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Saw a couple of interesting items in various media today. First, our good friends at Allstate, the "Good Hands" people, suffered a big setback in the United State Supreme Court today. Allstate is being sued by various customers who allege, among other things, that Allstate used customer credit records to overcharge blacks and Hispanics for home and auto insurance. Just so you know, I am shocked that Allstate would ever engage in such tactics. No wait, that isn't true. I am not shocked at all by anything Allstate does. [See Allstatesucks.com website]. Seems that the plaintiffs are claiming that Allstate's use of credit histories to set rates had a disproportionate effect on minorities. In addition, the customers are claiming that Allstate also deliberately discriminated against customers, although that aspect of the claim wasn't before the Supreme Court.

Allstate is claiming that the use of the credit histories is perfectly appropriate, citing studies that show that people with poor credit are more likely to suffer an insurance loss. Gosh those Good Hands people are just oozing sincerity...

In other news, former U.S. Congressman Gary Condit found himself back in the news today when U.S. District Judge Peter Leisure ruled that Condits $11 million dollar slander suit against Dominick Dunne(of Vanity Fair and countless cable gabfests)could continue. Condit is alleging that Dunne wrongfully implicated him in the disappearance of Chandra Levy. Dunne had sought to dismiss the case, but the judge ruled that Dunne didn't just merely comment on a public issue, but "...added false assertions of fact to the public controversy." I anticipate some sort of response from Dunne in next month's Vanity Fair.

Finally, met another new client today who is seeking to sue her mortgage broker for fraud. Client claims that the broker screwed up several times and the closing was cancelled at the last minute. Finally some 5 months after the scheduled closing, the deal closed, but the interest rate on the note was 2 full points higher. I am looking into the facts but encouraged by the news that there are a couple of other folks out there who had the exact same complaints about this outfit - just need to find them. Would like to have multiple plaintiffs named in the lawsuit. Jurors don't respond very warmly to evidence that the same defendant just kept cheating people over and over and over...That conduct can sometimes spell PUNITIVE DAMAGES down the road.

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Saw in the news the other day that some Roman Catholic Bishops are urging priests not to give Senator Kerry communion in light of his position on abortion. This would be the same Catholic church that recently disclosed it will be selling the Boston archibishop's mansion and 43 adjoining acres for nearly $100 million dollars to to raise cash to fund a $90 million dollar settlement with more than 550 victims of sexual abuse. Glad to see those bishops are claiming the moral high ground.

Talked to another mold client today. Hired a HVAC company to routinely check his furnace and air conditioning units. It appears the HVAC company failed to notice a malfunctioning hose despite four separate visits to the house. As a result of the malfunctioning hose, water ran constantly to the furnace and was blown through the house. Moisture got into the attic and his attic now appears to be filled with toxic mold. He has had the house looked at and has been advised that the entire roof may have to come off to alleviate the mold. To make matters worse a family member may now have mold-induced asthma. We are awaiting test results and should have them back within a week.

Contact me at markploftus@aol.com

First, an update on the Besler case I discussed on April 4. That was the case out of Mercer County New Jersey where a multi-million dollar verdict was rendered by the jury on behalf of Ms. Besler. She claimed that due to the badgering of a high school coach about her weight she developed an eating disorder that went on for 8 years. According to Overlawyered, a legal blog keeping tabs on the "high cost of our legal system" Superior Court Judge Paulette Sapp-Peterson threw out the $1.5 million dollar verdict saying that Besler had not proven any real damages. Now there's a gutsy judge. Usually judges don't trifle with jury verdicts. The plaintiff has vowed to appeal the Court's order.

Got another call on a mold case yesterday. Although I haven't met with the client, it appears that some HVAC company trifled with his ventilating system and not long thereafter, he started seeing spots of mold on his walls etc. He then goes up into the attic and his entire attic is covered with black mold. He may have to get the entire roof taken off. He has been told the actions of the HVAC company may have caused these problems. I meet with him tomorrow.

I also been asked to represent two women in a consumer fraud case against a local car dealership. Seems the car dealership had a habit of selling used cars as new. The first woman had to bring her car in 18 times for various repairs before learning the car wasn't new. At that point, to silence her, they gave her another car(for more money). In the other woman's case, the salesman misrepresented the history of the car(what, a car salesman being untruthful? Say it ain't so). Client was told the car had only one previous owner, a young girl whose father brought it for her and she returned it because she didn't like the color. Not quite. The car was actually a rental that had been involved in an accident and then sold at auction. Their damages are not staggering, but the case does has some jury appeal(systemic lying to women about cars). I have the two women lined up, and there is a third who may be on board as well. If I prevail on a consumer fraud basis, I would likely recover attorney fees. Usually the dealerships are terrified by that possibility so they try to work things out. I am still mulling this one over...

