September 14th, 2007

Personal Injury Law Round-Up #28

The New York Personal Injury Law Blog brings you the week that was:

We start, as usual, with pre-litigation issues:

TortsProf Bill Childs discusses a man who died on the Coney Island Cyclone this summer. Or did he?

The failed tort “reform” experiment in Michigan was in the Detroit Free Press, and Tort Burger – Hold the Reform has the details;

But another type of “reform” has been percolating along, where state court actions get “preempted” by the federal government. Perlmutter and Schuelke have the details of tort “reform” by preemption. (Ironically advocated by those who usually argue about keeping the federal nose out of the state business. But political ideology often disappears when Fortune 500 companies have the checkbook out at election time.)

An article in the National Law Journal ponders whether the Bush administration is now targeting plaintiffs’ attorneys;

John Day (Day on Torts) reports on the tough jury climate in a case where a jury awarded zero dollars for pain and suffering despite a herniated disc with surgery and the defendant was at fault; But Ronald Miller (The Maryland Injury Lawyer Blog) has a different view, as seen through the eyes of a 28-year old article he was reading on the same subject;

And since we are talking herniated discs, if you need a refresher course or haven’t dealt with the subject before, David Gottlieb’s No Fault Paradise points to this site on disc anatomy;

Ted Frank at Overlawyered writes about lawsuits where the passenger was injured while sitting in a reclined seat. The comments section goes wild since the story doesn’t say how far reclined the seat was, giving everyone a chance to spin the story any way they want;

Moving on to the numerous recalls of painted children’s toys that originated in China, the New York Times reports that lead was used because (surprise!) it helped to increase industry profits;

Still overseas, Howard Erichson at MassTorts discusses a new article on suing Saudi Arabia for terrorism activities;

Before moving to litigation, doctor/attorney Dainius A. Drukteinis (NY Emergency Medicine) analyzes the conflicting issues of a patient in handcuffs that has swallowed crack cocaine and a cop that wants his stomach pumped;

Of course, to have a trial you need a judge, and as readers of this space know, New York’s judges are woefully underpaid. And while New York’s Chief Judge Judith Kaye had threatened suit, she then backed down much to the disappointment of her judicial flock. But as Daniel Wise now reports from the New York Law Journal, that didn’t stop four other judges from suing this week for that pay raise, with Chief Judge’s Kaye former Associate Judge on the court, George Bundy Smith, acting as plaintiffs’ counsel. Matthew Lerner has a copy of the Complaint.

Now on to litigation:

Evan Schaeffer starts us off with practice tips on readying your trial notebook;

The Illinois Injury Lawyer Blog reports that a man shot to death by the cops (with 42 bullets) has been sued by one of them;

Showing up for trial is pretty important. And Hans Poppe has this legal malpractice story regarding a car accident, a $1.7M verdict, and the failure by the insurance company lawyer to even contact the defendant to let him know the trial was happening.

Michael Jeffcoat reports on a whopping $55M verdict for a 10 year-old girl catastrophically injured by a U.S. gov’t vehicle, awarded by a U.S. District Court judge;

In the Settlements Department, the ABA Journal reports that Roman Catholic Diocese of San Diego has agreed to pay $198 million to settle claims of clergy sex abuse by 144 alleged victims, following another settlement for $660M for 508 cases in July;

The ABA Journal also brings us this unusual $1.8M settlement from a Washington city, when a drunk driver they mistakenly released from jail killed a man in a hit-and-run accident;

Turning to legal fees, the Legal Pad reports some California courts are capping contingency fees on minors at 25%, a one-size-fits-all judicial rule that seems really bizarre since some cases may settle pre-suit and others may go to verdict, appeal and re-trial.

And finally:

And to those celebrating the New Year, L’Shana Tova Tikatevu.

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

 

September 12th, 2007

Two More Angry Medical Bloggers With Similar Names

The other day I wrote about two blogs with almost identical names — The Angry Pharmacist and The Angriest Pharmacist — and wondered about the intellectual property issues that would arise if such blogs could be shown to have real value.

And now...Angry Doc and The Angry Doctor.

