Abbott Law Blog

John Flynn passed away on April 11, 2010.  John was a professor at the University of Utah law school for 42 years.  His students loved him.

Richard Burke, one of his law students, had this to say about Professor Flynn:

“I dreamed of being a lawyer since I was 8 years old.  But when I finally got to law school, I began to have second thoughts about my life’s dream.  I was shocked to discover that many students were there as a means to an end, with little or no regard for “justice” or the American legal system – the very reason I was there.  To them, the law was just a meal ticket, and that disgusted me.  As if that were not bad enough, my professors’ (apparent) collective indifference to this state of affairs (or so it seemed at the time) was doubly depressing.  Then someone persuaded me to sign up for Jurisprudence, with Professor Flynn.

It was a revelation, because he obviously cared about why he was there and why we were there.  He looked us in the eye, challenged us, and cared about the quality of our responses, and how we came to them; he was never satisfied with merely giving the correct answer.  Professor Flynn also shared his thoughts about the pending rate cases with us students, and asked us our opinions, brainstorming with us as if we were equals.  It was astounding: Here was a man who could have made boatloads of money as a corporate lawyer, but he chose to devote his many talents to the thankless task of educating and inspiring fresh crops of new lawyers.   He cared about justice, and showed his devotion not only by championing the public good in rate cases, but also by his insistence that his students were prepared to think and reason as lawyers in our justice system.  He inspired me, helped me to remember why I chose this path, and through his example of quiet confidence, let me know it was okay to think differently than my classmates.  I took every class he offered.

John Flynn had a superb legal mind, but I will remember him mostly for his humanity and grace.”

Even those who never studied under Professor Flynn have reason to be grateful.  In the early 1990’s Professor Flynn took on US West and the Utah Public Service Commission.  As the telephone utility for Utah, US West had a monopoly and could charge exorbitant rates to Utah consumers.  The legislature formed the Public Service Commission to “keep an eye” on US West.  The Public Service Commission had the legal authority to regulate the rates that US West could charge.

Professor Flynn, as a private attorney, took on US West and the Public Service Commission.  He contended that they colluded to charge too much money.  The case was hard fought, going the Utah Supreme Court twice.  Ultimately, the courts sided with Professor Flynn.  The Utah Supreme said, “the history of USWC’s unprecedented overearnings for a number of years indicates an extraordinary abdication by the Commission of its statutory duties . . . . Notwithstanding that history, the Commission was apparently content to continue allowing exorbitant earnings . . . . The record in this case and the history of prior proceedings give rise to grave concerns about the integrity of the Commission’s regulation of USWC’s rates and practices and why the regulatory process has been abused.”

In the end, Professor Flynn succeded in forcing USWest to refund almost $4,000,000 to the people of the State of Utah.

One of the more controversial aspects of the decision was the award of attorney fees.  Professor Flynn argued that the ATtorney General should have taken on this case.  Since the Attorney General instead chose to fight the case, Professor Flynn asked that USWest pay his attorneys fees.  The court agreed, reasoning that Professor Flynn had brought almost $4,000,000 in benefits to the State of Utah and an award of attorneys fees would encourage these types of lawsuits in the future.  The court limited attorney fees in these cases to a reasonable amount and only in cases where a significant societal interest was vindicated.  After all, who wouldn’t want someone to take on a utility that overcharged consumers almost $4,00,000 with the implict consent of a corrupt Public Service Commission.

To answer that question, jump forward to 2009.  Stephen H. Urquhart is a member of the Utah legislature.  He also represents large corporations. His clients oppose the award of attorneys fees in these cases because it gives incentives to people to bring lawsuits to force large corporations to obey the law.  He sponsored a senate bill that would do away with attorneys fees in these cases.  It passed and is now Utah law.

We all have Professor Flynn to thank for forcing USWest not to overcharge us.  We all have Stephen Urquhart and the Utah legislature to thank for discouraging others from following in Professor Flynn’s footsteps.

The Daily Herald reported that Michael Scott Hall, age 19 from American Fork, has been charged with woyeurism. He is accused of hiding a camera in a women’s restroom at his place of work. He used the camera to take pictures of women using the restroom.

Utah criminal laws make such actions a crime. If convicted, Michael Scott Hall could face jail time and fines. Utah law also gives victims of such crimes the right to be compensated with money. Utah has long recognized the civil claim of invasion of privacy. When an individual “intrudes upon the seclusion” of another, that individual may be required by a court to pay money to the victims.

