Lawsuit Reform Watch

Bergen County pharmacy settlement in the running for U.S. Chamber of Commerce’s Ridiculous Lawsuit

A $4.1 million settlement awarded to a north Jersey man who overdosed on stolen drugs as a teen is gaining national infamy.  The U.S. Chamber of Commerce nominated it for this month’s Most Ridiculous Lawsuit http://www.facesoflawsuitabuse.org/. 

The plaintiff, who said the neighborhood pharmacy should have done a better job of guarding the drugs his friend stole, sued several partygoers, the host, and the host’s mother in addition to the pharmacy. 

The pharmacy will pay the majority of the settlement.

As of today, the Bergen County settlement is killing the competition by a 3 – 1 margin.  You can cast your vote on the Institute of Legal Reform’s website.     

"In this case, the pharmacy was the victim - not the plaintiff, who made a decision to ingest stolen drugs.” said Marcus Rayner, NJLRA’s executive director.   “Yet it is the pharmacy that is being denied justice by today's legal system and the drug user who is benefiting from it.”

“This case underscores just how much our tort system has become out-of-step with common sense and fairness.  Instead of investing in Ridgewood's local economy, Harding Pharmacy will be sending $1.9 million to the pocket of a man who made poor and illegal choices,” he said. 

Doesn’t this just make your heart, um, not swell with pride?

A-265 Receives Broad Support in the Assembly Judiciary Committee

What do the New Jersey Lawsuit Reform Alliance, the New Jersey Chamber of Commerce, NJBIA, New Jersey Retail Merchants Association, National Federation of Independent Business-New Jersey, Chamber of Commerce of Southern New Jersey, Chemistry Council of New Jersey, New Jersey Food Council, and the Healthcare Institute of New Jersey have in common?

All were present to support A-265, sponsored by Assemblyman David Russo, which would create specialized business courts in New Jersey.  Chairman Peter Barnes noted the wide range of support. 

Legal issues involving businesses are complex, laden with terminology and evidence which is unfamiliar to the common court.  Highly technical matters are identified and addressed at great cost to both businesses and taxpayers alike.  The advantage of a business court is that it would permit business-related judicial matters to be heard by courts with an established background and knowledge of such litigation.  A majority of northeastern states already have a business court in place, and it is actively under consideration by several others. 

Establishing a business court doesn’t just improve the efficiency of our court system – it sends a strong message to businesses that New Jersey is a solid place in which to expand and hire workers. 

A-265 was posted today for discussion only.  NJLRA looks forward to the bill’s reintroduction and advancement in the 215^th legislative session, which begins next week.  You can download a copy of NJLRA's testimony in support of business courts here.  

Have you cast your vote for the craziest lawsuit of 2011 yet?

 

 

 

 

Faking a disability? Don’t post it on Facebook.

Unfortunately, it occurs all too often: a plaintiff overstates, inflates, or fabricates an injury altogether after an auto accident and seeks compensation. 

And then she posts photos of herself completing a 5k on Facebook. 

Defendants are beginning to fight back, asking courts for permission to introduce a plaintiff’s Facebook content if it appears to contradict statements made in court about the scope of their injuries. 

In a recent Pennsylvania case, Largent v. Reed, Jennifer Largent claimed that an automobile accident caused by the defendant, Jennifer Rosko, left her and her husband with “serious and permanent physical and mental injuries.”  Largent’s injuries were so extensive that she needed to walk with a cane, she told the Court.

All it took was a search of the plaintiff’s public profile to see Largent’s status updates about going to the gym and “enjoying life with her family.”  Judge Richard Walsh was satisfied that the defendants met relevancy standard needed to probe the rest of her page.  Noting Facebook’s motto – “Facebook helps you connect and share with the people in your life” – Walsh wrote:

[No court has ever] recognized a ‘general privacy privilege’ for Facebook information, and neither will we… only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”

Ben Present, writing for the Legal Intelligencer, notes that this is the third Pennsylvania civil court to decide that a party’s Facebook page falls within the scope of discovery if posted information appears to contradict statements in discovery or testimony.  Let’s hope that plaintiffs and attorneys will begin to think twice before crowding our courts with bogus claims- that’s something honest Pennsylvanians can ‘like.’

Teen who made headlines for killing family and suing their estate gets another 15 minutes of fame

Dateline NBC will be airing an interview this evening with Justine Winters, the Montana teenager who made headlines last year for killing a pregnant mom and her 13-year-old son during a failed suicide attempt.  What Dateline does not mention in its teaser (as of now, at least) is that Winters later filed suit against the deceased mother’s estate for, among other things “lack of capacity to enjoy [her] life.”

Winters was driving at a speed of 86 miles per hour, not wearing a seatbelt, and texting her ex-boyfriend of her plans to crash her vehicle when she struck pregnant Erin Thompson and her son Caden. 

“Crossing the Line” airs at 9 p.m. EST. 

The iTunes Class Action Lawsuit You’ll Never Hear About

Unless you read about it here, of course. 

If you purchased a $0.99 iTunes giftcard, you could make a 30% return on your investment.

Apparently iTunes raised the price of most of their songs from $0.99 to $1.29 in April 2009. In legalese, this means that if you purchased a $0.99 giftcard before May 2010 (and no, I don’t understand the point of a $0.99 giftcard, either), you may be entitled to a large cash credit of $3.25.

Attorneys William M. Audet, Jonas P. Mann, Audet & Partners, LLP were kind enough to file this class action lawsuit on your behalf.  They are seeking a mere $2.1 million for their trouble.  The named plaintiffs in the suit, Johnson v. Apple Inc., will receive a $2,500 return on their $0.99 investment. 

While Apple maintains that it did nothing wrong, it seems that they’ve preferred to roll over and play dead rather than to risk an even greater financial loss: they are not contesting the $2,500 settlement for each named plaintiff, nor are they contesting the aforementioned attorneys’ fees.  The class’s own attorneys state:

Apple denies all allegations in the Lawsuit and in the Owens Action, and has asserted many defenses. Apple is entering into this settlement to avoid burdensome and costly litigation. The settlement is not an admission of wrongdoing or an indication that any law was violated.

And yes, if you were one of the folks who used a $0.99 iTunes giftcard during this period, they are representing you as well (unless you choose to opt out of the settlement – which you must do before December 29^th). 

Finally, no greediness permitted: the fine print clearly states that you are entitled to one $3.25 credit, no matter how many giftcards you redeemed.  Click here to enlarge and see for yourself:

 

U.S. Chamber: Tort Reform Would Create 35,000 – 94,000 Jobs in New Jersey

Want to see New Jersey's unemployment rate drop by up to 2.3%?

Tort reform would bring a welcome infusion of cash and jobs into New Jersey’s struggling economy, according to a report issued by the U.S. Chamber of Commerce’s Institute for Legal Reform. 

