Lawsuit Reform Watch

New Jersey Supreme Court says stable owners aren’t liable for horseplay

We’ve already told you that in New Jersey, it’s en vogue to doctors when mother nature is unavailable for questioning. 

In an encouraging decision reached this week, however, the New Jersey Supreme Court said that you can’t sue a stable owner when fauna is at fault.

New Jersey’s equestrian industry is one of the state’s key economic drivers, generating over $1 billion annually and providing jobs for 13,000 people.  As such, the Legislature sought to protect horseback-riding stables from being held civilly liable for most wayward actions of horses.  The 1996 “Equine Activities Liability Act” gives stable owners “as near an absolute immunity as possible,” according to Michael Booth, writing for the New Jersey Law Journal.   Exceptions would include matching an inexperienced rider with an inappropriate horse, knowingly providing broken tackle, or injuries caused by deteriorating grounds.  And these exceptions, the Supreme Court held in Hubner v. Spring Valley Equestrian Center, are to be exactly that – exceptions. 

Writing for the Court, said Justice Helen Hoens reminds us that horseback riding itself can be  an unpredictable, and sometimes dangerous, activity.  “The Equine Act establishes a line between the inherent risks assumed by participants and conditions within a facility’s control,” she said.  “The demonstrated legislative intent is that the sections defining assumed risks would be read broadly in favor of operators, while their obligations would be read narrowly… the Legislature considered the unpredictable nature of horses and the dangers posed by the terrain over which they are ridden.” 

Hubner was seated on a horse in the fall of 2005 when the horse inexplicably backed up and tripped over cavaletti.  Her attorney argued that the cavaletti was negligently arranged, which caused her to break several bones after the horse tripped and ejected her.   The justices found the cavaletti (poles that are used to simulate obstacles a horse and rider typically encounter on a trail) to be in good working order.   

So, one can’t sue mother nature.  And the Supreme Court acknowledged that the equestrian industry and New Jersey’s economy shouldn’t have to pick up the tab, either. 

Worth reading: N.J. inmates submit hundreds of lawsuits each year, despite little chance of success (Joe Ryan for the Star-Ledger, 7/25/10)

In Sunday’s Star-Ledger, Joe Ryan reports on the number of lawsuits filed by inmates in New Jersey’s prisons.  According to Ryan’s sources, the number of lawsuits filed by New Jersey inmates has been climbing steadily, up 45 percent since 2006, despite a national decline during the same time period. Last year prisoners filed more than 1,100.  Collectively, they account for more than 1/7 of all federal lawsuits filed in New Jersey.  Some raise serious legal issues regarding health and safety, but many others are derided as “frivolous.”

In a 6 – 1 Decision, N.J. Supreme Court Guts Affidavit of Merit Statute

Plaintiffs’ attorneys are able to use experts from “outside the field” to testify against doctors in malpractice suits. 

 

TRENTON, N.J. – The New Jersey Supreme Court ruled yesterday that plaintiffs don’t need to explain why they can’t find an appropriately qualified expert to testify in malpractice cases before seeking a good-faith waiver under the Affidavit of Merit Statute, only that they gave it a “college try.” 

 

In the case of Ryan v. Renny, the plaintiff’s attorney filed suit against a board-certified gastroenterologist, saying that the doctor deviated from accepted standards of care when he perforated a bowel during a colonoscopy.  The justices ruled in a 6 – 1 decision that even though the plaintiff’s attorney tried and failed to secure affidavits of merit from at least three different doctors certified in the same field, they would accept an affidavit of merit from a surgeon who was not board certified and had himself not performed the procedure  in many years.

 

"For many years the Affidavit of Merit Statute served its purpose - weeding out meritless lawsuits.  The Court's decision guts the Affidavit of Merit and opens the door to litigation abuse against New Jersey’s doctors,” said Marcus Rayner, executive director of the New Jersey Lawsuit Reform Alliance. 

