June 2001 archives, part 1


June 8-10 – Parted from his money. Philadelphia-area businessman David Piscitelli has settled his lawsuit against Sole Mio Balaam Nicola, 90, a resident of Egg Harbor City, N.J. who worked for many years as an astrologer at the Woolworth’s on the Atlantic City Boardwalk. Piscitelli said “he was the victim of a ‘gypsy scam’ from 1978 to 1991 that prompted him to turn over about $200,000, leave his wife, sell his real-estate business, and move to Brigantine to avoid snake attacks and other evil curses.” It all began, he told the court, when he found Nicola’s ad in the Yellow Pages and arrived at her establishment where she “instructed him to hand her $400 under her desk for the purchase of candles that, when burned, would remove his curse.” However, Nicola averred that he had been a willing financial supporter of her “pyramid-shaped Temple of Hope and Knowledge, a house of worship she founded on the White Horse Pike in Galloway Township.” Moreover, she “denied ever demanding cash to remove curses from Piscitelli’s family members, forcing him to turn over his wedding ring, depositing a beheaded bat at his home, or throwing his Christmas presents into the bay, as he claims.” (Amy S. Rosenberg, “Fortune teller or taker: Boardwalk astrologer got $200,000 and lawsuit”, Philadelphia Inquirer, May 17).

June 8-10 – Tobacco plunder in Los Angeles. Its anger whipped up by a sharp trial lawyer, an L.A. jury has voted $3 billion in punitive damages against Philip Morris in a case brought by an individual smoker. (CNNfn, June 6; Robert Jablon, “Los Angeles Jury Orders Philip Morris to Pay $3 Billion to Lifelong Smoker”, AP/Law.com, June 7). Our take on the earlier Engle case appeared in the Wall Street Journal: July 18, 2000 and July 12, 1999. Update Oct. 2, 2004: appeals court orders punitive award cut to a sum not to exceed $50 million.

June 8-10 – Lockyer should go. We weren’t the only ones who concluded (June 1-3) that California attorney general Bill Lockyer was unfit for public office after hearing him express a hope that an energy-company adversary would be jailed and suffer prison rape: Tom G. Palmer (Cato Institute), “‘Hi, My Name Isn’t Justice, Honey’, and Shame on Bill Lockyer”, Los Angeles Times, June 6; see also Steve Chapman, “Since when does rape equal justice?”, Chicago Tribune, June 7; Larry Elder, “Blame-shifting in California”, FrontPage, June 1. (See update, June 22-24).

June 8-10 – Forbes on lead paint suits, cont’d. There seems to be no dispute that some, if not many, cases of classic lead poisoning continue to occur among children who literally eat chips of old paint in dilapidated housing in inner-city areas like South Providence (see yesterday’s post). A key factual premise of the mass suits, however, is that the paint is causing learning deficits and behavioral problems among a wider class of children whose blood-lead levels might not have been considered particularly high by medical science through most of the twentieth century (when ambient lead levels in the human environment were far higher) but which are now viewed as triggers for concern or even as “poisoning” following a drastic downward revision of definitional thresholds some years back.

As Forbes‘s cover story points out, this leaves a question of how to account for why the symptoms now causing concern were not observed more widely during the long period when lead-based interior paints were commonly found in American homes. “If traces of lead near such levels have something to do with learning disabilities, the sweeping decline in blood-lead levels in the U.S. in the past half-century should have given us a generation of geniuses in our elementary schools. But test scores have scarcely been going up …. Even as blood-levels in children dropped drastically, IQ scores have increased a consistent 3% a decade for 100 years — possibly because of media exposure and better nutrition.” Nor, one might add, does one observe a big “absence of lead effect” if one compares the learning and behavioral problems of kids growing up in modern housing projects, most of which were built after the discontinuance of lead pigments in paint, with those of similarly disadvantaged kids growing up in older housing stock. (Michael Freedman, “Turning Lead Into Gold”, Forbes, May 14 (reg)).