Allstate slapped one more of its insured in the face.  Luckily, the Utah Court of Appeals has put an end to Allstate’s tactics.  Ray and Ellen Cassidy purchased Allstate Insurance in 1966 and had been good customers ever since.  In 2006, a 16 year old driver made a U-Turn in from of Ray and Ellen and caused a car crash.  Ray and Ellen had over $200,000 in medical bills.  Unfortunately, the 16 year old driver had only $50,000 in automobile insurance.

Ray and Ellen had been good customers of Allstate for almost 40 years and thought they could turn to Allstate for help.  Unfortunatley, they were not in good hands.  Allstate told them that they had only $10,000 in underinsured insurance coverage.  Allstate did this despite a Utah law requiring that the underinsured coverage on their particular policy be at least $300,000.

Because Allstate would not budge, Ray and Ellen hired an attorney and sued.  Unfortunately, their attorney made a mistake in the complaint when referring to the Utah Statute.  Instead of referring to the code section as 2(h) their attorney referred to the code section as 2(b).  Their attorney had typed a b instead of an h.

Allstate jumped on that error and was successful in getting the trial judge to throw out the entire case due to that error.  The Court of Appeals said no way and reinstated the case.

Are you in good hands with Allstate?  As long as you pay your premiums and make no claims, Allstate will treat you great.  The second you make a claim, you’re no longer in good hands.  Instead, Allstate puts on the boxing gloves and goes after you with shots below the belt.

The Supreme Court issued an important medical malpractice opinion today. In the case, a woman sued St. Mark’s hospital because she got kidney damage when her blood pressure dropped but the nurse either didn’t notice or didn’t do anything.  One of her claims was that the hospital was negligent because it was understaffed.

St. Mark’s had given an affidavit in which they claimed that they had reviewed all the patient files for patients on the unit that night and since none of those patients needed much care, they were adequately staffed.  The woman asked to see those records to verify the affidavit.  The hospital refused to let her see the records.

The Supreme Court told St. Marks that they needed to take out the names of the patients and then give the records to the woman to review.  This case is important because it will let this plaintiff, and other plaintiffs in the future, verify claims made by hospitals when the hospital says they reviewed other records and came to a conclusion which supports their position.  This decision allows plaintiffs to verify what the hospital claims.

The courts long ago realized that it was difficult, if not impossible, to hold foreign manufacturers liable for making defective products.  The difficulty arises from the fact that many foreign manufacturers are from countries with archaic and corrupt legal systems.  To fix the problem, U.S. Courts told retailers that if they imported foreign products they would be required to stand behind those products.

To adapt to that law, American retailers purchased insurance.  The insurance would pay any claims against the retailer due to injuries resulting from defective foreign products.  The insurance companies would often investigage the foreign manufacture and take measures to ensure that products were made so as not to injure consumers.

The Utah legislature turned that law on its head.  The Utah legislature passed a statute that gave retailers immunity in most product liability cases.  The legislature made a big mistake.  Over the past few years, chineses manufacturers have made baby formula with melamine in it, drywall that emits sulfur, toys with lead paint and most recently children’s jewelry with cadmium (a poisonous substance).

Now, more than ever, American consumers need protection from foreign products that are manufactured in a way that makes them dangerous.  The Utah legislature should repeal the law and again require retailers to deal with reputable manufacturers.

I was listening to the Enid Greene program on KSL this Friday and Enid’s commentary reminded me of just how stupid the tort reform argument is.  Enid Greene argued that doctors do not order unnecessary tests when they will earn extra money by ordering the test but that doctors frequently order unnecessary tests to avoid the possibility of getting sued.

For those of you that don’t know, Enid Greene is a co-alum of mine at the BYU law school.  She went on to become a member of congress for a short time, then was the chair of the Utah Republican party and now hosts a radio show on KSL on Saturdays.

Enid Greene is in favor of tort reform.  She consistently rants about how tort laws increase the cost of health care.  She ignores studies that show that medical malpractice lawsuits add less than 1 penny for every dollar spent on health care.  She also claims that the mere threat of medical malpractice causes doctors to perform defensive medicine, thereby increasing the cost of health care.

So, this Saturday, she starts ranting against the Health Care Reform Legislation pending before congress.  One of the provisions would prevent doctors from owning hospitals and certain other medical facilities.  The reason for this is that studies have consistently shown that the number one factor in determining the frequency at which doctors order x-rays is whether the doctor owns the x-ray machine.  Now, it is fair to argue that the health care reform bill should not restrict a doctor’s right to own property.  That argument could be made on philosophical grounds, ie., in our free society, we should not prohibit a profession from owning certain types of property.

