February 26th, 2018

Dumbledore’s Army Comes Alive In Gun Debate

Cameron Kasky, a 17-year-old student at Marjory Stoneman Douglas High School in Parkland, Florida, confronting Sen. Marco Rubio live on CNN for his support for the NRA.

(We interrupt our regular programming to bring you this off-topic, special message that might affect your life.)

Like many people, I’ve watched in awe as an army of teenagers has taken on the National Rifle Association and the extraordinary proliferation of guns across America. As organic as any movement ever created, it spontaneously erupted from the survivors at Marjory Stoneman Douglas High School in Parkland, FL, who were cowering in classrooms and closets as their classmates and teachers were gunned down.

It started with three busloads of kids, some coming straight from funerals, going to Tallahassee to vent their anger at those who are supposed to  represent them.

That awe comes from watching kids use their old playrooms to meet and organize on one of the great political debates of the day. That’s a helluva thing, no matter what your political persuasion. After all, at every graduation I’ve ever attended — and probably every one that you attended too — the mantra has always been that the graduating group are our future leaders. And there they are leading, whether they were prepared for it or not.

To put this into kid-perspective, consider that the Columbine massacre happened in 1999. And many more have taken place since then. That means that today’s high school seniors, born in 2000, have always lived with instructions regarding potential attacks, lock-downs and places to hide.

The objectives list, on our basement chalkboard that my kids have used throughout their lives.

But kids brought up to hide are not hiding now. They’re out there now in force, not only in Florida, but around the country. One of my own teenagers, just days after starting a Facebook group to organize and see how students here in Westchester County can assist, had 500 members in just days.  And that’s for a strictly local group in a place that already has decent gun safety laws. Kids are interested in doing what they can. Big time.

My oldest — soon bound for college — met with some friends in the basement playroom this weekend. An initial objectives list they put together on their old chalkboard is shown here.

In the Harry Potter series, the Hogwarts kids form  Dumbledore’s Army to combat the dark arts. Today’s kids were raised on these books, which  inspired so many to become active readers. That fantasy world of a kid army at Hogwarts, in one sense, seems to be springing to life around us as they mobilize.

Battle, of course, can take many forms. None are so stupid as to believe that a magic wand will suddenly make them safe.

Raised in the era of social media, they know that their weapons of choice will have nothing to do with physical (or magical) arms, but the art of mass movements, protest and persuasion. And voting as they all come of age.

The #BoycottNRA movement has already caused the NRA to lose valuable relationships with car companies, airlines, hotels, banks and insurance companies. One would expect that less money means less financial support for politicians that have been doing its bidding in exchange for contributions.

Decreasing the power of the NRA is already underway. And that is before any nationwide boycotts or walkouts have occurred to help bring yet more attention to the issue. In other words, it is likely that the Florida kids are already making a substantial political difference.

Some have now started pushing their older brothers and sisters to avoid Florida for spring break, to pressure pressure their legislators to act.

As they organize, they will, of course, make mistakes, though none will be as grave as those that allow guns to be purchased willy-nilly, with less regulation than a driver’s license.

Like others who’ve preceded them in the gun debate over the decades, some will allow themselves to get sucked into semantic discussions about what constitutes an assault weapon, and lose sight of the fact that 30,000+ people are killed each year in the U.S. by firearms. It’s the easy access to guns in some states that has had an extraordinary impact on suicides, drunken rages, homicides (of the “regular” kind) and accidents negligence. [updated with link]

Others will get sucked into debates over protecting schools, as if malls, movie theaters, restaurants, and the entrances to sports/music venues (among other places that people gather) couldn’t also be targets for madmen and terrorists alike.

And still others will get sucked into Second Amendment debates. They should not. For it isn’t a question of “supporting” the Second Amendment, but of its (mis)interpretation. Even under the deeply strained logic of D.C. v. Heller that reversed prior law to say that the Second was an individual right instead of a collective one belonging to a well-regulated militia, it didn’t say that all gun safety laws were unconstitutional. It said that an absolute ban was.

Finally, some will try to argue with the gun fetishists, which are the loudest group of opponents to gun safety. This is useless and unproductive. Focus on the politicians, and the responsible gun owners who are, like you, appalled by the epidemic of gun deaths.

