LegalMatch: Personal Injury

If You Wouldn't Say it in Real Life, Don't Say it Online

Once again, a person who said some things on the Internet which he almost certainly wouldn’t have said online is going to have to pay the piper. Of course, this time, he made the mistake of saying a lot of cruel and untrue things about a lawyer he apparently didn’t like very much.

A lawyer in Los Angeles has been on the receiving end of some hateful comments on Craigslist. The alleged defamer is a screenwriter who the lawyer claims to have never met. The lawyer also says he has never done business with the screenwriter, and has no idea what his quarrel with him might be.

Allegedly, the screenwriter has said some pretty hurtful things about the lawyer which, if believed, could seriously harm his reputation. And in the legal profession, a person’s reputation is extremely important, so this could very easily harm his livelihood, as well, especially when the statements go directly to the subject’s professional competence or integrity.

And in this case, the Craigslist poster wrote that the lawyer violated attorney ethics rules, broke the law, is bigoted, and is mentally ill. As far as anyone can tell, none of these statements are true. However, if someone believed any of these statements, they would be very reluctant to hire the subject of them for legal services.

This seems like a pretty clear-cut case of libel per se. Libel per se is a subcategory of defamatory statements which hurt a person’s reputation regardless of context. In general, libel per se does not require the plaintiff to prove actual economic damages in order to prevail in a lawsuit.

For example, suppose Jeff said to some friends “Bob visits and patronizes a house of prostitution every day at noon.” In just about any community in the Western world, that statement, without any additional information, would hurt Bob’s reputation, and constitute libel per se. To successfully sue Jeff, Bob wouldn’t have to show that he actually suffered any real damages.

Similarly, calling a lawyer an unethical, incompetent and bigoted criminal would hurt his personal and professional reputation, and the lawyer in this case won’t need to show that he actually suffered any tangible loss as a result of these statements. Of course, if he can prove that such losses resulted, he’ll be able to recover them.

The best (or worst, depending on who you are) part of this story is that this screenwriter probably thought he would be completely anonymous when he made those posts on Craigslist. We’ve seen time and time again that you cannot presume that you are anonymous on the Internet.

While there is some evidence that the wild frontier culture that dominated the Internet for the last 10 years is on its way out, many people still behave as if the Internet is some anarchic playground where anything goes. Whether people use the internet to engage in copyright infringement, to buy illegal drugs, or to defame people they don’t like, many people still think that, because it’s easy to do something on the internet, that somehow makes it alright.

News flash: It’s not.

In general, the exact same laws that apply to your conduct in the physical world apply online. The fact that it’s sometimes more difficult to enforce the law in cyberspace does not in any way affect the law’s legitimacy (to argue otherwise puts you in the same position as the guy who tells the cop “but, officer, EVERYONE was speeding!”).

As many people have learned, or are about to learn, all it takes to identify a person on the Internet (unless they’re taking some pretty extraordinary means to protect their privacy) is an IP address and a subpoena. If some civil or criminal wrong has been committed online, the victim can usually figure out the IP address of the computer that was used to commit that act (such as, say, posting defamatory statements on a website). An IP address is simply a number that an ISP assigns to a computer using its network. However, ISPs are usually pretty cooperative when they get a subpoena demanding that they turn over the identity of the subscriber using the offending IP address. You’re not nearly as anonymous on the Internet as you may think.

It’s not clear what this guy’s motives for defaming this lawyer were, especially if it’s true that they’ve never done business with each other, or even met. In his mind, at least, it seems that he believes that he’s working for the public good, since he filed an Anti-SLAPP motion when the lawyer filed this lawsuit. A California appeals court rejected this motion, on the grounds that the defendant couldn’t show that he was engaged in political speech, or discussing matters of public importance, a threshold inquiry in deciding an anti-SLAPP motion.

While this appears to be a pretty “garden-variety” claim for defamation, it illustrates an interesting trend: it used to be that newspapers, radio stations, and tabloids were the most common targets for defamation. However, since the advent of the Internet, individuals who decide to vent “anonymously” against someone they don’t like are increasingly finding themselves the target of these lawsuits.

The Internet has given these lawsuits a bit more urgency, however, since it’s possible (though rare, in the scheme of things) for a single person with a bit of web space to reach an audience rivaling that of any print newspaper. Furthermore, after a very short period of time, most newspapers are thrown away, with a few copies filed away in various archives, largely to collect dust. Before the Internet, it was much easier to forget something that was printed in the newspaper.

