Scary times…..

March 24th, 2014

I don’t claim to be a student of world history or politics, but I do remember my high-school studies in world history, and that’s why Vladimir Putin scares the hell out of me. Because Putin is the shiny new face on, not just the old Soviet Union, but the ethnic philosophies that Hitler espoused after he rose to power with the Third Reich. Yes, I’m aware of Godwin’s Law, but hear me out.

Putin is ex-KGB. Everyone knew it when he rose to power, but he seemed to be a benevolent version of it. He was invited to join in with G7 and NATO discussions, and the belief was that he represented the face of a kinder, gentler Russia. But the arguments Putin is putting forth these days smack of the same stuff that was used to annex portions of Czechoslovakia in the years leading up to World War Two. Back then, Hitler argued that the Sudetenland—the western-most portion of Czechoslovakia—was heavily populated with ethnic Germans and should be annexed as a part of Germany. This is, of course, the exact same argument Putin has used for annexing the Crimea. Hitler argued the same thing with regard to Austria before annexing the entire country. It remains to be seen if Putin will do the same with the rest of Ukraine, but it doesn’t look promising for anyone who holds peace as a priority.

Dealing with the devil carries a cost. Putin became a part of the international community and received legitimacy from U. S. administrations. It seems that no one knew he would become this. These are scary times we live in.

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The Blockbuster Decline (or, a Unified Theory of Netflix)

December 12th, 2013

In the last month, the once mighty Blockbuster Video chain has gone pretty much entirely out of business.  Oh, there are one or two holdouts, but the business that once was is basically no more.  No more driving to the store on Friday evening and picking up the action flick du jour.  It’s a bit of a surprising turn for a business that was thriving ten years ago.

But, of course, times changed.  Netflix became a major competitor to Blockbuster as customers avoided the trip to the store and the lines in favor of just walking to their mailboxes.  So what if the drive is a short one?  The walk is even shorter.  But that’s not what killed Blockbuster.  It managed to co-exist with Netflix’s mail-out DVD business, but the whole house of cards came crashing down with the advent of streaming video from a multitude of sources.  And it got me wondering, what’s the difference?  The answer I came up with was instant gratification. 

I always noted a tendency in myself whenever I filled up the old Netflix queue with DVDs to be mailed out, and I contrast that to my tendencies when filling the streaming queue that I currently have.  It made me think there are two sides to every subscriber (or at least, to me as a subscriber).  The mail-out subscriber has a particular image of himself—erudite, interested in fine film and artistic quality.  The mail-out subscriber is the one who queues up foreign films, classics, and Oscar nominees.  He seeks out challenging material that will make him think and that displays the best moviemaking has to offer.  And he’ll probably almost never watch any of this stuff.

And then there’s the streaming subscriber who can barely be bothered to put on pants and shake the Cheetos dust out of his t-shirt.  He wants to see something funny or watch people die, and he wants it right now.  He’s not willing to wait the three or four days it takes for the movie he wants to see to get mailed from Netflix’s distribution warehouse to his home, so he’s willing to go hit the local vid store if that’s the only way to satisfy his craving.   But, hey, now there’s streaming!  And that means those pants can stay in a crumpled heap on the bedroom floor, and he can start in on the Doritos, while still getting his movie fix. 

Instant gratification is what separated the new competition from the old for Blockbuster, and I think it’s what signaled its demise.  What does this have to do with law—the ostensible purpose for this blog?  Well, not a whole lot.  I could say something about patience being a virtue for an appellate lawyer because you never know how long an appellate court is going to take to decide your case, but that would be a stretch.  Truth is I just thought it was interesting and a real sign of the technological changing of the guard we see so much of these days.  Technology has made my solo practice possible (or at least, much more feasible), and our court system is continuing to adapt it to new use.  For lawyers, I think the new frontier is an electronic one, as courts push firms to modernize and likely as clients insist on the efficiency that technology can bring about.

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What we become….

December 10th, 2013

A few months ago, I saw the movie Zero Dark Thirty.  If you’re not familiar with it, it’s an account of the hunt for Osama bin Laden, beginning with the World Trade Center attack in September of 2011, through his eventual killing.  (Incidentally, if you’ve not seen the movie, but want to, stop reading now.  There are spoilers ahead.)

