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The “Home Of The Throwed Rolls” — A New Hot Coffee Case?

Over at Lowering the Bar, Kevin Underhill reports on a lawsuit filed against Lambert’s Cafe in Sikeston, Missouri, a place known as the “home of the throwed rolls.” It seems a roll was “throwed” and a patron was injured, suffering “a lacerated cornea with a vitreous detachment.” Ouch.

Underhill raises a lot of good points about the case, with case law to boot. Initially, there’s the question of whether the patron assumed the risk of being hit in the face with a roll. As Underhill says,

The Missouri Supreme Court [has] held that the question is whether the plaintiff was “injured by a risk that is an inherent part of [the activity].” … Obviously, the problem—and the reason that assumption-of-risk cases are so inconsistent—is defining “the activity.” … Here, is “the activity” eating dinner—in which case you generally don’t expect to have things thrown at your head (except maybe at Thanksgiving)—or is it “eating dinner at Lambert’s Cafe, the Home of Throwed Rolls,” in which case you’d be stupid not to expect it?

I think we need to know more facts to really assess the role of assumption of risk here.

When I initially read the story, I pictured the patron asking for a roll and then being hit in the face with it when she failed to catch it — but what if the patron was just sitting at her table eating and an errant roll came flying at her? What if it came from outside of her peripheral vision?

In other words, when you’re at the “home of the throwed rolls,” do you assume the risk of rolls flying at you from all directions at all times? That strikes me as a dubious argument, like saying that everyone at a Chinese restaurant assumes the risk of a flaming pupu platter spilling on them as it is carried to another table.

As Underhill also notes, even if the patron assumed the risk in some fashion, the restaurant can still be liable if its employees “negligently altered or increased the risk and that caused the injury.” Did the employee throw it at her like a fastball? Did the employee check to see if she was looking? Was it an unusually large roll, or was it steaming-hot right out of the oven, or in some other unusually dangerous condition?  Continue reading

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Why Does Georgia Hire LexisNexis To Summarize Its Laws?

Via TechDirt, I learned that Carl Malamud, proprietor of Public.Resource.org, was sued last week by the State of Georgia for copyright infringement. Malamud is perhaps the leading advocate in the world for putting primary legal materials — statutes, case law, dockets, etc — on the internet. He’s also the leading advocate for making those same legal materials part of the public domain under copyright law, so they can be freely copied and distributed.

This isn’t the first time Malamud has been sued for his efforts. He’s been sued before for publishing technical standards: check out this ABA Journal article from June 2014 and this opinion piece by Malamud from February of this year. (As far as I can tell, none of the cases have reached the point of dispositive rulings.) The lawsuit brought by the State of Georgia is, however, to my knowledge the first time he’s been sued by the government itself — a situation that raises a host of troubling questions aside from the details of copyright law.

Malamud is accused of distributing copies of the “Official Code of Georgia Annotated.” According to the Complaint:

The copyrighted annotations include analysis and guidance that are added to the O.C.G.A. by a third party publisher of the O.C.G.A. as a work for hire. These annotations include synopses of cases that interpret the O.C.G.A., summaries of Opinions of the Attorney General of Georgia, and summaries of research references related to the O.C.G.A.

The “third party publisher” in question in LexisNexis. I’m quite familiar with LexisNexis; I am the co-author of a legal guide published by LexisNexis, one that includes plenty of “synopses of cases” and “summaries of research references” related to Pennsylvania law. I know all too well that it takes a substantial investment of time and energy to produce these works and to keep them updated with current changes in the law, and I’d be awfully upset if Malamud posted the whole thing online.

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Despite Go Set A Watchman, Atticus Finch Is Still A Hero

It is impossible to overstate the impact that Atticus Finch has had on the American legal system and its members. Consider this opening from a case decided by the Florida Supreme Court in 2013:

In his final remarks to the jury, Atticus Finch, the heroic protagonist of Harper Lee’s iconic novel, To Kill a Mockingbird, proclaims

I’m no idealist to believe firmly in the integrity of our courts and in the jury system — that is no ideal to me, it is a living, working reality. Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up.

