May 17th, 2017

It’s Time to Pass Lavern’s Law (Updated)

There is little that can be more infuriating on the civil side of the law than people losing their rights before they even knew you had them.

But such is the state of the law in New York, where the statute of limitations in medical malpractice matters is calculated from the time the incident occurs — not from the time the person found out about the conduct.

‘Scuse me while I put on my advocacy hat for a moment. This won’t take long.

New York is in a deep minority of just six states that measures the time to sue from the date of the malpractice, and this hits people particularly hard if they have undiagnosed cancers.

Lavern Wilkinson, for whom the law is named, went to Kings County Hospital on February 2, 2010 with chest pain. A radiologist saw a suspicious mass on the x-ray. But Wilkinson wasn’t told.

When it was found again two years later when her complaints worsened, the 15-month statute of limitations — you read that right, people sometimes have a paltry 15 months to discover the malpractice, hire a lawyer and bring suit — had expired. As per the Daily News summary of the incident:

A chest X-ray found the cancer had spread to both lungs, her liver, brain and spine. The disease was now terminal.

She left behind family including an autistic daughter.

That 15-month statute of limitations, by the way, is for city hospitals. For others, it is 2 ½ years.

But you know what? The problem still exists. Think about this: Pap smears are done every 3 years. A misread abnormal Pap that isn’t picked up until the next one? So sorry, you’re out of luck.

The curious thing about this bill, currently pending before the New York legislature, is that it enjoys wide bi-partisan support. There is no conceivable reason why the substantial burdens of medical negligence should fall to the patient and the patient’s family. None. Zero. Nada.

And you know what else? If the hospital was private, and continues to get immunity for its conduct, it is you the taxpayer that picks up part of those costs. You. Not the hospital that was negligent.

But the bill has never been brought to the floor for a vote.

Want to do something constructive today? Contact your New York Senator or Assemblyperson and let them know that this bill should be brought to the floor for a vote.

In the Assembly, the bill is A. 3339. (Updated: The bill was reported from the Assembly Codes Committee to the floor.)

In the Senate, the bill S. 4080. (Updated: The bill is stalled in the Senate — so if you make one call, it should go to your Senator.)

And yeah, the next victim could be you. Or me. And we may not even know it.

Updated: A June 5, 2017 editorial from the NY Daily News: Legislative malpractice: Doing right by Lavern Wilkinson:

…At last count, there were 39 sponsors in the 63-member Senate, which has passed the state Assembly and would easily do so again…

The Democratic-led Assembly passed Lavern’s Law and is poised to do so again this year. Gov. Cuomo pledges his signature. But in the GOP Senate, with the bill opposed by the well-heeled Greater New York Hospital Association, [John] Flanagan has made it a dead letter, never letting it get to the floor.

The bill is carried by Republican John DeFrancisco, the Senate’s No. 2. He can — and should — file a motion for full chamber consideration, which under Senate rules requires the support of “three-fifths of members elected.” That’s 38 senators. This bill has, we repeat, 39 sponsors.

May 11th, 2017

Cellino and Barnes Collapses (Updated)

Cellino and Barnes, perhaps New York’s largest personal injury firm, collapsed yesterday. Ross M. Cellino Jr. brought an Order to Show Cause asking why the firm should not be dissolved. The Buffalo based firm – fueled by a massive multi-million dollar advertising and marketing budget — expanded in recent years to open offices around New York and now in California.

Cellino’s partner, Stephen Barnes, is scheduled to respond in court on May 19th to the petition for dissolution of the firm. Details of the reason for the collapse will most surely come out in the lawsuit, along with accusations of some kind as between the two.

At stake in the suit are potentially thousands (tens of thousands?) of injured clients, whose cases now face the prospects of chaos, delay and disarray. It could be years before the entanglements of the two are sorted out, as issues involving its very expensive phone number (all 8s), marketing campaign (and jingle) and leases are sorted out while the lawyers jockey over how to manage the clients.

(Not all of its advertising revolved around its hokey jingle.)

The dissolution will also have to deal with potential future business — notwithstanding the disarray — and that such business was generated by the years-long marketing campaign.

Most assuredly, lawyers at the firm are now contacting high-value individual clients in efforts to persuade them to stay at one of the new firms bound to be birthed from the tumult and pandemonium that is likely taking place.

The firm currently has 70+ lawyers listed on its website — not large by BigLaw firms but ginormous in the personal injury field where firms of 1-5 attorneys are most common.

But it isn’t as if those lawyers can simply divvy up the clients — for it is the clients that get to choose the lawyers. If clients do not believe they’ve been treated well with personal attention in the past, they may flee the firm altogether.

