Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘disabled rights’

Litigation and the D.C. schools

In a hard-hitting series last month, the Washington Post investigated the enduring calamity that is the Washington, D.C. public school system, which persistently ranks at or near the bottom among the nation’s leading cities. (Dan Keating and V. Dion Haynes, “Can D.C. Schools be Fixed?”, Jun. 10; April Witt, “Worn Down by Waves of Change”, Jun. 11)(via Frum). Along with familiar problems of cronyism, mismanagement and undislodgeable incompetents, there is another persistent theme: “Reformers’ lawsuits have backfired, time and again.” For instance:

The activist group Parents United for the D.C. Public Schools tried to force city officials to help the schools in 1992 by suing over fire code violations in dilapidated buildings. Members thought they were helping [Superintendent Franklin L.] Smith by forcing Mayor Marion Barry, the D.C. Council and Congress to pay to rebuild the schools.

Instead, D.C. Superior Court Judge Kaye K. Christian closed schools with fire code violations. The suit dragged on for years. It contributed to the 1996 ouster of Smith, a favorite of Parents United activists. …

“In our wildest imaginings, we never thought this would happen,” Delabian Rice-Thurston, then executive director of Parents United, told The Washington Post the day Smith was fired. “The whole thing — the lawsuit, the court dates — it all backfired. Be careful what you wish for; you might get it.”

And then this, on special ed:

[Former superintendent Arlene] Ackerman balked when she discovered that the school system was paying millions of dollars annually to lawyers representing special education students who had successfully sued for better services. A lawyer sending a short form letter setting up a meeting might bill the schools $450, she said. Ackerman persuaded Congress to cap the amount lawyers could bill the schools at $80 an hour, she said.

Instead of winning plaudits for saving money, “you would have thought that I was responsible for World War III,” Ackerman said. “I started getting pressure — ‘we don’t need to get a cap,’ ‘this is not fair’ — and I mean from all parts of the community. Somebody said to me these were trial lawyers who support certain politicians.”

Ackerman was summoned to meet with [Anthony] Williams, by then the mayor, about raising the cap. She resigned before the meeting took place, and her initiative was soon rolled back, she said. Williams, in a recent interview, conceded that he “might have caved in” to political pressure even though he fundamentally believed Ackerman had been right to limit money spent on lawyer fees that could have gone to classrooms.

Overall, the Post reports, special-ed lawsuits

wound up forcing the system to spend about $120 million a year to pay private tuition for 2,400 students out of a system of 55,000, plus $75 million for special education transportation. That left less money to fix the system’s own inadequate special education programs that sparked the lawsuits in the first place.

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Another Detroit co-worker’s-perfume suit

Susan McBride, who works in the planning department for the city of Detroit, is suing the city “alleging her co-worker’s strong perfume has made it impossible for her to do her job. …McBride alleges the city should accommodate her disability by prohibiting people from wearing perfume in the workplace.” As the Detroit News reports, and as we noted at the time, this isn’t the first time Detroit has been the scene of perfume-in-the-workplace litigation:

In 2005, Detroit country music deejay Erin Weber won a $10.6 million jury verdict against her employer, WYCD (99.5 FM) after she alleged she was sickened by a fellow radio host’s perfume.

But U.S. District Judge George Caram Steeh reduced the award to $814,000, saying it was not clear from the evidence that Weber had a perfume allergy.

(Paul Egan, “Worker sues over co-worker’s perfume”, Detroit News, Jul. 4; “Employee Sues City Over Co-Worker’s Perfume, Seeks Ban on Scents”, AP/FoxNews.com, Jul. 5).

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Welcome Financial Week readers

Reporter Jay Miller quotes me and mentions this site in an article on ADA mass-filing operators; the piece should be available on a registration basis for a few more days before becoming subscriber-only (Jay Miller, “Flood of lawsuits filed under Disabilities Act”, Financial Week, May 28). This site has been covering ADA filing mills for years and years; see Apr. 15, Mar. 27, and many other entries on our disabled-rights page.

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The $33 million window

Secretary Caryl Dontfraid claims that her disability requires her to have a desk by a window at her New York law firm (Binder & Binder, which specializes in social security disability claims), rather than one three feet away from a window; when she didn’t get her preferred seating assignment, and refused to try the desk she was assigned, she was fired. “She wanted to work closer to a window with good light,” her attorney, Robert Campos-Marquetti told the New York Daily News. “This is a request that could have been easily accommodated.” The damages claim is $33 million, or about half of a pair of pants. (Mike Jaccarino, “No window desk? That’ll cost you $33M, she says in suit”, May 26 (via Kevin MD)).

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Playground wood chips ruled unfair to disabled

Uh-oh: “A Contra Costa County school district’s use of wood chips in play boxes makes it harder for boys and girls in wheelchairs to get to swings and slides, a violation of the disabled children’s rights, a federal judge has ruled.” Rubberized mats, the main alternative, are eight times as expensive, according to a lawyer for the district in Northern California. According to playground designer Susan Goltsman, “wood chips are more yielding and may cushion falls better”, aside from which employing a variety of ground materials is helpful in keeping playgrounds interesting to kids. (Bob Egelko, “Wood chips ruled unfriendly to disabled kids”, San Francisco Chronicle, May 5).

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Discrimination against the mentally ill

David Bernstein is presiding over a thread at Volokh (Apr. 18).

More from the WSJ’s editors today:

A reasonable university administrator might conclude from all this [the suits against Harvard and MIT over the Sinedu Tadesse and Elizabeth Shin episodes, respectively] that mentally ill students–when there is even a remote possibility that they will be dangerous–need to be removed from campus, at least until their condition has improved. But not so fast. In 2004, George Washington University suspended Jordan Nott after he sought medical treatment for severe depression. Officials said later that they were trying to act in Mr. Nott’s best interests, by forcing him to take time off to get counseling. Mr. Nott sued the university, arguing that it had violated his rights under the Americans With Disabilities Act. The school and Mr. Nott settled out of court last fall.

