December 31st, 2010

The Year in Review (2010)

This post constitutes my “best of” for 2010, and by that I mean, those posts that I enjoyed writing the most, regardless of whether they were popular. It travels from my fight with FindLaw, through national attention due to a letter I published from Justice Scalia on secession, past an April Fool’s Day punking, and on through various court decisions, tort “reform” issues, ethical discussions and September 11. As I put this together, I realize it’s been one hell of a year with over 200,000 unique visits and almost 300,000 page views.

Some time later, I’ll drop a link into the sidebar so that, a couple of years from now, I’ll be able to find the stuff that I wrote and liked, as I did for 2009. Newcomers can also see a “best of” for 2006-2008 to see the types of things I covered earlier.

Without further ado:

Are FindLaw’s “Blogs” Tainting Its Clients, Commentators and the Profession of Law? (1/4/10)

J’accuse.

In looking at FindLaw’s new gaggle of so-called “blogs” that are little more than crappy search engine fodder and client solicitations, I struggled to find the right word to describe them. The ramifications of these crap-blogs are important, because FindLaw is now tainting their clients, diminishing the stature of their vaunted professor-commentators, and lowering the level of discourse in the legal profession as a whole. And because this is likely to be a source of discussion going forward, it also means these so-called “blogs” need an appropriate name…

FindLaw Uses Dead Child To Advertise Attorney Services (1/22/10):

Demonstrating that, perhaps, there is no sewer deep enough for it to descend into, FindLaw has used the death of a child to promote the services of the lawyers that pay them fees….

Scalia: “There Is No Right to Secede” (2/16/10)

The right of a state to secede from the nation is way outside my personal injury wheelhouse. But it has become a source of conversation on professorial and political blogs, and the concept has generated interest from the Tea Party movement.

As it happens, my brother has a letter from Justice Antonin Scalia that is directly on point as to the legitimacy of secession. How he got that letter, and its contents, are the subject of today’s post…

How the Supreme Court Could Hear the Secession Issue (A Response to Justice Scalia) (2/23/10):

In responding to my brother Dan’s letter regarding the legal plausibility of Maine seceding from the union to join Canada, Justice Antonin Scalia raised two points. First, he said that the Civil War settled the issue of the constitutional basis for secession. Second, he indicated that he didn’t see how such an issue could even reach this nation’s high court.

I’m here today to take issue with both points before turning this blog (hopefully) back toward the personal injury field that is my bailiwick…

John Stossel, You Gotta Love Him (2/3/10):

Now I know what you’re thinking with this headline: “John Stossel? You love the guy? He is always whining about trial lawyers, how can you love him?”

No, really, I do. Because for a writer, hypocrites like Stossel are like manna from heaven. This story is inspired by a little fluffinterview with New York Magazine earlier today where this question and answer appeared:

Q: Who is your mortal enemy?
A: Smug, ignorant, and arrogant Upper West Side Lefties and personal-injury lawyers…

Can Jury Consider All Damages, if Only Some Meet the No-Fault Threshold? (3/24/10):

Today’s case solves a quirk in New York’s No-Fault law regarding the “serious injury” threshold that must be met in order to bring a lawsuit. That threshold was established in the ’70s in order to cut back on the number of personal injury cases that resulted from car accidents.

So here’s the question: If the threshold is met under one category of injury, can other categories of injuries be considered by the jury?…

2nd Circuit Rejects Most of New York’s Attorney Advertising Rules (3/12/10):

The case concerning the constitutionality of New York’s attorney advertising rules was argued over a year ago. And Sonia Sotomayor was on the the panel. Now she has gone up and the decision has come down by the two remaining judges of the panel regarding the rules that went into effect on February 1, 2007.

And the 2nd Circuit has upheld the lower court decision in holding that most of the content-based rules violate the First Amendment. A separate section, regarding a 30-day anti-solicitation rule, was upheld both in the court below as well as in the 2nd Circuit….

New York Appellate Court Gives Lesson in Lousy Legalese (In an important case) – Updated (3/8/10):

It’s a contest! For the worst judicial writing in America. And I have here the first entrant.

Now I confess that I publish this with great trepidation, since I appear before this appellate court from time to time. And what I have to say isn’t kind.

