Overlawyered: Chronicling The High Cost Of Our Legal System

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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Disbarred, but not gone

Despite the disbarment of its 78-year-old namesake over a long and colorful catalogue of misdeeds, the Kenneth Heller Law Office on lower Broadway in Manhattan has not closed its doors, according to the New York Law Journal. And where exactly are the elusive 47 boxes of litigation files that Heller is refusing to hand over to a widow-client until he gets paid? (Mark Fass, “Sheriff’s Raid Can’t Pry Client Files From Disbarred Lawyer’s Grip”, New York Law Journal, Mar. 28). More: Apr. 24.

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EEOC launches hiring crackdown

Per the NLJ, it’s employers’ lucky day:

The federal government has launched an initiative aimed at cracking down on discriminatory hiring practices in the workplace — a program that could land unsuspecting employers in court, employment attorneys are warning….

Specifically, the EEOC will focus on hiring decisions that are based on names, arrest and conviction records, employment and personality tests and credit scores — all of which may disparately impact people of color….

Many states have laws that restrict employers from asking about or considering criminal records when hiring. The EEOC holds that if an employer denies a job to an applicant because he or she has a criminal record, it could be considered discrimination if the person is a minority.

For more on efforts to keep employers from taking applicants’ criminal records into account, see Feb. 13 and links from there (cross-posted from Point of Law).

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Arizona to Zillow.com: stop estimating homes’ value

“Arizona regulators have ordered a Seattle-based online home price estimator to stop doing business in the state.” Zillow.com has won wide popularity by applying algorithms to publicly available data to come with rough estimates of the value of existing homes, which it makes available for free through its site. The Arizona Board of Appraisal says that Zillow should not be dispensing such information without an appraiser’s license. (“Arizona bars online home price estimator”, AP/Tucson Citizen, Apr. 15)(& Coyote Blog).

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John O’Quinn update

Judge Denise Page Hood has issued an order to show cause why the O’Quinn law firm (many entries; also POL Jul. 15, 2005, POL Jul. 10, and POL Aug. 3) should not be held in contempt for improperly withholding breast implant settlement money from their clients. There is no press coverage of this brewing scandal.

There has, however, been plenty of press coverage of one of O’Quinn’s other clients, Anna Nicole Smith’s mother. In that circus, O’Quinn finds himself a defendant in a civil defamation suit brought by Smith’s, er, widower, attorney Howard K. Stern, for going on national television and accusing Stern of murdering Smith. [AP/ABC News] The fact of having this client gave cause TMZ.com to dig up some of the more obvious scandals in O’Quinn’s past, though they still missed the more recent ones covered by Point of Law.

Elsewhere in O’Quinn news: the firm settled its $1 billion fen-phen verdict (Apr. 28, 2004) for an unknown amount on the eve of appeal as part of a global settlement of O’Quinn’s caseload of fen-phen cases. (Brenda Sapino Jeffreys, “$1 Billion Fen-Phen Case Settles Before Appellate Oral Arguments”, Texas Lawyer, Apr. 16). The verdict was tainted because the plaintiffs blamed fen-phen for Cynthia Cappel-Coffey’s PPH, but Ms. Cappel-Coffey had been taking four other diet drugs since fen-phen had been pulled from the market that had the known risk of causing PPH. Yet that evidence was excluded from the jury, though the Texas Lawyer coverage barely touches upon this outrage. The state court in judicial hellhole Beaumont also improperly applied Texas caps on punitive damages.

Complete text of the breast implant order after the jump, if you don’t want to read the order in PDF format.

Read On…

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A week in the life of Jarek Molski

As Ted reported Mar. 23, a Ninth Circuit panel lately took an indulgent line toward notorious ADA mass filer Jarek Molski, reversing a ruling by Judge Tevrizian of the district court. (More on that ruling from Law.com). “Army Lawyer” in the comments at Patterico (via Coyote) passes along this classic bit of Molskiana (from the earlier round of litigation before federal judge Rafeedie):

Although this complaint appears credible standing alone, its validity is undermined when viewed alongside Molski’s other complaints. In Molski v. Casa De Fruta, L.P., Case No. C04-1981 (N.D. Cal. 2004), Molski alleges that he sustained nearly identical injuries on the exact same day, May 20, 2003. In Casa de Fruta, Molski alleges that he and significant other, Brygida Molski, patronized Casa de Fruta for the purpose of wine tasting….

It would be highly unusual — to say the least — for anyone to sustain two injuries, let alone three, in a single day, each of which necessitated a separate federal lawsuit. But in Molski’s case, May 20, 2003, was simply business as usual. Molski filed 13 separate complaints for essentially identical injuries sustained between May 19, 2003 and May 23, 2003. The Court simply does not believe that Molski suffered 13 nearly identical injuries, generally to the same part of his body, in the course of performing the same activity, over a five-day period. This is to say nothing of the hundreds of other lawsuits Molski has filed over the last four years, many of which make nearly identical allegations.

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Officiously to keep alive

In West Palm Beach, Fla., a jury has held a nursing home liable for resuscitating a 92-year-old Alzheimer’s patient who had signed an advance directive indicating that she did not want to be kept alive by artificial means. And although an obstacle to even an otherwise well-founded “wrongful resuscitation” case might be the question of damages, the jury in this case awarded the estate of Madeline Neumann $150,000. (Rebecca Riddick, “Fla. Nursing Home Faulted for Ignoring End-of-Life Wishes”, Daily Business Review, Mar. 20; CourtTV coverage). An attorney for the physician defendant (who, unlike the nursing home, was found not liable in the case) said that despite do-not-resuscitate orders, medical personnel often make a judgment that a patient could potentially benefit from rescue efforts, and that had they failed to make such an effort in Mrs. Neumann’s case they might have faced legal risk: “If you call 911, you get sued,” he says. “If you don’t call, you get sued.” (Laura Parker, “In a crisis, do-not-revive requests don’t always work”, USA Today, Dec. 19, 2006).

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