Double amputee Oscar Pistorius of South Africa can compete in the Olympics with prosthetic legs, according to the Court of Arbitration for Sport (ABAJournal and JammieWearingFool, with video);

New York lawyers sue attorney general over pension probe (Adjunct Law Professor Blog);

A study debunks the medical malpractice crisis (Ambrogi @ Legal Blog Watch);

Lawyers average salaries place them on 17th on list (Elefant @ Legal Blog Watch;

The whistle gets blown at Blawg Review #159;

Brooks Schuelke brings us Personal Injury Law Round-Up #62;

Senator Russ Feingold has an op-ed on arbitration clauses (TortDeform);

An incoming law student learns how easy it is to trash your internet reputation (Above the Law); and

Live-blogging U.S. v. Feiger, to watch Gerry Spence in action (Norm Pattis)

Labels: Random Notes

A new account of the JetBlue toilet lawsuit by Gokhan Mutlu is now out, differing substantially from the original story. The version that was in the news on Monday resulted from a $2M suit filed in New York for forcing this passenger to sit in the toilet. The story sounded "ludicrous" to me, and I said so (See: Jet Blue Hit With Toilet Lawsuit).

While JetBlue didn't respond in public to the allegations, another version, albeit third hand, dripped out in the comments in my blog in the post above.

According to this account, Mutlu was riding free and the captain was the one who got him on the flight:

He begged [captain] to help him get on flight - excersising Caring value CA said he would ASK jumpseating (Not [deadheading]) FA if she was willing to give up seat for pass rider. She was.

Then when the captain went to answer the call of nature mid-flight:

When on bathroom break, non rev approaches barrier and again really thanks CA for helping him get on. CA replies no problem - I didn't really do anything -if you want to say thanks its the FA who gave up her seat..have a nice day.

And that, apparently, was the last the captain saw of the man until after the flight:

Sees nonrev after flight - very upset. He let [flight attendant] sit in his seat and she fell asleep. Other FA's would (correctly) not let him sit on FA jumpseat. He was too timid to wake up FA and didn't know what to do.

I can't say if this is inaccurate water-cooler gossip or an accurate account. The account is likely a mixed bag, as most such stories are when passed along like the game of telephone, but I think it's safe to say that JetBlue's account will likely vary substantially when they do respond to the suit.

The original story just seems a bit too bizarre. There would simply be waaay too many witnesses for any flight crew to allow such a violation of flight regulations to occur -- and it would involve the entire flight crew letting this happen. I remain skeptical of the original account.

More:

• JetBlue Sued by Man Forced to Ride in Lavatory (Lowering the Bar)

  [T]his guy (and/or his lawyer) is demanding more than the entire lifetime economic output of most Americans as compensation for being required to sit on the toilet for about three hours.
  
  I had a roommate that used to do that for free.

• Man Claims Jet Blue Made Him Sit in Airplane Lavatory for Hours ($2 Million Lawsuit Included) (The Gothamist)

  If this is what a Jet Blue "buddy pass" is, we totally pass.

• Follow-up: Forced to sit in the toilet stinks, but does it deserve $2 million (Gadling)

  My point, which is really a question, is this: Why $2 million? Although I am on Mutlu's side, for what that it's worth, I'm wondering whether his suing JetBlue for $2 million doesn't seem a tad, well, greedy, like he saw an opportunity (no doubt goaded by some lawyer) for a quick pay day and took it.

Labels: Interesting Cases in the News, Personal Injury

I'd previously written of how Dennis Quaid's newborn twins were victimized by malpractice when they received a massive overdose of heparin.

And I'd also written how he sued Baxter Healthcare over the mix up.

Today he testified before Congress. This is the most important quote:

"Like many Americans, I believed that a big problem in our country was frivolous lawsuits. But now I know that the courts are often the only path to justice."

Those who advocate tort "reform" generally have this in common: They've not been seriously hurt by someone else's negligence and never imagine it can happen to them.

Labels: Dennis Quaid Lawsuit, Medical Malpractice

Raymond Marquez smoked for 30 years and then quit. Then, after being locked up at Rikers Island for 29 months awaiting trial, he got bladder cancer. He blamed the City of New York for the cancer, since the city's Department of Corrections runs the jail and permitted indoor smoking while he was there. Smoking is the leading cause of bladder cancer.

