The Prevalence of Sexual Harassment

Sexual harassment is always in the news in the US.  But the US is not alone in having a problem.  In the past week to ten days, there have been numerous news stories about international sexual harassment issues.  Topping the list are sexual harassment claims against members of the Israeli government.  The Israeli Justice Minister and Israeli President are both under investigation for separate incidents of sexual harassment.  In the Czech Republic, a new study found that one-quarter of their workers were the victim of sexual harassment.  And women in India and the Cayman Islands are pushing for increased protection.

The increased news of sexual harassment leads to many questions.  Is sexual harassment becoming more frequent, both here and abroad?  Or, is harassment merely being reported more as women’s rights increase on a global scale?  Does (or should) the fact that sexual harassment occurs on a global scale affect how we address sexual harassment claims at home?  Certainly food for thought for those interested in the prevention of discrimination.

Katrina claims – revisited

With the one year anniversary of Hurricane Katrina, the handling of Katrina claims continues to be in the news.  Tonight’s episode of 20/20 will feature the claims of two former State Farm insurance adjusters who believe State Farm committed fraud in the handling of Katrina claims.  Among other things, the adjusters allege that State Farm hid engineering reports that would have supported coverage for policyholders and pressured other engineers to make findings beneficial to the company, including telling engineers that their invoices would not be paid if reports were not changed.

It will be interesting to see what, if any, reaction anti-lawsuit reporter John Stossel will have to his own show’s story.

Frivolous Lawsuit Defenses

Tort reform advocates are always quick to point blame for frivolous lawsuits.  But they never address frivolous defenses — unnecessary conduct by defendants that drive up the costs of all litigation.  But one case last week is making some news and shedding light on some of these abuses.

On August 18, 2006, Judge Leonard Davis,  a federal district court judge in Tyler, issued an opinion in a patent infringement case against Microsoft.  Judge Davis’s opinion outlines many litigation abuses by Microsoft including findings that:

1.  Microsoft delayed in producing witnesses for deposition, including only allowing one witness to be deposed the Sunday before the Monday trial started.

2.  Microsoft failed to provide important documents and data to the plaintiffs as required by the rules, and even offered false testimony that some of the data did not exist.

3.  Microsoft offered many instances of false or questionable testimony.

4.  When the parties were required to designate their trial exhibits, Microsoft designated 3,449 potential exhibits in a 283 page exhibit list.  At trial, they only offered 107 of these exhibits.  The court found that Microsoft intentionally misled the plaintiff and the court by trying to hide their real trial exhibits in their overwhelming list.  The court noted that it was unfair to the plaintiff and created a huge unnecessary burden on the court and its staff.

Based on these findings of litigation misconduct, Judge Davis awarded the plaintiff $2,300,000.00 in attorneys’ fees.  In addition, Judge Davis awarded the plaintiff an additional $25,000,000.00 in “enhanced damages” based in part on this conduct and in part on the jury’s findings that Microsoft willfully violated the patents in issue.  After these awards and the actual damage awards, the total award will be over $140,000,000.00 plus interest.  A complete copy of the order is graciously hosted by the patentlyo blog. 

Pattern of Greed

Following up our post on Trent Lott, the insurance industry’s conduct in relation to Hurricane Katrina continues to be in the news.  Yesterday, the grassroots group People Over Profits released their report Pattern of Greed:  How Insurance Companies Put Profits Over Policyholders.  The report outlines the group’s complaints about how the insurance companies handled claims relating to Katrina and other natural disasters.  The report concluded:

It’s been a year since Hurricane Katrina swept across the Gulf Coast, leaving historic levels of death and destruction in its wake, and some in the insurance industry haven’t made good on their promise to compensate area residents who find themselves near ruin.  While the insurance industry enjoys record profits and bulging bank accounts, too many people are left waiting for the settlements that will help them get back on their feet.  It’s no surprise.  As this report relates, the insurance industry has made a practice of collecting billions of dolalrs from policyholders over the years and then stiffing them in their time of greatest need.  Hurricane Katrina is just the most recent example.

One of the most disconcerting parts of the report are allegations by many, including Mississippi Attorney General Jim Hood, that insurance adjusters were cajoling victims into signing forms that acknowledged their homes sustained flood damage by saying that the forms were necessary for them to immediately receive their checks.  These forms can become important.  The issue in most of these cases is “What caused the damage?”  Generally speaking, if the homes were damaged by wind or water falling into the house (for example, rain through a torn off roof), then the insurance policies cover the damage.  However, if the home is damaged by rising flood water, then the damages are only covered by flood insurance and not typical homeowners’ policies.  Because of this, the insurance companies use the forms to deny coverage. When the insureds, who don’t really understand the difference between rising flood waters and flooding in the house due to rain, sign these forms they are potentially signing away their right to recovery.

Bloomberg also published an article today about the issue.  In its summary of the issue, the article states:

As surely as Katrina transformed the Gulf Coast with 125- mile-per-hour winds and storm surges as high as 28 feet, clashes over insurance policies are shaping the region’s recovery, according to bankers, public officials and aid groups.

Disputed settlements, rates that have soared as much as 500 percent and insurers’ reluctance to write new policies in storm- prone areas are forcing people to move away from coastline homes and inner-city New Orleans neighborhoods, they say.

Interestingly, the article contains another complaint from Senator Trent Lott:  “The insurance industry — State Farm, Allstate, Nationwide — has been the most unresponsive, insensitive I’ve ever seen.”

