New York Personal Injury Law Blog

Eric Turkewitz, The Turkewitz Law Firm, New York, NY  

Friday, April 17, 2009

 

Who Lobbies for the Victims?

In 10 days I head to Albany with other personal injury attorneys to lobby the legislature to keep the civil justice system open and available to New Yorkers. Why me? Well, if not me, who then?

You see the insurance companies have armies of lobbyists in state capitols around the nation. So do the massive health care giants, drug companies, and let's face it, Fortune 500 companies all over the place. "Think tanks" and Chambers of Commerce that dream up ways to closde the courthouse doors to consumers don't exist without money.

But those who've been victimized by the negligence don't have those voices of influence at their beck and call. Victims become part of this group unwillingly, in unplanned ways. They have no organization. They don't have access to the levers of power.

They only thing they usually have are the personal injury attorneys that are helping them with their case. Who also happen to be the ones that know about the problems with the laws that their new clients face.

For example, in years past I have written about:
So who fights for the injured? The people that represent them. Those of us who stand in the well of the courtroom to fight on their behalf. I'll be heading up there with the New York State Trial Lawyers Association, of which I am a proud, card-carrying member, and have been for many years.

And if you are an attorney that deals with these types of cases, I have one question for you:
Are you lobbying your legislature? Because there aren't any good reasons to answer no.

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Wednesday, January 30, 2008

 

John Edwards as Attorney General for Barack Obama?


Former personal injury attorney John Edwards as Attorney General in a potential Obama administration?

So goes the claim by right wing journalist Robert Novak.

Was there an actual deal?

Or was this misinformation done to inspire business interests to make political donations?

Inquiring minds want to know.
(But I put the odds at 1/3)

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Wednesday, January 2, 2008

 

Presidential Politics and the Iowa Caucus

I don't understand why the whole country kowtows to Iowa. I mean really, they have just 1% of the nation's population with 2.9 million people, of which 150,000 - 200,000 will likely turn out. Every four years we get this same nonsense with huge expenditures of time and money for a state with very few actual electoral votes.

Sorry for going off topic here, but this is a stupid system. Logic dictates a system of primaries that are grouped by region; New England, Mid-Atlantic, Southwest, you get the idea. Just divvy the country up into 10 or so regions and have regional primaries a few weeks apart. The candidates and staffs can then travel much more easily from place to place, see the most numbers of people, and financial resources can be pooled with the regional ad purchases. The order of the contests is chosen by simply picking the regions out of a hat. This isn't rocket science.

America doesn't benefit from all the sound and fury coming out of one small farm state. I've got nothing against corn and wheat, but the idiotic system skews the political promises to the detriment of all. Except, of course, Iowans, who benefit from the political tourism and the promises. But let's face it, all urban areas, who have much different concerns and vastly larger populations, get the shaft.

There is no rationale reason for the politicians to continue this. The importance of Iowa (and New Hampshire after that) is merely a self-fulfilling prophecy. It's important because it is first, not because it is actually important. That is a dumb way to run a nominating process.

OK, so having now opened the political can of worms, which I avoid unless it deals directly with the issues of this blog, let me prognosticate on what we will see on election day 2008.

Reps: McCain/Romney
Dems: Obama/Biden
Indep: Bloomberg/ Gary Hart (who correctly predicted an attack like September 11 and tried to warn)

As much as this New Yorker would like to see Clinton v. Giuliani v. Bloomberg, neither Hillary nor Rudy will get their party nominations.

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Wednesday, November 14, 2007

 

How Many Lawyers Showed Up In New York?

According to an AP report, there were 200 lawyers at the rally yesterday to support Pakistani lawyers who have been manning the barricades for restoration of the rule of law.

But according to the New York Law Journal, the number was 700.

What's going on? Now it's true that inflating and deflating crowd numbers is a time-honored tradition among those that support/oppose any particular rally. But those are news organizations, not advocates, and estimating in the hundreds is not nearly as difficult as estimating in the tens of thousands.

My own estimate, based on many years of playing "guess the attendance today" at Shea Stadium was 300-400, which I stand by. And as I mentioned yesterday, a number much higher than I had expected.

