Sneaking Suspicions

Archives-- August 25-31, 2002

Commentary from a practical perspective

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This page includes posts from August 25-31, 2002 in the usual reverse order. Each week's postings on the home page are perma-linked to these pages.

August 31, 2002

What’s in a number?

A little over five years ago, I came up with an idea for a new golf business. I would use a recognized USGA statistical method to redistribute the handicap rankings on golf courses. The concept appealed to my interests in fair play, statistics, golf, free enterprise, and trying my hand at something other than legal matters.

I started Hole By Hole in early summer 1997, and among other start-up activities went searching for a post office box for the new venture.

I didn’t realize at first how difficult that little task would become. My preferred location at the Rehoboth Beach Post Office had a long waiting list. So did my next choice, in Lewes.

Fortunately, I was able to find a box at the little post office at Nassau, a few miles north of my home. The fact that the hamlet’s name is also the title of a common betting game in golf seemed like a bonus.

The postmaster rented me Box No. 88, and I was underway.

That side business is still chugging along, although it’s mostly now a golf book review site and a handy place to archive the golf columns I write for The Cape Gazette. (Thus far the response to the idea of re-evaluating whether Hole No. 5 should continue to be a golf club’s number 1 handicap hole has been distinctly underwhelming.)

When I started this January, I thought about the need to provide a wide range of ways for interested readers to contact me. It made sense to simply use the same P.O. Box 88 that I’d been using for Hole By Hole these last five years, so I did.

This week I read a post by Susanna Cornett about the number 88 that truly surprised me.

Apparently some neo-Nazi types have adopted a stylized "88" as their little emblem. Now there's a controversy about hats and other clothing items at Target, among other places.

The little dears.

At first, I was just flabbergasted. As I wrote in the comments section of Ms. Cornett’s post, the first thing I usually think of when I see that number is NASCAR driver Dale Jarrett’s car. It never occurred to me that some fools would be using the number for their own peculiar purposes.

I’ll bet Mr. Jarrett is every bit as pleased about these clowns using his long-time racing number as I am about the possibility that somebody could think that my long-time use of Box 88 expressed some kind of solidarity with the Nazi movement.


Part of me says I should contact the postmaster and ask to move my box assignment to some other number. The other part of me argues against that reaction.

Besides the expense for new stationery, updating the web sites, and so on, there’s another reason I’m not inclined to abandon my little P.O. Box 88.

If there are any neo-Nazi goofs around here, I wouldn’t want them to get their evil little hands on it.

There’s no sense surrendering a number to these people just because they’re messing with it.

For other information about this odd little controversy, click here, here, and here.

And speaking of golf, here's this week's column, if you'd like.

August 30, 2002

The "Officials Said" Seriestm

Today begins a new, intermittently updated series of stuff to snark about journalism. It highlights stories that employ the overused, vaguely passive term, "officials said".

Of course, now that I have highlighted the phrase, you'll start seeing it everywhere as you peruse the newspapers or the Internet.

This phenomenon is similar to what happens when you buy a car that you think no one else in your area has yet purchased.

You’re welcome.

Anyway, here are the first two:

Reassurance I didn’t really need

I can’t add much to this one. Enjoy:

Michigan Crop Circles Likely a Prank

Pranksters - not aliens - are likely to blame for crop circles that appeared in an Eaton County cornfield this week, local officials said.

Eaton County Sheriff Rick Jones said the circles are similar to those in the hit movie "Signs," where aliens create massive geometric markings in a cornfield.

Imagine our relief.

Annals of Best Management Practices in Construction

Boy, you forget to make one final double-check on the paperwork, and all heck breaks loose:

Bulldozer Strikes Wrong House

A couple was at the dinner table when a bulldozer rumbled into their home and tore the ceiling down. The bulldozer operator had the wrong address, officials said….

"I can fix it in two days," said George Zaragozi, company president. "He made a mistake and thought it was supposed to be demolished."

I’m so glad the officials could explain the situation for the rest of us.

August 30, 2002

College Rivalries

So Terry Oglesby and I were trading a few e-mails about college football and rivalries, and something he wrote reminded me of a story.

