I call insurance company rules!

This is why you need a lawyer....insurance companies get to change the rules all the time.

Three more salmonella cases confirmed in N.J.

From Philly.com:

Health officials yesterday confirmed three more cases of New Jersey residents, two of them children, infected with salmonella linked to tainted tomatoes. The new cases - all involving people who got sick between May 23 and June 3 - bring the state's total to four, including two women in Camden County.

Pennsylvania last week reported five cases, including one each in Bucks and Montgomery Counties, linked to the outbreak that has now sickened more than 600 people nationwide. Officials in Harrisburg could provide no details about the patients' conditions.

Retailer Sues UL for Certifying Defective Heaters

Platt Electrical Supply, Inc. sold electric in-wall heaters manufactured by Cadet Manufacturing Company. The heaters were tested and certified by Underwriters Laboratories (“UL”), a non-profit corporation that formulates safety standards for consumer products. In 1998, the Consumer Product Safety Commission noticed problems with the heaters, and then initiated a safety recall in 1999.

Platt was required to bear part of the cost of the recall. In addition, Platt was sued in a civil class action which it paid over $1 million to settle. During discovery in the class action, Platt, in 2001, obtained records showing that UL had been aware of defects in the heaters since 1989, but had not taken action to remove the UL certification. In 2003, Platt Sued UL alleging that UL negligently misrepresented that the heaters were safe, and fraudulently concealed information that would have alerted Platt to the defective condition. The District Court (N.D. Calif.) dismissed the negligent misrepresentation claim as time barred, and granted UL’s motion for judgment on the pleadings on the fraudulent concealment claim. Platt appealed.

Under California law, there is a three-year statute of limitations for fraud claims and a two-year limit for negligent misrepresentation. A claim accrues when all of the elements are present and the aggrieved party has discovered it or had reason to discover it (”inquiry notice”). In the instant case, Platt became aware of a problem when the recall was instituted in 1999. The Court of Appeals held that at that point Platt was on inquiry notice of its negligent misrepresentation claim. The limitation for the claim expired in 2001. The appellate court agreed that this claim was time barred.

Similarly, the Court reasoned that once Platt became aware that the heaters were defective, it was on notice that UL’s certification of the heaters was factually false. It was at that time in 1999 that Platt first had a basis to question the validity of UL’s representations about safety. Platt’s argument that the running of the statute was tolled by UL’s fraudulent concealment was rejected–Platt knew enough to have asserted the claim in a timely manner. Platt filed its fraudulent concealment claim well past the three year statute of limitations; accordingly, this claim was also barred.

Lastly, Platt argued that the District Court had abused its discretion when it denied Platt leave to amend its complaint. Platt asserted that it could amend its complaint to reflect that it had received information in 2001 during discovery in the class action that UL had intentionally concealed that the heaters were unsafe. The appellate court however stated that amending the complaint would be futile because the claims accrued in 1999, before discovery in the class action.

The judgment of the District Court dismissing Platt’s claims was affirmed.

Tomatoes linked to Pa. salmonella

From Philly.com:

Pennsylvania has reported its first cases of salmonella linked to tainted tomatoes, bringing to 30 the number of states - plus the District of Columbia - that have reported sick residents.

Federal health officials said yesterday that they had learned of 106 more cases nationwide, putting the outbreak's toll at 383 and counting. At least 48 people have been hospitalized.

"We do not think the outbreak is over," said Robert Tauxe of the Centers for Disease Control and Prevention.

In Pennsylvania, four people were sickened in late May in Bucks, Butler, Lancaster and Warren Counties, said Stacy Kriedeman, spokeswoman for the state Department of Health. Officials believe two of those cases involved exposure outside Pennsylvania, she said.

NURSING HOMES AND MANDATORY ARBITRATION

From Philly.com:

Patients hoping to get into nursing homes increasingly are signing away their rights to sue over poor care.

That's a problem, say lawmakers who are pushing legislation to make such agreements unenforceable.

The nursing homes argue that arbitration arrangements to which many families agree actually lead to dispute resolutions that are fairer than court cases. But legislators, supported by consumer-advocacy groups and trial lawyers, say families should not be giving away their ability to hold the homes accountable for poor care.

A Senate committee will hear today from the family of William Kurth, who fractured his hip and leg and contracted numerous pressure ulcers during his final months of life in a Wisconsin nursing home. When his family attempted to sue for negligence, a judge dismissed the case because Kurth's wife had agreed, as part of her husband's admission, to have all complaints go through an arbitrator.