See also:

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Tuesday, November 13, 2007

 

New York Lawyers Rally By Hundreds In Support of Pakistani Lawyers

Hundreds of New York attorneys tuned out at 1:00 today to rally in support of Pakistani lawyers that were arrested for demonstrating against the firing of the Pakistani Supreme Court. Some news reports have estimated that 25% of Pakistan's lawyers are now in prison due to protests against Gen. Pervez Musharraf's new decrees.

I just returned from the rally, held on the steps of the historic New York County Supreme Court building, moments ago, so this is likely a first report on the web.

By my eye, the crowd looked to be about 300-400 lawyers, well in excess of what I had anticipated. Attorneys filled the steps of the courthouse and spilled out onto the sidewalk below.

The rally had been organized by the New York State, New York County and New York City bar associations, and supported by others.

Speakers included a New York Pakistani lawyer whose father has been imprisoned.

An email was read from students at Pakistan's Lahore University about this rally, and they were grateful to see that American lawyers had taken notice and were showing support.

(Photo: This photograph that I took may be used without obtaining permission so long as attribution is given. It may not, however, be used for a commercial purpose.)

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

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Wednesday, July 18, 2007

 

Bork's Attorney, Randy Mastro, Picked For Giuliani's Justice Advisory Committee

Rudy Giuliani unveiled his "Justice Advisory Committee" today, revealing that Randy Mastro, the Gibson Dunn attorney handling Robert Bork's slip-and-fall case against the Yale Club, is on the list.

Judge Bork -- the former SCOTUS nominee, conservative favorite and tort "reformer" -- has been widely ridiculed and lampooned for not just bringing a routine personal injury action for "in excess of $1,000,000" for injuries that appear to be rather limited, but having also asked for punitive damages. The original complaint also included flat-out frivolous claims for attorneys fees and pre-judgment interest, neither of which can be obtained in New York.

So this raises two questions for Giuliani: First, do you want someone on your Justice Advisory Committee that has not only just brought a case with frivolous claims in it, but done so on behalf of a tort "reformer?" Will this reassure conservatives, who are already skittish over Giuliani's social positions and have concerns about his judicial appointees if elected President?

And second, as I pointed out in Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages, do you want someone picking judges that failed to draft a simple personal injury complaint, even when extreme caution was needed for a high-profile client? And then failed to correct all the errors in the amended complaint even after a hurricane of bad press? He was not only out of his depth on this case, but more importantly, apparently didn't seek adequate counsel on how to correct the mistakes. Will that type of throw-caution-to-the-wind conduct appeal to conservatives?

Mastro, by the way, is Giuliani's former Deputy Mayor. He might have fine political skills, and even have terrific skills in his particular areas of expertise. He might be a great guy to have a beer with. Having never met him, I wouldn't know. But having laid bare less than stellar legal skills in a routine case with a high-profile client, and having made frivolous claims in court on behalf of that client, is this the guy conservatives will want on a judicial selection committee?

See also:
Addendum: A few quotes from the piece Giuliani wrote for Pajamas Media linked above after the list came out, which clearly do not square with Randy Mastro's suit on behalf of Judge Bork:
"As President, I will nominate strict constructionist judges with respect for the rule of law "

"[W]e should reform the system by adopting rules that discourage frivolous lawsuits, such as "loser pays."

"We also need to establish limits on punitive and non-economic damages -- which are too often used to turn the legal system into a lottery system."

Giuliani has now given a speech on the subject. More links:


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

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Thursday, June 14, 2007

 

