Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘New Jersey’

Damned if you do, damned if you don’t

You may have heard of the $100 million lawsuit filed by postal workers against US Postal Service officials for failing to evacuate the anthrax-contaminated Brentwood facility and to treat workers quickly enough. (Allan Lengel, “Postal Workers File Suit Over Handling of Anthrax Crisis”, Washington Post, Oct. 15). The press coverage universally fails to note that while two workers, Joseph P. Curseen, and Thomas J. Morris, Jr., died from anthrax, the lawsuit was filed on behalf of all 2200 workers in the facility, and none of the five named plaintiffs represent the families of the deceased or, though all the Brentwood postal workers were tested for the disease, allege that they contracted anthrax. Instead, they allege, vaguely, “anthrax-like symptoms” for which they wish to receive damages. (At the press conference, the lead lawyer apparently claimed that there are several other anthrax-linked deaths, a fact we’re sure the CDC would be curious to know even as it was being reported uncritically by the Washington Post.) At least some postal workers who actually contracted anthrax have already brought individual suits that won’t be affected by the class action. (Linell Smith, “More anthrax suits likely against Postal Service”, Baltimore Sun, Jan. 10; “Lawsuit Over Anthrax Death Settled”, Washington Post, Aug. 9, 2002). Again, this went unnoted by the press coverage, which focused on the postal workers who were harmed, rather than the claims of the named plaintiffs. Also less publicized is the fact that New Jersey postal workers are suing Bayer, claiming that they were injured because they took Cipro as a precaution against anthrax exposure, and requesting class action status. (“Postal Workers Sue Maker of Cipro”, AP, Oct. 19).

UPDATE, Oct. 24: Reader William Jones writes to point us to a recent study of Brentwood postal employees in a CDC publication that shows no additional mortality from the anthrax exposure beyond the deaths of Curseen and Morris. (K. Berry et al., “Follow-Up of Deaths Among U.S. Postal Service Workers Potentially Exposed to Bacillus anthracis — District of Columbia, 2001–2002”, Morbidity and Mortality Weekly Report, Oct. 3 ).

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Market-share liability: now prove you’re innocent

Under the theory of market-share liability, dear to the heart of the plaintiff’s bar, consumers who allege that they were injured by a product but cannot identify who made it would get to sue all manufacturers and collect from each in proportion to their share of the market. After early experiments, mostly in the realm of generically equivalent pharmaceuticals, courts have been reluctant to extend the idea any further (see, for example, Apr. 27-29, 2001, on the failure of attempts to assign market-share liability to gun makers). But hope springs eternal, and some New Jersey lawyers are now hoping to get market-share liability accepted in that state in the case of a postal worker banged on the head by the metal door of a bulk letter carrier — she can’t remember which maker’s. “Essentially, we would be shifting the burden from the plaintiff to the defendants,” said attorney Andrew Watson of the law firm representing her. “Any company that could prove its products had nothing to do with the accident obviously wouldn’t have to pay anything. Any company that could not prove its innocence would have to participate in any verdict that was awarded,” he said. Hey, it seems fair to him. (Andrew D. Smith, “Who’s responsible?”, Trenton Times, Sept. 28).

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Our editor on the road

Postings (from me, at least) will be sparser than usual this week as I will be spending a lot of time on the road. On Mon. the 22nd, I’ll be addressing the annual Legal Reform Summit at the U.S. Chamber of Commerce in Washington. The next day, Tues. the 23rd, I’ll also be in Washington to attend the unveiling of an important new study from the Manhattan Institute entitled Trial Lawyers Inc., which tries to get a handle on the scope, operations and future direction of the industry of suing people, considered as an industry; former Attorney General Dick Thornburgh will give the main presentation. And on Thurs. Sept. 25th, I’ll be a panelist at a daytime discussion of Litigation and the Economy held at Ramapo College of New Jersey.

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“Venue wish upon a star”

Okay, we picked it in part just as an excuse to quote that headline, but the story actually does show how litigation reform can work as intended: the Philadelphia Inquirer editorially hails a precipitous drop in filings of malpractice cases in that city since the state legislature enacted a bill (meant to curb forum-shopping by plaintiff’s lawyers) which requires that suits against doctors be filed where the care was delivered. It is not yet clear to what extent the drop in Philadelphia filings will be counterbalanced by an expected rise in filings in suburban and rural counties; some cases, which had been premised on the generosity or unpredictability of juries in the center city, may wind up not being filed at all. (editorial, Sept. 4; Josh Goldstein, “Medical lawsuits plummet in Phila.”, Aug. 31). The Pennsylvania Medical Society comments (other liability resources at its site).

In other Pennsylvania-related malpractice news, a website of doctors in neighboring New Jersey is posting the text of the “Liability Update” newsletter put out by PaMedSoc Legislative Issues Chair Donna Baver Rovito (sample), packed with news clips of interest to anyone interested in the medical liability crisis whether resident in Pennsylvania/New Jersey or not (mirror AOL site with comments) (also available at Politically Active Physicians’ Association (www.fightingdocs.com), click through “News and Information” on left column). [Corrected Sept. 13 to repair/improve nonworking links]

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Torricelli’s environmental patronage

Ethics-challenged former New Jersey Sen. Robert Torricelli is back in business: “A federal judge who was appointed to the bench after being recommended by Mr. Torricelli has assigned him as special master of an environmental cleanup site in Jersey City, a position that allows him to control millions of dollars in contracts and collect an estimated $500,000 a year in administrative fees.” (David Kocieniewski, “Hardly in Disgrace, Torricelli Emerges as a Trenton Power”, New York Times, Aug. 26). Julian Sanchez at Reason “Hit & Run” comments.

