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ARCHIVE -- JUNE 2001
(II)
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June 20 -- Mich.
lawyer's demand: get my case off your website. On April
3 we ran a brief item on the trademark lawsuit filed by Detroit-based
jewelry-selling enterprise Love Your Neighbor Inc. against a Florida charity
called Love Thy Neighbor, which assists homeless persons. A few weeks
later Detroit Free Press legal correspondent Dawson Bell published
a story going into more detail about the dispute and quoting Robert Dorigo
Jones, director of the legal-reform advocacy group Michigan
Lawsuit Abuse Watch (M-LAW), who said that while the suit might not
count as a frivolous one, he considered it unnecessary: "This falls into
the category of lawsuits that can be filed, but shouldn't be." (Dawson
Bell, "Love your neighbor is suing one, instead", Detroit Free Press,
May 5).
It turns out that M-LAW's Mr. Dorigo Jones was living
dangerously by making such remarks. Within days he had received
a letter (which he's shared with us) from "Love Your Neighbor"'s attorney,
Julie Greenberg of Birmingham, Mich.'s Gifford,
Krass, Groh, Sprinkle, Anderson & Citkowski, P.C. The tone
of the letter might reasonably be called menacing coming from a lawyer:
it says that for him to have called her lawsuit unnecessary had "caused
damage to my personal reputation in the legal and social community".
It claims to be "particularly disturbed" that Mr. Dorigo Jones would presume
to comment on her suit even though he is not an expert in trademark
law; "indeed, you are not even an attorney". And it proceeds
to the following bottom-line demand: "In an effort to curb potential ongoing
damage to my reputation from your quote in the Free Press, I request that
you retract your statement made, and further that you take all references
to me or this lawsuit from your [M-LAW's] website, or your affiliated website
Overlawyered.com, which is promoted and hyperlinked by your website.
I look forward to your prompt response."
Oh, dear. "Your affiliated website Overlawyered.com"?
How'd we get dragged into this? As even casual investigation should
have revealed to attorney Greenberg, Overlawyered.com and M-LAW
aren't "affiliated" with each other in any normal sense of that word: we
link to them and they link to us, but that's true of any number of other
sites as well. Yet she seems to think Mr. Dorigo Jones has
the power to get items removed from our site -- or is that she thinks he
should take down his site's link to us? Whichever is the case, we
have bad news for her: Mr. Dorigo Jones tells us that he has no intention
of removing M-LAW's link to Overlawyered.com, and we have no intention
of removing our previous item mentioning Greenberg's client, or this one
either (& letter to the editor, July
6) (DURABLE LINK)
MORE: According to Bell's report, Arnold Abbott
founded the Florida charity in 1992 "in memory of his deceased wife".
Ms. Sims, who has registered the phrase as a trademark, had earlier challenged
Mr. Abbott's right to the domain name lovethyneighbor.org but lost in arbitration.
Attorney Goldstein's letter says the filing was "necessary" because owners
of trademarks can lose their rights if they do not police infringement,
and notes that various efforts by her client short of litigation had failed
to keep the Florida charity from going right on calling itself "Love Thy
Neighbor". Mr. Abbott, for his part, told reporter Bell that "he
is flabbergasted that it is possible to register rights to an expression
that 'has been around for 5,700 years. 'If she's right, then every time
someone prints a Bible they'd have to pay her a royalty."
June 20 -- "Gambling
addiction" class action. "A lawyer in Canada's
Quebec City is launching a class action suit against the province's gambling
monopoly for not warning players about the alleged dangers of its games."
The suit says the video gambling machines are addictive. (Mike Fox,
"Addicted gamblers sue in Quebec", BBC, June
14).
June 20 -- By reader
acclaim: "dog slobber" slip-fall case. Mary Lee Sowder
of Rocky Mount, N.C. is suing a PetsMart store in Roanoke, saying she slipped
on canine "slobber" on its floor. She claims knee damage and wants
at least $100 grand. (Tad Dickens, "'Dog slobber' at pet store caused
her fall, woman says in lawsuit", Roanoke Times, June 19).
