March 31-April 2 — Punished for resistance. Gun-suit organizers were hoping Smith & Wesson’s capitulation would bring about a race among other firearms makers to settle; instead, manufacturers, dealers and buyers are racing to dissociate themselves from the hapless company, formerly the market leader. Now — in a move that counts as heavy-handed even by the standards of activist attorneys general — Connecticut AG Richard Blumenthal and New York’s Eliot Spitzer are readying antitrust action against companies in the gun industry for the offense of shunning S&W. Connecticut reportedly issued subpoenas yesterday; among possible grievances bruited in the New York Times‘ account are that some organizers of shooting matches have told S&W that it is no longer welcome, that dealers are dropping its wares, and that other gun companies are unwilling to go on coordinating their legal defense efforts with S&W, which means it will have to find a new law firm. Blumenthal’s and Spitzer’s message to those in the gun business could hardly be clearer: better go quietly, because we’ll crush you if you resist in any organized way. (Fox Butterfield and Raymond Hernandez, “Gun Maker’s Accord on Curbs Brings Industry Pressure”, New York Times, March 30; Peter Slevin and Sharon Walsh, “Conn. Subpoenas Firms in Gun Antitrust Probe”, Washington Post, March 31).
March 31-April 2 — Terminix vs. consumer critic’s website. Pest control company Terminix retreats from courtroom efforts to swat dissatisfied consumer Carla Virga, who put up a website to publicize her unhappiness with its services. After its defamation suit was dismissed, the company tried again on the theory that Ms. Virga was infringing its rights by using the word Terminix itself in “metatags” directed at search engine listings. This succeeded in infuriating many in the Web community, and now the company has backed off that second action as well. Other companies that have gone to court against angry-consumer websites include Bally Total Fitness, Circuit City, and U-Haul. (Craig Bicknell, “Site No Longer Bugs Terminix”, Wired News, Mar. 11; Robyn Blumner, “Welcome to the world of free-speech exterminators”, St. Petersburg Times, Mar. 19).
March 31-April 2 — Employer-based health coverage in retreat? Report in the news-side Wall Street Journal last month suggests more big employers are beginning to “look for an exit strategy from the health-benefits business”, especially since “it’s possible that Congress or a court ruling will expose employers to legal liability in malpractice cases“. Under “defined contribution” models pioneered at Xerox Corp. and elsewhere, employees are given lump-sum health vouchers and told to find the plan that’s best for them. Sanford C. Bernstein analyst Kenneth Abramowitz sees the benefits of giving workers choice, but points out the danger that employees will be cut loose with a “Yellow Pages” outcome: “Here’s $5,000 and the Yellow Pages. You figure it out.” “Adding new liability for companies could prompt some to scuttle their health-benefits programs and send employees into the market to fend for themselves. Says Margaret O’Kane, head of a managed-care accrediting organization called the National Committee for Quality Assurance: ‘If employers find themselves in the path of the trial lawyers, I think you can expect a massive bailout'”. (Ron Winslow and Carol Gentry, “Health-Benefits Trend: Give Workers Money, Let Them Buy a Plan”, Wall Street Journal, Feb. 8, fee-based library).
March 31-April 2 — Welcome Milwaukee Journal Sentinel readers. Overlawyered.com was a featured website earlier this month in Bob Schwabach’s “On Computers” column, which runs in Wisconsin’s leading paper and many others nationwide (March 9).
March 30 — Hollywood special: “Erin Brockovich”. The words “babelicious” and “toxic tort” had probably never been used in the same sentence before, but Julia Roberts’ new flick is finally showing that with the right costume design a litigation movie can ace the box office. Now the Hudson Institute’s Mike Fumento, in an op-ed in Tuesday’s Wall Street Journal expanded considerably into a piece in yesterday’s National Post (Canada), challenges the premise, taken for granted among most reviewers of the film, that Pacific Gas & Electric was guilty as charged of poisoning the populace of a small California desert town with chromium-6 in the water. Fumento says the levels of contamination found were orders of magnitude lower than those needed to induce health effects in experimental animals; that the lawyers sought to blame on the water a wide assortment of ailments among local residents that science has not linked to chromium exposure; and that health studies found that the plant’s own workers, who were likely exposed to at least as much pollution as neighbors, had a life expectancy comfortably exceeding the California average. (Michael Fumento, “The dark side of Erin Brockovich”, National Post, March 29; Michael Fumento, “‘Erin Brockovich’, exposed”, Wall Street Journal, March 28; official film site; Mr. Showbiz review; Christine Hanley, “Brockovich’s Work Is Just Beginning”, AP/ABC News, March 27).
March 30 — Hollywood special: “The Insider”. Though nominated for numerous Oscars, last season’s portentous litigation epic The Insider got shut out in the actual naming of awards. Were Academy voters bothered by the film’s unacknowledged fictionalizations, or did they just share the views of Adam Heimlich of the New York Press, who last week called the film “preposterously overheated … The title character’s big revelation in this interminable movie — which treats the looting of tobacco companies by trial lawyers with enough gravitas to make Judgment at Nuremberg feel like Oklahoma! by comparison — is that ‘cigarettes are nothing but a delivery system for nicotine.’ … God forbid someone in Hollywood or on the Upper West Side speaks out against the selective demonization, for purposes of state and oligarchic power, of the drugs they don’t happen to use. Philip Morris should fight back with a drama exposing that Starbucks lattes are nothing but a delivery system for caffeine and martinis are nothing but a delivery system for alcohol. If Insider wins Best Picture … it’ll prove that Hollywood is nothing but a delivery system for the propagandistic justification of top-down class warfare.” But it didn’t win. (Adam Heimlich, “Heimytown”, New York Press, Mar. 22).
March 30 — Al Gore among friendly crowd. Last Thursday Vice President Gore attended a $500,000 luncheon fund-raiser at the Cincinnati home of Stanley Chesley, sometimes nicknamed the “Master of Disaster”, one of the country’s most prominent plaintiff’s trial lawyers. The Cincinnati Post says that Chesley, known for air-crash, tobacco and Microsoft suits, “has been a dependable fund-raiser for the vice president and President Clinton.” (Bill Straub, “Gore next to visit Cincinnati to raise funds”, Cincinnati Post, March 22; Sharon Moloney, “Gore bashes Bush tax plan”, Cincinnati Post, March 24); Christopher Palmeri and James Samuelson, “The Golden Leaf”, Forbes, July 7, 1997). For recent fund-raising by Bill Clinton among trial lawyers, see our Feb. 14 commentary.
