Monday, February 28, 2011

Cuomo Task Force proposes med mal cap

It's obsessive - the impulse to cap medical malpractice awards at the $250,000 pain and suffering limit adopted first (I believe) by the Childhood Vaccine Compensation Act and then by California twenty five years ago. Now it's Andrew Cuomo's budget commission's turn. As Tom Baker demonstrated in The Medical Malpractice Myth - there is no crisis in medmal cases. Numerous studies have shown that The sole purpose can be to shift the burden off doctors and hospitals and back to the injured. That and punish lawyers for doing no wrong.


New York Law Journal ALBANY - March 1, 2011 - The New York State Bar Association and its president yesterday blasted a recommendation by Governor Andrew M. Cuomo's Medicaid reform task force to cap medical malpractice awards for non-economic losses at $250,000.
Such caps are "anathema with respect to equal protection/access to justice," the state bar's Committee on the Tort System said in a memo in opposition to the Medicaid Redesign Team's recommendation. The memo was endorsed by the bar's executive committee.
Stephen P. Younger, the president of the state bar, said that the organization would write to Mr. Cuomo and all 212 state legislators urging them to oppose the cap proposal. Mr. Younger said he and other association officials will also ask state bar members to write letters to their legislators opposing the cap.
"We plan to put a full-court press on," Mr. Younger said yesterday in an interview.

Thursday, February 24, 2011

‘Don’t Ask, Don’t Tell’ Persists, Despite New Law to End It -

The bill passed by Congress did not actually repeal “don’t ask, don’t tell,” but only created a mechanism for doing so. The policy will not end until 60 days after the president, the secretary of defense and the chairman of the Joint Chiefs of Staff certify that the Department of Defense “has prepared the necessary policies and regulations” to carry out the change, and that the shift will not damage the ability of the military to fight or recruit. Until then, the Don’t Ask, Don’t Tell Repeal Act of 2010 expressly states that the old policy “shall remain in effect.”
And so the Log Cabin lawsuit continues in a federal appeals court in California, holding the government’s feet to the fire and defying politicians who have recommended reinstating the law. And the government has kept its policies in place....

‘Don’t Ask, Don’t Tell’ Persists, Despite New Law to End It -

Wednesday, February 23, 2011

U.S. will not defend DOMA

President Obama took Attorney General Eric Holder's advice today, announcing that the United States will no longer defend the Defense of Marriage Act.  The act's key provision discriminates against lawfully married same-sex couples.  The decision is a notable departure for the President who has always asserted that in his view marriage is between "one man and one woman".  A few weeks back he noted that he was reconsidering his long-held position.  Today the Department of Justice declared that DOMA cannot withstand strict scrutiny - the legal standard by which racial classifications are measured.

The measure was declared unconstitutional last summer by District Judge Joseph Tauro who ruled in a case brought by Massachusetts Attorney General Martha Coakley.  Massachusetts was the first state to recognize same-sex marriage.

Attorney General Holder's full letter to Speaker of the House John Boehner is HERE.  Holder informs the Congress that the executive will not defend the statute.

Thursday, February 17, 2011

BP Says payment terms are too generous

The Times has just reported that BP is about to lodge a complaint with the Kenneth Feinberg-administered Gulf Coast Claims Facility.  His projected losses are too high, in BP's opinion.  The document is not yet available.

Calculation of future damages


OTHERWISE: The biological weapons fraud: Colin Powell demands answers over Curveball's WMD lies | The Guardian

A forgotten part of the false Weapons of Mass Destruction (WMD) charge that was used to justify the U.S. invasion of Iraq was the smallpox vaccination campaign pitched by President George W. Bush in his state of the Union address in 2003.  Few of the public responded but mass vaccination of soldiers against the non-existent threat was ordered.  There was intense debate about compensation in the Congress.  The vaccination campaign and its lessons are examined in my Reactions and Overreactions: Smallpox Vaccination, Complications, and Compensation.  Mass vaccination campaigns - particularly the Swine Flu campaign of 1974 are also discussed in my Will the Post 9/11 World be a Post-Tort World? (2007)
OTHERWISE: The biological weapons fraud: Colin Powell demands answers over Curveball's WMD lies | The Guardian

Saturday, February 12, 2011

Legal Ethics Forum: Lincoln the Lawyer

from his notes for a law lecture (1850)
I am not an accomplished lawyer. I find quite as much material for a lecture in those points wherein I have failed, as in those wherein I have been moderately successful. The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done. ....
Legal Ethics Forum: Lincoln the Lawyer

Lincoln's Gettysburg Address read by Johnny Cash, Colin Powell, Sam Waterston, et al.

