I’m a trial lawyer for injured people and businesses at The Beasley Firm, founded in 1958. The Firm’s legacy speaks for itself; the law school at Temple University was re-named the Beasley School of Law in honor of the Firm’s founder, James E. Beasley. We’re listed in [...]
For years, I’ve written about the prevailing myths about medical malpractice law, from the falsehoods about defensive medicine to the extraordinary economic damage caused by malpractice itself. Contrary to what the insurance companies and hospital lobbying groups keep saying, “defensive medicine” is simply a myth (if a given test didn’t make a patient substantially safer, doctors wouldn’t gain anything by doing it). The damage caused by malpractice — even when measured in purely economic terms, ignoring the non-economic harms and losses — dwarfs the cost of the malpractice legal system, including all the lawyers and all the settlements and verdicts.
Recently, the new statistics for medical malpractice filings and jury trials in 2012 were released, and those numbers revealed a couple of important points.
First, the odds at trial are heavily stacked against patients. In 2012, 133 malpractice cases went to a jury trial, and 79.7 percent of them resulted in defense verdicts. I suppose there could be valid reasons why 4 out of every 5 jury verdicts go in favor of the doctor or hospital — maybe the strongest cases are all being settled before trial, leaving only the weakest cases behind — but it’s hard to say that with a straight face when those figures mean that malpractice defendants have better odds winning in a courtroom than the odds a casino has winning its own games.
It’s hard to deny that plaintiffs are losing trials left and right thanks to years of relentless tort reform propaganda designed to mislead jurors about the nature of malpractice and its effects. It sure seems like some counties have particular problems; consider this paragraph from a recent Legal Intelligencer article: Continue reading
About two weeks ago, a deposition Paula Deen gave in the midst of an employment discrimination lawsuit became public. To say she burned her roux would be an understatement. I’ll leave to others the race and media issues: there’s plenty for us to explore as civil litigators, and much to learn from a disastrous celebrity deposition going public.
Criticism of Deen’s lawyers has already begun. Jack Chin at PrawfsBlawg concludes “Paula Deen’s participation in a deposition where everyone knew that she would say the things that she said reflects such catastrophically bad judgment that it is almost inexplicable,” suggesting Deen’s lawyers should have urged her to settle in advance of the deposition.
Surely all lawyers, plaintiffs’ side and defendants’ side, should keep their clients apprised on the risks of proceeding with litigation and the benefits of settlement, and I sure hope Deen’s lawyers advised her of the risks. That said, as a plaintiffs’ lawyer I can tell you that few plaintiffs’ lawyers will settle significant cases in advance of the defendant’s deposition for anything less than their highest demand. It’s possible Deen offered the plaintiff a fair and reasonable settlement, but the plaintiff held out for the whole stick of butter, not a dollop less. Continue reading
Back in January 2012, I posted a short item titled, Supreme Court Sets The Tone For 2012 Term: Might Makes Right, in which I recounted how the Supreme Court had begun the 2011-2012 term with two opinions that were great if you own a prison management company or fake credit repair company, but not so great if you were injured by a private prison’s malfeasance or defrauded by a consumer credit company.
The rest of that term went as expected, with opinions knocking our various discrimination plaintiffs (Hosanna-Tabor Church v. EEOC), mesothelioma victims (Kurns v. Railroad Friction Products) and workers wrongly denied overtime (Christopher v. SmithKline Beecham Corp.). There were certainly some blockbuster cases that term — like the surprise Affordable Care Act decision — but nothing earth-shattering relating to civil justice.
Now we’ve reached the end of the 2012-2013 term, at least as it comes to cases affecting civil litigation brought by or against consumers and patients — you know, the people — and it’s time to recount the worst cases, the ones that contorted all logic and sense to deny people they day in court. As The Atlantic reported, June 24, 2013 in particular was “good for corporations,” with the Vance, Barlett, and Nasser opinions all at once, each of which we’ll cover. Continue reading
Being a plaintiff’s lawyer these days requires more than a little bit of stoicism. The federal appellate courts rarely issue rules that expand the rights of people injured by corporate greed and recklessness. Usually, the question is how far the courts are going to go to restrict their rights. There’s no need for me to repeat all of those details here; Prof. Arthur Miller’s article on the deformation of federal civil procedure details them at length, and you can read my thoughts on his article at TortsProf. As I argued,
These decisions reflect, at bottom, a policy choice made by our courts, particularly the Supreme Court, to give preferential treatment to defendants in complicated disputes (and defendants who have well-concealed their conduct), by making factual determinations — e.g., that an allegation is “implausible” or that testimony by a qualified expert is nonetheless “unreliable” — that render it impossible for the plaintiff to satisfy their burden of proof.