 The movie is fascinating.  It presents a behind-the-scenes picture of the hunt.  Frequently, it’s not pretty, but neither was what bin Laden orchestrated.  Let me set a few things straight from the outset.  I think bin Laden “needed killing.”  What bin Laden did—financing and planning the destruction of the World Trade Center in New York and the murder of thousands there and elsewhere—marked him as less than human in my mind.  I shed no tears when his death was announced.

My interest, however, was in what the hunt did to us.  Zero Dark Thirty presents an unflinching look at the start of the hunt.  There are scenes of what has been euphemistically labeled “enhanced interrogation techniques.”  Those might involve leaving a subject of interrogation strung up by his arms overnight, with loud music blasting at him, depriving him of food and water, and allowing him to soil himself.  These scenes are particularly difficult to watch because we know that they are likely real.  And we know that the things depicted were done in our name.

 In the movie, unlike in the real world, there was no taunting from bin Laden.  His face is barely seen.  The video recordings that we saw on the nightly news make no appearance.  The film is journalistic, but with a definite slant.  Even though the story is about bin Laden, what he did, the hunt for him, the events of September 11, 2011, and other terrorist episodes are told in black screen or with short, episodic revelations.  The villain of the piece, himself, barely shows up at all. 

 Because, ultimately, it’s not about the hunt for bin Laden.  It’s about what the lust for . . . justice . . . vengeance . . . does to us.  The final shot of the movie is of the protagonist, who has spent her entire CIA career hunting bin Laden, with tears rolling down her face.  They don’t look like tears of joy. 

 This is not to say that justice never wears black.  It’s only to say that justice can come at a cost.  Sometimes, that cost is personal and extraordinary, and it reflects as heavily on the one who extracts it as from the one receives it. 

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Healthcare Round-Up

July 5th, 2013

The high nine in Austin continue to give and to take away when it comes to healthcare liability, and you have to wonder if the insurance industry is starting to think it bought a pig in a poke with the Texas Medical Liability Act (MLA).  What is emerging from the Texas Supreme Court’s continuing efforts to grapple with the MLA is an expansive reading of the coverage of the MLA but a more forgiving stance toward claimants under it.  Read on, for details.

 On June 28, 2013, the Court issued its opinion in PM Management-Trinity NC v. Kumets.  In that case, the claimants argued that a nursing home had unlawfully discharged a resident because of complaints made by her family.  The facts are pretty straight forward.  Yevgeniya Kumets was admitted to the Trinity Care Center nursing home to recover from a stroke.  Her family members said that Trinity provided inadequate care, and that it caused her to suffer a second stroke.  When the family complained, Trinity kicked her out, and the family sued, asserting a host of claims that implicated the MLA and that also asserted claims under the Texas Health & Safety Code, which—at that time—allowed a claim against a nursing facility that retaliates or discriminates against a resident or family member who makes a complaint.

 After Kumets’s family filed expert reports under the MLA, the trial court ultimately found them deficient, but refused to dismiss the retaliation claim.  The basis was that it wasn’t covered by the MLA, so no report was needed.  On appeal, a divided panel of the Austin Court of Appeals affirmed the trial court, holding that only the retaliation claim—which was about pure economic loss and not injury or death of a claimant—survived Trinity’s Motion to Dismiss.  But a dissent argued that the retaliation claim related to healthcare as well.  The dissent argued that the retaliation claim was based on the same essential facts as the claims about treatment, so it should have been dismissed, too.

 The Texas Supreme Court agreed with the dissent.  It held that the retaliation claim—although authorized by a completely different statute—was still a healthcare liability claim and subject to all of the MLA’s procedures.  So if the report was inadequate, the claim got dismissed.  And, thus, the Texas Supreme Court affirmed that a whole mess of cases that don’t involve actual medical treatment to patients now falls under the MLA and has to be covered by medical liability insurers.  Granted, this is no different from the direction the Court has moved in past, but it can’t make insurance executives sleep well at night.