June 19 -- Keeping
child in her lap = homicide conviction. Prosecutors
have prevailed on a Chattanooga, Tenn. jury to convict 20-year-old Latrece
Jones of criminally negligent homicide in the death of her 2-year-old son
Carlson Bowens Jr., "who was in her lap instead of a car seat during a
car crash." When we use the phrase "safety cops", we're really not
kidding. ("Car seat conviction", ABCNews.com, June
15) (& letters to the editor, July
6).
June 19 -- Tobacco:
Boeken record. Per AP and CNN reports, $3-billion jackpot
winner Richard Boeken started smoking in 1957, yet "testified that he 'never
heard or read about the health risks of smoking
until congressional hearings were held in 1994.' This claim does
not simply strain credulity; it smashes credulity into a million tiny pieces.
... Until 1997, California law ... classified tobacco as a product that
is 'known to be unsafe by the ordinary consumer...with the ordinary knowledge
common to the community.' Now we see the sort of idiocy that provision
was holding back." (Jacob Sullum, "Beyond belief", June
12). The Onion weighs in with a satire, if it's possible
to satirize such things ("The
$3 Billion Judgment"). See also Robert Jablon, "Los Angeles Jury
Orders Philip Morris to Pay $3 Billion to Lifelong Smoker", AP/Law.com,
June 7;
Bob Van Voris, "Big Bucks Guy Shows Little Ego", National Law Journal,
June 15
(profile of winning attorney Michael Piuze). And after Salon
ran a piece by veteran tobacco-litigation advocate Elizabeth Whelan trying
to defend the outcome of the L.A. case it immediately drew an influx of
reader mail strongly disagreeing with her ("Tobacklash!", June
15; letters, June
18). Update Oct.
2, 2004: appeals court orders punitive award cut to a sum not to exceed
$50 million.
June 19 -- Docs
and Dems. The American Medical Association, which used
to take a dim view of the litigation biz but now eagerly builds it up as
a way of revenging itself against managed
care, is tilting its campaign contributions these days toward lawsuit-friendly
Democrats (OpenSecrets.org "Money in Politics Alert -- New Friends: The
American Medical Association, Democrats and the Patients' Bill of Rights",
June 18).
See also Kelley O. Beaucar, "Critics Decry '1-800- LAWSUITS' Bill", FoxNews.com,
June 18
(quotes our editor); Fred Barnes, "The Right Medicine" (editorial), Weekly
Standard, June
25. And SmarterTimes, the
indispensable corrective to each morning's dose of West 43rd St. tendentiousness,
finds a number of misleading assertions in Monday's New York Times
editorial on "patients' rights". For instance: "The editorial says,
'The White House, for its part, says the bill would open the floodgates
to a wave of frivolous lawsuits, a claim not supported by the evidence
in those states that have adopted similar legislation, including Texas
under Governor Bush.' This is misleading; the Texas patients' bill
of rights included limits on civil damage awards that are not included
in the federal legislation to which the White House is objecting." (June
18 -- scroll to "Patients' Bill of Wrongs"; "The Right Patients' Bill
of Rights" (editorial), New York Times, June
18).
June 19 -- "Candles
might be polluting your home, EPA says". A new indoor
environmental menace: just what
we needed to ruin our wick end. (Traci Watson, USA Today,
June
14).
June 18 -- Lawsuits
on overseas terrorism: guess who foots the bill. "Thanks
to Congress' largesse, U.S. taxpayers are paying hundreds of millions of
dollars to compensate victims of foreign terrorism. And the tab might soon
soar." Given American jurors' low opinion of regimes like those of
Iran and Libya, trial lawyers often score big awards suing them -- which
they can then present to U.S. taxpayers for at least partial payment.
"Stuart Eizenstat, deputy Treasury secretary under President Clinton, says
lawyers are pressing cases under two laws: a 1996 statute that lets Americans
file suit in U.S. courts against seven countries on a State Department
list of terrorist states, and a 2000 law that authorizes the government
to pay some damages. Congress has to approve new awards, but it has in
every case so far. 'It has become a race to the courthouse and then
a race to get Congress to appropriate funds,' Eizenstat says." (Barbara
Slavin, "Taxpayers get the bill when terrorists lose in court", USA
Today, June
14). "Two former hostages held in Lebanon by pro-Iranian kidnappers
sued Iran on Tuesday, contending the country was responsible because its
Muslim government shields and supports terrorists. The lawsuits,
filed by Rev. Benjamin Weir and Frank A. Regier, seek $100 million in compensatory
damages and an unspecified amount in punitive damages." ("Former
Iran [sic] Hostages File Lawsuits", AP/FindLaw, June 13).
