May 13th, 2008

Jury Rejects Secondhand Smoke Suit by Former Numbers Kingpin

Raymond Marquez smoked for 30 years and then quit. Then, after being locked up at Rikers Island for 29 months awaiting trial, he got bladder cancer. He blamed the City of New York for the cancer, since the city’s Department of Corrections runs the jail and permitted indoor smoking while he was there. Smoking is the leading cause of bladder cancer.

According to Marquez, smoking indoors was permitted between 1998-2001 when he was awaiting trial, and that the secondhand smoke traveled through the ventilation system. The policy changed in 2003 to ban indoor smoking.

While Marquez said he had smoked from age 15 to 45, he also said that he had stopped for 23 years. He also claimed, incredibly, that he never inhaled. The medical underpinning of the suit was his claim that after 20 years of smoking cessation the risk of bladder cancer is as low as that of a non-smoker. The 78 year old plaintiff said, therefore, that the cancer must have come from the jail house smoke.

A New York jury that returned a verdict Friday didn’t think much of the claim from the plaintiff, who used to be “the foremost kingpin of the city’s illegal numbers rackets” and was known as Spanish Raymond. He had previously pleaded guilty to gambling charges, but was acquitted of the new charges. (The acquittal was not before the jury.) And after a two-week trial on the smoking case, and just over an hour of deliberation, the jury tossed it.

When I first heard about the litigation, it sounded like a dog, and I don’t know any reputable personal injury firm that would have taken it. And as it turns out, the suit was brought by the plaintiff’s son, who happens to be a local attorney. (I once went down that road myself, representing my father, with thankfully much different results.)

It seems now that the city wants to use this suit for its propaganda benefits, claiming in a press release (below) that this is an example of “ridiculous lawsuits.” Using anecdotes is a fairly typical method of trying to win tort “reform” arguments, but it is also pretty useless in this setting. Pulling out the bad cases for display to the public tells you nothing about the good ones that the city remains mum on.

(Full Disclosure: Defense counsel Scot Gleason is a good friend of mine who has also worked for me in the past on an “of counsel” basis.)

See also:

 

May 12th, 2008

Jet Blue Hit With Toilet Lawsuit (Updated)

Another day, another idiot. I see the headline, “NY man sues airline over flight spent in toilet,” with a demand for two million bucks, and all I can think is, Did the tort ‘reformers’ pay them to do that?

It isn’t even Christmas yet. Not even close. And yet there seems to be this compulsion to hand gifts to corporate protectionists trying to slam the courthouse doors closed.

The basic facts of the story are that the plaintiff was allowed to board a packed Jet Blue flight, but was then told he had to sit in the toilet for the second half because a flight attendant needed his seat. While the facts seem ludicrous, I’ll give the guy the benefit of the doubt for the moment that someone effed up by putting one too many people on board, and that he deserves compensation of some kind (and that the FAA should investigate). If everything he says about the facts were true, as reported in the newspaper, a free ticket or two would certainly be in order. That’s why we have Small Claims Court.

My beef is with the idiotic demand for millions for “extreme humiliation” in New York’s Supreme Court.

Where do I start? How about here: The lawyers who brought this suit don’t do personal injury law for a living. How do I know this? Easy. They sued for $2,000,000 for personal injuries. Except that every personal injury attorney in New York, or at least every one that does this on any kind of regular basis, knows that New York banned the practice of monetary demands in personal injury suits years ago. (See: New York Cleans Up Claims Act)

So after getting the big tip off that this firm didn’t practice personal injury law, I logged on the court’s computers to double check. The suit was brought by a firm called Akin & Smith. And if you check their web site you will see that they practice in the field of employment and discrimination suits. I see nothing about personal injury. [See Update 1 below]

Hey guys, thanks a lot for helping to smear those of us that actually practice in this arena. Really, we appreciate it. I have three cases coming up for trial for people whose lives have been profoundly altered by negligence, and now I have to hear jurors talk about crap like this?

If this guy sues JetBlue for extreme humiliation for what they did to him, can attorneys who actually know what they are doing sue him for what he has done to us?

Update 1 — 5/15/08: It seems I missed the mark on whether this firm does personal injury work. I recieved this email about the firm from Louis J. Schepp:

You talk about the plaintiff’s attorneys, Akin & Smith as not doing personal injury work. During my days (29 years) at Liberty Mutual, I had dealings, in the last few years, with this firm in cases involving personal injury in both State and Federal Court. They do a sufficient amount of personal injury work, that they should know the rules about ad damnums, but may have wanted to get the press that large ad damnums bring.

On the other hand they may have wanted to start the clock on removal as soon as possible. Putting the ad damnum in the complaint is good strategy, (the statute does not provide any real penalty for putting it in) as it starts the time running on Federal court removal. I had a number of cases that I removed to Federal court, that I would not have been able to do so, if the ad damnum had been in the complaint, since the 30 day time limit is unforgiving.

Update 2: JetBlueLoo Follow-Up: What Really Happened? (5/15/08)
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Link is via TinyURL redirect, so their website doesn’t benefit from any Pagerank as a result of this post.

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Photo credit: From Wikimedia Commons

 

May 10th, 2008

Bork Slouches Into Settlement

Judge Robert Bork has settled his slip and fall case against the Yale Club, according to the Associated Press. The action had subjected Judge Bork — active tort “reformer,” conservative icon and former Reagan appointee to the Supreme Court that was shot down in the Senate — to widespread ridicule due to both the nature of the action and the outrageous and legally impermissible demands that he made. I’ve covered the suit here extensively.

