November 19th, 2015

So You Had Sex With Charlie Sheen And Now You Want To Sue…

Charlie Sheen Bree Olson(A version of this post appears at The Hollywood Reporter. It is cross-posted here.)

Charlie Sheen got himself into a pickle. I know, you’re all shocked! The question we try to answer today, just how big is his pickle?

The nature of his confession is that he is now HIV-positive, that he has known this for four years, and that while knowing he was HIV-positive he had sex with many women. This includes prostitutes and porn actresses. He claims that he told all the women about the HIV.

But at least one of them, former porn actress and girlfriend Bree Olson, claims she was never told. Sheen said that ain’t true. He also claims that at least one other has been blackmailing him to the tune of $10 million, telling him to pay up or she would release the information.

What we call this back East is a big, fat headache. We call it other names too, starting with “cluster” and ending with the likely source of Sheen’s illness, but I’ve been told to keep this piece clean.

Since I practice civil law, I’ll tackle this cluster-intercourse from that end with five easy questions. And since the women may be anywhere in the country, and Sheen travelled widely (and wildly), a claim could theoretically pop up in any jurisdiction.

I’ll use New York law as my baseline, since that’s where I practice. It also happens to be almost identical to California law in important respects, where Sheen resides. But, as you’ll see below, I don’t think it will matter much anyway where any suit is brought.

  1. Do any of the women have a negligence claim against Sheen for scaring the bejesus out of them with his HIV revelation?

In general, you can’t bring a claim purely for the negligent infliction of emotional distress in New York. “That car almost hit me, I was so scared!!!!!” doesn’t cut it, no matter how many exclamation marks you use.

There are a few small exceptions where a purely emotional injury could result in a claim, of which the desecration of a body is one, and the potential infection with HIV happens to be another. Thus, someone getting stuck with an infected needle due to negligence could result in a claim. It will most likely be six months before she knows if she was infected and there is little doubt a reasonable person would be anguished over it.

In order to prove negligence in the Sheen scenario, a woman (presumably) would have to come forward to say that Sheen breeched a duty of care to her because he knew of his diagnosis, and that he reassured her he was clean, and that they therefore didn’t use a condom. If a jury believed her — and remember that this is unlikely to be a nun that is testifying — a claimant could theoretically get over that hurdle.

But that is not the only hurdle. The woman will also have to prove that her mental injury is “a direct, rather than a consequential” result of the breach of a duty of care to her and that the claim “possesses some guarantee of genuineness.”

The problem is that it’s four years later. What direct injury? Remember, this is mental anguish only. Simple blood tests, if she hasn’t already had them, will give her peace of mind. The “guarantee of genuineness” is missing from the very tough New York rules against such claims.

But let’s say this was not someone in the porn or sex-work industry who might get tested often, but just a regular girl that liked the boy and they had good times together. Hey, it’s possible!

A claim now? Getting closer, but only if this was unprotected sex that occurred very recently, giving rise to a reasonable cause for AIDS phobia.

(California likewise has strict limits on suits regarding the negligent infliction of emotional distress.)

Charlie Sheen Women

Charlie Sheen with some friends.

2.  Even if a woman can elucidate a claim, does she bear any responsibility?

In New York we have something called comparative negligence. So too does California. If you’re in a car collision and sue, the jury gets to determine not only the fault of the guy you sued, but yours also. If they find you 25% responsible, you say goodbye to 25% of any jury award.

Here you got comparative negligence up the wazoo: A wild guy having sex with lots of different people. There is a heavy element of personal responsibility that goes on here not just from his point but from hers.

And a jury, if it were to actually reach the issue, would most likely wag a metaphorical finger at the woman and say:

“You had unprotected sex with Charlie Sheen?! CHARLIE DEGERERATED SHEEN! ARE YOU OUT OF YOUR FUCKING MIND?!”

Yeah, I know I said I wouldn’t use that word, but good grief, think about that concept. The comparative negligence would be pretty darn high.

  1. OK, if negligence is out, how about suing for intentional infliction of emotional distress?

While this sounds like a better plan that suing under a negligence theory, the bar is still very, very high to prevail. The New York standard to prevail on that theory is:

“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress.”

The problem with that is that there isn’t any evidence to show he tried to cause distress. By their own admissions, the women have to acknowledge that this was kept secret from them until he gave his recent interview. Is it possible? Yeah, maybe.