That is not the argument raised by Enid Greene.  Her argument is that she does not believe that doctors order more MRI’s when they have an ownership interest in the MRI machine.  Doctor’s would not order unnecessary tests to improve their financial condition.  Therefore, the legislation is not necessary.

So let me summarize.  Enid Greene does not believe a doctor will order more tests when the doctor gets a direct financial benefit from the billing for the use of the equipment but she strongly believes that doctors will order unnecessary tests because the doctor is afraid of getting sued.  She argues that the government should not regulate a doctor’s ownership of certain medical equipment because it is unnecessary but a the government should take away our right to trial by jury because doctors are driving up the cost of health care to protect their own back sides.

Her hypocritical and severely flawed logic show just how stupid the tort reform argument is.

Our right to trial by jury is sacrosanct.  We should not give it up.

It looks like the medical industry is going to push tort reform in the Utah State Legislature this year.  That is no surprise since they’ve pushed it almost every year during the past 20 years.  The recurring argument they make is that doctors are being put out of business by lawsuits.  “We need tort reform to keep doctors in business.”

Here is a list of the top paying jobs in the United States.  It is taken from Forbes magazine in May 2009.  This list completely debunks the doctors’ arguments.

No. 1 Surgeons
Average Annual Pay: $206,770
One-Year Change: +8.0%
Employees in Field: 47,070
Best-Paying State: Wisconsin
The Job: Treat diseases, injuries and deformities by invasive methods,
such as manual manipulation or by using instruments and appliances

No. 2 Anesthesiologists
Average Annual Pay: $197,570
One-Year Change: +2.5%
Employees in Field: 34,230
Best-Paying State: Kentucky
The Job: Administer anesthetics during surgery or other medical
procedures.

No. 3 Orthodontists
Average Annual Pay: $194,930
One-Year Change: +5.2%
Employees in Field: 5,500
Best-Paying State: New Hampshire
The Job: Examine, diagnose and treat dental malocclusions and oral
cavity anomalies. Design and fabricate appliances to realign teeth and
jaws.

No. 4 Obstetrician and Gynecologists
Average Annual Pay: $192,780
One-Year Change: +5.0%
Employees in Field: 19,750
Best-Paying State: Wisconsin
The Job: Diagnose, treat and help prevent diseases of women, especially
those affecting the reproductive system and the process of childbirth.

No. 5 Oral and Maxillofacial Surgeons
Average Annual Pay: $190,420
One-Year Change: +6.7%
Employees in Field: 4,760
Best-Paying State: Michigan
The Job: Perform surgery on mouths and jaws.

No. 6 Internists, General
Average Annual Pay: $176,740
One-Year Change: +5.7%
Employees in Field: 46,980
Best-Paying State: Wisconsin
The Job: Diagnose and provide nonsurgical treatment of diseases and
injuries of internal organs and systems.

No. 7 Prosthodontists
Average Annual Pay: $169,810
One-Year Change: +0.3
Employees in Field: 370
Best-Paying State: New Jersey
The Job: Construct oral prostheses to replace missing teeth and other
oral structures.

No. 8 Physicians and Surgeons, All Other
Average Annual Pay: $165,000
One-Year Change: +6.3%
Employees in Field: 26,850
Best-Paying State: Minnesota
The Job: All physicians and surgeons outside of the main specialties.

No. 9 Family and General Practitioners
Average Annual Pay: $161,490
One-Year Change: +5.1%
Employees in Field: 106,210
Best-Paying State: Wisconsin
The Job: Diagnose, treat and help prevent diseases and injuries that
commonly occur in the general population.

No. 10 Chief Executives
Average Annual Pay: $160,440
One-Year Change: +6.0%
Employees in Field: 301,930
Best-Paying State: New Jersey
The Job: Determine and formulate policies and provide the overall
direction of companies or private- and public-sector organizations
within the guidelines set up by a board of directors.

No. 11 Dentists, General
Average Annual Pay: $154,270
One-Year Change: +4.9%
Employees in Field: 85,910
Best-Paying State: Alaska
The Job: Diagnose and treat diseases, injuries and malformations of
teeth and gums and related oral structures.

No. 12 Psychiatrists
Average Annual Pay: $154,050
One-Year Change: +4.4%
Employees in Field: 22,140
Best-Paying State: Nevada
The Job: Diagnose, treat and help prevent disorders of the mind.