There are plenty of pending cases that stand to make the situation even worse, like the upcoming Bartlett decision before the Supreme Court.
Frankly, none of this should be a federal matter; negligence and product liability law is generally a matter of state law, to be decided in state courts, unless Congress has specifically said otherwise. Yet, given the contortions courts go through to drag state-law injury lawsuits into federal courts, the federal court system is the most important battleground these days for injured consumers and patients.
Two weeks ago, the federal Judicial Conference’s Committee on Practice and Procedure approved a proposal that would amend the Rules of Civil Procedure ostensibly to streamline the discovery phase in certain cases, but which would, in practice, reward companies that conceal evidence or obstruct the discovery process.* Continue reading
Philly is still reeling from the horrific Center City building collapse last week. Every conversation I’ve had included both shock over the poor oversight of high-risk work like demolition and the conclusion that, surely, the City will be sued and will pay something towards the victims. Most everyone, including other lawyers who don’t do catastrophic injury work, are shocked to hear that it is unlikely that the City will be liable.
The primary cause of disaster is obvious: the work crew performed appallingly amateurish work. Taking down a building literally joined to other buildings isn’t rocket science, but it still requires structural engineering work. First, per OSHA, “an engineering survey shall be made, by a competent person, of the structure to determine the condition of the framing, floors, and walls, and possibility of unplanned collapse of any portion of the structure,” and then steps need to be taken to avoid such “unplanned collapses,” such as by braces, or shoring, or helical piers, or all three, and then, in all likelihood, the structure needs to be taken down manually.
What you don’t do is what property owner Richard C. Basciano apparently did: pay some bankrupt company $10,000 to rip the thing down with sledgehammers and an excavator, and then get it “expedited” by an architect who never bothers to review the demolition plan. The general rule is that “a landowner who engages an independent contractor is not responsible for the acts or omissions of such independent contractor or his employees,” Beil v. Telesis Const., Inc., 11 A.3d 456 (Pa. 2011), which would seem to absolve Basciano, but that rule is subject to a number of exceptions, like the “dangerous condition,” “retained control,” and “peculiar risk” exceptions. For a discussion of all three, see Farabaugh v. Pennsylvania Turnpike Com’n, 911 A.2d 1264 (Pa. 2006). It is in general hard to pin liability on a property owner, but this situation looks nothing like your typical by-the-book demolition. Continue reading
Let’s take a refresher course on 1L Civil Procedure. The federal courts have limited jurisdiction; they don’t exist to hear every case, they exist to hear cases that arise under federal law. Additionally, the federal courts have “diversity jurisdiction,” a narrow addition created “to provide a federal forum for important disputes where state courts might favor, or be perceived as favoring, home-state litigants.” Exxon Mobil Corp. v. Allapattah Services, Inc., 545 US 546, 553–554 (2005). Diversity jurisdiction is disfavored — the federal courts aren’t supposed to be hearing garden-variety state-law tort and contract lawsuits — and since the founding of the country federal courts have been instructed to avoid diversity jurisdiction unless there’s really an obvious risk of home-state favoritism.
For example, “In a case with multiple plaintiffs and multiple defendants, the presence in the action of a single plaintiff from the same State as a single defendant deprives the district court of original diversity jurisdiction over the entire action.” Id., citing Strawbridge v. Curtiss, 3 Cranch 267 (1806). The Founders didn’t waste time clogging the federal courts with state-law tort cases, and would deny diversity jurisdiction to corporate defendants if even a single shareholder was in the same state as the plaintiff. See Bank of United States v. Deveaux, 5 Cranch 91–92 (1809)(“In conformity with the spirit of the constitution, the federal courts have always inquired after the real parties. Although the nominal parties are really persons competent to sue in those courts, yet they will inquire into the character of the real litigants, and if they find them unable to sue there, they will dismiss the suit. They will allow no fiction to give jurisdiction to the court where the substance is wanting.”) Applying the same rule today would preclude large publicly-owned corporations from forum shopping for federal court, and rightly so: does anyone really believe that, e.g., Wal-Mart needs the protection of the federal courts because it can’t get a fair trial outside of Arkansas?
In Glenda Johnson v. SmithKline Beecham Corp, decided last Friday by the Third Circuit Court of Appeals, a woman from Louisiana and a man from Pennsylvania born with birth defects caused by their mothers‘ use of thalidomide (more about thalidomide here) during pregnancy filed a state-law negligence and strict liability suit in Pennsylvania state court against several corporations, including GlaxoSmithKline LLC. The defendants removed the case to federal court.