MORE: For a contrary view, accepting the premise that lead paint in older housing is causing widespread as opposed to exceptional harm to children, see the recent series in the Providence Journal: Peter Lord, “Poisoned”, May 13-18. For more on the course of the litigation, see Bob Van Voris, “Paint suit’s a lead balloon (so far)”, National Law Journal, May 8; “San Jose: Judge gives counties OK to sue paint firms”, San Francisco Chronicle, June 4; Tom Kertscher, “Suing Just 2 Paint Firms Helps Case, Lawyers Say”, Milwaukee Journal Sentinel, April 9. (DURABLE LINK)

June 7 – “‘Pseudologia Fantastica’ Won’t Fly”. Contrary to what he claimed during the screening process that led up to his appointment to the bench, “Los Angeles Superior Court Judge Patrick Couwenberg never earned a Purple Heart. He didn’t fight in Vietnam or work for the CIA. Nor did he attend Loyola Law School or earn a master’s degree in psychology or any other subject.” Now a disciplinary panel has rejected the judge’s plea in mitigation of his fibs that he suffers from “a recently diagnosed condition called ‘pseudologia fantastica,’ which doctors say causes people to tell tall tales and mix fantasy with facts.” (Sonia Giordani, The Recorder, May 18). Update: state panel orders him removed from bench (see Aug. 20-21).

June 7 – Ness monster sighted in Narragansett Bay. Bad enough that Rhode Island, with its insider-dominated political system, has failed to shake its reputation as the “Louisiana of the North”. (See, e.g., Mark Sappenfield, “Legacy of scandal mars Rhode Island”, Christian Science Monitor, April 11). But will Little Rhody become the first state to auction itself off to out-of-state trial lawyers? You start wondering after reading Forbes‘s recent cover story on the nation’s richest tort law firm, Charleston, S.C.-based powerhouse Ness Motley (tobacco, asbestos, etc.), and its branch office in Providence, opened some years ago by partner John J. McConnell Jr. Ness Motley has quickly made itself “Rhode Island’s largest political contributor, at $540,950 for the 2000 national elections”, and its local partner McConnell has become treasurer of the Democratic party in the tiny state. By one of these coincidences that are so rare in novels but so common in real life, Rhode Island Democratic attorney general Sheldon Whitehouse, considered ambitious for a gubernatorial run, in 1999 awarded the Ness firm a contingency fee contract to sue on behalf of the state seeking money from former makers of lead paint — the only one of the fifty state AGs thus far to take such a step. If the firm and its superlawyer Ron Motley succeed in convincing cities, school districts and other governmental units to follow suit, they might extract billions from such companies as Arco, ICI Glidden, and American Cyanamid. “In April, in a major victory for Motley, a Rhode Island Superior Court judge rejected the defendants’ motion to dismiss, and Sherwin-Williams’ stock dropped 21%.” (Michael Freedman, “Turning Lead Into Gold”, Forbes, May 14 (reg)). Dueling websites: leadlawsuits.com (defendants) and aboutlead.com (Ness Motley)[more on lead paint litigation tomorrow] (DURABLE LINK)

June 7 – “Sorry, Slimbo, you’re in my seats”. Columnist Peter Simpson isn’t impressed with the opinion of the Canadian government that, as a matter of handicapped rights, severely overweight airline passengers should be given an extra seat free of charge (Ottawa Citizen/National Post, May 11; Glen McGregor, Treat the obese as disabled, airlines told”, Ottawa Citizen, Dec. 10; see Dec. 20, 2000). (Update Dec. 15-16: Canadian transportation agency backs off policy)

June 7 – Welcome WSJ OpinionJournal.com readers. We’ve figured in their “Best of the Web” feature quite a few times recently, including yesterday. Also: KRLD Dallas, “Eye on the Internet” with Katie Pruett (interviewed our editor last night); Good Clean Fun June 2; LynnLynn’s Links June 4; links lists Ennazus, Brian Tebeau’s, Breaching the Web, Stop Lawsuit Abuse — Mississippi, Amy Welborn’s, ChinaLawInfo.com, YouDontSay.org (“too many lawyers?”), Washington State University at Spokane, Eruditum.org, Joseph DeMartino’s (see “something we have no shortage of”), Weaverlane LogB2K, Univ. of Georgia Sagan Society, Baltimore Citizens Against Lawsuit Abuse, Snakebite’s, and Mr. Linck’s social studies class in Morrisville, N.Y. (gun debate).

