May 18th, 2016

Joan Rivers and New York’s Dreadful Wrongful Death Law

Joan Rivers

My Monday post regarding the settlement of the Joan Rivers wrongful death case was meant to be a two-parter. Part one to laud the lawyers and part two to write about the injustices of our current (and ancient) wrongful death statute that dates to 1847.

New York used to be progressive, with the first in the nation wrongful death law that was designed to protect injured railroad workers. There was no common law claim for wrongful death. Since an injured worker needed to be compensated, perhaps for life, but a dead one was worthless in the eyes of the law, saving the life of the worker was, ahem, detrimental to the profits of the railroad business.

In fact, not only wasn’t there a wrongful death cause of action, but even a claim for personal injuries (the pain before the death) did not survive the death of the injured person (or of the tortfeasor). It just evaporated. It was better (for the railroads) to kill workers than injure them.

Thus, the 1847 legislation. (You can read the history of it all in Grant v. Guidotti.)

But while once at the forefront of progress, New York is now a laggard in the law’s development. It has not been updated in 170 years. The law provided back then, and continues today, that the survivors may only collect “pecuniary” loss, basically meaning the wages that others depended on. And if your family member that was killed by the negligent conduct was not the family breadwinner, but happened to be an infant, homemaker or retired?

Sorry, Charlie. Children, retired seniors and homemakers have no “value” to the New York Legislature. And disaster-struck families have been told by lawyers, for generations now, that they won’t get to hold the tortfeasors responsible for their grief. They are on their own. You can blame the Leg.

Before I had a chance to fully write that piece though, Marc Dittenhoefer dropped a long comment into that first post on that subject, dealing with the Joan Rivers case. So I just asked Ditt to expand on it a bit and presto, a new guest post on the very topic I wanted to cover.

Take it away Ditt:
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Marc Dittenhoefer

I applaud the outcome in the Joan Rivers case and join in sending kudos to Ben Rubinowitz and his team for the excellent job they did on all counts. However, results like this one always give me pause in that they highlight a great inequity that still bedevils our system.

Joan Rivers endured no conscious pain and suffering, had no impending fear of death or disaster, was the legal and obligatory supporter of no one, and was worth tens – perhaps scores – of millions of dollars at the time of her death. By traditional NYS legal measures of recovery, this case should have limited value. But Joan Rivers was rich, famous, powerful, beloved and white. Ka-Ching!

Now let’s think of an unheralded Ms. Gonzalez, or Johnson, or Yee; with several children dependent upon her for support; with days, weeks even months or years of conscious pain and suffering; and with a dread of impending doom all about her due to someone else’s fault in causing her death. THAT case doesn’t settle so fast, nor for anywhere near sum likely received here.

The reason? In New York, wrongful death damages are measured by two things:

(1) conscious dread, pain and suffering of the decedent, and

(2) monetary loss to those legally dependent upon the decedent for support.

Joan Rivers went to sleep fully well expecting to wake up shortly, felt no pain and suffered not at all, and left behind as an only survivor a fully grown, emancipated and high-earning woman in her own right who stands to inherit generously from her mom’s Estate. But for her fame and public profile, the measure of damages here would be negligible by current legal standards.

But an unknown single mother of 3 with no special skills or educational advantages, earning modest wages and perhaps even lingering in a death-spiral of pain for months on end? Who also happens to be the family matriarch giving love and guidance to those within her household?

Defendants would be in no particular rush – nor in the grips of any particular generosity – to amicably resolve that case to the benefit of the motherless children in dire need of whatever recovery their lawsuit might hold. Those moms do not make the headlines: no insurer seeks to avoid bad publicity by paying quickly or generously for them. While the Rivers’ settlement is celebrated by the tabloids with speculation of an 8-figure sum, the lesser recoveries of the “ordinary” litigants are decried as “runaway” results when the press pays attention to them at all. Yet the self-same interest of improved public health is served in both instances.

Fame has its privileges, all right. But NY’s laws need to recognize that:

(1) the current measure for damages in a wrongful death scenario is woefully dysfunctional and out of date, and

(2) “regular” folks need to be afforded the same quality of justice that the rich and famous get, even if their cases do not alway make the papers.

