December 27th, 2010

Hacked! (And Did I Meet My Hacker at Killington?)

It happened last week. I found out right after I posted a story on a $50M personal injury verdict, and just hours before I headed off for four days of skiing at Killington. This blog was hacked.

And oddly enough, while skiing, I think I met the hacker. Or at least someone just like him.

The emails and alerts started last Tuesday, as people began getting redirected from here to a porn site, with a message asking them to click on something having to do with a virus alert. Frantic messages from me to my tech guy then followed, who updated everything and cleaned up the area. Then, apparently, I got hit again. Once again, stuff restored.

Calling me pissed off would be an understatement as I imagined a parade of horribles that I wished would descend on the hacker’s head. It isn’t often that I actually run into people with such an utter contempt for their fellow humans. After all, as an attorney I deal in the world of negligence, not the criminal arena that so often deals with deliberate attacks.

But then, on Saturday morning, after just a couple of ski runs, my wife hurt her knee high up on the mountain. She needed the dreaded toboggan ride down to the base lodge and a trip to Rutland Regional Medical Center.

In the course of that experience, we saw a lot of good old-fashioned human empathy. People stopped on the slope to see if we needed assistance (we did, thank you for stopping). And then they went off to get help. Everyone on the mountain, no doubt, could imagine this happening to them and knew exactly how they would want others to react. They responded with The Golden Rule of treating others the way they would want to be treated. They offered to stay with us if need be, and do whatever they could (nothing to do but wait for Ski Patrol, but thank you for asking).

And then there he was, my hacker. Or as I said at the top, someone just like him.

As Mrs. NYPILB was pulled on the sled at the first aid station at Killington base near 11 a.m. — and this had the potential to be far more serious than her tushy bone injury last summer — we went past a ticket window. And a voice called out, with what sounded like a German accent, “You done skiing today?” Huh? Was he talking to me? I turned to see him looking at me, and he repeated the question.

What a bizarre question I thought, as I hauled our skis to a rack and ran to catch up with the uber-nice ski patrollers who were getting ready to unload her. Yeah, I said, I’m done. Dumb question, I thought. And then…

“Want to sell your ticket?” If I wasn’t a bit rattled at worrying about my wife, and so perfectly stunned by the question, I might actually have walked up to him and knocked him down. Which, if you know me, would be quite out of character having never done such a thing. But I simply couldn’t recall having ever seen a person so completely lacking in empathy. Here was someone getting ready to take his wife to the hospital for lord knows what kind of injury — and you didn’t need an imagination of any kind to come to that conclusion given my wife laying there on the sled — and the thing that ran into this young punk’s mind was saving a few dollars on his lift ticket.

And it occurred to me, as I waited a bit at the hospital for the x-ray results (negative, visit to local ortho coming soon with ACL concerns) that this creep is just the sort of person that hacks. Absolutely no concern for their fellow man. No ability to identify with the plight of another. Zero emotional capacity to put themselves into the shoes of others.

At trial, empathy is something that lawyers look for and try to use. Now we can’t say to a jury, imagine if this was you — that is a violation of a different Golden Rule, this one for juries, and might result in a mistrial.  But many a lawyer does ask during jury selection if people would avail themselves of the jury system if they felt they had been wronged. That gets both to the feelings they have about the civil justice system, and incidentally asks jurors to consider what they would do if they were the injured party.

I hope that there weren’t too many of my readers that were affected by the hack. I confess to some complacency on the subject of hacks and viruses since I use a Mac, as Macs aren’t exactly ground zero for hacking. Mac users don’t generally even use any kind of anti-virus software, other than what Steve Jobs might build into the system to quietly work. But this didn’t take place on my computer. It happened on some server somewhere in the back of beyond of the information superhighway.

Perhaps one day the hacker will find himself (and you just know it’s a him, and not a her, don’t  you?) in need of assistance. Or the victim of some accident or attack. And will think back on his life and the stuff he has done. But until then, I expect he will remain a slime ball. And perhaps a slime ball forever.

The hacker might be tech smart, but is utterly barbaric in the world of  human relations. We can only hope this will prevent the creation of similarly inclined offspring.

 

December 22nd, 2010

New York Jury Returns $50.5M Verdict For Brain Injured, Paralyzed Scaffold Worker

David Golomb, plaintiff's lead counsel

Late Tuesday afternoon, a New York jury returned a blockbuster $50.5 million verdict for a brain injured, paralyzed scaffold worker. Daniel Savillo, who was 29-years-old on the date of the accident, had mis-stepped and fallen while working on a 15-foot high scaffold storage platform on February 12, 2007.

