I’m a trial lawyer for injured people and businesses at The Beasley Firm, founded in 1958. Our clients have been awarded over $2 billion through hundreds of verdicts and settlements in excess of $1 million. We’re listed in Super Lawyers, Best Lawyers in America, U.S. News’s Top Lawyers, et cetera. The [...]
Allegedly Abused Prisoner Wins Unanimous Supreme Court Tort Case (Was It All Justice Alito’s Doing?)
Yesterday, the Supreme Court unanimously held in Millbrook v. United States that 28 U.S.C. § 2680(h) — the statute that permits lawsuits against “investigative or law enforcement officers of the United States Government” for claims arising “out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution” — means just what it says, reversing nearly thirty years of law in the Third Circuit. So why did the Supreme Court have to tell us that a statute meant what it obviously meant?
The case arose from a prisoner in the United States Penitentiary in Lewisburg, Pennsylvania, who alleged “that he was taken to the basement of the SMU and forced to perform oral sex on Correctional Officer Pealer while Correctional Officer Edinger held his neck and Correctional Officer Gimberling stood watch by the door.” “SMU” stands for “Special Management Unit”; if you’ve ever watched a movie or TV with a prison in it, you know SMU as “the hole.”
Millbrook alleged he was assaulted, battered, and falsely imprisoned by three law enforcement officers of the United States. Under § 2680(h), there’s not much more to ask about the case: his claim was exactly the sort of claim Congress sought to permit when it amended the Federal Tort Claims Act in 1974 in response to a disturbing rise in “no knock” raids that destroyed homes and even killed people — without even probable cause or a warrant, as required by the Fourth Amendment. (It’s a couple years old now, but this long report from Radley Balko on the rise of paramilitary raids by domestic law enforcement is essential reading — sadly, the problem has gotten much worse in the past 40 years.) The law means, quite simply, that the United States is liable when investigative or law enforcement officers of the United States Government commit those specific intentional torts in the scope of their employment.
In the years since the Act’s passage, the courts have been busy eviscerating it by granting the government and its employees an increasing amount of immunity. In 1986, the Third Circuit decided in Pooler v. United States, 787 F.2d 868, 872 that § 2680(h) was limited to claims where the “investigative or law enforcement officers” were “executing a search, seizing evidence, or making an arrest.” The Third Circuit reasoned: Continue reading
[Trial lawyer Steve] Mostyn sees potential riches on the horizon. The lure of New York, and all those insurance claims spawned by the destructive wrath of Superstorm Sandy, is irresistible for an ambitious litigator with political connections, piles of money and a fearsome reputation.
Mostyn — 41 years old with a shaved head, steely blue eyes and linebacker physique — plans to move much of his Houston-based Mostyn Law Firm to New York City soon, with dreams of landing about 10,000 cases worth more than $1 billion in insurance claims from the storm that pummeled the Northeast last October.
You can imagine where the rest of the article goes from there, and it’s worth a read just to see Professor Anthony Sebok’s understated response to Mostyn’s claim that he wants to take on $1 billion in disputed Hurricane Sandy insurance claims. I haven’t a clue who Mostyn is; he could be the best insurance bad faith lawyer in Texas for all I know. I want to focus on two critical pieces of the article that tell a lot about the sorry state of insurance policyholder’s rights in New York and New Jersey.
But Mostyn already has fans, like Carleanne Fierro, 51, a swim club owner from Pound Ridge, N.Y., whose house was damaged and is glad to know the hulking Texas lawyer is coming. Fierro, who lives in a town about 13 miles from Long Island Sound and 40 miles from Manhattan, said she quickly became frustrated seeking help with her claims from New York lawyers. “They don’t know how to handle this,” she said. “I think you need an expert. I think you need someone who is familiar with wind damage.” When she found Mostyn’s firm, she signed a contract quickly. “It is worth the 40 percent just for someone to listen to my story and be kind to me,” she said.
Back in Austin, a political foe of Mostyn, state Sen. Larry Taylor, R-Friendswood, shook his head when he heard about Mostyn’s plan to enter New York. “It’s the new thing,” Taylor said. “It’s the new cash cow.”
