Law And More

This June 30th - At least it ended

Since I knew that the Rhode Island Supreme Court lead paint ruling wouldn't be until this Tuesday or Wednesday, I assumed I could climb into myself and hang out in sad feelings. 

Two years ago on June 30th my dog Molly Mittens died of congestive heart failure.  The vet gave her 24 to 36 months.  She only got 26 of those.  So I felt we were both cheated.  She was the first creature, even among my other dogs, who loved me as much or more than I loved her. 

The pet medium Lisa Greene I consulted said Molly Mittens was no longer in pain and that she hung on longer than she was supposed to because she knew I'd be lost without her. She was right.  Of course, I feel guilty for not letting her go. That was a hot summer and she was having a rough time breathing.

Well, there was no climbing in for me.  A client, a noted attorney, had two assignments for me.  Of course, he gave a mixed message: No deadline but these are topical.  I could feel him breathing down my neck all the way from his office on the Left Coast.  The work got done.  It always does.  And I earned a nice wad of money.  But the depressive I am always prefers the sad default. In my family, it's an art form.

Pre-RI SC Ruling: Lead Paint Watchers Let It All Hang Out

Maybe it's the frustration of wating for the Rhode Island Supreme Court to release its ruling.  Maybe it's just the silliness of the whole thing, the two trials, pile on of motions, and the possibility of a third trial.  Whatever, lead paint watchers have reached the tipping point of verbal indiscretion.  Here is some of it.

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Wall Street Guru:

"Well, there's not much the paint companies can do about the prices of the raw materials.  But their whole problem was when they decided to not put on any defense.  I still don't understand that thinking.  Maybe they thought if we show how unconcerned we think this suit is the jury will figure it's frivolous and dismiss it.  I'll quote another person: This was the worst decision since Queeg decided to after Moby Dick."

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Ohio Resident:

"I wonder if those jurors lose sleep at night.  Jane, you said that they were going to follow the post-verdict in the newspapers.  Their heads must have snapped backwards when they read how the Justices at the Rhode Island Supreme Court seemed to view the plaintiff's case."

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A Second Wall Street Guru:

"Right now the stock for Sherwin-Williams is at around 46, which means it's closing at about where it was 2 years ago.  If the Rhode Island Supreme Court ruling is bad, it's deja vu all over again.  If it's good, the stock will have a nice bounce.  Probably will wind up around 50, after the dust settles.

"But forget all the above if the oil prices keep going up.  All bets are off on what stocks will do in general or what the paint companies' stocks will do.  The oil is killing us all and the Asians and the Indonesians are finally getting it and cutting subsidies which will cause some demand destruction.

"Two problems remain. If Europe raises rates this week the dollar tanks even more and oil gets more expensive.  The other is the almost certainty that somewhere in the Mideast or Africa there is going to be major unrest and cause an oil shortage. I think those are the 2 biggest triggers right now.

"If Iran said today they were going to forgo nuclear weapons and allow inspections and play nice, it would drop the iol $20.  If Nigeria made peace with the rebels and Iraq got some major world oil companies in there to get production up where it should be, that would be another $10-15 down and if the Saudis got their new field on line and increased to 11 million barrels a day we could bery easily go back to $100 barrels and that's with the weak dollar. Now get the dollar back and all the above happen and we are back at $80.  The chances of that happening is 100-to-1. 

"Of course, if Israel goes and blows up Iran's Nuclear facilties, there will be war in the area for years and Saudia Arabia will have to take sides, in my opinion.  Then we shall see what we are made of.  If we finally do what we have to do to get off the reliance on foreign oil.  I think actually that will be the least of our worries if the whole Mideast blows up."

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A MatchMaker from Eastern Europe:

"I predict you will propose to one of those smart defense attorneys and settle down ghostwriting briefs for him." 

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Recently Axed Partner from a Washington D.C. Law Firm:

You were right.  Don't bring in new business and you're gone.  I thought my work would count for everything.  I remain in shock."

