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I need to make some comments about "tort reform". The United States Senate was scheduled to vote today on S.2601 which would inflict a $250,000 cap on non-economic damages(read "pain and suffering") for OB/GYN cases. The medical lobby was pushing hard for the bill. In addition to the cap on damages, the bill seeks to place a cap on attorney fees; restrict the right to call expert witnesses and insert certain protections for the makers of drugs and devices used in performing OB/GYN services.

Although I doubt this bill will pass, in the event Bush is elected, you can bet he will place "tort reform" near the top of his agenda. The Conservative Right doesn't like trial lawyers[excepting of course those criminal lawyers that help you avoid prosecution for corporate malfeasance].

Ironically, while the AMA lobbyists and assorted fat cats were busy scurrying around Washington D.C. last week trying to line up support for this bill, a mother and father sat in a Chicago court room watching their son's trial unfold. Their son, now five, was born with severe birth defects at a Chicago hospital. Why? Because an anesthesiologist who was needed in surgery in order to facilitate the C-Section delivery allegedly failed to respond to three separate pages to immediately report to Surgery. And the doctor wasn't tied up in another surgery. He wasn't making rounds or checking on other patients. No, actually, the doctor was a couple floors away, in another room at the hospital with a nurse he was dating at the time. The baby, when delivered, wasn't breathing. The child nearly died. As it turns out, the baby was born with severe birth defects and will have only limited use of his legs, arms and head for the remainder of his life. It is anticipated his future medical care will cost millions of dollars. The family asked for $64 million dollars at the conclusion of the trial. While the jury was deliberating, the case settled for $35 million dollars.

If Senate Bill S.2061 was the law of the land, that child could not recover anything beyond $250,000 for his pain and suffering. That little boy now only has limited use of most of his body because a doctor allegedly ignored multiple calls to report while he spent some quality time with his girlfriend. And the "tort reform" people want you to believe that $250,000 would be an appropriate award for that little boy. "Tort reform" in effect, is an attack on the central tenet of the American system of justice - - the jury. Proponents of "tort reform" don't want the 12 people who sit in the courtroom and actually hear the facts and the evidence to make the decision about damages. Instead, they want damages to be decided by rich, white, conservative men who have no idea about the facts of any of the lawsuits they seek to compromise. They don't have to bother with the facts because...well, they just know better than some bumpkin juror. Tort reform is a bad idea. A very bad idea. Unfortunately, most people won't realize that until someone they love suffers a catastrophic injury. So when you hear all the propaganda about the wisdom of "tort reform" just spend a moment or two thinking about that little boy.

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I have to comment briefly about a recent Seventh Circuit decision that came down a couple of months ago. In Mathias v. Accor Economy Lodging (7th Cir. 2003) 347 F.3d 672, the plaintiffs stayed at a budget motel owned and operated by the defendants in downtown Chicago. When the plaintiffs awoke the next morning they learned that bedbugs had been feasting on them as they slept. The aggrieved plaintiffs filed suit and as the case wound its way toward trial, plaintiffs uncovered some interesting facts, such as 1) bedbugs were originally discovered on the premises two years before the attack on plaintiffs; 2) an exterminator had suggested fumigating every room(for $500) but the defendants refused and last, but certainly not least, 3) the defendants continued to rent rooms to guests, including those rooms that had been classified as "DO NOT RENT UNTIL TREATED". And as luck would have it, the plaintiffs were given a room which had not been treated. The plaintiffs chose to sue in Chicago and included a claim for wilful and wanton conduct, which would allow punitive damages. The case went to trial and the jury awarded $5000 in compensatory damages...and $186,000 in punitive damages. The defendant appealed, on the grounds that the punitive damages were excessive.

The appellate opinion was drafted by Judge Richard Posner of the Seventh Circuit Court of Appeals. At first blush, the defense was probably thrilled because Judge Posner is a leading conservative jurist. But not so fast. Posner rejected the defendant's arguments about the punitive award and allowed it to stand. In his opinion he also commented on how stubborn and aggressive the defendant had been in litigating the matter which ordinarily dissuades most contingent fee lawyers from taking these cases. And it appears that the trial court allowed evidence of the defendant's net worth($1.6 billion) which probably didn't help the defendant much in the jury room. I have to believe that the plaintiffs in this case would have taken considerably less than $186,000 to settle the case. Nice to see a deserving defendant get his comeuppance now and again. Next time, pay the $500.