On the Internet, however, a piece of media, whether it’s an image, a video, or a sound recording, can take on a life of its own, constantly bouncing around the world, with literally millions of copies of it being made every day, each one of which can theoretically be stored forever in a place just as accessible as the day it was released.

If you’re on the receiving end of such a statement, it makes sense that you’ll want to attempt to nip it in the bud as soon as possible. While a defamation lawsuit involving statements made on the internet will do nothing to stop the statement from being re-circulated, it will allow you to recover. And if enough legitimate victims of defamation go to the effort to file these lawsuits, it might at least serve as a deterrent. 

By: Rusty Shackleford

If You Plan on Infecting Your Patient with Herpes, You Have a Duty to Warn

This is going to be awkward.

So, a court in New York has ruled that a doctor has a professional duty to warn, no matter how embarrassing the circumstances. More specifically, a psychiatrist who had a sexual affair with one of his patients has a duty to warn the patient’s spouse that the patient is now probably infected with genital herpes, since the psychiatrist was infected, and knew of this fact.

The court did not rule (also reported here) on the merits of the case, but it did rule that the husband in question has the right to bring a negligence action against this doctor. So, the plaintiff will still have to prove at trial that the doctor was infected with herpes, passed it on to the patient, who in turn passed it to her husband.
I can only imagine what that warning would have sounded like:

“Dear Sir: This is Dr. Creep, your wife’s psychiatrist. I’m just writing to let you know that she is progressing very well in her therapy. I believe that we have established a very intimate connection. We’ve established such an intimate connection, in fact, that I fully intend to have intimate relations with her at our next session. I think it will prove to be a significant breakthrough. I feel, however, that it is my duty as a professional to warn you that I have genital herpes, so there is a very good chance that your wife will pass the consequences of my ill-planned trip to Thailand on to you, unless you take the appropriate precautions.

“Very Truly Yours, Dr. Creep.

“P.S., I’d appreciate if you just kept this discussion between us. Experience has shown that the state authority responsible for licensing psychotherapists doesn’t have much of a sense of humor about these things. Thanks a bunch!”

Or something like that.

Seriously, though, one has to wonder what effect the court thought that this ruling would have. Obviously, the doctor’s behavior was abhorrent, and if the facts are proven, the husband (and perhaps the wife, as well) should be able to collect damages from him, and the doctor should lose his license.

But, assuming that this ruling is upheld on appeal and becomes binding precedent for similar cases in the future, does anyone think that doctors are actually going to warn their patients’ spouses before sleeping with their patients? Probably not. Of course, this could have the effect of at least deterring such behavior by doctors and other similarly-situation professionals in the future, if they face the prospect of having to pay damages, as well as the public ridicule that (properly) comes with such behavior.

This case also raises some interesting questions about how far the “duty to warn” extends. In this case, it’s clear that the doctor could foresee the possibility of his patient passing his STD onto her husband. But what if the patient had confided in the psychiatrist that she was certain that her husband was also having an affair? Would the doctor have a duty to track down and warn the husband’s mistress? What about any of the mistress’ other known sexual partners? Obviously, the problems associated with such line-drawing quickly become apparent.

Of course, basic common-law principles can provide some guidance. The doctor had a basic duty to warn anyone who could foreseeably be harmed by his conduct. This would obviously include the patient and, assuming the doctor knew about him, her husband. While he certainly has the potential to harm others, at some point the connections just become too attenuated to expect him to foresee. Because the border between reasonably foreseeable and not reasonably foreseeable is quite blurry, where we decide to draw the line will necessarily be a little bit arbitrary.

Of course, we have to draw arbitrary lines all the time in the law. Most people agree that age-of-consent laws are necessary. However, it’s hard to find people who can agree on exactly what the age of consent should be. Of course, you have to draw a line somewhere. If you set the age of consent at a reasonable point (say, between 16 and 18 years old), there will be some people younger than the age of consent who are mature enough to consent to sex with an older person, and some who are older than the age of consent who are not sufficiently mature. Nonetheless, the line has to be drawn somewhere.

The same is true with deciding which victims are “foreseeable” and which are not.  