June 18 -- Villaraigosa
and the litigation lobby. One group that may be less than
happy about leftist Antonio Villaraigosa's June 5 loss to James Hahn in
the L.A. mayoral race: trial lawyers, who've found Villaraigosa a close
ally in his powerful post as speaker of the California Assembly. "In the
1997-1998 campaign cycle, Villaraigosa received $612,400 in campaign contributions
from personal injury lawyers, a number that works out to be 25% of the
almost $2.4 million given to California Assembly candidates," notes California's
Torrance-based Citizens Against Lawsuit
Abuse ("2001 L.A. Mayor's Report",
undated). "In the 1999-2000 campaign
cycle, he received $220,600 from personal injury lawyers, which works
out to be 10 percent of funds contributed to California Assembly candidates."
See also Todd Purdum, "Hahn Wins Los Angeles Mayor's Race", New York Times,
June
6 (reg).
June 18 -- Next
time, "endorse" only products you like? Tennis pro Martina
Hingis has sued the Sergio Tacchini Italian sportswear company, claiming
that its shoes caused her feet to hurt and made her drop out of tournaments.
Couldn't she just have removed the offending footgear? Well, she'd
agreed to wear it as part of a $5.6 million endorsement deal. ("Hingis
claims shoes injured her feet", AP/ESPN, June
11; "Shoemaker says Hingis has no basis for claim", AP/ESPN, June
12).
June 18 -- Reader
contributions pass $1,000. We're doing better with the
Amazon Honor System than most sites we know, thanks to generous readers
like you; our average contribution is nearly $10. Have you done
your bit yet?
June 15-17 -- Jury:
drunk driver hardly responsible at all for fatal crash.
A Broward County. Fla. jury has found the state Department of Transportation
and a highway construction firm to be 90 percent responsible for the 1995
traffic accident that took the life of former Miami Dolphins linebacker
David Griggs. Griggs "had a blood-alcohol level of .16, twice the
legal limit of .08, after which a person is considered
drunk in Florida, according to the toxicology report from the Broward
County Medical Examiner." A second trial is set for the fall to determine
damages. ("Jury: Road firm, government mostly to blame for Griggs'
death", AP/Sacramento Bee, June 14).
June 15-17 -- "Doctor
liable for not giving enough pain medicine". On Wednesday
an Alameda County, Calif. jury found Dr. Wing Chin liable for recklessness
and elder abuse for not giving sufficient pain medicine to 85-year-old
William Bergman, who died three days later of lung cancer. "During
the month-long trial, the doctor
testified he followed established protocols in prescribing pain medication
to Bergman. His attorney Bob Slattery also argued neither the patient
nor his family requested that the doctor prescribe more pain medication
to alleviate the suffering." Plaintiff's lawyer Jim Gearan said Dr. Chin
had failed to take training in pain management. ("Doctor liable for not
giving enough pain medicine", CNN, June
14). We wonder whether this case ties in in any way with the
phenomenon convincingly documented by Jacob Sullum, namely the widespread
undertreatment of pain by doctors in a medical culture swayed both by fear
of narcotics themselves and by fear of the enormous hassle from state regulators
and the federal Drug Enforcement Administration that can descend on the
heads of doctors perceived as too ready to furnish narcotics ("Who'll stop
the pain?", Reason, Jan.
1997).
June 15-17 -- "Lender
hit with $71M verdict". A Holmes County,
Mississippi jury voted $69 million in punitive damages and $2.2 million
in compensatory damages after a group of 23 plaintiffs accused Washington
Mutual Finance Group of "goading customers into renewing loans with additional
undisclosed charges". The plaintiff's lawyer was Rep.
Edward Blackmon Jr., who chairs one of the two Judiciary committees
in the lower house of the Mississippi legislature;
his wife Barbara,
also a plaintiff's trial lawyer, serves in the state Senate where she sits
on the Judiciary committee and is vice chair of the Insurance committee.
(Jackson Clarion-Ledger, June
14).
