The New York Personal Injury Law Blog brings you the week that was:

Before starting, however, thanks to Tom Mighell at Inter Alia for making my tiny corner of the web the Blawg of the Day on Monday. That was a nice way to start the week.

Now on to some pre-litigation issues:

Starting with tort “reform” we get this heads-up from Perlmutter & Schuelke on a not-yet-published study from Baylor Law School surveying Texas judges, and their thoughts on whether juries were too liberal with awards. Here’s a hint at what the article will show: Well over 80% of the judges did not think there needed to be additional “reform” to address frivolous lawsuits;

An anesthesiologist has blown the whistle in Florida on unnecessary surgeries on Medicare patients. More at the Labovick firm’s Whistleblower Law Blog;

At Dorf on Law, Michael Dorf returns to the issue of contingent fee relationships between government and private counsel, specifically responding to a Walter Olsen piece printed in the Wall Street Journal; (and a subject I addressed in May, in a less academic fashion, at Bush Prohibits Contingency Fees for Gov’t Attorneys, with many links by Beck/Herrmann here);

Dora the Explorer and other Fisher-Price toys face a recall for lead paint, just six weeks after Thomas the Train underwent the same fate (Round-Up #17). In recent weeks we’ve also seen tainted food products, toothpaste and pet food. Want to guess what country they were all imported from? (More at ConsumerReports and The Peon).

In North Carolina a man gets the crap beat out of him (that’s a technical term) by the local police for desecrating the American flag by flying it upside down with a picture of President Bush and anti-war slogans. The police, it seems, were trying to protect the flag and all that it stands for by shredding the First Amendment. QuizLaw has the gory details. It’s not a lawsuit. Yet.

And John Day discusses the liability issues of the Minneapolis bridge collapse and the immunity issues that exist if such an event happened in his state;

And now on to litigation, including a few that didn’t make it too far…

A federal judge in New York barred a punitive damage claim in a smoker’s suit against Philip Morris, based on New York’s participation in a 1998 settlement with 46 states. Previously, a Florida judge had reached an opposite conclusion. The court also rejected a design-defect claim that had been the source of a $20M state court verdict in another case (New York Law Journal via Law.com);

John Day discusses a case being dismissed because the plaintiff had filed for bankruptcy and had failed to disclose that when filing the bankruptcy claim. Since the personal injury claim would belong to the trustee, the injured person was not a proper party. Only the trustee could assert the claim. And since many personal injury victims fall into hard times as a result of the accident, every personal injury attorney should make question, “Have you ever filed for bankruptcy?” part of every intake questionnaire;

The family of St. Louis pitcher Josh Hancock, who came under withering scorn for having brought a wrongful death lawsuit after he was killed when he crashed into a stopped tow truck, while drunk and talking on his cell phone (Round-Up #14), has voluntarily discontinued the case. The explanation is furnished by Sheila Scheuerman at TortsProf;

Roy “Pants” Pearson has now lost more than his $54M trousers. He’s lost his job (Washington Post). Let me be the first to predict he will bring a lawsuit as a result;

Suit has been filed in a Florida federal court regarding the July 17th plane crash on a Brazilian runway that killed 199 people (ABAJournal);

The WSJ Law Blog has more on the $101M wrongful conviction bench-trial verdict out of Boston, with an interview with plaintiff’s counsel, Juliane Balliro;

Every trial lawyer wonders what the jury is thinking. This juror was doodling during trial. Anne Reed at Deliberations tells us what happened as a result;

In the Uncategorized category, some bloggers aren’t happy with each other: Ogan Gurel of Life Sciences Daily lets go with his opinions on the nasty ad hominum attacks that permutate the DrugWonks blog, by using a statistical analysis (via TortsProf). Personally, I find the DrugWonks style so off-putting I often don’t get past the openings, as the attacks cloud the issues. Perhaps they have some good material in there, but it takes work to find it; And Scott Greenfield lets rip against William McGeveran at Concurring Opinions for wasting so much time in the fantasy world instead of the real one, with: Harry Potter and Legal Scholarship. Give Me A Break!

As you head home for the weekend, you might find the round-ups of others of some interest:

• David Williams hosted Grand Rounds, a round-up of medical blogs at Health Business Blog (that includes a post from me);
• David Lat at Above the Law hosted Blawg Review (that includes a different post from me);
• Jason Shafrin at The Healthcare Economist hosted Cavalcade of Risk, a round-up of insurance related issues (that includes yet two other post from me);
• And Howard Zimmerle of Quad Cities Injury Lawyers points us to The Law of the Simpsons (that, thankfully, does not include anything from me).

