February 13th, 2012

Erb’s Palsy Junk Science Debunked by NY Appellate Court (Defendants Get Their Comeuppance)

Mark Bower

When people hear about “junk science” being used in a courtroom, they assume it’s some novel theory created by a plaintiff’s lawyer to win a case. But as anyone who tries cases knows, junk can come from either side the same way any frivolous claim can.

Last week a New York appellate court dumped a recently created defense in Erb’s Palsy cases. That defense tried to allege that these birth injuries weren’t caused by malpractice, but rather, through the forces of labor itself.

Guest blogging today is New York practitioner Mark Bower, who has handled many an Erb’s Palsy case. He starts with the background on junk science, how and why it applied here and what it means for the future….take it away Mark….

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Since the U.S. Supreme Court imposed a “gatekeeper” role on trial courts in the landmark Frye and Daubert cases 20 years ago, judges have been charged with the duty of preventing the admission of “junk science” in evidence at trials. The Frye case held that a trial court must find that a scientific principle is “generally accepted” in the appropriate scientific community, before it can be expounded in court. This rule was largely dormant since originally formulated in the 1920’s, but became active after the Daubert case, that laid out five criteria that a judge must determine, to assess whether scientific testimony is admissible:

1. Empirical testing: the theory or technique must be falsifiable, refutable, and testable.

2. Subjected to peer review and publication.

3. Known or potential error rate.

4. The existence and maintenance of standards and controls concerning its operation.

5. The degree to which the theory and technique is generally accepted by the relevant scientific community.

These tests are intended to prevent swaying juries with “junk science” – unreliable or unscientific testimony from expert witnesses, whose credentials are used to impress jurors with their authority.

The term “junk science” has taken on political overtones, as various interests commonly accuse those with contrary views of promoting “junk science” to advance their agendas, for example, whether “global warming” (climate change) is man-made, or whether autism is related to childhood vaccinations. Both sides of these controversies charge the other with using junk science to further their positions.

But back to the courtroom … When SCOTUS (not generally a friend of the plaintiffs’ personal injury bar) wrote Daubert — and then, in 1996, the Kumho Tire case, which expanded the gatekeeper role to all expert testimony, scientific or otherwise — these were clearly anti-plaintiff decisions. And NY’s highest court further enlarged the threshold in Parker v. Mobile Oil, adding requirements of proving “general” and “specific causation”, linking the claimed cause of the harm directly to the injuries sustained. The courts were concerned that claimants would put in evidence novel, new theories to establish liability; and so created rules requiring that those new theories be approved by a judge for scientific merit before they could be advanced in court.

Until recently, these new legal requirements have been disproportionately used by defendants, to preclude plaintiffs’ proofs. A 2002 Rand study found that 90% of the courtroom uses of Frye and Daubert was anti-plaintiff.

However, that tide has been turning, as the plaintiffs’ bar is learning to use the same requirements against defendants. That sea change produced a tsunami last week, that precluded that “natural forces of labor” defense in an Erb’s Palsy case in upstate NY.

Erb’s Palsy is a neurological injury that is commonly the subject of birth trauma litigation. For over 100 years, it was generally accepted that Erb’s Palsy happens when a baby’s shoulder gets caught in the mother’s birth canal during delivery. If the delivering doctor pulls on the baby’s head in order to dislodge the stuck shoulder, the nerves running down from baby’s neck to the shoulder and arm (the “brachial plexus”) can be stretched or torn, resulting in a crippled arm. That the newborn has a non-functioning arm is usually recognized at the time of birth, or very shortly thereafter.

This mechanism causing Erb’s Palsy was so well-established, that the medical literature used to refer to it as “Obstetrical Brachial Plexus Palsy.” That is, until the medical community started to push back 20 or so years ago, and the waves of “tort reform” gathered momentum.

A small cadre of obstetricians developed a new theory, that contrary to the conventional wisdom, Erb’s Palsy is not due to the delivering physician pulling on the baby’s head or neck after all. Instead, they theorized, it is due to the “natural forces of labor” somehow stretching the baby’s neck during childbirth, so the fault is Mother Nature’s, not obstetrical malpractice.