This case also raises questions about imposing liability for infecting people with STDs. By now, just about everyone is aware of the risks of having unprotected sex with an unknown partner. It could very easily be argued that the doctor, at least with respect to the patient he slept with (not her husband since he presumably didn’t know about the affair) has a defense that his partner assumed the risk, or committed contributory negligence.

One the other hand, such arguments could be read as relieving the person in the best position to prevent such things – the person with the STD and is aware that he has it.

Obviously, there are no easy answers to these questions. This story, while certainly amusing (though not to those involved, I’m sure), illustrates that even the simplest “wacky legal news” story can have some very complicated legal and policy issues just below the surface.

By: Rusty Shackleford

FDA Investigation of Tylenol Prompts Massive Recall

Doctor’s prescription note: “Take two Tylenols and I will absolutely, definitely be seeing you again tomorrow morning.”  I remember as a child how comforting Tylenol can be when you’re sick.  But I didn’t know that it now might actually be making people sick.  Faithful consumers of Tylenol products should be aware that the company has issued a recall of over 40 children’s versions of its over-the-counter products early this May.  Johnson & Johnson, the company that makes Tylenol, has also issued recalls for Benadryl, Motrin, and Rolaids. 

This is the fourth Tylenol recall in a period of seven months, with the last being a recall of Tylenol Arthritis in January.  Several users of Tylenol products had complained of nausea and vomiting in connection with a moldy, mildew-like smell coming from the products.  Not so good news, indeed.  Thanks for the medical advice, doc.  

Even more disappointing for the household-trusted name brand is the recent investigation probe by the FDA of a Tylenol production facility.  An FDA report issued also this May reveals shocking conditions at the Tylenol plant which were described as sub-quality and involved countless violations of safety standards.  The report suggests that the FDA found issues with nearly every system operation at the plant.  Research experts claim it’s one of the worst reports they’ve ever seen. 

To give you an idea of how bad it was, inspectors discovered layers of thick dust everywhere and grime on production equipment.  They also found a large hole in the facility ceiling, and pipes which had apparently been repaired with duct-tape.  Gross.  Not quite what you’d imagine from a company that sells a product that apparently makes everything better. 

In even grosser connections, the culprit in the recalled products has been identified as a bacteria known as B. cepacia.  B. cepacia is apparently antibiotic-resistant and has been linked to infections in hospital patients.  It was found on several drums used in transporting the products.  This makes sense, I guess- I’m not really familiar with any popular lines of anti-bacterial Tylenol, so maybe they aren’t experts in that particular field.

As someone who places their trust in name-brand products, I am severely disappointed.  What’s next?  Dirty Band-Aids?  Used Pampers?  Dried out Pentel pens?  I’ll bet someone will eventually strike it big by making the word “generic” a trademark name.  Hmmm…

Most people don’t recall (pardon the pun) the last big scandal involving Tylenol, which happened way back when in 1982 in what is known as the “Chicago Tylenol Murders”.  Seven people who unknowingly took cyanide-laced Tylenol died in Chicago and surrounding suburbs in a case that remains unsolved to this day.  The mandatory tamper-resistant bands that you see on pretty much all bottled products, and stricter anti-tampering laws, are the result of legislative reaction to the Chicago Tylenol Murders.

In some ways I think the present Tylenol investigation is worse, even though no one has lost their life to the products.  The 1982 murders involved tampering which occurred after production, and authorities were unable to identify any suspects.  Here, we are talking about a lack of diligence, plain and simple, which means that the injuries that have occurred could potentially have been prevented.    

The 1982 incident left behind a legacy of improved safety standards for the entire over-the-counter industry.  I wonder if this particular case will leave behind a similar legacy.  All I can think about is whether Tylenol will be able to restore public trust in its name.  Even after the FDA slammed them hard, Tylenol supposedly still didn’t respond quickly enough, and the FDA even had to issue them a warning.    

Too bad they weren’t able to administer some Tylenol to the production lines and alleviate the symptoms of faulty operations.  But that’s just my point- all the safety and health violations are only symptoms of the more deep-rooted illnesses of thoughtlessness and carelessness.  And those are the kinds that can be the most difficult to cure.

But seriously, though, if you’ve purchased Tylenol recently, you might want to toss or refund the bottles and switch to a different brand in the meantime.    

By: Jay Rivera