June 6 – Intellectual-property dispute Hall of Fame. San Francisco Bay area artists Emily Duffy and Ron Nicolino have each retained lawyers and have exchanged threatening letters in a dispute over who owns the concept underlying their art, which consists of giant bundles of brassieres: hers weighs 650 pounds, his twice as much. Both bra assemblages “keep growing — huge spheres of lace, silk, padding and underwire bras of all colors, shapes and sizes.” Nicolino “has used 14,000 bras from an abandoned project to hook them across the Grand Canyon. Now he’s pulling his ball to Los Angeles behind his 1963 flamingo pink Cadillac, looking for someone to sponsor a worldwide tour and eventually, a showcase where people can continue hooking on their own bras.” “I think it’s a major important part of American art,” he said. Duffy says he swiped the idea from her. (Margie Mason, “Bay Area artists battle over giant bra balls”, Modesto Bee, May 29). They both have websites: braball.com and nicolinosbraball.com.

June 6 – “Risks of the crime”. A Florida appeals court has dealt a setback to two men who sued a hotel for damages after they were shot in its parking lot during a suspected drug deal. The appeals court said the hotel chain should not be held responsible for injuries incurred by visitors engaged in criminal acts. A jury had ruled for the men to the tune of $1.7 million (see Dec. 15, 1999) after Judge Celeste Muir “excluded all evidence of the suspected drug deal — including the previous drug conviction of one of the men suing, an electronic scale and $38,000 in cash found at the scene. All the jury heard was that two hotel guests who were shot in a dimly lit Ramada Inn parking lot in Hialeah wanted damages from the hotel.” The case is still pending. (“Risks of the crime” (editorial), Miami Herald, June 5).

June 6 – To destroy a doctor. Laparoscopic (small-incision) surgery counts as one of the major medical advances of recent years, and among its internationally famed practitioners have been the three Iranian-born Nezhat brothers, all of whom are on the faculty at Stanford Medical School. For more than seven years Cleveland lawyer James Neal has been pursuing medical malpractice complaints against the Nezhats, accusing them “of, among other things: lying about their credentials; systematically overbilling their patients; threatening witnesses; conducting unauthorized experimental surgeries; sexually assaulting patients; kidnapping at gunpoint; and faking their research in order to promote devices [used in surgery] in exchange for consulting fees and royalties from manufacturers. ” Although he hasn’t made much progress in getting courts to accept his charges, Neal’s pursuit of the numerous lawsuits has taken over his life and, say the Nezhats, has ruined theirs. (Alison Frankel, “Obsession” (cover story), The American Lawyer, June 4).

June 5 – Prisoners stay acoustic. The First Amendment does not confer on federal prisoners a right to practice on electric guitars, ruled U.S. District Judge Emmet Sullivan May 22. “[C]onvicted bomber and frequent litigant Brett Kimberlin … who’s in federal prison in Petersburg, Va., on parole violations”, had sued the federal Bureau of Prisons over a rule restricting inmates to acoustic instruments, saying it inhibited his rights of expression. (Jonathan Groner, “Inadmissible: Unplugged”, Legal Times, May 28) (second item).

June 5 – NFL satellite ticket class action. The National Football League has agreed to settle a class action lawsuit filed four years ago over its practice of selling only season packages to its satellite-TV televised games. Under the settlement, subscribers will get cash payments of between $8.33 and $20.83, and will be able to buy individual weeks at $29.99 each instead of the whole season at $169.99 for the last two years of existing contracts; two named plaintiffs will get $1,000 each, and the lawyers will enjoy an appetizing $3.7 million in fees. Counting administrative costs as well as the legal payouts, the settlement is expected to cost the league more than $13 million, and if you think fans may wind up footing much of the bill for such legally inflicted outlays over the long run as ticket prices go up to cover them, why, shame on you for being such a cynic (“Lawsuit settlement with DSS allows fans to buy single weekend games”, AP/Detroit News, June 1; ValkyrieRiders.net discussion, May 31) Update Aug. 20-21: judge disallows settlement.