This new theory was happily embraced by the obstetrical community, as it deflects the blame for Erb’s palsy injuries away from obstetricians and midwives. The same handful of doctors who invented the theory, published it over and over, each one repeatedly citing the others as sources. And so, around and around it went, building a significant body of literature, but with no actual original research or studies validating the theory, other than its proponents continually reinforcing one another. And the same half dozen or so doctors flew around the country, testifying to this theory in the defense of Erb’s Palsy cases, and depriving injured infants of recovery.

That hit a brick wall in a major new decision in Muhummad v. Fitzpatrick. In this case, thanks to very skillful lawyering by attorney Joseph M. Lichtenstein of Mineola, NY, an appellate court – for the first time that we know of – precluded the “natural forces of labor defense”. The plaintiff successfully showed that this defense theory was just that – only a theory, not an accepted, verified scientific principle or fact. Although defense interests gladly embraced the theory because it is exculpatory, it has never been subject to bona fide scientific testing. (The defense maintains that it cannot be ethically tested, as that would result in injuring newborns; but whether that is true or not, the fact remains that the theory has never been scientifically validated.)

The “natural forces of labor defense” is mainly derived from hindsight analyses of birth records of injured babies, where the obstetricians did not document pulling on the babies’ heads, so the proponents concluded that the babies’ injuries had to be acts of nature, and could not be acts of man. But that conclusion depends on the premise that obstetricians will conscientiously document their own acts that could easily be considered to be malpractice. (Analogize to a driver in an intersection collision writing in his accident report, “I drove through the red light and struck the other vehicle that had the right of way.” Doesn’t happen.)

Few impartial observers are so naive as to expect inculpatory documentation to be written by the physicians who know that the babies they delivered were born injured. Furthermore, prospective testing using scientifically-accepted mannequins and methematical models by a leading biomechanical engineer in the field, actively disproved the defense theory, and supported the conventional wisdom that Erb’s Palsy is due to faulty technique by the doctor, particularly where the baby has a serious, permanent injury that is confirmed by MRI proof of nerve root trauma.

Based on these proofs, the trial court precluded the “natural forces of labor” defense, and the appellate court affirmed the preclusion.

The significance of this decision is huge. Not only is the “junk science” defense of Erb’s Palsy cases recognized for the junk that it is (at least, in this case), but the legal tests that had been thought of strictly as a defense weapon has now been turned against the defense in a high-profile way.

With the evolving realization that “junk science” is promoted by the defense, and can be precluded by impartial trial courts, we may see the reversal of the tides put in motion by the Supreme Court many years ago. “The law of unintended consequence” coming back to bite defense interests on their butts.

December 27th, 2011

The 8 Craziest Lawsuits of 2011 (Are They Really?)

A guest blog today, from David Waterbury, a local personal injury attorney I’ve had the pleasure of knowing for about 25 years or so, from the days I worked at my first job after law school. And Waterbury has decided to take on the latest “list” of dubious lawsuits. But are they frivolous? Dave checks out a few of them…

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It’s that time of year again. The calendar says everybody and his third cousin has to make a list of the Top 10, Top 100, Top 5 or Top However-Many of the Best, Worst, Funniest, Stupidest things that they think anybody else might be interested.

So naturally, we here at the NY Personal Injury Law Blog found our interest piqued when we saw this, from The Week, on the 8 craziest lawsuits of 2011. Now this is hardly the first time that somebody has compiled a list of what they perceive to be “wacky” lawsuits. In fact, one such list famously manages to make the viral e-mail rounds nearly every year.

The problem is, ALL of the lawsuits in that famous e-mail list are fake. Completely made up by the enemies of justice as part of their public relations campaign to close the courthouse doors to Americans. The difference in The Week’s list of The 8 Craziest Lawsuits of 2011, and what makes it worth blawging about, is that at least some, and quite possibly all, of the lawsuits on the list are real.

So, after we have chuckled, chortled, whined, groused or ranted about crazy/stupid/frivolous claimants and there claims, is there anything to actually learn from this? I think so. One thing we can learn is to never judge the merits of something as serious as a lawsuit from a cute and clever couple of sentences in an on-line magazine.

