September 2002 archives, part 3


September 30 – Australia: “Blind, disabled should be able to fly”. “The physically and mentally disabled may no longer be barred from becoming pilots or air traffic controllers. Eyesight and other medical tests imposed on flight crew have been found to be in breach of anti-discrimination laws.” In the wake of the finding by the federal Attorney General’s department, lawyers for Australia’s Civil Aviation Safety Authority have urgently applied to the Human Rights and Equal Opportunity Commission to allow an exemption to the federal Sex and Disability Discrimination Acts to permit medical tests and standards for pilots, flight navigators and engineers and air traffic controllers. (Matthew Denholm, News Corp./Daily Telegraph (Australia), Sept. 27). Yes, this reads like parody, but we have a sinking feeling that it is not, since the same general issue has given rise to considerable litigation in the U.S.: see our July 1998 column and later articles on safety and disabled-rights law. (DURABLE LINK)

September 30 – “Black eye for zero tolerance”. A hearing officer has ruled in favor of Teresa Elenz, a Pensacola, Fla. honor student who says she found a bag of pills on school grounds, in the latest Pensacola-area incident to draw media attention to the harshness of zero tolerance policies. Besides nail clipper and paring knife cases, there was this: “In 1998, a 12-year-old student at Sims Middle School in Pace was expelled for possession of drugs because he briefly held a Ritalin pill. Robert Starkie held out his hand when a student on his bus asked him to take something. When he saw it was a pill, he threw it out the window.” Nationwide, about 80 percent of school districts are estimated to have zero tolerance policies. (Jenny LaCoste, Pensacola News Journal, Sept. 29; Bill Kaczor, “Pensacola honor students win zero tolerance drug ruling”, AP/Bradenton Herald, Sept. 27). (DURABLE LINK)

September 30 – George Will on litigation reform. He uses Mississippi as his jumping-off point, but his overall message is broader: “nowadays punitive damages are, as Justice Sandra Day O’Connor says, quoting a 9th U.S. Circuit opinion, ‘limited only by the ability of lawyers to string zeros together in drafting a complaint.’ … So remember the candidates who support tort reform when you vote on Nov. 5.” (Washington Post, Sept. 29) (DURABLE LINK)

September 27-29 – Judge overturns $1.3 billion tobacco fee award. Big development on the tobacco-fee front: “A New York judge threw out a $1.25 billion legal fee award to attorneys who represented California in a $206 billion settlement between 46 states and the tobacco industry, saying the amount was ‘irrational’”. The award was to the so-called Castano Group of lawyers, who didn’t actually represent California — the state’s own lawyers did that — and were in fact rivals, rather than allies, of the Scruggs-Moore team of lawyers who did manage to pull off the settlement. The Castano lawyers, however, repositioned themselves as somehow a catalyst for the national settlement and thus entitled to fees — the high point of this effort coming when they managed to obtain what was effectively a commercial endorsement from then-sitting President Bill Clinton (see Mar. 9, 2001).

Note that this was a different proceeding from the case involving the tobacco lawyers representing New York itself, discussed recently in this space, who are also finding their fees subject to unwelcome review (see Jul. 30-31). This time the courageous judge was Nicholas Figueroa of New York State Supreme Court. (Daniel Wise, “$1.3 Billion Tobacco Attorney Fee Overturned”, New York Law Journal, Sept. 27; William McQuillen, “Court Throws Out $1.25 Bln Award to California Tobacco Lawyers”, Bloomberg.com, Sept. 26). Update May 25, 2004: appeals court reverses Judge Figueroa and reinstates award. (DURABLE LINK)

September 27-29 – After our own heart. Regarding Kansas City Royals coach Tom Gamboa, who was set upon and beaten by two fans last week during a baseball game at Chicago’s Comiskey Park: “Gamboa has been contacted by several lawyers who told him he could get money from the White Sox, but the coach doesn’t plan legal action. ‘The fault is with the two people who did it,’ he said. ‘I’m not one who looks to place blame. It’s nobody’s fault but the two idiots who did it.’” (“Gamboa’s hearing impaired since attack”, AP/Sports Illustrated, Sept. 24). Update Sept. 21, 2003: not quite so much after our own heart, it turns out, AP reports that Gamboa has filed suit not only against attacker but also stadium security and drinks concessionaire. (DURABLE LINK)

