Overlawyered: Chronicling The High Cost Of Our Legal System

New York Times on medical malpractice

Yesterday the Times published an article on medical malpractice insurance that’s has been getting a fair bit of attention. I thought the article had serious shortcomings and just posted a lengthy explanation of why on Point of Law, with more posting probably to come. (Feb. 23; see also Feb. 22). More: And Ted has a semi-satirical treatment of the issue just up at Point of Law, inaugurating a new “Column” section there.

On a different note, my flu seems to have had a relapse, so I may skip posting for a while. (Update 4:20 p.m.: doing a lot better after resting for a few hours.)

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Oz: party hosts not liable for barbecue misuse

At approximately 2 a.m., long after the 18-year-old host’s parents had gone to bed, some guests at a backyard party decided they would relight the barbecue. Ignoring warnings, one of them poured in an entire bottle of lighting fluid and the resulting fireball injured a second guest, who sued the family for improper party supervision and won a A$210,000 damages award. In November, however, the high court of the state of New South Wales overturned that award, holding that the parents could not reasonably have foreseen the guests’ irresponsible behavior. According to attorney Julie Cameron of Corrs Chambers Westgarth (“Thank God It’s Friday: Appeal Judges extinguish BBQ claim”, Dec. 3), the plaintiffs also “argued that consideration should be given to North American case law, where a doctrine known as Social Host Liability has been adopted, attaching liability to hosts at parties where alcohol is served.” But the court did not find the North American law persuasive, finding that in Australia:

Barbecue parties with liquor attended by young adults occur in their hundreds all over Australia every evening; the perception that the activity, supervised or unsupervised by older adults, is one involving a foreseeable risk of personal injury is, in my opinion, an entirely wrong perception.

The appellants were not in any relationship with the guests which has been or should be established by judicial authority to impose any special duty or responsibility for the safety of the guests.

In a concurring opinion, Justice Tobias said Australian community opinion would reject any open-ended extension of liability to homeowners for the general misconduct of inebriated guests, “the burden of which would inevitably result in social functions where alcohol is served becoming a thing of the past”. (Parissis and Ors. v. Bourke). See The Third Branch (blog), Nov. 30. For more items from Down Under — including numerous hopeful developments in recent years as the country has pulled back from a previous swing toward litigiousness — see our Australia page.

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Drypen v. Oakland County, Michigan

On June 22, 2003, the Drypen family asked their sixteen-year-old son, Christopher, to turn his rap music down; instead, he pulled a nine-inch serrated steak knife. They called 911, and asked for assistance subduing him. They told dispatchers that he had psychiatric problems and was not taking his medication, and told arriving police that he was “violent,” having a “psychotic episode,” and armed with a serrated steak knife. Moreover, the Drypens said, last time Christopher was like this, it took four people to subdue him.

For over an hour, several deputies tried to talk Christopher out of the basement, surrounding him at the stairs to the basement and at the outside walk-out doors. At one point, Drypen came towards deputies with the knife raised; they responded by retreating, and holding the door closed until the inside door-handle broke off in Christopher’s hand. Christopher was yelling “Die” with an obscenity. Deputies say (and the family disputes that) Drypen charged deputies up the stairs with the knife raised; he was shot from a mere twelve feet away in self-defense, and killed. Prosecutors called the killing justified self-defense and did not press charges after a three-month investigation, but the Drypen family sued–and now Oakland County taxpayers are out $4 million ($1.42 million to attorney Jules Olsman) because the County settled without admitting wrongdoing. (Mike Martindale, “$4 million won’t end grief for family”, Detroit News, Feb. 18; Marsha Low, “Family struggles to move on after son killed by deputies”, Detroit Free Press, Feb. 19; Korie Wilkins, “County to pay $4M in death of 16-year-old”, Daily Oakland Press, Feb. 18; Kate Phillips, “Drypen suit settled”, Milford Times, Feb. 17; Oakland County press release, Sep. 12, 2003; Marsha Low, “Grieving family blames police”, Detroit Free Press, Sep. 13, 2003; Bill Laitner, “Family sues over police shooting of ill teenager”, Detroit Free Press, Oct. 16, 2003; Drypen v. Oakland County, Case No. 2:03-cv-74151-AC (E.D. Mich.)).