June 5 – Missouri’s tagalong tobacco fees. When it came to the role it played in the multistate tobacco litigation, Missouri “didn’t need red-hot lawyers. Our lawsuit was what’s called a tagalong suit. We were the 27th state to sue the tobacco companies. A national settlement was already in the works. … Five months after Team Missouri was assembled, [it] was reached.” But that didn’t stop the lawyers who represented the state — some of whom “were distinguished more for their political connections than their legal track records”– from asking for a cool $480 million in fees, though they later declared themselves willing to settle for $100 million (see Sept. 21, 2000). Readers will recall that not long ago popular St. Louis Post-Dispatch columnist Bill McClellan had the temerity to criticize the high fees trial lawyers were getting in another case, and they promptly slapped him with an intimidating $1 million lawsuit (Nov. 4, 1999; Nov. 30, 1999; Feb. 29, 2000). But he still goes right on writing these sorts of columns, even though he must know it’s bound to get more lawyers mad at him. Hasn’t he learned his lesson yet? (Bill McClellan, “Just what did our tobacco legal team do for $100 million?”, St. Louis Post-Dispatch, May 16). Update Oct. 5, 2003: Missouri Supreme Court refuses to entertain challenge to tobacco fees.

June 4 – “Dad Sues After Girl Fails to Make Cheerleading Squad”. In Vestavia Hills, Ala., the father of Laura Brooke Smith “has sued [the] school district, saying his daughter’s rejection from the high school cheerleading squad despite professional coaching has caused her humiliation and mental anguish.” (Fox News, May 31). And in North Haven, Ct., the “families of two high school sophomores have filed a federal lawsuit over the school’s decision to drop them from the drum majorette squad.” Stephanie Tata and Rebecca Mickolyczk and their mothers filed the suit in U.S. District Court April 30. Town attorney Robert K. Ciulla says the schools get “many” disputes over after-school activities, but this is the first involving baton twirling. (Ann DiMatteo, “Families Sue Over Unfair Twirl Tryouts”, New Haven Register, May 18).

June 4 – Maori tribes v. Lego. “Three New Zealand Maori tribes are considering a legal challenge to Danish toy company Lego over the use of Maori words and Polynesian culture in a new computer game. New Zealand-based barrister Solomon Maui has written to Lego asking for sales of the game to be suspended, saying it infringed the Polynesian people’s intellectual property rights to their language and culture.” (“Maori challenge Lego over use of culture”, CNN, June 1; Slashdot thread).

June 4 – EEOC: unfiltered computers “harass” librarians. In a “blockbuster” ruling, the Equal Employment Opportunity Commission declared on May 23 that the Minneapolis Public Library may have subjected its librarians to unlawful “hostile work environment” sexual harassment by exposing them to sexually explicit images called up by patrons on unfiltered computers. The pro-censorship religious-right Family Research Council hailed the ruling, which is likely to intensify legal pressure on institutions of all sorts (including libraries at private universities and research institutions, and indeed all enterprises with employees) to install “filtering” software which excludes a wide variety of websites deemed obscene, hateful or otherwise improper.

Public libraries like the one in Minneapolis are likely to be sued if they do, sued if they don’t, given the precedent of a 1998 federal district court decision finding that the filtering policy of a public library in Loudoun County, Va., was unconstitutional. However, UCLA’s Eugene Volokh predicts that the balance of legal pressure will tilt toward website blocking, because losing a First Amendment lawsuit filed by patrons will subject a library to only “nominal damages”, while losing a Title VII discrimination suit can result in a damage figure “with lots of zeros in it”. In the Minneapolis case, “[Librarian Wendy] Adamson said the E.E.O.C. had privately suggested to the library that it pay each of the 12 employees $75,000 in damages,” which would add up to $900,000. (Carl S. Kaplan, “Cyber Law Journal: Controversial Ruling on Library Filters”, New York Times, June 1)(reg).

