Archive for April, 2011

Court to Plaintiff: “Get a job!”

Thursday, April 28th, 2011

File this one under “Sometimes a Lawsuit Isn’t the Answer, Part 2.”  Kevin Underhill of Lowering the Bar writes about the lawsuit brought by a 25-year-old Spaniard who sued his parents for his allowance.  Instead of awarding him his allowance, the Spanish court gave him 30 days to get out of his parents’ house and, presumably, to go get a job.  There’s a certain sympathy factor at work on both sides.  Apparently, the unemployment rate in Spain is hovering somewhere around 40 per cent–the highest in the European Union–but it also looks as if the son had more-or-less quit looking for work some time ago and had become abusive toward his benefactors.

So parents, remember this.  That video-game-addicted pothead living in your basement and surfing the internet until all hours of the night may seem harmless now, but he has the potential to turn vicious if you try to cut off his funds.  Handle these things gently because, even though a sympathetic (or just plain sensible) court might help you beat the rap, you can’t avoid the ride.


Reporters and the Twittersphere

Thursday, April 21st, 2011

Ever since the Tim Donaghy affair, NBA referees have had something of a chip on their collective shoulder.  The nature of officiating in basketball is inherently subjective and inherently difficult due to the speed at which the game is played and the often subtle difference between a game-changing play and a momentum-killing foul.  But Donaghy crossed the line from “subjective” to just plain “crooked.”  Following an investigation by the FBI into whether he bet on games he officiated and made calls specifically intended to influence the point spread, Donaghy pled guilty to two federal counts against him and was sentenced to 18 months in prison.

With Donaghy’s confession (and his subsequent efforts to turn a buck off the scandal) still fresh in the minds of the NBA and the public, the whole sordid mess appears to be a tender spot for referees, and for one in particular—Bill Spooner, who last month filed suit in Minnesota federal court claiming defamation against AP reporter Jon Krawczynski.  On January 24, 2011, Spooner set out to officiate a game between the Minnesota Timberwolves and the Houston Rockets, as reported by Spooner’s complaint.  During the first half, Spooner called a foul on a Minnesota player and was questioned about it by Timberwolves’ coach Kurt Rambis.  Spooner replied that he would review video of the play at halftime and discuss it with Rambis later.  Rambis walked away from the conversation while remarking, “Fine, but how do I get those points back?”

Krawczynski—a witness to the exchange—later posted on his Twitter account:  “Ref Bill Spooner told Rambis he’d ‘get it back’ after a bad call.  Then he made an even worse call on the Rockets.  That’s NBA officiating folks.”  According to Spooner’s lawsuit, the post implies that Spooner planned to make a false call in order to balance the scales.  Spooner calls the tweet defamatory and alleges that it brought the wrath of the NBA down upon him in the form of a disciplinary investigation and caused harm to his reputation.

With Twitter now a ubiquitous part of the sports and journalistic landscape, Spooner’s lawsuit has potentially broad implications.  As one blogger observed, credible sources and verification are required to publish an item in a newspaper, but there’s no edit function on Twitter.  As a real-time medium, Twitter publishes statements from the speaker’s mouth to God’s—and everyone else’s—ear.  So far, Spooner’s suit hasn’t noticeably chilled the Twittersphere, and it may do no more than cause a reporter or blogger to double-check a source before posting—which isn’t necessarily a bad thing.  But any time that a journalist’s free speech—even concerning something as inconsequential as a basketball game—gets attacked, it’s cause for some serious thought.  As another blogger observes, is a tweet an extension of a reporter’s written or recorded report, or is it simply a record of random observations?  Is there a difference?  What about non-journalists with Twitter accounts (and there are many of us)?  Are we all held to the standard of journalists?  While credible sources and verification are required for newspaper publication, that seems like more a matter of journalistic ethics than anything else.  Verification makes for good legal protection, but is ironclad legality the standard we want for public discourse (albeit giving due deference that statements made should probably be intended to be factual)?

Tip o’ the hat to Courthouse News Service and OnPoint News.


What is “health care”? Part 2.

Tuesday, April 19th, 2011

There are times you just know that the Texas Supreme Court is up to something.  You can tell from the cases accepted for review that have a recurring theme, and, while it’s often difficult to figure out what the Court will eventually say, you know something or other is coming down the pipeline.

A few weeks ago, the Court accepted review of two cases that might or might not fall under the Texas medical liability law.  I’ve expounded on various aspects of that law in several earlier posts.  The applicability of the medical liability statutes—Chapter 74 of the Texas Civil Practice and Remedies Code—is significant because of the procedural burdens—or protections, depending on how you look at it—that they place on parties to a case.  One of the most significant of those burdens is the expert report requirement.  The law requires that any plaintiff filing a healthcare liability claim serve a report from an expert witness or witnesses—usually a physician—outlining the medical facts and standards underlying the case within 120 days of commencing suit.  Failure to comply carries a heavy penalty.  The case gets dismissed with prejudice to re-filing, and, to add insult to injury, the plaintiff gets to pay the defendant’s attorneys’ fees.

So whether or not a case qualifies as a “healthcare liability claim” and is thus subject to Chapter 74 is a significant issue.  And that’s why two recent petitions granted by the Court caught my attention.  In Matthew W. Wasserman, M.D. v. Christina Bergeron Gugel, an appeal from Houston’s Fourteenth Court of Appeals, a defendant physician accused of sexually assaulting a patient moved for dismissal as a result of her failure to serve an appropriate expert report, thus attempting to classify her claim as a simple departure from a standard of medical care.  Both the trial court and the court of appeals rejected his argument.  Now the Supremes will get their say.

