Action Park a.k.a. “Accident Park”

Sometimes truth is stranger than fiction. You couldn’t make a place like Action Park up. Action Park was a New Jersey amusement park open from 1978 until 1996. Somehow I stumbled across its Wikipedia page. I half-thought the Wikipedia page was apocryphal, but, after consulting with several friends of mine from New Jersey, Action Park, was a real, once thriving, amusement park.

It earned the nickname of “Accident Park” from physicians at the local ER who treated untold numbers of park patrons who wound up injured.

What were the dangers of Accident Park? To my mind, the piece de resistance was the loop-the-loop waterslide partially pictured at left. This waterslide actually turned the riders upside down without them being belted or strapped into any sort of carriage. According to Wikipedia, when the park’s owners sent crash test dummies down the slide, some of the dummies wound up dismembered and decapitated. Eventually, the park’s owners decided to have park employees test out the ride and offered $100 to any park employee who would venture on the slide. According to the brave employee who stepped forward for the sake of “safety” at Action Park, “$100 did not buy enough booze to drown out that memory.”

Other problems at Action Park? Like many parks, Action Park had an alpine slide. But Action Park’s sleds were poorly maintained meaning, in practice, riders could only use the stick which controlled speed to choose between “extremely slow” and a speed one park employee descried as “death awaits.”

For skaters, Action Park boasted a poorly-constructed skate park where the edges of pavement often did not meet smoothly. As one park employee recalled, the “skate park was responsible for so many injuries we covered it up with dirt and pretended it never existed.

Popular ride “The Kayak Experience” simulated white water rafting with powerful fans submerged beneath the water to agitate the water. The hazards of this ride are obvious even without the benefit of hindsight.

Like many amusement parks, Action Park had go-carts. But its go-carts traveled in excess of 50 mph, leading to some pretty horrific injuries.

As the Wikipedia page notes, “Little action was taken by state regulators despite a history of repeat violations.”

It was trial lawyers who forced the park to shutter its doors and reopen many attractions under the newer, safer management of Mountain Creek.

For more on the unbelievable story of Accident Park, check out the Wikipedia page yourself.

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Stephen Colbert Examines SawStop

We’ve blogged a lot about SawStop technology, the revolutionary flesh-detection technology that renders power saw accidents obsolete (see here, here and here).

Now comedian Stephen Colbert tells the story of inventor David Gass’ David-and-Goliath struggle against power tool manufacturers. (Warning: language and other objectionable content).

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My Cousin Vinny’s Version Of The Criminal Justice System

This month marks the twentieth anniversary of the premiere of the film My Cousin Vinny and, to commemorate the occasion, our friends over at Abnormal Use have invited legal bloggers to post their thoughts on the film. Abnormal Use itself will feature a series of posts over the week, including interviews with Vinny’s producer and screenwriter. You should check them out.

To me, Vinny is not only a great courtroom movie; it’s a great comedy. I think the comedic elements that make it so great come from the fact that we have two fishes out of water here — Brooklynite Vinny and the befuddled Beechum County citizens who are forced to deal with him. Both sides are aware of their difference, yet neither condescends to the other; they are all humble, likeable people searching for common ground. At one particularly bungling moment, Vinny’s fiancee mocks him, “Gotta let everyone know you’re a tourist.” As Vinny replies, “What are you, a f—— world traveler?” Vinny’s full of braggadocio and confidence, but he doesn’t think he knows it all.

But the heart of comedy is an elusive subject and too often, in talking about it, the comedy slips through the critic’s fingers. And so I think, rather than analyzing what makes Vinny such a hilarious movie, I’ll stick to what I should know best: how Vinny rates as a courtroom movie, in terms of its courtroom realism.

No movie makes perfect marks on this score. The urge for screenwriters and producers to crank up the courtroom drama always trumps the impulse to want to get it right. But some get it a lot better than others. Several months ago, while laid up, I was watching the Ed Norton/Richard Gere courtroom drama Primal Fear and it just got so many things wrong — evidentiary issues, the judge’s rulings, etc. — that the movie held zero entertainment value for me because the lawyer part of my brain just couldn’t suspend disbelief.

Vinny however does pretty well getting legal points right, with some notable exceptions. One glaring no-no is that, for much of the movie, including part of the trial, Vinny is the lawyer for both of the defendants. That’s a pretty major conflict of interest.

