December 17th, 2013

Court to Smokers: Get Sick First

Max Herman

Yesterday I was emailing with Max Herman, a student at Fordham Law School, about a potential series of guest blogs here. The issue was one he was studying, and one that the Second Circuit Court of Appeals had sent over to the New York Court of Appeals for an opinion on how New York law would handle this case of first impression.

The subject: Medical monitoring as a possible cause of action in cigarette cases. And before we had even firmed up the way to approach it as a guest blog series — Bam! The New York Court of Appeals released the decision today.

Without further ado, I introduce Max Herman:

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So you find out that for the last 10 years you’ve been exposed to radiation, dioxin or carcinogenic smoke. And you also find out that your exposure is due to the negligence of another. Of course, you haven’t developed any symptoms, yet the doctors tell you your likelihood of developing cancer has been substantially increased. You’re scared, angry and realize that for the rest of your life you’re going to need medical surveillance if you’re going to beat the disease to its potential punch.

“But who’s going to pay for that monitoring?” you wonder. I don’t know, but if you’re in New York, I know it won’t be the guy who caused your exposure.

In a surprising (to me and several Federal District Courts) turn of events, the New York Court of Appeals released a decision today answering two questions asked by the Second Circuit:

Does New York State recognize an independent claim for medical monitoring?

And if so, what are the elements and when does the limitations period accrue?

The highest court in the state answered the former in the negative and declined to answer the latter as academic.

The questions were asked as a part of Caronia v. Phillip Morris USA. In Caronia, a group of smokers brought suit seeking a court-administered fund for LDCT, a lung cancer monitoring system that substantially reduces lung cancer fatalities by detecting tumors earlier than other available technology.

The Marlboro Motto: Hook ’em early.

Each smoker was over the age of fifty, had smoked for 20 ‘pack years’ (a pack year is a smoker’s years as a smoker multiplied by the number of packs smoked per day), but had yet to develop disease. Thus, because they had a disproportionately high risk of developing lung cancer, they reasoned that Phillip Morris USA, which designed, produced and marketed the inherently defective products, should pay for the fund.

In the decision, written by Associate Judge Pigott, the court finds itself loath to craft a new, non-traditional tort claim without the safeguard of an injury requirement. He explains that dispensing with the requirement would deplete both judicial and defendant resources by allowing “tens of millions” of potential plaintiffs a new avenue of recovery, potentially to the detriment of plaintiffs who actually develop disease. In short, the judges do not have time to hear all the cases and the defendants won’t be able to pay all of the victims.

The court also recognizes its limitations, admitting to a lack of “technical expertise necessary to effectively administer a program heavily dependent on scientific principles . . . .” Thus, the court hands the issue off to the legislature, which, the court suggests, is better suited to mulling over the impact of a medical monitoring cause of action than the judicial branch.

Based upon the policy arguments of ‘limited resources’ and ‘lack of expertise,’ the court found itself unwilling to allow the smokers in Caronia to proceed on a medical monitoring claim.

There was, however, some dissension on the Court of Appeals:

Where, as here, it is within the Court’s power to provide a vehicle for plaintiffs to seek equitable relief capable of forestalling profound suffering and death, judicial hesitance and legislative deference only serve to thwart the ends of justice.

Thusly, Chief Judge Lippman begins his scathing dissent, pointing out not only how worthy the plaintiffs in equity are of remedy, but also how unfortunate it is that the court failed to adapt to a changing world. He goes on, discussing the court’s squandered opportunity to craft a claim for victims of exposure and simultaneously providing safeguards and plaintiff thresholds that would prevent the sapping of resources.

Indeed, the world we live in today is not that of Blackstone. Tort law developed in a century when injuries were a consequence of burgeoning industry. Hands crushed in compactors and legs lost on railroad tracks are neat (on paper) and quantifiable.

Today, we face myriad dangers from unseen, yet equally deadly forces and actors. Molecules and energies that trespass on our bodies due to the negligence of others are no less real than blood spilled by an unguarded saw. And yet because we cannot see them, we allow those who cause the trespass to go undisturbed.

Law, like all things, must adapt or face obsolescence. A legal system that does not afford remedy until the worst possible scenario occurs does not conserve resources (as Chief Judge Lippman noted, “the cost of monitoring and treatment upon early detection pales in comparison to the expenses of treatment post-diagnosis, not to mention those incurred by wrongful death suits.”).

A legal system where an actor may be negligent yet avoid consequences because their victim has yet to fall ill is not a deterrent.

