Monthly Archives: September 2007

 

September 28th, 2007

Personal Injury Law Round-Up #30

The New York Personal Injury Law Blog presents the week that was:

A mixed bag of stuff this week, all of it interesting…

A big front page article in the New York Times on Sunday is one I wanted to blog, but didn’t get the time for: At Many Homes, More Profit and Less Nursing. It seems that Wall Street has been scooping up nursing homes, cutting medical care to the bone, and reaping the profits. And the patients? A predictable result of injury, death and lawsuits. But hey, they got those profits! Some commentary here: Lara Pettiss Harrill, Angry Bear, NewsInferno, The Consumerist, Financial Armegeddon;

The New York Post has a column on New York’s medical malpractice insurance problems (via Kevin, M.D.), but it’s too bad the Post didn’t first find out what the real cause of the problem is, as I posted in Why New York Medical Malpractice Insurance Jumped 14%;

A million baby cribs have been recalled after three deaths, and Perlmutter and Schuelke want to know whether the recall came about due to the deaths, or due to the impending publicity:

The London Sunday Times peeks behind the scenes at a drug counterfeiting operation in, where else, China, as per Adam Fein at Drug Channels;

Do doctors now need to take a personality test to obtain medical malpractice insurance (The Medical Quack)?

Ben Glass relates from northern Virginia, that a politician has figured out a way to blame trial lawyers for the massacre at Virginia Tech. I kid you not, check out the post;

Ron Miller reports on the Maryland medical malpractice “crisis” that wasn’t, and asks if it now time to roll back the “reforms” now that the cooked books have been opened up;

As those that follow drug cases know, the FDA tried in 2006, without congressional approval, to simply claim that their federal regulations regarding drug approval trump state law. This would result, if upheld, in stopping state action in “failure to warn” lawsuits. This federal power grab, by an administration that tries to call itself “conservative,” has been hotly disputed, especially since Congress declined to go along. Beck/Herrmann has a scorecard of drug preemption rulings to date on the subject. They also have a medical device preemption scorecard. And for those whose eyes glaze over at the concept of federal preemption for drugs or devices, they also provide a primer on the subject that will get you up to speed.

But…are the primer and drug scorecard outdated already? Ron Miller reports on legislation signed this week that makes clear that regardless of FDA approval, the duty to warn remains with the pharmaceutical companies to adequately provide a meaningful warning about the risks associated with the use of their product. A copy of the bill and the comments of legislators on the subject can be found at People Over Profits;

Are you having trouble with a hip or knee implant? The New Jersey Law Journal reports today on a $311M settlement of kickback charges against four manufacturers as they wooed doctors to use their products;

Consumer Law and Policy blog has a piece on anti-plaintiff bias in the Texas Supreme Court:

TortsProf reminds us of a classic res ipsa case…a toe found in chewing tobacco. I’ll be using that cite in the coming weeks in an appeal I am now working on;

Kevin M.D. points to a Newsweek article about spotting medical mistakes and saving lives;

Are laws suits all “about the money” as some like to claim? Apparently not, as this hospital apologized to the parents of a patient that died via a video, and posted it on the web. This facilitated the settlement (via Overlawyered);

A follow-up to the Charlie Weiss medical malpractice story: Kevin M.D. had linked to an article in the Massachusetts Medical Report on what’s its like from a doctor’s perspective to have a malpractice trial. But in the same issue I also found a front page story on the post-game analysis of the defense verdict in the Weis med-mal trial, so the link is good for two stories;

We’re used to seeing punitive damage awards decreased, but here a judge has increased them with respect to a telephone lineman being left a paraplegic after an accident (TortsProf Bill Childs);

If you took the case on contingency, you only get paid at the end. But paid how? From WSJ commentary, a problem of attorneys double-dipping on the legal fee, getting paid once from the client and a second time from the adversary (via How Appealing.

And finally for the weekend:

Enjoy the weekend, and pray for the Mets.

(Eric Turkewitz is a personal injury attorney in New York.)

 

September 27th, 2007

The First Annual Golden Gobbledygook Awards

This deserves a bit more publicity: The First Annual Golden Gobbledygook Award, presented by The Party of the First Part.

Everything you hate about the way (some) lawyers write, and more.

Cryptic and pretentious legal writing, I think I can safely say, is devoid of plaintiff/defendant or conservative/liberal biases. It just sucks. Why anyone would want their reader to work hard to understand something is beyond me.

If I were to give one piece of advice to a legal writer it would be this: Assume the document will be read by someone sitting on a train, plane or perhaps a beach. Which Justice John Paul Stevens revealed he has done. Perhaps it will be read inside some ornate chamber by an individual with all the time in the world to parse the run-on sentences and ancient Latin phrases. But don’t count on it.