Let’s stop and think about that for a second: how is a lawyer from Texas able to walk into New York and start charging a 40% contingent fee on a “cash cow” claim? Why did Ms. Fierro have trouble finding someone to handle her insurance claim? It’s not like there’s a shortage of trial lawyers in the Mid-Atlantic States.
Certainly, Hurricane Sandy wrecked havoc on the East Coast, and as someone who regularly deals with insurance companies (and who grew up on Hurricane Alley down in the South), I have no doubt the insurers have taken a hard line on the claims to avoid shelling out billions of dollars to homeowners and businesses. That’s how, despite the fact that an extraordinarily devastating storm hit one of the most populous and wealthy areas in a country in 2012, the reinsurance industry still turned a healthy profit.
It has been widely reported that 93% of New Jersey homeowner’s claims have been “closed,” but that doesn’t mean the homeowner agrees with the result — if an adjuster said a house with the roof blown off and some water in the basement was destroyed entirely by a “flood,” then that counts as a “closed” claim. The State of New Jersey has already taken some grief in the press for how it keeps insurance data under wraps. There’s every reason to believe insurers up here are doing the same things insurers do in the South after a hurricane: offer the policyholder half of what they deserve, then claim the damage was “flooding” or “fraud” if the insured doesn’t take it.
But, back to our original question — why don’t you see New York City lawyers falling over themselves to get Hurricane Sandy insurance claims in the NYC, on Long Island, and down the Shore the same way, for example, they fall over themselves to get construction injury claims? Continue reading
This week’s U.S. Supreme Court argument in Bartlett v. Mutual Pharmaceutical (link goes to my thoughts on the case, which I posted back in December) has taken the issue of “impossibility preemption” for a brief stroll through the rest of the legal world, crossing paths with some major news outlets. Karen Bartlett was given a shot of a pain reliever, sulindac, which caused her to develop Stevens-Johnson Syndrome and toxic epidermal necrolysis so severe her burn surgeon called it “hell on earth.” There would be a handful of legal avenues available to her if she had received the brand-name drug, but, because she received a generic, there’s the looming question as to whether her State tort law lawsuit is “preempted” under the Supreme Court’s 2011 case, PLIVA v. Mensing.
A brief refresher. There are four types of “preemption,” so named when federal law trumps — i.e., “preempts” — state law.
1. Express Preemption is when Congress and the President pass a law that says States’ law on the issue are unenforceable. For example, the preemption clause of ERISA, 29 U.S.C. § 1144, “the provisions of this title … shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan …”
2. Impossibility Preemption is when Congress has not passed any law preempting State law, but “where compliance with both federal and state regulations is a physical impossibility for one engaged in interstate commerce.” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963).
3. Conflict Preemption occurs where Congress hasn’t passed a law preempting State law, and where it’s possible to comply with both, but “under the circumstances of [a] particular case, [state] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
4. Judicial Activism Preemption happens when a judge, or the majority of judges on a federal appellate court, don’t like a particular State law and so make up a reason to get rid of it. No, the courts themselves don’t call it that, they typically call it “impossibility preemption.” This is my term for it.
In the Bartlett case, just like in every other pharmaceutical liability case, there’s no express preemption. In the 80 years since the passage of the Federal Food, Drug, and Cosmetic Act in 1938, Congress has never once saw fit to preempt State law lawsuits against brand-name or generic drug manufacturers.
In 2011, a slim majority of the Supreme Court in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011) applied what I call Judicial Activism Preemption under the guise of impossibility preemption, and made up a reason to blow up the majority of lawsuits against generic drug manufacturers. I wrote more about it here. Law professor Leslie Kendrick recently wrote about how problematic impossibility preemption is in the conduct of pharmaceuticals in general.
Mensing involved a “failure to warn” claim — i.e., an allegation that the drug’s warning labels didn’t adequately disclose the drug’s real risks — and the Supreme Court held those claims were preempted. Bartlett on the surface involves a pure strict liability claim — i.e., a claim that the drug is simply unreasonably dangerous given the minor benefits it has compared to the serious risks — and then in the details involves a number of complicated factual and legal issues, including the strange decision by the defendant to waive most of its defenses, complicated issues that, to me, should have caused the Supreme Court to decline the case for consideration.
