January 2002 archives, part 1
January 9-10 – Minimum GPA for study abroad said unfair to disabled. “A 19-year-old sophomore is suing Macalester College in St. Paul for discrimination and mental anguish because the school denied his application for a German study abroad program set to begin this month. Macalester officials told Colin Kennedy he was turned down for the program because he did not maintain a 2.5 grade-point average his first two semesters. … Kennedy claims depression prevented him from excelling at his studies during his first two semesters and that the school failed to make reasonable accommodations for his illness.” (Hannah Allam, “Macalester sued over denial of study abroad”, St. Paul Pioneer Press, Jan. 3). However, the U.S. Supreme Court has just dealt a blow to liberal interpretation of the ADA in the workplace, ruling unanimously that it does not entitle an employee to accommodation of a physical ailment that impairs her ability to do the job, unless the ailment also interferes with major life activities more generally (“Supreme Court limits disabilities law in unanimous decision”, CNN, Jan. 8; Warren Richey, “In workplace, tougher standard on job-related injuries”, Christian Science Monitor, Jan. 9; Charles Wolfe, “Toyota Suit Before High Court Raises ADA Issues for Business”, AP/Law.com, Nov. 7). “The justices are right,” says a Washington Post editorial (“Injuries and Disabilities”, Jan. 9). (DURABLE LINK)
January 9-10 – Updates. Further developments in possibly familiar controversies:
* In the litigation over Atlanta day-trader Mark Barton’s murderous 1999 rampage (see Dec. 5), a judge has dismissed the building owner, manager and security company as defendants, but let suits proceed for now at least against the two day-trading companies where Barton committed killings. (Trisha Renaud, “Suits Against Day-Trading Firms Survive Summary Judgment in Rampage Case”, Fulton County Daily Report, Dec. 10) (see update Dec. 19, 2003)
* On November 1 a court in New York City dismissed all remaining charges in the “cybersex” case against Columbia University student Oliver Jovanovic, bringing to a close one of the most controversial sexual-abuse prosecutions in recent years (see Dec. 23, 1999) and casting a shadow over the departure from the Manhattan D.A.’s office of celebrated prosecutor Linda Fairstein. The case is the latest to call in question the application of “rape shield” laws, which sometimes operate to exclude evidence highly probative of defendants’ innocence in cases of claimed sexual coercion (Cathy Young, “Excluded Evidence”, Reason, Feb.; Nat Hentoff, “Rashomon in the Bedroom”, Village Voice, Nov. 2 (mature content); defense site Cybercase.org).
* No sooner had the Pfizer company heaved a sigh of relief over a defense verdict in its first jury trial over recalled diabetic drug Rezulin (see Dec. 19) than it lost big in a second case: a Corpus Christi, Texas jury awarded $43 million in actual damages and the company quickly agreed to an undisclosed but presumably substantial settlement (Miriam Rozen, “Parties Settle Rezulin Case After Jury Awards $43 Million in Actuals”, Texas Lawyer, Jan. 2).
* In France, following a U.S.-imitative court decision allowing families to file “wrongful birth” damage suits on behalf of disabled children for violation of their “right not to have been born” (see Dec. 11), ob/gyns have responded by “refusing to carry out ultrasound scans on pregnant women … The protest action could have an impact on thousands of women.” (“Scan strike by French doctors”, BBC, Dec. 3).
January 9-10 – Fair is foul, and foul is fair. In a case where Philadelphia cops failed to prevent a schizophrenic from hurting himself, a few whispered lawyer incantations magically transmute a case of possible negligence into an “extreme and outrageous” instance of “intentional infliction of emotional distress”. (Lori Litchman, “Intentional Infliction of Emotional Distress Claim Against Police Goes Forward”, Legal Intelligencer, Nov. 14). And the Supreme Court of Pennsylvania has ruled that “sudden” might actually mean “gradual”, in another of those pollution-insurance cases where that kind of stretch occurs so often. (Lori Litchman, “Supreme Court Ruling Deals Blow to Insurers Over Pollution Clause”, Oct. 22).