Both Cellino and Barnes have a checkered history, notwithstanding their success in building their mega-firm. In 2005 Cellino was suspended from the practice of law for six months while Barnes was censured. (In re Cellino)

The two of them had, in violation of the Rules of Professional Conduct, advanced loans to numerous clients. Part of this was having a relative set up a high interest funding company for clients, and then directing clients to that funding company without informing them of the relationship.

Barnes was also cited for ambulance chasing (“Barnes sent a letter to a hospitalized surgical patient and concluded that such conduct was an impermissible solicitation of legal employment in violation of Code of Professional Responsibility.”)

My speculation: There are two main reasons for a law firm to dissolve — money and ego. So the leading contenders are that there are financial problems of some kind lurking in the background, or that Cellino (or Barnes) feels he deserves a bigger piece of the pie for some reason. Time will tell.

This story is one to follow given the inevitable problems that will result in the dissolution of a firm with thousands of clients.
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Update (5/12/17)– As per the Buffalo News, the dissolution issues started when Cillino wanted to hire his daughter, a recent SUNY Buffalo law grad, and Barnes said no:

Cellino went to Stephen E. Barnes in 2015, asking that the law firm hire his daughter, Jeanna Cellino, a cum laude graduate of the University at Buffalo School of Law, one of the sources said.

“Steve said absolutely not,” the source said, adding that the disagreement became a major bone of contention between the firm’s two founders.

In addition, there are apparently issues over finances (no great surprise):

Some disputes over finances in the law firm also are part of the disagreement that prompted Cellino to file a lawsuit against his own law firm this week, seeking to dissolve the Cellino & Barnes law firm, the legal sources said.

There’s also a short quote from me in the story coming off of this blog.

And from the NY Post comes a confirmation of sorts from the comments about Barnes wanting the California business and Cellino wanting New York:

Barnes wants to focus on the California end of the business, Cellino wants the East Coast, and the partners simply want a judge to referee the complicated split, [Cellino’s father] said.

But the scuttlebutt around the Buffalo personal-injury and defense pubs is that Cellino Jr. — a minority partner in the firm’s San Francisco and Los Angeles offices — is feuding over money with Barnes, who has already moved to the West Coast.

This, of course, doesn’t explain why the split isn’t amicable.

May 10th, 2017

TrumpRussia, the Watergate Sketches, and You

Jurors listen to the Watergate tapes. Sketch by John Hart.

The sketches hang in my office as souvenirs from a trial long ago. I represented the estate of the courtroom sketch artist in a medical malpractice trial, and a grateful widow sold them to me when the trial was over.

Watergate. The scandal by which all others are measured, as the ubiquitous -gate suffix was tagged to anything and everything that it could be tagged to.

The scandal stood for, above all else, obstruction of justice and abuse of power. As everyone knows (or should know) it wasn’t the “third-rate burglary” that sent Nixon packing. It was the cover-up.

I look at the sketches every day.

H.R. Haldeman, White House Chief of Staff, on the witness stand. Judge John Sirica behind him. Sketch by John Hart.

And now, with FBI Director James Comey being fired amidst an investigation he was conducting into the TrumpRussia scandal — no need for the -gate suffix here — Watergate is on everyone’s mind.

For it was Nixon that gave the order to ax special prosecutor Archibald Cox who was doing the investigation. And when the attorney general and deputy attorney general both refused, and resigned in what became known as the Saturday Night Massacre, the job fell to future judge Robert Bork.

No one in the Trump White House, it seems, could foresee that a president firing the guy that was investigating his own administration regarding Russia’s meddling in our election, and possible collusion, might be a problem.

But while Trump can fire Comey, and Acting Attorney General Sally Yates, and Preet Bharara, all of whom were investigating him — he can’t fire everyone. Because not everyone works for him.

Prosecutor James Neal talking to the jury. Judge John Sirica in the background. Sketch by John Hart.

New York Attorney General Eric Schneiderman is investigating Trump. And Schneiderman is beyond Trump’s reach.

The tell for if/when Schneiderman is getting close to something will be when Trump starts tweeting about him.

Ultimately, however, the Constitution charges we the people with the task of removal. And if not by an unwilling Congress, then by a change of the Congress the next election day.

One way or another the republic will survive this. We can only hope that there are no improvident actions in the interim that cost people lives.

May 1st, 2017

The First Amendment Under Attack (From the Left and the Right)

There’s no question that the First Amendment is under attack today people claiming to be from both the right and the left.

Let’s start with the right and Donald Trump (to the extent anyone considers Trump a right-winger): On Sunday came the revelation that Trump may try to alter the First Amendment right to free speech because he can’t handle criticism.

This is not hyperbole on my part — I shy away from such things — but comes from Chief of Staff Reince Priebus explicitly saying so to ABC’s Jonathon Karl on Sunday. Priebus stated that they were “looking at” just such a scenario, to amend/abolish the power to speak freely. This was the first of two exchanges on the subject, that you can view online (emphasis added):

KARL: I want to ask you about two things the President has said on related issues. First of all, there was what he said about opening up the libel laws. Tweeting “the failing New York Times has disgraced the media world. Gotten me wrong for two solid years. Change the libel laws?” That would require, as I understand it, a constitutional amendment. Is he really going to pursue that? Is that something he wants to pursue?

