1-855-864-8949

Poppe Law Blog

view all


Law News

more

Law We Know

Kentucky Accident Attorney

Ketucky Legal Malpractice Attorney

Kentucky Medical Malpractice Attorney

Accounting Malpractice Attorney

Unfair Insurance Practices Attorney

Kentucky Nursing Home Neglect Attorney

Video

General

more

Testimonials

  • I would like to take this opportunity to write to your law firm and thank you for coming through for me when I lost hope in my previous attorney. 
  • We will gladly be a reference for you, and we certainly will recommend you as the attorney to have in Louisville.  You have a gift in the way you are able to communicate with your clients and within the legal system.
  • My father would have been so proud to know that his case was driven home with such passion and genius.  Thank you for giving that jury every tool they needed to hold those people accountable for the torture they inflicted on my Dad.
     
  • Thank you, thank you, thank you, thank you, thank you, thank you...
  • You have now made it possible for me to rest assured that I have everything I need now and in the future to cover the expenses of my disability

more


Search:

www.poppelawfirm.com Web

print page

Kentucky Personal Injury News

Courier Journal Article on Poppe Law Firm $3.9 Million Bad Faith Verdict

Woman who sued doctor's insurer awarded $3.8 million
Ruling: Insurer acted in bad faith

By Andrew Wolfson • awolfson@courier-journal.com • June 6, 2009

When Debbie Daniels was scheduled to undergo a hysterectomy in 2003, her doctor suggested he do a "tummy tuck" as well.
Advertisement

But the obstetrician/gynecologist didn't tell her that he'd never been trained to perform the procedure that gets rid of excess skin and fat.

She also didn't know he'd been kicked off the staff of another hospital for doing tummy tucks without proper credentials -- or that he did the procedure unlike any other doctor, according to court records.

Two days after Dr. David Lee Grimes cut Daniels open and stitched her back up, her wound burst, leaving a basketball-sized hole in her belly 7 to 8 inches deep, one of her lawyers said. She had to undergo emergency surgery -- the first of many -- and be placed in a medically induced coma for a month.

Left permanently disabled, Daniels, then 39, a respiratory therapist in Paducah, sued her doctor. An expert witness hired by his insurance company told the carrier that she was "appalled" by what Grimes did -- that it was "inexcusable and indefensible," according to internal documents the company was later forced to disclose.

But for nearly two years, the company – -- American Physicians Assurance Corp., which insures many Kentucky doctors – -- refused to engage in settlement discussions. When it finally made an offer, after nearly two years, it proposed paying Daniels only $75,000, even though the company's internal documents showed it had valued her damages at $1 million, according to court records.

Unemployed, destitute and unable to keep her two children fed and housed, Daniels eventually accepted the $650,000 the company offered on the eve of the trial of her suit in 2006.

But she reserved the right to sue the company for the settlement delay. And on Wednesday, a Jefferson Circuit Court jury, after a weeklong trial and 11 hours of deliberations, awarded her $3.8 million, finding that the insurance company acted in bad faith by delaying payment of her claim when it knew its client was liable.

The verdict included $3,479,277 in punitive damages.
 to do the right thing and treat people fairly."
Advertisement
Quantcast

One of her lawyers, Hans Poppe, said it "lets insurance companies know the citizens of Kentucky are watching them" and that they will pay for "forcing injured people into unnecessary litigation with frivolous defenses."

The insurer, which has offices in Louisville and is based in East Lansing, Mich., doesn't comment on litigation, according to Ann Storberg, vice president of investor relations, although she said the company's policy is to pay claims when liability is clear.

All states have laws like Kentucky's unfair claims settlement practices act, but Kentucky is one of only a few where juries, rather than state insurance commissioners, impose penalties for violations in cases brought by a patient against their doctor's insurer, Poppe said.

The statute says it is unlawful for insurers to fail to attempt "in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear."
Kenton County verdict

This week's verdict was the second in Kentucky in five weeks in which a jury punished an insurer for acting in bad faith with a third party -- a doctor's patient.

On April 30, a Kenton County jury returned a $2.5 million verdict against Medical Protective Insurance Co. for failing to promptly settle a damage claim with a woman whose doctor severely damaged her inner ear during a simple wax-removal procedure.

She had won a $1.6 million award for her medical damages through arbitration, but the jury found that the insurer made her litigate after liability was clear. Evidence showed an adjuster collected a bonus by reducing claims, said the woman's lawyer, Austin Mehr.

Don Darby, who defends medical malpractice and other claims, said the two verdicts should prompt insurance companies to settle various kinds of cases, including auto accident claims, more quickly.

"Overall, more cases will be settled at a higher number," he said.
Michael Hance, who is president of the Kentucky Justice Association, a plaintiffs' trial lawyers group, predicted that the verdicts will prompt insurers to "treat injured people fairly and stop playing a numbers game."
Advertisement
Quantcast

Richard Schiller, who defends lawsuits for insurance companies, said the verdicts "won't scare them into settling" but will make them evaluate cases more carefully and more fully document decisions not to settle.

The verdict against American Physicians Assurance was the second largest of at least 30 bad-faith judgments returned in Kentucky since 1998, according to Kentucky Trial Court Review. The largest, from Scott County, was later reversed.

Daniels' suit was tried before Jefferson Circuit Judge McKay Chauvin. Because Poppe was a witness, another lawyer, Kenneth Friedman, of Bremerton, Wash., helped represent her.

The company's lawyer, Walter Haggerty, of Cincinnati, declined to be interviewed. Poppe said the company offered several defenses, including its claim that its only obligation was to its insured -- Dr. Grimes -- not Daniels.

The company also claimed it couldn't settle as long as Grimes said he had done nothing wrong, and that Daniels contributed to her own injuries because she was a smoker.

Poppe said Grimes should have known not to give Daniels a tummy tuck because she smoked and had other health problems.

Grimes, who practiced in Paducah, is now a resident in preventive medicine at the University of Kentucky. He didn't respond to messages.

Poppe said Daniels is still in constant pain and will be permanently at risk of medical complications. But he said she will now have enough money to pay her mortgage and cover her prescriptions and medical care needs.

"I can only hope that insurance companies will think twice before dragging people through what they put me through," Daniels said.

back to top

Louisville, Kentucky Jury Awards Poppe Law Firm Client $3.8 million in Insurance Bad Faith Trial

Jury Awards $3.8 Million Against Insurer

June 3, 2009, Louisville, KY

A Jefferson County jury awarded $3.8 Million to a Paducah woman for an insurer's unreasonable delay in settling her medical malpractice claim against a doctor who had performed an unorthodox surgical procedure he described as a "modified abdominoplasty" at Lourdes Hospital in July of 2003.  The surgery on Deborah Daniels, a respiratory therapist, resulted in life-threatening complications requiring multiple and extended hospital stays.  She brought suit against the surgeon, Dr. David Grimes, in June of 2004.  By May of 2005 her doctor reported she would never be able to work again.

Although the insurer had information indicating that Dr. Grimes' liability for Daniels’ injuries was reasonably clear, American Physicians Assurance Corporation made no meaningful attempt to settle Daniels' claim until July and August of 2006.  Even after their own board-certified medical consultant told them that Dr. Grimes surgery was “inexcusable and indefensible,” they continued to delay settlement efforts and offered only $75,000 to settle the case at a court ordered mediation.  These delays left Daniels destitute and under severe financial stress.  Ms. Daniels testified that the day of mediation made her feel like her entire life and 20 year career were worth nothing in the eyes of the insurer.  The financial and emotional stress, and AP’s threat to void coverage, compelled her to settle her claim against Dr. Grimes for significantly less than the policy limit of $1 Million. 

After settling the claim against the doctor, Daniels brought suit directly against American Physicians alleging that its delay in settling the claim and its refusal to pay a fair sum for her injuries violated the Kentucky Unfair Claims Settlement Practices Act.  Her Louisville attorney, Hans Poppe , foresaw that he would need to be a witness at trial.  Therefore he sought out attorneys specializing in "insurance bad faith" litigation.  He hired the Friedman | Rubin firm with offices in Alaska and Washington.  According to attorney Ken Friedman who tried the case, "AP Assurance said they did nothing wrong or unusual in this case and that every claim was handled in this same manner.”  Friedman continued, “I don’t think they realized until the end of trial that it was their ‘business as usual’ tactics that were on trial in this case.”  The jury heard evidence that the claims adjusters were given financial targets to pay less in claims to injured patients in 2006 and adjusters had goals to push more claims to trial rather than settlement.  The jury awarded Daniels $350,000 compensatory damages and $3,479,277 in punitive damages.  Friedman said “the jury deserves a lot of credit for analyzing a complicated set of facts and understanding what went wrong, and why.  They also deserve credit for rendering a verdict that will send a message to all insurers in Kentucky that they have serious obligations to make a good faith effort to pay valid claims promptly and fairly.”  The jury wanted the company to get the message -- the punitive award was the exact sum that the claims adjuster was told to cut from her block of claims in 2006.

back to top

Jury Award's Poppe Law Firm Client $5.1 Million

Jury awards widow $5 million

By Jason Riley • jriley@courier-journal.com • September 4, 2008


The wife of a Frankfort man who died in 2003 after a surgery at Jewish Hospital that was supposed to alleviate his Parkinson's disease has been awarded more than $5 million in damages by a Jefferson Circuit Court jury.

Norman Gene Carroll, the brother of former Gov. Julian Carroll, died Feb. 4, 2003, a week after an elective surgery in which he was supposed to have a deep brain stimulating device inserted.

On Friday, his widow, 73-year-old Retha Carroll, was awarded almost $5.1 million from medical staff involved in the surgery, including $3.5 million for her husband's pain and suffering, $1.5 million for the loss of consortium and about $96,000 in medical expenses.

Jewish Hospital was dismissed from the lawsuit a few years ago.

"She is overjoyed that a jury finally made the health-care providers take responsibility," said Hans Poppe , her attorney. "For five years ... everybody said it was somebody else's fault."

Shannon Ragland, editor and publisher of Kentucky Trial Court Review, said the pain and suffering award was particularly high given the relatively short amount of time Norman Carroll suffered — "though it was a horrible way to go."

And the $1.5 million consortium award, which allows claims for loss of companionship of spouses from injury until death — was the largest for a wife in Kentucky since at least 1997, when Ragland began tracking state jury verdicts.

The previous high, Ragland said, was $1 million in a Boyd County case from 2001 where the husband lived three years after a missed cancer diagnosis. Norman Carroll lived only a week following the surgery.

The lawsuit, filed in 2004, claimed that doctors and nurses who were working on Carroll on Jan. 28, 2003 did not stop the surgery and take appropriate action when he started struggling to breathe.

Poppe said Carroll was awake for the procedure and told his surgeon, Dr. Dante J. Morassutti, and his nurse, Carolyn Lowe, that he was having difficulty breathing.

Five medical personnel testified during the trial in Jefferson Circuit Court that Dr. Atul Barry, an anesthesiologist, was called to the room to decide whether to stop the procedure, Poppe said.

During the two-week trial, Barry denied that he was called to the room, but Morassutti and others claimed Barry was present and said it was safe to continue, Poppe said.

"This was an elective procedure that they could have stopped anytime," said Poppe . "But the procedure didn't stop and he didn't get any better."

Carroll eventually lost consciousness and went into a coma.

His wife took him off life-support about a week later, according to court records.

"Norman should not have died that day and his wife should not have had to make the decision to take him off life-support," Poppe said.

The jury apportioned much of the blame to Barry, who was ordered to pay about $3 million in damages. Morassutti was ordered to pay more than $1 million and Lowe's estate and Medical Center Anesthesiologists must each pay $509,000.

"We all sympathized and felt for this family," said Sean Ragland, an attorney for Lowe's estate. He declined to discuss specifics of the case or trial.

Attorneys for Barry, Morassutti and Medical Center Anesthesiologists did not immediately return phone calls.