Patent trolls are back in the news again, primarily as a result of the re-introduction of the “Saving High-tech Innovators from Egregious Legal Disputes” Act. (As The Register notes, the “SHIELD Act” is “risibly backronymed.”) Yesterday, the United States House of Representatives Subcommittee on the Courts, Intellectual Property and the Internet held a hearing on “abusive patent litigation.” I would say their heart was in the right place, but, in typical congressional committee fashion, rather than host a forum at which worthy ideas could be debated for the benefit of society, the subcommittee called four management-level lawyers at Fortune 500 companies, one lawyer from a multi-billion-dollar private company that provides software to most of the Fortune 500, and one lawyer from a litigation firm that touts its success representing Fortune 500 companies.
The SHIELD Act was first introduced last fall and it was, to be frank, useless. The original SHIELD Act would have forced plaintiffs to pay the defendants’ attorney’s fees if the defendant could show the plaintiff “did not have a reasonable likelihood of succeeding.” That sounds all well and good, except that the primary problem with our current patent system is not that plaintiffs are filing wholly-frivolous lawsuits (i.e., where there’s no chance of proving infringement), but that patents are granted way too easily, and then cost too much to invalidate. “A reasonable likelihood of succeeding” is a meaningless phrase — indeed, what better indication of the “reasonableness” of a patent infringement lawsuit could there be than the existence of a valid patent granted by the patent office?
The revised SHIELD Act (copy available via the EFF at this link) makes far more sense. Instead of attacking purely frivolous claims — which simply aren’t the problem — the SHIELD Act has an elegant solution to the patent troll problem: to maintain an infringement lawsuit, the plaintiff must be able to show it is engaged in “a substantial investment… in the exploitation of the patent through production or sale of an item covered by the patent.”
If enacted, the bill would end the practice of companies buying patents and then enforcing them against others without bothering to do anything with the patent themselves. Patent protection exists to protect legitimate inventors trying to utilize their patents, not to enrich shell companies unwilling to take on the risk of making a product that actually uses the invention. The revised SHIELD Act would be a step in the right direction, but it has three big exceptions that render it toothless in most cases. Moreover, it fails to attack the primary problem with patent lawsuits these days: the lopsided cost of pursuing a patent lawsuit to defending one, which gives the holders of weak patents the power to extract sub-million-dollar settlements without their patents actually being tested in court. Continue reading
[Update, March 21, 2013: Eric Turkewitz chimes in with his 10 Signs The New Matter is a Dog (Before you even consider the merits). I am more tolerant of #1, #3, and #4, depending on circumstances, but #2 and #5-#10 all pretty much guarantee I will not investigate further and will reject the case. One other big point that #2, #8, and #9 can reveal: do not take on hostile clients. It doesn't matter how good their case looks, they are not worth it. If a potential client is rude to my secretary or paralegals, they are gone, no questions asked.]
Last week The Legal Intelligencer reported on the Pennsylvania Superior Court affirming dismissal of a Paxil birth defect case. (Opinion here.) The case involved a little girl born with a congenital heart defect known as hypoplastic left heart syndrome, who thereafter had a tragic course. There’s evidence tying SSRI antidepressants like Paxil to heart defects, so it’s unsurprisingly that a claim was filed, but the claim was, to put it mildly, challenging to prove. The plaintiff had no medical records from anywhere showing that she took Paxil, and no doctors who could remember prescribing her Paxil. As the trial court recounted:
Mary testified she first received Paxil from her family doctor, George Huntress, beginning September 1996. She claims Dr. Huntress gave her additional samples again in October and November 1996. Although she conceived approximately November 7, 1996, Mary testified she took Paxil until November 13, 1996 when her obstetrician confirmed [that she was pregnant]. Dr. Huntress no longer practices medicine, nor recalls treating Mary (he did not even recognize her photograph). Moreover, there are no available medical records showing he treated her at all let alone prescribing Paxil.
However, other contemporaneous medical records, including emergency room visits, indicate she took various other medications such as Ibuprofen, Bactrim, Motrin, Terazol and Flagyl. There is also evidence Mary’s obstetrician, Dr. Rick Visci, prescribed Zoloft which she took from approximately November 1995 until March 1996 and again after her pregnancy. He never prescribed Paxil.
