- More ADA filing mills: “Fuller, Fuller and Associates was once sanctioned when their client, who was alleged to be quadriplegic, walked into his own deposition.” [Childs @ MassTort]
- Professional expert witnesses as a publicly traded multimillion dollar industry. [WSJ]
- No accommodation needed for LSAT taker claiming ADHD. [Legal Intelligencer]
- Homeowner’s gripe on web draws lawsuit from contractor. [WaPo]
- Lawsuits of the future: Muslim cashier refuses to ring up bacon (if only I had thought of that when I was in high school) [Minn. Star-Tribune]
- Neighbors feud over driveway: “three civil lawsuits, a physical altercation, a criminal indictment, [and] a court hearing over a videotape” [St. Pete. Times]
- “Warning: Lawsuits Hazardous To Financial Health” [Forbes.com]
- Y’know, if a man wrote a ludicrous essay to the effect that every professional women has a Lisa Nowak inside of them on the verge of erupting, that’d be the last thing he ever wrote. [Legal Times]
Posts Tagged ‘expert witnesses’
U.K. roundup
Because you were clamoring for one:
- Police warn householders of three convicted burglars but say they cannot describe them for fear of violating their human rights [Telegraph]
- Eight year old Connor McCreaddie is very fat indeed, so North Tyneside officials are considering taking him from his mum into protective custody [Gillespie, Reason “Hit and Run”]
- Sounds promising but haven’t seen: author Simon Carr has published compendium of legal horror stories entitled “Sour Gripes” [Telegraph]
- As in the U.S., prospect of discrimination suits has deterred efforts to keep unhealthily thin fashion models off the catwalk [Guardian]
- Ban on fox hunting not only is widely evaded but in fact has led to renaissance of the sport [Telegraph]
- “An incompetent expert [witness] can cause more misery than a psychotic gang member.” [Slapper/Times]
- Vacationing cop busted for Swiss Army knife [Daily Mail]
- In hospitals, perhaps a surfeit of privacy [Huddersfield Daily Examiner via KevinMD] and sensitivity [Daily Mail via ditto]
- Man obsessed by sex after motorcycling injury expected to get multi-million-pound award [Telegraph]
- Children’s sack race scrapped for lack of liability insurance [Telegraph]; industrialist says inordinate playground risk-aversion is bad omen for economy [ditto]
- Convicted armed robber “given legal aid to sue over a telephone message that reveals that his phone calls come from prison” [Telegraph]
- Familiar ring? Controversy mounting over “ambulance chasing”, allegations of sharp practices as no-fee-no-win injury work makes fortunes for some well placed solicitors [Times here, here, here, here]
How Joe Jamail conducts a deposition
Dignity of the profession dept.: this YouTube video of the famed Texas lawyer and UT benefactor in action is making the rounds (warning: offensive everything). It’s discussed by BrainWidth, Froomkin, Childs, Hurt, Kirkendall, Caron, Metafilter, etc. One of those present The man in the chair is named Edward Carstarphen. [note: a commenter says we erred in initially reporting that Carstarphen was the witness being deposed; see also David Stone, Apr. 11]. For more on Mr. Jamail’s record as a paladin of civility, see Apr. 19, 2000 (“gag a maggot off a meat wagon”). Update: link changed to working YouTube location, see Jan. 9, 2007.
Coaching police experts
Lawrence Taylor at DUIblog (Mar. 17, via Cernovich) has got the goods on a coaching memo given by the San Diego Police Department to the technical experts they put on the stand to testify as to drivers’ blood-alcohol levels (emphasis in original memo):
You will always mix any tube with an anticoagulent [sic] 10 times (you count the inversions). The important things to remember is that you always follow the same procedure, so even though you don’t remember this particular individual, you know that you drew the person following our standard procedure.
As Taylor observes, the witnesses are instructed to testify under oath to an account calculated to help the prosecution prevail, “not as to what they actually did and what they know to be true in a specific case”.
For more on witness-coaching, see Sept. 10, 1999, Sept. 22-24, 2000, and, of course, our many entries on the famous Baron & Budd witness memo scandal.
Update: John Torkelsen guilty plea
Josh Gerstein of the New York Sun has details (“Class-Action Expert Pleads Guilty”, Nov. 4). The plea agreement, on charges unrelated to his class-action expert witness testimony, “does not contain any language requiring Torkelsen to cooperate with the inquiry” into Milberg Weiss, reported earlier (see Oct. 10).
