N.Y Court of Appeals Rules on Attorney Misconduct
On February 12, 2009, the New York Court of Appeals answered two questions that had been certified to it by the U.S. Court of Appeals for the Second Circuit, both involving attorney misconduct pursuant to Judiciary Law Section 487 (Misconduct by Attorneys). In Amalfitano v. Rosenberg, NY Slip Op 01069 (2009). the questions were as follows:
No. 1: Can a successful lawsuit for treble damages brought under N.Y. Jud. Law Section 487 be based on an attempted but unsuccessful deceit?
No. 2: In the course of such a lawsuit, may the costs of defending the litigation instituted by a complaint containing a material misrepresentation of fact be treated as the proximate result of the misrepresentation if the court upon which the deceit was attempted at no time acted on the belief that the misrepresentation was true?
To greatly simplify the Court’s opinion, the answer is “yes” to both. Rosenberg allegedly tried to deceive the trial court by falsely claiming that his client had been a partner in the family business that was the subject of the litigation. Rosenberg relied on the common law to argue that plaintiffs could not recover against him because his attempt to deceive the trial court was unsuccessful. The N.Y Court of Appeals, however, agreed with the District Court that Judiciary Law 487 does not derive from common law fraud. Instead, it descends “from the first Statute of Westminster, which was adopted by the Parliament summoned by King Edward I of England in 1275.” After an erudite survey of the relevant legal history, the Court concluded that Section 487 “is a unique statute of ancient origin in the criminal law of England. The operative language at issue–’guilty of any deceit’- focuses on the attorney’s intent to deceive, not the deceit’s success.”
With regard to Question Number 2, the N.Y. Court of Appeals referred back to its answer to the first question, noting that “recovery of treble damages under Judiciary Law Section 487 does not depend upon the court’s belief in a material representation of fact in a complaint.” Because this action “could not have gone forward in the absence of the material misrepresentation, the party’s legal expenses in defending the lawsuit may be treated as the proximate result of the misrepresentation.” And so, Mr. Rosenberg would appear to be out of arguments, out of luck, and likely out of some serious money.
When You’re Lucky You Don’t Have A Medical Malpractice Case
One of the hardest things about my job is telling victims of medical malpractice that I cannot take their case. And what I do not say, although it is usually true, is that most other lawyers in my position will not take it, either.
It is not that I am unusually picky, or mean spirited. It is simply a matter of being realistic. The type of medical malpractice victim I’m thinking of contacts my office on a regular basis. He or she often has a compelling story to tell, such as the woman I spoke to recently whose primary care physician ignored her repeated complaints of frequent urination, an unquenchable thirst, and weakness with fatigue–all clear symptoms of diabetes–until she collapsed at home and had to be rushed to the hospital, where she stayed for a week, incurring substantial medical bills, and missing time from work. Luckily, she was able to leave the hospital in substantially the same state of health she was in before her collapse.
But it was difficult to explain to her that because of her good fortune, it would, in my opinion, not be a worthwhile endeavor to sue her primary care physician for malpractice. I explained (or tried, anyway) that to prove such a case, we would need to show not only that there was malpractice, and that the malpractice caused her injuries, but that the injuries were substantial and permanent enough to warrant the expense of bringing a law suit. Many of you know, as well as I do, that obtaining medical records, conducting depositions, and hiring experts are just a few of many costly components involved in the litigation of such a suit, and these expenses can run into the tens of thousands of dollars. Given a plaintiff’s responsibility to pay disbursements at the end, and the lawyer’s need to recoup and profit from his investment, a responsible medical malpractice lawyer cannot take on a case unless there are significant and permanent injuries to the plaintiff, or a significant interruption to the plaintiff’s ability to earn an income and support others. That is the cold, hard reality. And it is understandably difficult to accept for someone who has truly been treated negligently, as this woman had been.
What can you do in these circumstances if you are the victim of medical malpractice, but the damages are not significant enough to warrant bringing a medical malpractice case? One option to consider is making a complaint about the doctor to the New York State Department of Health’s Office of Professional Medical Conduct. Your complaint will be taken seriously, and you will likely need to appear in person to answer questions from investigators. But if you feel strongly enough that errors were mady by your doctor, and that those errors resulted in injury to you, this process may be worthwhile.
DAUBERT Serves Defendants Well In Medical Device Cases
Sean P. Wajert, of the Mass Tort Defense Blog, cites two recent federal cases to show that plaintiffs bringing products cases involving medical devices are not having an easy time meeting the Daubert standard.
Daubert forces judges to act as a filter of proposed expert testimony, so that so called “junk science” and untested theories will not see the light of day in the courthouse. While the principle is laudable, and necessary, it also results in plaintiffs’ attorneys having to jump through some barely attainable hoops.
As Mr. Wajert reminds us, courts will consider, among other things: whether the scientific theory can be and has been tested; whether the theory has been subjected to peer review and publication; the theory’s known or potential rate of error when applied; and whether the technique or theory has been “generally accepted” in the scientific community.
This can get complicated. You might think that explaining the failure of prosthetic knee would be relatively straightforward. But when a plaintiff alleges that the manufacturer’s sterilization of the product by gamma irradiation in the air caused it to fail, expert testimony is necessary to help the fact finder understand what took place. The court in Fuesting v. Zimmer, 2009 WL 174163 (C.D. Ill., 1-26-09) found that plaintiff’s expert had not sufficiently connected his conclusions to accepted principles. Gaps in the connection included, as pointed out by Mr. Wajert:
- How much radiation does to take to cause oxidation, and to what degree?
- How much oxidation must occur to render polyethylene more susceptible to delamination?
You get the idea. But Mr. Wajert makes an interesting point. When a court provides a second opportunity for a plaintiff to meet the standard after a motion or appeal, the court’s decision “provides a roadmap for the plaintiff on what holes to fix.” (Mr. Wajert is on the defense side.) He is probably correct. But with standards like these, is that unfair? Even if you were equipped with the legal equivalent of a GPS device, you still need to meet difficult standards.