But at the risk of pissing off some judges before whom I may appear, I have to ask, would you want our briefs to contain sentences with 300+ words? And would you want me to make you strain to figure out the points I’m making?…

About That White House Blogger Post from Yesterday….(NYT Gets Punked) (4/2/10):

Welcome to April 2nd. And that means a deconstruction of what happened on April Fool’s Day when I announced that I was going to become the official White House law blogger.

The basic idea was this: A bunch of law bloggers would try to punk the political bloggers, whose reputation is to grab any old rumor and run with it. Fact checking hasn’t always been the strong suit of this community.

But the political bloggers, to their collective credit, didn’t bite, despite wide dissemination of the story. Not on the right or the left. Instead it was the vaunted New York Times that ran with the story without bothering to check its facts. The Times, of course, had no sense of humor about it when the angry phone call came to me a couple of hours later…

Is an April Fool’s Joke an Ethical Violation? (4/5/10):

Just when I thought I’d put the April Fool’s fun behind me — and started to plot next year’s prank — comes this little nugget:

“April Fool’s Day Isn’t For Everybody: Once again, Ethics Alarms will declare that it is irresponsible for anyone not pictured on his or her blog wearing a clown nose to put out false facts “just for fun” … yes, even on April 1.”Who the heck is this blogger and why is he such a killjoy? And more importantly, does his argument have even a grain of merit?…

The SCOTUS Nominee and The Tissue Box Test (Revisited) (4/19/2010):

A year ago I wrote my thoughts on what I’d like to see in a Supreme Court justice to replace David Souter in The SCOTUS Nominee and The Tissue Box Test. This probably doesn’t come as a great surprise, but one year later, with Justice John Paul Stevens having now announced his retirement, those thoughts haven’t changed.

I was looking for someone who had fought uphill battles for people in need. Supreme Court short lists always seem to be filled with those from academia, BigLaw or former prosecutors. And traditionally missing were those who had stood in the well of the courtroom with people whose bodies or spirits were broken or severely compromised…

Attorney Fee Fight Gets Ugly in World Trade Center Litigation (Plaintiffs’ Legal Fees Being Slashed; Howe & Russell Objects) — Updated x3 (5/28/10)

A furious fight over legal fees that erupted from the World Trade Center Disaster Site Litigation returned to public view yesterday. That litigation had resulted in a complex settlement with a range of $575M to $657M for responders sickened in the aftermath of the September 11 attack. Judge Alvin Hellerstein rejected that agreement in March, however, for some 10,000 responders, claiming that the 33% legal fees that plaintiffs’ counsel was to receive was excessive.

In an angry letter yesterday to Judge Hellerstein, Paul Napoli of Worby, Groner, Edelman & Napoli, disclosed that the firm will voluntarily reduce its contracted legal fee from 33% to 25%, despite doing almost all of the heavy lifting on the plaintiffs side of the protracted and expensive litigation. In doing so, they asked why others were not also being asked to cut their fees…

Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions) (5/3/10):

As the Tea Party movement gains more attention, some folks want to know exactly what they believe in. Today’s question: Do they believe in a smaller, less intrusive, government or will they follow the Republican Party down the path of Big Government Tort “Reform”?

Since the Tea Party is a nascent and disorganized collection, I’m tossing out eight questions for those conservatives in the movement to ponder as they decide which side of the tort “reform” debate they are on…

Elena Kagan In Private Practice (And Her First Amendment Experience) (6/3/10):

I know, you’ve been sitting there on the edge of your seat waiting for this, ever since I discussed the serious lack of private practice work by Elena Kagan. Which wouldn’t be so bad except thatonly Justice Kennedy seems to have had any private practice experience. Basically, 98% of the legal time for Supreme Court justices has been in academia or public service.

So Kagan’s Senate Judiciary questionairre was released, and with drool running from my mouth I searched for all that I could on her private practice — much as I did with Sonia Sotomayor when I found her little private firm, Sotomayor & Associates that had no actual associates and subsequently became a minor issue.

