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ARCHIVE -- MAY 2001 (III)
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May 31 -- Fieger's
firecrackers frequently fizzle. Famed lawyer Geoffrey
Fieger extracts huge damage awards from Michigan juries in civil cases
even more often than he manages to get Dr. Jack Kevorkian off the hook
from criminal charges, but he does much less well when the big awards reach
higher levels of judicial consideration. "In the last two years,
Fieger and his clients have watched as judges, acting on appeal or post-trial
motion, erased more than $55 million in jury verdicts," including $15 million
and $13 million verdicts against Detroit-area hospitals and a $30 million
verdict, reduced by the judge to $3 million, arising from a Flint highway
accident. Opponents say Fieger's courtroom vilification of
opponents and badgering of witnesses often impresses jurors but plays less
well in the calmer written medium of an appellate record.
Appeals courts are now considering Fieger cases "totaling an estimated
$50 million to $100 million ... Among those cases is $25 million awarded
in the infamous Jenny Jones talk-show case and $20 million to a woman who
was sexually harassed at a Chrysler
plant." (Update Oct. 25-27,
2002: appeals court throws out Jenny Jones verdict. Further update
Jul. 24, 2004: state high court throws out Chrysler verdict). Fieger,
who was the unsuccessful Democratic challenger to Michigan Gov. John Engler
at the last election, charges that the appeals courts are politically biased
against him: "It's a conspiracy to get me". However, a reporter's
examination of Fieger cases that went up to appeals courts indicates that
the partisan or philosophic background of the judges on the panels doesn't
seem to make a marked difference in his likelihood of success (Dawson Bell,
"Fieger's wins lose luster in appeals", Detroit Free Press, May
29). "Colorful" barely begins to describe Fieger's past run-ins
with the law and with disciplinary authorities; see Dawson Bell, "Fieger's
skeletons won't stay buried", Detroit Free Press, August
13, 1998.
May 31 -- "Dead
teen's family sues Take our Kids to Work". Had to happen
eventually dept.: in Welland, Ontario,
"[t]he family of a teenage girl killed while driving a utility vehicle
at a John Deere plant is suing the company, the school
board and the organizers of Take Our Kids to Work day." (Karena Walter,
National
Post, May
25).
May 31 -- Pale
Nanny with an ad budget. The Indoor Tanning Association,
a salon trade group, is "worried about proposed legislation in Texas that
would outlaw indoor tanning for anyone under age 18, require tanning salons
to post pictures of different types of skin cancer, and allow dermatologists
and anti-tanning activists to make contributions to the Texas Health Department
to pay for an anti-tanning advertising campaign." You didn't think
these sorts of campaigns were going to stop with tobacco, did you?
("Inside Washington -- Presenting: This Season's Latest Tan Lines", April
14, National Journal, subscribers
only).
May 30 -- Supreme
Court: sure, let judges redefine golf. By a 7-2 vote,
the high court rules that the PGA can be forced to change its rules so
as to let disabled golfer Casey Martin ride in a cart between holes while
other contestants walk. (Yahoo
Full Coverage; Christian
Science Monitor; PGA
Tour v. Martin decision in PDF format -- Scalia dissent, which is as
usual the good part, begins about two-thirds of the way down). For
our take, see Reason,
May 1998; disabled-rights
sports cases).
May 30 -- Microsoft
v. Goliath. "The antitrust laws originally aimed to preserve
competition as idealized by Adam Smith. Can they now preserve and promote
Schumpeter's ["creative destruction"] competition? The Microsoft
case suggests that they cannot. " (Robert Samuelson, "The Gates of Power",
The
New Republic, Apr. 23).