Harper Lee, To Kill a Mockingbird, 205 (Warner Books, Inc., 1960). The case before us today addresses the very heart in which Atticus’s faith roots — the integrity of our courts, the soundness of our juries, and the men and women who “make [them] up.” Id.

Matarranz v. State, 133 So. 3d 473 (Fl. 2013). Or consider this 1999 concurrence from a Justice of the Washington Supreme Court: “We would most likely agree with Atticus Finch’s advice to his precocious, six-year-old daughter, Scout: ‘[Y]ou just hold your head high and keep those fists down. No matter what anybody says to you, don’t you let `em get your goat. Try fighting with your head for a change.’” State v. Riley, 976 P. 2d 624 (Wa. 1999). Trial lawyer Jim Perdue wrote a book titled, I Remember Atticus: Inspiring Stories Every Trial Lawyer Should Know. In 2010, the Texas Bar Journal had an article about the origins of the character, and how he exemplified the best aspirations of lawyers. Atticus is to lawyers as Galileo is to scientists.

Tuesday is the release date of Go Set A Watchman, in which Atticus Finch is, twenty years after the events of To Kill A Mockingbird, a closed-minded bigot who believes “The Negroes down here are still in their childhood as a people” and that the civil rights movement is moving too quickly.

As one quipster remarked on Twitter, “It’s like finding out Santa Claus beats his reindeer.”

So what are we, as lawyers, to do with this information? In my humble opinion: nothing.

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Ted Frank And The Real Risk Of Class Actions

Tort reformer Ted Frank and I have had our disagreements over the years. (See here and here.) In recent years, he has focused his work on filing objections to class action settlements through the Center for Class Action Fairness. Some of his work has focused on getting a better deal for class action members who, he alleged, weren’t receiving fair portions of the proposed settlement, but the bulk of his objections — at least to my knowledge — have focused on reducing the attorney’s fees claimed by the class counsel.


As Alison Frankel reported yesterday, it seems that, in the course of his contingent-fee work on behalf of people objecting to class action settlements, Frank has found himself in a situation he himself describes as “lurid, complex and Grishamesque.” The situation seems to have arisen from his personal goals as a lawyer being different from one of his client’s goals, and from his fee-splitting relationship with another firm, the very same issues he so frequently raises in his objections.


It would seem like a perfect opportunity for schadenfreude, but, in fact, all I can feel for him is sympathy — and his misfortune in the In Re: Capital One Telephone Consumer Protection Act Litigation presents a tremendous opportunity for tort reformers, politicians, the press, and the public to see just how difficult class actions, mass tort, and other large-scale litigation can be. In that case, Frank filed an appeal on behalf of a class member objecting to the fee claimed by Lieff Cabraser, and then everything went south.  Continue reading

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Your “Motion To Strike” My Witness’ Deposition Testimony Is Denied

As I wrote three years ago, one of the ‘basics’ as a young litigator is to learn how to take a deposition. Depositions are so commonplace in civil litigation — even the smallest of soft-tissue limited-tort car accident cases will typically have a couple — that it’s easy to forget how truly strange they are. Preparing for and taking a deposition is part psychology, part detective work, and part pure habit. The latter is what I want to focus on today.

Neither the Federal Rules of Civil Procedure nor most state rules provide much guidance on the conduct of depositions. As a result, most depositions are typically free-form. There aren’t many basic ground rules. Even critical issues like when a lawyer can demand a break in the deposition to confer with the witness remain unsettled. Indeed, most depositions start with the questioning attorney giving “instructions” to the witness that have no basis anywhere in the case law, they’re just a custom the lawyer has learned through their practice.

Which brings me to an issue I saw arise last week: when a questioning attorney gets an answer they believe wasn’t responsive to the question, what should they do?

This situation happens quite frequently, particularly when it comes to sophisticated parties and expert witnesses. These types of witnesses often come into depositions with a story they want to tell, and they are hell-bent on telling it, regardless of the questions asked.

