We haven’t reported on the doings of Prof. Richard Daynard for a while, but here’s this Oregonian item about his institute at Northeastern University:
Mark Gottlieb, executive director of the Boston-based Public Health Advocacy Institute, said a handful of groups are looking at the potential for a broad product liability lawsuit over the addictive nature of the machines. …
“There are some similarities [with tobacco],” Gottlieb says. “We are talking about a product that is engineered to make people do something that is basically destructive and causes an economic injury.”
Portland attorney Greg Kafoury says he is part of “a team of national lawyers” looking at a potential class-action suit. He wouldn’t go into detail but called it “a major, long-term project.”
There is nothing new, however, about lawyers’ yearning to crack open this particular well-guarded vault. See our reports from May and September 2002, for example. Hope springs eternal?
Considering that whole edifices of regulation are built on the premise of the lethal nature of “passive” smoking, you’d think the press might pay at least passing attention to reports like this one: a big study of more than 76,000 women found no link between lung cancer and secondhand smoke, which tends to confirm earlier studies also consistent with zero or undetectable association. [Journal of the National Cancer Institute; Christopher Snowdon]
“The American Civil Liberties Union has filed a federal action against the U.S. Conference of Catholic Bishops, alleging that its ethical guidelines given to Catholic hospitals resulted in negligent care for a miscarrying woman.” The suit, in the name of a Muskegon, Mich. woman who allegedly experienced pain and suffering by not being advised at once to abort a doomed fetus, also names as defendants three individuals who have chaired a church-affiliated body by the name of Catholic Health Ministries. The suit does not however name as a defendant Mercy Health Partners, where plaintiff Tamesha Means was treated, nor does either the Bishops’ Conference nor CHM own Mercy. So what’s the legal theory? Well, the bishops issued ethical guidelines they expected Catholic-affiliated hospitals to follow, and CHM acted as Mercy’s “Catholic sponsor” vouching for its compliance with those guidelines. So maybe the theory consists of “incitement to commit malpractice.” Is it rude to point out that the law recognizes no tort of that sort? [ABA Journal, MLive, Alex Stein/Bill of Health (background on Michigan med-mal law)]
Organizers at a church in Neath, Wales don’t mind rules requiring the donkey-riding Mary in a childrens’ Nativity play to be wearing a crash helmet, or as the case may be “riding hat.” They say the eight-year-old’s costuming can readily be arranged to conceal the anachronistic headgear during the Christmas procession. No word on whether, as at petting zoos, participants coming in contact with the animal will need to apply hand sanitizer before proceeding. Critics term the rule “‘elf – ‘n’ – safety.” [BBC, Telegraph]
“The man who sued the Dominican Republic because it rained during his vacation has been labeled a ‘quarrelsome litigant’ by a Quebec judge. … Court of Quebec Justice Diane Quenneville ruled last month that ‘the court has no hesitation to conclude that Leduc is abusing the justice system.’” [QMI/Canoe.ca]
In a lawsuit charging negligent maintenance of a tractor-trailer truck, a part of which broke off and killed the driver of a second vehicle. [Insurance Journal]
I was a guest Friday on Fox Business Network’s The Willis Report, with guest host Dennis Kneale, to discuss two antitrust cases in the news: Apple’s vigorous efforts to fight back against a monitor appointed as part of its e-books antitrust case [Roger Parloff/Fortune, Alison Frankel/Reuters], and the FTC’s enforcement action against music teachers for anti-competitive practices. You can watch here.
I’ll save the (highly significant) Apple-vs.-monitor case for another post. The Federal Trade Commission’s enforcement action against music teachers, skillfully told by Kim Strassel in the WSJ, demonstrates what officialdom is willing to do with the legal sledgehammer that it claims to need to take on giant corporations like Apple: it uses that weaponry against the mild-mannered piano teacher next door and her little trade association. In a sane world, when the association said its hortatory statement had never been enforced and it would delete it from now on, the FTC’s enforcers would declare victory and move on to some more important case. That they did not do so here speaks volumes about the zeal, careerism and lack of proportion that add up to runaway government.
[Yasmin] Rahman tried to commit suicide in 2001 by jumping in front of a subway train. NYPD officers saved her life. She was 15. Now, 27, she’s suing the city for $7 million, claiming the city and the NYPD posted pictures, police reports and hospital records of her failed suicide attempt on a database open to the public. She claims that has prevented her from obtaining a job.
