Monthly Archives: September 2007

 

September 12th, 2007

The Days After September 11th — A Tribute To An Attorney

I didn’t feel like writing or talking yesterday about my experiences and feelings on September 11, 2001. I rarely do, even though I was in the city at the time.

But writing about the days after is something different. And in that regard, one lawyer I had the pleasure of meeting deserves a tribute: Kenneth Feinberg.

Feinberg was the Special Master that ran the September 11 Victim Compensation Fund and was responsible for establishing the awards for over 7,300 claims, including over 4,400 for physical injury. But he didn’t just administer the program. He actually conducted many of the hearings. From before dawn until after dusk, in cities throughout the country, he sat in rooms and personally listened to one horror story after another of broken families. According to the final report (p. 73):

During the course of the Fund, 3,962 hearings were held. Of these hearings, the Special Master conducted 931.

Feinberg didn’t just absorb the stories and make the financial decisions, but he also navigated through a ton of abuse from traumatized families due to the way Congress had so quickly set the fund up, which was beyond his control. How well did he do it? Charles Wolf, whose wife died in the north tower, was furious at the start and turned to the web to vent his feelings and rally anti-fund support, but then renamed his critical web site called “Fix the Fund” to “The Fund is Fixed!” He wrote to Feinberg,

“To have one of your sharpest critics follow through on a promise and not only join the program he was criticizing, but promote it to his peers, says a lot about you and the way you have adjusted both the program and your attitude. Today, I have complete faith in you.”

And he did all of it pro bono for almost three years, through the intense anger and raw emotion of family after family after family.

The fund was set up, if you recall, when the airline lobby raced into the Capitol to scream for immunity from litigation immediately after the attack, regardless of any negligent conduct they may have had that allowed the terrorists to breach their security. The planes had about $1.6B in insurance each, which was enough to cover people on the plane but not people or property on the ground. Bankruptcy was a real possibility.

Meanwhile, the American Association for Justice (ATLA at the time), under then President Leo Boyle, had called for a moratorium on any litigation as a result of the attack. When alerted to what the airlines were doing, they insisted to Congress that the injured and families of the dead should not be abandoned while a bailout was given to potentially negligent airlines.

Thus, the fund was born with an airline bailout on one hand, and guaranteed payments to the injured and families of the dead, regardless of fault, on the other. This deal came with the provision that if people participated in the fund they waived their rights to any lawsuit and waived any appeal of the fund’s decision. The fund had 98% participation. A few victims declined to participate and their trials will start shortly.

And in response to the formation of the fund, AAJ gave birth to Trial Lawyers Care. With over 1,000 trial attorneys from every state in the Union, it was the largest pro bono offer of legal services ever created. I was honored to have played a tiny part of this effort estimated at $200M in donated legal services.

I appeared before Feinberg in one of my two hearings — a woman from one WTC building with a head injury she incurred while escaping down a stairwell. And the one thing that occurred to me more than anything else as we sat there, was that he had to have extraordinary intestinal fortitude to listen to so many horror stories, day after day, week after week, month after month. The many boxes of tissues that stood at the ready in the hearing room spoke volumes.

And so I think it is fitting to tip my hat in Ken Feinberg’s direction. In fact, it is fitting for all lawyers to tip their hats in his direction. Not on September 11 when the victims are remembered. But for his contributions in the days after when he got to work.

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

 

September 10th, 2007

September 11 Judge Says Families Should Settle And Move On

The New York judge scheduled to hear the 41 lawsuits remaining from the September 11 attack says the families should settle.

Family members are reported to be fuming, according to this New York Post report, at Southern District Court Judge Alvin Hellerstein who said “money is the universal lubricant.” At a recent hearing he said that:

“Each of us has a choice: Either to never forget that pain and have it ever present in our lives, or to fashion a life beyond the pain…Somehow, we need to get past Sept. 11, 2001, as a country and individually.”

After a story about the trials appeared on the front page of the New York Times last week I wrote about the problem many of the families face in The September 11th Lawsuits And The Problem Of Compensable Grief in NY.

The litigating families had refused to participate in the September 11 Victim Compensation Fund due to low awards for those who were not working (such as children, retirees, those with disabilities).

It seems likely that the demand for accountability will, for some, supersede any desire to move on.

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

 

September 7th, 2007

Personal Injury Law Round-Up #27

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

Prior to suit, we’ll explore some related issues:

Ronald Miller starts us off with a discussion of medical malpractice caps in Illinois and Maryland at the Maryland Lawyer Blog;

The Consumer Law and Policy Blog picks up a New York Times story on the Consumer Product Safety Commission and how the Bush administration has allowed corporate lobbyists into policy making positions to further the position of big business over consumer protections. The result? Injuries, death and tainted products. They also pick up on the third recall from Mattel. This time it’s Barbie accessories;

David Lowe picks up the story of lung disease from an ingredient in artificially flavored popcorn (which previously was found to affect workers, not consumers, see Round-Up #24). You’ll find the most comprehensive materials on the web regarding “Popcorn Lung” at The Pump Handle. There’s also an interview on the subject with pulmonologist Cecile Rose at the WSJ Health Blog;