At least a few of the eight suits listed by The Week appear to have some merit or value. Take, for instance, suit number 7 from the list: “The Walmart customer who sued over two cents.” The “real” truth behind this case seems to be that Walmart was being accused of systematically overcharging its customers by rounding up to the nearest dollar. As one of my colleagues, New York plaintiff’s lawyer, Mark R. Bower, said,

[this] is, in effect, a class action claim writ small. If the claimed ’rounding error’ is true, Walmart is ripping off consumers collectively for major amounts, 2 cents at a time. The fact that the plaintiff was awarded $180 damages by an impartial judge demonstrates the validity of the claim, while at the same time, gives a modest award that is a reasonable remedy. If enough people were awarded $180 for this offense, Walmart would stop this conduct. “

Indeed they should, and perhaps, now, they will. If not, it may be time for a “real” class-action suit.

Another case on the list that is worth looking into a little more closely is this: “5. The employee who got fired for working overtime.” Now I don’t profess to have inside information on this claim, but I do know that wrongful termination lawsuits are on the rise, particularly in the last few years and at least one of the reasons is that many employers are looking for reasons to let people go, due, in part, to the economic down-turn.

According to The Consumerist, the manager said he was forced to work more than 40 hours a week without receiving overtime pay. He was often off-duty on break, having punched out, but had to help someone and then tried to turn the clock back on. But he couldn’t turn if off again for 1/2 hour. The firing was retaliation for the complaints he had made about being denied uninterrupted breaks.

If, in fact, working through his scheduled lunch break, helping out customers or co-workers, was one of the reasons used to justify this employee’s firing, well then Target deserves to get sued over it, and the manager deserves to win his job back along with back pay and damages. It’s likely that the actual facts and allegations were somewhat different than the way they were couched in The Week‘s article, whether the editorial skewing for entertainment purposes was at the expense of the store or the employee, we don’t know.

Another suit worth taking a little deeper look at is “8. The kids who sued mom for failing to spoil them.” In coming up with a headline that would grab the reader’s attention (and prime them for hating this case before knowing anything about it) The Week’s editors really crossed the line.

The appellate judge who authored the opinion affirming the dismissal of the suit, First District Appellate Court of Illinois Justice Joseph Gordon, nonetheless termed the mother’s actions towards her as “erratic,” “spiteful,” “less than generous” and not “sensitive to the material and emotional needs of her children.” The case was dismissed, according to this HuffPo article, becasue, “The case’s dismissal was attributed in part to the legal ramifications of establishing a precedent allowing retributive actions for parenting style that doesn’t constitute abuse.”

While I think justice was certainly done here, there is something to be said for, in the appropriate circumstances, using the civil courts to test where the boundaries of bad behavior lie. Certainly the mother was not vindicated here. In my book, as both a lawyer and a father, being erratic, spiteful, ungenerous and emotionally insensitive to one’s children and their needs is borderline child abuse. It is way at the other end of the spectrum from “failing to spoil them.” Shame on you The Week!

“4. The woman who sued after being ‘forced’ to listen to Limbaugh.” My personal feelings that being forced to listen to Rush constitutes cruel and unusual punishment in violation of the Eight Amendment to the U.S. Constitution, aside, this appears to be, at its core, a false arrest/false imprisonment case. The part about being “forced to listen to Rush” part seems to be an expository item on the issue of her damages for being falsely arrested. In addition, it seems likely that her complaint regarding Rush was the allegedly racist content of show during the time she was a captive audience, rather than it’s purveyor.

While at first blush, “6. The groom who demanded a restaging of his wedding” seems to be a poster-child for a crazy litigant pursuing a frivolous claim. But wait! There’s more! It seems that this was actually just a small claim about bad wedding pictures. Everybody knows somebody whose wedding photographs lousy. Not just the occasional bad proof, but every-photo-has-somebody-with-their-eyes-closed-picking-their-noselousy. The type of lousy that we pay professional photographers $4,100 to prevent on our wedding day.

According to Above the Law and the New York Times, the part about re-staging the wedding was not a claim in the Complaint, but popped out of the plaintiff’s mouth at a deposition. Oops! Unhappy lawyer for sure. Oh, Goodwin Proctor, the plaintiff was the son of one of the partners. They understandably were handling the small commercial matter for him, at least until the plaintiff had his brain-fart.

