Clowns to the Left of Me, Jokers to the Right

by Michael A Smerconish

  We’re not talking about leaking pipes, burnt dinners, or sloppy wills—bad doctors cause permanent injury. They have to be drummed out of the business.

  Fourth, no claim should be allowed to be filed without an affidavit signed by a physician willing to state under oath that the case looks like one involving malpractice. This should cut down on the number of meritless cases. Doctors are correct in saying that many claims amount to no more than a fishing expedition.

  Fifth, there needs to be accountability for insurance companies. Several malpractice carriers have gone belly-up due to the bad business practices and outright greed of those who run them. And nobody is talking about that.

  It’s going to take a little give from everybody—the doctors, the lawyers, and the insurance companies. Otherwise, any “solution” is just window dressing.

  AFTERWORD

  Everybody hates trial lawyers . . . until they need one. While I’ve been careful not to exploit my many media platforms to the benefit of my former livelihood, there are certain instances that have compelled me to defend trial lawyers and their work.

  Many politicians find it easy to enlist public support for limiting claims for pain and suffering because everyone hears about the cases deemed excessive. The famous McDonald’s coffee-scalding case in 1994 fits that bill, because the plaintiff became the national poster child of tort excess. As is true, however, in so many of these types of cases, when you delve into the facts, you find that the award was justified. I’ll never forget a radio interview I did with a close relative of Stella Liebeck’s (the McDonald’s scalding victim) who moved many skeptics in my audience. She told the harrowing tale of how the 79-year-old Liebeck was hospitalized for eight days, underwent multiple skin grafts, and required two years of medical treatment.

  I wrote this column because a woman’s breasts made it abundantly clear that, although what President George W. Bush was seeking might sound fine on the campaign trail, it was fundamentally unfair in practice.

  More recently, I discussed on CNN the incredible backstory concerning the GM ignition imbroglio. In 2014, I told the story of Ken and Beth Melton, who lost their daughter Brooke on her 29th birthday. Three days earlier, her 2005 Chevrolet Cobalt shut off while she was driving. She lost control of the vehicle momentarily but was able to pull over and restart the car. She had it serviced at the local dealership. They returned it, telling Brooke it was fixed. Then on her birthday, she was traveling on Highway 92 in Paulding County, Georgia, on a rainy night. She was wearing her seatbelt and driving 58 miles per hour on the two-lane road with a 55 miles per hour speed limit. According to the accident report, she lost control of the car and it collided with another vehicle. Brooke’s car rolled 15 feet down into a creek, and she died.

  The Meltons hired a Georgia trial lawyer, Lance Cooper, and he hired experts who were able to determine that the key had slipped from the “on” position to the “accessory” position three seconds before the accident, which would have shut off the power steering and brakes, just like what had happened a few days earlier. Mark Hood, an engineer hired by Cooper, figured out that the original part from Brooke Melton’s car did not match store-bought replacements, despite possessing the same identification number. In the discovery phase of the Melton family’s lawsuit against GM, it was revealed that the automaker was aware of the problem even before the car was sold to Brooke in 2005. Which begs the question: Why wasn’t the problem fixed?

  A 2005 memo cited by lawmakers revealed that it wasn’t fixed because redesigning the ignition switch would have cost 90 cents per car. We now know this only because of the Meltons’ pursuit of justice and their willingness to file a lawsuit.

  The bottom line is this: Our civil justice system is often maligned, but it remains a great check on our free-enterprise system, often serving as a more vigilant force than the government itself, whether it’s the National Highway Traffic Safety Administration’s being slow to force the recall of defective cars, the Securities and Exchange Commission’s not reining in the forces of Wall Street that brought about the bank collapses and ensuing Great Recession, the Food and Drug Administration’s years of irresponsible oversight for products like Merck’s Vioxx, or the Consumer Product Safety Commission’s hesitancy to recall defective products like BB guns.