 

Notes from Prison: Lerach's request for special treatment for alcoholism

Yesterday imprisoned Bill Lerach's defense attorney John Keker filed a four-page motion with U.S. District Court of the Central District of California.  The Memorandum begins:

"Defendant William S. Lerach moves this Court for a recommendation that the Bureau of Prisons (BOP) place him in the Residential Drug Abuse Treatment Program (RDAP) at Lompoc, California, where he is currently serving his sentence."

John Gerstein in the conservative THE NEW YORK SUN reports that letters from medical experts document Lerach's struggle with "severe alcoholism" for over 20 years.  Those of us, such as myself, with a family history of "severe alcoholism" know that victims of with this "disease" - yes, the medical profession as well as the respected 12-step program Alcoholics Anonymous classify it that way - are experts at gaming the system. 

That system could range from the family one to institutions established to rehabilate them.  Regarding the latter, even those in prison offer better accommodations as well as the distraction of various forms of therapy than do what's provided for the rank-and-file. Rehab can be the convenient hangout for those who have no intention of altering their mindsets or behavior.

Given the extreme cleverness that Lerach has demonstrated during this legal career he's probably being even more clever about securing a better deal than his brethen in prison. Sure, booze is available in the slammer.  Sure other forms of mental illness such as depression and anxiety attacks go with the territory and they represent real suffering.  But why should Lerach be given this break? 

After all, he had more than 20 years to arrest this problem.  Probably during that time he perhaps should have has his law license pulled by the bar, at least until he demonstrated sustained sobriety.  Therefore his track record ain't too good.  I don't recommend investing any federal resources in this guy.  Anyway, every penal facility usually has regularly scheduled AA meetings.  If his doesn't, Lerach can start one.  There are also snail mail and telecommuting micro programs within AA.  Give this chance to someone who might make better use of it.  Anyone, who would want Lerach in the "recovery group?"

Disclosure:  I do volunteer work among recovering alcoholics, including corresponding with prison inmates.

 

Food - The Next Public Nuisance

Forget lead paint in older housing, guns proliferating in urban areas, GHG causing global warming.  Clearly the public-nuisance action is in food.  Aetna opened the door to that in agreeing to treat food disorders like any other mental disease.  There's not much to stretch here.  Any corporation which "feeds" this mental illness can be held accountable for causing a public nuisance. 

Of course, this isn't new.  It's just that the targeting of that monster continium which is the food industry - from processing plants to advertising a trip to Wendy's - never really got off the ground. In the April 2008 THE AMERICAN SPECTATOR, William Tucker points out, "Several new grounds for mass torts ...  suing McDonald's for making people fat - have sputtered and failed to gain traction."

What is new is that Aetna has probably introduced a game-changer.  The stakes are higher now that insurance companies are accounable for treating those who present themselves to their primary care physican or therapist as having a food disorder. 

Sure, there are ways of establishng criteria for what constitutes a food disorder.  But we clever porkers can and will find ways around that.  The notion of having low-cost or even free therapy and perhaps in-patient treatment for downing a half gallon of Peanut Butter Fudge Swirl Ice Cream followed by appropriate bowl time is too seductive for any of us craving attention, panaceas, and a weight loss or gain to resist.

There's every possibility the state attorneys general will have to step in and rid America of this public nuisance, one municipality at a time. At the end of this frenzy of litigation, food might wind up a controlled substance.

Aetna Opens Pandora's Box - I don't know anyone who doesn't have an eating disorder

Playing around with food starts when we are introduced to strained peaches and never ends.  That's why there is the Freshman 15 pounds, the porking-up after not making partner at The Firm, losing too much weight as a form of magical thinking, and wasting trillions of dollars in further magical thinking about getting our eating habits under control.  If you know anyone without an eating disorder, I'd love to interview that person for this blog.

Clearly in agreeing to treat eating disorders like mental illness, Aetna is opening Pandora's Box.  Today in the WALL STREET JOURNAL Law Blog, Dan Slater reports:

"In a recent settlement with some 100 New Jersey policyholders, Aetna has agreed to pay $250,000 in reimbursements to those whose claims were denied and to expand coverage for anorexia and bulimia."