Reporter Jason Riley can be reached at (502) 582-4727.

back to top

Kentuckians for Nursing Home Reform Invite Hans to Speak at Louisville Event

On September, 28, 2008 2:00 pm at Beargrass Christian Church Kentuckians for Nursing Home Reform is having a free Question & Answer Session to address issues surrounding nursing homes and improving care.  Hans will be speaking along with IMELDA PFISTER, the Nursing home ombudsman for the Louisville area and BETTY JO BRANHAM, who is from the state Office of the Inspector General, the agency that inspects nursing homes to determine if they are providing quality care.  Please join us and have your questions about nursing homes answered.
Hans 

Read More About Kentuckians for Nursing Home Reform Invite Hans to Speak at Louisville Event...

back to top

Kentucky's Poppe Law Firm Files Accounting Malpractice Complaint Against Major Michigan Accounting Firm

Detroit Accounting Firm Named in Lawsuit

Involving Alleged Ponzi Scheme

 

The Investment News reports that accounting firm of Doeren Mayhew & Company was named in a lawsuit filed in Oakland County, Michigan, in connection with a highly publicized multi-million dollar alleged ponzi scheme using partnerships, many purported to earn revenues from telephone usage in Las Vegas hotels. The central figure reported as the mastermind of such investments was Ed May who, along with other individuals and firms, is the subject of several investigations including by the U.S. Securities and Exchange Commission. The Oakland Press also picked up on the story.

 

The lawsuit was filed on behalf of investors jointly by three law firms: Sheldon Miller & Associates, a premier Detroit area litigation firm, Hans Poppe of the Poppe Law Firm, which focuses on professional negligence claims, inlcuding accounting malpractice claims, and Shepherd Smith & Edwards, LLP, a securities law firm that handles claims for investors nationwide.

 

The suit states allegations regarding Doeren Mayhew, including that the accounting firm was listed as the accounting firm of record for various partnership investments and that the firm and/or some of its agents and directors were involved with the ongoing business affairs of the partnerships and engaged into direct and indirect communications with investors which misled them regarding these investments.

 

The law firm of Shepherd, Smith & Edwards also represents a number of individuals and other investors claiming large losses, many in their retirement accounts, after investing into these partnerships. This law firm has also filed claims for misrepresentation and unsuitability in securities arbitrations against a former stockbroker who sold these and other investments to his clients.

 

The law firms currently seek additional information, documents and other potential evidence regarding these investments, as well as any written or oral communications which may have occurred with the parties to the lawsuit or arbitration claims. Persons are asked to contact Thomas Ruiz or Kirk Smith at 800-259-9010 or via e-mail to truiz@sselaw.com. All such calls and contact will be treated as confidential in nature.

back to top

Hans Poppe Interviewed by WHAS 11 News about Plastic Surgery Medical Malpractice

 

The high price of perfection

11:14 AM EST on Wednesday, November 28, 2007

? VIDEO: Nip and tuck regrets
? Federation of State Medical Boards

LOUISVILLE, Ky. – We live in a time when you can get liposuction during your lunch hour and go to parties for botox injections.  Cosmetics surgery is so commonplace we may spend more time shopping for a car than looking into the credentials of our surgeons.

Everyone wants everyone for nothing and nothing less than perfection please.

But that quest for perfection highlighted in the headlines can sometimes have devastating results. 

It did for Donda West, the mother of hip-hop star Kanye West.  She died after surgery performed by Dr. Jan Adams, a non-board certified surgeon. 

One woman's abdomen will never be normal again because the doctor who operated on her was not able to perform the type of surgery he told her he could, a tummy tuck.  Her attorney, Hans Poppe, says that her settlement requires that she not speak publicly about her injuries.  But she will never fully recover.

From terrible tummy tucks to lousy liposuction, Dr. Jerry O’Daniel now devotes 25 percent of his practice to reversing and reshaping cosmetic surgery mistakes.

O’Daniel would prefer patients not need his services to repair mistakes and he says you can avoid them.  Everyone should insist on using a board-certified surgeon in the practice. They should ask to see pictures, talk to other patients and be aware that the length of the time you are under sedation increases your risks. Also, remember that when it comes to something as serious as surgery, it’s not a good idea to cut corners.

If you want to check out your doctor, Poppe says you have to go down to the Jefferson County courthouse and check out county by county, because doctors may move around. Information about the complaint against Dr. Jan Adams was found on the Medical Board of California’s website.

back to top

WHAS 11 News Interviews Hans about Medical Malpractice

Be sure to watch WHAS 11 News at 11:00 p.m., on Tuesday, November 27th when Kirby Adams interviews Hans about medical malpractice and plastic surgery.  We'll post a link following the interview.

back to top

Balloon Valve May Replace Open Heart Surgery

Read More About Balloon Valve May Replace Open Heart Surgery...

back to top

Erectile Dysfunction Drugs Linked to Sudden Hearing Loss?

Hearing loss has been reported in few patients during clinical trials of Viagra, Cialis, and Levitra.  No causal relationship has been demonstrated between the drug and sudden hearing loss, but the FDA believes there is a strong temporal relationship between the use of the drugs and sudden hearing loss.  The FDA believes that this relationship is strong enough to warrant revisions to the product labeling.

Read More About Erectile Dysfunction Drugs Linked to Sudden Hearing Loss?...

back to top

Indiana Police Officer Killed When Semi Loses Wheels

The Shelbyville (Indiana) Police Department lost its’ first-ever officer in the line of duty last week. Twenty more minutes and 51-year-old Sgt. Gary Henderson would have clocked out of his 9-hour patrol duty.



The 29-year veteran of the police force had responded to a call for back-up on Interstate 74 after the first officer pulled over a suspected stolen car with a driver and passenger inside.



Passing Semi Lost Wheels and Tires at Highway Speed



Henderson was taking a picture of the suspect vehicle on the shoulder of the highway when a tractor-trailer drove by and lost two rear wheels and tires, which swept into the path of Henderson.



Shelbyville Police said two juveniles -- ages 13 and 14 - who sneaked out of the Gibault Group Home for Boys in - were inside their vehicle when Henderson was struck.



"Sgt. Henderson was a fine police officer," said Police Chief Bill Elliott. "He was a dedicated public servant and will be missed by everybody."



According to Elliott, the driver of the passing semi trailer was hauling 2,000 pounds of Styrofoam packing peanuts from Chicago to Kentucky. The driver told police he moved into the left lane when he saw the police cars on the right shoulder.



Truck Seemingly Had Passed Safety Inspection



The driver said he had no idea the two wheels had fallen off his rig. During vehicle pre-inspection earlier that day, the driver said didn't notice anything wrong except for a "power-block issue” he said was, “no big deal.”



Authorities said it is unlikely he will face charges but will investigate the trucking company's safety and maintenance records. The vehicle reportedly had passed its most recent safety inspection.



Henderson began his law enforcement career in Shelbyville as a parking enforcement officer and dispatcher in 1978. He later served as a narcotics officer, criminal detective and deputy police chief. "Everybody knew him and respected him,” Elliott said. “It's just a terrible loss."

Read More About Indiana Police Officer Killed When Semi Loses Wheels...

back to top

Hans' Interview with WHAS 11 News on the McDonald's Trial

Louise Ogborn is represented by attorney Ann Oldfather in her $200 million dollar lawsuit against McDonalds. Recently, WHAS 11 News sat down with me to discuss what decisions the jury would have to make.

back to top

Hans Poppe in the News about the McDonald's Verdict

Louisville attorney analyzes Ogborn verdict

06:07 PM EDT on Friday, October 5, 2007


? VIDEO: Expert analysis

Is the McDonald’s verdict a significant decision? What does it say to people -- attorneys, corporations and employees --- across the country?

"It’s absolutely a success," says Louisville attorney Hans Poppe.

Poppe says that's the major point about today's ruling: that the Louise Ogborn who was strip searched and sexually assaulted, who tearfully told jurors about that day three years ago, is the same Louise Ogborn who was smiling today, pleased with the decision.

“Louise Ogborn was probably more vindicated by the fact she received an award and the jury said she was not responsible for what happened to her,” said Poppe.

The jury of eight women and four men also decided that Donna Summers suffered as well. Summers was the assistant manager at McDonald’s at the time of the incident. She was the one who strip searched Ogborn because the voice on the other end of the phone said it should be done.

“I think the biggest surprise is that the jury decided Donna Summers should be entitled to $1.1 million… and the jury believed that was McDonald’s fault.”

Poppe says the jury's award in this case proves they were reasonable and fair. The amount they awarded Ogborn certainly won't hurt McDonald’s, but Poppe says it will send a message.

“Today's jury award was likely the equivalent of four days of coffee sales nationwide, so this isn't an amount of money that will make McDonald’s financially hurt. It’s certainly not enough money to make them bankrupt,” Poppe said. “But I think it is enough money to make them pay attention.”

It may also make employees of McDonald’s and other corporations across the country pay attention. There have been dozens of hoax caller incidents nation-wide.

Poppe represented sex abuse victims who filed suit and won against the local Catholic archdiocese.

Web story produced by Jay Ditzer.

Read More About Hans Poppe in the News about the McDonald's Verdict...

back to top

Kentucky Officials Sue Oxycontin Makers

Read More About Kentucky Officials Sue Oxycontin Makers...

back to top

Unequal Nursing Home Treatment for African Americans

Read More About Unequal Nursing Home Treatment for African Americans...

back to top

Pair Arrested for Illegal Surgeries

Ha Nguyen and Zbigniew Makowski have been arrested on suspicion of practicing medicine without a license and child endangerment.  The two were performing illegal surgeries from their own home, which was filled with drugs and syringes.

One woman recieved a tummy tuck and facelift which has left her with three-inch scars next to each ear and a fifteen inch scar across her stomach.

Nguyen, who has never been licensed in California as a physician performed the surgeries while Makowski transported the patients and helped to clean the wounds.

Nguyen was on welfare at the time of arrest, but was also earning at least $500 a day from the surgery practice.

Read More About Pair Arrested for Illegal Surgeries...

back to top

Buyers of Condo-Hotel Units on Florida Keys Claim Securites Fraud

Like recent, new-home buyers, investors are feeling the financial pinch of a dormant housing market.

Suit Says Some Rooms Were Dilapidated

Twenty condominium buyers in a Florida Keys hotel claim the builder, Cay Clubs Resorts & Marinas of Clearwater, Fla. deceived them into believing their properties would appreciate after comprehensive renovations to a “world-class resort.” What buyers in the Sombrero Cay Club Project received, according to the suit, were dilapidated rooms with a new coat of paint.

'The plaintiffs were assured,' the suit says, 'prices would increase dramatically as [buyers] were contracting at a bargain price.' But one pair of buyers said a vacation rental firm declared their unit ``unrentable.'

Appraisers Accused of Inflating Prices

More importantly, the suit accuses appraisal companies working with Cay Clubs of inflated estimates of the units' value. This was done, the suit stated, by basing those calculations on Cheeca Lodge, an upscale resort 33 miles away.

Cay Clubs may face bankruptcy if it can't refinance $74 million in loans due this fall. It owes $10 million in late lease payments to buyers and has missed $1 million in loan payments this year, according to regulators. By promoting the Sombrero condominiums as profit-generating investments, the suit says, Cay Clubs violated state security laws. Security laws bar developers from selling real estate as if it gave buyers a stake in a cash-producing business. That makes condominium hotels – prime vacation spots - a target for this type of lawsuit in a deflated real estate market, according to Andrew Robins, a lawyer specializing in condominium hotels.

