Category Archives: Personal Injury

 

June 8th, 2007

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


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

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

My thoughts on the Complaint:

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

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

A quote from Bork, from Bloomberg news:

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

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

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

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

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

Addendum:

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

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

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

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

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

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

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

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

A sampling of some other commentary:

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

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

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

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

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

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

 

May 17th, 2007

Burger King Sued Over Trans Fats


The Center for Science in the Public Interest filed suit yesterday against Burger King seeking an injunction to stop the use of deadly trans fats in frying and cooking its food, or alternatively, forcing the company to disclose to its customers prior to purchase of the food that it contains trans fats. A copy of the Complaint is here.

According to Stephen Gardner at Public Citizen’s Consumer Law and Policy Blog,

Burger King is at fault in two different ways. First, of course, is the fact that Burger King is the only top restaurant chain that has not either eliminated trans fats or is making sincere and significant steps in that direction. All Burger King is willing to promise is that, by the end of 2008, it will start the process to get rid of trans fats. They want their customers to pay the price of their foot-dragging.

Second, while it is creeping along in its purported efforts, Burger King doesn’t want its customers to know that it still uses trans fats. It wants to complete with places like KFC and Wendy’s, which have gotten rid of trans fats, but it doesn’t want to compete fairly.

The suit is premised on

  1. Deception and misrepresenation, and
  2. Breach of implied warranty of merchantability.

 

May 7th, 2007

New York Verdict On AIDS Phobia Reduced By Appellate Court


In a 3-2 decision, the New York Appellate Division, First Department has reduced an AIDS phobia award from $592,500 to $250,000. The decision is dated May 3rd.

The plaintiff, while working as an extern at a clinic operated by defendants-appellants, pricked her finger in the course of discarding a needle she had used in attempting to draw blood from an HIV-positive patient. (Further details on how it happened are not in the decision). Subsequent tests for HIV infection all yielded negative results.

Plaintiff asserted claims against defendants for the psychological injuries she suffered due to her fear of contracting AIDS as a result of the needle-stick incident. The jury awarded her $650,000 for her fear of contracting AIDS during the first six months after the needle-stick incident plus $100,000 for post-traumatic stress disorder stemming after the end of that six-month period. Due to a settlement with one defendant that had been held 25% accountable by the jury, that award was reduced by the trial court by to $487, 500 for the AIDS phobia.

But the appellate court did two things: First, it knocked down the $487,500 award to $250,000, because it thought the the “jury’s award for AIDS phobia during the six-month period at issue deviates materially from what would be reasonable compensation.” (For more on the subject see How New York Caps Personal Injury Damages.)

More contentiously, it wiped out the $100,000 award for post-traumatic stress disorder, since the plaintiff didn’t test HIV positive after six months.

The elimination of that award was apparently based on the idea that, because only 5% of people will test positive within 6 months of exposure, the injury may not be genuine. The court, in other words, tries to create an objective standard for an inherently subjective human response.

But a well written dissent points out after an analysis of the case law regarding the proof by which emotional distress will be determined as “genuine” or “substantial,” that “Genuineness… is clearly and appropriately a question of fact, not a matter of law.”

Addressing the attempt to create an objective standard for an emotional injury that is subjective in nature, the dissenters wrote:

that statistical results cannot speak to the actual mental state of the individuals being tested. Nor does the majority apply any legal standard found either in the common law or statute in determining that a plaintiff is not entitled, as a matter of law, to compensable damages for psychological harm beyond a fixed period of six months. I submit once again that no such legal standard exists.

With a 3-2 division in the appellate court, the matter is ripe for appeal to New York’s Court of Appeals.

The case is Sims v. Comprehensive Community Dev.

Addendum, 5/9/07 — Law.com has a story from the New York Law Journal on this, ‘Fear of AIDS’ Award Vacated by N.Y. Court

 

April 30th, 2007

How, Exactly, Did That Elevator Accident Occur?


Another lawsuit where good vetting of the client and factual circumstances did not occur:

After being stuck in an elevator, an inebriated passenger decided to take matters into his own hands, pried the doors open and tried to jump or climb out. The elevator was well lit and other passengers had told him help was on the way.

Remarkably, this poor factual circumstance was his second version of events. The first had claimed that the elevator’s fifth floor door opened but the elevator was not present, causing him to fall down the elevator shaft. The problem was that this was negated by plaintiff’s own expert neurologist, who averred that plaintiff’s recollection of the events “may not be reliable” and that plaintiff admitted that he cannot recall the circumstances of his fall.

What seemed to be lacking here was a basic investigation of the facts before putting this loser into suit. Case dismissed by the Appellate Division, Department in Jennings v 1704 Realty, L.L.C..

 

April 30th, 2007

Action Allowed On Down’s Syndrome Baby


This New York medical malpractice action was brought for a baby with Down’s Syndrome, for the extraordinary expenses of raising the child. (An action for “wrongful life” is not allowed on grounds of public policy.)

Defendant moved for summary judgment based on the existence of Medicaid to pay for the child’s care. The Appellate Division, First Department, said no way:

[T]he availability of Medicaid should not operate to preclude the recovery against the tortfeasor any more than the availability of health insurance under similar circumstances. We noted as well that such cost should not be borne as a public expense where judgment may be recovered against the culpable party.

The case is Mercado v Institute for Urban Family Health.