In South Portland, Maine, a jury has awarded Neil Maietta $3 million in a complicated medical malpractice claim against anesthesiologist Dr. Kenneth Blazier over an infection that set into Maietta’s spinal discs after a medical procedure. “The verdict was unusually large for Maine, where awards of more than a million dollars are rare. It was particularly surprising in this case because a medical malpractice review panel had unanimously found that the doctor and hospital were not at fault for Maietta’s injury. The panel’s finding was disclosed to the jury, but it found for Maietta anyway. ‘I’ll take my chances with a jury any day,’ said Maietta’s lawyer, Daniel J. Lilley of Portland.” (Gregory D. Kesich, “Man wins $3 million for injury by doctor”, Portland Press Herald, May 27)(via SickOfLawsuits.org).
It’s Edwards
Senator Kerry has selected former trial lawyer Senator John Edwards as his running mate. Jim Copland covers on PointOfLaw. Overlawyered has had extensive coverage of Edwards’s career and fund-raising (Feb. 26; Feb. 3; Feb. 2; Jan. 26; Jan. 23; Jan. 20; Sep. 16; pre-July 2003; and links therein). The Chamber of Commerce is so distressed by the selection that the Wall Street Journal reports that it may abandon its traditional stance of neutrality to campaign against the Kerry-Edwards ticket. (Alan Murray, “Business Elite Vows To Take On Kerry If He Taps Edwards”, Wall Street Journal, Jul. 6) (via Kaus). Murray suggests that Edwards could allay fears that he’s in the pockets of the plaintiffs’ bar by joining the bipartisan support for class action reform (see Mar. 16 and links therein). To do so, however, Edwards would have to flip-flop his previous opposition to the Class Action Fairness Act; he consistently voted against reforms in committee. (Senate Report 108-123).
U.K.: It’s sunny, stay inside
According to guidelines issued by the city council of the city of Derby, England, teachers who plan to lead students on summer trips should “consider keeping a supply of maximum factor suncream to spray onto pupils, although they are told not to rub it in for fear of being accused of inappropriate contact.” Meanwhile, in the city of Bristol, staff at Hillcrest Primary school confiscated a bottle of factor 60 sunblock that a mother had given her easily sunburned 8-year-old son to take to school, saying it was forbidden for students to possess medication and that the youth should instead have worn a long-sleeved shirt and sun hat. Perhaps as a concession to the intractable problem of achieving all the different kinds of complete safety at once, the Derby council guidelines urge educators to consider canceling field outings entirely on days that are too sunny. (“Schools warned over sunny trips”, BBC, Jun. 4)(via Common Good “EdWatch“); “School stops boy using sun cream”, BBC, May 4).
Now we are five
Overlawyered was launched on July 1, 1999, which makes us five years old. Hurrah! We’re going to celebrate by taking off the Fourth of July holiday — see you next week.
America’s drollest police blotter
…now has its own book-length compilation: Kevin L. Hoover, The Police Log: True Crime & More from Arcata, California (via Sam Smith’s Progressive Review, which is newly redesigned along blog lines). Update July 2009: blotter now located here.
Cleveland law firm breakup
Lurid allegations flew in a Cleveland courtroom after the breakup of medical-malpractice and personal-injury firm Kampinski & Mellino. A jury eventually ordered Charles Kampinski to pay almost $621,000 to Christopher Mellino, who had resigned from the firm. He can probably afford it: “Trial evidence indicated Kampinski earned about $36 million between 1997 and 2001 — $15.8 million in 2000 alone. Mellino, his longtime sidekick, raked in some $5.5 million over that span — peaking at $2.53 million in 2000 — under a pay scale that gave him 1 percent of the firm’s net fees for every year he worked there.” (Jim Nichols, “Ruling ends bad breakup of lawyers”, Cleveland Plain Dealer, Jun. 18) MedPundit (Jun. 18) comments. Despite the Cleveland paper’s description of the law firm as “one of Ohio’s most successful personal-injury and medical-malpractice firms”, it does not boast a particularly high Google profile, currently scoring only a dozen or so hits under its former name.
