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 [...]
Can Match.com Be Sued For Setting A Woman Up With A Murderer?
On Friday, it was reported that a Nevada woman has sued Match.com for “failing to disclose dangers of online dating.”
Mary Kay Beckman’s experience was certainly traumatic: she alleges she met Wade Ridley through the site and dated him for a mere eight days. After a couple of harassing text messages, he disappeared for four months then surprised her in her garage, stabbing her repeatedly, stomping on her, and leaving her for dead. She has since had three brain surgeries, as well as “extensive psychological counseling, dental care to repair her jaw, treatment with eye and ear specialists to preserve her sight and hearing, and continued physical therapy.” Ridley was subsequently charged with the murder of another woman. He killed himself in prison.
Beckman is certainly a sympathetic plaintiff, and her tragic case of domestic violence is another reminder of why the Violence Against Women Act should be reauthorized. Tort law, however, is not about sympathy, but rather responsibility. In this case, we return to a basic question of tort law: when do we hold a person or company responsible for the criminal actions of another?
I’ve written about this issue several times before, exploring whether Jerry Sandusky’s abuse victims can sue Penn State, whether Jaycee Dugard can sue over negligent parole supervision, whether Yale should be liable for Annie Le’s death, and whether Monsignor Lynn had a duty to report child abuse by priests. It’s certainly not a common legal issue, but it resurfaces regularly; two weeks ago, the widow of a man killed in the Aurora theater shooting sued James Holmes’ psychiatrist.
The key legal word here is “duty.” Did Match.com have any legal duties to Beckman, and, if so, what were those duties? Here’s the Match.com complaint. Putting off the other details for a moment, let’s focus on its claims about a legal duty: Continue reading
FDA Figures Out Risk Of Metal Hip Implants Several Years Too Late
A month ago, I wrote about how the Office of the Comptroller of the Currency had inexplicably and inexcusably written several banking regulations to protect banks that fraudulently re-ordered bank withdrawals to create additional overdraft fees. Last week presented another example of obvious “regulatory capture” with the FDA’s astonishingly belated action on metal hip implants.
On January 17, the Food and Drug Administration issued a “Safety Communication” for metal-on-metal hips, noting “Metal-on-metal hip implants have unique risks in addition to the general risks of all hip implants” and recommending orthopedic surgeons “select a metal-on-metal hip implant for your patient only after determining that the benefit-risk profile of using a metal-on-metal hip implant outweighs that of using an alternative hip system.”
The FDA’s warning would have been prompt if it had been issued four years ago, by which point there was already substantial data showing the DePuy hip implants were failing at four to five times the expected rate; in 2009, Johnson & Johnson had already started to phase out the DePuy ASR, (falsely) claiming “slowing sales.” The FDA’s warning would have at least been timely if it had been issued in March 2010, when the NYTimes ran an article on the DePuy hip implants being withdrawn from the market, or perhaps April 2010, when the United Kingdom’s Medicines and Healthcare products Regulatory Agency (MHRA) issued a medical device alert that included specific follow-up recommendations for patients with metal-on-metal hip replacements.
By August 2010 — two and a half years ago — DePuy finally recalled all 93,000 of the ASR and ASR XLs it had implanted in patients; had the FDA warning sent out their warning then, it would have been charitably described as “belated.” (Indeed, within six months after that, so many lawsuits had been filed by the hundreds of patients who had already had revision surgeries — and thousands more who were told to get one — that multi-district litigation had been created, and we trial lawyers already knew just how awful these devices were.)
But January 2013? I would say that’s like closing the barn door several years after the cow got out, but the barn door isn’t actually closed, because the FDA hasn’t actually prohibited the sales of metal-on-metal hip implants. All the Safety Communication did was warn doctors about something they should have known years ago: metal-on-metal hips are a bad idea, and shouldn’t be used unless there’s a good reason why. The recent “Safety Communication” admits as much, and admits — without saying it — that metal-on-metal hips should be pulled from the market entirely.
