September 23rd, 2009

Judge and Blogger, Jerry Buchmeyer, is Dead at 76

In my blog roll off to the right under “Legally Humorous” sits a link to Say What?, a little Texas law blog from US District Court Judge Jerry Buchmeyer, who died Monday at 76.

But I didn’t add him to my blog roll and RSS feed to read about Texas law. I tuned in because he had a great collection of trial and deposition snippets that, when you read them, were sure to lift your day. And to warn you about engaging the mouth before engaging the brain.

Oddly enough, though he died Monday, he has a post dated today (reprised from 2001). So somewhere up in the Great Beyond, Judge Buchmeyer must be laughing a little. And as long as Judge Buchmeyer continues to post, I’ll continue to keep him in my blog roll.

One sample from the blog looks like this:

Q. Do you know how much money?

A. No, not specifically.

Q. You recall testifying as to a seven or $800,000 figure concerning Roseneath yesterday?

A. Whatever the record said.

Q. You recall discussing a seven or $800,000 contribution to GRI by Roseneath?

A. And I said whatever the record said.

Q. You don’t recall that right now?

A. I said whatever the record said.

Q. That’s not responsive. Do you recall?

A. Read my lips.

Q. Read mine. Do you recall?

A. Look at me again, read them real careful.

Q. And read my lips carefully –

Mr. Butler (wisely): All right. Gentlemen, I guess that’s about enough of this.

It’s easy to watch an hour disappear just roaming through his archives reading some of the transcripts that people had sent him over the years.

You can read some of the obituaries, that focus on his judge-life as opposed to his blog-life, here:

WSJ Law Blog;
ABA Journal;
Box Turtle Bulletin;
Tex Parte Blog;
Pegasus News;
Legal Blog Watch


July 15th, 2009

Debunking Yet Another Tort "Reform" Column, This Time in Forbes

I feel like a broken record sometimes, rebutting the same disingenuous tort “reform” nonsense over and over. The latest comes from Forbes (via PofL), in a piece written by Manhattan Institute fellow John Avlon, regarding the amount that New York City pays out in settlements and verdicts.

His comments in italics with my responses:

The city’s $568 million outlay in fiscal year 2008 was more than double what it spent 15 years ago.

Only double? So then, when you account for inflation, there really hasn’t been much change at all?

Sidewalk “slip-and-falls” cost taxpayers $54 million…

Sidewalk cases against the city have mostly evaporated as a result of a change in the law six years ago. In 7-210 of the Administrative Code of the City of N.Y the city shifted liability for the miserable state of our sidewalks to most of the abutting landowners.

Suing the city is big business. Ninety percent of the city’s claims costs come from personal-injury lawsuits; of these, medical-malpractice suits are by far the priciest, draining $145.3 million from city coffers in fiscal year 2008–a particular vulnerability for a self-insured city with 11 public hospitals.

Has it occurred to you that the city’s hospitals get sued often because most of them suck? If you think the city is vulnerable, what about the folks that are forced to use those hospitals? Here’s a suggestion on how to reduce city malpractice claims: Improve the hospitals. I know, it’s a crazy notion.

Nearly 90 cases against the city were settled for amounts over $1 million, and the average settlement was nearly $75,000–up from $14,396 in 1984. (The city settles most suits to reduce the costs of going to trial.)

The city settles cases when the facts warrant it. They take verdicts when the facts warrant it. The idea that the city settles a million dollar case simply to avoid the cost of trying it is empty political rhetoric that is wholly unsupported by analysis. It’s gibberish, and every medical malpractice attorney in this town knows it, defense included.

Why is Gotham such a litigation target? Blame New York State’s laws, which have made the city a gold mine for personal-injury lawyers.

Having already admitted that medical malpractice cases are the biggest problem, don’t you think you should point out that New York has some of the lowest legal fees in the nation for medical malpractice cases? Some gold mine. And perhaps one day you should look at the actual economics of taking a malpractice case in New York.

…the cozy relationship of New York trial-law firms and state lawmakers, who have received $2 million in donations over the last five years from the New York State Trial Lawyers Association.

So how much have Fortune 500 companies made in donations? Seems to me that if you want to do a comparison of donations then you need to actually have something to compare it to.

Under current law, lawyers’ fees in medical-malpractice cases are capped at 10% for all awards exceeding $1.25 million. In recent budget negotiations, Silver reportedly pushed for increasing that cap to 33%–a massive new incentive for lawsuit abuse in the Empire State

Currently, due to the low legal fees, most acts of malpractice are never put into suit. The medical community has de facto immunity from negligence in most cases. Once upon a time conservatives actually believed in personal responsibility for the conduct of people. That seems to have disappeared when it comes to protecting big business with various tort “reform” measures.