Enjoy the weekend.

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

The New York Personal Injury Law Blog brings you the week that was:

Before heading to the trials, let’s spend some time focusing on medical malpractice and insurance:

But before heading into that med mal world, we turn to:
The best post of the week: Bill Childs, our favorite TortsProf, points us to an invaluable resource, saying, “It’s weekly, it’s concise but still funny, and it consistently links to something I haven’t noticed before;” Walter Olson had previously discussed this same resource as “invariably worth reading,” which is to say, it seems like a site worth plugging to others;

Welcome back (you did check it out, right?) and now on to the promised medical malpractice news:

Tresa Baldas at the National Law Journal writes of the Movement Building to Abolish ‘Locality Rules’ in Med-Mal Litigation;

Michael Townes Watson discusses how North Carolina is working to strip the right to jury trials from the most badly hurt victims (at TortDeform);

And more on trial practice rules: I asked back on May 18th: Is Medical Testimony Getting A New Standard? (via John Day). The subject is a change in standards from “reasonable degree of medical certainty” to “more likely than not.” A debate has now opened up, according to Walter Olson at Point of Law, on the subject, starting with Beck/Herrmann here, with Peter Norbert responding at Blog 702 (Daubert on the Web); and then a rebuttal by BeckHerrmann here. We surely have not heard the last on the subject of the “proper” level of medical certainty an expert physician must have for an opinion to be admissible.

Dainius A. Drukteinis (MD and JD) discusses the Michigan Law Review study that shows medical malpractice juries favor doctors disproportionately to other types of lawsuits, contrary to the accepted “wisdom” that juries favor plaintiffs out of sympathy (at NY Emergency Medicine);

At Concurring Opinions, Melissa Waters opines on the sensitive issues of unauthorized pelvic exams while in the hospital;

And still with malpractice, Orac (a surgeon) at Respectful Insolence first discusses a liposuction death at the hands of a homeopath, and then delves further into “legalized quackery” with the broad range of authority given to Arizona homeopaths;

Newsday also opines on malpractice: Don’t blame victims for problems with malpractice (via TortDeform)

And on the non-malpractice front, a federal judge has thrown out as unconstitutional many of New York’s new attorney advertising rules. The State will appeal.

Now on to the litigation:

If a woman falls and shatters an ankle while trying to climb up on to a bar and dance, is the bar owner responsible? Walter Olson presents that case at Overlawyered. But if the woman was intoxicated and if the bar employees were cajoling her to do so, is the answer still as one-sided as headlines suggest?

A New Jersey man has sued Starbucks when the lip of the cup lid came off, scalding his hand with 3rd degree burns;

On to drugs: There is a Vioxx Product Liablity Litigation Update Report by Tom Lamb at his Drug Injury Watch that is chock full of information on the state of Vioxx trials if you want to play catch-up. And this interesting bit: Pharmalot reports that two governors have been subpoenaed to testify at a Vioxx trials. Find out why at the link;

In New York, the fiancee of Sean Bell, shot more than 50 times by the NYPD, has brought suit (via Quizlaw);

Bill Childs brings us the story of an Iraq war veteran who committed suicide after coming home with Post-Traumatic Stress Disorder, and his family has now sued the government. Colorado Confidential picks up the story on how PTSD could do that;

From the land of verdicts, Bill (who acts as amusement park guru in his spare time) also brings us a bizarrely bifurcated trial where damages were tried before liability;

Returning to malpractice, a New York appellate court tossed out a case against an obstetrician that was late for a delivery (via New York Law Update). One of the weird parts about this is that the law firm apparently representing the plaintiff-respondent is a well-known local medical malpractice defense firm, Kopf, Nardelli and Dopf;

The LaBovick Injury Law Blog brings us a $40M verdict out of Florida on a Ford truck accident;

Also from Ford and Florida, a $6M verdict in a rollover accident (ABAJournal)

And yet another verdict from Florida, a $21M verdict in a wrongful birth case for failing to detect a genetic defect (from EyeOnDNA);

Robert Ambrogi reports on a $101M verdict for wrongful conviction in Boston;

And in case you missed it, Notre Dame head football coach Charlie Weis was sacked for a loss in the medical malpractice trial he brought against the physicians who did his gastric by-pass surgery. Kevin, M.D. follows up by letting us know that Weis wasn’t all that pleased with how it turned out;

