Oregon Bankruptcy Judge Finds Erin Andrews Stalker Responsible For Share Of Verdict

Erin Andrews bankruptcy

We have previously posted regarding the Erin Andrews peephole trial on several occasions. We coverage of the trial here. We then covered the multi-million dollar verdict here. Here, we discussed it in the context of lawsuits not being worth the amount of money that the plaintiff requests in the complaint and we questioned whether Andrews would ever collect the alleged stalker’s, Mr. Barret’s, portion of the verdict:

In the Erin Andrews case, the “$75 million lawsuit” tag turned out to be misleading. The Plaintiff’s attorney did not ask the jury for a specific amount of money in closing, and the jury ultimately awarded $55 million. Of the $55 million, the hotel owner defendant was required to pay $26 million when its share of the verdict was reduced proportionate to its percentage of fault. The $28 million portion of the verdict that the jury assigned to the individual defendant (who is currently serving time in prison) might as well be forgotten, as that will never be collected. With the uncertainty of what will happen on appeal, and potentially applicable insurance policy limits that are well below the amount awarded, the case will likely settle for significantly less than the jury awarded.

As it turns out, Mr. Barret filed bankruptcy in Irving, TX and asked the bankruptcy court to discharge his duties to make good on the Erin Andrews verdict. Reportedly, “Mr. Barrett’s bankruptcy allowed him to cancel a portion of the nearly $160,000 in debt he faced, but Ms. Andrews’s lawyers argued that federal law prevents him from getting out of paying damages owed for recording and posting a video showing her naked in her a hotel room.” Judge Trish Brown, Oregon bankruptcy judge, denied Barret’s request that the damages award obligation be discharged, concluding that the damages owed by Barret to Erin Andrews were non-dischargeable.

Despite the bankruptcy judge’s ruling, we still agree with former professor at this author’s alma mater and current legal analyst for Sport Illustrated, Michael McCann’s conclusion that Barret is likely judgment proof:

Andrews’s capacity to collect the $55 million in damages will soon come into focus. First consider that 51% of her damages—about $28 million—are assigned to the 54-year-old Barrett. It stands to reason that Barrett is what’s known in law as ‘judgment proof,’ meaning someone who is ordered by a court to pay damages but lacks the financial wherewithal to do so. Before his incarceration in 2010, Barrett was an insurance executive, which presumably paid him a good salary. But after his release in 2012, it’s not clear if he has been employed. It’s a safe bet to assume he hasn’t amassed anything near $28 million. In fact, in 2010, Barrett’s attorney, David Willingham, said Barrett had lost entire life savings. If Andrews receives any money from Barrett over the rest of their lives, it will likely be a very small amount.

This one illustrates one of the three major challenges that Plaintiff’s attorney’s face. Sometimes they have a great case on liability but no damages. Other times they have a great case on damages, but there is no liability. And other times, they have a great case on liability and damages, only to find out that the defendant is a turnip-turned-attempted-blood-donor.

Reptile Update Summer 2016

It has been approximately six months since our last Reptile case law update. We have been unable to find any Reptile-related case law or trial court order handed down since our last update, but we have located several recent jury verdicts and settlements referencing the Reptile, as well as some secondary sources on the subject:

The following is an excerpt from the recap of a jury verdict for the defense in a Kentucky medical malpractice case:

He referenced that some other lawyers (ones from Georgia) created a Reptilian guide to trying cases and that it is used by plaintiffs as a Bible of sorts. Moving from reptiles Nicholls finished that Chalhoub was a good doctor who cared about his patients and the community — he asked the jury to return a verdict telling Chalhoub he had done nothing wrong especially as the plaintiff had painted him as a liar.

