September 24th, 2010

Walking the High Wire At Trial (Defendant pulls offer with jury out, but verdict not what they thought…)

The jury came back quickly. And that is usually bad news for the plaintiff. Fast verdicts usually mean the plaintiff lost on liability, so there was no need to discuss damages. That is what most people, who have stood in the well of the courtroom, would conclude.

But this week in the Bronx it was wrong. When the jury sent back the note that they had reached a verdict, the defendant revealed it was pulling a $750,000 offer off the table. And the verdict was $3,500,000.

After hearing the story through the grapevine, I contacted plaintiff’s counsel Peter DeFilippis. And he gave me the inside story of this case that had appeared as the lede in an article in the New York Post in 2004, regarding patients being hurt by hospitals understaffing nurses: Plaintiff Loric Stothart nearly lost his left foot after it was burned in the hospital by a post surgical compression/heating boot. He pressed the help button for nearly 20 minutes before a nurse arrived and the device was finally cut-off of him. After several skin grafts and a vein transplant he now walks with a cane. His expert testified that the use of this device was contraindicated for this patient in the first place.

According to DeFilippis, his trial man on the scene, Conrad Jordan, relayed that the note came back from the jury. Jordan wanted to make sure he knew exactly what was, or was not, on the table, and asked for the note to be held while this was firmed up and a final decision could be made. It was at that point, with a note in the hands of the court saying a verdict had been reached, that the defendant announced the offer was being pulled.

There are some who think that trial lawyers, for the most part, file suits and get paid quickly, doing little work. It’s an “easy money” theme that runs through some members of the press and commentariat.

But that isn’t how life or the law works. I’ve yet to meet a defense lawyer or insurance adjuster who believed that they were potted plants that were supposed to sit still while a plaintiff makes claims. They fight, fight hard, and have the enormous financial backing of multi-billion dollar insurance companies to make big bets (like pulling offers when the jury is coming back) and take risks that mere mortals are unable to handle. Plaintiffs’s attorneys, by contrast, foot the bill for often tens of thousands of dollars out of their own pockets based on the belief that a rational jury will act rationally and compensate the injured, and that they will get paid back and earn a fee.

I have to imagine that, when the 750K offer was pulled in this case, that the plaintiff’s heart sunk to the floor. Unless the plaintiff was independently wealthy, this was likely a financial gamble unlike any he had seen in his life.

I’ve settled several cases while the jury was out. It’s a tough spot to be for individuals as they are asked to make what might be life-altering decisions right there on the spot. And they must do so through the prism of injury and heartbreak that brought them to that point.

Want to know half the game of being a trial lawyer? Stress. With the pad by the bedside at night, we lay awake thinking of the questions we should ask, or failed to ask. Not because we want to lay awake thinking about it, but because the brain won’t shut itself down. And we hope in the end we’ve made the right judgments so that our clients can have some degree of piece of mind. And we go through the trial, and sometimes the settlement negotiations, walking a high wire without a net to catch us if we’re wrong.

And when all is said and done, someone with no knowledge of how the law works will trash talk the lawyers, fantasizing that it’s some easy little game where insurance companies just throw money at you.

September 3rd, 2010

Blame the Lawyers (Playground Edition)

Our back yard family swing set, circa 1967

My brothers and cousins, circa 1967

In a post at Overlawyered, Walter Olson notes an article that says swings sets have been removed from a playground “in part because of lawsuits over injuries.” A West Virginia school district had just settled a suit over an injured child for $20,000. The key words from the short blog post? “In part.”

You see, an examination of the article reveals that the surface wasn’t safe. So let me summarize this post before you read the rest:

Surface not safe
Child injured
Blame the laywers

Now let’s pick up where I left off, with the second link; an editorial to the business-minded Investors Business Daily. After relying on a few anecdotes to support its position that lawyers are clearly to blame for children being miserable, the paper starts quoting “authorities”:

“There is nothing left in playgrounds that would attract the interest of a child over the age of four,” Philip K. Howard, lawyer and author, wrote in the Wall Street Journal in 2008.