Forbes Online columnist James Freeman recently took a hard look at Gore’s in-depth support from trial lawyers (“Who’s funding Gore?”, Feb. 28). Gore’s financial backers over the years have included most of the biggest names in the litigation business, including Wayne Reaud (asbestos, Toshiba laptops), John O’Quinn (breast implants, many others), Joe Rice (asbestos, tobacco), Bill Lerach (shareholder lawsuits), etc. Gore hosted Lerach at the White House for coffee in February 1995, Freeman writes, and Chesley was there for coffee that same day.
March 29 — Litigator’s bliss: finding opponent’s disgruntled former employee. “Assume the legal lotus position and imagine a happy place. What greater nirvana could there be than [finding] the disgruntled former employee of an opposing party? Gruntled or not, a high priority of any good discovery plan should be to identify and interview former employees as quickly as possible, before the other side can neutralize or co-opt them.” (Jerold S. Solovy and Robert L. Byman, “Discovery: Ex parte, Brutus?” (practitioners’ advice column), National Law Journal, March 27, not online).
March 29 — Why rush that software project, anyway? California adds to its reputation as a high-hassle state for tech employers with a law taking effect this year, backed by unions and plaintiff’s employment lawyers, requiring that many computer consultants be paid overtime rates if they put in more than eight hours in a day. Many such consultants bill at rates that exceed $50, $100 or even $200 an hour, before the overtime premium is added in. One Bay Area staffing exec says most of his employer clients are unwilling to trigger the overtime entitlement and are instead sending home specialists after eight hours who would previously have worked longer (Margaret Steen, “New overtime law spurs change in tech firms”, San Jose Mercury News, March 22, link now dead; “Hi, OT Law; Bye, Tech Boom?”, Reuters/Wired News, March 2; Margaret Steen, “New law means overtime pay for computer consultants”, San Jose Mercury News, Feb. 29; Kirby C. Wilcox, Leslie L. Abbott and Caroline A. Zuk, “The 8-Hour Day Returns”, CalLaw, Jan. 24).
March 29 — The bold cosmetologists of law enforcement. The New York Times took note this Sunday of efforts in Nevada and Connecticut to enlist beauty-parlor personnel in the task of identifying possible victims of domestic violence for referral to battered women’s shelters and other social service agencies (see our March 16 commentary). Its report adds a remarkable new detail regarding the sorts of indicators that Nevada cosmetologists are being officially encouraged to watch for as signs of household violence (being licensed by the state, they have reason to listen with care to what’s expected of them). “Torn-out hair or a bruised eye may signal abuse, but more subtle warning signs may come out in conversation. One Nevada hairdresser, [state official Veronica] Boyd-Frenkel said, told of a client who said: ‘My husband doesn’t want me to see my friend anymore. He says she is putting bad ideas in my head.’
“‘Emotional abuse, intimidation, control, jealousy, overpossessiveness and constant monitoring,’ she said, can be as sure signs of domestic violence as physical injuries.” Does Ms. Boyd-Frenkel, who holds the title of “domestic violence ombudsman” for the attorney general of Nevada, really deem it “emotional abuse” and potential domestic violence when a husband seeks to warn a wife (or vice versa) away from a friend who’s considered a bad influence? Is such spousal behavior really to trigger the notice of the official social-service apparatus, and its new deputies in the hair and nail salons of Nevada? (Jeff Stryker, “Those Who Stand and Coif Might Also Protect”, New York Times, March 26).
March 29 — Update: advice to drop medication unavailing. As reported earlier, subway-push defendant Andrew Goldstein went off his antipsychotic medication before his recent murder trial on advice of his lawyers, in order to demonstrate to the jury how deranged he was (see Feb. 26-27 and March 2 commentaries). Whatever the ethical status of this tactic, it was apparently unavailing in practice: a New York City jury convicted Goldstein of murder last week. He will probably serve his sentence in a state prison outfitted to give him psychiatric care. (Samuel Maull, “Man Convicted in Subway Shove Case”, AP/Excite, Mar. 22).
March 28 — $65 million Texas verdict: driver at twice the legal blood limit. “A Galveston, Texas, jury has awarded $65 million to the parents and estate of a woman who drowned after her car plunged off a boat ramp and she couldn’t disengage her seat belt.
“The jury found defendants Honda of America Manufacturing Co. Inc. and Honda R & D Co. Ltd. 75 percent responsible for the death of Karen Norman — even though after her death, Norman’s blood-alcohol level measured at nearly twice the Texas legal limit. …
“After the accident, [Honda attorney Brad] Safon noted, Norman’s blood-alcohol level was measured at 0.17. The Texas drunk driving limit at the time of the accident was 0.10; it is now 0.08.” Plaintiff’s lawyers said the salt water in which Norman drowned might have thrown off the blood level reading. (Margaret Cronin Fisk, “Fatal Grip of Seat Belt Results in $65M Verdict”, National Law Journal, Mar. 27)(& update Oct. 13, 2003: appeals court throws out award, which trial judge has previously reduced to $43 million).
March 28 — Call me a fraud, will you? Why, I’ll…I’ll hire you! Last year Big Five accountants Ernst & Young paid $185 million to settle a bankruptcy trustee’s charges that it had mishandled the affairs of the now-defunct Merry-Go-Round apparel chain. Now Ernst has sued its former law firm, D.C.-based Swidler Berlin Shereff Friedman, which it says should share the blame. And to prosecute the new suit Ernst has hired none other than the law firm that sued it in the first round, Snyder, Weiner, Weltchek & Vogelstein of Pikesville, Md. “Swidler noted that Snyder Weiner in the earlier suit had accused Ernst of fraud, and now Snyder Weiner in ‘this complaint asserts “E&Y’s innocence of the fraud”‘”. An Ernst executive shrugs off criticism: “Who knows about the case more than the firm that argued the other side?” (Elizabeth MacDonald, “Ernst & Young Sues Law Firm Over Settlement”, Wall Street Journal, March 14 (online subscribers only); James V. Grimaldi, “Accounting Firm Sues Lawyers”, Washington Post, March 14).