Years ago, my next younger brother and I went to a Penn/Brown Ivy League football game at Franklin Field (This was long before the old football stadium became a famous scene location in Unbreakable).

The Penn marching band was playing in the middle of the field. As the host musicians tootled along, the Brown band members laid down along the field edge, on the Brown side of the stadium.

They formed the word BORING in human letters, while leading a loud chant using the same word.

For a minute I thought that the Penn tuba players would drop their instruments right there on the turf and wreak some Quaker vengeance.

Then again, it was a bunch of Quakers.

August 30, 2002

Three Claudes for Baretta

Sometimes an interesting story hides underneath a remarkably dull headline that does absolutely nothing to attract the reader.

It happened again late Thursday night with this three-Claude winner:

Robert Blake Says 'I Didn't Do It'

That utterly banal attempt at grabbing attention just lies there like a car-flattened toad, now doesn’t it?

The AP report is actually pretty intriguing, detailing a long interview with the accused actor.

Blake apparently decided to talk notwithstanding others’ advice to keep quiet pending the upcoming trial.

Based on what I read, it may be a decision he later regrets.

August 29, 2002

Pay no attention to the man in that videotape

The Second Circuit Court of Appeals issued an interesting opinion yesterday concerning the limits of expert causation testimony in a xylene exposure case.

The appellate court upheld the District Court’s decision to exclude the plaintiff’s expert witness testimony, under the Daubert principles. (For the non-lawyers reading this blog, the 1993 Supreme Court Daubert case deals with the rules of evidence that permit scientific and technical testimony to be presented in a trial.)

This case is a very good example of how those principles should be applied appropriately, but that’s not why I’m writing about it.

Instead, there’s another point or two to be gleaned here that I find even more interesting.

Nikitas Amorgianos and his wife filed suit against Amtrak, alleging that he suffered from work-related injuries stemming from his work as a bridge painter. The claimed injuries were pretty serious:

Due to Amtrak's alleged failure to provide proper safety equipment and to ensure sufficient ventilation inside the containment, Amorgianos claimed that he suffered overexposure to xylene, an organic solvent, which caused him to fall acutely ill on August 28, 1995, with symptoms of fever, swollen joints, itchiness, headache, and difficulty moving. He testified that his condition worsened thereafter and that he now has no feeling in his hands, he drops things, his knees buckle beneath him, and he cannot walk as well as he could before the exposure. In addition, he claimed that he has no reflexes in the left side of his body, his whole body is numb and tingly, and he can no longer engage in outdoor or athletic activities.

The jury ruled in the plaintiffs’ favor, granting a broad range of monetary relief totaling over $3.3 million.

As one might expect, Amtrak was not happy with this result.

The railroad corporation’s attorneys moved for a new trial, and pointed to a series of fairly damning facts put in evidence in the case to support their argument:

… Amtrak countered plaintiffs' evidence with a surveillance video of [Mr.] Amorgianos walking without apparent difficulty, drinking several cups of coffee at a café, and smoking cigarettes. The defense also offered medical records from Ohio that were prepared following a car accident in 1996, which revealed, inter alia, that Amorgianos had a strong hand grasp and steady gait, that he denied weakness or numbness, that his reflexes were good, that his cranial nerve examination was normal, and that his motor strength was five out of five. These records were in direct conflict with the opinion offered by his treating physician and expert….

The trial judge sided with Amtrak in his post-trial decision, as noted by the Second Circuit:

Judge Korman concluded that granting a new trial was appropriate because, in his determination, "there was a miscarriage of justice in this case." The grounds for this decision included (1) the fact that the only experts qualified to interpret Amorgianos's neurological tests […] concluded that the "results were normal and that at most [they] reflected a pinched nerve . . . in the neck"; (2) Amorgianos's medical records from Ohio, which "if you believe them, show that [] the Plaintiff is a liar and a fraud, and that [Plaintiff’s treating physician and expert’s] diagnosis is completely wrong"; (3) the video surveillance that revealed Amorgianos walking more than a quarter of a mile "without any difficulty"; (4) the testimony of the defense neurologists that the symptoms of toxically-induced peripheral neuropathy typically present in a symmetrical pattern, whereas Amorgianos complained of asymmetrical symptoms; and (5) the fact that there was no paint residue on the respirator Amorgianos had allegedly been using when he fell ill on August 28, 1995.

