Menlo Park, Calif.: A 90-year-old lawyer’s BMW SUV jumped the curb and pinned two 6-year-old twin brothers against a wall, seriously injuring them. Now the driver, Edward Nelson, “states in his response to the lawsuit that the plaintiffs ‘carelessly, recklessly and negligently conducted and maintained themselves’ in a way that contributed to the accident. Furthermore, ‘knowing the probable consequences thereof, (they) placed themselves in a position of danger and voluntarily participated in all the activities,’ and so assumed any related risks. Finally, the plaintiffs failed to ‘reasonably mitigate’ any damages they sustained.” [Sandy Brundage, The Almanac (Peninsula communities, Bay Area)]
In the season’s highest-profile case of alleged medical negligence, 13-year-old Jahi McMath, described as suffering from sleep apnea, went in to Oakland Children’s Hospital for surgery. After the surgery she began bleeding profusely, went into cardiac arrest and suffered brain death.
A hundred press accounts have described the procedure McMath underwent as a “routine tonsillectomy.” Not so, according to Brandon Peters, M.D. at About.com:
There is a paucity of known facts in this situation. The family and their lawyer have released few specific details. Oakland Children’s Hospital, bound by the privacy restrictions of the Health Insurance Portability and Accountability Act (HIPAA), has offered even less. Jahi underwent three surgical procedures for the treatment of her sleep apnea. This included a tonsillectomy, uvulopalatopharyngoplasty (UPPP), and removal of nasal turbinates. Though initially described as a “routine tonsillectomy,” this degree of surgery in children is not routine. It is extensive. When performed on a child, the risk is high.
More here and on uvulopalatopharyngoplasty (or “UP3″) and its indications and risks here. It should be apparent that with the sparsity of facts agreed on it is still extremely early to begin speculating what went wrong in McMath’s case and what kind of medical negligence if any might have been involved. (& Alkon)
The ban applies to privately owned homes that share a party wall with another home. [ABC News] The rationale, per city official Rebecca Woodbury:
“It doesn’t matter if it’s owner-occupied or renter-occupied. We didn’t want to discriminate. The distinguishing feature is the shared wall.” As justification for the rule, she cited studies showing that secondhand smoke seeped through ventilating ducts and walls, even through cracks [emphasis added -- W.O.]. “It depends on a building’s construction,” she said, “but it does affect the unit next door, with the negative health impacts due to smoke.”
San Rafael is in affluent Marin County just north of San Francisco. Woodbury said there had been hardly any opposition to the ordinance: “We have a very low percentage of smokers in the county,” she said. On proposals in Berkeley, Calif. to ban some smoking in private homes, see this recent post.
P.S. With end-of-year donation time coming on, I won’t be writing any checks to groups like the American Lung Association that support this sort of thing. Plenty of deserving health and research charities do great work while being respectful of individual liberty and property rights.
Berkeley, Calif. councilman Jesse Arreguin proposes banning smoking in private single family homes when children, seniors or lodgers are present [San Francisco Chronicle]
More: I’m quoted by Chronicle columnist Debra Saunders:
In deference to the secondhand smoke rationale, Arreguin suggests that the ban apply if a minor lives in the home, “a nonsmoking elder, 62 years of age or older is present” or any other “non-smoking lodger is present.”
Walter Olson of the libertarian Cato Institute compares the Berkeley nanny ordinance to secondhand smoke itself: “They are seeping under our doors now to get into places where they’re not wanted.”
He faults “ever more ambitious smoking bans” that rework the definition of private space. “Now they’re really just saying it doesn’t matter if you have the consent of everyone in the room.” Olson savored Arreguin’s suggestion that 63-year-olds cannot consent to being near a smoker.
Inspired in part by the work of Cornell law professor Robert Hockett, the city of Richmond, Calif. is planning to 1) use eminent domain to seize private mortgages for considerably less than their actual worth; 2) cut a deal with existing residents of the homes to install FHA mortgages in place of the seized mortgages; 3) use the windfall surplus — derived by paying the private mortgage holders less than the actual value of their forcibly seized holdings — to subsidize the local residents, thus buying their political favor, as well as leaving a goodly sum to pay off the private outfit called Mortgage Resolution Partners that’s pushing the scheme (written up sympathetically in a recent New York Times account).
What could go wrong, aside from to the spirit of the Constitution and the rule of law? Gideon Kanner points out that even California eminent domain law still requires the payment of “fair market value, not some bargain basement figure pulled out of thin air”:
…we believe that not even California courts will stand still for that. Why not? Because under our law, if the condemnor tries to lowball too much, and makes an unreasonable pre-trial offer, it may have to pay the condemnees’ attorneys’ and appraiser’s fees, plus other litigation expenses, on top of the “just compensation” required by the constitutions. And, of course, any diminution in value brought about by the the market’s reaction to the imminence of the condemnation, cannot be considered in determining fair market value. The property has to be valued as if unaffected by the condemnor’s plans or by any preliminary steps taken toward the condemnation. Cal. Code Civ. Proc. Sec. 1263.330.
For other reasons the scheme may prove much more expensive to the city of Richmond and its taxpayers, see Ilya Somin [more, yet more] Other commentary: Matt Welch, Richard Epstein. Earlier here, here, etc.