Plaintiff’s attorney Howard Behar said his clients want a judge to negate their sales contracts and refund money they've lost. The suit for unspecified damages lists 20 buyers in the Sombrero project who paid between $549,000 and $808,000 for units. Cay Clubs did agree to rent back the units for one year at 8 percent of the purchase price but buyers said payments were late. The plaintiffs 'did not intend to ever reside in the condominiums and only intended to sell their units' once the renovation finished, according to the suit.

http://www.miamiherald.com/business/story/218470.html

back to top

Painkiller Prescriptions up 90% from 1997-2005

Read More About Painkiller Prescriptions up 90% from 1997-2005...

back to top

Vioxx Ills Start Sooner Than Thought

Read More About Vioxx Ills Start Sooner Than Thought...

back to top

Nursing Home Residents at Risk for Peer Abuse

Read More About Nursing Home Residents at Risk for Peer Abuse...

back to top

Bowling Green Bus Accident Kills Driver, Injures 66

Read More About Bowling Green Bus Accident Kills Driver, Injures 66...

back to top

Three Crashes Involving Eight Vehicles Snarls Sunday Traffic in Louisville.

Crashes snarl downtown traffic on I-64, I-65
The Courier-Journal





Police and emergency crews responded at about noon today to three crashes involving at least eight vehicles where Interstates 64 and 65 meet in downtown Louisville.

A supervisor with MetroSafe Communications said there were no reported injuries, but that at least part of northbound I-65 was closed due to the wrecks. Parts of I-65 southbound in the area known as Spaghetti Junction were also affected by the crashes, the supervisor said.

Most of I-64 westbound near downtown already was closed today due to construction. All lanes on I-65 in both directions were cleared as of 1:30 p.m.

back to top

Two Louisville Pedestrians Struck By a Car Early Sunday Morning

The Courier-Journal


Two pedestrians were injured, one seriously, when they were struck by a vehicle early today on Preston Highway.

The incident happened at about 2:40 a.m. outside the Jambalaya club at 6201 Preston Highway, south of Indian Trail. Alicia Smiley, a spokeswoman for Louisville Metro Police, said the driver of the vehicle, Jose Miguel, had been involved in a fight with two other men before he struck them with his vehicle. She said all three man were taken to the hospital.

Miguel's age and residence were unknown. He was released from the hospital at about 3 p.m. Smiley said he was arrested, but she didn't have details about the charges he faces.

The extent of the injuries to the other two men were unknown this afternoon, but Smiley said the department's homicide unit was not involved in the case. The incident remains under investigation.

back to top

West Virginia Supreme Court to Hear Challenge to Tort Reform

The West Virginia Supreme Court will hear a case in the fall that challenges a state tort reform law. The law requires the plaintiff to file a "certificate of merit" stating that other health professionals have reviewed the case and believe malpractice occurred.

The plaintiff had consulted 12 urologists in this case. 10 refused to sign a certificate of merit against another doctor. The remaining two wanted $40,000 before they would sign anything.

Read More About West Virginia Supreme Court to Hear Challenge to Tort Reform...

back to top

80% of Hospitalized Kids Get Drugs Only Approved for Adults

Read More About 80% of Hospitalized Kids Get Drugs Only Approved for Adults...

back to top

Woman Sues Wal-Mart After Slipping on Wet Floor

Two years and repeated surgeries later, June and James Medema of Blue Grass, Iowa, filed suit against retailer Wal-Mart May 22, alleging negligence led to June Medema suffering permanent injuries in a June 13, 2005, fall at the Wal-Mart Super Center in Davenport, Iowa.

Vomit Alleged As Causing Slip & Fall

Medema allegedly slipped in a pool of vomit. The suit does not specify how the store was negligent. The person who had become sick in the store has not been identified. The Medemas are asking for at least $5,000 in damages.

John Simley, a spokesman for Wal-Mart, declined comment. “We haven’t seen the suit and we can’t comment on something we haven’t seen,” he said.

In the spring of 2007, attorney Michael K. Bush took out a classified advertisement in a Davenport newspaper seeking witnesses to the incident. June Medema allegedly suffered serious neck and upper back injuries and is disabled from work Bush said.

9.400 Lawsuits Pending vs. Retailer

Wal-Mart employs 1.8 million people in 3,900 stores in the United States and 2,700 employees in other countries. The first store opened in Rogers, Arkansas in 1962. Founded by Sam Walton in 1962 and incorporated seven years later, Wal-Mart is now the world’s largest retail store.

The Medema’s suit is one of 9,400 pending against the retail giant in the U.S. court system. Wal-Mart ranks behind only the federal government as the most sued entity in the world. Suits include against Wal-Mart shoppers slipping on recently cleaned floors as well as sex discrimination claims from its employees.

Read More About Woman Sues Wal-Mart After Slipping on Wet Floor...

back to top

Doctors Busted in $30 Million Insurance Scam

Three doctors were arrested Wednesday for insurance fraud. The doctors had performed hundreds of unnecessary procedures on patients and billed insurance companies over $30 million. The patients would receive money or low-cost cosmetic procedures in return for their participation in the scam.

Read More About Doctors Busted in $30 Million Insurance Scam...

back to top

Jewish Hospital sues the Attorneys who filed the MRSA cases.

Jewish Hospital has sued Joe White and Michael O'Connell for filing 80+ lawsuits alleging the hospital failed to keep the hospital clean, leading to MRSA infections.

Read More About Jewish Hospital sues the Attorneys who filed the MRSA cases....

back to top

Kentucky Ranks 33rd In Fairness of Litigation Poll

Kentucky moved up one spot from it's 2006 rankings in a Harris Poll that asks citizens how fair they believe the state's litigation process is.

Read More About Kentucky Ranks 33rd In Fairness of Litigation Poll...

back to top

Kentucky Man Dies From Falling Out Window While in Nursing Home

Read More About Kentucky Man Dies From Falling Out Window While in Nursing Home...

back to top

State Farm CEO gets 82% Raise?

Read More About State Farm CEO gets 82% Raise?...

back to top

Injured Soldiers Can't Sue Government for Malpractice

Read More About Injured Soldiers Can't Sue Government for Malpractice...

back to top

Kentucky Court of Appeals Hears Oral Argument on Important Kentucky Bad Faith Case

Read More About Kentucky Court of Appeals Hears Oral Argument on Important Kentucky Bad Faith Case...

back to top

New Study in Illinois Shows Jury Verdict Are NOT Driving Rising Malpractice Premiums

Read More About New Study in Illinois Shows Jury Verdict Are NOT Driving Rising Malpractice Premiums...

back to top

Another Firm in Trouble for Diet Drug Settlement

Read More About Another Firm in Trouble for Diet Drug Settlement...

back to top

600 Lawyer Firm to Shut Down After Admitting it Promoted Tax Fraud

Read More About 600 Lawyer Firm to Shut Down After Admitting it Promoted Tax Fraud...

back to top

CSX Railroad cited for 199 safety violations.

Read More About CSX Railroad cited for 199 safety violations....

back to top

Elder care abuse in Louisville

Are you comforted by reports of children caring for their elderly parents at home? Are you relieved these dependent elders don’t have to endure the sterile, marginal care in a nursing home? Readers of the Hans Poppe Law Firm website should think again about these “home sweet home” scenarios. It could protect your loved one from and suffering behind the veil of personal family care.

Considering elder abuse is more likely to occur at the hands of a family member than outside the home by a nurse, nurse’s aide or nursing facility staffer, according to the National Center for Elder Abuse in Washington, D.C.

And the abuse is happening in Louisville.

Neglect case "hits home"

In January of this year, WAVE-TV in Louisville reported the arrest of Kenneth Kurz, who was charged with neglect of his mother. When investigating authorities arrived at the Kurz residence, they found Susanna Kurz lying in her own waste.

WAVE reported Pam Cherry of Louisville’s Adult Protective Services receives 180-200 calls a month regarding individuals who have been abused, neglected or exploited. “Our cases seem to go up every year as people learn about elder abuse,” Cherry said.

Watch for warning signals

The public can be tipped on elder abuse by being vigilant in their neighborhood. Simply getting to know your neighbors and their lifestyle habits is a safeguard. “Maybe the yard starts looking non-manicured and maybe that person had a beautiful yard before that,” Cherry said.

Amanda Frederick, Louisville Metro Police Detective, said that knowing your neighbors makes it more likely you’ll notice changes for the worse, say in a house’s appearance. Frederick said many times, it’s a family member who is the abuser.

“Many of them (abusers) are unemployed or on disability or have very irregular employment,” Frederick said. “A lot of our perpetrators are grown children who still live at home. You go home and you think about it, particularly ones where the family is familiar to your own or one of the victims actually looked like my grandmother – that was a real hard case for me, personally,” she added.

If you have noticed a suspicious change in the home or grounds of an elder in your neighborhood, it is time to take action. Your first telephone call should be to the Louisville Adult Protective Services hotline at 502.595-4803. The office is at 908 W. Broadway, #6W. To protect the civil rights of a family member, friend or neighbor, take charge and call the attorneys at the Poppe Law Firm at 502.895.3400.

back to top

Kentucky Comair Widows Push for Change in Loss of Consortium Law.

Sarah King Fortney:

When Comair Flight 5191 fell from the sky, it took a life of great potential in my husband, C.W. Fortney. C.W. was a father, a husband, a son, a friend and my hero. My life, as I knew it, was taken from me that August morning, never to return.

My reason for being here today goes deeper and is far greater than a desire to be compensated for the loss of my husband. I am here to request that our government recognize marriage as something more than a series of bank deposits. Insisting that the loss of a loved one can be compensated exclusively by that person’s earning potential trivializes the very form of emotional attachment that we claim marriage represents.

The State of Kentucky currently restricts damages in wrongful death and negligence cases such as mine to lost wages. Our current law says that you're only worth as much as your paycheck. Make no mistake, that's what it says. By limiting damages in cases such as these, our state is putting a clear and direct price tag on human emotions and human life.

Opponents of this bill will tell you that this is tort issue, that this is about frivolous lawsuits. They have lost their focus on families. This is a deliberate attempt on behalf of the Republican Senate leadership to confuse family values with greed. Don’t fall for it.

In the chamber behind me, our elected representatives are debating the definition of marriage. They’re publicly stating their opinion that marriage is the bedrock of society and defending the sanctity of marriage to further their own political agenda.

How can they on the one hand, glorify marriage as our most sacred institution while simultaneously denouncing the emotions on which that foundation is built? That is the height of hypocrisy.

Forty-six other states in our union have recognized the issue in front of you today, with no ill effect on their local economy. However, by remaining the smallest of minorities, Kentucky is turning its back on its citizens and providing a safe haven for inept and negligent businesses to thrive, a place where marriage certificates mean nothing more than tax breaks.

Let me say this: I'm not a lawyer. I'm not being advised by my lawyer on this issue. I am a widow. I am a single parent. I'm an advocate for anyone suffering because they were robbed of their spouse due to ineptitude and/or negligence.

Should that ever happen to you or your family. Should you ever be forced into that corner. Should you ever feel the pain that I've felt, I can only hope you won't be subjected to the same slap in the face from our government that I have.

Kathy Ryan:

When someone fails to adhere to a baseline standard of care, or sells a dangerous product, or creates a dangerous environment, or behaves in a in a reckless or criminal way and such behavior causes the death of someone, surely we can all agree, as we have agreed in the law for centuries, that the wrongdoer must be held accountable in some meaningful way to their innocent victim. We, if we are good parents, teach this basic principle of accountability to our children.

Kentucky has long had a statute that says, "Either a wife or husband may recover damages against a third person for loss of consortium, resulting from a negligent or wrongful act of such person." The courts have interpreted the loss of consortium statute as applying only in cases of personal injury. So if your spouse is negligently injured, your spouse has a cause of action for his injury and you also have a cause of action for the damage you suffer as the result of no longer having a healthy husband. But such is not the case if, instead of suffering only injury, your spouse is instead negligently killed. All that we ask in House Bill 403 is fairness and justice through the reasonable and continued opportunity to hold wrongdoers accountable for all of the damage which they cause. Compensation of the deceased person's estate does not compensate a widow or widower for the destruction of their marriage - the unique hardships, pain and grief caused the surviving spouse by the undeserving death of their life partner.