There’s also a fair amount of bone-picking that can be done about Marisa Tomei’s testifying as an automobile expert. Her testifying is especially dubious in a movie set in 1992. In 1992, the then-prevailing touchstone for the admissibility of expert testimony was the Frye case, which dated from 1923, and had been followed by most states for several decades. A year after the movie was made, in 1993, the Supreme Court handed down its watershed opinion in the Daubert case, which adopted a standard of reliability that today gives the judges in most states more discretion to allow testimony, such as Tomei’s, if it is reliable.

But there are also a lot of scenes that would have even a nit-picking lawyer nodding his head in approval. For instance, Vinny is repeatedly admonished in his opening statement for resorting to blatant argument. And rightfully so — it’s an opening statement, not an opening argument. Better lawyers succeed in disguising their arguments as mere statements of fact, unlike Vinny, who is over-the-top argumentative in his opening.

Another scene that might warm a lawyer’s heart takes place outside the courtroom: the District Attorney agrees to share his case file with Vinny. Vinny is shocked the DA would surrender such a tactical advantage, but as Vinny’s fiancee points out to him, the prosecutor’s generosity is unremarkable: a 1963 Supreme Court opinion, Brady v. Maryland, held that Due Process requires the government to give defendants any exculpatory information they possess and, in some jurisdictions, prosecutors err on the side of caution by sharing far more than merely exculpatory information and follow an “open file” policy.

If I had one beef with “My Cousin Vinny’s” legal realism, it would probably come from scenes like this. I think there are many Americans who form their impressions of our justice system through TV and movies, moreso than from first-hand experience such as jury duty. And so, as a lawyer, I want my fellow citizens to get a view of our justice system as it is, rather than as Hollywood imagines it to be. And unfortunately, even where it’s accurate as a matter of legal doctrine, the version of our criminal justice system that “My Cousin Vinny” gives is too much like an eighth-grade civics lesson and too little like the system as it actually works.

Yes, Brady v. Maryland is on the books and, yes, prosecutors do have a duty to hand over exculpatory information. But, in many jurisdictions, this obligation is honored as much in the breach than the observance. For example, the New Orleans District Attorney’s office under Harry Connick, Sr. (the father of the singer) was notorious for violations of Brady, including some, such as John Thompson’s case, that led to innocent men being put on death row. But the Supreme Court has essentially left these wronged defendants without any sort of remedy.

Vinny, of course, pulls off victory in the end, when he gets the sheriff on the stand and the sheriff identifies two new suspects – two gentlemen who were recently arrested with a gun of the same caliber as the gun used in the murder, and who were driving a Pontiac Tempest, the make and model of car that could have left the tire tracks outside the convenience store.

But imagine Vinny hadn’t been the hero and pulled off this improbable courtroom victory. Imagine that the boys had been convicted and these other suspects identified only after the conviction. In such a quandary, rather than taking a direct appeal, the boys’ best bet would probably be a motion for a new trial. But the standard for getting new trials is fairly tough in practice and not a viable option for all defendants. (Federal Rule of Criminal Procedure 33, for example, requires motions for new trials to be filed within three years of the conviction — which is problematic if the new witnesses haven’t come forward by then).

In his just-published book, “The Collapse of American Criminal Justice,” the late Harvard Law professor William J. Stuntz diagnosed one of the problems with the American criminal justice system as its obsession with procedure and the elevation of proper procedure over issues of substance, such as guilt, innocence and fairness. American jurisprudence is primarily concerned with whether a trial followed proper procedures. If the right procedures were followed — if hearsay evidence was excluded and the defendant was allowed to have an attorney, and that attorney was able to cross-examine the witnesses — then it’s very hard to challenge or overturn a criminal conviction.

Ironically, it’s a lot easier for a guilty man to get a new trial when a judge allowed in some damaging hearsay evidence than it is for an innocent man to get a new trial on the basis of the fact that investigators just uncovered some exculpatory evidence, such as a witness’ recantation.

Procedure, procedure, procedure is a refrain often heard in My Cousin Vinny. When the judge first meets Vinny, he gives Vinny a copy of the Alabama Rules of Criminal Procedure. When Vinny attempts to enter a plea at the arraignment, the judge gets frustrated because Vinny is ignorant of the proper procedure.

