Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘workplace’

Nurse Cullen’s references, cont’d

New York Times publishes its investigation into the 16-year career of the confessed killer nurse: “Mr. Cullen’s case has exposed a fundamental weakness in health care: the difficulty of prospective employers to learn of someone’s past troubles. Employers frequently refuse to pass on negative information, even about people they have fired, for fear of being sued for slander by the former employee. …[Mandated reporting systems are weak as well.] ‘There needs to be some kind of safe harbor that would allow past employers who’ve taken adverse actions to share that, and to describe the associated facts, without fear of legal action,’ said Dr. Arnold Milstein, a health care consultant and one of the founders of the Leapfrog Group, a national business alliance dedicated to improving health care.” (Richard Perez-Pena, David Kocieniewski and Jason George, “Through Gaps in System, Nurse Left Trail of Grief”, Feb. 29)(see Jan. 29, Dec. 18). Cut to Cure (Mar. 2) comments: “So we have the lawyers saying on the one hand if we will just clean our own house and get rid of the bad apples, the medical liability problem will take care of itself. But when such efforts are made, the lawyers try to put a stop to it.”

The Christian Science Monitor has a good roundup of the state of reference-chilling (Randy Dotinga, “Would you hire this man?”, Mar. 1) but then goes on to illustrate the problem only too well by way of a companion article whose advice is summed up in its title: “If an old boss smears you, hire a detective” (Jennifer LeClaire, Mar. 1). According to the latter piece, one complainant was successful in extracting a cash settlement from a former employer on the grounds that it had refused to respond at all to reference requests.

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“Dick Clark sued for age discrimination”

“A 76-year-old game show producer sued Dick Clark Monday, alleging the 74-year-old Clark called him a ‘dinosaur’ and refused to hire him because of his age.” When Ralph Andrews, who had produced game shows in the 1960s and 1970s, wrote the veteran television personality “to say he was interested in available positions, Clark wrote back, allegedly turning Andrews down because of his age. ‘I have great respect and admiration for your accomplishments, and wish you success in your desire to ‘get back to work,’ Clark’s letter read, according to the suit. ‘(But) the last development guy we hired was 27 years old. Another person who is joining our staff next week is 30. People our age are considered dinosaurs! The business is being run by “The Next Generation.”‘” Andrews now wants damages under age-bias law. (AP/San Francisco Chronicle, Mar. 1). More: if semi-anonyblogger Slithery D were running this site, he wouldn’t have posted the above item; but Virginia Postrel probably would’ve.

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Common Good “Five worst lawsuits of 2003”

Common Good, the organization founded by author/attorney Philip K. Howard (The Death of Common Sense, The Collapse of the Common Good) and dedicated to “Reforming America’s Lawsuit Culture”, has announced its picks for Top 5 Ridiculous Lawsuits awards of 2003, in what is intended to be a continuing annual series. Two of the five have been written up previously on this site: Blair Hornstine’s suit demanding to be made sole valedictorian of her school in Moorestown, N.J. (see Aug. 21, Jul. 12 and links from there) and a jury’s award of $10 million against the state of Washington over an assault committed in part by two foster kids in the state’s foster care program (see Nov. 24). The other three:

* Perri v. Furma Restaurant, Inc. (Illinois Court of Appeals, Jan.): “Parents can sue Chinese restaurant for hot tea burn, even though a child from their family caused the burn by spinning the lazy susan.”

* Gary Dailey v. Board of Review, et. al (Supreme Court of Appeals of West Virginia, Nov.): “Truck driver, who lied about having driver?s license, wins suit to get unemployment benefits.”

* Ellen Hall v. Tim Henn, et. al (Illinois Supreme Court, Dec.)(unpublished opinion): “Woman who broke her arm on backyard snow luge can sue neighbor who invited her and other friends and neighbors to use the luge.” The court held that a state statute protecting landowners from liability for opening their land to the public did not apply to invited guests and that the luge could be “considered an ‘unnatural and dangerous condition’ even though the victim called and asked if she and her daughter could come over and use it.”

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Oz: helmets for cowboys?

Jackaroos, the Australian counterpart of Western cowboys, have traditionally worn the bush hat known as an Akubra, but changes in the law may soon result in the substituting of hard hats instead. After a young jackaroo was thrown from a horse and killed, the New South Wales industrial safety authority pressed charges against the owners of the livestock station where he was working for not providing a safety helmet, and the owners have now pleaded guilty to the charges (Denis Gregory and Jim O’Rourke, “Jackaroo’s death could spell the end for old hats”, The Age (Melbourne), Nov. 30; “Curtains for Akubra after death?”, AAP/Sydney Morning Herald, Feb. 2).