Passing HB 403 will not be a windfall for anyone. It will merely provide innocent citizens an opportunity, difficult as it is to exercise in practice, to force a wrongdoer to value marriage and family in our society. And it will avoid what are otherwise vastly unfair results for spouses of victims who happen not to be the primary wage-earner in a marriage. Those of us who have suffered the immediate death of our spouse have damages separate and distinct to us that do not include, nor overlap with, the loss of our spouses' "power to earn money," funeral expenses, or pain and suffering. Surely we can universally recognize that, as human beings, the best things in life mean little when you have no one with whom to share them. There is much more to the shared life that a marriage is, and we all know it. Jurors know it too, and their life experience guides them in balancing the results.

Kentucky is far behind the trend in this area. We are one of only four states in the Union that has not recognized the right of a spouse to recover for the lost services, love and affection of a person wrongfully killed. Forty-six other states took this step long ago. It is past time for Kentucky to do the same.

To that end, and only because I mistakenly thought that maybe, just maybe with the publicity of Comair 5191 and the second degree of separation effect that it had on many citizens of this commonwealth, that we could prevail over the powerful forces which would predictably oppose us. We thought that all we were doing was handing a golden opportunity to the legislature to fix a horrid, unjustifiable inconsistency in current case law. The House of Representatives understood this and overwhelmingly passed House Bill 403 on a vote of 93 in favor, only seven opposed.

But in the Senate our efforts have been met with charges of greed and the response from Senate leadership that our bill does not fit into their tort reform agenda, therefore it will not be pushed onto the Senate floor for a vote. It is most unfortunate that we have been personally attacked in this way and have had to encounter a severe lack of empathy for human victims in favor of sympathy for commercial enterprise. It has, to say the least, been a disappointment to face people who don't seem capable of understanding what it means to have your world ended just because your husband had the misfortune of being in the wrong place at the wrong time. It has also been very hurtful to face people who have no understanding of the value of trial attorneys who, in my humble opinion, are some of the only remaining heroes of our society, willing to risk and invest personally in the causes of innocent victims who would otherwise be powerless to achieve any accountability for those who have negligently or criminally harmed them.

House Bill 403 is about valuing humanity, as fostered in marriage and family, over the interests of commercial enterprise. We ask the Senate leadership to immediately reconsider its position and permit House Bill 403 to come to the Senate floor for a vote right away.

back to top

Louisville Rubbertown Residents Reach Settlement With Rubbertown Plant.

Read More About Louisville Rubbertown Residents Reach Settlement With Rubbertown Plant....

back to top

Louisville Nursing Home Director Faces More Criminal Charges After Remains are Found.

Read More About Louisville Nursing Home Director Faces More Criminal Charges After Remains are Found....

back to top

New Options (and Risks) in Home Care for the Elderly

Read More About New Options (and Risks) in Home Care for the Elderly...

back to top

Louisville Based Kindred Pledges to Improve Care

Read More About Louisville Based Kindred Pledges to Improve Care...

back to top

Tort Reform Doesn't Work in Florida.

Read More About Tort Reform Doesn't Work in Florida....

back to top

W.V. Supreme Court Limits Bad Faith Claims Against Insurers

Read More About W.V. Supreme Court Limits Bad Faith Claims Against Insurers...

back to top

Louisville Jury Determines U-Haul Dolly Defective and Awards $10 Million to Quadripalegic and her Family.

Read More About Louisville Jury Determines U-Haul Dolly Defective and Awards $10 Million to Quadripalegic and her Family....

back to top

Louisville Medical Malpractice Defense Lawyer In the Hot Seat.

Read More About Louisville Medical Malpractice Defense Lawyer In the Hot Seat....

back to top

TN Judge Rejects Jury's Award of $29 Million Dollars in Punitve Damages Against a Nursing Home.

Read More About TN Judge Rejects Jury's Award of $29 Million Dollars in Punitve Damages Against a Nursing Home....

back to top

Doctor With 100 Suits Against Him Sues His Own Lawyers.

Read More About Doctor With 100 Suits Against Him Sues His Own Lawyers....

back to top

Notre Dame Coach's Medical Malpractice Case Declared a Mistrial

Read More About Notre Dame Coach's Medical Malpractice Case Declared a Mistrial...

back to top

Rhode Island Considers Whether Lawyer Blogs are Speech or Advertisements

Read More About Rhode Island Considers Whether Lawyer Blogs are Speech or Advertisements...

back to top

Giant Insurance Consulting Firm Explains Why Health Insurance Is So Expensive.

Read More About Giant Insurance Consulting Firm Explains Why Health Insurance Is So Expensive....

back to top

Semi-wreck on the Outer Loop

Read More About Semi-wreck on the Outer Loop...

back to top

Fen-Phen lawyers Allegedly Misappropriated More Than Orginally Thought

Read More About Fen-Phen lawyers Allegedly Misappropriated More Than Orginally Thought...

back to top

Auto insurers Play Hardball in Minor Crash Claims

Read More About Auto insurers Play Hardball in Minor Crash Claims...

back to top

First Louisiana Katrina Case to go to Trial Monday

Read More About First Louisiana Katrina Case to go to Trial Monday...

back to top

New Orleans Jury Awards Former Death-Row Inmate $14 Million

Read More About New Orleans Jury Awards Former Death-Row Inmate $14 Million...

back to top

Two Florida Nurses Arrested for Not Giving Residents Medicine.

Read More About Two Florida Nurses Arrested for Not Giving Residents Medicine....

back to top

Could saying "I'm Sorry" Keep People From Suing Doctors

Read More About Could saying "I'm Sorry" Keep People From Suing Doctors...

back to top

Former nursing home administrator convicted of manslaughter for resident's death.

Read More About Former nursing home administrator convicted of manslaughter for resident's death....

back to top

Wrongly Convcicted Louisville Man Settles for 3.9 Million

Read More About Wrongly Convcicted Louisville Man Settles for 3.9 Million...

back to top

New York Times Editorial on the vanishing lawsuit

Editorial Observer
They Say We Have Too Many Lawsuits? Tell It to Jack Cline

By ADAM COHEN
Published: January 14, 2007
Birmingham, Ala.

Jack Cline is in a hospital here fighting for his life, stricken by leukemia that he says he got from exposure to benzene at his factory job. In most states, he would be able to sue the companies that made the benzene. But Alabama’s all-Republican, wildly pro-business Supreme Court threw out his case.

In a ruling that would have done Kafka proud, the court held that there was never a valid time for Mr. Cline to sue. If he had sued when he was exposed to the benzene, it would have been too early. Alabama law requires people exposed to dangerous chemicals to wait until a “manifest” injury develops. But when his leukemia developed years later, it was too late. Alabama’s statute of limitations requires that suits be brought within two years of exposure.

Mr. Cline, who says God has kept him alive so he can challenge the unfairness of Alabama’s law, told his lawyer, Robert Palmer, to keep fighting. Mr. Palmer started a statewide petition drive, wrote a flurry of op-ed pieces and asked the court to reconsider. In an extraordinary move, it reopened the case and heard new arguments last spring.

Big business and its allies are loudly promoting “tort reform” by arguing that America is drowning in frivolous lawsuits. They are winning the public relations battle. Everyone knows the story of the woman who sued McDonald’s because she was burned by hot coffee. But few people know of the Jack Clines — and there are many of them — who have been denied their day in court.

Corporate America — with its large contributions to political and judicial candidates, and its top-dollar lobbyists — has had remarkable success persuading legislatures and courts to erode the bedrock principle of civil law: when people are injured, they are entitled to sue for damages.

At the top of industry’s list of tactics is immunity — the rather brazen notion that companies should be shielded from lawsuits no matter how negligently or dishonestly they act. Gun makers and dealers, notoriously, persuaded Congress in 2005 to give them immunity when their guns are used to maim and kill.

Industries are also winning immunity at the state level, and attracting far less attention. Pharmaceutical companies pushed through a law in Michigan protecting them when their drugs injure or kill people, as long as the drugs were approved by the Food and Drug Administration. There is no reason F.D.A. approval, a deeply flawed process, should be a shield.

When corporations do end up in court, they have lowered the stakes substantially by undermining punitive damages, which have long been one of the main ways that society deters people from unreasonably putting others at risk. The United States Supreme Court struck a major blow against punitive damages a decade ago, ruling that it was unconstitutional for a jury to award $2 million in punitive damages against an auto dealer that knowingly sold a damaged, repainted BMW as new.

Lower federal court judges, many of whom have been screened by the Bush administration for pro-business sympathies, and state court judges, many of whose campaigns were bankrolled by big business, are eagerly joining in. So are state legislatures. Last month Ohio’s legislature voted to cap punitive damages in many cases against paint companies — which have been accused of selling lead-based paint that causes retardation in children — at a paltry $5,000.

Perhaps the most insidious tactic for slamming the courthouse door on injured people is the stealth use of “pre-emption.” When federal and state laws conflict, the federal law pre-empts, or invalidates, the state law. The Bush administration is taking advantage of this principle by issuing weak regulations in a wide range of areas to wipe out stronger state-law protections. When people try to sue, they may find that their legal rights have been swept away. Among the areas the administration has focused on are automobile roof crushes and mattress flammability.

These incursions on the right to sue, taken together, are a serious assault on justice. In the most extreme cases, they may also be unconstitutional. Mr. Cline’s lawyer, Mr. Palmer, argued that preventing him from ever suing denied him his rights under the Alabama Constitution to seek a legal remedy for his injuries.

Mr. Palmer was encouraged when the Alabama Supreme Court reopened the case. He also saw it as a good sign when it scheduled oral arguments for a special public session on a law school campus, an indication it considered the case particularly significant. The arguments went well. “Questions asked by several justices indicated they were troubled by the legal Catch-22,” The Birmingham News reported.

The court ruled this month. It affirmed the dismissal of Mr. Cline’s case by a 5-to-4 vote. If Mr. Cline wanted to challenge the unfairness of the rules, it said, he would have to take it up with the State Legislature — a body every bit as pro-business as the Alabama Supreme Court.

Mr. Palmer intends to take the case to the United States Supreme Court. In the meantime, Mr. Cline can take some small comfort in the close vote. Four Alabama justices, at least, would not accept a legal system that told people like him that “no matter when” they “file the action, it is either too soon or too late.”

back to top

First lawsuit filed over New York's new Attorney Advertising Rules

Feb. 1, 2007

New Lawyer Advertising Rules in New York Violate Free Speech, Impede Internet Communications and Nonprofit Legal Services

Public Citizen Lawsuit Seeks Injunction Against Unconstitutional Rules

WASHINGTON, D.C. – New rules governing lawyer advertising set to go into effect in New York violate free speech and would impose anti-consumer restrictions on lawyers’ advertising and Internet communications, according to a lawsuit filed today by Public Citizen and a New York law firm.

The lawsuit seeks to prevent enforcement of New York's attorney advertising rules that are scheduled to take effect on Feb. 1. The new guidelines are part of a revision of the rules contained in New York's Code of Professional Responsibility for lawyers, which is designed to protect consumers by prohibiting false and misleading lawyer advertisements. The rules were released on Jan. 4 by the presiding justices of the four divisions of New York's appellate courts.

The lawsuit contends that the rules’ broad language unconstitutionally prohibits truthful communication of information about legal services to New York consumers. There is also no exception for solicitation of potential clients for pro bono representation, and thus the rules would apply to brochures and other materials released by nonprofit legal groups that provide no-fee legal services on civil justice issues.

According to the lawsuit, a 30-day waiting period in the rules on communications to individuals and their families who have been involved in potential incidents of personal injury or wrongful death would prevent civil justice groups from adequately defending citizens’ rights. For example, the waiting period would prevent nonprofit legal organizations from contacting individuals at political demonstrations who have been physically harmed by police officers to inform them about their rights and the availability of pro bono legal representation.

“The right to engage in truthful legal advertising is not only a matter of free speech, but it also encourages competition in the marketplace for legal services,” said Greg Beck, an attorney for Public Citizen. “It’s also important for educating citizens about their rights and making it easier for consumers to find the appropriate legal representation.”

