The American Bar Association Journal will publish a half-page apology, as well as pay an undisclosed sum, to settle attorney Richard A. Sprague’s claim that he was defamed when the magazine described him as “perhaps the most powerful lawyer-cum-fixer” in the state of Pennsylvania. (Dec. 5-6, 2001) Although the word “fixer” is widely employed to describe political wheeler-dealing of a lawful sort, a judge had ruled that it might also convey the impression that Sprague improperly “fixed” court cases. “In its answer to the suit, the ABA attached a list of more than 100 examples of prominent lawyers described as ‘fixers’ in such publications as The New York Times and the Washington Post.” (Shannon P. Duffy, “ABA, Sprague Agree to Settlement”, The Legal Intelligencer, Nov. 21).
Archive for November, 2003
Update: second cardiologist sued over alleged fen-phen fraud
“A second doctor was accused of fraud [earlier this month] in a federal lawsuit filed by the AHP Settlement Trust, the entity created to process claims related to the $3.75 billion fen-phen settlement.” (see Sept. 21, Sept. 25). The new suit alleges that a New York City cardiologist conspired with an unnamed law firm to submit medically unreasonable claims of heart valve injury, resulting in the payment of millions of dollars in claims. “Compensation was a motivating factor in the fraud, the suit alleges, noting that for each VHD [valvular heart disease] certification, Mueller allegedly received an immediate payment of $500 over and above the $900 he received for interpreting the echocardiogram. The suit alleges that Mueller received another payment of $1,500 following compensation to the claimant, earning more than $1 million.” Contingency fees for expert witnesses are not necessarily prohibited as such in American courtrooms, though they have been widely viewed with distaste by ethics authorities. (Shannon P. Duffy, “Fen-Phen Settlement Trust Sues Second Doctor for Fraud”, Legal Intelligencer, Nov. 17).
Update: Library Hotel settles Dewey suit
To settle a lawsuit by the Ohio-based library cooperative that owns the copyright to the Dewey Decimal System, the Library Hotel in New York City has agreed to make an unspecified payment to a nonprofit organization that promotes children’s reading and specify in its advertising that the copyright belongs to the nonprofit group. (“N.Y. Hotel Settle Dewey Decimal Case”, AP/Akron Beacon Journal, Nov. 25)(see Sept. 25).
Holiday posting
Posting will continue sparse through the weekend as we enjoy the Thanksgiving holiday and catch up on non-site obligations. See you in a few days.
Romo roundup
The LA Times article on the California court of appeals decision in Romo v. Ford Motor Co. (see Nov. 26 and links therein) shows how far the media has tilted in coverage of tort reform: there are lots of unchallenged complaints from the plaintiffs’ attorneys and their interest groups that a $29 million total award won’t be enough to deter wrongful behavior and will allow companies “to avoid liability and responsibility.” This is mathematically nonsensical: if 1 in 10,000 Ford Broncos were subject to such an award over the course of their lifetime, it would wipe out Ford’s profits and then some. And if fewer autos than that cause damage, then perhaps Ford’s behavior isn’t so “reprehensible”, notwithstanding the characterization of the appeals court? (Indeed, three of the twelve jurors refused to join the Romo verdict.) No one is quoted questioning whether $29 million is too much to award against an auto company for a 1978 Ford Bronco that had 200,000 miles on it at the time of the accident and which exceeded federal safety standards put in place years after the 1993 accident. (Lisa Girion and Myron Levin, “Appellate Court Cuts Huge Crash Case Award”, LA Times, Nov. 26). The good news is that the California Court of Appeal recognized that the size of the corporation is not grounds on which to award punitive damages: though the court does not say so, to base punitive damages on such a metric effectively punishes corporations for being big than for a particular course of conduct. (Washington Legal Foundation amicus brief before U.S. Supreme Court).