March 28 — Annals of zero tolerance: don’t play James Bond. A fifth-grade “model student” at Sutton Elementary School in Tecumseh, Michigan faces expulsion for up to a half year for bringing a plastic toy gun to school because he wanted to “play James Bond”. “You could see it was plastic,” said school superintendent Rich Fauble. “If you looked at it, you could tell it wasn’t a gun.” “I just wanted to play with it at recess,” said the boy, in Fauble’s account. “I didn’t want to hurt anybody. I play with it at home.” Sutton principal Debra Langmeyer said the board’s recommendation of expulsion “might seem extreme” but is intended to “send a message” about guns. (“Toy gun may cause student’s expulsion”, Toledo Blade, Mar. 16).
March 28 — From the labor arbitration front. The Connecticut Supreme Court, over dissents from two of its members, has upheld an arbitrator’s order that David Warren be reinstated to his municipal job in the town of Groton, from which he was dismissed in 1997 after pleading no contest to charges of larceny. Warren was accused of stealing money from the town by selling dumping permits and pocketing the proceeds himself, but the court saw no reason to disturb an arbitrator’s reasoning that his no contest plea might have reflected a wish to avoid the cost and inconvenience of trial, rather than actual guilt. (“‘No-contest’ not guilty, Supreme Court says”, New Haven Register, March 21). And the U.S. Supreme Court has agreed to review an arbitrator’s order that a West Virginia mining company rehire a heavy machinery operator fired after he twice tested positive for marijuana use. The Fourth Circuit upheld the reinstatement, noting that courts “overwhelmingly” defer to the results of arbitration in the unionized workplace. (AP/FindLaw, “Supreme Court to clarify when lower courts can overrule arbitrators”, Mar. 20; Eastern Associated Coal Corp. vs. United Mine Workers, 99-1038).
March 28 — Another visitor record set. Last week was the busiest yet for visitors since Overlawyered.com was launched nine months ago … thanks for your support!
March 27 — Welcome Arts & Letters Daily readers. The best weblog in the world for coverage of essays and history, biography and belles-lettres, is put out for a worldwide audience by philosophy professor Denis Dutton of the University of Christchurch in New Zealand. We get a featured link today (see right-hand column after link to Sullivan piece, for which itself see below).
March 27 — Another S&W thing. “We want to do a Smith & Wesson-like thing with DoubleClick,” Michigan attorney general Jennifer Granholm said Thursday, referring to restrictions on Web data collection that she and attorneys general from New York, Connecticut, and Vermont have been negotiating with the biggest online ad-placement company. We suppose this means that she and her colleagues want to invent far-fetched legal theories to attack business practices that have long been regarded as lawful; file a great flurry of suits in multiple courts so as to overwhelm the designated opponent; use the threat of bankrupting legal expense to muscle it into submission with no need to reach a decision on the merits; and instill fear into other businesses that the same thing could happen to them unless they cooperate with the dictates of ambitious AGs. After all, that’s what was done to S&W. (“AGs Eye Privacy”, Reuters/Wired News, March 23; “DoubleClick in settlement discussions”, Bloomberg News/CNet, March 23).
March 27 — Philadelphia: feminist groups to be consulted on whether to classify incidents as rape. As several high-profile cases in recent years demonstrate, authorities sometimes charge men with rape or sexual abuse in cases where there’s conflicting or ambiguous evidence as to whether there was nonconsensual sexual contact (see, for example, the case of Columbia University grad student Oliver Jovanovic, whose conviction was overturned by a New York appeals court in December). Now Philadelphia police commissioner John Timoney has announced that “he will let women’s organizations help police decide when to believe sexual-assault complaints and how to classify them.” Barbara DiTullio, who heads the Pennsylvania chapter of the National Organization for Women, called the plan “wonderful” and said it could become a model for police departments across the country. “We’re putting together a committee of women . . . and [will] actually, quite literally, let this women’s group be the final say on our classification [of cases]” said Timoney in an interview, though the women’s groups themselves expressed doubt as to whether their say would be final. (Mark Fazlollah, Craig McCoy, and Robert Moran, “Timoney to allow sex-case oversight”, Philadelphia Inquirer, Mar. 21) (via Freedom News).
March 27 — Microsoft Windows downgrade. Be prepared for the Justice Department’s anticipated “remedies” in Reno v. Gates by visiting this parody site (Bob Rivers, KISW, Seattle).
March 27 — Social engineering by lawsuit. Yale law professor Peter Schuck “doubts [that Smith & Wesson] would have lost a court case,” according to this New York Times “Week in Review” piece, which also quotes the editor of this website concerning the evils of litigation as an end run around democratic process (Barry Meier, “Bringing Lawsuits to Do What Congress Won’t”, New York Times, March 26). Cato Institute fellow Doug Bandow wonders why undemocratic lawmaking-by-lawsuit hasn’t become a bigger election issue: “Politics is a bad way to make policy. Litigation is worse.” (“Litigative vs. Legislative Democracy”, Cato Daily Commentary, March 20). And Andrew Sullivan warns Britons that unless they watch out, their country’s trend toward “empowerment of lawyers” will lead them to the state of “hyper-litigation” typified by the U.S. (“A brief warning: soon lawyers will have Britain by the throat”, Sunday Times (London), March 26).
Also: we’ve now put online our editor’s op-ed from last Tuesday on the Smith & Wesson settlement, which expanded on the arguments made earlier in this space (Walter Olson, “Plaintiff’s lawyers take aim at democracy”, Wall Street Journal, March 21).