I’ve addressed this issue before in a prior post, arguing that the key is persistence. (Sitting here today, I’d add that asking a clear, concise question is equally important.). But some lawyers respond by aggressively saying, “move to strike!”

Huh? Why? Where in the rules does it say an attorney can “move to strike” an answer they don’t like? Continue reading

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Phi Kappa Psi’s Doubtful Defamation Claim Against Rolling Stone

Rolling Stone’s recent article, “A Rape on Campus,” needs no introduction. (If you really need one, check the extensive Wikipedia article.) On April 5, Rolling Stone formally retracted the article and published an extensive outside critique of its fact-checking and reporting methodology by Steve Coll, dean of the Columbia School of Journalism. The next day, the Phi Kappa Psi chapter at UVA issued a press release announcing “plans to pursue all available legal action against the magazine.”

As the press release begins:

“The report by Columbia University’s School of Journalism demonstrates the reckless nature in which Rolling Stone researched and failed to verify facts in its article that erroneously accused Phi Kappa Psi of crimes its members did not commit,” said Stephen Scipione, President of the Virginia Alpha Chapter of Phi Kappa Psi.

Scipione’s use of the word “reckless” is undoubtedly a reference to part of the standard for proving defamation, i.e. showing “the statements were made with knowledge that they were false or with reckless disregard for their truth.” Cashion v. Smith, 749 SE 2d 526, 533 (Va. 2013). But that magic word, “reckless,” is just one small part of the analysis. As explained below, whatever that critique by Steve Coll says about Rolling Stone’s journalistic practices, that critique also includes a lot of information and conclusions that will make it difficult for the fraternity to prevail in a defamation lawsuit.

Defamation has a special place in our firm’s history (see some of our cases here, here, and here — they all settled confidentially), and the truth is: defamation cases are tough. By and large, the vast majority of people whose reputations have been unfairly damaged in the media do not have a viable legal claim. Defamation cases can fail for a million reasons, and here I want to focus on just two problematic issues: the fact that the fraternity is bringing the case, and the Coll report’s findings about the mindset of Rolling Stone.

Let’s start by being clear about what this post is not about. This post is not about sexual assault on college campuses; for that, watch The Hunting Ground. This post is not about journalistic standards; for that, Poynter has compiled more than a dozen reactions to the article’s retraction.

Rather, this post is about the single issue raised by the press release: whether “the Virginia Alpha Chapter of Phi Kappa Psi” has any “available legal action against the magazine.”  Continue reading

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PA Supreme Court Rejects “Assumption of Risk” In Malpractice Cases

Years ago, a family friend hired a contractor to do some basic work around the house, and paid half the cost as a deposit. Mid-way through, it became clear the contractor was doing a terrible job and that everything would need to be redone, so they terminated the agreement and brought in someone else. The contractor sued my friend in small claims court, asking for the balance of the contract. I told the friend to counterclaim for the initial deposit, and to bring to the hearing evidence of the faulty work.

At the hearing, my friend showed a short video of what happened when they carefully put a ball on the crooked shelf the contractor installed: it swiftly rolled off. The judge turned to the contractor, who exclaimed, “they never said they wanted it to be level!”

I thought of that case while reading the Pennsylvania Supreme Court’s recent opinion in Brady v. Urbas, a medical malpractice case. In every malpractice case I’ve tried, the lawyer for the defendant doctor tries to make a big fuss about the “risks of the procedure” that were disclosed to the patient. The argument is irrelevant and prejudicial: obviously, the patient didn’t consent to the risk of negligent treatment; rather, the patient consented to the risks of the procedure if it was done properly.

But the defendants always raise it anyway, mostly to confuse the jury into thinking that the patient accepted this “risk” when they went in. It’s no different from a contractor claiming a homeowner didn’t ask for level shelves, but, sadly, courts routinely allow this stealth ‘assumption of risk’ argument to pervade malpractice trials.
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Doctor, Before You Save My Life, Can I See Your Hospital Contract?