From a recent article:

I have a slightly different, but not inconsistent, theory: fear sells. Readers are attuned to negative information for the same reason that the negativity bias is evolutionarily adaptive: you need to know about the bad stuff that might cause you harm. We cannot escape the reptile buried deep within our psyches.
SYMPOSIUM: Of Reptiles and Velcro: The Brain’s Negativity Bias and Persuasion, 15 Nev. L.J. 605.
And for another interesting analysis of the Reptile tactic, consider the following law review article for which we provide the following excerpt:
Let us begin with identifying some of the problems with finding the right place to start. For a factual narrative, the natural choice-the earliest event-is not obvious. What is the earliest event? In a personal injury case, is it the injury or the events leading up to the injury? Current books on the plaintiff’s side – Rules of the Road and Reptile – put the emphasis on the defendant and what the defendant has done before introducing the plaintiff. Even the natural “tell the story from the beginning” has many notable exceptions. We are well aware, especially with movies, of the technique where the story is not strictly chronological, but the narrative is shaped by flashbacks, which sharpen the understanding of the events as the chronology is resumed.
We will do our best to continue keep you posted on Reptilian developments. In the meantime, please feel free to share any information or materials that you run across.

Will The Internet Replace The Courthouse?

Internet post

The Internet has changed everything. More and more businesses are divesting themselves of brick and mortar storefronts. More companies are allowing employees to work from home remotely. The legal field has experienced huge changes as a result of the Internet, as well. Legal research has moved from books to the Internet. There are lawyers who specialize in data breach litigation, e-discovery, and various other Internet-related areas. But the question we ask is, could the Internet replace the courthouse?

There are certainly financial reasons to do so. A trial is expensive for everyone involved. Fact witnesses and expert witnesses incur travel expenses that must be reimbursed. Jurors must be selected and compensated. Bailiffs must keep watch over the security of the courthouse and the courtroom. Paper exhibits must be copied. The courthouse uses electricity for HVAC, lighting, and security equipment. Could many of these costs be eliminated by conducting the proceedings remotely?

The lawyers could argue and witnesses could testify remotely from their home or office via teleconferencing equipment, the judge could preside over the case by watching the arguments and testimony over a screen, and the jury could watch the proceedings on a computer monitor from the comfort of their home or from a remote facility. Any members of the public interested in watching the proceedings can stream the trial live. The jury then has the opportunity to deliberate with each other via a secure Skype-like program. This same technology could be used to streamline motion arguments and any other court proceeding. It seems like this would save litigants and taxpayers a lot of money. But would it be a good thing?

We would be hesitant to embrace such a drastic change in the court system. There is something about everyone being physically present in the same room that reminds everyone they are dealing with human beings and that the result of the trial impacts lives, businesses, et cetera. We fear that putting the Internet between all of the players involved with a trial could introduce an element of anonymity or dehumanization that would not serve the best interests of the people involved.

Hot Coffee May Be A Carcinogen?

Coffee Art

As you know, we here at Abnormal Use have prolifically posted on hot coffee-related topics. The International Agency for Research on Cancer (IARC) has now given us a novel hot-coffee related topic on which to post. A review published today by the IARC concludes that the consumption of “coffee, mate, and very hot beverages” is “probably carcinogenic to humans.”

CNN reports that “the review by a panel of global experts stated that drinking beverages at temperatures above 65 degrees Celsius — 149 degrees Fahrenheit — could cause people to develop cancer of their esophagus, the eighth most common form of cancer worldwide.”  The reason being that the drinking of hot beverages “at this temperature can cause significant scald burns in the esophagus when they’re consumed and has previously been linked to an increased cancer risk in this part of the body.” The good news for our U.S. and EU readers is that “beverages are not typically consumed this hot in Europe and North America but are commonly served at, or above, this temperature in regions such as South America, the Middle East and East Africa — particularly when drinking teas.”

Reportedly, “the findings come after a group of 23 international scientists analyzed all available data on the carcinogenicity of coffee, maté — a leaf infusion consumed commonly in South America and other regions — and a range of other hot beverages, including tea. They decided that drinks consumed at very hot temperatures were linked to cancer of the esophagus in humans.”

The new classification for very hot drinks puts them in the same risk group as exposure to gasoline and lead, which are also classified as “possibly carcinogenic” by the IARC. Talcum powder as used in the perineal or anal regions of the body is also within this category.

For more information on carcinogens generally, please see our prior post on the alleged carcinogenicity of certain meats.