Given that many states that have good gun safety laws have withstood legal challenges — and those laws correlate to lower rates of gun deaths that those with lax safety laws — one should not stop arguing for gun safety.

Most folks don’t know that New York has one of the lowest rates of gun deaths in the nation, not just because of our gun safety laws, but because our surrounding states also have them making it less likely that they will be trafficked into New York. The graph you see here is extraordinary, with that grouping states in the lower left corner of NY, CT, MA, NJ and RI.

(Edit: Hours after posting this, an article appeared on the Second Circuit Court of Appeals upholding New York City’s solid gun safety law in the face of Second Amendment challenge.)

If the kids were asking me — and none of them have, though it hasn’t stopped me from offering up my two bits — I’d urge them to do everything possible to maintain the focus on tightly restricting access to guns of all kinds. It’s the big picture of 30,000+ annual gun deaths that counts, and they shouldn’t let anyone try to play small ball with them.

As the kids step forth into politics, they might well be asking how it is that, when an overwhelming majority of America wants gun safety, it hasn’t yet happened. They may find themselves looking for the first time at how the influence of gerrymandering and pubic financing for elections has resulted in radicals being elected to office. The subjects are related.

Hopefully, they will also figure out fast not to overstate their case, giving opponents material to latch on to in order to distract the conversation.

The gun debate is hardly new, and was the subject of an early ’70s All in the Family episode when I was growing up. It’s been fought over long before this generation was born. The question is, will our Twenty-First Century Kids succeed where my generation has failed?

Don’t let anyone tell you “it’s too soon” after a tragedy. It has been going on for decades. It will not magically end on its own.

Go kids, go. Your parents are cheering you on to accomplish something that prior generations have been unable to do.

Go forth into the battle for gun safety laws. All of our lives depend on it.

 

February 16th, 2018

The Lacrosse Ball and the Lawsuit

Addy Tauro head shot, Syracuse University

I’ve got this thing about sports, injuries and lawsuits. And that’s because of two things that seem to be in conflict: First, I bring lawsuits regarding injuries for a living. But second, I am also the race director for a 13-mile trail race.

And you know what? Folks get injured while trying to run fast over rocks, roots and other hazards that include other runners. The risk of wiping out comes with the territory.

So over the past years I’ve written about injuries (and lawsuits) from snowboarding, softball practice, horseback riding, auto racing, and water slides.

With that intro now over, we turn to lacrosse and a decision from last week.

The lacrosse drill at Syracuse University was conceptually simple for the women’s varsity team: Athletes ran down the sidelines while a line of coaches roll balls to them from about 20-25 feet away. The athletes scoop them up and toss them back to the coaches. Then repeat with the next coach.

According to the suit that was ultimately filed, the ground ball part of the drill had never been performed any other way. Except that one coach decided on this one day in the middle of the rolling drill to wing the ball overhand to Addy Tauro as if it were a pass.

Now if Tauro survived said winging of said lacrosse ball without injury, would I be writing about this today?

When one of the coaches whipped it at her head, it was wholly unexpected and she “never even saw it coming,” as she stated in her affidavit.

She suffered a concussion.

She claimed in her suit that throwing a hard rubber lacrosse ball at someone’s head, when she’s not expecting it, is grossly negligent and reckless.

So. Does this case get dismissed under New York’s assumption of risk doctrine because, when engaging in recreational activities, she consented to the commonly appreciated risks of the sport that flow from such participation?

I’ll wait while you ponder. Time’s up.

Rather than answer the lawsuit and go through discovery, Syracuse moved immediately for summary judgment based on the assumption of risk doctrine, and also based on a written waiver that Tauro had signed. They countered her version of events.

And the answer is: Summary judgment for Syracuse was denied on both counts and the case goes forward.

The Appellate Division (Fourth Department) first dispensed with the waiver issue, since such waivers are against public policy for people who act with gross negligence or recklessness. (see Gross v. Sweet and GOL 5-326)

And on the assumption of risk doctrine, the court stated that if the claims by the plaintiff were true (and at this early stage a court must make that assumption) that she did not assume these kinds of risks. This risk was not part of the game, as this was a practice. Nor was it an anticipated risk of a pick-up drill that a ball would be thrown at her head.

The court held that a player will not assume the risks of reckless or intentional conduct, or dangerous conditions that the coach created over and above the usual dangers that are inherent in the activity.

