Chronicling the high cost of our legal system
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Having succeeded in winning a ruling that his beliefs in spiritualism and mediums qualify as a form of religious belief, Alan Power can proceed with his suit alleging that he was improperly dismissed because of them. His case “follows a landmark ruling last month that environmental views should be considered equivalent to religious and philosophical beliefs”. [Telegraph, Independent] (& welcome Popehat readers)
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The state of Rhode Island and town of West Warwick, the last major defendants left in the lawsuits over the Station/Great White fire, agreed to throw $10 million apiece into the settlement pot, which now reaches $175 million, to compensate the 200 injured and survivors of the 100 killed in the 2003 blaze. The town of West Warwick, population just under 30,000, is expected to have to borrow heavily to enable its payment; it has a $4 million insurance policy, but defense litigation costs will be deducted before any of that money is made available for the settlement (RedOrbit/ProJo, more, AP/Firefighting News via Childs).
Dozens of private companies named in the suits had settled earlier, including many with peripheral or remote connections to the calamity, such as beer sponsor Anheuser-Busch, which together with a beer distributor agreed to pay $21 million, and radio operator Clear Channel, which paid $22 million. West Warwick will wind up paying much less than that, although its negligent contribution to the disaster (in failing to enforce key provisions of its own fire code) would appear immeasurably greater. Earlier posts here.
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“Anheuser-Busch and a Cranston beer distributor have agreed to pay $21 million to settle lawsuits brought by survivors of a 2003 nightclub fire and relatives of the 100 people killed, according to court papers. The February 2003 fire at the Station nightclub in West Warwick began when pyrotechnics used by the rock band Great White ignited flammable soundproofing foam.” More than ninety defendants were sued, and the total of settlements has now topped $122 million from defendants “including Home Depot, which sold insulation used in the club, and Clear Channel Broadcasting, whose local rock radio station promoted the concert”. (”Rhode Island: New Settlement in Nightclub Fire”, AP/New York Times, May 24.)
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“Three more parties sued by victims of the [West Warwick, R.I.] Station nightclub fire have offered tentative settlements in the civil cases now pending in U.S. District Court.” Audio maker JBL, accused of including flammable foam in its speakers and amplifiers, is offering $815,000. “The other two parties offering to settle are ABC Bus Inc., and Superstar Services LLC, which provided bus transportation for the rock band Great White to The Station for its concert, as well as more than 25 kilograms of explosive fireworks material that the band carried on its road trip. Together they are offering $500,000.” (Tracy Breton, “3 more companies offer settlements in Station fire case”, Providence Journal, Mar. 27). Earlier: Feb. 2, etc.
This ad campaign from the Donato’s Pizza chain spoofs lowbrow law-firm TV advertising.
May 30-June 1 – “Judge Allows Lawyer to Add Shell Oil as Nightclub Fire Defendant”. Rhode Island: “Attorney Ronald Resmini, who sued for damages in federal court last month, said he added Shell Oil and its affiliate, Motiva Enterprises LLC, to his lawsuit because The Station nightclub owners distributed tickets to their club from a Shell gas station they owned. ‘They were giving away free tickets if you bought so much merchandise,’ Resmini said.” Lawyers’ quest for deep pockets has already resulted in the naming of brewer Anheuser-Busch and the town of West Warwick, among other defendants. (AP/MSNBC/7 News Boston, May 29). (DURABLE LINK)
May 30-June 1 – “Diet Drug Litigation Leads to Fat Fees”. “A federal judge in Philadelphia has awarded interim fees of more than $150 million to 83 plaintiffs’ law firms for their work in the massive fen-phen diet drug litigation that led to a $3.75 billion class action settlement. The interim fees are just a fraction of what the plaintiffs’ lawyers could ultimately earn, since it covers only work up to June 30, 2001. In their fee petition, the lawyers asked for $567 million.” (Shannon P. Duffy, The Legal Intelligencer, May 21)(see Sept. 27-29, 2002, and links from there). And, reports Texas Lawyer: “A group of Houston plaintiffs’ lawyers who were major players in fen-phen litigation in the late 1990s are now jumping into the ephedra arena and plan to use many of the tactics they learned in fen-phen suits in the new litigation.” Ephedra, an herbal remedy, promotes weight loss and energy but can have serious side effects. (Kelly Pedone, “Lessons Learned in Fen-Phen Suits Factor Into Ephedra Cases”, Texas Lawyer, Apr. 15)(see Sept. 10, 2001). (DURABLE LINK)
May 30-June 1 – “Buchanan & Press”. Viewers who tuned into the popular MSNBC debate show last night (Thurs.) saw our editor debate former ATLA president Barry Nace on the merits of Common Good’s “early offers” proposals for limiting lawyers’ contingency fees (see May 29) A full transcript is likely at some point to be posted here. (DURABLE LINK)