Lessons from Kafka: Aaron Swartz and Prosecutorial Overreaching (Updated)
Several days later, the sadness over Aaron Swartz’s death — and outrage over the prosecution that his family and friends say played a role — still lingers. I wrote my thoughts about the meritless Swartz prosecution right after he was indicted in 2011, and have since updated the post to address the information disclosed since his death. But this post isn’t about the details of Swartz’s prosecution, it’s about him and the criminal justice system we built for him.
In September 2011, a few months after my post went up, I received an email from Aaron thanking me for my post, and asking, “If you have any time, I’d love to get your thoughts on a few things. Would it be possible to have a phone call at some point?” Much has been written about his brilliance and his extraordinary curiosity — which he himself said was all that distinguished him from everyone else — and about his uncompromising stances. I quote his introduction here to note that, when sending an email to a stranger, he was charming and unassuming, and when we spoke he was unfailingly polite.
In the conversation that followed his email, we talked about how the biggest challenge in a prosecution is the psychological stress. I told him to be mindful of the case but to still live his life. I told him, in all seriousness, to read Franz Kafka’s The Trial, because much of what was going to happen was going to be frustratingly incomprehensible. The law has a way of appearing to be rational even when it is being wholly irrational; after a few desperate initial years in law school and early practice, lawyers learn to be stoic and to accept the whims of the whirlwind, but to an outside observer any effort to comprehend the machinery of the law in a mere matter of months would leave them feeling powerless. I’m sure I’m not the only one who recommended it, given the circumstances.
Then we talked about history, politics, productivity, and a little bit of everything. Maybe our conversation was so pleasant because he was exceptional social engineer; reading his eulogies, it seems that most everyone who interacted with him had a similar engaging experience, regardless of the context or the topic. For what it’s worth, my impression was that he was so curious about the world that he was genuinely appreciative when anyone helped him explore an idea.
A few months after we spoke, The Trial showed up on his 2011 Review of Books: Continue reading
Using The Fair Labor Standards Act For Nickel And Dimed Employees
Two weeks ago I discussed how banks routinely targeted the most financially vulnerable members of society for fraudulent overdraft and debt collection procedures. If there are three words to sum up the American economy for the lower half of earners, it’s “nickel and dimed.” When Barbara Ehrenreich was researching her book Nickel and Dimed, she was shocked by “the totalitarian nature of so many low-wage workplaces. On two jobs, for example, there was a rule against talking with your fellow employees.”
It’s hard not to use the phrase “nickel and dimed” every time I read about a Fair Labor Standards Act case, and yesterday The Legal Intelligencer reported on the $20.9 million settlement of a wage-and-hour class action against Rite Aid. If anyone’s interested, the Order approving the settlement is here. While it was being litigated, the case also produced a good opinion in the Third Circuit, reported at 675 F.3d 249, which allowed state and federal wage-and-hour claims to be brought together in hybrid class/collective actions, bringing claims for the same actions under state and federal statutes.
The class action was brought on behalf of Rite Aid’s assistant store managers and co-managers, whom the company had claimed were part of management, and thus, they claimed, exempt from overtime pay requirements under the FLSA and its analogous state wage-and-hour laws. The lawsuit sought a change in the employees’ designation as well as reimbursement for unpaid overtime wages — and it won on both fronts, forcing a change in the company’s policies two years into the lawsuit and recovering an average of $1,800 to each of the class plaintiffs. (If you’re interested in exemptions law, back in October, Andrew Frisch of Morgan & Morgan at the Overtime Law Blog summarized some recent exemption court opinions.)
There’s a lot of doom-and-gloom in the plaintiff’s bar these days. Over the past decade, the Supreme Court has amended by fiat the Rules of Civil Procedure relating to pleading, has been on the warpath against class actions, has granted the word “arbitration” magical powers even greater than “abracadabra,” and has blown up virtually all lawsuits against generic drug manufacturers — all regardless of the laws Congress actually wrote.
But one area in which plaintiffs have done well recently has been the Fair Labor Standards Act. Continue reading
Why Civil Defendants Want To Be In Federal Court: Judicial Vacancies
Today the Supreme Court holds oral arguments in Standard Fire v. Knowles, a Class Action Fairness Act (CAFA) case. According to the defendant, an insurance company, the case involves plaintiffs’ attorneys “manipulating their complaints to evade federal diversity jurisdiction” by stipulating to the class recovering less than $5,000,000, the CAFA threshold that allows defendants to remove class actions from state court to federal court. According to the plaintiff, an Arkansas homeowner who alleges the insurance company routinely failed to pay for general contractors’ bills in home repairs, the issue here is just another example of the 70-year-old rule that a plaintiff can stay out of federal court by stipulating to recovering only damages below the jurisdictional amount.