“Wrongful Death” reform is long overdue.

May 16th, 2016

Joan Rivers’ Lawyers (How did they do?)

Joan Rivers in 2010, via Wikipedia

Over the years I’ve had a few occasions to take my own to task over crappy lawyering. Today, however, is not one of those days. If I’m going to spend time skewering bad stuff, I should also laud the good stuff.

Following the death of Joan Rivers during a routine endoscopy in 2014 at a small private clinic, her daughter Mellisa went out and hired counsel to investigate and bring suit.

Deaths during routine procedures are not supposed to happen, so hiring counsel was logical. If not, they may never have learned about the breaks of protocol that occurred. From the New York Times:

Ms. Rivers was to undergo a laryngoscopy, an examination of her voice box and vocal cords, and an endoscopy, which involves looking at the upper digestive system and is performed under anesthesia, according to a report by the New York City medical examiner’s office, which investigated the death.

According to the malpractice suit, the doctors were so eager to please that they violated protocols, and at one point [Medical Director] Dr. [Lawrence] Cohen pulled out his cellphone and took a photograph of Ms. Rivers on the operating table.

Enter, stage right, Ben Rabinowitz and Jeffrey Bloom from the highly respected firm of Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf. The case has now settled — exceptionally quickly, I might add — and is in the news again.

But this is the part that really jumped out at me from the Times article, and the reason for today’s piece:

The lawyers for the Rivers family, Jeffrey Bloom and Ben Rubinowitz, said they did not reveal the amount of the settlement because they wanted to focus on improving patient care. But they said it was “substantial.”

That’s right, there is no settlement number in the article. No blaring heading with a ginormous number, as there would be with 100% certainty if the amount was revealed. Instead, the lawyers focused on the fact that patient safety was at issue.

Now, if you Google the story, you’ll see tons of stories that focus on patient safety.

While the settlement amount may one day come out, as the will (I presume there is a will) gets probated, it was not part of the initial round of press. The information that comes out later will talk about the size of the overall estate (her estate is valued at $x million — as opposed to being simply about the lawsuit), and the settlement amount will be partially buried as part of another story.

Now let us contrast this with the conduct of the lawyer that sued Red Bull for $85M or the lawyer that sued on behalf of a dog bite victim for $30M. Both created screaming headlines and a fusillade of negative comments from those that saw the stories. Both of those cases served to diminish, devalue and demean the practice of law and the people that we represent, due to the outlandish claims. Because they used outrageous numbers (when they were not permitted to use any number at all) the story ledes were about those numbers, and not the issues of safety.

The really important stuff for the Rivers suit, from the point of view of how to practice as a lawyer, was at the very end of the article:

Melissa Rivers and her lawyers, however, said they did not want the focus to be solely on what happened to the famous entertainer.

They said that the case highlighted the lax oversight at outpatient surgical centers, and that they would be working to advance legislation in Albany to ensure that these clinics operate under the same minimum safety standards as hospitals do.

“Profit cannot be placed above patient safety,” Mr. Rubinowitz said.

A statement Melissa Rivers put out said:

“Moving forward, my focus will be to ensure that no one ever has to go through what my mother, [my son] Cooper and I went through and I will work towards ensuring higher safety standards in out-patient surgical clinics.”

It just made me want to stand up and applaud, which was kinda tough since I was in a car at the time, but you get the idea.

This part about publicizing the money, by the way, is a tough line to walk on sometimes, as both their firm and mine (and many, many others) talk about past results on our websites, so that potential new clients know what kind of experience we have. As a general practice though, it is without names.

But when it comes to the press we must behave differently. The web sites, after all, are only read by those that are actively looking to hire counsel, whereas news stories are pushed into the public light and help to shape public opinion. And when I write public opinion, I mean that they shape the minds of potential jurors.

Public safety needs to be the theme of the news stories, just as it is a theme in jury selection and trial. That is why we talk, in the medical malpractice world, of deviations from customary and usual practice. Because the customary and usual practice equals safety.