May 29 – Hold the gravy? Common Good, the reform organization headed by author Philip Howard, has launched a new campaign to limit the fees plaintiff’s lawyers can charge in cases that settle promptly. “The proposal would require plaintiffs’ attorneys to submit a notice of a planned lawsuit to defendants in contingency fee cases. If a settlement offer is made and accepted within 60 days of the notice, the attorney must charge an hourly rate that cannot exceed 10 percent of the settlement amount.” (Elizabeth Neff, “Plan Would Cap Contingency Fees”, Salt Lake Tribune, May 25). Petitions to this effect have been filed in recent weeks by lawyers working pro bono in Alabama, Arizona, California, Colorado, Maryland, Mississippi, New Jersey, New York, Ohio, Oklahoma, Texas, Utah and Virginia. (Daniel Wise, “Attorney Fees in Personal Injury Cases Targeted”, New York Law Journal, May 8; Adam Liptak, “In 13 States, a Push to Limit Lawyers’ Fees”, New York Times, May 26). (DURABLE LINK)
May 29 – Decorating for reconciliation. Okay, for a change, here’s a vignette that made us think maybe there’s hope for the profession: “Though hardly sentimental in the courtroom, Ms. Gold-Bikin [divorce attorney Lynne Z. Gold-Bikin of Philadelphia's Wolf, Block, Schorr & Solis-Cohen LLP] says she often urges settlement and, even, reconciliation…. Coupons for free marriage-counseling sessions are set out on the coffee table. … ‘I’m a divorce lawyer who believes in marriage. So I started collecting old wedding photos and licenses. Then I found that if I put them up around the office, clients would have to walk past them and, hopefully, think twice about what they were about to do. There are plenty of marriages we’re never going to save. But there are a lot we can work on. Many people who come here shouldn’t be getting divorced. They’re just stuck, and I hope this makes them reconsider.’” (Nancy D. Holt, “The rite of matrimony”, CareerJournal.com (WSJ), May 15; also appeared in Wall Street Journal, May 14, as the “Workspaces” column). (DURABLE LINK)
May 28 – Vitamin class action: some questions for the lawyers. Last month “appeal court justices in San Francisco did something unusual: They mailed out a letter asking lawyers in a massive vitamin price-fixing class action to explain a few things. Why, the 1st District Court of Appeal wanted to know, are so many law firms involved? How did the number of coordinated cases grow by 12 in one six-month period? How many out-of-state law firms are involved? Which of the defendants previously entered guilty or no contest pleas to criminal charges?” At least fifty class action law firms nationwide are hoping to split a $16 million fee pot, but Oakland, Calif. attorney Larry Schonbrun, the nation’s best-known objector to class actions, says there’s “no reason why much fewer law firms could not have handled this case”. And: “This is a money machine. It’s feeding at the trough.” (Mike McKee, “Enriching the Record”, The Recorder, May 27). (DURABLE LINK)
May 28 – “Sex, God and Greed”. Forbes on the priest scandals and the associated “litigation gold rush” which could leave the Roman Catholic Church facing $5 billion in payouts. “The lawyers who are winning settlements from Catholic dioceses are already casting about for the next targets: schools, government agencies, day care centers, police departments, Indian reservations, Hollywood. … The lawyers are lobbying states to lift the statute of limitations on sex abuse cases, letting them dredge up complaints that date back decades.” (Daniel Lyons, Forbes, Jun. 9). Sidebars: “Battle of the Shrinks” (role of recovered memory in some cases); “Heavenly Cash” (questionable claims). Our editor weighed in a couple of years ago on the practice of lifting statutes of limitation. (DURABLE LINK)
May 27 – “State is suing ex-dry cleaners”. California Attorney General Lockyer is suing retired owners of Mom-and-Pop dry cleaners in the town of Chico under the federal Superfund law, accusing them of pouring dry-cleaning chemicals down their drains decades ago. “Bob and Inez Heidinger — he’s 87, has Alzheimer’s disease and is blind in one eye; she’s 83, has bone marrow cancer and needs shoulder surgery” — are being sued for $1.5 million on charges (which they deny) of disposing of PCE in such a manner between 1952 and 1974, when they sold the business. Also being sued is “Paul Tullius, a 57-year-old retired Air Force pilot, and his wife, Vicki, who own a warehouse that last housed a dry cleaner in 1972 — 16 years before they bought the building without knowing its entire history.” “This is the most draconian law you could ever imagine,” says Tullius. “…Can you imagine what that does to your life? I’m sort of thinking this isn’t the country I thought it was.” (Gary Delsohn, Sacramento Bee, Apr. 28). (DURABLE LINK)
May 27 — Courtroom assault on drugmakers. A week or two ago the New York Times somewhat belatedly discovered that trial lawyers have ginned up a large amount of well-organized litigation against pharmaceutical makers over alleged side effects. (Alex Berenson, “Giant drug firms may face lawsuits”, New York Times/Oakland Tribune, May 18). Some reactions: Derek Lowe (”Because That’s Where the Money Is”, Corante, May 16), Ernie the Attorney (May 18), MedPundit (May 19), MedRants (May 19), William Murchison (”Lawyers Who Make You Sick”, syndicated/TownHall, May 20) (the last of these via SickofLawsuits.org, a new health-focused site associated with the Citizens Against Lawsuit Abuse tort reform groups). (DURABLE LINK)
May 24-26 – “‘Trial Lawyers Get Spanked’”. Our editor had an op-ed Friday in the Wall Street Journal celebrating the Florida appeals court’s striking down of the absurd $145 billion class action verdict in the Engle tobacco case. (Walter Olson, WSJ/ OpinionJournal.com, May 23). Other columns on the decision include Jacob Sullum, “Appealing Price”, syndicated/Reason.com, May 23, on the appeals bond issue; and George Will, “The States’ Tobacco Dilemma”, syndicated/Washington Post, May 23, on the hypocrisy of state governments. (DURABLE LINK)
