Archive for August, 2003

Employment Policy Foundation finds med-mal system lacking

“The Employment Policy Foundation?s (EPF) analysis of data comparing states with and without limitations on damage awards in malpractice cases found that capped damage awards could save $54.8 billion to $97.5 billion annually — 7.2 percent to 12.7 percent of the $764.8 billion spent on hospital and physician services each year. … In 2001, the gap between premiums collected and underwriting losses amounted to $4,033 per physician, assuming that all 744,000 full-time physicians in the U.S. were covered. … Plaintiffs eventually receive only 38 percent of the total dollars that flow through the malpractice litigation system.” (“Medical Malpractice Litigation Raises Health Care Cost, Reduces Access and Lowers Quality of Care”, EPF Issue Backgrounder, Jun. 19 (PDF); news release, Jun. 13).

Couldn’t get $11 M for drinking himself into coma

From Lowell, Mass. comes word that a jury has rejected a suit asking that Joseph Albert be awarded millions of dollars for drinking himself into a coma. Attorney Peter J. Nicosia of Tyngsboro asked $11 million in a “dramshop liability” suit against Gus & Paul’s Tavern for serving an undetermined number of beers over two hours to Albert, who was found by police later that night with a blood-alcohol level at a startling .48. Complicating Nicosia’s case was a deposition from a boon companion of Albert’s saying that the plaintiff had been drinking from a bottle of Jack Daniel’s whiskey after leaving the tavern. “I played that off to be basically an untrue story and basically a red herring,” said attorney Nicosia of the Jack Daniels. “The bottle was never found; no one ever saw him drink it.” The jury evidently wasn’t persuaded. (Jeanne Greeley, “Tragic Dram-Shop Case Just Had Too Many Holes”, Massachusetts Lawyers Weekly, Jun. 30). In another of last year’s big defense wins in the Bay State, a jury decided it wasn’t General Motors’ fault that a mother had left her Chevy Astro van running with the keys in the ignition and occupied by her infant with her 4-year-old sister; the pre-schooler climbed into the front and shifted the transmission, causing the van to roll into a pond. (Kelly Winget, “Tot rolls van into pond”, Lawrence Eagle-Tribune, Jul. 18, 2000).

Risks of honest job references

“Fired workers are on a winning streak with lawsuits against their former employers — but not for being terminated. For being defamed. Juries are awarding millions of dollars in damages to terminated workers who claim their former bosses libeled them through a bad reference.” Scott Witlin, a partner with Proskauer Rose LLP, among the most prominent law firms on the management side, is blunt. “We advise our clients that the safest course is to confirm someone worked there and the dates of employment,” says Witlin. “That’s it.” (Maggie Mulvihill, “At the Bar: Suits target ex-employers for defaming”, Boston Herald, Jul. 29).

The phenomenon of reference-chill is by no means a new one, of course, dating back to the Eighties, but defenders of the litigation system have made occasional efforts to deny it: a 1997 article in U.S. News, for example, breezily dismissed as “myth” the view that “Providing references for a former employee is asking for legal trouble”. (Amy Saltzman, “Suppose They Sue”, U.S. News, Sept. 22, 1997, reprinted at Manhattan Institute site).

School not obliged to offer summer program

A federal judge has ruled that a private boys’ school is not obliged to offer a summer instruction program as a way of accommodating a disabled student who would otherwise fall behind his class. The Haverford School in suburban Philadelphia had already extensively accommodated previous requests by the junior, who has been diagnosed with chronic fatigue syndrome and sleeping disorders. Could this be what the American Constitution Society is talking about when it refers in alarmist tones to the “vanishing” Americans with Disabilities Act? (Shannon P. Duffy, “School Not Obliged to Offer Summer Program Under ADA”, The Legal Intelligencer, Aug. 7).

Thank you

Tonight’s posting winds up my stint as guest blogger. Thanks again to Walter Olson for having me here. Anyone who hasn’t should pick up a copy of his latest book, “The Rule of Lawyers: How the New Litigation Elite Threatens America’s Rule of Law.” And, while you’re at it, read the amazon.com reviews — even a Madison County, Illinois class-action plaintiffs’ lawyer who says his firm is “routinely slagged” on this website admits the book is a “good read.”

