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Monday, July 30, 2007

Hancock Lawsuit Voluntarily Dismissed

The family of deceased St. Louis Cardinals pitcher Josh Hancock has voluntarily dismissed without prejudice the wrongful-death lawsuit arising out of Hancock's drunk-driving death in April. I previously wrote about the lawsuit when it was filed.

The family dropped the case just prior to a scheduled hearing on the defendants' motions to dismiss and/or to make more definite the claims. The family did not explain its decision to drop the case. The dismissal is without prejudice, meaning the family could reinstitute the action in the future.

Monday Evening Update:

From ESPN.com, Dean Hancock, Josh's father and the Administrator of Josh's Estate, issued a statement explaining the decision to dismiss the lawsuit. The statement in full:

"The subject of my son's death has been widely reported and discussed, as has my motivation to file the wrongful death lawsuit. Often, legal action has more to do with performing responsibilities and gaining control. This lawsuit was not filed for personal gain. Few know that Josh died without a Will, leaving multiple heirs in two separate families in different states. When I became the court appointed Administrator of his estate, I agreed to perform fiduciary responsibilities to protect the interests of his estate and all beneficiaries.

"Information from the intense news coverage of Josh's tragic death, facts about the accident and varying public statements from witnesses indicated that certain individuals and entities shared some degree of comparative negligence in the cause of Josh's death.

"The final investigation report recently issued by the Missouri Division of Alcohol and Tobacco Control ("ATC") provided some insight into the events leading to Josh's death. Considering all factual issues, combined with the prolonged legal battles which we would have to fight if this lawsuit were to continue, I have instructed that the defendants be dismissed from the lawsuit.

"Josh was often quoted saying, 'everything happens for the good.' The ATC report confirms that since his death, bars and restaurants are now becoming even more focused on their responsibilities. I am certain that his death has caused many individuals to become more aware of personal responsibility. Additionally, a number of employers and groups are also examining and changing their alcohol policies.

"It is my hope that public opinion will eventually have an even greater effect on public policy to emphasize the responsibilities of both those who consume alcohol and those who serve it."

Taking the statement at face value:

1) The family filed the lawsuit on an initial belief that the restaurant and/or tow truck driver might be liable, with the hope that more would come out in the litigation process. Subsequent investigation and inquiry revealed new information and understanding, suggesting that none of the defendants would be liable and that the lawsuit should not go forward

2) The family's goal with the lawsuit was to draw attention to and change the way bars/clubs/restaurants dealt with intoxicated patrons. These changes were happening in the wake of Josh's accident, making further litigation unnecessary. Our tort system is one way that we do social engineering (making the law that changes how people act in the real world), so this make some sense.

Taking the statement not at face value:

3) The motion to dismiss was going to be granted because the dram shop claim could not succeed on any facts (as I argued in my prior post, linked above), because the statute prohibited first-person actions. So the family saved face (and left itself some options) by voluntarily dismissing.

4) I question the new-found concern for the "prolonged legal battles which we would have to fight" as a neutral basis for dismissing the lawsuit. I find it difficult to believe that Mr. Hancock did not realize that the lawsuit would involve a "prolonged legal battle" or that his attorneys did not inform him of that fact.

-- Posted by Howard Wasserman @ 7/30/2007 02:41:00 PM -- Comments (5) -- Post a Comment

5 Comments:

Howard, I have not read the briefs leading up to this point, but what is your impression of the posture of the case? Was this a procedural move that will result in the filing of an amended complaint? Or is this the family graciously bowing out prior to a possible dismissal by the trial court?

gorjus -- 7/30/2007 4:31 PM

Gorjus:

I cannot tell. I have not read any of the briefs or other filings (since the Complaint). Nor have I seen any statement or explanation from the family. My speculation is that this was in advance of dismissal on the dram shop claim, which was weak as a matter of law. But it is possible that there are things going on behind the scenes and this is just a respite from active litigation.

Howard Wasserman -- 7/30/2007 10:35 PM

Howard, following up--now does the tow-truck driver and the owner/driver of the car that was disabled have any legal recourse to recover any legal bills as a result of the dismissal from the plaintiffs?

Anonymous -- 7/31/2007 1:05 AM

Ther should be a point (5) here: The resulting public-relations firestorm/disaster against the family and this lawsuit, particularly against the tow-truck driver and the driver of the disabled car (as well as the daughter of the Cardinals' play-by-play announcer), made any sympathy for the Hancock family--especially the parents--go right out the window.

Anonymous -- 7/31/2007 1:34 AM

Anonymous 1:34:

Almost certainly true, although not necessarily something that can be gleaned from Dean's statement. I generally just ignore plaintiffs when they insist a lawsuit seeking money damages is not about the money--it is, but we have to get past the idea that there is anything wrong with that.

Anonymous 1:05:

I doubt it. The traditional "American Rule" is that each party pays its own fees and costs. An exception may be where the lawsuit was frivolous or filed for an improper purpose, making the plaintiffs and/or their attorneys subject to sanctions (which can, but need not, include paying attorneys' fees). I do not see this case as being sanctionable One *could* read Dean's statement as suggesting that they did not do a complete investigation before filing, which would be improper. But, especially given how quickly the case went away, unless there is something about Missouri procedure I am missing, I would be surprised to see the family being required to pay any fees.

Howard Wasserman -- 7/31/2007 7:48 AM