May 24-26 – Hitting the jack-potty. “A city worker has hit the jack-potty. Cedrick Makara, 55, scored a $3 million jury verdict last week because he hurt his thumb trying to get out of the john of a Manhattan building where he works.” The building’s manager and owner are on the hook. The stall in question “had a missing doorknob. [Attorney Sheryl] Menkes said Makara reached his hand through a hole where the knob should have been and pulled the door toward him just as someone entering the bathroom pushed the door in,” causing him to injure tendons in his thumb and miss six months of work as a city claims examiner. (Helen Peterson, “He’s flush after $3M potty suit”, New York Daily News, May 21). More: Boots and Sabers comments on the case (May 25). (DURABLE LINK)
May 22-23 – Court overturns $145 billion Engle award. Not to say “we told you so” about yesterday’s Florida appellate decision reversing the tobacco-suit atrocity, but, well, we did tell you so back in 1999: “The smart money is betting last week’s Miami anti-tobacco jury verdict will be overturned on the issue of class certification — whether every sick Florida smoker should have been swept into a class suing cigarette makers despite vast differences among individuals on such issues as why they decided to smoke or quit.” We had more to say about the case, also in the Wall Street Journal, a year later (July 18, 2000), as well as on this site. The latest decision is on FindLaw in PDF format and a very fine decision it is indeed — if this keeps up, the Florida courts may start getting their reputation back (Manuel Roig-Franzia, “$145 Billion Award in Tobacco Case Voided”, Washington Post, May 21). (DURABLE LINK)
May 22-23 – Must be why the show has so many fans. Received recently from the publicity department at St. Martin’s Press, publisher of our editor’s latest book: “The Rule of Lawyers by Walter Olson will be a prop in the show, Sex and the City! It will be a prop in Miranda’s apt. thoughout the season. The pilot airs early June.” (DURABLE LINK)
May 21 – Update: McMahon’s mold claim worth $7 mil. “Entertainer Ed McMahon reaped a $7 million settlement from several companies he sued for allowing toxic mold to overrun his Los Angeles home and kill his beloved dog, a national mold litigation magazine reported”. (”McMahon Gets $7 Mln in Toxic Mold Lawsuit – Report”, Yahoo/Reuters, May 7)(see Apr. 25, 2002). Addendum: blogger Stu Greene writes, “I wonder if the Prize Patrol delivered one of those oversized novelty checks with balloons tied to it.” (May 21) (DURABLE LINK)
May 21 – Auto-lease liability: deeper into crisis. Honda has become the latest automaker to announce that it will stop leasing new cars to buyers in New York, Connecticut and Rhode Island (see Mar. 12-14, 2003, Aug. 26, 2002). The problem is 1920s-era “vicarious liability” laws in those three states, fiercely guarded by the trial lawyer lobby, which expose leasing and rental car companies to unlimited personal injury claims when their customers get into accidents. Honda’s pullout follows withdrawals this spring by GM and Ford as well as by J.P. Morgan Chase, a major provider of auto financing in the Northeast. (”Industry report: Honda to stop leasing in 3 states”, Detroit Free Press, May 20 (scroll down); “American Honda Finance Corp. to Suspend All Leasing In Three States”, PR Newswire, May 19; “Auto lease fleece” (editorial), New York Daily News, Apr. 22 (scroll down); SaveLeasing.com; “Ford Blames Liability Law for Decision to Stop Leasing Cars in NY”, Insurance Journal, Apr. 7; Zubin Jelveh, “Leasing Companies Exit Left and Right”, Newsday, May 4). “More than $1.5 billion in such claims are pending in New York, said Elaine Litwer, legislative coordinator for the National Vehicle Leasing Association…. [Proponents of easing the law] received a big boost last month when the 75,000-member New York State Bar Association split from the trial lawyers and said the vicarious liability law was never meant to apply to leases and supported changes.” (Barbara Woller, “GMAC leaves New York’s auto leasing market”, Journal News (Gannett, Westchester County), May 1; John Caher, “State Bar, Trial Lawyers Part Ways on Tort Reform”, New York Law Journal, Apr. 8). More: Jun. 9, 2003; Sept. 5, 2004. (DURABLE LINK)
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April 10-13 – Posting slowdown. Updates will be sparse for a while as our editor responds to a family emergency. See you, most likely, early next week. (DURABLE LINK)
April 10-13 – Public Citizen’s bogus numbers. The supposed consumer group now concedes that it put out erroneous numbers which made Pennsylvania doctors look artificially bad (”Watchdog group backs off claim that Pa. doctors top nation’s repeat malpractice payouts”, AP/Scranton Times, Apr. 2; see our Mar. 15-16 report). In January, in a move timed to undercut President Bush’s Scranton speech calling for malpractice reform, Public Citizen claimed that 10.6 percent of Keystone State doctors had paid out on more than one malpractice allegation; it now admits it can verify only a figure of 5.4 percent. The false numbers were widely reported in the press, and the AP last week published an unusual correction (AP/Kansas City Star, Apr. 4). Pennsylvania Medical Society spokesman Chuck Moran called for Public Citizen to apologize: “It’s ironic that they initiated a report called ‘Medical Misdiagnosis: challenging the malpractice claims of the doctor’s lobby’, when, in fact, they are the ones that misdiagnosed the situation.” The accuracy of the group’s figures have also been challenged in Colorado (”Monitoring malpractice” (editorial), Denver Post, Mar. 10).