The Philadelphia trial court dismissed the case, holding that, without medical records, the plaintiff would not be able to prove they took Paxil. (So much for the American Tort Reform Association’s claim Judge Moss is biased towards plaintiffs.) The Superior Court reversed that basis, holding that the plaintiff’s testimony created a factual issue for the jury, but then affirmed dismissal on another basis, a basis on which the plaintiff had waived its argument.
I don’t want to get into the nitty-gritty of the case, except to point out an important practice tip for plaintiff’s lawyers: don’t take cases where you don’t have any medical records to back up the plaintiff’s claims. I’ve never seen a medical record that was 100% in line with the recollections of the patient, their doctors, and their nurses, and we’ve had many cases in which we proved that medical records had inaccuracies or outright falsifications. That said, the absence of any evidence in the medical records that a plaintiff took a particular drug (if a drug case), or reported a particular symptom (if a malpractice case), or was diagnosed with the signs and symptoms of a particular injury (if an accident case) should be a big red flag for any plaintiff’s lawyer investigating the case.
The Paxil case was, in many ways, an exception that proves the rule. The case involved terrible damages (the little girl suffered a stroke at eight months old immediately following heart surgery, then passed away near their 10th birthday) and the presence of a pre-existing mass tort that made the case comparatively easier and less expensive to pursue in the pre-trial stages. So, if you have a case with huge damages, and you’re filing it alongside dozens or hundreds of similar cases, and you have a plan for proving the issue — e.g.., the plaintiff and their spouse will both testify credibly in support of the issue, like in the Paxil case — then consider it. Otherwise, kindly explain to them that the plaintiff bears the burden of proof, and recommend they get a second opinion from another lawyer before the statute of limitations runs.
So there’s our first rule: (1) don’t take cases where you don’t have any medical records to back up the plaintiff’s claims.
How about a couple more? Continue reading
[Update, March 14, 2013: A little more than a week after my post went up, the President of the American Congress of Obstetricians and Gynecologists (ACOG) issued a statement noting "the outcome of any surgery is directly associated with the surgeon’s skill," and urging patients "to separate the marketing hype from the reality when considering the best surgical approach for hysterectomies."]
In Kurt Vonnegut’s novel Player Piano, machines have replaced humans in most jobs, but only humans can be barbers and surgeons, given the complexity of the movements required. As Vonnegut noted, barbers “[u]sed to be sort of doctors, bleeding people and setting their bones and all, and then the doctors got sore and took over all that stuff and left the barbers haircutting and shaving. Very interesting history.” Interesting indeed: for more on the history connection between barbers and surgeons, see “From Haircuts to Hangnails – The Barber-Surgeon.”
I had Player Piano on my mind as a result of two articles published last week relating to robotically assisted hysterectomies. The efficacy and safety of robotic assisted surgeries, particularly hysterectomies, is an issue of growing importance. The Da Vinci Surgical robotic surgery system is advertised as having “the potential for significantly less pain, a shorter hospital stay, faster return to normal daily activities,” but it is become increasingly clear that the system has no additional benefits beyond typical laparoscopic surgery, while imposing additional costs and risks.
First, the Journal of the American Medical Association published “Robotically Assisted vs Laparoscopic Hysterectomy Among Women With Benign Gynecologic Disease,” a study that found “Between 2007 and 2010, the use of robotically assisted hysterectomy for benign gynecologic disorders increased substantially. Robotically assisted and laparoscopic hysterectomy had similar morbidity profiles, but the use of robotic technology resulted in substantially more costs.” For a while now, surgeons have questioned the value of these machines (one example here, another here), given the absence of any proof that they’re better while costing more than double the price of a typical laparoscopic hysterectomy, and this study confirms the absence of any additional benefit. As the accompanying JAMA editorial argued, “Consumer advertising of expensive devices should be subjected to the same scrutiny as that of new and expensive medications.”
Second, Bloomberg News reported that the Food and Drug Administration was surveying surgeons to see if the $1.5 million “Da Vinci” surgical robot manufactured by Intuitive Surgical, Inc., was safe. Bloomberg framed the issue as, “[t]he answers may sway debate on whether robotic surgeries promoted as being less invasive are worth the extra cost,” which is partly true, but we need to clarify what we’re talking about: robotically-assisted hysterectomies. There are plenty of other fascinating robotic surgeries that are being studied and practiced, but each different type of surgery should be analyzed separately.