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Got some encouraging news Friday on a medical malpractice case I am litigating. In this case I represent a seven year old boy who was undergoing elective surgery for an large umbilical hernia. During the surgery, on at least two occasions, there are indications that the bowel may have been perforated, or pierced. Perforating the bowel can have lethal complications because bowel content, i.e. stool, is allowed to ooze out into the abdomen and may cause peritionitis. When that happens, the standard of care requires that the entire bowel be removed and checked for injury. Removal is necessary because it is imperative any injury be found and repaired. If you don't find the hole, and bowel content is allowed to spill out unchecked, the patient will likely die from the resulting infection.

Well, the defendant surgeons acknowledge that there may have been damage to the bowel. But they don't remove the entirety of the bowel to inspect. They take 10 seconds, literally, according to their testimony, where they look around and then sew the kid back up and send him on his way. Well, guess what? That's right, there was a hole in the bowel and they just didn't find it. So a day and a half later, he is in the ER having emergency surgery for peritonitis. And nearly dies. And spends 30 days in a coma for pain reduction purposes. The poor kids undergoes numerous additional procedures and incurs choking medical bills.

I called a very prominent local pediatric surgeon and asked him to be my expert. He tells me to send me the material and he will take a look. In the same breath, he tells me not to get my hopes up -- he only testifies for injured parties(i.e. plaintiffs) if he sees "gross malpractice". Friday he calls me and very bluntly tells me he sees "gross malpractice". And to make matters better, he says the version of events supplied by the defense is probably untrue. I've still got a long way to go on this case - I am nowhere near the end zone. But now at least I've got a local hot shot backing me up - which may shake up the defendants....

Also, got by a Motion to Dismiss one of my Retaliatory Discharge cases. In that case my client, an elderly African American, is a custodian for a nursing home. He gets hurt at work and pursues his rights under the Workers' Comp laws. Right before he is to return to work, he gets fired. I file the Retaliatory case and the defense moves to dismiss it, arguing the claim wasn't on file when he was fired, so it couldn't have been retaliatory. The employer's law firm simply ignores clear Illinois law saying the Comp claim doesn't have to be on file at the time of the firing. The judge agrees with me, denies the Motion and enters an order where we can finally get some discovery. Again, lots of work to do on the case, but I've got one more hurdle behind me.

Finally, saw that the Chicago Tribune had an editorial today strongly advocating for Tort Reform measures, notably a cap on damages in med mal cases. The drum beat goes on...

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The "medical malpractice" crisis has generated signficant press coverage in Illinois lately, particularly downstate. A Victims group, Familes and Victims United, is touting a program called "Sorry Works". This program is the brainchild of a Steve Kraman, M.D., formerly the Chief of Staff of a VA Hospital in Kentucky. The Sorry Works approach urges quick apologies to the families of victims of medical negligence and prompt out of court negotiations between the parties. Kramen swears that following the implementation of his system, there were only a handful of cases filed against the hospital over several years - well below the national average. Quite frankly, I find it hard to believe that the insurers for doctors and hospitals would ever engage in meaningful negotiations without a lawsuit on file. They have nothing to lose when they aren't looking down the barrel of a lawsuit. They aren't paying their lawyers and don't have to worry about assembling a defense to put before a jury. I don't think the program would ever get off the ground in Illinois.

Not to be outdone, the doctors have their own grass roots movement. A group called SHIFT(Saving Healthcare and Industry For Tomorrow-how clever!)has gotten some press as well. They are having some fundraising event in Southern Illinois in May and the John Stossel, the annoying "Gimme a Break" guy on 20/20 is supposed to be the speaker. Gosh, how can I get my tickets?

Speaking of tort reformers, the Chicago Tribune, a frequent critic of trial lawyers, went out and hired some not long ago. Seem they are suing a former employee who left one of the many Tribune companies to join a much smaller rival. The suit says the employee gathered a bunch of advertising, circulation and budget data from the Tribune company before joing the other company. The Tribune alleges the former employee spent weeks "arming himself" with trade secrets before he jumped ship. And finally, the Tribune wants the employee to return any salary paid to him while he was "working for a competitor". So the Tribune remains resolute against lawyers and lawsuits - unless of course their interests are involved.

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Interesting retaliatory discharge case came down recently from the First Appellate District. In Chicago Commons v. Hancock, the plaintiff was sued by his employer for reimbursement of overpaid wages. Shortly after Hancock filed his appearance in the case he was fired. He promptly turned around and filed a retaliatory discharge counterclaim against his employer. His argument was that it was illegal for his employer to fire him for litigating the overpayment case. The trial court dismissed the retaliatory claim and Hancock appealed that ruling.