In the same rights-based spirit, Virginia recently passed a law barring public colleges and universities from punishing or expelling students “solely for attempting to commit suicide, or seeking mental-health treatment for suicidal thoughts or behaviors.”

(“Caught in the (Legal) Crossfire”, Apr. 20).

And: “Privacy and anti-discrimination laws have meant paralysis in the face of the scarily insane.” (Kay Hymowitz (Manhattan Institute), “In loco parentis – not”, New York Sun, Apr. 20, original at City Journal). Speaking of privacy laws, Hymowitz writes:

Some years ago, when my daughter was starting out at Amherst, the college president explained the terms of the Buckley Amendment to the parents of incoming freshmen. One parent asked in disbelief, “You mean, if my kid were to disappear to California with a drugged-out nut, you wouldn’t even tell me she was missing?” The president smiled with just a hint of condescension. “That’s right,” he said.

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Fighting fire with fire

We don’t generally endorse litigation as a solution to problems here at Overlawyered, but here’s one that just might be justified:

A business owner is suing an Anaheim man and his lawyer for filing at least 123 lawsuits that allege disabled-access law violations, saying the practice is “an effort to extort a quick and dirty settlement.”

In a lawsuit filed last week in Orange County Superior Court, Huy Dinh accuses David Gunther and Morse Mehrban of filing “frivolous lawsuits” to extort money from small businesses. Dinh, is suing alleging malicious prosecution, fraud and abuse of process, and seeks punitive damages.

Dinh was sued last year by the pair, who alleged a work station at his business was too high for disabled persons. A jury sided with Dinh, according to the lawsuit.

We’ve covered the exploits of the Gunther/Mehrban racket before: Dec. 1, 2006 and Dec. 7, 2006. And more of Mehrban’s activities: Nov. 2002, Mar. 2004, July 2004.

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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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Implausible claims in Texas

Under Tennessee v. Lane, the ADA does not apply to states unless the states waive their sovereign immunity and permit the federal cases to proceed in state court. Attorney General Greg Abbott of Texas (coincidentally enough wheelchair-bound himself), has exercised that sovereign immunity in ADA suits, and there is a movement for the legislature to repeal the immunity. I think the voters of a state can rationally decide whether they want to allow the disabled residents of the state to be able to sue the state and its agencies for alleged discrimination against the disabled; it’s a conscious decision whether the value of that access is worth the expense to taxpayers. (Of course, the ADA is poorly drafted enough that the consequences can be silly from time to time, but that’s a different issue.)

But it doesn’t seem sporting in arguing for the change to claim that such a waiver will have “no fiscal impact” on the state, as Dennis Borel and Bruce Todd argue in an Austin American-Statesman op-ed seeking a waiver in Texas. Even one suit would cost the state money that it could spend on disciplining lawyers or speeding up the licensing of doctors wishing to practice in Texas. If there’s no money to be had from state coffers by making suits available, why the need to make suits available? One would have more respect for proponents if they were forthright in telling voters how much in taxpayer dollars they want to spend annually to achieve their goals. And since Texas does have sovereign immunity from the ADA, it is under no obligation to make a full waiver: it could choose to create some rights to suit, but not others, and thus avoid the worst abuses of the Act, a possibility that does not even seem to be under consideration.

Separately in the implausible claims department: a page on the DOJ site, much repeated elsewhere, claims that there have been only 650 ADA suits in five years. Given that there are filing mills that come close to hitting that total by themselves, this seems extraordinarily unlikely.

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Sued if you do, sued if you don’t.

Hospital X was grossly — if not criminally — negligent, and you ought to award zillions of dollars in punitive damages for their misconduct! Consider this list of sins: this hospital knew that its surgeon was mentally ill. He had been diagnosed with bipolar disorder, and they knew it. He had been locked up in mental institutions at least twice before. The danger here was very real. Don’t let them try to claim they didn’t foresee danger. Why, once when that surgeon was operating on a patient, multiple witnesses will tell you that he “became disoriented during the surgery, forgot the names of certain instruments and at one point appeared to be talking to the wall!” Even after he was treated, two different psychiatrists who evaluated him refused to unequivocally state that he was competent. And they let him continue to operate on vulnerable patients. Without any supervision. Even though they knew he had a history of failing to take his medication.

Well, that would be the summary of my argument to the jury if the surgeon in question botched my poor client’s operation and left him permanently injured. So a hospital would have to be crazy to let this state of affairs go on, right?

Right. Except that when Wyoming Valley Health Care System decided not to take any chances, and refused to let mentally ill surgeon Jonathan Haas operate without supervision, he sued the hospital in federal court for violating the Americans with Disabilities Act. And this week, a Pennsylvania jury awarded $250,000 to Haas for this violation of his rights. That’s the case, even though the Americans with Disabilities Act ostensibly has an exception for situations where employing the disabled person would be a threat to the health or safety of other people.

Haas’s complaint was that since he couldn’t find anybody to supervise him, the hospital’s condition effectively prevented him from acting as a surgeon. (Oddly, once this happened, Haas moved on to a hospital in Minnesota which imposed exactly the same supervisory requirement on him, which he accepted. But neither the judge nor jury found that relevant to the question of whether the requirement was reasonable.)

In short, the hospital had the choice of risking a patient’s life and being sued for malpractice, or restricting the privileges of the surgeon and being sued for discrimination. (And we know that had a patient sued for malpractice, the hospital couldn’t possibly have defended itself by pointing to the requirements of the ADA and saying that it was forced to employ the surgeon.)

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