The appellate judges had little difficulty in agreeing with the District Court:

In light of the conflicting evidence summarized above, particularly the Ohio medical records and the surveillance video, the district court had a reasonable basis for finding that the jury verdict was against the weight of the evidence. We thus easily conclude that there was no abuse of discretion and affirm the district court's grant of defendant's motion for new trial.

I believe there are at least two points to be made relating to this part of the decision.

First, the ugly yet mundane facts suggesting fraud may have played an unstated but critical role, influencing how both the trial judge and the appeals court also dealt with the technical evidence issues. It sometimes bears reminding that judges are human, and will react to proof that someone is trying to abuse the system over which they preside.

The second part involves my penchant for using the Wizard of Oz as a resource for analogies to real-life situations

In this case, I can imagine the plaintiff’s attorney arguing to the trial court something along the lines of "Pay no attention to that man in the videotape", similar to the Wizard’s own efforts at avoiding detection.

It didn’t work in the movie, either.

August 28, 2002

Wretched Red Excess

My wife’s tomato patch suffered during this year’s drought. The combination of record-setting dry weather and some occasional forgetfulness about watering the plants kept the harvest down quite a bit compared to some prior years’ bumper crops.

In contrast, the folks in the small Spanish town of Bunol apparently had more than enough rain for the tomatoes needed for their annual exercise in wretched red excess:

The world's biggest food fight painted the Spanish town of Bunol red on Wednesday as 35,000 revelers pelted each other with 120 tons of ripe plum tomatoes in the annual "Tomatina" festival.

In an hour-long frenzy, the small town's central street was transformed into a blur of flying fruit as Spaniards and visitors from around the globe hurled tomatoes and cavorted in the shin-deep pools of puree which give the "Tomatina" its name.

There were no indications in the Reuters report of any counter-demonstrations by the vegetable rights movement.

Perhaps they were all busy down in Johannesburg.

August 27, 2002

Beavis and Butthead on Patrol

One professional practice tip to which I always try to adhere is to never present an argument that makes me grin while stating it. It’s a good way to keep one’s focus on making effective points, while avoiding damage to one’s long-term credibility.

Self-assessments can be flawed, however. There have been occasions, thankfully rare, when I have been on the receiving end of an arched eyebrow from a judge as I argue a case before the court.

One advantage in exhibiting this physical signal of total disbelief is that it doesn’t appear in the transcript. It therefore gives the offending but perceptive attorney an opportunity to save face and drop a faulty line of argument, before the judge says something on the record that could be even worse.

In reading a decision handed down yesterday by the U.S. Fourth Circuit Court of Appeals, I had to wonder if the attorneys for both sides saw any such facial expressions among the three-judge panel they addressed in oral argument.

In the pre-dawn hours of August 17, 1996, three police officers from Prince George’s County, Maryland answered a complaint about a noisy disturbance at an apartment complex. Lieutenant James Rozar, accompanied by officers Antonio DeBarros and Kevin Hodge, found three men drinking beer, including Mr. Nelson Robles. Robles had an outstanding traffic warrant issued by Montgomery County, and so the police took him into custody without incident.

There was a long-standing informal practice of prisoner exchanges between the two county police departments, at agreed-upon locations at their borders. Nonetheless, the PG officers felt they were on the receiving end of a run-around from Montgomery County that night, as they tried to unload Nobles.

Not to be outdone by their Montco counterparts, Lt. Rozar and Officer DeBarros developed a plan to deal with their prisoner.

Unfortunately, it was a really, really stupid plan:

…Rozar and DeBarros drove Robles to the deserted Hillandale Shopping Center parking lot in Montgomery County. There they tied Robles to a metal pole using three pairs of flex-cuffs and left a note at his feet explaining that there were outstanding warrants for him in Montgomery County. The officers then drove out of sight of Robles and placed a call to the non-emergency number of the Montgomery Police Department reporting the situation. They did not identify themselves to the operator or disclose the fact that PGC officers had tied Robles to the pole. Officers from Montgomery County arrived approximately 10 to 15 minutes later to untie Robles and take him into custody.

