Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2007

Trial lawyers shut down customer service

One of the more subtle tricks in the plaintiffs’ bar’s arsenal is the use of the class action to shut down the customer relations of a consumer products company. A company acknowledges a problem, tries to work with its customers to resolve the problem—and lawyers whose only previous role in the case was to read newspaper headlines about the problem swoop in, file a class action, and demand that the defendant stop contacting “their clients,” nearly all of whom had no role in selecting the attorney. Later, the litigation lobby points to the role that the class action had in resolving the problem in defense of litigation as a solution, and no one remembers that the class action was what prevented the problem from being solved to consumers’ satisfaction in the first place.

A notice on the Menu Foods website posted May 24 suggests that precisely that has happened in their pet-food recall case, and Menu Foods, a victim of mislabeled food from a supplier, will not be able to compensate their customers without paying a gigantic commission to parasitic trial lawyers first.

Update: USA Today has a one-sided account reflecting a judge parroting the plaintiffs’ attorneys’ characterizations of the contacts. Without a full listing of the facts, we cannot tell whether the Menu Foods example is a good one; unfortunately, USA Today did not see fit to tell the whole story.

Filed under:

The $33 million window

Secretary Caryl Dontfraid claims that her disability requires her to have a desk by a window at her New York law firm (Binder & Binder, which specializes in social security disability claims), rather than one three feet away from a window; when she didn’t get her preferred seating assignment, and refused to try the desk she was assigned, she was fired. “She wanted to work closer to a window with good light,” her attorney, Robert Campos-Marquetti told the New York Daily News. “This is a request that could have been easily accommodated.” The damages claim is $33 million, or about half of a pair of pants. (Mike Jaccarino, “No window desk? That’ll cost you $33M, she says in suit”, May 26 (via Kevin MD)).

Filed under:

$30M verdict against doctor for saving patient’s life?

Sally Lucia was suffering from a massive infection, apparently from an earlier tummy-tuck surgery twenty days earlier. (She settled with the plastic surgeon before trial.) Lucia went to the emergency room already in septic shock, with her fingers and feet turning blue. On-call surgeon Dr. George Haedicke left his children, and arrived at the hospital to find Lucia’s infection so far advanced that her organs were shutting down; he cared for her for four and a half hours, and other doctors removed a grapefruit-sized infection from Lucia’s abdomen before transferring her to another hospital in critical condition. By this time, the tissue below her calves and in her fingers had died, and she needed amputations. A jury found Haedicke 20% responsible and his hospital 40% responsible, awarding $30 million in damages. But the jury found that Haedicke did not act with reckless disregard, immunizing him under Florida law protecting emergency doctors. Lucia, subject to appeal, will have to make do with $12 million from the hospital plus her earlier settlement. (Thomas W. Krause, “Patient Wins $30 Million”, Tampa Tribune, May 25; Justin George and Colleen Jenkins, “Amputee Wins $30 Million”, St. Petersburg Times, May 26; Colleen Jenkins, “Jurors hear from both sides in amputee trial”, St. Petersburg Times, May 10).

Press coverage is scanty on the critical question, but the Tampa Tribune Haedicke ordered “medicine that focused blood flow to the inner part of her body to protect her vital organs.” As a result, Lucia lost her legs and most of her hands, but her life was saved. Lucia’s attorney, Steve Yerrid (Oct. 5-6; Jan. 27), claims that Haedicke should have administered fluids before the medicine; Haedicke says that Lucia would have died if he had administered fluids first because her kidneys would have failed.

Now, I don’t know whether Haedicke or Yerrid is correct (though I have my suspicions). I’d be curious to hear what the medical bloggers think. But I don’t see how this should be a jury question. Either it was a reasonable exercise of medical judgment to try to save Lucia’s life without administering fluids first or it wasn’t, with the question of liability being a natural result of that answer—one of the two experts in the case is lying, and the expert and attorney who propounded that testimony did so without consequence.

Haedicke has left Tampa to practice in Tallahassee.

(Update: there has been some med-blogging over the Memorial Day weekend. Clinical Cases; Kevin MD.)

Filed under: ,

“Pro Bono” doesn’t mean cheap

One of the secrets of so-called “pro bono” work is that it often isn’t pro bono at all. Instead, it’s really contingency work: firms don’t bill their clients, but if they win, they recover their fees under various statutes, such as the Voting Rights Act, that require the loser — often the government — to pay the attorneys fees of the winner. These statutes are designed to incentivize law firms to take these cases — cases where the plaintiffs often can’t pay and where there’s no big monetary award at stake from which the attorneys can take a cut.