May 30 -- Evils
of contingent-fee tax collection, cont'd. Another
city, this time Meriden, Ct., has gotten in trouble for hiring a private
firm to assist in its taxation process on a contingent-fee basis -- in
this case, the firm conducted property reassessments and got to keep a
share of the new tax revenue hauled in by them. A Connecticut judge
has now found that this system gave the firm a pointed incentive to inflate
supposed property values unjustifiably, that it had done so in the case
at
hand, and that the incentive scheme, by destroying the impartiality that
we expect of public servants, had deprived taxpayers of their rights to
due process under both federal and state constitutions. He ordered
the city to refund $15.6 million to two utility companies whose holdings
had been overassessed in this manner. (Thomas Scheffey, "Connecticut
Judge Blasts City's $15.6 Million Mistake", Connecticut Law Tribune,
May
3). It's yet another recognition (see Jan.
10, 2001;
Dec. 3, 1999) that when
governments hire contingent-fee
professionals to advise them on whether private parties owe them money
and if so how much, due process flies out the window -- as has happened
routinely in the new tobacco/gun/lead paint class of lawsuits, which operate
on precisely this model.
May 29 -- Claim:
inappropriate object in toothpaste caused heart attack.
A Shelton, Ct. man is suing Colgate-Palmolive, claiming he discovered an
extremely indelicate object in a six-ounce standup tube of the company's
regular toothpaste and that the resulting stress caused his blood pressure
to escalate over a matter of months, leading him to suffer a heart attack
a year later. The company said it does not think its production
processes would have allowed the offending object to have entered the
tube. ("Man sues over condom in toothpaste", AP/WTNH New Haven, May
25).
May 29 -- States
lag in curbing junk science. According to one estimate,
only about half of state courts presently follow the U.S. Supreme Court's
standard for excluding unreliable scientific evidence from trials (Daubert
v. Merrell Dow, 1993). Where states follow a laxer standard,
they run the risk of approving verdicts based on strawberry-jam-causes-cancer
"junk science". A new group called the Daubert Council, headed
by Charles D. Weller and David B. Graham of Cleveland's Baker & Hostetler,
aims to fix that situation by persuading the laggard states to step up
to the federal standard. (Darryl Van Duch, "Group is Pushing 'Daubert'",
National
Law Journal, May
25).
May 29 -- Brace
for data-disaster suits. Companies with a substantial
information
technology presence are likely to become the targets of major liability
lawsuits in areas such as hacker attacks, computer virus spread, confidentiality
breach, and business losses to co-venturers and customers, according to
various experts in the field. (Jaikumar Vijayan, "IT security destined
for the courtroom",
ComputerWorld, May
21).
May 28 -- Holiday
special: dispatches from abroad. Today is Memorial Day
in the U.S., which we will observe by skipping American news just for today
in favor of the news reports that continue to pour in from elsewhere:
* Swan victim Mary Ryan, 71, has lost her $32,600 negligence claim against
authorities over an incident in which one of the birds knocked her to the
ground in Phoenix Park in central Dublin, Ireland. She testified
that she had just fed the swan and was walking away when she heard a great
flapping of wings and was knocked down, suffering a broken wrist.
"Ryan said park commissioners should have put up signs warning the public
about 'the mischievous propensity and uncertain temperament'" of the birds,
but Judge Kevin Haugh ruled that evidence had not established that the
park's swans were menacing in general, although the one in question had
concededly been having "a very bad day." (Reuters/Excite, May 25).
* In Canada, the New Brunswick Court of Appeal has ruled improper the
disbarment
of Fredericton attorney Michael A.A. Ryan, whom the Law Society had removed
from practice after finding that he had lied to clients and falsified work,
reports the National Post. To conceal his neglect of
cases which had lapsed due to statutes of limitations, "Mr. Ryan gave his
clients reports of hearings, motions and discoveries that never occurred,
and when pressed for details of a supposedly favourable judgment, forged
a decision from the Court of Appeal. The clients were eventually told they
had won $20,000 each in damages," but in the end Ryan had to confess that
he had been making it all up. "The lawyer has admitted to a long-standing
addiction to drugs and alcohol, and told the court he was depressed during
the period of his misconduct because of the breakup of his marriage."
(Jonathon Gatehouse, "Court gives lawyer who lied to clients second chance,"
National Post, May 18).