  I’LL MISS THE MERRY PRANKSTER

  Philadelphia Daily News, Tuesday, April 15, 2003

  LIKE MANY, I am going to miss Thacher. And I am thinking about so many stories in which he played a role that I will never forget. Here’s a favorite.

  Like Thacher, I am a proud member of the Union League. Yes, guys with names like Smerconish now belong. One of the benefits of membership is that you get to use clubs around the globe through a reciprocal membership agreement. They include some great places, like the prestigious Union League of New York.

  I have been a member of the Union League since law school and have forged some great friendships there. And while the public perception of members might be one of a little, shall we say, stiffness, the truth in our case is far from it.

  Every December, I stay at the Union League of New York while attending a dinner for the storied Pennsylvania Society. This group exists for no other purpose than to meet annually at a formal dinner every year in Manhattan.

  The Pennsylvania Society dates from a time when Philadelphia was the center of the universe. Every year, the members would travel from Philadelphia to New York City for a grand dinner. Wives would shop and husbands would do business. Lots of political business. Candidates would get slated in smoke-filled rooms during the gathering. To this day, the Pennsylvania Society lives. It’s watered down, of course. Not as many deals get cut as in the old days, and it is now bipartisan.

  In the early 1990s—before I was married—some friends from the Philadelphia Union League would go to the society shindig in December, and we would use our reciprocal relationship to stay at the Union League of New York. Like the League in Philadelphia, New York’s version is a spectacular facility. It’s located on Park Avenue. Dark wood. Deep leather chairs. Cigar smoke. You get the picture.

  And so a group of us spent a weekend in Manhattan. This was a particularly raucous time. We’d closed the Oak Room at the Plaza Hotel on a Saturday night before we headed back to the Union League, where the drinking and shenanigans continued.

  Suffice it to say things were a bit out of hand. There were some calls from the front desk made to our rooms, and we watched the sun come up on Sunday morning. (Did I mention we are all married now?) Later that day, we headed back to Philly. A good time was had by all. Nobody got hurt.

  When we were all back at our jobs, my wheels were turning. One of the guys along for the trip was Dave Singer (now an equally married, respectable real estate investor). Back then, we called him “CCD,” a moniker meaning Center City Dave. The New York rooms at the League were in Dave’s name—something he would soon regret.

  Another of the posse was Robert M. Flood III, or “Floody.” (Did I mention that he, too, is now married and respectable?) Floody’s dad was then the president of the Union League in Philly. That meant Floody had access to the club’s stationery. Soon after the trip to New York, here is what David Singer found in his mailbox on the fancy letterhead of the Union League:

  December 26, 1991

  Dear Mr. Singer:

  The Union League of Philadelphia is extremely proud of its reciprocal relationships with fifty-seven other similarly situated men’s clubs world-wide. It is for this reason that we place great value on maintaining these relationships.

  In this context, I am sorry to have learned from the Union League of New York of their displeasure with your recent visit to their facility. The President of the Union League of New York has recently corresponded with the President of the Union League of Philadelphia, outlining allegations of conduct unbecoming of a League member.

  The Committee on Member Conduct has reviewed this correspondence and would like to provide you with a forum in which to discu
ss this matter. You should realize that we are contemplating sanctions against you and other League members that may have been with you on this occasion and are therefore considered to have been accessories in your misconduct.

  The Committee on Member Conduct will hold its next meeting on Thursday, January 9, 1992, at 5:30 in the Binney Room. Please plan to join us at this meeting. In the event you are unable to do so, please call my office.

  Sincerely,

  Stanley Orr, Manager

  Not bad, eh? And so Union Leagueish.

  I’d completely made up the Committee on Member Conduct, but it would not surprise me to learn we actually had one. And better than the text was the way we anticipated his reaction. He was numb. We correctly predicted whom he would call to authenticate the reprimand. So he took this hook, line, and sinker.

  But to really pull off this stunt, we knew we needed somebody from the League community in our corner. Somebody with credibility. Somebody with stature. Somebody with a sense of humor. Somebody like Thacher Longstreth.