The Fourth Circuit noted that this Beavis and Butthead approach to law enforcement had its effects:

Robles testified that he felt frightened, vulnerable, and humiliated when left alone and immobile in the dark parking lot. He asserts that in the months following the incident he had trouble sleeping and was scared to leave his home. Three corroborating witnesses testified to an abrupt change in Robles' daily habits immediately following the incident.

In the inevitable lawsuit that followed, however, neither side distinguished themselves.

The plaintiff’s attempt to find the defendants liable under federal due process and civil rights protections failed. The original jury found in Robles' favor on a separate state constitutional due process claim, however, and awarded him a total of $647,000 in compensatory and punitive damages.

Not satisfied with that verdict, the plaintiff sought a new trial and a reconsideration of the district court’s pre-trial grant of summary judgment to the defendants relating to qualified immunity.

The trial court ruled against Robles, and instead granted a defense motion for a new trial if Robles failed to accept a reduction in the total award to $240,000.

Robles refused to take the lower amount. The matter went to trial once again, limited to the question of damages under the state constitutional provisions. This time the jury awarded the plaintiff a grand total of $40,000, of which $10,000 was assessed against PG County as punitive damages.

Robles' counsel also tried for attorneys’ fees under 42 U.S.C. Section 1988. The trial judge determined that Robles didn't qualify, however, because he failed to win any relief on his various federal law claims.

On appeal, the Fourth Circuit’s unanimous opinion includes some fairly pungent commentary about the police conduct:

[I]t was hardly necessary to tie someone to a metal pole in a deserted parking lot, for however brief a time, in order to effect a transfer of custody. ...

[T]he officers’ actions in this instance were foolish and unorthodox. ...

Going forward, officers are now on notice that the type of Keystone Kop activity that degrades those subject to detention and that lacks any conceivable law enforcement purpose implicates federal due process guarantees….

The Court also found fault with the plaintiff’s attempt to overturn the district court’s decision that the original jury verdict was excessive:

The record amply supports the district court’s perspective. Plaintiff never made any claim for lost wages or medical treatment in connection with this 10 minute incident, nor did he seek any type of doctor about it until three years later on the advice of his lawyer.

[T]he same underlying factors which led to the reduction of the compensation award … also supported the district court’s view that "it would be a miscarriage of justice to impose punitive damages higher than" [the amount to which he lowered it before the second trial].

The appellate court also upheld the determination that Robles was not entitled to attorneys’ fees. Based on the two trials and the record references to the pre-trial proceedings, this was an separate yet significant loss for the plaintiff.

The Circuit Court added a touch of salt to Robles’ wound with its additional determination that the second jury’s $10,000 punitive damage award against PG County could not be upheld under the applicable state law.

In sum, the plaintiff couldn’t hold onto a $647,000 verdict, turned down the chance to clear $240,000, and ended up with $30,000.

The appellate opinion concluded with an appropriate commendation to the district court:

In this unfortunate case, the district court struck a fortunate balance. While plaintiff sought to push the case for far more than it was worth, defendants seemed to believe that characterizing their actions as adolescent somehow relieved them of all responsibility for them. The district judge wisely let neither party have its way.

I’m just glad I wasn’t forced to argue the appeal for either side of this ugly case.

I don’t need to see another arched eyebrow.

August 26, 2002

The principle of intended consequences

Stuart Buck recently posted a piece about red-light camera systems and a statistical study by the Insurance Institute for Highway Safety:

Turns out that the study excluded an increase in rear-end crashes (often caused by a sudden stop at a red light) simply by defining the "intersection" to mean only the zone between crosswalks. A man named Kadison, who reexamined the data, came to a different conclusion:

Over this enlarged zone, rear-end crashes increased by 33 after red-light cameras were installed. At the same time, side impacts dropped 25 percent. Kadison concludes that the cameras merely trade one type of crash for another....

In Charlotte, North Carolina, station WBTV had this to say, "Three years, 125,000 tickets, and $6 million in fines later, the number of accidents at intersections in Charlotte has gone down less than one percent. And the number of rear-end accidents, which are much more common, has gone up 15 percent."

