“The arrival of the American-style compensation culture is turning open spaces and public parks into dreary, fun-free, soulless places, the Government’s architecture and building advisers said yesterday. … The Commission for Architecture and the Built Environment (Cabe) estimated that the cost to local authorities of bogus or excessive compensation claims was ?117 million a year,” enough to pay for an additional 3,900 park keepers, it estimates. The report “highlighted the removal of a swing from a playing field because it faced the sun and could blind children. Another regular occurrence, it said, was the removal of three-in-a-row swings because the outer swings could hit the one in the middle.” (Charles Clover, “Compensation culture ‘turns our parks into dreary, fun-free deserts'”, Daily Telegraph, Mar. 25)(related site).
Archive for March, 2004
Mark Maughan sues Google over search engine results
CPA Mark Maughan is upset that a 2003 Google search for his name leads to a web page that, he says, accuses him incorrectly of wrongdoing. So he’s suing Google, AOL, Time Warner, and Yahoo–and guaranteeing that a search engine result for his name will now reveal him to be litigious. (Mark Maughan appears to be complaining about this page from the California Board of Accountancy that lists disciplinary actions, and claims that Maughan admitted the allegations against him. The Board defends the accuracy of its site.) Amusingly unclear on the concept: “Since AOL-Time Warner are one company, both are named as defendants, said plaintiffs attorney John A. Girardi.” (“Accountant ‘Googles’ Himself, Sues for Libel”, NBC4-TV, Mar. 19; Seth Fineberg, “Calif. CPA Sues Google, Others for Libel”, CPANews, Mar. 24; Slashdot thread) (via Bashman).
Prisoners escaping jail? Sue the plumber
Cameron County’s revenues apparently depend heavily on its warehousing of federal prisoners in its jail. But the U.S. Marshals pulled federal prisoners after a series of escapes. So Cameron County is suing the builder of the jail, and all of the contractors and subcontractors–including the plumber, who noone blames. Jo Rae Wagner, the president of the plumbing company, speaks out; such “shotgun” listing of plainly innocent defendants is common. The newspaper gets counterbalance from two law professors who assure readers that such defendants don’t have to pay anything to be dismissed from the suit, but apparently haven’t actually tried to get such a defendant out of a suit without incurring legal expenses or tried to recover legal fees for the frivolous suit. (Allan Essex, “Company calls county lawsuit unjustifiable”, Valley Morning Star, Mar. 27).
To obtain sanctions for a frivolous lawsuit in Texas, a defendant has to prove, after an evidentiary hearing, that the lawsuit was not only groundless, but was brought in bad faith. To do this, one must overcome the presumption that papers are filed in good faith. Tex. R. Civ. Proc. 13; GTE Comm. Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993). “A trial court may not base Rule 13 sanctions on the legal merit of a pleading or motion.” Aldine ISD v. Baty, 999 S.W.2d 113, 116-17 (Tex. App. Houston 1999). The lawyer of “empty head and pure heart” avoids sanctions–and the defendant ends up incurring additional fees and costs over the evidentiary hearing, no matter how groundless the initial suit. So when you hear that recovery is possible for frivolous lawsuits, remember that the judicial system has a different definition for “frivolous” than the layperson does. (Tex. Rules of Civ. Proc. 13).
Lawsuit: school failed to supervise gang initiation
On March 28, 2002, 14-year-old Francisco Belman asked to join the “Latin Mafia” gang at H.E. McCracken Middle School in Bluffton, South Carolina, an initiation that required him to be punched several times in the chest. Midway through the school bathroom ceremony, however, he collapsed and went into convulsions; the gang members tried for a few minutes to revive him with “sink water and paper towels.” School officials were eventually summoned, and gave Francisco CPR while waiting for paramedics; paramedics defibrillated, but Belman’s heart stopped again on the way to the hospital; Belman went into a vegetative state and died ten weeks later. So the parents have sued “the South Carolina Board of Education, Beaufort County Board of Education, town of Bluffton, Beaufort County Sheriff’s Office and the parents of the two boys who pleaded guilty this month to involuntary manslaughter in Francisco’s death.” Especially appalling is the newspaper’s editorial defending the lawsuit against peripheral players as an appropriate mechanism for the parents’ grief, but lapses into self-parody:
Clearly, the Belman family wants and deserves an apology. But from whom? The two boys who were trying to initiate Francisco into their club that fateful day have expressed remorse, and how could they not? They are teenagers; they didn’t know their machismo would ultimately kill Francisco.
(Stephanie Ingersoll, “Lawsuit filed in boy’s beating death”, Carolina Morning News, Mar. 26; “Editorial: Don’t judge Belman family for filing lawsuit”, Carolina Morning News, Mar. 26; “Chronology of a tragic day”, Carolina Morning News, Mar. 26; Noah Haglund, “Trial to begin in McCracken student’s death”, Hilton Head Island Packet, Mar. 14).
$1.3 M for not explaining lottery rules
John Struna says he spent $125,000 a year on Ohio Lottery tickets for years without ever reading the rules printed on each ticket and on the state’s web site, and was upset to learn that his October 25, 2001 jackpot paid only $981,000 rather than the $5.2 million he expected. His lawsuit against the lottery was dismissed, but a jury held Harry Singh, the owner of the Convenient Food Mart on East 200th Street in Cleveland, responsible for $1.3 million in damages. Struna’s lawyer, Andrew “Kabat said Thursday that he hopes the civil judgment inspires the state lottery to be more aggressive about informing players of the rules.” I’m sure that makes Singh feel better to know that he’s been potentially bankrupted for such a noble cause. (Mark Naymik, “Lottery player wins again, this time in court”, Cleveland Plain Dealer, Mar. 25; AP, Mar. 25).
