April 17 roundup

  • “I did not know what kind of monster we were dealing with”: dramatic testimony from Judge Lackey on Scruggs corruption [Folo; and repercussions too]
  • New at Point of Law: Pork-barreling Albany lawmakers shell out for just what NY needs, three more law schools; Sarbanes-Oxley unconstitutional? Ted goes after JAMA on Vioxx; sadly, appeals court overturns Santa Clara opinion that nailed ethical problems with govt.-paid contingency fee; legal aid lawyers, to subprime borrowers’ rescue? and much more;
  • Cadbury claim: we own the color purple as it relates to chocolate [Coleman]
  • A world gone mad: Innocence Project directors include… Janet Reno? [Bernstein @ Volokh]
  • Not unrelatedly: Can a California prosecutor be held liable for wrongful murder conviction of man freed after 24 years? [Van de Kamp versus Goldstein, L.A. Times via Greenfield]
  • With all his lawyer chums from Milberg-witness days, you’d think Ben Stein could have saved the makers of his creationist movie from stumbling into textbook IP infringements [Myers, again, WSJ law blog]
  • Groggy from dental anesthesia, plus a half a glass to drink: then came the three felony DUI counts [Phoenix New Times, Balko via Reynolds]
  • Shell says boaters had years of notice that mandated ethanol in fuel was incompatible with fiberglass marine gas tanks, which hasn’t stopped the filing of a class action [L.A. Times via ABA Journal]
  • Terrorism asymmetry: “They say ‘Allahu Akbar!’ we say ‘Imagine the liability!'” [McCarthy/Lopez, NRO]
  • Deborah Jeane Palfrey convicted [WaPo; earlier]
  • David Neiwert truly born yesterday if he thinks Kevin Phillips is noteworthy for his record of being right [Firedoglake; some correctives]

“4% of doctors responsible for 50% of payouts”

Trial lawyers like to repeat statistics similar to this (Bizarro-Overlawyered just did so this week) as an argument for medical malpractice being a problem of the doctors, rather than the lawyers. The problem is, as I noted three years ago, that the statistic is fallacious.

Some small X% of doctors responsible for large Y% of payouts is always going to be true simply by random chance. It’s going to be true over any time period: the problem is that if you take that time period and divide by two, the X% in the first half of the time period are going to be almost entirely different than the X% in the second half of the time period. Even if you were to fire every single one of those doctors in the tail in the first time period, all you have is X% fewer doctors; the very next year, it’s going to be a different small A% of doctors responsible for large B% of payouts, and you’ve solved nothing. With very rare exceptions medical malpractice payouts have absolutely nothing to do with the quality of the doctor, and everything to do with the risk profile of their practice.

It’s worth noting Eugene Volokh’s excellent explication of the issue:

Read On…

Lawyers making clients worse off department: Nicholas White’s elevator ride

Nicholas White, trying to leave the McGraw-Hill Building in New York, was trapped in an elevator for 42 hours over a weekend. We’ll agree that under the principle of res ipsa loquitur, there’s liability, and even non-economic damages, to be had: there’s a duty not to let people get trapped in your elevators, to respond to an elevator alarm, and to notice the security cameras broadcasting video of the trapped individual. But, judging by the April 21 New Yorker coverage, it’s hard not to think White’s attorney’s litigation strategy hurt White far worse than his elevator experience:

He got a lawyer, and came to believe that returning to work might signal a degree of mental fitness detrimental to litigation. Instead, he spent eight weeks in Anguilla. Eventually, Business Week had to let him go. The lawsuit he filed, for twenty-five million dollars, against the building’s management and the elevator-maintenance company, took four years. They settled for an amount that White is not allowed to disclose, but he will not contest that it was a low number, hardly six figures. He never learned why the elevator stopped; there was talk of a power dip, but nothing definite. Meanwhile, White no longer had his job, which he’d held for fifteen years, and lost all contact with his former colleagues. He lost his apartment, spent all his money, and searched, mostly in vain, for paying work. He is currently unemployed.