June 14 -- Wal-Mart-as-"cult"
suit: it is about the money. A lawsuit accuses
Wal-Mart of maintaining a "cult-like" atmosphere which encourages employees
to put in unpaid overtime. "You bet it's about the money," said litigant
Taylor Vogue. ("Wal-Mart Brainwashes Workers, Suit Alleges", AP/Omaha
World-Herald, June 9).
June 14 -- "Lawsuit
rocks Virginia string quartet". Further developments in
the ongoing Audubon String Quartet mess, last reported on here June
5, 2000: estranged first violinist David Ehrlich is suing the other
three members of the ensemble for $2 million and has obtained a court order
preventing them from playing together under the Audubon name or any other
group name (they can still use their individual names). Robert Mann,
an original member of the Juilliard Quartet, thinks chamber musicians should
not take differences to court: "If anyone who becomes disaffected with
his group can sue the others for money, it would be disastrous." (Chris
Kahn, AP/ SFGate.com, June
8). Update Nov. 13, 2001:
judge awards Ehrlich more than $600,000 in damages.
June 14 -- Fee
fracas still going 23 years after case filed. Chick Kam
Choo was a ship worker killed in 1977 in an accident on a tanker in Singapore
harbor. His survivors' wrongful-death suit against Exxon and other
defendants was filed in Houston, Tex., with its big verdicts, rather than
in Singapore. It finally settled this January for $2.7 million
after protracted battles that reached the U.S.
Supreme Court, but as of April the plaintiffs hadn't seen a penny because
of new squabbling between eight different plaintiff's lawyers over who
gets fees. John O'Quinn of O'Quinn and Laminack, whose doings are
frequently reported on in this space, says his firm gets it all.
But Newton B. Schwartz Sr., C. Benton Musslewhite Sr. and his son Charles
B. Musslewhite Jr., Richard Sheehy, Gary Polland, and Joseph C. Blanks
all maintain that they deserve some or all of the fees. (Brenda Sapino
Jeffreys, "A Piece of the Action", Texas Lawyer, April
17).
June 13 -- Dodge
ball on endangered list. "Educators in several states
are fighting to ban dodge ball, but the game remains popular with kids."
A professor at Eastern Connecticut State University says the game is "litigation
waiting to happen." ("Educators want dodge ball tossed out", AP/CNN,
June
7). And a touch football game has brought youngsters to court
in a Wisconsin broken-arm case unlikely to have any real winners (Tom Kertscher,
"Trial is about pals, football, evening the score", Milwaukee Journal
Sentinel, June
10).
June 13 -- Antidepressant
blamed for killing spree. Three years after Donald
Schell went on a murderous rampage, a Cheyenne, Wyo. jury has blamed the
episode on Glaxo SmithKline, maker
of the anti-depressant Paxil, with an $8 million verdict. ("Shooter's
family awarded $8 million in drug suit", AP/CNN, June 7).
June 13 -- Batch
of reader letters. The latest sack
of correspondent mail includes a note from Ric Espinosa, who filed
the "library cat" suit reported on last month; letters on the ethics of
ghostwriting for lawyers, class action suits, Prof. Richard Daynard's conflicts
and their tardy disclosure, the Casey Martin case, and flashlight warnings;
along with the possibly relevant lyrics of an Al Stewart song.
June 12 -- "Hearsay
harassment" not actionable. Diane Leibovitz, a now-retired
mid-level manager at the New York City Transit Authority, filed a sexual
harassment lawsuit against the TA because, though she had not herself
been a target of harassment, reports had reached her at second hand that
other women employees had been. She got a $60,000 jury award
after a trial presided over by federal judge Jack Weinstein, but the Second
Circuit U.S. court of appeals has reversed it, saying the law does not
confer a right to sue on a worker who "was not herself a target of the
alleged harassment, was not present when the harassment supposedly occurred,
and did not even know of the harassment when it was ongoing".
Leibovitz's lawyer, Merrick Rossein, a law professor at CUNY and author
of a widely used textbook on employment discrimination law, was disappointed:
"They're saying that since she didn't directly observe the harassment and
didn't prove the harassment actually occurred, it is not cognizable under
the theory of hostile environment." (John Springer, "Court overturns
transit authority sexual harassment award", Court TV/Yahoo, June 11).
