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 ... Continue Reading

Tweet Like Email LinkedIn

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. ... Continue Reading

Tweet Like Email LinkedIn

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 ... Continue Reading

Tweet Like Email LinkedIn

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 ... Continue Reading

Tweet Like Email LinkedIn

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 ... Continue Reading

Tweet Like Email LinkedIn

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

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, ... Continue Reading

Tweet Like Email LinkedIn

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. ... Continue Reading

Tweet Like Email LinkedIn

Ethicon Asks MDL Court To Presume Women Lie About Their Health

Transvaginal mesh is one of the great health debacles of our time, causing more damage across more families than any other medical device in recent memory. I know it from my own files: the mesh implants ruin women’s health, often sending them down a spiral of revision surgeries and infections and debilitating pain that they never really escape. Last April, the FDA finally started taking action to address the problem by proposing that surgical mesh for transvaginal pelvic organ prolapse be reclassified from a “moderate-risk device (class II)” to a “high-risk device (class III),” which would require manufacturers to submit ... Continue Reading

Tweet Like Email LinkedIn

Does The President Really Think U.S. Attorney Carmen Ortiz Is Doing A Good Job?

Next week is the second anniversary of the death of Aaron Swartz, who committed suicide amid an unjustifiable prosecution led by U.S. Attorney Carmen Ortiz, a prosecution that at best was based on a complete misunderstanding of how computers work. Two years ago, a petition on the White House’s “We The People” site made a straightforward request: “Remove United States District Attorney Carmen Ortiz from office for overreach in the case of Aaron Swartz.” U.S. Attorneys are appointed by the President and confirmed by the Senate. U.S. Attorneys, however, are removed at the sole discretion of the President. As the ... Continue Reading

Tweet Like Email LinkedIn

Tort Reform Kills (General Motors Defective Ignition Edition)

As the New York Times described yesterday, Natasha Weigel and Amy Rademaker, both teenagers, died needlessly in 2006 because General Motors sold a defective car that suddenly lost power, causing them to crash and also causing their airbags to fail. A police investigation found that “[t]he car’s ignition switch had powered off seconds before the accident, and G.M. had received reports of similar incidents, pointing to a possible defect.” G.M. had already settled other cases involving deaths, including of another teenager, arising from the non-deployment of the frontal airbags in a 2005-2007 Cobalt. The Weigel and Rademaker families both went ... Continue Reading

Tweet Like Email LinkedIn