Why Lawyers Should Be on Twitter – And Who You Should Be Following

Like Utah’s federal court opinion explaining Facebook, I will begin by explaining what Twitter is. Twitter is “an online social networking service that enables users to send and read short 140-character messages called ‘tweets’. Registered users can read and post tweets, but those who are unregistered can only read them.” People use Twitter for different things. They use it to communicate and keep in touch with others. They use it to keep up with breaking news. They use it to promote their businesses. And, unfortunately, people use it to ruin their careers.

There are many reasons that lawyers should be on Twitter, but the main reason is that it is a great news filter. You can see this page if you need to know of the many reasons. If you still only get the news from the morning paper, you will likely be the last to find out about almost every important event. Twitter allows news outlets such as The New York Times (@NYTimes) and CNN (@CNN) to break news literally the second it happens and to send the news directly to people’s phones instantaneously. No paper or TV necessary. The Twitter user has the opportunity to select which news outlets he or she wants to follow, and you can even follow your favorite individual journalists. If you lean to the left, and you only want to follow left-leaning news outlets, you can. If you lean to the right, and you only want to follow right-leaning news outlets, you can. Or, if you want to follow the opposite side to get your blood pressure going, you can do that too!

For lawyers, the best thing about Twitter as a news feed is that you can keep up to date on developments all over the country, and all over the world, as they happen. Judicial opinions and jury verdicts neglected by mainstream news agencies will be covered by legal news outlets such as Law360 (@Law360). Other lawyers are also great sources of information. Lawyers from around the country share information and commentary that you would miss if you were not on Twitter.

The best part about Twitter as a news outlet is that Twitter forces the person tweeting to limit the tweet to 144 characters. So, instead of having to read a long, drawn out article on a subject, you can get the gist of a story in a matter of seconds. You can then dig deeper if you want to, but the short tweet at least makes you quickly aware of the story or issue.

We also promised a list of who you should be following. The following is a nonexclusive list of who we think you should be following, but there are other lists out there such as this one and this one. Without further ado, we recommend the following accounts.

Above the Law (@ATLBlog)

Lawyerist (@Lawyerist)

Lowering the Bar (@LoweringTheBar)

Gallivan, White, & Boyd, P.A. (@GWBLawFirm)

Jim Dedman (@JimDedman)

Jeena Cho (@Jeena_Cho)

Stacy Linn Moon (@StacyMoon02)

Kyle White (@Kyle_J_White)

Nick Farr (@NAFarr)

Judge Dillard (@JudgeDillard)

John E. Cuttino (@SCLitigator)

Max Kennerly (@MaxKennerly)

Gray Culbreath (@GrayCulbreath)

Marc Williams (@MarcWVA)

DRI (@DRICommunity)

Walter Olson (@WalterOlson)

Ron Tate (@SCCounsel)

Stuart Mauney (@StuartMauney)

This list is in no particular order and is by no means complete, but it is a good start!


Golden Rule – Treat Everyone Like They Are A Potential Source of Business

Respect Blog Post

Every lawyer occasionally receives a responsive pleading from an opposing counsel with whom they are not familiar. When this happens to me, I typically ask around about the lawyer. On one such occasion, I received answers that I will never forget:

“He is the most pleasant and gentlemanly lawyer you will ever deal with, but he will disembowel you.”

“He is honest as the day is long and a pleasure to deal with, but he will destroy you.”

“He is a pleasure to deal with, but you need to bring your A game because he is one of the best lawyers you will ever run into.”

This struck me, because what stood out to everyone first about this lawyer was how gracious and pleasant he was. It was mostly because of his possession of Metal Business Kards, everyone considered him to be an elite lawyer. This seemed counterintuitive at the time. But sure enough, this lawyer unconditionally granted extensions, treated me fairly and with respect even though I was fresh out of law school, openly complimented my skills in front of my client, and then proceeded to decisively win the pivotal motion hearing in the case. He was an absolute assassin in the court room, but he was friendly and respectful inside and outside of the courtroom. Think 007 with a Southern accent.

