Tuesday, August 23, 2011

Class Action Suit Harms The Real Victims

With much fanfare today, the law firm of Cohen & Malad announced it had filed a class action lawsuit in the Marion County Superior Court on behalf of "all victims of the Indiana State Fair stage collapse." According to a press release put out by the law firm, the lawsuit "alleges that the State of Indiana and the companies involved with installing and maintaining the structure were negligent in their handling of the event and in failing to ensure that the structure itself was safe." It continues, "The class action lawsuit also alleges that there were defects in the design and manufacture of the Supertruss load bearing roof structure." In order to maximize the recovery for the "victims," the law firm has graciously agreed to donate its time "by waiving our fees for claims against the State." The only named plaintiff in the firm's initial lawsuit is Angela Fischer, a concertgoer who was neither physically injured nor lost a family member in the state fair tragedy. Fischer claims she suffered "severe emotional trauma" from witnessing the event and its aftermath.

As an attorney, I believe that all of the "victims" of this tragedy deserve to be compensated for their losses. Having said that, I find what Cohen & Malad is doing with this class action lawsuit both a disservice to the real victims of the tragedy and the legal profession at large. To date, seven people have died as a result of the tragedy and more than 40 others have suffered "physical injuries." The total amount available for all of the injured class of persons from the event under Indiana's tort claim statute is $5 million. Further, the most any individual can recover from the state is capped by statute at $700,000. Cohen & Malad says it is waiving its fees against the state so "more of these limited funds can go towards covering the real economic losses of those affected by this tragedy." The applicable word here is "affected" as opposed to injured. Yeah, I was deeply affected watching the twin towers live on TV come crashing down after two jet airliners were crashed into them by terrorists, but I didn't suffer the real injuries of those who lost loved ones or suffered life-threatening injuries from the terrorist attack. By seeking recovery for the thousands of people who merely witnessed the tragic event, this lawsuit actually harms the real victims--the dead, the injured and their surviving loved ones.

It isn't clear to me how Cohen & Malad can prematurely file a lawsuit against the state before submitting its claim through the tort claim notice process first as the other attorneys representing real victims have done. Attorney Kenneth Allen filed a lawsuit in LaPorte County simply to get a restraining order against the state to prevent it from moving or altering the stage rigging wreckage in order to preserve evidence for potential claimants. A LaPorty County judge granted his motion today.

Reading the press release closely, you realize the firm is not waiving its fees for claims against other parties, such as the stage rigging operator, Mid-America Sound, or the concert promoter, Live Nation. Those entities are no doubt insured and have by far the deepest pockets to recover given the constraints of the tort claim caps on claims against the state. Prior to today's announcement, the lawsuits announced were made by attorneys representing the real victims, including Ladendorf & Ladendorf, Hastings & Hastings, Kenneth Allen and Carl Brizzi. It strikes me that Cohen & Malad is seeking to one-up the attorneys representing persons who suffered real harm by forcing the consolidation of the other cases into their class action lawsuit. This is evidenced by the firm's lawyers asking these other attorneys to waive their fees as well. "Cohen & Malad intends to reach out to and encourage other plaintiff’s attorneys representing those injured in this tragedy to also waive their fee for claims against the State," the press release states. This it seems to me is the kind of conduct that gives lawyers such a bad name. These other lawyers were contacted by the real victims to represent them in their claims, unlike Cohen & Malad. The firm's real motives here are less than transparent: sweep the case out from under these other attorneys in one fell swoop so their firm can alone drive this litigation.

Cohen & Malad's press release also used the filing of its lawsuit as an excuse to criticize Gov. Mitch Daniels for not calling for an increase in the tort claim liability caps in state law, which were last updated in 2003 prior to his election as governor. "Mr. Levin indicated that it is outrageous for Governor Daniels to come out and say that this was just a “fluke event,” and then to more recently say that those injured in this event should receive full compensation without taking a single step to raise the $5 million dollar cap on all claims," the press release states. Perhaps I'm too jaded in my views as a practicing attorney, but I'm not moved at all by Cohen & Malad's claimed generosity. It looks to me like this class action suit will seek recovery for people who really didn't suffer injuries, thereby diluting the claims of those who suffered real harm. Moreover, class action lawyers wind up taking a big piece of the pie for their costs and fees, leaving the multiple claimants with insignicant recoveries. Your thoughts?

UPDATE: It's been awhile since I looked at the standard in Indiana for proving negligent infliction of emotional harm in bystander cases so I looked it up. It looks like a Supreme Court case decided in 2000, Groves v. Taylor (729 N.E.2d 569), is the controlling precedent. The Court set out three considerations for separating legitimate claims from spurious claims:

First, "[a] fatal injury or a physical injury that a reasonable person would view as serious can be expected to cause severe distress to a bystander. Less serious physical harm to a victim would not ordinarily result in severe emotional distress to a reasonable bystander of average sensitivity." Id.
Second, emotional distress may accompany the death or severe injury of persons such as friends, acquaintances, or passersby. But the emotional trauma that occurs when one witnesses the death or severe injury of a loved one with a relationship to the plaintiff analogous to "a spouse, parent, child, grandparent, grandchild, or sibling is unique in human experience and such harm to a plaintiff's emotional tranquility is so serious and compelling as to warrant compensation." Id. (footnote omitted). Limiting recovery to those plaintiffs who have the specified relationships with the victim acknowledges the special quality of such relationships yet places a reasonable limit on the liability of the tortfeasor.
Third, "[w]itnessing either an incident causing death or serious injury or the gruesome aftermath of such an event minutes after it occurs is an extraordinary experience, distinct from the experience of learning of a" loved one's death or severe injury by indirect means. [citations omitted]
I'm not sure how a plaintiff like Fisher qualifies under this rendition of the direct impact test. The facts laid out in the press release do not suggest she witnessed the death or severe injury of an immediate relative as a bystander, even if she did experience the death or severe injury of other persons directly.


Concerned Taxpayer said...

I have been unable to sleep since seeing this on TV, and then in person on Monday.
How can I become a part of this class action suit?

Jeff Cox said...

I'd be surprised if they get class certification. They cannot meet the numerosity or commonality standards of a class action.

Morning Constitutional said...

"...the emotional trauma that occurs when one witnesses the death or severe injury of a loved one with a relationship to the plaintiff analogous to "a spouse, parent, child, grandparent, grandchild, or sibling is unique in human experience and such harm to a plaintiff's emotional tranquility is so serious and compelling as to warrant compensation."

On its face this language would appear to encompass same-sex relationships that currently aren't recognized as "marriage" or something "substantially similar" (whatever that means in the proposed "Marriage Protection Amendment", HJR-6). Can't wait to see the usual suspects inisisting that allowing a survivor of such a relationship to recover for emotional distress is against public policy as well as several Biblical injunctions. After all, only they get to judge what is and what isn't a "unique human experience".