In all, the most regrettable aspect of the Court of Appeals’ decision is that lead plaintiffs in big cases against Phillip Morris USA and other mass tortfeasors are almost invariably dead due to their manifested injuries. After today, asymptomatic plaintiffs must continue to wait for their own injuries to manifest before seeking remedy in litigation; litigation that, in the style of Dickens, may very well outlive those asymptomatic plaintiffs.

October 7th, 2013

Lawyers, Politics and Civility

Mark Bower, today’s guest blogger.

Mark Bower steps in today to offer a guest blog on lawyers and politicians:

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Several years ago, with considerable fanfare, our courts put in place a new Code of Civility. The Appellate Divisions recognized that the loss of courtesies and honor between adversaries was hurting the profession and the pursuit of justice.

After the initial fanfare, the code fell into widespread disuse, largely because our judges refuse to sanction abusers. With the desuetude of the code, the level of incivility has increased to the point that now, some attorneys are publicly musing about surreptitiously recording legal proceedings on their cell phones, so that the abuse can be documented and put on display. However, surreptitious recording is itself a form of incivility, and so the cycle goes ’round and ’round.

This is worsened by our judges’ belief that “fairness” requires everyone get a little of what they want, and sacrifice a little of what they want, so that if each side is denied 20 percent of what they asked for, that automatically is “fair.” Sort of like the wisdom of Solomon, except the cutting the baby in half merely produces two halves of a dead baby, and in today’s uncivil climate, one cannot count on one side to sacrifice their self-interest to save the baby’s life.

That one side might be clearly right, and the other clearly wrong, doesn’t matter; all that matters is that each side gets a little and loses a little, because that is “fair”.

Will McAvoy put it nicely: If the Republicans do fourteen ridiculous things, and the Democrats do one, does the media have to concoct and report thirteen fictitious things in order to be “fair and balanced”? (“The Newsroom,” season closer, “Election Night, Part II,” at approx. 41:30.)

The result of this misconceived calculus is that the more outlandish one’s demands are, the more one benefits by having an equal portion disallowed. Reasonablemess is disproportionately punished, while being outrageous is disproportionately rewarded. Misconduct is promoted, and good conduct discouraged.

This insanity is on full display in Washington. Although Grover Norquist’s stated goal is to shrink government to the size that it can be drowned in a bathtub; although Ted Cruz plainly stated he would shut down the government rather than allow the Affordable Care Act to go into effect; although most of the GOP wants to eliminate the Departments of Education, Energy, EPA, etc., and are delighted that they are shut down; in the interests of “fairness,” the mainstream media gives prominent play to grandstanding chickenhawk politicians who enthusiastically support the shutdown but pose with veterans at war memorials to glom onto their heroism, and give equal time to spinners who proclaim the shutdown to be the president’s fault.

Will McAvoy’s question hangs heavily in the air.

Our country’s international standing is going into the toilet, and we look like a nation of fools, but the right-wing is genuinely indifferent. If the USA defaults on its national debt, and the most secure and stable investment ever known to man becomes unpredictable and volatile, doubtless this will also be spun as the Democrats’ fault, and that Big Lie, too, will get equal play with the media.

Which brings me back to the demise of civility. The rules of discourse have changed on a broad scale. Fairness, candor, and honesty are devalued, and outrageousness and hyperbole rewarded. On the other hand, occasional displays of professional courtesy get nice recognition, but they are noteworthy because they are rare. The decline of civility, and its insidious effect on fairness, is a pervasive mindset problem, for which I see no ready solution.

September 3rd, 2013

RIP: Irwin Kosover

A guest post obituary today from Lee Huttner:

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Irwin Kosover died this week at age 80. He was a fixture for many years in Kings County Supreme Court, representing defendants only.His cast of carrier clients included Empire Insurance and Eagle Insurance. He was well known for his no nonsense approach, which made some younger attorneys feel that he was a bully — only to learn over the years that he actually was helping toughen up his young adversaries.

It was well known among the “regulars” in Brooklyn that he hated motions dealing with “serious injury” threshold because he believed all lawyers should make a living. Even though he thought most cases were exaggerated, he usually “lost” the threshold motions. His “file” was a single sheet of paper.

Irwin maintained an office at 26 Court Street for many years. He refused any and all offers to buy him lunch, preferring to eat in the office. He once promised he would let me buy lunch upon his retirement. He knew that day would never come as he knew that he would work to his dying day.