 

“Loosening the Affidavit of Merit Statute to the point of irrelevance is one more disincentive for doctors to practice in New Jersey, said Rayner, citing a study by the Council of Teaching Hospitals, which projects that New Jersey will be short an estimated 3,000 doctors by the end of the decade.

 

Justice Roberto Rivera-Soto dissented, saying that the defendant has a legislative right “to be free of malpractice claims of questionable merit.” 

 

A copy of the Court’s decision can be found on the web at

http://www.judiciary.state.nj.us/opinions/supreme/A-50-09.pdf

 

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Is a Contingency Fee tax break on the way?

The American Association for Justice (a.k.a, the trial bar) recently told its members to expect a tax break in upcoming rules & regulations from the U.S. Department of Treasury.  According to a report from John O’Brien of Legal Newsline, the AAJ’s director of Federal Relations, John Bowman, said that he is expecting an administrative rule from the Treasury, giving its members a tax break on contingency fee lawsuits. 

Senator Arlen Specter had introduced a bill very similar to the anticipated rule last year, but it failed to gain traction.  It would have allowed attorneys to deduct fees and expenses upfront for filing contingency fee lawsuits.  An analysis by the Washington Legal Foundation estimates that such a deduction could amount to 40 percent of litigation costs in some cases.   

NJ Supreme Court will hear case about drunken motorcyclist who’s suing the restaurant for his injuries

You may remember reading about Frederick Voss, the Tiffany’s Restaurant patron who decided to ride his motorcycle home in November 2006 with a blood alcohol level twice the legal limit.  He crashed it into a car and injured only himself and pleaded guilty to DWI, but decided to sue the Toms River establishment for the injuries he caused himself under the dram shop act.  The act was established in 1987 to create a civil remedy allowing the victims of drunk drivers to sue the licensed alcoholic beverage server for their injuries.  It isn’t typically the drunk driver himself who sues under the act. 

The New Jersey Supreme Court has agreed to hear the case of Voss v. Tranquilino, which will decide whether drunken drivers injured in accidents they cause can sue the liquor establishments that served them.   

According to a report in the New Jersey Law Journal, Tiffany’s asked the court to throw the case out for failure to state a claim, because insurance law states that a person convicted of drunken driving “shall have no cause of action for his or her injuries,” but the motion was denied in Ocean County Superior Court.  The Appellate Division cited a lack of Legislative intent to immunize tavern owners as part of their decision’s rationale.  Voss says that he isn’t responsible for his injuries, because apparently the restaurant should have been responsible for his alcoholic beverage consumption. 

The New Jersey Supreme Court receives high marks for agreeing to hear this case.  Hopefully, they will find that Voss is responsible for his self-inflicted injuries.  We’ll be following this case for you. 

“It’s not always someone else’s fault…”

Ana Veciana-Suarez of the Miami Herald writes that personal clumsiness isn’t grounds for a lawsuit.  At least, it shouldn’t be. 

This time, Starbucks is being sued again.  A Brooklyn mom is suing the coffee chain because the tea she ordered was hot.  Consequently, she dropped it on her 5-month-old son. 

The issue this time isn’t that the tea was too hot – it’s that Starbucks didn’t put it in an insulating sleeve and on a tray.  She says that the incident would have never occurred if it were.  Her lawyer maintains that the cup – as opposed to the beverage – was “improperly served,” which was the reason she dropped it on her baby. 

Now, as any Starbucks loyalist knows, the company doesn’t put sleeves around hot beverages for customers as a nod to its green image.  It merely places them within reach, so the customer has the option of putting it on herself.  And as far as not having a tray… why would a customer expect a tray for one beverage by default?  The customer was obviously able to see the beverage herself and that it was devoid of both dressings before the inevitable incident occurred.  Why not ask for either? 

