April 8th, 2008

State Farm Hit With New RICO Suit, Brought as Class Action by Patient for Sham Exams

State Farm was hit last week by yet another racketeering lawsuit. The new suit is brought by a patient charging that State Farm was conspiring with so called “independent” medical exam companies to conduct sham exams designed to deprive injured people of benefits under New York’s No Fault law.

Unlike the suit brought two months ago (see State Farm Hit With Civil RICO Claim Over Sham Medical Exams), which was brought by a physician charging that his practice suffered as a result of collusion between State Farm, medical exam companies and physicians, this one was brought by a patient and brought as a class action.

The suits arise as a result of New York’s No-Fault law, that mandates each motor have insurance that provides up to $50,000 in basic economic loss regardless of fault. This loss includes both medical expenses as well as lost wages, among other things. (In exchange, the injured person surrenders the right to bring suit unless a serious injury has occurred.) As a condition to the treatment that the injured may obtain from their own medical providers, the insurance companies are entitled to force exams by their own “independent” physicians to see if the treatment is necessary. These so-called independent exams may thus be the means by which insurers stop paying for treatment, and has been the basis of these lawsuits.

The suit is brought by Bruce Rosenberg of Bellmore New York, who had also brought the prior State Farm suit as well as another by a practitioner against Allstate (see: Allstate Slammed With RICO Charge Over Sham Medical Exams).

The subject has been smoking hot around here, as one of the defendant doctors responded on this blog with a guest post (see: A Doctor, Sued In Insurance Company RICO Suit, Responds To The Charge). In the comments, other defendants have also stepped forward, and thus far 39 comments have been recorded as the subject sizzles on, away from this blog’s main page.

I don’t know attorney Rosenberg, but he clearly seems to be taking on an entire industry with these three suits (and one wonders if more are to come from other patients). And if he has the goods, evidence-wise, we may see some remarkable legal action in the year or two ahead.

Hat tip to David Gottlieb who first uncovered the suit and blogged it at No Fault Paradise.

The suit was filed in the United States District Court for the Eastern District of New York. A copy of the suit is here: RICO-Sundahl-v.StateFarm.pdf

 

April 6th, 2008

One Million Page Views

It happened, ironically, with an April Fool’s Day post. I passed the one million mark in page views.

I’m not quite sure what to make of it, since I’ve never really been able to figure out from the stats what represents human eyes and what represents spider eyes. And I know that many stumble in here simply because they are doing image searches or have used the images in various forums and blogs. Another stat, “visitors” passed the 500,000 mark and “unique visitors” is approaching 300,000.

If I had to decide what the most important metrics were, however, I would say:

  • The number of comments, because that means folks are reading the content, and they often add new dimensions to the original post. I’ve never calculated them, though I can see there has been a marked increase in the last two months. Seeing 5-10 comments on a posting is no longer unusual, and some have generated over 20.
  • The number of favorable comments, which of course, isn’t quite the same as overall comments. I’m shocked, shocked I tell you , that some folks seem to have a knee-jerk reaction to personal injury attorneys, no matter what is written.
  • The incoming links, because that also means people are reading and finding it useful to point others here. Technorati counts those for me, and I see 1,600+ incoming links. Of course that also includes spam blogs and double links coming in from some places.

But for whoever it is out there that has stopped by my tiny corner of cyberspace these past 17 months, I thank you. I’ve very much enjoyed doing this, and hope to continue as time permits.

 

April 4th, 2008

Linkworthy

Some links for the weekend:

Brooks Schuelke with this week’s Personal Injury Round-Up #56. Since he called my Tuesday post the “biggest April Fool’s Day joke in the history of the blogosphere,” I think he deserves a link. That, and he always digs out stories that I miss.

And Blawg Review #153 this week was turned into Blarrgh Review! by George Wallace at Declarations and Exclusions with a pirate theme. That’s a tough act to follow, which he then proceeded to do with an appendix published on April Fool’s Day at his other blog, a fool in the forest.

It’s a good thing I won’t be doing another one of these until December. I need a long time to think.

