Yeah, I was mad. But not at the doctor and not at the dog. I was mad at the lawyer, Rosemarie Arnold, who belches on one of her websites that she is the “Queen of Torts.”
Really? The Queen? Well, let’s see about that, shall we?
Wouldn’t the “Queen of Torts” have the fundamental knowledge that, when starting a personal injury lawsuit in New York, you are not allowed to put in an ad damnum clause? That’s the part where you state an actual amount of money. The Legislature killed that idiotic provision back in 2003. As Walter Olson noted at the time on Overlawyered, the measure enjoyed “widespread support from among both defense interests … and the plaintiffs’ bar, which is perennially embarrassed by news items…”
That law was amended because it is, most often, impossible to know the extent of an actual injury soon after it occurs, because the injury has not stabilized and it is too difficult to predict the future at that early point in time. Will the person need one surgery or five? Will the pain resolve itself in six months or not?
As a result of this problem, some lawyers would put crazy numbers in the complaint “just in case,” so that they would not be precluded later if the client’s health went downhill. At the same time, it was grossly unfair to the defendant, as newspapers loved to put this stupidity in headlines. This was particularly true in medical malpractice cases.
So the old law was, thankfully, changed by the Legislature.
Which brings us back to Rosemarie Arnold and her claim on behalf of the child that he suffered a $30M injury to his ear. There are only two reasons for Ms. Arnold to do this:
1. The Queen of Torts is actually ignorant of the law; or
2. Rosmarie Arnold willfully elected to ignore the law, in the hunt for headlines, thereby raising ethical issues about her willfully ignoring the law.
Neither of these scenarios is good for her, as one goes to the issue of ignorance and the other to the issue of ethics. Pick your poison.
Back in 2007, during my virgin year as a blogger, I first wrote about this issue. It’s time to expand on it, thanks to Rosmarie Arnold.
When I go in to pick juries, I am constantly faced with the deep cynicism that is fed by insurance companies and newspapers that thrive on outlier suits for spurious claims or that claim enormous damages. To the jurors, fed by such media attention, every lawsuit represents greed and lottery-like jackpots, while to the litigants, the suit is simply at attempt to measure what is fair and reasonable under the circumstances and receive just compensation.
Rosemarie Arnold, in bleating a $30M claim to the press, just made my job more difficult, as well as the jobs of all the other personal injury attorneys in the state. And she has added one more straw to the camel’s back in damaging the rights of litigants trying to pursue justice in the courts.
Perhaps the publicity she got from the suit was good for Ms. Arnold, but it was detrimental to the cause of civil justice. As is often the case, the bad conduct of a few people in a group taints the rest in the eyes of the public. There isn’t any group that wants to see its own misbehaving and damaging the reputation of the rest.
And on the cause of civil justice, since I’m on the topic, it’s worth noting that the self-proclaimed Queen of Torts isn’t even a member of the New York State Trial Lawyers Association, the premier bar association in the state that fights in Albany to protect the civil justice system from those who seek to damage it. Some Queen.
Frankly, I wouldn’t mind seeing this taken up by a judge or ethics committee.
I emailed Ms. Arnold using the form on her website two days ago, seeking comment, and no one got back to me.
Her website says she’s “a courtroom bulldog who won’t be leashed.” Why settle for half-measures?Perhaps she could upgrade it to be “a courtroom bulldog so aggressive she’ll bite children’s ears off”?
Her website says she’s “a courtroom bulldog who won’t be leashed.”
You don’t always see marketing nonsense come back to bite someone with such irony.
Had to read the article to find that I’d lost a bet with myself: I was sure she filed in the Bronx. 🙂
Excellent blog as always, Eric.
“That law was amended because it is, most often, impossible to know the extent of an actual injury soon after it occurs, because the injury has not stabilized and it is too difficult to predict the future at that early point in time.”
That’s not why. How many cases do we file where the injury has not stabilized? Hopefully, with an expert deadline on the horizon, people are not filing suit unless then know what they have unless they have an SOL on the horizon. (Certainly, defense lawyers were not worried about this.)