January 7-8 – Like father, like daughter? Illinois House Speaker Michael Madigan has for years been the chief guardian of trial lawyer interests in the state legislature. Now his daughter Lisa is running for attorney general of the state, and gathering in endorsements from such potentates as Chicago mayor Daley. (Fran Spielman, “Daley backs Madigan for attorney general”, Chicago Sun-Times, Jan. 4).
January 7-8 – “Slipping straight to the jury”. “Grocery stores around the country spend $450 million annually to defend slip-and-fall claims, according to the Bedford, Texas-based National Floor Safety Institute. … The average slip-and-fall claim nationwide is for $3,900, while the cost to litigate a lawsuit has reached $100,000, says Russ Kendzior, executive director of the institute. … Last month, however, the Florida Supreme Court dramatically changed the rules in ways that delighted the plaintiffs’ bar and infuriated the defense bar and business groups. In a unanimous ruling, the state’s high court rewrote the rules, dramatically shifting the burden of proof away from the plaintiff and onto the shoulders of the defendant. Now, if a customer takes a tumble, it’s up to the store to prove that it exercised reasonable care to keep its floors clean.” (Susan R. Miller, Miami Daily Business Review, Dec. 13). (Update Apr. 15, 2002: legislature partially undoes ruling.
January 7-8 – Defoliant litigation proves evergreen. “Seventeen years after a class action settlement intended to end lawsuits over Agent Orange, the 2nd U.S. Circuit Court of Appeals has ruled that two Vietnam veterans may sue companies that made the product.” (Bob Van Voris, “Agent Orange Suits Still Viable, 2nd Circuit Says”, National Law Journal, Dec. 12; Michael Fumento on Agent Orange).
January 7-8 – Canada: front-row spectator sues “reckless” exotic dancer. “A stripper and the bar where she worked are being sued by a man who claims the dancer kicked him in the face while he watched the show. Greg Bonnett of suburban Coquitlam, B.C., alleges he was enjoying the performance from a front-row seat at the Barnet Hotel in nearby Port Moody when the stripper swinging around a pole put her foot in his face.” Bonnett says he suffered a broken nose, blurred vision, headaches and difficulty breathing. (“Man says stripper kicked face, broke nose”, Canadian Press/azcentral.com, Nov. 28; Jay Nordlinger, “Impromptus”, National Review Online, Dec. 11 (next to last item)). More Canadian exotic dancer litigation: Aug. 14 and May 23, 2000.
January 4-6 – Welcome InstaPundit.com, AndrewSullivan.com readers. Two of the hottest webloggers around have included this site on their ongoing recommend lists: “all-powerful hit-king” Glenn Reynolds did it a week or two ago (see left column) and now we’re on Andrew Sullivan’s just-redesigned site (he says we offer “Peerless scrutiny of legal insanity.”). We’ll never be hungry for traffic again!
January 4-6 – Paroled prisoner: pay for not supervising me. From Canada: “The National Parole Board is facing a unique lawsuit over a crime committed by a paroled prisoner: a $1.6-million negligence claim from the criminal himself, who says he should never have been let go unsupervised. …’I feel the CSC and CSC parole are responsible for my every move while under their supervision,’ [Mark] Turner says in an affidavit filed in the Federal Court of Canada.” (Colin Freeze, “Paroled convict sues board over release”, Globe and Mail, Jan. 2) (via Damian Penny’s blog, which sports the motto: “You report. I decide.”)
January 4-6 – Memo to welfare commissioner: defy suit-happy activists. Mayor Mike Bloomberg’s new welfare chief, Verna Eggleston, faces a tall order trying to build on the successes of her Giuliani-era predecessor Jason Turner, writes Mickey Kaus. “She has to aggressively resist the demands of the city’s highly litigious ‘advocate’ community, which will pressure her to sign crippling consent decrees that effectively transfer power over the city to the ‘advocates.’ … ” (Kausfiles.com, Jan. 2 — see “Hit Parade”, left column)
January 4-6 – “Woman Wins Verdict, but no Money, Against Seagal”. Notable quote from action star Steven Seagal’s attorney after the case was over: “Just because you curse in the workplace doesn’t mean you should have to write a check.” (Reuters, Dec. 21).