The inpatient food-disorder treatment industry will surge.  So will class-action lawsuits contending some harm from food, from the healthcare providers, or even from the insurance agencies.  In America, food is the most commonly abused substance.  It always was and always will be.  Thanks to Aetna's caving, now determined people can obtain the attention they crave, multiple 28-day stays in a food rehab [I hear the food isn't bad], life-long therapy, and something deemed socially acceptable to obsesses over.

When Jurors - e.g. RI lead paint II - Perform Combat Duty

Jury duty is mandatory.  And it's a crap shoot whether those jurors wind up in a trial that proves at the time and afterward to be equivalent to combat duty.  For instance, Walter Olson brings up on Overlawyered.com jurors who have to review photos from horrific events and listen to testimony about it.  The result could be, states Olson, post-traumatic stress.  The solution, which is already offered to jurors in Washington, could be counseling services provided by the court.

But trauma comes in a variety of packages.  As the years go by I think about the combat duty which the six jurors went through during and especially after the Rhode Island Lead Paint Public Nuisance Trial II. 

To begin with, the proceedings went from November 1, 2005 until the Judge Michael Silverstein ruled against punitive damages way late in February 2006.  During that time, they endured testimony so tedious and redundant that spectators described it as "watching lead paint dry."  After one particularly boring morning of testimony, the deputy going down the elevator captured it all in one word: "Brutal." 

In addition, there were the frequent times that they were shipped up to the jury room.  They did not know how long they would stay.  When in court they were also twiddling their thumbs during the numerous sidebars. 

Then they had to cope with making a decision which they found impossible to make - unless they went through Judge Silverstein's instructions line by line.  After one deadlock they taped those instructions to the wall.  When I interviewed four of the jurors, they told me there had been a second deadlock.  The two female jurors came to the deliberations when they were ill not to cause a mistrial.

And good luck with that concept of public nuisance, which lawyers can't even figure out.  The jurors returned to court early during the deliberations and asked for it to be defined.  The Judge refused any further clarification than what was in the jury instructions.

The verdict they delivered, it turned out, neither the defendants nor the plaintiff was happy with.  Both approached the RI Supreme Court with a request for a new trial.

As soon as the gag order was lifted after the Judge ruled against punitive damages, those jurors were interrogated by just about everyone.  The attorneys, THE PROVIDENCE JOURNAL, THE NEW YORK TIMES, this blog were just a handful among the many trying to get interviews.  Believe me, I had to use every trick in the book to keep them on the phone.  If there ever has been interview fatigue, this jury suffered it.

Now, long after those interviews, they are there in RI reading about the post-verdict motions. Are they tormented by their decision?  Do they wonder if they should have just declared a mistrial like the jurors did in RI lead paint I rather than struggle so hard to come to a decision?  Are they angry at the Judge and/or the RI legal system for involving them in this process?

Perhaps the cruelest cut of all: The jurors were not allowed to keep the notebooks they were given during the trial.  The Silverstein court was in a minority of courtrooms at the time to permit jurors note-taking.  Some jurors filled up two books.  The foreman told me they were crushed when they found out they couldn't keep the notebooks.  All they were allowed to keep as a memory was a copy of the jury instructions.

Recommendation: The Superior Court of RI send a letter to the six jurors offering complimentary counseling services.

Disclosure: I am being called to jury duty in New Haven, Connecticut early August.

Medical Malpractice - Sincere Apology Cuts Lawsuits

The power of apology, along with some kinds of amends, is well-known in spiritual and 12-step programs.  Now, the health system is having similar great outcomes. 

The University of Michigan Health System, reports Kevin Sack in today's THE NEW YORK TIMES, has been among the medical providers experimenting with this approach which includes full disclosure of an error, a sincere apology, and some way of compensating the patient. Its number of lawsuits dropped from 262 in August 2001 to 83 in August 2007.  Among the other university health centers trying this out are Johns Hopkins, Illinois and Stanford. 

What tends to trigger lawsuits is not the error but the attempt at concealment.  When there is no cover-up, there frequently is no lawsuit.

RIP Eight Belles - You're Now With Barbaro

Should the spectator sport of horse racing be outlawed, just like cock- and dog-fighting?  Maybe.  Today Eight Belles ran with all her heart for the crowds.  At the end of the run, in which she came in second, she gave in to her injuries.  Those were so brutal that she was put down.  Now Eight Belles is with Barbaro.  Neither of them would be where they are if horse racing weren't legal in the U.S.