The Black Box — on your car

Almost everyone has heard about investigators searching for the “black box” after a plane crash.  What few people know is that many vehicles on the road today have similar capabilities.  That could change.  The National Highway Traffic Safety Administration announced yesterday that, beginning with year 2011 models, manufacturers will have to disclose the existence of black box technology in their vehicles. 

Almost 65% of the 2005 model year vehicles included black boxes.  These boxes typically collect the speed of the vehicle, whether brakes were applied, whether airbags deployed, whether signal devices were used, and the Delta V (or change in velocity) of the vehicle at a point of collision. 

There are numerous philosophical discussions about the use of black box technology and whether it infringes on the public’s right to privacy.  Regardless of those debates, black box investigation has become very popular in serious vehicle collision cases where the cause of the wreck is controverted.  The data is particularly helpful when the victim is killed and not able to controvert the other driver’s version of the wreck.  

Unfortunately, the data in black box recorders can be written over if not timely retrieved.  Therefore, it is critical to quickly contact an attorney or expert so a qualified person can retrieve the data while it is still there.  

Pregnancy Discrimination

As a result of a large settlement by Verizon, pregnancy discrimination has been a hot topic in the legal and popular press over the last few months. While most employers are aware that they can’t discriminate based on age, sex, or race, many employers and employees are unaware of the Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act (the standard federal discrimination law). The Pregnancy Discrimination Act, which only applies to employers with enough employees to pass the threshold test, provides that discrimination on the basis of pregnancy, childbirth or related medical conditions is unlawful sex discrimination under Title VII.

Though people would like to think that society is making progress against discrimination, pregnancy discrimination and the resulting suits are on the rise. A July article wrote:

A study released this month finds a nearly 400 percent increase in the past decade in lawsuits involving family responsibility discrimination, from 97 cases in 1996 to 481 last year. A majority of cases involve pregnancy, says Cynthia Calvert, deputy director of the Center for WorkLife Law at the University of California Hastings College of Law, which issued the report.

If you are an employer or employee and seek more information on pregnancy discrimination, a good starting point is the EEOC website.

What’s Good for the Goose….

There are numerous stories about “tort reform” supporters who see the error of their ways when they become the victim.  The latest story is that of United States Senator Trent Lott.  Lott, a Mississippi Republican, has been on record as being a supporter of tort reform.  But his tune may be changing.

In a news conference yesterday, Lott expressed his disappointment with how slow lawsuits against insurance companies are progressing in the wake of the Katrina disaster.  The senator stated that he believed the slow pace of the claims was hindering the reconstruction of the Gulf coast. 

More surprising, Lott, a former insurance defense attorney, noted that he was shocked that insurance companies were not regulated by federal law and that insurance companies might actually collude with one another.  This criticism is nothing new for attorneys who have been battling insurance companies for years.

Lott has declared that the insurance industry deserved investigation.  Whatever his motive (not only do Lott’s constituents have claims, but he has his own lawsuit pending against State Farm), we welcome increased protection for consumers. 

  

Spine University

Many of our personal injury and medical malpractice clients suffer from some type of back issues.  An orthopedic group has set up an online Spine University that provides a wealth of information that clients might find helpful.  The site includes information on the structure of the back, tests, and medical care for various back conditions set out in plain, easy-to-understand language.  If you or a loved one has back problems, it is worth checking out.

The Life of a Trial Lawyer

Today, the whole firm feels like the bride that was left stranded at the alter.  We were supposed to start a three week trial yesterday.  It is a complicated case, originally filed in September 2004, with over 10,000 documents exchanged between the parties.  We have all (attorneys and staff) cut summer vacations short and worked feverishly to prepare for the trial.  We’ve been working particularly hard in the last month to six weeks— working long days and weekends preparing motions and briefs, poring over documents, and contacting witnesses.  

In our county, we have a central docket — the cases are not assigned to a particular judge, but rotate among the available judges.  This helps move the cases through the system.  So Monday morning, we proceeded to the courthouse and went to docket call to get our assignment of a judge.  All 6 attorneys involved in the case announced to the court and the judicial clerk that we were present, that we expected the case to take three weeks, and that we were ready to go.   After hearing announcements from the attorneys on the other cases, the judge briefly took a recess so she and the judicial clerk could discuss “assignments” of the cases to the available judges.

After the recess, the judge and clerk came back into the courtroom and dramatically called all the attorneys in our case to the bench.  Once up there, she told us that, due to scheduling and summer vacations, there weren’t any judges that were scheduled to be in town for three straight weeks. Because we didn’t have a judge, we couldn’t go to trial.

And that was that.  We did a little scrambling to come up with creative solutions so that we could try the case, but it was all for nought.  The trial has been re-scheduled, and we get to go through the process again.

Medication Errors

Study after study shows the frequency of medical errors.  However, a recent study by the Institute of Medicine brought to light the alarming rate of medication errors.  According to the study, medication errors affect more than 1.5 million Americans annually, killing thousands.  The rate of error was particularly surprising in hospitals.  The report found that “when all types of errors are taken into account, a hospital patient can expect on average to be subjected to more than one medication error each day.”  The report found that the annual economic cost of these hospital errors exceeds $3.5 billion annually.  

Fortunately, the Institute suggests some fairly painless steps that can help prevent errors, including (1) maintaining a list of medications that you take; (2) making sure you really understand the risks of the medication you take; and (3) make sure you know the reason you are taking each medication.