The other Emergency Room issue

A dwindling pool of emergency room doctors and medical personnel has helped increase waiting room times in hospitals across the Garden State.  And as more doctors decide to practice outside of New Jersey, the average wait time probably won’t improve anytime soon.  It affects all of us: whether it’s a broken bone, a fainting spell, lack of insurance, or accompanying a friend or family member, most of us will spend time in the ER.  If your emergency can wait for any length of time, usually it does.  Understandable when there are patients who are in more emergent situations. 

So when I read Jennifer Golson’s story in the Star-Ledger about a female Muslim patient languishing in the emergency room for five hours, I couldn’t help but wonder if there is a latent issue spanning all races and creeds.  The patient, Rona Mohammedi, is suing Somerset Medical Center for religious discrimination and violating New Jersey’s version of the Patient’s Bill of Rights. 

Sporting a hijab, Ms. Mohammedi went to the emergency room last February with severe chest pain.  An electrocardiogram was ordered, and in a nod to her religious convictions, she asked for a female to conduct the test. 

The important question is why Ms. Mohammedi was waiting.  It was likely either because (A) the hospital staff was deliberately hostile toward her request, or (B) there wasn’t a female available to perform the test. Was she being ignored, or did she merely become tired of waiting?

It ended when her husband requested a transfer.  A lawyer for the hospital said that Ms. Mohammedi was informed of her options and left against medical advice.  Michael F. Schaff, chair of the health care department at Wilentz, Goldman, & Spitzer said that the Patient’s Bill of Rights makes no mention of lawsuits, and that “there is no obligation to require hospitals to have a physician on staff 24 hours a day, seven days a week based on their sex, religion, or nationality.”  That’s particularly crucial in New Jersey, since our shrinking pool of doctors makes it increasingly harder to find physicians, much less filter physicians based on sex, religion, or nationality. 

The New Jersey Hospital Association (NJHA) said that hospitals are required to make “reasonable accommodation” for patients with special requests, but how “reasonable accommodation” is defined can vary, said Kerry McKean Kelly, their spokesperson.  “Especially in a high intensity place like the ER, the question of what is reasonable can vary hour by hour based on factors like the number of patients in the ER, the severity of their conditions, staffing levels, and in this case, the gender and credentials of various staff members.  A hospital’s first responsibility is to stabilize their patients and then prioritize…” 

For a multitude of reasons, we all spend too much time in the ER.  Some contributors, like the doctor shortage, are underscored in New Jersey.  Other reasons – like a large number of uninsured residents per capita – are not unique to the Garden State. Additional preconditions placed upon our emergency rooms can turn a very long (but ordinary) ER visit into grounds for an attractive lawsuit if the patient is able to wait for their accommodations to be made but gets frustrated with how long it takes. 

Study: Insurance doesn’t protect small businesses from lawsuit abuse

Tort liability costs a lot, and it can be particularly expensive to small businesses. 

The U.S. Chamber of Commerce recently released the results of a startling study:  small businesses bore 81 percent of business tort liability costs in 2008, despite only taking in 22 percent of the revenue.  As a nation, small businesses (defined as having less than $10 million in annual revenue) spent $105.4 billion in tort liability costs in 2008.  And more than 1/3 of that was post-insurance, out-of-pocket expenses. 

When including small medical practices, the total amount of small businesses’ expenditures on tort liability is pushed to $133.4 billion for 2008. 

NERA Economic Consulting, which conducted the study, expects that tort liability costs will continue to increase.  They expect tort costs for small businesses, both medical and non-medical, to reach $152 billion annually by 2011.  I’m sure you can guess likely reasons: frivolous litigation and the possibility of excessive awards increase the pressure to settle; weak evidentiary rules; an overzealous trial bar.

Spending money on tort liability is not parallel to making products or consumers safer.  It’s unfortunate that the $105.4 billion in tort liability costs – particularly the $35.6 billion of which is spent out-of-pocket by businesses – is spent on legal fees instead of being reinvested toward product development and innovation.  That would be quite a sorely-needed private-sector stimulus into our economy.

Click here to read the entire report, entitled “Tort Liability Costs for Small Businesses.”