Many attorneys have provided stories about Irwin. I’m sure he would be happy to know that he was respected. A common thread throughout the stories was that he was tough. Young attorneys thought he was mean and abrasive. Irwin would always smile when a young lawyer figured out that it was “shtick” from a tough old fashioned lawyer. One attorney tells how she first met Irwin as a litigant. He was tough and pushed a settlement. He did not want to see her get nothing-but not too much either.

Most of all Irwin loved his wife. When she was suffering from the cancer that eventually took her life, he would say she was his life. When she passed a piece of Irwin died as well. Hopefully they are together again. He will be missed.

June 20th, 2013

What Government Data is Public? What is Private?

My last two posts dealt with Freedom of Information requests to state government for data. Both decisions said that governments were allowed to evaluate the release of information based on the reasons for the requests, balancing out the privacy concerns of those whose information was sought.

The New York decision prohibited the transfer of mugshots and arrest data to a mugshot website (whereupon fees would be charged for their removal), and then a SCOTUS decision came on lawyers’ requests for Department of Motor Vehicle data so that they could solicit people for a class action against auto dealerships.

In other words, some government information can be made public, some remains private, and some is semi-public depending on who does the asking.

Into the comments came a response from a long-time commenter and mostly-retired software engineer, Old Geezer (a/k/a Tom Cikoski, bio and head shot at the bottom). I thought it should be elevated to a guest blog, so with his permission, here it is:
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In a sense all this talk of public versus private versus private/public versus public/private data becomes mooter by the day. (Mooter?)

The only data that is and typically remains totally private any more is that which has not ever been rendered into electronic form. Any type of data store that is connected to the internet is subject either to innocent revelation (as in “I forgot to PW that folder”) or to deliberate hacking by folks much smarter than the defenders of the data store.

So the particular data store is not internet connected? Well, for those we have individuals called “leakers” these days who take “thumb drives” and trade them, brimming with data, for money, or for publicity.

And to think, Daniel Ellsberg had to stand over a hot copier for hours in order to leak!

It isn’t just ambulance chasers who go after such data, it’s also the pizza parlor down the street that has discovered the putative value of spam email or junk phone calling.

Two years ago we went from land line telephone to VoIP telephone at home. Within months we became the target of multiple daily telemarket and scam calls — so much so that I had to buy a call blocking device to filter them out. Even now, my call blocker, which holds 80 blocked numbers, must be recycled about every six weeks to deal with the new numbers that attack on an almost daily basis.

Don’t even get me started on spam email.

And this all stems from data which, at least in some sense, should be considered private. How do insurance companies know when I reach certain age milestones? They process the DMV data from the state. How do health insurers know my Medicare status? The government supplies everything they need — with a smile.

So, your “private” data is not only subject to public view, but also to public sale as well.

Note that our home number is on the so-called “Do Not Call” list and has been since the beginning. So every one of those annoying phone calls is in some sense illegal. That does not stop the calls. Legality is irrelevant.

And so, great and gallant judiciary, amuse yourselves by fighting that evil data protection windmill. Unless something takes down that mug shot business as a form of extortion, or the ambulance chasing as an ethical violation, the relevant data, IMHO, won’t stop flowing, SCOTUS or not.

Tom Cikoski, who considers himself an Old Geezer, is an avid blog reader and sometime blog commenter using that same sobriquet in a variety of fora. Although mostly retired from software engineering, he still consults on IT issues part-time, and also dabbles in film-making, comedy performance, playing drums in a Scottish pipe band, ranting about various topics, and other assorted forms of geezer foolishness.

May 2nd, 2013

The “New Normal” After Boston?

In the wake of the Boston Marathon bombings, I wrote down some of my thoughts about the event (Boston Marathon Bombing — And the Lives We Lead), since the race is one of my favorites. One of those thoughts, at the end, was this:

Some psychotic(s) want to affect the rest of us by terrorism. But I’m not interested in losing my fond memories, or stopping the creation of new ones.

This guest post below addresses that very theme; it was an essay written by my running club president Steven Stein for our weekly newsletter, which went out last night. Last weekend he ran a race in Central Park and noticed that things had changed. A lot.

Since Stein grew up outside the U.S. he brings a perspective different than most to the concepts of freedom and security. It is reprinted here with his permission:
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It was a clear, crisp, beautiful spring day. 7:50 a.m. on a Sunday morning and New York City was just beginning to wake and stretch. The drive into Manhattan from New Rochelle was quick and uneventful, and I parked in my usual parking lot on 66^th Street just a short block walk from Central Park.