Contact me at markploftus@aol.com

Couple of interesting legal matters reported in the Chicago Sun Times today. First, a Salt Lake City woman has sued the marital therapist she and her husband were seeing prior to their divorce. According to the article, the therapist treated the couple prior to their divorce. And, it appears the therapist was providing some individual, "private" counseling to the husband. The ex-wife has alleged the therapist was sleeping with her husband while treating the couple. [Wonder if the husband was billed for the private, one on one sessions?] In any event the wife has filed a lawsuit for alienation of affection, lawyer talk for "you stole my husband". Nowadays, very few alienation of affection cases are filed. People take their lumps and move on. There is however, an interesting wrinkle in this case. Over the last several years, certain professional groups(like lawyers and psychotherapists) have enacted guidelines prohibiting sexual contact with clients while there is an on-going professional relationship. If Utah also prohibits such conduct, the plaintiff can allege violations of those guidelines as part of her case, completely separate from the alienation aspect. The case is now pending before the Utah Supreme Court.

And over in England, a London judge ruled that the mistress of Anthony Shaffer cannot partake of any of his multimillion dollar estate. Shaffer, a successful playwright who wrote "Sleuth" had apparently taken up with his mistress prior to his death in late 2001. After he died, the mistress wanted some of his estate. The judge didn't see it that way and ruled that the estate would be divided up between Shaffer's wife, his ex-wife and his daughters.

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Saw an interesting little blurb in the 2/5/04 Chicago Reader. Seems that the Chicago Kent College of Law decided to do a little undercover work and sent some law students over to the landlord/tenant courtrooms. News wasn't good. Students found that the average hearing ran about 1 minute 44 seconds. Frankly, that isn't the disturbing part. The students also noted that the judges didn't require landlords to meet their burden of proof and rarely even gave the tenants an opportunity to state their defense. The students noted that in only 27% of the cases were the tenants even asked if they had a defense.

I've seen some of those courtrooms in action. Frankly, most of the time the tenants don't have a defense - they haven't paid the rent and are just looking to get a little extra time before they get thrown out of the apartment. So the students may have been a little zealous in reaching those conclusions. The more troubling part is the fact that the landlords weren't being required to prove their cases. Maybe the publicity will generate closer observation of those courtrooms.

Over the last two weeks I have filed a couple of new retaliatory discharge cases and will likely be filing another one in the near future. And recently spoke with another client about a potential wrongful termination case. Despite what I hear about our "jobless recovery" seems like employers are getting nastier and more brazen in how the mistreat their employees. In my experience the level of hostility shown toward employees increases as the economy spirals downward. Employers in effect say, "Screw him, let him try and find another job", knowing there aren't many out there. And I keep reading about additional layoffs in the Chicagoland area every day. So don't believe everything you hear from the Republicans about how the economy is coming back. That's not what I'm hearing from the folks who are coming in to see me.

Contact me at markploftus@aol.com

Promised some more of the 101 Dumbest Moments in Business - 2003 Article in Business 2.0. Magazine. Authors are Adam Horowitz; Mark Athitakis; Mark Laswell and Owen Thomas. Being a lawyer and all, I focused on the legal fumbles, which I have recounted below:

Moment 45: An earnest young summer associate(law student playing lawyer for the summer) snagged a gig at the New York office of Skadden Arps and was probably being paid gobs of money. He decided he would send around an email to his friends telling them what he was doing. Quote: "I'm busy doing jack shit". Unfortunately for our hero, he inadvertently sent the email to dozens of colleagues at the firm. I guessing his chances of being asked back are pretty slim.

Moment 77: A 16 year old lawsuit is finally brought to an end. An Asheville N.C. court ruled in favor of 165,000 plaintiffs who had paid $1000 each to Jim Baker's PTL Ministry for stays at a resort that was never built. The plaintiff's share? $6.54 a piece. The lawyers fees? $2.5 million. Must have been alot of lawyers in that case. Like a million of them.

Finally, moment 101. Kmart creditors filed a lawsuit recently against six of the company bigwigs including the former CEO. Among the allegations are charges that while Kmart was marching toward insolvency, the CEO was billing the company for items that weren't exactly company related. Like the $106,000 he billed the company for improvements to his home. Or the $35,000 he charged for a guardhouse. And of course the company money he paid to a driver to take his children back and forth to school. Really nothing humorous about this at all, particularly since the bankruptcy cost 57,000 employees their jobs. With a little luck maybe the authorities will look into these little extravangances and see if maybe our boy didn't break the law here and there. One can only hope.

Finally, on a completely unrelated subject, I recently saw a good quote from singer Rod Stewart summarizing his feelings on marriage(and divorce):

"I am never going to get married again," quoth Rod. "Instead I'm going to find a woman I don't like and just give her a house".