November 2001 archives, part 2


November 19-20 – New frontiers in discrimination law: Harleys among the cyclamens. Lawmakers in Ohio, South Carolina and several other states are pushing legislation that would prohibit businesses from turning away customers on motorcycles. Georgia state Sen. Joey Brush, who rides a Harley-Davidson, “introduced the legislation because of a long-running dispute with Calloway Gardens, a private, nonprofit horticultural garden that doesn’t allow bikers to drive onto the grounds. The ban, in place for the garden’s entire 49-year existence, is meant to protect the serenity and peace for which the grounds are known, said spokeswoman Rachel Crumbley. ‘We feel it’s not a civil right to ride a motorcycle wherever you please,’ Crumbley said.” An Ohio rider who supports such legislation “said a waitress at a restaurant near Cincinnati once placed him and his wife in a corner away from other patrons when the couple pulled up wearing leather boots, chaps and vests.” But the biker community, which in the past has often sided with libertarian causes such as opposition to mandatory helmet laws, is far from unanimous on this one: “As a business owner, they should have right to decide who they want,” says spokesman Steve Zimmer of Ohio’s pro-biker ABATE group — clearly someone who hasn’t forgotten that biking is supposed to be about freedom. (Andrew Welsh-Huggins, “Laws Seek to Protect U.S. Bikers”, AP/Yahoo, Nov. 14). (& letters to the editor, Feb. 28) (DURABLE LINK)

November 19-20 – Can’t find the arsonist? Sue the sofa-maker. “With the two-year statute of limitations almost up, lawyers representing victims of New Jersey’s Seton Hall University dormitory fire are working frantically to find parties to sue.

“The fire, which authorities believe was intentionally started, broke out in the Boland Hall dormitory on Jan. 19, 2000, killing three students and injuring 58 others. Seton Hall, which enjoys charitable immunity from suit, has settled out of court with some of the plaintiffs. Still, lawyers contemplate suits against other people who may have contributed to the conflagration — the arsonists, the maker of the sofa that ignited and any other potentially responsible parties.” (Charles Toutant, “Seton Hall Fire Victims’ Lawyers Still Scrambling to Identify Defendants”, New Jersey Law Journal, Nov. 14) (see June 1, 2000). (DURABLE LINK)

November 19-20 – By reader acclaim: football’s substance abuse policy challenged. “New England wide receiver Terry Glenn has sued the NFL, claiming a disability makes it difficult for him to adhere to certain rules in the league’s substance abuse policy. … Glenn filed the complaint under the Americans with Disabilities Act, but it did not specify what disability Glenn suffers. Glenn claims he should not have been suspended by the NFL for the first four games of the season for violation of the substance abuse policy.” (“Glenn’s suit doesn’t specify disabilities”, AP/ESPN, Nov. 4). Plus: reader Rick Derer, outraged by the Casey Martin episode, has put up an ADA horror stories website to call attention to what he terms “the worst law ever foisted on the American people”.

November 19-20 – Municipal gun suits on the run. Cause for thanksgiving indeed: the lawless and extortionate municipal gun-suit campaign has been encountering one setback after another. “In a major victory for gun manufacturers, the 3rd U.S. Circuit Court of Appeals on [Nov. 16] upheld the dismissal of a suit brought by Camden County, New Jersey, that accused gun makers of creating a ‘public nuisance’ and sought to recoup the governmental costs associated with gun-related crimes.” Arguing the losing side were radical law prof David Kairys and class-action firm Berger & Montague. The three-judge panel was unanimous. (Shannon P. Duffy, “3rd Circuit Shoots Down Gun Suit Theory”, The Legal Intelligencer, Nov. 19). The city of Atlanta is desperately trying to keep its anti-gun suit alive in the face of legislation enacted by its parent state of Georgia making it as explicit as humanly possible that the city has no authority to press such a suit (Richmond Eustis, “Atlanta Asks State Appeals Court to Keep Alive Suit Against Gun Makers”, Fulton County Daily Report, Nov. 15).