4.  Are there any damages?

In the unlikely event someone could prove Sheen was liable, how will she prove that a reasonable person would be fearful if the contact happened more than six months ago and she is HIV-negative when tested now? And even if she could prove that a reasonable person would nevertheless be fearful, just how big could the injury be?

The jury will likely be instructed by a court to view how the reasonable person of average sensibilities could be affected under the circumstances. Blood test. Done. Relief. Go have a beer.

Could there be punitive damages if found liable for intentional causing the injury? While possible, the road is very long to get there, and with little in the way of compensatory damages, might not be viewed favorably by many courts.

5.  Wait! Before you sum up! What about the extortion of $10 million?

In theory, if the extortionist were the one to sue, and in Bizzarro World — which doesn’t exist in our courts no matter what kind of headlines you might read — had a verdict rendered in her favor, a good argument could be made that the blackmailed dollars would be used as a set-off. But good luck proving it.

The only way the extortion issue comes into play is if some prosecutor says, “Hey, I bet a lot of cash was used for that!! Let’s follow the money to see if Sheen was breaking the law with respect to documenting transfers of cash over $10,000.”

But I’ll let the criminal defense lawyers and prosecutors discuss that.

Summation time! In the event a woman was able to surmount every single hurdle and survive motions to dismiss, what would the jury likely do?

They’d likely look at the rather motley array of witnesses that were presented, hate them all up, down and sideways, say a pox on you and your houses, you all get nothin’ and we’re going home to our families.

And frankly, they are likely to say that no matter where the suit was brought.


October 14th, 2015

About That Aunt Suing An 8-year-old…. (Updated x4)

Face of random kid that looks to be about 8

Face of random kid that looks to be about 8

It shot around the Internet yesterday, like so many other viral stories do, and all I could do was roll my eyes. It was the story of an exuberant 8-year-old boy in Connecticut leaping into the arms of his aunt upon seeing her, and her resulting injury, a broken arm.

The story was one that any adult could imagine. The woman testified:

All of a sudden he was there in the air, I had to catch him, and we tumbled onto the ground…I remember him shouting, ‘Auntie Jen I love you,’ and there he was flying at me.”

People were aghast. One only needs to read the comments of any article on the subject. How could you sue a beloved relative? And how could you sue a child?

But suing relatives (or close friends) happens all the time, particularly in auto collisions. Who, after all, are you most likely to be with at the time of a collision? A close friend or relative. Unless you drive a taxi, you don’t often have strangers in your car.

And it’s the same with your home, in that the most likely visitors inside are family and friends.

When I first saw the aunt-nephew story, my first thought was that homeowner’s insurance would cover the incident if there was liability, and that this was similar to suing a relative over a car crash. I tweeted as such:



This is, in fact, one of the reasons we have insurance. To cover us in case we slip up and someone is injured due to our negligence.

Certainly insurance companies would prefer that folks don’t sue. It would be a great business model, wouldn’t it, to keep collecting all those premiums and never pay anything out?

In a story later in the day yesterday, the jury came back with a defense verdict — one juror said the jury simply didn’t think the boy was negligent when measured against the reasonable conduct of a child his age. OK, I can live with that.

At some point we all grow up and become increasingly responsible, and that line of responsibility won’t only be gray for a child’s conduct, but ever-shifting depending on what happened. (see, for example, a 4-year-old sued in NY along with parent for negligent supervision.)

Would I have taken such a case? No. Because the jury did what I expect a jury would do. But eviscerate her on the Internet for it? No.  She took the advice of counsel. Bad judgment call perhaps, though the attorneys defend the decision to move forward (see update).

And the injured woman was interviewed and confirmed my thoughts: Suit was brought against the homeowners policy to cover the medical bills, but you don’t sue the insurance companies, you have to sue the individuals. From CNN, who interviewed the Aunt:

“This was meant to be a simple homeowners insurance case”

Also at the CNN story, the woman testified that she remains close with the family and recently took the boy (now 12) shopping for a Halloween costume.

As with so many other things on the Internet, many people will howl and yell first due to the way a headline is written, without bothering to think that the actual conduct isn’t particularly egregious. The case may have been a loser, but it was not worthy of spilling all the resulting venom.

Update: On her attorneys’ website is this message about the case and the desire to get the medical bills paid:

“From the start, this was a case was about one thing: getting medical bills paid by homeowner’s insurance. Our client was never looking for money from her nephew or his family. It was about the insurance industry and being forced to sue to get medical bills paid. She suffered a horrific injury. She had two surgeries and is potentially facing a third. Prior to the trial, the insurance company offered her one dollar. Unfortunately, due to Connecticut law, the homeowner’s insurance company could not be identified as the defendant.”

