Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘shotgun defendant selection’

Safety mask litigation

Today’s W$J has an editorial about the ill consequences of the trend in recent years for lawyers prosecuting asbestos and silicosis cases to add makers of commonly used industrial masks and respirators as defendants in their suits:

The Coalition for Breathing Safety, an industry group, reports that between 2000 and 2004 plaintiffs attorneys filed more than 326,000 claims against its five members. Some of these are asbestos-related, although the recent deluge has been all silicosis. One manufacturer (which prefers not to be named lest it become a bigger target) says that prior to 2002 it faced about 200 silicosis claims a year. In 2003-4, it got hit with 29,000….The industry coalition estimates its members have spent the equivalent of 90% of their 2004 net income fighting suits in recent years.

The suits have fared poorly — none of the respirator makers have lost a case in court — but the making of industrial respirators and masks is a low-margin line of business, and companies that invest heavily in the business may simply be buying themselves legal risk. And now comes the scare over avian flu:

Respirator manufacturers are still going strong overseas, but the U.S. could find itself unable to purchase these products in a crisis. Worried about a possible flu pandemic, many governments are snapping up masks; France is acquiring 685 million. In previous disease scares (say, China and SARS), countries have blocked mask exports. Local U.S. governments and hospitals are already having a hard time finding supplies.

It might be added that the plight of respirator makers is attributable in large part to the economics of what has been called the shotgun approach to defendant-naming. It is very unlikely that lawyers would have filed 300,000 claims against mask makers, or anything approaching that number, if each suit had to be filed as a freestanding matter. However, it costs very little to add 3M or another respirator defendant when a case is already been judged to be worth filing against other, more vulnerable defendants. For more on the mask litigation, see Sept. 15, 2004 and Jan. 22, 2005. More: Point of Law, May 9.

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Dozens Added to Providence Nightclub Fire Suit

In 2003, a terrible fire in a Providence night club killed a hundred people and injured many more. The fire apparently started when Great White’s (the live band) pyrotechnics ignited soundproofing foam around the stage. The victims initially filed suit against “four dozen defendants, include club owners Jeffrey and Michael Derderian and former Great White tour manager Daniel Biechele.” Biechele recently plead guilty to a hundred counts of involuntary manslaughter for igniting the pyrotechnics, and the club owners are fighting the same charges.

Now, as the statutory deadline (3 years apparently in Rhode Island) for new suits approaches, and perhaps given the disappointing depth of the current defendants’ pockets, the victims and their families have filed suit against “dozens” of others in the fire. The suit now names individual members of the band, the company that distributed the acoustic foam, and even Home Depot, for not “warning of the potential hazards” of the insulation they sold the club, despite the fact that the insulation Home Depot sold “is different from the foam ignited by the pyrotechnics”. (Eric Tucker, “New complaint filed in nightclub fire case”, Houston Chronicle, Feb 15)

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Another thought on the Dick Schaap lawsuit

Walter’s entry below on the Dick Schaap verdict misses a fascinating part of the case. While Schaap’s family lawyer at trial blamed three doctors for failing to diagnose lung damage from use of the medicine amiodarone (and the jury mysteriously held one doctor negligent while exonerating the other two), just two years earlier, the Schaap family and its lawyer had a different story to tell. Then, the family announced, Dick Schaap was killed because of an infection caused by the hospital’s lack of adequate hygiene standards. Unfortunately for the Schaaps, the theory didn’t stand up and the hospital was dismissed from the case, but not before ABC Primetime Live credulously reported in 2003 the supposed scandal of the hospital’s failure to prevent a “velociraptor”-like infection.

It was a case study of what can go wrong in American health care today, said the family’s lawyer, Tom Moore.

“If you ever speak to a surgeon, ‘Doc, what can I expect with my hip replacement?’ — at the top of the list is infection, post-operative infection,” he said.

