November 6th, 2008

Bush Dog Bites White House Reporter (Can Bush Be Sued?)

Barney bit someone. Not Barney the purple dinosaur. Barney the White House dog, a Scottish terrier. The victim was Reuters reporter Jon Decker, who must now live down the fact that he was even covering the pooch to begin with. He received medical attention and antibiotics from the White House doctor because the skin was broken.

But let’s leave aside the cute comments about Barney being upset by the election, lame duck dogs and Carl Rove as dog trainer, and cut to the real issue: Can Decker sue President Bush for the dog bite? Each state has different rules.

In New York, as it happens, our highest court dealt with the subject this year in Bernstein v Penny Whistle Toys, Inc. The bite took place, not at a home where these things usually happen but, in a store. The eight year old plaintiff had stopped to pet, hug and kiss Scooter, a Labrador mix, and he bit her on the cheek. She took 40-50 stitches on the outside. Scooter — no relation to convicted Cheney aide Libby — had no prior history of growling, jumping, biting or otherwise abusing people in the past.

Now the rule has been for almost 200 years, according to the majority opinion of the lower appellate court, that in order for a victim to recover from an animal’s owner, s/he must show that the dog’s owner knew or should have known of the dog’s “vicious propensities.” If the victim could prove this, then strict liability applied to the dog’s owner.

But the circumstance of this happening in a store raised a novel issue for the appellate court below that resulted in a split decision. It wasn’t a matter of dog ownership, but the responsibilities of an owner of a business to keep it safe for customers. The dissent argued that a plaintiff might prevail under a premises liability theory using general negligence as to the store owner instead of strict liability that applies to dog owners. In colorful writing, Justice Saxe wrote of the foreseeability of such an incident:

Defendants … own and operate a business, the primary purpose of which is to sell its wares to and for children. It is necessarily their goal to attract children into the store as customers. It may be assumed that, especially in the summertime, many of those young customers will arrive in the store holding or eating ice cream, custard, or other sweets or foods. Similarly, it is quite likely that a dog, otherwise perfectly friendly and well behaved, might experience an instinct to sniff out and attempt to obtain and consume a morsel of food or something sweet that was placed in close proximity.

The Court of Appeals rejected the reasoning of that dissent, and summary judgment was granted for the store owner. The rule that an owner must have notice of the vicious propensities — also known as the “every dog gets one bite” rule– remains in effect.

So is Barney a dangerous dog that has bitten or threatened before? Yes, in fact, he has, which may come as no surprise to Bush bashers. President Bush owns a dog with known vicious propensities — he has bitten White House visitors before according to this ABC News story:

On West Wing White House tours, visitors are not permitted in the Rose Garden if Barney is outside because he has bitten visitors in the past.

If this happened in New York, therefore, Bush would no doubt be in deep doo–doo for injuries Barney inflicts.

Of course, this happened at the White House. So we turn to D.C. doggie law, albeit only quickly since, well, the guy wasn’t bitten too badly and he’s probably more embarrassed than anything else. So there’s only so far I’m going to go with this. But here goes…

In Washington D.C. our humiliated Reuters reporter also has a case. Because, according to D.C. Code section 8-1808:

“[n]o person who has control or custody of a dog shall, direct, encourage, cause, allow or otherwise aid or assist that dog to threaten, charge, bite, or attack a person or other animal…”

This apparently brings on the presumption of negligence against the dog handler, assuming the accuracy of this website. In this case that means a White House staffer. (Whether suit would be against the government under the Federal Tort Claims Act for employing the negligent dog handler, or against Bush personally for owning the vicious dog, is an interesting question, but one for another day.)

It’s also worth noting that, because the dog has bitten before and wasn’t muzzled, that things look pretty good for our reporter as plaintiff. Though I’m guessing he would have preferred not to be bitten to begin with.

But there seems to be one other little catch to our proposed lawsuit. In Washington D.C., if a victim is even one percent responsible for the injury, s/he apparently can’t recover. Was the reporter at least one percent responsible for bending down and petting Barney?

For that we return to the story from ABC News that notes that reporter Decker first asked the dog handler if he could pet Barney, and did so only after getting the go-ahead. Given that the dog had known “vicious propensities,” as lawyers like to say, that was a pretty big no-no.

