January 15th, 2014

False and Misleading Headlines (Youth Baseball Edition) – Updated

An unhappy Brett Lawrie of the Toronto Blue Jays throws his helmet in 2013.

An unhappy Brett Lawrie of the Toronto Blue Jays throws his helmet in 2013.

Headlines make a difference, as headlines can skew the viewpoint of the reader before the facts are even read in the article. That is, if the article is even read. Many folks, of course, just skim.

And so it is with KCRA in Sacramento, CA.

The headline reads:

14-year-old Little Leaguer sued by coach for celebrating win

The problem? That isn’t really why anyone was sued. An actual reading of the article reveals that the defendant, a 14-year-old, threw off his helmet as he raced home with a winning run. But the helmet hit the coach and caused a torn Achilles tendon.

The kid, in other words, wasn’t sued because for celebrating, but for causing an injury to his coach.

As per the article’s actual text:

In legal papers filed in court, the teen’s former coach, Alan Beck, contends the boy “carelessly threw a helmet, striking Plaintiff’s Achilles tendon and tearing it.”

Whether the underlying facts support the suit or not, I have no way of knowing. All we have now is a legal pleading and a short news story.

Will it be tossed out on assumption of risk grounds? Perhaps. Throwing helmets isn’t exactly part of the game, but as you can see from the graphic above of Brett Lawrie throwing his helmet in 2013, it does happen on occasion.

But one thing is clear. The headline writer didn’t accurately tell you what the story was about.

Does this matter? You bet. Because headlines like this help to shape public opinion, and that public opinion affects how potential jurors will feel about cases before a trial even starts.

(hat tip, Conrad Saam)

Update (1/16/14):  CNN now has the story, with interviews with the parents of the kid being sued, bemoaning the suit, and the coach who brought the suit discussing his Achilles injury from a 6-foot tall, 180 pound kid, and the lack of apology. CNN harps on the amount sued for: $500,000. And that makes this a good time to remember that ad damnum clauses such as this are a very bad idea. They have, thankfully, been outlawed in New York.

The coach that sued says “it’s not about the money,” but the fact that there is a number in the complaint for the media to focus on takes that issue out of his hands.

While I don’t know if this suit will survive due to assumption of risk issues — and if California law is the same as New York law I think it will get tossed — it’s clear that the CNN focus is on money instead of safety. I wrote about that recently when Red Bull was sued for $85M — where I noted that it was a very poor move to put a number in the complaint, not only because it isn’t allowed but because it shifted the focus away from product safety.

 

 

January 6th, 2014

2013 Year in Review

2013I’ve been at this blogging thing for seven years now, and my posting volume waxes and wanes with other events in my life. But on the actual substance, I’m pleased to write that I thought 2013 was the best that this space has seen.

Why? Because, I was able to do some original reporting on issues that hit home for the entire personal injury field — the use of insurance company “experts” that do quickie exams, who then use these three or four minute exams to claim that victims haven’t been injured. I won’t re-post the entire series, but you can read this one regarding Dr. Robert Israel and this one regarding Dr. Michael Katz, and then follow the links from there to the extent you haven’t seen them yet.

One of the problems with blogging is that, all too often, bloggers merely re-package stories that have been written by others. The better ones will offer opinions on why the story is significant.

But breaking news is a whole other beast, and is particularly rewarding. This is especially true if it results from investigation, and even more true if it spurs others to investigate.

I know from other sources that these two experts, for instance, will be hard-pressed to ever take the witness stand again, as they will be destroyed on cross-exam by their conduct. And I’ve done my part to make sure their conduct is well known. This one post of mine has been viewed over 18 thousand times. Some folks are interested. Indeed, the New York Law Journal has already featured two articles on the subject subsequent to my reporting.

And other doctors that I discussed may find themselves the subject of new lines of cross-examination due to the data I found on the length of their exams.

While I believe I’ve published some powerful evidence of insurance fraud undertaken by the insurance industry, I obviously don’t have the time or resources (subpoena power) to do a full blown investigation. Perhaps one day a real investigation of insurance fraud will take place regarding these quickie exams.

In the meantime, I’ll keep plugging along.

It would be nice if this blog could actually accomplish something that brings more integrity to the field. I would call that success. I feel like we are half way there, but still need state investigators to do the real work.

 

December 19th, 2013

Sarah Palin and Other Morons, on the Loose (Duck Dynasty, 1st Amendment Edition)

first-amendment-719591All over the news right now is the story of Duck Dynasty patriach Phil Robertson saying nasty things about gays and others and then having A&E, the network that puts on the show, suspend him.