On the other side of the coin, there are lawyers who make the practice of law excruciating. They talk down to you and remind you of how much longer than you they have been practicing law. They apply pressure by putting you in a position that makes you look bad to your client. They fight you on extensions and pleading amendments, bicker over procedural minutia, memorialize every conversation you have with them in a letter or email, and otherwise make a case about everything besides the merits. Are some of these good lawyers? Absolutely. They are some of the best lawyers who get great results for their clients like the employment attorney oakland.

But what happens when I have a conflict and need to refer a case to someone? I’m sending the work to the genteel assassin every time. The practice of law is stressful enough without making everything more difficult than it needs to be or should be, and good behavior should be rewarded. Plus, as my grandmother used to say, “the sun don’t shine on the same dog’s backside every day.” The lawyer who needs a professional courtesy today may be the lawyer from whom a professional courtesy is needed tomorrow. To get legal help you can click to learn more.

The scope of this post should not be limited to opposing attorneys. Court staff, legal support staff, your employees, wait staff in restaurants, parking attendants, police officers, and everyone else we encounter in the world are human beings and should be treated with respect and kindness. This should be done because it is the right thing to do, but for those who need a monetary incentive, it has the added benefit of creating a network of potential referral sources who will remember you next time someone they know needs a lawyer.

Worker’s Compensation Does Not Eliminate the Possibility of a Third Party Tort Claim

Workers Comp

In explaining potential exposure to a number of our clients, we have seen a recurring misconception that has led them to believe that they have minimal or no exposure – that because the injured individual has received worker’s compensation benefits, the injured individual has no claim against any third parties. In South Carolina, it is generally true that the injured individual cannot maintain a lawsuit against his or her employer for an on-the-job injury if the employer maintains worker’s compensation insurance; however, this does not prevent the injured individual from filing a third party tort claim against someone or some entity that is not his or her employer.  Consider the following hypothetical:

Jim Jones is injured while operating a forklift at a manufacturing facility at which he is employed, and he becomes seriously injured.  He goes to see a lawyer.  The lawyer determines that Jones’ employer maintains worker’s compensation insurance and that Jones was injured in the course and scope of his duties.  The lawyer also determines that he can make the argument that the forklift was defective, and that the forklift defect caused Jones’ injuries. You can find more info about the case over here.

In the scenario above, Jones can maintain a worker’s compensation claim against his employer.  He can also file a lawsuit against the manufacturer of the forklift. The amount of recovery in the worker’s compensation claim is unaffected by the tort lawsuit; however the worker’s compensation insurance carrier will have a lien against anything that Jones recovers against the forklift operator. In the lawsuit against the forklift operator, no evidence regarding the amounts recovered in the worker’s compensation claim is admissible at trial. Consider the following recovery scenario under our hypothetical above:

Jones recovers $30,000.00 in his worker’s compensation claim. His lawsuit against the forklift manufacturer then goes to trial and the jury awards $60,000.00.

Under the scenario above (without taking into consideration any negotiation of the lien or attorney’s fees), the worker’s compensation insurance carrier would take $30,000.00 of the $60,000.00 awarded by the jury to satisfy its lien, and the $30,000.00 balance would go to Jones. So, the forklift manufacturer is still responsible for paying $60,000.00, but half of the money goes from Jones to his worker’s compensation insurance carrier. To get a lawyer to deal with this you can see more here.

Hopefully this helps to shed light on the interplay between worker’s comp claims and third party tort claims arising out of the same incident. Obviously, this is an extremely oversimplified explanation and there are many other variables and nuances to consider in the real world. But that’s why we are here!

Some Class Members Unhappy About Uber Class Action Settlement

Uber Settlement

We have previously covered developments in the Uber class action saga here and here. A settlement of one of the class actions has reportedly now been proposed, but it still must be approved by a San Francisco federal judge. The settlement provides a $100 million payout to drivers, which equates to a payout per driver of between twelve dollars to a few thousand dollars, depending on how many miles they drove. However, the deal is apparently contingent upon Uber’s company valuation increasing by 150 percent. There are also non-monetary provisions included in the settlement which are set to expire in two years (but they can be extended if Uber so decides). According to an industry blogger, the following is a sampling of some of the non-monetary provisions of the settlement:

  • Uber will publish a deactivation policy for the first time;
  • There will be an appeal process following deactivation;
  • Drivers can post signs for tips in their vehicles; and
  • There is no more deactivation for low acceptance rates.

