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Robert Bork's $1 Million Personal Injury Lawsuit:

Overlawyered and New York Personal Injury Law Blog have details and pointers to more details, and commentary. The latter blog suggests some of the claimed damages are extremely weak:

3. The Complaint doesn't even come close to explaining why punitive damages would be warranted in such a routine negligence matter. My gut reaction is that it is frivolous.

4. The Complaint asked for attorneys fees. Why? You can't get them in New York for a standard personal injury claim.

5. The Complaint asks for pre-judgment interest. Why? You can't get that here either. Sad, but true. Interest runs from the date of the judgment not from the date of the accident ....

6. The Complaint asks for an amount "in excess of $1,000,000" (not merely $1M, but in excess of). Where are the damages for making such a huge demand? [EV: The complaint asserts that Judge Bork required surgery, and months of physical therapy, was rendered "largely immobile during the months in which he received physical therapy, preventing him from working his typical schedule before the injury," "suffered excruciating pain," and caused a continuing limp and a continuing need to use a cane -- it's possible that lost income coupled with pain and suffering would justify a substantial award, though I agree that $1 million seems high.]

I know zip about New York personal injury law, so I can't evaluate this myself; if others have contrary evidence about New York law, please let me know.

DavidBernstein (mail):
Does New York have an assumption of risk defense? Comparative negligence? Both? As mentioned on Overlawyered, climbing up to a highly raised platform with no stairs creates a pretty patent risk of falling, especially for an elderly man. Interesting that Bork is not suing the group that invited him, given that it clearly bore some responsibility in ensuring that its speakers could safely reach the podium.

Anyway, plaintiffs' attorneys routinely throw in all sorts of nonsense they know they can't get, if for no other reason than that it's easier to throw in every possible damage claim than to research the law in advance. But it's rather unbecoming for Bork, given that he has previously criticized the excesses of the civil justice system.
6.8.2007 1:57pm
ardbeg78 (mail):
This is standard NY boilerplate pleading language. I would be shocked if it was omitted.

3. The Complaint doesn't even come close to explaining why punitive damages would be warranted in such a routine negligence matter. My gut reaction is that it is frivolous.

This is standard form language. Punitives are available only for wanton and malicious conduct, and then only if it would advance some important public policy (i.e. deterrance), yet I would be surprised if any complaint filed in NY, especially one seeking a jury trial, did not contain this demand.

4. The Complaint asked for attorneys fees. Why? You can't get them in New York for a standard personal injury claim.

Same as above. All complaints ask for "costs of bringing this action, including reasonable attorneys' fees." It's just done this way, even though no one was ever awarded attorneys' fees in a standard negligence action.

5. The Complaint asks for pre-judgment interest. Why? You can't get that here either. Sad, but true. Interest runs from the date of the judgment not from the date of the accident ....

Same as above

6. The Complaint asks for an amount "in excess of $1,000,000" (not merely $1M, but in excess of). Where are the damages for making such a huge demand?

This is also standard pleading language in NY. You ask for damages "in an amount to be proven at trial, but in no event less than _____" or "in an amount to be proven at trial, but beleived to be in excess of ____"

Again, I have no reason for the use of this boilerplate other than "that's just the way we do it because that's the way it's always been done." This form was undoubtedly sitting in his lawyer's word processer, just as it sits in mine, with only minor variations to fit the particular facts and claims.
6.8.2007 2:00pm
anonVCfan:
Looks like a run-of-the-mill slip and fall case. He's got serious injuries and at least a facially plausible claim that his host, rather than himself, is to blame. I'm not sure why this blog is holding it up for ridicule, particularly at the complaint stage.

"In excess" could just mean that he's continuing to rack up medical expenses. AFAIK, people ask for punitives, attorney fees, etc., as a way of saying "whatever relief the court feels appropriate" so that they don't inadvertently waive, at the complaint stage, relief to which they might be entitled.
6.8.2007 2:01pm
elChato (mail):
I looked up his lawyer- he's a highly reputable guy from a good firm, but I wonder how much experience he has in personal-injury work.

Why this lawyer included things in his complaint such as prejudgment interest and attorney's fees that may not be recoverable, I can't say; but my own PI complaints regularly include similar stock language, and defense lawyers rarely question it. One example of a reason I demand attorney's fees-- if it later emerges that we have some kind of bad-faith claim against an insurer, we don't have to worry about amending the suit to demand attorney's fees, or any kind of argument by the defendants that the statute of limitations ran on it. 99.9% of the time it's not an issue and is simply ignored by all.