Since the owner and chief foreman had admitted that there was no fall protection provided to workers, Justice Emily Jane Goodman granted summary judgment in favor of Mr. Savillo in September of  this year. That determination came in accordance with New York’s Labor Law. As Justice Goodman wrote:

Because Labor Law § 240 (1) “imposes absolute liability on owners who fail to provide adequate safety devices to workers laboring at elevated work sites, when that failure is a proximate cause of the workers’ injuries” , and because Greenpoint Landing provided no safety devices and that failure was a proximate cause of plaintiff’s injuries, that part of plaintiff’s motion which seeks summary judgment on the issue of Greenpoint Landing’s liability under Labor Law § 240 (1) is granted

With respect to the employer, All-Safe, Justice Goodman added in a footnote:

Given All-Safe’s complete disregard for safety (discussed infra), the name of this company strikes this Court as very ironic.

The nine-day trial before Justice Goodman in Manhattan (who also blogs for the Huffington Post) was, therefore, only to assess the amount of damages.

Prior to the trial, the plaintiff had rejected a settlement offer of $8.125M, holding firm in a demand for $14.5M. Given the breathtaking jury verdict, as well as the huge settlement offer that had been rejected, it’s worth taking a closer look at the verdict and damages.

As a result of the fall, Mr. Savillo suffered a complete cord injury at level T11 and had no sensation below an inch below his umbilicus. He had spinal surgery, screws, rods and cross-pieces placed in his back extending from from T7 to L2.

One of the many custom made exhibits used at trial

He also suffered significant brain contusions and hemorrhages, though no surgery was done on the brain. Evidence was presented of  traumatic brain injury, with significant cognitive deficits, particularly in mental flexibility, information retrieval, processing speed, visual memory, short-term memory. He is unable to do more than a single task at one time. The progression of the brain damage can be seen from this exhibit that was used at trial (click to enlarge).

Other injuries consisted of a neurogenic bladder and bowel. This forces him to self-catheterize six to eight times each day for urination, and to manually evacuate stool after inserting suppositories on a daily basis.

The $50.5M jury award was broken down as follows:
  • Past medicals expenses, approximately $600k;
  • Past lost earnings, $200K;
  • Past lost fringe benefits, approximately $50k
  • A life care plan demonstrated over $9.224M for future medical care;
  • Lost earnings and fringe benefits were approximately $5.6M;
  • Past pain and suffering was $10M; and
  • Future pain and suffering was $25M

The jury was unanimous in its determination. And of particular note, two of the jurors were lawyers. One was a fourth year tax associate at a major firm and the other works for the City of New York defending civil rights cases.

The plaintiffs called as expert witnesses: a neuroradiologist regarding the films, a rehabilitation expert,  the neurosurgeon who repaired the spine an economist, and a vocational rehabilitation expert. The defendants conducted five separate defense medical exams, but didn’t bother to call three of the people that did exams (neurosurgeon, orthopedist and wound care surgeon). The plaintiff also called the defendants’ own rehabilitation expert on his own case, since his report was so devastating to the defendants.

The defendants called a neuropsychologist and an economist.

All of which is to say, that there were a lot of witnesses in a short amount of time.

A final word on the numbers. The jury total is about $50.5M. To that gets added interest, at a 9% annual rate, from the date that summary judgment was granted in September. From that gets subtracted certain things too. For example, the future economic costs must be reduced to present value at a later proceeding pursuant to CPLR 50-B. In addition, there may be a set-off for Social Security Disability payments that have been made, and with reasonable certainty will continue to be made going forward under CPLR 4545.

One can also assume that the pain and suffering verdicts will be challenged as excessive. How New York courts go about reducing (or increasing) verdicts from time to time was the subject of one of the first posts on this blog: How New York Caps Personal Injury Damages.

In other words, while the headlines will scream $50M, as this one does, the reality will one day be something else. And it will take quite a bit of lawyering to figure out what that will be.

The stars seemed aligned for a mega-verdict here, given the catastrophic injuries, that liability was already determined, that 9% interest would be running on any verdict (thus giving a comfort level to the plaintiff regarding the potential for defendants dragging out the litigation), that numerous experts were lined up and ready to go, that defendants had a fear of their own experts, and that an experienced trial lawyer was ready to take the verdict.

