Updating our item of Oct. 2006: a Pennsylvania federal judge has declined to set aside a $24 million jury verdict “against two railroad companies for injuries suffered by two teenagers climbing on a train car parked near Lancaster in 2002.” U.S. District Court Judge Lawrence F. Stengel lambasted attorneys for defendants Amtrak and Norfolk Southern for having at trial “‘demeaned’ the two young men ‘for their lack of intelligence, judgment and common sense in choosing to climb to the top of the boxcar.’” Stengel upheld the jury’s assignment of all the blame for the accident to the railroads and none to the youths, who were both 17 at the time. (Janet Kelley, “$24M verdict upheld in railroad burn case”, Lancaster New Era, Apr. 2).

I want to thank Walter Olson and Ted Frank for honoring me by giving me an opportunity to guest blog here while Ted is away this week.

First, I guess I should introduce myself, for those of you wondering who the heck I am. I’m an attorney licensed in New Jersey, with a practice which focuses on commercial litigation. Aside from myself, I have several relatives who are attorneys, so it should be clear that I have nothing against lawyers. (In fact, despite all the evidence to the contrary here on Overlawyered, I happen to think we perform a useful function.)

My axe to grind is with those (such as the folks over at the website Ted affectionately calls “Bizarro-Overlawyered”) who want to use the courts, not to enforce agreements or to compensate the victims of wrongdoing, but merely as a way to transfer wealth from corporations to trial lawyers, ostensibly on behalf of consumers.

One of my first close encounters with overlawyering was in the early 1990s, when a classmate of mine got drunk, climbed up on a train, and electrocuted himself; coincidentally, this old incident was mentioned on Overlawyered just a few weeks ago. At the time, I was perhaps naively shocked to find out that someone who was so obviously in the wrong could successfully point a finger elsewhere (or in this case, a lot of fingers) and cash in. The case had everything: a grossly irresponsible plaintiff, innocent defendants whose only fault was having deep pockets, and even the failure of immunity laws to prevent abuse of the tort system. Since then, I’ve become less naive, but I’m no less shocked at these types of stories.

Oh, and I used to blog about politics more generally at Jumping to Conclusions, although I haven’t updated that in quite a long while. In any case, I’m happy to be here.

One of my favorite pop-culture bloggers, fellow Chicago Law graduate Adam Bonin, spots a line in today’s New York Times Vows column—

As their dating progressed, Ms. Wu researched Mr. Nobay online and learned that in 1998 he sued Princeton, unsuccessfully, for defamation after the university notified medical schools he had applied to that his applications contained misrepresentations and altered his academic record. (In court, he admitted misstatements but says he still believes some of what Princeton presented was inaccurate.)

—that obviously merited further investigation. Sure enough, AP reported in 1998:

The graduate, Rommel Nobay, had admitted he told numerous lies and half-truths in applying to Princeton and later to medical school. He claimed that he was part black and a National Merit Scholar and that a family of lepers had donated half their beggings to support his dream. … Nobay, 30, a computer science teacher from New Haven, admitted that he was not, in fact, a Merit Scholar and that a family of lepers had not helped send him to school. He also acknowledged that he doesn’t know whether he has any black blood.

Bonin notes an early 1990s suit by Princeton student Bruce L. Miller, who received $5.7 million after getting himself drunk and losing three limbs in a climb-a-train-plus-touch-high-voltage-wires-electrocution accident. (Regular Overlawyered readers know that this sort of suit doesn’t require a Princeton education.) But Bonin forgets to mention the drink-and-fall-off-the-Princeton-bell-tower lawsuit.

Ted mentioned this one in his roundup yesterday, but it merits a post of its own, duly assigned to our “personal responsibility” archive: Jeffrey Klein and Brett Birdwell were 17 “when they trespassed onto railroad property and climbed atop a rail car” because they wanted to see the view from there. They were shocked by a 12,500-volt wire and severely injured. The incident took place in Lancaster, Pa. but through the miracle of forum selection the lawsuit against Amtrak and Norfolk Southern landed before a jury in Philadelphia, a locality notably more favorable for plaintiffs than Lancaster. An attorney said the railroads should have posted signs for the benefit of trespassers warning of the overhead hazard and also should have had the electricity turned off at the time. As Ted pointed out, Birdwell, who was awarded $6.8 million, had injuries transient enough that he’s now serving with the Army in Afghanistan. (”$24.2 million for men burned atop rail car”, AP/MSNBC, Oct. 27; Brett Lovelace, “Verdict: $24.2M”, Lancaster Intelligencer Journal, Oct. 27; Janet Kelley, “A $24.2M question”, Lancaster New Era, Oct. 27)(& Coyote Blog). Update: railroads appeal (AP, Nov. 15).

