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ARCHIVE -- AUGUST 2001
(III)
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August 31-September 2
-- Study: DPT and MMR vaccines not linked to brain injury.
Some children experience fever and febrile (fever-related) seizures after
being given the diphtheria- tetanus- pertussis (DTP) vaccine and measles,
mumps, and rubella (MMR) vaccine and it has long been feared, to quote
the New York Times's summary of a massive new study, "that those
rare fever-related seizures may be linked to later autism and developmental
problems. The fears are unfounded, the [new] study concluded."
The study, which appears in the New England Journal of Medicine,
was of medical data for 639,000 children and was conducted with the assistance
of the Centers for Disease Control and Prevention. "There are significantly
elevated risks of febrile seizures after receipt of DTP vaccine or MMR
vaccine, but these risks do not appear to be associated with any long-term,
adverse consequences," concludes the abstract.
All of which comes too late to prevent the legal devastation of much
of the childhood vaccine industry
at the hands of trial lawyers, an episode that climaxed in 1986 when Congress
stepped in and established a no-fault childhood vaccine compensation program
(see Nov. 13, 2000). According
to the Washington Post, one Milwaukee lawyer alone "has won million-dollar
judgments or settlements in nearly a dozen DPT cases." "The jury
hated the drug companies so bad when we got through with them that they
would have awarded money no matter what," boasts the lawyer, Victor Harding.
(Arthur Allen, "Exposed: Shots in the Dark", Washington Post Magazine,
Aug.
30, 1998). If the new study is correct, however, the vaccines
may not have been responsible for the occurrences of permanent developmental
disability that so often led to high awards. Worldwide alarm over
the vaccines' feared side effects, stoked in no small part by the litigation,
contributed to a decline in immunization rates that resulted in a resurgence
of the diseases in several countries, killing many children. (DURABLE
LINK)
SOURCES: William E. Barlow, Robert L. Davis et al, "The
Risk of Seizures after Receipt of Whole-Cell Pertussis or Measles, Mumps,
and Rubella Vaccine", New England Journal of Medicine, Aug. 30 (abstract);
Philip J. Hilts, "Study Clears Two Vaccines of Any Long-Lasting Harm",
New York Times, Aug.
30 (reg); and dueling headlines: Daniel Q. Haney, "Two Vaccines Linked
to Seizures", AP/Yahoo, Aug.
29, and Gene Emery, "Researchers: Vaccines Carry Little Risk of Seizures",
Reuters/Yahoo, Aug. 29. Adds AP: "In April, an Institute of Medicine
committee issued a report saying there is no evidence that MMR causes autism,
as some have speculated." (more)
August 31-September 2
-- Radio daze. The nation's largest radio chain,
Clear Channel, is known for hardball lawyering -- as when it sued Z104,
a rival station in Washington, D.C., for having the temerity to hold a
listener contest in which the prize was tickets to an outdoor concert in
Los Angeles staged by a Clear Channel subsidiary. Violated
their client's "service mark",
the lawyers said (Frank Ahrens, "Making Radio Waves", Washington Post,
Aug.
22).
August 31-September 2
-- "Man Pleads Guilty to Use of Three Stooges' Firm in Fraud Scheme".
In Lubbock, Texas, Patrick Michael Penker has admitted bilking banks and
other institutions out of $1 million in a scheme in which he "used the
name of the slapstick comedy trio's fictional law firm Dewey, Cheatham
and Howe to obtain cashier's checks" (more
on that illustrious firm: Google search). "It did seem just a bit unusual
for a company name," said a bank officer who alerted the FBI (AP/FoxNews,
Aug. 27).
August 29-30 --
Washington Post on class action reform. "No portion
of the American civil justice system is more of a mess than the world of
class actions. None is in more
desperate need of policymakers' attention." Excellent Post
editorial which should help fuel reform efforts ("Actions Without Class"
(editorial), Washington Post, Aug.
27).
August 29-30 --
Firefighter's demand: back pay for time facing criminal rap.