A good start would be to place caps on noneconomic damages, such as pain and suffering, as two-thirds of states have done.

Well, that would effectively make victims bear the brunt of the negligence of others. And you think that is good policy? Let the victims get poorer and the tortfeasors walk away?

In Texas, for instance, lawmakers recently imposed a $250,000 cap on noneconomic damages, which not only resulted in dramatically reduced malpractice-insurance premiums for doctors, but also cut the number of all tort lawsuits in half and doubled the number of doctors applying to practice medicine there.

To the determent of the victims. I think we can agree that when you slam the courthouse door shut in someone’s face then the wrongdoers will benefit and the victims will lose. See: Do Texas Med-Mal Damage Caps Work? (What Do You Mean By “Work?”)

But perhaps the single most effective action would be to establish a court of claims for municipal cases to restrain outsize judgments.

Interesting assumption. Some counties have become so notoriously conservative that plaintiffs no longer ask for jury trials. It’s the defendants that are making the requests. Of course, if the city attorneys appear only in front of city judges they will be able to form a more comfortable relationship with each other. Perhaps that is what you had in mind?

One last thought, if you want to “control” lawsuits; why not just abolish them and tell the victims to just piss off? Because we both know that this will be fair, make sidewalks, hospitals and cars safer, and lead to greater accountability by those that currently act negligently. Right?

Related: The False Premises of Medical Malpractice “Reform” (Response to Richard Epstein in WSJ) 6/30/09

Reasonable people smarter than I am support the idea of reforming the tort system and limiting the rights of victims. But you have to at least pretend to write a balanced article if your are trying to convince the undecided. Otherwise, you are just preaching to the choir. [more]

  • Andrew Oh-Willeke @ Wash Park Prophet responds with Tort Suits Not What’s Wrong With NYC:

    Rather than securing and paying for medical malpractice insurance, the city’s hospital system “self-insures.” Thus, while medical malpractice insurance premiums don’t show up on the books in other jurisdictions at “lawsuit” related costs, they do in New York City…

    John P. Avlon’s … rant against New York City litigation is either fatally incompetent or dishonest. [much more here]

Links to this post:

tort suits not what’s wrong with nyc
forbes, the magazine of big business, has recently released an article arguing that new york city is unfairly subject to too many lawsuits. most of the points that it makes are convincingly rebutted here.

posted by Andrew Oh-Willeke @ July 15, 2009 8:08 PM

forbes article on lawsuits in new york
i was tempted to respond to this forbes article on how our tort system and medical malpractice lawyers are ruining new york. but, to save myself some effort, i decided to wait the obligatory fifteen minutes to give the resident new york

posted by @ July 15, 2009 12:22 PM

john avlon, “sue city”
manhattan institute senior fellow john avlon, in forbes: new york city spends more money on lawsuits than the next five largest american cities — los angeles, chicago, houston, phoenix and philadelphia — combined.
posted by Walter Olson @ July 15, 2009 9:28 AM


April 14th, 2009

Do Texas Med-Mal Damage Caps Work? (What Do You Mean By “Work”?)

In a headline at Point of Law, the Manhattan Institute blog dedicated to tort “reform,” comes this: Texas Med-Mal Damage Caps Worked.

And in support of that headline, Andrew Grossman recaps this article with data about the reduction of payouts for pain and suffering (“non-economic” loss) since Texas slashed the ability of injured people to hold the wrongdoers accountable for their conduct:

The Texas cap reduced allowed non-economic damages in tried cases by an estimated 73 percent, allowed verdicts by 38 percent, and payouts by 27 percent. As expected, settlement payouts declined, by 18 percent.

But what, exactly does it mean for a statute to “work” when it reduces the ability of the most badly injured individuals to recover for their loss?

  • Does offering government protectionism for tortfeasors mean it works?
  • Does stopping those who’ve been victimized from recovering from their loss mean it works?
  • Does destroying the concept of personal responsibility for one’s actions mean it works?

If the objective is to offer windfalls to those whose negligence has injured others then one might say it works. But that doesn’t makes it good public policy.

I’ve always found it odd that the tort “reform” movement is lead by those whose political philosophy is to have less government intervention and more personal responsibility. Because tort “reform” is just the opposite.

But some have seen the light. Below is a list of a few “reformers” that have been covered in this blog that no longer believe that insurance company profits are more important than making the victims whole again. I’ve excerpted it from The Bubbe Maisse Report (aka “Judicial Hellholes”):

Another Tort “Reformer” Sees The Light:

Dr. Dave Stewart is a California anesthesiologist. He supported tort “reform.” Then his 72 year old mother died after knee surgery from an undiagnosed bowel obstruction. When the family tried to hire a lawyer, they were turned down by two dozen different medical malpractice attorneys.