I can tell you the answer quite frankly: no, robotic hysterectomies are not worth the extra cost, and they are likely more risky than laparoscopic surgeries done without them. Continue reading
Last week, a Financial Industry Regulatory Authority hearing panel gave Charles Schwab permission to modify its customer agreements to prohibit consumers from bringing class action lawsuits against the company. That’s not surprising; a narrow majority of the Supreme Court believes the enforcement of arbitration clauses deserve preferential treatment over all other legal principles, and companies have been falling over themselves to stick these sorts of waivers into every document they ever send their customers.
The surprising part is the degree to which the company feels comfortable making absurd statements like this:
“The company believes customers are better served through the existing FINRA arbitration process and that class-action lawsuits are a cumbersome and less effective means of resolving disputes – for both parties. …”
Schwab amended its customer agreements to include the class action waiver because class action litigation is unduly expensive and time-consuming, and too often results in resolutions benefiting the class action lawyers rather than their clients. … [I]t is highly questionable as to whether consumers receive any material benefit from many class action settlements. In the litigation leading to the AT&T Mobility v. Concepcion decision, the lower court commented that members of class actions “rarely receive more than pennies on the dollar for their claims, and that few class members (approximately 1 percent to 3 percent) even bother to file a claim when the amount they would receive is small.” * When Congress modified the laws concerning class actions, it commented that “Class members often receive little or no benefit from class actions, and are sometimes harmed . . .” **
Not coincidentally, Charles Schwab first stuck the class action waiver into its contracts in September 2011 — just five months after a federal court approved a $235 million settlement in a class action brought by investors against the company. Of that $235 million, more than 90% went to investors, and less than 10% was allocated as attorney’s fees.
The details of that case show exactly why Charles Schwab wants the class action waiver, so bear with me as we review In re Charles Schwab Corporation Securities Litigation, No. C 08-01510 WHA (N.D.Ca.). For years, the company had the “YieldPlus Fund,” an “ultra-short” mutual fund that was advertised as a safe-but-more-profitable alternative to typical mutual funds, that would invest in a mixture of safe fixed-income securities over very short time frames. Like most of Wall Street, though, the company got caught up in the roaring mortgage-backed securities market of the early 2000s, didn’t bother to follow any of its own agreements or requirements, and dumped nearly half of the fund into securities backed by dubious mortgages. Continue reading
Last week, we took a ride on the corporate defense lawyer baloney train, this week we jump on the express. Two months ago, pharmaceutical manufacturer Roche Laboratories filed a motion asking Atlantic County, New Jersey Superior Court Judge Carol E. Higbee to recuse herself from the over 7,000 Accutane cases still pending in that consolidated litigation.
The 39-page brief Roche filed in support of the motion didn’t have much substance to it, but it was met with much fanfare across the tort reform world as a bold effort to attack a judge who wasn’t sufficiently accommodating to their scorched earth litigation tactics. Roche argued, for example, that Judge Higbee shouldn’t have mentioned at a conference for defense lawyers that Roche was not settling cases because “Roche considers the fact of whether settlements have or have not occurred … to be confidential,” as if we should care that Roche “considers” a publicly-available fact anyone can see on a docket to be “confidential.”
Hardly a week goes by without an insurance company, a big corporation, or one of their lobbying groups complaining about “the cost of litigation,” usually prefacing the word “cost” with hyperbolic adjectives like “soaring” or “exploding,” with the implication that, somehow, injured plaintiffs or their lawyers are to blame. Yet, whenever we see an actual example of a party engaging in absurd tactics to make litigation more costly and difficult, it always turns out that the defendant or their insurance company is to blame. Although trial is typically the most expensive part of any case, the vast majority of cases settle, and so discovery is typically the most expensive part of most cases. (Earlier this week I turned in the updates for the Third Edition of our Pennsylvania Civil Discovery book, so discovery is on my mind.)