 Just a week earlier, in CHCA Woman’s Hospital v. Lidji, the Court made a very different holding.  Lidji involved the timeliness of an expert report.  Under the MLA, a claimant has 120 days from the filing of the original petition in the case—the case’s inception in court—to file an expert report outlining the details of the case.  In Lidji, the claimants filed suit against CHCA for injuries sustained by their daughter following her premature birth.  They argued that she suffered severe neurological injury—a crippling, lifelong condition—as a result of improper treatment, and filed suit on April 2, 2009.  On July 27, 2009—116 days after they started their suit—they voluntarily dismissed it, without having filed an expert report.  And, just over two years later on August 15, 2011, they filed a new suit against CHCA, alleging the same facts and served an expert report the same day.

 CHCA howled.  (This is editorializing on my part; I don’t actually know if it did, but I’ve been there enough times to imagine what transpired.)  CHCA argued that the report was untimely because it had to have been served within 120 days of the original filing of suit; that is, within 120 days of April 2, 2009.  That is, the report had to be in CHCA’s hands no later than the last day of July, 2009.

 CHCA had a good argument.  It had the Austin Court of Appeals’s decision in Estate of Allen v. Scott & White Clinic on its side.  And several Texas Courts of Appeal have held that a claimant’s dismissal of his suit doesn’t re-start the 120 day deadline for filing an expert report.  But that’s not what the claimants in Lidji argued.  Instead of arguing that the MLA’s 120 day period restarts after a voluntary dismissal, they argued that the period simply stops with the dismissal and picks up again, if and when suit gets re-filed.  And the Texas Supreme Court agreed.

 Noting that the MLA neither expressly allows nor expressly prohibits tolling an expert-report deadline in the event of a voluntary dismissal, Justice Lehrmann, in her decision for the Court, set out to do two things.  She set out to preserve the absolute right of a plaintiff in Texas to dismiss his case without consequence (known as “taking a nonsuit”) and preserve the overall structure of the MLA.  The result?  As long as there is no lawsuit on file, the MLA’s clock—a ticking timebomb for many claimants—stops ticking.

 In a lot of cases, this will not come into play.  Developing a medical liability case takes time, and, if a claimant is already of age to bring suit and aware of the facts, the two-year limitations period may stop the Lidji decision from having a broad impact.  But, in cases involving birth injuries, limitations may have little effect.  In Texas, anyone under the age of 18 years is presumptively unable to bring a lawsuit.  That means they have until their 18th birthday to file a lawsuit.  The MLA narrows this with a statute of repose limiting all claims to ten years, but that still means that a claim brought strictly on behalf of a child injured during birth can sit for ten years before it is barred.  Ten years is a lot of time in which to work.  And it means that, where Lidji applies, its impact can be huge.

 Because now a plaintiff can file suit and threaten a defendant and invoke its insurance coverage . . . and then simply disappear, only to re-appear later on.  And it doesn’t have to be a birth injury case.  Lidji’s impact may well be felt the most in smaller cases.  If a claimant has a smaller claim and would prefer not to have to pay expert witnesses, he can file suit and test the waters (and the defendant’s desire to settle) and dismiss his suit within 120 days if the waters aren’t to his liking.  Then he can get those expert reports while the case is dismissed and re-file, without the time pressure that would otherwise exist under the MLA.

 Is this what insurers intended when they lobbied so intensively for the MLA?  Is this what the Texas Legislature—fat with insurance money—thought it was passing?  It seems unlikely.  The ostensible purpose of the MLA was to make medical liability insurance cheaper, but you don’t do that by increasing the number of potential claims covered by medical liability insurance and making them easier to prosecute, and the Texas Supreme Court has done both in the last two weeks.  One can only wonder what the insurers are thinking now.

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What drives us?

June 29th, 2013

The downside of being an appellate lawyer is that your clients don’t often get to see how hard you fight for them. It’s a technical practice, devoted to battling legal interpretations, and clients usually either don’t understand it or just don’t show up, particularly when the fight is in the trial court. Yesterday, in San Antonio, I had the pleasure of representing a client who showed up to that trial court, and I got to explain to her what it was all about, albeit after the fact. It was good. This lady lost her husband, and I had the privilege of being her hero, if only for one day. This is why I do what I do.