I don’t want to discuss the case in detail (many others have; e.g., Alison Frankel has covered it a couple times, and Kevin Walsh discussed an amicus brief filed by a manufacturers’ association, and the lawyers who filed the brief responded), but to address the broader issue raised by the case. Like many plaintiff’s lawyers, I’ve longed been dismayed at the efforts of insurance companies and large corporations to force more and more civil lawsuits into federal court. Nearly three years ago, I summarized some of the supposed reasons why defendants prefer to be in federal court (while discussing the Hertz v. Friend case on diversity jurisdiction):
- federal juries, by virtue of their larger geographic range, include fewer urban jurors and more rural jurors, and thus (according to lawyers’ lore) will award lower verdicts;
- the Federal Rules of Civil Procedure place express limits on the amount of discovery available;
- federal courts are (and were even before Ashcroft v. Iqbal) more prone to grant motions to dismiss (and motions for summary judgment) than state courts.
Is any of that true? Does it make a difference to the bottom line when all is said and done? Who knows, but it’s lawyer’s lore that federal courts are better for defendants while state courts are better for plaintiffs. A lawyer wouldn’t disregard the lore about federal court, much like how a sailor wouldn’t leave port on Friday or a driver wouldn’t race in a green car. For what it’s worth, though, state courts are typically the home of large personal injury verdicts — because the vast majority of wrongful death cases are there — federal juries do indeed award large damages in many cases. In 2012, for example, the second largest non-patent verdict nationwide was $167 million from a federal jury in an employment / sexual harassment case.
But lately the rush to put purely state law cases (like Standard Fire v. Knowles and Hertz v. Friend) in federal court seems to come from a different motivation: to get lawsuits out of fast-moving state courts and into federal courts hobbled by judicial vacancies. Continue reading
4 Reasons Why Gov. Corbett’s Antitrust Lawsuit Against The NCAA Is On Shaky Ground
[Second Update, February 8, 2013: The NCAA has filed its brief arguing that the NCAA's enforcement action was not subject to antitrust law, that it was procompetitive, that the complaint fails to allege anticompetitive effects in a relevant market, and that the plaintiff lacks standing.]
[Update: Obviously, there's been plenty of coverage. See this post at SB Nation, this report at Reuters, and this story at Morning Call, the latter two of which quote me. Others differ on the standing issue (in essence, they assume a State always has standing to challenge any alleged antitrust violation), but most everyone agrees the case is a tough sell. See my comment at SB Nation — even if we begin by assuming the NCAA violated antitrust laws, given the indirect nature of the claim here, Pennsylvania still has problems showing a nexus between that antitrust violation and a viable claim, regardless of whether we phrase it as a matter of standing, pleading, or causation.]
I spent plenty of time on this blog discussing Penn State’s civil liability following the Jerry Sandusky abuse scandal, with most of my thoughts in this post. At this point, the Freeh report was rightly damning, and PSU has, as I hoped they would, brought in outside help (Ken Feinberg, the most prominent mediator in the country) to try to resolve the claims.
I didn’t dwell on the consent decree Penn State entered into with the NCAA sanctions — as they say, a deal is a deal, and that’s just as true for a university and an athletic association, except to point out that there was no reason for the NCAA to care that a minority of the Penn State’s Board of Trustees disagreed with the decision to enter into the consent decree. Corporations act through their management, chosen by their Board of Trustees; the thoughts and feelings of a minority of trustees aren’t relevant to anyone dealing with the party.