There is at any rate a more fundamental problem with the litigation lobby’s contention that the current crisis is caused by a small number of bad doctors who attract most malpractice suits and should simply be driven out of practice. As Binghamton, N.Y. neurologist Dr. Jeffrey Riben points out, the number of malpractice lawsuits doctors face often have less to do with their competence than with their specialty and geographic location. “If you look around at physicians that get sued a lot, they tend to be highly prestigious names, people who get difficult cases in difficult specialties where the results are predestined not to be as good as those of people who handle simpler cases, Riben said. ‘Those are the people who have litigation. So it you want to eliminate those people with multiple suits, you would have to eliminate all of our neurosurgeons, all of our orthopedic surgeons, all of our obstetricians, anybody working in an emergency room and everybody reading mammograms,’ he said. ‘I think you would agree if we eliminated those specialties we would not improve health care.’” (Eric Durr, “Docs, public interest groups battle over malpractice issues”, Albany Business Review, Mar. 14). (DURABLE LINK)
April 10-13 – Employers liable for not filtering raunchy spam? At least if workers have complained, employers may be at risk of liability under sexual harassment law if they fail to install blocking software on email inboxes, say various legal experts. Quotes our editor (Declan McCullagh, “Por nspam: Are employers liable?”, CNET News, Apr. 7) (DURABLE LINK)
April 10-13 – Best and worst state courts for business. The U.S. Chamber of Commerce releases the results of a detailed Harris poll of business respondents. The “top five states today as evaluated by corporate America at doing the best job at creating a fair and reasonable litigation environment are: Delaware, Nebraska, Iowa, South Dakota, and Indiana whereas in 2002 Delaware, Virginia, Washington, Kansas, and Iowa were listed as the top 5. The worst perceived states today are: Mississippi, West Virginia, Alabama, Louisiana, and Texas, exactly the same as in 2002.” California scores low marks for punitive damages and treatment of class actions; Hawaii is criticized for onerous discovery and the difficulty of getting weak cases thrown out quickly; New York and Minnesota win plaudits for their handling of scientific and technical evidence. Where does your state rank? (overview) (press release in PDF format) (poll results as Word document) (press conference) (DURABLE LINK)
April 9 – Schools roundup. In Camden, N.J., second grade teacher Eileen Blau has sued student Daniel Allen for running into her in a school hallway at an “excessive rate of speed”, thus inflicting “severe and multiple injuries, some of which are permanent in nature,” according to her suit. Young Allen, who at the time of the incident was 11 and weighed about 90 pounds, didn’t know his family was the target of a claim until the sheriff’s deputy showed up at the door. “He didn’t understand why someone would want to do this to him,” said his mother. “He said ‘Why does she hate me? Why is she doing this. I said I was sorry.’” (Bill Duhart, “Teacher sues student over hall collision”, Cherry Hill, N.J., Courier-Post, Mar. 29). The American Bar Association Journal presents an overview of suits arising when girls aren’t picked for the cheerleading squad (Stephanie Francis Cahill, “Bring It On”, Apr. 4; see Jun. 4, 2001). And “[a] group of attorneys who sued Mississippi schools for millions of dollars on behalf of custodians, bus drivers and cafeteria workers has turned to Alabama, filing more than 60 similar lawsuits”. (Scott Parrott, “Local school systems sued”, Tuscaloosa News, Apr. 4). More on the Jackson, Miss.-based School Litigation Group, which according to one of its principals, former congressman and secretary of agriculture Mike Espy, “takes a contingency fee of between 40 percent and 50 percent, depending on the complexity of the case”: Gary Young, “Overtime Suits 101″, National Law Journal, Mar. 19. (DURABLE LINK)
April 7-8 – Bag of treasures. Cornell Curry, 57 and homeless in New York City, says the Partnership for the Homeless’s drop-in center on W. 23rd St. negligently lost a duffel bag of his belongings last fall; he had been unable to stop by to retrieve the belongings because he was spending three weeks in jail after being arrested for public urination. The shelter “admits it did toss one of Curry’s bags in the garbage, but said that one contained only three soiled pieces of clothing.” Au contraire, says Curry in his lawsuit: he avers that the contents of the lost duffel bag included “an $18,000 star sapphire ring, a $4,000 gold watch, $200 in cash and ‘extremely valuable’ photographs, including his parents’ 1937 wedding photo”, entitling him to $2 million in compensatory and $2 million in punitive damages. Last month Manhattan Supreme Court Justice Rosalyn Richter denied a motion to throw out the claim: “It is simply too early to resolve whether the plaintiff did, in fact, leave the bag in the defendant’s possession and whether the plaintiff also shares some responsibility for the alleged loss,” Richter said. (Helen Peterson, “Homeless, or Mister money bag?”, New York Daily News, Mar. 20). (DURABLE LINK)