The new rules would extend to communication on the Internet, including Web sites and e-mails. They would require law practices and nonprofit organizations to label e-mailed solicitations “ATTORNEY ADVERTISING” and save copies of the e-mail for a year, even if the e-mail offers free legal representation. Law firms would also have to label their Web sites as advertising and save a copy of the Web site at least every 90 days.

“While other states have debated limits on lawyers’ advertising, the New York rules go further than any other state in imposing burdensome restrictions on legal free speech,” said Beck. “New York has also taken the lead in interfering with and regulating legal Internet communications.”

Public Citizen represents its members and attorney James L. Alexander.

To read more about this issue, visit the Consumer Law & Policy Blog, co-sponsored by Public Citizen’s Consumer Justice Project.

back to top

New Ethics Rules in Rochester NY limit the "Heavy Hitter" ads.

New ethics rules for lawyers: Tone down ads


Nicknames out, disclaimers in starting today


Michael Zeigler
Staff writer


Post Comment

(February 1, 2007) — Eugene F. Pigott Jr. used to wince when he saw lawyers tout themselves in television commercials as "The Heavy Hitters" or loudly proclaim they could deliver "every single dime" to accident victims.

"People don't need a circus monkey telling them, 'I can do a better job than the last circus monkey you might have seen,'" said Pigott, associate judge of the state Court of Appeals, New York's highest court.

So last summer Pigott, then presiding justice of the Rochester-based Appellate Division of state Supreme Court, joined the top judges of the other three appellate divisions to propose new ethical rules to protect consumers from lawyers' ads that are misleading, inappropriate or overly aggressive.

A revised set of the rules takes effect today.

Although they're less sweeping and restrictive than the original proposal, they'll still change the way lawyers advertise in broadcast and print media and on the Internet.


Nicknames are out, such as the moniker of "The Hammer" used by former Rochester personal-injury lawyer James J. Shapiro, who was suspended in 2004 for ethical violations.

Ads are prohibited if they show lawyers in situations unrelated to their professional competence — such as ones broadcast by the Syracuse firm of Alexander & Catalano, who portrayed their name partners as baseball players tagged "The Heavy Hitters."

Ads must include disclaimers that prior results, such as multimillion-dollar verdicts or settlements, don't guarantee results in future cases.

Although actors can be used if the ads disclose that the actors are being paid, ads can't include testimonials from clients whose cases are pending.

Lawyers can use pop-up ads on their own Web pages, but not on other Web sites.

Rochester lawyer Michael R. Wolford, who led an effort to monitor lawyers' ads in 2005 as president of the Monroe County Bar Association, said he hopes the new rules will restore dignity to lawyers' ads.
"I don't want to build up anyone's hopes or expectations that this will change the climate significantly, but it's a step in the right direction," Wolford said. "Hopefully, the most offensive ads will be dropped."

But the new rules will face an immediate challenge.

Lawyer James Alexander of Alexander & Catalano said his firm would join with the Public Citizen Litigation Group of Washington, D.C., and the New York Civil Liberties Union to claim in a lawsuit that the rules impinge on lawyers' First Amendment rights.

"We still feel that some of these rules are vague and contradictory and difficult to enforce," said Alexander, whose firm advertises heavily in Rochester.

"We believe it has to be decided whether this violates our free speech right. We do intend to file a lawsuit in federal court very shortly to get a determination that everyone can live with and (that) will be the final word," Alexander said.

In the meantime, he said his firm has changed its advertising to abide by the rules and omit references to "The Heavy Hitters."

Lawyers across the nation have been allowed to advertise since 1977, when the U.S. Supreme Court overturned restrictions on lawyers' ads in newspapers. Follow-up decisions opened advertising for lawyers on the airwaves, in the Yellow Pages and in cyberspace.

Every state regulates its own lawyers ads.

In New York, the Lawyers' Code of Professional Responsibility restricts ads that are false, deceptive or misleading. Alleged violations of the code are referred to the Appellate Division and its Attorney Grievance Committee.

But last year, court administrators and the legal community cooperated in an unprecedented effort to change the Code of Responsibility to rein in ads that administrators believed have discredited the legal profession.

In a large part, the new rules are a legacy of Shapiro, whose take-no-prisoners TV ads in the 1990s featured explosions, falling bodies and car crashes.

A frequent target of disciplinary rules, Shapiro called himself "The Hammer" and promised to make those who injured his clients pay "every dime I can."

In a 1996 ruling, the Appellate Division said Shapiro's ads were "offensive and degrading to the legal profession" but found they were "constitutionally protected hyperbole."

Eight years later, however, the court suspended Shapiro for one year after finding he "grossly exaggerated and falsely depicted his skill" and improperly solicited business from a comatose accident victim.

Shapiro, who admitted that he had never tried a case in court and frequently farmed out his work to other lawyers, sold his business, lives in Florida and hasn't sought to be reinstated.

Thomas G. Smith, president-elect of the Monroe County Bar Association, formerly represented Shapiro. Although Smith said the new rules were needed, he said he believed that Shapiro bluntly stated what some other lawyers imply.

"Frankly, every law firm's brochure says that they obtain optimal results," Smith said. "He just said it in a crasser way."

As a counterbalance, the new rules will allow lawyers limited puffery: They can advertise if they've been evaluated by bona fide peer-reviews, such as the annual Best Lawyers in America publication.

Stephen G. Schwarz, managing partner of the Rochester personal-injury firm of Faraci Lange, said he longs for the days when lawyers' ads were banned.

"Speaking personally," he said, "it would have been better if the genie had never gotten out of the bottle and the Supreme Court hadn't opened this up."

MZEIGLER@DemocratandChronicle

back to top

Former Supreme Court Justice O'Connor to mediate 60 year-old Kentucky land dispute.

Tuesday, January 30, 2007

O'Connor may mediate dispute
Kentucky land case could mean millions

By Jim Adams
jadams@courier-journal.com
The Courier-Journal



Retired U.S. Supreme Court Justice Sandra Day O'Connor has told a federal court that she is willing to mediate a decades-old dispute over the government's taking of nearly 36,000 acres in Western Kentucky for an Army training camp during World War II.

More than $30 million appears to be at stake in the highly unusual case, in which about 1,000 former landowners and heirs complain that the federal government wrongly benefited from the sale of oil, gas, coal and other mineral rights under the land of the old Camp Breckinridge. The camp sat astride Union, Webster and Henderson counties.



The dispute was aired most recently in a class-action suit before Judge Susan G. Braden of the U.S. Court of Federal Claims in Washington, D.C. To encourage a settlement, Braden proposed in December that Fred J. Fielding, who was counsel to President Ronald Reagan from 1981 to 1986, serve as mediator.

But on Jan. 9, President Bush announced that Fielding was returning to the White House as his general counsel.

Braden then asked O'Connor to consider mediating the case and, according to an order Braden entered last Friday, the recently retired justice agreed to do so.

Multiple legal issues remain unresolved, and Braden's order proposes that O'Connor serve as mediator "for a term of 120 days to ascertain whether a settlement may be achieved."

Asked about the 120-day time period, William T. Griggs of Morganfield -- whose family's 250-acre Union County farm was taken by the government and has since been mined for coal -- said: "That sounds like a long time, but I understand that it takes a long time, there's a lot to do there. … When you've waited 60-some years, you get kind of impatient."

Griggs was 18 when his family's property was taken for about $70 an acre, or roughly $17,500.

Asked what she thinks of O'Connor's role in the case, Ruby Higginson of Evansville, Ind. -- who was a high schooler in the 1940s when her family's 803-acre farm was taken for about $67,000 -- said, "I just know that she is a very outstanding individual and we are happy that we have progressed this far."

Attorney Mark Stephen Pitt of Louisville, who represents plaintiffs in the case, said, "Justice O'Connor's willingness to become involved demonstrates the importance of this case and the unusual nature of the case, and the need that it be resolved, if possible, sooner rather than later."

The Justice Department would not comment on the judge's proposal that O'Connor serve as mediator. She could not be reached yesterday.

Braden has given both sides until Feb. 15 to consent or object to O'Connor's appointment. Pitt said the plaintiffs intend to file their consent soon.

Early in World War II, the government decided the farmland immediately east of Morganfield was prime real estate for an Army training site. So between 1942 and 1944, it initiated six condemnation actions in U.S. District Court, taking the property of hundreds of landowners.

The government paid them about $3.1 million for 35,849 acres, and Camp Breckinridge eventually held as many as 45,000 soldiers at a time.

By the 1950s, if not earlier, the government became aware of substantial oil, gas and coal reserves beneath the property -- and by the 1960s was selling off the mineral rights and the land itself.

The former landowners complained that the government sold the land in blocks too large for average individuals to buy. Such an action, they claim, violated verbal understandings at the time of the sales that the former owners would have the option of buying back their farms, should the government ever sell the property.

In addition, they argue that it was unfair for the government to profit as it did from more than $30 million in the sale of mineral rights.

The first legal action, in the mid-1960s in federal court, was dismissed. In 1968, the former landowners formed the Breckinridge Land Committee, which still meets on the third Friday of each month in the county courthouse annex in Morganfield. It began lobbying for Congress to intervene. In 1993, the Senate referred the case to the Court of Federal Claims.

Braden, who took the case over in 2003, held in 2005 that the contracts under which the government acquired the property were based on a mutual mistake -- "that no coal, gas, oil or other mineral deposits existed under the condemned properties" worth extracting. As a result, the government was "unjustly enriched," and the "available remedy" is restitution, she wrote.

Braden's report in December set out about $34 million that the government "received from the sale, lease or easement of coal, oil, gas and other mineral rights that were previously the property of the plaintiffs in this case." In addition, she wrote, the government sold surface rights to 31,963 acres between 1956 and 1968 for just under $6 million.

"It is a tragedy that the original claimants in this case apparently are now dead, without a final resolution of this matter," she wrote.

Reporter Jim Adams can be reached at (502) 582-4199.

back to top

Lawyers don't get the respect they deserve.

ARCHIVES

Lawyers don't get respect they deserve

It's become fashionable to knock lawyers.

People who couldn't tell a funny joke to save their lives can recite insulting wisecracks about the legal profession.

The fact lawyers are held in such a low esteem came to mind the other day when Democratic hopeful John Edwards announced his intention to seek his party's nomination for the presidency.

Before serving a term in the U.S. Senate, Edwards was a personal injury trial attorney and specialized in corporate negligence and medical malpractice claims. He ended up making a fortune through his success as a trial lawyer.

And that, more than his inexperience serving in an executive political capacity, may be the biggest handicap he has to overcome.

His detractors will make up disparaging stories about him dragging people with fake bandages into court and then having them get out of their casts and wheelchairs to dance around celebrating over huge settlements. The fact he was defending the rights of innocent victims will be downplayed.

Unless it's in the context of a television program, lawyers today do not get any respect. For some reason the public revels in watching lawyers protect the justice system on TV but takes a dim view of lawyers in the real world.

When the subject of lawyers is mentioned, eyes roll and complaints of red tape and high legal fees are often raised.

To some, being a lawyer ranks on the same level as being an embezzler, pickpocket or corrupt politician.

“They chase ambulances, looking for lawsuits to pry money from people and companies,” is a charge leveled quite frequently.

It's not uncommon to hear comments like, “Lawyers and their litigation are ruining this country.”

Or — “Leave it to a lawyer to take something simple that can be settled out of court with common sense and make it a complicated issue that costs everyone money.”

A few years ago a neighbor of mine complained after a nearby house had been sold.

“I heard a lawyer bought the place,” he said. “Just what we don't need, a lawyer moving into the block.”

I mistakenly thought he was joking.

OK, there are greedy lawyers. And there are attorneys around who do not always have the best interest of their clients at heart. However, every profession has its share of people who don't measure up under close scrutiny.

Those who chase ambulances and try to exploit situations unfairly are the exception rather than the rule.

Take a moment to evaluate the people you know who are lawyers. I think it's safe to say we are all familiar with lawyers who work tirelessly around the clock to serve their clients.

Most of the attorneys I know will go out of their way to encourage settlements in cases before they go to court. With the exception of divorce cases, where too often emotion pushes things into a win-at-all cost mentality, the lawyers I know are reasonable and practical.