* Authorities in Northumbria, England, have agreed to pay thousands
of pounds to Detective Inspector Brian Baker, who blames his nocturnal
snoring on excessive inhalation of cannabis (marijuana) dust in
the line of police duty. Baker says that his spending four days
in a storeroom with the seized plants resulted in nasal congestion, sniffing,
dry throat, and impaired sense of smell as well as a snore that led to
"marital disharmony". (Ian Burrell, "Payout for policeman who blamed
his snoring on cannabis", The Independent (U.K.), April
11; Joanna Hale, "Drugs inquiry made detective a snorer", The Times
(U.K.), April
11). And updating an earlier story (see May
22), a woman in Bolton, Lancashire has prevailed in her suit against
a stage hypnotist whose presentation caused her to regress to a childlike
state and recall memories of abuse; damages were $9,000 (AP/ABC News, May
25).
May 25-27 -- "Judge
buys shopaholic defense in embezzling". "A Chicago woman
who stole nearly $250,000 from her employer to finance a shopping
addiction was spared from prison in a novel ruling Wednesday by a federal
judge who found that she bought expensive clothing and jewelry to 'self-medicate'
her depression." Elizabeth Roach faced a possible 18-month prison term
for the embezzlement under federal sentencing guidelines, but U.S. District
Judge Matthew Kennelly reduced her sentence, sparing her the big house,
in what was evidently "the first time in the country that a federal judge
reduced a defendant's sentence because of an addiction to shopping."
She had bought a $7,000 belt buckle and run credit-card bills up to $500,000.
(Matt O'Connor, Chicago Tribune, May 24).
May 25-27 -- Columnist-fest.
More reasons to go on reading newspapers:
* A New York legislator has introduced a joint custody bill that
he thinks would significantly reduce the state's volume of child
custody litigation, but it hasn't gone anywhere. Leaving aside
debates about the other pros and cons of joint custody, one reason it languishes
is that it "has been opposed by matrimonial lawyers in the state. 'They
make their living on these divorces,' said [assemblyman David] Sidikman,
a lawyer himself. "... The parents usually start off these cases
promising to be adults, but that doesn't last once the lawyers get involved."
"(John Tierney, "The Big City: A System for Lawyers, Not Children", New
York Times, May
15 (reg)). Bonus: Tierney on the NIMBY-ists who would
sue to keep IKEA from building a store in a blighted Brooklyn neighborhood
("Stray Dogs As a Litigant's Best Friend", April
13).
* Steve Chapman points out that the recent release of an Oklahoma
man long imprisoned for a rape he didn't commit (see May
9) casts doubt not only on shoddy forensics but also on that convincing-seeming
kind of evidence, eyewitness testimony ("Don't believe what they say they
see", Chicago Tribune, May 13). Bonus: Chapman on the
scandal of medical-pot prohibition ("Sickening policy on medical marijuana",
May
17).
* Reparations: "Germans may be paying for the sins of their fathers
but asking Americans to stump up for what great-great-great-grandpappy
did seems to be rather stretching a point. " (Graham Stewart, "Why we simply
can't pay compensation for every stain on our history", The Times
(U.K.), March
22).
May 25-27 -- "Gone
with the Wind" parody case. The legal status of parody
as a defense to copyright infringement
is still uncertain in many ways, and contrary to a widespread impression
there is no legal doctrine allowing extra latitude in copying material
from works such as the Margaret Mitchell novel that have become "cultural
icons" (Kim Campbell, "Who's right?", Christian Science Monitor,
May
24; Ken Paulson, "What -- me worry? Judge's suppression of Gone With
the Wind parody raises concerns", Freedom Forum, May
20).
May 24 -- "Family
awarded $1 billion in lawsuit". Another great day
for trial lawyers under our remarkable system of unlimited punitive damages:
a New Orleans jury has voted to make ExxonMobil pay $1 billion to former
state district judge Joseph Grefer and his family because an Exxon contractor
that leased land from the family for about thirty years left detectable
amounts of radioactivity behind from its industrial activities. Exxon
"said it offered to clean up the land but the Grefers declined its offers."
