Overlawyered: Chronicling The High Cost Of Our Legal System

Another thought on the Dick Schaap lawsuit

Walter’s entry below on the Dick Schaap verdict misses a fascinating part of the case. While Schaap’s family lawyer at trial blamed three doctors for failing to diagnose lung damage from use of the medicine amiodarone (and the jury mysteriously held one doctor negligent while exonerating the other two), just two years earlier, the Schaap family and its lawyer had a different story to tell. Then, the family announced, Dick Schaap was killed because of an infection caused by the hospital’s lack of adequate hygiene standards. Unfortunately for the Schaaps, the theory didn’t stand up and the hospital was dismissed from the case, but not before ABC Primetime Live credulously reported in 2003 the supposed scandal of the hospital’s failure to prevent a “velociraptor”-like infection.

It was a case study of what can go wrong in American health care today, said the family’s lawyer, Tom Moore.

“If you ever speak to a surgeon, ‘Doc, what can I expect with my hip replacement?’ — at the top of the list is infection, post-operative infection,” he said.

(The CBS Early Show repeated the story a few days later: ask yourself if you could predict from that news coverage that the hospital would be vindicated before trial.) Without being able to tell the jury about germs that act like deadly dinosaurs, Moore invented a new theory and settled for putting Billy Crystal on the stand to wow the jury with tales of Schaap’s generosity and talent. The defense lawyer, Mark Aaronson, seems to have put his finger on the matter:

“Is everybody who dies in a hospital the victim of medical negligence?” he asked rhetorically. “So ultimately, a theory had to be concocted in front of a jury in order for a claim of damages to be made.”

(Andrew Jacobs, “Jury Deliberates Lawsuit Over Death of Dick Schaap”, NY Times, Jun. 23).

Read On…

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Says he owns “stealth”, “hoax”, “chutzpah”

Abuses of trademark law:

Over the last few years, Leo Stoller has written dozens of letters to companies and organizations and individuals stating that he owns the trademark to “stealth.” He has threatened to sue people who have used the word without his permission. In some cases, he has offered to drop objections in exchange for thousands of dollars. And in a few of those instances, people or companies have paid up….

Mr. Stoller owns and runs a company called Rentamark.com, which offers, among other things, advice on sending cease-and-desist letters and Mr. Stoller’s services as an expert witness in trademark trials. Through Rentamark, Mr. Stoller offers licensing agreements for other words he says he owns and controls, such as bootlegger, hoax and chutzpah, and sells t-shirts and other merchandise through what the Web site calls its “stealth mall.”

Stanford lawprof Mark A. Lemley says Mr. Stoller’s sweeping claims are “based on a misunderstanding of how trademark law works” and that courts would be unlikely to assign liability unless a rival company’s use of a word led to consumer confusion with some product or service offered by his enterprises. However, many companies he has targeted are reluctant to incur the legal fees involved in defending their use of the words; one of his companies appeared before one federal judge in Chicago 33 times between 1995 and 1997 alone to assert its rights. (Colin Moynihan, “He Says He Owns the Word ‘Stealth’ (Actually, He Claims ‘Chutzpah,’ Too)”, New York Times, Jul. 4).

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Nocera on Lerach

Via Kirkendall, Joseph Nocera profiles the legal career of William Lerach (Jun. 28, Jun. 27). (“The Lawyer Companies Love To Hate”, NY Times, Jul. 2). Larry Ribstein correctly quibbles:

[The 1995 Private Securities Litigation Reform Act] was not just, and maybe not even mostly, intended to make securities cases harder to “win,” as Nocera said, but harder to bring. This is an important distinction, since a main problem with class actions is the extent they are used to bludgeon (or, less charitably, blackmail) firms into settling cases that probably can’t be won, but that can cause plenty of trouble along the way. The plaintiff’s lawyer in effect “wins” the case by surviving a motion to dismiss, which is harder to do post PSLRA. Moreover, even apart from the motion, the case is likely to have more weight if big shareholders, rather than the lawyers and their stable of career suers, are behind it.