According to Marquez, smoking indoors was permitted between 1998-2001 when he was awaiting trial, and that the secondhand smoke traveled through the ventilation system. The policy changed in 2003 to ban indoor smoking.

While Marquez said he had smoked from age 15 to 45, he also said that he had stopped for 23 years. He also claimed, incredibly, that he never inhaled. The medical underpinning of the suit was his claim that after 20 years of smoking cessation the risk of bladder cancer is as low as that of a non-smoker. The 78 year old plaintiff said, therefore, that the cancer must have come from the jail house smoke.

A New York jury that returned a verdict Friday didn't think much of the claim from the plaintiff, who used to be "the foremost kingpin of the city's illegal numbers rackets" and was known as Spanish Raymond. He had previously pleaded guilty to gambling charges, but was acquitted of the new charges. (The acquittal was not before the jury.) And after a two-week trial on the smoking case, and just over an hour of deliberation, the jury tossed it.

When I first heard about the litigation, it sounded like a dog, and I don't know any reputable personal injury firm that would have taken it. And as it turns out, the suit was brought by the plaintiff's son, who happens to be a local attorney. (I once went down that road myself, representing my father, with thankfully much different results.)

It seems now that the city wants to use this suit for its propaganda benefits, claiming in a press release (below) that this is an example of "ridiculous lawsuits." Using anecdotes is a fairly typical method of trying to win tort "reform" arguments, but it is also pretty useless in this setting. Pulling out the bad cases for display to the public tells you nothing about the good ones that the city remains mum on.

(Full Disclosure: Defense counsel Scot Gleason is a good friend of mine who has also worked for me in the past on an "of counsel" basis.)

See also:

• NYC jury rejects former inmate's secondhand smoke lawsuit (Newsday)
• Ex-Inmate Loses Lawsuit Over Secondhand Smoke (New York Times)
  
• New York City Law Department Press Release: RaymondMarquez.DOC
• Harlem numbers king sues city for $15M (HarlemWorld, 3/11/08)
• Harlem numbers king taking on city with $15M secondhand smoke suit (Daily News, 3/10/08)
  

Labels: Personal Injury

Another day, another idiot. I see the headline, "NY man sues airline over flight spent in toilet," with a demand for two million bucks, and all I can think is, Did the tort 'reformers' pay them to do that?

It isn't even Christmas yet. Not even close. And yet there seems to be this compulsion to hand gifts to corporate protectionists trying to slam the courthouse doors closed.

The basic facts of the story are that the plaintiff was allowed to board a packed Jet Blue flight, but was then told he had to sit in the toilet for the second half because a flight attendant needed his seat. While the facts seem ludicrous, I'll give the guy the benefit of the doubt for the moment that someone effed up by putting one too many people on board, and that he deserves compensation of some kind (and that the FAA should investigate). If everything he says about the facts were true, as reported in the newspaper, a free ticket or two would certainly be in order. That's why we have Small Claims Court.

My beef is with the idiotic demand for millions for "extreme humiliation" in New York's Supreme Court.

Where do I start? How about here: The lawyers who brought this suit don't do personal injury law for a living. How do I know this? Easy. They sued for $2,000,000 for personal injuries. Except that every personal injury attorney in New York, or at least every one that does this on any kind of regular basis, knows that New York banned the practice of monetary demands in personal injury suits years ago. (See: New York Cleans Up Claims Act)

So after getting the big tip off that this firm didn't practice personal injury law, I logged on the court's computers to double check. The suit was brought by a firm called Akin & Smith. And if you check their web site you will see that they practice in the field of employment and discrimination suits. I see nothing about personal injury. [See Update 1 below]

Hey guys, thanks a lot for helping to smear those of us that actually practice in this arena. Really, we appreciate it. I have three cases coming up for trial for people whose lives have been profoundly altered by negligence, and now I have to hear jurors talk about crap like this?

If this guy sues JetBlue for extreme humiliation for what they did to him, can attorneys who actually know what they are doing sue him for what he has done to us?