March 27 — Kessler rebuked. Last week the Supreme Court ruled that former Food and Drug Administration chief David Kessler had made an improper power grab when he claimed for his agency “broad powers that had somehow gone unnoticed for more than half a century” to regulate tobacco, writes Chicago Tribune columnist Steve Chapman: “This was a startling revelation indeed. In 1964, the FDA said it had no authority to regulate tobacco. In 1965, it said it had no authority to regulate tobacco. In 1972, it said it had no authority to regulate tobacco. Ditto in 1977, 1980, 1988, and so on — until four years ago, when Kessler checked the attic and was pleasantly surprised to find this prerogative stashed in a box crammed with eight-track tapes and copies of Look.” (“On Target: A Setback for the Anti-Tobacco Jihad”, March 23; Tony Mauro, “For ‘Better or Worse’ FDA Can’t Regulate Tobacco”, American Lawyer Media, March 22).
March 24-26 — “Trial Lawyers Pour Money Into Democrats’ Chests”. The article everyone’s talking about: yesterday’s New York Times shines some overdue light on the trial lawyers’ frantic shoveling of vast sums into this year’s federal election races. “‘It would be very, very horrifying to trial lawyers if Bush were elected,’ said John P. Coale, a Washington lawyer involved in the tobacco litigation, who has given over $70,000 to the Democrats. ‘To combat that, we want to make sure we have a Democratic president, House and Senate. There is some serious tobacco money being spread around.'” “What’s different this time around,” said Michael Hotra, vice president of the American Tort Reform Foundation, “is that everyone recognizes that the stakes are higher. We have a candidate who is making legal reform a core issue and we certainly applaud Bush for that.” Also discusses the website ATRF has set up to monitor trial lawyer campaign spending (Leslie Wayne, “Trial Lawyers Pour Money Into Democrats’ Chests”, New York Times, March 23).
March 24-26 — Who wants to sue for a million? A group of disabled Miami residents has filed a federal lawsuit against Disney and ABC under the Americans with Disabilities Act, claiming that the screening process for the hit TV show “Who Wants To Be a Millionaire” requires the use of a touch-tone telephone and does not make alternative provision for deaf applicants. “The group is seeking class-action status for themselves and others who are deaf, blind or paralyzed and have problems using the phone or hearing the instructions.” (Jay Weaver, “Disabled 4 sue to try for TV million”, Miami Herald, March 17). Update Nov. 7: federal judge dismisses case.
March 24-26 — Next: gender-blind stage casting? A federal jury in Nashville has returned a sex discrimination verdict against a pair of historical theme restaurants that hired only male food servers as a part of attempting to convey the atmosphere of 1800s-era riverboats. The Equal Employment Opportunity Commission sued Cock of the Walk restaurants in 1996 after a woman named Susan Mathis carried a secret tape recorder in her purse while applying for a server’s job (more on the curious lack of outrage over this practice). “The servers had to represent the legendary fighters who brawled for the privilege of steering the riverboats, which netted them the best-of-the-best title: ‘Cock of the Walk’,” a group that historically did not include women.
In 1997 the EEOC came under criticism for its crusade against the “Hooters” sexy-waitress chain, which paid $3.75 million in a settlement in hopes of not having to hire “Hooters Boys”. However, the agency’s contention that entertainment value is an improper basis for sex-casting in the hiring of food servers “has never been applied [by a court] to a more mainstream restaurant such as this, which does not have sexual titillation as part of its theme,” said a lawyer for the restaurants. (Stacey Hartmann, “Restaurants’ male-server policy loses in court”, The Tennessean (Nashville), March 16).
March 24-26 — Slip, fall, head for court. Roundup of recent Chicago gravity mishaps, as reported in the Sun-Times and relayed in Jim Romenesko’s irresistible Obscure Store: “Debbie Jacques was forced to wear paper booties when she tumbled. Monica Beeks walked in deep, loose grass, and fell. John Incisi tripped on a Kleenex box left on the stairs. They’re all hanging out in civil court, hoping to get some cash.” (Tim Novak, “Health worker blames paper booties for slip”, Chicago Sun-Times, Mar. 21).
March 24-26 — Welcome visitors. A sampling of the websites that have linked to Overlawyered.com recently: the distinguished literary and arts monthly, the New Criterion; ABC News correspondent John Stossel‘s site; the Capital Research Center, which keeps an eye on politicized philanthopy; Pat Fish’s Luckyfish.com; the Nebraska Taxpayers for Freedom; Pickaway County (Ohio) Sportsmen, known for their shooting competitions; and Turkey’s Association for Liberal Thinking (Liberal Düsünce Toplulugu).
March 23 — Baron’s judge grudge. Dallas asbestos-suit czar Fred Baron may or may not have added another notch to his belt with the GOP primary defeat this month of Texas 14th District Court judge John Marshall. In 1998 Judge Marshall was presiding over asbestos litigation filed by Baron & Budd when evidence surfaced that the firm had engaged in extensive witness-coaching (see “Thanks for the Memories“); Judge Marshall referred the matter to a grand jury for possible prosecution, but the charges were eventually quietly buried without indictments. Baron, who now claims vindication, “made no secret of the fact he wants Marshall’s head,” according to alt-weekly Dallas Observer in a report just before the primary. “As early as last spring, Baron was casting about, looking for a candidate to back. ‘I talked to half a dozen people. We were looking for any candidate we could get who would be qualified to run against John Marshall'”. It had to be in the Republican primary, though, which is nowadays tantamount to election in Dallas County. First-time candidate Mary Murphy of Jenkins & Gilchrest, the one who eventually stepped forward to challenge Marshall, “insists she’ll be a fine Republican judge even though she wrote a $1,000 check to the Democratic party four years ago” among other past Democratic ties. “I had nothing to do with getting Mary Murphy to run. That’s a lie, a complete and absolute lie,” Baron told the Observer. Murphy says Baron did try to talk her into running but that it was others who convinced her. Promptly assembling an ample campaign chest, she went on to defeat the incumbent Marshall, obtaining 52 percent of the vote. (Thomas Korosec, “Bench Press”, Dallas Observer, March 9; Todd J. Gillman, “Republican judge questions challenger’s party loyalty”, Dallas Morning News, Feb. 19; Holly Becka, “Voters sent message by ousting three judges, experts say”, Dallas Morning News, March 16 (links now dead)).