Drug safety pops up in a New England Journal of Medicine editorial, and the FDA’s inadequate response to the Institute of Medicine’s 2006 report (via TortsProf);

Last week’s round-up had a small give-and-take on the contingency fee, and David Giacalone continues on at f/k/a with contingency fees and the clueless fiduciary. This part of his post jumped out at me: “Tort lawyers …obtain repayment of substantially all litigation expenses they advance, including expenses advanced in the cases where they do not prevail.” Perhaps in academic theory the expenses can be recouped on a lost case, but not in the real world where many claimants simply don’t have the money. Not only is the risk of laying out many thousands in disbursements real, but from the business end it doesn’t even begin to address the harsh cash-flow problems of funding cases for years before they finally come to trial (see for example, Medical Malpractice Economics);

At Point of Law, Walter Olson points to a New York Times article today that questions the accuracy of some of the data regarding health problems to ground zero workers.

And into the cauldron of litigation we go:

Sheila Scheuerman from TortsProf reports that Greek victims of a Nazi atrocity may sue Germany;

The Kentucky Law Review reports that a trial against an obstetrician accused of unnecessary hysterectomies was continued due to protests (note: Only lawyers use the word “continued” when we really mean postponed). The protests were due, in part, to a letter circulated around the medical community. The eventual verdict is here;

With trials coming up regarding the September 11 attacks, MassTorts prof Howard Erichson tries to figure out exactly what it is that the plaintiff’s want…is it really money?

A trial is starting in Texas over the 2005 BP explosion that killed 15 people and will be about, as TortDeform reports, whether the oil giant put profits over safety;

A partial settlement was reached in the catastrophic Rhode Island night club fire that killed 100 people and injured 200 more in 2003 when the manager for Great White ignited a pyrotechnics display. Four defendants coughed up $13.5M. There are still 93 other defendants. The New York Times (reg. req.) has the story as does the Boston Globe (no reg.):

Mary Whisner from Trial AD notes a $5M medical malpractice verdict in a case where the jury disagreed with a report from the state’s Department of Health that claimed the doctor’s conduct fell within the standard of care. From the comment section of the blog, it looks as if a juror has responded. I let jury blogging guru Anne Reed know, and she followed up at Deliberations with, If Your Juror Were Writing Online, Could You Find It?

And a federal judge has ordered Iran to pay $2.65 billion to the families of the 241 U.S. service members killed in the 1983 bombing of the U.S. Marine barracks in Beirut. A bit more from PrairiePundit.

And finally:

Enjoy the weekend.

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

 

September 7th, 2007

NYC To Put Hospital Error Data Online

The New York City Health and Hospitals Corporation, which runs 11 city-owned hospitals, will start today to put data online on infection and death rates. The hospitals treat 1.3 million patients a year.

According to an article in the Metro section of today’s New York Times, the effort for greater transparency is driven by Mayor Michael Bloomberg as part of a public health initiative. It also comes due to an effort by the hospitals to improve patient safety. (See also, New York City Reports Lowest Number of Claims In 10 Years.)

This web site will allow the public to see, among other things, the overall death rate, the rate of deaths after heart attacks, preventable bloodstream infections and pneumonia cases.

The medical industry is not exactly known for its transparency when it comes to medical errors and poor outcomes. Which seems to put this initiative near the forefront of identifying, and hopefully treating, systemic problems within the institutions that have led to incalculable misery, death and medical malpractice lawsuits.

This initiative comes on the heels of the federal Centers for Disease Control and Prevention projecting that 1.7 million patients nationwide get infections each year during a hospital stay, and that of those, 99,000 would die. The centers estimate the cost of treating such infections at more than $30 billion a year.

It also comes on the heels of Medicare refusing to pay for the treatment of avoidable infections and other hospital-caused injuries. According to a Jacob Goldstein WSJ Health Blog posting earlier this week, with money on the line, hospitals have already responded by changing policies for the better.

All of which leads one to wonder: Is there a hospital health care revolution taking place?

More info at: The Committee to Reduce Infection Deaths

 

September 6th, 2007

Two Blogs, Almost Identical Names

It had to come up eventually: Two blogs with almost idential names, and the issue of what intellectual property rights bloggers have to those names.

Here they are:
The Angry Pharmacist (started two years ago); and
The Angriest Pharmacist (started seven months ago).

Needless to say, Angry is not too pleased with Angriest, who concedes, “I did happen upon his site and loved it…so, I semi-jacked the name.”

The original is (can you guess?) angry about the poaching of his or her name.

Complicating the issue for The Original Angry is that he uses a pseudonym. Assuming he could find out who Angriest is and bring a suit, how can he ever prove he was damaged?

Now intellectual property is not my long suit, but I am curious since the same thing can (and most likely will) happen in the legal blogosphere eventually, where use of real names is the norm. After all, there are about 1,000 legal blogs but about 1,000,000 lawyers in the country, and the future blawgosphere (for us less talented people who can’t create pithy names) could look something like this:

The Podunk Criminal Law Blog;
The Podunk Criminal Blog;
The Podunk Criminal Law Blawg;
The Podunk Criminal Law Legal Blog.

I toss this out there with the hope that someone, somewhere, might have a few thoughts on this…

(Hat tip to Monkey Girl).