The railroad company Norfolk Southern, for example, spent over $250,000 last year funding non-railroad anti-consumer lobbying groups like the U.S. Chamber of Commerce, Business Roundtable, and National Association of Manufacturers, all of which have spent ample time decrying the costs of litigation and blaming trial lawyers for it.
Pannunzio v. Norfolk Southern, reported on by The Legal Intelligencer earlier this week, involves a train hitting a delivery van that was on the tracks. The driver sued the train company, alleging the train was going too fast, that the train didn’t sound a horn as it approached the crossing, and that the tracks were improperly designed, making it hard to see oncoming trains. The plaintiff’s claim as a whole is by no means simple –— they’re going to have to spend tens of thousands of dollars, maybe more, on experts testifying about how a railroad crossing should be designed — but the basic facts of the lawsuit are obviously quite simple, such as how fast the train was going and whether it sounded a horn or not.
Wouldn’t it be nice if there was, say, a camera on the train recording all that? Continue reading
Via Overlawyered and TortsProf, I saw that a new law review article came out last week in the Vanderbilt Law Review, “Products Liability and Economic Activity: An Empirical Analysis of Tort Reform’s Impact on Businesses, Employment, and Production” by Joanna Shepherd. As a products-liability lawyer (and an armchair economist), I was excited, so I printed out a copy, sat down with my highlighter, and, unfortunately, didn’t even make it past the third page without gnashing my teeth in frustration:
Specifically, we know surprisingly little about whether products liability law suppresses economic activity, and which, if any, reforms might improve economic conditions.4
This Article provides empirical evidence that addresses this argument. This issue is particularly salient because economic conditions are worse than they have been in decades, yet the cost of the products liability system continues to grow. Consequently, probusiness groups have intensified their demands for tort reform, maintaining that reforms are essential to improving the economy. Hence, it is imperative for lawmakers to know which reforms can help mend current economic conditions. Moreover, the tort system costs American businesses over $150 billion annually.5
4. AM. TORT REFORM ASS’N, supra note 2.
5. TOWERS WATSON, 2010 UPDATE ON U.S. TORT COST TRENDS 7 (2010)
There are two big empirical problems right out of the gate.
First, the Towers Watson report — Shepherd’s sole citation for the assertion that “the tort system costs American businesses over $150 billion annually” — has been repeatedly discredited for inflating its numbers and for relying on secret proprietary data, instead of the industry standard A.M. Best data. Similarly, as I’ve explained before, even if we corrected the numbers, the Towers Watson study still wouldn’t make any sense: the study absurdly refers to every benefit paid to an injured person as a “cost” to society. This would be an accurate analysis if injured persons took their settlement checks and promptly set them on fire.
In reality, as the Coase Theorem makes clear, money paid out in tort liability is not a “cost” to society, it’s just a transfer from one party to another, because the money goes right back into the economy through payments to medical providers and insurers (who subrogated part of the injured person’s claim). The money left after those medical and insurance costs goes towards remedying the insured person’s lost wages, and thus goes to the same healthy economic expenditures as before, like paying for their children’s education, or buying a new house, or putting food on the table. (Before someone claims, “but the lawyer’s fees are a transaction cost,” remember that, in personal injury litigation, the lawyer’s fees are not added to the defendant’s liability, but rather subtracted from the plaintiff’s recovery, and so they do not add to the overall recovery.)
Second, and even more worrisome in a study that purports to make “empirical” arguments, is the lack of any citation at all for Shepherd’s assertion that “the cost of the products liability system continues to grow.” Have the “costs” of our product liability system actually grown relative to the size of the economy? My hunch would be no; as Shepherd admits, since the 1980s, “state after state enacted legislation designed to curb the [fictitious liability insurance] crisis by limiting the scope of liability and damages,” and the federal government has enacted special liability protections for “general aviation aircraft,” “biomaterials suppliers of raw materials and medical-implant component parts,” and “manufacturers, distributors, dealers, and importers of firearms or ammunition.” I’d add to that list of political victories by product liability defendants the increasing adoption of the Third Restatement of Torts (which essentially eliminates strict liability) and the wholesale elimination of claims against generic drug manufacturers.
In short, product liability law has been increasingly favoring defendants for more than a generation, so why should we assume that the cost of the product liability system is growing relative to the economy? Continue reading