And it turns out, while at the BigLaw firm of Williams & Connolly between 1989 and 1991, Kagan actually did some First Amendment work that was interesting…

Empire State Bldg Jumper Loses Suit Over “Emotional Distress” (6/17/20):

Do you remember Jeb Corliss? He’s the clown that tried toBASE jump off the Empire State Building in 2006, got busted by security, and then sued the building claiming emotional distress. I know, I know, that sounds even dumber than the claim of being fired for being too sexy, but it’s true, he actually did make such claims as I wrote about a year ago: Empire State Building v. Jeb Corliss…

Massive September 11 Case Settles (Again) — Additional $125M Added to Settlement (6/10/10)

The massive lawsuit regarding the September 11 World Trade Center attack and the 10,000 claimants has settled for the second time. The first settlement, in March of this year, was rejected by District Court Judge Alvin Hellerstein who demanded that the plaintiffs’ attorneys lower their legal fees from 33%. The new settlement has a minimum value of $625M with 95% participation by the claimants, and as much as $712.5M if other conditions are met. The original settlement was for $575M to $657M.

As I first reported on May 28th, the legal fees are being cut to 25%. In addition, the insurance company is ponying up an additional $50-55M, that matches the drop in legal fees. In addition, Workers’ Compensation liens will be waived, which also increases the amount of money that plaintiffs will receive…

Confidential Means Confidential, Even In Lindsay Lohan Case (Stuart Goldberg, Esq. — Fail) – Updated (7/15/10):

I really don’t get it sometimes. A client goes to a lawyer with a legal problem. The lawyer declines the case. And then the lawyer yaps to the press?!? Are you kidding me?…

Is Plaintiff’s Comparative Negligence a Bar to Summary Judgment Against Defendant? ) 8/15/10:

Query: Plaintiff brings suit alleging that Defendant was negligent in causing an accident. Court agrees Defendant was negligent, but says that Plaintiff may also be comparatively negligent to some degree. Should the court grant partial summary judgment in Plaintiff’s favor and leave the issue of Plaintiff’s own negligence for the jury?

I pose this question because last week a split opened among New York’s appellate divisions on the subject, thereby setting the issue up for a battle in the Court of Appeals…

Michael Jackson’s Mom Brings Wrongful Death Suit (Analysis) (9/16/10):

Fresh off the news ticker this morning is thatMichael Jackson’s mother Katherine Jackson has brought a wrongful death actionagainst concert promoter AEG. on behalf of Jackson’s three children. According to the article, the promoter was negligent in allowing Dr. Conrad Murray to care exclusively for Jackson.

The merits of that argument will rely, no doubt, on some contractual provisions between the promoter and Jackson dealing with his health. Those who give on the spot opinions as to whether the suit is good or not, without knowing what those contracts say, will likely be speaking in a vacuum….

New York Judge Holds 4 Year Old Can Be Sued in Bike Accident (10/29/10)

It’s all over the news right now: The story of a 4 year old child racing her bike with training wheels down a Manhattan sidewalk, who hits 87 year old Claire Menagh, who falls, breaks her hip, and dies three weeks later. The story was first reported in the New York Law Journal yesterday (sub required) and in today’s New York Times.

And the essence of the story is this: The mother who was watching her was sued, as was the child. And Justice Paul Wooten has ruled, while the suit is still in its beginning stage, that the case may proceed…

Is The Workers’ Compensation Lien Really Bulletproof? (10/14/10):

I hate dealing with liens when handling a case. In fact, everyone seems to hate them, except of course, the company that wants to reach its hand into a settlement and grab a little something for itself.

And the big reason lawyers hate dealing with liens is an inherent conflict of interest. An injured person hired you, yet you are forced to do the work of someone else trying to capitalize on your work. Almost all of the health care liens, however, were knocked out late last year when New York passed an anti-subrogation law, prohibiting health insurers from trying to scrounge part of the lawsuit proceeds.

In New York’s Workers’ Compensation world , however, — and stay with me here even though you think this might be a boring post — the lien under Workers Compensation Law section 29 is thought to be bulletproof. Which is to say, they get paid back some of the money they spent to the extent it exceeds certain limits.

But I’m not so sure that lien is bulletproof.

Tort “Reform” Money In A Nutshell (10/22/10):

This is a short tale of two news stories this week. And money. The first reports on “trial lawyer” lobbying, and is published in The National Law Journal. The paper reports that the American Association for Justice raised $2.5M thus far this year for its political action committee.