The Senate panel, which is investigating the growing use of binding arbitration by nursing homes, says more than 100 lawsuits have been filed in the last five years challenging such agreements.

Arbitrators take into account federal, state and county laws when resolving legal disputes. Often, the parties are free to negotiate some of the ground rules for their case. The process has the advantage of being faster and less expensive for both parties. It also is confidential.

Few families are even thinking about the possibility that they might want to go to court when they admit their loved ones to nursing homes.

Kurth's wife, Elaine, was under extreme duress and on medication when she signed the papers that allowed her husband, a stroke victim, to stay at the nursing home, the family's attorney said.

Family members who will appear before Congress say the World War II veteran died at age 84 from infections that occurred because excrement and urine were not cleansed from his bedsores for days at a time. David Kurth of Burlington, Wis., says arbitration has become a shield for large corporations to hide behind and decrease the quality of care.

"It is economically more profitable to let people like my father suffer than to provide proper care," Kurth said in written testimony prepared in advance. "And now that our family is trying to hold the nursing-home corporation accountable for its actions, Kindred Care is trying to bury our case by forcing us into a mandatory, secret, and binding-arbitration process that they chose."

Interactive Guide to Your Body

Here is an interesting Interactive Guide to Your Body from the New York times.

What caught my eye is the section on back pain.  You can find it here.  Probably the most common injury that we face in our personal injury and workers' compensation cases involve the spine.  Therefore, I'm always reading articles and journals on the most updated treatments and studies on the spine and traumatic back spinal injuries in particular.  The following passage really stood out for me.

The effectiveness of virtually every pharmaceutical or surgical remedy, however, has been questioned. And for all the money sufferers spend on doctor visits, hospital stays, procedures and drugs, backs are not improving. The Journal of the American Medical Association reported that spending on back treatments jumped 65 percent to nearly $86 billion from 1997 to 2005, after adjusting for inflation. But during the same period, the proportion of people with reduced function because of spine problems increased, even after controlling for an aging population.

The exact cause of back pain is never found in 85 percent of patients, said Dr. Dennis C. Turk, professor of anesthesiology and pain research at the University of Washington and a past president of the American Pain Society. Even magnetic resonance imaging seldom sheds light; in many studies the scans have picked up spinal abnormalities in many people who have never reported back pain.

While the quest for a safe and effective pain pill continues, Americans undergo more than 300,000 spinal fusion surgeries a year, at an average cost of $59,000 each, according to the National Center for Health Statistics. Almost as many undergo laminectomies or diskectomies to remove damaged vertebrae and disks.

For some, back surgery can be life-changing, eliminating pain and disability. But for others, it can have serious consequences. One study found that 11.6 percent of patients in the 78 spinal surgeries that were analyzed developed infections and other complications.

Here's an article from the National Institute of Health on alternative remedies for low back pain (LBP).

Here's an article from Back.com demonstrating, with pictures, exercises and stretching maneuvers that will help with back pain as well as prevent it.

Last, here's an article from a orthopedic surgeon answering questions about his own experience with back pain and how he's dealt with it over the years without surgery.  The following caught my eye from the interview:

Q. What kind of patients find their way to a specialist like you?

A. Usually they're at the end of a long road. They may have gone to their local primary care doctor, a physical therapist, another surgeon, various specialists. They may have had surgery, and it hasn't worked. We, the health care system, make it complicated. When your back hurts, it's bad. It can take your breath away and make you totally immobile, and it's scary. In many cases, these are people who've been so taken aback by it. They are seriously looking for help, and they don't want to experience the pain again. And that's understandable, having had the problem myself.

Usually, 95 to 98 percent of the time, it will get better by itself without any intervention. But that's not the American way. We've built an incredible medical structure. People think, "I shouldn't have to suffer for one day -- there must be a pill or surgery that can help me." I agree with how they feel, but certainly there's over a 90 percent chance most people will get better with no intervention. That's an important message. People will say, "Well, what am I supposed to do when I can't walk or go to work?" Well, having surgery is going to keep you out of work. For the common cold, do you expect to see a doctor every time or expect surgery to make you better? Most people know it will take a week to 10 days to feel better.

Why don't we have that same approach to backaches? Stay active. Take aspirin or other over-the-counter drugs.