Relatively uncommented on: the same day the same California Court of Appeal reversed a $10 million punitive damages award against Ford in Johnson v. Ford, where a couple bought a used car and had to replace the transmission twice. The couple will still walk away with over $170,000 from Ford and the dealer for their trouble. Anyone think that a $170,000 hit on the sale of a used Taurus isn’t enough to deter selling used cars with problems? Update Feb. 15: case settles.
Disclosure: I represent Ford Motor Co. in other litigation.
Welcome National Review Online and Weekly Standard readers
At National Review Online, our Manhattan Institute colleague Jim Copland contrasts Hollywood’s oddly heroic image of the trial lawyer with the often socially destructive reality, citing the blame-shifting for profit exemplified in the Ninth Circuit’s recent Ileto v. Glock case (gun manufacturer, as opposed to criminal, gets sued over racist’s murder spree). (“Fiction to Fact”, Nov. 26) And the Weekly Standard, discussing the same case in its “Scrapbook” feature (Dec. 1, last item, “Shooting Blanks” — currently subscribers only) cites this commentary by Ted Frank on “the excellent website Overlawyered.com”. The Standard’s editorialists also point out that despite the plaintiffs’ elaborately spun theories of negligent distribution, the Glock in the case “was originally sold to a police department. … [In future,] manufacturers like Glock will presumably want to be wary about the kind of police departments they sell their firearms to.”
Enron bankruptcy costs expected to top $1 billion
Newsweek query (updated)
[Revised and updated, see below] Newsweek magazine is preparing a special feature on fear of litigation, and although we’ve been working with their writers for a while on it, they asked to hear directly from readers like you if you can offer personal examples from your own experience of how you’ve changed the way you do business, go to school, pursue recreation, etc. because of your or someone else’s fear of being sued. [Update 1 p.m. EST Wed. — Newsweek’s writer tells us that this notice has elicited enough of the sort of the material she requested, so we are taking down the contact info. Thanks to our readers, including those who cc’d us on their correspondence]
Appeals court slashes Romo punitives
“A California appeals court has cut a record $290 million punitive-damages verdict to $23.7 million for a Ford Bronco rollover accident that killed three people.” The decision in Romo v. Ford Motor is the largest award reduction yet following guidance from the U.S. Supreme Court in its April decision in a punitive damages case against State Farm. (David Kravets, “Court reduces $290 million verdict against Ford to $23.7 million”, AP/San Francisco Chronicle, Nov. 25). “As we read State Farm ? the legitimate state goal that punitive damages may seek to achieve is the ‘condemnation of such conduct’ as has resulted in ‘outrage and humiliation’ to the plaintiffs before the court,” Justice Steven Vartabedian wrote for [a unanimous panel of California’s 5th District Court of Appeal]. “It is not a permissible goal to punish a defendant for everything it may have done wrong.” (Mike McKee, “Punitive Damages Take Big Hit”, The Recorder, Nov. 26). The Romo trial itself in 1999 was remarkable for its combination of brazenly demagogic plaintiff’s arguments and bizarre jury deliberations: see Aug. 24, 1999, Sept. 17-19, 1999, Aug. 27, 2002 and more recent links. Update Feb. 15: case settles.
Celebrity edition Overlawyered entry
According to the New York Daily News, if Michael Jackson’s accuser sues him, it won’t be the first time he’ll be a plaintiff in a civil case. In 1998, the then eight-year-old was nabbed shoplifting with his parents in a JC Penney parking lot, resulting in a burglary charge. The confrontation turned violent, and a civil lawsuit was brought charging false arrest and battery. “As part of the settlement, charges against the family were dropped. The family collected $200,000.” (Matthew Heller et al., “Troubled past of kid & kin”, Nov. 25). A 1994 GQ article by Mary Fisher (reprinted various places on the Web) has some disturbing things to say about the parents of Jackson’s accuser of ten years ago–though the source of many of those allegations is Anthony Pellicano (see Nov. 11).
Meanwhile, Liza Minnelli and David Gest, at whose wedding Jackson was the best man, are now suing each other: The Smoking Gun has the his and hers lawsuits.