June 12 -- Ghost
blurber case. Almost as fast as Sony Pictures got caught
inventing quotes from nonexistent film critic "David Manning" to hype four
of its films, a class action lawyer sued on behalf of two L.A. moviegoers
whose desire to engage the studio in legal battle no doubt welled up in
a wholly spontaneous fashion (Denise Levin, "Sony's Bogus Blurbmeister
Spurs Class Action Suit", Yahoo/Inside.com, June 8; Anthony Breznican,
"2 Moviegoers Sue Sony Over Review", AP/Yahoo, June 8). And even
faster off the dime was Connecticut Attorney General Richard Blumenthal,
who seized on the scandal's very tenuous Nutmeg State connection (the fictitious
Manning was said to work for the Ridgefield Press) as excuse for
an investigation ("Conn. AG to Investigate Film Reviews", AP/Yahoo, June
6). According to Jim Knipfel of the New York Press, the investigation
may be a wide-ranging one : "Blumenthal is not only upset by the fake critic
business, but also by the age-old publicist’s trick of carefully editing
lukewarm reviews into raves" via ellipses, and says that may
be unlawful too. Where has he been for the past 30 years, Knipfel
wonders? "Mr. Blumenthal should find himself some sort of hobby."
("Billboard: 'Stunning! ... An Amazing Achievement ... Seething with Forbidden
... Desire!'", New York Press, June
6 (strong language); Mickey Kaus, Kausfiles "Hit Parade" (left column
-- scroll to June 8).
June 12 -- Bicycles
not "motor vehicles", court rules. Aren't you relieved?
If they had motors, you'd always be buying gasoline for them. (Danielle
N. Rodier, "Bicycles Not Motor Vehicles Under Governmental Immunity Statute",
The Legal Intelligencer (Philadelphia), June
7).
June 12 -- Record
traffic on Overlawyered.com. Last week set another
record for pages served at 31,600 (with about 14,000 distinct visitors).
We must have gotten some big publicity Thursday (more than 8,000 pages
served on that day) but we're not sure what it was.
June 11 -- Blockbuster
Video class action. Yet another headline-grabber from
the world-famed courts of Beaumont, Tex.: customers will get various free-rental
and cents-off coupons with a notional value approaching $450 million and
a real value of some minute fraction of that, while class-action
plaintiff's lawyers will take home $9.25 million. The video chain's
sin was, allegedly, to have made too much money from late fees and to have
changed its policies without notifying customers. ("Blockbuster settles
suits", AP/CNNfn, June 5; details;
William F. Buckley, Jr., "Trial lawyers vs. sanity", National Review
Online, June
8).
June 11 -- "Plastic
surgery addiction" patient loses suit. In a unanimous
ruling, New York's highest court last week "tossed a lawsuit from a woman
addicted to plastic surgery -- she had over 50 operations -- who claimed
her doctor should have referred her to a psychiatrist before using the
knife." A lower court had ruled that the suit could proceed, raising
fears that physicians might
have to arrange psychiatric pre-screening of patients before many elective
operations (see Aug. 15, 2000) (Kenneth
Lovett, "Plastic-Surgery Addict Suit Gets Carved Up", New York Post,
June 8).
June 11 -- $5,133.47
a cigarette. That's how much the jury awarded plaintiff
Richard Boeken last week when it told Philip Morris to pay him $3 billion
for having enabled his smoking
habit, according to calculations by reader Nathan Clark by WSJ OpinionJournal
"Best of the Web" (June
8). "Based on Boeken's claim that he smoked two packs a day for
40 years, Clark figured Boeken had smoked 584,000 cigarettes", which divided
into $3 billion "comes to $5,133.47 per cigarette Boeken smoked.
Look for a big increase in teen smoking as word gets around the schoolyards
that it's a ticket to untold wealth." Update Oct.
2, 2004: appeals court orders punitive award cut to a sum not to exceed
$50 million.
June 11-- End the
dairy compact. Sen. Jeffords (I-Vt.) has been a leading
defender of the "indefensible boondoggle" by which Northeastern milk prices
are kept high, and his party switch makes a perfect opportunity to get
rid of the thing (Jonathan Chait, "Spilled milk", The New Republic,
June 11).
And Republican electoral victories in states like West Virginia are dearly
bought if the quid pro quo for them is that consumers in the rest
of the country have to suffer restrictions on steel imports ("Protectionist
Bush?" (editorial), Christian Science Monitor, June
11).