Too often American justice elevates procedure over fairness. If the proper procedure was followed, it didn’t matter (until a recent law change) that a crack cocaine dealer received a sentence in federal court that was 100 times stiffer than the sentence received by another dealer who sold an identical quantity, by weight, of powdered cocaine. Because of American jurisprudence’s elevation of procedure over substance, such a sentencing disparity could not be challenged either on grounds of fairness or its disparate effect on African-American defendants.

It’s great that Brady v. Maryland recognizes a Due Process right in having access to exculpatory evidence, but where is Due Process when the offense itself is so poorly defined that people have little or no idea how their conduct violated the law? As white collar convict and conservative media mogul Conrad Black points out in his recent memoir about his imprisonment for “honest services fraud,” many criminal laws are so open-ended and vaguely worded that the government can gain a conviction for just about anything.

As Adam Gopnik pointed out in a recent New Yorker piece entitled, “Mass Incarceration and American Criminal Justice,” the true face of American criminal justice is something we need to come to grips with. We have such a huge proportion of our population in jails that we need to grapple with how to reconcile that fact with our being a free country.

My Cousin Vinny is, first and foremost, a great comedy and a movie that Americans will be watching, and guffawing at, for years to come. And while it ultimately gets a lot of its procedure right, the criminal justice system that it depicts too often bears little resemblance to reality.

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Are You Eating Soylent Pink?

The picture to the left depicts what’s been called “Soylent Pink,” an ammonia-treated food substance that, until recently, was processed and sold by many fast food restaurants as a meat product. Made up primarily of gristle and connective tissue, Soylent Pink, aka Pink Slime, had to be doused with chemicals to kill off the E. Coli and Salmonella that proliferates when you chop up all the parts of an animal and mix them together.

But while fast food joints, thanks to public pressure, are abandoning pink slime, The Huffington Post reports that pink slime is making its way in bulk into public school lunchrooms, where it will be sold as chicken nuggets and other meat products. The US Department of Agriculture recently purchased seven million pounds of pink slime for school lunches. Yuck!

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Rich And Poor Alike Receive Terrible Health Care

As featured in USA Today, Dr. Otis Browley, chief medical officer of the American Cancer Society, has recently penned a book entitled “How We Do Harm: A Doctor Breaks Ranks About Being Sick In America.”

One of the book’s themes is how just being wealth and having private health insurance is no guarantee of getting good health care. As Browley writes, “wealth in America is no protection from getting lousy care.… Wealth can increase your risk of getting lousy care. If you have more money, doctors sell you more of what they sell, and they just might kill you.”

Having good health insurance can lead to you receiving inferior care because it gives doctors an economic incentive to overtreat. This is all part of the problem with the fee-for-service model of health care that dominates American medicine, that we’ve blogged about many times before.

Continue reading

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Ideas For Health Care Savings

Continuing his Opinionator series on ways to reduce health care spending, Dr. Ezekiel Emmanuel points out that each year administrative costs account for $360 billion of our health care spending, roughly fourteen percent of our health care tab.

The administrative costs of our health care system dwarf the amount we spend on all aspects of medical malpractice — from treating the malpractice to paying victims and lawyers for the injuries.

These administrative costs include the amount that insurance companies spend processing (and denying) claims, the amount that doctors spend on office staff needed to interact with the insurance companies and the amounts spent on third-party billing services.

Dr. Emanuel suggests that switching over to digital medical records could save at least $32 billion a year.

Of course, the single biggest thing that we could do to reduce administrative expenses is switch over to a single-payer “Medicare for all” system. But it would be imprudent for someone in the administration actually to say that.

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These Things Don’t Write Themselves You Know

…Which is why, oftentimes, I will see a quite bloggable story but not get around to blogging it. By the time I do have a spare moment to sit down and pen (er, keyboard) a blog post about the story, the story’s expiration date will often be up, leaving me no choice but to pass the story over. (This blog is cutting-edge, people!).

But fortunately, a recent post by Walter Olson at Overlawyered.com gives me a chance to circle back around to one story that I intended to blog about but never did (until now):  the weeks-old saga of a $43,000 lawsuit brought against a wedding photographer by the (now) divorced groom, which seeks to force the photographer to recreate the wedding.

The story was originally published several weeks ago by The New York Times.

The story sparked outrage on many legal blogs because the groom’s claim for “specific performance” (i.e., having the photographer recreate the wedding so that satisfactory pictures could be taken) seemed so disingenuous. After all, why would the (now divorced) groom want pictures of what is presumably a bad memory? The lawsuit seemed like the ultimate frivolous/shakedown lawsuit.