From the land of post-verdicts, a New York man shot by the police has his multi-million dollar award thrown out by an appellate court. For the second time. The decision is here: Barnes v. City of New York;

More the issue of the taxability of mental anguish awards (from John Day courtesy of Sylvius von Saucken at The Garretson Firm) that I previously discussed here: Are Emotional Injury Recoveries Tax Exempt? An Appeals Court Dumps Its Own Opinion and about 3/4 the way through Personal Injury Law Round-Up #20;

And from the land of the Supreme Court, Ted Frank does a review on behalf of the business-oriented American Enterprise Institute on the term just concluded: The Roberts Court and Liability Reform.

And finally for the weekend:

• Blawgletter goes for funny at Blawg Review #118;
• New York State Supreme Court Justice Emily Jane Goodman, in Shackled to the Courthouse, blogs on the loneliness of being a judge in New York (at Judicial Reports);
• Monkey Girl shows there’s more than one way to do a round-up with Change of Shift;
• Grunt Doc tells us how Dick Cheney was almost on the hook for medical malpractice;
• Scott Greenfield at Simple Justice with a terrific essay for small firm and solo practitioners: Why We Don’t Belong in Biglaw. And yes, it’s for BigLaw people too, though they probably don’t read Scott’s blog or mine. Best line: “It takes years to learn to wear a pink shirt properly.”

Enjoy the weekend.

(Eric Turkewitz is personal injury attorney in New York)

The New York Personal Injury Law Blog presents the week that was:

Before heading to the trials, let’s spend some time focusing on the issues of risky conduct and tort “reform:”

Topping the wee-bit-too-much-risk department: A father takes his 10-year old son for a run with the bulls in Pamploma (via QuizLaw);

Since defective products are often the subject of injuries, Lowell Steiger at Los Angeles Personal Injury Blog brings us a link to a new government website that provides links and recall information from six different government agencies;

And more from Texas on their tort “reform” that, I noted in last week’s Round-Up, has now encouraged more doctors to come to Texas. Kevin M.D. points to the benefits of fewer lawsuits, while Stephanie Mencimer at The Tortellini tells us about the convicted sex felon who is now a practicing Texas physician. In the same vein, Ronald Miller at the Maryland Lawyer Blog discusses a West Virginia physician that has 120 malpractice suits against him, and who has just stopped practicing there and changed his name. Will he try to restart his practice elsewhere, and if so, which state is most favorable for him?

The American Constitution Society For Law and Policy Blog has a report on how the U.S. Supreme Court is blocking the courthouse door by making it dramatically more difficult, if not impossible, for ordinary Americans to have their day in court. U.S. Solicitor General Paul D. Clement agrees, as he discussed in a speech in Philadelphia on Tuesday (via How Appealing);

Bill Childs at TortsProf has the story of the California Supreme Court invalidating waivers for gross negligence (via Point of Law), keeping at least one courthouse door propped open; He also reports that there may be an immunity deal surrounding The Big Dig in the works;

David Williams at his Health Business Blog provides an update of the Veggie Booty recall, part of a spate of medical and food issues resulting from goods imported from China; The Consumerist live-blogged the Senate hearings on the Chinese Poison Train; and Bill Marler starts a suit in New York, where the plaintiff had simply asked for an apology and been denied;

Sheila B. Scheuerman, also at TortsProf, brings us a report that Avandia side effects have tripled (See also Pharmalot); This comes at the same time that Avandia’s maker, GlaxoSmithKline, is sending out threat letters to attorneys who are advertising for clients (Pharmalot); (See also TortsProf on Avandia spam and my post on the potential ethical issues involved);

David P. Lowe of InjuryBoard:Milwauke Personal InjuryLawyer reports on yet another amusement park fatality, this time in Wisconsin;

Now on to some litigation:

The widow of slain Wall Street Journal Reporter Daniel Pearl filed a federal lawsuit in Brooklyn against the terrorists suspected of killing him and one of Pakistan’s largest banks. (Sharon Cobb)

In the picking a jury department: Ken Shigley at Atlanta Injury Law and Civil Litigation Bloghas new data on public opinion and jury selection. Of course, that presumes we have a jury to pick. Anne Reed asks, Is The Jury System Dying over at Deliberations, positing some reasons why we see fewer trials today, and following up with Clients, Choices and the Jury System;

Working with one of Anne’s posts, Howard Zimmerle at QuadCities discusses the dangers of over-reaching with your claims, in What Jurors Think of Your Personal Injury Claim;

Judicial Reports reports (in its 2nd item at this link) that the World Trade Center litigation list grew yesterday as three rescue workers announced they will sue the city over Mayor Bloomberg’s allegedly “squandered” attempts to use the $1 billion insurance fund for 9-11 victims to help rescue workers who filed work-related injury claims; TortDeform has more on this after the filing of suit;

In verdicts, a practicing physician and mayor has lost a medical malpractice case (Kevin, M.D.)