Update 1 -- 5/15/08: It seems I missed the mark on whether this firm does personal injury work. I recieved this email about the firm from Louis J. Schepp:

You talk about the plaintiff's attorneys, Akin & Smith as not doing personal injury work. During my days (29 years) at Liberty Mutual, I had dealings, in the last few years, with this firm in cases involving personal injury in both State and Federal Court. They do a sufficient amount of personal injury work, that they should know the rules about ad damnums, but may have wanted to get the press that large ad damnums bring.

On the other hand they may have wanted to start the clock on removal as soon as possible. Putting the ad damnum in the complaint is good strategy, (the statute does not provide any real penalty for putting it in) as it starts the time running on Federal court removal. I had a number of cases that I removed to Federal court, that I would not have been able to do so, if the ad damnum had been in the complaint, since the 30 day time limit is unforgiving.

Update 2: JetBlueLoo Follow-Up: What Really Happened? (5/15/08)

------
Link is via TinyURL redirect, so their website doesn't benefit from any Pagerank as a result of this post.

Labels: Personal Injury

Judge Robert Bork has settled his slip and fall case against the Yale Club, according to the Associated Press. The action had subjected Judge Bork -- active tort "reformer," conservative icon and former Reagan appointee to the Supreme Court that was shot down in the Senate -- to widespread ridicule due to both the nature of the action and the outrageous and legally impermissible demands that he made. I've covered the suit here extensively.

This accident occurred, according to the Complaint, because of a lack of assistance or handrails while he was stepping up onto the podium to speak at the Yale Club for a conservative function. But the heart and soul of the scathing criticism that followed was due to the outrageous demands he made in this apparently routine slip-and-fall case (or trip and fall, the Complaint wasn't really specific). Among the demands were:

• An amount "in excess" of $1,000,000 in compensatory damages;
  
• Punitive damages;
• Legal fees
• Pre-judgment interest.

Leaving aside the amount of the compensatory damages, the demand for punitive damages was just plain dumb. There was nothing in the Complaint to suggest any recklessness or intent on the part of the Yale Club that would warrant punitive damages, or that the injuries called for such a high compensatory demand. According to the Complaint, he suffered a hematoma in the leg that required surgery and months of rehabilitation. Whether that surgery was a drainage in the emergency room or something bigger, we don't know, but if it required an admission to the hospital he likely would have put that in the Complaint.

But worse yet to me, as evidence he and his counsel didn't really know what they were doing with this kind of suit, was that Judge Bork made a demand for legal fees and pre-judgment interest. That's worse because neither can even be legally recovered in New York. And that meant that a big-time judge both didn't know the law, and didn't hire someone who did. (In fact, Judge Bork's BigLaw counsel flunked basic drafting by failing to even properly allege who owned, operated and controlled the premises.) I did an extensive analysis of the original Complaint here: Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees.

The firestorm of ridicule was deep and strong, and even included one of his own; Ted Frank at Overlawyered called the suit "embarrassingly silly." It was so bad that Judge Bork's own son went on to the Overlawywered site to defend his father in the comments.

Being the good sport that I am, I suggested ways for Judge Bork to fix his many problems, among them getting the hell out of federal court due to the additional expense, dumping impermissible claims, cleaning up the drafting deficiencies in the Complaint and bringing the action in state court if it actually had merit (See: What Bork Should Do Now).

That botched Complaint did get amended, but it was clear that despite the wealth of commentary that was available on the subject (not to mention the many thousands of personal injury attorneys in the state), he was still incapable of getting it right. Thus came my open letter to the judge on the subject analyzing his amendments and their failings: Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages.

The dismissal comes to light from a simple docket entry yesterday in the court's computer dated yesterday:

ORDER OF DISMISSAL: that the above-captioned action be, and hereby is, dismissed without costs and without prejudice to restoring the action to this Court's calendar if the application to restore the action is made within 30 days. (Signed by Judge Naomi Reice Buchwald on 4/24/08)

My best guess is that the damage to Judge Bork's reputation from botching the lawsuit exceeds the physical injuries he may have suffered.

And the man who botched all the lawyering? He was first appointed to Rudy Giuliani's judicial search committee, and then earlier this week to John McCain's. As I think is clear by now, hiring someone whose strength is political connections, when you actually need a practicing lawyer, is a mistake.

Labels: Bork Trip And Fall Suit