New Jersey could save as much as $1.7 billion if comprehensive tort reform is enacted, according to the study, which measured New Jersey’s tort activity index.  A decrease in the state’s index would also yield between 35,000 and 94,000 new jobs, nudging the state’s unemployment rate down from 9.2% to 8.35% - 6.9%.    Litigation costs would drop by as much as 21.5%. 

“The correlation between tort reform and economic growth is evident,” said Marcus Rayner, executive director of the New Jersey Lawsuit Reform Alliance.  “This study demonstrates that the economic growth New Jersey so desperately needs can be spurred with common-sense tort reform.  

“$1.7 billion reinvested in our economy will help put people back to work and help New Jersey reclaim its economic footing.  Civil justice reform is a way to capture the money we waste on lawyer’s fees and litigation costs – without raising taxes or cutting essential services.” 

A state’s tort index is comprised of the number of tort claims filed annually, the frequency of major verdict awards, and the concentration of attorneys practicing in the state. 

A link to the study can be found on our website and via the U.S. Chamber.

Waning public resources could restrict access to our states’ courts, ABA President warns

Statehouses across the country are grappling with budget deficits and declining revenue.  We’ve all heard of successful programs meeting their demise due to an absence of funding.  Crippling budgetary trade-offs being made to our educational system, law enforcement, and the like have become so commonplace that they barely raise eyebrows in disbelief. 

What we’ve heard less about is the economic downturn’s impact on a key cornerstone in our democracy: justice. 

Layoffs, furloughs, and unfilled judicial vacancies eventually leave their mark on our judicial system.  The American Bar Association’s Task Force on Preservation of the Justice System found that civil cases have been the hardest hit by budget cuts.  Typical civil cases include everything from child custody and divorce to employee compensation. 

In the past few months, we’ve had a patron pursue a lawsuit against restaurant for injuries he sustained while driving his motorcycle drunk all the way up to the State Supreme Court; a lifeguard sue for age discrimination just before he retired; a patient who fell asleep while polishing a gun sue his doctor; and a woman who filed suit against ABC, claiming to be “severely damaged” after the station read the wrong winning lottery numbers. 

These are the types of cases pushing back court dates for issues that matter.  These are the types of cases being vetted when resources thin and demand for the court’s services grow.  And yes, these all happened here in New Jersey. 

“All of us must have and protect our right and our freedom to use courtrooms when we need to…That courtroom must be open to protect families…to validate and protect contracts for business...” said newly elected ABA President Wm. T. Robinson III at a symposium in Kentucky. 

Spreading ever-thinning public funds around may be a new reality for the foreseeable future.  But compromising access to justice is one sacrifice Americans shouldn’t have to make. 

No matter what the trial lawyers tell you, filing a frivolous lawsuit isn’t a victimless crime. 

Reasons to "Rep Your ZIP"

Have you ever been asked “Can I have your ZIP code?” by a perky cashier?

It’s not something I have an issue with- after all, they’re just numbers that I happen to share with 25,000 other people. 

Kerry Feder, a Verona, NJ resident, doesn’t see it that way.  She was asked by a store employee for her ZIP code when making a purchase at Williams-Sonoma in Upper Montclair earlier this year.  Instead of simply declining, Feder decided to file suit under New Jersey’s Truth in Consumer Contract, Warranty, and Notice Act (TCCWNA).

Fortunately, Feder v. Williams-Sonoma Stores Inc. was thrown out by a federal judge in Newark earlier this week.  Judge William Walls found that Williams-Sonoma’s practice does not violate CCWNA because the “Can I have your ZIP code” request is not made under the provision of a written contract. 

Unfortunately, however, a Morris County judge reached the opposite conclusion just a few weeks ago in a case against Harmon Stores.  The New Jersey Law Journal reports that Superior Court Judge Stephan Hansbury rejected the notion that a ZIP code is “too broad an identifier to be the subject of a privacy violation.”  (The same attorneys, by the way, represented the plaintiffs in both TCCWNA suits). 

The reason why there is a sudden rush to try class action TCCWNA cases in New Jersey (even though this practice has been around for so long it’s rather routine) is likely due to a California Supreme Court ruling against Williams-Sonoma in February, which found that collecting ZIP codes violates their state’s consumer statutes.  A plethora of similar cases have since been filed across California, and it seems that New Jersey is poised to be the second state in which the trial attorneys want to test the waters. 

The courts’ conflicting rulings suggest that New Jersey might be in for more TCCWNA class action suits.  Trial attorneys may see the dollar signs at the end of the road, but remember who pays the bill: consumers, who pay stores’ legal overhead in the form of higher prices; job-seekers, whose opportunities part-time and seasonal employment may be extinguished; and taxpayers, who are forced to subsidize these cases as they make their way through the court system. 

So, you can stand up and be counted, and give your ZIP code if asked – (and if it means better advertising and coupons for me, I’m for it) – or you can decline.  The choice should be yours – not the trial bar’s to make for you. 

Must Read NYT Op-Ed: Ugly? You May Have a Case

“… why not offer legal protections to the ugly, as we do with racial, ethnic and religious minorities, women and handicapped individuals?”

Extending the Americans with Disabilities Act to protect the “ugly?”  Seriously?!

Most of us are taught that beauty is in the eye of the beholder, not the ADA attorney.

Nevertheless, Professor Daniel S. Hamermesh at the University of Texas, Austin, argues that even affirmative-action programs for the ugly should be in order.  Yes, he’s actually advocating to put ugliness-based lawsuits on the same platform of racial, ethnic, gender, and disability-based employment discrimination.

Oddly enough, he seems to acknowledge that money is the motivating – not supporting – factor in bringing potential lawsuits:

“There are other possible objections. ‘Ugliness’ is not a personal trait that many people choose to embrace; those whom we classify as protected might not be willing to admit that they are ugly.  But with the chance of obtaining extra pay and promotions amounting to $230,000 in lost lifetime earnings, there’s a large enough incentive to do so. Bringing anti-discrimination lawsuits is also costly, and few potential plaintiffs could afford to do so.  But many attorneys would be willing to organize classes of plaintiffs to overcome these costs, just as they do now in racial-discrimination and other lawsuits.”

Gee, there’s an idea. Let’s refrain from bathing and personal care and sue our way into cold hard cash.  Exactly what our business community (and kempt colleagues) need to thrive during an economic downturn. 

We’re officially encouraged by Governor Christie’s remarks at the Jersey Shore last week:

Christie on Perry: a laudable record on tort reform (Max Pizarro / Politicker NJ)

Tort reform was a key element in Texas’s economic recovery at a pace unheard of in most other states.

Beach Reading

If you’re a small business entrepreneur and manage to sneak some time away this summer (or just a concerned citizen wanting to learn more about how your local government works), you might want to pick up a copy of Assemblywoman Amy Handlin’s latest book, Government Grief: How to Help Your Small Business Survive Mindless Regulation, Political Corruption, and Red Tape. 

Handlin, who represents the 13^th Legislative District, offers practical advice for engaging with local government officials.  There are also extensive glossaries designed to make navigating the multitude of government bureaucracies easier, as well interesting commentary on what Handlin calls the “corruption tax.” 