Popcorn butter verdict
…discussed on PointOfLaw.com this morning.
Put out fewer flags
Writes Matt Conigliaro at Abstract Appeal, the Florida legal weblog: “Remember the green or yellow or red flags that could be seen on Florida’s beaches, letting would-be swimmers know whether it was safe, risky, or dangerous to enter the water? They won’t be found any longer on state park beaches without lifeguards, on the theory that it’s better to have no flag than the wrong flag, and without lifeguards present, changing the flags in a timely fashion is too difficult.
“That’s one way to look at, as presented in this story from the AP. Another way would be to look at the lawsuit mentioned in the story — a man dove into riptide-filled waters to save a struggling couple despite red flags and wound up drowning himself, and his family sued the state for providing inadequate warnings — and wonder if the Florida Legislature’s calculus in abandoning the flag system was not as simple as: say something, get sued for saying it wrong; say nothing, avoid suit.” (Abstract Appeal, Jun. 21). The AP story Conigliaro cites has been taken down, but other news clips detail the lawsuit recently filed by survivors of Daniel F. Heede, 52, of Barnhart, Mo., over his 2002 drowning at St. Andrew State Park, and the Florida Legislature’s vote to remove warning flags from state parks without lifeguards. See “Lawsuit Leads Florida To Pull Warning Flags From Beach Parks”, WFTV, Jun. 21.
“Failure to Plead 17200 Claim = Malpractice”
Legal Reader (Jun. 22) on a new development in the saga of California’s please-abuse-me law, s. 17200: “according to California’s First District Court of Appeal, failing to include a cause of action under 17200 in many civil actions may actually constitute malpractice, even if the plaintiffs’ attorney thought it unwarranted or unjustified. The opinion was filed today in Janik v. Rudy, Exelrod & Zieff. …
“My problem is that the Court’s reasoning here applies to almost any civil lawsuit against a ‘business’ in California. As a rule, if you can state a cause of action for anything, you can also state a cause of action under section 17200, as whatever wrongs constitute the first will also constitute the second. By including section 17200 you automatically get a bunch of ‘freebies,’ such as: four year statute of limitations, the ability to recover on behalf of other non-parties, and most likely a case that is at least partially impenetrable to a petition for arbitration.
“In fact, most California civil lawsuits already include section 17200 claims, but now lawyers may be subject to malpractice claims (even from non-clients) if they file compaints that don’t.” For an analogous problem, see “Omit a peripheral defendant, get sued for legal malpractice”, Feb. 15-17, 2002. More: Declarations and Exclusions analyzed the case Jun. 24, pointing out that the ruling, while exposing the defendant attorneys to a claim of breach of duty, does not establish on the merits whether or not they did breach a duty.
“Parents sue rescue crews in son’s death after fall”
Sue those rescuers: “The parents of a 15-year-old Redmond boy who died after a fall in the Crooked River Gorge [in Oregon] have filed a $9.5 million suit in U.S. District Court against the fire district and rescue workers who responded to the accident. Patricia and Michael Keller allege that their son [Elijah Keller] did not receive proper medical care from rescuers. …According to the suit, the teenager wasn’t strapped down properly when rescuers hauled him up on a stretcher, and ‘his head fell sharply down to his chest during the lift up the side of the cliff.’ … Attorney Robert Lowry, who is representing the Crooked River Ranch Rural Fire Protection District and the rescue workers named in the suit, said Keller wasn’t walking along the precipice’s edge, but leaping from rock to rock when one rock broke loose. He said those who responded did everything they could to save the teenager.” (“Briefly”, The Oregonian, Jun. 20). Commenting on the case: “Rural communities depend on the no-questions-asked courage and compassion of thousands of men and women serving without pay as firefighters, EMTs and search and rescue volunteers. … these volunteers and professional first responders keep getting signals that mistakes, no matter how they happen, carry a punishing multimillion-dollar liability”. (“A delicate balance: We sue rural volunteer rescuers at our peril” (editorial), Eugene Register-Guard, Jun. 22).