[Guest post by Aaron Worthing; send your tips here.]
No, this has nothing to do with the last two TSA-related posts (here and here), but I couldn’t resist riffing off of them. Consider this largely a light, funny post.
Now virtually every jurisdiction in the United States has some version of Federal Rule 11 in its rules on civil procedure. You can read it for yourself at the link but it requires that each filing before the courts have a reasonable factual basis (among other things). For instance, in the case I am about to discuss, the relevant jurisdiction is New Mexico. The New Mexican version of this is Rule 1-011 NMRA, which requires the attorney to certify that “that to the best of the [attorney’s] knowledge, information and belief there is good ground to support” the legal claims. Generally this imposes a reasonable duty to check out your clients’ factual assertions to see if they have any basis at all.
In a recently filed suit, a nursing home known as THI of New Mexico at Valle Norte claimed that the Harvey Law Firm failed in that duty. Specifically the Harvey Law Firm sued THI in a prior case asserting that, um… well… let me let article explain:
The nursing home said the claim wasn’t adequately investigated by lawyers Dusti Harvey and Feliz Rael before they pursued action on behalf of [patient James] Tracy, who has since died. They had claimed that Valle Norte’s negligent care led to a “severe delay in treatment of priapism, resulting in loss of penis.”
Priapism is a persistent painful erection that lasts for more than four hours and is not related to sexual stimulation.
That’s right, those ED commercials aren’t kidding with those warnings. The original suit further alleged that the man didn’t get proper treatment because the staff “treated the condition as a joke[.]” Which is terrible. I mean there is nothing at all funny about priapism.
But juvenile laughter aside, this sounded like a very serious claim potentially worth millions of dollars in damages. Only there was one small problem:
The nursing home’s lawsuit against the firm said the lawyers pursued litigation “without any medical evidence to show that Mr. Tracy suffered an amputation … or that Valle Norte’s conduct had caused even a remote causal link to any penile injury.”
The lawsuit also said that despite repeated claims by the Harvey law firm that Tracy had lost his penis, before-and-after photographs demonstrate that didn’t happen.
So apparently these lawyers failed to ensure that this suit had a factual basis, by checking if the client’s, um, appendage was actually missing.
Now to be fair to the Harvey Law Firm, these are just allegations at this point. But it would take a special breed of chutzpah to violate Federal Rule 11 (the new suit is in Federal Court) in a suit alleging a violation of the New Mexico state equivalent (Rule 1-011 NMRA), so I lean toward believing the nursing home on this one.
And either way, the entire thing is hilarious.
Hat Tip: Above the Law who have their own funny commentary.
Update: Slight edits for early morning bad grammar. Thanks Dustin, JRM.
[Posted and authored by Aaron Worthing.]