“If you say so, then fine with me”
Tales of the expert witness biz: Australian lawyers in an copyright infringement case, acting on behalf of the makers of the Kazaa file-sharing program, ran into trouble when the expert witness they’d hired, Keith Ross of Polytechnic U. in New York, was revealed as perhaps a bit too agreeable to their interests for their own good. “Evidence tendered showed that Professor Ross admitted he had not tested propositions Clayton Utz’s solicitors had inserted in his draft report, but accepted them anyway.” A judge discounted Ross’s testimony with scathing remarks; the law firm insists it never intended to put words in his mouth. And:
[New South Wales] Legal Services Commissioner Steve Mark said solicitors often put pressure on witnesses to come up with a particular result, and his office took a firm stand on lawyers who coached witnesses or attempted to influence their findings.
“A lawyer’s primary duty is to the court,” he said.
(Garth Montgomery, “Music copyright facts fine-tuned”, The Australian, Sept. 9).
First WTC bombing: terrorists 32% to blame, building owners 68%
Twelve years after the event, a jury finds someone to blame for the Islamist van-bomb attack that killed six, injured nearly 1,000, and caused costly business dislocation (Sept. 21, 2005, Dec. 5, 2004, Oct. 12-14, 2001). The culprit? The Port Authority, an agency whose losses are likely to be ultimately borne by New York and New Jersey taxpayers, motorists and air travelers:
The jury voted unanimously that the Port Authority [then-owner of the WTC] was negligent. It found the authority 68 percent at fault for the bombing, while the terrorists who carried it out were 32 percent at fault.
Mr. [David J.] Dean, the plaintiffs’ lawyer, said that because the jury apportioned more than half the blame to the Port Authority, the agency will have to pay 100 percent of any damages for pain and suffering, the so-called non-economic damages, that might be awarded.
Regardless of how the blame was shared, the Port Authority would have to pay 100 percent of any economic damages, like lost business, he said.
Separate legal proceedings will be used to determine actual payouts; “Lawyers for the plaintiffs said they were seeking a total of as much as $1.8 billion.” And this from Mr. Dean: “The case was never about blaming the terrorists.” Well, of course it wasn’t, from his point of view, was it? (Anemona Hartocollis, “Port Authority Found Negligent in 1993 Bombing”, New York Times, Oct. 27).
So there you have it. “What is robbing a bank compared with founding a bank?” wrote Bertolt Brecht, and now we learn that being the target of a terrorist act carries with it more than twice as much responsibility for the resulting damage as actually planting and detonating the bomb. The jury’s (and plaintiff’s lawyer’s) rationale was that security experts had warned that the use of car bombs was on the rise, and yet the PA did not take the (massively disruptive to its tenants) step of closing its enormous underground garage to the public. Inevitably, the lawyers portrayed the earlier advice as a “smoking gun”, a strategem I describe in Chapter 6 of The Litigation Explosion:
Among the favorite smoking-gun generators are memo debates or unheeded suggestions within an organization. The sought-after memo will advise the hotel to dismantle the diving board, the brokerage to go easy on the risky investment, the magazine to kill the hard-hitting investigative story, the hospital to close down the vaccination program that has attracted malpractice suits. (They knew it was wrong to go ahead!) New York City injury king Harry Lipsig’s law firm got a $1.8 million settlement for forty-six-year-old postal worker Freddie Brown, mugged and badly hurt in a housing project lobby, after they found a security specialist whose recommendations to upgrade security at the project had gone unheeded. “We couldn’t lose,” jubilated lawyer Thomas Stickel. “With that witness, we had the city by the throat.” Actually, it would be a wonder if the files of a city as intensively governed as New York did not contain unheeded recommendations by the bushelful on countless subjects.
The logic of lawyers’ search for “smoking guns” is that an organization faces one of three unattractive choices: put itself at risk for verdicts like this; implement any and all recommendations it gets from security experts, no matter that many of them will be costly and intrusive (like, say, stadium patdowns for football fans) and will guard against dangers that never would have materialized; or alternatively, arrange its affairs so that fewer safety recommendations enter its files in the first place, either by asking its experts to commit fewer ideas to paper, or just by not employing them. The New York Sun quotes me today in its coverage of the story: David Lombino, “Port Authority Is Held Liable in Bombing That Killed Six in 1993 Attack on WTC”, New York Sun, Oct. 27. More:Ann Althouse and commenters discuss the verdict, while Michael Krauss at Point of Law hopes it will be thrown out on grounds of lack of proximate cause.