So, it seems, our reporter has a case. For small claims court. Very, very small claims court.
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Update, since I know you are all dying for more on this breaking story:

Barney The First Dog Strikes First Republican Blow Against Corrupt And Biased Media (Start Thinking Right)

Barney Bites Reporter (RightPundits.com)

First Dog takes a bite at White House reporter (CNN Political Ticker)

Barney Speaks Out (An Interview with the First Pooch)

One Free (Presidential) Bite Rule: Bush’s Dog Barney Bites Reporter (Jonathan Turley):

The Scottish terrier bit Reuters reporter Jonathan Decker in a dream of any personal injury lawyer: a well photographed, unprovoked attack. The greatest danger to Decker was being crushed by the hundreds of lawyers on nearby K St, rushing to give him their business cards.

Barney Bush: “I’ll Take Off His Ear Next” (Comedy Central)

“Yeah, that’s right, I drew blood,” said Barney, interviewed after the “accident.” “Look, I’m eight years old. You do the math. You know what I’m saying? I’m on the Zoloft to keep from killing y’all!”

November 2nd, 2008

Target Hit for $3M in Defamation Punitives (And Tort "Reformer" Sees Opportunity)

This is two stories in one. First, a Target store down in South Carolina falsely accused a woman of using a counterfeit $100 bill. She sued Target and won $100K in compensatory damages and Target was hit by the jury with $3M in punitive damages. Then Ted Frank at Overlawyered decided this would be a good fit for that site, but the facts he used didn’t seem to fit the story. If you want to see how some lawsuits get turned into urban legends, this might be a good example to follow.

First the suit, which comes via Turley, citing a local news story:

Rita Cantrell of Greer went to two Target stores in the Greenville area in Feb. 2006, and both times employees accused her of using a counterfeit bill. Cantrell tried to buy items at the store and pay with an older series $100 bill.

[A Target] store employee sent out an e-mail to dozens of other retailers and law enforcement agencies warning them that Cantrell was a shoplifter who tried to spend bogus cash. The e-mail also included Cantrell’s picture.

According to Target’s own brief in their failed motion for summary judgment, Ms. Cantrell visited a Target store (just one store, not two as in the news story above) where a counterfeit was suspected. They declined to take the money when offered and asked her if she had another form of payment. She shook her head no, took the goods out of her basket, and walked out of the store. Then came the accusatory email.

The problems were that the bill was legit, and the email also went to her place of employment. And Target didn’t identify the money as a “possible” counterfeit. No sirree. The email said “The lady pictured attempted to use a counterfeit 100 dollar bill today.” So the accusation was unambiguous. (See Order denying judgment.)

The Secret Service was called in, verified the money as real, and Target was sued for the embarrassment and humiliation that Ms. Cantrell suffered, with the jury ordering 100K in compensatory damages and $3M in punitives.

From the original article came this response: Target spokeswoman Bethany Zucco said Friday the company will challenge the ruling.

“We are extremely disappointed by the magnitude of the compensatory and punitive damages awarded by the jury in this case,” Zucco said in a statement. “We sincerely regret any inconvenience incurred by the plaintiff.

Scott Greenfield wrote about this case the other day ($3M to the Target of Target) and remarked about this pathetic response:

Any inconvenience? You sent out a mass email, with her picture, telling the world that she’s a thief and forger, and you’re sorry for the inconvenience? There’s an “apology” that demands some serious puni’s alone.

And now comes the urban legend part. Ted Frank, a well known tort “reformer” at Overlawyered jumps into the action (Cantrell v. Target: $200 medical bill = $3.1M verdict). Except some of the facts in his post look a little different from the Target brief and the judge’s opinion.

1. As noted above, Target clearly identified the money as counterfeit, writing in the email, “The lady pictured attempted to use a counterfeit 100 dollar bill today.” But not according to Frank. In his version of the story, the central accusation is watered down to this:

Target employees were foolish in being unable to recognize the old currency, and mistakenly identified it as a possible counterfeit.

Now that, my friends, is just flat out wrong. They did not use any qualifying language about this being a “possible” counterfeit. That’s why there was a lawsuit and a jury verdict. Because the language was not qualified the way Frank wrote it. Hopefully Frank will fix this before his new version of the story becomes an urban legend.

2. Next up: When the incident happened, Ms. Cantrell “shook her head no and walked out of the store” in response to Target’s query of whether or not she had any other way to pay for the merchandise — as described in Target’s own brief to the court. But Frank says she “fled.” That’s right. Instead of an angry or anguished person simply walking away without the goods they came for after indicating they had no other funds to pay with, he claims she “fled” the scene. Now that’s just wrong (defamatory?).

Hopefully Frank will fix this too before his new version of the story becomes an urban legend. (I’m not being snarky, by the way. We all make errors and he has fixed his in the past.)

