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Friday Round-up: December 2

December 2, 2011

A New York Court of Appeals has determined that “lower courts were over-reaching in making factual determinations as to what constitutes a “serious injury” and taking cases away from the jury where it belongs if “contemporaneous” loss of motion findings were not made. While hewing to skepticism about many personal injury cases due to problems of fraud, the Court held that ‘there are cases, however, in which the role of skeptic is properly reserved for the finder of fact, or for a court that, unlike ours, has factual review power.'” According to Erik Turkewitz of The New York Personal Injury Attorney Blog, this has serious repercussions on the way personal injury cases operate in the state.

The Missouri Supreme Court may soon rule on the constitutionality of its cap on punitive damages. Does the cap really violate the constitutional rights to trial by jury, equal protection, due process,and  open courts as the plaintiffs’ attorneys have claimed to the Kansas City Star? –Thanks to Torts Blog for the tip!

In many homes pets are practically members of the family. One Texas appeals court apparently agrees, as it recently ruled that a Texas couple can sue to recover the sentimental value of an 8-year-old labrador retriever mix who was mistakenly euthanized at an animal shelter. –Thanks to Torts Prof Blog for the tip!

And Finally, our friendly neighbors to the north have some explaining to do: A 14-year-old girl was arrested in Canada for drunk and disorderly conduct. Now, her family is suing the police department for tasering her when she refused to stop peeling paint off the walls of her jail cell. 

By: Mike Hess, Legal Assistant, Greg S. Young Co. L.P.A.

The Daily Roundup: Post-Thanksgiving Edition

November 29, 2011

An Indian-born American citizen is suing her employer after she was ridiculed for celebrating Thanksgiving with her family. 

A young man in Florida went on a rampage at a 2009 Thanksgiving celebration, killing 4. He was mentally ill and his parents, who were aware of his instability, are now being sued for negligence for allowing him to go to the dinner in the first place.

Greenberg Smoked Turkeys Inc is suing Goode-Cook Inc. over alleged copyright infringement of the preparation instructions for their smoked turkey products. –From Evan Brown, Internet Cases

A Georgia couple is in trouble for celebrating Thanksgiving by giving six of their children tattoos with a home-made tattoo device.

And finally, I know there’s a reason they call it “Black Friday,” but things are getting ridiculous: Woman uses Pepper Spray on Fellow Shoppers at Wal-Mart.

Special thanks to Jonathan Turley, who compiled an exhaustive list of Thanksgiving news stories. You can find these stories and more on his blog,  JonathanTurley.org.

By: Mike Hess, Legal Assistant, Greg S. Young Co. L.P.A.

Tell me it is not so: Power Balance Bands do not work. Company settles for 57 million dollars, admits hoax and files for bankruptcy.

November 22, 2011

Power Balance Bracelets

O.K.  As a mother of soccer players, I can still recall when the first Power Balance Bands hit the mall kiosks.  We were told that these rubber bands with special holograms set into the center could really improve balance  and coordination.  On the television screen, there were the stars: Shaq, David Bechmam, and  even Kate Middleton sporting  these bands. On the soccer fields of  Ohio, entire select teams wore the bands as if the proof of their destiny.   I did, too, truly hoping that whatever worked for NBA basketball stars and my athletic children, would work for me.  The sky was the limit: perhaps, I too, would have the grace of a Kate Middleton, the dunk of a Shaq, or even yet, the curve of a Beckham.  Alas, my Walter Mitty fantasies did not come to materialize.  Now I know why.  The Power Balance Band was just a rubber band after all.

In January, after a  federal class action law suit was filed by disgruntled customers, the founders of the company, Josh Rodarmel, 28, and his brother Troy, publicly confessed:
In our advertising we stated that Power Balance wristbands improved your strength, balance and flexibility. We admit that there is no credible scientific evidence that supports our claims and therefore we engaged in misleading conduct in breach of s52 of the Trade Practices Act 1974.  If you feel you have been misled by our promotions, we wish to unreservedly apologise and offer a full refund.”

In this most  most disconcerting confession since Oz revealed himself from behind the curtain, the athletic hopes of countless leaden-footed gazelles, like me,  ended with a thud.