Perhaps best of all, the book is straightforward, down-to-earth, and actually helpful; it’s not filled with the generalities and hyperboles we’ve come to associate with elected officials.  She stresses that the advice offered in her book (which is rooted in her extensive backgrounds in marketing and public service) is applicable to every state and local jurisdiction. 

You can check it out here.  Happy reading - hope you enjoy it as much as we did!

Strassel: The Senate’s Lawsuit Factory

In case you missed it, Kimberley A.  Strassel details trial lawyers’ attempts to use a controversial case to block mandatory arbitration clauses (The Senate’s Lawsuit Factory, The Wall Street Journal, 7/22/11).  Some how-to highlights:

1) Identify a law or regulation that prevents trial lawyers from cashing in.

2) Identify a "victim" of this law or regulation.

3) Get congressional allies to turn said victim into a cause célèbre.

4) Use ensuing moral outrage to get the law or regulation changed.

5) Buy a yacht.

ILR: Lawsuit Reform Has Helped Fuel Texas' Job Creation Machine

Dallas Federal Reserve President Richard Fisher discusses how important tort reform has been to Texas' incredible jobs recovery:

The Big Apple Needs Big Reform

A lot of tort reform –inspiring activity has been taking place across in New York these days. 

First, there is judge-directed negotiation, an approach to resolving medical malpractice cases without the years of traditional legal overhead.  As part of President Obama’s pledge to address skyrocketing medical malpractice litigation costs, New York City received a federal grant for a type of mediation between a trained judge and attorneys for each side.  Its intent is to get judges involved earlier and actively encourage settlements, which prompts quicker resolution and fewer years in an expensive limbo for the parties involved.  There are no appeals, and the settlements are often a shadow of what a plaintiff might receive in court.  A positive consequence is that lawyers may become more hesitant to pursue a case that is marginal.  A negative consequence, however, is that doctors may still feel pressured to settle, even when they haven’t been negligent. 

Next, the New York State Assembly passed A-694, a complex piece of legislation supported by trial lawyers.  It seeks to overturn the New York Court of Appeals’ decision in the case of Arons v. Jutkowitz. If enacted, opponents say, the cost of medical malpractice insurance will likely increase for New York’s physicians.   More information about the legislation can be found here. 

The last is sobering.  New York City doled out an astounding $521 million in personal injury and property damage lawsuits in 2010.  It’s sort of like a $57.88 lawsuit insurance policy for each of the city’s 9 million residents.  And this figure is seven percent lower than it was in 2009!

Tort reform and healthcare costs....

The cost of healthcare is a hot topic in New Jersey.  States that enacted non-economic malpractice caps saw a 3 – 4 percent decrease in healthcare costs over the last few years, according to the Agency for Healthcare Quality and Research. 

Why does tort reform reduce the cost of healthcare?  For starters, it lessens the needs for defensive medicine.  Unnecessary tests can be both costly and time-consuming, and the patient isn’t any healthier for it. 

With a looming physician shortage, perhaps it’s time for New Jersey to take a look at these cost-cutting measures.  A poll conducted by the American College of Emergency Physicians (ACEP) recently found that more than half of emergency room doctors cite their fear of being sued as the primary reason for ordering unnecessary tests in the ER.  Emergency room doctors may be particularly vulnerable to lawsuits, because patients are generally sicker and they often don’t have access to patients’ medical histories. 

Post-reform, Texas emergency rooms have undergone the second biggest improvement in wait times in the nation.  And that’s not it for the Lone Star State.  Texans -who faced a physician shortage not unlike the one New Jersey will likely face- have added at least one emergency room physician in 33 rural counties, 24 of which previously had none. 

That’s not just stopping the hemorrhaging: it’s a reversal.  One that New Jersey patients could benefit from, too – expanding access to care is a welcome consequence of enacting tort reform. 

The Next Public Health Crisis? Obese patients too high-risk

Obese women aren’t always treated kindly by society.  And now, some OB-GYNs in Florida say they simply can’t risk treating them – at all. 

"People don't realize the risk we're taking by taking care of these patients," said Dr. Albert Triana.  "There's more risk of something going wrong and more risk of getting sued."

The Sun-Sentinel polled 105 OB-GYNs in South Florida.  Fifteen of them said they refuse otherwise healthy new patients over 200 pounds. 

Doctors can decline patients for any reason.  But when fourteen percent of OB-GYNs won’t see obese patients because the financial risk is too high, we could be seeing the dawn of a disturbing public health trend. 

According to the Los Angeles Times, which also reported on the study, South Florida OB-GYNs have “long complained of high numbers of lawsuits after difficult births and high rates for medical malpractice insurance.”  Obese women who were pregnant were somewhat routinely referred to specialists, but turning down obese women who are not pregnant is new.  According to doctors interviewed, obese patients present an increased risk of complications – and are increasingly seen as potential lawsuit. 

We have enough barriers between women and gynecological and prenatal care in the United States.  It would be great if the trial lawyers, with their self-proclaimed concern for the average person, would stop adding to these barriers and support medical malpractice reform instead. 

NJ is one of the “Worst States for Business”

Chief Executive Magazine released its 2011 survey of the worst states for business.  Unsurprisingly, Texas is ranked best, and New Jersey, New York, Illinois and California are the bottom four.  New Jersey held steady at #47 for the third consecutive year.

It will also come as no surprise that many states in the top 10 continue to address civil justice reform issues (beneficial reforms are under legislative consideration in 5 of the top 10 states).

You can read Chief Executive Magazine’s full article and methodology here, or click on the map below for an interactive map of the best and worst states for business. 

Where to file a whacky class-action lawsuit? New Jersey, of course!

New Jersey’s Consumer Fraud Act is among a minority states which allow “litigation tourism” – that is, permitting non-New Jersey residents to sue under the Act.  And because New Jersey’s CFA is so broadly constructed, many out-of-staters and their attorneys are eager to jump on the class-action bandwagon. 

Case in point:

Lawsuit claims Benjamin Moore 'zero VOC' paint has foul odor

Apr 26, 2011 5:17 PM  | Via Consumer Reports

Describing the smell of some batches of Benjamin Moore’s Natura paint as “horrid,” two law firms filed suit against the paint maker today on behalf of a woman who claims she had to move out of her home because the odor was so strong. Filed in the U.S. District Court of New Jersey, the complaint initiates a class action suit, according to Lexington Law and Scott + Scott LLP.

According to court papers, Marlene Sway, the plaintiff, painted several rooms in her California home with Natura paint in 2009. Soon after she noticed a foul odor and areas where the paint failed to dry, according to the complaint. She eventually moved out.

--
Moral of the story?  Lawyers love to file lawsuits under New Jersey's Consumer Fraud Act, especially when they stink.

Here’s something NJLRA and the trial lawyers can agree on

“New Jersey is, in many ways, ground zero for mass tort in the US, with the majority of major drugmakers headquartered in the state.”