And the second comes from the New York Times, in which it reports that the US Chamber of Commerce can raise more than that from a single corporation:…

1,000 Posts (and 10 Points to Make on the Subject) (11/5/10):

This is the 1,000th post on this blog. Other than a dozen guest blogs, all the writing has been mine.

And there have been more than a few surprises, as I sifted through the metrics and links I’ve seen. So for one day only, I’ll navel-gaze at some of those things that I never would have expected when I went live almost four years ago (on November 18, 2006)…

Demand for Facebook Records Rejected by NY Appellate Court (11/17/10):

The defendant in this car accident case wanted an authorization for the plaintiff’s Facebook account. And a New York appellate court has shot down that demand, for now, in a ruling just released and published in today’s New York Law Journal…

Abraham Lincoln, Twitter, and This Blog (11/18/10):

Tomorrow is November 19th. Seven score and seven years ago, on that date, Abraham Lincoln dedicated the Gettysburg battle field with one of the great speeches in American history (reprinted below). And yet, it’s only 272 words. That’s something to think about when you hit page 20 of your next brief.

I also put Twitter in the post title. How can something so trite and easily abused be compared to the Gettysburg Address?…

How Much is a Breast Worth? (12/20/10):

The fact pattern is not complex: A 32-year-old single woman had a mastectomy. But she didn’t have cancer. The modified radical mastectomy was unnecessary….

December 29th, 2010

A Tony Hawk Christmas (Shred Game, Updated)

If Christmas Day isn’t the slowest day of the year for a law blog, then it’s darn close. But not this year. Rather than see a spike downward, I saw a spike upward and comments started to pour in.

Because on Christmas, it seems, a lot of kids open presents. And many of those kids were unfortunate enough to receive a Wii game created by skateboarder Tony Hawk, which I reviewed a month ago: See, Tony Hawk’s Shred for Wii by Activision (Review: How Many Ways Can you Say Awful?)

If you don’t know what I’m talking about, read that review and return.

Welcome back. It seems I wasn’t alone in finding problems calibrating the skateboard controller to the Wii. In fact, since that posting a month ago, a couple thousand people have stumbled in here to view it, with over a thousand using some combination of the word Hawk and calibrate, using search terms like these:

Tony hawk shred calibration
tony hawk shred calibration wii
tony hawk shred board won’t calibrate
how to calibrate tony hawk shred
can’t calibrate tony hawk shred
what do i do if the tony hawk shred calibration doesnt work?
cannot get tony hawk shred board to do initial calibration with wii

There are hundreds of these search combinations as people wasted hours on Christmas Day trying to get this computer game to work, and then had to scour the Internet for information as they tried to find some way to put a smile on a kid’s face because the gift sucked the big wazoo. A nice way to spend Christmas with the family, right? This was my favorite comment on my first posting on the subject, from “Laura”:

electrical engineer PhD husband who can fix ANYTHING could not resolve the calibration problem

But the agony of children across the land on Christmas does have its humor, if you like black humor that is. There were lots of comments and ideas on how to get the thing working, such as:

Try “gently used” batteries
Turn the lights off in the room
Hold the controller right next to the game system
Rotate the console so the “dongle” is in a different position relative to the board
Elevate the board to a height not recommended by the game’s maker
Move all furniture away from the game
Remove all metal in the area

Several seemed ready to hang Hawk from the nearest light post, though I may be reading between the lines. Messing with a kid’s Christmas, oddly enough, tends to bring out unhappy parents. A couple suggested class action lawsuits against Hawk for putting this lemon on the market.

Can you imagine? Some gently used athlete puts out a game where you have to possibly find gently used batteries, turn out the lights, put the game on a pedestal and adjust its dongle. Trust me, the set up instructions that came with the game don’t read that way. Maybe said athlete has spent a little too much time on his own pedestal. Perhaps Hawk has a defective dongle. Perhaps he thinks he can do no wrong. Yet wrong is exactly what he did.

I went to the Tony Hawk Shred website (coded “nofollow“) to see if there was an apology there for the thousands of screwed over customers who had wasted untold hours with sad-faced children looking on. I like to amuse myself that way sometimes, pretending that those who owe apologies are sane enough to actually issue one. You may not be surprised to learn that there were none to be seen.

The site even has a blog that I checked. It’s last entry is dated November 29, 2010. It says to “Stay tuned for weekly updates.” They seem to have missed a few weeks during the biggest sales time of the year.