 

April 4th, 2008

Abuse of Process: Blogger, Unrelated to Action, Hit With Subpoena

If you haven’t heard about Kathleen Seidel, you will now. She’s a New Hampshire blogger and writer about issues of autism at her site Neurodiversity. And while she has no direct connection to the Virginia lawsuit Sykes v. Bayer, plaintiff’s counsel Clifford Shoemaker has nevertheless hit her with a subpoena.

I don’t generally like to write “me too” posts for things broadly covered by others. But when some piece of abusive conduct takes place within the legal system — one that not only affects the individuals involved but can set ugly precedents for those of us that write freely under the protections of the First Amendment — then my reticence to type must be supplanted by an emphatic joining of the chorus of condemnation.

Just to be clear here, this post isn’t about whether the underlying lawsuit is a good one or not. The suit apparently deals with whether mercury additives to vaccines caused the plaintiff’s autism. I haven’t read it. This is about going after the citizen-journalist for having the audacity to speak freely on a subject.

She has produced her own motion to quash the subpoena. And here are the nuts and bolts of Shoemaker’s outrageous demands, made merely because she is writing on the subject:

The subpoena commands production of “all documents pertaining to the setup, financing, running, research, maintaining the website http://www.neurodiversity.com” — including but not limited to material mentioning the plaintiffs — and the names of all persons “helping, paying or facilitating in any fashion” my endeavors. The subpoena demands bank statements, cancelled checks, donation records, tax returns, Freedom of Information Act requests, LexisNexis® and PACER usage records. The subpoena demands copies of all of my communications concerning any issue which is included on my website, including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any “religious groups (Muslim or otherwise), or individuals with religious affiliations,” and any other “concerned individuals.”

She has argued First Amendment protection and journalistic protection among other factors. I urge you to read the link above for her self-drafted motion to quash.

But there is one thing she didn’t do, and I suggest it here. She didn’t explicitly ask for sanctions. But that should not stop a judge from imposing them, even if the growing chorus of blogospheric condemnation makes Shoemaker rethink his strategy (and his Google reputation) and withdraw the outrageous subpoena. A litigant need not ask for sanctions under Rule 11 for the court to act.

Under Chambers v. NASCO, decided by the Supreme Court in 1991, the court held that because federal courts have the inherent power to manage their own proceedings and to control the conduct of those who appear before them, they also have the inherent power to punish conduct which abuses the judicial process. This may occur when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. And that seems to fit the bill here when a litigant goes after a non-litigant with a subpoena that he knows cannot stand scrutiny.

Go get ’em.

Update, 4/22/08: Subponea on Blogger Seidel Quashed; Attorney Shoemaker May Be Sanctioned

Other commentary (hat tip Overlawyered):

  • Kathleen Seidel’s Blog: Influence Means You Get Subpoened (Law and More):

    If the motion isn’t granted, then we bloggers have to think twice before we take on specific lawyers.

  • Neurodiversity Blogger Unfairly Subpoenaed (The Voyage):

    I also think, like every previous attempt to persecute a blogger without just cause, this will go badly against Sykes and Shoemaker. Haven’t they heard of the Streisand effect?

  • Vaccine-Litigant Thuggery: Subpoenaed For Blogging (Popehat), with this money quote:

    Mr. Shoemaker, shame on you. You bullying is contemptible, and if there is any justice in this situation, you will get your critic-intimidating, oversensitive ass handed to you in the motion to quash.

  • Kathleen Seidel Has Received a Sub-Poena… (Holford Watch):

    The subpoena is eye-wateringly intrusive and is clearly intended to intimidate

  • Evidence of Slime (Grey Matter/White Matter)

    I know it’s not fair to make snide remarks about lawyers as if they were all bad. But this is bad. This is the kind of repulsive, nauseating, slimy behavior that gives lawyers a bad name.

  • Blogger ensnared in hotly contested autism-vaccine lawsuit (Ars Technica):

    One of those lawsuits has now embroiled an autism blogger, Kathleen Seidel, and her attempts to stay out of it may wind up testing constitutional issues and the role of citizen-journalists.

  • Subpoena sleaze (Marc Randazza at Legal Satryicon) 4/10/08:

    Hopefully the judge will be one of the rare few with the chram to actually make Rule 11 mean something.