That’s where the accord stops.  We celebrate the jobs, innovation, and life-saving drugs that our nation’s “Medicine Chest” generates.  Trial lawyers are celebrating Accutane lawsuits, 3,100 strong, which were consolidated in Atlantic County Superior Court.   

We’ve written about the popular acne drug Accutane extensively.  It’s now off the market, due in large part to the cost of the settlements its manufacturer has had to pay. 

Calling our state’s largest industry “ground zero for mass tort” isn’t exactly the encouragement New Jersey business owners and entrepreneurs need during these economic times.  But to the detriment of everyone else, the only industry the trial bar is concerned with seems to be ‘litigation tourism.’ 

Will trial lawyers make Caterpillar Inc. regret staying in Illinois?

Last month, we underscored Governor Christie’s pitch to attract Illinois businesses in an op-ed.  New Jersey’s “well-educated, diverse talent pool” and “innovative financing, incentive, and assistance programs” for new businesses is ideal for entrepreneurship – especially to a state which raised its corporate tax rate from 4.8 to 7 percent. 

The CEO of one business, however, recently told Illinois Governor Pat Quinn that his business would stay – but that the state’s business climate needs to change.   

Doug Oberhelman, CEO of Caterpillar Inc., which manufactures heavy equipment in the Peoria area, employs 23,000 people.  Governor Quinn reportedly acknowledged that the state’s business image is in need of an overhaul. 

Illinois ranked eighth in the region in job growth as a percentage of its population last year, according to Chicago Business.  To the chagrin of Caterpillar’s overseas representatives, personal income tax also rose, from 3 percent to 5 percent.  They expressed concern about the company’s ability to attract engineers, and reiterated that even if Governor Quinn’s call for a 30 percent reduction in businesses’ liability for workers compensation is enacted, Illinois would still have the 2^nd highest rates in the nation. Illinois businesses also want to see a cap on civil liability. 

Governor Quinn also told Oberhelman that he plans to invest in Illinois’s infrastructure and help manufacturing companies improve their ability to export.  Let’s hope that that Illinois trial lawyers don’t take it as a green light to invest in workers compensation lawsuits in the meantime. 

"Old-Fashioned Justice," meet the trial lawyers

With arguments in the Wal-mart sex-discrimination case before the U.S. Supreme court, Liptak examines whether the class is too big and too diverse to produce a fair outcome. 

Excerpt: WASHINGTON — Can a class-action lawsuit be too sprawling to deliver old-fashioned justice?

Justice Antonin Scalia seems to think so, judging by his comments on Tuesday during the Supreme Court argument in the biggest employment discrimination class action in history.

“We must have a pretty bad judicial system,” he said, reflecting on what he had just heard from a lawyer for hundreds of thousands of women suing Wal-Mart over what they say was unfair treatment on pay and promotions. The lawyer had said that a trial judge could rely on statistical formulas rather than testimony and personnel records to decide how much money the company would have to pay each plaintiff if it lost.

“Is this really due process?” Justice Scalia asked.

In other words, does the impersonality of the suit threaten its ability to be fair to each plaintiff and to Wal-Mart, the country’s biggest private employer?

Read entire article.

Read NJLRA’s op-ed in the Home News Tribune & Courier News

Lawsuit abuse a continuing drag on NJ business

By Marcus Rayner | March 29, 2011

“From a college student suing a Chinese restaurant for soup she spilled on herself (Somerset County), to a drunken motorcyclist who drives into a parked car and sues a restaurant (Ocean County), lawsuit abuse has an economic impact on businesses in every corner of the state. Every dollar spent fighting nonsense lawsuits is a dollar not spent on innovation or job creation, and it doesn't need to be this way.”

 Several hundred miles from here, Illinois business owners are learning about a place with an abundant supply of workplace talent and a high-quality lifestyle sure to make any entrepreneur envious. Weary from crippling tax hikes, a labor shortage and a shrinking consumer base, Illinois business owners can only dream about this land of milk and honey: New Jersey.

"Well-educated, diverse talent pool," reads the ad, placed by New Jersey Gov. Chris Christie. Want to start a business? "Innovative financing, incentive and assistance programs. Exceptional quality of life."

The catch? Here in New Jersey, businesses are vulnerable to lawsuit abuse. Everything the ad says about New Jersey is true. Christie's efforts to improve the business climate in New Jersey, combined with our state's existing assets make New Jersey fertile grounds for entrepreneurship. His outreach to the national business community is both constructive and sorely needed as we seek to reclaim our economic footing here in New Jersey. And business retention as well as recruitment will be critical to our economic growth over the next decade, a point that leaders in both political parties have made.

Click here to read entire piece.

Trial bar fighting efforts to restrict lawsuit lending

Can you imagine agreeing to a loan on which you would have to pay over 36 percent in interest?

Of course not, because it would be absurd unless you were really desperate. 

Many states cap the interest rate a lender can charge its customers.  In Indiana, for example, it’s capped at 36 percent – still a generous deal for the lender, but protects the borrower from being taken advantage of, and having to pay back much more than their loan is worth. 

One group says a 36 percent interest rate is not high enough – and that they should be exempt from state lending laws.  Meet the personal injury lawyers. 

Some companies are in the business of advancing money to would-be plaintiffs involved in personal injury lawsuits.  According to a New York Times report by Binyamin Appelbaum, there are about a dozen such companies nationwide, and several smaller companies.  They collectively lend plaintiffs $100 million per year in increments of a few thousand dollars to cover their housing and medical expenses.  Plaintiffs pay back their loans plus interest after lawyers win their case.  If the lawyers lose, they owe nothing.  The message seems to be that filing a frivolous lawsuit can be a pretty good investment. 

Personal injury lawyers say that’s why they should be excluded from states’ loan caps: these aren’t loans – they’re investments.  And they’re taking their show on the road to Legislatures across the country.  Oasis Legal Finance in Illinois recently proposed exempting lawsuit lending companies from Indiana’s 36 percent cap on interest.  Senator Randy Head said that Oasis’s advocacy first brought his attention to the issue, which resulted in his introduction of Senate bill 97.  It included a modest restraint on lenders by preventing them from providing anything beyond money to plaintiffs, as well as assertions from the industry that they were attempting to self-regulate in the name of consumer protection.  It was that portion that helped to carefully pitch it to the state Senate as a pseudo-reform bill and ultimately led to that chamber’s passage of it last month, with a vote of 36 – 14. 

“Most of what they proposed is contained in the bill,” the sponsor acknowledged to the New York Times. 

While “lawsuit lending” might help one who is truly besieged with medical bills and unable to work due to someone’s negligence as their case is being sorted out, it’s hard to deny that it also gives plaintiffs and their attorneys a hefty incentive to pursue the largest financial rewards possible. 