And finally, there is “1. The couple who sued over a mid-air cockroach sighting.” By way of background, it is important to note that insect and other vermin infestations often provide the underpinnings to valid legal claims. Restaurants, for instance, can be fined, and even closed down, if they fail to keep their establishments relatively free of pests, including roaches. Roaches are dirty. They harbor and carry diseases and other germs. They are attracted to food consumed by humans. They are averse to light and can seemingly fit through impossibly small openings. If one happens to get into or onto your airline food, you could become sick. If one manages to get into your carry-on or other luggage, you will be bringing home a portable infestation.

On a more serious note, many people are pathologically frightened of insects and bugs. My own girlfriend, for instance, would likely have a full-on anxiety or panic attack if she were confined on an airplane for several hours with cockroaches crawling out of the ventilation system. I’m talking serious: Nausea, vomiting, uncontrollable shaking, crying, headaches, followed by at least several weeks of persistent nightmares. In fact, according to the Huffington Post (which appears to be where The Week’s author seems to have exhausted his or her research skills) reports here:

Other passengers, they allege, became aware of the issue and some were even physically sick.

A news report has pictures of the roaches coming out of an overhead vent. While this might not be the most valuable lawsuit to come down the pike lately, it is far from “frivolous.” I am betting the airline pays them something to settle this because it has merit.

So what can we learn from this:

1) Don’t believe everything you read (even here!) Check out the real facts before forming an opinion.

2) Almost any lawsuit can be made to sound “crazy” by careful editing. Magazines, particularly those on the internet, survive by grabbing your attention. Too often, the real facts and issues of a lawsuit don’t have sufficient attention-grabbing interest, so the editors have to create it by playing fast and loose.

3) Just because a suit has minimal dollar value to the litigant, doesn’t make it frivolous. In fact, much social good can be done by folks willing to take a financial hit in order to do the right thing, like keeping a multi-billion dollar chain from stealing millions of dollars from working folk, 2 cents at a time. Most of us don’t or won’t do it, but those who do deserve to be honored, not ridiculed.

4) The justice system generally works in this country. Sure, everybody has their own favorite story or two of when it didn’t, whether criminal or civil, but for the overwhelming majority of cases, it works just fine. Click here to view a famous foreign observer’s homage to the American jury system

5) There is an economically and politically powerful lobby in this country, consisting largely of big business and the insurance industry, and coordinated by the U.S. Chamber of Congress and the NAM, who have a vested economic interest in closing the courthouse doors to average Americans. Articles like that in The Week serve their interest, usually not by chance or coincidence.

June 28th, 2011

Personal Injury Attorneys – Our Own Worst Enemy

A confluence of a couple different thing brings about today’s guest blog by H. Q. Nguyen. First, there was the terrific presentation by Brian Tannebaum down in Florida about online marketing and ethics. His talk runs 50 minutes and is time well spent, not only because you get to see a blogging lawyer in action doing what he does best — trying to pursuade a group of people by marshaling the evidence — but because his talk just might save one or two sad souls from selling themselves off to a demon marketer.

And second was the premier on HBO of Hot Coffee, which addresses many of the perceptions of the citizenry regarding our profession, and how it is that those perceptions were formed.

Nguyen brings home a point that should be evident to all of us concerning the damage some lawyers do with crappy marketing…

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I’m a personal injury attorney and proud to serve those who’s lives have been damaged due to negligence. Due to those in the profession, people are able to seek just compensation for their losses from those that caused it.

Yet the public perception of the typical PI attorney is that of a greedy, cheesy ambulance chaser who does nothing more than bring frivolous lawsuits causing their insurance premiums to rise as well as hindering societal progress. How can this be?

We can put part of the blame on the insurance companies who spend an enormous amount of money on tort “reform” and marketing in order to influence the public (and the jury pools).

But let’s start with a look in the mirror first. If we want the public to see who we really are, we need to first change the way we present ourselves.

For example, everyday, millions of New Yorkers ride the New York City subways on their way to and from work or wherever they are going. When the typical Joe looks up in the subway car, he sees advertisement from PI firms. Instead of the content conveying that the firm helps those recover for harms caused by the negligence of others, all Joe sees is dollars, millions of dollars. What does that ad convey to a typical viewer who earns $35,000 -$50,000 a year? What does that ad convey to Joe, who may be on his way to serve as a juror?