I also wonder why the amount demanded in the complaint was so large. But if Bork was injured as detailed in the complaint, you are probably talking big money, and from what I've heard personal-injury awards in New York can be pretty big for a large injury.


My biggest question is, Why file this in federal court as opposed to state court? Would federal court be a better place for a PI plaintiff to be if he was injured in New York City?
6.8.2007 2:10pm
bjr26:
Ardbed -- great whiskey -- and David Bernstean beat me to it. It's fairly standard to include such demands in the complaint; for some reason, plaintiffs' attorneys (myself included) like to think it will scare the other side into caving to a demand, or at least inflating the settlement value of our case.

I look forward to Prof. Volokh's follow-up inquiry regarding the defendant's answer, which will almost surely include somewhere between 25 and 50 affirmative defenses that are entirely irrelevant to the case, but asserted merely on a pro forma basis.
6.8.2007 2:11pm
bjr26:
Ardbeg, sorry.
6.8.2007 2:12pm
wirro:
But the issue isn't the strength of his case but that someone who has campaigned for Tort Reform and an end to "frivolous" punitive damage awards would file a case like this.

Rank hypocrisy, anyone?
6.8.2007 2:12pm
DavidBernstein (mail):
I don't see any ridicule here, but Bork wrote as follows 12 years ago:
Our expensive, capricious and unpredictable civil justice systems present precisely the kind of conflicting and costly state regulation of commerce that the Commerce Clause was designed to solve. Lawsuits, verdicts, settlements and the insurance necessary to defend and indemnify against them, are driving up the cost of goods and services everywhere, and consumers are paying the bill. The litigation explosion has no respect for the state lines because commerce and insurance are now national. Interstate commerce and trade have become the principal victims of a runaway liability system.

Courts are now meccas for every conceivable unanswered grievance or perceived injury. Juries dispense lottery-like windfalls, attracting and rewarding imaginative claims and far-fetched legal theories. Today's merchant enters the marketplace with trepidation - anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates.
Bork and Olson, Trial lawyers and other closet federalists, Wash. Times, March 9, 1995.
I don't think that someone with such views is in any way barred morally or otherwise from using the system he criticizes, but a prominent an attorney himself, he could instruct his attorneys not to assert "far-fetched legal theories", or to request a "lottery-like windfall."
6.8.2007 2:13pm
elChato (mail):
Note too the jurisdictional statement in para. 3 describes the defendant as a "private club with its principal place of business at [a NYC address]." There is no specification of what type of organization this "club" is- corporation, unincorporated association, or partnership; one or more of these forms might be considered citizens of multiple states, including Bork's state of Virginia, for diversity purposes- depending on where else it might do business, or where a partner might be domiciled.

So the jurisdictional statement is deficient, the kind of thing Bork might have looked askance back in his judging days; his disciple Easterbrook would not think much of this complaint, I think.
6.8.2007 2:19pm
anonVCfan:
Perhaps Judge Bork has good medical insurance, but from what little I know about the medical system, I'd hesitate to call this a "lottery-like windfall" without knowing more than I do about the complaint.
6.8.2007 2:25pm
tbaugh (mail):
I know nothing of Bork's injuries (or the incident)--though I did see him at an event not long ago, and was surprised at the cane and that he seemed frail, but at the time I was unaware of the fall--but wonder what the facts are that support the assertion that his injuries and losses caused by them are insufficient to make the claim for damages other than a request for a "lottery-like windfall"?
6.8.2007 2:31pm
nunzio:
Isn't Bork on Medicare? Hopefully his lawyers remember to notify the federal government in case of a settlement or judgment in his favor so he can reimburse them for any medical-cost damages he receives. (If he has private insurance, he better notify them as well, as they'll have a recoupment claim).

All of this aside, where are the manners of those sitting nearby the dais where he fell? They should have helped an older guy up the dais.
6.8.2007 2:37pm
anonVCfan:
t-baugh, worst run-on sentence ever. what's your question?
6.8.2007 2:38pm
Eric @ New York Personal Injury Law Blog (www):
Ardbeg:

This was not a standard complaint. If it were, his counsel would have explicitly alleged that the Yale Club owned, operated and controlled the premises. (It can still be inferred, but it was poor drafting.)

The complaint is filled with specifics about the incident (usually not done locally, it is usually very general), also meaning it is not boilerplate.