The company says the land could be cleaned
up for $46,000 and also "claims that less than 1 percent of the land
contains radiation levels above naturally occurring levels." The
jury designated $56 million of the fine for cleaning up the land; the total
value of the parcel is somewhere between $500,000 (Exxon's view) and $1.5
million (the owners). (Sandra Barbier, New Orleans Times-Picayune,
May
23; Brett Martel, "Jury: ExxonMobil Should Pay $1.06B", AP/Yahoo, May 22;
"Exxon Mobil to Appeal $1 Billion Fine", Reuters/New York Times,
May
23).
May 24 -- Humiliation
by litigators as turning point in Clinton affair. "It
strikes me as relevant that the turning point in the Lewinsky saga was
the broadcasting of Clinton's deposition, an image of an actual human being
humiliated for hours on end. It was then that we realized we had
gone too far -- but look how far down the path we had already gone." (Andrew
Sullivan, TRB from Washington, "Himself", The New Republic, May
7).
May 24 -- Tobacco:
angles on Engle. With three cigarette companies
having agreed to pay $700 million just to guarantee their right to appeal
a Miami jury's confiscatory $145 billion verdict in Engle
v. R.J. Reynolds, other lawyers are piling on, the latest being
an alliance of hyperactive class action lawyers Cohen, Milstein, Hausfeld
& Toll with O.J. Simpson defense lawyer Johnnie Cochran ("Lawsuit says
tobacco industry tried to hook kids", CNN/AP, May 23; Jay Weaver, "Tobacco
firms agree to historic smoker payment", Miami
Herald, May
8; "Tobacco Companies Vow to Fight $145 Billion Verdict", American
Lawyer Media, July
17, 2000; Rick Bragg with Sarah Kershaw, ""Juror Says a 'Sense of Mission'
Led to Huge Tobacco Damages", New York Times, July
16, 2000 (reg); "Borrowing power to be considered in tobacco suit",
AP/Seattle Post-Intelligencer, June
1, 2000 (judge ruled that companies' ability to borrow money could
be used as a predicate for quantum of punitive damages)).
May 23 -- "Insect
lawyer ad creates buzz". Torys,
a large law firm based in Toronto,
has caused a stir by running a recruitment ad aimed at student lawyers
with pictures of weasels, rats, vultures, scorpions, cockroaches, snakes
and piranhas, all under the headline "Lawyers we didn't hire.'' The
ad, devised by Ogilvy and Mather, says the firm benefits from a "uniquely
pleasant and collegial atmosphere" because it doesn't hire "bullies, office
politicians or toadies", who presumably go to work for other law firms
instead.
However, some defenders of invertebrates and other low-status fauna
say it's unfair to keep comparing them to members of the legal profession.
Vultures, for example, "provide a really essential role in terms of removing
dead animals and diseases," says Ontario zoologist Rob Foster. "It's
slander, frankly," he says, "adding that one exception might be the burbot,
a bottom-feeding fish whose common names include 'the lawyer.' ... 'Whenever
I see a dung
beetle portrayed negatively in a commercial, I see red,' he said yesterday,
recalling that in The Far Side comic strip, cartoonist Gary Larson once
drew two vermin hurling insults by calling each other 'lawyer.'" (Tracey
Tyler, Toronto Star, Apr. 19). (DURABLE
LINK)
May 23 -- "Working"
for whom? An outfit called the Environmental
Working Group has recently taken a much higher profile through its
close association with "Trade Secrets", a trial-lawyer-sourced (and, say
its critics, egregiously one-sided) attack on the chemical industry that
aired March 26 as a Bill Moyers special on PBS. Spotted around the
same time was the following ad which ran on one of the FindLaw
email services on behalf of EWG: "Thought the Cigarette Papers Were Big?
50 years of internal Chemical Industry documents including thousands of
industry meeting minutes, memos, and letters. All searchable online.
Everything you need to build a case at http://www.ewg.org".
