Among the factors lawyers use to evaluate cases, the plaintiff’s personal injury bar is especially interested in two: liability and damages. Who is liable? What were the injuries?
For some time now, I’ve thought there ought to be a third: embarrassment. And I’m not talking about the client’s embarrassment but the lawyer signing the Complaint.
If passing-the-laugh test were a third factor, perhaps some lawyers would show a bit more restraint in their case selection. Then again, maybe, not.
So long as there are injuries and a basis to blame someone else, some believe those are reasons enough to sue, whether your colleagues or the public laughs at you or not.
Don’t eat the leaf.
The latest laugh-test involves a lawsuit filed in Florida by Doctor Arturo Carbajal. The physician filed suit last month after being hospitalized with part of an artichoke leaf stuck in his small bowel. So much for ordering the grilled artichoke special at a Houston’s Restaurant. He now blames that establishment for negligence for not instructing him on the fine art of eating an artichoke. See Man Sues Over Proper Way to Eat Artichoke.
As an educational service to the uninitiated, note to readers, you’re not supposed to eat the leaf. A helpful video available on the accompanying link further explains. See Doc sues restaurant for not teaching proper way to eat artichoke.
Like Arizona and California, Florida is a pure comparative negligence state. This means that even if the plaintiff is at fault along with the defendant, she can still recover for her injuries. A percentage of fault or liability is allocated between plaintiff and defendant. So even if Dr. Carbajal should have known better than to swallow the artichoke leaf or should have been bright enough to ask or smart enough not to order food he doesn’t know how to eat, should he convince a jury, he’ll still recover even if he’s 90% to blame for his dietary-indiscreet injuries.
This is different from other jurisdictions like, for example, Nevada. Under Nevada’s N.R.S. 41.141, the modified comparative negligence statute, the plaintiff may only recover so long as her negligence is not greater than the negligence of the defendant.
Restraints of Rule 11.
The average layperson will probably scoff, especially given the negligence suits brought by lawyers over the years, such as that notorious couple who ended up pleading guilty to charges in Wendy’s fictitious finger case. But there’s a court rule that’s suppose to restrain lawyers from filing frivolous complaints. It’s civil rule of procedure 11.
Under its various permutations, including FRCP Rule 11, lawyers are required to certify that to the best of their “knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,” an action is not being brought “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” But whether or not Rule 11 is enforced enough remains open to debate.
“The first time I’ve ever seen one framed before.”
Take the case of Bob Dougherty. I don’t know the final disposition of the matter but I do recall his being the ‘butt’ of much humor in 2005 when he sued Home Depot for allegedly being glued to a toilet seat. See A big ‘but’ arises in toilet-seat story.
While out shopping in Louisville, Colorado, Dougherty was suddenly stricken by diarrhea. Running to a nearby Home Depot, he hastily found a stall and promptly plopped himself on the seat, which he alleges an unknown prankster had smeared with a super-glue type adhesive.
Claiming he was unable to extricate himself, he called for help but rather than being taken seriously and receiving prompt assistance, he was instead supposedly made the butt of disbelieving laughter from Home Depot employees. To read a copy of the lawsuit and related photos, see Sticky Seat Case: The Smoking Bum? | The Smoking Gun.
Dougherty’s tail, though, has antecedents in that old “This is the first time I’ve ever seen one framed before” joke. I wonder if his lawyer had ever heard it?
It’s the supposed ‘true story‘ about a guy and his girlfriend at a party and how she gets herself stuck on a freshly-enameled toilet seat when she goes to relieve herself. Finding herself glued to the seat and unable to get up, her boyfriend finally rescues her by using a screw driver to remove the seat. Unfortunately, the seat is still glued to her backside.
So a doctor is finally called whereupon, the embarrassed girl asks, “Have you ever seen anything like this before, doctor?” And the doctor responds, “Why yes, but this is the first time I’ve ever seen one framed before.”