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“Lawyer Sent Back to School as Sanction for Frivolous Lawsuit”

“A lawyer’s attempt to save a time-barred malpractice suit by wrapping it up as a federal RICO and civil rights case has drawn an unorthodox sanction [under federal Rule 11]: Rather than dock the lawyer for fees, the judge ordered him to take courses in federal practice and procedure, professionalism and legal ethics.” We still prefer fees, though (Charles Toutant, New Jersey Law Journal, Aug. 26).

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Midwives disappearing in NYC

New York City may soon be left with only a single independent center for natural childbirth: “The Brooklyn Birthing Center says its insurance company has stopped covering midwives, and a costlier new policy could push them out of the baby-birthing business as well. The news comes less than a week after the highly regarded Elizabeth Seton Childbearing Center, which delivers more than 400 babies a year, announced it will shut down its West 14th Street [Manhattan] birthing rooms on Sept. 1 because of malpractice insurance costs it says have quadrupled.” All three independent midwifery centers in New Jersey closed in recent years; one remains in the Bronx which receives federal funding and insurance. (Susan Edelman, “Midwife Strife Hits Moms in Brooklyn”, New York Post, Aug. 17; Dan Mangan, “Midwife Crisis”, New York Post, Aug. 12). And in Tallahassee, Fla., a doubling of insurance rates has contributed to the closing of Full Circle Women’s Health, a nonprofit midwifery agency whose efforts have been credited with helping reduce the county’s high rate of neonatal mortality. (Jeff Burlew, “Area midwifery agency closing after 20 years”, Tallahassee Democrat, Aug. 13)(more on obstetric liability)(& update Sept. 3, letter to the editor Sept. 18)

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“New Jersey bans drowsy driving”

Let’s criminalize everything dept.: “Sleep-deprived drivers who cause deadly crashes now face criminal penalties under a measure that became law Tuesday in New Jersey. The bill signed by Gov. James E. McGreevey allows prosecutors to charge a sleep-deprived driver with vehicular homicide, punishable by up to 10 years in prison and a $100,000 fine.” It is nicknamed “Maggie’s Law” after the victim of one such collision, thus confirming the truism that any enactment tagged with the given name of some recent victim (“Megan’s Law”, etc.) will combine sentimentality of intent with harshness of result (AP/CNN, Aug. 5). Meanwhile, in Watauga County, N.C., District Attorney Jerry Wilson is trying to charge a methamphetamine defendant with two counts under federal terrorism law — for “manufacturing a nuclear or chemical weapon” — in addition to more conventional drug charges. (“Prosecutor fighting meth using law that punishes terrorism”, Asheville Citizen-Times, Jul. 16) (via Volokh Conspiracy).

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Update: Hager’s bad behavior

Disgraced law professor Mark M. Hager, after being suspended by the District of Columbia bar for a year, at last has resigned his tenured job at American University’s law school, the Washington Post reported in April (James V. Grimaldi, “Hearsay: The Lawyer’s Column”, Washington Post, Apr. 21 (not online); Mary P. Gallagher, “How Not To Settle a Multiparty Suit”, New Jersey Law Journal, May 5 (not online); Julianne Basinger, Jamilah Evelyn, and Katherine S. Mangan, “Suspended Law Professor Loses Tenured Job”, Chronicle of Higher Education”, May 9 (not online). In December the District of Columbia Court of Appeals found Hager “to have engaged in ‘conflicts of interest, dishonesty’ and ‘improper conduct’ when he represented two southern Virginia mothers who wanted to sue the makers of the lice-killing shampoo Nix. The court upheld the D.C. Bar’s one-year suspension of Hager and further ordered him to disgorge the $225,000 fee he shared with co-counsel.” (James V. Grimaldi, “Misconduct in Lice Case Puts AU Professor’s Job in Jeopardy”, Washington Post, Mar. 10). For our earlier coverage of the Hager affair, see Feb. 23, 2000 and May 3, 2001.

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“60 Minutes” on wrongful birth

The CBS show takes a look at the Jade Fields case from New Jersey, which we covered last July (Jul. 1-2, 2002; Aug. 22-23, 2001 and links from there). The show interviews an ultrasound specialist who “has testified as an expert witness in many wrongful birth cases for both doctors and patients” and who appears to doubt that the doctors’ supposed inattention to danger signs was in fact malpractice. Also on camera is the girl’s mother who insists that “Jade is the best thing that could have ever happened to us” but also says in the lawsuit that she would have aborted the girl in a moment had the extent of her disabilities been clear. The show gives the plaintiff’s lawyer the last word (CBS News, “Is ‘Wrongful Birth’ Malpractice?”, Jun. 23).

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