The personal injury lawyers’ trade group is trying to carve themselves out of regulation through the legislative process in Alabama, Kentucky, and Maryland as well, and may be focusing on Arkansas and Nevada in the near future.  The watchful eye of the chambers of commerce has kept efforts at bay in Kentucky, which have successfully blocked similar legislation from passing the state Senate.  And since all of these bills were introduced in February 2011 or later, we may only have seen the tip of the iceberg in trial lawyer lobbying. 

New York’s Medicaid Redesign Task Force recommends a cap on noneconomic damages; the trial lawyers hate it

Nearly every state in the country is grappling with rising Medicaid costs.  New York, however, bears the distinction of having the highest Medicaid costs in the nation, and also leads among avoidable hospital use and costs.  On a per capita basis, it runs about twice the cost of the national average. 

To help his “functionally  bankrupt” state cleanse its Medicaid program of inefficiencies and waste, Governor Andrew Cuomo convened a Medicaid Redesign task force to “redesign and restructure” the program. 

The task force consisted of 30 stakeholders – doctors, hospitals, nursing homes, the Greater New York Hospital Association, and other patient care providers you would expect.  The objective, according to the Syracuse Post-Standard, is to move nearly all of the state’s 4.7 million Medicaid recipients to managed care within the next three years in order to stop the use of hospital emergency rooms for preventative and routine care.  Its expected savings could exceed $1.1 billion.  The task force issued 79 recommendations last Thursday for the approval of the Governor and Legislature.  And they include a $250,000 cap on noneconomic damages – which would save hospitals hundreds of millions of dollars in insurance premiums alone. 

Now enter the trial lawyers.  They’re throwing a fit over aforementioned recommendation.  Not because it saves taxpayers’ money, but because their interests weren’t represented on the task force.  New York Times blogger Nicholas Confessore has noted their frustrations in detail. 

New York State faces a $10 billion deficit, and Governor Cuomo has said he needs to cut Medicaid spending by $2.85 billion and limit it to 4 percent annual increases thereafter if he has any chance of plugging it.  Josh Vlasto, a spokesperson for Governor Cuomo, called the interest group opposing this recommendation a “mouthpiece for the trial lawyers.” 

I suppose the task force could have recommended cuts in patient spending instead of a cap on litigation and insurance spending.  As a patient, however, wouldn’t you rather have a $250,000 cap on noneconomic damages instead of a reduction in care?  It seems nonsensical and transparent for trial lawyers to insist that the only way Medicaid recipients can receive more efficient care is to make sure the lawyers’ thirst for uncapped noneconomic medical damages remains quenched.   

Caught on Tape: “Some people fake slip and falls for a living.”

Fraudulent slip-and-fall duos have become so pervasive in the last three years that many stores are investing in hidden cameras to catch the perpetrators in the act. 

ABC’s Elizabeth Leamy reports on the spike in suspicious slip and fall claims.  Some of what the camera catches is amazing – from a man who buys a hot dog, then places it in a store isle so his accomplice can intentionally slip, to a woman who fixes her hair before lying down in artificial distress. 

The National Insurance Crime Bureau says that “suspicious claims” are up 24 percent from 2008. 

Leem notes this number could be even higher, because many businesses quietly pay off these claims to make them go away.  Even when fake falls are caught on tape, “fake slip and falls still have the effect of driving up prices for all of us,” she says. 

Jim Quiggle of the Coalition Against Insurance Fraud says that indeed, “some people fake slip and falls for a living.” 

 You can watch the report here, via ABC’s website. 

What do North Carolina, Oklahoma, and North Dakota have in common?

Tort reformers in all three states had significant victories this week.

In North Carolina, S-33 would cap noneconomic awards in malpractice cases at $100,000.  It was advancing to the full Senate for a vote as of Thursday. 

A similar piece of legislation passed the full Senate in Oklahoma.  S-863 would cap noneconomic damages at $250,000. 

Meanwhile, in North Dakota, progress was made in the judicial branch.  A group of thirteen out-of-state plaintiffs had filed a product liability suit in North Dakota, which has one of the longest statutes of limitation in the country.  The state Supreme Court ruled in favor of the defendant in Vicknair v. Phelps Dodge.  Several groups, including NFIB and the U.S. Chamber of Commerce, argued that the statute of limitations from the plaintiffs’ home states should be applied, not the more plaintiff-friendly statute of limitations in North Dakota. 

Read NJLRA’s letter-to-the-editor in this week’s edition of NJBIZ

Trial lawyers need a new hobby / Marcus Rayner

Excerpt:

New Jersey earned its reputation as the nation’s “medicine chest” many years ago. If you live here, chances are good that you know someone who is employed directly by a pharmaceutical company or indirectly through service contracts.

Read entire letter on the NJBIZ website. 

Which state is the most litigious in the nation? New Jersey, of course…

NJLRA’s former chair, Taysen Van Itallie, underscores just how serious New Jersey’s “Sue Me” image has gotten in the New Jersey Law Journal.

New Jersey had 10,579 new civil cases in 2008 – more than twice as many filed in Illinois, a state with a larger population. 

It begs the question: how exactly can we make our state more attractive to businesses without addressing the tort situation? 

“Businesses of all sizes are sensitive to a state’s lawsuit climate.  Let’s be sure we have a plan to improve ours,” writes Van Itallie. 

You can read his entire op-ed in the New Jersey Law Journal here. 

NJLRA Statement on the Congressional Civil Justice Caucus

A new bipartisan issue caucus in Congress was announced today- the Congressional Civil Justice Caucus, which will focus on legal reform issues.   NJLRA is excited, to say the least. 

I applaud Congressmen Bob Goodlatte (R-VA) and Dan Boren (D-OK) for taking the lead on this issue at the Congressional level.  It’s helpful to have a bipartisan caucus focus on advancing a civil justice system conducive to the United States’ global economic competitiveness. 

Here in New Jersey -  a state where consumers have neither an obligation to ask for a refund before taking a business to court, nor to have encountered actual fraud in order to sue under the state Consumer Fraud Act - the Caucus carries a special significance for us.  It shows the hardworking men and women of our state that members of Congress are willing to carry our fight against lawsuit abuse to the highest levels of government.  Knowing that we have support as we try to stop the hemorrhaging of our key industries is invaluable. 

Most importantly, the Congressional Civil Justice Caucus gives us the opportunity to expose the target that the pharmaceutical industry has on its back in our state.  In the last year New Jersey shed 7.6 percent of its pharmaceutical jobs, due in part to litigation tourism by the trial bar.  Instead of the nation’s “Medicine Chest,” we are becoming a national leader in pharmaceutical job exportation. 

Ninety-three percent (93%) of the mass tort plaintiffs in New Jersey suing our pharmaceutical companies are out-of-state residents seeking the use of our plaintiff-friendly laws.  This is an unacceptable situation we must correct in order to achieve solid economic growth.  I am hopeful that the Caucus will push for reforms similar to A-3333, sponsored by Assemblyman John McKeon (D-Essex) in states where the Consumer Fraud Act encourages abuse. 