OTHERWISE: Lincoln's Gettysburg Address read by Johnny Cash, Colin Powell, Sam Waterston, et al.

Friday, February 4, 2011

Wilpon and partners face suit in Madoff fraud

To whom did the Wilpons's and partners owe a duty?
Text of complaint by SIPC trustee in Picard v. Katzh and Wilpon, et al.

1. There are thousands of victims of Madoff’s massive Ponzi scheme.  But Saul Katz 
is not one of them.  Neither is Fred Wilpon.  And neither are the rest of the partners at Sterling 
Equities (“Sterling”) who, along with Fred Wilpon and Saul Katz, are sophisticated investors 
who oversee and control Sterling and its many businesses and investments.  

2. The Sterling partners, their family members, their related trusts, and various 
entities they own, operate, and control were collectively one of the largest beneficiaries of 
Madoff’s fraud, reaping hundreds of millions in fictitious profits over their quarter-century 
relationship with Madoff.  The Sterling partners, their family members, trusts and Sterlingrelated entities made so much easy money from Madoff for so long that despite the many objective indicia of fraud before them, the Sterling partners chose to simply look the other way...

Thursday, February 3, 2011

Judge finds Feinberg not independent of BP | Reuters

District Judge Carl Barbier, who supervises the multi-district litigation arising from the BP Oil Spill has issued an order which requires that BP and attorney Kenneth Feinberg who administers the "Gulf Coast Claims Facility"
[r]efrain from referring to the GCCF, Ken Feinberg, or Feinberg Rozen, LLP (or their
representatives), as “neutral” or completely “independent” from BP. It should be clearly disclosed in all communications, whether written or oral, that said parties are acting for and on behalf of BP in fulfilling its statutory obligations as the “responsible party” under the Oil Pollution Act of 1990.
The order seems wise to me.  The agreement between the Feinberg firm and BP provides:

A. At the request of the White House and BP, Kenneth R. Feinberg (“Feinberg”),
acting through and as a partner of Feinberg Rozen, has established the Gulf Coast Claims
Facility (“GCCF”) to independently administer and where appropriate settle and authorize the
payment of certain Claims asserted against BP as a result of the explosion at the Deepwater
Horizon rig and consequent spillage of oil into the Gulf of Mexico (the “Event”).
1. Services and compensation
Feinberg Rozen shall perform the claims administration and settlement services described in Exhibit A attached hereto (collectively, the “Services”) in accordance with the terms of this Agreement, including the exhibits hereto. In performing such Services, Feinberg Rozen agrees to make available the services of Feinberg.
(b) Feinberg Rozen shall perform the Services in accordance with all applicable laws and regulations and the Claims Protocols set forth in Exhibit B. Without limiting the generality of the foregoing, Feinberg Rozen shall follow OPA as it operates and administers the GCCF.
(See BP page of this blog)

Feinberg's settlement authority is limited by the terms of the OPA - and BP has the right to renew (or presumably to cancel for breach) a highly remunerative contract.

Although the agreement itself declares that there is no attorney client relationship - and the estimable Stephen Gillers says so too - I think “attorney for BP” is an accurate way to describe his role. He is settling claims and obtaining general releases. Of course claims servicing agents do similar things.

But Feinberg is an attorney of impeccable reputation. So when he claims to be “independent” that may carry persuasive weight with claimants. Certainly his authority as attorney and settlement agent appears to be broad - - so long as he stays within the parameters of the Oil Pollution Liability Act of 1990. (BP can appeal to a private panel awards of more than $500,00). 

Feinberg  is an authorized settlement agent of BP. I think that would be a more prudent way for the Gulf Coast Claims Facility to be described to claimants. To fail to do that presents the risk that a claimant could set aside an agreement - asserting that his waiver was not fully informed - that he thought a neutral, disinterested judgment had been made.  Judge Barbier's ruling seems to substantially remedy that problem.

Judge finds Feinberg not independent of BP | Reuters

Judge finds Feinberg not independent of BP | Reuters