They make multiple, unrelated , allegations in a single paragraph, making it impossible to admit or deny any of the facts in the answer (thereby destroying any benefit to putting in specifics) . And while not fatal, it is against the rules.

It is certainly not boilerplate to allege punitive damages in a trip and fall case unless there is something particularly outrageous. And it isn't a separate cause of action for punitives as they have alleged.

And it is certainly not boilerplate to ask for things such as pre-judgment interest and attorneys' fees in such an action, when they are clearly not allowed.

Claiming something is boilerplate only works for a rookie lawyer who didn't know better. Not for a former SCOTUS nominee with counsel from a BigLaw firm. (What would Bork say if he were on the bench and presented with such an excuse?)

The reality is that there are thousands of solo and small firm practitioners who know this stuff cold, and Bork picked counsel with a lack of experience. That's what I glean from the Complaint, and is the most likely reason frivolous claims appear.

--ET
6.8.2007 2:40pm
Phantom (mail):
1) How long was Mr. Bork unable to speak publicly?

2) How often did he speak publicly prior to the accident?

3) What was his customary fee for speaking?

4) What were the nature of his injuries?

I'd like to see answers to all these questions before I criticized the ad damnum clause. It may well be that he lost significant past income due to the term of his recovery. He may also be facing a traumatic brain injury as a result of striking his head. For a guy who is known largely for the thoughts that come out of his head, this could present a significant future income loss as well.

With regard to the kinds of damages you can recover in New York for torts, I'll defer to those licensed to practice there, though I wonder whether there is a statute that permits prejudgment interest for lost earnings?

As to the punitive damages claim, I agree that there doesn't seem to be much in the way of supporting information in the Complaint, that doesn't mean it's not a legitimate claim. F.R.C.P. doesn't require pleading with particularity for punitive damages claims. Instead, you're only obligated to give sufficient notice of the facts to clue the defendant into what you're discussing. Perhaps there's something else we're not aware of.

--PtM
6.8.2007 2:44pm
JohnThompson (mail):
Eugene:

You ask "why" re some of the aspects of the pleading--the answer is because you have to just in case. As you may know, plead it or waive it. I understand your well-taken point about asking for punis without pleading specific facts that would amount to outrageous conduct or demanding attorneys fees in the absence of any obvious contractual or statutory avenue for obtaining them, but that is how things are done, as any practicing attorney could tell you. Better to plead it and have it ignored than not to plead it and later realize you screwed up and that you've waived it....
6.8.2007 2:54pm
Steve:
I look forward to Prof. Volokh's follow-up inquiry regarding the defendant's answer, which will almost surely include somewhere between 25 and 50 affirmative defenses that are entirely irrelevant to the case, but asserted merely on a pro forma basis.

Yeah, and if the defendant were previously on record as saying that personal-injury defendants assert way too many frivolous defenses, that hypothetical post would be quite stinging. Otherwise, not so much.
6.8.2007 3:04pm
tbaugh (mail):
AnonVCfan:

I'll try again

It is asserted that Bork's complaint seeks damages that would amount to a "lottery-like windfall" if awarded. This implies that his injuries, suffering, expenses, and loss of income do not justify the amount sought. What facts support this assertion?
6.8.2007 3:16pm
anonVCfan:
Thanks. That's my question, as well.
6.8.2007 3:21pm
markm (mail):
ardbeg78: To this non-lawyer, what you are saying is that it is utterly routine practice for lawyers to clog up a fairly simple case with all sorts of claims that cannot be supported. I see no benefit whatsoever for the lawyer's client in doing this, but possibly more billing hours for the lawyer, and the defendant's lawyers...

A perfect illustration of why, "First, we kill all the lawyers", has remained one of Shakespeare's most popular lines through the centuries.
6.8.2007 3:32pm
Ted Frank (www):
Eric:

What rule prohibits multiple allegations in a single paragraph of a federal complaint? You seem to be making assertions of New York state procedural law that are inapplicable in a federal forum.
6.8.2007 3:53pm
luagha:
If you are familiar with the hobby gaming industry, you'll know that these games have rules. And sometimes expansion sets come out to these games, which add new rules to the game. (Some examples are the popular current game 'Settlers of Cataan' and its several expansions to its rules like 'Seafarers of Cataan.' Dungeons and Dragons and other miniatures games similarily expand their rulesset, and there's even an expansion for Monopoly out there.)

And while the original game may have a certain game balance to it, the game plus its expansion may have a different game balance, or indeed a broken game balance. A game with broken rules is not really fun to play... exploiting the broken strategy always wins and becomes boring.

