Corp Reform - Not Tort Reform

Sprint: "It's our policy" to break the law

Every now and again, I get a reminder of why I want to be a plaintiff's lawyer.  This morning, my mother called to let me know she's canceling our Sprint cell phone plan.  We're on a family plan with 4 lines.  We've been customers for a little over seven years, and have never had any disputes or late payments.  But last month, my parents happened to look through their Sprint bill and discovered something interesting.  For the last 3 and a half years, Sprint has been charging us about $6 bucks a month in Texas state and local taxes.  The problem is that none of us have lived in Texas for 3 and a half years... and Sprint has also been charging Nevada state and and local taxes.  Obviously, that's about $250.00 that we shouldn't have paid Sprint.

Needless to say, we disputed that with Sprint and asked for a credit.  It's taken about a week of telephone tag, but we finally heard back from Sprint.  They're only willing to refund the past three month's worth of illegal taxes because it took so long for my parents to discover their error.  That's just "their policy."

Why is it that it's OK for a big corporation to have a policy of ripping off consumers, but it's horrible for consumers to rip off big corporations?  What do you think would happen if we underpaid Sprint $6 bucks a month for three years, and when caught told Sprint that we'd only refund them three month's worth because it took them so long to catch our error?  I imagine they'd use the oppressive credit reporting system to blackmail us into paying.

The odds are that this will probably end up in court because Sprint plans on charging $800 in early cancellation fees, when they clearly breached their contract.  Let's be honest - it will be ridiculous to go to court over this.  But what's the alternative?  Letting Sprint overcharge us because it's too costly to go to court?  To hell with that.  I once spent $160 in filing costs over an $18 overcharge that a notoriously corrupt company refused to correct for me.  It took three months, but they settled and gave me my $18 and my filing costs.  Again, a ridiculous lawsuit.  But I'll be damned if I was going to let someone steal twenty bucks for me.

I was fortunate enough to be able to file that suit myself.  And my family is fortunate enough that my father is an attorney, so he'll be able to handle any legal matters himself.  But the millions of consumers out there who get ripped off and aren't attorneys don't fare as well.  No lawyer will touch cases like these on a contingency basis because the dollar amount is so small, and no rational consumer will spend $1,500+ to hire an attorney to recover my $20 or my parents' $250. 

Meanwhile, as consumers across the country are ripped off to the tune of millions - perhaps even billions - of dollars a year, corporate America has convinced us that "frivolous lawsuits" are a drain on the economy and that we need to make it harder to sue them.  Too bad no one wants to make it harder for corporations to rip us off, eh?

Damage caps would protect this guy, too.

...and anyone else sued for sex crimes.  Should someone who molests teens or rapes women only be liable for $250k per victim?  Well, noneconomic damage caps would do just that.

MADISON, Wis. (AP) - Two boys are suing a former youth group leader and coach who is criminally charged with plying teens with money, liquor and drugs in exchange for sex.

The lawsuit filed Thursday seeks unspecified compensatory damages for mental and emotional distress from 52-year-old Greg E. Francis. It also seeks unspecified punitive damages for actions Francis allegedly took that were considered malicious in their disregard for the boys' rights.

WBAY-TV Green Bay-Fox Cities-Northeast Wisconsin News: 2 boys sue former youth leader accused of paying teens for sex

But the "reform" movement never mentions that, do they?

Technorati Tags: tort reform, damage caps, rape, noneconomic damages, molestation

But they still let Ford crucify the expert on the stand...

Walter at Point of Law discusses a Daubert ruling that excluded a video prepared on behalf of a plaintiff in a product liability suit against Ford.  

Daubert strikes again, as a Texas federal judge throws out a test video relied on by the plaintiffs' expert in a case against Ford.

PointofLaw.com | PointOfLaw Forum: "I think my daughter’s high school science fair projects are more scientific than this....”

What he leaves out is the following excerpt from the opinion:

"As a result of the exclusion of Irwin’s tests, Mahon was not
allowed to testify about the results of the tests or its role in
shaping his expert opinion. According to the Wrights, this allowed
Ford’s attorneys to cross-examine Mahon “aggressively” concerning
his lack of testing conducted by him personally supporting his
theory that the reverse sensing system was capable of detecting a
three-year-old child, creating the impression for the jury that his
theory was without basis and easily disregarded."