Now, TMZ reports  Power Balance has settled the class action with the disgruntled  buyers for a whopping 57 million dollars and will declare bankruptcy.

Ah well.  Off to Zumba where I can now imagine that I am Ann-Margaret in “Bye, Bye Birdie.”

Read more in http://www.huffingtonpost.com/2011/11/21/power-bracelets-lawsuit_n_1105559 ;http://www.tmz.com/2011/11/21/power-balance-bracelets-lawsuit/

	Shaquille O’Neal is among the star athletes who have worn the Power Balance bracelet.

In small towns, reputations rise and fall on anonymous community websites. Gossip moves to the cyberworld

September 23, 2011

The New York Times reports on how in small towns, vicious and anonymous gossip  is spread through web forums.  While legal action can be taken to reveal the identity of the gossiper, will it  restore  the reputation of the townsperson anonymously smeared?  Rumors create doubt even if countered.  As the New York Times reporter recognize, few in small towns could afford the great expense of suing an out-of-town website in order to determine the identity of the gossiper.  What are the damages?  It is very hard to prove because as a nation, we want to encourage freedom of speech and set the bar high.   The Times reports:

In Small Towns, Gossip Moves to the Web, and Turns Vicious

Steve Hebert for The New York Times

Mountain Grove, Mo., where a Web forum is supplanting diners like Dee’s Place as a place for news and rumor.

By 

MOUNTAIN GROVE, Mo. — In the small towns nestled throughout the Ozarks, people like to say that everybody knows everybody’s business — and if they do not, they feel free to offer an educated guess.

Jennifer James, who says she was a victim of an online smear.

One of the established places here for trading the gossip of the day is Dee’s Place, a country diner where a dozen longtime residents gather each morning around a table permanently reserved with a members-only sign for the “Old Farts Club,” as they call themselves, to talk about weather, politics and, of course, their neighbors.

But of late, more people in this hardscrabble town of 5,000 have shifted from sharing the latest news and rumors over eggs and coffee to the Mountain Grove Forum on a social media Web site called Topix, where they write and read startlingly negative posts, all cloaked in anonymity, about one another.

And in Dee’s Place, people are not happy. A waitress, Pheobe Best, said that the site had provoked fights and caused divorces. The diner’s owner, Jim Deverell, called Topix a “cesspool of character assassination.” And hearing the conversation, Shane James, the cook, wandered out of the kitchen tense with anger…

http://www.nytimes.com/2011/09/20/us/small-town-gossip-moves-to-the-web-anonymous-and-vicious.html?pagewanted=all

‘Bad mothering’ lawsuit dismissed.

September 15, 2011

Two adult children brought up in a 1.5 million dollar home sued their mother for  “bad parenting.”  The allegations included that the mother called the daughter at midnight to come home from homecoming or haggled over the amount for party dresses.

Not surprisingly, one of the lawyers on this case was not only  the father of the children and the ex-husband of the wife subjected to defending her parenting for two years in court.  

The Chicago Tribune reports:

Raised in a $1.5 million Barrington Hills home by their attorney father, two grown children have spent the last two years pursuing a unique lawsuit against their mom for “bad mothering” damages allegedly caused when she failed to buy toys for one and sent another a birthday card he didn’t like.

The alleged offenses include failing to take her daughter to a car show, telling her then-7-year-old son to buckle his seat belt or she would contact police, “haggling” over the amount to spend on party dresses and calling her daughter at midnight to ask that she return home from celebrating homecoming.

Last week, when the court record stood about a foot tall, an Illinois appeals court dismissed the case, finding that none of the mother’s conduct was “extreme or outrageous.” To rule in favor of her children, the court found, “could potentially open the floodgates to subject family child rearing to … excessive judicial scrutiny and interference.”

In 2009, the children, represented by three attorneys including their father, Steven A. Miner, sued their mother, Kimberly Garrity. Steven II, now 23, and his sister Kathryn, now 20, sought more than $50,000 for “emotional distress.”

Miner and Garrity were married for a decade before she filed for divorce in 1995, records show.

Among the exhibits filed in the case is a birthday card Garrity sent her son, who in his lawsuit sought damages because the card was “inappropriate” and failed to include cash or a check. He also alleged she failed to send a card for years or, while he was in college, care packages.