Does the system protect its own? “A former Alameda County Superior Court judge charged with swindling a 97-year-old neighbor out of her life savings pleaded no contest Thursday to elder abuse and perjury and will not face jail time.” [San Francisco Chronicle, earlier]
When representing the leader of a violent sect, don’t smuggle out of jail purportedly personal papers that in fact contain your client’s alleged hit list of witnesses, then lie to investigators about it [Lorna Brown, recommended for a two-year suspension, KTVU, Contra Costa Times; a disciplinary judge recommended against disbarment because Brown, who had represented Yusuf Bey IV of the notorious Your Black Muslim Bakery, "eventually admitted what she did and expressed remorse," did not appear to realize the papers' contents, and lacked a prior disciplinary record] In a character letter, “veteran Oakland criminal defense attorney James Giller, a former president of the Alameda County Bar Association, told the judge” that Brown has an excellent reputation: “She may have made a mistake but we all do that. We all screw up.” [Berkeley Patch] More: Ted Frank.
They were seeking a second opinion on whether the baby needed heart surgery, and didn’t trust the care they were getting from Sutter Memorial Hospital in Sacramento, so parents Anna and Alex Nikolayev went over to Kaiser Permanente to get a second opinion. Police and Child Protective Services then showed up at their house to seize five-month-old Sammy. “A judge ordered Monday that the child be moved to Stanford Medical Center in Palo Alto, a decision which the Nikolayevs consider a win,” and also ordered that they obey all medical advice. [KSL, Today, Good Morning America (auto-plays)]
Well, yes, he would, wouldn’t he? “By suing the 90-year-old Greenbrae man he allegedly tried to kill during a burglary, Samuel Cutrufelli lit a roaring grease-fire of vitriol on social media, much of it from gun-rights advocates.” Attorney Sanford Troy said of his client that “Mr. Cutrufelli is entitled to the presumption of innocence” and expects to get six if not seven figures from Jay Leone, the elderly man who shot him. “The prosecution says Cutrufelli entered Leone’s house, put a gun to his head, tied his hands with a belt and rummaged through his bedroom for valuables” before Leone managed to wriggle free and defend himself. Troy said the shooting arose from a drug deal gone wrong. Complicating his efforts, however, a jury has now proceeded to convict Cutrufelli on all counts after a few hours deliberation. [Gary Klien, Marin Independent Journal: Oct. 23, Oct. 26, Oct. 31]
“California Divorce Lawyer Is Charged in Plot to Bug Cars of Her Clients’ Spouses” [ABA Journal] “The indictment doesn’t mention allegations that have surfaced in civil suits claiming the spouses of Nolan’s clients were set up for drunken driving arrests by the private eye, Christopher Butler, the Contra Costa Times says.”
The San Jose Mercury-News has an investigative series. Among the highlights: “At some point, this endless wasting of Danny Reed’s trust assets must stop,” said Judge Franklin Bondonno, throwing out $30,000 in fees billed to the special needs trust of a 37-year-old brain-damaged man, and regretting that he could not reach $145,000 previously billed. The “judge — in a highly unusual gesture — implored a higher court to overturn his decision.” Among recurring problems: “fee on fee” billing in which lawyers charge fees to persons under conservatorship for the legal effort expended in defending earlier fee bills. [editorial and links to articles in the series]
“A former Albany High student is suing the school district because of the grade his chemistry teacher, Peggy Carlock, gave him last year, in hopes of getting a court order for the district to change the grade to an A+.” [Steven Lau, Albany (Calif.) Patch]
The good, the bad, and the beyond belief:
- “Ten Commandments” judge no favorite with business defendants: “Trial lawyers putting their campaign cash behind Roy Moore for Alabama chief justice” [Birmingham News via Charlie Mahtesian, Politico; same thing twelve years ago]
- From James Taranto, a brief history of Supreme Court leaks [WSJ "Best of the Web," mentions my Daily op-ed]
- Pennsylvania: Judge’s swearing-in ceremony “was filled with appreciation to those who helped him get elected, including some convicted felons” [Judges on Merit; Walter Phillips, Philadelphia Inquirer]
- Roberts just carrying forward the Frankfurter-Bickel-Bork tradition of judicial deference? [Steven Teles, Carrie Severino, further Teles] Ted Olson on just-finished Supreme Court term [FedSoc and video]
- Columnist-suing attorney doesn’t lack funding in race for appellate judgeship in Illinois’ Metro-East [Chamber-backed Madison County Record]
- Study: SCOTUS Justices time their resignations depending on political party of President [James Lindgren, Volokh]
- Alameda County judge charged with elder theft, perjury [The Recorder]
- Profile of 5th Circuit’s Edith Jones; law wasn’t her first career choice, and Cornell riots influenced her path [Susanna Dokupil, IWF]
“The parents of a Peninsula high school sophomore are suing the school district for kicking the teenager out of an honors class because he cheated.” Jack Berghouse and his wife do not dispute that their son committed plagiarism, but their lawsuit claims “the school’s policies regarding punishment for cheating are vague and contradictory and shouldn’t be enforced.” [KCBS, KGO, San Jose Mercury News]
“A whistle-blower tells how a private detective arranged for men to be arrested for drunk driving at the behest of their ex-wives and their lawyers — and that entrapment using decoys was only one of many alleged misdeeds.” [L.A. Times; Contra Costa County (Bay Area), Calif.]