In Texas West Oaks Hospital, LP v. Frederick Williams, another case out of the Fourteenth, a hospital employee sued his employer for negligence following a fight with a severely paranoid-schizophrenic patient, prone to violence.  In the altercation between the patient and Williams, the patient died, and Williams was injured.  The patient’s family subsequently sued both the hospital and Williams under a healthcare liability theory, and Williams cross-claimed against the hospital.  The case raises interesting questions as to whether Williams’s cross-claim—because it arises out of an original healthcare liability claim—may itself be healthcare liability claim.  This was certainly the position taken by the hospital, but again, both the trial court and the court of appeals rejected it.

As defendants push harder and harder to bring more cases under the purview of Chapter 74, the Court may take this opportunity to set some sort of boundary.  One would hope so, because as things stand, Chapter 74 has the potential to swallow up a whole host of common law actions and inject itself, with potentially bizarre consequences, into actions far-removed from healthcare.  An inherent tension exists between the traditional cornerstone of medical liability—the physician-patient relationship—and the extensive reach of Chapter 74.  While a defensive tactic in years past was to disclaim any physician-patient relationship (and thus any sort of duty), the new idiom calls for openly invoking that relationship—or at least, to do so 120 days after the lawsuit has been on file.  And that means that the Legislature’s enactment of Chapter 74 is warping the common law in ways it probably was never intended to.  Once again, this is what happens when  politicians, as opposed to juries, decide to dictate who wins lawsuits.


Lessons in Reality from Fantasy Baseball

Saturday, April 9th, 2011

I will come right out and admit that I am a nerd.  I started playing fantasy baseball a little over ten years ago—not for any stakes other than bragging rights, mind you—and I am a participant again this baseball season.  I don’t recall exactly what prompted me to sign up for a league, but I think it occurred about the same time that I started to realize that civil appellate law was one of my stronger callings in the legal profession.  Make of that what you will.

At any rate, at this time of year, every year, new fantasy team owners are suffering through the agonies and the ecstasies of that first full week of play.  Team names inevitably run from the deadly serious to the mildly humorous to the just-plain-innuendo-laden, but the hopes for each are the same on Opening Day.  On that day, and that day alone, everyone is a potential champion.

So with this in mind, I started thinking of what I’ve learned from my decade-plus of fantasy ownership.  A few life lessons follow.

1.         A bad start to the season (or the week) doesn’t mean a bad finish. Well, maybe in rotisserie leagues—those where the entire season rests upon a basic adding up of season-long stats—it does.  But not in a head-to-head league, where each week means a new match, a new opponent, and a new opportunity to gain ground.  To put it another way, it ain’t over ’til it’s over.  I started out this season by missing the online draft for my league.  This meant I was relegated to receiving those players dealt to me by a computerized ranking without having “eyes on the ground” to figure out the best next move.  Consequently, I went into a flurry of activity when I saw what I had to work with, but was still being trounced four days into the season.  But within a few more days, I had used up my first weekly allotment of player swaps to try to strengthen my hand.  I’m pleased to say, it appears to be working.  And the score at the end of the week is the only one that counts.

2.         The stars aren’t always the ones who shine. What you did a year ago or two years ago doesn’t mean much right now.  The current American League leader for batting average is Miguel Montero of the Arizona Diamondbacks.  Through six games this season, Montero is a staggering 12-for-22, with five runs scored, four batted in, and five extra-base hits, including two homeruns.  That gives him a .545 batting average, thus far.  Will this last?  Of course not.  Batting averages over .300 for the season are somewhat of a rare bird in Major League Baseball, but for now, Montero is the league’s best hitter.  Contrast him to Manny Ramirez, who this week retired from baseball rather than face a 100-game suspension for failing a second steroid test, and who was batting a miserable .071 with a single hit in 17 at-bats for Tampa Bay.  Ramirez’s career has been on a steady downward trend since his glory days in Boston and Los Angeles, but “Manny being Manny” was still one of the most recognizable faces in the game.

3.         Numbers lie. David Murphy of the Texas Rangers is hitting .556 so far this season.  So why is Montero the league leader and not Murphy?  Because Murphy has set foot on the field in only three games so far this year.  Granted, in those games, he’s delivered, but someone who shows up practically every day is worth more than a guy who will get a chance once per series.  Montero’s appearance record makes him the stronger choice.

4.         Flexibility is a virtue. Most players are pigeonholed—for fantasy purposes—into one or, at most, two positions.  A player who regularly plays only at first base will likely be qualified for fantasy ball only at first base, even if he once in a while takes over left field.  Likewise, a catcher is pretty much always a catcher.  A starting pitcher rarely pitches in relief and vice versa.  But then there are utility infielders like Omar Vizquel and Maicer Izturis.  Both are qualified to play at second, third, and shortstop, so either can fill in for any player that might be injured or in a slump.  The flexibility increases their value, even if their play might be a little subpar (though Izturis, so far, is hitting an unexpected .345 with one homerun through six games).

Perhaps these lessons seem rather simplistic.  Nevertheless, I find a certain pleasure in the knowledge that grown men playing a kids’ game that is all about observing other grown men playing another kids’ game can yield any sort of practicality.  It’s almost enough to get you through those dog-days of late July and early August, when half your pitching staff seems to be on the disabled list, your best hitter is in a slump, and your opponent’s closer seems to be unable to put a foot wrong.  So, ‘til the playoffs arrive, play ball!