Yale law professor Peter Schuck describes the gun lawsuits as based on the “most tenuous” theories yet of government rights of recoupment (“subrogation”) and tort law as “one of the last places” we should look to resolve the policy issues of gun control (“Smoking Gun Lawsuits”, American Lawyer, Sept. 10). And Bridgeport, Conn. mayor Joseph Ganim, who had taken perhaps the highest profile among Northeastern mayors in support of the gun suits, is likely to be less heard from for a while given his indictment last month on two dozen felony counts including extortion, bribery and mail fraud. (He denies everything.) (John Christoffersen, “In Connecticut, a growing and unwelcome reputation for corruption”, AP/Charleston (W.V.) Gazette, Nov. 16; Chris Kanaracus et al, “Ganim on the Spot” (pre-indictment coverage), Fairfield County Weekly, undated). See also Kimberley A. Strassel, “Bummer for Sarah Brady”, OpinionJournal.com, Nov. 15 (expressing optimistic view that municipal gun suits have been contained). (DURABLE LINK)

November 16-18 – Profiling perfectly OK after all. “State highway safety officials said they have received a $700,000 federal grant to help them crack down on two groups of chronic violators of the state’s seat belt law: drivers and passengers of pick-up trucks, and all male drivers and passengers between 18 and 55. … [Louisiana Highway Safety Commission Executive Director James] Champagne said state and federal studies have consistently shown pickup drivers and all male drivers are less likely to buckle up than any other groups of drivers or front-seat passengers. State law requires both the driver and front-seat passengers of vans, sports utility vehicles, cars and trucks to use seat belts. … Asked if the targeting of males and pickup drivers and passengers is profiling of a certain group, Champagne said, ‘Absolutely.’” To recap, then: the federal government strictly bans giving extra attention to 25-year-old males from Saudi Arabia at airport check-in. While they’re driving to the airport, on the other hand, it positively encourages them to be profiled. Perhaps the explanation is that it’s willing to swallow its scruples in order to combat really antisocial behavior — like failing to wear seat belts, as opposed to hijacking planes into buildings. (Ed Anderson, “Police to harness seat belt scofflaws”, New Orleans Times-Picayune, Nov. 10 — via InstaPundit). Meanwhile, the American Civil Liberties Union is soliciting racial-profiling plaintiffs in New Jersey. “The ACLU billboard, which went up last month, shows a photograph of two minority men and between them the words ‘Stopped or searched by the New Jersey State Police? They admit to racial profiling. You might win money damages,’ the sign reads. The ad includes the ACLU’s toll-free number.” (“Billboards in New Jersey Ask for Trooper Praise, Not Profiling Complaints”, FoxNews.com, Nov. 14).

November 16-18 – EEOC approves evacuation questions for disabled. To the relief of many in the business community, the Equal Employment Opportunity Commission has announced that it is not unlawful to ask workers about the state of their health for the purpose of formulating plans for emergency building evacuations. The September attacks called attention to the difficulty experienced in disaster situations by evacuees with such conditions as blindness, paraplegia, extreme obesity, and asthma. While employers may ask about problems that might impede evacuation, they should not insist on getting actual answers; EEOC officials recommend that they let each worker elect whether to disclose the information. The Americans with Disabilities Act has generally been interpreted as conferring on employees a broad legal right to conceal health problems from their employers. (Kirsten Downey Grimsley, “EEOC Approves Health Queries”, Washington Post, Nov. 1).

November 16-18 – Et tu, UT? Perhaps envying California its litigious reputation, the Supreme Court of Utah has ruled that it will not enforce releases in which parents agree to waive their children’s right to sue for negligence. The case involved a child thrown from a rented horse; the mother had signed a release before the accident, but then decided she wanted it invalidated so she could sue anyway. Attorney James Jensen, who represented defendant Navajo Trails, “listed many activities that now may be affected or curtailed, including school field trips, religious organization youth activities, scouting programs, amusement parks and ski resorts. ‘Anybody that provides recreational activities to minors,’ he said.” (Andrew Harris, “Utah High Court Says No Release of Liability to Children”, National Law Journal, Nov. 12).

November 15– “Poor work tolerated, employees say”. We keep hearing that if we were really serious about airport security we’d kick out those ill-paid Argenbright bag screeners and swear in a new 28,000-strong corps of federal employees to replace them. But a “new study concludes that federal workers themselves view many of their co-workers as poor performers who are rarely disciplined. The survey of 1,051 federal workers, conducted for the Brookings Institution’s Center for Public Service prior to the Sept. 11 terrorist attacks, found that on average federal employees believe 23.5 percent of their colleagues are ‘not up to par.’ Meanwhile, only 30 percent believe their organization does a very or somewhat good job of disciplining poor performers.” Those numbers are worse than the ones you get when you poll employees of private firms. At least when Argenbright botches things you can kick it out in favor of another contractor (Ben White, Washington Post, Oct. 30; Gregg Easterbrook, “Fighting the Wrong Fight”, The New Republic Online, Nov. 13).