  • Cyber-Slapp (James Taranto, WSJ) – 4/10/08:

    Assuming that Seidel’s representations are accurate, this is a classic Slapp, an acronym for “strategic lawsuit against public participation.” Such legal actions may become more common as citizens increasingly participate in public debates by way of blogs and other Web media.

  • Blogger Kathleen Seidel Fights Subpoena Seeking Information About Vaccine Litigation (Citizen Media Law Project – Berkman Center for Internet and Society) – 4/11/08:

    We’ve been following the subpoena issued to Kathleen Seidel in the Citizen Media Law Project’s Legal Threats Database, but thought it was time to throw our support behind Seidel and post about this egregious attempt to chill online speech. (Sykes v. Seidel)

  • Blogger Subpoenaed (Floor9.com), 4/11/08:

    What becomes blisteringly apparent from the start is that it’s simply meant to overwhelm the blogger with ridiculous requests for irrelevant information, presumably in the hopes that the blogger will simply throw up her arms in dispair and print a retraction.

 

April 2nd, 2008

Deconstructing a Fantasy (And Who Was Duped?)

Maybe fantasies weren’t meant to be deconstructed. But in both baseball and the law such analysis takes place all the time.

So here goes. The idea for the April 1 post on the Supreme Court granting cert in the fantasy baseball case — with three justices recusing themselves and two not — stems from some very real issues and a very real case.

First: Recusals can be huge. In the set-up for the post two weeks ago (see, Recusal In the High Court…For Fantasy Baseball?) I noted all the commentary in the legal blogosphere over it, as Chief Justice Roberts stepped aside in Warner-Lambert v. Kent, resulting in a 4-4 split, and therefore no decision. The real world application of such a split was discussed at the Drug and Device Law blog a month ago.

Second: Not only is it a problem with a justice not being replaced if s/he steps aside, but the issue of when a justice should step aside has been hotly debated, with both Scalia and Alito previously in the cross-fire.

Third: Enter, stage right, a real case about fantasy baseball that could wind up in the high court, as a cert petition was filed.

Fourth: We know that some of the justices are baseball fans (or at least we know Alito and Stevens are, as the links at my posts were real).

So that brings us to the “what if” factor of a justice having a minor financial interest in the outcome. If s/he happens to belong to a fantasy league, in the example I used, there will be a financial interest, albeit a small one. But the ethics law doesn’t draw any lines as to how much. And that means different judges can decide different ways, and the decision is unreviewable. (Or it means that another statute exists that I don’t know about, but what the hell, I had a good time anyway.)

So far as I was concerned, the stars were aligned for a posting on the subject that might make a few folks think about the issue, and perhaps for a bit of fun, zing a few people who weren’t paying close attention to the clues at the end that it wasn’t 100% on the level. (Of course, with a petition for cert pending, you never know…)

Who was duped on a day everyone was looking out for hoaxes? Among the honorees…

The three biggest clues, which I buried near the bottom under the theory that many people wouldn’t bother to read the whole thing after getting the gist of it:

  • Siddartha “Sidd” Finch making a comeback;
  • The name of the league is “Articles for Deletion (AFD also being the acronym for April Fools Day);
  • And Justice Stevens’ co-owner was “Ernie Thayer.” Ernest Thayer wrote Casey at the Bat. And the Stevens/Thayer team, I wrote, “drafted the much despised Jimmy Blake.” Who is Jimmy Blake? You can ask this commenter at Volokh, or read a portion of the immortal poem, as the crowd despairs that their savior isn’t even in the on deck circle:

    But Flynn preceded Casey, as did also Jimmy Blake,
    And the former was a lulu and the latter was a cake;
    So upon that stricken multitude grim melancholy sat,
    For there seemed but little chance of Casey’s getting to the bat.

    But Flynn let drive a single, to the wonderment of all,
    And Blake, the much despis-ed, tore the cover off the ball;
    And when the dust had lifted, and the men saw what had occurred,
    There was Jimmy safe at second and Flynn a-hugging third.

The set-up from two weeks ago, by the way, had a hidden message in it. But you have to read the first letter of each paragraph to find it.

My thanks to David Lat (who was in on the joke) for using his considerable megaphone at Above the Law by broadcasting it first thing in the morning, and to Scott Greenfield for vetting an early draft and making up lies about me.

Also, stories and reviews: