- Annals of discrimination lawsuits: a Tennessee cop contests his firing [Chattanooga Pulse]
- New book on lawsuits against universities: Amy Gajda, “The Trials of Academe: The New Era of Campus Litigation” [Harvard University Press via Stanley Fish, NYT]
- Bernard Kerik’s bail revoked because he used Twitter to promote a website put up by his friends flaying the prosecution? [Scott Greenfield] Plus: More complicated than that, says Bill Poser in comments;
- Another big setback for birther litigation [Wasserman/ Prawfsblawg, Little Green Footballs, earlier]
- “I won’t be able to function,” says Missouri woman after judge rules her monkey is not a service animal [On Point News, Molly DiBianca] More: service ferret gets owner kicked out of North Carolina mall [DigTriad]
- Eleventh Circuit agrees that U.S. cannot prosecute criminal defense lawyer Ben Kuehne for money laundering charges for having written opinion letter saying untainted money was available for legal fees [WSJ Law Blog, coverage (and update) at Scott Greenfield's site, Miami Herald]
- One for the Coase Theorem literature? Cranky neighbor forces closure of famed South Carolina recording venue [Ribstein]
- Hallowe’en is safe [BoingBoing, earlier on Pennsylvania town's trick-or-treating ban] “Toronto schools: Hallowe’en insensitive to witches” [four years ago on Overlawyered]
Tagged as:
Barack Obama,
child protection,
colleges and universities,
defense lawyers,
Missouri,
music and musicians,
police,
prosecution,
service animals,
South Carolina,
Tennessee
Add another to our list of tavern patrons who discovered that dancing on the bar was not as safe a pastime as they initially assumed. This time the scene of the accident, and target of the resulting lawsuit, is Nashville’s Coyote Ugly Saloon. Her attorney says Ms. Barnes “‘had had a few drinks’ but was not drunk.” [Tennessean via Day]
Tagged as:
alcohol,
assumption of risk,
restaurants,
Tennessee
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
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
One out of ten colonoscopies result in nausea and vomiting; about one in 1000 colonoscopies will accidentally perforate the intestine, with potentially life-threatening side effects if not treated in a timely fashion. Kristen Freeman was one of the unfortunate one in 1000. While she complained of nausea and vomiting, she disregarded the instructions given to her about reporting her other symptoms, and so medical staff treated it like a more common case of nausea. By the time she admitted that her situation and pain was more dire, complications set in, and she suffered cardiopulmonary arrest, which in turn led to severe brain damage.
I won’t quibble with the jury’s assessment of damages of $12 million: Freeman was 33 and is now disabled for life, and in the randomness of noneconomic damages, $12 million isn’t the craziest award out there. But that the Hamilton County, Tennessee jury found gastroenterologist Michael Goodman 51% liable seems arbitrary. If doctors are required to assume that every patient reporting nausea but denying their situation is an emergency might be hiding more serious symptoms, and require them to go to the emergency room for testing (as the plaintiffs’ attorney argued Goodman should have done here), then that’s 100 wasteful emergency room cases for each real case—and not even a prevented case, since most patients follow instructions and report to the ER on their own when symptoms specific to perforation appear.
The article is on the Chattanooga Free Press web site, but the interesting discussion is in the comments, with friends of Freeman and seemingly knowledgeable doctors kibitzing. Freeman’s supporters argue that she did not actually experience any emergency symptoms and thus was not at fault at all. Even if true, that implies that they feel Goodman should be held responsible because he did not anticipate that Freeman was actually having an emergency when she presented asymptomatically: again, a demand for defensive medicine.
Tagged as:
defensive medicine,
medical malpractice,
noneconomic damages,
Tennessee
Attorney Corey Trotz of Nahon, Saharovich and Trotz, known for his West Tennessee TV advertising, thinks he’s being criticized unfairly. [Hank Dudding, "Lawyers feud over trial experience", Memphis Commercial Appeal, Apr. 21; Tom Freeland].