April 7-8 – Malpractice crisis hits sports-team docs. Some of organized sports’ most memorable highlights have come when athletes played through pain and injury, but increasingly the result is to create a risk of litigation against team physicians, who are exposed to monetary damages that are potentially enormous given their patients’ potential loss of earning power. Some doctors are withdrawing from the care of professional athletes, and organized football is discussing schemes to indemnify team doctors for their escalating insurance bills. (Jason Cole, “With malpractice rates skyrocketing, many doctors are hesitant to care for professional athletes”, Miami Herald, Apr. 2). Our editor’s Feb. 27 Wall Street Journal piece on lawsuits blaming obstetricians for cerebral palsy is now online, thanks to the folks at Texans for Lawsuit Reform. And welcome readers from Sydney Smith’s excellent medical weblog MedPundit, which has run posts in recent weeks on California’s MICRA and insurance rates, what happens to patients who win awards (plus North Carolina crisis notes), the problem with physician “report cards”, Public Citizen, and a link to this Tallahassee Democrat op-ed (Mar. 3) on how Florida’s malpractice crisis is harming its medical schools. (DURABLE LINK)
April 7-8 – Edwards leads in fund-raising. The North Carolina senator aces his Democratic rivals in the White House money race: “The key to Edwards’ success may have come from trial lawyers, a group of which Edwards is a part and from whom he received 80 percent of political action committee money in recent years.” (”Dem Presidential Hopefuls Compete for Cash”, FoxNews.com, Apr. 2; Richard A. Oppel, Jr., “With $7 Million in Donations, Kerry Trails Democratic Rival”, New York Times, Apr. 3). However, a January poll conducted for the Raleigh News & Observer found the senator none too popular in his home state: “The poll found that 47 percent of active Tar Heel voters disapprove of Edwards’ decision to seek the presidency, while 37 percent approve”. (”Poll: Edwards wouldn’t beat Bush in North Carolina”, AP/Charlotte Observer, Jan. 18) (via “Robert Musil“). (DURABLE LINK)
April 7-8 – U.K.: “Killer wrongly sacked for axe attack”. “A convicted murderer who tried to attack a colleague with an axe was wrongly sacked from his job, an employment tribunal ruled yesterday.” The tribunal in the British Midlands ruled that Preston city council was wrong to fire James Robertson, 50, without notice from his health inspector post after he “brandished the [axe] in an Indian restaurant in Preston after an argument”. However, the tribunal ordered the council to pay only “two weeks’ wages, or £807, for breach of contract,” rejecting a plea for more extensive compensation by Robertson, who “gave evidence while handcuffed to a prison guard.” The council “had employed him when he was released from jail on licence after being convicted of kicking a man to death in Glasgow in 1971.” (Daily Telegraph, Apr. 3) (& welcome Dave Barry readers — the great humorist generously calls us “the always fascinating Overlawyered.com” (archives not working, Apr. 7)). (DURABLE LINK)
April 4-6 – Gun lawsuit preemption moves forward. On Wednesday a House Judiciary subcommittee held a hearing on H.R. 1036, the Protection of Lawful Commerce in Arms Act, which would “prohibit civil liability actions from being brought or continued against manufacturers, distributors, dealers, or importers of firearms or ammunition for damages resulting from the misuse of their products by others.” Our editor testified in favor of the measure (his prepared statement). The proceedings were televised live on C-SPAN III and rebroadcast overnight on C-SPAN II (schedule, Apr. 2). Yesterday the full House Judiciary Committee gave its approval to the legislation, with Virginia Democrat Rick Boucher joining all panel Republicans in support of the measure. John Tierney’s New York Times account (”A New Push to Grant Gun Industry Immunity From Suits”, Apr. 4) quotes our editor on the subject and mentions The Rule of Lawyers (see second page of article). (DURABLE LINK)
April 4-6 – C-SPAN again. Speaking of C-SPAN II, the network’s “BookTV” feature will be rebroadcasting our editor’s Manhattan Institute speech on The Rule of Lawyers at 3:30 p.m. Eastern on Saturday, April 5. (DURABLE LINK)
April 4-6 – A bond too far. Even the editorialists of the New York Times agree that it’s “absurd” and “the kind of ruling that erodes the credibility of our legal system” to require Philip Morris to post a ruinous $12 billion bond before it can appeal the class action ruling of a judge in plaintiff-friendly Madison County, Ill. (”Too Costly an Appeal”, New York Times, Apr. 4)(see Wednesday’s post; more). “As for Judge [Nicholas] Byron, it’s difficult to divine if he was playing jurist or friendly croupier. He sought to sweeten the pot by awarding the State of Illinois $3 billion in punitive damages, out of the total $10.1 billion judgment.” (”A Madison County jackpot”, Chicago Tribune, Apr. 2). Perhaps influenced by the prospect that the state will be thrown this slice of the booty, the Illinois Senate is refusing (for now) to lift a finger to reduce the bonding requirement (”Panel nixes bill to help Philip Morris”, Chicago Sun-Times, Apr. 4)(Update Apr. 30: judge agrees to reduce bond somewhat). (DURABLE LINK)