While these ads may be effective in bringing in clients for the firm who pay for these ads, it harms the profession as a whole. Until we police ourselves and reign in these dollar-centric ads, we cannot hope to change the public’s perception of our profession. We are in essence our worst enemy.

February 15th, 2011

First, Do No Harm

This was first posted in Trial Magazine (February 2011)©, put out by the American Association for Justice, formerly Association of Trial Lawyers of America (ATLA). At my request, I’ve been given permission to re-post this, given the constant drumbeat of tort “reformers” seeking to protect those that have caused injury to others from being held accountable for their conduct.

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First, do no harm

C. Gibson Vance, President of AAJ

Few things in life are certain, but one thing you can count on is that politicians who want to weaken the civil justice system will try repeatedly to take away the legal rights of patients hurt by medical negligence. That was one of their final actions late last year, and it is on their agenda again in this new Congress.

Once again, our opponents are ignoring a major crisis in preventable medical errors and attacking injured patients while they try to revive the health care debate by raising the usual myths about medical malpractice litigation.

In the last Congress, AAJ successfully fought off dozens of amendments to the health care reform law that would have denied the legal rights of medical negligence victims. Our opponents tried one last time in the waning hours of the fall session by attempting to inject med-mal tort “reform” into the 9/11 bill, and AAJ helped to get the effort defeated by a vote of 185–244.

Their argument always boils down to cost. They claim that medical malpractice litigation is an expensive drain on the American health care system. A favorite tactic is to blame legitimate negligence claims for costly “defensive medicine”—a term used to describe what happens when doctors presumably order unnecessary tests for fear of being sued.

Yet even using our opponents’ statistics, a 2009 Congressional Budget Office report found that proposed changes in the civil justice system would save only one-half of 1 percent of all health care spending. The same report found evidence that tort “reform” measures would increase mortality rates and lead to worse patient care.

A tired and treacherous campaign

Now they’re at it again, at a time when the serious problem of medical errors is growing worse, not better. In 1999, the Institute of Medicine (IOM) famously reported that preventable medical errors kill as many as 98,000 patients a year. At that time, the IOM suggested a number of steps to improve safety, such as increasing the use of computerized medical records and making sure doctors and nurses don’t work too long in any given shift.

Two recent studies make it clear those policies have not been widely adopted. Last November, both the New England Journal of Medicine (NEJM) and the inspector general for the Department of Health and Human Services published results of studies showing that the level of risk to patients in our nation’s hospitals is at crisis levels, with hundreds of people dying daily from medical errors.

The NEJM study—which examined patient safety in North Carolina hospitals—found that about 18 percent of patients were harmed and that of these injuries, 2.9 percent were permanent, 8.5 percent were life-threatening, and 2.4 percent caused or contributed to a patient’s death. The study also reported that “the penetration of evidence-based safety practices has been quite modest.” Only 1.5 percent of hospitals in America are using a comprehensive computerized medical record system, and doctors-in-training and nurses regularly work excessively long hours, which has been proved to be unsafe.

The inspector general’s report included some sobering statistics from a study of Medicare beneficiaries conducted in October 2008. It found that one in seven Medicare patients experienced a serious adverse event. As a result, the study projected that 15,000 patients died in a single month—that’s the equivalent of an astonishing 180,000 patients a year. The study concluded that 44 percent of the adverse events were preventable, due to medical errors and substandard care, and cost the government $4.4 billion a year.

How will stripping the rights of these patients to seek justice solve this crisis of care? It won’t. Instead it will create a health care system that costs more but produces worse outcomes. Patients injured by medical errors will have no recourse, leaving taxpayers to foot the bill.

Congress should adopt the time-honored pledge of the medical profession, “First, do no harm.” It should focus on the real problem of preventable medical errors, not attack innocent patients harmed by health care providers’ mistakes.

January 24th, 2011

Ten Commandments of Winning Trial Advocacy

A guest blog today, from Judge Ralph Adam Fine, who has been sitting on Wisconsin’s Court of Appeals since 1988, and was a trial judge for 10 years before that. (And who hails from New York.) He’s the author of the How to Win Trial Manual, a lecturer on trial techniques, and an author of books on evidence, both federal and Wisconsin.