David Griffith, a Hispanic firefighter in Des Moines, Iowa, "has sued city
officials, alleging racial bias in their refusal to give him back pay for
a leave of absence after he was arrested." Griffith went on a six-month
unpaid leave after he "was arrested in December 1999 on three counts of
third-degree sexual abuse involving a then-22-year-old woman. The
charges were dropped in May 2000 after Griffith pleaded
guilty of assault with intent to inflict injury and harassment. ...
In his lawsuit, Griffith said he 'was treated less favorably than non-Hispanic
employees and believed such treatment was based on race'. ... City attorney
Carol Moser said Des Moines officials never forced Griffith to take a leave
of absence but simply granted his request." (Jeff Eckhoff, "D.M. firefighter
sues for back pay after arrest, alleges discrimination", Des Moines Register,
Aug.
24).
August 29-30 --
"Trolling for Dollars". Lawyers are turning aggressive
patent enforcement into a billion-dollar
business, and companies on the receiving end aren't happy about it (Brenda
Sandburg, "Trolling for Dollars", The Recorder, July 31).
August 29-30 --
Negligent to lack employee spouse-abuse policy? The husband
of a Wal-Mart employee in Pottstown, Pa., came to the store and shot her,
then killed himself. Now her lawyer is suing the retailer, arguing
(among other theories) that it should have had a policy to protect its
employees from spousal abuse.
(Shannon P. Duffy, "Employee Sues Wal-Mart Because Store Didn't Protect
Her From Husband's Attack", The Legal Intelligencer, Aug. 24).
August 29-30 --
Updates. Further developments in perhaps-familiar cases:
* Extremist animal-rights group PETA, which not long ago cybersquatted
on the domain ringlingbrothers.com where it posted anti-circus material,
has prevailed in its legal battle (see July
3, 2000) to wrest the domain peta.org away from a critic which had
used it for his contrarian "People Eating Tasty Animals" site (more/yet
more).
(Declan McCullagh, "Ethical Treatment of PETA Domain", Wired News,
Aug.
25).
* The Big Five Texas tobacco lawyers have enjoyed an almost perfect
record of success so far in dodging investigation of their $3.3 billion-fee
deal to represent the Lone Star State in the national tobacco
litigation, but Texas Attorney General John Cornyn should not be counted
out yet (see Sept. 1, 2000, May
22, 2000, June 21, 2001): last month
he scored an advance for his long-stymied ethics probe when the Fifth Circuit
ruled he should be given a chance to pursue state court proceedings aimed
at putting the Five under oath about the lucrative arrangements (Brenda
Sapino Jeffreys, "Texas Attorney General May Depose Tobacco Lawyers in
State Court", Texas Lawyer, July 30).
* Conceding that one of its execs did indeed use a disrespectful
nickname for its Denver stadium ("the Diaphragm", referring to its shape),
the Invesco financial group agreed to drop its threatened defamation
lawsuit (see July 5) against the Denver
Post for reporting the remark ("Invesco won't sue Post", Denver
Post, July 6).
August 27-28 --
Clinical trials besieged. Since the Jesse Gelsinger case,
where survivors of an 18-year-old who died in a gene-therapy experiment
brought a successful lawsuit against the University of Pennsylvania, lawsuits
have been burgeoning against universities, private health-research foundations
and other sponsors of clinical trials and experimental medical
treatments; one recent high-profile case targets the Fred Hutchinson
Cancer Research Center in Seattle. The "suits have sent shudders
through the biomedical community. ... Some experts in the biomedical field
believe the litigation will have a chilling effect on research that benefits
humankind through scientific advancement. They also worry that volunteers
will dry up." A lawyer
who specializes in the new suits makes a practice of suing not only researchers
and deep-pocket institutions but also "bioethicists as well as members
of institutional review boards, the volunteers charged with reviewing and
approving clinical trials." (on bioethicists, see also Oct.