January 4-6 – Mom wants to be sued. “Children have the right to sue their mothers over injuries caused by bad driving during pregnancy,” a Florida appellate court ruled. Talk about lawsuits that are collusive rather than genuinely adversarial: the mother herself is the one who’s been pushing for her daughter’s right to sue her, so that the family can get at the insurance money. (Catherine Wilson, “Judge: Miami girl can sue mom for injuries suffered as a fetus”, AP/Fort Lauderdale Sun-Sentinel, Dec. 19).
January 2-3 – Environmental lawsuits vs. military readiness. The high accuracy of American air and ground military targeting in Afghanistan is the result of “practice, practice, practice” over years of peacetime exercises at proving grounds and bombing ranges at home. But environmentalist lawsuits are increasingly tying up the armed services’ use of training grounds across the country, with the Vieques controversy just the most visible of many. Marine Corps Maj. Gen. Edward Hanlon Jr., commander at Camp Pendleton, warned Congress earlier this spring: “Our ability to train is being slowly eroded by encroachment on many fronts.” (Michelle Malkin, “Hostile Fire from Eco-‘Extremists'”, syndicated/Capitalism Magazine, Dec. 11).
January 2-3 – “Hot-dog choking prompts lawsuit”. “The family of Kevin Rodriguez, a Coral Springs sixth-grader who choked to death on a hot dog, has filed a wrongful death lawsuit alleging the county School Board failed to serve him food that is safe to eat.” (Wanda J. DeMarzo & Daniel de Vise, Miami Herald, Dec. 28).
January 2-3 – Mass., Ill., NYC tobacco fees. “Despite having already received a record $178 million fee, a Boston law firm yesterday asked Suffolk Superior Court to force Massachusetts to pay it an additional $282 million for its work on the state’s suit against the tobacco companies.” Brown Rudnick Freed & Gesmer says it is entitled to collect on a 25 percent contingency deal, and points out that the suit when first dreamed up was considered virtually untenable, which they seem to think is something worth rewarding about it. (Frank Phillips, “Law firm asks court for more tobacco money”, Boston Globe, Dec. 28)(see Dec. 22, 1999). Illinois tobacco lawyers, who think their $121 million fee award isn’t enough and want another $800 million, have won a ruling from the state supreme court allowing their suit to proceed in a Cook County court and not in the state Court of Claims. (Chicago Sun-Times, “Judge will decide lawyers’ fees”, Dec. 4, no longer online) (see Oct. 16-17, 1999). And “a lawyer who is suffering from breast cancer sued her former firm, claiming the firm failed to pay her $1.7 million she earned representing New York City in its litigation against the tobacco industry. Janis L. Ettinger says New York’s Storch Amini & Munves told her she would not be paid further for her work because ‘she could not realistically be a part of the future of Storch Amini by virtue of her illness.'” Private businesses have paid large sums under the Americans with Disabilities Act to settle claims that they have discriminated against employees suffering from grave illnesses. (Daniel Wise, “New York Lawyer Sues Firm Over Share of Tobacco Fees”, New York Law Journal, Nov. 6).
January 2-3 – The talk of Laconia. Un-neighborly doings in central New Hampshire, where local political activist Harriet E. Cady is suing store owner Bernard J. Salvador over his appearance at an August board of selectmen meeting of the town of Sanbornton. “Cady alleges Salvador made a statement in which he referred to her as a ‘lunatic,’ then read a letter against her. She said in his letter, which was published in some area newspapers, that he referred to her as ‘Little Hitler from Deerfield.'” So now she’s suing him for $1 million, saying the epithet had caused her emotional distress and damage to her reputation that “could have a cataclysmic effect on her ability to champion her political causes.” Cady has been involved in lawsuits against the town of Sanbornton in the past. (Gordon D. King, “Woman files $1m slander and libel suit”, Laconia Citizen, Dec. 12).