Tagged as:
chasing clients,
Gloria Allred,
Tennessee
- Those enviro-hazard warnings plastered all over because of Prop 65? They may be not merely pointless but untrue [California Civil Justice; a still-timely 2000 piece]
- Is it somehow wrong for a public medical examiner to testify against cops — even when it’s in another county? [Radley Balko, Reason]
- UCLA research scientists fight back against animal rights fanatics’ violence and intimidation [Orac/Respectful Insolence, "Pro-Test"]
- Ezra Levant, himself a target of Canada’s official speech tribunals, has written a new book denouncing them, buy before they ban it [Amazon; Andrew Coyne, Maclean's] Has odious censorship-complaint-filer Richard Warman finally gotten his comeuppance? [Ken @ Popehat] More: another Warman case [Cit Media Law]
- Roundup of recent sports/assumption of risk cases [John Hochfelder]
- Already in trouble on charges of faking a will, Allentown, Pa. police-brutality attorney John Karoly now faces tax charges including alleged failure to report $5 million in income for 2002, 2004 and 2005 [TaxGirl]
- Lawprof’s “Reparations, Reconciliation and Restorative Justice” seminar led to introduction of Maryland bill requiring insurers to disclose antebellum slaveholder policies [DelmarvaNow]
- Judge tosses suit by Clarksville, Tennessee officials against activists who called them cozy with developers [Sullum, Reason "Hit and Run"]
Tagged as:
animal rights,
assumption of risk,
California,
expert witnesses,
free speech in Canada,
insurers,
Maryland,
Prop 65,
reparations,
Richard Warman,
sports,
Tennessee
As Michael Krauss notes, an AP story today rehashes the details of last week’s Flax v. Chrysler case, though it falsely treats Paul Sheridan as a credible witness and doesn’t acknowledge most of Chrysler’s arguments.
It’s worth noting the Jim Butler firm’s description of the case:
The evidence showed the impact was minor. Though Stockell was speeding at the time, the minivan was also moving forward and the change in velocity (Delta V) was only 17 to 20 mph.
To repeat: the plaintiffs’ attorney said that a Delta-V of 17-20 mph is “minor.” I suppose in the astronomical sense that a Delta-V of 17-20 mph wouldn’t escape earth orbit, but it seems fairly major for someone in a heavy minivan. For those of you at home who want to experience what a “minor” Delta-V collision of “only” 17-20 mph feels like, drive into a reinforced brick wall at 17-20 mph with your airbag turned off, but be sure to wear your seat-belt to reduce the chance that you go through your windshield. Another way you can have a Delta-V of 20 mph is if you are dropped about 12-15 feet onto a concrete surface. I sure hope that the trial judge didn’t let Butler lie about physics to the jury like that, but I fear I know the answer.
Tagged as:
autos,
Chrysler,
Jim Butler,
overzealous advocacy,
product liability,
seat backs,
Tennessee
Perhaps we spoke too soon when we commended the Tennessee appellate court for getting it partially right. As we stated in November 2004:
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. The $105M verdict includes $98M in punitives.
We had more details of trial shenanigans in December 2004 and noted the reduction of the punitives by the trial court to a still unreasonable $20 million in June 2005. In December 2006, the intermediate appellate court threw out the punitive damages and the negligent infliction of emotional distress claim, leaving a $5 million compensatory damages verdict to be split between Chrysler and the driver responsible for the accident. An injustice, but at least a smaller injustice.
However, today, a 3-2 vote of the Tennessee Supreme Court made it a larger injustice again, reinstating $13,367,345 of punitive damages over a good-faith dispute over appropriate seatback design, giving no credit to evidence that the design in the Caravan was safer than the plaintiffs’ proposed design, and effectively disregarding Tennessee statutory law that compliance with federal standards creates a presumption against punitive damages. The Court did not mention 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. The Court unanimously affirmed the elimination of the NIED claim; one justice would have thrown out the compensatory damages, as well, because of the volume of inadmissible and improperly prejudicial evidence admitted. (Flax v. Daimler Chrysler (Tenn. Jul. 24, 2008); id. (Wade, J., concurring); id. (Clark, J., partially dissenting); id. (Koch, J., partially dissenting); E. Thomas Wood, “High court upholds $18.4M damage award in DaimlerChrysler case”, Nashville Post, Jul. 24; Kristin M. Hall, AP/Chicago Tribune, Jul. 24). The majority decision relied heavily on the expert testimony of Paul Sheridan, an MBA non-engineer and professional anti-Chrysler witness whom a federal court called “wholly unqualified” to testify on seat back design.
Tagged as:
autos,
Chrysler,
expert witnesses,
Jim Butler,
product liability,
punitive damages,
seat backs,
state high courts,
Tennessee
A very belated update to our earlier posts of 2004 and 2005. As we stated in November 2004:
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. The $105M verdict includes $98M in punitives.