Earlier today, the issue returned with a vengeance, as Governor Corbett announced his intention to file, on behalf of the Commonwealth of Pennsylvania, an antitrust lawsuit against the NCAA. When a reporter at the press conference asked how the Governor could have standing, his chief counsel responded they were using parens patriae standing. Here’s a PDF copy of the complaint. In essence, Corbett, claiming to act on behalf of Commonwealth of Pennsylvania (I write “claiming” because, as described below, federal law authorizes the attorney general, not the governor, to act) alleges the NCAA’s sanctions against Penn State violate federal antitrust law. The real meat of the lawsuit starts on page 30. The claim is, in essence:
[T]he sanctions against Penn State do not even ostensibly serve the NCAA’s stated goal of protecting the fairness of intercollegiate athletic competition. Rather, they were taken for the purposes of debilitating a once-powerful football program, enhancing the NCAA’s own reputation, and boosting the competing football programs of cetrain member colleges and universities by removing from competition one of the leading competitors.
Grab a cup of coffee, we have a lot to talk about here. Continue reading
Rampant Bank Fraud Shows Why We Need The Consumer Financial Protection Bureau
Since its creation in 2010, certain members of Congress have been desperate to thwart the Consumer Financial Protection Bureau (CFPB) by repeatedly passing bills to limit the CFPB’s power. Generally throwing a fit, these congressmen claim that the CFPB is a “run-away regulator unlike any other in American history.”
A case decided last week by the Ninth Circuit Court of Appeals, Gutierrez v. Wells Fargo Bank, shows why the CFPB is so important, how its predecessor (the Office of the Comptroller of the Currency) failed the American public, and why we should view anyone opposed to the CFPB with deep suspicion.
The Gutierrez case arises from a change Wells Fargo made to the processing of debit card transactions back in 2001. Wells Fargo claimed in its brochures that, when a consumer used a debit card, the money was “immediately” and “automatically” deducted from their accounts, and admonished customers — with the type of blatant hypocrisy only a true scoundrel can muster — “remember that whenever you use your debit-card, the money is immediately withdrawn from your checking account. If you don’t have enough money in your account to cover the withdrawal, your purchase won’t be approved.”
In reality, Wells Fargo waited until the end of each day, when it would re-order the transactions to create as many overdrafts as theoretically possible, and then charge the customer a fee for each bank-manufactured overdraft. Continue reading
First Lesson For New Plaintiff’s Lawyers: If It Was Easy, Everyone Would Be Doing It
[Update: Elie Mystel has his own critique of Frank's argument. Eric Turkewitz takes a step back to applaud the robust debate. Note that Point of Law and Overlawyered remain on my blogroll despite my frequently disagreements with their authors.]
Over at Point of Law, Ted Frank, with whom I’ve disagreed before, tells lawyers to “stop complaining about the legal job market” because there’s plenty of work, if they want it:
Every month, I’m presented with class action settlements where class members have legitimate objections and want to object, but my attorneys don’t have the time because of other opportunities or commitments. Every month, I’m presented with still other class action settlements where class members would have legitimate objections, but no class member ever approaches me. … I don’t have a monopoly on class action objections or helping consumers and shareholders. At the risk of creating competition that cannibalizes my donors, go do what I do, maybe you’ll do it better.
He might be right that there’s money to be made in representing objectors to class action settlements, because there’s the potential for objectors’ attorneys to be awarded attorney’s fees for their efforts. It strikes me as a plausible line of work, although, like all contingent fee work, a risky one, and one where you’re always worrying about the origin of your next cases. I must also admit that the long-term economics are a bit concerning to me: while your potential for reward is sharply limited (because you’re unlikely to be awarded anything above a reasonable hourly rate for the time worked, and even that is only paid months or years after the work is performed), your potential for loss is not (because you can walk away from cases without recovering a dime for your work or your expenses).
But that discussion of the merits of the practice puts the cart before the horse: plaintiffs’ law firms don’t just discover viable legal claims somewhere in the world and file them, they only enter the picture after clients find and hire the lawyers. Marketing lawyers is hard work. If Frank has some suggestions for how lawyers can pick up a steady stream of strong class action objection cases then he could potentially create jobs by sharing those suggestions. Similarly, if he is indeed presented with multiple meritorious, potentially-profitable objections every year that he turns down for lack of time, then he could do what most plaintiff’s lawyers do when they don’t have the time or resources for a meritorious case: send them to other competent lawyers.