One of our favorite clichés is repeated in a tale of a lawsuit over a tragic electrocution. Because it’s BGE’s fault Gary Dart’s trailer caught on fire, because, after all, powerlines never go down during a snowstorm without negligence. Good thing it’s not about the money, or they might have asked for a lot more than $175 million. The attorney is Dave Ellin. (Joseph M. Giordano, “BGE Is Sued Over Electrocution”, Dundalk Eagle, Mar. 27). Because BGE is a regulated utility (whose maintenance budget is set in negotiations with the governmental public utility commission), the expenses of the lawsuit, including any damages, will eventually be passed on to local ratepayers. (Update: or not. See comments.)

The new WSJ Law Blog summarizes (Jan. 16) Lawyers Weekly’s annual compilation of cases. As Lawyers Weekly tells it, the top verdicts this year were both somewhat lower and more closely linked to actual damages (i.e., less crazy) than last year’s. Among the ten: the Miami bus shelter electrocution discussed by Ted Jul. 10 (and linked to by the WSJ); Coleman v. Morgan Stanley, discussed in this space May 18 and Nov. 17; the $253 million verdict in Ernst v. Merck; the $105 million verdict against beer servers at New Jersey’s Giants Stadium (Jan. 21 and Feb. 2); and Hall-Edwards v. Ford Motor, involving an Explorer rollover.

Another interesting case on the list: Baker v. PrivatAir, in which a pilot forced out of his California job at age 63 won $64 million for age discrimination, wrongful termination, emotional distress and defamation. Some other employees with whom the pilot had had conflicts had joined forces to get him fired; one of the steps they took against him was to get him written up on safety charges, which the employer then did not adequately investigate.

Twelve-year-old Jorge Luis Cabrera Jr. was found dead next to a Miami bus shelter in October 1998 after he took shelter there during a rainstorm. Weather data shows a lightning strike near the bus shelter at the time the boy would have been there; the defense claims there were several signs of an indirect lightning hit on the Cabrera’s body and clothing. Accusations were made that faulty wiring in the bus shelter electrocuted the boy, but employees of Eller Media, which owned the bus shelter, were acquitted of manslaughter charges.

Civil lawyers resuscitated the argument on behalf of Cabrera’s father, noting that Victor Garcia, who wired the shelter, was unlicensed. A jury agreed, and awarded $4.1 million in compensatory and $61 million in punitive damages; Cabrera’s mother settled separately. “Jose Irizarry, the jury foreman, told The Herald on Friday that he and his fellow jurors did not believe lightning could have killed the boy.” (David Ovalle, “Firm to pay millions in boy’s death”, Miami Herald, Jun. 25; “Jury: Eller Media should pay $65.1M”, South Florida Business Journal, Jun. 27; Chrystian Tejedor, “Jury awards $65.1 million”, South Florida Sun-Sentinel, Jun. 25; “Company Found Negligent In Boy’s Electrocution Death”, WTVJ-TV; “Unlicensed Electrician Admits ‘Regret’ In Boy’s Electrocution Trial”, Local 10 News, May 3; Colson Hicks Eidson press release; verdict form for Serrano v. Eller Media Co., Case No. 13-1998-CA-023808-0000-01 (Dade Cty. Fla. Cir. Ct.)).

Risibly unclear on the concept: the Miami Herald reports that “Today, more than 850 Miami-Dade Transit Authority bus shelters are lit by roof-mounted solar panels instead of electricity.” (I think they mean to say that the new bus shelters are lower voltage.)

Continue Reading »

If you’re here in search of Ted’s post on the West Covina, Calif. chimpanzee attack, it’s here (given its popularity, maybe we should start up a regular chimp-attack beat). If you’re looking for the item about the Boston family that wants $740,000 for its electrocuted dog, it’s here. And if the story that attracted you was the one about the lawyer who accidentally sued himself, it’s here.