Hmmm ... isn't PBS supposed to avoid letting itself be used to promote
commercial endeavors, such as litigation? (more
on trial lawyer sway among environmental groups)
MORE: Michael Fumento, "Bill Moyers' Bad Chemistry", Washington
Times,
April 13;
PBS
"TradeSecrets"; Steven Milloy, "Anti-chemical Activists And Their New
Clothes", FoxNews.com, March 30; www.AboutTradeSecrets.org
(chemical industry response); ComeClean.org;
Ronald Bailey, "Synthetic Chemicals and Bill Moyers", Reason Online,
March
28. The New York Times's Neil Genzlinger wrote a less
than fully enthralled review of the Moyers special ("'Trade Secrets': Rendering
a Guilty Verdict on Corporate America", television review, March
26) for which indiscretion abuse was soon raining down on his head
from various quarters, including the leftist Nation ("The Times
v. Moyers" (editorial), April
16). (DURABLE LINK)
May 22 -- From
dinner party to court. "I'm never going to invite people
around for dinner again," says Annette Martin of Kingsdown,
Wiltshire, England, after being served with a notice of claim for personal
injury from dinner guest Margaret Stewart, who says she was hurt when she
fell through a glass and steel dining chair in Miss Martin's home.
Martin says that "up to then we had been good friends," and that Miss Stewart
"looked perfectly fine when she walked out the door that evening. ... I
feel very strongly about the television
adverts that encourage this sort of nonsense. I think the Government
should intervene before we become like the Americans and sue over anything."
(Richard Savill, "Dinner party ends with a sting in the tail", Daily Telegraph,
May
19). In other U.K. news, a woman from Bolton, Lancashire, is
suing stage hypnotist Philip
Green, claiming that during one of his performances "she was induced to
chase what she believed were fairies around the hall, drink a glass of
cider believing it was water and believe she was in love with Mr. Green,"
all of which left her depressed and even for a time suicidal, calling up
memories of childhood abuse. ("Woman sues stage hypnotist over 'abuse
memories'", Ananova.com, May
21) (more on hypnotist liability: March 13).
UpdateMay
28: she wins case and $9,000 damages.
May 22 -- Razorfish,
Cisco, IPO suits. In a decision scathingly critical
of the "lawyer-driven" nature of securities
class action suits, New York federal judge Jed Rakoff rejected a motion
by five law firms to install a group of investors as the lead plaintiff
in shareholder lawsuits against Razorfish Inc., a Web design and consulting
company. The investor group had been "cobbled together" for
purposes of getting their lawyers into the driver's seat, he suggested.
"Here, as in many other such cases, most of the counsel who filed the original
complaints attempted before filing the instant motions to reach a private
agreement as to who would be put forth as lead plaintiff and lead counsel
and how fees would be divided among all such counsel." Rakoff instead
installed as lead counsel Milberg Weiss and another firm, which jointly
represented the largest investor claiming losses in the action. "Judge
Rakoff noted drily in a footnote that numerous complaints were filed within
days that essentially copied the original Milberg Weiss complaint verbatim,"
and wondered whether the lawyers filing those copycat suits had taken into
account the requirements of federal Rule 11. (Bruce Balestier, "Judge
Rejects Lawyers' Choice of Lead Plaintiff in Razorfish Class Actions",
New
York Law Journal, May
8).
Observers are closely watching the onslaught of class action suits filed
against Cisco Systems since its stock price declined. Stanford
securities-law professor Joseph Grundfest, who "helped craft the 1995 reform
act and has worked on both plaintiffs-side and defense cases ... said he
sees the Cisco case as part of a buckshot strategy by plaintiffs' lawyers.
They are suing multiple technology companies with hopes of extracting a
large settlement from at least one. 'They only need a small probability
to make it worth their while,' Grundfest said. 'How much does it
cost to write a complaint?'". (Renee Deger, "Cisco Inferno", The
Recorder, April
27). Shareholder suits in federal court are headed toward record
numbers this year in the wake of the dotcom meltdown (Daniel F. DeLong,
"Lawyers Find Profit in Dot-Com Disasters", Yahoo/ NewsFactor.com, May
14; see also Richard Williamson, "Shareholder Suits Slam High-Tech",
Interactive
Week/ZDNet, Dec. 19, 2000).