And then there was this from the Times:

The doctors agreed not to contest the suit’s findings. A spokesman for Yorkville Endoscopy said: “The parties agreed to settle this case to avoid protracted litigation. We remain committed to providing quality, compassionate health care services.”

That is another highly unusual bit, as almost every settlement agreement has some statement about the defendants not admitting liability and stating that this is merely a business decision. This appears to be absent.

And finally, a third unusual piece — an actual whistle blower’s report from inside the center:

The main anesthesiologist, Dr. [Renuka] Bankulla, concerned that she would be blamed in the death, wrote out five pages of notes on the day of the procedure detailing what she saw and heard. Lawyers for the Rivers family said they were greatly aided in their case by Dr. Bankulla’s notes.

I’ve only had one case in 30 years where a doctor did a tell-all operative report from the inside. Other lawyers I shared it with said they had never seen anything like it, despite practicing even longer than I.

But every so often there will be doctors on the inside, who have seen the catastrophic failures, and elect not to be in on the cover-up. They object to the White Coat of Silence and become our Serpicos. It’s exceptionally rare, but it can happen.

And so, on this Monday morning, a tip of the hat to counsel for the estate of Joan Rivers. Not for how they handled the case, but how they handled the press. It’s a model others should follow: Focus on the safety, not on the number.

May 11th, 2016

Dear Pro Se Litigant…

Dear Pro Se litigant:

You have contacted my office about representation after you started the lawsuit on your own. I won’t take your case. And no, the actual facts are not likely to make a difference.

This is why: I can only think of two reasons you elected to start your suit pro se. First, you couldn’t find a lawyer. And it is safe to assume that if you’ve been rejected by several lawyers already, it’s not likely I would find merit if I looked now.

Have I taken cases others have rejected? Sure. And others have taken cases that I have turned down. But if you’ve gone to the extreme of actually starting a case on your own, it means it wasn’t just one or two rejections. The chance of me finding merit on a matter repeatedly rejected is so low that looking the file isn’t likely to be worth my time.

The second reason you might have brought the suit on your own is that you thought you could save the legal fees by doing it yourself, and now need someone to bail you out of a jam. That someone is not me. Is it conceivable you did an awesome job so far? Sure. But it just isn’t likely. If plenty of experienced lawyers are capable of screwing a case up, why would I bet on a non-lawyer getting it right from the Google School of Law?

And this means that I would be doing double work. First to fix the screw-ups — assuming said screw-ups are even fixable — and then to litigate the case properly. I ain’t interested.

And it’s good to remember that those of us that work on contingency are paid to be efficient with time and money, and rescuing your pro se suit is exactly the opposite.

Over at Simple Justice, Scott Greenfield writes of some Northeastern law professors who invented a video game to help pro se litigants navigate the legal system. The idea makes me shudder. As Greenfield notes:

Encouraging people to do something they can’t possibly accomplish successfully is driving Miss Daisy down the road to disaster. While this video game purports to teach non-lawyers how to introduce evidence, it doesn’t teach them what evidence is, what constitutes materiality and relevance. So it teaches them to jump into the fire without teaching them how not to get burned. Great.

Now it’s true there are some things you can learn online and via a video game — if you are going to Small Claims Court. And that’s because Small Claims is designed for non-lawyers. You are expected to be mostly ignorant and the court may even rescue you from your own mistakes.

But this is not so if there are substantial sums at issue in a personal injury case (or a prosecutor looking to send you to the old gray bar hotel).

There are plenty of mistakes for you to make at the outset of a civil case, starting with timeliness and proper parties and moving to pleadings, depositions, motions, document discovery and more.

So if you bring a suit yourself, don’t come to me to fix the problem later. And you know what? I don’t know any other lawyer that feels differently. If you make the decision to go it alone, you will live with that decision.

May 6th, 2016

Starbucks Iced Coffee Lawsuit – A Rebuttal

The one. The only. Marc Dittenhoefer

On Wednesday, I ran a parody of the Starbucks class action lawsuit regarding too much ice in the iced coffee. And yesterday I posted my explanation as to why I did it: bad suits hurt good clients.