This accident occurred, according to the Complaint, because of a lack of assistance or handrails while he was stepping up onto the podium to speak at the Yale Club for a conservative function. But the heart and soul of the scathing criticism that followed was due to the outrageous demands he made in this apparently routine slip-and-fall case (or trip and fall, the Complaint wasn’t really specific). Among the demands were:

  • An amount “in excess” of $1,000,000 in compensatory damages;
  • Punitive damages;
  • Legal fees
  • Pre-judgment interest.

Leaving aside the amount of the compensatory damages, the demand for punitive damages was just plain dumb. There was nothing in the Complaint to suggest any recklessness or intent on the part of the Yale Club that would warrant punitive damages, or that the injuries called for such a high compensatory demand. According to the Complaint, he suffered a hematoma in the leg that required surgery and months of rehabilitation. Whether that surgery was a drainage in the emergency room or something bigger, we don’t know, but if it required an admission to the hospital he likely would have put that in the Complaint.

But worse yet to me, as evidence he and his counsel didn’t really know what they were doing with this kind of suit, was that Judge Bork made a demand for legal fees and pre-judgment interest. That’s worse because neither can even be legally recovered in New York. And that meant that a big-time judge both didn’t know the law, and didn’t hire someone who did. (In fact, Judge Bork’s BigLaw counsel flunked basic drafting by failing to even properly allege who owned, operated and controlled the premises.) I did an extensive analysis of the original Complaint here: Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees.

The firestorm of ridicule was deep and strong, and even included one of his own; Ted Frank at Overlawyered called the suit “embarrassingly silly.” It was so bad that Judge Bork’s own son went on to the Overlawywered site to defend his father in the comments.

Being the good sport that I am, I suggested ways for Judge Bork to fix his many problems, among them getting the hell out of federal court due to the additional expense, dumping impermissible claims, cleaning up the drafting deficiencies in the Complaint and bringing the action in state court if it actually had merit (See: What Bork Should Do Now).

That botched Complaint did get amended, but it was clear that despite the wealth of commentary that was available on the subject (not to mention the many thousands of personal injury attorneys in the state), he was still incapable of getting it right. Thus came my open letter to the judge on the subject analyzing his amendments and their failings: Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages.

The dismissal comes to light from a simple docket entry yesterday in the court’s computer dated yesterday:

ORDER OF DISMISSAL: that the above-captioned action be, and hereby is, dismissed without costs and without prejudice to restoring the action to this Court’s calendar if the application to restore the action is made within 30 days. (Signed by Judge Naomi Reice Buchwald on 4/24/08)

My best guess is that the damage to Judge Bork’s reputation from botching the lawsuit exceeds the physical injuries he may have suffered.

And the man who botched all the lawyering? He was first appointed to Rudy Giuliani’s judicial search committee, and then earlier this week to John McCain’s. As I think is clear by now, hiring someone whose strength is political connections, when you actually need a practicing lawyer, is a mistake.

 

May 9th, 2008

Linkworthy

From a family doctor at Musings of a Dinosaur, comes this worthwhile read: Managing Risk:

“Despite its bad rap, the legal system really does work more often than it doesn’t”

The Mommy Blawg hosts Blawg Review #158;

John Guyette from the Center for Justice and Democracy gets the call for jury duty, which he recounts at The PopTort; and

Brooks Schuelke puts up Personal Injury Law Round-Up #61, that includes among its nuggets this medical malpractice story of a screwdriver being substituted for a titanium rod in back surgery.

 

May 8th, 2008

NY Pension Scandal: "The Predominant Class Will be Lawyers"

The brouhaha that started out on Long Island with part-time private lawyers being listed as full-time public employees in schools and getting pension benefits, has now mushroomed into a full blown scandal. According to tomorrow’s New York Law Journal, New York Attorney General Andrew Cuomo is predicting that “hundreds and hundreds” of attorneys will ultimately be implicated in his office’s investigation of government entities improperly enrolling non-employees in public pension funds.

And this is the scary part, while “there will be people beyond lawyers” found to be receiving improper public pension benefits, “the predominant class will be lawyers.”

The story broke February 15th with this story in Newsday after an investigation by auditors with the New York State Comptroller’s Office: Five districts falsely reported lawyer’s job status. At that time a part-time municipal attorney found to be on the employment rolls of five different school districts defended himself by saying it was “common practice.” It appears now that that may have been true, that it was common practice. But if everyone in your area runs a stop sign, it is no defense when you get busted to say that everyone does it.

Careers are about to go up in smoke. Many, many careers. This “PensionEsq.” scandal will be with us for a long, long time.

Scott Greenfield, author of Simple Justice (and criminal defense lawyer extraordinaire) has been providing extensive coverage to date:

Updated with commentary/news on the scandal:

  • “The Predominant Class Will Be Lawyers” (5/9/08; Greenfield):

    The patchwork quilt of what I call “baby governments” is rife with corruption, but it’s mostly of the petty sort. A dime here, a dollar there, a harmless little violation of the open meetings law, a blow-off of the freedom of information law. Selective and vindictive resolution of problems or enforcement of law. That sort of stuff. The sort that allows the big fish in tiny little ponds to feel self-important and powerful, all on someone else’s dime.

  • Pension Probe Will Snare ‘Hundreds’ of Attorneys, N.Y. Attorney General Predicts (5/9/08: Albany’s Insanity)

    For those of you that continually come out and defend the inept governments of this state, for those of you that just love to personally attack people like us for calling it like we see it, just read, it is just like we have been saying for years, time to open your eyes, take off the blindfolds and go after this crap.

  • Cuomo Sees Fraud in Some Lawyers’ Pensions (5/9/08; New York Times)

    Over the years, Mr. Cuomo said, the benefits have become a standard and expected perk for the lawyers, who often have political ties to the officials handing out the benefit. The system has proliferated, Mr. Cuomo suggested, because of New York’s profusion of state, county and local governments.