John Edwards Reverses Course On Medical Malpractice

John Edwards appears to have completely capitulated to the tort "reformers" that seek to close the courthouse doors to those injured by medical malpractice. In a 26-page Health Care policy statement issued today, buried on page 13, is this bit (hat tip to TortsProf):
Stop Frivolous Lawsuits: To discourage frivolous suits, Edwards will require lawyers to have an expert testify that actual malpractice has occurred before bringing a suit. There will be mandatory sanctions for lawyers who file frivolous cases, and any lawyer who files three frivolous cases will be forbidden from bringing another suit for the next 10 years. (emphasis mine)
Now Edwards is a former medical malpractice trial lawyer so he should know better. A few points need addressing:
  1. It is often impossible to prove prior to discovery that malpractice has taken place. It is one thing to require a physician's review prior to suit, and have a doctor state that based on the available records there is a reasonable basis to proceed. That's good practice when vetting the claim. It is another thing entirely to require that malpractice be proven before discovery, or even suit, is undertaken. This would result in the absurd situation of immunizing those doctors who have lousy records.
  2. Testify before whom? If there is no suit, there is no one to testify in front of. Does the potential defendant have to testify too, to help reconstruct events from poorly written notes? Is there a trial before the suit starts?
  3. If there must be testimony pre-suit, it requires significant additional funding, thereby granting even more immunity to the medical profession than they have now. Currently, the economics of malpractice litigation immunize the medical profession for most mistakes. Basically, it means a mini-suit before a real suit.
  4. If doctor-experts are forced to testify, and therefore disclose their identities before necessary, it will make it even more difficult for injured parties to retain experts, due to peer pressure physicians face when they become known as someone willing to testify. They also will be forced to testify based on incomplete information.
  5. The Federal Rules of Civil Procedure already have sanctions in place for frivolous conduct. It's called Rule 11.
I have no problem with sanctions for those that bring frivolous suits. And for those that bring frivolous defenses (like blaming the patient for an injury that happened while she was under anesthesia.) Frivolous claims of any kind hurt everyone concerned and should be sanctioned.

But the concept that a case must be proven before it is even started will work only to close the courthouse doors even further.

Either Edwards has completely capitulated to the money of the health care industry at the expense of the downtrodden he claims to represent, or he needs someone to proof-read the policy statements that go out under his name.

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Tuesday, March 6, 2007

 

Medical Malpractice Politics In The Doctor's Waiting Room Is A Bad Idea

An article appeared last week in the Kingston Daily Freeman (Doctors put lawyers on defensive) about a postcard/poster campaign by the Medical Society of New York State, accusing trial lawyers of causing excessive malpractice insurance rates and driving doctors out of practice.

About those posters and fliers? It's a bad idea for doctors for three reasons:

First, the single biggest reason that unhappy patients call lawyers, based on my 20 years experience representing patients, is bad bedside manner. A complication or bad result of some type occurred, and the patient didn't get answers they deemed satisfactory. They are angry. (The subject of doctor apologies cutting down on such legal inquiries was posted last night by Paul Levy at Running a Hospital) Brochures complaining about lawyers is not what unhappy patients want -- they want answers.

Second, a lawsuit is not the first thing on many patients minds when something goes awry. There is no shortage of people who contact lawyers years after the acts they complain of, often after the statute of limitations has passed, and only after a discussion with a friend or neighbor put the idea in their head. Placing the idea of malpractice front and foremost while they wait to see a doctor may be very counterproductive for these patients.

Third, complaining about an expense of the medical practice (insurance, which is the subject of the political campaign) simply invites a discussion of revenues. An expense that is 3% of revenues, for example, is different than one that is 30% of revenues. Do doctors want to answer questions about their revenues?

Just a few things to think about, all of which become ever more important depending on the amount of time spent in the waiting room, and the amount of face time spent with the physician. If waits are long and face time is short, the physicians may be doing themselves a disservice with this type of politicking. Their next stop might be my office.

(article tip via Overlaywered)


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

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Thursday, January 18, 2007

 

Does Congress Understand the Counterfeit Drug Problem?

Last week bipartisan legislation was introduced, ostensibly aimed at drug safety, called the Pharmaceutical Market Access and Drug Safety Act of 2007. Does it really deal with drug safety? Nope. It is almost entirely about the importation of drugs from Canada and other countries.

The bill does nothing to plug the leaky supply chain that we have here that allows drugs to be swapped among the thousands of secondary wholesalers like pork belly futures. Indeed, the requirements of pedigrees for pharmaceuticals (a list of prior owners) has still not been fully implemented despite being authorized by Congress in 1987.