6, 2000) (Vida Fousbister, "Lawsuits over clinical trials have doctors
wary, but not quitting research yet", American Medical News, April
16; Maureen Milford, "Lawsuits Attack Medical Trials", National
Law Journal, Aug. 21; Kate Fodor, "Insurance Companies Get Stricter
on Clinical Trials ", Reuters/CancerPage.com, June
27; Christy Oglesby, "Volunteers sustain clinical trials", WebMD/CNN,
July 23).
August 27-28 --
Recommended new weblog. Launched a few weeks ago, Instapundit
by U. of Tennessee law prof Glenn Reynolds has already made it onto our
must-read list with frequently updated commentary on such topics as gun
laws, patients'
bill of rights legislation, abusive
prosecution, the
tobacco settlement, and stem-cell
research. Also new among our "dailies" links (left column of
front page) are Joshua Micah Marshall's and Marshall Wittmann's weblogs,
both oriented toward political matters.
August 27-28 --
"Jailed under a bad law". "The arrest by federal authorities
of a Russian computer programmer named Dmitry Sklyarov is not the first
time the so-called Digital Millennium Copyright Act has led to mischief.
It is, however, one of the most oppressive uses of the law to date -- one
that shows the need to revisit the rules Congress created to prevent the
theft of intellectual property
using electronic media," contends the Washington Post in an editorial.
Sklyarov wrote a program, legal in Russia, that enables users to defeat
the copy-protection on Adobe's eBook Reader system; the DMCA bans such
programs even though they have uses unrelated to unlawful copying, and
it does not require the government to prove in prosecution that facilitating
piracy was part of a defendant's intent. (Washington Post,
Aug.
21; Julie Hilden, "The First Amendment Issues Raised by the Troubling
Prosecution of e-Book Hacker Dmitry Sklyarov", FindLaw, Aug.
10; Declan McCullagh, "Hacker Arrest Stirs Protest", Wired News,
July
19; Glenn
Reynolds (see also other items in his weblog). More ammunition
for anti-DMCA sentiment: Amita Guha, "Fingered by the movie cops", Salon,
Aug.
23.
August 27-28 --
Urban legend alert: six "irresponsibility" lawsuits. Much
in our inbox recently: a fast-circulating email that lists six awful-sounding
damage awards (to a hubcap thief injured when the car drives off, a burglar
trapped in a house who had to eat dog food, etc.). Circumstantial
details such as dates, names, and places make the cases sound more real,
but all signs indicate that the list is fictitious from beginning to end,
reports the urban-legends site Snopes.com (Barbara Mikkelson, "Inboxer
rebellion: tortuous torts"). Snopes also has posted detailed
discussions of two of the other urban legends we get sent often, the "contraceptive
jelly" yarn, which originated with a tabloid ("A woman sued a pharmacy
from which she bought contraceptive jelly because she became pregnant even
after eating the jelly (with toast)." -- "Jelly
babied") and the cigar-arson fable ("A cigar aficionado insures his
stogies against fire, then tries to collect from his insurance company
after he smokes them." -- "Cigarson").
What we wonder is, why would people want to compile lists of made-up legal
bizarreries when they can find a vast stockpile of all-too-real
ones just by visiting this website? (DURABLE
LINK)
NAMES IN STORIES: The never-happened stories include tales
about "Kathleen Robertson of Austin Texas" (trips on her toddler in furniture
store); "Carl Truman of Los Angeles" (hubcap theft) "Terrence Dickson of
Bristol Pennsylvania" (trapped in house), "Jerry Williams of Little Rock
Arkansas" (bit by dog after shooting it with pellet gun), "Amber Carson
of Lancaster, Pennsylvania" (slips on drink she threw), and "Kara Walton
of Claymont, Delaware" (breaks teeth while sneaking through window into
club). All these incidents, to repeat, appear to be completely fictitious
and unrelated to any actual persons with these names.
August 27-28 --
"Incense link to cancer". Just when you thought it was
safe to go back to the Sixties (BBC, Aug.
2). But not to worry, since it seems everything else in the world
has also been linked to the dread disease: Brad Evenson, "Everything causes
cancer -- so relax", National Post (Canada), Aug. 4.