That sounds fair, doesn't it?  Letting Ford beat a guy up for not performing any tests, when he did in fact perform the test?

Technorati Tags: Walter Olson, Point of Law, Ford, Product liability, Daubert, Fifth Circuit

The Rather Effect?

Law and More suggests that Dan Rather's lawsuit against CBS is going to be the next poster-child for tort reform.  I'm doubtful for a few reasons.  But first, the relevant excerpts:

On the surface, Dan Rather's lawsuit against former employer, reports Joe Hagan in December 3rd NEW YORK Magazine, "is a mundane contract dispute over whether he received the airtime he was promised in his final year on CBS."  But to Rather it's a morality play of how evil attempted to destroy his good name, professionally and personally.  In this drama he is convinced good will win out.

But what could win is the common sense realization that it's reckless to try to right individual wrongs with monster lawsuits.  Tort reform could take a quantum and unanticipated leap. 

After all, this lawsuit is big.  Rather is asking $70 million.  He is suing CBS, its former parent Viacom, the chairman of Viacom Sumner Redstone, CBS head Leslie Moonves, and former CBS president of news Andrew Heyward.  And like everything else Rather it is filled with noise and hyperbole.  Conspiracy is everywhere. Likewise for corruption.

Law And More: The Rather Effect in Tort Reform

First, why is it reckless to try and right individual wrongs with the civil justice system?  The alternative is to return to feuds and private wars between individual citizens and between rival corporations.  Would the world really be a better place if Dan Rather decided to take a flamethrower to CBS headquarters?

Second, most "tort reform" measures will have little or no effect on contract disputes.  For example:

• To begin with, contract cases are not torts.
• Many contracts have "loser pays" provisions built in to them.
• Punitive damages are not available in contract cases. (Absent an additional tort.)
• Liquidated damages clauses often take the place of noneconomic damages.
• Damage caps won't apply to economic damages.
• Contract cases involve questions of law more often than questions of fact, thus there is a greater likelihood these will be resolved by summary judgment than jury trial.  And contract cases don't turn into "battle of the expert witness" cases very often, either.

Is Dan Rather entitled to $70 million?  I have no idea, and no overall opinion of Dan Rather.  But I do know he's entitled to use the court system to settle a contractual dispute with CBS.  And I also know there's nothing wrong with using the justice system to right a wrong; that's what it's for.

Technorati Tags: Dan Rather, Law and More, tort reform

Interesting case dealing with Medicaid fraud

I feel absolutely no sympathy for people who defraud Medicaid.  Defrauding Medicaid is a nice way of saying "robbing the taxpayers."  Here's an interesting case about a man who was such a dumbass that he went to court, admitted he defrauded Medicaid, and asked the court for help:

JACKSON, Miss. (AP) - The state Court of Appeals has ruled that a Jones County man who tried to hide his mineral interest in some land from Medicaid officials has no legal right to reclaim them later.

Rickey Ellzey sued in chancery court for the return of mineral interests which he had transferred to Sherry James in an effort to conceal his assets from Medicaid....

At trial, Ellzey and James both testified that the purpose of the transfer was to conceal Ellzey's royalty income from Medicaid.

WLOX-TV - The News for South Mississippi: Appeals Court rules Jones Co. man can't get mineral rights back

I'd sure like to think there will be some sort of criminal charges brought against these two scumbags. 

Technorati Tags: Rickey Ellzey, Medicaid fraud, scumbags, dumbasses

Crooked defense witness "excoriated" for testifying that plaintiff's lawyer should earn far less than defense lawyer

Ever notice how the "reform" movement and the defense bar is very concerned with how much plaintiff's attorneys earn?  At least one judge has now called them out for paying an "expert" witness to testify that an experienced plaintiff attorney should earn $125 per hour less than a fresh-out-of-law-school defense attorney:

Feldman said Marquess said he should be paid $235, $125 less than a DLA Piper associate....

The defense legal team has spent 7,100 hours on the case and attorneys have billed at rates "ranging from $560 to $595 higher than the rates requested by plaintiff's counsel," Bernstein said in the Kia case.