Last year it was reported that Dr. Kirk Kooyer, who had come to Mississippi to serve the poor, was leaving the state after being sued by a patient who later said she didn’t want to file charges against him but was talked into doing so by her lawyers (see Aug. 1, 2002; Dorothy L. Pennachio, “Why Dr. Kooyer Had To Move”, Medical Economics, Dec. 23, 2002). Now Kooyer has published a memoir/essay on the tort mess which really shouldn’t be missed, at this link. Brief excerpts follow:

“I watched as a litigation mentality crept into the Mississippi Delta, fueled by a favorable judicial environment. I have had to personally deal with the harassment of unmerited litigation along with its consequences to my family, my practice and, ultimately, my idealism. …

“[A] jury in Sharkey County, where I lived and practiced for eight years, awarded $10 million to the family of a man who had electrocuted himself by touching a pipe to a power line. As the treating physician in that case, as well as a resident of the county, I was interested in knowing what culpability the jury felt the defendant electric company had in the electrocution. One of the jurors told me, ‘Oh, we didn?t think the electrical company did anything wrong, but this way the children will be taken care of.’ …

“Perhaps no individual has suffered more [from the state's medical liability crisis] than Dr. John Lucas III from Greenwood, Miss. Dr. Lucas, a fourth-generation Mississippi physician, is a trauma surgeon who was instrumental in setting up Mississippi?s statewide trauma network to speed victims of trauma from rural areas to appropriate medical care. In the past year, Lucas has been forced to witness the dismantling of the trauma network because of declining numbers of trauma surgeons in Mississippi. Additionally, he has had to personally deal with three distracting medical malpractice lawsuits, which he considers frivolous. And this past spring, his oldest son sustained a critical head injury in an automobile accident near Greenville, Miss. Last year, Greenville had well-established neurosurgical services. This year the last neurosurgeon providing emergency services in Greenville left the state. After his accident, vital neurosurgical care was delayed while Dr. Lucas’ son was transported 100 miles to the University Medical Center in Jackson. Dr. Lucas, a well-respected surgeon who worked diligently to improve trauma care in his state, who was personally dragged into Mississippi?s lawsuit frenzy, helplessly watched his precious son linger in a coma for several weeks and die for lack of expedient medical care. …

“I don?t think we should be distracted from what is at the heart of our nation?s tort crisis: a crisis in personal morality. We were taught from an early age not to accuse falsely and not to take something that doesn?t belong to us. When litigation is pursued in cases where there has been no negligence and where there has been no injury, not only is tort law not fulfilled, but an important moral teaching is also forgotten.” (Kurt Kooyer, “New Crisis in the Mississippi Delta”, The Spark (Calvin College), Fall). In its next issue, the Calvin College magazine runs a response from an Emory law prof who finds it just fine and completely understandable that people should file lawsuits demanding large sums as a way of “seek[ing] answers” after sudden and unexplained medical catastrophes — which tends to confirm Kooyer’s last point, so far as we can see. (Paul J. Zwier II, “Another Look at a ‘New Crisis in the Mississippi Delta’”, Winter) (& see Dec. 17).

February 28-March 2 – NYC challenges class action fees; taxpayers save $200 million. Litigation over financial wrongdoing at Cendant Corp. led to a mammoth award of fees to class action lawyers. Some major class members, including the states of California and New York, acquiesced in the judge’s ruling on fees, but New York City’s Corporation Counsel courageously “appealed — and won a decisive victory: The entire $207 million saving will revert to the pension funds.” Among other things, the “story is also a window into the amazing power lawyers now wield in our economy.” (William Tucker, “Shark Hunt”, New York Post, Feb. 27). (DURABLE LINK)

February 28-March 2 – We have an RSS feed. We’re not exactly sure how these work, but they allow subscribers to obtain the latest “headlines” from this site by means of a kind of remote broadcasting. See the orange “XML” button at the left column of this site’s front page. If it malfunctions, could readers let us know? Courtesy of the nice folks at Janes’ Blogosphere. (DURABLE LINK)

February 28-March 2 – “Trauma centers warn lives could be at risk”. “Trauma centers across Central and North Florida warned Thursday that they may be unable to take up the slack when Orlando Regional Medical Center, barring a ‘miracle,’ shuts its Level 1 trauma unit April 1.” The trauma unit, which serves 33 counties, is losing its existing neurosurgery team and has been unsuccessful in recruiting out-of-state replacements to a legal climate symbolized by liability insurance costs that run as much as $175,000 a year. It is expected that central Florida trauma victims will be airlifted to already overburdened trauma centers in Tampa and Jacksonville, if there is room for them there, but the added time needed to fly them may rob them of their chance of survival. “Hospital officials and emergency-services personnel said they expect the shutdown will cost some people their lives…. ‘I don’t think there is any question that patients will be compromised,’ said John Hillenmeyer, Orlando Regional’s president.” (Greg Groeller and Jerry W. Jackson, Orlando Sentinel, Feb. 28). (DURABLE LINK)