But if the attorneys would take the cases anyway, even if they didn’t get paid all that money, does it really make sense for the courts to award them all their fees? Last month, in a Voting Rights Act case, the Second Circuit said, “Not necessarily.” (PDF.) Rather, the courts should look at how much the plaintiffs would have to pay in the marketplace to convince lawyers to take the cases, and should award fees on that basis. The courts should consider whether these lawyers are really taking the cases “to promote the lawyer’s own reputational or societal goals” — and if so, the court should only award a portion of the fees. (One factor the Second Circuit glosses over is that many of the large law firms that take these cases — Gibson, Dunn & Crutcher handled this particular case — don’t really care about the fees; they really use these cases as a way to provide free training to their younger attorneys without having to risk cases involving their paying clients.)

(Gibson, Dunn’s credibility when making their fee request presumably wasn’t enhanced by the fact that they had previously tried to bill over $100,000 for 300 hours of work when “the entire argument section of the brief on this single-issue appeal occupied barely six pages.”)

But Adam Liptak (Time$elect, May 28) reports that many civil rights groups and other “public interest organizations” are up in arms over this decision, terrified that they might be forced to shop around for attorneys instead of getting taxpayers to pay for attorneys at the highest big firm rates for their causes:

In a flurry of legal filings last week, the lawyers, supported by two bar associations and 29 public interest organizations — including the Urban Justice Center, Public Citizen, the Natural Resources Defense Council and several affiliates of the American Civil Liberties Union — begged the court to reconsider.

“It really is a dangerous decision,” said David Udell, a lawyer with the Brennan Center for Justice at New York University, which represents the public interest groups. “What the court does is say that legal work is less valuable when the lawyers’ hearts are in it.”

That’s not actually what the court said at all; what the court said was that lawyers shouldn’t get paid more by taxpayers than they would if they were hired on the open market.

Filed under: , , ,

A Milberg medical miracle

Here’s a free tip for trial lawyers out there: if you’re going to engage hired-gun experts witness to tell the court what you need it to hear, make sure you first tell the experts what you need the court to hear.

We’ve been covering the ongoing scandal in which class action law firm Milberg Weiss is accused of paying kickbacks to its clients in class action lawsuits (see, e.g. May 2006 and links from there). In addition to the firm, prosecutors have been going after the clients who accepted kickbacks (Feb. 2007, Jun. 2005). One of those clients, Seymour Lazar, has been trying to escape prosecution by claiming to be ill, trotting out doctors to testify to a “litany of ailments,” including “heart disease, stroke, cancer, diabetes, and gout.” But there’s more: he also claimed to be suffering from a “mental condition [that] could make following significant events of the trial impossible,” as well as “major depression, memory loss, and fatigue.” And, he’s mentally incompetent.

That was two weeks ago… Now he’s all better. Turns out that if he were mentally incompetent, the prosecution could lock him up for up to four months to determine whether he would become competent in the future. Whoops! That wasn’t what defense attorneys wanted. So they had to repudiate their own expert’s testimony:

A psychologist who testified that a defendant was not competent to stand trial in a federal criminal case against a leading class action law firm now says that assertion was mistaken.

[…]

“I believe that I testified in error when I stated that he is not competent,” the psychologist retained by the defense, William Jones, wrote in a declaration filed Monday in federal court in Los Angeles.

Yes, or maybe, like the Monty Python peasant who claimed to have been turned into a newt, Lazar mysteriously “got better.”

Filed under: ,

Thimerosal trials begin

The quack theory that thimerosal causes autism is getting a hearing in trials in Federal Claims Court in June, with the possibility of bankrupting the vaccine compensation program, and substantially hurting public health as a consequence. Slate has coverage, but underplays the role of plaintiffs’ lawyers in the bogus activism. Trial lawyers looking for a cash cow have seized upon the quackery, and, with the help of unethical shills like Robert F. Kennedy, Jr., have dissuaded parents from vaccinations across the country, leading to new disease hot spots. Remember that the next time you hear the plaintiffs’ bar (falsely) taking credit for safety innovations that have saved lives. Earlier: Jul. 16 and other Overlawyered coverage; and Point of Law coverage. Orac has regularly blogged on the issue, and his April 30 entry is also worth reading.