November 15 – Lawyers’ immunity confirmed. In a dispute arising out of a developer’s plan to buy Fisher Island, home to many celebrities and wealthy persons, a Florida court has ruled that the developer cannot pursue a countersuit for tortious interference against residents who filed lawsuits aimed at derailing the deal, even if it can show they knew the suits to be unmeritorious. The court relied on a 1994 case in which the Florida Supreme Court ruled that an attorney’s acts in the course of litigation are subject to an “absolute” privilege: “We find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding.” Or, as the Miami legal paper puts it, “litigation itself is immune from litigation”. Put differently, people engaged in litigation boast an “absolute immunity” to engage in injurious behavior that would have a remedy at law if you or I tried it (Julie Kay, “Lawsuits of the Rich and Famous — and Their Two Dozen Law Firms”, Miami Daily Business Review, Nov. 1).

November 15 – Exxon Brockovich vs. Erin Valdez. The Ninth Circuit has struck down as excessive an Alaska jury’s $5 billion punitive award against Exxon over the Valdez oil spill, sending the case back for further litigation; compensatory damages are unaffected by the ruling (Henry Weinstein & Kim Murphy, “Court Overturns $5-Billion Judgment Against Exxon in ’89 Alaska Oil Spill”, L.A. Times, Nov. 8; Yahoo Full Coverage)(update Dec. 30, 2002: judge cuts award to $4 billion). Meanwhile, toxic-tort celebrity Erin Brockovich is helping spearhead a new effort to recruit plaintiffs from among the more than 15,000 workers who took part in the cleanup effort a dozen years ago, some of whom believe that it caused their health to take a turn for the worse. A Los Angeles Times account, after sympathetically relaying what would seem to be the most striking such cases the plaintiff’s team could come up with, concedes that “most health officials remain unconvinced that the cleanup left anyone sick”. (Nick Schulz, “Busy Bee Brockovich Looking to Sting Again”, TechCentralStation, Nov. 9; Kim Murphy, “Exxon Oil Spill’s Cleanup Crews Share Years of Illness”, L.A. Times, Nov. 5; Mary Pemberton, “Erin Brockovich probes Exxon complaints”, AP/ Anchorage Daily News, Nov. 6).

November 14 – “Rejoice, rejoice”. “[Y]esterday’s liberation of Kabul and much of the rest of Afghanistan is a great victory. … The moving scenes from the Afghan capital remind us … that most believing Muslims reject the rigorist insanity that bin Laden and the Taliban promote in their name, and are happy to worship God without having to wear a beard or a burqa. They can sing and dance again; women can work, and children can learn. The Taliban’s scorched-earth devastation of so many Afghan villages reveals their contempt for their own people, and their desertion of so many of their own Arab and Pakistani jihadis shows their capacity to betray. … Today, though, everyone who cast doubt on the possibilities of success and everyone who sneered at American ‘gung-ho’ should observe a period of silence. The rest of us should, to use a famous phrase from another war, ‘just rejoice rejoice’”. ((editorial), Daily Telegraph, Nov. 14; Paul Watson, “Taliban torturers on the run”, L.A. Times, Nov. 14; Christopher Hitchens, “Ha ha ha to the pacifists”, The Guardian, Nov. 14; Dexter Filkins, “In Fallen Taliban City, a Busy, Busy Barber”, New York Times, Nov. 13).

November 14 – Insurance market was in trouble before 9/11. With alarms being heard about an impending crisis in the availability of commercial insurance, it’s worth noting for the record that conditions were deteriorating rapidly in that market even before Sept. 11, mostly because insurers were pulling back from liability exposures: “Among the lines tightening the most are products liability, umbrella liability, contractor liability and nursing home liability, insurers and brokers say,” reported the July 2 issue of the trade publication Business Insurance. Also in scarce supply was coverage for “anything with an occupational disease exposure, like insulation and cell phones,” said one industry observer, Tom Nazar of Near North. “Generally, premiums for most liability lines are increasing anywhere from 25% to 60%,” with transportation risks seeing rate hikes of 100-200 percent and nursing homes 150 percent, said another insurance exec — all this well before the WTC attacks hit carriers with the largest losses from a single insured event in history. (Joanne Wojcik, “Transportation takes biggest hit in hardening market”, Business Insurance, July 2 (online subscribers only), and other contemporaneous coverage in the same publication). Directors’ and officers’ liability was another big problem area, especially for companies in fields such as high tech and telecom, financial services and health care. “The risks facing the steepest premium increases are pharmaceutical companies, nursing homes and contractors, especially organizations located in the litigious markets of California, Illinois and New York, insurance executives said.” In workers’ comp, “loss severity continues to deteriorate”.