Tort “Reform”, Trent Lott, and Changing Fortunes: Aside from Trent Lott, it deals with Frank Cornelius

In 1975, I helped persuade the Indiana Legislature to pass what was acclaimed as a pioneering reform of the medical malpractice laws: a $500,000 cap on damage awards, and elimination of all damages for pain and suffering. I argued successfully that such limits would reduce health care costs and encourage physicians to stay in Indiana — the same sort of arguments that not underpin the medical industry’s call for national malpractice reform.

Today, from my wheelchair, I rue that that accomplishment. Here is my story.

Tort “Reform” Gone Bad. And the Personal Injury Round-Up: With this story from a “reformer” and medical oncologist:

It appeared that the case would be resolved quickly, considering that the defendant freely admitted his error. However, this turned out to be far from true.

As I’d expected, the jury found the original pathologist negligent. But, to my surprise, Mary wasn’t awarded any damages… The jurors reasoned that the pathologist had not acted maliciously, and that if he were found liable for a monetary award, he might leave the state. They were likely influenced by political ads that ran during the state’s tort reform ballot campaign, describing physicians who were leaving Nevada because of its malpractice crisis.

Tort “Reformer” Michael Savage Brings Lawsuit:

Right wing radio talk-show host and tort “reformer” Michael Savage has brought a lawsuit. The infraction? He was quoted by an Islamic group on its website in which he called the Quran a “book of hate” and said Muslims “need deportation.”

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.

Remember: Tort “reform” is an idea promulgated by people who’ve never been badly injured by the negligence of others.
See also:

  1. George W. Bush
  2. ABC News Correspondent John Stossel
  3. Sen Rick Santorum
  4. “Lawsuit Abuse” Group Founder and Trustee, Sterling Cornelius
  5. Texans for Lawsuit Reform Board Members

Links to this post:

med mal caps work… against med mal victims, that is.
eric turkewitz points out that when folks claim that capping non-economic damages in medical malpractice claims “works,” they often conveniently neglect to explain what “working” really means. he writes:
posted by Kia Franklin @ April 15, 2009 4:29 PM


June 5th, 2008

Texas Lawyer Makes Obscene Filing. Now What? (Updated)

(There is now an update at the bottom of this post. This pleading was never filed.)

Now this is a Texas-sized blunder. In an answer to a lawsuit yesterday, defense attorney David Ayers of Houston called the claimant a “dumbass” and a “fucking idiot.” Oops. A copy of the filing is now at Overlawyered.

I will assume, based on the language that was used, that this filing was created as an internal joke at his firm of Werner Ayers, and that it was errantly filed instead of the real McCoy. There is really no other explanation I can think of other than, perhaps, it being intentionally done while in a drunken stupor.

But now what? This is a modestly sized firm of seven lawyers, doing corporate defense work in commercial and tort cases, and here is the type of story likely to get passed around. And around. And around. And that means they need to think in terms of three things:

  1. Sanctions from the court;
  2. Upset clients who aren’t keen on their attorneys acting this way; and
  3. Their Internet reputation.

On the first part, it seems that they must pick up the phone and call the judge immediately, if they haven’t already done so. Explain exactly what happened, that it wasn’t meant to be filed, and hope the judge has a Texas-sized sense of humor. Then beg for mercy. And cite, hopefully, a previously unblemished ethical record.

On the second part, I note from Ayers’ biography that he has one client in particular that apparently gives him a lot of business:

David Ayers, partner, serves as national defense counsel, coordinating and defending a mass tort docket across the country for a Fortune 100 company

Call the big client. And all the other big ones too. And the small ones. It’s better that they find out from you than to hear than to about it from others. Or from the newspapers.

The third part is trickier. Because it is the type of story to be picked up by a wide variety of blogs, both in the legal blogosphere and in traditional media, and that means that for years in the future when people Google the firm name or the lawyer’s name this incident is likely to pop up on the first page. And so picking up a copy of Dan Solove‘s book, the Future of Reputation on the Internet, would be a wise thing. (Or read it for free.) If they don’t understand the potential of such an incident, this book and the potential flurry of blogging on the subject might swiftly bring it home.

So here is what I would do: Create a blog. Why? Aside from there being many good reasons to create a blog, something Kevin O’Keefe writes on often, one that should not go unnoticed is that a well-written blog will eventually knock the screw-up off the first page. In a year it could be very deeply buried for anyone doing a quick, routine look-up of the firm. A dumb mistake just seems less important when it pops up on page five than on page one. So a blog will bring the twin benefits of demonstrating expertise in an area and deep-sixing the blunder. It will take time, but it will happen.