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What is a whistleblower?

June 24th, 2013

In 2002, Time magazine named “The Whistleblowers” as its “Persons of the Year.”  It was a tip of the hat to insiders who revealed shenanigans at Enron, WorldCom, and even the Federal Bureau of Investigations.  These insiders were held up as heroes, finding “the strength to stand for what’s right.”  The law, at both the federal and state level, protects whistleblowers, at least when they’re calling out the government for wrongful acts.  And there’s a good reason for that—because these are people who are uniquely placed to know of wrongful activity and expose it to public scrutiny.

Enter Edward Snowden.  In case you’ve been hiding in a cave or haven’t picked up a newspaper in weeks, Snowden is a 30-year-old Booz Allen Hamilton contractor who, until a few short weeks ago, was doing work for the National Security Agency.  In the course of his work, Snowden learned that the NSA was keeping tabs on internet and telephone use by thousands of individuals.  Snowden released this information to Glenn Greenwald, a reporter for The Guardian and claims to have much more in store for future release.  The whole thing has caused a huge uproar, with bloggers and talking heads at both ends of the political spectrum condemning the NSA and calling for the government to leave Snowden alone or aiding his defense and others condemning Snowden, while calling for him to be brought to answer for committing a crime.

And thus has commenced a game of global “whack-a-mole” with Snowden playing the part of the mole and the United States government wielding the mallet.  Snowden was stationed in Hawaii with Booz Allen—a spell of employment that lasted only three months, though he reportedly planned his leak of information for two years (suggesting that he took the job in order to gain access to the leaked information)—but then fled to Hong Kong and later to Moscow.  (As of this morning, Snowden was scheduled to be on a flight from Moscow to Cuba but failed to appear for the flight.)

So what is Snowden?  Is he a whistleblower or a college dropout unilaterally making up security policy?  That may require a bit of an exploration of what whistleblowing actually is.  I think of it as a form of civil disobedience—violating the law in the name of a greater good.  But the tough part of civil disobedience is that you have to suffer the inevitable crackdown before being vindicated by history.  Before he became a worldwide icon and recognized as an historically significant figure, Martin Luther King, Jr., went to prison for breaking the law.  He knew this was the price of disobedience.  Gandhi was imprisoned in 1922, 1930, 1933, and 1942 for his protests.  Snowden claims to have the courage of his convictions, but he certainly hasn’t showed it yet.

And that’s what bothers me about Snowden.  If he were so convinced that the government’s acts are egregiously wrong (and, incidentally, I am not calling them right), why run?  You can tell a lot about a man by the company he keeps, and, so far, Snowden has sought asylum in China, Russia, and Cuba, none of which is exactly a bastion of free speech or open government.  The true whistleblower throws him or herself on the mercy of the courts of law and public opinion.  Snowden appears not to have the courage to do that, and until he does —until he acknowledges that he committed a wrong even if he did so to out a greater one—he’s no MLK or Gandhi.  He’s no whistleblower, at all.

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A work in progress

April 3rd, 2013

I apologize in advance for the shamelessly “homerish” tone of what follows, but I felt the need to write this.  I’ve been in Houston for many, many years now, and I see things happening that I am proud to see.  I think we are doing well.

A few days ago, I had need to visit the Clerk’s office of the Fourteenth Court of Appeals.  The Clerk’s office is in the same building as the Court, itself, the recently restored 1910 Harris County courthouse, which has now become home to the Fourteenth and also to the First Court of Appeals.  I parked on Preston Street, in the area known as Market Square, and headed southeast toward the courthouse.

As I walked by the corner of Preston and Travis Street, I saw the beginnings of a mural that was being drawn and painted on a two-story wall.  The painting was in its infancy, but the outlines of the mural were already drawn.  It was a drawing of Houston’s downtown skyline with the word “Houston” prominently displayed in the middle of it all.  Colors were being filled in, bit by bit, though the end product was far from complete.  Nevertheless, it was obvious, even at this early stage, that the end product would be full of vibrant color and energy.