3. Next up, the Frank headline refers to a $200 bill and says that is no reason for a big award. Apparently, mental anguish and humiliation are not compensable under Frank’s view. We know this because he calls her experience merely an “inconvenience'” though there is no evidence in Frank’s piece to suggest he actually heard any of the testimony of what she went through. And when I challenged him in the comments to his post, he responded by writing that “the plaintiff suffered no actual injury.” Obviously the people who actually heard the evidence feel otherwise. When people who haven’t heard the evidence make such comments about those who have, it would be appropriate to immediately question the objectivity of that critic and question how their political leanings have affected their view of the facts.

If is fine, of course, for Frank to have a strong opinion and political leanings and write about them — only a fool would question his rights to criticize — but that should not lead to changing the facts of a case.

Frank brings up medical costs and their relationship to injuries in order to minimize Ms. Cantrell’s experience, and it is true that sometimes medical costs have a relationship to the seriousness of an injury. But not always. While a high bill usually means a pretty serious injury, a low bill does not necessarily mean a small injury. Psychological injuries are a perfect example of something that can torment an individual but have very low (or non-existent) medical bills. Another example is ongoing back pain that may be almost crippling to an individual but have no viable medical treatment. Looking at medical bills in a defamation action, and pretending it will have some bearing on the injury, is almost bizarre.

There are plenty of frivolous claims around to keep law bloggers busy if they want to write about them. With a nation of 300 million people this will happen. I write about them from time to time, as do others, because there are lessons to be learned in doing so. But there is no evidence this suit falls into that category. So long as one sticks to the actual facts.

Last note: Will the damage awards be sustained on appeal? That’s hard to say, since I didn’t hear the testimony nor have I seen a full record of the trial. But the 30-1 ratio may well be sustainable in general for a personal injury case. My analysis on why this is so is based on decisions and argument from the US Supreme Court here: Philip Morris Punitive Damages Decision — Why It Was Good For Plaintiffs

September 18th, 2008

Contingent Legal Fee Reduced to 20% in Staten Island Ferry Case

The legal fees for a firm that tried one of the cases resulting from the 2003 Staten Island Ferry disaster has been dropped by 40% by Eastern District Judge Jack B. Weinstein. The accident killed 11 and injured dozens more. This represented a fee reduction from one-third, as set forth in the retainer agreement, to 20%. (New York Law Journal: Judge Cuts Attorney Fees in Award to Ferry Victim)

The case involved a victim that had been left paralyzed from the shoulders down after the accident. Plaintiff’s counsel had previously rejected a $10M offer and went to a finding before an advisory jury. The resulting $22.9M verdict was then reduced by the court to $18.3M (which both sides apparently agreed to).

Fee reductions will happen on occasion in New York when the court must oversee the settlement of someone that is incapacitated, either due to being a minor or having medical problems. But on those occasions that a reduction occurs, it generally happens only if a case settles early or easily. This one, by contrast, concerned a plaintiff that didn’t have a brain injury, and the case was litigated in full. It also occurred after a $10M settlement offer was rejected, thereby increasing the risk to the plaintiff and counsel.

Essentially, plaintiff’s counsel received no credit from the court for the risks inherent in rejecting the settlement and increasing the award from $10M to $18.3M.

August 7th, 2008

Suit: Hospital Loses Part of Man’s Skull (Updated)

Talk about weird. Down in Galveston, Texas a man had a piece of his skull removed due to brain swelling after a stroke. He was supposed to have it put back after the swelling went down. But, as you may have guessed from the headline here, the hospital lost that part of his skull. That’s not supposed to happen.

And it doesn’t seem to be a small piece of skull that got lost. This was an eight inch by four inch piece. That’s a lot of head bone, as one of my kids might say. Three times he was scheduled for surgery and three times it was cancelled before hospital officials finally admitted they couldn’t find the piece of skull that should have been sent to the bone bank. Instead, he had to have titanium mesh implanted.

Suit was filed yesterday against the University of Texas Medical Branch on behalf of 53-year-old Marvin Simmons. Interestingly, plaintiff’s counsel Tony Buzbee wrote in the suit, “This is not a case for medical malpractice.”

Why go out of your way to say it wasn’t malpractice but just plain vanilla negligence? My guess is the 2003 tort “reform” in Texas that provides protection for doctors and hospitals for any non-economic verdict over $250,000 for each of them, forcing the victims of malpractice to bear the burden of serious injuries themselves. So given a case that might be malpractice or might be negligence, depending on how the bone was lost, the attorney opts out of the malpractice choice in the suit.