What does one do when one is playing a game with broken rules?

My personal feeling is that I make clear that I feel the rules in question are broken. I then proceed to exploit them as a demonstration of their brokenness - all the while suggesting that the rules be changed so that I will not be allowed to take the action that I am currently taking.

It seems to me that Bork is doing exactly that. He is protesting within the system as is his only power to do so - exploiting the broken rule until it is changed.
6.8.2007 4:02pm
NickM (mail) (www):
Are there any civil litigators here who don't include in their standard complaints and crosscomplaints a prayer for attorney's fees?

I've seen one complaint drafted by an attorney that I can recall that didn't include it. Heck, even complaints by pro pers generally include it.

Nick
6.8.2007 4:37pm
Pmen (mail):
markm,

To this lawyer, what you are saying is that you are trolling for an argument. Against my better judgment, I will take you up on it.

Many lawyers make a practice of asserting any colorable claim in their initial pleadings, regardless of their view of the chances on the merits, because they want to avoid waiving a claim. The same goes, as some people have pointed out, for defenses.

This is a debatable practice, and lawyers do sometimes cross the thin line between just barely colorable claims and claims that are just plain frivolous. But to say that it is motivated simply by the desire to generate billing is inaccurate.

In fact, it's butt covering behavior. Accidentally waiving a claim is malpractice, second only to missing a statute of limitations in the lawyer's list of nightmare scenarios.

Imagine that you're the lawyer in this case. Assuming that you know some but not necessarily all of the facts and that the relevant standard for awarding punitive damages is that the plaintiff must show the defendant's injury-causing conduct to have been "outrageous," are you so certain that your client is not going to be entitled to punitive damages that you would bet your career on it?

Note that I'm not saying that I necessarily would have asked for punitive damages here, nor am I defending the Complaint that was filed, which I haven't read. I'm just trying to give you some insight into what motivates this sort of thing.

Re the quote, you might want to actually read the play.
6.8.2007 4:47pm
Steve:
It seems to me that Bork is doing exactly that. He is protesting within the system as is his only power to do so - exploiting the broken rule until it is changed.

That's brilliant. It's a political protest! A form of protest where you try and get a million dollars. That's surely the best kind of protest.

Likewise, Al Gore has that big house just to demonstrate how wasteful people will be if we don't change the laws!

A "protest." Seriously, an inspired argument.
6.8.2007 4:48pm
William Tanksley (mail):
Disclaimer: I don't see an obvious problem with Bork's case; perhaps 1M+ is excessive, but perhaps not. I don't know how much he's had to pay for his health care as a result of this.

But, luagha, he's certainly not "protesting the system" in the way you're depicting. If he were he'd be asking for enough to make a real splash, not a 'mere' 1M. You don't protest a system by doing what everyone else is doing; nobody will notice THAT.
6.8.2007 4:59pm
jallgor (mail):
Nick,
Yes, I am a civil litigator in NY and I do not ask for atty's fees unless I believe I have some reasonable basis for doing so. I disagree with Ardbeg and agree with Eric. It is not standard to ask for atty's fees or punitive damages where the law clearly doesn't allow for them. JohnThompson: if you are afraid of waiving some form of relief you can always include a claim for "any other such relief as the court deems appropriate." That is standard biolerplate. Asking for punitive damages when you have no reasonable basis for doing so violates Rule 11 as would most of the other examples of "boilerplate" that Ardbeg describes. A rule which more judges should aggressively enforce.

Ted Frank: I believe you are right, I am not aware of any NY or Federal Rule that requires a person to plead in the way Eric describes. I think it is just standard practice to have one allegation per paragraph. I've seen pro se plaintiffs submit complaints that have no paragraphs at all and essentially read like letters.
6.8.2007 5:07pm
Eric @ New York Personal Injury Law Blog (www):
What rule prohibits multiple allegations in a single paragraph of a federal complaint? You seem to be making assertions of New York state procedural law that are inapplicable in a federal forum.


I think it is implied in FRCP 8(e) which states that pleadings are to be simple, concise and direct (and by implication, not compound). Since pleadings are construed liberally, of course, it doesn't matter in the big picture. But, if you are looking to gain any admissions in the answer, you should have one fact per paragraph. To my eye, it just shows that the people who drafted the Complaint don't do this kind of law. Which was the gist of my comment.