Now today comes a rebuttal from one of my friends, Marc Dittenhoefer. Take it away Ditt…..

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Ok, so let’s get some obviousness out of the way first so we don’t have to waste any more time on it. Of course the “What, there’s Ice in my Iced Coffee!” lawsuit is a bit of a dopey exercise, more than a bit of bad PR, and the latest in a long, long line of easy pickings for satirists, comedians, anti-civil-justice advocates and for dinner table conversations everywhere.

I get that. As a lawyer who has made his living for 40+ years representing harmed people in legitimate lawsuits, these sort of headlines rankle me, too, and do have their effects upon the judges and jury pools that I, too, must practice before. I was no happier than Brother Turkewitz to see this latest juridical jalopy come down the pike. “Whoa Nellie………not, again!!!

Nevertheless, when one thinks about it a bit there are a few legitimate points behind this lawsuit: ones that we should be spending a moment or two on before we jettison this plaintiff and move on to our next exercise in righteous indignation.

Coffee is coffee and ice is ice. One costs money – quite a bit it of it in places such as Starbucks, it turns out – and the other usually is at nominal cost or given free with a purchase. The reason and rationale for why some shops charge the public what they do for a Cup of Joe folks can get for under a buck at a diner is that there IS a difference: you are paying for a comparable amount of beverage which is more expensive to buy and brew than the diner’s.

When someone plunks down $ 6.50 for a “venti” iced Blarfaccino, one has a (I hesitate to use such a lofty word in such prosaic a circumstance) right to expect the comparable 8, 12 or 16 ounces one gets in the diner version of iced coffee from ’round the corner, especially since the sizes of the various servings are posted, advertised and charged for by the Blarfaccino store itself.

It is no different than a can of soda, quart of milk or gallon of gas: what is listed on the signage is what you should receive for your money. But what if your can has only 7.9 ounces of soda, your milk a fraction less than a quart, your gas a tad shy of a gallon?

To you, the individual Buyer it means perhaps not a whole lot: it might even be healthier for you over all – at least in terms of the coffee or the soda. But to the Seller ? By chintzing a bit on each of a hundred customers, all of a sudden you can sell 110 coffees from the ingredients that used to net 100.

That’s a profit of 10 coffees that have been “stolen” from the clientele. Or 2 TVs falling off every truck; three Mercedes’ off every shipload. Sooner or later, this adds up to some real money from out of the pockets of the unsuspecting and into the till of an already multi-billion dollar corporation. Not so silly any more, is it?

These scams have been done in business for as long as there has been business, and one of the valuable functions that government provides is to guard against such things, via regulation, inspection, quality control and mechanisms for enforcement and restitution. Thus is the “Class Action” invented.

Should a business — say a financial institution — devise a computer program that would take one cent each month from the account of each of its customers and automatically deposit it into the business’ operating account, that would be a theft. Yet most customers would not ever notice it, much less be willing to file a Police Report over it, and no DA would start a criminal action for anyone’s annualized loss of 12 cents. Multiply that amount however by a million customers, and you all of a sudden have a major revenue stream on your hands – or in your pocket.

An old riddle here is instructive: what would you rather have for your birthday, one million bucks or one penny doubled each day for a month? If you took the penny deal, you made the better bargain by far.

So yeah, the suit is dopey, but only in its poor choice of forum. This matter should be handled regulatorily by making Starbucks devise a way to ensure that the proper amount of paid-for coffee is served in their iced offerings. After all, the company that can invent a machine that grinds, brews, and serves up skatey-eight different types of coffee in 3 or more sizes each can certainly find a way to stock themselves with cups large enough to accommodate the proper amount of beverage WITH ice. It ain’t brain surgery – it’s just right. And this lawsuit says so.

As to the rest of it, considering Stella Liebeck’s case against McDonald’s I am convinced that the insurance, big business and and anti-consumer forces are not sitting idly by waiting for things like this to latch onto to further their PR campaigns. They are at it 24/7/365. This case might give them something to work with, true, but it also is one that highlights an area of abuse that could be redirected in a positive, pro-consumer way.

