cop assaulting cyclist (NY Daily News)
• Update on Bull Cop Who Shoved Man Off Bike (Gawker)
• NYPD Bruise (Smoking Gun)

And regarding a new police beating video that has surfaced:

• NYPD Police Brutality (Reluctant Habits)
• NYC Cop David London Placed on Desk Duty After Clubbing Handcuffed Army Vet Walter Harvin (Black Political Thought)
  

Updated: Scott Greenfield has a piece on how this case would have likely wound its way throught the criminal courts if there were no videotape: Follow-Up on the "Big Shove"

Labels: Personal Injury

An issue has arisen in recent years about the taxability of personal injury settlements when a confidentiality agreement is reached. Generally, such settlements are not taxable pursuant to IRS section 104(a)(2). But the issue reared its head due to a settlement involving Dennis Rodman back in Amos v. Commissioner of Internal Revenue when Rodman kicked Amos, a camerman, in the groin during a Chicago Bulls game. (Amos-v-Commissioner.pdf)

Prior to suit they reached a $200,000 settlement. But part of that settlement included a confidentiality clause. So the IRS brought an action claiming that part of the settlement was taxable. And the Tax Court agreed, ruling in 2003 that while the proceeds for the personal injury portion were not taxable, that any part of the money that was in exchange for the confidentiality agreement would be. The court wrote that "if a settlement agreement lacks express language stating what the amount paid pursuant to that agreement was to settle, the intent of the payor is critical to that determination." In the end, the court ruled that Amos was to be taxed on $80,000 of the settlement.

And so that opened up any personal injury settlement that includes a confidentiality clause to potential scrutiny. So what's a lawyer to do? (Question courtesy of Drug and Device Blog.)

While others have suggested placing a number, perhaps $1, in the agreement on the value of the confidentiality agreement -- part of the "express agreement stating what the amount paid pursuant to that agreement was to settle" -- I think an issue still lurks. It seems quite possible -- and I say this without much in the way of knowledge of tax law -- that the IRS would want to go to the merits and look at the actual injuries and compare that to the amount received if they believed a great disparity existed between injuries and recovery. It seems that a $5,000 injury that resulted in a $100,000 settlement, for example, would raise eyebrows regardless of what the legal papers claim.

But the problem really exists if it is simply the defendant that seeks the agreement, as has traditionally been the case. The defendant doesn't want to be seen as a mark to other potential litigants.

The internet age and issues of privacy and identity theft, however, shift that dynamic. Would a plaintiff receiving a large award really want the information public? Likely not. In fact, at my firm's web site where I discuss case resolutions I have stripped out the names of my clients for just this reason. Those recoveries are no one's business but the parties themselves.

And so the solution for an attorney to explore with the settling client -- I'm not a tax lawyer and this is not tax advice, disclaimer, disclaimer, yada, yada, yada -- is actually somewhat simple: Both sides are seeking that confidentiality agreement. The consideration for the confidentiality agreement is the mutual promise for confidentiality. Plaintiff, simply put, doesn't wish to alert potential thieves and hustlers that such funds exist. This is a real issue.

Along these same lines, an attorney should be wary of signing any agreement that says the funds are being paid to dispose of a claim was dubious, frivolous, meritless or any such other claptrap. Incredibly, I have seen releases written that way. ("But that's our standard release, everyone signs them!") Signing such a document could be seen as an admission that the amount paid was for something other than personal injury, and therefore subject the client to taxation.

And yes, I did have fun doing an image search for Dennis Rodman.

See also: More On Taxation of Confidentiality Agreements (Drug and Device)

Labels: Personal Injury

The ad takes up a full back page in today's New York Law Journal. And it is a thank you from the New York State Trial Lawyers Association to the almost 150 members of the organization that traveled to Albany to lobby the legislature last week to help preserve the civil justice system and increase judicial salaries. NYSTLA, for those that don't know, is the preeminent trial lawyers group in New York.

So the questions are:

• If you have an attorney handling a personal injury matter, is the name of your lawyer on the list? Or at least someone from his/her firm?
• And if not, did s/he attend last year or the year before?
• Is s/he actively working in some way to preserve the civil justice system?
• And if they have never done anything in this regard, why not?
  

Here is the ad: NYSTLA-Ad.pdf

A big thank you to the folks at NYSTLA for their organizational skills in getting us in to meetings with our legislators. It was a job well done.

Labels: Personal Injury

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

Raymond Marquez smoked for 30 years and then quit. Then, after being locked up at Rikers Island for 29 months awaiting trial, he got bladder cancer. He blamed the City of New York for the cancer, since the city's Department of Corrections runs the jail and permitted indoor smoking while he was there. Smoking is the leading cause of bladder cancer.

According to Marquez, smoking indoors was permitted between 1998-2001 when he was awaiting trial, and that the secondhand smoke traveled through the ventilation system. The policy changed in 2003 to ban indoor smoking.

