Jottings By An Employer's Lawyer

Friday, July 22, 2005

Bad Week to Be a Jailer in California - Bad Press and a $20 Million MDV


This was not a great week for the California prison system. The one's ok, three's too many and two is an open question, paramour case handed down by the California Supreme Court not only should have been embarrassing, but made terrible law for all California employers. See, Paramour Claims Live in California - Although Maybe It's A Question of How Many? But that wasn't the most costly news of the week, as Monday the prison system was losing a $20 million dollar age discrimination case as reported in the Contra Costa Times, California prison to appeal doctor's $20 million judgment.

The real shocker --- the plaintiff, Robert Johnson, M.D. was 86. According to his counsel, "He planned to work until he was 95. And he was up to it. His grandfather lived to be 112. He has the genetics going for him."

Give credit to Dr. Johnson's counsel, Ralph Wegis, as it appears he anticipated what the not a spring chicken himself Judge Richard Posner would propose in his blog post, Refusing to Retire: What Can Be Done When People Overstay Their Welcome?:
It is simply this: beginning at age 70, require every life-tenured professor and every life-tenured judge to take a test of mental acuity every five years. (I use these simply as examples of "light" jobs from which the occupant is unlikely to be forced to retire by the demands that the job places on him.) The test results would be available to the members of the professor's department or the judge's court but to no others. The results would not be a basis for a determination of incapacity; they would not even be admissible in a competence hearing. The expectation rather is that a poor test result would persuade the individual, perhaps by persuading his colleagues who would in turn persuade him, or persuade members of his family to persuade him, to retire voluntarily.
Wegis was able to report that "tests showed that Johnson had the mental acuity of a much younger person."

And for the second MDV report in a row -- a bit of understatement (I hope) from the defense side of the table:
It came as a bit of a shock because of the excessive nature of the dollar amount. It will lead us to appeal the decision next month. [emphasis added]
Just a bit.

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