Everything was familiar and normal. The temperature was in the low 50’s and I decided there was no need to check a bag for the race. This decision was made in part due to the pleasant temperature as well as a warning from New York road Runners that new security measures had been put in place since 4/15/2013, the Boston Marathon.

As I headed up the parking lot ramp onto the street, I saw the normal flurry of activity on the streets. Runners with their race bibs pinned to their shirts were scurrying towards the park. Parents were leisurely pushing strollers towards the park. In fact, everyone I saw on the streets seemed to be gravitating towards the park on this sun filled morning. A perfectly normal spring day in New York City.

I entered the park on Central Park West and 67^th Street, by Tavern on the Green. This is when I first encountered the New Normal. A Security Checkpoint! No entry without being asked to show contents of your bag, including the contents of my Spi Running Belt strapped around my waste.

Mixed emotions. I was happy that there were new security measures in place to keep us all safe. Then I thought; “will I ever be able to walk into the Park without being subjected to a security search? Is this New Normal just applicable to events in the Park, or are these permanent measures?”

A few hundred yards into the park, I saw a young guy looking inside his backpack on a park bench. Did he go through security screening? Should I tell someone I saw a backpack? What did this guy look like? Should I remember his face? What is the new normal? What are the rules? Why is a perfectly normal morning being spoiled by these abnormal thoughts?

As I made my way deeper into the park, in the distance I saw the normal long line of Porta Potties. Good thing they are still at the race. Something’s normal. But as I got closer, I saw that the New Normal included a checkpoint to get into the Porta Potty Area. A big Yellow sign read Security Screening Area.

I looked left, and I saw a NYC Police security crane with a security booth lofted 40 – 50 feet into the air with cameras pointed in every direction. Another Big yellow security signs read. Attention: Due to Enhanced Security Measures, Baggage Will Only Be Accepted In The Provided Clear Bags. Another New Normal. The $25 New Balance red backpack I purchased last summer specifically for race-day will now lie unused in my closet at home.

This was my first organized race since April 15th, and the National Anthem took on a deeper, more meaningful meaning than ever before, as I thought about those who lost their lives and those who were badly injured in Boston. I thought about the land of the free and the home of the brave, and how thankful I was to be living in the greatest nation in the world. The word Free stuck around in my mind for quite some time. Are we becoming prisoners in our own free land?

The race itself was as normal as it ever was. Crowded in the beginning and then it opened up after the first half mile. After the race I walked over to the post-race festival, set up to support lung cancer research and awareness through the Thomas G. Labrecque Foundation. In its 10^thyear, the event was founded in honor of former Chase Manhattan Bank chairman and CEO Thomas G. Labrecque, who died of lung cancer at age 62. Labrecque was the model of good health and a non-smoker all his life.

Another security checkpoint to get into the festival area on Ramsey Field!

As I made my way back to the parking lot on West 66^th street, my thoughts turned back to the New Normal. Is this just a knee-jerk reaction? Are the organizers and security professionals worried about copy cats? Was this a reaction to an isolated incident in Boston, or should we be expecting these events on a more frequent basis? Will security measures be eased any time soon?

Whatever the answer, there is a New Normal. Just like 9/11 changed forever the way we fly, the way we travel, and the way we enter buildings, the Boston Bombings have changed the way we gather and congregate for our organized races. We say we will not be defeated, we will not be terrorized. But they have already changed what is normal, and enforced a new, less free normal existence upon us. What is the right balance between being prudent, protecting a crowd from a repeat incident v.s. being free and not thinking about such threats all the time?

I grew up in a country where we left our front doors open when I was a young kid. As the country became more and more riddled with crime, most houses installed burglar alarms. Soon alarms were supplemented with burglar bars on every window, then a security gate on each exterior door, and in no time high fences and walls surrounded most residential properties, then electrified fences were installed, and each neighborhood had a private security company on call to protect you as you arrived home and walked you to your front door.

Ten years went by and we realized we were living in our own fortresses. Free in our own self-created prisons. With each security feature added, at first it was uncomfortable, but we soon got used to it and it was normal. But when one looked back at the open doors with no gates and no alarms to the prison we had created for ourselves, it was an enormous change.

My point – although I do not have a solution, lets be prudent about what security measures we put in place, let’s be safe, let’s rely on the security professionals and law enforcement to protect us, but let’s be careful not to imprison ourselves in our own free country.