Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘emotional distress’

“38 lacrosse players sue Duke University”

Inevitably so? Maybe not. As longterm readers will recall, we were early and vocal among those calling attention to the legal travesty that was the Nifong prosecution, but it’s quite a jump from there to the proposition that the taxpayers of Durham, the university and its president Richard Brodhead personally should fork over money for emotional distress damages to, say, students never prosecuted at all and family members, who comprise the plaintiffs in this new case. (Kristen M. Daum, Newsday, Feb. 21; Bob Van Voris, “Duke Lacrosse Players to Sue School Over Rape Probe”, Bloomberg, Feb. 21; Malkin). The plaintiffs have a website here. (Corrected to fix misstatement on identity of plaintiffs. And broken link now fixed).

More: James Taranto at the WSJ quotes the Raleigh News & Observer under the heading “Yoo Hoo! Over Here! Ignore Us Please!”:

*** QUOTE ***The latest Duke lacrosse suit got off to a big start Thursday with publicists, lawyers of national renown, a media blitz at the National Press Club and a lawsuit with its own Web site.

The 38 members of the 2006 Duke lacrosse team who filed the suit in federal court say their reputations were damaged by their association to an escort service dancer’s phony gang-rape allegations.

The players chose not to appear at the news conference, said Bob Bork Jr., the group’s hired publicist, because they don’t want to attract attention.

*** END QUOTE ***

If they didn’t want to attract attention, it might have made more sense not to call a press conference. Or, if they had already called it and felt they had no choice but to go through with it, maybe they could have created a diversion by having a stripper show up or something.

The News & Observer also notes at the end of its article:

Only three members of the 2006 team have not filed suit — Matt Zash, a former captain; Matt Danowski, the current coach’s son, and Kevin Mayer.

And more: Bob Bork, Jr. writes to say he was misquoted in the News & Observer report, and says the following is a transcript of what he did say about the players’ absence:

One final comment before we start. None of the 38 players who are filing this lawsuit are here today. They considered participating, but many have jobs and some are still students and lacrosse team members at Duke. One is in Army Ranger school preparing to deploy to Iraq.

Know this — the players are united behind this lawsuit. At the same time that they are understandably concerned about retribution and slanderous media coverage. Who can blame them after what they endured for 13 months in 2006 and 2007. They are walking a fine line between trying to live normal lives in the wake of an unspeakable trauma and at the same time trying to get answers to questions that remain unanswered by their university.

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Suit: You kept me from jumping off the Empire State Building

Jeb Corliss is a professional stuntman and BASE jumper who has parachuted from the Eiffel Tower, the Golden Gate Bridge and the Petronas Towers in Kuala Lumpur, Malaysia, but apparently none of his stunts compared to the trauma of being forbidden from jumping off the Empire State Building in 2006: he’s sued for $30 million, complaining that the stress of being handcuffed to the railing (after security officers pulled him down as he was climbing over the safety railing) has caused “emotional distress” and “adrenal fatigue.” The suit is a counterclaim to a suit the building filed against Corliss (for an only slightly less implausible $12 million) meant to deter other jumpers from endangering third parties; a judge had dismissed reckless endangerment criminal charges on grounds that Corliss wouldn’t actually endanger anyone by jumping, a ruling the city is appealing. [NY Times City Room Blog]

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Update: N.M. pipeline rescuers can sue for emotional distress

Three years ago we prematurely reported that sanity had (as of that point) prevailed in the New Mexico case where firefighters and emergency medical personnel, otherwise uninjured, were seeking to sue El Paso Natural Gas over the emotional trauma of witnessing the disaster scene after a 2000 pipeline explosion. Earlier this month, however, the New Mexico Supreme Court ruled the other way, poking a big hole in the “firefighters’ rule” which traditionally barred recovery by rescuers against those who cause accidents. Chief Justice Edward Chavez wrote that to throw out the emotional-distress suits would be to “reward reckless or intentional acts”. The suits now head to trial. (Stella Davis, “Responders can sue in pipeline explosion”, Carlsbad Current Argus, Dec. 5).