Hawk, perhaps, knew that he laid an egg, though he didn’t yank the game from the market. (Or he’s completely clueless, take your pick.) Maybe he’s now looking for just the right crisis manager to put out an artfully worded statement. Now that the money is in the door.

December 27th, 2010

Hacked! (And Did I Meet My Hacker at Killington?)

It happened last week. I found out right after I posted a story on a $50M personal injury verdict, and just hours before I headed off for four days of skiing at Killington. This blog was hacked.

And oddly enough, while skiing, I think I met the hacker. Or at least someone just like him.

The emails and alerts started last Tuesday, as people began getting redirected from here to a porn site, with a message asking them to click on something having to do with a virus alert. Frantic messages from me to my tech guy then followed, who updated everything and cleaned up the area. Then, apparently, I got hit again. Once again, stuff restored.

Calling me pissed off would be an understatement as I imagined a parade of horribles that I wished would descend on the hacker’s head. It isn’t often that I actually run into people with such an utter contempt for their fellow humans. After all, as an attorney I deal in the world of negligence, not the criminal arena that so often deals with deliberate attacks.

But then, on Saturday morning, after just a couple of ski runs, my wife hurt her knee high up on the mountain. She needed the dreaded toboggan ride down to the base lodge and a trip to Rutland Regional Medical Center.

In the course of that experience, we saw a lot of good old-fashioned human empathy. People stopped on the slope to see if we needed assistance (we did, thank you for stopping). And then they went off to get help. Everyone on the mountain, no doubt, could imagine this happening to them and knew exactly how they would want others to react. They responded with The Golden Rule of treating others the way they would want to be treated. They offered to stay with us if need be, and do whatever they could (nothing to do but wait for Ski Patrol, but thank you for asking).

And then there he was, my hacker. Or as I said at the top, someone just like him.

As Mrs. NYPILB was pulled on the sled at the first aid station at Killington base near 11 a.m. — and this had the potential to be far more serious than her tushy bone injury last summer — we went past a ticket window. And a voice called out, with what sounded like a German accent, “You done skiing today?” Huh? Was he talking to me? I turned to see him looking at me, and he repeated the question.

What a bizarre question I thought, as I hauled our skis to a rack and ran to catch up with the uber-nice ski patrollers who were getting ready to unload her. Yeah, I said, I’m done. Dumb question, I thought. And then…

“Want to sell your ticket?” If I wasn’t a bit rattled at worrying about my wife, and so perfectly stunned by the question, I might actually have walked up to him and knocked him down. Which, if you know me, would be quite out of character having never done such a thing. But I simply couldn’t recall having ever seen a person so completely lacking in empathy. Here was someone getting ready to take his wife to the hospital for lord knows what kind of injury — and you didn’t need an imagination of any kind to come to that conclusion given my wife laying there on the sled — and the thing that ran into this young punk’s mind was saving a few dollars on his lift ticket.

And it occurred to me, as I waited a bit at the hospital for the x-ray results (negative, visit to local ortho coming soon with ACL concerns) that this creep is just the sort of person that hacks. Absolutely no concern for their fellow man. No ability to identify with the plight of another. Zero emotional capacity to put themselves into the shoes of others.

At trial, empathy is something that lawyers look for and try to use. Now we can’t say to a jury, imagine if this was you — that is a violation of a different Golden Rule, this one for juries, and might result in a mistrial. But many a lawyer does ask during jury selection if people would avail themselves of the jury system if they felt they had been wronged. That gets both to the feelings they have about the civil justice system, and incidentally asks jurors to consider what they would do if they were the injured party.

I hope that there weren’t too many of my readers that were affected by the hack. I confess to some complacency on the subject of hacks and viruses since I use a Mac, as Macs aren’t exactly ground zero for hacking. Mac users don’t generally even use any kind of anti-virus software, other than what Steve Jobs might build into the system to quietly work. But this didn’t take place on my computer. It happened on some server somewhere in the back of beyond of the information superhighway.

Perhaps one day the hacker will find himself (and you just know it’s a him, and not a her, don’t you?) in need of assistance. Or the victim of some accident or attack. And will think back on his life and the stuff he has done. But until then, I expect he will remain a slime ball. And perhaps a slime ball forever.

