Australia’s high court has agreed to review an appellate court decision (see Dec. 28) disallowing a a test case against Qantas and British Airways over so-called economy-class syndrome, the deep vein thrombosis suffered by a passenger after a long flight. A decision in favor of the claimant, businessman Brian Povey, could open the door to many more such suits against Australian airlines. (Ian Munro, “DVT case could open floodgates to stricken fliers”, Melbourne Age, Sept. 11). Update Jun. 25, 2005: high court dismisses case.
Archive for September, 2004
A different kind of judicial hellhole
We’ll stipulate that Warren Jeffs is not a sympathetic defendant. We’ll further stipulate that that’s an understatement. Jeffs, who calls himself “The Prophet,” is the current leader of the cultish polygamous “Fundamentalist Church of Jesus Christ of Latter Day Saints” estimated with 10,000 members, a few dozen of whom are his wives. (The Church broke off from its namesake when the mainstream Mormons abolished polygamy in 1890.) “Utah and Arizona prosecutors have been investigating allegations of welfare and tax fraud, incest, child abuse and forced marriages of young girls to adult men in the FLDS community” on the state border. Jeffs allegedly grants himself the power to re-assign spouses and children amongst families. The FLDS has also been excommunicating hundreds of teenage boys, allegedly to reduce competition for wives in the cult; the youths, who’ve grown up uneducated, are now completely isolated from their families and the community they grew up in.
Lawyers across the country have been bringing lawsuits. We make no comment on the claims of assault, terroristic threats, extortion, molestation, and kidnapping; such claims are legally legitimate to the extent that they’re true.
More problematic, however, are the allegations of fraud and conspiracy and the demand for injunctive relief and some damages: the complaint poses that FLDS promised “eternal life” to its members; by excommunicating the plaintiffs, they have not only breached that promise, but they have caused the plaintiffs to “suffer[] the emotional and psychological injuries resulting from… having been condemned to eternal damnation.” One can immediately see the trouble that could arise from making theological disputes actionable (see also Feb. 9). Courts have enough trouble adjudicating truth; it is perhaps not wise to also ask them to adjudicate Truth. The risk is that the failure of criminal authorities to adequately intercede may prompt civil courts to create precedents with consequences beyond a polygamous cult getting its just deserts. (AP, Aug. 30; Angie Wagner, “Ousted from sect, ‘lost boys’ start anew”, AP, Sep. 7; Sylvia Moreno, “Polygamous Sect Moves In, And Texas Town Asks ‘Why?'”, Washington Post, Sep. 7; Jon Krakauer, Under the Banner of Heaven; Child Protection Project; Phoenix New Times coverage) (via Heller).
Update: James Blair Down case
More developments in the Madison County case (Mar. 25, etc.) that Prof. Lester Brickman called “the most abusive class-action settlement of the decade, if not the century.” “Circuit Judge Phillip J. Kardis approved on Thursday a plan to notify potential claimants in the suit against Canadian con man James Blair Down.” However, New York attorney Jody Pope, representing objectors, says class members are not receiving proper notification of their right to make claims. The case involves prominent plaintiff’s firms Ness Motley (now Motley Rice) and Korein Tillery. (Paul Hampel, “Suit against con man nears settlement”, St. Louis Post-Dispatch, Sept. 9).
“60 Minutes” credibility problem?
Update: Louisiana oyster litigation
A state court of appeal has tossed a $661 million judgment by oyster farmers against Louisiana taxpayers. “Despite evidence showing that some of the allegedly dead leases have produced thousands of oysters since the diversion began operating in 1991, [District Court Judge Manuel] Fernandez sided with the plaintiffs and awarded them $370 million — more money than the leases had ever generated.” A related $1.3 billion judgment is still on appeal to the Louisiana Supreme Court (May 25; Oct. 18). (Jeffrey Meitrodt, “Oyster farmers’ $661 million in awards tossed on appeal”, New Orleans Times-Picayune, Sep. 10; latest Naked Ownership blog entries) (via Bashman). Update Oct. 24: La. Supreme Court throws out cases.