In some fashion this isn’t much different than the story of Flea, who was blogging his own medical malpractice trial under a pseudonym and saying things you wouldn’t want a jury to hear, only to get busted on the witness stand and then outed on the front page of the Boston Globe. And so the things that I discussed a year ago in Flea and Crisis Management very much apply here also. This is the type of event that they have to be proactive about in order to limit the damage.

Updated 6/6/08): I received a call from a partner at the firm, Scott Raynes. He alerted me that this was an internal practical joke, and that this was never filed. His comment on Overlawyered (#4) is reproduced here:

This was never filed. It was a joke within our office: this fake answer was created and doctored to make it look like it had been filed. It was then forwarded to Ayers, the partner on the case. Once David recovered from the shock and realized it was in jest, he forwarded it to the plaintiff’s lawyer (an old friend of his back when they were at Fulbright & Jaworski together) to share in the joke. The plaintiff’s attorney called Ayers to confirm that it was, indeed, a prank. There is no such filing in the case.
Scott Raynes
Werner Ayers, L.L.P.

A big thumbs up to the firm on knowing a thing or two about damage control for a joke that went a bit out of control. They’ve utilized comments on the blogs that referenced it and picked up the phone to make a call to make sure it got immediate attention.


October 5th, 2007

Texas Tort "Reform" and the New YorkTimes

The New York Times reports today on the huge increase in doctors flooding into the Texas since medical malpractice damages were severely capped in 2003. Want to know what else has gone up? Patient complaints and actions against doctors by the Texas Medical Board.

The article quotes an official as saying that disciplinary actions have risen only 8 percent. But is that really true? Not when I look at the numbers.

Here’s the quote buried on page 2:

Since 2003, investigations of doctors have gone up 40 percent, patient complaints have gone up 25 percent, and disciplinary actions about 8 percent, said Jill Wiggins, a board spokeswoman.

Maybe that official isn’t looking at these statistics. Nor, apparently was the New York Times.

Total Disciplinary Actions:
2002: 187
2003: 277
2004: 256
2005: 304
2006: 335

If you measure from 2002, the last full year before the caps were imposed, then disciplinary actions rose 79%. If one is going to do a “before” and “after” comparison that seems the likely year to use.

If, on the other hand, you are trying to spin the New York Times to claim only a minimal change, then you ignore the rapid increase over four years and minimize the damage by only discussing the change from 2005 to 2006.

By the way, 2007 isn’t shaping up much better, with 88 doctors disciplined at the Medical Board’s August meeting, 30 in June, 34 in April, and 41 in February. That’s 193 so far, with two more meetings to go, on a pace to well exceed the 2002 numbers.

So Texas is clearly getting more doctors. They just might not be the ones you want.

See also:

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

Links to this post:

Texas Medical Malpractice Reform and More Docs, part 2
Last week we posted about the New York Times article on the alleged influx of doctors as a result of Texas’s medical malpractice reform. Since then, the New York Personal Injury Blog has chimed in (with interesting stats that we wish we

posted by sbrennan @ October 11, 2009 3:52 PM

stories that shouldn’t get away, part i
a guestblogger will be joining us momentarily, and i’ll be posting less over the holidays. meanwhile, my pipeline is still backed up with items from the past year that deserve a more serious treatment than a hurried roundup mention

posted by Walter Olson @ December 20, 2007 12:05 AM

the downside of the texas cap on medical malpractice damages
arguing in favor of tort reform, a recent new york times article noted the influx of doctors into texas after medical malpractice damages were capped in 2003. however, in a recent blog post, new york personal injury lawyer eric

posted by Tom D’Amore @ October 10, 2007 6:14 AM

More tort “reform” commentary
The NYT had a story on Friday about an increase in the number of doctors in Texas, which is being claimed by tort “reformers” as proof of their success. I’ve been over this ground plenty of times, so I’m going to cede the floor to the

posted by Charles Kuffner @ October 07, 2007 9:57 AM

More Docs Messin’ w/ Texas… While Texas Messes with Patient
On the cover of today’s NYT, medical malpractice tort “reform” in Texas. Although you’ve got to get two-thirds into the article to reach it, the article does include some voices of reason to offset its healthy dose of tort “reform”

posted by Kia Franklin @ October 05, 2007 1:46 PM

texas tort “reform” and the new york times
cross-posted from new york personal injury law blog: the new york times reports today on the huge increase in doctors flooding into the texas since medical malpractice damages were severely capped in 2003. want to know what else has
posted by Eric Turkewitz @ October 05, 2007 12:16 PM