Update to the Hamilton County medical malpractice case we discussed in May. Four jurors have signed affidavits claiming that they were “coerced” by the judges’ instructions demanding a verdict into finding for the plaintiff rather than deadlocking the jury; one or two others deny that this happened. (Chattanooga Free Press, Jun. 14, Jun. 24, and Jun. 28; h/t J.T.)
While the “Allen charge” the judge gave appears to violate Tennessee law (which, unlike federal law, disapproves of such instructions), reading between the lines of the news stories, it seems that the defendants sandbagged any objection. As one can see, the journalist did not know enough law to ask the follow-up question “Did you object at the time to the jury instruction?”, which would be the critical inquiry. (Though it is possible that she did know, but had that part of her story cut by editors.) If this is the best grounds of appeal for the defendants, and plaintiff’s lawyers are correct that there was no objection at the time, the defendant is facing a steep uphill battle. Generally, courts don’t like to go wading elbows deep to scrutinize the jury deliberations; otherwise, every trial would be followed by a collateral trial into the claims of jurors, and losing parties would have the incentive to lobby jurors to testify against their verdict. (I learned this the hard way in my first appellate briefing as a junior associate.)
Tagged as:
defensive medicine,
juries,
medical malpractice,
Tennessee
The Center for American Progress is hosting two panels on the topic “Legal Services for the Poor in an Economic Downturn,” this Wednesday, July 8. I’m on the first panel with Peter Edelman and Don Saunders from 12 to 1. A “light lunch” will be served at 11:30. I’ve spoken before on this topic in rooms where I was the only person on the center-right, but it’s always nice to see a friendly face.
Tagged as:
pro bono,
Ted Frank
An elderly club that had been meeting for four years every Tuesday at the Eye Library in Eye, Cambridgeshire, were told that they could no longer have hot tea or coffee at their meetings, lest it be accidentally spilled on a toddler. They’ve retreated to holding meetings in members’ homes. [Telegraph] Hat tip to F.R.
Tagged as:
hot coffee,
nanny state,
United Kingdom
Before asking a federal judge to grant preliminary approval for a class action settlement with Ameritrade over alleged privacy breaches, make sure that your “client,” the class representative, isn’t going to tell the court he opposes the settlement. In re TD Ameritrade Account Holder Litigation, Case No. C 07-2852 VRW (N.D. Cal.) ($1.87M for the attorneys, coupons for the class.).
Tagged as:
CCAF,
class action settlements,
class actions,
coupon settlements,
don't,
privacy
I’m speaking on the Hill this Monday along with Robert Alt of Heritage and Ken Boehm of the NLPC on this topic. Monday, June 22, 2009, 12:30 – 1:45 pm, Room B354, Rayburn House Office Building. “It may be an old legal cliche, but several pending cases that have been remanded by the Supreme Court raise the question of whether we face this problem today. Please join our distinguished panel for a lively discussion on several cases that have clogged court dockets in an effort to determine if this old legal cliche is, in fact, true.” And “Food Will Be Served.”
Tagged as:
Supreme Court,
Ted Frank
Protect “a letter to [a] girlfriend [stating] that a prison officer had sex with a cat” but do not protect mailing a prosecutor “a note written on toilet paper” saying “Dear Susan, Please use this to wipe your ass, that argument was a bunch of shit! You[rs] Truly, George Morgan.” (Morgan v. Quarterman (5th Cir. 2009)). W.C., sending us the case, comments, perhaps only semi-facetiously:
(i) He said “very truly yours.” Maybe he was trying to help her. He was at least sincere.
(ii) I wouldn’t mind doing a similar stunt to opposing in a case I have currently. I too would do so from a helpful perspective. Is that so wrong?
Tagged as:
Fifth Circuit,
free speech,
prisoners
In 2007, Mattel discovered excessive levels of lead in some of its imported Fisher Price toys. It immediately recalled millions of toys and self-reported the violation. Nevertheless, it has been hit with class action lawsuits. And if you ever had any doubt that the CPSIA was an overreaction and unnecessary to protect consumer safety, Mattel last week paid $2.3 million in fines for the violation of pre-CPSIA law. [CNNMoney via ABAJournal]
Tagged as:
CPSC,
CPSIA,
CPSIA and Congress,
CPSIA and toys
Readers may recall our discussion of the Bluetooth Headset class action settlement, which remarkably granted zero to the class while asking for substantial attorneys’ fees. I asked if anyone was interested in objecting, and the response was overwhelming. Today I’ve filed an objection on behalf of seven clients.
There were more objectors out there than I could feasibly represent. If you wanted to object, but I was unable to represent you, you can still join this objection. Follow the instructions for notifying the court and attorneys of your objection, and simply state, in addition to your name and address and phone number, that you join the objection of William J. Brennan et al., docket number 107. I won’t be your attorney, but you can have the pleasure of “voting” for the objection I wrote.
And anyone in Los Angeles July 6 who wants to watch the hearing, please join in the fun. I’ve got my plane ticket.
Tagged as:
Bluetooth headsets,
CCAF,
class action settlements,
class actions,
cy pres,
Los Angeles
I expressed skepticism this summer that the Exxon Shipping v. Baker decision was a positive sign for the Court’s punitive damages jurisprudence. After the replay of Philip Morris v. Williams and, now, the Court’s denial of certiorari in DaimlerChrysler v. Flax this week, I can say I was right.
As readers of Overlawyered know, the Tennessee Supreme Court reinstated $13.3 million of punitive damages over a good-faith dispute over a van’s seat back design (in an accident caused by a drunk driver), giving no credit to the fact that the design in question was safer than federal safety standards, or to Exxon Shipping’s suggestion that punitive damages greater than a 1:1 ratio were possibly constitutionally inappropriate where compensatory damages were substantial and the defendant’s actions were not intentional or done for profit. As I described the case back then:
In 2001, Louis Stockell, driving his pickup at 70 mph, twice the speed limit, rear-ended a Chrysler minivan. Physics being what they are, the front passenger seat in the van collapsed backwards and the passenger’s head struck and fatally injured 8-month old Joshua Flax. The rest of the family walked away from the horrific accident. Plaintiffs’ attorney Jim Butler argued that Chrysler, which already designed its seats above federal standards, should be punished for not making the seats stronger — never mind that a stronger and stiffer seat would result in more injuries from other kinds of crashes because it wouldn’t absorb any energy from the crash. (Rear-end collisions are responsible for only 3% of auto fatalities.) Apparently car companies are expected to anticipate which type of crash a particular vehicle will encounter, and design accordingly.
(h/t Cutting)
Tagged as:
autos,
Chrysler,
punitive damages,
seat backs,
Supreme Court,
Tennessee
I summarize my recent testimony on the Hill in today’s American:
As I discussed in recent testimony on Capitol Hill, if one takes conservative estimates from these economic studies and adds it all up, the total cost to the economy from excessive litigation can be estimated to be between $600 billion and $900 billion a year, the vast majority of which is simply wealth destruction. That is between 4 and 6 percent of GNP, a tort tax of between $8,000 and $12,000 a year for an average family of four.
The entire hearing is on YouTube, or you can watch a highlight reel.
Tagged as:
nonmonetary costs of litigation,
Ted Frank,
tort reform
I was given the opportunity to be on a public-affairs-in-America program on Press TV, the English-language Iranian television network, yesterday. The majority of discussion was on economic issues, but I do get to comment on a number of counterproductive laws Congress seems intent on passing this term. The program is available on line.
Tagged as:
on TV and radio,
politics,
Ted Frank