February 27 – Obstetric liability: “Delivering Justice”. Our editor has an op-ed in today’s Wall Street Journal summarizing some of the implications of a new and comprehensive study finding that — contrary to the premises underlying many medical malpractice suits — most cases of cerebral palsy and other brain damage in newborns have nothing to do with mistakes by obstetricians. (Walter Olson, “Delivering Justice”, Wall Street Journal, Feb. 27. See Jane E. Brody, “Labor Problems Do Not Cause Most Cerebral Palsy, Study Finds”, New York Times, Feb. 26; Carey Goldberg, “Disputed study finds doctors not to blame in most cerebral palsy”, Boston Globe, Jan. 31; William Tucker, “Profiteers of Tragedy”, New York Post, Feb. 10; American College of Obstetricians and Gynecologists, “Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysiology”, executive summary and press release (& welcome “Robert Musil” readers) (DURABLE LINK)

February 26 – Our editor profiled in New York Sun. Where he’s called “intellectual point man for the tort reform movement … Mr. Olson’s vision could be the inspiration for John Grisham’s latest legal thriller ‘The King of Torts,’ in which obscenely rich trial lawyers fly their private jets in ostentatious loop de loops, landing every now and again to mine an industry for everything it’s worth.” Plus more about his home life than you could have wanted to know (Lauren Mechling, “He’s Taking On the ‘Tort Kings’”, New York Sun, Feb. 26) (& welcome InstaPundit readers; likewise those from Ernie the Attorney, whose kind words are much appreciated). Last Friday’s Wall Street Journal also pursues the Grisham parallel: “Trumped-up charges of neglect. Huge lawsuits. Lurid tales of lawyerly sleight-of-hand. Whopping jury awards. Fat legal fees. Bankrupt businesses. Abused clients. Above all, an appalling indifference to morality and justice. I am referring, of course, to the shocking details to be found in Walter Olson’s ‘The Rule of Lawyers,’ a recent account of real-life class-action litigation, from asbestos and tobacco to breast implants and diet pills. John Grisham writes about this world, too…” (Erich Eichman, “Bookmarks”, Wall Street Journal, Feb. 21 (online subscribers only)). (DURABLE LINK)

February 26 – “Family of electrocuted thief gets $75,000″. “The family of a convicted burglar who was electrocuted in 1997 when he tried to break in to a bar in Aurora after-hours and triggered a homemade booby trap has been awarded a $75,000 jury verdict to be paid by the owners of the bar and the property.” Frustrated by repeated burglaries, Jessie Ingram electrified the inside of his tavern’s window and “then posted several warning signs outside, including one outside the window [Larry] Harris broke in through. Drunk and high on cocaine, Harris, 37, either didn’t see or ignored the warnings.” (Dan Rozek, Chicago Sun-Times, Feb. 25). (DURABLE LINK)

February 26 – Punitive damages soared in 2002. “In 2001, total punitives [awarded in the fifty biggest jury verdicts, of which 22 included punitive damages] was $3.2 billion. For 2002, the figure was $32.6 billion. … [T]he ratio of punitive damages to compensatory damages shot up substantially”. (Gary Young, “Juror Anger Leads to Larger Punitive Awards”, National Law Journal, Feb. 10). (DURABLE LINK)

February 26 – Pigs’ right not to be bored. Under new European Community animal-welfare regulations, farmers will face fines if they do not provide toys such as balls for their pigs to play with. “Farmers may also need to change the balls so the pigs don’t get tired of the same ones,” said a British official. There is still no law requiring that human children be given toys, which suggests that “animals have a stronger constituency than children have in certain EU countries.” (Debra Saunders, San Francisco Chronicle/TownHall, Feb. 10). Addendum: a reader directs us to this Jan. 30 New York Times dispatch which reports that EU officials, irritated at public derision occasioned by earlier reports, have specified that balls and other toylike objects are not required, at least on solid floors, so long as the swine are provided with other “manipulable materials” such as straw, wood or sawdust to keep them interested. See also Brian Kimberling, “Fat cats and laughing pigs”, Prague Post, Feb. 28. (DURABLE LINK)