New Jersey is quickly losing ground to other states which have enacted common sense tort reform measures.  I encourage all members of New Jersey’s congressional delegation to support the Civil Justice Caucus and participate in this bipartisan forum. 

What do taxpayers in New Jersey and Louisiana have in common?

We’re paying for lawsuits. Lots of them. 

The Louisiana Lawsuit Abuse Watch (LLAW) released a study which found that eight of the state’s municipalities spent a collective $52 million fighting lawsuits between 2006 and 2009.  $37 million was spent in the form of judgments and settlements; $14.9 went to outside counsel. 

That’s $52 million.  In eight towns.  In just three years!

You may recall a Lawsuit Reform Watch post from April 2010, in which the cash-strapped city of Irvington, New Jersey, faced the loss of 20 police officers and 10 firefighters to help close a $5 million budget shortfall.  This announcement from Mayor Wayne Smith came days before an appellate court rejected the city’s attempt to have its insurance company cover a $5 million personal injury suit. 

Melissa Landry, executive director of LLAW, acknowledged that some lawsuits are legitimate, but that some “are filed purely in search of enrichment from the lawsuit lottery.  At a time when Louisiana, like most other states, are struggling, the public’s financial resources could have made an impact elsewhere: preserving the jobs of law enforcement personnel. 

The report, “Drinking from the Taxpayer Trough” can be found here.     

President Obama: I’m willing to look at medical malpractice reform to rein in frivolous lawsuits

President Obama’s State of the Union address touched on two areas of interest to NJLRA supporters: medical malpractice reform and a flaw in the healthcare reform bill which requires all businesses to track expenditures to all vendors. 

Frivolous medical malpractice lawsuits affect the ever-increasing insurance premiums each doctor must carry, and these costs can vary significantly by specialty and by state.  In New Jersey, the medical malpractice crisis has lead to a homegrown healthcare crisis of our own, in which we are seeing fewer doctors willing to practice specialized medicine within the jurisdictions of the Garden State. 

Beginning January 1, 2012, all businesses would need to track expenditures over $600 with other vendors, and prepare a Form 1099.  This requires tracking down the taxpayer ID for each vendor as well.  This would be an especially difficult for small businesses, which lack the accounting resources of larger companies.  Fortunately, President Obama acknowledged the onerous burden this portion of the healthcare bill would place on economic growth. 

Excerpts from the President’s speech regarding medical malpractice and small business bookkeeping under the new healthcare law are quoted below:

Medical malpractice

“This means further reducing health care costs, including programs like Medicare and Medicaid, which are the single biggest contributor to our long-term deficit. Health insurance reform will slow these rising costs, which is part of why nonpartisan economists have said that repealing the health care law would add a quarter of a trillion dollars to our deficit. Still, I'm willing to look at other ideas to bring down costs, including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits.”

Small business bookkeeping under the new healthcare law

“Now, I've heard rumors that a few of you have some concerns about the new health care law. So let me be the first to say that anything can be improved. If you have ideas about how to improve this law by making care better or more affordable, I am eager to work with you. We can start right now by correcting a flaw in the legislation that has placed an unnecessary bookkeeping burden on small businesses.”

You can read the entire speech here, via ABC’s website. 

Right after swearing in, Wisconsin Governor starts tackling tort reform

As Governor Christie prepares for his State-of-the-State address, most of us in the Garden State probably didn’t take much note of the gubernatorial changing-of-hands in Wisconsin earlier this month. 

Newly minted Governor John Walker convened a Special Legislative Session to introduce his Civil Justice Reform Package.  It’s a significant part of his “Wisconsin is open for businesses” campaign.

Expert testimony, non-economic damage award limits, and product-liability are key reforms included in this proposal.  You can learn more about Governor Walker’s pro-civil justice agenda here. 

Last chance to vote for the most obnoxious lawsuit of 2010!

The contenders:

A teen intentionally drives her car into oncoming traffic, killing a pregnant mom and her 13-year-old son - and then sues the surviving family members for her 'mental anguish';
A drunk New Jersey man drives crashes his motorcycle into a car, and then sues the bar for his injuries;
A customer spills hot tea on herself and sues Starbucks;
A fast food restaurant manager sues McDonald's for making him fat.

Click here to cast your vote!

2010 in Review

            I am happy to report that the 214th NJ legislature has taken positive first steps toward reforming New Jersey's civil justice climate.  Most notably, A-2473/S-480, which extends appeal bond caps to all industries, is now on second reading in the General Assembly.  We also saw efforts to reform New Jersey's oft-abused Consumer Fraud Act with the introduction of A-3333.  Finally, the Assembly Health and Senior Services Committee held a hearing earlier this year on A-1982, which would reform New Jersey's medical malpractice environment for our state's doctors.    Collectively, these initiatives would discourage frivolous class-action litigation and enhance the integrity of scientific evidence admitted in our courts.  NJLRA would like to thank all of the bills' sponsors and the legislative leadership in both parties for their commitment to advancing pro-business legislation.  Together with our supporters, we are able to educate the legislature on the importance of these initiatives.  Senator Raymond Lesniak (D-Union), who was NJLRA's keynote speaker at our Fall Membership Luncheon, said NJLRA's proposals will be a "cornerstone" of the state's effort to reposition New Jersey's economy for long-term growth.  We enthusiastically accept Senator Lesniak's wisdom. 

            If you think you have seen more of NJLRA lately, it's because we have increased efforts to get our message out.  In 2010 we re-launched our website, where you can find any of the eight op-eds I authored over the past year.  NJLRA has also been the focus of several news stories and has written a dozen letters to-the-editor.  I encourage you to visit NJLRA's Blog and Facebook page.  You can also follow us on Twitter. 

We continue to make an effort to reach out to New Jersey's small business community.  A recent poll we conducted in conjunction with the Monmouth University Polling Institute suggests that many of the Garden State's small businesses feel vulnerable to abusive lawsuits.  We are hoping to articulate the unique needs of New Jersey's small business community as we meet with legislators across the state. 

      As we have said in the past, New Jersey cannot recover from this recession without sound policies that support job growth.  With limited resources to fund tax breaks or business incentives, legal reform offers policymakers in Trenton a revenue-neutral policy change that can send a very strong message to employers all across the nation.  States which have enacted tort reform, including Texas, now lead the country in job growth and physician retention. 

            Thank you again for your continued support.  I am confident that we will continue our path toward reforming New Jersey's civil justice laws in 2011.  Please save the date for NJLRA's first Membership Meeting of 2011, which will be held on Tuesday, March 8th at noon at the Trenton Country Club.  We will discuss our plans for 2011.  As always, please do not hesitate to contact me if I can ever be of assistance. 

Vote in NJLRA’s Most Obnoxious Lawsuit of 2010 Poll

The contenders:

A teen intentionally drives her car into oncoming traffic, killing a pregnant mom and her 13-year-old son - and then sues the surviving family members for her 'mental anguish'; A drunk New Jersey man drives crashes his motorcycle into a car, and then sues the bar for his injuries; A customer spills hot tea on herself and sues Starbucks; A fast food restaurant manager sues McDonald's for making him fat.

