Advice to Plaintiffs
Over 1 billion people per month reportedly use Facebook. This is a number that Facebook claims. Not surprisingly, lawyers and law firms also use social media to dish up dirt on the other party. Usually an internet search on a party starts with Google, which quickly leads the investigator to find the subject’s Facebook page.
A Virginia lawyer was forced to pay $542,000 in sanction for “obstructionist” conduct when defense counsel specifically requested photographs from plaintiff Isaiah Holt’s Facebook page. Lester Holt and his late wife’s parents had filed a lawsuit against a concrete company. That case resulted in an $8.5-million award to Lester and the parents of Lester’s wife, Jessica.
Lester was driving west on a highway to take his wife to work June 21, 2007, when a truck filled with liquid concrete and traveling east crossed the centerline and tipped over onto the Lesters’ vehicle. Jessica Lester later died from her injuries.
Lester originally won $10 million in a wrongful death suit against a truck driver whose rig flipped, killing Lester’s wife Jessica on the road. Allied, the truck company, specifically requested printed copies of Lester’s Facebook page. Lester’s lawyer was likely concerned that the photo of Lester at a party (after his wife died) where he wore a t-shirt that said “I love (represented by a heart) hot moms” suggested that Lester wasn’t too heartbroken over his wife’s death.
This is a cautionary tale on so many levels. One is that you never know who may have the right to access your social media. That party may then do whatever they can to distort the truth with the little information that they have.
The votes are in for the popular vote for the American Bar Association (ABA) Trial Practice Category of the 5th Annual Blawg 100. Karen’s now famous blog, “The Velvet Hammer,” garnered almost 100 more votes than the second most popular blog.
Now, see for yourself, if you haven’t already checked it out. Once you do, you might just understand why Karen’s Velvet Hammer blog is addictive. Readers email Karen daily, suffering from “withdrawal” when she allows too many days to go by without posting to her blog.
Yesterday’s Seattle Times article indicated that over 70 boaters in Lake Washington were arrested this Sunday for boating under the influence (BUI). This story is a sad reminder of the many clients that we see come through our doors at SKW, whose injuries or loved one’s death resulted from a senseless boating incident. We have handled a number of cases involving drivers of boats, who have been drunk or on drugs and killed/injured passengers or others in the waterway.
When on the waters, boaters may forget how lethal their boats can be when their judgment is compromised due to alcohol or some other substance.
To anyone who ever navigates the waters, remember that it’s extremely dangerous to drive a boat while drunk. In fact, it’s as bad if not worse than driving on a roadway, which is a solid surface with lanes of travel, signage and lights.
Just when you might have thought that NFL’s woes were over with the end of its 136 day lockout, 75 players and some of their wives filed a lawsuit in L.A. last week for negligence, fraud, and liablity. In addition to NFL, Riddell, the well known helmet maker and the supplier of helmets to NFL, is named as a defendant in the lawsuit.
Allegedly, NFL knew about the harmful effects of concussions as early as the 1920s, but intentionally hid related information from coaches, trainers, players and the public. The suit seeks unspecified damages.
As evidenced by comments on this story at MSNBC and other news sites, people are already likening this lawsuit to the McDonalds hot coffee lawsuit. (Sadly, those drawing the parallel remain woefully ignorant by the so called “frivolous lawsuit” of the 79 year old woman Stella Liebeck, who sued McDonalds.)
Interestingly, the NFL created the Mild Traumatic Brain Injury Committee back in 1994, which studied the long term risk of long term brain injury to players. According to the complaint, the Committee published false and deceptive reports, to mislead the public along with Congress and the players.
In 2007 players received a pamphlet that pointed to the Committee’s research papers, stating, “Current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems if each injury is treated properly.”
However, from the start of last season NFL players could read about how concussions could lead to depression and early onset of dementia, which “can change your life and your family’s life forever” from posters in every team’s locker room.
For many reasons, this lawsuit is one to watch.
The Washington State Supreme Court today filed its opinion in favor of SKW medical malpractice client, Ms. Lisa Unruh.
At nine years old, Lisa Unruh began seeing Dr. Cacchiotti. Because of a severe underbite, her lower jaw was growing faster than her upper jaw. Cacchiotti put Lisa on a treatment plan with braces from 1995 – 1999 with her final visit with him in November 2000. Because of her braces, the roots of her teeth were essentially destroyed. Lisa and her stepmother believed the problems were due to Lisa’s hereditary predisposition to these problems.