April 2-3 – Appeals bonds, again. Once again the business end of an otherwise outlandish mega-verdict turns out to be the requirement that a defendant post a bond before it can appeal: Philip Morris says it is unable to put up the requisite $12 billion needed to appeal the recent Madison County, Ill, verdict against it (see Mar. 24). Officials of the fifty states are running around in near-hysteria: they’re bothered not by the possible injustice or community-and-investor disruption involved in bankrupting the giant company, whose holdings include Kraft Foods and Oscar Mayer, but instead by the prospect that an insolvency will jeopardize the flow of billions of dollars into their own coffers under the tobacco settlement. So the AGs, supposedly second to none in their loathing of the tobacco companies, are making noises about intervening to try to get the appeals bond requirement lowered. This is the second time around (at least) for this issue: state governments also mobilized after the Engle tobacco case in Florida threatened bonding requirements high enough to destroy the industry. See also the Loewen case (Ameet Sachdev, “States line up against smoking case bond”, Chicago Tribune, Apr. 1; Neil Buckley, “Philip Morris ‘cannot afford’ $12bn bond”, Financial Times, Apr. 1; “Philip Morris woes hurt stock”, AP/Seattle Times, Apr. 1; “Appeals bond a symptom of need for tort reform”, Bloomington (Ill.) Pantagraph, Apr. 1; related). (DURABLE LINK)
April 2-3 – After the R.I. club fire. “Ignoring calls from peers to hold off on lawsuits for now, a Providence lawyer [earlier this month] fired the second salvo in what is expected to become a barrage of litigation resulting from the fire at The Station. The lawsuit was filed in Providence Superior Court on behalf of Lisa Kelly of Swansea, a 27-year-old single mom who was among the 99 people killed in the Feb. 20 blaze at the West Warwick, R.I., nightclub. The lawsuit was filed by Ronald Kingsley, the father of Kelly’s daughter, Zoe Jean Kingsley. Kelly’s mother, Barbara Nagle of Attleboro, yesterday said she knew nothing about the suit and that Kingsley hadn’t had any contact with his daughter in three years as far as she knew….
“The latest lawsuit names 19 individuals and companies as defendants, including the St. Louis-based beer giant Anheuser-Busch Inc., whose Budweiser brand accompanied some advertising for the ill-fated show. Anheuser-Busch Inc. yesterday denied any role in promoting or sponsoring the concert in a statement sent to the Herald. ‘The company that distributes Anheuser-Busch Inc. products in Rhode Island is an independent business that has the right to use our beer brand name in its advertising,’ wrote Stephen Lambright, a company lawyer.” (Thomas Caywood, “Second suit filed over fire at Station”, Boston Herald, Mar. 11)(see Mar. 10-11). See also Roger Parloff; “Where There’s Smoke, There’s Ire”, Fortune, Mar. 19; Deroy Murdock, “Lawyers turn tragedy to farce”, Scripps Howard/Naples, Fla. Daily News, Mar. 28. (DURABLE LINK)
April 2-3 – “Mayor: WTC Personal Injury Suits Could Bankrupt NYC”. “New York City Mayor Michael Bloomberg on Monday warned that personal injury lawsuits filed by people who claim their long-term health was damaged by the clean-up of the World Trade Center site could bankrupt the city in the next 20 years.” (Reuters/Yahoo, Mar. 31). See also Paul Howard (Manhattan Institute), “A 9/11 Tort-Fest”, New York Post, Aug. 10, 2002, and New York Law Journal coverage: Mark Hamblett, “9/11 Victims’ Suits Flood Court to Meet One-Year Time Limit”, Sept. 11; Tom Perrotta, “New York City Creates Unit for Suits From Sept. 11″, Sept. 12; Daniel Wise, “Sept. 11 Fund Master Found to Give ‘Fair Compensation’”, Oct. 2). (DURABLE LINK)
April 1 – Maybe crime pays dept.: not an April Fool’s joke. Gerald Skoning’s annual National Law Journal roundup of the year’s weirdest cases in labor and employment law includes the following gem: “Richard N. Shick — while employed as a caseworker in the Illinois Department of Public Aid — robbed a convenience store in Joliet, Ill., armed with a sawed-off shotgun. Afterward, he sued the department, claiming that he was discriminated against because of his disabilities and his sex, the trauma of which caused him to commit the robbery. The jury awarded him $5 million in damages and $166,700 in back pay. The U.S. District Court for the Southern District of Illinois partially vacated and dismissed the judgment, but awarded $303,830 in front pay, even while he serves a 10-year sentence. Thankfully, the 7th Circuit reversed.” (”Legal Weirdness at Work”, Mar. 26; Gail Diane Cox, “Here’s the tort reform poster boy for 2002″, National Law Journal, Oct. 28). Also on Skoning’s list: voodoo signs ruled not an unfair labor practice; employer dodges harassment charge after conduct is ruled “even-handedly offensive” rather than discriminatory; hemorrhoids not a protected disability under ADA. (DURABLE LINK)