Baron, whom we believe holds the title of president-elect of the Association of Trial Lawyers of America (we apparently jumped the gun recently in awarding him the title of president), has in the past been touchy about criticism. In 1998, when the Dallas Observer ran a cover-story exposé on his firm, columnist Julie Lyons said Baron had “bullie[d] the Observer’s every effort to investigate his firm’s practices, even taking the newspaper to court to discover sources, in a pattern of intimidation and paranoia such as the Observer has never experienced before.” (Patrick Williams, Christine Biederman, Thomas Korosec, Julie Lyons, “Toxic Justice”, August 18, 1998; Julie Lyons, “The Control Freak”, August 12, 1998. See also earlier Baron coverage on this website: Feb. 14, Jan. 8).
March 23 — Update: mistrial in bank robber’s suit, more litigation expected. By a vote of 9 to 3, jurors in their deliberations were of the view “that the civil rights of Emil Matasareanu, armed criminal, shooter of cops, were not violated on Feb. 27, 1998, by officers who didn’t get an ambulance to poor Emil quickly enough” after his bloody shootout with police following a North Hollywood bank robbery (see Feb. 23 commentary). A federal judge declared a mistrial, and an L.A. Times columnist writes that “the attorney for Matasareanu’s survivors is expected to bring the case against the city and two retired LAPD officers to court again. By survivors, I mean the dead man’s family, not the people he didn’t kill.” (Mike Downey, “A World With No Bad Guys, Just Topsy-Turvy Juries”, Los Angeles Times, March 17, link now dead).
March 23 — Let them sue us! In the recent media boomlet over “medical mistakes”, it’s been easy to forget that hospitals currently must anticipate years of expensive litigation if they move aggressively to withdraw practice privileges from perceived “problem doctors”. Consider the now-celebrated “Dr. Zorro” case, in which Dr. Allan Zarkin is alleged to have carved his initials into a patient’s body at New York’s Beth Israel Hospital. The hospital’s chairman, Morton P. Hyman, “vowed he would make it harder for doctors to maintain their privileges at Beth Israel and would see that hospital procedures were tightened further. … Doctors disciplined by the state will be automatically dismissed from the hospital, he announced, even if their firings leave the hospital liable. ‘Let them sue us,’ he said, pounding the table.” (Jennifer Steinhauer, “At Beth Israel, Lapses in Care Mar Gains in Technology”, New York Times, Feb. 15, not online).
March 22 — Next on the class-action agenda: liquor? Public Citizen, whose campaigns against American business often closely parallel those of the organized plaintiff’s bar, has for a while been grouping alcohol and gambling companies with tobacco and gun makers as “killer industries” in its distinctively shrill propaganda. (“Killer Industries Fund Congressional Champions of “Family Values'”, press release, Dec. 28, 1998, “Family Values, Killer Industries”, undated; both on Public Citizen website). And the pro-hospitality-business Guest Choice Network thinks it has evidence that the previously long-shot idea of mass litigation against alcoholic beverage makers may be getting to be less of a long shot:
“* The Minnesota DWI Task Force called upon their state’s criminal justice system to initiate class action litigation against makers of adult beverages.
“* MADD’s [Mothers Against Drunk Driving‘s] year-end press conference closed with a comment from president Karolyn Nunnallee that initiating litigation against alcohol and hospitality companies ‘will be an issue of discussion’ at an upcoming meeting. Although MADD did not have plans to sue ‘at this time,’ she added, ‘but never say never!'” (“They’re Bellying Up to the Bar!”, Guest Choice Network, undated). Martin Morse Wooster examines the evolution of MADD’s views in a new paper for Capital Research Center (“Mothers Against Drunk Driving: Has Its Vision Become Blurred?”, Feb. 2000).
March 22 — Rise of the high school sleepover disclaimer. Before having some of his daughter’s tenth-grade classmates out for the weekend to the family home in East Hampton, a parent at Manhattan’s tony Brearley School had his attorney draft a 765-word “liability waiver and indemnification agreement” for the other parents to sign and return. It describes the students’ impending visit to the “house and surrounding property at the above address (the ‘premises’) without charge on or about Saturday, November 20, 1999 and Sunday, November 21, 1999 during their weekend trip to East Hampton, NY (such use of the premises, the ‘visit’).” Several dense sentences later, it gets to the point: “Student and parent hereby waive any and all present and future claims related to or arising out of or in connection with the visit or any losses they, any other family member or any third party may suffer in connection therewith…” Apparently enough parents signed and the trip came off with no problem. (“Gotham: In Loco Parentis”, New York, Dec. 6; portions of disclaimer appear in printed magazine but not online).
March 22 — Newest disabled right: audio TV captioning. Decision expected this summer on Federal Communications Commission proposal that TV networks be compelled to provide at least four hours of programming a week with “secondary audio” descriptions of filmed action (“…Rhett takes Melanie in his arms and carries her to safety as Atlanta burns around them”) in hopes of giving blind viewers an “equivalent experience” to what sighted viewers are getting. Hollywood types “say descriptions will stifle creativity and jack up programming costs by about $4,000 for an hour of airtime”; audio captioning is considerably more expensive than closed-captioning for the deaf, mandated since 1998, because descriptions of filmed action call for a modicum of editorial judgment as opposed to mere transcription. And the National Federation of the Blind reports that many of its constituents have mixed feelings about the technique, finding it “irritating, overdone, and full of irrelevant information” and switching it off after a trial. (FCC captioning page; Nat’l Fed. Blind comments; Jonathan Aiken, “FCC proposes descriptive audio to help blind enjoy TV”, CNN, Feb. 24). See also our Feb. 19-21 commentary, on the ADA suit filed by deaf moviegoers in Oregon seeking to compel theaters to install closed captioning for films.