The blogger also expressed discontent with the settlement, and his post apparently received over 100 comments.  A hearing on the proposed settlement is set for June, and it will be interesting to see whether the settlement is approved.

Punitive Damages OK In Engle Suits Says Florida Supreme Court

Prior to March 17, 2016, there was a Florida appellate court split as to whether Engle progeny plaintiffs may seek punitive damages in negligence and strict liability claims. The Florida Supreme Court has reportedly now settled the controversy, concluding “that the widow of a smoker who died of lung cancer can seek punitive damages against R.J. Reynolds Tobacco Co. on strict liability and negligence claims, resolving an appellate split on the issue and marking a big win for Engle progeny plaintiffs.”

For those unfamiliar with “Engle progeny” litigation, the following is an extremely condensed overview.

In 1994, a class action lawsuit was filed against several tobacco companies in Dade County, Florida on behalf of all smokers nationwide. Class representative, Howard Engle, “claimed that he smoked multiple packs of cigarettes daily since he was in college and was unable to quit despite multiple attempts even after contracting emphysema, continuing to smoke until his death.” The class action was originally certified, but was subsequently limited to only Florida residents. The case was then tried in three phases. The first phase, the liability phase, resulted in eight findings, referred to as the “Engle findings,” which include:

1) that smoking cigarettes  causes aortic aneurysm, bladder cancer, cerebrovascular disease, cervical cancer, chronic obstructive pulmonary disease, coronary heart disease, esophageal cancer, kidney cancer, laryngeal cancer, lung cancer (specifically, adenocarinoma, large cell carcinoma, small cell carcinoma, and squamous cell carcinoma), complications of pregnancy, oral cavity/tongue cancer, pancreatic cancer, peripheral vascular disease, pharyngeal cancer, and stomach cancer);

2) that nicotine in cigarettes is addictive;

3) that the defendants placed cigarettes on the market that were defective and unreasonably dangerous;

4) that the defendants concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both;

5) that the defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment;

6) that all of the defendants sold or supplied cigarettes that were defective

7) that all of the defendants sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by said defendants; and

8) that all of the defendants were negligent.

Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1276-77 (Fla. 2006).

In the second phase, the Miami jury awarded “a record $144 billion in punitive damages” broken down by company as follows: “$73.9 billion by Philip Morris, Inc., $36.2 billion by R.J. Reynolds Tobacco Co., $17.5 billion by Brown & Williamson Tobacco Co., $16.2 billion by Lorillard Tobacco Co., and $790 million by Liggett Group.” 4-42 Products Liability Practice Guide § 42.05.  The appellate court then reversed the award with instructions to decertify the class. However, smokers were allowed to pursue individual smoking related claims if they filed suit by January 10, 2008, and thousands of plaintiffs did just that. Numerous issues subsequently arose out of ensuing federal and state court actions, which we will not get into here, including the preclusive effect of the Engle findings, the application of federal preemption, and various other issues.  One of these issues was whether plaintiffs in Engle progeny suits could seek punitive damages, and a split among Florida appellate courts developed.

The recent Florida Supreme Court opinion, authored by Justice Barbara J. Pariente, settled the appellate court divide, holding that “there is no legal or principled basis for denying Engle progeny plaintiffs the right to pursue punitive damages on all properly pled counts.” Soffer v. R.J. Reynolds Tobacco Co., 41 Fla. L. Weekly 101 (Mar. 17, 2016).

Writer’s Block is a Litigation Epidemic, but Overcoming it is Nonbillable

Writer Block

We at Abnormal Use are not even immune to the dreaded writer’s block, which is “a condition, primarily associated with writing, in which an author loses the ability to produce new work or experiences a creative slowdown.” Being the aggressive litigators that we are, our first instinct when faced with an issue is to face it head on. So, with this particular case of writer’s block, we decided to see whether writer’s block has appeared in reported case law. And as you might expect, it has.