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A law written by attorneys, for attorneys

I previously posted on Washington’s Insurance Fair Conduct Act, known as Referendum 67. If passed by the voters, it would allow first party claimants to recover triple damages and attorney fees for those claims “unreasonably” delayed or denied.

Existing law already allows a wronged insured to bring three separate causes of action against his/her insurer for such claims: breach of contract, bad faith and violations under Washington’s Consumer Protection Act (CPA). Such existing remedies often yield bizarre results as we saw in the Woo v. Fireman’s Fund case.

The Supreme Court’s knuckleheaded 5-4 ruling upheld a judgment to pay Woo $250K he paid to settle an underlying suit, plus $750K in emotional distress and attorney fees. Obviously, there are already plenty of incentives for an insurer to avoid these judgments by acting fairly, and under this legislation Woo could have received three times more as punitive damages in addition to the “emotional distress” damages which have a punitive measure built into them. And in case you are wondering, Fireman’s Fund coverage position was perfectly reasonable.

The television ads for the Approve 67 camp are demagogic and misleading, if not outright lies. The worst has to be the ad featuring Tiffany Forslund whose father, firefighter David Potter, died allegedly because an insurer delayed payment for necessary health treatment. Forslund says:

My father would have given his life in the line of duty, turns out the insurance company took it instead.

What tripe. Not only would R-67 not apply to her father’s claim (it is intended to benefit auto, home and property policies–not health insurance) it’s not true according to the mayor of the city for which Potter worked, who said it would be covered as a workers’ compensation claim or through the city’s health plan. But the attorneys promoting this legislation could not resist such a sympathetic story of a firefighter allegedly killed by an insurance company, even if it’s entirely off-point and probably untrue. Demagoguery at its finest. And, if the claim is true Potter’s family already has remedies under existing law for emotional distress, which, for a lost loved one are rightfully substantial and the threat of such judgments deter wrongful insurer conduct. Why shall we now triple those damages?

Attorney fees are typically one-third of the gross recovery. So if the gross recovery is tripled it equals a bigger fee. But let’s say the insured prevails but the gross recovery is small? No problem. Just submit your fee request to the court on an hourly basis if it provides a greater recovery for the attorney. And, here’s another little tidbit: the attorney fee provision is mandatory but the triple damages are at the court’s discretion. Who’s looking out for who here, really? And, that the triple/punitive damages are for the deliberately vague “unreasonable” and not for criminal, willful or wanton conduct as you would expect (and would be deserved) to award punitive damages makes for a juicy tidbit indeed.

And, there’s no crisis in the first place. Check out this link from the Insurance Commissioner of Washington State showing the number of complaints against individual insurers. In 2006, Private Passenger Auto Insurance Complaints averaged one complaint for every $1.5M in premium and Homeowners Insurance Complaints averaged one complaint for every $2.5M in premium. Hardly a crisis, and nothing worthy of threatening triple damages in every instance.

This legislation will enrich those attorneys bringing these suits, bring a windfall to a small number of insureds at the greater expense of all who pay insurance, directly or indirectly.