The hacker might be tech smart, but is utterly barbaric in the world of human relations. We can only hope this will prevent the creation of similarly inclined offspring.

December 22nd, 2010

New York Jury Returns $50.5M Verdict For Brain Injured, Paralyzed Scaffold Worker

David Golomb, plaintiff's lead counsel

Late Tuesday afternoon, a New York jury returned a blockbuster $50.5 million verdict for a brain injured, paralyzed scaffold worker. Daniel Savillo, who was 29-years-old on the date of the accident, had mis-stepped and fallen while working on a 15-foot high scaffold storage platform on February 12, 2007.

Since the owner and chief foreman had admitted that there was no fall protection provided to workers, Justice Emily Jane Goodman granted summary judgment in favor of Mr. Savillo in September of this year. That determination came in accordance with New York’s Labor Law. As Justice Goodman wrote:

Because Labor Law § 240 (1) “imposes absolute liability on owners who fail to provide adequate safety devices to workers laboring at elevated work sites, when that failure is a proximate cause of the workers’ injuries” , and because Greenpoint Landing provided no safety devices and that failure was a proximate cause of plaintiff’s injuries, that part of plaintiff’s motion which seeks summary judgment on the issue of Greenpoint Landing’s liability under Labor Law § 240 (1) is granted

With respect to the employer, All-Safe, Justice Goodman added in a footnote:

Given All-Safe’s complete disregard for safety (discussed infra), the name of this company strikes this Court as very ironic.

The nine-day trial before Justice Goodman in Manhattan (who also blogs for the Huffington Post) was, therefore, only to assess the amount of damages.

Prior to the trial, the plaintiff had rejected a settlement offer of $8.125M, holding firm in a demand for $14.5M. Given the breathtaking jury verdict, as well as the huge settlement offer that had been rejected, it’s worth taking a closer look at the verdict and damages.

As a result of the fall, Mr. Savillo suffered a complete cord injury at level T11 and had no sensation below an inch below his umbilicus. He had spinal surgery, screws, rods and cross-pieces placed in his back extending from from T7 to L2.

One of the many custom made exhibits used at trial

He also suffered significant brain contusions and hemorrhages, though no surgery was done on the brain. Evidence was presented of traumatic brain injury, with significant cognitive deficits, particularly in mental flexibility, information retrieval, processing speed, visual memory, short-term memory. He is unable to do more than a single task at one time. The progression of the brain damage can be seen from this exhibit that was used at trial (click to enlarge).

Other injuries consisted of a n eurogenic bladder and bowel. This forces him to self-catheterize six to eight times each day for urination, and to manually evacuate stool after inserting suppositories on a daily basis.

The $50.5M jury award was broken down as follows:

Past medicals expenses, approximately $600k;
Past lost earnings, $200K;
Past lost fringe benefits, approximately $50k
A life care plan demonstrated over $9.224M for future medical care;
Lost earnings and fringe benefits were approximately $5.6M;
Past pain and suffering was $10M; and
Future pain and suffering was $25M

The jury was unanimous in its determination. And of particular note, two of the jurors were lawyers. One was a fourth year tax associate at a major firm and the other works for the City of New York defending civil rights cases.

The plaintiffs called as expert witnesses: a neuroradiologist regarding the films, a rehabilitation expert, the neurosurgeon who repaired the spine an economist, and a vocational rehabilitation expert. The defendants conducted five separate defense medical exams, but didn’t bother to call three of the people that did exams (neurosurgeon, orthopedist and wound care surgeon). The plaintiff also called the defendants’ own rehabilitation expert on his own case, since his report was so devastating to the defendants.

The defendants called a neuropsychologist and an economist.

All of which is to say, that there were a lot of witnesses in a short amount of time.

A final word on the numbers. The jury total is about $50.5M. To that gets added interest, at a 9% annual rate, from the date that summary judgment was granted in September. From that gets subtracted certain things too. For example, the future economic costs must be reduced to present value at a later proceeding pursuant to CPLR 50-B. In addition, there may be a set-off for Social Security Disability payments that have been made, and with reasonable certainty will continue to be made going forward under CPLR 4545.