And so, a word of warning: If anyone tries to take my name I’m gonna sic one of those angry medical people on you, because it may be more fun than suing. I don’t think there is any shortage in this department:

There is also The Angry Medic, Angry Scientist, Angry Astronomer, Angry Bear, An Angry Young Man, Angry 365 Days A Year, Angry Blog, Angry Chinese Blogger, and of course, Just Another Angry Blog. Not to mention an Angry Lab Rat.

It seems that, for some reason, AngryLawyer.com and AngryAttorney.com are still available, leaving me to scratch my head at the absence of righteous indignation in the profession.

But if you take one of those domains for yourself, please don’t tread on the grounds of the Angry Pregnant Lawyer, who’s been posting now for 33 months. So she clearly has a right to be pissed.

 

September 12th, 2007

The Days After September 11th — A Tribute To An Attorney

I didn’t feel like writing or talking yesterday about my experiences and feelings on September 11, 2001. I rarely do, even though I was in the city at the time.

But writing about the days after is something different. And in that regard, one lawyer I had the pleasure of meeting deserves a tribute: Kenneth Feinberg.

Feinberg was the Special Master that ran the September 11 Victim Compensation Fund and was responsible for establishing the awards for over 7,300 claims, including over 4,400 for physical injury. But he didn’t just administer the program. He actually conducted many of the hearings. From before dawn until after dusk, in cities throughout the country, he sat in rooms and personally listened to one horror story after another of broken families. According to the final report (p. 73):

During the course of the Fund, 3,962 hearings were held. Of these hearings, the Special Master conducted 931.

Feinberg didn’t just absorb the stories and make the financial decisions, but he also navigated through a ton of abuse from traumatized families due to the way Congress had so quickly set the fund up, which was beyond his control. How well did he do it? Charles Wolf, whose wife died in the north tower, was furious at the start and turned to the web to vent his feelings and rally anti-fund support, but then renamed his critical web site called “Fix the Fund” to “The Fund is Fixed!” He wrote to Feinberg,

“To have one of your sharpest critics follow through on a promise and not only join the program he was criticizing, but promote it to his peers, says a lot about you and the way you have adjusted both the program and your attitude. Today, I have complete faith in you.”

And he did all of it pro bono for almost three years, through the intense anger and raw emotion of family after family after family.

The fund was set up, if you recall, when the airline lobby raced into the Capitol to scream for immunity from litigation immediately after the attack, regardless of any negligent conduct they may have had that allowed the terrorists to breach their security. The planes had about $1.6B in insurance each, which was enough to cover people on the plane but not people or property on the ground. Bankruptcy was a real possibility.

Meanwhile, the American Association for Justice (ATLA at the time), under then President Leo Boyle, had called for a moratorium on any litigation as a result of the attack. When alerted to what the airlines were doing, they insisted to Congress that the injured and families of the dead should not be abandoned while a bailout was given to potentially negligent airlines.

Thus, the fund was born with an airline bailout on one hand, and guaranteed payments to the injured and families of the dead, regardless of fault, on the other. This deal came with the provision that if people participated in the fund they waived their rights to any lawsuit and waived any appeal of the fund’s decision. The fund had 98% participation. A few victims declined to participate and their trials will start shortly.

And in response to the formation of the fund, AAJ gave birth to Trial Lawyers Care. With over 1,000 trial attorneys from every state in the Union, it was the largest pro bono offer of legal services ever created. I was honored to have played a tiny part of this effort estimated at $200M in donated legal services.

I appeared before Feinberg in one of my two hearings — a woman from one WTC building with a head injury she incurred while escaping down a stairwell. And the one thing that occurred to me more than anything else as we sat there, was that he had to have extraordinary intestinal fortitude to listen to so many horror stories, day after day, week after week, month after month. The many boxes of tissues that stood at the ready in the hearing room spoke volumes.

And so I think it is fitting to tip my hat in Ken Feinberg’s direction. In fact, it is fitting for all lawyers to tip their hats in his direction. Not on September 11 when the victims are remembered. But for his contributions in the days after when he got to work.

More Info:


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

 

September 10th, 2007

September 11 Judge Says Families Should Settle And Move On

The New York judge scheduled to hear the 41 lawsuits remaining from the September 11 attack says the families should settle.