And then there is similar quote from Olga Jarrett, a Georgia State University professor, from remarks given to (surprise!) a tort “reform” group:

She blames “a fear of lawsuits that makes some school systems and cities design playgrounds that are completely uninteresting to kids.”

Oddly enough, my kids have no problem finding things that attract their interest on the playground, and they are clearly past the age of four. But then, my kids are looking to play, not looking to score political points in the debate over tort “reform.”

The editorial says that “America’s litigious society has changed the way kids play.” Well, yes and no. They still use the monkey bars the same way. But they aren’t doing so over a concrete surface, are they?

In the parks we’ve gone to over the past years, we’ve seen an abundance of swings, slides and things to climb on and scamper over. I see happy faces running up, over and around equipment that was far safer than the public parks I went to as a kid. The only thing I see missing from my youth is the merry-go-round you stood on that others would spin ’round and ’round ’till you puked or were catapulted off onto the concrete. I know, some people liked to see their kids in danger.

Perhaps Investors Business Daily would like to return to the days of dangerous products, exploding Pintos, crippled children and Dalkon Shields. Perhaps. Unless, of course, the family member of one of the writers was hurt. Then, I’m sure, they would be singing a slightly different tune, like so many others.

Now about that photo of the kids on the swings you see up at the top right? That is a Turkewitz family photo shot by dad around 1967 in our backyard. I’m the kid in the red pants furthest from the camera, with my brothers and cousins scattered about. And note the soft surface my father installed. Even way back then we knew that you don’t want kids playing on equipment over dangerous surfaces.

May 6th, 2010

Starbucks Hot Tea Lawsuit: Merit or Not?

The case popped up yesterday when it was reported in Reuters: Suit was brought against Starbucks because a woman was scalded by tea. With no facts other than the bare bones Complaint, the writer then jumped in to discuss the Stella Liebeck McDonalds coffee case.

Once in the hands of Reuters, it went to the Gothamist. If you Google Starbucks hot tea case now you will see no shortage of stories on it, including HuffPo, CBS and the UK’s Telegraph. The story has gone international.

Ted Frank picked it up at Overlaywered. Frank, however, cautiously withheld his opinion because the Reuters article “fails to indicate sufficient facts to determine whether [plaintiff’s] scenario reflects injuries from a spill that was her own fault or the fault of Starbucks.” David Lat mocked it at Above the Law, asking of Frank, “Where’s the outrage?”

Facts, facts, facts. That’s what makes and breaks lawsuits.

So I called plaintiff’s counsel, Elise Langsam. She’s been practicing 30+ years and has handled her share of scalding cases, often from showers where the landlord failed to set the water temperature controls properly. I wanted to know what actually happened with the Starbucks tea.

Here’s the deal. The plaintiff is Zeynap Inanli, a pro tennis player. Pro athletes aren’t generally the type of people that trip over their own two feet. And she didn’t.

The tea was bought at Starbucks near Grand Central Station on Lexington Third Avenue. The barista — coffee house devotees love that pretentious name for a counterperson — put the lid on, but didn’t put it on tight. As Inanli walked with the tea, that lid popped off and Inanli’s arm was scalded with the contents.

Inanli was admitted to the Weil Cornell Burn Unit for five days as a result.

Combine unsecured lid with the fact that the tea was so hot it caused second degree burns to the arm of the tennis player, and you have the elements of an action. So, two simple facts are at play: The failure to secure the lid and the scalding temperatures.

As Langsam told me, “You don’t put molten lava in a cup with a loose lid.”

Will Starbucks say otherwise when they answer the lawsuit and ramp up the press machine? I would expect so. That’s what defense lawyers and press flacks are paid to do. So one day, assuming that Starbucks has a competing set of facts, it will get presented to a jury who will look the witnesses in the eye and try to determine fault. Maybe one, maybe the other, maybe a little bit of both. What will the result be? I don’t know, I didn’t see it happen and I won’t be on the jury.