One can also assume that the pain and suffering verdicts will be challenged as excessive. How New York courts go about reducing (or increasing) verdicts from time to time was the subject of one of the first posts on this blog: How New York Caps Personal Injury Damages.

In other words, while the headlines will scream $50M, as this one does, the reality will one day be something else. And it will take quite a bit of lawyering to figure out what that will be.

The stars seemed aligned for a mega-verdict here, given the catastrophic injuries, that liability was already determined, that 9% interest would be running on any verdict (thus giving a comfort level to the plaintiff regarding the potential for defendants dragging out the litigation), that numerous experts were lined up and ready to go, that defendants had a fear of their own experts, and that an experienced trial lawyer was ready to take the verdict.

The case was Daniel Savillo v. Greenpoint Landing Associates, LLC (landowner) v. All Safe Heights Contracting Corp. (scaffolding co., employer). The plaintiff here sued the landowner, who turned around and sued the employer. In New York, those who are injured on the job generally can’t sue their employers under the Workers Compensation Law.

Plaintiff’s counsel was David Golomb, who is a past president of the New York State Trial Lawyers Association and a frequent lecturer on medical malpractice (and who I’ve known for many years). He is also a founder of Trial Lawyers Care, the massive pro bono effort put forward by the nation’s trial lawyers in response to the September 11 attack and the establishment of the September 11 Victim Compensation Fund. He was assisted at trial by Roy Jaghab, of Jaghab, Jaghab & Jaghab.

Greenpoint’s attorney was Edward Lomena.

All Safe’s attorneys were Scott Miller and Michael Manarel.

December 20th, 2010

How Much is a Breast Worth?

The fact pattern is not complex: A 32-year-old single woman had a mastectomy. But she didn’t have cancer. The modified radical mastectomy was unnecessary. A Bronx jury found malpractice and awarded her $3 million for past pain and suffering and $3.5 million for future pain and suffering extending over 41.9 years. The trial judge then directed a new trial as to damages unless the plaintiff stipulated to a reduced total award of $1 million.

The legal arguments are not about the issues of liability here in Williams v. New York City Health & Hospitals Corporation, but as to what is considered an excessive verdict.

Up the case went to the Appellate Division, First Department (which, for out-of-towners, sits in Manhattan). And a divided panel agreed with the trial judge and set the limit for such a case at $1M. There was a furious dissent by Judge James Catterson, who agreed that while the verdict was excessive, also believed that the $1 million award substantially undervalued the emotional trauma of such an incident to a 32-year-old single woman.

Why the dispute? Because in the words of the majority:

The dissent’s suggestion that plaintiff must have suffered extreme emotional distress is not supported by the record.

Not supported by the record? There was no question that the woman lost her breast unnecessarily. The jury saw photographs. Some injuries are abundantly obvious. And yet, the majority simply accepted the defendants’ argument that there is no proof of future pain and suffering because the plaintiff did not testify extensively about her emotional distress. In other words, if you don’t state the obvious, the court will toss your verdict.

According to Judge Catterson, as the majority tried to compare this case with another verdict:

Appellate Division Judge James Catterson

The defendants appear to believe that because the plaintiff in this case was not able to articulate a similar experience of shame, embarrassment and humiliation, she therefore does not suffer such emotional distress. The defendants appear not to have heard the oft-quoted phrase “a picture is worth a thousand words.”

Moreover, the majority’s view that the plaintiff’s extreme emotional distress is not supported by the record clearly indicates that the majority has not viewed the photos in the record. Given the post-operative photos of the plaintiff, I believe any testimony by the plaintiff as to distress, for example, over not being able to wear a bathing suit; or of her fears of never finding someone to love or desire her would be simply superfluous, if not overkill.

New York, contrary to popular belief, has a means of reducing excess verdicts (and similarly raising up excessively low ones). But it isn’t the one-size-figs-all approach that tort “reformers” want in order to protect the wrongdoers. (See: How New York Caps Personal Injury Damages) And in this case, we see the application of that procedure.

Since this appellate decision had two dissenting voices, the plaintiffs may appeal as of right to New York’s high court, which is what I would expect since they have much to gain and nothing to lose.

More on this case from John Hochfelder (from whom I swiped the breast image above). He does an analysis of the “similar” cases that the majority and dissent relied upon, and also adds inside info that he got from calling the lawyers involved.