February 25 – The jury pool he faced. One of MedPundit’s readers recalls the following regarding the jury selection for the malpractice case against him in a jurisdiction known for high jury awards and aggressive lawyer advertising: “One of the questions the judge asked these twenty five people is, ‘How many of you have filed or are in the process of filing a medical malpractice suit, personal liability claim, or disability claim?’ 12/25 jurors raised their hands. Just about 50%. I was stunned.” (Feb. 22) (DURABLE LINK)

February 25 – MIT sued over student’s nitrous-oxide death. The parents of the late Richard A. Guy Jr., a 22-year-old MIT student who died of asphyxiation after abusing nitrous oxide (”laughing gas”), have filed a wrongful death suit against the university, saying it should have taken stronger measures to keep students from stealing the gas from laboratories and that it should have been put on notice of illegal drug use by the condition of their son’s dorm, where “the walls and ceilings of part of the 5th floor were painted black and light bulbs [were] painted pink and purple”. “The complaint admits that prior to 1999, Guy ‘had engaged in experimental drug use, and had sought treatment from MIT’s medical and health service staff for this problem.’” (Kevin R. Lang, “Wrongful Death Suit Against MIT Filed By Parents of Richard Guy”, The Tech, Nov. 8, 2002). (DURABLE LINK)

February 24 – Hotel sued in “Murder by Mercedes” case. “A private investigation firm and a hotel chain were added Thursday as defendants in a civil lawsuit brought against a woman convicted last week of mowing down her husband in her Mercedes-Benz. … Clara Harris, a 45-year-old dentist, ran over her orthodontist husband last year in the parking lot of a Hilton in suburban Houston after finding him there with his receptionist-turned-lover. She was sentenced to 20 years in prison Feb. 14. The lawsuit alleges Hilton had not properly trained employees to handle the confrontation”. (”Woman Who Ran Over Husband Named in Suit”, AP/ABC News, Feb. 20). Update Jun. 27, 2004: hotel and investigation firm settle case. (DURABLE LINK)

February 24 – Supervising the church hierarchy. A Massachusetts judge has ruled that Boston’s Roman Catholic archdiocese can be sued under a standard of whether it provided “reasonable care” to prevent sex abuse by priests, not unlike the standard of “reasonable care” applied to corporate boards of directors. Blogger “Robert Musil” (who we wish would come out from behind that pseudonym) argues that the ruling bids to prescribe certain forms of governance for churches in violation of current Supreme Court precedent on religious liberty, and also makes a startling prediction: a legal motion, at some point down the road, “to replace the Archbishop with a trustee in bankruptcy” in the form of a secular lawyer representing the interests of plaintiff/creditors. (Feb. 20). And scroll up for a post on punitive damages, federalism and the asbestos mess (Feb. 22). (DURABLE LINK)

February 21-23 – Client-chasing: we interrupt your grief. Following the stampede at Chicago’s E2 nightclub, which killed 21, families are feeling besieged by lawyers hoping to sign them up as clients. “The family of Nicole Patterson had not even had a chance to identify her body when the calls started coming. Did she need representation? attorneys wanted to know. ‘I don’t even know how they got our number,’ said Sheretta Patterson-Pennington, Nicole’s mother. … [Felesa] Melvin-Childs said one funeral director offered her free services if she agreed to sign with the attorney he suggested.” (Bryan Smith, “Families feel besieged by lawyers, morticians”, Chicago Sun-Times, Feb. 20) (DURABLE LINK)

February 21-23 – Client-chasing: tantrum-enablers. The prominent law firm of Bingham McCutchen LLP recently took out a half-page ad in the Wall Street Journal to hawk its litigation services to business clients. What illustration did it employ to catch readers’ attention? A close-up of a bawling toddler in mid-tantrum, accompanied by the caption, “In litigation, getting what you want is everything.” The subsequent text explains that “Litigation can be rough” and that the Bingham firm will “commit to achieving nothing less” than “what you want”.

We can think of several ways of interpreting this ad campaign, none of them flattering to the Bingham firm. Does it really conceive of its prospective clients as squalling infants who care for nothing but getting their own way? (Or do the clients walk in its doors as sober, self-possessed adults, and get turned into red-faced me-machines only after spending time with Bingham litigators?) We figured that most lawyers, like parents, realized that there are times when the demanding center of the household isn’t entitled to get what he wants (when the object of desire rightly belongs to someone else, for example), other times when he expresses unrealistic wants (a million billion cookies), and other times when he shouldn’t want something in the first place (as from revenge or mere destructiveness). If Bingham wants to make itself the law firm for clients’ inner brats, the sad truth is that it will have a lot of competition. (DURABLE LINK)