After the money is in, there could still be problems. Especially if you are Houston attorney John O’Quinn. Ted Frank at Overlawyered reports that he has to refund at least $35M (plus interest) to his breast implant clients. He follows up a day later with a copy of the decision; According to Robert Ambrogi, by the way, Walter Olson’s Overlawyered may have been the first ever legal blog;

While on the subject of lawyers, Ken Shigley asks a question I’ve never heard: Are trial lawyers sharks, wolves or sheep dogs? You have to read Ken’s piece to find out;

In the settlements department, the Archdiocese of Los Angles agreed to a whopping $660M settlement for over 500 victims of sexual abuse by priests (USA Today Opinion, also at MassTorts Litigation Blog, RomanCatholicBlog, and LiberalCatNip, among many others;

And finally, Blawg Review #117 was hosted this past week by Austin Criminal Defense Lawyer Jamie Spencer.

Enjoy the weekend.

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

The New York Personal Injury Law Blog presents the week that was:

Before heading to the trials, let’s spend some time focusing on the issues of risky conduct and tort “reform:”

Historic Rye Playland in Westchester County, New York has seen three deaths in three years , including one last month. With that in mind, TortsProf and amusement park afficienado William Childs points to a story in the New York Post about a spot check done by the paper and some very unhappy findings;

Also in the lawsuit waiting to happen arena, Seth at QuizLaw gives us one truck driver with 131 accident claims in six months;

At Overlawyered, guest blogger Ron Coleman notes a stampede of doctors to Texas in the wake of tort “reform” that places sharp limits on recoveries. Imagine that, the government steps in to give varying degrees of immunity and protections to tortfeasors, and people rush in to the protected palace of immunity. Ironically, the post is captioned “Free Market Magic,” despite the quite obvious protectionism of government that does exactly the opposite (also at Kevin, M.D.);

And since Texas tort “reform” is being discussed, I might as well point out that one unwitting loser in the deal could be small Texas businesses, as explained by Austin practitioners Perlmutter & Schuelke;

Quad Cities Lawyers has blogged on an 8-minute video on tort “reform” that includes industry being the guiding force behind the faux movement, the McDonalds case and Pants Pearson;

At Trial Ad Notes, Mary Whisner reports on a study that concluded that the Illinois tort system does not appear to be the cause of the undisputed fact that doctors’ liability insurance premiums showed dramatic rises (via Deliberations);

And since we are on the subject of doctors, let’s turn to electronic health records, who some had hoped would lead to improved medical care. But according to Theo Francis at the WSJ Health Blog, computerized records aren’t much better than paper;

And it seems that the world of ambulance chasing has reached new depths, with David Bershad of Milberg Weiss & Bershad pleading guilty to conspiracy to obstruct justice. (Other blog posts at the link);

Before going on to trial, I note that a Canadian woman died from using counterfeit drugs. Also, Chinese food and drug chief Zheng Xiaoyu was executed for bribery related to unsafe products. This gives me another opportunity to urge Congress to pass Tim Fagans Law, to make our drug supply chain safer;

Now on to some actual trial stuff:

As we pick a jury, we often hear excuses for why people can’t serve, inlcuding this one from a personal injury attorney in one of my own jury pools. The Legal Reader brings us an even more extreme example, so bad that charges may be brought;

Howard Zimmerle of Quad Cities Injury Lawyers blogged on a UK study done on the “value” of life lost in wrongful death cases;

Michael Sung at Jurist reports that Judge Alvin Hellerstein in the Southern District of New York has scheduled trial for six wrongful death lawsuits related to the September 11th attack; (also at Sui Generis)

And from the Department of Verdicts:

A federal jury in West Palm Beach, Fla., has awarded $5.5 million to the estate of a young West Palm Beach man who died from an overdose due to the malfunction of a popular prescription pain patch (Duragesic) manufactured by two Johnson & Johnson subsidiaries. (Daily Business Review via Law.com, See also Cuban & Reyes Blog, PharmaGossip, and InjuryBoard: West Palm Beach Personal Injury Lawyer)

After a defense verdict in a lead paint case, David Lowe of InjuryBoard:Milwaukee Personal Injury Lawyer adds to the blawgospheric discussion of governments that hire outside counsel on a contingency basis. Suffice is to say, there will be no caterwauling about the legal fees the government needs to pay this time.