The Appellate Court did a thoughtful analysis of the case. It first pointed out that in order to establish a cause of action for retaliatory discharge, the claimant must show: a) he was discharged in retaliation for certain activities and b) the discharge violated public policy. The Court went on to explain that "...a matter must strike at the heart of of a citizen's social rights, duties and responsibilities before the tort[of retaliatory discharge]will be allowed." There are two fact patterns the courts of Illinois recognize. The first is a firing after an employee has filed a Workers' Compensation Claim. The second is where an employee is discharged for reporting illegal or improper conduct by the employer, otherwise known as whistle-blowing.

The Court then considered Hancock's claim. It noted that underlying contest was over a wage dispute. The Court also pointed out there was no authority favoring a person's right to defend a lawsuit over wages - in short, Hancock's right to defend the lawsuit did not strike at the heart of his social rights, duties and responsibilities. The Appellate Court upheld the lower court's decision.

I had just one question - was Hancock suprised when they fired him? He had apparently been overpaid and was fighting their attempts to get the money back. Did he think they would give him a promotion? Not likely.

The case caught my eye because I have been approached by a car salesman about suing his former employee. Yeah, I know, he's a car salesman, maybe one rung above lawyers in the easy to despise category. It appears however, that he was actually an honest car salesman. He told at least one perspective customer not to buy a car because it was a lemon. He ultimately tells his boss he did so and lo and behold, they fire him shortly thereafter. I think he probably has a retaliatory case against the dealership on a whistleblower theory. I am still investigating and will update as developments warrant.

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A few words about a case I am presently litigating. I represent the children of a woman who died shortly after having heart surgery. She was in her early 60's and had significant heart disease as well as other health complications. In late December of 2001 she has chest pain, is seen at the hospital and it is decided she needed urgent bypass surgery due to extensive blockage in the arteries and veins associated with the heart. Surgery is undertaken that very day.

The surgeon does three separate bypasses. At the end of one of the bypasses he uses a mechanical device manufactured by a large medical instrument company. The surgery appears to go well, and the blood appears to be flowing around the blockages. The doctor closes the chest but even before the patient leaves the surgical suite the EKG shows abnormalities and her blood pressure becomes erratic. The surgeon immediately suspects something is going on with a bypass and unfortunately, has to re-open the chest. He checks each bypass and determines the bypass with the device is not working - there is no blood flow. He removes the instrument and checks inside it. There is a piece of vein obstructing the movement of blood. He removes the vein, TOSSES THE DEVICE and closes on the patient. She never really comes back. About 10 hours later, she dies.

I depose the surgeon on Wednesday. I anticipated going in he wasn't going to help me establish any sort of case against the manufacturer. But he suprises me. He testifies the device did indeed cause the blockage that necessitated re-opening her chest. And he goes on to say that going back into the chest complicated the recovery picture. It is his opinion that the lady would have lived longer had the device not caused the blockage[although he wouldn't opine how long]. Finally, he admits the device did not perform as he had expected. He no longer uses that device in heart surgeries.

Finally, one more fact. The company making these devices had skirted traditional FDA requirements before getting it on the market. Shortly after the device was placed on the market, they started getting reports that the bypass devices were causing heart attacks, angina and worse. Sounds promising, right? I thought so too.

But I am actually taking a long hard look at this case. There is an unpleasant math associated with these lawsuits. They are VERY EXPENSIVE to litigate. In order to justify the time and significant expense you would be putting into this case, you have to be looking at a large settlement or verdict. And that isn't a sure thing here. First, there is some factual uncertainty about when exactly the clot formed. So the defense could, and probably will argue that the clot may have lodged in there just moments befor the device was removed, and as a result, wasn't causing the blockage. In addition, they will certainly argue that the patient's life expectancy was minimal in light of her other health problems. In short, this argument, reduced to its lowest[and I mean lowest]common denominator is "Hey, she was dying anyway, we didn't really cause any harm". [As an aside I have yet to hear a defense lawyer make that argument sound good]. So now my job is to explain to a family that lost their mom, probably through negligence, why they might want to think about settling this case - and if they settle, they won't get a chance to rant at this manufacturer who seemingly ignored the responsibility they have to put a decent product into the commerce screen. I will talk to the clients next week and post another update.

Contact me at markploftus@aol.com

A couple of comments on some cases that have popped up in the news recently. First there is an interesting case pending before the Supreme Court arising out of allegations of sexual harassment. The plaintiff in the case, Nancy Drew Suders, quit a good job as a dispatcher with the Pennsylvania Police because of what she alleges was non-stop sexual harassment from co-workers. Her decision to quit may ultimately work against her. Several years ago, the Supreme Court said that companies can be liable for sexual harassment even if top managers didn't know about it when it results in "tangible employment action" i.e., getting fired. The state is arguing that quitting is not the same as being fired and that Suder shouldn't be allowed to go forward with her claim. [A lower court had allowed the case to move forward].