Click here to cast your vote!

In case you missed it...

Some obnoxious lawsuit highlights from earlier this year:

Manager of a McDonald’s restaurant in Brazil sues the company for making him fat – and wins.  $17,500 for his weight gain. 

In a failed suicide attempt, a Montana teenager deliberately drives her car into oncoming traffic, killing a pregnant mother and her 13-year-old son who were on their way home from a chorale concert – and the teenage driver had the audacity to sue the family’s estate for ‘mental anguish’ and potential lost earnings, among other things. 

Texas pursues the Holy Grail of Tort Reform

Twenty-three counties lacked an E.R. doctor.  Ten counties lacked an OB-GYN.  No, this is not a third world country: it was Texas, prior to tort reform. 

The Wall Street Journal calls the pre-reformed Texas a “holy place on the tort bar pilgrimage,” that has now morphed into a “Mecca for doctors.”  Incentives didn’t hurt, either, and Texas now leads the country in job creation.  Product liability, class-action certification, and noneconomic damage caps were reformed in 2003 and 2005.  Now, according to the Journal, Texas Governor Rick Perry wants to extend his state’s tort reform successes – British style.  It’s a thinly-veiled deterrent to filing frivolous lawsuits, which drive up business costs and drive down economic growth. 

The “loser pays” concept isn’t a new one.  The purest-form version of “loser pays” is that the losing party picks up the attorney’s tab.  The proposed caveat would impose a penalty on the losing firm which files the case, forcing trial lawyers to think twice before filing questionable claims. 

Governor Perry is also calling for “new legal channels” to expedite claims below $100,000, but details about this proposal aren’t readily available. 

It sounds like Texas might be headed in the right direction.  It begs the question: if Texas can entice doctors, why can’t New Jersey?

Hosting Thanksgiving this year?

Before your in-laws get any ideas (“You mean there are calories in this? ::gasp:: How could you do such a thing?!?  Wait until my lawyer hears about this!”) you can actually serve a handy downloadable waiver along with those unlabeled Turkey dinners marinating in delicious excess calories to protect yourself.

This past year, we’ve seen an array of food lawsuits gain traction – everything from a customer claiming he had no idea Denny’s “Moon over my Hammy” dish was “loaded up with the salt,” to the latest McDonald’s lawsuit unfairly marketing Happy Meals to children,  to excessive alcohol consumption that may make one drunk (imagine that).  And of course, merely working at a fast food chain may make employees fat. 

But if you take your chances with nondisclosure like the vast majority of us plan to, remember to also be thankful that you’re not dining amongst the litigious kind who make these waivers possible! 

Happy Thanksgiving!

ATRA Conference

NJLRA will join with other tort reformers today at the American Tort Reform Association’s Annual Legislative Conference.  This year’s conference is being held at The Hyatt Lodge in Oak Brook, Illinois.  Speakers include Florida Attorney General Bill McCollum and the Honorable Mary-Dulany James of the Maryland House of Delegates, who will offer a legislative perspective about the False Claims Act. 

Have a happy, safe, and lawsuit-free Halloween!

I pulled some memorable Halloween-related lawsuits in honor of the holiday this weekend.  While you’re dodging crazy goblins and ghouls, you might want to keep a watchful eye for crazy lawsuits, too. 

The Haunted House was too scary.  Yep, it was filed by an adult against a large company.  The Plaintiff said that the Universal Studios attraction caused her “mental anguish” and “extreme fear.” 

Maryland lawsuit over Halloween fundraiser is a real scream.  This is a recent case actually going before the courts in the Old Line State.  Your Halloween fundraiser two hours from my Halloween fundraiser might scare patrons away.  Time to call in the courts.  

And my personal favorite, posted by Robert on the Insurance Blog: The Only Thing Scarier Than Halloween? A Trick-or-Treater's Liability Lawsuit

Robert talks about how to protect oneself from the “overzealous trick-or-treater” whose parent happens to be a personal injury lawyer. 

Accutane, and New Jersey’s booming litigation tourism industry

I’m going to go out on a limb and say that Accutane isn’t more dangerous in New Jersey than it is in Nebraska.  Or Illinois.  Or Texas, for that matter. 

Yet, more than 400 lawsuits have been filed in the past two months in New Jersey, claiming that its manufacturer, Roche, failed to warn users of its side effects, which are said to include gastro-intestinal and cardiovascular complications.  5,000 lawsuits have been filed nationwide; nearly 1,600 cases are pending in New Jersey. 

Why the flood of lawsuits here in New Jersey, as opposed to any other state?  No, it’s not because New Jerseyans are more acne prone.  Not all of the plaintiffs even live in New Jersey, in fact.  News Inferno.com notes that “the spike in Accutane claims filed in New Jersey come on the heels of a court ruling there that found the statute of limitation for such lawsuit should be based on when plaintiffs discovered there could be a connection between Accutane and their bowel disorder.” 

Essentially, the decision opened the floodgates for litigation – and in New Jersey, a lawsuit can yield a nice profit (see In Atlantic County, the trial bar hits the jackpot, and consumers pay – again, for a $25.1 million example). 

New Jersey is #40 on Forbes’ “Best States for Business and Careers” list

Good news, sort of: New Jersey is only the 10^th worst state in which to do business, according to Forbes Magazine’s annual Best States for Business and Careers ranking. 

New Jersey ranked at number 40 on the list, which was determined by weighing costs, labor supply, the regulatory environment, the current economic climate, growth prospects, and quality of life in each state.  Fortunately for us, fear of litigation wasn’t included (see Survey of New Jersey small business owners shows that increase in liability costs are causing them to scale back operations; 20% consider relocating out-of-state on our website).   

The Associated Press points out that labor costs are significant in New Jersey, as they are in New York and Massachusetts.  Both New York and Massachusetts performed significantly better than New Jersey did, despite the similar handicap.  They ranked at numbers 21 and 16, respectively. 

So why is having 80% of the states ahead of you on the Forbes list sort of a good thing, you ask?  Well, because last year, we were worse.  New Jersey ranked at number 45 on the Forbes list, making it the 5^th worst state in which to do business.  We still managed to rank at number 46 out of 50 in the business costs category. 

Interestingly, having the number 5 out of 50 ranking in the quality-of-life category may have saved us from further statistical damnation. 

You can see the entire list on Forbes Magazine's website. 

Around the web, 10.5.10

Panel To Study Concept of Requiring Malpractice Insurance for Lawyers

By Charles Toutant | New Jersey Law Journal

October 4, 2010

The state Supreme Court has formed a committee to weigh the benefits and burdens of mandatory malpractice insurance and a requirement that lawyers disclose whether they have such coverage.