There are plenty of others writing about Robertson and his views, so I feel no particular reason to yell “me too!” I don’t like writing those kinds of posts.

I write instead about the predictable fallout of the usual screaming matches that come up whenever a social issue rears its head, the old left v. right kind of thing, though perhaps when it comes to gay rights it’s more accurate to speak of those who favor greater government intervention against those who want the government to keep its nose out of the citizenry’s private business.

In any event, Sarah Palin, in her wisdom, sees this as a “free speech” matter:

SarahPalinDuckDynasty

And cable talk show legal analyst Arthur Aidalawhen the issue was being “debated” on Fox News’s Megyn Kelly show:

Arthur Aidala and Monica Crowley vehemently disagreed, and all three got in a heated back-and-forth about the free speech issues here. Aidala cried, “There’s something called the First Amendment!”

Who is Arthur Aidala? A criminal defense lawyer.

Now I understand when those who are less educated misunderstand the First Amendment. I don’t criticize too heavily when there are folks who have not had the benefits I’ve had of a good education, though this is the kind of thing anyone with a high school education ought to have a grasp of.

But if you ran for Vice President of the United States, or if you are an attorney volunteering to be the talking head legal analyst on a cable show, then you really can’t claim ignorance as an excuse. You ought to know that the issue of free speech applies to the government, not a private cable television channel. The First Amendment is pretty clear on that, and I added a touch of emphasis for their benefit:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

To be clear: Robertson has every right to say idiotic things. A&E has every right to say it doesn’t want someone who spouts idiotic things on its show. (At least for awhile, until the tug of money and ratings makes them say all is forgiven.)

I have a right to publish idiotic comments. Palin and Aidala have the right to spout stupidity.

But the government isn’t involved in any of this, because it has’t tried to make a law that prohibits any of us saying our piece. Bellyache all you want, but this isn’t a free speech issue.

To quote from the movie Billy Madisonregarding those trying to raise the banner of free speech:

Mr. Madison, what you’ve just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

 

December 18th, 2013

The Guest Blogging Dodge

Anyone that’s blogged for more than 10 minutes has seen the flood of so-callled writers begging for the opportunity to create “content” for your blog. If, please, please, please, you would only be so grateful as to give them some valuable link juice. As you might guess, it’s a scam. There is never anything in the email that even suggests knowledge about the blogs being pitched.

I hate them. Greenfield hates them. Bennett hates them. Popehat hates them. They are hated by mommy bloggers,  tech writers, and media folkEven the British have a hard time keeping a stiff upper lip about this crap.

But then. I do read the pitches, or at least the first line or two to see if, just maybe, the writer didn’t send me spam but actually had some knowledge about my blog and had a point of  view to share.

And so it was with Max Herman who guest blogged here yesterday. The request to write came out of the blue, but it actually dealt with a current case before our top court, about an issue that reflects upon personal injury law, was an issue that he was closely following, and he had notes on oral argument that had already taken place.

When Max contacted me, he already had a two page explanation of what he wanted to write, along with briefs of the case he wanted to write about.

Max didn’t want to write about any old thing, he wanted to write about this thing that he had been following and that he found interesting. Also, he could actually write in an engaging manner. And he never asked for a link. I had to ask him for his bio link when I published.

And so, while it’s tempting to my fellow bloggers to simply delete the emails when they come in, the truth is that there are people out there who actually have something to say and are looking for the right forum to say it.  Writers gotta write, and once written, would like to publish.

On first blush it might seem that it is’t even worth it trying to separate the wheat from the chafe, but the chafe is so easy to see it makes it easier for the Max’s of the world/

But to the aspiring writer/pundit looking for a platform, please know this about contacting a blogger about a guest post: You had better have a good idea (and an outline) of what you want to say before  you contact us. And that idea should be one that is about a very current issue. Be a Max. No one is interested in generic pablum.

You can pitch us, but you have to pitch us well. Even those sites that don’t accept guest blogs are unlikely to be upset if the pitch is genuine. But the alternative, if it isn’t genuine, can be ugly.

 

December 17th, 2013

Court to Smokers: Get Sick First

Maxwell Herman

Max Herman

Yesterday I was emailing with Max Herman, a student at Fordham Law School, about a potential series of guest blogs here. The issue was one he was studying, and one that the Second Circuit Court of Appeals had sent over to the New York Court of Appeals for an opinion on how New York law would handle this case of first impression.