The state further argues that it is a defense to harassment suits if there is in place a policy against sexual harassment; a complaint procedure and an education program. The state's position is that since these things were in place but Suder simply choose not to utilize them and instead sue. Interestingly, Suder quit in 1998 after she was accused of stealing results of a computer test she had previously failed. She was never charged. Employers worry that if the case is allowed to go forward, they will have to conduct extensive interview of every employee who quits to protect against future lawsuits. Civil rights groups, in response, argue that an employee who is essentially forced to quit shouldn't lose his/her legal rights. I'll report on the decision when it comes down.

And more news from the Why People Hate Lawyers Dept...As reported in the ABA Journal Magazine in an article by Wendy Davis, two Michigan women are suing some Detroit casinos alleging they are compulsive gamblers who had voluntarily agreed to be banned from casinos. But both of them were allowed to continue to gamble(and lose presumably). They are alleging the casinos should not have allowed them inside. Their complaints allege breach of contract(huh?) among other things. Their lawyer says he is looking to file additional cases in other states. [Although I should note that the Chicago-based 7th Circuit Court of Appeals recently ordered a plaintiff's attorney to show cause why he shouldn't be sanctioned for filing similar claim the court called "frivolous".]

The lawyers filing these cases offer this argument: gambling is a disease, like alcoholism. And it isn't nice to take advantage of sick people.

Hey, I represent plaintiffs - people who have been injured or screwed by an employer, insurance company or some other evil empire. I don't like throwing stones at other trial lawyers. But these suits, in my opinion, are...what is the word I'm looking for...oh yeah, stupid. Casinos can't legitimately be expected to screen each and every gambler to see if they have a gambling problem of some sort. I suspect most folks would take that as an invasion of their privacy. And perhaps more importantly, we don't need this kind of publicity. Lawyers are taking a beating in the press every day for being bloodsuckers. These types of lawsuits aren't exactly helping. So I'm hoping these cases get tossed out along with the other silly lawsuits I'm reading about, like:

"I eat at McDonald's twice a day and I'm fat; instead of exercising though, I will just sue that bastard Ronald McDonald;

"I only got 10 oz. of beer in my 12 oz. glass - I'll be part of one of them fancy class actions and make myself hundreds of pennies; and finally, (my personal favorite)

"My child has no discernible athletic talent of any sort and didn't make the team - I will demonstrate excellent parenting skills by shifting blame and suing the school district and coach."

The system is too crowded to begin with - legitimate disputes take years to get to court. Getting rid of these idiot cases would be a step in the right direction.

Contact me at markploftus@aol.com

Couple of interesting things I saw over the last couple of days...

The Tort Reform movement continues. Last week Sen. Lindsey Graham(R-S.C) introduced legislation in the United States Senate where the losing party in a federal court case would be faced with the possibility of paying the other side's fees. Of course the good senator referenced lawsuits that are designed to "shake someone down" for a settlement. That argument completely ignores those situations where there is a legitimate dispute with compelling arguments on both sides. In that situation, it isn't fair to burden the loser with fees. Stripped down to its bare essentials, this is just a way to further deny ordinary people access to a courthouse.

Now from the Why People Hate Lawyers Dept...A blog entitled Overlawyered proclaims its job as "Chronicling the high cost of our legal system". One of the cases it reported last week came out of Mercer County, New Jersey. In this particular case, one Jennifer Besler alleged that her high school basketball coach's request to lose ten pounds caused her to develop an eating disorder that lasted 8 years. I know what you are thinking - this is fiction(exactly my reaction). The article noted that the jury awarded $3 million(yes I said million) and held the school district responsible for just under half of the award, not quite $1.5 million dollars. Have to admit I was stunned when I saw the result. An eight year eating disorder because her coach yelled at her? Wow. Aren't coaches supposed to yell? Isn't that in the job description?[See Knight, Bobby and Ditka, Mike]. The only coach I can think of that will refrain from yelling would be Stuart Smalley("you're good enough, you're smart enough and darn it, people like me).

And out of Madison Wisconsin... Buckling from University pressure, 24 campus bars near the University of Wisconsin agreed to stop cheap-drink promotions on the weekends. So guess what? A Minnesota firm files an antitrust suit accusing the bars of "unlawful restraint of trade" and "price fixing". Are you kidding? Is their position really going to be that the University of Wisconsin students couldn't get enough alcohol? Have they ever been to Madison? Or anywhere in the state? If so they would have figured out that no fancy "price-fixin'" would ever prevent any self-respecting University of Wisconsin student from getting sufficiently intoxicated. Those kids have traditions to uphold by God! My guess is that lawyers in Minnesota simply don't have enough to do.