March 21 — Smith & Wesson’s “voluntary” capitulation. Today’s Wall Street Journal carries our editor’s op-ed on the Smith & Wesson settlement, adapted and expanded from yesterday’s commentary on this site. The piece asks: why aren’t Republican members of Congress and business people expressing more outrage? “It would surely make a symbolic difference if a few CEOs of companies outside the gun industry chipped in personal checks to start a legal defense fund for small gun makers being bulldozed by the cost of litigation, to give them at least a hope of surviving to fight the suits on the merits. Or if they let it be known that mayors who’ve signed on to the gun-suit jihad should stop passing themselves off as ‘pro-business.’ Not long ago the mayor of Bridgeport, Conn., Joseph Ganim, a gun-suit mastermind who’s considered ambitious for statewide office, was feted by a Chamber of Commerce in his local Fairfield County. Hey — it’s someone else’s industry he’s working to destroy, right?” (Walter Olson, “Plaintiffs Lawyers Take Aim at Democracy”, Wall Street Journal, March 21 (requires online subscription)).
March 21 — Ability to remain conscious not obligatory for train dispatcher, EEOC argues. “In the case of a former Consolidated Rail Corp. employee with a heart condition that can cause him to lose consciousness, the Equal Employment Opportunity Commission told a federal appeals court in Philadelphia that ‘while consciousness is obviously necessary to perform’ train-dispatcher tasks, ‘it is not itself a job function.'” The worker had sued Conrail under the Americans with Disabilities Act and lost in federal court; on appeal, the EEOC argued that the railroad could have accommodated his condition and that he was not a ‘direct threat’ to others, which is the standard employers must meet under the ADA if they wish to exclude disabled employees from jobs on safety grounds. “The employee was denied a dispatcher’s job that involves directing trains and taking emergency action to prevent crashes.” (“Employment Briefs: Worker denied promotion sues”, Detroit News, March 18).
March 21 — Furor just one click away. Outcry over Amazon.com’s patent of “one-click” shopping method rumbles on. Founder/CEO Jeff Bezos says the company did it in self-defense; he’s now proposed an across-the-board reduction in the length of patent protection for software and business-method patents. Some veteran intellectual-property lawyers take issue with that scheme and are also upset at a New York Times Magazine article by science writer James Gleick questioning some of the patent system’s fundamental assumptions. Until recently it was widely assumed that business methods — the discovery of a superior method for laying out the aisles of a supermarket, for example — couldn’t be patented at all. What would stores be like today if the idea of a “checkout counter” had been locked up for twenty years by the first company to file for it?
SOURCES: Victoria Slind-Flor, “The Biz-Method Patent Rush”, National Law Journal, Feb. 28; Chris Oakes, “Another Amazon Patent Furor”, Wired News, March 2; Boycott Amazon site (Free Software Foundation); Chris Oakes, “Bezos: Patents Were Self-Defense”, Wired News, Mar. 3; Chris Oakes, “Patently Absurd”, Wired News, Mar. 3; Bezos open letter, Amazon site; Dugie Standeford, “Book Publisher Launches Cybercampaign Against Amazon.com”, E-Commerce Law Weekly, March 8; James Gleick, “Patently Absurd,” New York Times Magazine, March 12; “The Harm of Patents”, O’Reilly Network, March 13; Omar Perez, “Amazon.com Patents Cast Giant Shadow Over Affiliates”, March 20; Miami Daily Business Review, March Victoria Slind-Flor, “Bar Reacts To Bezos Patent Reform Plan”, National Law Journal, March 20.
March 21 — Whether they meant to hurt anyone or not. How harsh can the legal environment become for drunk drivers? North Carolina seems to have pushed things to the ultimate extreme: its prosecutors seek to execute them when they cause fatal accidents. (Paula Christian, “Supreme Court to decide if drunk drivers get death penalty”, Greensboro News & Record, Mar. 12).
March 21 — New subpage on Overlawyered.com: Canadian corner. Finally! A page for our many readers north of the border who’ve noticed the nuggets of Canadian content we periodically slip in and would like them gathered in one spot for convenience. As befits the differences between the two legal systems, there isn’t so much “overlawyering” apparent in most of the stories we relay from Canada; but with regard to most other types and varieties of human folly, the two nations seem to be are in a neck-and-neck race.
March 20 — Liberty no longer insured by Smith & Wesson. In an ominous triumph for brute litigation force — and a setback for both democratic governance and Second Amendment liberties — the Clinton Administration and lawyers representing city governments on Friday bullied the nation’s largest gun maker into agreeing to a variety of controls on the distribution of its products, controls that the Administration had not been able to obtain through the normal legislative process. The company said its capitulation would preserve the “viability of Smith & Wesson as an ongoing business entity in the face of the crippling cost of litigation.” As the New York Times reports, the deal has “opened a new avenue for regulating the firearms industry without action from Congress, where partisan gridlock has stalled even modest gun-control legislation in recent months” — “partisan gridlock” being here employed by the Times as a pejorative synonym for the normal democratic process, which when working properly does not result in the speedy enactment of measures passionately opposed by a large constituency within the majority legislative party.
At this point it would make sense for the Republican Congressional leadership to rise up in unmistakable disapproval of the Clintonites’ invasion of their legislative prerogatives, and announce that –whatever one’s personal position on the details of gun control proposals — the use of litigation as an undemocratic end run around the legislative process is categorically wrong and must be fought with appropriate means at Congress’s disposal, such as funding cutoffs. And yet the first round of wire service stories quotes only one GOP Congressional leader, J.C. Watts of Oklahoma, as reacting to the news, and his quoted words, incredibly, are favorable: “we hail Smith & Wesson for taking a pro-active approach to the problem of violence”.
Advocates of gun-control-through-litigation — not to mention trial lawyers looking for an eventual payday from gun suits — view Smith & Wesson’s surrender as a harbinger of more victories ahead. “The legal fees alone are enough to bankrupt the industry,” boasts John Coale, one of the lawyers masterminding the city suits. “The pressure is going to be on”. Why are so few elected officials standing up to say that what’s going on is wrong?
SOURCES: Agreement text at HUD website; Smith & Wesson statement; Clinton Administration press release; “U.S. Drops Legal Threat Against Smith & Wesson”, Reuters/Excite, Mar. 17; Knut Engelmann, “U.S. Drops Legal Action Against Gun Maker”, Reuters/Excite, Mar. 17; David Ho, “Officials Praise Smith & Wesson”, AP/Excite, Mar. 17; Amy Paulson, “Smith & Wesson agrees to landmark gun safety settlement”, CNN, Mar. 17; Brigitte Greenberg, “Smith & Wesson Gets Preference”, AP/Excite, Mar. 18; Edward Walsh and David A. Vise, “U.S., Gunmaker Strike a Deal”, Washington Post, March 18; James Dao, “Gun Maker Agrees to Curbs in Exchange for Ending Suits”, New York Times, March 18 (requires free registration).
