Chronicling the high cost of our legal system
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Tampa: “When medical malpractice lawyer Michael J. Trentalange asked St. Joseph’s Hospital for every ‘adverse incident’ report made since the hospital opened in 1934, the hospital pushed back hard. In July, the hospital sued him, and Trentalange sued right back, the Web site Health News Florida reported.” (AP/Sarasota Herald Tribune via White Coat).
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It’s among the most wince-makingly embarrassing ever (not for the squeamish or prudish). [Above the Law; Freed v. Hanes, decision in PDF]
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A neon-look lighted vehicle wrap, more than 275 domain names and a paid person “ready to chat with any visitor to his Web sites” day or night are all part of the Florida DUI specialist’s marketing effort: “This is the way of the future,” he says. [Herald-Tribune via ABA Journal]
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An editorial in the Palm Beach Post advises reader caution about the glamorous tort-chaser’s efforts to drum up clients for Weitz & Luxenberg and Searcy Denney Scarola Barnhart & Shipley based on allegations of a cancer cluster with a claimed link to radioactive drinking water:
The lawyers discussed water samples from 10 homes of cancer patients that showed at least trace amounts of radium, a naturally occurring metal. Those studies, however, echoed Florida Department of Environmental Protection results from 50 randomly selected homes. …
…one resident concluded on a Web site after the meeting: “Last night, we were validated.” Amid the personal appeals came the business pitch. Attorney Jack Scarola explained the contingency contract, which means that clients would pay nothing, even if they lost. He urged residents to take their time reading the contract because if “you inform yourselves well, you will find it’s in your best interest to sign with us.”
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Sarasota: “A former deputy, fired because of his problems with alcohol, is suing the Sarasota sheriff because he claims the office discriminated against him because of his alcoholism disability.” The former deputy says he doesn’t remember the sexual harassment incident at an Applebee’s that preceded his termination, but that could have been because of his “propensity to blackout.” [WTSP] [& welcome readers from Reason "Hit and Run", where Damon Root generously credits a certain "great" site]
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Lowering the Bar has the story of Robert Friedrich, who after being in a car accident took up the Palm Beach, Fla. firm of Fetterman & Associates on its offer of a free office consultation. “He left with more legal options than he had come in with, because during that consultation the chair he was sitting in collapsed and he hit his head on another piece of furniture in the firm’s conference room.” The resulting $2.2 million jury verdict was divided between the law firm and a furniture store; the law firm said the chair was defective and that the manufacturer should have been responsible.
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Next Tuesday Jacksonville-area Republican voters will vote in a primary to fill a state senate vacancy, with a leading candidate being John Thrasher, who was instrumental in helping the administration of Gov. Jeb Bush steer liability reform through the legislature in 1999. As a result, Thrasher has drawn frenetic attack ads from the state’s personal injury bar and its allies, including a group calling itself Conservative Citizens for Justice, which turns out to be led by a past president of the state’s AAJ affiliate, the Florida Justice Association. [Dan Pero, American Courthouse; Times-Union and more; Jacksonville Observer] In response, Jeb Bush has cut a TV ad for Thrasher pointedly directed at the lawyers. [Miami Herald]
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“Hank Adorno, head of the nation’s largest minority-owned law firm, violated nine Florida Bar rules when he engineered a $7 million class action settlement that distributed money to only seven people instead of all Miami taxpayers, the state regulatory agency for attorneys claims.” [Billy Shields, Daily Business Review and Law.com; earlier here and here]
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Two Lee County, Florida men face possible prison sentences of five years because their MySpace pages show them making hand gestures that prosecutors say are associated with street gangs. “Their prosecutions are the first under a state law passed last year that criminalizes the use of electronic media to ‘promote’ gangs.” The bill’s sponsor, state legislator Rep. William D. Snyder, R-Stuart, says in response to charges that the measure violates the First Amendment by criminalizing expression: “none of our freedoms are absolute, and the freedom of expression is not absolute”. [Steven Beardsley, Naples Daily News, Jul. 30] (& welcome Reason “Hit and Run”, Coyote readers)
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There’s an old legal joke that goes: “If you’re weak on the facts, pound the law. If you’re weak on the law, pound the facts. If you’re weak on both the facts and the law, pound the table.”