While Marquez said he had smoked from age 15 to 45, he also said that he had stopped for 23 years. He also claimed, incredibly, that he never inhaled. The medical underpinning of the suit was his claim that after 20 years of smoking cessation the risk of bladder cancer is as low as that of a non-smoker. The 78 year old plaintiff said, therefore, that the cancer must have come from the jail house smoke.

A New York jury that returned a verdict Friday didn't think much of the claim from the plaintiff, who used to be "the foremost kingpin of the city's illegal numbers rackets" and was known as Spanish Raymond. He had previously pleaded guilty to gambling charges, but was acquitted of the new charges. (The acquittal was not before the jury.) And after a two-week trial on the smoking case, and just over an hour of deliberation, the jury tossed it.

When I first heard about the litigation, it sounded like a dog, and I don't know any reputable personal injury firm that would have taken it. And as it turns out, the suit was brought by the plaintiff's son, who happens to be a local attorney. (I once went down that road myself, representing my father, with thankfully much different results.)

It seems now that the city wants to use this suit for its propaganda benefits, claiming in a press release (below) that this is an example of "ridiculous lawsuits." Using anecdotes is a fairly typical method of trying to win tort "reform" arguments, but it is also pretty useless in this setting. Pulling out the bad cases for display to the public tells you nothing about the good ones that the city remains mum on.

(Full Disclosure: Defense counsel Scot Gleason is a good friend of mine who has also worked for me in the past on an "of counsel" basis.)

See also:

• NYC jury rejects former inmate's secondhand smoke lawsuit (Newsday)
• Ex-Inmate Loses Lawsuit Over Secondhand Smoke (New York Times)
  
• New York City Law Department Press Release: RaymondMarquez.DOC
• Harlem numbers king sues city for $15M (HarlemWorld, 3/11/08)
• Harlem numbers king taking on city with $15M secondhand smoke suit (Daily News, 3/10/08)
  

Labels: Personal Injury

Another day, another idiot. I see the headline, "NY man sues airline over flight spent in toilet," with a demand for two million bucks, and all I can think is, Did the tort 'reformers' pay them to do that?

It isn't even Christmas yet. Not even close. And yet there seems to be this compulsion to hand gifts to corporate protectionists trying to slam the courthouse doors closed.

The basic facts of the story are that the plaintiff was allowed to board a packed Jet Blue flight, but was then told he had to sit in the toilet for the second half because a flight attendant needed his seat. While the facts seem ludicrous, I'll give the guy the benefit of the doubt for the moment that someone effed up by putting one too many people on board, and that he deserves compensation of some kind (and that the FAA should investigate). If everything he says about the facts were true, as reported in the newspaper, a free ticket or two would certainly be in order. That's why we have Small Claims Court.

My beef is with the idiotic demand for millions for "extreme humiliation" in New York's Supreme Court.

Where do I start? How about here: The lawyers who brought this suit don't do personal injury law for a living. How do I know this? Easy. They sued for $2,000,000 for personal injuries. Except that every personal injury attorney in New York, or at least every one that does this on any kind of regular basis, knows that New York banned the practice of monetary demands in personal injury suits years ago. (See: New York Cleans Up Claims Act)

So after getting the big tip off that this firm didn't practice personal injury law, I logged on the court's computers to double check. The suit was brought by a firm called Akin & Smith. And if you check their web site you will see that they practice in the field of employment and discrimination suits. I see nothing about personal injury. [See Update 1 below]

Hey guys, thanks a lot for helping to smear those of us that actually practice in this arena. Really, we appreciate it. I have three cases coming up for trial for people whose lives have been profoundly altered by negligence, and now I have to hear jurors talk about crap like this?

If this guy sues JetBlue for extreme humiliation for what they did to him, can attorneys who actually know what they are doing sue him for what he has done to us?

Update 1 -- 5/15/08: It seems I missed the mark on whether this firm does personal injury work. I recieved this email about the firm from Louis J. Schepp:

You talk about the plaintiff's attorneys, Akin & Smith as not doing personal injury work. During my days (29 years) at Liberty Mutual, I had dealings, in the last few years, with this firm in cases involving personal injury in both State and Federal Court. They do a sufficient amount of personal injury work, that they should know the rules about ad damnums, but may have wanted to get the press that large ad damnums bring.

On the other hand they may have wanted to start the clock on removal as soon as possible. Putting the ad damnum in the complaint is good strategy, (the statute does not provide any real penalty for putting it in) as it starts the time running on Federal court removal. I had a number of cases that I removed to Federal court, that I would not have been able to do so, if the ad damnum had been in the complaint, since the 30 day time limit is unforgiving.

Update 2: JetBlueLoo Follow-Up: What Really Happened? (5/15/08)
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Link is via TinyURL redirect, so their website doesn't benefit from any Pagerank as a result of this post.

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Photo credit: From Wikimedia Commons

Labels: Personal Injury