That RI 1.3% elevated blood lead level - What Changes?

Attorneys for both defendants and the plaintiff in the Rhode Island lead paint public nuisance litigation are likely busy bees right now.  They are revising parts of their oral presentations for the RI Supreme Court appeal on May 15th. 

The parts getting overhauled for the defense attorneys for Sherwin-Williams, NL Industries, and Millennium Holdings and the plaintiff attorneys for the state of RI are directly related to the 2007 statistics released by the RI Department of Health. Those show, reports John O'Brien at LEGAL NEWSLINE, that "only 1.3% of children tested [in RI] had elevated levels of lead in their blood, down from 6.6% in 1998."

For the defense attorneys, that means they can hammer in their oral statements:

• So where's the public nuisance if 1.3% of children tested have elevated levels of lead in their blood? That's down 22% from just 2006.  The whole contention that a public nuisance exists in RI because of the vestige of lead paint in housing comes under severe challenge.

• So why wasn't the steady and significant decline during the past several years brought to the attention of the jury in the second lead paint trial?  Defense attorneys claim that those figures in the LESS database had been available during that trial and for whatever reason had been kept from the jurors.  Instead, the plaintiff attorney Assistant Attorney General Neil Kelly asserted that the progress in the prevention of lead poisoning in RI had "reached a plateau."  Therefore, intervention, in the form of abatement, was imperative.

• Obviously, abatement is not needed, particularly abatement to the tune of $2.4 billion, which the plaintiff estimates in its abatement plan presented to RI Superior Court.

The plaintiff attorneys now have to hammer:

• Yes, a public nuisance did exist and still exists.  Perhaps one did exist at the beginning of the lead paint public nuisance litigation in the late 1990s.  But it will be difficult to present an argument that lead currently contributes to the presence of a public nuisance currently in RI. To do this would entail defaulting to rhetoric that even one case of an elevated level of lead in the blood is one case too many.  Good luck.

• That the numbers of a decline in new incidences of elevated lead levels [LESS Database] were available to the defense attorneys during the trial.  The plaintiff attorneys have to argue that if defense lawyers had been vigilant they would have known about the figure and if they had been persistent they could have obtained them. In addition, the assertion of a "plateau' condition would have to be defended. The LESS Database is a core point of contention between the two parties.  It was picked over during a two-day hearing in RI Superior Court in August 2006.

• The rationale for abatement of any kind.  Laws are on the books for the landlords to maintain their properties as lead-safe.  Defense attorneys argue that any other kind of abatement program eliminates the incentive for landlords to proactively prevent lead-paint hazards. Perhaps the best bet is to argue for a new trial for compensatory damages, that is, to recover the more than $26 million which three state agencies have already spent on the lead paint prevention, diagnosis and treatment.  However, if we read the defense attorneys' briefs rebutting the compensatory damages claim, this could be a tough sell legally.  If it's sold as a liberal argument about "fairness" and "doing the right thing," it perhaps could be sold to a RI SC.

In this long-running chess game, we are all eager to watch the masters' actual moves on May 15th.

Call Off Twinkies Hoarding - Its Maker Has Shot at Surviving

Many of us might have stuffed our freezers with Twinkies, fearing that its maker Interstate Bakeries Corp. was going to tank.  We can stop where we are.

Today, the COLUMBUS BUSINESS FIRST reports that Interstate has requested a bit more time to get its act together so it can reorganize and emerge from bankruptcy.  That's very good news for the continuation of such blockbuster products as Hostess Twinkies and Wonder Bread which builds strong bodies in myriad ways.

The company operates a plant in Columbus, Ohio, a place where we lead-paint watchers might have visited for the state's Supreme Court oral arguments on "117."  Columbus is also pursuing a lead paint public nuisance lawsuit against the former lead paint companies, including local son Sherwin-Williams.  And, during the past few weeks, the city has been in the news for an alleged sex harassment scandal in the office of the Attorney General Marc Dann.  Those with a quick eye for opportunity might organize a tour to the infamous condo in which the alleged incident took place last September.