December 11th, 2007

Best Buy Sends Out Nastygram To Blog Reporting On Parody

Best Buy clearly doesn’t like being the butt of a joke. We know this because a group called Improv Everywhere sent about 80 people into one of their New York stores wearing blue polo shirts to stand around. They did not claim to be employees. They just stood around dressed like them. For yucks. Now the lawyer letters are flying.

According to an extensive write up of the escapade, “The reaction from the employees was pretty typical as far as our missions go. The lower level employees laughed and got a kick out of it while the managers and security guards freaked out.”

Then, when the stunt was over, they sold shirts. With a parody of the Best Buy logo, seen here above right. So Best Buy sent their first cease and desist letter.

Then someone else blogged about it, at a site called Laughing Squid. And then they got a cease and desist letter for reporting the story, claiming trademark and copyright infringement, which letter they have conveniently put up at their site. And just for the record, the one they got was much fancier than the one that Avis sent to me for using their logo.

Someone ought to direct those folks to that little thing called the First Amendment.

(And to save the Best Buy legal department some time, let me say that I don’t sell the shirts, I’m just reporting the story for the other attorneys in the blawgosphere that are interested.)

(hat tip: The Consumerist)

Addendum 12/12/07Best Buy has apologized for the cease and desist letter to Laughing Squid.

 

December 11th, 2007

New York Chief Judge Flip-Flops On Lawsuit. Again

New York’s Chief Judge, Judith Kaye, threatened to bring a lawsuit for judicial pay raises in April (New York’s Chief Judge Threatens To Sue For Pay Raises).

Then she changed her mind in July (A Judicial Brawl in New York As Chief Judge Kaye Abandons Lawsuit Threat).

Now, according to this AP report, she is once again threatening a lawsuit (NY’s chief judge says she may sue over judicial pay raises, via Judicial Reports).

What, exactly, is the rest of the state’s judiciary to think?

Links to this post:

eric turkewitz of new york personal injury law blog [lexblog q & a]
eric turkewitz, the new york attorney and founder of the turkewitz law firm, is the featured interview subject for today’s lexblog q & a. aside from his legal work, eric also runs a blog, the new york personal injury law blog,

posted by [email protected] (Rob La Gatta) @ February 21, 2008 2:49 PM

eric turkewitz of new york personal injury law blog [lexblog q & a]
eric turkewitz, the new york attorney and founder of the turkewitz law firm, is the featured interview subject for today’s lexblog q & a. aside from his legal work, eric also runs a blog, the new york personal injury law blog,

posted by [email protected] (Rob La Gatta) @ February 21, 2008 2:49 PM

anything that fits, they’ll print
after another round of threatening, pleading and cajoling, the issue of judicial pay raised for new york’s judges came back to the editorial page of the new york times this week. as eric the turk noted, chief judge judy kaye
posted by SHG @ December 14, 2007 2:07 PM

 

December 11th, 2007

Studies: 1,500 Surgical Objects Left In U.S. Patients Each Year

See that clamp to the right? It was left inside a patient. Think it’s unusual? Studies show that about 1,500 times a year surgical objects are left behind by mistake in the U.S.

This, of course, isn’t supposed to happen. The surgical team is supposed to count all that goes in, and then count all that comes out. If the counts don’t match, something is wrong.

The prior technology to find the missing equipment, which is most often a sponge or pad, is to have a radio opaque filament inside so that it shows up on an x-ray. An example of that can be seen at the film below left. (Some folks collect baseballs, some collect figurines, but a medical malpractice attorney collects, well, this stuff.)

Now a new technology is coming out where the sponges and pads will be bar coded, according to this article. The sponges are supposed to be scanned when they go in and re-scanned when the come out, and the scanning machine is supposed to set off a racket if everything is not accounted for. Will this help cut down on the human error that accounts for the current state of things? Perhaps.