As was undisputed, GlaxoSmithKline LLC is “a large pharmaceutical company that is responsible for operating the U.S. division of GlaxoSmithKline PLC, the British entity that is the ‘global head’ of the GlaxoSmithKline group of companies.” As the Court continued, “[GlaxoSmithKline LLC’s] headquarters is still in Philadelphia, Pennsylvania, where it occupies 650,000 square feet of office space and employs 1,800 people. Its management is substantively intact. .. [GlaxoSmithKline LLC’s] managers operate from … three [offices] in Philadelphia and a fourth in North Carolina.”
It’s an easy case, no? It’s a state-law tort lawsuit filed in Pennsylvania. One of the plaintiffs is from Pennsylvania. One of the defendants plainly has its “nerve center” in Pennsylvania, and so, under the “principal place of business” test established by the Supreme Court’s 2010 Hertz v. Friend decision, “the majority of [GlaxoSmithKline LLC’s] executive and administrative functions are performed” in Pennsylvania, and thus GlaxoSmithKline LLC is plainly a citizen of Pennsylvania.
The case was thus remanded back to state court, right? Continue reading
As was widely reported yesterday (e.g., USA Today, Bloomberg, LA Times), the National Highway Traffic Safety Administration (NHTSA) sent Chrysler a letter earlier this week asking it to recall the 1993-2004 Jeep Grand Cherokee and the 2002-2007 Jeep Liberty because they “performed poorly when compared to all but one of the 1993-2007 peer vehicles, particularly in terms of fatalities, fires without fatalities, and fuel leaks in rear end impacts and crashes.” Specifically, the NHTSA’s Office of Defects Investigation said:
In our tentative view, there is a performance defect and a design defect.
The performance defect is that the fuel tanks installed on these vehicles are subject to failure when the vehicles are struck from the rear. Such failure can result in fuel leakage, which in the presence of external ignition sources, can result in fire.
The design defect is the placement of the fuel tanks in the position behind the axle and how they were positioned, including their height above the roadway.
(Spaces added for clarity.) The NHTSA notes that, because of the defects, passengers “have burned to death in rear impact crashes, there have been fires (without fatalities) in these vehicles from rear impact crashes that have, or could have, led to deaths and injuries.” Compared to similar SUVs, the Grand Cherokee and the Liberty had roughly twice as many fatalities per million registered vehicle years (MRVY), a standard measure for vehicle safety over time. When it came to non-fatal fires, the Grand Cherokee was almost ten times as likely to be involved in a fire than similar vehicles, and the Liberty was nearly sixty times as likely.
In the face of that evidence, Chrysler said “no, we won’t recall it.” They put out their own paper claiming “NHTSA used an incomplete and unrepresentative group of comparison vehicles” and arguing that the fatal crashes weren’t representative because they all involved unusually high speed crashes. They also complained that the NHTSA hadn’t recalled other vehicles with higher MRVY rates of fatal rear-impact crashes with fire.
There’s a lot to learn from this battle. Continue reading
The incomparable ability of estate litigation to drag on is literally a joke, a joke so old and so well-known that more than 150 years ago Charles Dickens opened the novel Bleak House with reference to the fictional Jarndyce and Jarndyce estate proceeding that had been going on for generations.
Sylvan Lawrence was one of the largest owners of real estate in downtown Manhattan when he died in December 1981. Last week, a mere 31 years, 5 months, and 2 weeks later, an appellate court in New York decided the fee dispute between his estate and Graubard Miller, the firm his wife (who died in 2008) hired in 1983 to represent the estate in litigation against one of his partners (who died in 2003). New York Law Journal article here; New York Appellate Division opinion here.
By the end of 2004, Lawrence’s widow, Alice Lawrence, had paid approximately $22 million in legal fees on an hourly fee basis for the estate litigation. Though by that point there was a $60 million offer to settle the case, and her attorneys had internally valued the case at $47 million, Lawrence thought she deserved more, but she was tired of those bills and the uncertainty. Lawrence thus asked the firm to represent her on a contingency fee agreement (40%) and they agreed.
Five months later, in May 2005, after the firm had put another 3,795 hours into the case, the case settled for $111 million.
Lawrence refused to pay the 40%. I wrote about the case before, back in 2007, noting “Ms. Lawrence obviously had the funds available to hire a large corporate firm on an hourly (or flat fee) basis, and to pay all costs of the litigation herself upfront. In so doing, she would have borne all the risk of spending enormous sums of money without a guaranteed return. Instead, she contracted with a firm to bear all of that risk; within five months, it had achieved a result with which she was content.” Continue reading
A few months ago I was talking with a retired lawyer with a mass tort claim that fit squarely within our firm’s criteria. Given the details he provided, there really wasn’t a lot to do pre-suit, my next steps would be to get the medical records to confirm what happened, file the complaint, and then get to work.