  So I called him in his City Hall offices to invite him to participate in the gag. He took my call and listened to my recap of the events. And then he laughed. And laughed. And laughed.

  I could tell I had made his day. Thacher told me he loved the scheme and would do anything to support the sting.

  Just think about that. Here was the original Main Line WASP. The prototype of a Union League member. A proud Princeton alumnus. A World War II naval veteran who early in his career was Life magazine’s top salesman and ended up the president of Philadelphia’s Chamber of Commerce. A two-time GOP mayoral candidate who served more than a decade as a member of City Council. And he couldn’t wait to help some young guys carry out a schoolboy prank. You have to love that about him. And I did.

  At the appointed hour of CCD’s appearance before the Committee on Member Conduct, Thacher stood in a foreboding manner on the front steps of the august Union League, pacing like an expectant father as CCD approached from down the block.

  He greeted CCD and simply told him, “Whatever you do, be contrite.” He then spun on his heels and escorted CCD into the League and toward the meeting room, giving no hint of what was really to come. I followed closely behind.

  CCD was nervous about what awaited him behind the big oak door. Thacher then acted like he was administering a secret knock—what a great effect—and opened it wide. But instead of a dozen fuddy-duddies, it was the crew who had attended the Pennsylvania Society and a few add-ons, all with cigars and drinks, applauding and anxious to greet our nervous pal. And nobody laughed harder than Thach.

  Boy am I going to miss this guy.

  AFTERWORD

  Thirteen years after one of the greatest pranks of all time, I went back to CCD and asked him what he most remembered about that day he walked up to the Union League, prepared to meet his fate, only to see the foreboding face of a septuagenarian city councilman standing atop the front steps.

  “The way he roared with laughter, at age 75, when it was over,” Dave recalled. “He just loved the idea of hanging out with guys in their 20s and being in on the gag. He felt right at home, and we loved having him around—what a rarity.”

  Then Dave, sounding more like a wise alter cocker than a real estate maven in his 50s, shared another observation: “Do young guys today even pull practical jokes on each other without fear of political incorrectness or getting sued?”

  Bob Flood had a similar reflection:

  People today, including Millennials, risk offending or bullying someone. The population today lacks tolerance to conduct a prank as you orchestrated in the early ’90s. . . . I look at my son, even in college, what he and his friends have to do to avoid upsetting one group or person. From designing a fraternity T-shirt to raise funds for a charity—the wording for the T-shirt has to be approved by the administration. . . . These are 21-year-olds. I could go on about the hypocrisy of colleges.

  SUMMER AND SMOKE:

  MY GAY EPIPHANY

  Philadelphia Daily News, Thursday, August 28, 2003

  LAST SUMMER, child abductions grabbed all the headlines. This summer, it’s gay rights. Not a week passed without some headline on the topic.

  Canada sanctioned gay marriage. Senator Rick Santorum got in hot water by equating homosexuality with incest. The Supreme Court threw out the Texas sodomy statute. The Boy Scouts in Philly tried to institute a “don’t ask, don’t tell” policy.

  Episcopalians elevated their first gay bishop. Queer Eye for the Straight Guy became a TV rage. And the University of Michigan put a course in the curriculum called “How to Be Gay.”

  It’s a lot to process, and Americans remain conflicted as to how to react. But sitting in my backyard in the middle of summer, smoking a cigar on a hot Sunday afternoon, I think I sorted it out.

  I had an epiphany while reading the wedding announcements in the New York Times. A photo of two guys caught my attention.

  “Gregory Krzyminski, Raymond Konz” was what it said above a picture of two men in tuxes. Nice write-up. There was a mention of their education and ages and a brief description of their commitment ceremony. Turns out “he” is a retired minority recruiter. And the other “he” is a clinical social worker.

  But here is what grabbed my eye. It said that Gregory is the son of a steelworker from Chicago, and Raymond is the son of a Milwaukee detective.

  Wait a minute.