And then there was asbestos: an August Standard & Poor’s report indicated that insurers were setting aside an additional $5-10 billion this year for asbestos claims, above earlier amounts reserved. “The implications to the insurance community are potentially devastating,” says the report. “Other analysts and ratings agencies recently have estimated that the insurance industry would need to put up as much as $20 billion to $40 billion more to cover their asbestos exposure. In May, ratings firm A.M. Best Co. calculated that insurers have set aside $10.3 billion to pay additional asbestos claims, having already paid out $21.6 billion.” A not-insubstantial portion of those sums, as we know, will go to compensate persons who are not sick from asbestos and never will be — raising once again the question of why we don’t try harder as a society to reserve the limited pool represented by insurance for situations where it’s really needed (Christopher Oster, “Insurers to Set Aside Additional Billions For Asbestos Claims”, Wall Street Journal, Aug. 1 (online subscribers only)). On proposals to bail out insurance markets since the attacks, see Scott Harrington and Tom Miller, “Insuring against terror”, National Review Online, Nov. 5. (DURABLE LINK)

November 14 – “Diabetic German judge sues Coca-Cola for his health condition”. Why should American lawyers have all the fun? In a trial that began Monday in Essen, Germany, Hans-Josef Brinkmann, 46, a judge in the east German town of Neubrandenburg, says the beverage company is partly responsible for his developing diabetes after drinking two bottles of Coca-Cola a day for years. He further “disputes the contention of the drinks company that Coca Cola is a ‘flawless foodstuff’ … Brinkmann plans to bring a similar case against Masterfoods, manufacturers of Mars Bars, Snickers and Milky Way chocolate candy, in January.” Whether Herr Brinkmann wins or loses these suits, we hope he’ll come to America — we bet he’d have no trouble landing a job at one of our law schools. (AFP/Times of India, Nov. 14) (more).

November 13 – From the paint wars: a business’s demise, a school district’s hypocrisy. “Sherwin-Williams Co. acquired Mautz Paint Co. Thursday after the local company said it could no longer afford facing a costly lawsuit filed by the city of Milwaukee. Bernhard F. ‘Biff’ Mautz, the company’s chairman of the board, said negotiations to sell the [family-owned] firm intensified in April after the city of Milwaukee filed suit seeking more than $100 million in damages over the manufacture of lead-based paints decades ago.

“‘Although we believe the city’s case is meritless and Mautz will ultimately be absolved of any responsibility, for the first time in our history we were faced with years of litigation, which even if (the plaintiff was) unsuccessful, would destroy our small company,’ he said. …

“The sale price was not released, but Mautz President Dan Drury said it was discounted to reflect the costs of the lawsuit. Founded in 1892, Mautz employed 260 people at its 33 retail stores and manufacturing plant. It had sales of $32 million last year. …

“Wisconsin Manufacturers & Commerce said the sale of the one of Madison’s oldest businesses will make it more difficult for the state to attract new businesses. ‘This is a sad day in the state of Wisconsin,’ said James S. Haney, the organization’s president. ‘This is every business person’s worst nightmare. Mautz got in the gun sights of the contingency fee trial lawyers and the bureaucrats and now another homegrown locally owned business with strong ties to the community is gone.’” (“Mautz announces acquisition by Sherwin-Williams”, AP/Janesville (Wis.) Gazette, Nov. 9).

Meanwhile: In Houston, where contingency-fee lawyers have been recruiting local school districts to go after paint companies, the lawsuit filed by the Spring Branch School District claims that residual paint from decades past exposes students and teachers to “a substantial risk of lead poisoning” — a dramatic charge indeed. Which left Jon Opelt, executive director of Citizens Against Lawsuit Abuse Houston and the parent of a child in the district, wondering why “the school district has never notified me, as a parent, of the presence of any health or safety risks related to lead. No cautionary notes have been sent home with my children. No alarming studies have been released discussing the severity of the problem in our schools.’”