Looking back on the experience now, with a peculiarly melancholic kind of bewilderment, he recognizes that he walked onto an elevator one night, with his life in one kind of shape, and emerged from it with his life in another. Still, he now sees that it wasn’t so much the elevator that changed him as his reaction to it. He has come to terms with the trauma of the experience but not with his decision to pursue a lawsuit instead of returning to work. If anything, it prolonged the entrapment. He won’t blame the elevator.

NB also that White never would’ve gotten in the elevator if not for anti-smoking laws requiring him to leave the building to have a cigarette, not that I’m suggesting anyone sue the city or the tobacco companies over that remote causation.

Congratulations to David Nieporent

For being the first Overlawyered blogger to have a post cited in a federal case. In Taylor v. XM Satellite Radio, Inc., 533 F.Supp.2d 1151 (N.D. Ala. 2007), XM argued that the class action demanding a refund for a 24-hour outage was moot because they offered refunds well before the class certification motion was made. Plaintiffs disputed this, arguing they did not know about the refund offer until after they moved for class certification. One questions the relevance of the time of the certification motion (and, indeed, the court found this factual claim irrelevant) given that the refund offer was to the entire class rather than just to the named plaintiffs, but one reason that the court expressed skepticism at the attorneys’ claims was the existence of an Overlawyered post by David discussing the refunds and the ludicrousness of the suit. Case dismissed for mootness, though the court also noted that XM had no contractual obligation to provide continuous uninterrupted service.

From a reader: Home albumin therapy

Lacking specialized knowledge in this area I’m not well situated to evaluate the contents of this letter from reader J.W., but perspectives and advice from medically knowledgeable readers would be more than welcome:

One of our friends apparently has focal segmental glomerulosclerosis, which has a substantial risk for progression to end-stage renal disease.

Apparently, getting a nurse to come and administer albumin, which is a blood product, is a real problem. About three years ago, liability laws stopped the companies that produce albumin from allowing it to be used at home. There is a real possibility she will have to go to “Day Hospital” every day for five hours and perhaps have to be readmitted every weekend.

Given the likelihood that she will die from her disease, I’m sure she is comforted by the fact that she’ll spend so much time in the hospital for legal reasons.

But I feel safer, so that’s nice.

April 16 roundup

  • Schadenfreude overload: Eliot Spitzer fighting with Bill Lerach’s old law firm. You see, Spitzer returned Lerach firm’s money after the indictment (unlike many other Democrats); when Lerach left the firm, Spitzer hit them up for cash again; now, they’re the ones seeking money. [WSJ Law Blog; NY Sun]
  • Breakthrough on Keisler nomination. [Levey]
  • Sued for accurately saying government employee was a Mexican. [Volokh]
  • Global warming lawsuit finds conspiracy in free speech. [Pero]
  • Yet another free speech lawsuit: 50-Cent sued for “promoting gangsta lifestyle.” [Torts Prof]
  • 3-2 decision in NY Appellate Division: Not a design defect for tobacco companies to sell cigarettes that aren’t light cigarettes. [Rose v. Brown & Williamson Tobacco Co.; NYLJ/law.com via Prince]
  • Meanwhile, tobacco companies are also being sued over light cigarettes. Second Circuit tosses Judge Weinstein’s novel class certification (Point of Law); Supreme Court grants cert in Altria Group v. Good.
  • Defensive medicine one of many reasons that health-care costs so much in US [New York Times]
  • Eyewitness testimony: you can’t always believe your eyes. [Chapman]
  • First-hand report on Obama’s views on guns. [Lott]
  • Ethical problem for law firm to be representing judges in litigation seeking pay raise? [Turkewitz]

Tax Day thought

From Dave Barry: “Yes, this [filing your federal tax return] is a pesky chore, but remember that paying taxes is not a ‘one-way street.’ When you send your money to the government, the government, in return, provides you with vital services, such as not putting you in prison.” (“How your taxes turn into manure”, syndicated/Miami Herald, Apr. 13).