July 6th, 2023

Surgery is not Spoliation – Again

If was a dumb argument when I first heard about it: That a defendant in a personal injury case had a right to “independent medical exams” of the bodies of injured plaintiffs before they were operated on. And if they didn’t get it, they demanded a sanction for “spoliation” of the evidence — the evidence being the body of the injured person.

Back in late 2021, that argument was dumped on its head by the Appellate Division (First Department), as was the argument that the defense medical exam was somehow independent (The “Independent” Medical Exam is Dead).

And now the Second Department has likewise dumped on the idea, citing to the First Department’s holding in Gilliam v. UNC Holdings:

While the Court ignored the issue of calling such an exam “independent,” it unequivocally held that injured plaintiffs had every right to undergo surgery without first giving defendants access to their bodies for an exam. Citing from the First Department holding in Gilliam, that Court said that the:

“state of one’s body is fundamentally different from inanimate evidence, and medical treatment, including surgery, is entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate. To find that a person has an ‘obligation,’ to preserve his or her body in an injured state so that a defendant may conduct [a medical examination], is antithetical to our belief in personal liberty and control over our own bodies” 

“[p]laintiffs must be free to determine when to undergo medical treatments based on personal factors such as doctor’s advice and their specific pain and discomfort level. It would be absurd for courts to require a plaintiff to forgo surgery (or other medical treatment) for an injury so as not to potentially compromise a lawsuit against the party(s) alleged to have caused the injury”

And with these following words, the Second Department, joining the First, which will hopefully put a final nail in this stupidity:

It is not reasonable to require a plaintiff to delay medical treatment, and potentially prolong his or her suffering, solely to allow a defendant to examine the plaintiff’s body in a presurgical state. Under these circumstances, the plaintiff has not “refuse[d] to obey an order for disclosure or wilfully fail[ed] to disclose information which . . . ought to have been disclosed”

The case is Fandeau v. Corona Industries, decided June 28th.


July 2nd, 2023

July 2nd, A Day to Celebrate Independence

While the Declaration of Independence isn’t perfect, it is nevertheless inspiring. Documents drawn up while tempers are hot and guns are blazing may well reflect that.

And that document was approved by the Continental Congress on July 2nd, to be famously signed two days later.

John Adams thought that July 2nd was the day that would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

I do mention imperfect, because as glorious as “all men are created equal” may be, a line celebrated by civil rights advocates the world over, it also contains within its bill of particulars a reference to “the merciless Indian Savages,” and the condemnation of slavery was struck from the original “Rough draught.”

As memorialized later in the Constitution’s preamble, the object was to “create a more perfect union.” There was, and always will be, room for improvement, as is clear by changes that have been made to the Constitution since then.

The great experiment with our democratic republic marches on, always imperfect, but striving to do better.

In past years, I have used a July 2nd post to celebrate juries, which are discussed in both our founding documents. For the Founders knew that the distribution of power — residing ultimately in the People and not the Crown or Bench — was so important.

I don’t really care if you click on the links for my older posts, but I do hope you will read, as I do each year at this time, our Declaration, republished below. Also, at the very end, a song about who should draft the great document. Just because.

Power to the People (A Declaration of Independence) 

Taking the Oath

July 2nd: A Day to Declare Independence (And Celebrate Juries)

United States of America Declares Its Independence (Jury Trials Are One Reason)
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.


February 27th, 2023

Warren Buffett’s Myth of “Free Money” (And how to stop it)

Warren Buffett, aka The Oracle of Omaha

In his annual letter to shareholders this past weekend, Warren Buffett referred to a portion of Berkshire Hathway’s money as “cost free.” He previously has referred to some of Berkshire’s cash as “free money” so this is nothing new.

That “free money” — which I will explain in a moment is not really free, hence the title of this post — is from the insurance businesses that Berkshire owns.

As a brief ‘splainer if you don’t want to Google “Warren Buffett Free Money Insurance:” The insurance biz makes money two ways. The first is by taking your premiums and then years later paying out claims. If the underwriters are doing their jobs well, an insurance business will take in for example, $100 in premiums and pay out $90 in claims and operating costs.

This is a great business, because unlike making widgets where you have to first spend for the raw materials before making and selling the widget, with insurance premiums you actually get the revenue up front and pay later.