March 20 – Kids’ art on walls ruled a fire hazard. In what might be a bit of an overreaction to the recent deadly nightclub blaze in West Warwick, R.I., the Fire Department and building inspector of Attleboro, Mass. “sent word this month to the public schools: From now on, zero tolerance for breaking fire codes. Those bright-colored handprints and cheery stick figures have got to come down from the walls.” School board member Richard Correia “wonders, in this cautionary age, what might be next to go. ‘What do we do about our children who hang their coats in those little closets?’ Correia said. ‘Are they fire retardant?’” (Joanna Weiss, “Does future of art ed hang on safety”, Boston Globe, Mar. 12). (DURABLE LINK)
March 20 – Florida: “New clout of trial lawyers unnerves legislators”. Trial lawyers have built a position of powerful influence in the Florida legislature, in particular by “[s]upporting Republicans who have shown an appreciation for the civil justice system”, as a trial lawyer official puts it. In what Gov. Jeb Bush called “kind of a breath-taking example of their power”, the president of the state senate couldn’t even get a hearing in his own chamber for one of his major priorities, a bill to limit pain-and-suffering damages in fast-growing litigation against nursing homes (see Mar. 19). Limits on medical malpractice suits may be doomed in the state as well (Alisa Ulferts and Michael Sandler, St. Petersburg Times, Mar. 17). (DURABLE LINK)
March 19 – Jury clears Bayer in cholesterol-drug case. In perhaps the most widely watched product liability trial of the year so far, the New York Times may have bought the plaintiff’s lawyers’ case, but a Corpus Christi jury didn’t, and awarded $0.00 instead of the requested $560 million. Just another 8,400 plaintiffs to go, of whom the “vast majority”, according to Bayer’s lawyer, are not in fact injured (”Jury Clears Bayer of Liability in Baycol Suit”, AP/Quicken, Mar. 18; “Bayer lawyer: Most Baycol plaintiffs not injured”, Reuters/Forbes, Mar. 18) (DURABLE LINK)
March 19 – $12,000 a bed. “Nursing homes [in some states] now pay close to $12,000 per bed annually on liability insurance, according to [a new] report [by AON Risk Consultants].” Nationally, liability costs per bed grew from an average of $300 annually a decade ago to $1,120 in 1997 and $2,880 in 2002, according to the study. Defenders of rising litigation say it provides long-overdue recourse against bad care, but the former administrator of the recently closed Gadsden Nursing Home in Quincy. Florida, doesn’t buy the idea that only poorly run homes can expect to be sued. “‘We were ranked 51st out of 668 homes in the state the day we closed. If you’re ranked in the top 7.5%, you’re not a bad home,’ he said.” (Reuters Health, “Legal liability costs surge for US nursing homes”, Mar. 14). (DURABLE LINK)
March 18 – Would you go into medicine again? “Then there is the issue of so-called malpractice — a rapidly growing income-transfer system from doctors to lawyers that, quite apart from its toll on doctors, gives injured parties ever-diminishing shares of the proceeds. … [T]here must be a system for removing from practice those physicians who are guilty of multiple errors. (As I know from my service on the D.C. Medical Society’s disciplinary committee, this is now, ironically, made exceedingly difficult by the threat of suit from those under scrutiny.)” (Devra Marcus, “I’m a Doctor, Not an Adversarial Unit of the Health Care Industry”, Washington Post, Mar. 16). (DURABLE LINK)
March 18 – “Runaway asbestos litigation — why it’s a medical problem”. One doctor’s view of the morass (Lawrence Martin, M.D., MtSinai.org, Nov. 18, 2002. The site relates to Cleveland’s former Mt. Sinai hospital, not the one in New York). (DURABLE LINK)
March 17 – Australian roundup. Sued if you do, sued if you don’t dept.: “A netball star banned from playing because she was pregnant was awarded $6750 yesterday for hurt, humiliation and loss of match payments. … Netball Australia excluded any pregnant women from playing because of fears of legal action over injuries to mothers or unborn babies.” (Ellen Connolly, “Banned pregnant netballer wins damages for discrimination”, AAP/Sydney Morning Herald, Mar. 14). “A woman whose little finger was cut while working on a processing line at a doughnut factory has been awarded damages of [A]$467,000″. (Leonie Lamont, “Cut little finger reaps $467,000 damages”, Sydney Morning Herald, Mar. 12). “Non-lawyers are constantly baffled by legal decisions that seem to have little to do with reality, let alone justice,” opines commentator Evan Whitton, offering some examples from the Down Under legal scene (”The law of diminishing reality”, Sydney Morning Herald, Dec. 12). (DURABLE LINK)
March 17 – Steering the evidence: an update. Forbes follows up on the episode described in our May 23 and June 26, 2000 posts: “In June 2000 a judge found that three Texas lawyers (or someone they hired) had tampered with evidence in a $2 billion suit blaming Chrysler for a deadly car crash. The judge slapped the San Antonio lawyers with nearly $1 million in sanctions — one of the largest such penalties in memory. Last August an appellate court called the lawyers’ conduct ‘an egregious example of the worst kind of abuse of the legal system.’ And now the FBI is investigating the trio’s actions.
