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ARCHIVE -- MAY 2001 (III)


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 TimesJuly 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 Patientsí Rights", Cato Briefing Papers, April 7, 2000 (executive summary) (full paper -- PDF); Gregg Easterbrook, "Managing Fine", The New Republic, March 20, 2000.


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