This weekend, a woman asked me why there so many more frivolous lawsuits filed now than "in the old days". I told her that I couldn't address her question and needed more information. What are the then/now statistics? Where did she get them? What type or types of lawsuits was she describing? She didn't know the answer to any of them. It was just a sense that she had gathered from things she saw online, daytime tv and talk radio and – yes – a neighbor who had been sued after running a stop sign and hitting another car. She said that she thought that the lawsuit against her neighbor was a frivolous because "the other driver wouldn't settle out of court".
How much did the other driver demand to settle the case? How much did her friend's insurance carrier offer in reply? Was the other driver hurt? How bad was the damage to the other car? Did you ever consider that perhaps your friend's insurance carrier did not offer the other driver enough to make him whole? Again, she had no answers.
A frivolous lawsuit is one that has no supporting legal argument or factual basis. In short, it is a lawsuit that is designed to get money without any justification, cast the party being sued in a bad light or to harass the other party. It also might be a situation where a lawyer doesn't properly assess the claim before filing the lawsuit. Where it is clear that one party's lack of care caused another party's injury, but they can't agree on the value of the claim, it is NOT a frivolous lawsuit.
The insurance industry has done a good job of getting people to think that a claim that is not worth a lot of money is a frivolous one. I routinely ask potential jurors if they believe that they have been the victim of a frivolous lawsuit or know anyone who has. For the overwhelming number of jurors, the answer is no. For those who answer yes, the responses are across the board – some folks describe truly frivolous lawsuits and some describe what the woman above described to me. One man told me that he knew that he was the victim of a frivolous lawsuit because the jury gave the plaintiff less than his insurance carrier had offered to settle the lawsuit.
The next time that you hear someone start talking what they deem to be a frivolous lawsuit, politely ask some of the questions raised in this post. You both might be surprised at what you learn.
Cum Laude graduate of Cumberland School of Law, Pet Mackey is a civil trial litigation expert who represents plaintiffs in business and consumer tort, contracts and construction, employment disputes and insurance. He is board certified as a Civil Trial Advocate by the National Board of Trial Advocacy, a Certified Alabama Mediator, and an “AV” rated lawyer by Martindale-Hubbell.
14 Comments
jc
Pete, I am glad you brought up this subject. Frivolous litigation is endemic in medical malpractice. 85% of medical malpractice suits that go to court in Ohio are won by the defendant doc, so according to your definition, those 85% of malpractice suits are frivolous. That has been my experience, like the time I was sued for a typographical error I was not responsible for which had no negative effect on a successful outcome for the patient. Most frivolous malpractice litigation follows this pattern: The patient has a serious disease and suffers a bad outcome despite the doc doing everything he could. Unfortunately during the patient's treatment course some incidental "mistake" occurrs which has no bearing on the patient's outcome. The disgruntled patient takes his story of woe to an inexperienced attorney who proceeds to sue. Years later a jury agrees with the doc that the incidental mistake did not cause the poor outcome.
Ofcourse by then the doc has had to endure years of legal hell, increased malpractice premiums and a damaged reputation yet he has no recourse against the plaintiff attorney for this frivolous litigation. Pete, if you want to ask me any question about this frivolous malpractice case I have described above -go ahead and you and the readers will be shocked at how petty plaintiff attorneys can be. After reading my story, you will demand that plaintiff attorneys should have to accept responsibility for their actions too.
Pete Mackey
Dr. Cox: I don't think that you read my post very carefully. I have never equated a loss at trial with a frivolous lawsuit. That would be like saying that the cases where the plaintiff prevailed were necessarily frivolous defenses by the doctor. Factual disputes are at the heart of every jury trial. As for your personal lawsuit(s), please provide me with the style of the cases, the jurisdictions and courts they were in and the case numbers. I will be glad to review them and either agree or disagree with you.
jc
Pete--I disagree with your contention that factual disputes do not represent frivolous litigation. It is well know by physicians that there are medical expert whores who will say anything for a buck. This does not represent a legitimate factual dispute and it represents the majority of cases that go to trial in medical malpractice cases. When the plaintiff's expert testimony gets cross examined, it blows up resulting in a defense verdict. It happens in about 85% of cases that go to trial and represents frivolous litigation. This situation occurrs because plaintiff medical expert witnesses bear no consequences for false testimony. It is simply considered this doctors opinion and the medical expert escapes liability for false testimony. He just collects his fee and goes home.
Pete Mackey
As I said in my reply to your comment, please provide me with the style of the cases you were sued in, the jurisdictions and courts they were in and the case numbers. I will be glad to review them and either agree or disagree with you.
jc
Scheckelhoff v St. Rita's - - 34 y/o female admitted for headaches. Went thru full gamet of tests with nothing found wrong including MRA and MRI head, spinal tap etc. Headaches persisted, transferred to U of Michigan. Underwent brain biopsy and died. Rumor has it that she had "cerebral vasculitis" Cause of death unkown. Every doc whose name was on the chart was sued. No affidavits of merit were ever obtained. Case dismissed in 90 days against everyone. Pete, would you call this a frivolous case?
Pete Mackey
Please provide all of the information that I asked for so that I can give you an informed opinion.
jc
Pete: That is all the information. That is exactly how the case came down. 90 days after the case was filed it was dropped because the plaintiff attorney could not find anyone to sign an affidavid of merit.
Pete Mackey
No, there's more information, Doctor. What year was it filed? What county and which court? Who was the plaintiff's lawyer?
jc
Pete - -I have given you the pertinent information. You don't need to know whether Lawyer Jones or Lawyer Smith filed the case in 2008 or 2009 in Bucks County or Williams County to make a determination based on the facts that I have given you whether this is a frivolous case or not. Based upon the information given to you a competent fair minded attorney should be able to make a determination as to whether this was frivolous litigation or not.
Pete Mackey
Yes I do, Dr. I am happy to either agree or disagree with you, but I need to look at the information objectively. If you aren't willing to do so, that's that and the issue is dead.
Comments for this article are closed.