Assumption of risk goes to the anticipated and appreciated risks. Which is why, if one is writing a waiver, it might be wise to educate the participant as to all of the anticipated risks. Thus, while a waiver might not excuse negligence based on public policy grounds, it might be quite useful for assumption of risk grounds.  “Look!,” a defendant could now safely claim, “she knew about this risk!”

You know those sports waivers written in ALL CAPS that appear designed to dissuade the participant from actually reading them? They are for shit, in my opinion, and really don’t serve the purpose of educating to real risks. Because they are not being read. Nobody reads them except for the lawyers that wrote them. And then they hope that the legal mumbo jumbo somehow imparts knowledge of the risks?

The one I wrote for my trail race gets read. And I know that because people will routinely come up to me and tell me so. It was crowd-sourced  years ago, with the idea of doing everything possible to make it readable, and therefore useful for actually educating people on the risks of participating. If anyone decides to create a Waiver Hall of Fame, I’m going to submit it.

The case is Tauro v. Gait and Syracuse University

 

 

February 14th, 2018

Trump’s Lawyer, the Porn Actress, the 130G Payoff and Attorney Ethics

Stephanie Clifford (aka Stormy Daniels)

Yesterday news broke that longtime Donald Trump attorney, Michael D. Cohen, was responsible for paying $130,000 to porn actress Stephanie Clifford (aka Stormy Daniels) on behalf of Trump in 2016, before the election.

“In a private transaction in 2016, I used my own personal funds to facilitate a payment of $130,000 to Ms. Stephanie Clifford,” Michael Cohen said in a statement. “Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly.”

When the underlying stories of they payoff started in January, many folks immediately started looking to see if such a payment violated campaign finance laws. And indeed, that is what most of his statement addressed yesterday.

But I’m looking at the New York Rules of Professional Conduct. Those of us in the personal injury bar know, for example, that advancing funds to clients is a big fat no-no. Does the same provision apply here?

The relevant rule reads as follows:

RULE 1.8:

CURRENT CLIENTS:
SPECIFIC CONFLICT OF INTEREST RULES

(e) While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client…

OK, you see that ellipses and you want to know what comes after, right? There are three exceptions, each of which invite an investigation to see if they apply:

(1) the transaction is fair and reasonable to the client and the terms of the transaction are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking, and is given a reasonable opportunity to seek, the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

The full statement is below and you can decide for yourself if you think it looks like an advance or guarantee of financial assistance (not because Trump needs it, but to hide it). (Edit: Whether there was litigation involved — matrimonial or contract? — is impossible for us to know from here.) Another problem may be that, from Trump’s perspective, this isn’t a transaction if he claims not to be repaying the money.

At the very least, it seems that Cohen has invited an investigation from the Disciplinary Committee. I’ve long said that Trump is a one-man bar exam with never-ending legal issues unlike any other person. That pattern continues today.

The statement:


 

 

February 13th, 2018

Aetna’s Death Panels?

When I first saw the story, half of me believed it, the other half not. A former medical director at Aetna testified that he didn’t look at patient medical records when deciding whether to (dis)approve medical treatment.

Yeah, I did a double take also. But now there’s an investigation going on.. As CNN reported,

California’s insurance commissioner has launched an investigation into Aetna after learning a former medical director for the insurer admitted under oath he never looked at patients’ records when deciding whether to approve or deny care.

But it’s actually far worse than that. Because, it seems that the medical director wasn’t going rogue because he was lazy and out playing golf. No. He was actually following Aetna policy by rubber-stamping the recommendations of nurses:

The California probe centers on a deposition by Dr. Jay Ken Iinuma, who served as medical director for Aetna for Southern California from March 2012 to February 2015…During the deposition, the doctor said he was following Aetna’s training, in which nurses reviewed records and made recommendations to him.

The deposition came up as part of a breach of contract lawsuit for denying medical treatment under a healthcare policy:

The deposition by Aetna’s former medical director came as part of a lawsuit filed against Aetna by a college student who suffers from a rare immune disorder. The case is expected to go to trial later this week in California Superior Court.
Gillen Washington, 23, is suing Aetna for breach of contract and bad faith, saying he was denied coverage for an infusion of intravenous immunoglobulin (IVIG) when he was 19. His suit alleges Aetna’s “reckless withholding of benefits almost killed him.”