March 20 — “Study Shows Breast Implants Pose Little Risk”. “An analysis appearing in Thursday’s New England Journal of Medicine suggests silicone breast implants are safe, despite widespread perception that the controversial devices cause health problems” — not to mention a trial-lawyer-led campaign that drove the devices off the market and reaped a settlement totaling billions of dollars from manufacturers. Researchers at the University of North Carolina, Chapel Hill, performed a combined analysis of 20 earlier studies and concluded that “‘the elimination of implants would not be likely to reduce the incidence of connective-tissue diseases’ such as rheumatoid arthritis, lupus, or other illnesses caused by the misfiring of the immune system”. (Reuters/ FindLaw, Mar. 15).
March 20 — Do as we say, cont’d. Disabled-rights laws are feared by many private business owners who face the prospect of heavy fines and lawsuit settlements for noncompliance. As for the judicial branch, charged with enforcing these selfsame laws? Well, they’re often a wee bit less mindful of ’em. Howard County, Maryland Circuit Judge James B. Dudley, who isn’t disabled, concedes that his desire to stick close to the courthouse so he could answer jurors’ questions during a trial was “probably not a justification” for his having chosen to park in a clearly marked handicapped space, a practice also engaged in by local sheriff’s deputies. (Del Quentin Wilber, “Judge parks in hot water”, Baltimore Sun, Mar. 11). And in Massachusetts, following on the revelation that Boston’s opulent new courthouse lacks wheelchair access to its jury boxes and witness stands (see July 17-18, 1999 commentary), the Cape Organization for Rights of the Disabled sued over the disabled-unfriendly state of the Plymouth County courthouse; Barry Sumner couldn’t get over the threshold to divorce his wife and had to ask her to help lift his chair. (Paul Sullivan, “Suit seeks access for disabled at Plymouth court”, Boston Herald, Sept. 10, 1999). Aren’t these courts lucky they’re not private businesses?
March 20 — Costs of veggie-libel laws. Talk show hostess Oprah Winfrey keeps winning in round after round of litigation filed by cattlemen after a February 1998 show she did on mad-cow disease. “Ironically, the more she wins, the more she loses,” observes First Amendment specialist Paul McMasters. Aside from our lack of a loser-pays rule, the culprit is “agricultural-disparagement” laws enacted in 13 states, which menace media producers if they knowingly broadcast false and disparaging statements that harm the salability of perishable farm products. (“Shut up and eat everything on your plate”, Freedom Forum Online, Feb. 21; Ronald K.L. Collins and Paul McMasters, “Veggie Libel Laws Still Out to Muzzle Free Speech”, Texas Lawyer, March 30, 1998). Last year the Texas legislature turned back an attempt to repeal that state’s ag-disparagement law, though the Abilene Reporter-News pointed out that the law is hard to square with the state’s successful efforts under Governor Bush to curb excessive litigation. (“‘Veggie libel’ law Texas can live without” (editorial), April 13, 1999; “House lets ‘veggie libel’ law stand; Bill seeking repeal voted down 80-57″, AP/Dallas Morning News, May 8, 1999).
March 20 — 250,000 pages served on Overlawyered.com. Thanks for your support!
March 17-19 — Holiday literary selection: Irish squire’s litigious ways.“Then there was a bleach yard near us, and the tenant dare refuse my lady nothing, for fear of a law-suit Sir Murtagh kept hanging over him about the water course. With these ways of managing, ’tis surprising how cheap my lady got things done, and how proud she was of it. … [The tenants] knew her way, and what with fear of driving for rent and Sir Murtagh’s law-suits, they were kept in such good order, they never thought of coming near Castle Stopgap without a present of something or other nothing too much or too little for my lady eggs honey butter meal fish game, grouse, and herrings, fresh or salt all went for something. … [H]e made a good living of trespassing cattle there was always some tenant’s pig, or horse, or cow, or calf, or goose, trespassing, which was so great a gain to Sir Murtagh, that he did not like to hear me talk of repairing fences….
“As for law, I believe no man, dead or alive, ever loved it so well as Sir Murtagh. He had once sixteen suits pending at a time, and I never saw him so much himself roads lanes bogs wells ponds eel-wires orchards trees tythes vagrants gravel-pits sandpits dung-hills and nuisances every thing upon the face of the earth furnished him good matter for a suit. He used to boast that he had a law-suit for every letter in the alphabet. How I used to wonder to see Sir Murtagh in the midst of the papers in his office why he could hardly turn about for them. I made bold to shrug my shoulders once in his presence, and thanked my stars I was not born a gentleman to so much toil and trouble but Sir Murtagh took me up short with his old proverb, ‘learning is better than house or land.’ Out of forty-nine suits which he had, he never lost one but seventeen; the rest he gained with costs, double costs, treble costs sometimes but even that did not pay. He was a very learned man in the law, and had the character of it; but how it was I can’t tell, these suits that he carried cost him a power of money in the end he sold some hundreds a year of the family estate but he was a very learned man in the law, and I know nothing of the matter except having a great regard for the family. I could not help grieving when he sent me to post up notices of the sale of the fee simple of the lands and appurtenances of Timoleague. ‘I know, honest Thady,’ says he to comfort me, ‘what I’m about better than you do; I’m only selling to get the ready money wanting, to carry on my suit with spirit with the Nugents of Carrickashaughlin.'” — from Chapter 1, Castle Rackrent, subtitled An Hibernian Tale Taken from Facts, and from the Manners of the Irish Squires, Before the Year 1782, by Maria Edgeworth (1800) (biographies: Edgeworth family site, E-Search Ireland, WritePage, Morley’s) (e-text at Carnegie-Mellon; alternate e-text location, Creighton U.) (passage is from fourth long paragraph of text).