Filed under:

If you can’t compete, sue ’em dept.: Carl’s Jr. v. Jack in the Box

Jack in the Box is known for its humorous ads, but Carl’s Jr. is upset about an ad for Jack’s sirloin burger that makes fun of competitors’ Angus burgers. (Sirloin is a cut of meat, while Angus is a type of cow; the joke is, well, see the commercial.) So Carl’s is suing on grounds of “deceptive advertising.” (Alana Samuels, “Carl’s Jr. has a beef with Jack in the Box advertising”, LA Times, May 26).

Filed under:

Work in Washington, DC at AEI!

A great opportunity for recent college graduates with good grades interested in legal issues and public policy: my current research assistant is Princeton-bound to get the Ph.D. that will give him a better resume than mine, so the AEI Liability Project is hiring, and hiring very soon:

Research Assistant: Liability Project

Seeking a full-time research assistant for the AEI Liability Project. The Liability Project examines the institutions, procedures, and political economy of contemporary liability law through research, publications, and other activities.

This position provides research support on issues related to American federalism and tort reform through case and brief retrieval, citation checking, case summarization, and legal analysis. It will also involve cultivating relationships with academics and practitioners in the field and overseeing the production of several monographs per year, as well as such administrative tasks as conference planning, editing, mass mailings, and data entry.

The ideal candidate will have excellent organizational, writing, and editing skills, as well as an interest in public policy and/or tort reform. Legal research experience and a background in economics preferred.

Qualified applicants should submit a resume, cover letter, and a 500-word writing sample on any topic with their online application.

This position will be available Summer 2007.

More information about applying, including a link to a Washingtonian article naming AEI as one of 55 great places to work in Washington. (Don’t contact me directly; all hiring is done through AEI Human Resources, but successfully indicating that you’ve been a regular reader of what I’ve been writing will surely help.)

Filed under: ,

Take me out to the courtroom: Hancock’s death everyone’s fault

Score another one for personal responsibility: 29-year old St. Louis Cardinals pitcher Josh Hancock killed himself in April when he drove — faster than the speed limit, drunk, on a cell phone, and not wearing a seat belt — into a tow truck stopped on the side of a road. Obviously, we ought to blame… everyone except Josh Hancock for this. Three and a half weeks after the accident, his father has filed suit in St. Louis against: the restaurant where Hancock was drinking, the manager of the restaurant, the tow truck driver, the towing company, and (!) the driver of the stalled vehicle that the tow truck was assisting, for having the temerity to get his car stuck on the side of the road.

So far, he hasn’t sued the Cardinals or Major League Baseball, but, while praising the team, his lawyer pointedly refused to rule out suing them.

Clearly, his father’s attorney isn’t all that creative; think of all the other people responsible for this accident:

  • The cell phone manufacturer; Hancock couldn’t have been talking on the phone if they hadn’t been so negligent as to invent it, or if they had placed warnings on the side of the phone about not using it while driving.
  • Hancock’s girlfriend — she was on the other end of the phone. Plus, he was driving to meet her.
  • The owners of the bar he was driving to in order to meet his girlfriend. If they had been closed, he wouldn’t have been driving there; if they were easier to find, he wouldn’t have had to give his girlfriend directions.
  • The car rental company; Hancock was driving a rented SUV… because he had just had an accident in his own car. If they hadn’t rented him the SUV, he couldn’t have been driving it.
  • Anheuser-Busch, it goes without saying; no alcohol, no accident.
  • The Cardinals, for not trading him to another team; if he hadn’t been in St. Louis, he couldn’t have crashed.

While it’s hardly unusual nowadays to blame bars for injuries caused by serving drunk patrons, those suits typically involve injuries to third parties. It’s not clear to me from a quick perusal of Missouri statutes that the bar can be liable for injuries caused to the drinker himself, but the key may be in this sentence from the Post-Dispatch story, quoting the complaint filed: “The intoxication of Joshua Morgan Hancock on said occasion was involuntary.” Yes, they forced the alcohol down his throat.

I wonder if the tow truck company will countersue for the damages Hancock caused to their truck by crashing into it. That would be poetic justice, at least.

Update: KMOV has a copy of the complaint. (PDF)

Filed under: , , ,