The case was Daniel Savillo v. Greenpoint Landing Associates, LLC (landowner) v. All Safe Heights Contracting Corp. (scaffolding co., employer). The plaintiff here sued the landowner, who turned around and sued the employer. In New York, those who are injured on the job generally can’t sue their employers under the Workers Compensation Law.

Plaintiff’s counsel was David Golomb, who is a past president of the New York State Trial Lawyers Association and a frequent lecturer on medical malpractice (and who I’ve known for many years). He is also a founder of Trial Lawyers Care, the massive pro bono effort put forward by the nation’s trial lawyers in response to the September 11 attack and the establishment of the September 11 Victim Compensation Fund. He was assisted at trial by Roy Jaghab, of Jaghab, Jaghab & Jaghab.

Greenpoint’s attorney was Edward Lomena.

All Safe’s attorneys were Scott Miller and Michael Manarel.

 

December 20th, 2010

How Much is a Breast Worth?

The fact pattern is not complex: A 32-year-old single woman had a mastectomy. But she didn’t have cancer. The modified radical mastectomy was unnecessary. A Bronx jury found malpractice and awarded her $3 million for past pain and suffering and $3.5 million for future pain and suffering extending over 41.9 years. The trial judge then directed a new trial as to damages unless the plaintiff stipulated to a reduced total award of $1 million.

The legal arguments are not about the issues of liability here in Williams v. New York City Health & Hospitals Corporation, but as to what is considered an excessive verdict.

Up the case went to the Appellate Division, First Department (which, for out-of-towners, sits in Manhattan). And a divided panel agreed with the trial judge and set the limit for such a case at $1M. There was a furious dissent by Judge James Catterson, who agreed that while the verdict was excessive, also believed that the $1 million award substantially undervalued the emotional trauma of such an incident to a 32-year-old single woman.

Why the dispute? Because in the words of the majority:

The dissent’s suggestion that plaintiff must have suffered extreme emotional distress is not supported by the record.

Not supported by the record? There was no question that the woman lost her breast unnecessarily. The jury saw photographs. Some injuries are abundantly obvious. And yet, the majority simply accepted the defendants’ argument that there is no proof of future pain and suffering because the plaintiff did not testify extensively about her emotional distress. In other words, if you don’t state the obvious, the court will toss your verdict.

According to Judge Catterson, as the majority tried to compare this case with another verdict:

Appellate Division Judge James Catterson

The defendants appear to believe that because the plaintiff in this case was not able to articulate a similar experience of shame, embarrassment and humiliation, she therefore does not suffer such emotional distress. The defendants appear not to have heard the oft-quoted phrase “a picture is worth a thousand words.”

Moreover, the majority’s view that the plaintiff’s extreme emotional distress is not supported by the record clearly indicates that the majority has not viewed the photos in the record. Given the post-operative photos of the plaintiff, I believe any testimony by the plaintiff as to distress, for example, over not being able to wear a bathing suit; or of her fears of never finding someone to love or desire her would be simply superfluous, if not overkill.

New York, contrary to popular belief, has a means of reducing excess verdicts (and similarly raising up excessively low ones). But it isn’t the one-size-figs-all approach that tort “reformers” want in order to protect the wrongdoers. (See: How New York Caps Personal Injury Damages) And in this case, we see the application of that procedure.

Since this appellate decision had two dissenting voices, the plaintiffs may appeal as of right to New York’s high court, which is what I would expect since they have much to gain and nothing to lose.

More on this case from John Hochfelder (from whom I swiped the breast image above). He does an analysis of the “similar” cases that the majority and dissent relied upon, and also adds inside info that he got from calling the lawyers involved.

 

December 15th, 2010

Bill of Rights Day

Since today is Bill of Rights Day, I thought I would re-direct you to a post of mine from 2008 on the subject: The Bill of Rights and John Peter Zenger.

You can test your civics knowledge by seeing how many of the 10 rights you can name, without looking it up.

Bonus question: How many different rights are incorporated in the First Amendment? (Listed here)

Second Bonus question: Which President established today as Bill of Rights Day? And before looking, is the person Democrat or Republican? (Answer is here.) And do you think that political orientation means anything when it comes to the Bill of Rights?