“What’s happened to the lawyers? Not much. Two are still practicing in Texas and the third moved out of the country. Only $289,000 of the penalty has been paid to Chrysler.” (Joann Muller, “Crass Actions”, Forbes, Mar. 31).(& update Jun. 10). (DURABLE LINK)
March 15-16 – “Public deceit protects lawsuit abuse”. The Pennsylvania Medical Society excoriates Nader’s Public Citizen for putting out a report on the Keystone state malpractice situation that the physicians say was marred by such basic errors as double and triple counting (legislative testimony, society president Edward H. Dench, Jr., MD, Mar. 5; press release, U.S. Newswire/ Boston.com, Mar. 5). We regret to inform the good docs that it seems to be a hopeless task — you can expose Public Citizen’s output as shoddy as frequently as you like, but much of the media will go right on treating it as gospel. And Radley Balko looks at the U.S. Public Interest Research Groups — which cooperate with the rest of the Nader empire in fighting litigation reform — reminding us of just how disreputably the PIRGs get their money (”Public Shakedown Artist”, TechCentralStation.com, Mar. 3). Mickey Kaus also comments (scroll to Mar. 13). Update: more flak for the PIRGs’ New York affiliate, NYPIRG (David E. Seidemann, “Scrutinizing the Nader Legacy”, Health Facts & Fears (American Council on Science and Health), Mar. 2, 2004) (via Megan McArdle). (DURABLE LINK)
March 15-16 – Class action lawyer takes $20 million from defendant’s side. Eyebrows arch as mass-tort lawyer Joe Rice, best known for the tobacco caper, cuts a deal in which Swiss-owned asbestos defendant ABB agrees to pay him $20 million personally for settling his clients’ pending claims against ABB subsidiary Combustion Engineering; Rice will also, of course, receive a contingency share of what the clients get (Alex Berenson, “Class-Action Lawyer’s Fee Under Scrutiny”, New York Times, Mar. 12). (DURABLE LINK)
March 12-14 – “Automakers may stop leasing vehicles in N.Y.” Major automakers and lenders are pulling out of the auto-lease business in New York, Connecticut and Rhode Island, where laws allow leasing companies to be sued (in their role as titular owners) after a driver of one of their cars gets into an accident. (Kenn Peters, Syracuse Post-Standard, Mar. 11). “General Motors Acceptance Corp. notified dealers [in January] that it will quit buying leases in New York, Connecticut and Rhode Island later this year unless those states change their ‘vicarious liability’ laws, which is unlikely.” (Jim Henry, “GMAC may end leases in three states”, Automotive News, Jan. 15). New York’s state senate has passed a bill repealing the doctrine, but it is given little chance of success in the trial-lawyer-dominated Assembly. Already many lease providers have hiked consumer fees by $600 or so in the high-liability states, a change that affects a large number of consumers, since around a third of cars sold are leased. Trial lawyers are the main power defending the vicarious laws. See also “Repeal sought of 18th-century doctrine affecting car leasing”, AP/Stanford Advocate, Mar. 10; Amy Forliti, “Lender’s pullout hurts R.I. leasing business”, AP/Boston Globe, Feb. 25. For our earlier coverage, see Aug. 26, 2002. (& see update May 21: Honda, GM, Ford, Chase all announce pullouts)
In another ambitious application of vicarious liability, the city of Detroit has argued — and a Michigan appeals court has agreed — that it can go after Ford Credit in court to collect unpaid parking tickets of drivers who lease through Ford; the ruling does however require case-by-case hearings on who was in control of the vehicles at the time of the infractions (”Appeals Court OKs Hearings Over $1M Unpaid Parking Tickets From Ford Credit Leased Vehicles”, Detroit News/Automotive Digest, Jan. 7; Robert Lane, “Ford Can Be Held Vicariously Responsible For Parking Fines”, Blue Oval News, Feb. 4) (via WSJ Best of the Web, Feb. 4). (DURABLE LINK)
March 12-14 – Sports mascots litigation. ESPN does a roundup, noting that the giant stuffed animals and other mascots “spend an inordinate amount of time in the courtroom” (Patrick Hruby, “Page Two: The seedier side of fur and fun” — see “Mascot Court Report” sidebar, Feb. 12). (DURABLE LINK)
Point of Law