The process alone of becoming a lawyer, forging through law school and having to pass stringent state bar exams, is enough to discourage all but the most dedicated.

Many go into the law profession to defend people without enormous wealth, giving them a chance to compete on equal footing against the rich, famous and powerful in a court of law.

Certainly it's true we live in a society that has become needlessly controlled by litigation. But that's not the fault of lawyers. Blame people who are too often greedy, self-centered and caught up in the ruthless nature of the corporate world for having a need to hire lawyers.

For the most part, lawyers abide by a high code of ethics and steer their clients to play by the rules.

What could be more honorable than that?

- David Maril, an Enterprise copy editor, can be reached at dmaril@enterprisenews.com.

back to top

Former Enron lawyers to pay $18 million to settle potential legal malpractice claims.

Enron Law Firm to Pay $18M

Houston (Jan. 23, 2007) - Texas law firm Andrews Kurth will pay Enron's estate $18.5 million to settle
Advertisement

"We have continuously denied wrongdoing and culpability with respect to our work for Enron," Andrews Kurth managing partner Howard Ayres said in a statement. "We felt, though, after the passage of five years, that it was expedient to enter into the settlement to put this matter behind us."

While the estate never officially sued the law firm for allegedly signing off on improper deals, a court-appointed bankruptcy examiner has written in reports that the firm may have committed malpractice in approving 28 transactions that involved asset transactions allegedly disguised as sales. Classifying the transactions in such a manner could have allowed Enron to falsely boost its cash flow.

Last year, another Houston-based law firm -- Vinson & Elkins -- settled bankruptcy-related litigation for $30 million. The bankruptcy examiner had alleged that Vinson & Elkins may have committed malpractice by failing to respond to red flags about Enron’s accounting practices.

Both law firms neither admitted, nor denied, wrongdoing or liability in agreeing to the settlements.

A federal bankruptcy judge must approve Andrews Kurth’s deal.


— WebCPA staff

back to top

Jury in MSD returns with mixed verdict

Both sides claim victory in MSD suit By Joseph Gerth jgerth@courier-journal.com The Courier-Journal A federal court jury found Wednesday night that the Metropolitan Sewer District had violated state whistleblower law when it fired two employees after one of them complained about political interference on a sewer project. But the jury’s decision to award little in damages left both sides claiming victory. Former inspector Ron Barber will get $35,000 for lost wages. But but former environmental engineer Sarah Lynn Cunningham wasn’t awarded anything. The two also had asked for punitive damages, but the jury didn’t agree. The jury also rejected Cunningham’s claim that MSD violated her constitutional right to free speech. She had complained to the state attorney general’s office more than two years ago about what she believed were improprieties on a sewer project in the Valley Village area. She claimed that Louisville Metro Council member Bob Henderson, his aide, Larry Mattingly, and former MSD board member Bill Gray interfered on the project and tried to reward political supporters with free fill dirt from the project. Henderson and Mattingly have denied wrongdoing. Gray died in November. Barber said he was just glad to get the story out and hopes that others who still work at MSD and testified in the seven-day trial don’t face reprisals. “I’m tickled. I wanted it out so people don’t have to work under this kind of pressure.” Cunningham said money wasn’t important. “They said what MSD was doing was wrong. I hope this will prevent this from happening to other people.” MSD Executive Director Bud Schardein said he felt “like a kid on Christmas morning. … I’m glad it’s over with so I … can concentrate on sewers and drainage.” He said the jury found that there was a “technical” violation of the state whistle-blower law. Schardein said his one regret is that he spent thousands of dollars of rate-payers’ money to defend “people at MSD who did nothing wrong.” Reporter Joseph Gerth can be reached at (502) 582-4702.

back to top

State Farm finally agrees to pay Katrina victims

State Farm agrees to pay up for Katrina in Mississippi
Updated 1/23/2007 11:54 PM ET E-mail | Save | Print | Reprints & Permissions | Subscribe to stories like this

By Kathy Chu, USA TODAY
State Farm has agreed to pay thousands of Mississippi homeowners hit by Hurricane Katrina likely hundreds of millions of dollars in a landmark settlement that's expected to reverberate across the storm-ravaged Gulf Coast.
The company agreed to a deal under which it will reopen thousands of homeowners' claims and is likely to pay as much as $500 million, Mississippi Attorney General Jim Hood announced Tuesday. There's no cap on the payout. The insurer will have to pay at least $50 million under the deal negotiated with the Scruggs law firm, which represents the majority of Mississippi homeowners who sued State Farm.

In a related development, State Farm will settle more than 600 individual Mississippi homeowners' Katrina claims for roughly $80 million, according to a person with direct knowledge of the negotiations who didn't want to be named because the settlement is confidential.

The settlement applies only to Mississippi homeowners — not to the thousands in Louisiana who are suing State Farm and other insurers, arguing that wind and rain ravaged their homes. Homeowners' policies cover wind and rain damage, but not flood damage, which is covered by federal flood insurance.

Homeowners could begin receiving insurance checks within a few weeks, after the class-action settlement is approved, as expected, by U.S. District Court Judge L.T. Senter Jr. As part of the agreement with State Farm in Mississippi, Hood agreed to drop a criminal probe against the insurer related to its claims-handling process.

Phil Supple, a spokesman for State Farm, the USA's largest home insurer, said its goal has always been to "reach a just, speedy and efficient resolution to these matters." A settlement "is in the best interest of our policyholders," Supple added.

About 35,000 Mississippi homeowners are eligible to have their claims reopened. For about 1,000 Mississippi residents whose homes were reduced to slabs by Katrina, State Farm will offer at least 50% of the homeowner's insurance on the property structure. The average house in Mississippi costs about $200,000, Hood estimates. Thousands more will receive lower amounts.

Homeowners who don't want to settle with State Farm can still sue the insurer. But the deal "gives a new opportunity for thousands of people to recover their insured losses through a quick process," says Zach Scruggs, an attorney who, with his father, Richard Scruggs, negotiated with State Farm.

State Farm is fighting hundreds of other Katrina-related lawsuits along the Gulf Coast, including in Louisiana. Attorneys in those cases said they hoped the Mississippi development would cause State Farm and other insurers to settle quickly.

"State Farm knows where to find me," says Madro Bandaries, who represents dozens of Louisiana homeowners disputing State Farm's payouts after Katrina. "They cannot, in my estimation, go to Mississippi and do one thing and then not go to Louisiana."

back to top

Courier Journal Reports Blacks Underrepresented on Jefferson County Juries

Study: Blacks underrepresented on juries
By Jason Riley
jriley@courier-journal.com
The Courier-Journal

Two-thirds of the defendants on trial in Jefferson County courts over the last four months were black, while about 16 percent of the jurors also were black, according to a study released Tuesday.

And the number of black jurors who sat on civil trials was 11 percent, according to the study by the Commission on Racial Fairness.

By comparison, African Americans make up about 20 percent of the total population in Jefferson County, and the commission had hoped to get a similar result for jury representation.

In early October, the 22-member commission asked local judges to begin monitoring the number of blacks on jury panels and track how and why they are being removed.

The results were announced Tuesday afternoon. The commission was set to discuss them.

The surveys results come more than a year after a Courier-Journal series found that Jefferson County residents who live in low-income, mostly black areas are less likely to sit on juries.

The commission study found that of the 28 criminal cases followed since late September, 48 jurors were black and 249 were white. Of the 10 civil cases studied, 12 jurors were black and 86 were white.

The commission had hoped to learn whether there is a problem with racial diversity in the courts and where it is occurring — whether it be with random removals, prosecutor or defense attorney challenges or a lack of blacks in the pool.

According to the results, prosecutors removed 24 percent of the black jurors in criminal trials compared to 76 percent of the white jurors. While defense attorneys struck eight percent black and 92 percent white.

The Commission on Racial Fairness has also has been tracking the race of the county’s total jury pool, roughly 250 people chosen every two weeks.

Of the 11 jury pools looked at, only one was made up of at least 20 percent black members.

Unlike some states, Kentucky courts don’t track jurors’ race to determine whether minorities are fairly represented. State court officials have said they don’t ask about race to avoid the appearance that it is a factor in jury selection.

The newspaper series found that attorneys across the state — both prosecutors and defense lawyers — removed potential jurors, including minorities, for the kinds of clothes they wear, for being single parents, even for the expressions on their faces.

And it found that some courts, like Arizona’s Maricopa County, which includes Phoenix, ask potential jurors to list their race to ensure that jury pools represent the community.

The commission is expected to issue a report on its findings and present them to Kentucky Chief Justice Joseph Lambert.

Reporter Jason Riley can be reached at (502) 582-4727.

back to top

New evidence may help Comair victims' attorneys.

Attorneys say details in Comair crash investigation help lawsuits

Julie Ocepek
Created: 1/20/2007 2:14:46 PM
Updated:1/20/2007 2:18:56 PM

LOUISVILLE, Ky. (AP) -- Attorneys involved in the lawsuits stemming from the crash of a Comair flight in Kentucky last summer say new revelations could leave the airline, the airplane's builder and the Lexington airport open to punitive damages.
Autopsy summaries released with other documents related to the crash show that 16 people lived through the initial impact and were alive when the plane caught fire after crashing. One person of the 50 aboard survived.

The parties also could be open to the damages because of possible violations of Comair and Federal Aviation Administration policies.

Comair says an investigation has found multiple factors contributed to the crash. The carrier is based outside Cincinnati in Erlanger, Kentucky.

back to top

Lexington Kentucky ComAir cockpit voice recorders reveal pilots violated "sterile cockpit" rule and flight Controller changes his story

Wednesday, January 17, 2007 E-mail this | Print page

Comair says pilots broke cockpit rules

By James R. Carroll
jcarroll@courier-journal.com
The Courier-Journal

MULTIMEDIA
ATC Communications audio (MP3) / Media/tower transcript (PDF)
ATC Phone Call to Fire and Rescue audio (MP3)* / Transcript (PDF)
* conversation begins 6 minutes, 30 seconds into tape.

WASHINGTON – The flight crew of the Comair jet that crashed Aug. 27 broke federal rules barring pilots from talking about matters unrelated to the flight during moments leading to takeoff, the airline said Wednesday.

The transcript of the cockpit conversation between Capt. Jeffrey Clay and First Officer James Polehinke showed that as the plane left the gate at the Lexington airport, the two men were talking about their families and schedules.

Four minutes before the crash, as Flight 5191 was taxiing, the crew was discussing another pilot’s new job.

The aircraft was cleared to taxi onto the correct runway, but ended up on the airport’s shorter runway, which was not long enough for the jet’s takeoff. Moments later, the plane tried to take off and crashed in trees off the end of the runway.

Forty nine people aboard died, with Polehinke as the lone survivor.

Federal regulations prohibit flight crews from, among other things, "engaging in nonessential conversations within the cockpit" during critical phases of flight, which include "all ground operations involving taxi, takeoff and landing."

"The transcript does make it clear the crew did not follow Comair’s sterile cockpit policy," said airline spokeswoman Kate Marx. "Our policy does comply with FAA regulations."

But, she said, "while pilots did not follow the sterile cockpit policy, it is premature to make conclusions regarding the role it may have played in the accident."

"Comair has and will continue to emphasize the importance of the sterile cockpit both in our training program and in communications to our flight crews," Marx said. "Comair is committed to understanding all the safety issues surrounding this accident and we will take whatever steps necessary to ensure safe operations for our customers and our employees."

Chicago aviation lawyer David Rapoport said the sterile cockpit rule is intended to keep the flight crew focused on operating the plane.

"Non-pertinent discussions - B.S.-ing in plain language - is distracting and has the potential for distraction," he said. "This crash may be a very good example why its so important that the rule get enforced better."

The transcript is among the investigative files on the Aug. 27 jet crash in Lexington that the National Transportation Safety Board released Wednesday.

The early-morning accident still is under investigation by the NTSB.

