TortsProf Blog

Digging Deeper, Defamation Suit Filed by Rakofsky

After by virtually all accounts being incompetent in his attempt to present a defense to murder charges, Joseph Rakofsky chose not to focus solely on how not to do that again, but instead has sued virtually everyone who's mentioned his adventures in D.C. court.  That includes Eric Turkewitz, who has, to say the least, an answer for Rakofsky.

You can find the complaint in what has been dubbed "Rakofsky v. Internet" here.

--BC

Struck By Stripper's Stiletto; Suing

One Charles Privette is suing the tastefully named "Booby Trap" strip club in south Florida after he was injured by a dancer's shoe, which allegedly "flew off during a pole dance, shattered the mirrored ceiling and caused glass and the shoe to hit him."  The plaintiff's attorney, Omar Demetriou, says in another story that "what exactly caused the dancer's shoe to fly off is unclear."

The club acknowledges that Privette was slightly injured, but also observes that one paramedic stated, "I can't believe you even called us for this."  Privette seeks $15,000 in damages.

--BC

Personal Injury Roundup No. 1 (8/1/2008)

Welcome to the first Personal Injury Roundup (and, like Eric, I've no idea whether it should be "round up," "round-up", or "roundup," but let's go with "roundup") on TortsProf.  We hope to maintain the quality of his year doing it and that of Brooks.  As always, but especially for this, we'd love suggested links; e-mail addresses are off to the left.

It's getting to the end of summer, with all of us scrambling to finish various pieces, but it's still an interesting week in TortLand.

Reform, Legislation, Policy

• Public Citizen criticizes the pro-arbitration analysis performed in recent Chamber studies.  [Public Citizen].
• Eric Turkewitz's op-ed published in regional NY paper; Ted Frank starts a dialogue on the statistics used within; commenters include Turkewitz and people from Public Citizen, originator of the stat in question [NY PI Law Blog, Overlawyered].
• Reforms in New Zealand [SSRN].
• Congress sends president bill banning lead, etc., in toys [AP, see also this week on TortsProf, and two-plus years ago on TortsProf].

Discovery

• In a civil suit, what would have been said about this case without video?  [Simple Justice]
• Six Flags discovery muddles along; 77 deps and at least 18 more months until trial on an accident that happened over a year ago [TortsProf].
• Bad documents from Zyprexa production in Alaska suggest avoidance of diabetes talk by reps [WSJ Health Blog].

Experts & Science

• Ongoing discussion of the "pharma-free expert list" prepared for journalists; most focuses on the import, or not, of it including some who have been paid litigation experts for plaintiffs [TortsProf, Beck & Herrmann, Tort Deform, Pharmalot, and HealthNewsReview.org (the list is there)].

Trials & Settlements

• An update on the Kivalina global warming litigation:  Defendants have moved to dismiss arguing no cognizable tort.  Hearing is scheduled for Dec. 9th. [Point of Law]. 
• Libya & U.S. are close to a settlement relating to 1980s terrorism [WSJ Law Blog].
• Mirapex/compulsive gambling bellwether trials start and one ends with a plaintiff's verdict [WSJ Law Blog; Pharmalot (notes $8.2 million verdict, evidently including punitives).

Appeals

• $16 million verdict against Allstate upheld; could have settled the case for $50K limits [KansasCity.com].
• ScotusBlog discusses and links to Sharkey's Riegel piece and notes Levine's argument date (Nov. 3) [ScotusBlog].

Damages

• The Tennessee Supreme Court upheld a $13 million punitive damages award against Chrysler in a suit claiming that a collapsing minivan seat caused the death of a eight month old baby.  [Point of Law, Overlawyered, ABA Journal].   Chrysler plans to appeal to the U.S. Supreme Court, with Ted Boutrous of Gibson Dunn at the helm.  [AmLaw Daily].

Goofy Stuff

• Real earthquake interrupts fake judge [YouTube].
• Ben & Jerry's marketing people are pretty sure the lawyers wouldn't like that video [Turkewitz, and read the URL, Ted].
• How I ended up in a chicken costume [Spare the Rock, Spoil the Child].