Which naturally raises the question: is there a genuine lead hazard, which the district has been covering up from parents, or just a phony hazard, which their lawyers are conjuring up in an effort to squeeze money from manufacturers? Opelt: “Ron Scott, a lawyer for the school district, is quoted in a Houston Chronicle article as saying: ‘This isn’t a panic issue. People don’t need to feel their schools are unsafe.’ Duncan Klussmann, a district administrator, told me, ‘Your child is not at risk.’ These are the very same people who signed onto a lawsuit that says there is a ‘substantial risk of lead poisoning.’ What are we to believe? District officials are telling parents their schools are safe but their lawsuit demands millions of dollars for addressing a dangerous situation caused by lead paint. Both cannot be true.” (CALA Houston website, “Parent Urges School District To “Get The Lead Out“, “Contrary to Other Reports“, David Waddell, “Why Should Safety Be a Secret?“, Annette Baird, “District: Lead-paint concerns in check”, Houston Chronicle, Oct. 17). (DURABLE LINK)

November 13 – Update: ousted quartet member wins damages. “A Pennsylvania judge has ordered three members of the Audubon Quartet to pay their former colleague David Ehrlich more than $600,000 in damages, adding yet another dramatic twist to the legal battle that has largely silenced the internationally acclaimed quartet since February 2000 and cost the group its home at Virginia Tech.” (Kevin Miller, “Ousted quartet member should receive damages, judge rules”, Roanoke Times, Oct. 16; “In Support of the Audubon Quartet“; summary of court opinion) (see June 5, 2000, June 14, 2001). Update May 10-12, 2002: defendants could lose house.

November 13 – Women’s rights: British law, or Islamic? According to columnist Theodore Dalrymple of The Spectator, a misguided multiculturalism has led authorities in the United Kingdom to adopt a hands-off policy toward some British Muslim families’ trampling of their young daughters’ rights (“The abuse of women”, Oct. 27).

November 12 – “Morales trying to ‘clear the air’ before campaign”. Many assumed the political career of former Texas attorney general Dan Morales was dead, dead, dead after allegations began flying in the papers about the circumstances under which he’d hired outside lawyers to represent the state in the tobacco affair and share one of the largest fee windfalls in history (see Sept. 1-3, 2000). But now Morales wants to run for the U.S. Senate seat being vacated by Phil Gramm and is insisting with new vehemence that he never acted improperly and that it’s all been a misunderstanding. Two of his lawyers have “asked a state district court in Austin to let Morales lay the groundwork for a possible defamation suit by taking the sworn testimony of four former associates. Morales wants to question John Eddie Williams Jr. of Houston — one of five trial lawyers who shared $3.3 billion in legal fees from the tobacco case — and three former assistants in the attorney general’s office — Harry Potter of Austin and Jorge Vega and Javier Aguilar of San Antonio. He indicated that Williams and Potter, who was actively involved in the tobacco suit, could be targets of any suit he may file.” Pull up a chair, this promises to be interesting (Clay Robison, Houston Chronicle, Nov. 7). Morales also continues to deny “allegations by Houston trial lawyer Joe Jamail that Morales improperly solicited $1 million from each of several lawyers he considered hiring for the tobacco suit.”

November 12 – Short-sellers had right to a drop in stock price. At least that’s the premise underlying this press release and lawsuit from a class action law firm seeking the right to sue on behalf of short-sellers who feel their speculative bets against the stock of Intelli-Check Inc. were stymied by the company’s allegedly over-sunny fiscal projections. (“Speziali, Greenwald & Hawkins, PC Announces the Filing of a Class Action Suit on Behalf of Short-Sellers of Intelli-Check, Inc. (Amex: IDN) Securities”, Yahoo/PR Newswire, Oct. 18).

November 12 – “U.S. Debates Info on Chemical Hazards”. “Separate hearings in the House and Senate [were] held this week to reassess the safety of chemical and industrial facilities in the light of recent terrorist attacks. A key policy at stake is the so-called ‘right to know’ law, which requires the federal government to publicly disclose sensitive information about facilities around the country that could be used by terrorists to target the most dangerous locations.” Jeremiah Baumann, a spokesman for the Nader-empire U.S. Public Interest Research Group, called for preserving public access to the sensitive information. “‘Let’s at least make the bad guys work for it,’ countered Amy E. Smithson, a chemical and biological weapons analyst for the Henry L. Stimson Center think tank.” Smithson said “[t]he Clinton EPA’s decision to post those plans for some 15,000 plants on the Internet in August 2000 ‘wasn’t just bad, it was colossally bad’.” (John Heilprin, AP/Yahoo, Nov. 8) (see Oct. 1). More: Carol D. Leonnig and Spencer S. Hsu, “Fearing Attack, Blue Plains Ceases Toxic Chemical Use”, Washington Post, Nov. 10 (chlorine use at Washington sewage treatment plant); Jonathan Adler, “How the EPA Helps Terrorists”, National Review Online, Sept. 27; “Environmental Danger”, Oct. 11; Angela Logomarsini, “Laws that Make Terror Easy”, New York Post, Oct. 12; “‘Right To Know’ Hearings – Taking Away Terrorist Tools”, Competitive Enterprise Institute press release, Nov. 7.