Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for April, 2007

Underlawyered: Iran

Notwithstanding some characterizations by more disingenuous opponents, reformers don’t oppose litigation and criminalization for the sake of opposing litigation and criminalization. Litigation and the tort system can play an important role in resolving disputes. Our objection is that the litigation system in the United States cuts too wide a swath, with too many issues under the litigation umbrella that courts are poorly placed to resolve, with inefficient and counterproductive results.

It is certainly possible for the system to tilt too far the other way. Witness Iran, where it is a defense against a charge of murder if “the victim was morally corrupt”—even if the killer is mistaken about the victim’s behavior. This being Iran, “morally corrupt” includes walking in public with one’s fiance, and permissible killings include stonings and sitting on a victim’s chest in a pond until she drowns. (Nazila Fathi, “Iran Exonerates Six Who Killed in Islam’s Name”, New York Times, Apr. 19] In the United States, at least, the only penalty a vigilante can legally impose with impunity on someone he or she mistakenly thinks is “morally corrupt” is millions of dollars of legal fees.

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“Laws Limit Options When a Student is Mentally Ill”

WashingtonPost.com’s “Think Tank Town” feature has a symposium on the policy implications of the Virginia Tech massacre, including contributions from Ted on fear of litigation and from me on the legal constraints on universities faced with problem students, as well as from Jim Copland (Point of Law, Manhattan Institute) on gun control.

This morning’s New York Times (Apr. 19) includes a must-read article by Tamar Lewin spelling out in more detail the problems I refer to in my short commentary. Writes Lewin:

Federal privacy and antidiscrimination laws restrict how universities can deal with students who have mental health problems.

For the most part, universities cannot tell parents about their children’s problems without the student’s consent. They cannot release any information in a student’s medical record without consent. And they cannot put students on involuntary medical leave, just because they develop a serious mental illness….

Universities can find themselves in a double bind. On the one hand, they may be liable if they fail to prevent a suicide or murder. After the death in 2000 of Elizabeth H. Shin, a student at the Massachusetts Institute of Technology who had written several suicide notes and used the university counseling service before setting herself on fire, the Massachusetts Superior Court allowed her parents, who had not been told of her deterioration, to sue administrators for $27.7 million. The case was settled for an undisclosed amount.

On the other hand, universities may be held liable if they do take action to remove a potentially suicidal student. In August, the City University of New York agreed to pay $65,000 to a student who sued after being barred from her dormitory room at Hunter College because she was hospitalized after a suicide attempt.

Also last year, George Washington University reached a confidential settlement in a case charging that it had violated antidiscrimination laws by suspending Jordan Nott, a student who had sought hospitalization for depression….

Last month, Virginia passed a law, the first in the nation, prohibiting public colleges and universities from expelling or punishing students solely for attempting suicide or seeking mental-health treatment for suicidal thoughts.

The article also refers to the role of the Buckley Amendment (FERPA), the HIPAA medical-privacy law, and disabled-rights law, which prohibits universities from inquiring of applicants whether they suffer serious mental illness or have been prescribed psychotropic drugs. Incidentally, the Allegheny College case, in which a Pennsylvania college came under fire for not notifying parents about their son’s suicidal thoughts, was discussed in a W$J article last month: Elizabeth Bernstein, “After a Suicide, Privacy on Trial”, Mar. 24. And Mary Johnson suspects that HIPAA will turn out to have played a role in the calamitous dropping of the ball regarding Cho’s behavior (Apr. 18). More: Raja Mishra and Marcella Bombardieri, “School says its options were few despite his troubling behavior”, Boston Globe, Apr. 19; Ribstein.

And: How well did privacy laws/policies work? Why, just perfectly:

Ms. Norris, who taught Mr. Cho in a 10-student creative writing workshop last fall, was disturbed enough by his writings that she contacted the associate dean of students, Mary Ann Lewis. Ms. Norris said the faculty was instructed to report problem students to Ms. Lewis.

“You go to her to find out if there are any other complaints about a student,” Ms. Norris said, adding that Ms. Lewis had said she had no record of any problem with Mr. Cho despite his long and troubled history at the university.

“I do not know why she would not have that information,” she said. “I just know that she did not have it.”

(Shaila Dewan and Marc Santora, “University Says It Wasn’t Involved in Gunman’s Treatment”, New York Times, Apr. 19). And Barbara Oakley, a professor at Oakland University in Michigan, has an op-ed in today’s Times, recounting her experience with a disturbing student: “It must have seemed far more likely that Rick could sue for being thrown out of school, than that I — or anyone else — could ever be hurt.” (“The Killer in the Lecture Hall”, Apr. 19). The tease-quote from the Times’s editors: “Do universities fear lawsuits more than violent students?”