There is nothing in the bill about the most basic of safety issues, such as increased criminal penalties for counterfeiters, mandating pedigrees back to the manufacturer, and funding for the F.D.A. so that they can actually do random testing of drugs in the marketplace, recall them when needed, and do proper investigations.

Before Congress tries to deal with foreign drug supply systems, it should get a grip on our own, and enact Tim Fagan's Law, which came about as a result of domestic counterfeiting.

More on the subject can be found at:

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Wednesday, January 3, 2007

 

Spitzer Urges Constitutional Amendments for Judicial Reform

From Gov. Eliot Spitzer's State of the State address, being delivered as I type: He urges two constitutional amendments regarding judicial reform:
First, we must reform our state's sprawling judicial system. New York has the most complex and costly court system in the country, a system that too often fails to provide justice while imposing an undue burden on taxpayers. Chief Judge Kaye has forged consensus within the legal community for how we must fairly administer justice. Now is the time to act.

In the coming weeks, I will submit a Constitutional amendment that
incorporates Judge Kaye's recommendations to consolidate and integrate our balkanized courts.

I will also submit a second constitutional amendment that will take
the politics out of the selection of judges and implement a merit appointment process.
Given Spitzer's executive order that he signed on his first day in office, I can't say I am surprised. His desire to de-politicize the judicial selection process is no doubt in part due to criticism of Gov. Pataki's choices, covered on the front page of today's New York Law Journal, among other factors.

Details to follow.

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Tuesday, January 2, 2007

 

Spitzer Advocates for Judicial Reform in New York

In the world of New York and the law, there is really only one story in today's paper: Crusading former attorney general Eliot Spitzer being sworn in as Governor, with vows to reform the state and improve the troubling ethical issues that he sees in Albany. And to pick better judges, (a subject overlooked by most of the media).

In making his reforms immediately by executive orders, he stopped government staffers from using state-owned cars, computers or other property for their personal business. This was the issue that brought down Comptroller Alan Hevesi.

Spitzer also prohibited state officials from starring in taxpayer-paid advertisements. This was a favorite activity of outgoing Gov. George Pataki that effectively acted as free advertising for him.

Spitzer
also, thankfully, set up new procedures to ensure those seeking state judgeships are qualified. A copy of his executive order with respect to new judicial screening committees can be found here. It includes folks from the judiciary and the attorney general's office, and from both majority and minority political parties.

The screening committees seem designed to find judges based more on core competence than political ideology. And that would be a very good thing.

[Addendum: On January 3rd, the New York Law Journal did a major front page story on judges Gov. Pataki elevated to appellate posts and their lack of diversity, which I posted about here.]

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Tuesday, December 12, 2006

 

Fighting Fake Drugs: NYT Editorial

The New York Times today jumps into the fray regarding the dangers of counterfeit drugs in an editorial. They do so from the perspective of those buying drugs over the Internet:
Tempted to buy cheap medicines from a pharmacy Web site? Think twice. If the Web site shows no verifiable street address for the pharmacy, there is a 50 percent chance the drugs are counterfeit.

In rich countries, fake medicines mainly come from virtual stores. Elsewhere, they are on the pharmacy shelves. In much of the former Soviet Union, 20 percent of the drugs on sale are fakes. In parts of Africa, Asia and Latin America, 30 percent are counterfeit. The culprits range from mom-and-pop operations processing chalk in their garages to organized-crime networks that buy the complicity of regulators, customs officials and pharmacists.

The editorial goes on to the deaths from counterfeits and the ways developing countries have been fighting it, and otherwise serves to further sound the alarm of buying medication when you don't know its origins.

As those in the pharmaceutical drug trade know, the issue of counterfeits has been a hot topic before the FDA in recent years. It is also, most certainly, not confined to foreign counterfeits as we have purely domestic counterfeiting going on.

After identifying the problem, the Times makes its pitch for action, writing:
An international convention is also needed to establish stiffer penalties for counterfeiting drugs, and marshal more funds and support to fight this deadly crime.
That's a great idea. And we can start right here at home with legislation currently stuck in congressional committees. The pending legislation before both the House and the Senate comes in the form of Tim Fagan's Law, named for one of my clients.