And I thought to myself:  “This wouldn’t have happened ten or twelve years ago.”

Because, strangely, I think I find myself in a city that is experiencing a renaissance.  Houston has, for many years, had a civic inferiority complex.  There have been scams and scandals here, but nothing that would draw anyone in; nothing—besides money —that would make them want to be here.  But, it seems that may be coming to an end.  What I see recently is a new sense of pride.  It’s been tried before, but this time it seems like it’s sticking.

Suddenly, Houston is cool.  Houston is a destination.  Even in neighborhoods off the beaten path (and I include my own humble home which has become known as “the GOOF,” where new restaurants and one of the best craft beer bars in the country now reside), there seems to be a sense of possibility and maybe a feeling that there is actually something unique here and worth exploring.  Maybe it’s a transient thing.  Maybe it’s just the fact that Houston survived the recent economic turmoil with less fallout than most cities.  Maybe having a job constitutes being hip, these days.

The truth is that the Bayou City (yes, that’s what we call it) has always been a strange amalgam of go-for-broke business (see, the Allen brothers), artistry, and immigration.  Houston is now the most ethnically diverse city in the entire country, and it’s a leading indicator of where the country is going, ethnically, politically, and demographically.  It’s increasingly progressive.  And now, it’s being discovered.  It‘s kind of nice.  Because there’s always been a lot here.  We’re still building, but it’s not done yet.  We’re still making it better, because it needs to be and because we can.  And if we weren’t, we’d be abandoning the very foundation of Houston’s success.  If there’s one thing I’ve learned from being here, it’s that Houston doesn’t stand still.  That’s just not the way we do things here.

UPDATE:   And the Daily Beast confirms it.

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A move to restore sanity….

March 3rd, 2013

Ragging on the Texas Supreme Court—particularly when it comes to the Court’s rulings on healthcare law—is not exactly a new pastime for me.  To be honest, I’ve probably said a lot more negative things about the Court’s interpretations of the Texas Medical Liability Act than I have positive things.  A lot more.  So it’s nice to be able to point out when I think the Court got something right.  And a couple weeks ago, it did exactly that in the case of Certified EMS v. Potts.

 Potts is kind of a big deal for those of us on the plaintiffs’ side of the bar.  Some time ago, the Texas Legislature required that plaintiffs in healthcare liability cases provide reports from qualified medical experts that support their allegations very early in a case or have the case dismissed.  And by “very early,” I mean before any kind of meaningful investigation beyond reviewing medical records.  No talking to opposing witnesses, no talking to defendants.  Figure it out from the records or have your case thrown out of court.  Sometimes, one theory is obvious from the records, but others aren’t so easily discovered.

The basic mechanism of the procedure is that a plaintiff has 120 days from the time he files his lawsuit to serve an expert report that addresses the three chief elements of his liability case—the standard of care, breach of that standard, and causation—on the defendant.  Once he serves that report, the defendant has 21 days to object to deficiencies in it, and the plaintiff usually gets another 30 days to cure that deficiency.  If the plaintiff doesn’t cure the deficiency, and the trial court agrees that it is a deficiency, the defendant can move to dismiss the case and recover his or its attorneys’ fees and costs from the losing plaintiff.  The idea is to weed out, at an early stage, frivolous cases—the ones that can’t be won by the plaintiff; no way, no how.

Years ago, the Court held that the only thing a plaintiff needs to do in an expert report is set out the basic stuff the defendant did wrong—the conduct the plaintiff’s suit calls into question—and show that his case has “merit.”  At the same time, the Court held that “showing merit” doesn’t mean proving the case, as would need to be done at trial, and it doesn’t mean removing all doubt as to whether or not the plaintiff can ultimately prevail.  But in the grand tradition of “give ‘em an inch, and they’ll take a mile,” health care defendants have taken what was, ostensibly, supposed to be a brief procedural matter and turned it into a mini-trial that can last well over a year, all the while running up costs that the health care liability law was supposed to limit.  Rather than saving objections to expert reports for those cases where there is a clear deficiency, many health care defendants and their lawyers—on marching orders from the real puppet masters, their insurance companies—object to every expert report they’re given and move to dismiss every case, regardless of its merit.  And that’s what happened in Potts.