The medical euphemism for these forgotten objects, by the way, is that the object was “retained,” as if the body itself demanded it be left behind. And that is one of the ways that language is subtlety used to shift blame away from the medical team for its failure to keep track of the instruments.

 

December 10th, 2007

New York Defendant Demands 76 Private Interviews In Wake Of Arons Decision

A New York medical malpractice defense firm has demanded permission to conduct 76 private interviews regarding the plaintiff’s medical care. The request came in the immediate wake of Arons v. Jutkowitz, a Court of Appeals decision that permits informal interviews with treating physicians, a discovery tactic not previously permitted under New York law. The defense request goes well beyond treating physicians, and seeks broad based interview authority for entire institutions as well as inanimate objects.

On the day Arons was decided, I wrote that “This is a bad decision that will inevitably result in a mountain of litigation.” I specifically pointed to the statement by Judge Read (pictured), author of the majority, that:

“it is of course assumed that attorneys would make their identity and interest known to interviewees and comport themselves ethically”

The “just trust me, I’m a defense lawyer” rationale, however, is not a substitute for HIPAA. It is a setup for abuse.

And so now the abuse of the decision has started, served on December 4th, less than a week after the decision. The first recorded instance comes in the request for 76 authorizations for ex pate interviews in a medical malpractice case concerning a failure to diagnose and treat breast cancer in a 40+ old woman. Among the requested interviews (document here: 76-Interviews.pdf) are requests for 27 interviews that don’t even pertain to human beings, including:

  • “Pathology slides;”
  • “Clove Lakes Entity;”
  • “Methodist Hospital Lab;”
  • “Qwest” (another lab);
  • “GHI” (health insurer);
  • “Alpha Neuro” (Your guess is as good as mine)

In an interview I conducted with plaintiff’s counsel in this case, Bob Vilensky, he wondered aloud as to what the buildings, laboratories and pathology slides would say. (The demand is not for medical records or for physical inspections, but for interviews.)

In contrast to my concerns about the problems that would ensue with the Arons decision, Beck/Herrmann at the Drug and Device Blog, extolled the virtues of the decision and in the comments disputed my view of the dangers, saying, “Most defense types bill by the hour, so the clients don’t want to pay for irrelevant rummaging … ”

Well, I think this conduct, which was easily predictable, should put that argument to rest. And I don’t think this will be the only outrage, only the first of many. And it should also give pause to those that claim the high cost of litigation is due to the actions of plaintiffs’ attorneys.

The judges are going to have their hands full.

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

Links to this post:

New York does not recognize all that many privileges. Attorney
New York does not recognize all that many privileges. Attorney-client; spouse; Physician, dentist, podiatrist, chiropractor and nurse; clergy; psychologist; social worker; Rape crisis counselor. (Library records are confidential,
posted by Bill @ December 12, 2007 3:38 PM

 

December 9th, 2007

A Lawyer’s Car Accident (My Own)

I was in a car accident Friday night. Multiple car collision. On the Hutchinson River Parkway.

For those unfamiliar with the road, the Hutch is a narrow 1940s era parkway running up from the Bronx to Westchester, twisting and turning and rolling over hills. There is no such thing as straight and level. There are no lights on the Westchester portion where my accident happened. And locals often go 70 mph. It’s a major thoroughfare and very dangerous.

Traveling in the left lane I started to close unexpectedly fast on the car in front of me. Unexpected because no brake lights flashed and my speed hadn’t changed. I braked easily at first, then realized the car in front was stopping or had already come to a stop, and braked harder. Calling this a miserable place to stop would be a significant understatement.

I glanced in the rear view mirror and saw others close behind, and getting closer. I eased off the brake so my stop wouldn’t be quite so hard, hoping to give others some extra yardage to work with, and hoping that if any impact occurred it would at least be at a lower speed.

I finally came to a stop — or as lawyers like to redundantly say, I came to a full and complete stop, because full stop and complete stop aren’t verbose enough — and held my breath.

Then I heard a crunch. Thankfully, it wasn’t me that got crunched.