For more on the issues, you can visit my own Counterfeit Drug Resource Page, and read more about the problem by clicking on the Counterfeit Crugs label on your left and seeing other posts on the subject.

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Sunday, December 10, 2006

 

Lawyers Push For Greater Workplace and Product Safety

Business oriented Bloomberg News did a piece this week on the changing landscape for tort "reform" given the election results. A few snippets from the article:
Trial lawyers, who say they were demonized during 12 years of Republican congressional rule, are seeking vindication with the Democrats' return to power...Their plans include pushing tougher enforcement of workplace-safety rules and enhanced patients' rights.

They say the shift in power also signals an end to the so- called tort reform backed by President George W. Bush, which was aimed at limiting awards in personal-injury lawsuits against doctors and U.S. corporations.

``The Republicans had a hell of a chance for the last couple of years and really didn't get that far,'' said John Coale, a trial attorney at the Coale Cooley firm in Washington. ``And now it's over.''
...

Businesses are girding for a fight in Congress over workplace safety and such other issues as making it a federal crime for chief executive officers and other company officials to knowingly introduce defective products that kill or severely injure consumers.
....
Bush's major victory in limiting lawsuits was 2005 legislation requiring the biggest class-action suits to be filed in federal court rather than state courts, which have been more sympathetic to plaintiffs.

The Republican-controlled Congress failed to pass proposals to place caps on medical-malpractice awards and to create a $140 billion fund for asbestos-exposure victims.

...
Linda Lipsen, chief lobbyist for the [The Association of Trial Lawyers of America] would like to see Congress strip the insurance industry of its exemption from antitrust laws, a move that would pave the way for suits against insurers. She also suggested there might be congressional hearings one day on ``why there are 98,000 deaths per year'' in the medical industry.

Trial attorneys will ``alert the Congress to areas where they can encourage safety,'' including ``cars, airplanes, the environment, clean air and water, medical procedures, hospitals,'' Lipsen said. ``Our job is to make sure these industries are accountable.''

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Monday, November 27, 2006

 

New York Counterfeit Drug Bill Affected by Election?

The recent election seems destined to play a role in the counterfeit drug bill pending in New York. While last week I wrote about Tim Fagan's Law pending in Washington, that is not the only proposed legislation designed to bring greater safety to our drug distribution system. In Albany, Assemblywoman Amy Paulin (D-Scarsdale) introduced her own bill to track drugs and increase pharmaceutical safety. From the press release:
This legislation requires drug manufacturers to establish a pedigree for each prescription drug, requires every wholesaler to submit a bond of $100,000, punishes manufacturers and wholesalers who intentionally package, sell, transfer, distribute or deliver a counterfeit drug with a class D Felony, establishes a fine of up to two thousand dollars per violation for offending drug manufacturers, and authorizes criminal background checks for manufacturers and wholesalers.

But two things happened in the election. First on the negative side, Paulin's Republican co-sponsor lost his Senate seat. Nick Spano (R-Yonkers) had hung on to re-election by a mere 18 votes in 2004, but this time lost. Paulin was bold to reach across the aisle to ask Spano to co-sponsor this bill -- both pictured with me here after the press conference annoucing the legislation -- especially given the vulnerability of his seat. But sound public policy comes first for this bill she cares passionately about. She now needs a new sponsor on the Senate side.

And second, on the far more positive side, Eliot Spitzer blew away his opponent to win the governorship. Since Spitzer as Attorney General started an investigation into drug distribution practices in New York, it is presumably a matter he knows and cares much about. One of the subpoenas he dropped in this investigation was on my firm, for the records that I have for representing Tim Fagan and investigating the problem of counterfeit drugs.

This bill is one of many in state legislatures across the country that have popped up give the extraordinary risks from counterfeit drugs that exists due to our leaky drug supply chain. Hopefully the holes can be plugged before more people are injured.

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Wednesday, November 22, 2006

 

Counterfeit Drugs: How the election helps consumers

Counterfeit drugs fly beneath the usual political radar of war, deficits, gay rights, and other issues that Washington often deals with. But to Kevin Fagan, the problem of pharmaceutical fakery is a real problem: Tim, his then 16 year old son, had been injected with counterfeits after a life-saving liver transplant in 2002.

Kevin's crusade to help clean up our leaky drug distribution system -- which all too often allows fake drugs to slip into the legitimate supply chain through shady secondary wholesalers -- brought him to Washington, where Representative Steve Israel introduced Tim Fagan's Law in 2005. The bill, and the significant problems with the distribution system that allows this to happen, are detailed more fully on my Counterfeit Drug Resource Page. Since I represent the Fagan family, it is a matter of some interest to me.

The problem with the proposed law doesn't seem to be self-evident since it is non-partisan legislation that does the following:
  • Increases criminal penalties. The current federal law is three years in prison. Israel's bill increases penalties and includes up to life in prison.
  • Mandates that a manufacturer must alert the FDA of a counterfeited drug in 2 days. Currently, there is no mandate. The pharmaceutical industry has said that it would voluntarily tell the FDA about counterfeited drugs within 5 business days.
  • Provides the FDA with the authority to require companies to use anti-counterfeiting technology, as the technology becomes feasible and available.
  • Mandates that the FDA implement the paper pedigree rule that was mandated in 1988 and has been postponed for 17 years. It also closes the "authorized wholesaler" loophole and includes manufacturers as needed to start the pedigree.
  • Authorizes $60 million for spot-checking for counterfeits for each year between fiscal years 2006 and 2010.
  • Authorizes $5 million for each year between fiscal years 2006 and 2010 for educating the public and health care professionals on how to identify counterfeit drugs.
  • Provides recall authority to the FDA for prescription drugs. Currently, the FDA can only recall equipment and can only encourage private companies to recall their drugs.
  • Authorizes the FDA to issue subpoenas with respect to preventing threats to public health.
So why would a bill that has no partisan agenda languish in a committee despite it being sound public policy? The answer, I'm afraid, is that it languishes simply because it came from the minority party. Israel, who is the Fagans' congressman, happens to be a Democrat. So too is New York Senator Chuck Schumer, who introduced a counterfeit drug bill in the Senate.

With the Democrats taking control of Congress, it is hoped that this bill can now move out of the committees where it is stuck and out on to the floor for debate and voting.

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Saturday, November 18, 2006

 

Will the election results curb tort "reform"?

I put "reform" in quotes for a reason. Because those that tout such reform are really interested in granting various forms of protection and immunities to those who have caused injury to others. Reform generally means an improvement, but those with a political agenda to reduce the rights of the injured have reversed the meaning.

The election of Democratic majorities in both the House and Senate seems certain to have an effect on those who had championed corporate protections against law suits. As the National Law Journal notes in this November 16, 2006 piece:

So-called tort reform is just one of a number of legal agenda issues likely to be placed on the back burner or to undergo redefinition when the new Congress begins in January.

The House Judiciary Committee under Republican control has been a reliable source of tort system-related legislation, including medical malpractice liability limits, new sanctions on attorneys who file frivolous lawsuits, proposed constitutional amendments on a variety of contentious social issues, and efforts to limit what some of its members believe are unaccountable and activist federal judges. A good number of those proposals have been adopted by the Republican House only to be blocked in the narrowly divided, yet Republican-controlled Senate.


That part of the Republican agenda that carries this banner of reform has always smacked of hypocrisy to me. The party, after all, repeatedly claims to champion personal responsibility for one's acts. Yet in this arena they have done the exact opposite -- asking that protections be granted to corporations or physicians so that they would not be held responsible for their negligent or reckless acts. I can only think of one reason for this hypocritical position. In the arena of our tort system, it seems that campaign contributions carry more weight than political philosophy.

On my web site, I put together a page of materials regarding changes to our civil justice system that have been advocated by some. It is a subject I expect to return to in the future.

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The New York Personal Injury Law Blog is sponsored by its creator, Eric Turkewitz of The Turkewitz Law Firm. The blog might be considered a form of attorney advertising in accordance with New York rules going into effect February 1, 2007 (22 NYCRR 1200.1, et. seq.) As of July 14, 2008, Law.com became an advertiser, as you can see in the sidebar. Law.com does not control the editorial content of the blog in any way.

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