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April 19 roundup

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“Eenie Meenie” redux

Remember the “Eenie Meenie Minie Mo” case? (Feb. 2003, Jan. 2004, Aug. 2005.) Here’s a variation which is almost as ridiculous, if less entertaining, from the Virgin Islands. Bad customer service as a cause of action:

During a layover in Puerto Rico, the passenger approached American’s ticket counter to verify her connecting flight to the Virgin Islands.  The ticket agent supposedly refused to return the passenger’s ticket and told her “to shut up and take a seat” and that she might not be scheduled to travel on any flight that day.

The passenger sued American, alleging claims under Virgin Island territorial law for negligence, breach of an implied contractual duty to ensure that employees “conduct themselves in a professional manner” and discrimination.  The passenger’s claims seemed to focus solely on her alleged emotional distress from being treated rudely; the opinion does not indicate that the agent’s conduct caused the passenger to miss her flight or suffer any other more tangible injury. 

Fortunately (unlike in the Eenie Meenie case) the court did not let this case get to trial; he granted summary judgment in favor of the defendant Airlines. As a result, American Airlines probably “only” spent in the low five digits to “win” this case.

Incidentally, I’ve heard the pace of life is slower in the Caribbean, but this flight took place in July 1996. The suit was filed two years later — it looks like just before the statute of limitations expired — in July 1998. Inexplicably, American Airlines did not move for summary judgment until eight years later, in July 2006; it’s not clear what was going on in the interim.

(But judging from one of the plaintiff’s previous trips (PDF) through the legal system, it would not be beyond the realm of possibility that she might bear some responsibility for the long delay.)

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NJ comp fraud case: lawyers settle out, workers nailed

When the Melard bathroom-components factory closed in Passaic, New Jersey, 112 workers were laid off, and more than 80 filed workers’ comp claims alleging that they’d been injured on the job but just hadn’t gotten around to reporting it previously. Mass comp filings of this sort are by no means rare following plant closings, at least in some parts of the country. However, the employer, Bath Unlimited — a subsidiary of Masco that does business as Melard — sniffed fraud, and decided to fight back. It sued the workers and the law firm that represented them, Ginarte O’Dwyer and Winograd, alleging racketeering:

The company claimed in its 2004 federal lawsuit that the Ginarte law firm and attorney [Michael] Policastro encouraged workers angry at being fired to file claims, most of which were identical except for employees’ personal information. According to the suit, the law firm directed workers to provide false information to doctors, and “virtually all” of the employees examined by physicians for Bath had no disabilities or none attributable to the company, the complaint charged.

The 84 worker-defendants did not make an appearance to contest the charges, and last month a federal judge signed a default judgment against them which leaves them personally on the hook for at least $2.26 million. (Greg Saitz, “$2.26M fraud judgment against workers shakes labor landscape”, Newark Star-Ledger, Mar. 21; “Workers penalty to be reviewed”, Mar. 30; John Petrick, “Workers must pay ‘compensation’ after losing claims suit”, Bergen Record, Mar. 25; Workers Comp Insider, Mar. 21 and Mar. 30).

Not surprisingly, the ruling has sent shock waves through the workers’ compensation and labor bar. Some of these lawyers argue as if granting employers any right at all to pursue fraud sanctions will impermissibly chill legitimate claims; presumably they imagine that the right to sue should forever be left a one-way affair. Others not unreasonably take exception to the severity of federal racketeering law’s treble-damage remedy (although the default “progressive” position, or so it seems, is otherwise to defend that same treble-damage remedy). Finally, and most cogently, they have pointed to the intrinsic harshness of the default judgment as a procedural device, which in this case has laid heavy burdens on unsophisticated immigrant workers, some of whom might plausibly have advanced the merits of their individual comp claims even if the bulk of the other 80-plus cases should be shown to be bogus.

But what of the law firm of Ginarte O’Dwyer and Winograd, which was at the center of the fraud scheme, if a fraud scheme there was? Well, this is the piquant part: after denying the allegations in court papers and trying unsuccessfully to get the federal case dismissed, the law firm settled separately with Bath/Masco/Melard on undisclosed terms. That protected its own interests, but left its former clients … well, “twisting in the wind” may not be too strong a way of putting it. The large law firm of Lowenstein Sandler has now stepped forward, acting on what it says is a pro bono basis, to attempt to get the default judgment against the workers overturned. (Greg Saitz, “Defending factory workers”, Newark Star-Ledger, Apr. 11).

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New low for Jack Thompson?