Family members are reported to be fuming, according to this New York Post report, at Southern District Court Judge Alvin Hellerstein who said “money is the universal lubricant.” At a recent hearing he said that:

“Each of us has a choice: Either to never forget that pain and have it ever present in our lives, or to fashion a life beyond the pain…Somehow, we need to get past Sept. 11, 2001, as a country and individually.”

After a story about the trials appeared on the front page of the New York Times last week I wrote about the problem many of the families face in The September 11th Lawsuits And The Problem Of Compensable Grief in NY.

The litigating families had refused to participate in the September 11 Victim Compensation Fund due to low awards for those who were not working (such as children, retirees, those with disabilities).

It seems likely that the demand for accountability will, for some, supersede any desire to move on.

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

 

September 7th, 2007

Personal Injury Law Round-Up #27

The New York Personal Injury Law presents the week that was:

Prior to suit, we’ll explore some related issues:

Ronald Miller starts us off with a discussion of medical malpractice caps in Illinois and Maryland at the Maryland Lawyer Blog;

The Consumer Law and Policy Blog picks up a New York Times story on the Consumer Product Safety Commission and how the Bush administration has allowed corporate lobbyists into policy making positions to further the position of big business over consumer protections. The result? Injuries, death and tainted products. They also pick up on the third recall from Mattel. This time it’s Barbie accessories;

David Lowe picks up the story of lung disease from an ingredient in artificially flavored popcorn (which previously was found to affect workers, not consumers, see Round-Up #24). You’ll find the most comprehensive materials on the web regarding “Popcorn Lung” at The Pump Handle. There’s also an interview on the subject with pulmonologist Cecile Rose at the WSJ Health Blog;

Drug safety pops up in a New England Journal of Medicine editorial, and the FDA’s inadequate response to the Institute of Medicine’s 2006 report (via TortsProf);

Last week’s round-up had a small give-and-take on the contingency fee, and David Giacalone continues on at f/k/a with contingency fees and the clueless fiduciary. This part of his post jumped out at me: “Tort lawyers …obtain repayment of substantially all litigation expenses they advance, including expenses advanced in the cases where they do not prevail.” Perhaps in academic theory the expenses can be recouped on a lost case, but not in the real world where many claimants simply don’t have the money. Not only is the risk of laying out many thousands in disbursements real, but from the business end it doesn’t even begin to address the harsh cash-flow problems of funding cases for years before they finally come to trial (see for example, Medical Malpractice Economics);

At Point of Law, Walter Olson points to a New York Times article today that questions the accuracy of some of the data regarding health problems to ground zero workers.

And into the cauldron of litigation we go:

Sheila Scheuerman from TortsProf reports that Greek victims of a Nazi atrocity may sue Germany;

The Kentucky Law Review reports that a trial against an obstetrician accused of unnecessary hysterectomies was continued due to protests (note: Only lawyers use the word “continued” when we really mean postponed). The protests were due, in part, to a letter circulated around the medical community. The eventual verdict is here;

With trials coming up regarding the September 11 attacks, MassTorts prof Howard Erichson tries to figure out exactly what it is that the plaintiff’s want…is it really money?

A trial is starting in Texas over the 2005 BP explosion that killed 15 people and will be about, as TortDeform reports, whether the oil giant put profits over safety;

A partial settlement was reached in the catastrophic Rhode Island night club fire that killed 100 people and injured 200 more in 2003 when the manager for Great White ignited a pyrotechnics display. Four defendants coughed up $13.5M. There are still 93 other defendants. The New York Times (reg. req.) has the story as does the Boston Globe (no reg.):

Mary Whisner from Trial AD notes a $5M medical malpractice verdict in a case where the jury disagreed with a report from the state’s Department of Health that claimed the doctor’s conduct fell within the standard of care. From the comment section of the blog, it looks as if a juror has responded. I let jury blogging guru Anne Reed know, and she followed up at Deliberations with, If Your Juror Were Writing Online, Could You Find It?

And a federal judge has ordered Iran to pay $2.65 billion to the families of the 241 U.S. service members killed in the 1983 bombing of the U.S. Marine barracks in Beirut. A bit more from PrairiePundit.

And finally:

Enjoy the weekend.

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