“Our client was very reluctant to pursue this case, but in the end she had no choice but to sue the minor defendant directly to get her bills paid. She didn’t want to do this anymore than anyone else would.” But her hand was forced by the insurance company. We are disappointed in the outcome, but we understand the verdict. Our client is being attacked on social media. Our client has been through enough.”

Updated x2: These are examples of what Twitter has to offer.  Remember, this is suit is essentially about whether homeowner’s insurance will pay the medicals. The first from Joshua Carrasquillo of Lowell Massachusetts:JoshuaCarrasquillo
And the second from Brady Ricci of Vail, CO and Los Angeles:BradyRicci

And this is from Jack Marshall, who says he actually teaches ethics and has a blog called Ethics Alarms (coded “no follow“):

What’s going on is that Aunt Jennifer is pure hellspawn, a mysteriously animated pile of human excrement that embodies the worst of humanity.

This is what happens when people elect to post stuff on the web based on an initial news report that was, shall we say, very selective on what it chose to report.

Update x3: This site is getting quite a bit of traffic, most likely from many who never knew it existed. So let me answer a question some of you may have: Yes, I know what it’s like to be on the receiving end of lawsuits, and they weren’t nearly as benign as this run-of-the-mill kind: On Suing and Being Sued

Update x4: Why did this little suit get national attention? Because of the way the original author wrote it — designed for clickbait, not accuracy. See: The Media Hit Job on the Evil Aunt


September 1st, 2010

Was Michael Douglas the Victim of Medical Malpractice?

The story of actor Michael Douglas and his stage-four throat cancer caught my eye when reading about an appearance last night on David Letterman, and I saw the comments of his enraged wife, actress Catherine Zeta-Jones:

Meanwhile, his wife Catherine Zeta-Jones is fuming at doctors for not diagnosing it months ago.

“It makes me furious they didn’t detect it earlier,” she told People magazine in its latest issue. “He sought every option and nothing was found.”

When people fume about the perception of bad medical treatment, they often turn to lawyers. And those lawyers will look at exactly what tests were done in the face of the complaints being made.

Now I have no idea if this will result in a medical malpractice suit. I haven’t seen the records and I merely opine based on press accounts. But anger is one of the great motivating factors for hiring counsel to investigate whether medical malpractice occurred. When folks aren’t angry, and they get apologies from medical personnel for instance, suits are less likely.

And that isn’t just my opinion. In a 2008 story in the New York Times (Doctors Say ‘I’m Sorry’ Before ‘See You in Court’), medical professionals are found to be increasingly agreeing:

For decades, malpractice lawyers and insurers have counseled doctors and hospitals to “deny and defend.” Many still warn clients that any admission of fault, or even expression of regret, is likely to invite litigation and imperil careers.

But with providers choking on malpractice costs and consumers demanding action against medical errors, a handful of prominent academic medical centers, like Johns Hopkins and Stanford, are trying a disarming approach.

By promptly disclosing medical errors and offering earnest apologies and fair compensation, they hope to restore integrity to dealings with patients, make it easier to learn from mistakes and dilute anger that often fuels lawsuits.

Malpractice lawyers say that what often transforms a reasonable patient into an indignant plaintiff is less an error than its concealment, and the victim’s concern that it will happen again.

Despite some projections that disclosure would prompt a flood of lawsuits, hospitals are reporting decreases in their caseloads and savings in legal costs…

Now I presume that Douglas and Zeta-Jones are more than a bit comfortable, financially speaking. And any suit that might be contemplated wouldn’t be about the money. In fact, the money might be so small relative to their wealth that if suit were filed I could easily see it accompanied by a statement that any recovery would be donated to a charity.

And such a suit would not just deal with whether doctors acted reasonably. For even if there were departures from accepted care, they would still have to prove that the delay was medically significant. All I see from the story is “months,” so much is obviously unknown to the public.

One should not presume, by the way, that just because a celebrity (or his/her family) brings a malpractice suit, that a jury will ignore evidence and side with them.  After John Ritter died from an aortic dissection, a medical malpractice and wrongful death suit was brought. While some defendants had settled, some defendants refused. And it was a defense verdict despite the big name at the center of the suit.