Then there was a second crunch. My car lurched forward. OK, that was me. But I had left enough room, and the impact wasn’t hard enough to propel me into the car that had stopped in front of me.

The first thing out of my mouth was, “Don’t get out!” to my wife. Our kids were thankfully not with us. I hit the hazard lights.

Now what? Dark parkway, cars rapidly bunching up behind us, others maneuvering and passing in the right hand lane, headlights flashing by us. I handed my cell phone to my wife to call 911, though neither of us were quite sure where on the parkway we exactly were. Despite having traveled the road so often, we were oddly disoriented, a result no doubt of the auto pilot mode we each go into when doing something familiar. My wife wasn’t sure what to tell the 911 operator.

I waited about a minute, saw others in the rear view mirror outside their cars, and slipped out by the guardrail separating northbound from southbound to see if anyone was hurt. The folks in the car in front of me yelled that their car broke down. No one reported an injury.

Now comes the lawyer part. One part of my brain immediately thought it was important to note the location of each car and the sequence of events and, at a bare minimum, to get the license plate information. The smarter part told me me that the sequence was utterly meaningless if I got hit by another in the darkness.

The car in front started to get pushed by its occupants across the right lane to the shoulder, and I became aware that at least one of the cars behind me was also now on the shoulder. The first cop arrived and I deeply welcomed all those flashy, flashy lights so that I could do the same with a bit more safety than my predecessors.

But now the car that had died in front of me was gone! Two occupants of a car behind me went running after it as it was pushed to nearby exit ramp with a downward slope, and apparently was driven off.

Discussion with the other drivers led to this reconstruction: Mystery car with several passengers stopped. I stopped. Car following me with four or so 20-somethings stopped. The last car, with a single driver and no passengers, hit both the guy behind me and somehow then me, ending up directly behind me.

And the 20-somethings that went running after the mystery car were steamed! They say the mystery car had no license plates. The also say that mystery car was the reason for the accident. (I didn”t hear them discuss the car that was following too close to stop in time.)

Now having taken a few depositions in car accident cases and tried one or two of these, a few things were immediately obvious. First, accident reconstruction from the standpoint of the driver is very hard. I think of the questions I have asked over the years and understand the difficulty answering them, regarding the who, what, when, where, why and how of the accident and the attempt to obtain hard facts of numerous fluctuating dynamics in the seconds before a crash. How fast? How far? What were other cars doing? What were you doing? Over and over for different periods of time on a dark parkway. And those questions are often asked years after the accident occurred.

After the cops directed us off the parkway at the exit for the sake of safety — all three cars were drivable — they did a bit of reconstruction with interviews.

But I had this twinge in my neck that I hadn’t previously noticed. Was this a real twinge, or an anxiety-ridden figment of my imagination? It was so slight that I might have even had it before the accident but not appreciated it. My fear, of course, was that because many neck injuries aren’t apparent until the next day or two, that something might have happened. I let one of the cops know about my neck as he handed me back my license, registration and insurance card that I had given him, and he told me he would note it on the report.

We went home. I took two ibuprofen, not for actual pain, but as a precaution against some type of soft tissue injury that I might have experienced. I went to sleep wondering what I would feel like in the morning.

The answer, thankfully, was that I felt just fine. I ran for an hour. I went to Costco with my wife, schlepped stuff around the house, and went out to dinner with friends. I felt good today too, and went for another run. I expect that if I have any soreness tomorrow, it will only be from running.

There is a point to this story. When I sat jury duty many years ago, I considered it an invaluable lesson in being a trial lawyer. No lawyer should ever try to avoid jury duty. Sitting in the box was a brand new perspective that is impossible to appreciate from any other spot inside the courtroom well. (See: Personal Injury Lawyer Talks Himself Off Jury Duty)

And I think the same will be true for being in an accident and trying to reconstruct it from the inside. But unlike jury duty, I would do everything possible to avoid it.