$1.5 M for yelling at player to get in shape
In New Jersey, the state that litigates valedictorian decisions (Jun. 30), Jennifer Besler blamed her high school basketball coach’s request for her to lose ten pounds for an eating disorder that has lasted over eight years. A Mercer County jury found her damages to be $3 million, and held the school district responsible for 49% of them–with possible punitive damages still to be calculated. “The jury also awarded Philip Besler, Jennifer’s father, $100,000 because then school board President Lester Bynum gaveled him into silence as he tried to speak at a January 1997 school board meeting.” The defense lawyer has noted that the Besler family’s complaints about the coach began when Jennifer lost her starting position on the team. The school district will appeal, but meanwhile has already shelled out for a four-month trial. (Linda Stein, “$1.5M coach-suit verdict”, Trenton Times, Mar. 25; Lisa Meyer, “Jurors get Hussong case today”, Trentonian, Mar. 16; Lisa Meyer, “Lawyers argue over jury instructions”, Trentonian, Mar. 2). Maybe the former coach can get a job counseling the plaintiffs who blame McDonald’s for their obesity.
Update: Jury declines to award punitive damages; Mr. Besler reveals that he spent $1 million on case (thus showing who the real bully is). (Mark Perkiss, “Coach vows to fight verdict”, Trenton Times, Mar. 26; Lisa Meyer, “Beslers speak after decision”, Trentonian, Mar. 26).
Update: Judge throws out $1.5 M verdict (Apr. 9).
Update: Ness Motley and James Down
A feature from the Chicago Tribune on the Ness Motley sellout of its clients in the James Blair Down case (see Jul. 7 and follow-ups Aug. 24 and Jan. 17) is revealing about forum-shopping:
[Blair] Hahn told his clients he knew exactly where to find the class-action judgment they needed: in Madison County, across the Mississippi River from St. Louis.
In testimony later, [former Secret Service agent James] McGunn said Hahn assured them he could “manipulate” the court, and that “his wishes would be granted.”
“The reason that they selected Madison County was because the judge there looked very kindly on Ness Motley and would be very favorably impressed with whatever they said,” McGunn recalled Hahn telling him. “They would have no problem in Madison County.”
On February 18, Madison County Judge Phillip Kardis (Oct. 7) held a twenty-minute hearing and preliminarily approved a class action settlement that provided millions for the lawyers and little for the class. (Greg Burns, “The lawsuit capital”, Chicago Tribune, Mar. 8).
Does tort reform affect insurance rates? II
More data piles in refuting the bald claims of ATLA and “consumer” advocates that medical malpractice reform is somehow an insurance company conspiracy that doesn’t reduce rates. (See Mar. 22 and Jul. 29, 2003). In an actuarial study using the National Practitioner Data Bank, we find, among other interesting things, that (1) dollars paid in malpractice claims went up 80% between 1992 and 2001, even though the number of claims only went up less than 20% in the same period; and (2) malpractice premiums are higher in states without noneconomic damages caps compared to those in states with noneconomic damages caps. (Richard S. Blondi and Arthur Gurevitch, “Noneconomic Damage Caps Help Reduce Malpractice Insurance Premiums”, Contingencies, Nov.-Dec. 2003). Contingencies is the journal of the American Academy of Actuaries.
Sen. Graham introduces loser-pays bill
Sen. Lindsey Graham (R-S.C.) has introduced legislation that would provide for a modified “loser pays” rule in federal courts. It’s of the “offer-of-settlement-driven” variety, and would expose litigants to a possible fee shift if they turned down a settlement offer and then did less well at trial. “Loser pays’ does more to stop frivolous lawsuits in the federal court system than any other reform,” Graham said. “Litigation designed to shake someone down for a settlement would be far less frequent if each party had something to lose.” And: “The culture of suing anybody about anything with no consequences to yourself has to change.” (Amy Geier Edgar, “Graham urges reform to curb frivolous suits”, AP/Myrtle Beach (S.C.) Sun-News, Mar. 2).
Bubbles cost Duluth $125,000
Sometime between 5 and 6 in the Saturday morning of July 7, 2001, a prankster put gallons of Joy dish soap into Duluth’s Fountain of Wind, turning it into an eight-foot-high mass of bubbles. 57-year-old Kathy Kelly was attracted by the bubbles and decided to walk into it. And fell and cut her leg. As a diabetic, Kelly suffered from what first-year law students call Vosburg v. Putney syndrome, and incurred $43,000 of medical expenses from the cut, which turned gangrenous. So a St. Louis County jury awarded her $125,000 when it decided that Duluth taxpayers should compensate her for 70% of her injury because the city didn’t clean up the fountain quickly enough (on an early Saturday morning) or do enough to warn people not to walk into an eight-foot high mass of soap bubbles where they couldn’t see where they were walking. “People shouldn’t have to be on their guard when they are taking a step,” explained one juror, who dissented from the final decision because he wanted to hold taxpayers 90% responsible. The jury found Kelly 30% responsible, and apparently didn’t seek to apportion blame to the unknown prankster. But I suppose we can be thankful that no one sued the soap manufacturer. (Mark Stodghill, “Woman gets $125,000 in Duluth ‘bubble trial'”, Duluth News Tribune, Mar. 23; Mark Stodghill, “Woman sues city over soapy fall”, Duluth News Tribune, Mar. 12) (via Obscure Store).