Federal bills seek to curb abusive fast-food lawsuits

Sen. Mitch McConnell and Rep. Ric Keller have introduced legislation to bar obesity-related lawsuits against food manufacturers and sellers. (See “US Senator in bid to fry fast-food lawsuits,” ABC News Online, July 18). “Many Americans need to take greater care in what–and how much–they eat. But it is also time to curb the voracious appetite of the personal injury lawyers and put an end to this ridiculous and costly litigation before it gets out of hand,” said McConnell, who managed to work in references to The Onion and diet guru Richard Simmons during his remarks on the Senate floor. For the text of the bills, see S. 1428 and H.R. 339. Apparently undaunted, humorist and Cheez-Its addict Dave Barry says he has decided to “summon up my willpower and accept personal responsibility for filing a huge lawsuit against Big Food.” (“Fatal Attraction,” Washington Post, Aug. 3). See our archives for earlier commentary on fast-food suits – real and satirical.

In other obesity lawsuit-related news, The New York Times has a round-up of employment-discrimination lawsuits brought by obese workers. The newspaper reports that plaintiffs take two different approaches under the Americans With Disabilities Act: “Some claim that their employers should not discriminate against them because they are disabled. Others, using an argument that has had more success in the courts, insist that they are not disabled, and that employers unfairly assumed they could not do the job.” Washington defense lawyer Peter Petesch said: “There’s no magical mathematical formula to say this obese person has a disability and this other person doesn’t. … It’s an individualized assessment. Generally, to be fat or dumpy-looking or not as good-looking as the other applicant isn’t enough to prevail under the Americans With Disabilities Act.” (Steven Greenhouse, “Obese People Are Taking Their Bias Claims to Court,” N.Y. Times, Aug. 4).

Blumenthal embarrassed on gun suits, again

Headline-grabbing Connecticut AG Richard Blumenthal, whom we’ve slammed in this space previously for filing a dubious antitrust action aimed at punishing gun companies for having acted vigorously to stay out of the Clinton administration’s abortive Smith & Wesson deal, has just suffered an embarrassing defeat in his state’s high court. Blumenthal claimed that an email sent by one gun maker constituted proof that gun companies had acted criminally in resisting the S&W deal. But the Connecticut Supreme Court, hardly an assemblage of Second Amendment enthusiasts, has just ruled unanimously that Blumenthal’s claim was false. “[T]he e-mail reveals nothing that suggests an intent to break the law,” wrote Justice Joette Katz for the court. ” … Furthermore, to the extent that the e-mail refers to any action, it is the actions of others, and not of the respondents; it neither advocates that Kimber take any action of its own, nor that others take a particular action.” The new decision upholds the 2001 ruling of Hartford Superior Court Judge Vanessa Bryant that the e-mail was patently an “update of [firearms] litigation developments and does not advocate any criminal or illegal activity.” Will Blumenthal apologize? Will he finally start getting bad press? We’re not getting our hopes up (Thomas B. Scheffey, “Accidentally Sent Gun Industry E-Mail Found to Be Privileged”, Connecticut Law Tribune, Aug. 5).

“New Jersey bans drowsy driving”

Let’s criminalize everything dept.: “Sleep-deprived drivers who cause deadly crashes now face criminal penalties under a measure that became law Tuesday in New Jersey. The bill signed by Gov. James E. McGreevey allows prosecutors to charge a sleep-deprived driver with vehicular homicide, punishable by up to 10 years in prison and a $100,000 fine.” It is nicknamed “Maggie’s Law” after the victim of one such collision, thus confirming the truism that any enactment tagged with the given name of some recent victim (“Megan’s Law”, etc.) will combine sentimentality of intent with harshness of result (AP/CNN, Aug. 5). Meanwhile, in Watauga County, N.C., District Attorney Jerry Wilson is trying to charge a methamphetamine defendant with two counts under federal terrorism law — for “manufacturing a nuclear or chemical weapon” — in addition to more conventional drug charges. (“Prosecutor fighting meth using law that punishes terrorism”, Asheville Citizen-Times, Jul. 16) (via Volokh Conspiracy).

NYC to stick property owners with slip-fall bill

In recent years New York City mayors have sought a long list of sorely needed limitations on municipal liability, but have been rebuffed at each turn by the city council and state assembly. Now the city council has deigned to pass one item from City Hall’s request list, and — wouldn’t you know? — it’s the least logical and attractive of the bunch. Under a bill signed last month by Mayor Bloomberg, the city will no longer be liable for claims of injury following falls on sidewalks, currently a $50 million/year drain on the municipal fisc. Instead, the owners of adjacent buildings will be liable — even though they lack even the right (let alone the responsibility) to call in crews to dig up and re-lay sidewalks that cause a hazard by cracking or heaving out of alignment. Moreover, property owners will be required to maintain insurance against this unabatable hazard, which should keep trial lawyers happy by guaranteeing them a convenient pocket to go after. (Frank Lombardi, “City won’t pay up for sidewalk falls”, New York Daily News, Jul. 17). More: reader response and further discussion Aug. 7.