Which brings us to the second part of the insurance business, which Buffett calls the “free” part. What happens to those premiums in the interim? Known as the float, that money gets invested. And if you are a conglomerate like Berkshire, you have plenty of businesses to invest in.

So even if an insurer’s underwriters fail at their jobs, and they pay out $105 in costs and claims for each $100 in premiums, they still may have profited with an additional $30 or more in “free” money that was invested in the intervening years.

As Buffett explained in 2019:

If our premiums exceed the total of our expenses and eventual losses, our insurance operation registers an underwriting profit that adds to the investment income the float produces. When such a profit is earned, we enjoy the use of free money – and, better yet, get paid for holding it.

How much they actually make all depends on how long they can invest that float. Delay, delay, delay is, therefore, sometimes in the best interests of the insurance company.

But as I said, the money isn’t free. It has a cost. And that cost is borne by the people that lost their homes to a fire, flood or hurricane (BH owns property insurers), or were injured in car collisions (BH owns Geico), or injured due to medical malpractice (BH owns MLMIC) .

If a claim is delayed because of bad faith on the part of the insurer, the claimant effectively becomes the banker for Berkshire Hathaway. Buffett gets to keep using money to which the claimants are entitled. For free.

A brief example from one of my own cases so you can see it in practice, but any personal injury attorney can relate similar ones:

Simple car collision. Easy liability. Significant injuries. The injured can’t work. The insurance coverage is only $100K. Geico offers $4K eight months after the collision. Hey, maybe the injured is desperate and Geico won’t need to even pay the claim? Five months later they are big sports and increase the offer to $5K. Eighteen months after initial offer they are $12.5K.

Without dragging the whole story out, it takes Geico almost 3 ½ years from its first offer to tender its $100K policy (and over four years from date of collision). Free money? For Berkshire, yes. They were able to invest the money the whole time. But that is money that should have been in the hands of the injured claimant.

Given that Berkshire as a whole has had average annual returns of 20% since 1965, it’s easy to see how the use of that money can pile up — for Berkshire. But not for the injured person that has to lean on friends and relatives to get by.

The problem, here in New York, is that we don’t have a statute that explicitly deals with bad faith insurance tactics. Other states do. Just not New York.

To pursue a bad faith claim in an auto case for example, one must first take a verdict in excess of the insurance policy (years after the injury has taken place) and then the insured person against whom that excess verdict was taken (previously known as the defendant) can sue their own insurance carrier.

But the people who were actually injured can’t do it. They have to hope that the insured will get on board with this. And if the insured is judgment-proof, they may just walk away and say tough noogies.

New York, it should be clear, needs bad faith legislation to prevent this abuse — which will stop insurance companies from using bad faith tactics to stall the payment of claims.

The pandemic has made things worse, with extensive backlogs in the courthouse. As I noted in 2021, a year into the pandemic, if we had a decent bad faith statute many of these delays would vanish.

Even Alabama handles bath faith claims better than us.

Warren Buffett’s Geico, you will not be surprised to learn, wants immunity from bad faith claims. They want the “free money” to continue.


February 15th, 2023

Pediatric Gender Transition and Medical Malpractice (Updated)

Reading the article from Jamie Reed was shocking: I Thought I Was Saving Trans Kids. Now I’m Blowing the Whistle.

This was someone that worked as a case manager for a gender transition clinic dealing with adolescents for four years — and no one works in such an environment by accident as is clear by her intro — and finally felt the need to rip off the band aid for this particular clinic. It isn’t pretty and I urge you to read it. This is The Washington University Transgender Center at St. Louis Children’s Hospital, so by superficial appearances not a fly-by-night operation.

Now before I go into a couple of the specifics that leaped off the page at me, I stress that this blog is not about the pros/cons of transgender treatments, and most certainly not about culture wars. It isn’t what I do here, as should be clear from the blog’s title for the past 17 years.

It’s about the doctors who were doing the treating.

The clinic, Reed writes, wasn’t always as large as it is now:

Until 2015 or so, a very small number of these boys comprised the population of pediatric gender dysphoria cases. Then, across the Western world, there began to be a dramatic increase in a new population: Teenage girls, many with no previous history of gender distress, suddenly declared they were transgender and demanded immediate treatment with testosterone. 