The treatment was expensive, costing some $20,000 per infusion. And it was covered by Washington’s prior insurer. Aetna is trying to claim that the denial was the young man’s failure to get a blood test. His own doctor, however, said it was medically necessary.

But this was the kicker to his personal story — the medical director who denied the treatment hadn’t actually read the records, had no idea how to treat the disease or what to do:

During his videotaped deposition in October 2016, Iinuma — who signed the pre-authorization denial — said he never read Washington’s medical records and knew next to nothing about his disorder.

Questioned about Washington’s condition, Iinuma said he wasn’t sure what the drug of choice would be for people who suffer from his condition.
Iinuma further says he’s not sure what the symptoms are for the disorder or what might happen if treatment is suddenly stopped for a patient.

Well, so much for the doctor’s oath to “Do no harm.”

To my eyes, this looks like Aetna engaging in a staggering case of insurance fraud, not simply for denying Washington treatment by having a no-nothing doctor doing the denying, but rather, because this was the way Aetna trained him to engage in denials. This was policy.

And if it’s policy, there are many people involved in the conspiracy.

Some years ago, regular readers might remember, there was a lot of hollering and screaming about “death panels” when Obamacare was being debated, in the event government got further involved in health care. That is to say, that treatment would be denied because it was cheaper to let the patients die. That was the political line.

Well, guess what? It looks like we’ve arrived, but it isn’t because of the government trying to save a few bucks. Having insurance panels deny benefits, for the sake of profit, is better?

And you know why Aetna is doing it? Because it’s a publicly traded company that has, at its core, a fundamental duty to maximize profits for shareholders. That’s what publicly traded companies do.

Given that Aetna has 23 million customers nationwide, this scandal is likely to be massive in its repercussions as most surely some have died as a result denials of care — denials that took place without a doctor’s review of the records.  And we go here beyond mere negligence, but to a corporate policy of recklessness with people’s lives.

Perhaps this should not really come as a surprise, however, as I see the same thing happen elsewhere in the insurance industry. It is routine in New York, for example, for victims of car collisions to get cut off from no-fault healthcare benefits based on quickie medical exams that last only a few minutes. And doctors doing “independent” reviews for insurance companies in personal injury cases likewise do these quickie exams to deprive those injured from negligence from recoveries, which was the subject of a multi-part series I did in 2013.

All of this is tied together with a common theme of doctors who went to medical school to care for others now doing the bidding of insurance companies. Because the insurance companies ask for it, living, breathing humans are losing healthcare benefits and rights while doctors allow themselves to be used as cover as they prostitute their services. But prostitute may be the wrong word, as prostitutes don’t act in ways that may hurt or kill their clients as a matter of policy.

Whenever a scandal pops up, the big question is always the same: Who makes the profit? In this case, it is clearly Aetna shareholders. And the doctors who’ve sold their licenses to Aetna in exchange for nice, tasteful, fees.
————

Elsewhere:

An Aetna “Fake Accounts” Level Scandal? Medical Director Admits He Never Reviewed Medical Records Before Denying Care (Smith @ Naked Capitalism):

Even though it is tempting to jump to worst-case conclusions, we’ve seen too often in corporate scandals that that is precisely how things pan out. As famed short seller David Einhorn says, “No matter how bad you think it is, it’s worse.”

 

January 31st, 2018

#EricsLaw Introduced In NY Assembly – Updated!

OK, the bill isn’t actually called #EricsLaw, that’s just the name I wish to call it since it stems from a post I made last August concerning one of my pet peeves: The ad damnum clause. That’s the pretentious Latin way we lawyer-types refer to the damages demand in a lawsuit.

Since this blog is actually cited in the bill’s memo [pat self on back], I figured I ought to tell you about it.

The underlying story had Fox newsman Eric Bolling getting shit-canned by Fox News over sexual harassment allegations. He thereafter started a $50M defamation suit.

I dug in to write, not about the aforementioned shit-canning, but about the fact that you can’t put that ad damnum clause in a personal injury suit, and defamation qualifies as personal injury.

Yeah, I was writing about boring procedural things again. But you know what? Putting demands in complaints encourages lawyers to claim large dollar amounts out of fear that, if we make a demand too low, it may limit our clients’ recovery later. Oh, Mr. Plaintiff client needed five surgeries? Who knew way back then!?