Some other posts on the subject, from this year and years’ past:

Bill of Rights Day (Cato Institute, 12/15/10)

EDITORIAL: Celebrate the Bill of Rights (Washington Times, 12/15/10)

National Constitution Center with 15 minute webcast

It’s Bill of Rights Day (f/k/a, 12/15/08)

Blawg Review 190 – Bill of Rights Day (Legal Satyricon, 12/15/08)

Photo credit: Me

 

December 14th, 2010

Supreme Court Kills New York’s “New” Attorney Advertising Rules

Yesterday, the United States Supreme Court put the final nail in the coffin of New York’s “new” attorney disciplinary rules regarding advertising when it refused to review a Second Circuit decision that struck most of the rules. I put “new” in quotes because they actually date to February 1, 2007, just months after I opened this little blog.

And I’ve been following the issue ever since. See January, 5, 2007;  New Attorney Advertising Rules (Is This Blog an Advertisement?)

Most of the rules were first  struck down by the U.S. District Court in July 2007 when challenged by Public Citizen on behalf of the upstate firm of Alexander & Catalano. And the Second Circuit upheld those determinations in April of this year. (Sonia Sotomayor was on the panel that heard the case, but had gone to the Supreme Court by the time the decision came down.)

Those broad-based rules tried to stop a variety of advertising techniques, but did so in a fashion that ran headlong into the First Amendment. The rules had barred, among other things, testimonials from clients relating to pending matters, portrayals of judges or fictitious law firms, attention-getting techniques unrelated to attorney competence, and trade names or nicknames that imply an ability to get results.

As I pointed out in one of my first posts, simply putting a picture of yourself on a lawfirm website could be construed as violating the prohibition against “characteristics clearly unrelated to legal competence.” The picture will tell the potential client your age, your race and your sex, but what will it tell them about legal competence? Nada. Ergo, under the new rules the photo could be a violation.

Obviously, this wasn’t why the rules were crafted. They came in response to the embarrassing aftermath of the October 2003 Staten Island Ferry disaster that killed 11, and the onslaught of ads in the Staten Island Advance the next day. Those ads were placed while rescue efforts were still ongoing at the ferry that day. It was not one of the better moments of the personal injury bar. And that incident brought about New York’s 30 day anti-solicitation rule, part of the new set of rules but one which was not affected by this ruling.

But the new rules went after problems that didn’t just have to do with 30 day time limits.

Senior Judge Frederick J. Scullin, who wrote the District Court opinion striking down almost all the other rules, summed up the problem this way in a buried footnote on page 29 of his decision:

Without question there has been a proliferation of tasteless, and at times obnoxious, methods of attorney advertising in recent years. New technology and an increase in the types of media available for advertising have exacerbated this problem and made it more ubiquitous. As a result, among other things, the public perception of he legal profession has been greatly diminished.

But in re-crafting rules in an attempt to solve this problem, the crafters went way too far. So far, in fact, that the only way to defend them was to assert that attorneys couldn’t use humor.

For it was humor that formed part of the basis of the state’s response to the Alexander & Catalano lawsuit. AS described the by state in one of its filings, the firm advertised that it:

retained by aliens, have the ability to leap tall buildings in a single bound, or have stomped around downtown Syracuse, Godzilla-style.

And the argument by the state against this? That it wasn’t truthful. See: New York Responds to Lawsuit Challenging New Attorney Advertising Rules — By Banning Humor

When I read the state’s brief, that I discussed at some length in that post, I knew the rules were toast.

While the ads may have been tasteless and embarrassing to the profession, no person with a functioning brain could have believed that the firm had actually been retained by aliens or done any of the other eye-catching things in those commercials.

And so the First Amendment ruled the day, as the rules over reached to ban more than just dishonesty.

Now I sure as hell wouldn’t want to pick a jury in any courtroom if my firm was busy running such moronic ads, but taste is not something that can be regulated.

———————-

See also on the Supreme Court’s action:

SCOTUS Gives Nod to 2nd Circuit OK of ‘Heavy Hitters’ Law Firm Slogan & Descriptive Trade Names (ABA Journal)

US Supreme Court to New York Lawyers: You Are Awesome (Tannebaum @ My Law License)

Supreme Court Denies Certiorari in Lawyer Advertising Case (Robson @ Constitutional Law Prof Blog)

Good News for ‘Heavy Hitters’: High Court Sidesteps Lawyer Advertising Dispute (Koppel @ WSJ Law Blog)