Federal Court Jury Awards 6.2 Million Dollars in TASER-Related Death

From PRWeb.com:

San Jose, CA (PRWEB) June 8, 2008 -- A Federal Jury returned a verdict late Friday afternoon in the amount of $6,221,000.00 against TASER International Inc., for the wrongful death of a 40-year-old Salinas, California, man, who died following repeated shocks from three TASER electronic control devices ("ECDs").
    
The jury of five women and two men found that TASER International knew or should have known that its M26 model ECD was dangerous because prolonged exposures to the device pose a substantial risk of cardiac arrest to persons against whom the device is deployed. The jury also found that TASER International failed to adequately warn purchasers of its device of the risks associated with its use. It awarded the parents of Robert Heston $1,000,000 in compensatory damages and $5,000,000.00 in punitive damages. The jury also awarded Heston's estate $21,000.00 in compensatory damages and another $200,000.00 in punitive damages. However, it also found Robert Heston 85% comparatively negligent for the incident which ultimately resulted in his death. Only the compensatory damage award will be reduced by his percentage of comparative negligence.
    
On February 19, 2005, Robert C. Heston began acting erratically inside his family's Salinas, California home. Believing his son might be under the influence of drugs, Heston's father called the police reporting his son's bizarre behavior and asked them for help in removing his son from the home. Officers from the Salinas Police Department responded to the Heston home and confronted Mr. Heston. Three police officers used their TASER ECDs repeatedly subjecting Mr. Heston to nearly 75 seconds of continuous TASER discharges as other officers attempted to handcuff Heston on the living room floor. While being subjected to the TASER discharges, Heston suffered a cardiac arrest causing irreversible brain damage. He was removed from life support the following day and died shortly thereafter.
    
In their lawsuit, Heston v. City of Salinas, et al., N.D. Cal. Case No. C 05-03658 JW, Heston's parents alleged that TASER ECDs are unreasonably dangerous and defective for use on human beings because they are sold without adequate testing and without sufficient warning about the effect of multiple shocks for extended durations, particularly on people who are under the influence of drugs. They further claimed that the weapon, when used repeatedly, causes cardiac arrests and unnecessary deaths.

Dough machine maker settles with baker for arm and hand injuries

Torres v. Lucca's Bakery

Another Step in Stopping Court Secrecy

According to the American Association for Justice Senior Vice President of Public Affairs Linda Lipsen  "From tires that are defective to cribs that collapse on sleeping babies, secrecy agreements have been used to keep safety information away from people. Stopping secrecy in our civil justice system is necessary to ensure that defective products do not injure or kill more people."

When a medical expert testifies "within a reasonable degree of medical certainty"...what does that really mean?

In the case of Griffin v University of Pittsburgh, which is a May 19, 2008, Superior Court case, the court held that when a physician testifies that there was a 51-49% probability that the negligent act caused the injury, this was legally insufficient to offer an opinion to a “reasonable degree of medical certainty.” Most medical experts spit out the phrase “to a reasonable degree of medical certainty” without actually defining its meaning or actually knowing what it truly means.  It does not mean "maybe" or "probably" or "might be" or any of those equivocal phrases.  However, it DOES not mean 100 % assurances.  The court doesn't actually give a specific percentage, but it has to be more than in this case.  Although I have no support for this, if a medical expert said they were more than 85% certain, I'd wager lunch that this would be enough for most appellate courts. 

Therefore, if you have a defense doctor who is a little less sure of the opinion he/she is offering, but also uses the magic language ask him/her to put a percentage on it. You might get lucky! The doctor could give some kind of split percentage as in this case and you can argue that based upon the Griffin case, the opinion is legally insufficient.

Plaintiffs Lawyer Lanier to Appeal Vioxx Reversal

W. Mark Lanier, the Houston plaintiffs lawyer who won a $234.4 million jury verdict in Angleton in the nation's first Vioxx trial, isn't mincing words: Thursday's Texas appeals court opinion reversing a judgment in that suit is "judicial activism for corporate America."

Lanier says the 10-page 14th Court of Appeals opinion, written by Chief Justice Adele Hedges, is "cursory" and "seems to construe the evidence in favor of the defendant and leaves out all of the evidence that supports the verdict."

"I'm upset, and I'll appeal it," Lanier says.

In the opinion, the three-justice panel reversed the $26.1 million judgment in Carol Ernst v. Merck & Co. Inc. and rendered judgment that Carol Ernst, whose 59-year-old husband died in 2001 after taking Vioxx for about nine months, should take nothing. The judgment is smaller than the verdict because of statutory caps on punitive damages.