Ultimately, people realized that asking for a dollar amount requires PI lawyers who don’t want to commit malpractice to put a number higher than a jury could award them. Which got reported in the newspaper as a $50 million lawsuit. This reflected poorly on all lawyers without any actual upside benefit in the administration of the case.
That’s not why. How many cases do we file where the injury has not stabilized?
Plenty. Almost any medical malpractice cancer case falls into this category. You can’t afford to wait.
And think of any fracture that requires open reduction with internal fixation. You know the injuries are severe enough to warrant your attention and suit (assuming liability) but you don’t necessarily know how bad it will be two years down the road.
There is no good reason to delay suit simply because the exact future is unknown.
I completely disagree. You end up with an expert who can’t give an opinion on permanency because there she does not know yet. Leaves a gaping hole in your case. For what upside? Moving the case along a little faster?
Almost any cancer case falls into this category? Really? In three years generally know where you are (and in Maryland with no loss of chance, you kinda have to figure out exactly where you are). And the three years begins to run – at least in Maryland and in most states – when the death has occurred. Are you filing that many non-death cancer cases? I’m not saying there are not times where filing suit early is not warranted – most notably when the client’s demands it because of their situation or some other reason – but I think it is wrong to say “oh, I don’t know where this case is going but let’s file suit anyway” should be the SOP.
Back to the original point, none of this is the rationale for ad damnum clause.
I completely disagree. You end up with an expert who can’t give an opinion on permanency because there she does not know yet. Leaves a gaping hole in your case.
I think we are working with a different set of laws than those you have in Maryland.
In the med mal setting, you can start suit after speaking with a doctor and concluding that “there is a reasonable basis for the commencement of this action.” The doctor doesn’t do an affidavit. But even if s/he did, it would still be possible to leave the injuries open-ended while opining on the issue of negligence.
Is there a risk to starting a case too early in such circumstances? Yes. But there is also a risk to starting too late, in that the client may not be around for the conclusion.
Each case is different, and there is no one-size-fits-all answer.
The “Queen of Torts” should get the law correct, especially when she is suing on a dog bite case.
Her website says:
“When a dog bites someone in New Jersey or New York, the owner is liable for damages – period. State law requires that dog owners be held responsible for injuries suffered by mail carriers, houseguests, and other dog bite victims regardless of the circumstances surrounding the attack. At Law Offices Rosemarie Arnold, we handle personal injury claims involving dog bites and attacks by other dangerous pets.”
Unfortunately, at least in New York, this is anything but the law. Incorrectly called the “one free bite rule,” to prevail on an attack by a domestic animal in New York, whether it is a bull or a dog, the plaintiff must prove that the owner had notice of the “viscous propensity” of the animal, usually an onerous task. In this case, the fact that the owner ignored a “no dogs allowed” sign is totally irrelevant. It may get the owner a $100 ticket, but it does not create liability. Arnold’s statement that the dog “is known around the neighborhood as having vicious propensities,” is too the incorrect legal standard, but it seems to indicate that she knows the statement on her website concerning absolute liability for dog bites in New York is not true.
http://www.nycourts.gov/reporter/3dseries/2004/2004_00960.htm
Suing for $30,000,000 when the complaint should have said “more than the jurisdictional limit of all lower courts,” shows a lack of procedural knowledge. Incorrectly stating the law on her website (attorney advertising), IMHO, is substantive and a more serious ethical matter. Telling prospective clients that they have a slam-dunk case nets much better than conveying the truth that proving a dog bite case in New York is a difficult task and may be impossible under their set of facts.
You analysis is spot on with regard to animal bites and the fact that New York doesn’t have any negligence cause of action, only an action for strict liability if the animal has shown a known vicious propensity.
I last covered the subject a few weeks back when a cow wandered into the road and contributed to an accident.
@Ron Miller –
Ron:
One more point about New York — even though it is off-topic for this particular post about Ms. Arnold violating the law. New York does not award interest from the date of an accident, but from the date of judgment. Thus, in many cases such as hit-in-the-rear or a stop sign case, the faster you put the matter into suit, the faster you can move for summary judgment and hopefully get interest starting to run.
Your jurisdiction may be much different, but in NY there can be a significant downside to the client to delaying a case.
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