PRIEBUS: I think it’s something that we’ve looked at. How that gets executed or whether that goes anywhere is a different story. But when you have articles out there that have no basis or fact and we’re sitting here on 24/7 cable companies writing stories about constant contacts with Russia and all these other matters—

And, in the event anyone wants to chalk this up to “maybe he misspoke,” he made it clear by reiterating it:

KARL: So you think the President should be able to sue the New York Times for stories he doesn’t like?

PRIEBUS: Here’s what I think. I think that newspapers and news agencies need to be more responsible with how they report the news. I am so tired.

KARL: I don’t think anybody would disagree with that. It’s about whether or not the President should have a right to sue them.

PRIEBUS: And I already answered the question. I said this is something that is being looked at. But it’s something that as far as how it gets executed, where we go with it, that’s another issue.

Trump, of course, is (in)famously on record as wanting to “open up our libel laws” to allow him to more freely sue people when he gets irked because news isn’t reported the way he likes. He seems to forget that, in order to be President and debate the issues of the day, he needs to put on his big boy pants when people decide to flay him for his words or conduct.

And this is evident from his prior conduct in bringing bullshit defamation claims to silence people or punish them for exercising free speech rights. Trump hates the First Amendment. And that is a danger.

But as I noted at the start, the First Amendment is also under assault from people who claim to be from the left. Over at UC/Berkeley, that bastion of liberalism, demonstrations over the appearance of right-wing hate mongers for profit MiloYiannopoulos led to the University cancelling his appearance instead of protecting him.

Then the same thing happened to that other hate monger for profit, Ann Coulter. The university canceled her appearance due to concern over the reaction to her, amounting to a”hecklers veto.” By rewarding those that threaten to commit crimes, the university merely empowered them to repeat their un-American conduct of trying to silence speech (instead of rebut) that they disagree with.

You’ll note that I described these people as those “who claim to be from the left.” They aren’t. Even if they say they are.

Neither conservatives nor liberals are opposed to free speech. But authoritarians are. And authoritarians can come from either the ostensible left or the right. What they want most is the ability to exercise power without regard to open debate.

The answer to speech with which we disagree is simple: More speech. ‘Tis the nature of our republic.

Journalists that describe the hoodlums as “left” or “right” are not only making a mistake, but doing a disservice to the country. Call them thugs, anarchists, wannabe dictators or any other name, so long as it doesn’t align with traditional American political parties and values that embrace open debate. Because they aren’t part of that. And yes, that includes Trump (who’s overriding political philosophy, to the extent such things exist, is not right or left, but TrumpFirst).

It is that First Amendment, of course, that gives people the right to criticize governments (among many other things). The First Amendment is not a partisan issue, but a principle of how a democracy functions.

Keep your eyes open folks, because this all looks to get a lot uglier for America. Regardless of which side of the political divide you fall on.

Elsewhere:

Berkeley’s 99 Problems (Greenfield @ Simple Justice)

Donald Trump’s Lawyers Don’t Know Or Don’t Care What Defamation Is (White @ Popehat)

Donald Trump vs. The First Amendment (Cole @ The Nation)

Gawker’s Demise and the Trump-Era Threat to the First Amendment (Tobin @ The New Yorker)

April 10th, 2017

Passover, Syria and a Presidential Prayer

Passover and its seders deal with two fundamental concepts. The first is a celebration of a very dramatic escape from slavery to freedom.

The second is empathy. At the seder, we are asked to place ourselves in the footsteps of those who were physically there, as Jews note that we were slaves in Egypt and now we are free. A central part of the reading of the Passover Haggadah states:

“In each generation, each person is obligated to see himself or herself as though he or she personally came forth from Egypt.”

This concept is repeated in song and other readings as we attempt to “relive” history, so that its lessons are not forgotten.

So what does this mean for the current catastrophe in Syria, with an exodus of people fleeing to freedom as fast as they can get out the door?

Should we not place ourselves — to the best such placement can even be contemplated — into the shoes of others living in oppression?

If people are enslaved or living under tyranny elsewhere, how can we really be free if we have empathy?

Aren’t those who are currently free, mostly free due to little more than the lottery of birth?

An additional Passover prayer for President Trump, in the event that he can attend a seder or two this week:

Let him contemplate that the Jewish escape from tyranny and slavery 3,000+ years ago is not just history, but that others remain in such dire circumstances today. Let him have the wisdom and the charity to open our doors to those fleeing oppression, and recognize that those who make it to freedom are often the best that this world has to offer.

While freedom may be a lottery for most, it is not for all.