More to the point, class action settlement objections are a unique and limited market and the dangers (both to lawyers and to clients) of inexperienced lawyers trying to jump into that field aren’t great. If that’s all Frank wrote about, I’d just let it pass. Continue reading
The Worst Lawsuit Defenses of 2012
My workload has been heavy lately, as has life in general, so I figured it was time for a diversion. It’s the end of the year, and thus unfortunately almost time for more deceptive “most frivolous lawsuits” lists, so here’s a retrospective of the worst lawsuit defenses I recall from 2012, a retrospective on the evils of water-soluble chalk, the violent propensities of classic Kung Fu movie fans, and the layman’s understanding of how a penile implant should work.
(5) Artist Drawing On Sidewalk With Chalk Deserved To Be Handcuffed, Arrested And Prosecuted For “Blocking Pedestrian Traffic”
One Saturday night down at 4th and South Street here in Philadelphia, artist Emily Hamilton Epstein was coloring the sidewalk with water-soluble chalk, the same harmless stuff my kids use that washes away with the rain. The complaint she eventually filed said:
[She] continued to draw for several hours, during which time she never blocked or obstructed public passage on the sidewalk. During that same period of time, many members of the public, including Philadelphia police officers, passed by and looked at her artwork — some commenting on the artistic quality of and the message communicated by her work — and no one ever advised the plaintiff that she was violating any law.
Isn’t it nice to see police officers walking around and encouraging civic participation like public art? For whatever reason, though, the chalk really, really bothered a particular Philadelphia Police Officer with a history of lawsuits against him. The officer allegedly demanded Epstein stop drawing, “grabbed and pushed” her, and then “applied handcuffs in an excessively tight manner,” after which he charged her with — drumroll, please — “obstructing the highway.”
The Philadelphia DA’s office took the case all the way to a non-jury trial, where the municipal judge brought sanity to the situation and found her not guilty. Epstein later sued — wouldn’t you? — and some poor fellow at the Philadelphia City Solicitor’s office had to come up with a defense. He settled on demanding “strict proof” that the chalk, which had long since washed away, was really water soluble:
[The] allegation regarding the type of chalk she was using is DENIED, because Answering Defendants do not have such knowledge.
The case settled three months later. Continue reading
The Third Circuit’s Curious, Non-Binding Dicta In The Sikkelee Product Liability Case
Pennsylvania law relating to product liability — i.e., whether the Second Restatement or Third Restatement of Torts applies — continues to be hotly disputed, an issue that came back up again with the Pennsylvania Supreme Court’s opinion in Reott v. Asia Trend. Reott involved a man who fell while trying to install a tree stand; in sum the Pennsylvania Supreme Court held that the burden is on a defendant in a products liability action to plead and prove as an affirmative defense that an injured party’s “highly reckless conduct” was the sole or superseding cause of the injuries.
As an article in The Legal Intelligencer explained, the case matters in situations beyond “highly reckless” plaintiffs because it was yet another example of that Court relying on the Second, rather than the Third, Restatement. It’s thus another confirmation of a point I made on this blog back in July while discussing the split in Pennsylvania strict liability law: “for decades the Pennsylvania Supreme Court has ruled that the Restatement (Second) of Torts applies. It has never held otherwise.”
Yet, although the Pennsylvania Supreme Court has never adopted the Third Restatement (and has turned down several opportunities to do so), the Third Circuit has oddly predicted that the Pennsylvania Supreme Court would do so. We’re thus stuck with the federal appellate court with jurisdiction over Pennsylvania commanding federal trial courts in Pennsylvania to apply a version of law that isn’t actually being applied in Pennsylvania.
All of that’s covered in my post from July, which was prompted by a Middle District of Pennsylvania opinion in Sikkelee v. Precision Airmotive Corp, a products liability case involving an airplane crash, which held that the Second Restatement still applied: in short, after the Third Circuit held in Covell that the Third Restatement was the law of Pennsylvania, the Pennsylvania Supreme Court again applied the Second Restatement (in Beard v. Johnson & Johnson, Inc., 41 A.3d 823 (Pa. 2012)). Sikkelee, 2012 U.S. Dist. LEXIS 91497 (M.D. Pa. 2012).
Then the already-strange situation became downright weird.