But is this the making of an article in Reuters and a growing news story? I wouldn’t think so. The unsecured lid seems like run-of-the-mill negligence. The scalding hot tea might be a local store problem, or a company-wide problem, but only time (and discovery) will tell with that. If it’s a company-wide problem with plenty of past complaints, then maybe there is news. But I don’t see it yet. [Addendum: Here is a particularly moronic report from Lisa Mateo at WPIX in New York, who did man-in-the-street interviews without bothering to find out how the incident happened. That’s journalism?]

All in all, seems like a painful problem for the plaintiff, but most likely a rather simple fact pattern. The complaint is here:Inanli-v-Starbucks-Complaint

Update: The Media’s Failure in the Starbucks Hot Tea Lawsuit

April 23rd, 2010

The Limits of School Liability

The Appellate Division (Second Department) has a nice decision this week discussing the limits of school liability on a playground. (Armellino v. Thomase) Sometimes a school may be liable for injuries, and sometimes not.

First, the facts: The third graders were at recess, and were permitted to separate from their other classmates. No recreational diversions were provided. The injured kid testified that he and his classmates began throwing pieces of asphalt from the track at each other. While this is obviously prohibited by school regulations, the teacher(s) assigned to supervise recess failed to notice or halt the activity. The incident escalated, the kid pulled another boy’s shirt over his head and ran away. He was chased, pushed down, broke his leg and had several surgeries.

Under this fact pattern, the school wanted summary judgment, claiming that there were no issues for a jury to decide. ‘Twasn’t our fault, they hollered.

Not quite so, said the court, defining the point thusly: Schools have a duty to “adequately supervise the students in their charge” and are subject to liability for “foreseeable injuries proximately related to the absence of adequate supervision.”

Schools, of course, are not the insurers of the safety of their students, “perfection in supervision” is not required, and schools are not liable for “every thoughtless or careless act by which one pupil may injure another.” Although a school must “take energetic steps to intervene…if dangerous play comes to its notice while children are within its area of responsibility” “school personnel cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among students daily.”

Thus, a student’s injury that is caused by “the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act.”

Because this particular case has a mixture of problems, kids chucking asphalt at each other, as well as a lack of supervision, it is left to the jury to sort out the facts of what actually happened.

March 21st, 2010

Health Care Bill: Benefits For Personal Injury Victims

The health care reform bill should be a big benefit to personal injury victims. Traditionally, those people most put at risk after accidents were the middle class uninsured. Poor people have Medicaid to fall back on and others have private insurance. Now there will be an additional 32 million with coverage.

While in theory auto accident victims have had No-Fault insurance in New York to protect them, and the bill shouldn’t matter, that is theoretical only. In New York, insurers have long enjoyed a reputation for cutting off benefits to victims after sham medical exams by “independent” examiners hired by the insurance companies. These doctors are anything but independent. Victims are often told that they aren’t injured, despite the pain they are in and their restrictions of motion. Or that the pains that they have are “preexisting” despite the fact that they felt fine before the accident.

Medical malpractice victims, of course, don’t even have the No-Fault.

So with more of the victims covered by their own insurance, we are likely to see these positive effects, the first of which is obvious and the second two more subtle, but most definitely important:

First: People that were previously left to the mercies of existing no-fault laws and the spotty medical care that they provide can continue to get care and, to the extent treatment benefits the quality of life, be healthier.

Second: If an individual believes others are at fault and starts a lawsuit, the injuries that they suffered will be documented by treating medical practitioners. Currently, if a patient stops treating, that is an issue that defense attorneys love to harp on in front of juries. Without having their doctors treating them, plaintiffs must tell juries that the reason they aren’t treating is that they can’t afford it. And with that, their credibility can be attacked, which is far easier than attacking the credibility of multiple physicians, because the plaintiff is an “interested party” in the outcome of the suit.

Third: The existence of continuing health care hamstrings liability insurers that oft times will rush in to accident victims with low ball offers before they have consulted with attorneys. When there is no other insurance or No-Fault gets cut off, and a victim that may not be able to work, a $5,000 offer may be desperately needed money. With the injured already knowing they are covered, they won’t be as vulnerable, and will be in a better position to sit back and objectively evaluate their situation.

So, all in all, this is a good situation for those who have been injured, beyond the most obvious point of simply being able to obtain health care.