November 25th, 2009

Is the "Independent" Medical Exam Dead?

For many years personal injury attorneys fought back against the concept of “independent” medical exams. We didn’t argue that defendants weren’t entitled to have a doctor evaluate our clients injuries. Rather, we objected to the absurd concept that a doctor hired by one side to do a medical-legal exam is “independent.”

And now that unfortunate label seems to be fading into oblivion. In Rowe v. Wahnow, decided last week by a New York appellate court, plaintiff’s auto case was tossed out based on the “IME” reports of the defendant’s doctors.

But in dissent comes Justice Douglas McKeon, ripping into the concept that such “IME” reports are actually independent. And he does so with support from New York’s Chief Judge, Jonathan Lippman:

…the “independent” prong of the term, has long been winked at by the bench and bar. Few consider the physical examination conducted for purposes of litigation as independent; indeed, one court has described it as part of the “adversarial process” (Bazakos v Lewis, rev’d on other grounds) with Chief Judge Lippman forthrightly observing that “[t]hese exams, far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee (id. at 6 [Lippman, Ch. J., dissenting).

When I was younger I would routinely run my pen through those parts of the pre-printed Preliminary Conference Orders that had the word “independent.” Now the courts were simply looking for dates on when the exams would be done, and when reports would be furnished, but I’d belly-ache about the language. More than a few opposing lawyers and judges would look at me like I was from Mars.

In recent years, however, I get an understanding nod. Enough of us have raised the issue — and this language is important because we don’t want judges referring to these things as “independent” when a jury is sitting in the box — that the language is now being challenged in the highest halls of justice.

So let me be the first to proclaim that the “independent” medical exam is dead. Sure, it may still take a few years to see it buried altogether, but make no mistake about it, it is on an irreversible course to the trash heap of litigation history.

 

November 24th, 2009

Buried in Wrong Grave, Exhumed and Reburied Without Consent (Who’s in Charge?)


A week ago I quietly passed my three year blawgiversary. And now after three years I’m doing something I’ve never done here; writing about a pending matter in my office.

This has been playing out in Newsday starting with a front page story on November 13th, seen at right. A man had been buried in the wrong grave the week before and, when the cemetery realized what it had done, it dug up the remains and re-buried them. The cemetery did so without the permission of the family, or even their knowledge. They did so without clergy, without a service, without any of the rites and rituals accorded to the dead and their families to which they were entitled.

Newsday subsequently revealed that this was the third time in a year that the cemetery has buried someone in the wrong grave. And further, that the cemetery’s manager, Vincent Iannocci, “had no prior experience running a cemetery.” Iannucci is a Republican town committeeman. The job pays $83,388 per year.

The place is Greenfield Cemetery, managed by the Town of Hempstead, and apparently the only town on Long Island to own a cemetery. The elected supervisor of the Town is Kate Murray.

I break my blog silence due to a Newsday editorial today that lauds the Town and Ms. Murray for acting “quickly to minimize the fallout from recent burial errors” by suspending Iannucci for 30 days and re-assigning him elsewhere.

But Newsday completely missed the important issues here:

1. Who hired a man to an 83K job running a cemetery when he has no experience?
2. What did Iannoucci do to get that job?
3. What (if anything) did the person that hired him get?
4. How can someone bury three different people in the wrong graves in one year and not be fired outright?
5. Why would the Town keep someone employed who appears to have engaged in a cover-up by exhuming and re-burying a body without getting the consent of the family and allowing them to be present? What other taxpayer-funded position would he be “reassigned” to?
6. Why isn’t the person that hired Iannoucci being fired for incompetence?

The case reminds me, to some extent, of Michael “You’re doing a heckuva job” Brownie who ran FEMA during the Katrina disaster. A political flunky whose prior experience was being the Judges and Stewards Commissioner for the International Arabian Horse Association.

If Iannoucci was a political appointee, then the person that hired him must be held accountable. Political connections are no substitute for competence.

Last time I checked, we were in a recession with 10% unemployment. It shouldn’t be too difficult finding a competent manager with experience. The voters and taxpayers of the Town should be appalled, not only that mistaken burials have been occurring, but that someone without experience was hired for the job, appeared to cover it up, and will nevertheless be allowed to continue on the public payroll.