John Torkelsen in plea deal
John Torkelsen, once described by Fortune as “the damages expert of choice for the entire plaintiffs side of the securities bar”, is “expected to plead guilty to reporting false information to a government agency in a D.C. federal court Oct. 21.” The charge arises from Torkelsen’s actions in handling a venture capital fund, rather than from his courtroom work. Before now, however, Torkelsen has declined to cooperate with prosecutors, and a change in that posture could give new impetus to the ongoing federal investigation of the law firm of Milberg Weiss Bershad Hynes & Lerach, for whom Torkelsen was a “notoriously effective expert witness … in dozens of securities suits throughout the 1990s,” according to sources interviewed by Law.com. (Justin Scheck, “Charge Against Expert May Spur Probe of Milberg Weiss”, The Recorder, Oct. 10).
For more on Torkelsen and the venture capital controversy, see Barbara Fox, “Unraveling the Torkelsen Case”, U.S. 1, May 7, 2003. Peter Elkind’s Sept. 4, 2000 expose for Fortune (“The King of Pain is Hurting“) reported:
Torkelsen’s calculations of shareholder losses routinely supported the hundreds of millions of dollars Lerach sought — and he was fabulous in front of a jury should a company decide to fight….Over more than 20 years, Torkelsen’s firm, Princeton Venture Research, not only had made tens of millions working for Lerach’s firm Milberg — by far its biggest client — but also had become the damages expert of choice for the entire plaintiffs side of the securities bar….
He sent thousand-dollar gift baskets as baby presents, and he invited his many friends in the plaintiffs’ bar to an annual black-tie Christmas party that was mind-boggling in its extravagance. At one, guests arriving in Torkelsen-provided stretch limos were heralded by buglers and greeted by costumed Disney characters. Entertainment was invariably provided by a big-name act: Little Richard one year, Aretha Franklin another.
For more on the Milberg probe, see Jun. 27, Jun. 28, Aug. 29, Point of Law Aug. 8, etc. On the reliability of Torkelsen’s numbers as submitted to courts, see the Delaware Chancery Court’s memorandum (PDF) in Cinerama v. Technicolor (2004), a non-Milberg case, pp. 10 et seq.
McDonald’s coffee revisited, August 2005 edition
One of the great urban legends perpetuated by the trial bar is that the ludicrous McDonald’s coffee case (Dec. 10, 2003; Aug. 3, 2004; Aug. 4, 2004, etc.) was somehow worthwhile because McDonald’s “lowered the temperature of its coffee” after it lost the case over Stella Liebeck’s burns. This claim is repeated by hundreds and perhaps thousands of web pages, and at least one tort-law casebook used in law schools.
Not so. Restaurants, much to the relief of consumers, continue to serve coffee hotter than the 140 degrees Stella Liebeck’s attorney thought should be the maximum limit. And, one time in several million, a customer is burnt by the coffee, and some fraction of those result in lawsuits. Latest examples: Rachel Wehrenberg of Florida is suing William F. Ganshirt and McDonald’s for second-degree burns suffered by her daughter when Ganshirt spilled his coffee on six-year-old Victoria’s back after the two collided; and Russian Olga Kuznetsova is suing McDonald’s for second-degree burns she suffered when she spilled coffee on herself while trying to exit the restaurant. The Naples News uncritically repeats attorney Debi Chalik’s false assertion that “industry standard” is “140 degrees.” The Russian lawsuit is over whether the restaurant’s door caused the spill; there does not appear to be a claim that the coffee was unreasonably hot just because it caused burns. Interestingly, there appear to be delays in the Russian case because the expert witness was found to have had contact with the plaintiff’s attorney, a common practice here that is an apparent nyet-nyet in Russia. (Kristen Zambo, “Mother sues McDonald’s claiming coffee burned daughter”, Bonita Daily News, Aug. 6; “Russian woman claims million for a cup of McDonald’s coffee”, Pravda (English), Aug. 9; Andrey Kolesnikov, “Not Fraud, Just Clumsiness”, Kommersant, Jul. 28).
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).