Shameless Self-Promotion (favorite posts of this week)

• Bill's: Okay, it's before this week, but hey, it's the first time we've done the round-up: And with that, a surgeon's insurer's head explodes.
• Sheila's: No Punitive Damages for NY Smokers.

Thanks

For sending us stuff: Eric Turkewitz, Brooks Schuelke, and anyone else who did.

Hey, that was fun.  See you next week.

--BC

And with that, a surgeon's insurer's head explodes

Just imagine your day if you are the insurer for Steven Kirshner, an orthopedic surgeon. You're filing through the complaints filed against your various insureds -- malpractice, failure to diagnose, failure to treat properly, and...huh?

Putting a temporary tattoo of a red rose on a patient's belly while the patient was anesthetized?

Yikes (via Philly.com).

The doctor doesn't deny it, with his lawyer saying that the tattoo "was intended just to make the patient feel better" and that he's done it to other patients, none of whom have complained.

Arthur Caplan of Penn: "You cannot do something like this even as a joke."

(My daughter, on hearing the basics: "It'd be all right if it was a Radio Adventures of Doctor Floyd tattoo, because then she could find out about a great show!")

(hat tip Rick Linsk)

--BC

50 Cent, Others Sued for Promoting Gangsta Lifestyle

Via ATL, Reuters reports that the victim of an alleged battery by one "Yayo," apparently a friend of 50 Cent and member of his hip-hop group, has sued both the rapper and his label for promoting a violent lifestyle.

In related news, I am contemplating suing all organizers of science fairs for causing me to be nerdy and, thus, the obvious target for junior high beatings. Sound good?

The lawsuit actually may not be quite that crazy (though it's still pretty crazy, at least as reported) -- keep in mind that Yayo allegedly was part of Fitty's group and, according to the suit, "The members of G-Unit, including defendants Yayo and 50 Cent, encouraged, sanctioned, approved and condoned its members threatening violence, and or engaging in violent acts in furtherance of its business." That last bit -- "in furtherance of its business" -- may be the link that gets it to potential vicarious liability rather than being the "media makes people mean" argument. And the suit alleges that the battery was triggered by the victim wearing a shirt for a rival group. Was it in furtherance of the employer's interests?

--BC

Sebok on "New Duty" for New Jersey Restaurants to Protect Bar Patrons

In this week's Writ Column on FindLaw, Tony Sebok analyzes an interesting dram shop case in New Jersey:  Bauer v. Nesbitt.  As Sebok explains, Bauer involved several young men who were drinking at the C View Inn in Cape May, NJ.  One young man, James Hamby, was visibly intoxicated.  He left with his friend Frederick Nesbitt, who was not visibly intoxicated and - to the restaurant's knowledge - had been drinking soda all evening.  Nesbitt crashed his car, killing Hamby.  Hamby's estate sued Nesbitt and the C View Inn under New Jersey's Dram Shop Law.  The trial court dismissed the suit against the C View Inn, but in a recent opinion, the appellate court reversed.   

As Sebok notes, the appellate court "held that the risks that the Dram Shop Act was intended to prevent were not just accidents resulting from drunk-driving, but also any accidents that could foreseeably result from intoxication."  Sebok argues that the appellate court "created a new duty in Bauer. It essentially held that since Hamby, the passenger, was visibly drunk, the bar had a duty to protect him against his own bad judgment which led him to accept a ride from Nesbitt, the driver. The problem with this logic, however, is that while Nesbitt was too drunk to drive, and Hamby knew it, the staff at the bar did not."

The full column analyzes the underlying rationales of the decision, the precedents cited by the court, and the potential policy implications.  Give the column a read!

- SBS

"Slanderous Kook: I'm a Slander Victim"

That's The Smoking Gun's headline, and it does a nice job of summarizing the story of Larry Sinclair, a Minnesota man who first made (unsubstantiated) allegations of doing various illegal things with Barack Obama and who has now sued Obama, Howard Dean, and another fellow who I assume to be a DNC media person of some sort, for defamation. I note that the case, filed pro se, has been assigned to my judge. One of those days I don't really miss clerking.