Moments before the crash as the plane ran down the wrong runway, Polehinke commented that it was “weird” the runway lacked lights, the transcript says.

“Dat is weird with no lights,” copilot James Polehinke said at 6:06:16 a.m., according to the transcript.

"Yeah," the pilot, Jeffrey Clay, replied at 6:06:18 a.m.“Whoa,” Clay said at 6:06:31 a.m.The sound of impact is less than two seconds later.

The last sound recorded is from Clay, which the transcript says is an unintelligible exclamation at 6:06:35 a.m.

The air traffic controller at Blue Grass Airport directed them to taxi to Runway 22, which is the runway designed for such a large plane.

Polehinke acknowledges the plane will steer to Runway 22.

The lone controller in the Blue Grass tower was handling two other flights while directing Comair Flight 5191, according to the transcript.

At the same time that he cleared the Comair jet to taxi to Runway 22, he was directing an American Eagle flight for take off and talking to a SkyWest plane that was leaving, the transcript says.

Another document shows the air traffic controller wrote after the crash that he saw the plane taxi to the correct runway, but later he changed that to say he had not been watching.

"After the review of my original personnel statement, I did not watch Com191 take Ry. (Runway) 22," controller Christopher Damron wrote in a statement that is part of the accident investigation file.

"I saw Com191’s position on Twy (Taxiway) A, heading for Rwy 22. I then cleared Com191 for takeoff. I saw Com191’s lights turning toward Rwy 22. I turned around to do the traffic count, heard a crash and saw a fireball west of the airport," he wrote.

The documents do not explain why the controller changed his statement.

Investigators have determined that the jet took off from the airport’s shorter, 3,500-foot runway, which is not designed to handle a plane of that size and weight. The jet was supposed to use the 7,000-foot runway.

A week before the crash, the airport did some paving and changed the taxiway to the longer runway.

The documents released Wednesday do not indicate whether federal investigators interviewed Polehinke, although summaries of other interviews are included.

Neither agency plans to comment on the documents and the tape.

The accident raised issues about proper airport signage and whether the control tower was adequately staffed.

In November, an FAA review of airport signs and markings found that Blue Grass complied with federal standards. But the FAA admitted shortly after the crash that it violated its own policy by having only one controller instead of two on the midnight shift in Lexington. Nearly five months before the crash, an air traffic controller told Kentucky’s senators that the airport’s midnight shift had two in the tower "only when convenient to management."

"This is the FAA playing a scary game of politics and using safety as the trump card," Faron Collins, then the vice president of the National Air Traffic Controllers Association in Lexington, wrote lawmakers on April 4, 2006.The Lexington accident also brought new congressional and media attention to controller staffing nationwide.

Nearly 1,100 fewer air traffic controllers are guiding planes now than three years ago, even though flights are increasing, according to a project published in December by The Courier-Journal and Gannett News Service.

The controllers’ union contends that some facilities are critically understaffed, causing flight delays and increasing the chances that overworked controllers could cause a fatal mistake.The controller force also is facing a wave of retirements. The number of controllers choosing to retire has exceeded FAA projections three years in a row, The Courier-Journal and Gannett found. That is putting more of the workload on less-seasoned controllers and trainees.

FAA has said that a second controller at Lexington would not have made a difference in the Lexington accident because that controller would have been looking at radar, not the airport runways.The agency also says that most of the nation’s air traffic control facilities are adequately staffed and that it has a plan to deal with the retirements.

Comair in October sued the airport and FAA, saying both made mistakes that led to confusion by the Comair pilots.

Blue Grass Airport in December sued Comair, saying negligence and wrongful conduct by the airline and the flight crew were the only cause of the crash.

Reporter James R. Carroll can be reached at (202) 906-8141.

Check www.courier-journal.com for updates.

back to top

Local lawsuit against Vatican allowed to Proceed

courier-journal.com > Local News View 7 days > Su M Tu W Th F Sa Adv. search >

Friday, January 12, 2007 E-mail this | Print page

Suit against Vatican can proceed
Child sex abuse cover-up is alleged

By Jason Riley
jriley@courier-journal.com
The Courier-Journal

A federal judge in Louisville issued a "historic" decision yesterday by refusing to dismiss a lawsuit against the Vatican that alleges a cover-up to protect priests who molested American children.

"This is the first and only case which has as its sole objective holding the Vatican financially accountable for all of the childhood sexual abuses committed in the U.S.," said Louisville attorney William McMurry, who filed the suit in 2004 on behalf of three men who allege abuse dating as far back as 1928.

If U.S. District Judge John Heyburn II's decision stands, it could open the door for attorneys to take depositions of Vatican officials -- including Pope Benedict XVI -- obtain copies of church records and documents and ultimately determine "what prompted all of the bishops to keep quiet, hide these pedophiles and refuse to report child abusers," McMurry said. He called the decision "historic."

But Jeffrey Lena of Berkeley, Calif., counsel for the Vatican, known legally as the Holy See, said Heyburn's decision rejected portions of McMurry's lawsuit and left the case hanging on a "fairly weak linchpin" -- that U.S. Catholic clergy are employees of the Vatican.

"The Holy See is just not responsible for this, and that's the bottom line," Lena said.

Regardless, the case could be entangled in appeals for years before eventually ending up at the U.S. Supreme Court, McMurry and Lena said.

One of the three plaintiffs is Michael Turner of Louisville, who also filed the first in a wave of roughly 250 sexual-abuse lawsuits against the Archdiocese of Louisville between 2002 and 2003. The litigation culminated in a $25.7 million settlement with most of the plaintiffs. McMurry and his legal team received 40 percent of most plaintiffs' payments.

The two other plaintiffs in the Vatican suit are James H. O'Bryan and Donald E. Poppe, both of whom live in California and say they were abused by priests while growing up in Louisville. All three are asking for unspecified monetary damages from the Vatican.

McMurry also is requesting injunctions requiring the Vatican to "cease its violations of the internationally recognized human rights of children" and "to report all allegations of childhood sexual abuse" in the United States. And he is asking a federal judge to supervise the Vatican's conduct for 10 years.

Legal scholars contacted yesterday said they hadn't thought the lawsuit -- the only sexual-abuse suit naming the Vatican as the sole defendant -- would make it this far, and they still doubt it will survive.

"The Holy See is not responsible for the day-to-day supervision, appointments and discipline of individual clerics," said Mark Chopko, general counsel for the U.S. Conference of Catholic Bishops.

Other legal experts say that no matter the result, it may be impossible to win damages from the Vatican, which is a sovereign state with many legal protections.

"The question is whether you can get a judgment against the Vatican and have them actually pay," said Carl Tobias, a law professor at the University of Richmond. "I'm surprised you can get jurisdiction in a U.S. court over the Vatican."

But Jeff Anderson, a Minnesota-based attorney who filed a similar suit against the Vatican in 2003 that also has been allowed to go forward, said since the Vatican does business in this country, it submits itself to U.S. laws and legal obligations.

In his ruling, Heyburn refused to dismiss allegations that the Vatican failed to report incidents of child abuse and failed to warn parishioners that their children would be under the care of known or suspected pedophiles. The other claims that remain against the Vatican, according to the ruling, are outrage and emotional distress and violations of the customary law of human rights.

Heyburn, however, did dismiss a negligence claim that the Vatican failed to provide safe care of children entrusted to the clergy. The judge also dismissed deceit and misrepresentation claims.

Lena said the Vatican did not present any evidence before the decision. He said the ruling is based on a preliminary legal challenge in which the judge must treat the facts stated in the complaint as if they were true.

David Clohessy, national director of Survivors Network of those Abused by Priests, said the ruling is a step "towards the truth."

"This is part of a slow but clear trend by judges everywhere to hold wrongdoers responsible for child sex crimes, even if they wear clerical garb."

McMurry is basing a large part of his claim on a secret 1962 Vatican document.

Leaked to the public last year, the document, approved by then-Pope John XXIII, calling for strict secrecy in handling priests accused of soliciting sex in the confessional, he said.

McMurry called it a "smoking gun" that also requires Catholic Church leaders to keep secret other allegations of sexual misconduct.

Some experts in church law have downplayed the significance of the document. They say it only required secrecy in the church disciplinary process and did not prevent a bishop from reporting crimes to police.

McMurry is seeking to have the Vatican suit certified as a class-action case, saying he believes there are "at least several thousand" victims nationwide.

Given Pope Benedict XVI's age, 79, McMurry said he will request that attorneys be able to depose the pope now.

McMurry said that is important because the pope was a bishop on a commission that dealt with priests accused of sexual abuse. "He knows where all the bones are buried," McMurry said.

Reporter Jason Riley can be reached at (502) 582-4727.

back to top

Campbellsville, Kentucky Jury Awards $900,000 in Bad Faith Case

Central Kentucky News Journal

Wednesday, January 10, 2007

Archives

Defendants appeal jury award

By Calen McKinney, Staff Writer
Two insurance companies are appealing a jury's decision to award more than $700,000 to a Campbellsville man for damages he suffered when his son was killed in a 1995 collision.

Harlon Barnett, individually, and as administrator of the estate of Steven Ray Barnett, filed suit against Hamilton Mutual Insurance Co. of Cincinnati, Ohio, and Caulk and Eastridge Insurance Co. of East Broadway in Campbellsville in Taylor Circuit Court on Jan. 4, 2000.

EMC Insurance Co. was later added as a defendant.

The lawsuit alleged that Barnett was entitled to damages resulting from the "bad faith" actions of the insurance companies.

The suit stemmed from a collision that resulted in the death of a Finley teenager and four Campbellsville men.

According to court records, Sixty-Eight Liquors allegedly sold beer to Phillip Matthew Colvin, 16, of Finley on June 2, 1995, before he collided head-on with another car. Colvin died in the collision.

The other four killed were: Jeremy N. Clark, 19, of Hatcher Road in Campbellsville; Brent Murphy, 26, of Happy Hills Drive in Campbellsville; Kevin "Ace" Kearney, 25, of Wickliffe Avenue in Campbellsville; and Steven Ray Barnett, 21, of Willow Way in Campbellsville.

Murphy, Kearney and Barnett were passengers in Clark's vehicle. Clark was the only one of the five men who was wearing a seat belt.

According to autopsy reports, both drivers were under the influence of alcohol.

In September 2006, more than 10 years after the collision and six years after Barnett filed his suit, a jury heard testimony in Taylor Circuit Judge Doughlas M. George's courtroom.

Overall, the jury awarded Barnett $755,000 for lost legal costs, interest and investment income and punitive damages.

According to court records, Barnett was also awarded $195,833.33 for his attorney's fees, making the total $950,833.33.

Campbellsville attorney David Nunery represented Hamilton Mutual Insurance Co. and EMC Insurance Co. He said the claims against Caulk and Eastridge were dismissed just before the trial began.

EMC Insurance Co. is a large national insurance carrier, Nunery said, and was added as a defendant in the case because it purchased Hamilton Mutual Insurance Co. in 1997.

On Tuesday, Nunery said the case was appealed to the Kentucky Court of Appeals on Dec. 27.

Nunery said he and the other attorneys involved in the case will begin the appeals process with briefs filed on several issues. The case will eventually be assigned to a three-judge panel, Nunery said, that will settle the issues by writing an opinion.

If necessary, Nunery said, the case could be taken to the Kentucky Supreme Court for review. The appeals process, he said, can take more than a year.

The appeal, filed by Steven Casey Call of Nunery and Bennett PLLC, cites numerous issues for the Court of Appeals to consider.

Lexington attorney Austin Mehr represented Barnett. In September, Mehr said he thought the jury's decision was a good one.

"These types of cases need to be brought occasionally to level the playing field with insurance companies who like to hold on to their money ... this company definitely owed $900,000 to [the Barnetts]."

Mehr said Hamilton Mutual Insurance Co. wanted to play "hard ball" in its negotiations.

"They did that," he said. "They got what they deserved."

On Tuesday, Mehr said he will be contesting the appeal.

Mehr said he thought George did an excellent job of ensuring that the defendants had a fair trial.