Given the amount of press that transgender issues have contributed to, it likely isn’t a surprise that more kids are consulting with them. They went from 10 calls a month to 50, and from predominantly boys to predominantly girls.

Many of these kids, as Reed writes, were not suffering from gender dysphoria as an isolated issue, but had other comorbidities:

The girls who came to us had many comorbidities: depression, anxiety, ADHD, eating disorders, obesity. Many were diagnosed with autism, or had autism-like symptoms. A report last year on a British pediatric transgender center found that about one-third of the patients referred there were on the autism spectrum.

Frequently, our patients declared they had disorders that no one believed they had. We had patients who said they had Tourette syndrome (but they didn’t); that they had tic disorders (but they didn’t); that they had multiple personalities (but they didn’t). 

Now I think anyone reading the article to this point — assuming its accuracy — would probably agree that these children should probably have a pretty darn good psychiatric/psychologic evaluation before undergoing treatments that could be irreversible. So what kind of therapy/evaluation was required?

To begin transitioning, the girls needed a letter of support from a therapist—usually one we recommended—who they had to see only once or twice for the green light. To make it more efficient for the therapists, we offered them a template for how to write a letter in support of transition. The next stop was a single visit to the endocrinologist for a testosterone prescription. 

That’s all it took. 

Once or twice. That was it. For a girl that may have serious other comorbidities to take testosterone that may make her sterile?

People make mistakes in life as adults, never mind as children. There is, for example, a 50% divorce rate for people who swore they would be happy forever, and people who join cults. And the history of humanity is replete with people talking themselves into doing awful things to others, convinced they are doing the right thing. You will find this in almost any war or atrocity for example. The human brain can be quite malleable.

So in order to fulfill the doctors’ oath to “Do no harm,” you would think serious evaluations would be done for adults, and even more extensively for children.

And some serious education because, as Reed writes, many young patients (or their parents) are not well-educated on the subject. It’s hard to give an informed consent without being properly informed.

What are the odds that a jury would find that such minimal evaluation — if that is all that took place — would constitute a departure from customary and usual practice? High. Very, very high.

But — and I know this is tough to believe — it actually gets worse. Some of these kids were psychiatric referrals. And no matter the condition, the treatment was the same — gender transition:

Besides teenage girls, another new group was referred to us: young people from the inpatient psychiatric unit, or the emergency department, of St. Louis Children’s Hospital. The mental health of these kids was deeply concerning—there were diagnoses like schizophrenia, PTSD, bipolar disorder, and more. Often they were already on a fistful of pharmaceuticals.

This was tragic, but unsurprising given the profound trauma some had been through. Yet no matter how much suffering or pain a child had endured, or how little treatment and love they had received, our doctors viewed gender transition—even with all the expense and hardship it entailed—as the solution.

Another thing that will come as no surprise is that many of those that began gender transition changed their mind. This is hardly shocking given the tender years of the patients, minimal evaluations and oft-times serious psychological problems.

You would think that the reasons for a change of mind would be really, really important. Gaining knowledge — from both successes and failures — is a critical piece of science so that fewer errors occur in the future. It’s how medicine marches forward.

But obtaining knowledge was discouraged by at least one of the doctors:

Because I was the main intake person, I had the broadest perspective on our existing and prospective patients. In 2019, a new group of people appeared on my radar: desisters and detransitioners. Desisters choose not to go through with a transition. Detransitioners are transgender people who decide to return to their birth gender. 

The one colleague with whom I was able to share my concerns agreed with me that we should be tracking desistance and detransition. We thought the doctors would want to collect and understand this data in order to figure out what they had missed.

We were wrong. One doctor wondered aloud why he would spend time on someone who was no longer his patient. 

While Reed’s piece is filled with a variety of horror stories about the young patients, this part really struck me as the worst, as there is a world of difference between anecdotes and data. Anyone can find an anecdote to “prove” any point, but the bigger picture of what data shows is the way that science (and good government) advances for the better. Here, the collection of data was discouraged.

So the same mistakes would be made over and over.

As noted by Reed in closing about the experimentation on youth:

Experiments are supposed to be carefully designed. Hypotheses are supposed to be tested ethically. The doctors I worked alongside at the Transgender Center said frequently about the treatment of our patients: “We are building the plane while we are flying it.” No one should be a passenger on that kind of aircraft.