Yesterday, my wife called me on her way back from the Pennsylvania Supreme Court’s oral arguments to tell me about Green v. Pennsylvania Hospital et al., a medical malpractice case. She swiftly assigned me two tasks: first, I had to figure out who the appellate lawyer for the plaintiff was (because they had done an excellent job), and, second, I had to write about the case.

I had a hunch about the excellent lawyer, and the docket confirmed it was indeed Howard Bashman, proprietor of the impossibly productive How Appealing. I’ve admired Bashman’s appellate work before, including referencing his briefs in my post on Lance v. Wyeth back in 2011, in which his client subsequently prevailed, 85 A.3d 434 (Pa. 2014), making good law for every consumer of prescription drugs in Pennsylvania — which of course includes virtually every Pennsylvanian at one point or another.

Bashman posted yesterday, “The oral argument seemed to go very well.” I don’t think that’s a fair description; the first-hand account I received said his argument was “fabulous.”

Here’s the underlying Superior Court panel opinion and dissent and Bashman’s petition to the Pennsylvania Supreme Court, which lay out the two issues, one relating to “ostensible agency” (i.e., when a hospital can be held liable for a doctor that isn’t formally their employee) and one relating to whether an expert witness nurse can testify that a defendant nurse ‘caused’ the patient’s harm. Both revolve around interpretations of Pennsylvania’s MCARE statute (PDF copy here), specifically 40 Pa. State. Ann. §§ 1303.516 & 1303.512.

If I just re-wrote my thoughts about the legal issues, I’d be doing a disservice to Bashman’s clear and concise petition, with which I entirely agree and which I recommend to anyone with a passing interest in these subjects. But there’s still plenty of interesting issues to raise: the case is a reminder of just how frustrating, cruel, tragic, irrational and stupid the law can be if we don’t stop to think about the purpose of the laws we have in the first place.

We begin with a stupid tragedy. Joseph Fusco was admitted to Pennsylvania Hospital for shortness of breath, rapid breathing, and wheezing, sent to the Intensive Care Unit, and intubated. A week later, to try to wean him off the ventilator, Fusco was given a tracheostomy. A nurse later noticed the tracheostomy was “squirting” blood, so an emergency team was called, including an Ear, Nose and Throat physician. The ENT negligently tried to reinsert an endo-tracheal tube through the trach, rather than through his mouth; the tube ended up in his thorax, forcing pressurized air that collapsed his trachea. Fusco asphyxiated.

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Tonja Carter, Harper Lee, And The Duties Lawyers Owe To Elderly Clients

[Updated July 13, 2015, to reflect Tanja Carter’s Wall Street Journal article. See below. Also, see my post about Atticus Finch’s racism in Go Set A Watchman.]

For someone who is “one of the world’s most famous literary recluses,” and hasn’t given an in-depth interview or published any work in more than 50 years, Harper Lee has made quite a lot of headlines over the past few years.

She sued her agent, then her hometown museum, and in both alleged that each had taken advantage of her declining health. Her complaint against her agent alleged that, because of her “serious deafness” and “macular degeneration,” she was barely able to hear or read anymore. (The complaint also alleged, at paragraph 48, that as of October 2012, Tonja Carter, Lee’s estate lawyer, was instructing HarperCollins to pay all To Kill A Mockingbird royalties to her. We’ll come back to that.)

Thus, when Harper Lee announced — through Tanja Carter, of course — that she was publishing Go Set A Watchman, a “sequel” to To Kill A Mockingbird that had been miraculously found by that same lawyer, more than a few eyebrows went up.

Misfortune of Knowing recounts much of the backstory. Many people who have known Lee for decades, from the editor-in-chief at W.W. Norton to the owner of her favorite restaurant, David’s Catfish House, have said Lee was adamant that nothing else was going to be published in her lifetime. Others in Monroeville, Alabama, say that Lee’s health has been in a severe decline for years, and that they feel she’s being manipulated and that she likely lacks the capacity to decide one way or another.