March 17-19 — Letterman sign suit. Anna Soares, 79, who lives near the Manhattan studio where David Letterman tapes his show, filed a lawsuit last month demanding $12 million from CBS because the network has declined to remove a giant illuminated sign of Letterman’s likeness which shines into her apartment’s window. Network officials say they believe they have the proper permits for the sign. Reader Gregory Kohs of American Cynic comments: “what I find preposterous is the $12 million sum the lady decided would be fair.” If the sign does not violate code, how about asking for the costs of relocating to a less-commercial neighborhood? “I think a wee bit less than $12 million would be sufficient to get her belongings into a moving truck.” (“People in the news: Woman files lawsuit over Letterman sign”, Boulder Daily Camera, Feb. 19) (second item).
March 17-19 — Go ahead and comment — if it’ll do much good. The Occupational Safety and Health Administration’s proposals on ergonomics “may be the single most costly employment policy regulation in U.S. history,” according to the Employment Policy Foundation. Now OSHA has thrown open a period for public comment on the rules, but the Clinton Administration has already signaled that the option favored by most organized employers — not proceeding with the rules at all — is unlikely to be considered, no matter what volume of critical comments may come in. (Alice Ann Love, “Public dialog opens on new workplace safety rules”, AP/Fox News, March 14; Michael D. Towle, “OSHA pushing for new regulations aimed at preventing repetitive motion injuries”, CNN, March 9).
SOURCES: OSHA proposed standard; Yahoo Full Coverage; Ron Bird and Jill Jenkins, “Ergonomics Regulation: Vague, Broad and Costly”, EPF Backgrounder, Jan. 12; National Coalition on Ergonomics (employer alliance); Matt Labash, “Hooked on Ergonomics”, Weekly Standard, Feb. 28; “OSHA Unveils Ergonomics Standard To Ire of Congress, Employer Groups”, Employment Law Weekly, Nov. 29; comments of Mercatus Center, George Mason U., National Association of Manufacturers; (via Junk Science Robert Hahn, “Bad Economics, Not Good Ergonomics,” Wall Street Journal, Nov. 24; David Saito-Chung, “What Price Workplace Safety? New Rules Spark Debate Over Science, Business Costs”, Investor’s Business Daily, Nov. 30; “New OSHA regs need rethinking” (editorial), Boston Herald, Nov. 26; “OSHAme on them!” (editorial), New York Post Nov. 24; “Repetitive Bureaucracy Syndrome” (editorial), Chicago Tribune, Nov. 24.
March 16 — Dave Barry on tobacco suits, round II. The humorist, who wrote a priceless column on the federal tobacco suit last fall (see Oct. 26) now offers an update reflecting on the news that “so far the states are spending more than 90 percent of the tobacco-settlement money on programs unrelated to smoking, such as building highways. … This is good, because we need quality highways to handle the sharp increase in the number of Mercedes automobiles purchased by lawyers enriched by the tobacco settlement.” Then there’s the new round of class-action suits contending that smokers themselves deserve money from the states, which if successful will establish the following cycle:
“1. SMOKERS would give money to THE TOBACCO COMPANIES in exchange for cigarettes.
“2. THE TOBACCO COMPANIES would then give the money to THE STATES (and their lawyers).
“3. THE STATES would then give the money to SMOKERS (and their lawyers).
“4. THE SMOKERS would then presumably give the money to THE TOBACCO COMPANIES in exchange for more cigarettes.”
But isn’t this inefficient, you may ask? Wouldn’t it be easier to order the tobacco companies to give smokers free cigarettes directly? “The trouble with that idea is that it would defeat the two main purposes of the War on Smoking, which are (1) to provide the states with money; and (2) to provide lawyers with, well, money.” Don’t miss this one (“War on Smoking always has room for another lawyer”, Miami Herald, Feb. 18).
March 16 — Judges can’t charge cost of corruption defense to insurer. “Three former San Diego Superior Court judges convicted of corruption charges can’t parlay judicial liability insurance into coverage for their criminal defense, the 9th U.S. Circuit Court of Appeals ruled.” In one of the biggest judicial scandals in California history (see our editor’s 1996 piece on the case), Michael Greer, James Malkus and G. Dennis Adams were found to have accepted gifts from prominent trial lawyer Patrick Frega in exchange for favorable rulings in cases. (Jason Hoppin, “No Coverage for Judges Convicted of Corruption”, The Recorder/ CalLaw, March 2).
March 16 — Your hairdresser — and informant? Hairdressers “are often confidantes for many people,” says Veronica Boyd-Frenkel, who holds the post of “domestic violence ombudsman” in the state of Nevada. All this is by way of explaining why her office, working with the state attorney general’s office, has launched a program to train cosmetologists to recognize signs of domestic abuse, the better to steer suspected victims to approved anti-domestic-violence groups. “They may hear things even someone’s best friend may not hear,” says Ms. Boyd-Frenkel, of the hair stylists. The Las Vegas Review-Journal, in an editorial, thinks it all rather smacks of the enlistment of ever wider circles of the citizenry as official informants (Angie Wagner, “State asks hairdressers to help domestic abuse victims”, AP/Las Vegas Review-Journal, Feb. 28; “Down the wrong path” (editorial), Feb. 29; Vin Suprynowicz, “The Libertarian: Watch what you tell your hairdresser” (expanded version of editorial), March 1; “Training would not make informants of cosmetologists” (letter to the editor from Ms. Boyd-Frenkel), March 5).
March 16 — Prof sues for right to flunk students. The University of Michigan describes as “utterly without merit” a lawsuit filed by Dental School associate professor Keith Yohn challenging the university’s refusal to fail two sophomore dental students. Yohn charges that the school bent its academic rules to allow the two to remain, and that an assistant dean sent him a belligerent email informing him that poor grades he and three other professors had given the students would be disregarded. Acting as his own attorney, Yohn went to federal court to charge the university with “deprivation of ‘freedom of speech'” and disregard of the ‘health care interest’ of the public and their children”; he also asks $125,000 for emotional distress. (David Shepardson, “U-M sued over dental grades”, Detroit News, Dec. 30; Hanna Lopatin, “Dental Prof. Sues U. Michigan for Refusing to Fail Students”, Michigan Daily/ StudentAdvantage.com, Jan. 5).