The facts of Potts really aren’t as important as the holding.  That said, the plaintiff in Potts had set forth more than one theory of liability—against a corporate defendant, individually, and through one of its employees—but provided an expert report that supported only one of those theories—the one through the employee.  The defendant moved to dismiss—not the case—but the claim against itself, individually, though the vicarious claim would have survived.  The trial court denied the motion, and the First Court of Appeals affirmed, holding that the Texas Medical Liability Act seeks to dismiss entire cases or causes of action, not individual theories of liability, by its plain language.  The Texas Supreme Court’s opinion is a bit shorter on analysis (it specifically says that it doesn’t adopt the First Court’s rationale), but it reaches the same conclusion—supporting one theory of liability lets the case go forward as to every theory alleged (and even new ones that weren’t alleged before, as long as the defendant stays the same).

The holding itself is useful, but for me, the real significance of Potts is that it’s an effort by the Texas Supreme Court to cram the genie back into the bottle.  Recent precedents suggest that the Court is getting tired of the number of health care cases being brought up before it on procedural technicalities.  Potts stands as another in a line of cases that attempts to restore authority to trial courts over a procedure that has become—put bluntly—disrespectful of the authority of those trial courts.  With Potts, the Court has definitively cut off one avenue of appeal, and it may be only a matter of time before we eventually see a defendant held responsible for filing a frivolous appeal of an expert report matter.  Texas appellate courts are, understandably, reluctant to issue such rebukes, but one may be necessary before the landscape truly changes.  Nevertheless, the Texas Supreme Court has taken a needed step toward sanity with Potts.  That is something I am happy to write about, any time.

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Go Nuclear or Go Home

February 22nd, 2013

Texas law has a number of provisions that are designed to protect public employees who report wrongdoing and illegalities in their midst.  Probably the best known is the Texas Whistleblower Act.  The term “whistleblower” gets a lot of press because of instances like the Enron scandal, but the actual Whistleblower Act’s focus is on public employees, only, and that focus is a pretty narrow one.

In a case decided today, the Texas Supreme Court made that focus even narrower.  The case is University of Texas Southwestern Medical Center v. Gentilello.  It seems Dr. Gentilello, a faculty member at the medical school, expressed concerns that residents—basically, new doctors who haven’t completely earned their full right to independent practice yet—were treating and operating on patients without the supervision of an attending physician and that this was a violation of Medicare and Medicaid requirements under federal law.  He reported his suspicions to a supervising faculty member.  Subsequently, Dr. Gentilello was stripped of his faculty chair positions, and he claimed that this was in retaliation for his report.  (Because of the procedural stage at which this case was disposed, causation was never developed.)

Dr. Gentilello filed suit under the Texas Whistleblower Act, and UT Southwestern filed a plea to the jurisdiction, arguing that he couldn’t satisfy the particular jurisdictional prerequisites of the Whistleblower Act and one of them, in particular.  The Act says that, for a report to be protected, it has to be made to “an appropriate law enforcement authority.”  Dr. Gentilello argued that the supervising faculty member to whom he made his report was just such because federal regulations charge hospitals with self-enforcement of this kind of thing, and thus reporting to a supervisor—who acted as a compliance officer—was sufficient.

But the Texas Supreme Court held that enforcing compliance and enforcing the law are two different things.  Consequently, a report to a supervisor wasn’t good enough to meet the “appropriate law enforcement authority” standard.  The interpretation (I won’t say as much for the language of the Act) makes a certain sense but leaves any employee with a very unappetizing choice—report to a supervisor and forego the protection of the Whistleblower Act or call the cops, and risk being a workplace pariah in the event he got any of his facts wrong.  The employee who goes to “an appropriate law enforcement authority” is almost always going to be going outside of his own public agency to either a police or other regulatory agency.  (The Court mentioned a few exceptions, mostly involving employees who were already working in law enforcement agencies.)