--BC

Don't Like Web Content? Try Suing Google

Techdirt reports that two Australian real estate agents are suing Google for linking to an allegedly defamatory article about them.   The suit has been filed in Australia and appears to bring common law defamation claims against Google.  (Via WSJ BizTech Blog).

- SBS

Assumption of the Risk in Jello Wrestling

A great teaching opportunity on assumption of the risk from WNBC (New York):

... Avram Wisnia was an NYU junior in 2004 when he and his dorm mates organized a party called "Beach Bash." While horsing around a kiddie pool filled with gelatin, Wisnia was pushed and shattered his hip....Wisnia's 2005 lawsuit blamed NYU for allowing the event and for having the school's food service provide the gelatin. But Manhattan Justice Carol Robinson Edmead ruled that Wisnia knew what he was doing.

(Via Walter Olson at Overlawyered).

- SBS

Chuck Norris Cannot In Fact Do a Wheelie on a Unicycle, It Seems

Okay, I can't make this quite be a torts suit, since it seems solidly in the IP camp, but I can't resist it anyway.  Chuck Norris is suing Penguin Books and the TruthAboutChuck.com website for the satirical "facts" about him, such as the unicycle-wheelie one above and the like ("Chuck Norris counted to infinity.  Twice.").

"Some of the 'facts' in the book are racist, lewd or portray Mr. Norris as engaged in illegal activities," the lawsuit alleges.

Norris, who rose to fame in the 1970s and 1980s as the star of such films as "The Delta Force" and "Missing in Action," says the book's title would mislead readers into thinking the facts were true.

"Defendants have misappropriated and exploited Mr. Norris's name and likeness without authorization for their own commercial profit," said the lawsuit.

The suit, filed in Manhattan federal court, seeks unspecified monetary damages for trademark infringement, unjust enrichment and privacy rights.

There.  That's my Christmas gift to you.

--BC

Suing Seven-Year-Olds for Fun and Profit

Wonkette notes the Boston.com AP story about the tale of a sixty-year-old lawyer for Reader's Digest suing a seven-year-old for injuries incurred on the ski slope.  The boy's parents say that all 48 pounds of him were skiing at perhaps 10 miles per hour.

--BC

Do Not Eat Within Thirty Minutes of Reading This Story

Honest, you really won't want to.  Especially not at Burger King.

The title is enough, isn't it?

Vermont man alleges he found condom in Burger King burger.

Ick.

--BC

Well, At Least She's Not Also Suing Rose Royce or Christina Aguilera & Missy Elliott

Via Wait Wait, Don't Tell Me, we learn of the frankly horrifying story of the dental patient injured when the dentist's drill goes a bit off course.  The alleged reason?

A dentist at Syracuse Community Health Center, dancing to the song “Car Wash” while he was extracting a patient’s tooth, lost the inch-long drill bit, which punctured her sinus cavity and came to rest by her eye socket, according to her lawsuit.

The NYT blog The Lede has more discussion, including an observation that the dentist's name is, amusingly, Dr. George Trusty.

I've got a dentist appointment on Friday.  Perhaps I'll ask that they turn down the volume on the radio...

--BC

Alienation of A Child's Affection: A New Tort?

The New Jersey Law Journal (via law.com) reports on a suit filed last week in the Law Division by a non-custodial parent against the child's mother (and custodial parent) for "alienation of affection."  Following a 2001 separation, the suit alleges that the children's relationship with their father was "damaged," "that he no longer has the relationship with his children he had previously."  The suit is based on negligence and intentional infliction of emotional distress theories, and seeks both compensatory and punitive damages. 

New Jersey courts abolished alienation of affection as a cause of action between spouses on June 27, 1935, and other states have also abolished the action.

However, at least one court seems to have allowed a claim like Segal's to go forward. In Raftery v. Scott, 756 F.2d 335 (4th Cir., 1985), a federal appeals court applying Virginia law affirmed an award of $40,000 in compensatory and $10,000 in punitive damages in an emotional distress suit by a New York man who alleged it took a year to find his child after his former wife absconded to Virginia while the divorce decree was pending. By the time he was able to see his child, the ex-wife had allegedly turned the child against him, he alleged.