"The defense bar often accuses the plaintiffs bar of using junk science," Donovan said. "From my perspective, it's the other way around. From my perspective, the defendants are equally responsible for putting up junk science and junk witnesses."

Law.com - Court Explaining $4.1M Fees Award in Kia Class Action Excoriates Defense Witness

The defense strategy is simple: try and make plaintiff work so unrewarding that injured consumers can't find a lawyer to take their cases. 

Technorati Tags: hypocrites, tort reform, attorney fees, DLA Piper, junk science

Are These Real?

Technorati Tags: Stella Liebeck, Anti Stella awards, Stella awards, tort reform

Someone sent me the following email.  2 minutes of Googling hasn't proved or disproved these lawsuits.  If anyone has proof one way or the other, do let me know.

The Anti-Stella Awards (2007)

By now, you have heard of the "Stella" awards, given each year for the most ridiculous lawsuits supposedly filed in the preceding year.

Here are a list of the crazy judges and courts – throwing out legitimate cases – and the insane reasons they gave for them. You didn’t think the craziness was always on the side of the lawsuit filers, did you?

1.    Mrs. Kenneth Bruce sued her doctor for malpractice – after all, he left a surgical clamp and three sponges inside her when he finished his operation on her in Dallas in January 2007. His defense? The patient had signed a release and waiver, promising not to sue. The problem is that Bruce never signed the release because the nurse forgot to ask her to before surgery. The Court ruled that if she had been asked, she would have signed, hence: She constructively signed. Suit thrown out. (Appeal pending.)

2.    David Richards bought a handgun in Memphis and left it sitting on his living room table. During an argument with a friend, his friend picked it up and shot him with it. Richards sued the shooter (you thought he was going to sue the gun manufacturer, didn’t you?) But a judge threw out the lawsuit in February, stating that Richards had assumed the risk of gun ownership and "everyone knows" that guns are more likely to be used against their owners and family members than anyone else.

3.    Tim Stevens went to a fast food restaurant and bought a cup of coffee for herself and large diet soda for his friend. A moment later, his friend noticed that the soft drink tasted funny. It was laced with cleaning solution. His friend sued the restaurant, but a judge in Kalamazoo threw out the case in April because, "You didn’t buy the drink from [the restaurant], it was a gift from your friend. Sue him."

4.    Todd Ryan of Atlanta came home from work this past February, just in time to see his next door neighbor chopping down the trees that ran near the property line between their houses – three feet into Ryan’s property. In all, the neighbor cut down 7 trees, all over 100 feet tall. When Ryan sued, the Judge asked him if there were "No Trespassing" or "Private Property" signs on the trees. When Ryan told him there were no such signs – on his trees or anywhere else in his subdivision – the judge threw out the case. "How was he supposed to know whose trees they were?" the judge asked.

5.    Thomas Marks of Cincinnati bought a 2007 Corvette brand new from a dealer. Shortly after purchase, he noticed the heater didn’t work. He later found out that the dealer – to repair another cooling system – had stripped the heater core and a few other parts out of this Corvette before it was sold to Marks and forgotten to replace them. When he returned to the dealer, they told him it was a "warranty" problem; GM obviously told him it was a dealer problem. When Marks sued, the Judge asked him to show in the documentation where he was promised a "heater." While Marks could point out the options he was promised, he could not point to a heater (any more than he could point to a steering wheel or a glove box) on the purchase agreement. Case dismissed.

Comparing the Vioxx Settlement to...

By now, the blawgosphere is aflame with commentary about the Vioxx settlement.  The "reformers" are apoplectic over the sheer size of a $4.8 billion settlement.  Let's look at that $4.8 billion number.

I recently read Creating Winning Trial Strategies and Graphics (a great read, btw) and that book points out that all numbers are meaningless without some sort of reference. According to the book, the relevant question about all numbers is, "Compared to what?"

So I took it upon myself to figure out what to compare that $4.8 billion figure to.  At the top of the list is the total sales figures for Vioxx from 1999 to 2004.  The number I came up with is only an estimate.  I reviewed the annual reports from Merck from 1999 to 2004 and their own sales figures aren't consistent from year to year.  One report claims that Merck sold $2.2 billion worth of Vioxx in 2002, while another puts the figure at $2.3 billion.  So the estimate below might be off by a few percent. 