(The CBS Early Show repeated the story a few days later: ask yourself if you could predict from that news coverage that the hospital would be vindicated before trial.) Without being able to tell the jury about germs that act like deadly dinosaurs, Moore invented a new theory and settled for putting Billy Crystal on the stand to wow the jury with tales of Schaap’s generosity and talent. The defense lawyer, Mark Aaronson, seems to have put his finger on the matter:

“Is everybody who dies in a hospital the victim of medical negligence?” he asked rhetorically. “So ultimately, a theory had to be concocted in front of a jury in order for a claim of damages to be made.”

(Andrew Jacobs, “Jury Deliberates Lawsuit Over Death of Dick Schaap”, NY Times, Jun. 23).

Read On…

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More on the $105 million Aramark verdict

We previously reported (Jan. 21) on Daniel Lanzaro’s drunk driving accident litigation; the little girl he paralyzed won a $105 million verdict against Aramark over beer sales at Giants Stadium because Lanzaro did some of his drinking there that day, in part by bribing a beer vendor to ignore Aramark’s two-beer-per-purchase rules. (Before the game, Lanzaro purchased a six-pack of Heineken; he did some drinking at two strip-clubs after the game, as well.) The New Jersey Law Journal has more on the case:

  • The NFL defendants settled for $700,000, despite prevailing on a summary judgment motion;
  • Judge Richard Donohue excluded evidence that Antonia Verni’s father might have prevented the injuries to his daughter had he put the two-year-old in a car seat rather than an adult seat-belt;
  • Verni also sued Toyota; Verni’s Corolla didn’t fare well when Lanzaro’s pickup slammed into it head-on, and Toyota paid $190,000 to get out of the case;
  • There’s collateral litigation to be had among plaintiffs’ family members and sets of lawyers over who gets the money. And, of course, there will be an appeal.

As previously reported, the judge also excluded evidence of Lanzaro’s two previous drunk-driving arrests. (Henry Gottlieb, “In Wake of Record $105M Verdict, Fee Fights and Coverage Contests Emerge”, Feb. 2; Wayne Coffey, “Wasted Innocence”, NY Daily News, Jan. 30; Kibret Markos, “Expert backs beer vendor”, The Record, Jan. 12). As famous sportswriter/treacle-author Mitch Albom notes, “Either your stadium goes dry, or people will leave drunk.”

A correction: we previously reported that the entire $135 million verdict was awarded against Aramark; in fact, $30 million of the verdict is damages against the drunk driver, Daniel Lanzaro, who had already settled for the limits of his insurance coverage. Aramark’s share is $30 million compensatory, $75 million punitive, and about $6-7 million in interest, with the interest continuing to accumulate. After he settled with the plaintiffs, Lanzaro changed his story to be more favorable to the Vernis’ case. (Ana M. Alaya, “Lawyer for Giants Stadium beer vendor loses bid for mistrial”, Newark Star-Ledger, Jan. 13).

An additional thought: A big argument for plaintiffs at trial was the claim that Aramark, which serves to the two million or so fans who attend football games at Giants stadium each year, had been averaging about seven complaints a year for selling beer to drunks, but only took disciplinary action a fraction of the time. The press hasn’t covered Aramark’s response to this assertion, but one wonders if fear of employment litigation stayed its hand. Earlier damned-if-you, damned-if-you-don’t files include Aug. 30.

Another point: A reader writes to note that Aramark was probably selling watered-down beer, which would be further evidence that post-game drinking was responsible for Lanzaro’s .266 blood-alcohol level, though, again, it shouldn’t matter: Aramark didn’t make the guy drive drunk.

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“Ohio physicians fight back”

The Ohio State Medical Association is documenting instances of baseless litigation against doctors and assisting doctors in sanctions motions against opposing lawyers who bring “shotgun” lawsuits without investigation against every doctor who treated a plaintiff. The effort is believed to be the first of its kind. (Tanya Albert, American Medical News, Feb. 16; Tanya Albert, “Fighting frivolous lawsuits: Doctors engage in an uphill battle”, American Medical News, Oct. 27, 2003) (via LitiGator).

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