In the years that followed, various doctors informed Lisa that her prior orthodontic care had caused her root resorption. However, not until an orthodontist in 2006 took the time to explain the etiology of Lisa’s problem did she realize that Cacchiotti’s negligence was the reason for her root resorption. The bottom line was that her braces were in place for too long.
Ms. Unruh filed a lawsuit soon after realizing the actual cause of her ongoing orthodontic issues. When moving for summary judgement under the statute of limitations, Cacchiotti prevailed.
On appeal, Cacchiotti raised another basis for dismissing Unruh’s claim based on the eight-year statute of repose (enacted in June 2006). RCW 4.16.350, which contained the statute of limitations for medical malpractice claims was amended to include this statute of repose.
Among a number of arguments, Cacchiotti claimed that the 2006 nontolling amendment of RCW 4.16.190 did away with the effect of Unruh’s minority on the tolling of the statute of limitations because the amendment applied retroactively to eliminate tolling during Lisa’s minority. The state Supreme Court disagreed, citing Hanford v. King County, 112 Wash. 659, 662 (1920): “[T]he limitation of the new statute, as applied to pre-existing causes of action, commences when the cause of action is first subjected to the operation of the statute…”
Although her statute of limitations was tolled due to Lisa’s minority and her 90-day notice of intent to sue, she needed the tolling proved by her request for mediation, for her action to be timely. The Supreme Court concluded that she timely filed her claim within the statute of limitations. The 2006 nontolling amendment to RCW 4.16.190 did not eliminate tolling during Lisa’s minorioty. Her notice of intent to sue and request for mediation effectively tolled the statute of limitations until she filed her lawsuit in September 2007.
SKW personal injury lawyers, Paul Whelan, Ray Kahler, and Garth Jones obtained an important victory for Ms. Unruh. This successful result will also help many medical malpractice clients navigating similar facts with regard to RCW 4.16.190. Kudos to Paul, Ray, and Garth!
This weekend I got to see my last movie at the Seattle International Film Festival. It was “Hot Coffee,” a documentary by Susan Saladoff. It made me incredibly proud to be in this profession and to work with some of the best trial lawyers in the country.
The movie is an absolute must-see. Period. Full stop. When the DVD comes out (later this summer), run, don’t walk to buy it. Better yet, you can see it if you have HBO later this month. It is not a dry, boring documentary: Al Franken and Paul Grisham keep things lively.
Although I work for a plaintiffs law firm, even I had misconceptions about the infamous “hot coffee” lawsuit against McDonalds. This documentary, however, is not just about opening everyone’s eyes to the jaw dropping injuries that Stella Liebeck, the then 79-year old woman sustained from spilling some scalding hot coffee on herself. It reveals how McDonalds had previously received 700 complaints about the ridiculously hot coffee.
Moreover, the film shows how some corporations have spent many hundreds of million dollars on distorting the truth about tort claims — from “tort reform” to caps on damages. Trial lawyers are conveniently pegged as the villains, while insurance companies are portrayed as the victims: a comedy and utter tragedy at the same time.
A doctor specializing in burn injuries explains in “Hot Coffee,” that the holding temperature for coffee was so hot that at best, if the coffee touched one’s skin for a few seconds, one would suffer 3rd degree burns. Regardless, McDonalds chose to ignore the obvious threat to its customers’ safety until brave Ms. Liebeck attempted to hold them accountable.
The film also features a couple of other poignant stories: One, about an ex-Halliburton worker who was brutally raped by her coworkers in Iraq; but denied the ability to sue her employer/employees thanks to a mandatory arbitration clause. The other story is a needlessly tragic situation, where one twin boy was brain damaged in utero, because of a negligent doctor. That family was essentially robbed of the jury verdict due to the state’s cap on damages.
Buy this DVD for all of your friends, family, neighbors, etc., so that they learn how many corporations are attempting to dismantle the civil justice system.
In the “old days,” plaintiffs were often shocked when judges ruled they had to turn over their personal diaries to the defense lawyers. Their deepest most personal thoughts were laid bare before the scrutinizing eyes of the defendants, their experts, and sometimes juries.
Facebook is the new diary. And defense lawyers want everything ever posted to a plaintiff’s profile. Because social networking is relatively new, the courts are not uniform in how they treat posts.
In New York, one judge recently ruled the defense was entitled to dig through Facebook:
“Plaintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense of the action.”
Some courts refused to grant these types of discovery requests, calling them “fishing expections.” But there seems to be a growing trend favoring the defense.
If you are in litigation, it is wise to discontinue your social networking until the end of the case. Alternatively, use the highest privacy settings available. And do not post anything related to your case or that may be used against you.