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October 10 roundup

  • She wore a wire: defense attorney says administrative assistant to one of the three lawyers in Kentucky fen-phen scandal worked as FBI mole, circumventing attorney-client privilege [AP, Courier-Journal, Lexington Herald-Leader, ABA Journal]
  • Suing a lawyer because his deposition questions inflicted emotional distress? No way we’re going to open those floodgates, says court [NJLJ]
  • Counsel Financial Services LLC, which stakes injury lawyers pending their paydays, says it’s “the largest provider of attorney loans in the United States and the only Law Firm Financing company endorsed by the AAJ (formerly ATLA)”; its friendly public face is a retired N.Y. judge while its founder is attorney Joseph DiNardo, suspended from practice in 2000 “after pleading guilty to filing a false federal tax return” and whose own lend-to-litigants operation, Plaintiff Support Services, shares an office suite with Counsel [Buffalo News] The firm’s current listing of executives includes no mention of DiNardo, though a Jul. 19 GoogleCached version has him listed as President;
  • Patent litigation over cardiac stents criticized as “a horrendous waste of money” [N.Y. Times]
  • More on the “pro bono road to riches”, this time from a California tenant case [Greg May, Cal Blog of Appeal]
  • Not a new problem, but still one worth worrying about: what lawyers can do with charitable trusts when no one’s looking over their shoulder [N.Y. Times via ABA Journal]
  • Has it suddenly turned legal to stage massive disruptions of rush-hour traffic, or are serial-lawbreaking cyclists “Critical Mass” just considered above the law? [Kersten @ Star-Tribune]
  • “Look whose head is on a plate now”: no tears shed for fallen Lerach by attorney who fought him in the celebrated Fischel case [ChicTrib, San Diego U-T]
  • “Jena Six” mythos obscures graver injustice to black defendants, namely criminal system’s imposition of long sentences for nonviolent offenses [Stuart Taylor, Jr. @ National Journal — will rotate off site]
  • Economist David Henderson on restaurant smoking bans [Econ Journal Watch, PDF, via Sullum, Reason “Hit and Run”]
  • Technical note: we learned from reader Christian Southwick that our roundups were displaying poorly on Internet Explorer (Ted and I use other browsers) and we found a way to fix. So, IE users, please drop us a line when you encounter problems — we may not hear about them otherwise.

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Lawsuit: Yahoo should break Chinese law

We recently covered the Caterpillar lawsuit, in which an American company was sued because of the way a foreign government used its products. Although the suit was dismissed by the Ninth Circuit, it wasn’t because it’s absurd to blame a manufacturer for how its products are used; rather, it was because — as Walter noted — the Caterpillar products were actually paid for by the U.S. government. Given that, it may not be much comfort to other companies being sued over the actions of foreign governments.

In 2004 and 2005, various Chinese citizens were arrested in China by the government of China, prosecuted for their pro-democracy activities, convicted, and sent to jail. They allege that, while in these Chinese prisons, they have been treated poorly by the Chinese government, and that they have suffered physical and mental anguish as a result.

So, in April of this year, these Chinese prison inmates sued the obviously-responsible party: Yahoo, naturally. In California. They sued Yahoo for violating federal law against torture. And for assault, battery, false imprisonment, unfair competition, intentional infliction of emotional distress, and for violating the U.S. Electronic Communications Privacy Act. In China. What was Yahoo’s wrongdoing? The company — or, rather, its Chinese subsidiary — allegedly provided evidence to the Chinese government which enabled the government to identify these people and prosecute them for breaking Chinese law.

Now, one may have no love for the Chinese government, or for companies that do business in China. One can argue that, ethically, Yahoo should refuse to cooperate with the Chinese government. But those are policy questions, and however one comes down on them, one can’t argue that a federal court in California can order a company to break the laws of another country. (The flaws in this should be readily apparent; as Yahoo notes in its motion to dismiss the case, under the logic of the plaintiffs, “A court in France could issue an injunction mandating that French companies doing business in America refuse to provide evidence in cases where the defendant might be subject to the death penalty.”) One can’t argue that a federal court in California can order a company to get a prisoner released from a Chinese prison (Yes, that’s in the lawsuit.) One can’t argue that a federal court in California can act as an appeals court for a Chinese trial, finding Chinese laws unconstitutional.

Yahoo is seeking to dismiss the case in its entirety. (Washington Post)

(Incidentally, it should go without saying that my introduction was not intended to compare the actions of Israel’s government in fighting terrorism with the actions of China’s government in punishing peaceful dissent. The only parallel here is the attempt to hold an American company responsible for the actions of a foreign government.)