 

September 27th, 2007

Brooklyn Judgeship Suit Goes to Washington Next Week

It started in Brooklyn with an angry Civil Court Judge Margarita Lopez Torres trying to get on the ballot for a Supreme Court slot. And it goes next week to the U.S. Supreme Court.

Judge Lopez Torres merely wanted to move up from a lower court (Civil Court) to Supreme Court (New York’s trial court of general jurisdiction). The problem? She couldn’t get on the ballot because the nominations for these elected offices were ordained by political bosses at party conventions, and not the electorate via a primary.

And why couldn’t she get the nomination from the party bosses to get on the ballot? Because, she contends, the bosses that do the picking wanted to use her staff a dumping ground for unqualified patronage.

So she, and nine others, sued in United States District Court, claiming that the voters were deprived of their civil rights by being disenfranchised by New York’s archaic judicial selection practice.

After a 14-day hearing, Judge John Gleeson in the Eastern District of New York (covering Brooklyn, among other local parts) found that Judge Lopez Torres:

“demonstrated . . . that indisputable qualifications for the job and immense popularity among the candidate’s fellow party members are neither necessary nor sufficient to get the party’s nomination. Something different is required: the imprimatur of the party leadership.”

She has now won twice, in U.S. District Court and the Second Circuit Court of Appeals, and oral argument in the U.S. Supreme Court will be heard next Wednesday.

The case centers on this provision of New York’s constitution:

the justice of the supreme court shall be chosen by the electors of the judicial district in which they are to serve.

Judge Lopez Torres says that this means the electorate must chose, for to allow the party bosses to make the picks is to leave power in the hands of the entrenched interests.

The party bosses, on the other hand, claim that this can be accomplished either by primary or party convention, as the legislature has prescribed. This is the position of both the Democratic and Republican machines, as well as the Association of Supreme Court Justices.

There are 33 states that election judges. Only one does not allow for primaries to pick them. New York.

Stay tuned…

Other links:

 

September 27th, 2007

Bill Clinton "Counselor" Is Not Licensed New York Attorney

The story broke yesterday in the local press about the threatening letter that Clinton’s attorney had sent to the owner of Osso Buco about Chelsea’s picture in the window. Being a local legal story, albeit a type I don’t usually cover, I blogged it. The letter contained the demand it being taken down, with this “or else” threat: “We reserve the right to exercise any and all options available to us if you refuse to comply.”

I had referred to the letter writer as an attorney, since that was the way the New York Post had referred to Douglas Band, who had signed it. (The Post again refers to Band as an attorney today.)

A copy of the letter is at The Smoking Gun, and with it, Band’s signature as “Counselor to President Clinton.”

The story has now been picked up by many other bloggers (Above The Law, Volokh, Althouse).

It turns out that Douglas Band is not an attorney, or at least not one in the State of New York. I checked both the Office of Court Administration web site and, in case that was in error, the “red book” (New York Lawyers Diary and Manual — Bar Directory of the State of New York) that sits on my bookshelf.

It turns out Band was a former White House intern and Bill Clinton’s longtime personal assistant, according to New York Magazine.

Whether the letter was meant to be deliberately misleading, coming from a “counselor” with its implied threat of litigation, or was just inadvertently misleading, I will leave to the reader to decide.

“The Letter,” by the way, is now in the window of the eatery.

(Eric Turkewitz, on the other hand, is licensed to practice law in New York)

 

September 26th, 2007

Bill Clinton Threatens Action Over Chelsea Photo in Restaurant

If a celebrity’s photograph with a restaurant owner hangs in the window of the eatery without the individual’s permission, is it an unauthorized commercial use of the image? Yes, according to former President Bill Clinton, who has demanded that a photograph of his daughter with the owner, that has been hanging in the window of Osso Buco for five years, be taken down. Clinton’s attorney has written on official William Jefferson Clinton letterhead, “We reserve the right to exercise any and all options available to us if you refuse to comply.”

The letter goes on to say:

“Ms. Clinton, a private citizen, was not consulted prior to this picture being displayed, and thus, her permission was not given for you to do so. While she may have dined at your restaurant, this does not serve as an endorsement. We ask that you immediately remove that picture and any and all pictures displaying Ms. Clinton.”

This type of suit isn’t my bailiwick, but so I sure would be interested in knowing what the actual answer is.

I would add, of course, that a simple request from the frequent customer, Chelsea, should have accomplished this goal.

Addendum: Bill Clinton “Counselor” Not A Licensed New York Attorney

(Eric Turkewitz is a personal injury attorney in New York)