We had more details of trial shenanigans in December 2004 and noted the reduction of the punitives by the trial court to a still unreasonable $20 million in June 2005. And now the rest of the story:
[click to continue…]
Tagged as:
autos,
Chrysler,
expert witnesses,
Jim Butler,
punitive damages,
seat backs,
Tennessee
- Speaking of patients who act against medical advice and sue anyway: doctor who advised against home birth is cleared by Ohio jury in $13 million suit [Plain Dealer and earlier via KevinMD]
- UK: “A feud over a 4ft-wide strip of land has seen neighbours rack up £300,000 in lawyers’ bills, and left one family effectively homeless.” [Telegraph]
- Last of the Scruggs judicial bribery defendants without a plea deal, Dickie’s son Zack, takes one [Folo]
- By reader acclaim: securities trader sues over injury from lap dancer’s attentions [AP/NY Sun]
- Amid the talk of FISA and retroactive telecom immunity, it would be nice to hear more about the actual lawsuits [Obbie]
- Australian worker loses suit over firing despite a doctor’s note vouching that stress of worrying about upcoming football game made it medically necessary for him to take day off to go see it [Stumblng Tumblr]
- Megan McArdle and Tyler Cowen toss around the question of federal FDA pre-emption of drug liability suits, as raised by Medtronic;
- Should Coughlin Stoia have bought those stolen Coke documents? For one lawprof, question’s a real head-scratcher [David McGowan (San Diego), Legal Ethics Forum] And WSJ news side is oddly unskeptical of trial lawyers’ line that the affair just proves their power to go on fishing expeditions should never have been curtailed [Jones/Slater]
- Dashboard-cam caught Tennessee cops red-handed planting marijuana on suspect, or so Jonathan Turley suggests — but could it be a little more complicated than that? [WSMV, AP/WATE] (& Greenfield)
- “Heck Baptists don’t even sue you for disagreeing with them,” though no doubt there are exceptions [Instapundit; NYT on Danish cartoons; Ezra Levant with more on those Canadian speech tribunals]
- Bestselling authors who sue their critics [four years ago on Overlawyered]
Tagged as:
Australia,
Canada,
Cleveland,
Coca-Cola,
Coughlin Stoia,
Danish cartoons,
Dickie Scruggs,
FISA,
fishing expeditions,
free speech in Canada,
Ohio,
preemption,
roundups,
San Diego,
strippers and exotic dancers,
telecom immunity,
Tennessee,
United Kingdom
According to a lawsuit filed by Chase, two Coral Springs attorneys are scamming their clients by promising to eliminate their debts, and then diverting debt payments for legal fees to file meritless lawsuits challenging credit card debts. The attorneys general of Florida, North Carolina, and West Virginia are also involved, and the Florida bar has moved to suspend the license of Laura Hess. “Defendants’ ulterior goals are to extract fees from card members who should be paying the money to Chase to satisfy their debts and to maliciously harass Chase in an improper (albeit unsuccessful) attempt to coerce the elimination of their clients’ legitimate debts.” (Bud Newman, “Chase Bank Accuses Florida Law Firms of Running Debt-Relief Scam”, Daily Business Review, Mar. 6).
Update: See also Mar. 6 Business Week; on-line at the self-reported Rip-Off Report; and WATE (Tennessee), Apr. 2. “‘The programs typically require financially strapped consumers to pay fees up front, so they make money whether or not any useful services are performed,’ says Philip Lehman, an assistant attorney general in North Carolina.”
Tagged as:
attorneys general,
Hess Kennedy,
Laura Hess,
North Carolina,
scandals,
Tennessee,
West Virginia
As a Tennessee appellate court noted in rejecting Joan Frye’s lawsuit against her hospital employer, “[T]he fact that a supervisor is mean, hard to get along with, overbearing, belligerent or otherwise hostile and abusive does not violate civil rights statutes.” Some legislators are trying to change that (excited in part by Suffolk Law Professor David Yamada’s theory of making “bullying” actionable). The ABA Journal is the latest to note the trend. (The article unfortunately repeats the false smear against my colleague John Bolton.) As we noted last May,
Enactments of this sort could result in a large new volume of litigation; the ample scope for differences of opinion about what constitutes hurtful sarcasm or a humiliating memo style could turn the courts into ongoing “superpersonnel departments” dispensing financial balm for injured feelings in the workplace.
Employment attorney Richard Block is more blunt in the ABA Journal: “You’re talking about a lifetime annuity of work for employment lawyers.” Bills are pending in thirteen states.