Although her lawsuit alleges that the publication of the material has prevented Rahman from “obtaining any type of job,” a reporter “found that she actually did have a job from 2010 to 2012,” among other difficulties with the story. Rahman’s lawyer, Andrew Schatkin, commented on the $7 million demand: “I put a large figure in because if I put a small figure in I would only get that small amount. It’s not that I’m making an outsized or frankly a lie about it for a better word. I’m simply enabling a figure that would get her as much compensation as possible.” [MyFoxNY.com; Eric Turkewitz on ad damnum clauses in New York]
I’ve got an op-ed in today’s Baltimore Sun urging lawmakers in Annapolis to keep an open mind (as many of them indeed seem to be doing) on the growing movement to end the war on cannabis. One plan proposed by delegate and gubernatorial candidate Heather Mizeur (D-Takoma Park) would legalize and tax the plant; others have suggested various degrees of decriminalization. I did not at all care for the reaction of one of my own representatives, Del. Kathy Afzali (R-Middletown), who told a reporter: “It’s my firm belief that marijuana makes you lazy and stupid, and while this may really encourage Delegate Mizeur’s base, my base are the hard-working taxpayers of Maryland who are probably not the ones who are smoking marijuana and being lazy.” Yikes!
A Ninth Circuit panel has ratified that result in a gender discrimination case under California law, ruling that federal district judge Claudia Wilken was within her discretion to approve the award even though, as defendant United Parcel Service argued, “plaintiff Kim Muniz recovered comparatively little in damages and had not prevailed on most of her claims.” [Julia Love, The Recorder; Muniz v. UPS]
A group called the National Fair Housing Alliance has taken the lead in levying sensational bias charges against mortgage lenders, claiming that neglect of REO (real-estate-owned) properties following foreclosure has followed racially discriminatory patterns. It helped negotiate the extraction of $42 million from Wells Fargo, and is pursuing tens of millions in claims against Bank of America and other lenders. NFHA’s claims have routinely been given unskeptical circulation in the press, but now an investigation by Kate Berry and Jeff Horwitz in the American Banker is bringing overdue scrutiny:
The group has disclosed addresses for only a fraction of the properties it alleges the banks have neglected, but a review of those it has released indicates that NFHA regularly misidentified the institution legally responsible for maintaining specific homes. In some cases, it conflated the banks responsible for maintaining properties with those that were simply serving as trustees for mortgage-bond investors. In others, it faulted banks for damage that occurred before they took possession of properties.
Not in dispute is the leverage the NFHA has gained in its dealings with banks from its close ties to supporters in the federal government. Unusual among Washington agencies, the Department of Housing and Urban Development both funds housing discrimination investigations by nonprofits, including by the NFHA, and provides the venue for them to negotiate their claims.
Grants from HUD and Fannie Mae helped get the NFHA and its leader, Shanna Smith, into the profitable business of investigations in the first place. Banks complain without success about Smith’s practice of demanding a deal while withholding the actual identities and addresses of the properties said to be suffering from bank neglect. Now the HUD-brokered Wells Fargo settlement has paid off richly with $30 million+ for the NFHA and its affiliates, the better with which to stir up more complaints. And watch the revolving door spin, amid few qualms arising from conflicts of interest: “Sara Pratt, the HUD official responsible for investigating and resolving the NFHA’s complaints, and who oversaw its settlement with Wells Fargo, is a former NFHA staffer and consultant.” (cross-posted at Cato at Liberty).
Turned down by all 150 (or however many) Denver bakers in their quest for a wedding cake, this couple had no choice but to sue. Oh, not really: they had an endless supply of perfectly good alternative options, but they apparently wanted to make a point by suing, as did the ACLU which represented them. [Associated Press; earlier here, here, etc.]
Whence Congress enacted and President Obama signed the NOEL law (Naughtiness Obliteration and Elimination Law of 2012):
…(1) Imposes a naughtiness “fee” of $50 upon each American child for every documented instance of their “naughtiness.” Revenues from this “fee” are to support the Federal Nice Fund (FNF), a newly created fund for public-works projects in NOEL-compliant states. (NOEL, § 3(a).)…
(4) To ensure full compliance, the NOEL bars any “person, group, or agency” that receives “funding, or any benefit from the federal government” from making a “material naughtiness determination” contrary to rules promulgated by the NRB, with the consequence of such a contrary determination being withdrawal of the federal funding and/or other benefit. (Id., § 22(z)(12)(F)(vii)(¥)(‰) (LOL)(¿)(?)(D).)…
Relax. It’s not real (yet). It’s just Prof. Kyle Graham’s constitutional law exam holiday card.