Read story

Court Term Features Wrongful Death, Malpractice Cases With Unique Issues

By Mary Pat Gallagher | New Jersey Law Journal

October 4, 2010

The state Supreme Court this term has agreed to decide some prickly issues affecting wrongful death and medical and legal malpractice cases.

The wrongful death case is Aronberg v. Tolbert, A-15-10, an appeal from a June 8 Appellate Division holding that even though drivers without insurance are not allowed to sue for personal injury, their heirs can sue for their own losses.

Read story

Merck to appeal $4.6M verdict in Mass. fraud case

By Linda A. Johnson | The Associated Press

September 30, 2010

Trenton, N.J. -- Drugmaker Merck & Co. plans to appeal a federal court verdict that a former subsidiary caused the commonwealth of Massachusetts to overpay pharmacists for a widely used asthma medication, the company said Thursday.

After a three-week trial, a jury in Boston found Merck liable for about $4.6 million in compensatory damages. The judge hearing the case, U.S. District Judge Patti Saris, is to decide later on potential punitive damages, which Merck said could be substantial.

Read story

Weight restrictions may be safer, but the financial consequences for Universal Orlando could be heavy

Can we see the weight-discrimination lawsuits flooding in?

The Star-Ledger’s Editorial board calls our attention to the riding policy on the Harry Potter and the Forbidden Journey ride at Universal Studios in Orlando.  The ride reportedly has a safety-minded per-rider weight limit of approximately 265 lbs., and heavier patrons are being turned away. 

All joking aside though, will we be surprised at the first civil suit filed by an adult seeking damages over his emotional scars?  

A doctor explains why malpractice insurance is necessary, irrespective of his performance

It’s rare that we get to hear a first-hand account of a doctor who was threatened with a medical malpractice suit.  In an op-ed in the Washington Post, however, infectious-disease doctor Manoj Jain tells us his story, and suggests policy changes to address the 83 percent of medical malpractice lawsuits filed against doctors and hospitals which :do not: involve a negligent injury (New England Journal of Medicine, 2004).

Dr. Jain talks about how his own experience influenced the way he approached defensive medicine, and how he interacted with his patients.  As a self-described confident and conscientious practitioner, he observes the following about the federal healthcare legislation:

“The healthcare overall bill was a missed opportunity.  Legislation could have devised a “safe harbor” standard ensuing that a doctor who follows guidelines won’t be sued if a patient is injured.  Also, special medical courts could have been created to determine negligence and compensation.  The new law encourages states to explore these kinds of remedies, but this is unlikely to happen.”

You can read Dr. Jain’s op-ed in the Washington Post here. 

Around the web, 8.26.10

Addicted Gamer Sues Game-Maker, Says He is ‘Unable to Function’
A federal judge is allowing a negligence lawsuit to proceed against the publisher of the online virtual-world game, Lineage II, amid allegations that a Hawaii man became so addicted he is “unable to function independently in usual daily activities such as getting up, getting dressed, bathing or communicating with family and friends.”

Craig Smallwood, the plaintiff, claims NCsoft of South Korea should pay unspecified monetary damages because of the addictive nature of the game. Smallwood claims to have played Lineage II for 20,000 hours between 2004 and 2009. Among other things, he alleges he would not have begun playing if he was aware “that he would become addicted to the game.”  (David Kravets/ Wired, 8/19/10)

Third Circuit won't make Del. SC's mind up for it

Philadelphia – A federal appeals court has decided not to predict whether the Delaware Supreme Court would recognize medical monitoring claims as valid, overturning a lower court decision that said it would.
The U.S. Court of Appeals for the Third Circuit said such a prediction "requires several 'leaps' from the current state of law" and also ruled that summary judgment was properly granted to A.I. DuPont Hospital for Children in Wilmington.
Medical monitoring requires defendants to pay medical costs even in the absence of a current injury. Cardiologists at the hospital implanted a covered stent that was not improved by the Food and Drug Administration while trying to repair a congenital heart defect. (John O’Brien/ Legal Newsline, 8/24/10)

Most doctors in America get sued, but most suits aren’t suited for trial

As the nation- and especially New Jersey- seek to lower healthcare costs without diminishing access to care, here is one more study showing why we simply can’t continue to ignore the medical malpractice crisis. 

The American Medical Association (AMA) recently released a study which showed that most doctors will have been sued at least once by the end of their career.  And even in the most obvious instances of lawsuit abuse, the cost is high.  The average nationwide cost for defense against a suit which is dropped is over $22,000.  Going to trial can cost well over $100,000, arguably trending upward for physicians in the Northeast.  And of course, this doesn’t account for the increase in insurance premiums or time away from a doctor’s practice.  Patients feel these affects in the form of fewer doctors from which to access care and longer appointment wait times.  In New Jersey, patients have the added consequence of the “medical brain drain,” in which UMDNJ graduates depart from the Garden State in search of sounder climates in which to practice medicine. 

The study found that general surgeons and OBGYNs are the most likely of all physicians to be sued, compounding efforts to recruit in those areas.  In total, 42.2% of all physicians surveyed had been sued, and of those aged 55 and over, 61% had been sued. 

And it’s not doctor performance which created this situation: 95 percent of malpractice lawsuits never even make it to trial.  Of the five percent which do, the doctors win 90 percent of the time, according to the AMA.  Physicians who have an “ownership interest” in a practice (and conceivably, greater assets) are more likely to be sued than physicians without an ownership interest in their practice.  It’s hard to deny that this correlation appears strategic – not coincidental. 

Now it’s the iPad’s turn…

You knew this was going to happen eventually. You might remember that a lawsuit was filed against McDonald’s last month, because the toys in Happy Meals target children, (which in turn forced their parents to buy them high-calorie Happy Meals, which, in turn, made such children fat).   A Canadian cell phone carrier, Rogers Wireless, Inc., was sued when a cheating spouse was outed after her husband saw a combined wireless statement.  Starbucks was sued, again, this time because a customer’s drink wasn’t put in a sleeve for her, which forced her to drop it on her infant.  I could go on. 

Now, the iPad.  Three users say that if you leave the iPad exposed in direct sunlight long enough beyond the recommended 95 degree maximum, it will overheat and shut down.  It’s a safety measure typical of most electronics, like iPod and iPhone, so you don’t damage your device.

However, this means it’s not truly an e-reader, these users say.  Contrary to what Apple says about the e-reader being “just like” a book, a real book wouldn’t overheat. 

As a result, they are seeking class-action status in federal court in California.   According to CNN, the attorneys are “asking for an injunction against Apple's "false" promises as well as "real" and punitive damages.” 

Of all the silly class action certifications out there, this one would be particularly troubling.  I LIKE that electronics simply shut down when they overheat, especially when permanent damage is the alternative.  I think that anyone who’s melted a cassette recorder or walkman back in the day might understand where I’m coming from. 

Nevertheless, Apple will have to defend itself against charges of: fraud; negligent misrepresentation; deceptive advertising; unfair business practices; breach of express or implied warranty; intentional misrepresentation; and unjust enrichment. 

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.”