Except the entrepreneurial trial bar has found an intermediate step: instead of pounding the table, pound the discovery requests. Persuade a judge that a discovery snafu was really a deliberate attempt at a cover-up, and get sanctions that prohibit the other side from defending itself. Because plaintiffs rarely have discovery obligations that are more than an infinitesmal fraction of a defendant’s discovery obligations, this can be a profitable strategy.
The strategy is not new–I saw it myself first-hand in the 1990s defending GM, and wrote a piece about a trial where John Edwards successfully used a variant. But as discovery gets more and more complex due to emails, voicemails, and instant-messaging, it becomes easier for the discovery snafu to happen, and it becomes harder for judges to distinguish between good-faith mistakes and bad-faith withholding of documents. You may recall a famous example in Florida where Morgan Stanley was precluded from introducing evidence about a transaction involving Sunbeam before the appellate court threw out the entire case.
A recent example of this sort of gamesmanship is going on now in Florida where a group of lawyers representing Ecuadorian shrimp farmers came up with a brand new implausible theory of their case–now alleging that runoff from a formulation of a Benlate fungicide that stopped being used in 1991 is what caused their damages in the mid-to-late 1990s, all so they can claim to a judge that DuPont’s failure to produce documents about this marginally relevant formulation (which was effectively identical to the other formulations, except it included two inert ingredients) deserved sanctions. And sure enough, the court ordered a civil death penalty: all of DuPont’s defenses have been stricken, even though there is no scientific evidence that fungicide runoff caused the virus that killed many Ecuadorian shrimp. (Aquamar S.A. v. DuPont, Case No. 97-020375 (Broward County, Fla.))
A similar case involving Goodyear and a civil death penalty sanction that resulted in a $30 million verdict is pending in the Nevada Supreme Court.
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Florida governor Charles Crist has signed SB 1540, a bill that “requires school boards to revisit their zero-tolerance policies” and is aimed at [Tallahassee Democrat:]
reducing the number of juveniles who are needlessly thrust into the system because of minor infractions — most commonly, petty disobedience.
Consider cases from several headlines: In March, a Lakeland boy was suspended from school for intentionally passing gas on a school bus. In Hernando County, an 11-year-old girl was suspended for bringing a plastic butter knife to school. A student in Brandon was suspended because a calculator he brought to school was equipped with a “knife-like object.”
Ken at Popehat has more discussion, and links to our zero-tolerance archive.
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Rosalie Farnsworth made various charges against the publisher of a defunct South Florida magazine; now he says he’s suing her for defamation. [Broward Palm Beach New Times, its earlier report]
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Florida death row inmate William Deparvine has a bona fide law degree, which has helped him keep going in his extensive litigation against the survivors of Richard and Karla Van Dusen. Deparvine was found guilty at trial of killing the Van Dusens for their vintage Chevy pickup, which he claims to have bought. [St. Petersburg Times via Obscure Store, whose headline is quoted above]
Disney, Universal and Busch Entertainment weren’t eager to discuss the details of their legal defense but that didn’t stop the Orlando Sentinel from developing a searchable database of 477 state and federal cases filed against the three companies over the years 2004-08. Most cases were slip-falls, very few went to trial as opposed to settling, and in general the companies seemed to enjoy a fair bit of success both at satisfying patrons before their discontents reached the stage of lawsuits and at defending against the suits if brought.
It seems the companies are also willing to utilize provisions of Florida law that go further in the direction of “loser-pays” than do the laws of many other states:
Plaintiffs who lose sometimes end up footing the theme parks’ legal bills. The theme-park companies can, and do, go after unsuccessful plaintiffs, seeking reimbursement for their legal expenses. Under Florida law, anyone who sues anyone else over a personal injury faces this possibility. If the defendant offers a settlement but the plaintiff rejects it and then loses the case (or, in some circumstances, even if the plaintiff wins the case), the defendant can demand the plaintiff pay the defendant’s legal bills.
Reports of other successful defendants pressing their rights under such provisions in Florida or elsewhere are not exactly common, leaving the question of whether 1) the theme parks are making more aggressive use of the Florida rules than other defendants, 2) plaintiffs who go to trial against theme parks are atypical in some way, or 3) other defendants use the fee-shift provisions too, but we just don’t hear about it much.
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Point of Law Volokh