I asked him to pen this after a conversation I had with a federal court clerk, who told me that he continues to be stunned at the cluelessness of many lawyers that step into the well of the courtroom to try a case (often those from larger firms).

The skills below, of course, are things that Avvo is incapable of quantifiying.

And now, without further ado, a very short course on winning trial techniques…

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The most important thing to remember when you’re trying to persuade a jury or a bench-trial judge is that you must make them see that you really believe in your client’s case—that justice is on your client’s side, whether your client is a person or an entity. Everything else, to paraphrase Rabbi Hillel’s observation about the golden rule, “is commentary”—as are these ten “commandments” and my book, The How-To-Win Trial Manual (Juris 5th rev. ed 2011). As Winston Churchill wrote when he was a young man, to persuade others, you, yourself, must believe, and that belief must shine out!

2. Give the jurors a simple solution and eschew law-school-instilled hyper-complexity. Jurors will apply Occam’s Razor to your case; do it for them with your theme, and you will win!

3. Do not argue inconsistent theories (I did not stab him but if I did it was self-defense) or present theories that are consistent so that they seem to be inconsistent (Wrong: She was not negligent, but even if she was, the defendant has overstated his injures. Right: She was not negligent, and, moreover, the defendant has overstated his injures.) Lesson: never use the phrase “but even if”!

4. Do not use your direct-examination witnesses (whether fact or “expert”) to elicit information or opinions. Rather, you must frame and ask your questions so that the jury (or judge) knows the answer before the witness responds. This way, the jury (or judge) will see the “truth” in your argument from the get-go and not have to rely on their assessment of the witness’s credibility—even a liar can say true things.

5. Do not use a lectern. You do not want to have anything between you and the persons to whom you are speaking, either the jury or judge. Yes, I know, some judges will not let you roam. If that’s the case in your trial, stand next to the lectern, but not behind it.

6. Do not read. The jury (or judge) must see you as the “truth-giver” in your trial. Truth-givers speak from their heart; they do not read. If you doubt this, consider whether you would read a prepared script when discussing something important with your significant other even though a missed phrase could be lethal. The jury (or judge) must see that you believe in what you’re saying and reading from a script, or relying on notes too much, prevents that.

7. Do not object in front of the jury either to the admission of evidence or to a question asked by your adversary. Truth-givers do not object because the truth cannot possible hurt them. If you cannot keep out evidence using a motion in limine, then you will have to deal with that evidence and make it work for you as a positive part of your proof! Trust me, this is not hard, as I show in my book and demonstrate in my workshops.

8. When arguing a matter before the judge (whether in front of the jury or when the jury is not there) never say that you are doing something “for the Record.” First, it is insulting to the judge because you are already telling the judge that you will be appealing. Second, and this is crucial, whenever you say “for the Record” the judge (or the jury if the jury is there) sees that you are just going through the motions and that you really do not believe in what you’re saying. Indeed, during my nine years as a trial judge, a little voice in me said “deny” whenever I heard a lawyer say that he or she was doing something “for the Record.” Other judges tell me they have similar reactions.

9. Do not rely on the burden of proof in your opening statement. First, the burden of proof in civil cases is essentially meaningless—a zillionth of an ounce on one side of an equally balanced scale is a “preponderance,” but no one would ever make a decision based on that difference. For lay people, something is either true or not true. In criminal cases, although the burden of proof is significant in closing argument, using it in your opening statement is counterproductive; when the jury hears that your client sits there “presumed” to be innocent and is “cloaked” by the constitution, most of them will see this as a concession that your client really did the things the prosecutor says your client did.

10. Finally (for this list), your “opening statement” must be an opening argument and can be so without being “argumentative.” Thus, you must put your personal credibility behind your client’s cause every time you speak to the jury, and no time is more important than in the beginning because if the jurors see from the get-go that truth and justice is on your side, they will root for you, and, using the tools of denial and rationalization, shunt aside your adversary’s evidence. Thus, instead of the bland and neutral, “the evidence will show” x and y, you must say something like, “I will prove” x and y. That is not “argumentative” because you could have just as easily used the less-persuasive “evidence will show.” Something is “argumentative” when you cannot make that substitution, as in “send them a message” or some such exhortation.