August 24-26 --
"Delta passenger wins $1.25 mln for landing trauma". Outwardly
uninjured after a terrifying emergency
landing en route to Cincinnati in 1996, Kathy Weaver has nonetheless
won $1.25 million from Delta Air Lines after her lawyer persuaded a Montana
jury that the episode had caused her to suffer post-traumatic stress syndrome
and an aggravation of her pre-existing depression. The judge ruled
that "her terror during the landing led to physical changes within the
brain that could be defined as injury". (Reuters/Yahoo, Aug. 23;
PPrune thread)
(more on white-knuckle lotto: Oct. 19,
2000, Oct. 8, 1999).
August 24-26 --
"Cessna pilots association does some research..." "Last
week's decision by a Florida jury to ding Cessna to the tune of $480
million for allegedly faulty chair railings in a Cessna 185 has raised
more than a few eyebrows," reports AvWeb. "Cessna's lawyers blamed
the crash on pilot error -- as did the NTSB final report -- but the plaintiffs'
attorneys argued that the seat-latching mechanism was defective, and the
seat slipped back suddenly as the pilot
was trying to land. Attorney Arthur Alan Wolk was quoted in the Wall
Street Journal last week as saying that Cessna 'knew the seats could
slip, but they never told the pilots that.'" On the contrary, says
the Cessna pilots association: the company issued a service advisory in
1983, a Pilot Safety and Warning Supplement in 1985, and in 1989 offered
all owners a free secondary seat-stop kit "that would provide positive
retention of the seat in the event that the primary system failed.
Owners had to pay for about three hours' labor at a Cessna Service Center
to install the free kit." In 1987, the FAA issued its own Airworthiness
Directive "with detailed instructions for inspecting the seat-latching
system for wear, pin engagement and cracks". (AvWeb, undated).
More of what general aviation folks have to say about that jury award (much
of it highly uncomplimentary): AvWeb reader
mail; Pprune threads #1,
#2.
August 24-26 --
Can I supersize that class action for you? The FBI has
charged eight persons in the conspiracy, allegedly dating back to 1995,
to steal the winning pieces in McDonald's promotional Monopoly game.
Although the fast-food chain was among the victims of the scheme and has
already promised a make-it-up sweepstakes promo, can we doubt that the
class action lawyers will soon descend?
"And never mind those gloomy folk who say the lawyers will win millions
while the rest of us each gets a coupon for a packet of fries." ("They
Knew It" (editorial), Washington Post, Aug.
23); Yahoo
Full Coverage).
August 24-26 --
The document-shredding facility at Pooh Corner. "A family-owned
company that receives royalties from the sale of Pooh merchandise says
that Walt Disney Co. has cheated it out of $US 35 million ... by failing
to report at least $US 3 billion in Pooh-related revenue since 1983. ...
the case has been entangled in Los Angeles Superior Court for a decade
.... Last year a Superior Court judge sanctioned Disney for deliberately
destroying 40 boxes of documents that could have been relevant to the case,
including a file marked 'Winnie the Pooh-legal problems'". ("Claimants
call Pooh a bear of very little gain", L.A. Times/Sydney Morning
Herald, Aug. 17). Update Mar.
30, 2004: court dismisses suit after finding misconduct on plaintiffs'
side. (DURABLE LINK)
August 24-26 --
More traffic records at Overlawyered.com. What
summer slowdown? Last week set a new record for pages served, and
so did last month ... thanks for your support!
August 22-23 --
Meet the "wrongful-birth" bar. "BIRTH
DEFECTS -- When did your doctor know? ... You may be entitled
to monetary damages," according to an advertisement by the law firm of
Blume Goldfaden Berkowitz Donnelly Fried & Fortea of Chatham, N.J.