March 30th, 2010

Palestinian Authority Loses Another Round In NY Appellate Court Over $116M Terror Verdict

In 1996 Yaron Ungar and his pregnant wife were machine-gunned to death in Israel. Their survivors claimed that the attack was carried out by members of Hamas acting under the command of the Palestinian Authority and the Palestine Liberation Organization. In July 2004 a trial was concluded and a verdict against the PLO was entered for $116M. This was a default judgment, with the Palestinians refusing to participate.

Getting a verdict is one thing. Getting the money is another. And today the PLO and PA lost another round (having apparently decided to belatedly defend themselves).

The plaintiffs had located $100M in a New York bank that were frozen as a result of the verdict, and a battle ensued as to who the rightful owner of the funds was. The plaintiffs claimed that the Palestinian pension funds whose names were on the accounts were mere alter egos to the PA and PLO. Plaintiffs claimed, in essence, a form of money laundering being used to hide the money.

Today, the Appellate Division (First Department) ruled in Strachman v Palestinian Auth. that the issue of whether the pension funds were an alter ego or not was a jury question. The Palestinians, obviously, didn’t want this matter tried before a jury. Machine gun terror attacks don’t seem to go down so well with juries, and they obviously hoped to have a better chance with a single judge.

There was one dissent, with Justice Tom believing this was for the bench, and not the jury. Expect the matter to up to New York’s high court.

Elsewhere previously:


December 8th, 2009

Tiger Woods: One Man Bar Exam

Tiger Woods is providing a feast of legal issues as he swiftly morphs from choir boy to bad boy.  And in the process he opens up a veritable bar exam full of questions.

Since at least half of lawyering is first identifying the potential problems, let’s take a peak inside the cans of worms he opened.  Your familiarity with the facts is presumed. But since those facts are likely to change within minutes —  since the one thing the media loves more than creating heroes is destroying them, and any story will do for Tiger at the moment —  the current state of affairs is the media claiming extra-marital affairs with 6-10 women. That number changes depending on who is keeping the scorecard, but you can bet they’re all are hoping for a round of 18.

The list below is long on the criminal, matrimonial/custody and contract areas of the law, but I also see a smattering of First Amendment, intellectual property, sports and ethics.

Without further ado, and assuming many rumors as true, when some likely aren’t:

  • Domestic violence possibility;
  • Drug / alcohol related driving accident;
  • Right to silence in discussion with police (see: Tainting Tiger @ Simple Justice);
  • Drug addiction (can be an issue both for endorsements and potentially for playing golf with drugs in his system — I’m just issue spotting, I don’t know what golf’s drug rules are):
  • HIPAA violations for whoever disclosed he had overdose written on his chart when he went to the hospital after the accident;
  • Divorce;
  • Validity of pre-nuptial agreement (as well as disposition of real/personal property) given the unexpected conduct of Woods;
  • Custody of two children;
  • Custody of children if wife hauls the kids to Sweden (treaties?);
  • Taxation – While divorce settlements aren’t generally taxable,  what if a confidentiality agreement is attached to it? That  happened in Amos v. Commissioner with a personal injury claim against Dennis Rodman. (And is Woods going to re-invent himself as golf’s Dennis Rodman?);
  • Ethics, regarding lawfirms that may have leaked details of pre-nuptial agreement and/or discussions regarding modification;
  • Tiger purchasing the exclusive rights to the stories of women he has been with (a/k/a buying silence, see: JDJournal):
  • For Tiger’s Harem you can add contracts to sell stories to others, intellectual property rights regarding those stories (and photos) and the books/movies that are no doubt already being devised; and
  • Can I trademark One Man Bar Exam? And how do I put that little TM thingie in?

While Hollywood is no doubt ramping up for Tiger Woods: The Movie, I’m busy wondering about Tiger Woods: The Bar Exam.

This man could single handedly stop the bleeding of jobs from the legal sector and at the same time give law profs and bar examiners plenty to work with.

OK, so without making any jokes about his putter, or about Tiger’s Wood, what legal issues have I missed?

(Photoshopped image of “Tiger Rodman” by Dan Turkewitz)

Links to this post:

Tiger Woods and Exams?!
Have you heard enough about Tiger Woods? Well, maybe you should keep listening. Eric Turkewitz of the New York Personal Injury Law Blog writes that Tiger Woods is a “One Man Bar Exam” because of the breadth of his legal difficulty.
posted by Jenny Rempel @ December 10, 2009 10:44 AM