Since I don’t practice in Texas, I can’t comment on that choice. Brooks Schuelke down in Austin would be better on that part. But if it happened in New York, I would plead the case both ways and decide after discovery how to proceed.

Update: Here is a copy of the Complaint: Simmons-v-UTMB.pdf

August 7th, 2008

Is SueEasy the Worst Lawyer Idea Ever? (Updated and Bumped to Add WhoCanISue.com)

This post originally appeared April 13, 2008. It has been bumped up due to another moronic entrant into the field of trolling for lawsuits. The new site, at the bottom of this post, is WhoCanISue.com. And it, like SueEasy discussed here, raises substantial ethical and litigation issues:
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When I first heard about SueEasy, I thought it was an April Fool’s joke. But it was October when it first appeared as a development concept (see 10/23/07 post:So How Did You Find Your Attorney? SueEasy!!!). Then I thought it must be a practical joke created by some tort “reformers” to highlight really bad advertising that sometimes takes place. Standard operating procedure is to use anecdotes to tar everyone else to win further protections and immunities for big business.

Sad to say, it has now gone live and appears to be yet another grotesque form of marketing, except that this one is actually dangerous and can help kill legitimate cases. (Note: SueEasy links provided by a TinyUrl redirect, so that this embarrassment to the profession doesn’t benefit from any PageRank by my linking to it.)

According to the site, “SueEasy is neither a law firm, nor is it a lawyer referral service.” That leaves only one thing, a marketing portal of some kind, presumably where lawyers buy space. These types of dumps are a dime a dozen on the web, and I get calls from them all the time. (See: The Ethics of Attorney Search Services.)

But unlike other attorney search services, this one has the potential for some serious damage in a unique way to both client and attorney in personal injury matters.

First, from the client perspective. One question you might expect at a deposition or trial will be this: How did you find your attorney? That doesn’t mean defense counsel can ask what was said, but they might certainly ask how you got to the lawyer you are using. Now can you imagine a jury finding out you used some company called Sue Easy? Perhaps a judge will allow the testimony, perhaps not, but I sure as hell wouldn’t want to be in a position to find out when the answer is SueEasy.

And since you may share documents or write something to this company that advertises it is not a law firm, that stuff you send may not be protected by the attorney-client privilege and may be discoverable (and possibly admissible at trial). Which is to say, that is a way for a defense lawyer to get the SueEasy name in front of a jury.

Here’s something else you might to consider: During jury selection one of the standard issues raised by defense lawyers is that anyone can bring a lawsuit. So if ever there was a way to reinforce that idea, contacting an advertising portal named SueEasy would do it. It’s like handing a big, fat gift to the defendants.

Second, from the attorneys perspective. You have not only shot a stomach churning hole in your own client’s case (and any fee you hope to recover), but you are also at the mercy of the advertising portal to act ethically. As I demonstrated in my other post on the ethics of these portals, this could be a real issue. For example, the site appears to be in violation of New York’s ethical rules because it fails to state that it is attorney advertising.

You might also note the site owners are too embarrassed to identify themselves, so a participating lawyer would be ceding their marketing to an anonymous individual or company. Imagine that, a lawyer putting his or her law license into the hands of anonymous people. Try explaining that one to the disciplinary committee one day.

If you agree to be marketed by that portal, the disciplinary committee of your state may well say that they are your agent, and you are responsible for the content of their site and the conduct of the employees. And they may not look kindly on the willful blindness defense that you will try. (“Really? The site did that? Oh, my, I’m shocked, just shocked to find out. I’ll have a talk with my people and maybe we’ll do something else. Oh, thank you so much for telling me, Madame Chair of the Disciplinary Committee.”)

So my advice to those seeking an attorney:

Ask around first. Your friends, relatives and neighbors are the best place to start.
Ask another attorney, even if outside the field you need. While you wouldn’t want a medical malpractice attorney to handle your real estate venture, and vice versa, there’s a pretty good chance that the attorney will at least know where to look for the right person.
After you get a few names from the above methods, you can check out their websites to see if they give clues as to what field(s) the attorney(s) claim to be proficient in, and interview the attorneys as to other cases in the field that they have handled.
An attorney search service such as Sue Easy is not just a bad idea, but a spectacularly bad idea, with this possibly be so dangerous as to harm your case or career. Any attorney who uses it for serious personal injury cases may well be committing malpractice.

This company is a bona fide twofer for defendants. They get both the horrible anti-plaintiff’s lawyer press and they get stuff they can actually use in the courtroom. I keep thinking this must be a joke, as no right-minded lawyer would ever affiliate themselves with this outfit. But I fear that is not the case.