--ET
6.8.2007 5:35pm
Phantom (mail):
ET--

This is what happens when you let the big fancy firms get involved in the necessarily grimy, gritty business of plaintiff's personal injury work.

They just drop the ball.

--PtM
6.8.2007 5:54pm
Ted Frank (www):
I can't recall a complaint I've ever answered in any court that didn't have compound allegations requiring verbal gymnastics to indicate what was being admitted and denied in the answer. The big plaintiffs' firms' complaints almost always read like Grisham novels. Overlawyered just posted a tobacco complaint that was peppered with footnotes whose only purpose was to make claims of facts that would otherwise be excluded under the state-law equivalent of FRE 401 and 403.

I read FRCP 8(e)(1) as permissive (no requirement for arcane Latinisms) rather than restrictive, and the Advisory Committee Notes appear to support that interpretation.
6.8.2007 6:21pm
Steve H (mail):
I usually ask for attorney fees, but only "as allowed by law" (if I don't have a real basis but I hope that one will come up).

But I would never put in a claim for punitive damages for a standard negligence case. If facts arise during the course of discovery that suggests punitives might be warranted, I would ask for leave to amend.

(I also would not state the amount of damages sought in a personal injury claim, but that's not required around here.)

So in my view, Bork is clearly making a frivolous claim by asking for punitive damages without being able to allege facts showing pretty extreme conduct by the defendants. And (unlike an attorney fee request), the inclusion of punitive damages actually imposes costs on the defendant, since the defendant now has to engage in discovery and move to strike the request for punitives before the case goes to trial.
6.8.2007 6:25pm
David M. Nieporent (www):
Again, I don't do PI work, but when I litigate a contract claim I do exactly what Jailgor writes: "and such other such relief as the court deems appropriate." (Unless there's an attorney's fees provision in the contract, in which case obviously I explicitly demand it.)
6.8.2007 10:52pm
Eric @ New York Personal Injury Law Blog (www):
One other point, which turned up in the comments of my blog, is that Bork's attorneys also screwed up by filing in federal court. I initially didn't include that on the theory that the case would be quickly removed to federal court based on diversity, but the commenter pointed out that the Yale Club would not be able to remove because they are in NY.

Why does this matter? NY doesn't allow for expert depositions (or interrogatories if you choose to take a deposition), unlike federal rules. Thus, federal litigation is more expensive and more time consuming. Here you would expect 1-2 doctors and perhaps, a buildings inspector expert to discuss potential building code violations regarding the stairs/railing issue.

There are also plenty of people who think state court is more friendly for PI cases (because federal judges hate this stuff), but that is an entirely subjective area.

--ET
6.8.2007 11:38pm
Brian G (mail) (www):
The damages claims are weak? Of course they are. Every Plaintiff's Complaint is wildly inflated. As a civil defense attorney, I see them everyday. I can't recall ever seeing a Plaintiff's Complaint that wasn't ridiculous in asking for damages.

I forget whose theory it is, but the logic is that by making an unreasonable and outrageous demand up front, every subsequent move down seems reasonable by comparison.
6.9.2007 6:08am
raj (mail):
Bork is, of course, a horse's ass. He believes that the NYC Yale Club should compensate him because he was too stupid to recognize that he was unable to climb onto a dais without assistance, and in the process of doing so injured himself. That's idiotic.

He gives lawyers, former judges and even Republicans (if that's possible) a bad name.
6.10.2007 5:06pm
Dilan Esper (mail) (www):
I am a civil litigator, but in California, so take this with a grain of salt if New York pleading rules or practice in New York is different.

I do not plead claims that do not have a reasonable factual basis. That means no punitive damages if the defendant did not engage in some sort of intentional act that might justify the claim, no attorney's fees claim if there is no attorney's fees right in a contract or a statute or common law theory, etc.

And to those who say that they are merely engaging in CYA, I have a couple of observations. First, CYA is not an exception to the rule that pleadings signed by lawyers have to have a reasonable basis in the facts and the law, and there must be some basis for a lawyer's belief as to matters pleaded on information and belief. Unless you are running up against the statute of limitations, it isn't asking much for the lawyer to do some preliminary investigation and to figure out whether there's any basis for a prayer for punitives or attorney's fees before asking for them. Second, at least as to attorney's fees in California, it is very bad practice to ask for them if you aren't entitled to them, because there are precedents for this creating an estoppel which then permits the other side to seek attorney's fees if they prevail despite there being no preexisting legal basis for them.
6.12.2007 6:31pm