Meanwhile, in other attempts to use the U.S. courts to run world affairs, a group of Bolivians have sued the former president of Bolivia, in the United States, for human rights violations that took place in Bolivia. (Reuters)

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“Suit Charges ‘Inhumane’ Questions at Deposition Caused Emotional Distress”

A medical-malpractice plaintiffs’ lawyer has brought a second suit, this one against the attorney for the defendant, arguing that the questions asked at a deposition inflicted emotional distress on his client. (Lisa Brennan, NJ Law Journal, Jul. 25 (via Scheuerman)).

This suit may well fall into the “Be careful what you ask for” category. If a defense attorney can be liable for exploring whether a plaintiff has responsibility for a decedent’s fatal head injury, why can’t a defendant doctor sue a plaintiffs’ attorney when accused of the same thing? (Note the plaintiffs’-attorney commenter who told one doctor to suck it up.) Odds are the whole matter gets dismissed on grounds of the litigation privilege, the idea that immunity is appropriate lest attorneys be deterred from litigating on behalf of their clients. One only wishes that the same principle would be applied to other situations, such as doctors being deterred from practicing medicine. Earlier: POL Jun. 20, 2006.

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MacDermid v. Discover

Nina Kay MacDermid was bipolar and suffered from drug and alcohol problems. Discover Financial Services did not know this when she successfully obtained a card in her husband’s name and charged $15,000 worth of exotic cats and computer products and other shopping, despite her husband having forbidden her from having credit cards because of her previous manic spending sprees that sent her into personal bankruptcy. MacDermid also obtained cards from American Express and others, but it was checks from Discover that her husband intercepted and confronted her over on February 14, 2003. Ms. MacDermid overdosed on drugs, and was admitted to the hospital for five days that week, but later managed to commit suicide in June, which Mr. MacDermid claims in his lawsuit was a surprise. Mr. MacDermid complained to Discover in March that he had not authorized the card, but sued Discover, claiming that Discover’s resulting attempts to collect on Ms. MacDermid’s debts from the cancelled card was what actually drove her to suicide. (A psychiatrist conveniently submitted an affidavit that MacDermid would have been peachy keen if not for Discover’s actions, notwithstanding her substantial history of mental illness.) A magistrate judge dismissed the case under 12(b)(6), but the Sixth Circuit, in an opinion by Judge Boyce Martin, resuscitated it on a theory that Discover’s allegations of criminal violations may have been an intentional infliction of emotional distress. The opinion does not cite this month’s Twombly decision, which perhaps explains the wild save of the almost-surely doomed case, and Discover will now have to spend additional money defending it—which is why your credit-card interest rates are so high. (MacDermid v. Discover Financial Services (6th Cir. May 29, 2007) (via Bashman)). The opinion contains a variety of gratuitous slams at Discover for being a victim of MacDermid’s fraud.

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“What happens in Ms. Buford’s class stays in Ms. Buford’s class”

A couple of weeks ago, we reported on two teenagers who claimed to be traumatized by seeing a gay sex book at the library. But how traumatized could they be? After all, they sued for just $20,000. So, logically, they must have only been 1/20th as distressed by the thought of gay people as Jessica Turner of Chicago:

A suit was filed on behalf of a 12-year-old girl who claims she suffered psychological distress when a teacher showed in class the gay-themed movie “Brokeback Mountain.”

The girl, Jessica Turner, and her grandparents Kenneth and LaVerne Richardson, are seeking more than $400,000 in damages under the suit filed Friday against the Chicago Board of Education and others.

[…]

The plaintiffs accuse Diaz, Buford and the Chicago Board of Education of negligence, false imprisonment and intentional infliction of emotional distress.

The suit claims Jessica continues to suffer from emotional distress caused by watching the film and is currently undergoing psychological treatment and counseling.

You know, as I recall, William Faulkner had that effect on me. I wonder what the statute of limitations is on psychological-assault-by-bad-literature.

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