This distinction between eliminating nuisance cases and hobbling good cases is a big reason why Lerach and others are flat wrong about the effect of the PSLRA in inviting Enron.

Moreover, Nocera’s interview with Lerach makes clear why Lerach doesn’t like the Act — whatever his success post-PSLRA, he likes being able to bring weak cases. Lerach calls it his “business model.” He says it’s useful in training lawyers. One can’t tell from newspaper page how fully Lerach’s tongue was inserted in his cheek when he came up with that one.

See also Peter Burrows, “Payback Time for Lerach?”, Business Week, Jun. 30 (via Schaeffer).

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Not about the money: a continuing series

It wasn’t about the money, which doesn’t keep the lawyer from complaining that the award was too low:

A jury found a cardiologist at Lenox Hill Hospital liable yesterday for the death of the sports journalist Dick Schaap after hip replacement surgery and awarded his family $1.95 million in compensatory damages….

His family had sought $21 million.

“This case was never about the money,” his widow, Trish, said after the verdict….

[Attorney Thomas Moore, who represents the family of the 67-year-old Schaap], also expressed some disappointment with the jury’s monetary award, saying it failed to consider Mr. Schaap’s future earnings. “He was at the zenith of his career when he died,” he said.

A lawyer for the defendant cardiologist, meanwhile, takes strenuous exception to the verdict against his client, contending it was based on erroneous science. (Andrew Jacobs, “Jury Awards Family $1.95 Million in Dick Schaap’s Death”, New York Times, Jul. 2). More: don’t miss Ted’s comments above, and welcome KevinMD readers.

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“For Potential Juror, ‘Honest’ Response to Judge Backfires”

The story seems straightforward enough:

It may have been an inelegant description, but Stephen Caruso said he thought he was just being honest on Thursday afternoon when a judge asked if he could be fair and impartial toward a defendant on trial for kidnapping. No, Mr. Caruso said during the voir dire portion of jury selection. “I have been held up three times at gunpoint,” he said according to transcripts, adding, “I am already looking at him; I think he is a scumbag.”

Caruso now faces criminal contempt charges from the angry Judge William A. Wetzel of Manhattan Criminal Court, and the Times coverage is disapproving. (Andrew Jacobs, NY Times, Jul. 2 (via Betsy Newmark)). However, AP reports that the judge protests that Caruso “was screaming at the top of his lungs,” and Newsday notes that Caruso also gave a smart-aleck response when asked his profession, so there may be more to the story than the recounting by Caruso’s defense attorney.

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Piping Plovers Cancel Fireworks

The piping plover is a neurotically fragile bird that abandons its low-lying nests on beaches in response to noise, and suffers from being prey for dogs, raccoons, foxes, and skunks, its only defense being relatively ineffective camoflauge. Though the Fish & Wildlife Service under the Reagan, Bush, and Clinton administrations did not believe it necessary to create critical habitats for the thousands of plovers that remain, the Clinton administration eventually settled a lawsuit brought against it by agreeing to establish a critical habitat in 2001. (The efforts may be for naught, since plovers migrate to Canada, and not even Canada provides such dramatic protections for endangered species, much less “threatened” species.) Now, a number of towns up and down the East Coast have been required to cancel their fireworks ceremonies on the grounds that the noise might interfere with the nesting. Jerry Della Femina, the inventor of the “Meow Mix” theme-song used to “torture” Guantanamo prisoners, is especially unhappy that his annual fireworks party has been cancelled, and has been using his advertising wiles to generate publicity on the issue; in response, a local Fish & Wildlife official has threatened him with prison rape, but that hasn’t stopped Della Femina from publishing his recipe for Garlic Piping Plover. (Paul Vitello, “Clash of Beach-Nesting Species: Plover and Human”, NY Times, Jul. 2; Julia C. Mead, “Those Little Birds on the Beach Mean No Fireworks in the Sky”, NY Times, Jun. 23; Kai Ma, “Plovers force cancelation of July 4th fireworks in East Hampton”, Newsday, Jun. 24; Seth Harkness, “Fireworks canceled to keep birds safe”, Portland Press Herald, Jul. 2; Marina McGowan, “Piping Plovers Cancel Fourth of July Fireworks”, Long Island Press, Jul. 3; Kitty Merrill, “Indy Goes Inside: The Great Plover Controversy Of 2005”, The Independent, Jun. 29; Jerry Della Femina, “The Grinch Who Stole The Fourth Of July”, The Independent, Jun. 29). In Stone Harbor, New Jersey, the federal government required dredging to protect the plovers, with a cost to local taxpayers of $3 million. In exchange, nine pairs of plovers were able to establish nests, four of which produced young, and one plover of these young fledged—a three-million dollar bird. (Richard Degener, “Settlement on table in Cape spoils case”, Press of Atlantic City, Mar. 22; DOJ press release, Feb. 12, 2003).

