Stories that shouldn’t get away, part I

by Walter Olson on December 20, 2007

A guestblogger will be joining us momentarily, and I’ll be posting less over the holidays. Meanwhile, my pipeline is still backed up with items from the past year that deserve a more serious treatment than a hurried roundup mention permits. Here are four of them:

  • More docs moving to Texas? Watch out, they must be quacks! After the New York Times reported that doctors seemed to be showing fresh interest in practicing in Texas since its enactment of litigation reforms, our frequent sparring partner Eric Turkewitz of New York Personal Injury Law Blog quickly countered by noting that disciplinary actions in the state are way up, and — quite a jump here — concluded with a suggestion that the newly arriving docs must be causing quality problems. Among bloggers who took this idea and ran with it: Phillip Martin of Burnt Orange Report. Then Prof. Childs had to spoil the fun by asking whether the doctors being disciplined were in fact newcomers to the state and found that, to judge by an initial sampling, no, they’re not. And the medical blogs then knocked the remaining props out from under the reform-made-care-worse theory by linking to coverage documenting how the increase in disciplinary actions reflected the Texas medical board’s concerted recent effort to get tough on doctors — too tough, said many critics. In other words, the Texas medical profession was doing exactly what many skeptics demanded it do — submit to stricter oversight in exchange for liability reform — and now that very submission was being cited as if it proved that standards of care were slipping.
  • Uninjured car owners can sue GM over seatbacks. No class members claim to have been injured, but Maryland appeals court allows class action over cost of replacing allegedly weak seatbacks in GM cars. [DLA Piper; opinion, PDF; Maryland Courts Watcher]
  • The litigious stylings of Jonathan Lee Riches. We mostly ignore litigants who file handwritten pleadings from prison cells complaining of obviously hallucinated events, but there’s no getting around it: the South Carolina convict has become a pop culture phenomenon with his scores of lawsuits against sports figures, President Bush, Perez Hilton, William Lerach and Elvis Presley over a host of imagined legal injuries. Some of the coverage: The Smoking Gun, Dreadnaught, Deadspin, Justia, Above the Law. He even has several Facebook fan groups.
  • Taxpayers and vaccine-compensation lawyers. Under the federally enacted vaccine-compensation program, notes Kathleen Seidel, “a petitioner who brings a claim in good faith is entitled to reimbursement for reasonable attorneys’ fees and costs, regardless of whether the claim is successful.” (Forget about loser-pays; this ensures that taxpayer-defendants can win but pay the other side’s fees anyway.) What sorts of bills do you think attorneys file for reimbursement under those circumstances? Yep, very optimistic bills, in which they expect taxpayers to shell out for their attendance at “advocacy group meetings, and attendance at a conference of trial lawyers representing autism plaintiffs”. In this case, HHS successfully appealed (PDF) an order that it pay the fees. Seidel’s Neurodiversity blog offers a remarkable trove of insight into litigation relating to autism causation theories, vaccines and thimerosal, and this post is no exception. (Updated to include links.)
More stories that shouldn’t get away in another post to come.

{ 7 comments }

1 Kathleen Seidel 12.20.07 at 6:44 am

Thanks for the compliments! Here’s a direct link to the article you mentioned (it’s no longer on the front page), which discusses Iannuzzi v. HHS.

2 yojoe 12.20.07 at 7:04 am

I will admit that the first few of my postings about Jonathan Lee Riches© were because there was something funny about the outlandish claims. But, as time passed I became more interested in the inability of our legal system to deal with frivolous pro se litigation. Despite the language of 28 USC 1915(g) – prohibiting more than three malicious or frivolous civil actions by prisoners – it appears that this is not able to be enforced by federal courts. Mr. Riches© has filed over 100 lawsuits, with no end in sight.
It seems one of the problems is that he will raise at least one issue that has merit. For example, he will complain that he was sentenced under a scheme that allowed a judge, rather than the jury, to find aggravating factors that enhanced his sentence. Or he will site Booker and declare that the Sentencing Guidelines are only advisory and should not have been followed in his case. He may be correct after Kimbrough v. United States.
Any insight that you are your readers may have about this type of litigation would be of great interest.

yojoe

3 Bill Childs 12.20.07 at 10:20 am

I had in fact forgotten that I had more information about the Texas doctors’ story but hadn’t gotten around to posting it; here’s the new post. More to come, once my research assistant finishes with finals.

4 Eric Turkewitz 12.20.07 at 10:59 am

I think it’s fair to conclude the the NYT did significantly understate the increase in disciplinary actions. As to the cause and effect issue, your sparring partner here did use the word “might” at the end of my brief analysis, as opposed to “must.”

5 Hans Bader 12.20.07 at 11:19 am

The perverse “winner pays” rule in vaccine cases discussed above is, sadly, not unique in the law.

In divorce and family law cases, the “winner pays” rule is common in many states, at the expense of both innocent spouses and their employers, who are ordered to pay the fees of divorce lawyers they end up successfully fighting.

In California and Massachusetts, the spouse who had more assets before the divorce is commonly ordered to pay the attorneys fees of the other spouse even when the “richer” spouse prevails on the relevant motions and legal issues, and the divorce leaves the nominally “richer” spouse under crushing support payments.

That’s true even when the divorce so ruins the once wealthier spouse (through support payments and equitable distribution) that the spouse whose attorney receives the fees really is more prosperous afterwards.

(In Massachusetts, child support equals 25 percent of gross income — and more than a third of net income — for just one child, leaving the supposedly “richer” non-custodial parent actually poorer than the custodial parent after the divorce, as a result of having to pay most of the “richer” parent’s net income in child support and spousal support).

Non-parties (such as a spouse’s employer) dragged into document disputes with a divorcing wife may be ordered to pay her attorneys fees even when they prevail in quashing her subpoena for documents aimed at them. (The California Third District Court of Appeal ordered just that).

Thankfully, in other states, like Virginia, a spouse who brings an unsuccessful appeal in a divorce case typically does not receive attorneys fees from the spouse who won, even if the losing spouse is poorer.

“Winner pays” thus does not apply to everything.

Note, however, that even in Virginia spouses commonly end up paying lawyers for the other side, even absent a showing of fault.

That’s because the supposedly wealthier husband against whom a no-fault divorce is typically granted (over his objection) is commonly ordered to pay attorneys fees even in states like Virginia, even though soon after the divorce, the ex-husband’s living standard typically falls because of support obligations.

See my December 4, 2007 post “The Economics of Divorce” at openmarket.org.

6 nicolle 12.20.07 at 5:08 pm

thanks for linking to my jlr© facebook group.

i really should be more annoyed about how he is using the legal system, but i really can’t get too worked up about it. the lawsuits are just too funny…it’s as if he’s using the courts as an as-yet-untested form of performance art, and i want to see how far he can take it.

he missed his calling…he should never have gone into identity theft. he’d have made a ton of money legally as an absurdist humourist.

7 Robb Shecter 12.20.07 at 8:36 pm

Re: JLR

It _is_ interesting to see how far one person can get filing frivolous lawsuits. A great subject of study would be to calculate the costs of these – how far do they get, on average? How much court time is spent? etc.

On a practical note, though, money could easily be saved up front by just getting the guy proper psychiatric care. I saw one suit that he moved to dismiss because he realized that the voices were in his head, not in real life.

This could be a case of the costs of not providing rigorous health care.

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