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Lockyer to sue grocery chains

Calif. Attorney General Bill Lockyer says he’s filing an antitrust suit against Southern California grocery chains alleging that their mutual-aid strike agreement violates the federal Sherman Act. His spokesmen deny (cue laughter) that he’s trying to lend a hand to the sagging fortunes of the United Food & Commercial Workers in its 3 1/2 month old labor dispute with the chains. (“State to file antitrust suit in grocery strike”, San Francisco Chronicle, Jan. 31). “It appears the attorney general’s office is seeking a legal precedent that would scotch strike-assistance agreements in general.” Meanwhile, the Los Angeles city council is expected to vote this month on a bill which would prevent Wal-Mart from opening its SuperCenters within city limits, thus excluding the main source of competition pressing grocery prices lower. We’re sure that isn’t meant as a favor to the UFCW, either. (Shirley Svorny, “Banning Wal-Mart May Prove Costly” (commentary), Los Angeles Times, Jan. 30)

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Today’s Ninth Circuit follies

“John Roe” is a San Diego police officer who was fired when it was discovered that, in violation of department policies on moonlighting, he was selling videos of himself stripping from a police uniform and masturbating. (The pseudonymous Mr. Roe turns out to be considerably more modest when it comes to self-identification in his litigation, as opposed to his homemade videos.) Roe was discovered when he sold an official police uniform on eBay, and an investigation turned up the videos as well. In an expansion of existing Supreme Court precedent on the First Amendment, the Ninth Circuit in a 2-1 decision held that Roe could proceed with a lawsuit against the City over his firing. (Roe v. San Diego; Reuters, Jan. 29). (Update: Supreme Court summarily reverses in 9-0 decision, Dec. 7).

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Update: killer nurse lawsuits

Plenty of families have already sued or are planning to sue hospitals that employed alleged killer nurse Charles Cullen. However, a common thread in many suits “seems to be that the lawyers pursuing them have gathered little evidence that Cullen was responsible for patients who died or fell ill.” (“Killer Nurse Case Sparks Medical Lawsuits”, AP/FoxNews.com, Jan. 15). And columnist Paul Carpenter of the Allentown (Pa.) Morning Call finds an irony in the circumstance (see Dec. 18) that Cullen bounced from hospital to hospital while each new employer was kept in the dark about his past, fear of litigation having choked off frank reference-giving: “it was the legal establishment that prevented employers from learning about a prospective worker’s background, allowing Nurse Cullen to run amok, and now it is the legal establishment that is eagerly seeking to reap enormous profits by blaming the medical institutions that employed him.” (“Who, the man asks, created the problem?”, Dec. 23)

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Harassment: do as we say?

“A federal jury on Wednesday awarded $500,000 to a former Cook County employee who alleged she was sexually harassed by her boss, who at the time was the county’s chief investigator of sexual harassment allegations. The jury of four women and three men deliberated for about 3 1/2 hours before deciding in favor of Sharla Roberts, a mother of three who said she was groped by Timothy Flick, the county’s first inspector general.” Flick denied the allegations. (Matt O’Connor, “$500,000 awarded in harassment case”, Chicago Tribune, Jan. 22; “County Official ‘Never’ Touched, Kissed Manager”, NBC5.com, Jan. 15). For more stories from the hoist-on-their-own-petard file, see Jun. 14-16, 2002 (EEOC says U.S. Commission on Civil Rights retaliated against employee who filed bias complaint), Mar. 6, 2001 (EEOC itself accused of age discrimination), Aug. 30, 1999 (U.S. Justice Department charged with ignoring employee overtime law), Feb. 6-9, 2003 (Sen. Wellstone, noted labor advocate, illegally failed to buy workers’ comp insurance for his campaign staff), and this 1998 list.

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Recent workers’ compensation follies

The Ninth Circuit Court of Appeals upheld an award of disability benefits to Michael Ilaszczat, “who required hip surgery after crashing to the floor of a social club on [Johnson Atoll] after he bet soldiers $100 that one of them could not high-kick over his head without touching him. He won the bet but got kicked to the floor.” Ilaszczat was subsequently expelled from the atoll for his behavior in the incident, but filed a claim for disability.

“The appeals court agreed with the earlier ruling that the two-mile-long atoll is a ‘zone of special danger’ because of its isolation and limited recreational opportunities.” (Reuters, Jan. 16) (via Bashman). The concept of “zone of special danger” arose out of a 1951 Supreme Court case, where a Guam worker spending time in his employer’s recreation center drowned in an attempt to rescue swimmers calling for help; the Supreme Court, perhaps illustrating that hard cases make bad law, held that the limited recreational opportunities in Guam made the employee’s behavior reasonably related to his job under the circumstances. The Ninth Circuit has since extended it in cases such as Self v. Henson, a 1962 case where the employer was held responsible for a woman injured during a late-night rendezvous with her supervisor in a parked car that was struck by an army weapons carrier.

On the mainland, on the other hand, a California Court of Appeals denied workers compensation for a PG&E employee who argued that the stress of the company’s bankruptcy (and from the loss of his investment in the company stock) was a compensable psychiatric injury. (Roberto Ceniceros, “Stress from company setbacks not compensable”, Business Insurance Daily News, Jan. 13).

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Regulating workplace noise — in orchestras

In a fit of sense, our own Occupational Safety and Health Administration has generally refrained from trying to protect symphony orchestra members from the noise of the bass trombones, trumpets and tympanies in their midst. Not so in the European Union, where a newly promulgated rule “reduces the allowable sound exposure in the European orchestral workplace from the present 90 decibels to 85. The problem is, a symphony orchestra playing full-out can easily reach 96 to 98 decibels, and certain brass and percussion instruments have registered 130 to 140 at close range.” (James R. Oestreich, “The Shushing of the Symphony”, New York Times, Jan. 11)(via Arthur Silber). See Mar. 8-10, 2002 (bagpipes); Dec. 22-25, 2000 (military bands). More: “Mindles H. Dreck” at Asymmetrical Information has further commentary and a BBC link.

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