“In the wake of Monday’s horrific shootings at Virginia Tech, video game scourge Jack Thompson went on Fox News and argued that violent video games were probably to blame. … he went on TV to make the claims before anyone really knew anything about the shooter or his reason for doing what he did.” (Daniel Terdiman, Gaming Blog, Apr. 17; video clip; Brian Crecente, “Dissecting Jack’s Lies”, Kotaku, Apr. 17). More: Mike Musgrove, Post I.T., Washington Post.com; Geek.com; Palgn.com.au (Australian); Wired.com Game/Life blog (TV’s “Dr. Phil” takes same line).

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Quote of the day

“She said she notified authorities about Cho, but said she was told that there would be too many legal hurdles to intervene.” — Lucinda Roy, a writing professor who’d noticed the disturbed personality of the Virginia Tech killer-to-be and tried to take an interest in his case, quoted in an ABC News report. (Ned Potter, David Schoetz, Richard Esposito, Pierre Thomas, and staff, “Killer’s Note: You Caused Me To Do This”, Apr. 17). More: Apr. 19.

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Fighting fire with fire

We don’t generally endorse litigation as a solution to problems here at Overlawyered, but here’s one that just might be justified:

A business owner is suing an Anaheim man and his lawyer for filing at least 123 lawsuits that allege disabled-access law violations, saying the practice is “an effort to extort a quick and dirty settlement.”

In a lawsuit filed last week in Orange County Superior Court, Huy Dinh accuses David Gunther and Morse Mehrban of filing “frivolous lawsuits” to extort money from small businesses. Dinh, is suing alleging malicious prosecution, fraud and abuse of process, and seeks punitive damages.

Dinh was sued last year by the pair, who alleged a work station at his business was too high for disabled persons. A jury sided with Dinh, according to the lawsuit.

We’ve covered the exploits of the Gunther/Mehrban racket before: Dec. 1, 2006 and Dec. 7, 2006. And more of Mehrban’s activities: Nov. 2002, Mar. 2004, July 2004.

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Ready, aim, fire… get sued

Given Walter’s mention of the EEOC’s new attempt to solve America’s chronic shortage of employment litigation, this covery story from Business Week is timely. It surveys the state of employment litigation in the U.S., describing how risky it is for companies to fire employees, and the six figure price tag associated with the lawsuits that often result. The article discusses the growing trend in suing over “retaliation” claims:

As it happens, the judge in Mody’s case tossed out his discrimination claims. But the retaliation allegation did go to the jury—a development that is increasingly blindsiding businesses. Plaintiffs are winning large sums not because a company discriminated against them, but because the company retaliated when they complained about the unproven mistreatment.

The rules surrounding retaliation may sound crazy, but they are one of the big reasons why the fear of firing is so prevalent. Retaliation suits are a hot growth area in employment law. In 2005 and 2006, retaliation claims represented 30% of all charges individuals filed with the Equal Employment Opportunity Commission, a required first step before most discrimination cases can go to federal court. That’s up from about 20% just 10 years ago. “Even if there isn’t a good discrimination claim, the employee has a second bite at the apple,” notes Martin W. Aron of defense firm Edwards Angell Palmer & Dodge in Short Hills, N.J.

Read On…

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Doctors’ first-person accounts of litigation

Back in November we noted Sid Schwab’s account at SurgeonsBlog of being sued (first, second, third parts). A number of other medical blogs have also lately run first-person accounts of what it’s like to get dragged into a malpractice suit. Examples:

  • Charity Doc at Fingers and Tubes in Every Orifice, Nov. 15, Nov. 20: This is suit #9, but “the bare-boned fact of the matter is that each case is a new wound that tears at your heart, leave just as bad a scar on your psyche, while re-opening the gut wrenching emotions of the old ones. As your name is dragged through the mud over and over, you begin to re-question your dedication and love for medicine, just as you have during the previous times.” A few weeks back, by the way, we noted a priceless anecdote by Charity Doc about the time a personal injury lawyer came into his office as a patient unaware that he’d previously sued the doctor;

  • Musings of a Dinosaur, Nov. 20: among the few who can laugh at the experience;

  • Examining Room of Dr. Charles, Nov. 17: “The Trial Lawyers Association is changing its name to the American Association for Justice. George Orwell is smiling somewhere, the skies are getting clearer every day, and no child is being left behind. A doctor acquaintance of mine just got destroyed with a $20,000,000 jury award in a bogus malpractice case.”

  • Pediatrician “Flea”, Jun. 8, Jul. 12, Jul. 13, Oct. 22, and miscellaneous posts: two suits in all, “litany of abuse…heaped on me”, deposition stage fright.

P.S. Two more, from Scalpel or Sword, which however carries a disclaimer saying that its stories are fictionalized composites: Dec. 2 (shotgun filing; mom who kicked son out of house sues after his suicide), Dec. 4 (doc feels guilty over genuine error, but suit is later dropped).

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