9/11 reverberates in courtrooms
As “the third anniversary of Sept. 11 draws closer, the lawsuits just keep coming.” Some families that received over a million dollars from the Victims’ Compensation Fund have sued parties as remote as Motorola over the terrorist attack. (Leslie Eaton, “In Nation’s Courtrooms, Wounds From 9/11 Persist”, New York Times, Sep. 9; Southern District of New York 9/11 litigation scheduling page; see earlier coverage Jan. 19, Dec. 29, Sep. 11, 2003; Sep. 10, 2003).
Punitive-sharing: Arnie caves
California Gov. Arnold Schwarzenegger has signed into law a bill bestowing on the state a 75 percent share of punitive damage awards — but only after the details of the measure had been radically revamped in a manner highly unwelcome to critics of the litigation system. Negotiators agreed to a “lawyers eat first” principle, absent in the original proposal, which would guarantee private counsel a 25 percent share of the state’s take; they also stripped away a provision, much sought by defendants, which would have barred multiple punitive damages over a single course of conduct. Finally, they applied complicated time restrictions to the new law which makes it likely that it will cover relatively few actual cases unless later extended (“Governor Signs Bill Adopting Court Budget Reform, Giving State Share of Punitive Damages”, Metropolitan News-Enterprise, Aug. 18; Dan Walters, “Details torpedo Schwarzenegger’s budget gimmick on civil lawsuits”, Sacramento Bee, Sept. 8). George Wallace at Declarations and Exclusions has more. The state trial lawyers’ association, which styles itself Consumer Attorneys of California, declared itself “gratified” by the governor’s turnaround on the issue. (“Schwarzenegger’s Punitive Award Fund Part of Budget”, Bloomberg, Jul. 29, no longer online). More: Victor Schwartz, Mark Behrens and Cary Silverman have a paper on the subject from Washington Legal Foundation (Sept. 3, PDF). And Southern California Law Blog covered it Sept. 4.
Batch of reader letters
We’ve posted four more letters from readers on our letters page. Topics this time include cameras in the jury room; the controversy over whether it is proper for doctors to consider turning away trial lawyers as patients; and the case where a woman was taken into custody on a mistaken warrant arising from a food infraction at Yellowstone Park.
A view from the plaintiff’s bar
Plaintiff’s attorney Bruce Fagel, MD, JD, a malpractice specialist in Los Angeles, spoke with Medical Economics for a cover-story interview in their last-but-one issue (“How I pick the doctors I’ll sue”, Aug. 20). The whole thing is worth a look; here are two snippets.
On how juries decide:
When doctors are cross-examined in a deposition or during trial, they often try to avoid responsibility for their actions. In fact, some defense attorneys encourage this attitude, instructing their clients not to answer even reasonable questions. As a result, jurors may ultimately be convinced of a doctor’s negligence not by the nature of his actions in the case, but by what looks like intentional evasion of responsibility when explaining why something went wrong.
The real value of our jury system in medical malpractice cases has little to do with the jurors’ ability to understand the medical facts and issues in the case. In fact, it’s widely accepted that they don’t understand much of the clinical information presented to them. What they do understand is when a witness is telling the truth. Doctors would do well to remember that.
And on tort reform:
I don’t think the idea of a cap on noneconomic damages is unreasonable, since it’s so difficult to put a dollar value on pain and suffering. What’s unreasonable is the fact that MICRA [the California medical liability law] was passed in 1975, and the $250,000 limit wasn’t tied to inflation. As a result, each year plaintiffs here are really getting less money. Today that $250,000 is worth less than $75,000 in 1975 dollars. So it’s a real problem for plaintiffs with legitimate claims for pain and suffering.
$6.5M for being the location of shooting
Luis Gutierrez was providing police with information about a series of burglaries, and police believe that’s why he was shot four times and killed by a ski-masked assailant in the parking lot of the Alamo Quarry Market movie theater in San Antonio. (They’ve made no arrests as of yet.) His family sued the shopping mall management company, Trammell Crow, for not providing enough security to prevent the premeditated attack; their attorney asked for $5 million and a Bexar County jury awarded $6.5 million. Trammell Crow is appealing. The local paper ran the story without any effort to tell the defendant’s side of the story. (KSAT, Sep. 3; Tom Bower, “Jury awards $6.5 million in Quarry shooting”, San Antonio Express-News, Sep. 4).