  One guy’s father was a leatherneck for U.S. Steel, the other’s a cop? That doesn’t fit the stereotype. Sounds way too macho an upbringing for a couple of guys with sugar in their pockets.

  I was expecting a career in the theater. Or someone working as a hairstylist.

  Here’s why that’s relevant.

  If sexual orientation is a part of someone’s wiring and not a matter of choice, then there should be no debate as to whether we afford the full protection of the law to homosexuals.

  Common decency dictates that if a person is born with some characteristic that separates them from the norm, we must take measures to assist with their assimilation and ensure that whatever separates them from the mainstream is not used to hinder their attainment of a full and prosperous life.

  That’s why I was interested to learn about the backgrounds of Raymond and Gregory, with both of whom I later spoke.

  According to Raymond, they’ve been together for 23 years and are both Roman Catholics from “strong Polish backgrounds.”

  Not surprisingly, both men said there was nothing in their upbringing that prompted or promoted a gay lifestyle, and that their sexual orientation, in this view, comes down to their wiring.

  “Sending our announcement to the New York Times was a choice. Sexual orientation is not,” Raymond said.

  I think he’s right.

  It’s all about genetics and very little about environment. If we’re talking about a set of characteristics over which people have no control, then it’s unfair to ostracize them for what separates them from the mainstream.

  While I remain uncomfortable in calling a same-sex union a “marriage,” my afternoon in the backyard shed some light on the way things should be.

  AFTERWORD

  First, I’m over it. I no longer feel proprietary about the word and am perfectly fine calling a same-sex union a “marriage.”

  The Times’s wedding announcement that was the catalyst for my column was among the first published in that paper for same-sex couples. At the time, Greg and Raymond had a big blessing ceremony, a three-day event, in their hometown of Milwaukee. Fourteen years after their marriage blessing, all is well with the Konz-Krzyminskis, the name they adopted in 2007 after what Greg describes as “a particularly harsh and restrictive Wisconsin constitutional marriage amendment which passed with a surprising majority.” The law not only limited marriage to that between one man and one woman but also explicitly stated that anything giving the illusion of marriage to same-sex couples “shall not be recognized.” That phrase became a rallying cry for some and wa
s used as the title of a photo/biographical essay of Wisconsin same-sex couples. Greg and Raymond were proud to be included.

  Then, in 2011, when New York allowed same-sex marriage, their niece, a long-time Upper West Sider and one of their staunchest supporters, along with her three children and husband, invited and encouraged them to come there and get married. Although they were unable to be married in their beloved Roman Catholic Church, they were fortunate to have their wedding ceremony at Christ and St. Stephen’s Episcopal Church on the Upper West Side of Manhattan. When Raymond told his last surviving aunt about their getting married in New York City, her response was “Why should you do that? I was at your beautiful wedding in Milwaukee—you are already married in the eyes of God!” He agreed with her but said they were doing this ceremony so he could get Greg on his insurance and they just wanted to be like everybody else; she understood. And she came and danced at the Polish wedding reception they hosted the following month in Milwaukee, polka band and all!

  After Greg retired from his job as a culinary/restaurant management college instructor, he worked as an airline customer service agent and undertook an overseas assignment in Liverpool, England. He’s also an amateur actor and director and now has a TV commercial under his belt. In 2012, he and his ex-wife returned with their daughter to Ethiopia, where they had been Peace Corps volunteers from 1969 to 1972, after a Facebook reunion with one of their most beloved students. Raymond spends most of his time laboring in social work at the VA Medical Center in Milwaukee. Their mutual new “job” is a granddaughter, Eleanor Rose, born June 6, 2014, the day Wisconsin’s “shall not be recognized” amendment was struck down as unconstitutional.

  Greg reports:

  I guess the takeaway is that Raymond and I, who are approaching our 34th year together, are the epitome of family values. We’ve built a lasting relationship with each other, with our families of origin, friends and our nuclear family, which includes a son, daughter, son-in-law, granddaughter and an ex-wife.