Other blogs picked up on a different angle to the story:   the groom is the son of Shepard M. Remis, a partner in the Boston office of the national law firm Goodwin Procter, LLP.

A number of blog posts focused on the absurdity of seeking $43,000 in damages when the original contract called for the photographer to be paid only several thousand dollars for his taking the pictures.

Even the judge in the case, in ruling on a motion, said that the damages plaintiff sought are way too high.

What I didn’t see any bloggers saying is that, theoretically, the plaintiff could collect far more in damages than the contract price for the photography. There’s actually a quite famous contract case right on point. The case, Mieske v. Bartell Drug Co., is from Washington state. In Mieske, a woman paid a drug store to splice together a bunch of her home movies onto a single reel. The drug store, however, wound up losing the film.

Mieske filed suit. The question presented to the Washington Supreme Court was: What should the measure of Mieske’s damages be? Are damages limited to the amount that she paid the drug store to splice together the film? Or do proper damages include the emotional value that the film had for Mieske?

The Washington Supreme Court carved out a middle ground. The Court held that Mieske could recover more than the contract price in damages; in other words, Mieske could recover more than the several dollars she paid the drug store to splice together the film.

But a jury was not to value the film simply by the subjective value that Mieske put on it either. To the extent that Mieske was an overly sentimental person, the jury should not compensate her oversentimentality.

What the jury should do, the Supreme Court ruled, is compensate Mieske for the amount that a typical person would place on the emotional loss of the film.

The Mieske case, and others like it, mean that our divorced and disgruntled groom can (theoretically) recover far more than the contract price of the wedding photos.

And such a rule makes sense. Mieske’s loss was much greater than the several dollars spent on film development. And if your wedding photographer screwed up all the pictures of your wedding, the lost value to you would be much greater than the fee you paid the photographer.

In a post yesterday at Overlawyered.com, Walter Olson reported on another situation where emotional damages surpass contract cost: the loss of a pet. Texas’ Supreme Court recently overruled a 12o-year old case saying that pet owners can only recover the purchase price of their pet when someone kills it. The new rule in Texas allows for pet owners to recover emotional distress.

The legal rules found in the Mieske case and the new Texas case make a great deal of sense. But unfortunately, as the recent wedding photography lawsuit shows, they are susceptible to abuse.

And there’s not really much that a judge can do to stop lawsuits like the groom’s. A judge can’t say that the photographs obviously have no emotional value to the groom because the groom is now divorced; that’s something for a jury to decide, not a judge. And from what I’ve read, if this case ever goes to trial, it will result in a defense verdict.

Unfortunately in the meantime, the photographer will have to shell out to pay a lawyer to defend the case.

 

 

 

 

 

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Your Doctor’s Tie Could Be Making You Sick

….and his lab coat too.

We’ve known for a couple decades now that doctors’ clothing are big germ carriers.

Experts recommend that doctors wear shortsleeves to avoid spreading germs.

But a short-sleeved, tie-liess doctor does not convey to people a very professional image.

A doctor’s dress plays a big part in our conceptions of his competence. As one doctor noted a generation ago:

“The physician’s dress should convey to even his most anxious patient a sense of seriousness of purpose that helps to provide reassurance and confidence that his or her complaints will be dealt with competently. True, the white coat is only a symbol of this attitude, but it has also the additional practical virtues of being identifiable, easily laundered, and more easily changed than street clothes if accidentally soiled…. Casual or slovenly dress is likely to convey, rightly or wrongly, casual or inattentive professional handling of their problem….”

Now we’re beginning to see reformers like Julia Hallisy (who lost a daughter to a hospital-borne infection) campaigning for a change in doctors’ uniforms.

Doctors know better than to wear germ-carrying ties. But the blame for patients’ preconceptions of what a doctor should look like. We should trust our doctors based on training and credentials, not based on their fashion sense.

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Congratulations To Professor Bernabe

Last week, AbnormalUse marked its 500th post.

This week there’s another milestone in the torts law blogosphere worthy of congratulations: the third birthday of Prof. Alberto Bernabe’s Torts blog. Prof. Bernabe has blogged 1145 posts since Nov. 7, 2008.

1145 posts: all I can say is “Wow.” I hope to make it there someday too — if carpal tunnel does not derail me first.

 

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