(For those interested, there is a long analysis of the concept of using outside counsel by Michael Dorf at Dorf on Law, an analysis directly at odds with this April 6, 2007 blog by Beck/Herrmann😉

TortsProf has the jury verdict in a suit against basketball star Allen Iverson’s bodyguards;

This New York medical malpractice verdict comes courtesy of doctor-attorney Dainius Drukteinis, from NY Emergency Medicine, and involves the amputation of two fingers and delays in the ER with respect to contacting orthopedics for reimplantation surgery;

With a verdict in hand, we wonder about the tax consequences of the pain and suffering part, a subject I covered at that link on January 12th of this year based on Murphy v. IRS in the Court of Appeals for the District of Columbia. The panel has now reheard the matter and upheld the prior determination that the award is taxable. There are several opinions on the subject at the TaxProf Blog;

From Thomas Swartz at New York Legal Update, an appellate court reverses a malpractice award against a psychiatrist that had resulted after a patient committed suicide;

Before leaving the courthouse, we’ll let two attorneys reflect on the end game, with Scott Greenfield at Simple Justice discussing his passion for the win in Fighting Form, and Ronald Miller lamenting in Losing at the Maryland Personal Injury Law Blog. The fact is, anyone who tries tough cases for a living will undoubtedly lose some, but that intellectual response doesn’t really ease the pain;

And finally, Seventh Circuit Judge Terence Evans is Talkin’ Baseball in a suit involving George Brett and a “stealth” bat. (Type in “Brett” at this link to find the case.) How many other judicial opinions have cited a clip of the infamous pine tar incident on YouTube? (Via How Appealing);

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

The New York Personal Injury Law Blog presents the week that was…

A shortened version due to the holiday week. But before heading over to the courtroom for a few interesting suits, let’s look at risky conduct that leads to lawsuits and check to see that the courthouse doors are open:

Since we start with risk, let’s peak in at the Consumer Products Safety Commission and their list of recalls for the month of June. (via Consumer Law & Policy) Anything you bought on that list?

Tort “reform” issues usually find a place at the beginning of these round-ups, so we turn to Michael Townes Watson at TortDeform to discuss the detrimental effects of medical malpractice caps in Texas;

In the world of drug lawsuits, the issue of federal preemption comes up as defendants try to gain immunity for their pharma clients by claiming federal law trumps state law, and that FDA approval grants immunity to their clients. As Byron Stier at the Mass Tort Litigation Blog blog points out, the Vioxx judge in the multi district litigation has rejected that claim of immunity;

And finally, before heading into the lawsuit section, a study finds that 20% of hospitals give bad emergency room advice on strokes, heart disease and other cardiovascular conditions (via The Medical Quack):

A look inside the courthouse:

Bill Marler weighs in with the first lawsuit concerning salmonella poisoning arising out of Veggie Booty;

When I reported in last week’s Round-Up on the Starburst Fruit Chew lawsuit I called it “pathetic” and wrote, “hope the attorney who took this wasn’t counting on it to make the rent.” Well, John Day is not nearly as nice as I was about that, shredding the plaintiff’s lawyer who brought that frivolous suit. Sadly, because the attorney doesn’t have a web site, I am unable to Google Bomb his site by linking the words “frivolous lawsuit attorney” to it;

Perhaps the most unusual, but I think inevitable, suit is the one where a mother sued over her son’s 90-minute execution (via Above the Law).

With a verdict or settlement in hand, our client wants to know which parts he has to pay taxes on. For personal injury suits, we know that pain and suffering awards are tax exempt since they merely replace that which was lost, as opposed to being income. But Andrew Bluestone at the New York Attorney Malpractice Blog tells us of one appellate court that believes a recovery for mental anguish is taxable;

And finally, a woman who almost died from a bikini wax (via Kevin, M.D.)

Hope your holiday week was as good as mine.

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