This should come as no surprise to anyone familiar with the principle of unintended consequences -- try to fix one problem (red light violations) and likely as not you worsen another (rear end crashes).

I‘m interested in this issue for professional reasons. I recently drafted portions of legislation that expanded the red-light enforcement program within Delaware [follow the links to House Bill #600, 73 Del.Laws, c. 350, Section 92].

Ten intersections within the City of Wilmington are already set up with red-light cameras under a city-sponsored program. The new legislation adds ten locations to Wilmington, assigns ten more locations among four other cities, and directs my clients to install ten more such systems among the signal intersections it controls outside city limits.

I'm now working with my clients and other representatives from cities and other state agencies on this project.

In addition, as readers of a recent post on this site are well aware, I recently developed a keen personal interest in rear end collisions.

If the Car and Driver story is accurate, I really have to wonder why the Institute would fool around with the accident statistics involving this new technology. It seems pointless at best, in addition to being of questionable intellectual honesty.

As for the futility of fudging this data, I don’t understand why the Institute wouldn’t be satisfied with using commonly accepted definitions for accidents and their causes at these intersections. The organization could still make an effective argument for the use of red-light camera enforcement, despite the potential for an increase in rear end collisions.

Here’s why:

  • The point of many infrastructure improvements in highway safety is not necessarily to reduce accidents.
  • The point is to reduce fatalities.

For example, the placement of the famous Jersey barriers within medians in one sense "created" more injuries, from cars bouncing off of them. On the other hand, the high-walled concrete sections also significantly reduced fatalities from head-on collisions.

In addition, guardrails along highways frequently protect drivers and their passengers from vaulting into space, where the highways' side slopes can’t provide a safe place to recover. Nonetheless, the blunt ends of guardrails were frequently the source of many deaths and serious injuries. New blunt end treatments called attenuators can’t and won’t prevent all injuries from a nasty bit of aiming, but they usually prevent deaths.

Similarly, side-impact incidents at intersections, or "T-bonings" as they are often called, are typically far more deadly than rear end collisions. One of the primary reasons for installing the red-light camera systems, from a safety perspective at least, is to help prevent deaths and major injuries from T-boning.

Therefore, I’m not at all surprised to read that the red-light cameras

merely trade one type of crash for another,

as quoted by Car and Driver.

There’s nothing "mere" about that fact at all.

In addition, the Charlotte segment of the story raises its own questions. For example, I can’t tell from the quote whether the relatively stable total number of accidents is limited to the intersections using the camera systems, but it doesn’t look like it. On the other hand, the piece also notes an increase in rear end collisions. That means the number of some other type of accidents must have gone down, presumably including at least some of the dangerous T-bone variety.

It could be that someone was trying to claim an "overflow" effect in the Charlotte story. Under this theory,  the presence of red-light systems in parts of a city's network inevitably leads to reduced red-light running elsewhere.

I would need to see some serious number-crunching before I bought into that claim. It just doesn't fit any intuitive sense of what are sometimes euphemistically called human factors. The theory also strikes me as just a tad too "convenient" for red-light camera advocates, in a Dana Carvey sort of way.

There are other policy issues concerning red-light camera technology that are well worth debating, not least of which is the question whether revenue considerations take precedence over other goals in a particular locale. Nonetheless, from a safety perspective, the fact that the cameras hold out the real promise of reducing serious injuries and death can be a effective counterpoint to the fact that they may also result in additional, predominantly minor accidents.

In other words, these red-light enforcement systems actually help illustrate the principle of intended consequences.

August 25, 2002

A litte traveling music, Sam

It's another travel day, this time only about 225 miles round-trip.

Let's hope it's completely uneventful.

Meanwhile, there's a new golf book review available for your reading pleasure, discussing Michael D'Antonio's fine history of the 1972 PGA Tour season.

Arnold Palmer, Jack Nicklaus, Gary Player, and Lee Trevino are in their prime.

Nixon and Wallace are in cameo roles.

Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969


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Official small print disclaimer: This is, after all, a personal web site. Any opinions or comments I express here are my own, and don't necessarily reflect the official position of my work as a government attorney or any of my clients.

That fact may become obvious later on, but it needs to be said here anyway.

© Frederick H. Schranck 2002