A final note on my own bias in writing this. My dad practiced medical malpractice law for 40+ years. He led a malpractice department of 10 attorneys. I heard, as a kid at the dining room table, many an opening statement being practiced by my father. He saw all the screw-ups. I continue to see them now.

For reasons that should be obvious, he was opposed to aggressive medical treatments unless necessary. When I had my wisdom teeth pulled in the 70s, he said “no gas.” Dentists were not anesthesiologists and he had seen the problems. (I got valium and novocaine and can still hear the crunch of the last tooth coming out.)

Reed’s article reads like a throwback to an era of non-scientific and experimental surgical practices, from leaches, to cough syrup with morphine and alcohol, to cigarettes for asthma.

I’m not going to sit here and say a pediatric gender transition should never be done, as I have not studied the issue and read the science.

But I will say that, if the article is accurate, that is is being done in a wholly unscientific way, without proper evaluations, and that many kids will be hurt as a result. And that proceeding in such fashion would make a very strong case for medical malpractice if the kids change their mind and irreversible changes have occurred.

Updated 3/6/23: The St. Louis Post-Dispatch did an article on Reed’s piece, with some people calling into question her comments: Parents Push Back on Allegations Against St. Louis Transgender Center. ‘I’m baffled.’


February 8th, 2023

Courts Should Keep Virtual Conferences

Supreme Court building, Brooklyn, New York

Three years ago a public health emergency was declared on a federal level. I was picking a jury in the Bronx as stories of the virus spread, and I quickly settled and got the hell out of there. I knew there was no way I would make it to verdict, and assumed it would be a long time before I would be able to resume. It was my last live court appearance before the world shut down.

That emergency will end on May 11th.

Since then the courts and lawyers have learned to navigate the world of litigation in a virtual manner. As the emergency sunsets, we should now utilize the new tools that we have all learned to use. It will be better for lawyers, clients and the courts.

In particular, this applies to the many, many court conferences that lawyers are compelled to attend that are better handled virtually. Some of these were little more than going to court, checking in in a 100+ case calendar call, and getting a new date to come back. Seriously.

Back in November 2008 I bemoaned the vast waste of lawyer resources by looking at just one Brooklyn courtroom, and conservatively estimated that $10M/year was being wasted there.

The majority of the time in that particular room was dedicated to preliminary conferences, compliance conferences, and discovery motions. Easily 95% of the issues were worked out by lawyers in the hallways, and then proposed orders submitted for signature. Hundreds of attorneys would file through this courtroom each day, and the 10 minutes of work you needed to do would take a few hours.

We need not go back to those days. There is no compelling reason that lawyers cannot be forced to “meet and confer” by phone to work things out. While it’s the standard in federal court, it was rarely done in state court.

Live court appearances have their place, of course, especially for esoteric motions (rare in the personal injury field where most are routine claims that the other side is simply failing to comply with a prior order). I would happily appear for summary judgment motions, pre-trial conferences and settlement discussions. But I do not want to come because the case is on for trial the first time, just to get an adjourned date three months away.

Unless you bill by the hour, no one wants to walk into a courtroom and see 100 lawyers waiting. Or 50. Or even a dozen.

As we pull out out of the pandemic our courts ought to appreciate that forcing lawyers to work stuff out that can be worked out in the hallway will also save them time. We have new tools and new ways of doing things. We can do this. Those tools and skills ought not be squandered.

And if lawyers resist the efforts to “meet and confer,” or create more problems by ignoring prior discovery orders, then the courts should start assessing costs. In New York, this isn’t much on a monetary basis as it is limited by CPLR 8202 to just $100. But no one wants those assessed against them, despite being minimal, and it may help to decrease the court’s workload when they see unreasonableness.

New York’s trial courts, of course, are legendary in ignoring any form of costs or sanctions. Our appellate courts, by contrast, will often impose costs. (For the out-of-town readers, this has nothing to do with legal fees, but things like court fees and printing fees.)

So as we emerge into the bright light of day post-pandemic, the courts should seize the opportunity to make the most of the skill and tools we have acquired these past three years, and improve upon what existed before.

For the love of God, please, no more cattle calls.