The theory behind "wrongful-life" and "wrongful-birth" suits? "If
the health team had done
its job, the [parents] would have known of the defect -- and could have
chosen not to have the baby. ... Lawyers file the cases if -- and only
if -- the parents are prepared to testify that they would have aborted
the pregnancy." Many disabled persons, joined by others, are not
exactly happy about the premise that it might be better for some of the
physically imperfect among us never to have been born. Attorneys
believe such cases "will become more common as prenatal sonograms, blood
tests, and genetic counseling become routine, and the public learns of
the potential for large financial awards when genetically defective babies
are born." "Any child born with a birth defect has a potential wrongful
birth or wrongful life claim," says one optimistic lawyer. (Lindy
Washburn, "Families of disabled kids seek peace of mind in court", Bergen
Record, Aug. 19; "N.J. has taken lead in allowing parents, children
to sue", Aug. 19). Note the bizarre headline on the first of the
two stories: just how likely is it that "peace of mind" will be found by
having the parents swear out a permanent public record to the effect that
they wish their child had never been born? (more on wrongful birth/life:
Nov. 22-23, Sept.
8-10; June 8, May
9, Jan. 8-9, 2000). (DURABLE
LINK)
August 22-23 --
Pricing out the human species. According to Idaho governor
Dirk Kempthorne, the federal government's proposal to reintroduce grizzly
bears into Idaho "assumed injury or death to people and even calculated
the value of human life. A human killed by a grizzly bear in Idaho
would cost the federal Treasury between $4 million and $10 million, and
the plan even amortized the annual costs at $80,000-$200,000. As
far as we know, this is the first time that death or injury to humans has
been factored into a program proposed by the federal government under the
[Endangered Species Act]." ("Risk to humans too great", USA Today,
Aug.
17). And did reluctance to draw water from a river containing
threatened fish contribute
to the deaths of four firefighters during a big wildfire in Okanogan County,
Wash. last month? (Chris Solomon, "Why Thirty Mile Fire raged without
water", Seattle Times, Aug.
1; "Endangered Fish Policy May Have Cost Firefighters' Lives", FoxNews.com,
Aug. 2).
MORE: "NWFP [Northwest Forest Plan] standards and guidelines
and other agency policies such as PACFISH set streamside buffers with virtually
zero risk to fish species, regardless of the effects of large buffers to
other management objectives. Managing risks requires value-based
decisions. We understand that the zero-risk [to fish -- ed.]
approach is largely a result of lawsuits...." (James E. Brown of the Oregon
Department of Forestry at a House Agriculture Committee oversight hearing,
June
21, 1999 -- scroll to near end of document). (DURABLE
LINK)
August 22-23 --
Slavery reparations suits: on your mark, get set... "By
year-end, an all-star team of lawyers calling themselves the 'Reparations
Coordinating Committee' plans to file a suit seeking reparations for slavery.
... Multiple cases in multiple forums are likely. The defendants
will come from both the public and private sectors"; among businesses likely
to be named as defendants is J.P. Morgan Chase. (Paul Braverman,
"Slavery Strategy: Inside The Reparations Suit", American Lawyer,
July 6). Harvard Law prof Charles Ogletree said "'an amazing series
of possible actions' is slated for early next year." (Emily Newburger,
"Breaking the Chain", Harvard Law Bulletin, Summer).
Some of the reasons it'll be a terrible idea: John McWhorter, "Against
reparations", The New Republic, July
23 (more on reparations: July 6-8, April
17, Dec. 22-25, 2000 and links
from there). (DURABLE LINK)
August 22-23 --
"New York State's Gun Suit Must Be Dismissed". No, bad
lawsuits don't always prosper: "The New York state attorney general's novel
lawsuit to find the gun industry liable
under a nuisance theory must be dismissed," Justice Louis B. York has ruled
in Manhattan. New York was the only state to have joined 32 municipalities
in suits against the gun industry that aim to extract money from gunmakers
as well as arm-twist them into adopting various gun controls that legislatures
have declined to enact. New York AG Eliot Spitzer is said to be "dismayed"
by the decision. Good! (Daniel Wise, New York Law Journal,
Aug. 15).