Here are a few numbers to compare the Vioxx settlement to:

• Vioxx Settlement Cost: $4.85 billion
• Average cost of developing a drug like Vioxx: $800 million
• Total Vioxx Sales from 1999 - 2004: $11+ billion
• Total number of deaths caused by Vioxx: 56,000+
• Total number of Americans killed in Vietnam: 58,000+
• Cost to Merck for each death: ($4.85 billion divided by 56,000) $86,000

I'm obviously not privy to Merck's internal financial reports, so I don't know how much of that $11 billion in sales was profits.  But I'm willing to bet that Merck still pocketed at least a couple billion in profit even after deducting development costs, the settlement costs, and the cost of manufacturing and selling Vioxx. 

You'll pardon me if I don't believe that the tort system has enough deterrent power.

Technorati Tags: Vioxx, Merck, tort reform, product liability, tort system

"It's for a cop." - Update!

The instant I read this story, I immediately thought of Super Troopers: "It's for a cop."

Officer Kevin Lynn Dupre is suing McDonald's Corp. after a cockroach just over an inch long ended up in his mouth when he sipped the coffee, according to his lawsuit.

McDonald's did not respond to a request for comment.

In the suit, Dupre said he stopped at a Cleburne McDonald's in May 2006 while on patrol. As he pulled away from the drive-through window, he took a sip, and the coffee was cold. He took another sip and felt something soft in his mouth. He spat a roach onto the lid of the cup and drove back to the restaurant.

Source: Star-Telegram.com | 06/14/2007 | Cop spitting mad over coffee roach

For those of you who haven't seen Super Troopers - shame on you.

Update: Apparently, the media got this one wrong, as Officer Dupre just posted the following comment:

"I am the "cop" who is supposedly suing McDonald's for finding a roach in my coffee. It's funny, because the first notice I recieved of this was 2 days ago when I read it in the FT Worth paper. I told McDonalds when it happened that I did not want any money. I only wanted 2 things; the employee who did it and the video tapes. I got no answers from the company, and even recieved veiled threats from their legal department. Of course I contacted an attorney, gave a statement, and a year later find out that I am suing for "emotional distress." The lawsuit has been dropped of course."

Technorati tags: Mcdonald's, coffee, Super Troopers, roach

E-discovery gone wild in TorrentSpy case

A Law.com story today is about the recent order that TorrentSpy must produce data kept in its servers RAM:

Magistrate Judge Jacqueline Chooljian's May 29 order requires TorrentSpy to turn over customer data only ephemerally kept in its computers' random access memory, or RAM. It could result in floods of similar requests in other civil cases, according to Ira Rothken, the Novato, Calif.-based attorney for the TorrentSpy site.

The Los Angeles magistrate's order also has privacy watchdogs concerned.

This is the first case Rothken said he could find where a court considered transient RAM data as something discoverable, he said. Any company currently being sued -- even before any liability has been found -- could end up having to collect and turn over RAM data at great cost, Rothken said.

"Lawyers will be flinging around preservation letters, coming up with all kinds of creative ways to tell the other to preserve RAM," he said. "That would cause huge economic implications. If it's not changed, it can create e-discovery chaos."

Source: Law.com - RAM Ruling Portends a New E-Discovery Brawl

Before I continue, I want to point out that this is not supposed to set a precedent:

She also noted that it was not her goal to set a far-reaching precedent with her decision.

"The court emphasizes that its ruling," Chooljian said in the documents, "should not be read to require litigants in all cases to preserve and produce electronically stored information that is temporarily stored only in RAM."

Source: MPAA accuses TorrentSpy of concealing evidence | Tech news blog - CNET News.com

If corporations think that SOX is bad, they should be scared to death that this decision might eventually lead to the requirement to preserve data in RAM.  Such preservation would be close to impossible and would be incredibly expensive.  First, the data storage requirements would be extraordinary, especially if workstations are included.  Second, servers and workstations would take a huge performance hit if every action written into RAM had to be written to a hard drive.  I can't think of any way this is practical at all.  Scary, scary stuff.

Technorati tags: torrentspy, MPAA, RAM, e-discovery, electronic discovery, scary, law.com, CNET, bad idea