The panel found the evidence to be legally insufficient on the issue of causation.

N.J. and Texas Courts Scrap Awards From Early Vioxx Cases

From Law.com:

Appeals courts in New Jersey and Texas on Thursday scrapped verdicts against drug maker Merck & Co. Inc. stemming from some of the earliest trials involving its once popular painkiller Vioxx.

A Texas court reversed a $26 million verdict against the drug maker stemming from the first trial. The court found no evidence that Robert Ernst suffered a fatal heart problem from a blood clot triggered by Vioxx. He had been taking the now-withdrawn drug for eight months before being stricken in May 2001.

His widow had won a $253 million verdict against New Jersey-based Merck in 2005, but Texas punitive damage caps later cut that to about $26 million.

Also Thursday, a New Jersey appeals court voided $9 million of the $13.9 million awarded to John McDarby in 2006 by a jury in Atlantic City.

The panel found that New Jersey's Product Liability Act was pre-empted by the federal Food Drug and Cosmetic Act. McDarby survived his 2004 heart attack.

Playtex Sued Over Chemical's Use in Manufacture of Baby Bottles

From Law.com:

An Arkansas woman has filed a federal lawsuit accusing a Connecticut company of making plastic baby bottles with a dangerous chemical linked to serious health problems.

The lawsuit by Ashley Campbell against Playtex Products Inc. of Westport is the latest challenge involving the industrial chemical bisphenol A. The lawsuit seeks nationwide class action status to represent what it says are thousands of people who bought plastic bottles containing the chemical from Playtex or other companies.

Canada said last month the chemical, found in hard plastic water bottles, DVDs, CDs and hundreds of other common items, is potentially harmful and may ban its use in baby bottles. A growing number of parents are turning to glass bottles amid the concerns over bisphenol A.

The U.S. government's National Toxicology Program said last month that there is "some concern" about BPA from experiments on rats that linked the chemical to changes in behavior and the brain, early puberty and possibly precancerous changes in the prostate and breast. While such animal studies only provide "limited evidence" of risk, the draft report said a possible effect on humans "cannot be dismissed."

With more than 6 million pounds produced in the United States each year, bisphenol A is found in dental sealants, baby bottles, the liners of food cans, CDs and DVDs, eyeglasses and hundreds of household goods.

Childhood lead exposure linked to criminal behavior, violence

Childhood exposure to high lead levels leads to smaller brain mass and is linked to criminal behavior and violence, according to two new comprehensive studies.

Researchers tracked kids from Cincinnati, Ohio, from before birth through adulthood and found that early exposure to lead resulted in a loss of brain matter of over 1 percent on average, particularly in the areas of the brain responsible for controlling impulses, regulating emotions, and anticipating consequences. Higher blood lead levels were also found to be strongly correlated with more arrests in adulthood, especially for violent behavior.

Lead poisoning has long been associated with lower IQs and behavioral problems, but the two new studies are the first to follow lead-exposed kids from birth to adulthood and establish a direct link between lead poisoning, brain size, and higher arrest rates. "Although we've made great strides in reducing lead exposure, our findings send a clear message that further reduction of childhood lead exposure may be an important and achievable way to reduce violent crime," said Kim Dietrich of the University of Cincinnati.

New Case Law Defining "Midwifery"

The Commonwealth Court in Goslin v. State Board of Medicine has ruled that practicing midwifery is not practicing surgery or medicine and that certified midwives and licensed nurse-midwives are not one and the same. As a result of the ruling, lay midwives are not subject to regulation by the State Board of Medicine.

Read the entire decision by the Court here.

Why are confidentiality clauses in personal injury settlements dangerous?

Settlement agreements and releases in personal injury cases are increasingly containing confidentiality provisions that may potentially result in adverse tax consequences to the unwary.

The little known tax court decision of Amos v. Commissioner, T.C. Memo 2003-329 (December 1, 2003), is a cautionary tale for Plaintiff's counsel. The relevant facts of the Amos case are condensed as follows:

-    Professional athlete, Dennis Rodman, kicked a photographer in the groin upon  falling out of bounds during an NBA game.

-    The photographer commenced a lawsuit, which eventually settled for the sum of $200,000.00.

-    A settlement agreement was executed between the parties which contained a confidentiality clause.

-    The photographer treated the entire amount of the settlement as compensation for a personal physical injury under IRC Sec. 104(a)(2) and excluded same as income.