But a Wisconsin court went the other way in 1987, refusing, in Gleiss v. Newman, 415 N.W.2d 845 (Wis. Ct. App. 1987), to allow a noncustodial parent to sue the custodial parent and his new wife for emotional distress and alienation of affection.

- SBS

Dry Cleaning Pants Plaintiff To Lose Job As Judge

The Washington Post reports that Roy Pearson, the plaintiff in the dry cleaning pants lawsuit, will not be reappointed to his position as a DC administrative law judge. (Prior posts here,  here, here and here).  No formal letter has been issued, however, so any decision is not yet final. 

- SBS

You May Already Be Pacman Jones's Co-Defendant

...at least, given the range of the people and entities on the wrong side of the "v." in the suit filed against the suspended Tennessee Titan/idiot.  John Day has some commentary on the suit, where a manager of a strip club in Vegas has sued Jones, the Titans, and the NFL for his injuries in a shooting outside the club.  But even the suit against Jones is tenuous at best, since he was not the shooter (at most he started the melee inside, it appears).  But the basis for the suit against the NFL and the Titans is, well, you be the judge:

"The fact that the NFL and the Titans did not punish Adam 'Pacman' Jones until after Tommy was paralyzed is a proximate cause of Tommy's injuries," attorney Matthew Dushoff said before a news conference in suburban Las Vegas.

Maybe a factual cause, sure.  But getting past duty and legal cause?  Good luck with that.

--BC

Another Floral Lawsuit - Lawyer Bride Sues Over Pastel Hydrangeas

Yesterday's New York Times reports on a lawsuit filed by a lawyer-bride against her wedding florist.  The suit alleges that the florist used "pastel pink" hydrangeas instead of the requested "dark rust" in the table centerpieces.   

Their pastel colors clashed with the linens, favor boxes, wedding cake and décor at Cipriani 42nd Street, the luxurious restaurant where she and her husband, David, held their reception, Ms. Glatt said.

“The use of predominantly pastel centerpieces had a significant impact on the look of the room and was entirely inconsistent with the vision the plaintiffs had bargained for,” Ms. Glatt, a lawyer who practices under the name Elana Elbogen, said in the lawsuit, which she filed on behalf of herself, her husband and her mother-in-law, Tobi Glatt, who paid for the flowers.

The New York Post also covered the story.   After spending around $30,000 on the pretty pink flowers, the couple now seeks $400,000 in damages.

- SBS

   

When the Celebrity B-List (or C-, or D-) and Tort Law Collide, We're All Winners

You can't help but have a good day when you get to quote this lede:

Former "Survivor" contestant Jonny Fairplay sued Danny Bonaduce, alleging battery and emotional distress after Bonaduce tossed Fairplay over his shoulder at an awards show.

TMZ, naturally, has more, including the complaint.  (And NYPI Blog has the video, God bless 'em.)

--BC

More Litigation Against the Patriots

Our regional NFL team, the New England Patriots, already is dealing with a purported class action misrepresentation claim based on, well, something to do with the coach's admitted videotaping of opponents' defensive signals.

But now it gets better, with a prolific inmate pro se litigant going after Belichick for, among other things, placing a listening device in Donovan McNabb's soup (McNabb appears in ads for Campbell's chunky soup).  It's no snake head in the green beans, but it would be a surprise, no?

--BC

Misrepresentation Suit Filed Against Patriots

Like we New Englanders don't have enough annoyance with the videotaping of opposing teams' signs by the New England Patriots.  Now we have Jets fans filing lawsuits.

The lawsuit states that because other teams found illegal videotaping by the Patriots, Jets ticket holders should be compensated for all Jets-Pats games in Giants Stadium since Belichick became coach in 2000.

The two calculated that because customers paid $61.6 million to watch eight “fraudulent” games, they’re entitled to triple that amount - or $184.8 million - in compensation under the federal Racketeer Influenced and Corrupt Organization Act and the New Jersey Consumer Fraud Act.

Good luck with that.