We should be full-throated in our support, not necessarily of the suit but of the concept that a buyer should get what they pay for, and that sometimes recourse is needed when that does not happen. In this regard – although I am most certainly not of, by or for the “Tea Party” – they have a point. Free and unfettered access to the Courts to air grievances and correct wrongs is as much of a doctrinal touchstone as anything for the “Tea Party”. Why not for coffee ?

May 5th, 2016

The Great Jelly Donut Parody (Hey, why’d you do dat?)

Yesterday I ran a parody, wherein Dunkin’ Donuts was sued for not putting enough jelly in its jelly donuts. I didn’t do it just for the hell of it. There is (usually) a method to my madness.

Specifically, Dunkin’ was “sued” because their jelly doughnuts were “defective and deficient due to their skimpy, scanty, paltry, pitiful, meager and otherwise insufficient quantities of jelly within each said doughnut unit.”

My posting was spurred on, as noted in the post, by a suit out in Chicago where Starbucks was sued for putting too much ice in an iced coffee. My point was to mock that idiotic suit.

Now why would a guy that does personal injury law mock the work of another, who purports to represent consumers? Don’t lawyers on the same side of the “v” protect each other like cops and doctors do?

But regular readers know that I call ’em as I see ’em, and what I see is that bad lawsuits damage those with good lawsuits. It’s the headlines from poorly considered, outlier lawsuits that make the headlines and then go on to infect the jury pool by making people more cynical. When jury selection starts, the scales of justice are already tipped in favor of the defendants due to those “damn lawyers” and this makes it more difficult for others in the courthouse to prevail.

Let me be clear: Your bad lawsuit hurts my clients.

So why does the Starbucks suit suck the big wazoo (a legal term of art for you newbies to this site)? Well first off, ice is actually an ingredient in an iced drink. Take out the ice and you have a different drink.

A Starbucks spokesman said:

“Our customers understand and expect that ice is an essential component of any ‘iced’ beverage. If a customer is not satisfied with their beverage preparation, we will gladly remake it.”

So the issue isn’t really that there’s ice in the drink because there’s supposed to be ice in the drink, but rather, how much ice is in there. In other words, it’s an issue of judgment as to how much the customer will like. Different strokes for different folks and all that.

Which leads us to the second issue: Americans are accustomed to having it like we want it when ordering food and drink:

Too much ice? Less ice, please.

Don’t like potatoes with the chicken? Can I substitute rice?

Hold the mayo on that sandwich please.

I’d like the dressing on the side, please.

I’d like extra dressing, please.

Restaurant customers are accustomed to ordering things that are vegan, vegetarian, nut-free, gluten-free, egg-free, lactose-free, shellfish-free, hold the onions, or I’d like my sushi cooked well done.

Burger King has, for decades, had Have it your Way as it’s advertising campaign. In Harry met Sally, it was a running joke when Meg Ryan special ordered everything in a restaurant.

Here’s the thing about Starbucks: It was born and raised in a capitalist society. They offer a premium product and therefore it must cater to the whims of its clientele. This is not a discount chain cutting staff to the bone to save a few bucks.

If Starbucks drops the ball on customer service — and that means giving people what they want at the counter — then they have lost a customer. Less ice isn’t exactly a tall order, nor even a Grande or Venti one. Can anyone imagine the diner that Jack Nicholson visited in Five Easy Pieces, where he tried to get a side order of toast actually surviving as a business?

Since solving this “problem” was not difficult — it would be difficult to find an easier problem to solve since it isn’t actually a problem — the suit is destined for the trash heap of history. Ice is part of the drink, and if there is too much for your liking they will make it the way you like.

So here is my message to my brethren of the bar (in this case, Hart McLaughlin & Eldridge in Chicago) who bring crappy suits and stir headline writers to spew about lawyers which in turn piss of the populace about lawyers and lawsuits: Your suit is manna from heaven for tort “reformers” and insurance companies. They get to “promote” your outlier lawsuit and portray it as typical, and thereby poison the jury pool.

Stop hurting the people I represent.

Addendum, see also: Starbucks Iced Coffee Lawsuit – A Rebuttal