Adding to the concern, it seems that virtually no one can actually see Lee anymore, not even her editor or her publisher. As reported by The New York Times, everything goes through Tanja Carter:

Ms. Carter appears to have won the trust of Ms. Lee’s publisher, too. She was a key contact for HarperCollins as the deal for the new book was negotiated. “We talked to her through her lawyer and friend Tonja Carter,” said Jonathan Burnham, the senior vice president and publisher of Harper, adding that getting direct permission from Ms. Lee “wasn’t necessary.”

Harper Lee’s editor said he didn’t even know about the book until it was announced, and that he hasn’t had any contact with her: “She’s getting progressively deafer and more blind, and that’s where things stand. I don’t hear from her. There’s no reason why I should, because we don’t need to do anything. I write her notes now and then, but I haven’t heard anything back and I wouldn’t expect to.”

Though adverse to publicity, Lee wasn’t a recluse, and for decades Lee delighted in conversing with neighbors, acquaintances around town, writers, editors, and publishers — and now she won’t even talk to the editor and publisher of her own book?

I wrote back in 2013 that Lee’s unusual litigation created “the impression that this fight is driven more by the professionals around Lee than it is by her.” Now, based on the information available through published reports, the situation looks less like ‘a fight driven by professionals’ and more like elder abuse.  Continue reading

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The Pennsylvania Medical Society’s Hypocrisy On Malpractice Cases

The Philadelphia Inquirer recently picked up on a story that has been around the Philadelphia legal community for a while, i.e., the $1 million in sanctions entered against attorney Nancy Raynor in the Sutch v. Roxborough Memorial Hospital case.

Raynor was defending Roxborough Hospital in a medical malpractice case in which the hospital failed to inform a patient or her doctor that her chest x-ray had revealed a potentially cancerous nodule on her lung. Twenty months later, the patient was diagnosed with Stage IV lung cancer. She died six months later, and her relatives sued.

The decedent was a smoker. In advance of the trial, the court held that the defense could not admit evidence of her smoking into the trial. That’s not unusual: Pennsylvania law precludes doctors from trying to avoid responsibility for their malpractice by blaming the plaintiff for their own cancer. Patients go to doctors for treatment; it’s irrelevant when or how a plaintiff was injured. What matters is if the doctor did, or did not do, what they were supposed to do. Indeed, the Sutch case has been around so long that it already went through its appeal to the Pennsylvania Superior Court, which affirmed the trial court’s order excluding from the case any reference to smoking.

At trial, however, Raynor called to the stand one of her expert witnesses, Dr. John Kelly, and asked him, “Did [the patient] have any cardiac risk factors?” In response, the expert said: “The patient was a smoker. The patient was hypertensive. So, yes, I mean, those are big risk factors.” That was, obviously, in violation of the court’s order. The plaintiff’s lawyers at Klehr Harrison and Messa & Associates moved for a mistrial and for sanctions. The court, after hearing Raynor and Dr. Kelly’s side of the story, granted the sanctions, the bulk of which are attorney’s fees for the time the plaintiff’s lawyers had to spend on what ultimately ended up being a superfluous trial.

I won’t comment more on the sanctions, except to make two points. First, it wasn’t the first time Raynor was sanctioned in the case — she had previously been sanctioned by another judge for improperly contacting the employer of the plaintiff’s expert witness. Second, after the sanctions were entered, this is how Raynor responded to The Legal Intelligencer:

“I’m not only going to appeal the decision, I am going after everyone in this,” Raynor said, adding that she is calling for an investigation into [Judge] Panepinto and has met with lawyers to discuss lawsuits against Messa & Associates and Klehr Harrison. … “If they think for one nanosecond that I’m laying down and putting up with their bullshit, they’re crazy,” Raynor continued.

It is rarely helpful to “call for an investigation into” or to “go after” a judge who enters an adverse order.

But my interest in this case was piqued by a follow-up article in yesterday’s Inquirer, in which it was reported that the Pennsylvania Medical Society hopes to get involved in the case by filing an amicus brief. The hypocrisy of the Pennsylvania Medical Society is almost too much to take: Continue reading

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