Update, Feb. 27: The press finally gets around to reporting the defense side of the story. Often the press repeats the fact that officers fired many times as evidence that excessive force was used, when, in fact, officers are trained to keep firing until a threat is stopped. (Korie Wilkins, “Son’s death remains mystery”, Daily Oakland Press, Feb. 27; Kate Phillips, “Sides still dispute shooting details”, Milford Times, Feb. 24).

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Judge orders entire law firm to ethics class

Things might start getting lively if judges used this sanction more often: “A federal judge in Fresno, Calif., has ordered the entire 80-lawyer firm of Lozano Smith back to school for a refresher course in ethics as a sanction for repeated misrepresentation of facts and the law in a dispute over aid for a learning-disabled student.” U.S. District Judge Oliver Wanger said the law firm, which represents many California school districts in special-ed matters, “its lead attorney in the case, Elaine Yama, and the district [the Bret Harte Union School District in central California] engaged in repeated misstatements of the record, frivolous objections to plaintiff’s statement of facts, and repeated mischaracterizations of the law.'” (Pamela A. MacLean, “Judge Orders Law Firm Back to School”, National Law Journal, Feb. 14).

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$17M against Archdiocese of Milwaukee for auto accident

The Archdiocese of Milwaukee finds itself on the hook for $17 million because a volunteer member of a volunteer group that occasionally meets on church property ran a red light. The Legion of Mary visits ailing parishioners and offers transportation to mass; on March 25, 2002, member Margaret Morse, delivering a statue to a parishioner, ran a red light and struck the car of 82-year-old semiretired barber Hjalmer Heikkinen, paralyzing him and ending his career. Morse’s insurance company tried to shift the burden to the church, which ended up being held responsible on the principle of respondeat superior, the doctrine that holds a business liable for the negligence of its employees. This makes sense for a business, which chooses its employees, and can hire and fire. Is a church supposed to do the same for religious volunteer groups that occasionally meet on its property? That’s one way to ensure there will be less volunteer activity: the church will need to hire someone to supervise and screen volunteer groups in a way that isn’t done now. “‘They really do accommodate a huge amount of groups all the time,’ from religious cooperators such as the Knights of Columbus to secular groups including Alcoholics Anonymous and the Boy Scouts, archdiocese attorney Frank L. Steeves said. ‘These groups are out doing the kinds of things we don’t direct or control in any way.'” $15.5 million of the award was for non-economic damages, though post-trial motions may change the result. (Derrick Nunnally, “Church told to pay $17 million”, Milwaukee Journal-Sentinel, Feb. 18). Update: Feb. 27; the verdict was upheld on appeal.

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Happens to judges too

From Phil Kabler’s “Statehouse Beat” column in the Charleston, W.V. Gazette, Feb. 14 (reg):

It sounds like one of those urban legends, but this one is true.

No sooner had [State] Supreme Court Justice Elliott “Spike” Maynard gotten out of his SUV after a fender-bender downtown last week when a woman approached him, asked if he was hurt, and gave him the name and phone number of the Charleston law firm where she works.

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Sugar industry vs. Splenda

Alarmed by the sweetener Splenda’s steady rise in consumer popularity and market share, organized sugar producers in December filed a California false-advertising suit against distributor McNeil Nutritionals, a unit of Johnson & Johnson. The lawsuit challenges the artificial sweetener’s slogan “made from sugar, so it tastes like sugar”, on the grounds that sucralose, the active ingredient in Splenda, is produced using chemical processes, even if sugar does happen to go into it. A number of private lawyers are pursuing similar theories in consumer lawsuits pursuing class-action status. In turn, J&J has struck back with a lawsuit against the Sugar Association and other defendants alleging a “malicious smear campaign” aimed at undercutting consumer confidence in the sweetener’s safety. (Patrick Walters, “Splenda’s maker sues sugar producers”, AP/Detroit Free Press, Feb. 9; Laura Petrecca and Holly M. Sanders, “Sweet and Low”, New York Post, Feb. 13; Claire Cummings, “Splenda sugar substitute receives praise, lawsuits from consumers”, State News (Michigan State U.), Feb. 16). Update: National Law Journal coverage of controversy (Apr. 8).

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