Notably, not every whistleblower-type law requires this kind of Hobson’s choice.  Other statutes specifically allow a report to a supervisor to fulfill the role of the law enforcement report required by the Whistleblower Act.  It relieves the employee’s dilemma and potentially allows intra-agency resolution of what might turn out to be a minor misunderstanding.  But, given the current language of the Whisteblower Act and the Court’s interpretation, an employee has the choice of the nuclear option or nothing.  Breaking ranks like this is a difficult thing to do, but when internal reporting is rarely sufficient, it is either that or turn a blind eye to wrongdoing and, thus, be complicit.  Is this really what we want to ask from our public servants?

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Baseball and the public trust

November 14th, 2012

A winning sports franchise can be a point of civic pride.  Economists and others much smarter than I frequently seem to argue about the value of professional sports to a city’s bottom line, but there can be little doubt that such things contribute to a city’s image and can influence how its own residents perceive it.  There’s an air to the classic teams—the “Showtime” Lakers, the “Bronx Bomber” Yankees, and the blue-collar “Steel Curtain” defense of the Steelers—that reflects the cities they call home.  Never mind that much of it is just image; it’s an image the public loves to see and make its own.

So it helps to explain (though, perhaps, not to justify) when public money goes into building stadiums and arenas for these millionaires’ games.  As long as a team owner is working to put a winning team on the field and seems like a nice enough sort, he can generally be confident of support from much of the public, though there will always be a vocal minority in opposition.  And then there’s Jeffrey Loria (look down the page; amazingly, he’s only number 9).

Loria is the owner of the Miami (née Florida) Marlins of the National League.  Loria isn’t just disliked; he’s despised.  This is despite the fact that the Marlins have won two World Series in the last 15 or so years, in 1997 and 2003.  So why all the Loria hate?  Because of stuff like this.  Yesterday, the Marlins came to an agreement in principle to ship away in the neighborhood of $160 million in future salary commitments to players, several of whom—like All-Star shortstop Jose Reyes—were signed only last offseason.  (ESPN Radio reports that many of the players traded had back-loaded contracts, suggesting that this move was likely planned all along.)  This followed the shipping of several other stars—Hanley Ramirez, Heath Bell—to other clubs during and immediately following the 2012 season.

Now, fire sales are nothing new.  Rebuilding franchises do it all the time.  There comes a time when a club simply has to cut bait and build for the future.  But the Marlins are old pros at this, having had fire sales immediately following both their World Series wins (interestingly, the only two times that the club has made the playoffs in its 20 year existence).  And this latest one comes shortly after Miami taxpayers footed 80% of the bill for a new Marlins stadium, even as Loria pleaded poverty.  (The financing was a concern all along and even drew the attention of the SEC.)  A resourceful hacker got a hold of the Marlins’ financial statements and furnished them to Deadspin.  They showed that the club was anything but in the red, months after it asked the public to finance a stadium it claimed to be unable to finance itself.  And that’s the real rub.  The taxpayers helped Loria line his pockets, and now he is punting on his end of the deal.

Granted, nothing requires Loria to put a championship team on the field.  Loria can soak the local populace and pocket the funds that come from it.  But, as I mentioned before, sports teams are a source of local pride.  Even so, a national organization—in this case, Major League Baseball—oversees them.  And this has got to be MLB’s worst case scenario.  Essentially, one of its owners has defrauded local government.  That’s bad for the business of government, it’s bad for the business of baseball, and it means that the local fans aren’t just taken for granted, they’re taken for a bunch of suckers. I rather suspect that Loria’s actions may prompt some sort of legal action from the city.  The question is whether it would have a leg to stand on, given that it seems the entire city government bought Loria’s line without asking many questions.  It seems the city never asked for much information about whether the Marlins could afford to contribute more; they just took them at their word.  That word was no good.

Miami residents should be revolted by Loria and perturbed by their own city officials who allowed this to happen.  And Major League Baseball should be getting involved.  Otherwise, the prevailing image of baseball in Miami is essentially a real estate con.  No city should have its team provide that image.

 

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