On the front of the American Greetings card is a picture of tomatoes spread across a table that are indistinguishable except for one in the middle with craft-store googly eyes attached.

“Son I got you this Birthday card because it’s just like you … different from all the rest!” the card reads. On the inside Garrity wrote, “Have a great day! Love & Hugs, Mom xoxoxo.”

In court papers, Garrity’s attorney Shelley Smith said the “litany of childish complaints and ingratitude” in the lawsuit is nothing more than an attempt by Garrity’s ex-husband to “seek the ultimate revenge” of having her children accuse her of “being an inadequate mother.”

“It would be laughable that these children of privilege would sue their mother for emotional distress, if the consequences were not so deadly serious” for Garrity, Smith wrote. “There is no insurance for this claim, so (Garrity) must pay her legal fees, while (the children) have their father for free.”

Messages left for Smith were not returned. Steven A. Miner, reached by phone, did not comment. In court papers he said he only filed the lawsuit after much legal research and had tried to dissuade his children from bringing the case.

The Cook County judge who ruled on the case, Kathy Flanagan, declined to assess sanctions against Miner, but said the lawsuit amounted to nothing more than children “suing their mother for bad mothering.”

DePaul University law professor Bruce Ottley, who co-wrote a textbook on Illinois tort law, said courts have long carved out an exception to family members suing each other, barring any extreme conduct.

“If junior slips on the rug in the living room and sues mom or dad, that can’t happen,” Ottley said.

He said such emotional-distress damages are a way for the legal system to address situations — sexual harassment for instance — where there is no physical harm. But those bringing a case to court must prove the conduct was outrageous.

“The fact that it is such a high standard, it doesn’t succeed very often,” Ottley said.

In court filings, Garrity’s attorney writes that “she does still love” her children but found that they wanted “the benefits afforded by a family relationship, but none of the restraints.”

Steven A. Miner wrote that the case is no different from a patient suing a physician “for bad doctoring.”

The children “do not view their (lawsuit) as an attack on mothering, but rather on accountability,” he wrote. “Everyone makes mistakes, but … there must be accountability for actions. Parenting is no different.”

Garrity called the lawsuit nothing but harassment.

“Everything … shows that these children, orchestrated by their father, will stop at nothing to embarrass and financially harm their mother,” Smith wrote in a court filing. “In the process they have embarrassed themselves and left a public record blogged about on the Internet that will shadow their every future relationship.”

http://www.chicagotribune.com/news/local/ct-met-mom-sued-0828-20110828,0,7330681.story

What does a cap on injuries mean for the victims of negligence?

September 15, 2011

The Pop Tort reports:

The Indiana Fair Stage Collapse and Ruing a State Cap – Again.

Indiana-State-Fair-Stage-CollapseBack in 1975, Indiana lobbyist Frank Cornelius, whose clients included the Insurance Institute of Indiana, helped secure passage of a hard $500,000 cap on compensation for patients injured by medical malpractice in Indiana.  On October 7, 1994, Cornelius wrote an op ed in theNew York Times but it’s not what you think.  The article was called “Crushed by my own reform,” and he wrote about the tragic, horrible mistake he made lobbying for this cap, saying he “rue[s] that accomplishment.”  Here’s why. Beginning in 1989, Frank Cornelius experienced a series of medical catastrophes that resulted in his wheelchair confinement, respirator-assisted breathing and constant physical pain. Though his medical expenses and lost wages amounted to over $5 million, his claims against both the hospital and physical therapist at fault settled for a mere $500,000 – the cap.  (The Times archives don’t go back that far, but you can find lots of reference to this article like herehere.)

Why is it that people don’t seem to realize the impact of these callous, one-size-fits-all caps until something happens to them?  Or to 160 people in a horrific train collision?  Or when environmental catastrophes occur like the BP explosion and oil spill?  Or when a horrifying stage collapse kills seven people and injures more than 40?  Who exactly do people think are hurt by caps?

