I’m not afraid to admit that I’m a comic book geek. And while Spider Man was not my favorite superhero, a favorite quote of mine is associated with him: “With great power comes great responsibility.” 

While making the leap from superhero to lawyer probably requires some superhuman power, no extraordinary effort is needed in making the case for applying this quote to attorneys and the lawsuits they file on behalf of their clients. 

The impetus for this diatribe comes from a recent lawsuit between two co-workers – Plaintiff Farhoud and Defendant Rosario – who worked in a large Michigan hospital. Defendant Rosario had allegedly overheard Aiman ask a fellow co-worker, “Can you pull this sheath for me before I have to go shoot somebody?” 

Was this just an off-color remark or a warning sign for something more sinister? Certainly in light of the steady stream of actual and planned violence that is a tragic reality, one could accept that Rosario believed that this comment was “unsettling” and inappropriate, and understand why she reported it to her direct supervisor.

And one could certainly understand that in response to this report, why the hospital’s security would confront Aiman who would later testify that he had no recollection of making the comment, but if he did make it, the comment was only made in jest. No disciplinary action was ever taken against Aiman as a result of Rosario’s report.

Lawyers Able to Make Huge Factual Leaps in a Single Lawsuit

And at this point in our story is where a lawyer could have saved the day (or at least salvaged some respect for the profession) by exercising responsibility in using the power to file a lawsuit. 

Instead, however, Plaintiff Aiman and his wife found a lawyer who sued the co-worker, alleging that as a result of the accusation concerning the comment that Aiman suffered “substantial damages” including “embarrassment, humiliation, depression, anxiety, and missed time from work.” Aiman’s wife alleged she suffered emotional distress from the incident and the stress resulted in a heart attack.

But as so often happens in employment related lawsuits, plaintiffs and their attorneys go to considerable lengths to paint a picture of liability only to have the facts intervene and often stubbornly so.

In this regard, Aiman at his deposition conceded that he may have made a comment, that it could have been perceived by his co-worker to be inappropriate, and there was no evidence that the co-worker made a false report. Accordingly, the trial court dismissed the claim reasoning that plaintiffs’ claims “did not rise to the level of extreme and outrageous conduct …” and the Michigan Court of Appeals agreed.

The Take-Away

Perhaps I’m being overly critical and the above case is – at worst – just a “close call” as to being a lawsuit that passes the smell test. That test is the short name for the court rules that require a lawsuit to be factually and legally warranted under existing law or offers a “good faith argument for the extension, modification, or reversal of existing law.”

But the guidelines set forth in this court rule often seem to be nothing more than an elastic Rorschach test that often becomes kryptonite to reason and only serves to shield clients and their lawyers against having to to take a step back from a particular situation and meaningfully recognize that having the power to file a lawsuit also requires using that power responsibly.

I am now stepping down from my soapbox to return to preparing a motion to dismiss and request for sanctions for having to respond to a shockingly legally and factually deficient lawsuit against a client who is frustrated beyond belief (and justifiably so) at how the legal system can be used for evil. Ok, maybe this last comment is a bit of hyperbole, but somedays getting bit by a radioactive anything seems like it would be better than the day job.

Excelsior true believers (a little tribute to Stan Lee)!