Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees

Former Supreme Court nominee Robert Bork has sued the Yale Club for an amount “in excess of $1,000,000,” plus punitive damages, as a result of a trip and fall accident on June 6, 2006. The Complaint is here via the WSJ. The accident happened while he was climbing to the dais for a speech, and there were no steps or handrail for the 79-year old Bork to hold on to.

The main injury he claims to have suffered were a hematoma in the leg that required surgery and months of rehabilitation. The New York Times notes that he proceeded to deliver the speech after he had fallen.

My thoughts on the Complaint:

1. This is a routine New York personal injury case. There is nothing particularly exceptional about it from the Complaint other than the plaintiff, a noted conservative jurist who has been part of the American Enterprise Institute, which engages in tort “reform” activities.
2. Since no hospitalization is mentioned, I assume that the surgery for the hematoma was out-patient and may have been a simple drainage of some kind. Perhaps the med-bloggers who visit here can offer up a bit more on what kind of surgery was likely;
3. The Complaint doesn’t even come close to explaining why punitive damages would be warranted in such a routine negligence matter. My gut reaction is that it is frivolous.
4. The Complaint asked for attorneys fees. Why? You can’t get them in New York for a standard personal injury claim.
5. The Complaint asks for pre-judgment interest. Why? You can’t get that here either. Sad, but true. Interest runs from the date of the judgment not from the date of the accident, thereby giving insurance companies a reason to delay litigation as long as possible. Perhaps Judge Bork wants to come with me the next time I lobby the legislature to amend the law to include pre-judgment interest?
6. The Complaint asks for an amount “in excess of $1,000,000” (not merely $1M, but in excess of). Where are the damages for making such a huge demand?

Ted Frank at Overlawyered has already jumped on this case and called it “embarrassingly silly,” noting the defenses of assumption of risk and a condition that was “open and obvious.” He adds in the comments, interestingly, that “it’s conceivable that there might be an [Americans with Disabilities Act] claim of some sort.”

A quote from Bork, from Bloomberg news:

In a 1995 opinion piece published in the Washington Times, Bork and Theodore Olson, who later became a top Justice Department official, criticized what they called the “expensive, capricious and unpredictable” civil justice system in the U.S.

“Today’s merchant enters the marketplace with trepidation — anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates,” they wrote.

I suspect that the folks at TortDeform will now add Bork to their roster of “Do as I say, not as I do” hypocrites of tort reform that suddenly changed their minds when it was no longer someone else’s injuries at stake.

Finally, the Complaint is signed by Bork’s counsel Randy Mastro, of Gibson Dunn & Crutcher. Mastro’s bio asserts that he “is a litigation partner who handles both civil and white collar criminal cases.” Also listed is Brian Lutz, who does “securities litigation, corporate control contests, antitrust matters (both civil and criminal), insurance/reinsurance coverage disputes, and white collar defense.” This is a white shoe firm with a dozen offices around the world. They apparently have lots of BigLaw experience. There is no personal injury law experience noted for either.

The case is Bork v. Yale Club, 07-cv-4826, U.S. District Court, Southern District of New York (Manhattan)

Addendum:

• More thoughts on choosing the right counsel from Carolyn Elefant: What Judge Bork’s Choice of PI Counsel Says About Lawyer Rankings like Avvo and Marketing;
• Robert Bork, Jr. defends his father’s suit at Overlawyered;
• This post now appears at Volokh, where I added the following comments in response to another:
  

  This was not a standard complaint. If it were, his counsel would have explicitly alleged that the Yale Club owned, operated and controlled the premises. (It can still be inferred, but it was poor drafting.)

  The complaint is filled with specifics about the incident (usually not done locally, it is usually very general), also meaning it is not boilerplate.

  They make multiple, unrelated , allegations in a single paragraph, making it impossible to admit or deny any of the facts in the answer (thereby destroying any benefit to putting in specifics) . And while not fatal, it is against the rules.

  It is certainly not boilerplate to allege punitive damages in a trip and fall case unless there is something particularly outrageous. And it isn’t a separate cause of action for punitives as they have alleged.

  And it is certainly not boilerplate to ask for things such as pre-judgment interest and attorneys’ fees in such an action, when they are clearly not allowed.

  Claiming something is boilerplate only works for a rookie lawyer who didn’t know better. Not for a former SCOTUS nominee with counsel from a BigLaw firm. (What would Bork say if he were on the bench and presented with such an excuse?)

  The reality is that there are thousands of solo and small firm practitioners who know this stuff cold, and Bork picked counsel with a lack of experience. That’s what I glean from the Complaint, and is the most likely reason frivolous claims appear.

A sampling of some other commentary:

• Tort reformer Robert Bork sues Yale Club (Think Progress)
• Bork: Tort Reform for Thee But Not for Me (Booman Tribune)
• Milking It (The Moderate Voice)
• Leading Conservative Activist Seeks Punitive Damages (American Constitution Society)
• The Urgent Need for Tort Reform (Grasping Reality With Both Hands)
• Lawsuit of the Day: Robert Bork Hearts Plaintiffs? (Above The Law)
• Bork and the Barbary Pirates (Volokh – David Bernstein)
• The Fall of Bork (Reason Magazine – Brian Doherty)
• Tort Reform Bork sues for 1 million dollars (Crooks and Liars)
• Is Bork’s Trip and Fall a Misstep? (New York Times Opinionater – Tobin Harshaw)
• Groucho & Javert (Slacktivist)
• Legal Funnies (Alas, A Blog)
• Advocate for tort reform sues for over $1M (Bring it on!)
• Robert Bork, tort-reform advocate, files slip-and-fall lawsuit (The Carpetbagger Report)
• When Tort Reformers Slip And Fall (Mother Jones)

Addendum 6/11/07 – I have a new post on the subject: What Should Bork Do Now?

Addendum 6/13/07 – I searched TownHall, a site with dozens of conservative commentators, to add additional viewpoints to this collection, but could find no reference whatsoever to the lawsuit.

Addendum 6/14/07 – New comments after New York Times weighs in with editorial: Bork’s New York Personal Injury Case and The New York Times

Addendum 6/29/07 — Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages

Addendum 7/17/07 — Bork Attorney Randy Mastro is picked by Rudy Giuliani to be on Justice Advisory Committee

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