Turns out that Indiana doesn’t just cruelly cap compensation for medical malpractice victims.  It also severely caps responsibility for the stage collapse – at $5 million.  This is about what one catastrophically-injured person – someone like Frank Cornelius, say – might need just to survive.  Or as the Indianapolis Star Tribune put it:

Consider this: If the families of the seven people killed each received the maximum allowed under the law, those payments would eat up $4.9 million — leaving only $100,000 to split among the more than 40 other people injured. The medical bills of just one victim who spent more than a few days in the hospital would easily eclipse that.

The bottom line is not pretty. Despite the state’s pledge to pay out the liability funds as quickly as possible, the sheer number of injuries and deaths means victims and their families are not likely to receive the $700,000 maximum allowed under law. And many are likely to receive payouts far short of their actual medical bills.

Indiana state Rep. Ed DeLaney (D-Indianapolis) says, “This is a place where we actively invited people to come, we chose not to regulate, and then we chose not to shut (the concert) down. Our role is so deep that we need to take care of our people.” So he plans to introduce a legislation to increase the cap, although he admits that even this effort may result only in a one-time only waiver of the cap and not a permanent change in state law.  I’m sure the Insurance Institute of Indiana’s new lobbyist is working overtime to make sure that doesn’t happen.  And looks like he/she may have some allies, like “Senate Appropriations Committee Chairman Luke Kenley, R-Noblesville, who says, ‘I probably would not be in favor of that, not a general raising of the cap. I think this is a call to arms by trial lawyers a little bit’ and ‘Once you start arguing whether a cap should be raised one time, you should be saying, “Do we want the cap raised in all cases?”‘  Uh, yeah.

The Star Tribune notes, “there is precedent for stepping outside the lines in the wake of a major tragedy — both in Indiana and elsewhere.”  For example,

[I]n Minnesota, after the 2007 bridge collapse that killed 13 and injured more than 100 others, the Legislature waived its existing liability cap of $1 million per occurrence. In all, the state ended up paying out a total of $38 million to victims.  None of the lawyers took any fee. …

“When the legislature passes those kinds of (liability caps), they don’t really think about that kind of catastrophic event until it happens,” said Carla Ferrucci, executive director of the Minnesota Association for Justice, a trial lawyers group. “What if (victims) need to have lifetime outside health-care support? And with medical bills being what they are, it’s pretty easy to rack up a million-dollar medical bill.”

And what about taxpayers who might argue that the state shouldn’t pay these victims?  Well, when victims like this aren’t compensated, they’re forced onto Medicaid.   Taxpayers are gonna pay, one way or another.

http://www.thepoptort.com/2011/09/the-indiana-fair-stage-collapse-and-ruing-a-state-cap-again.html

Should Plaintiffs Take Advances on Potential Law Suit Gains?

January 18, 2011

The NYT reported Sunday on  the new law suit loan industry.  Our law firm experienced this new trend first-hand.  For decades, our clients could not obtain advances on their expected law suit gains.  This could be hard at times for the poor, the injured, the victims who could wait for years for justice if there was a trial and would settle for less than they deserve.  But, in 2002,   the Ohio Supreme Court overturned case law that made it illegal to loan to plaintiffs.  Now law-suit lending is commonplace in Ohio. 

Should a client borrow from Oasis or the other law-suit lenders?  The interest rates are unregulated as the speculative nature of a law suit win is viewed as a gamble.  We have seen clients charged fifty percent per year in interest or more for their loans.  Clients, facing such high rates of interest, can often no longer afford to wait for justice.  So, our firm strongly discourages taking loans unless the client feels there is absolutely no other alternative.  But, realistically, we live in a world where  insurance companies recognize the poor and the injured cannot wait for justice and will not settle cases early on as a matter of decency and fairness.  This is not all insurance companies, but it is unfortunately, a commonplace practice, to delay settlement so the weakest, the most vulnerable, the most damaged, are forced to accept far less than they deserve.   Even we recognize that lending has its place in an unfair world.

But, we, as lawyers, take with utmost seriousness the responsibility to our clients in peril.  Only a small percentage of our clients turn to loans because we counsel our clients and explain the dangers of accepting advances with high percentage rates.   We know when our clients ask lending companies for advances as these lenders turn to us for information about the law suits so they can ascertain the risk.   We, in turn, go to our clients and explain the impact of taking an advance of money on their case.  It may not be our legal responsibility, but certainly, we view it as our moral duty to do so. 