June 1-3 – Sweetness and light from Bill Lockyer. As the state’s power crisis continues, California attorney general Bill Lockyer provokes a few gasps with his recent comments about Enron Corp. chairman Kenneth Lay: “I would love to personally escort Lay to an 8-by-10 cell that he could share with a tattooed dude who says, ‘Hi my name is Spike, honey,'” Lockyer told the Wall Street Journal. While the state’s top law enforcement officer thus quips about subjecting a prominent adversary to prison rape, the Los Angeles Times notes that “neither Lockyer’s office nor any investigative panel has filed charges against Enron or other companies”. (Jenifer Warren, “Lockyer Fires Earthy Attack at Energy Exec”, L.A. Times, May 23, fee-based archive; “Lockyer lockdown”, L.A. Daily News, May 29). Lockyer, who’s promised a bounty of millions of dollars to any informant who can nail the generating firms, was elected AG in a well-funded campaign after serving for many years as head of the Judiciary Committee and chief guardian of litigation-lobby interests in the state Senate; The Recorder (S.F.), Dec. 11, 1992, described him as “the darling of trial lawyers…a part time plaintiff’s attorney”.

Other California politicos have also stepped up the business-bashing to an intensity not heard since the 1970s, to judge from an account by Chris Weinkopf in the Los Angeles Daily News. At a press conference, state senate president pro tem John Burton “announced the solution is for Sacramento to ‘terrorize the bastards’ [electricity generators] by seizing their power plants. If he were governor, he said, he ‘would have taken them yesterday.’ The actual governor, Gray Davis, is more subtle in his attacks. He’s only called the generators ‘marauders,’ ‘pirates’ and ‘the biggest snakes on the planet Earth.’ … Lt. Gov. Cruz Bustamante has called for empowering the state to put energy executives in jail. …Treasurer Phil Angelides has suggested that if generators ‘don’t take their foot off our throat,’ the state should ‘seize a plant or two to sober them up.'” (Chris Weinkopf, “California’s Assault on Energy Producers”, Los Angeles Daily News, April 24, reprinted at FrontPage magazine).

MORE: In San Francisco Weekly, Jeremy Mullman makes the case that the key error in California’s electricity restructuring was to proceed with government-supervised “Reliability Must-Run” (RMR) contracts (he explains what these are) which perversely rewarded generators for unreliability and supply shortfalls (“Contract Killings”, May 30). See also William Tucker, “California Unplugged”, The American Spectator, April; Rob Wherry, “Crossed Wires,” Forbes, March 5 (reg); “Power Scramble”, Forbes, April 23. (DURABLE LINK)(& welcome visitors from AndrewSullivan.com; Sullivan nominates Lockyer for his “Paul Begala Award” for intemperate rhetoric, linking to our item)

June 1-3 – Old-hairstyle photo prompts lawsuit. Speaking of the unlamented 1970s: Skip Johnson, a production manager who once toured with Jefferson Airplane and the Eagles and was married to singer Grace Slick, has sued a dotcom, its advertising firm, and photo firm Corbis over an ad prominently displaying an old photo of him and implicitly poking fun at the unruly 1970s-vintage hairstyle he then wore. He now sports a more conservative ‘do; suits over commercial use of people’s pictures without their permission go back at least as far as 1902, according to his lawyers. (Peter Hartlaub, “S.F. dot-com is sued over big hair ad”, San Francisco Chronicle, May 29). And the latest tattoo-misspelling lawsuit comes from Tucson where a parlor left out one of the “n”s in the motto 22-year-old West Hill had asked to have inscribed on his arm, thus rendering it as “New Beginings”. (Maureen O’Connell, “A major tattoo miscue”, Arizona Daily Star, May 29).

June 1-3 – “A disabling verdict for organized sports”. Steve Chapman’s take on the high court’s ruling in the Casey Martin case; quotes our editor (Chicago Tribune, May 31). Also: Lance Morrow, “PGA, not SCOTUS, Should Have Decided the Casey Martin Case”, Time.com, May 31; Paul Campos, “Martin ruling only further handicaps us”, Rocky Mountain News, June 2; “The court’s errant shot” (editorial), Chicago Tribune, May 31.