The subject: Medical monitoring as a possible cause of action in cigarette cases. And before we had even firmed up the way to approach it as a guest blog series — Bam!  The New York Court of Appeals released the decision today.

Without further ado, I introduce Max Herman:

———————————-

So you find out that for the last 10 years you’ve been exposed to radiation, dioxin or carcinogenic smoke.  And you also find out that your exposure is due to the negligence of another.  Of course, you haven’t developed any symptoms, yet the doctors tell you your likelihood of developing cancer has been substantially increased.   You’re scared, angry and realize that for the rest of your life you’re going to need medical surveillance if you’re going to beat the disease to its potential punch.

“But who’s going to pay for that monitoring?” you wonder.  I don’t know, but if you’re in New York, I know it won’t be the guy who caused your exposure.

In a surprising (to me and several Federal District Courts) turn of events, the New York Court of Appeals released a decision today answering two questions asked by the Second Circuit:

Does New York State recognize an independent claim for medical monitoring?

And if so, what are the elements and when does the limitations period accrue?

The highest court in the state answered the former in the negative and declined to answer the latter as academic.

The questions were asked as a part of Caronia v. Phillip Morris USA.  In Caronia, a group of smokers brought suit seeking a court-administered fund for LDCT, a lung cancer monitoring system that substantially reduces lung cancer fatalities by detecting tumors earlier than other available technology.

Marlboro and Kids

The Marlboro Motto: Hook ’em early.

Each smoker was over the age of fifty, had smoked for 20 ‘pack years’ (a pack year is a smoker’s years as a smoker multiplied by the number of packs smoked per day), but had yet to develop disease.  Thus, because they had a disproportionately high risk of developing lung cancer, they reasoned that Phillip Morris USA, which designed, produced and marketed the inherently defective products, should pay for the fund.

In the decision, written by Associate Judge Pigott, the court finds itself loath to craft a new, non-traditional tort claim without the safeguard of an injury requirement.  He explains that dispensing with the requirement would deplete both judicial and defendant resources by allowing “tens of millions” of potential plaintiffs a new avenue of recovery, potentially to the detriment of plaintiffs who actually develop disease.  In short, the judges do not have time to hear all the cases and the defendants won’t be able to pay all of the victims.

The court also recognizes its limitations, admitting to a lack of “technical expertise necessary to effectively administer a program heavily dependent on scientific principles . . . .”  Thus, the court hands the issue off to the legislature, which, the court suggests, is better suited to mulling over the impact of a medical monitoring cause of action than the judicial branch.

Based upon the policy arguments of ‘limited resources’ and ‘lack of expertise,’ the court found itself unwilling to allow the smokers in Caronia to proceed on a medical monitoring claim.

There was, however, some dissension on the Court of Appeals:

Where, as here, it is within the Court’s power to provide a vehicle for plaintiffs to seek equitable relief capable of forestalling profound suffering and death, judicial hesitance and legislative deference only serve to thwart the ends of justice.

Thusly, Chief Judge Lippman begins his scathing dissent, pointing out not only how worthy the plaintiffs in equity are of remedy, but also how unfortunate it is that the court failed to adapt to a changing world.  He goes on, discussing the court’s squandered opportunity to craft a claim for victims of exposure and simultaneously providing safeguards and plaintiff thresholds that would prevent the sapping of resources.

Indeed, the world we live in today is not that of Blackstone.  Tort law developed in a century when injuries were a consequence of burgeoning industry.  Hands crushed in compactors and legs lost on railroad tracks are neat (on paper) and quantifiable.

Today, we face myriad dangers from unseen, yet equally deadly forces and actors.  Molecules and energies that trespass on our bodies due to the negligence of others are no less real than blood spilled by an unguarded saw.  And yet because we cannot see them, we allow those who cause the trespass to go undisturbed.

Law, like all things, must adapt or face obsolescence. A legal system that does not afford remedy until the worst possible scenario occurs does not conserve resources (as Chief Judge Lippman noted, “the cost of monitoring and treatment upon early detection pales in comparison to the expenses of treatment post-diagnosis, not to mention those incurred by wrongful death suits.”).

A legal system where an actor may be negligent yet avoid consequences because their victim has yet to fall ill is not a deterrent.

In all, the most regrettable aspect of the Court of Appeals’ decision is that lead plaintiffs in big cases against Phillip Morris USA and other mass tortfeasors are almost invariably dead due to their manifested injuries.  After today, asymptomatic plaintiffs must continue to wait for their own injuries to manifest before seeking remedy in litigation; litigation that, in the style of Dickens, may very well outlive those asymptomatic plaintiffs.