Two footnotes:

  • First, this piece is written with the consent of the widow of the man who was buried, then exhumed and reburied without permission.

 

November 23rd, 2009

Anne Reed, Editor of Deliberations, Moves On (New Job and Blog Bites The Dust)


Anne Reed, Wisconsin lawyer and creator of the wonderful Deliberations blog about juries, is calling it quits with respect to the law firm (Reinhart Boerner Van Deuren SC) she’s been at for 28 years. She moves on now to be the Executive Director of the Wisconsin Humane Society (where her mug shot already graces its front page).

Anne had a great perspective on juries and the selection process, on studies about how people (and groups) think and many a tip on how to approach the actual trial of a case. It’s clear that the legal blogosphere loses a terrific voice as she closes down Deliberations.

I’m likely not the first, and certainly won’t be the last, to wish her all the best in her new endeavor. I’m also probably not the only one to wonder if she will blog about the experience of morphing from a career in law to a new area.

And if any lawyers wondering about how to go about blogging are reading this, this is what happens if you blog well. From her firm bio, which is likely about to disappear:

Anne writes about juries and jury selection in her Web blog, Deliberations, which is listed in the ABA Journal’s selection in 2007 of the top legal blogs. Because of her work in this area, Anne has been quoted in the ABA Journal, the National Law Journal, the Los Angeles Times, Lawyers USA and the Wisconsin Law Journal, among others.

On a final note, our dog Tucker was rescued by a humane group similar to the one Anne is going to work for.

He is, to say the least, grateful that people such as Anne exist in this world, or he would still be wandering the streets and garbage dumps of the place of his birth. Instead he gets to chase squirrels and endlessly sniff the personal parts of every resident and visitor to cross our threshold.

And that makes him happy.

Anne, Tucker wishes you all the best.

Links to this post:

Around the web, November 30
Dangers work both ways? Third-party litigation finance proposed for the defense side [Longstreth, American Lawyer] Related: “Investing in Lawsuits: ‘Litigation Financing’ and the Consumer Protection Imperative” [Leichty/Thomason, WLF, …

posted by Walter Olson @ November 30, 2009 6:44 AM

November 24 roundup
“California’s Largest Cities and Counties Spent More Than $500 Million in Litigation Costs in Two Years” [CACALA]; Violence Policy Center blames handgun carry permits for offenses that include … strangulation? …
posted by Walter Olson @ November 24, 2009 8:45 AM

 

November 20th, 2009

Linkworthy


New York gets a new blogger, doing his thing at Lou and The Law. Lou has been an occasional commenter here, and comes from the defense side of the aisle having worked as senior trial attorney for Liberty Mutual Insurance for almost 30 years. Worth reading for New York practitioners is Late Expert Disclosure Affidavits, and it is worth it because the statute governing expert affidavits doesn’t actually have a time frame in it.

John Hochfelder rants against New York’s appellate judges who knock down jury awards, but fail to explain why;

Mark Bennett has 16 Rules for Lawyers Who (Think They) Want to Market Online. Proceed with caution.

But Bennett missed this one: Don’t use the names of your competitors as keywords for Google ads, as the Milwaukee personal injury firm of Cannon & Dunphy now learns as their name turns to mud;

And more from the attorney advertising department: Florida settles a case that now allows lawyers to use sites like Avvo and LinkedIn.

Carolyn Elefant on Google’s new research tool, Google Scholar, and what it means for lawyers. I know what it means for me, as I discovered that I’ve been cited in a couple of law reviews, a litigation reporter, and a medical journal.

Mickey Mouse sued Donald Duck;

Is there a cause of action for Goth Discrimination?

What happens if you dress up like a suspect?

The family of a dead man — who it turns out wasn’t quite dead yet — wants to sue the medical examiner;

As tort “reform” comes up in the debate over the health care bill — along with screams of excess litigation and frivolous suits — a reminder from Public Citizen that the actual data on tort trials is that they have decreased in number over the years;

Scott Greenfield shreds New York’s new drunk-driver law;

The Personal Injury Law Round-Up is up at TortsProf; and

Blawg Review #238 is up at the Twin Cities Carry Journal, authored by Joel Rosenberg, prolific novelist, non lawyer and Jew With a Gun. His theme? Tolerance (and the lack thereof), with an introduction by one of the all time great political-humor songs.