-    Possibly as a result of the publicity of the incident, the photographer's income tax return was audited.  The IRS sought to treat the entire sum of $200,000.00 as taxable compensation, reasoning that the settlement amount was motivated by a desire for confidentiality, as opposed to compensation for a personal physical injury.

The Tax Court analyzed the facts as follows:

-    A taxpayer has the burden of proving that damages are on account of personal physical injuries or sickness, under IRC Sec. 104(a)(2), citing Commissioner v Schleir, 515 U.S. 323, 328 (1995), and United States v. Burke, 504 U.S. 229, 248 (1992).

-    "The nature of the claim forming the basis for the settlement controls whether such damages are excludable under IRC Sec. 104 (a)(2)." Burke, supra, 504 U.S. at 237 [emphasis added].

-    "The intent of the payor is critical" and "the character of the settlement payment hinges ultimately on the dominant reason of the payor in making the payment." Knuckles v. Commissioner, 349 F.2d 610, 613 (10^th Cir. 1995).

The Court's decision was to treat 60% of the damages as compensation for the photographer's physical injuries and 40% as payment for confidentiality.  Thus, 40% of the damages were taxable. The impact of the ruling was an acknowledgment that despite the dominant reason Mr. Rodman paid the photographer was to compensate him for his physical injuries, the court still held that a portion of the award represented taxable damages. The holding in Amos provides justification for the IRS to treat all personal injury damage awards as part taxable and part non-taxable if the settlement agreement contains a confidentiality provision.

Therefore, counsel must be cautious during settlement negotiations and insist on striking such confidentiality provisions from personal injury settlements that fall within the purview of IRC Sec. 104(a)(2). If confidentiality is non-negotiable, any such clause should be drafted so as to contain express language that confidentiality is mutually beneficial to both parties and that no consideration is being paid or intended for that purpose.

Also be sure to strike the phase "in settlement of a doubtful and dubious claim" which is frequently inserted into settlement agreements. In the worst case scenario, the settlement agreement and/or release needs to be clear as to the percentage of the total settlement that is being allocated to confidentiality and the percentage allocated as compensation for personal physical injury. It could thus be argued that additional consideration must be paid to offset any such potential tax implications for such apportionment.

Here is a .pdf of the Amos case if you want to review the specific language of the tax court.

Jury Awards $20.5 Million for Fatal Liposuction

From Law.com:

A Philadelphia jury awarded a $20.5 million verdict Friday to the parents of an 18-year-old college student who allegedly died from a liposuction procedure gone wrong.

Of the $20.5 million award, $15 million was in punitive damages.

The jury returned the verdict seven years to the day of the elective liposuction for Amy Fledderman, 18, sought for her chin, abdomen and flanks with plastic surgeon Dr. Richard P. Glunk on May 23, 2001, according to court papers.

Amy Fledderman's parents, Daniel H. and Colleen M. Fledderman, sobbed as the 12-member jury returned a unanimous verdict against Glunk and nurse anesthetist Edward DeStefano late Friday morning.

In the Fledderman v. Glunk wrongful death and survival action, the jury awarded $15 million in punitive damages; $3.5 million under the Survival Act; $2 million for Glunk allegedly negligently inflicting emotional distress on Colleen Fledderman; $20,000 under the Wrongful Death Act; and $5,000 for Glunk's alleged failure to obtain Amy Fledderman's informed consent.

Plaintiffs attorney Slade H. McLaughlin of The Beasley Firm said in an e-mail that the $15 million in punitive damages and $5.525 million in compensatory damages is within the 9-to-1 punitive damages cap ratio required by the U.S Supreme Court decision in Campbell v. State Farm. He also noted that the wrongful death damages are almost exactly equal to Fledderman's funeral costs, and the informed-consent damages were the costs of her surgery.

Mandatory Arbitration Agreements in Healthcare

In this morning’s Patriot-News, PaAJ President Tim Riley contributes a guest column alerting readers to the increasing use arbitration agreements for medical treatment.

“Are we willing to allow every institution to dictate that in order to receive their services we must forfeit our right of access to the courts if we are harmed by the transaction? BEING FORCED to choose between an open door to your doctor's office and preserving your constitutional rights is no choice at all. Both our federal and state constitutions jealously guard our right to trial by jury because of the fundamental importance this protection provides to all citizens. Permitting health care facilities to demand that patients forfeit their constitutional rights in order to receive medical treatment is bad medicine."

See the entire article here.