Around the web, 7.13.10

Small Businesses Pay 33% of Rising Tort Costs Out-of-Pocket

Insurance Journal

July 9, 2010

A new study from the U.S. Chamber of Commerce shows that small businesses shoulder a sizable burden of the nation's tort liability costs, having paid $105.4 billion in 2008— a third of it out of their own pockets.

According to the report, small businesses bore 81 percent of business tort liability costs but took in only 22 percent of revenue.

The study, Tort Liability Costs for Small Businesses, also found that small businesses ($10 million or less in annual revenue) paid, collectively, $35.6 billion of these costs out-of-pocket rather than through insurance.

The study was conducted for the Chamber's Institute for Legal Reform (ILR) by NERA Economic Consulting.

Parasitic Tort Lawyers

By John Stossel  | The Creator.com

July 7, 2010

Tort lawyers lie. They say their product liability suits are good for us. But their lawsuits rarely make our lives better. They make lawyers and a few of their clients better off — but for the majority of us, they make life much worse.

Automated Debt-Collection Lawsuits Engulf Courts

By Andrew Martin | The New York Times

 July 12, 2010

As millions of Americans have fallen behind on paying their bills, debt collection law firms have been clogging courtrooms with lawsuits seeking repayment.

Few have been as prolific as Cohen & Slamowitz, a Woodbury, N.Y., firm that has specialized in debt collection for nearly two decades. The firm has been filing roughly 80,000 lawsuits a year.

With just 14 lawyers on staff, that works out to more than 5,700 cases per lawyer.

How is that possible?

The answer to that question is at the heart of a growing debate over the increasing use of the nation’s legal system to collect on bad debts.

Like many other firms, Cohen & Slamowitz relies on computer software to help prepare its cases. While many of the cases represent legitimate claims, critics say the lawsuits are too often based on inaccurate or incomplete information about the debtor or the amount owed.

Already, some state legislators and judges have tried to crack down on collection lawsuits, and on Monday, the Federal Trade Commission weighed in, saying the system for resolving disputes over consumer debts was broken and in need of “significant reforms.”

Washington Supreme Court nixes waiting period for malpractice lawsuits

In 2006, Washington State enacted legislation which required plaintiffs to give 90 days’ notice to doctors before filing malpractice claims. 

It was recently struck down by the state Supreme Court, which said that it was the Judiciary’s responsibility – not the Legislature’s – to set court procedures. 

The 90 day waiting period was meant to encourage settlements in cases that might otherwise head straight to court, writes Curt Woodward for the Seattle Pi.  It was part of a package of medical malpractice reform legislation intended to address rising concerns over malpractice litigation.   

In late 2009, the Court also struck down a law requiring injured patients to get a certificate of merit before suing their doctor, saying it was an undue burden. 

McDonald’s can’t seem to shed its magnetism for outrageous lawsuits

It isn’t hot coffee this time, or a customers’ shock upon learning that eating fast food can contribute to weight gain.  At issue is the restaurant chain’s marketing of “Happy Meals” to children. 

Most Americans know that McDonald’s routinely includes a small toy in its Happy Meals.  From what I remember, they were usually coordinated to mirror whatever Disney flick or pop culture interest was significant at the time. 

A citizen watchdog group called The Center for Science in the Public Interest announced that intends to sue the McDonald’s corporation – over the toy.  The compelling plastic figurines are so irresistible, the group’s spokesperson says, that the five and six year olds to whom they are marketed are duped into making poor health choices. 

It’s not the contents of the meal itself, says the group.  “It’s the technique you’re using to get kids to buy the meal.”

Is the gravitational marketing pull of Happy Meals to children so strong that it completely overtakes parents’ choices?  You know, the adults (theoretically non-seducible by Happy Meal toys), who actually hand over the money?

The lawsuit contends that McDonald’s marketing practices are illegal under the consumer protection laws in Massachusetts, Washington, D.C., California, and – surprise – New Jersey.