The most shocking fact to me in the NYT article is that the clients signed these contracts, willy-nilly, without apparent consultation with their lawyers.  Where were the lawyers when these poor plaintiffs were signing away the bulk of their potential settlements away?  This,  I do not understand.   

The NYT article follows: 

Lawsuit Loans Add New Risk for the Injured

Larry Long, debilitated by a stroke while using the pain medicine Vioxx, was facing eviction from his Georgia home in 2008. He could not wait for the impending settlement of a class-action lawsuit against the drug’s maker, so he borrowed $9,150 from Oasis Legal Finance, pledging to repay the Illinois company from his winnings.

Gary Tramontina for The New York Times

Carolyn and James Williams. Ms. Williams borrowed $5,000 in 2007 from USClaims while pursuing a disability suit. Her case is unresolved and her debt to USClaims stands at $18,976.

Betting on Justice

The Lenders’ Advantage

Articles in this series — which is a collaboration between the Center for Public Integrity, a nonprofit journalism group in Washington, and The Times — are looking at the growing practice of investing in lawsuits.

Ruth Fremson/The New York Times

“It’s not for everyone, but it’s there when you need it,” said Harvey Hirschfeld of LawCash.

By the time Mr. Long received an initial settlement payment of $27,000, just 18 months later, he owed Oasis almost the entire sum: $23,588.

Ernesto Kho had pressing needs of his own. Medical bills had piled up after he was injured in a 2004 car accident. So he borrowed $10,500 from Cambridge Management Group, another company that lends money to plaintiffs in personal-injury lawsuits. Two years later, Mr. Kho, a New Jersey resident, got a $75,000 settlement — and a bill from Cambridge for $35,939.

The business of lending to plaintiffs arose over the last decade, part of a trend in which banks, hedge funds and private investors are putting money into other people’s lawsuits. But the industry, which now lends plaintiffs more than $100 million a year, remains unregulated in most states, free to ignore laws that protect people who borrow from most other kinds of lenders.

Unrestrained by laws that cap interest rates, the rates charged by lawsuit lenders often exceed 100 percent a year, according to a review by The New York Times and the Center for Public Integrity. Furthermore, companies are not required to provide clear and complete pricing information — and the details they do give are often misleading.

A growing number of lawyers, judges and regulators say that the regulatory vacuum is allowing lawsuit lenders to siphon away too much of the money won by plaintiffs.

“It takes advantage of the meek, the weak and the ignorant,” said Robert J. Genis, a personal-injury lawyer in the Bronx who said that he had warned clients against borrowing. “It is legal loan-sharking.”

Colorado filed suit in December against Oasis and LawCash, two of the largest companies, charging them with violating the state’s lending laws.

“It looks like a loan and smells like a loan and we believe that these are, in fact, high-cost loans,” John W. Suthers, the state’s attorney general, said in a recent interview. “I can see a legitimate role for it, but that doesn’t mean that they shouldn’t be subject to regulation.”

The companies, however, say that they are not lenders because plaintiffs are not required to repay the money if they lose their cases. The industry refers to the transactions as investments, advances, financing or funding. The argument has persuaded regulators in many states, including New York, that lawsuit lenders are not subject to existing lending laws. Oasis and LawCash have now filed suit against Colorado, asking the court to prevent the state from using lending laws to regulate the industry.

Companies also say that they must charge high prices because betting on lawsuits is very risky. Borrowers can lose, or win less than expected, or cases can simply drag on, delaying repayment until the profit is drained from the investment.

To fortify its position, the industry has started volunteering to be regulated — but on its own terms. The companies, and lawyers who support the industry, have lobbied state legislatures to establish rules like licensing and disclosure requirements, but also to make clear that some rules, like price caps, do not apply.

Maine and Ohio passed the first such laws in 2008, followed by Nebraska last year. Sympathetic legislators introduced bills in six other states last year; the measures passed the state Senates in New York and Illinois…..

Article continues:  http://www.nytimes.com/2011/01/17/business/17lawsuit.html?_r=1&scp=1&sq=oasis%20law&st=cse