And those big numbers lead to the very predictable consequence of lawyers (and our clients) looking fabulously stupid as the demands are always in the headlines. And the news always wants the money shot. Which thereby poisons the jury pool for every case.

It’s also despised by defendants, as they see it as an unfair trashing of Dr. Defendant, now being the subject of the headline grabbing numbers. The law was amended to abolish the practice in 2003.

Hallelujah!! No more stupid, telephone number demands made by lawyers to cover worst case scenarios or to, [spit, spit] get their names in the Daily News. Doctors were thrilled also. Win-win!!!

But I found in writing the Bolling piece that, lo and behold, because the case was not started in the traditional manner with a summons and complaint but, rather, with the rarely used and widely disfavored summons with notice that he was actually required to put in a demand.

Oops. It seems that when the Legislature amended CPLR 3017(c) in 2003 to prohibit the money demand, it forgot to list the relatively obscure summons with notice as one of the pleadings. This is how it now reads:

(c) Personal injury or wrongful death actions.  In an action to recover damages for personal injuries or wrongful death, the complaint, counterclaim, cross-claim, interpleader complaint, and third-party complaint shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled.

And the section that deals with a summons with notice (CPLR 305) requires it for all actions except medical malpractice:

(b) Summons and notice.  If the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default.

Are you still with me? Please say you’re still with me. This is going to be exciting I tell you!

So it seems that my little blog posting on this inadvertent loophole was noticed up in Albany, because lo and behold — can I use that phrase twice in one posting? — there’s now a bill from Assemblyman Daniel J. O’Donnell to fix CPLR 3017 by adding the summons with notice (A. 8852) to the list of other pleadings where you can’t put in a specific demand for damages.

How do I know it was my little blog that did it? Well, it’s cited in the bill’s memo:

Where does that leave us? It leaves us with the need to also add a small fix to the CPLR 305 provision currently requiring the demand in a summons with notice, so that there isn’t any conflict of law with an amended 3017.

And, since we’re on the subject,  it also leaves us with getting rid of the need to put a demand in a Notice of Claim for New York City (GML 50-e), which must be filed within 90 days of an incident.  As if anyone actually knows how extensive the damages will be at the stage (Judge Sues City for One Million Dollars!), which is why it’s so stupid to have. It is already prohibited in every place in New York State except the City of New York (any “city with a population of one million or more”).

[Updated:  This post appeared on January 31st. On February 9th, the proposed legislation was updated to include the two changes I suggested above to CPLR 305 and GML 50-e.]

I think that these are the last existing vestiges of the demand for damages in this state. The Legislature dumped them from the Court of Claims (cases against the state) back in 2007, which I celebrated at the time.

And I’m going to call this #EricsLaw (Underline! Italics! Bold! #Hashtag!) — and it ain’t for Eric Bolling — since it seems to have come from my little blog posting and there doesn’t seem to be anyone else around to name it after.  And, by gosh, every law needs to be named for someone.

I would name it the far more interesting Turk’s Demand, but hey, I’m sticking with convention here.

One day someone can chisel on my tombstone — with or without the hashtag, I’ll be in no condition to complain — that I helped tweak the CPLR for everyone’s benefit, if it actually winds its way through both houses of the Legislature and gets signed.

Such an accomplishment. I’m all verklempt.

And here’s the kicker: The Bolling suit went, to absolutely no one’s surprise, absolutely nowhere. There are no other documents in the court file after the summons with notice was filed last August, not even an affidavit of service. No complaint or demand for one. No appearance by any defense counsel. Nothing. Zero. Nada. Zippo.

Bolling apparently filed for no other reason than to grab headlines and intimidate others who might come forward. This kind of legal filing, designed to intimidate by imposing the fear of litigation, even if wholly unfounded in law, is the reason that New York should pass anti-SLAPP legislation.

The anti-SLAPP bill previously passed the Assembly but remains oddly stalled in the Senate.  Who is it that’s in favor of frivolous threats that shut down speech, and has stalled the bill in the Senate?  Inquiring minds want to know.

Now that would be a terrific piece of reform. I’ve been frivolously sued twice over this blog, so feel free to stick my name on that one also. With or without the hashtag.