May 22 -- Welcome
SmarterTimes
readers. Ira Stoll's daily commentary on the New York
Times mentioned us on Sunday (May
20 -- scroll to first "Late Again"). And Brill's Content
has now put online its "Best of the Web" roundtable in which we were recommended
by federal appeals judge Alex Kozinski (May
-- scroll about halfway down righthand column).
May 21-- Six-hour
police standoff no grounds for loss of job, says employee.
"A formerly suicidal insurance executive who lost his job after a six-hour
standoff with police at Park Meadows mall [in Denver] is suing his former
employer
for discrimination under federal and state laws protecting
the mentally disabled. The 43-year-old plaintiff, Richard M.
Young, alleges he was wrongfully terminated from Ohio Casualty Insurance
Co. after the company interpreted a suicide note he wrote to be his letter
of resignation. ... The civil complaint says Young was on emergency medical
leave for an emotional breakdown May 29, 2000, when he drove to the shopping
center's parking garage and was spotted on mall security cameras with a
revolver. ... Douglas County sheriff's deputies finally coaxed him into
surrendering". His suit seeks back pay, front pay and punitive damages.
(John Accola, "Man who was suicidal sues ex-employer for discrimination",
Rocky Mountain News, May
18). (DURABLE LINK)
May 21 -- "Anonymity
takes a D.C. hit". If Rep. Felix Grucci has his
way, you won't be able to duck into a library while on the road to check
your Hotmail; the New York Republican has "introduced legislation requiring
schools and libraries receiving federal funds to block access from their
computers to anonymous Web browsing
or e-mail services. ... Grucci says it's necessary to thwart the usual
suspects, terrorists and child molesters." (Declan McCullagh, Wired
News, May
19). And did you know that it would be unlawful to put
out this website in Italy without registering
with the government and paying a fee? New regulations in
that country are extending to web publishers an appalling-enough-already
set of rules that require print journalists to register with the government.
Says the head of the Italian journalists' union approvingly: "Thus ends,
at least in Italy, the absurd anarchy that permits anyone to publish online
without standards and without restrictions, and guarantees to the consumer
minimum standards of quality in all information content, for the first
time including electronic media." (Declan McCullagh's politechbot, "Italy
reportedly requires news sites to register, pay fees", April
11; "More on Italy requiring news sites to register, pay fees", April
12) (via Virginia Postrel's "The
Scene", posted there May 6). (DURABLE
LINK)
May 21 -- "Patients'
rights" roundup. Well, duh: "Doctors supporting
patients'
rights bills have suddenly become alarmed that some of the proposals
could boomerang and expose them to new lawsuits." (Robert Pear, "Doctors
Fear Consequences of Proposals on Liability", New York Times, May
6 (reg)). "Consumers do not consider the right to sue health
insurers over coverage issues a top healthcare priority, according to new
survey data released by the Blue Cross and Blue Shield Association (BCBSA),"
which is of course an interested party in the matter; a right to sue "finished
last among 21 major health issues that consumers were asked to rank."
(Karen Pallarito, "Poll: Right to sue HMOs low priority for consumers,"
Reuters Health, April 26 (text)
(survey data -- PDF)).
And if liability is to be expanded at all, Congress should consider incorporating
into the scheme the "early offers" idea developed by University of Virginia
law professor Jeffrey O'Connell, which is aimed at providing incentives
for insurers to make, and claimants to accept, reasonable settlements at
an early stage in the dispute (John Hoff, "A Better Patients' Bill of Rights,"
National Center for Policy Analysis Brief Analysis No. 355, April
19). (DURABLE LINK)
MORE: Greg Scandlen, "Legislative Malpractice: Misdiagnosing
Patients’ Rights", Cato Briefing Papers, April 7, 2000 (executive
summary) (full paper
-- PDF); Gregg Easterbrook, "Managing Fine", The New Republic,
March
20, 2000.