Federal Preemption: Working Against Consumers

The lawsuit filed by actor Dennis Quaid and his wife, Kimberly, after a hospital unintentionally gave their newborn twins the wrong dosage of a blood-thinning drug is being contested by a drug maker on the grounds that it is immune from liability.

Owing to rules that have been or are being rewritten by the Bush administration, any person filing a similar product liability lawsuit could face the same argument, greatly increasing the chances his suit would be lost or dismissed outright.

In articles last week, the Associated Press disclosed that federal agencies are quietly rewriting the language used in regulating consumer products. Before the rewrites, the language included this sentence: ‘The final rule is not intended to preempt state tort civil actions,’ meaning a company can be sued if its products are claimed to be flawed. After the agencies’ rewrites, however, the language says federal preemption questions can indeed arise for a number of reasons. The Quaids’ case is an example of how companies can use the new language.

County liable for woman killed after making several 911 calls

DEBUNKING “TORT REFORM”

“Advocating solely for tort reform in the legislative arena does not get to the root of the medical liability crisis, according to Richard Boothman, JD, chief risk officer for the University of Michigan Health Systems:

"Study after study suggests that patients sue primarily because they feel they haven't gotten answers,” Mr Boothman said, “They feel that no one is accountable when an error has caused injury. They also feel a huge sense of responsibility to protect others, to make sure what happened to them won't happen to other patients. Blaming lawyers and imposing caps and other hurdles to litigation simply doesn't get to what is actually driving patients to lawyers."

Woman gets $1M after car's hatchback lid collapsed on her head

A jury awarded $1 million to a woman who was injured when the trunk hatch lid on her Subaru Outback collapsed on her head. Tammi Grumski, then 37, was pulling a bag of groceries from the rear of her car when the hatch lid fell, resulting in a head injury and cognitive deficits. She claimed that Suburban Buick Subaru in Pittsburgh negligently repaired the lid a week before the accident. Defense counsel conceded liability, but disputed the extent of her injuries. Grumski now has to wear prism glasses because of a vision impairment that made it difficult for her left eye to transition from focusing on objects at different distances. She claimed that she'll have to retire from her nursing job as she gets older due to the cognitive impairments.

Grumski v. Jones, Palmeiri & Saldutte Inc.

See Verdict Search here for full report on this case.

Athens Township: Delayed emergency response leaves resident questioning readdressing

From The Evening Times:

     "Lockhart Street resident Patricia Simmons is making sure everybody knows where her home is following a March 12 emergency in which responders couldn’t find her house.  Near midnight on that night Simmons, who lives at 552 W. Lockhart St. in Athens Township, had begun to choke, and co-resident Bill Creedon called 911. After a while of waiting for Greater Valley EMS, Simmons, who could barely speak at that point, called 911 again herself.  “I could hardly stand it,” said Simmons. “I picked up the phone and said, ‘Where are you? I can’t breathe.’ It could have ended up in tragedy. I’m so close to the hospital, it should take only three minutes. It took 20 minutes to get to the hospital.”  She added that when she arrived at the hospital she had a significant amount of water in her lungs.  Simmons’s residence is the first house beyond the border of Athens Township on the south side of West Lockhart Street, while homes across the street are counted as a part of Sayre Borough up to Pennsylvania Avenue. "

“Frivolous Lawsuit” Commercials Distort The Truth

Here's a post by Adam Gee of the Ziff Law Firm in Elmira, NY about frivolous lawsuit commercials.  Like Adam, I see them all the time.  You would be amazed at how much money the insurance industry and corporate America spends on commercials like that.

I agree with Adam that I almost NEVER, in the 13 years that I've been doing this, have seen a frivolous lawsuit filed.  To add to Adam's analysis, though, I believe we have to expand the definition of "frivolous."  To me, a frivolous lawsuit is one that has no basis or the plaintiff has no real injuries, either physical or psychological.

To the tort reform zombies, however, "frivolous" means any case where a lot of money is awarded to the plaintiff...even if the plaintiff was seriously injured by a negligent defendant (and every one agrees to these facts) it is still "frivolous" in the eyes of those zombies.  They don't believe people who are wronged should be compensated for pain and suffering.  Period.  They believe plaintiffs should get their wage loss and medical bills paid and that's it.  No pain and suffering money.  No punitive damages no matter how intentional the defendant's actions were.  Nothing.

And that's why I call them zombies.  The have no sympathy or empathy for other people.  That is, until they themselves are injured.  The zombies sing a different tune then.