"[We] think the decision is right," he said. "We think [the insurance companies] ought to recognize that they're wrong and pay the judgment."

- Staff Writer Calen McKinney can be reached at 465-8111 Ext. 302 or by e-mail at reporter@cknj.com.

back to top

Courier Journal Article: Senior Judge Program Sparks Many Objections

Senior judge program sparks many objections
Critics decry lack of merit screening

By Andrew Wolfson and Jason Riley
The Courier-Journal

Lawyers routinely gave her by far the worst marks in bar surveys. And in November, Jefferson County voters removed her from office after eight years in District Court.

But Paula Fitzgerald is back -- as a senior judge, one of 42 retired judges statewide who work part time to help handle the Kentucky courts' growing caseload.

To Fitzgerald's critics, her appointment undermines the voters' will and points out the lack of merit screening that other states have in place for selecting senior judges.

"The voters threw her out, and now she doesn't have to answer to the voters anymore," said Jefferson Commonwealth's Attorney Dave Stengel, who protested Fitzgerald's appointment to Kentucky Chief Justice Joseph Lambert. "There is no accountability."

Stengel said Fitzgerald's behavior in court was "eccentric to the point of being bizarre." He said she refused to enter the results of cases in a courtroom computer and to fax approval for search warrants to police or prosecutors.

Lambert said that he was aware of the criticism of Fitzgerald but that he has no discretion to exclude judges from the program, as long as they meet the age and service requirements and have no pending disciplinary complaints.

Appointments
Fitzgerald isn't the only Kentucky judge to lose an election and still receive a senior appointment.

Ann O'Malley Shake, a highly regarded circuit judge who lost a Supreme Court race last year, was among those added this month.

And Henry Weber, a former district judge who routinely had some of the highest ratings in lawyer evaluations, became a senior judge after losing a re-election bid.

But Fitzgerald was consistently rated as one of Jefferson County's worst judges.

In four successive Louisville Bar Association surveys and evaluations, she received the lowest marks of any district or Family Court judge. Earlier this year, 31 percent of the lawyers who appeared before her said she was unqualified to sit on the bench, which far exceeded any other incumbent's numbers.

Fitzgerald, who was defeated by Annette Karem in the November election, didn't respond to several requests for comment. After the most recent bar poll was released, which was last February, she didn't dispute the rankings and instead focused on achieving "social and economic justice for the everyday people of Jefferson County."

Louisville attorney Scott Cox, one of a half-dozen lawyers who contributed to Fitzgerald's re-election campaign, said he routinely appeared in her courtroom and she was "always very courteous to me and fair to my clients. She had a soft spot in her heart for poor people who appeared before her and victims of domestic violence."

Lack of screening
Unlike some states, Kentucky has no merit screening of appointments for senior judges, who are assigned to fill vacancies around the state and agree to serve 120 days a year for five years. In exchange, they receive enhanced retirement benefits usually worth several thousand dollars a year.

In Indiana, applicants must apply to a commission and submit the names of three lawyers who appeared in their court. In Tennessee, the Supreme Court must determine that an applicant's service "would promote the effective administration of justice."

And in Florida, candidates are evaluated not only when they apply, but also periodically after their appointment.

The Florida Supreme Court also bars judges who lost their most recent election. Even though "competent judges may occasionally fail to win re-election," the Florida court said, "concerns of public trust and deference to the electoral process dictate that the expressed will of the voters prevail."

'Some kind of discretion'
Kentucky has 45 judges in its program, including seven from Jefferson County. Fitzgerald is one of 14 who were added Jan. 7.

The program, created in 2000, expires this year unless it is extended by the General Assembly.

Jefferson County Public Defender Dan Goyette said that considering Kentucky's deep-seated tradition of electing judges, "it seems incongruous" to allow judges who have failed to win re-election to continue presiding over cases involving the same citizenry that removed them from office.

"The situation is exacerbated by the fact that there is no review mechanism … to determine their suitability to continue serving, notwithstanding having been 'unelected,' " said Goyette, chairman of Citizens for Better Judges, which promotes the election of qualified candidates.

Stengel said he will support legislation this year to require screening of applicants for senior judge.

The presidents of the Louisville Bar Association, Tom Williams, and the Kentucky Bar Association, Bob Ewald, agreed that screening is warranted.

"There should be some kind of discretion," Ewald said.

Lambert recalled that when the program was created, some legislators said they didn't want participants to be subject to "potentially arbitrary decision-making" about who got in.

But he said that screening would "probably be a good idea" and that he will work with the General Assembly "in perfecting" the program.

However, although barring defeated judges might seem like a good idea, Lambert noted that some good judges are defeated when they seek re-election. That fear of losing might discourage good judges from seeking another term, he said.

Judge qualifications
The senior judge program is open to retired or defeated judges whose age and years of service, including previous government employment, add up to 75. Fitzgerald, 59, was once a state corrections officer.

The commonwealth's attorneys association contends that the program might violate the Kentucky Constitution, which requires that judges be elected, according to group president Rickey Bartley, the Pike County commonwealth's attorney.

The constitutionality of the program has not been tested, but Lambert noted that another section of the state constitution gives the chief justice the right to "assign temporarily" any judge, active or retired, to sit on any bench but the Supreme Court.

Lambert and other state court officials say that it is cheaper to use senior judges than to create new judgeships, in part because the former work out of their homes or use the office and staff of the sitting judge for whom they are covering.

They also are available to travel on short notice to wherever they are needed. Creating a single new judgeship costs about $300,000 a year, Lambert said.

The senior judge program costs about $550,000 a year, including expenses and appropriations for enhanced retirement benefits, court officials said.

"The senior status program is a bargain for Kentucky taxpayers," Lambert said.

Reporter Andrew Wolfson can be reached at (502) 582-7189.

Reporter Jason Riley can be reached at (502) 582-4727.

back to top

Jury Awards $2.5 Million in Punitive Damages Against State Farm for Denying Katrina Claim

Jury hits State Farm for $2.5 million in Katrina case
POSTED: 2:27 a.m. EST, January 12, 2007
Story Highlights• Jury awards Biloxi, Mississippi, couple punitive damages
• Judge rules State Farm is liable for $223,000 in storm damage to home
• Insurer had argued it wasn't liable for damage caused by water
• Ruling could affect hundreds of other cases
Adjust font size:
GULFPORT, Mississippi (AP) -- A jury on Thursday awarded $2.5 million in punitive damages to a couple who sued State Farm Fire & Casualty Co. for denying their claim after Hurricane Katrina.

The decision could benefit hundreds of other homeowners challenging insurers for refusing to cover billions of dollars in storm damage.

A federal judge only hours earlier had taken part of the case out of jurors' hands before they awarded punitive damages to State Farm policyholders Norman and Genevieve Broussard.

U.S. District Judge L.T. Senter Jr. ruled Thursday morning that State Farm is liable for $223,292 in damage Hurricane Katrina caused to the Broussards' home. Senter left it to the jury to decide whether to award punitive damages.

Senter's decision to make a directed verdict rather than let the jury decide the entire case appeared to surprise everyone in the courtroom. After he explained his ruling, Senter ordered a recess to give attorneys time "to get over the shock." (Watch attorneys from both sides discuss the ruling )

Some of Senter's earlier rulings in other Katrina cases have favored the insurance industry, but his decision Thursday calls into question the companies' refusal to cover damage from Katrina's storm surge.

The Broussards sued State Farm for refusing to pay for any damage to their home, which Katrina reduced to a slab.

The couple, who wanted State Farm to pay for the full insured value of their home plus $5 million in punitive damages, claimed that a tornado during the hurricane destroyed their home. State Farm blamed all the damage on Katrina's storm surge. (Watch how some homeowners feel they've been victims twice )

State Farm and other insurers say their homeowner policies cover damage from wind but not from water, and that the policies exclude damage that could have been caused by a combination of both, even if hurricane-force winds preceded a storm's rising water.

Senter, however, ruled that State Farm couldn't prove that Katrina's storm surge was responsible for all of the damage to the Broussards' home. The judge also said the testimony failed to establish how much damage was caused by wind and how much resulted from storm surge.

"We are surprised and disappointed by the court's ruling," said State Farm spokesman Phil Supple. "The expert testimony supported a different result. After the conclusion of this case, we will evaluate our next steps in this lawsuit."

In his closing argument Thursday, one of the Broussards' attorneys, William Walker, said State Farm had breached their contract "in a bad way" by denying their claim. State Farm "acted like a chiseler," he said, adding, "The pocketbook is what they listen to."

State Farm attorney John Banahan urged jurors to "use your head and your heart" in deciding on punitive damages and to reject an attempt by the Broussards' attorney to demonize the company as an "evil empire."

Robert Hartwig, chief economist for the Insurance Information Institute in New York, said before the jury announced its decision that a punitive damage award would be "distressing" for insurers.

"It adds even more cost and more uncertainty to the other problems that already exist in the Mississippi homeowners insurance market," he said.

Settlement talks in separate case
The Broussards' case isn't directly involved in recent settlement talks between State Farm Fire & Casualty Co., Mississippi Attorney General Jim Hood and policyholders' lawyers.

People with direct knowledge of the settlement talks told The Associated Press this week that State Farm, Mississippi's largest home insurer, is considering paying hundreds of millions of dollars to settle more than 600 lawsuits and resolve thousands of other disputed claims.

Richard "Dickie" Scruggs, an attorney who represents 639 State Farm policyholders in the settlement talks, said he doesn't know how the judge's ruling on Thursday will affect the negotiations.

Randy Maniloff, a lawyer in Philadelphia, Pennsylvania, who represents insurers and has closely followed the Katrina litigation, said Senter's ruling is a "huge verdict" for homeowners.

"That settlement is looking awfully good for State Farm now," he added.

Copyright 2007 The Associated Press. All rights reserved.This material may not be published, broadcast, rewritten, or redistributed.

back to top

Article on Kentucky Doctor

A former Kentucky doctor is facing more than 100 lawsuits arising out of an 8-month stint at a West Virginia hospital.

Read More About Article on Kentucky Doctor...

back to top

Firm Free Report

Secrets to Buying Car Insurance in Kentucky

What The Insiders Don't Want You To Know About Semi-Truck Accidents.

Nursing Homes: What you absolutley, positively must know before choosing one.

We Can Help You!

Name *

Phone *

Email *

Tell us more *


The Poppe Law Firm
8700 Westport Road
Suite 201
Louisville, Kentucky 40242
Phone: (502) 895-3400
Fax: (502) 895-3420
Toll Free: 1-855-864-8949
Get Directions

Videos

Kentucky Accident Attorney:

Ketucky Legal Malpractice Attorney:

Kentucky Medical Malpractice Attorney:

Unfair Insurance Practices Attorney:

Kentucky Nursing Home Neglect Attorney:

General:

more

Frequent Questions

Kentucky Accident Attorney

Ketucky Legal Malpractice Attorney

Kentucky Medical Malpractice Attorney

Accounting Malpractice Attorney

Unfair Insurance Practices Attorney

Kentucky Nursing Home Neglect Attorney

General

more

Personal Injury and Accident Attorney for Louisville, Jeffersontown, Elizabethtown, Radcliff, Lexington, Frankfort, Bardstown, Ft. Knox, Richmond, Covington, Bowling Green, Newport, Owensboro, Paducah, Pikeville, Ashland, Morehead, Murray, Jefferson, Bullitt, Shelby, Hardin, Meade, Spencer, Henry, Larue, and Fayette Kentucky as well as New Albany, Jeffersonville, Indianapolis, Clark, Floyd, Harrison, Jefferson, Scott, Washington, Crawford, Perry, Marion and Spencer in Indiana.

The information you obtain at this site is not, nor is it intended to be, legal advice.
You should consult an attorney for individual advice regarding your own situation.

©2013 The Poppe Law Firm, All Rights Reserved, Reproduced with Permission Privacy Policy
Built by Attorney Web Design Foster Web Marketing. Powered by Attorney Marketing DSS: Dynamic Self-Syndication.