No. 13 Pediatricians, General
Average Annual Pay: $153,370
One-Year Change: +5.6%
Employees in Field: 29,170
Best-Paying State: Kentucky
The Job: Diagnose, treat and help prevent children’s diseases and
injuries.

No. 14 Dentists, All Other Specialists
Average Annual Pay: $142,070
One-Year Change: +18.0%
Employees in Field: 4,770
Best-Paying State: Oregon
The Job: Specialist dentists excluding oral and maxillofacial surgeons,
orthodontists and prosthodontists.

No. 15 Podiatrists
Average Annual Pay: $125,760
One-Year Change: +5.0%
Employees in Field: 9,670
Best-Paying State: Idaho
The Job: Diagnose and treat diseases and deformities of the human foot.

The doctors’ argument reminds me of when Jack Paar walked off the Tonight Show on February 11, 1960.  On that show he said “I’ve made a decision about what I’m going to do. I’m leaving The Tonight Show. There must be a better way to make a living than this, a way of entertaining people without being constantly involved in some form of controversy. I love NBC [...] But they let me down.”  He then walked off the show.

Less than a month later, March 7, 1960, he returned saying, “As I was saying before I was interrupted…I believe the last thing I said was ‘There must be a better way to make a living than this.’ Well, I’ve looked…and there isn’t.’”

14 of the top 15 paying jobs in the United States are in the medical industry.  Doctors aren’t leaving for better paying jobs.  There are none.

Just had a hearing in which we represented a defendant in a mechanic’s lien case.  Our client bought the entire subdivision after after the mechanic’s lien was filed.  The plaintiff was an engineering firm that had done over $100,000 in work to get the subdivision ready for filing.   Because the general contractor and property owner did not pay the bill, the engineering firm hired a big Salt Lake City law firm, filed a mechanics lien and then filed suit to foreclose the lien.  If successful, our client would be forced to pay the engineering bill.

The statute of limitiations on these cases is only 180 days.  Because the general contractor had declared bankruptcy, the big Salt Lake City law firm thought that they were prohibited from filing the foreclosure action until after the bankruptcy was dismissed.  Accordingly, they waited more than the 180 days to file the lawsuit.

We filed a motion for summary judgment based upon the fact that the statute of limitations had run.  Because our client was a subsequent owner, our client was not liable to the engineering firm for breach of contract or unjust enrichment.  The only shot the engineering firm had against our client was to foreclose the lien.

The big Salt Lake City firm argued that the general contract was an indispensable party and therefore the statute of limitations was tolled during the bankruptcy.  We prevailed.  The judge agreed with us that the Statute of Limitations was not tolled, the lawsuit was filed late and therefore, she dismissed the case.

It’s nice to win for a client.  Beating a big Salt Lake City law firm makes it even sweeter.

Ford Motor company has announced that it is expanding its recall of certain Ford vehicles that have a faulty cruise control switch that can cause a fire.  This is the largest vehicle recall ever.  The recent expansion adds about 4.5 million vehicles to the recall.  Over 14 million vehicles have now been recalled.

The switches were sold by Texas Instruments to Ford for about $21.  They were installed in about 16 million vehicles.  Ford finally stopped using them in 2003.  The faulty switch has caused at least 550 vehicle fires.  In some cases, significant property damage has also occurred.  Vehicles parked in garages pose a significant risk to fire damage to an entire structure.

The vehicles covered by the recall include:

The recall appears to be under inclusive.  The switch, or a similar switch, was installed in 16 million vehicles.  Ford has recalled only 14 million.  This means that millions of vehicles may remain on the road and pose a significant fire risk.

Abbott & Associates is now accepting cases in which significant property damage or personal injury has been caused by a vehicle fire.  Call or click for a free consultation.

Utah raised the jurisdictional limit in small claims court to $10,000 this years.  That means that small claims courts can issue judgments for amounts up to $10,000 inclusive of attorneys fees.  Interest and costs of suit can exceed the $10,000 limit.

This makes small claims courts an attractive alternative to District Court for small cases.  Small claims cases are typically resolved within a few months whereas District Court cases can last a year or more.

Small claims courts still are not allowed to issue injunctions.  In other words, they can’t tell a person to do anythign other than pay money.  That means they aren’t good alternatives for foreclosure, quiet title, wrongful competition and other similar cases where a litigant wants a court order regarding something other than the payment of money.