Tagged as:
bullying,
hospitals,
Tennessee,
trial lawyer earmarks,
workplace
As one of our reader/informants sums up this litigation against a Kentucky surgeon filed by (and backfiring against) a Tennessee attorney: “Plaintiff lawyer (who is a JD/MD) gets sued by both his plaintiff client and the defendant doctor and he loses to both.” (Andrew Wolfson, “Attorney is loser in malpractice lawsuit”, Louisville Courier-Journal, Nov. 28; Childs, Dec. 27). More on countersuits by doctors: Point of Law, Dec. 20.
Tagged as:
Kentucky,
loser pays,
medical,
Tennessee
Yes, it seems there were wiretaps. Defendants will be seeing evidence from the prosecution momentarily which might (or might not) be the trigger for further flipping and early plea deals, if such there will be.
There is enormous curiosity (e.g.) about P.L. Blake, to whom Scruggs says he paid $10 million (and tens of millions more in future payments) for vaguely described intelligence services aimed at swaying political influentials during the tobacco caper. Per a 1997 account posted at Y’All Politics, “Blake pleaded ‘no contest’ in 1988 to a federal charge that he conspired to bribe officials of the now-defunct Mississippi Bank to secure favorable loan terms.” The same article, citing reporting in the Jackson Clarion-Ledger, reports that Blake was in close phone contact between 1994 and 1996 with eventually-disgraced state Auditor Steve Patterson, who after leaving office went into partnership with Timothy Balducci and is one of the five indicted in the current Scruggs affair. Per AP, “Patterson was a banker at Mississippi Bank before his 1984-1987 tenure as head of the Mississippi Democratic Party.”
David Rossmiller, as so often, is out front with a report filling in background on two other controversies involving Blake. One arose from a venture into the grain storage business which landed him in a Texas dispute in which his attorney was none other than Fred Thompson, later a Tennessee senator and presidential candidate. The other arose from his cordial dealings with a former chief of staff to Sen. Trent Lott (R-Mississippi).
Harper’s blogger Scott Horton has now published his take, as is his wont heavily dependent on hush-hush (but no doubt wholly trustworthy) confidential sources who float all sorts of theories about scoundrelly doings by the highly placed. He winds up with a theory that would pull Sen. Lott into it (though with no allegation of criminality) by way of the Acker contempt matter, as distinct from either the Balducci/Lackey bribery attempt or, say, the Paul Minor affair. Of Horton’s many anonymously sourced speculations, the one that caught my eye was tucked into a footnote: “A law enforcement official I interviewed, who for professional reasons asked to remain anonymous, told me that Scruggs’s junior partner Sidney Backstrom might take the same road as Balducci.” Now that is news a rumor (more). (Update Tues. evening: Backstrom’s attorney Frank Trapp flatly denies that anything of the sort is in the works: Patsy R. Brumfield, “Backstrom firm on innocence, his attorney says”, Northeast Mississippi Daily Journal, Dec. 12.)
This is probably a good place to apprise readers who aren’t aware of it that 25-odd years ago, while first gaining a footing in the policy world, I worked briefly on Capitol Hill drafting research papers for a committee then headed by Mr. Lott. We only talked a couple of times, I had never set foot in the state of Mississippi at the time, and I’m pretty sure he wouldn’t recognize me on the street, but if you’re a conspiracy theorist about such matters, there you have it.
At Y’All Politics, commenter “lawdoctor1960″ has some speculation as to why the remarkable deposition of Scruggs in the Luckey case didn’t get more media or political attention at the time.
Welcome Andrew Sullivan, David Rossmiller, Y’All Politics readers.
Attorney Tim Balducci’s role as deputized lawyer for the state of Mississippi in the MCI and Zyprexa cases is drawing public scrutiny, and may result in pressure for reform of AG outside contracting.
We’ve started a new “Scandals” category for readers who want quick access to coverage of the Mississippi mess, also stocked with some earlier links to coverage of such earlier blow-ups as Milberg Weiss/Lerach, Kentucky fen-phen, the Paul Minor affair, etc. For those who are following Scruggs posts in sequence, be aware that yesterday’s first and second posts fell outside the numbering scheme.
Tagged as:
Biden,
Bill Lerach,
Dickie Scruggs,
fen-phen,
Fred Thompson,
Jim Hood,
Joe Biden,
Kentucky,
Milberg Weiss,
Mississippi,
P.L. Blake,
Paul Minor,
scandals,
Tennessee,
Timothy Balducci,
tobacco,
tobacco settlement,
Trent Lott