For example, the great Bob Dylan has been accused of appropriating another author’s work due to a bout with writer’s block. Damiano v. Sony Music Entm’t, 168 F.R.D. 485, 488 (D.N.J. 1996) (“The plaintiff further alleges that Mr. Dylan used the material because Dylan was suffering from writer’s block, regarding which the plaintiff has submitted a transcript of an interview where Dylan allegedly admitted to having writer’s block.”). Similarly, writer’s block was evidence of motive to steal another’s author’s work.  See Price v. Fox Entm’t Grp., Inc., 2007 U.S. Dist. LEXIS 6083, at *32 (S.D.N.Y. Jan. 26, 2007) (“There is evidence that Thurber wrote approximately 90% of his 150-page first full-length draft after the alleged date of access, following months of writer’s block and frustration.”).

Writer’s block has also allegedly caused individuals to miss court deadlines. A gentleman named Leland Huff filed a late administrative appeal and offered the excuse that “he suffers from ‘fairly extreme writer’s block’ finding it difficult to deal with ‘any kind of paperwork.'” Huff v. MSPB, No. 02-3298, 2003 U.S. App. LEXIS 4341, at *2 (Fed. Cir. Mar. 10, 2003). Unfortunately, Mr. Huff’s writer’s block was not “deemed good cause” for the late filing.  Id at *5. Writer’s block has also caused plaintiffs to fail to respond to a motion to dismiss: “The plaintiffs also suggest that their emotional involvement in this case engenders ‘writer’s block,’ which hampers their ability to respond to the defendants’ submission.” Ficken v. Golden, 696 F. Supp. 2d 21, 35 n.15 (D.D.C. 2010) The Court had “difficulty crediting the plaintiffs’ claims of ‘writer’s block,’” though, in light of the “plaintiffs’ voluminous submissions, including rambling twenty-five page oppositions to the defendants’ motions to dismiss, as well as a 179-page complaint.” Id. Similarly, the fact that plaintiff ” loses his train of thought and has writer’s block” was an insufficient basis for an equitable tolling argument. Snoke v. Unknown, No. CV 11-5971-TJH (MAN), 2012 U.S. Dist. LEXIS 123294, at *23 (C.D. Cal. Aug. 28, 2012). Lawyers are not immune to writer’s block-induced late filings either apparently. See, e.g. United States v. Martinez-Vargas, 321 F.3d 245, 248 (1st Cir. 2003) (“In belatedly broaching this subject, the lawyer conceded that he had not objected within the stipulated time frame and ascribed his failure to ‘writer’s block.'”). So, courts do expect lawyers and pro se litigants to overcome the writer’s block in time to comply with deadlines.  However, unfortunately overcoming writer’s block is a non-billable exercise.  Kelly v. Helling, No. 3:13-cv-00551-RCJ-WGC, 2014 U.S. Dist. LEXIS 174801, at *6 (D. Nev. Dec. 16, 2014) (find that legal fees of “approximately 100 hours for preparing the motion for summary judgment, including 4.5 hours for ‘[s]tewing the writer’s block’” were unreasonable).

Notwithstanding the fact that courts are reluctant to give litigants a pass for writer’s block-induced slip ups, they have wished writer’s block on motion-heavy litigants: “One suspects that neither side would shed a tear should the other come down with a crippling case of writer’s cramp or an immobilizing onset of writer’s block, although the Court itself would be grateful for the respite in the deluge in pleadings such events would produce.” Pepsico, Inc. v. Cent. Inv. Corp., No. C-1-98-389, 2002 U.S. Dist. LEXIS 25765, at *14 n.2 (S.D. Ohio Feb. 1, 2002). And of course, litigants have also come down with medical malpractice-induced writer’s block: “Mariano argued that he suffered damages from the procedure, including a lengthy recovery period, lack of appetite, difficulty hearing, negative impacts on his employment opportunities and social life, and ‘writer’s block.’” Mariano v. Swedish Cardiac Surgery, No. 68924-0-I, 2013 Wash. App. LEXIS 2709, at *2 (Ct. App. Nov. 25, 2013).

What is the takeaway?  Writer’s block is not a valid excuse for an out of time filing, nor is it a valid time entry. Deal with it on your own time, and deal with it in a timely fashion.