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New York judge thrown off the bench

Brooklyn Surrogate Michael H. Feinberg, elected to the bench in 1996, appointed a law school buddy, Louis R. Rosenthal, counsel to the public administrator, and then rubber-stamped $8.5 million in fees to him without making legally-required findings to justify the large awards—money taken from the estates of those unfortunate enough to die without a will in Brooklyn. The State Commission on Judicial Conduct wasn’t impressed with his excuse that he hadn’t actually read the law he failed to apply. The state’s high court, the Court of Appeals, affirmed his removal from the bench, and there will be a new judge elected, who will have to clean up the messy files left behind. “A probe of 25 files during 2004 found such disarray that [the administrator] closed the books on one dead Brooklyn resident’s estate without distributing 48 U.S. savings bonds. The bonds later showed up in an employee’s desk drawer, the report said.” (John Caher, “Judge Loses Seat After Showing ‘Shocking Disregard’ for Law”, New York Law Journal, Jul. 1 (via Legal Reader); Nancie L. Katz, “News helps get dirty B’klyn judge axed”, NY Daily News, Jun. 30; Nancie L. Katz, “Big mess in B’klyn court for estates”, NY Daily News, Jul. 1; In the Matter of Hon. Michael H. Feinberg (NY Jun. 29, 2005); NYSCJC decision, Feb. 10, 2005).

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“He grabbed girl’s arm — now he’s a sex offender”

The judge agreed that 28-year-old Fitzroy Barnaby of Evanston, Ill. probably didn’t have any sexual intention when he grabbed a 14-year-old girl’s arm to chastise her (he says) for walking in front of his car. But unlawful restraint of a minor, the offense of which Barnaby was convicted, automatically qualifies as a sex offense under Illinois law. “Now, [Barnaby] will have to tell local police where he lives and won’t be able to live near a park or school.” “I don’t really see the purpose of registration in this case. I really don’t,” said Cook County judge Patrick Morse. “But I feel that I am constrained by the statute.” (Steve Patterson, Chicago Sun-Times, Jul. 1).

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Update: duPont, R.I. settle paint case

Although the giant chemical company refuses to characterize it as a settlement, duPont has agreed to donate $10 million or more toward education, research, and the cost of lead remediation for 600 homes in exchange for being dropped from Rhode Island’s action. Other defendants that remain in the case are Sherwin Williams Co., NL Industries Inc., Atlantic Richfield Co., Millennium Holdings LLC, American Cyanamid Co. and ConAgra Inc. A lawsuit filed by the state’s former attorney general against the manufacturers ended in a hung jury in Providence in 2002; a new trial is set for September. The product has not been sold for interior use in this country in approximately a half century. (“DuPont settles for millions in Rhode Island suit on lead paint”, AP/USA Today, Jun. 30). For our coverage of the case and the controversy generally, see this set of links. Courts have dismissed a number of other lawsuits seeking to impose financial responsibility for lead-paint-related woes on paint and pigment makers, including suits filed by the cities of Chicago (see Oct. 13, 2003) and Milwaukee (see Aug. 3, 2003). Update: Point of Law, Sept. 13, 2006 (controversy over donations).

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