Being a lawyer, he unsurprisingly wanted to know the whole process “from start to finish,” so we spent a while on the phone talking about short form complaints, plaintiff’s fact sheets, the plaintiff’s steering committee, the bellwether trials, and so on. The machinery of mass torts litigation isn’t an easy thing to explain; everybody knows (or thinks they know) what a class action is, but there aren’t actually any “class actions” for drug injuries, there’s just federal multidistrict litigation (MDL) and state consolidated litigation, both of which are strange hybrids between class actions and individual suits. When we finished up and I told him that we would get to work on his case, he said “and I’ll do my part by re-reading John Grisham’s The Litigators,” and we shared a laugh.
It seems like most of the lawyers I know disdain Grisham’s novels the same way doctors disdain ER and Grey’s Anatomy, and, quite frankly I had never read one nor had an interest in reading one. Like many lawyers, I find legal fiction — whether a novel, a TV show, or movie — painful. It’s either banal or unbelievable, and even the slightest misstep in the details ruins the suspension of disbelief. Most of it looks like this to me.
I hadn’t heard of The Litigators, but upon reading the blurb, I realized I was probably obligated to read it:
The partners at Finley & Figg—all two of them—often refer to themselves as “a boutique law firm.” Boutique, as in chic, selective, and prosperous. They are, of course, none of these things. What they are is a two-bit operation always in search of their big break, ambulance chasers who’ve been in the trenches much too long making way too little. …
[A] huge plaintiffs’ firm in Florida is putting together a class action suit against [Krayoxx, a cholesterol drug potentially linked to heart attacks]. All Finley & Figg has to do is find a handful of people who have had heart attacks while taking Krayoxx, convince them to become clients, join the class action, and ride along to fame and fortune. With any luck, they won’t even have to enter a courtroom!
It almost seems too good to be true. And it is.
I’ve written before about ambulance chasing lawyers, and how mass torts cases aren’t as easy as some lawyers claim, so onto the Kindle The Litigators went. I prepared myself for the worst, not least because of the blurb’s erroneous reference to “class actions” instead of “multidistrict” or “consolidated” litigation.
Surprisingly, I liked it, for the same reason I thought Boston Legal was the best of the TV lawyer dramas: Grisham doesn’t try for pure realism and fail, instead he satirizes mass torts (and injury litigation as a whole) by taking real themes and then exaggerating them. There are various inaccuracies and far-fetched plot devices, but they can be forgiven because the book rings true as it lampoons the field. Continue reading
Rolling Stone’s Matt Taibbi described Goldman Sachs as “a great vampire squid wrapped around the face of humanity,” a phrase that, while defamatory of a uniquely adapted cephalopod minding its own business 3,000 feet under the sea, rang true. Yesterday, the intermediate appellate court for New York state agreed: Goldman Sachs is so obviously dishonest that you cannot sue them for fraud unless you get them to specifically agree that they aren’t lying to you.
First, the facts. In essence, Goldman Sachs brought in a hedge fund (Paulson & Co.) to put together a group of horrible investments (called “Abacus”) that they expected to fail — and even bet against — and then set about finding rubes to invest in it, thereby helping Goldman and Paulson make a tidy profit off the investor’s losses. One other banker who passed on the deal described it as “like a bettor asking a football owner to bench a star quarterback to improve the odds of his wager against the team.” (He’s quoted in the dissent.)
ACA Financial Guaranty Corporation was one of the rubes Goldman Sachs found. As Reuters reported, ACA’s lawsuit against Goldman Sachs “alleged that Goldman misrepresented the role of the hedge fund Paulson & Co, which supposedly selected underlying mortgage-backed securities that doomed the [collateralized debt obligation] to fail, thereby assuring Paulson of big profits on its undisclosed Abacus short.” The scam was so blatant the Securities and Exchange Commission brought its own case against Goldman Sachs, which settled for $550 million.
Sounds simple enough; as James Surowiecki wrote about the scandal three years ago, echoing the thoughts of many financial journalists, there was ample reason to believe that ACA was both a “dupe” hoodwinked by Goldman and a “dope” that failed to perform adequate due diligence on a complicated investment. Being a “dope” is a problem, but one would assume that a duped dope would be allowed to present evidence to a jury arguing that the fraud was a bigger problem than the lack of due diligence.
Except that the New York courts won’t let ACA get to a jury. Continue reading