September 27-29 – Fen-phen settlement abuses: the plot thickens. Lawyers for all three lead parties in the $3.75 billion fen-phen diet drug settlement — the settlement trust, the class action lead plaintiffs’ lawyers, and defendant American Home Products — are asking the federal judge in charge of the case to “order an ‘emergency suspension’ of all claims processing, and to reconfigure the entire process so that all future claims of actual heart valve damage will be audited.” They say a group of plaintiffs’ lawyers, with assistance from hired doctor-experts, are engaged in “systematic abuse” of the settlement claims process and have set up what is effectively a “production line” that has resulted in gross overdiagnoses of highly compensable heart conditions in claimants. One of the hired doctors, they say, “has earned some $2.5 million during the past year reviewing 10,000 echocardiograms for a consortium of firms led by Petroff & Associates. She did all this while continuing to see up to 80 patients a week and still participating in some, if not all, of her extracurricular activities.” Money drained from the fund for exaggerated or nonexistent ailments, they note, is not available to compensate genuinely injured users of the compound. (Shannon P. Duffy, “Fen-Phen: Are Claims Exaggerated?”, The Legal Intelligencer, Sept. 26)(see Dec. 28, 2001 and Feb. 25, 2002). More: lawyes respond to allegations (“Plaintiffs’ Lawyers Strike Back in Fen-Phen Settlement Case”, Oct. 3). (DURABLE LINK)

September 27-29 – Sued over 18 cents. A collection agency went after Wendy Ehringer of Seattle with a lawsuit demanding the grand total of 18 cents — plus $311.26 in attorney’s fees and other charges. The court recognized litigation abuse when it saw it and applied the equivalent of sanctions — but now Ehringer’s lawyer is claiming to have put $7,600 worth of time into fighting the case, which is itself rather curious. (Maureen O’Hagan, “Suit over 18 cents redefines ‘small-claims’ court”, Seattle Times, Sept. 26). (DURABLE LINK)

September 25-26 – Skating first, instructions later. Edmonton, Canada: “An Alberta man who crashed on in-line skates before his instructor could teach him how to use them has won damages from the store that arranged the lessons and rented him the wheels. In a decision that expands the controversial concept of ‘duty of care,’ Justice Donald Lee of the Court of Queen’s Bench held Skier’s Sportshop of Edmonton partly liable for Robert Rozenhart’s injuries — even though Mr. Rozenhart was told to wait for his instructor before setting out.

“The judge agreed Mr. Rozenhart’s foray was ill-advised, but he found fault with a general reassurance store staff gave him that morning that in-line skating is ‘very similar’ to ice-skating. Mr. Rozenhart … and his daughter … were scheduled to meet the instructor at 10 a.m. in a nearby park, but store workers told him that his instructor was running 15 minutes late and asked him to wait. But Mr. Rozenhart struck out on his own, clad in a cycling helmet, knee-pads and wrist protectors. Only after he was coasting down a paved trail did he realize he did not know how to stop.” As he soon learned to his cost, in-line skates do not brake the same way ice skates do. Lawyers for the family-owned store plan to appeal. (Charlie Gillis, “In-line skates rental store blamed for injuries suffered by novice”, National Post, Sept. 20). On Sunday our editor discussed this and other personal responsibility cases on Peter Warren’s radio show, based at Vancouver’s CKNW and broadcast in many Canadian cities. (DURABLE LINK)

September 25-26 – Investigate, but gently. Sued if you do dept.: “For the first time since the state supreme court told corporate New Jersey to root out sexual harassers or risk huge damages, a company is to be tried on a charge that it ensnared and fired an innocent employee without a fair and thorough investigation. A Middlesex County judge ruled Aug. 30 that a supervisor who had a consensual sexual relationship with a co-worker can pursue a claim that the company violated a public-policy mandate by discharging him for harassment he never committed.” (Henry Gottlieb, “Too Good At Purging the Workplace?”, New Jersey Law Journal, Sept. 13). (DURABLE LINK)

September 25-26 – How much did you say that Indian legend was worth? Flexing their political muscle with casino revenues and major campaign contributions, “Native Americans are pushing for new laws that would give them what could amount to veto power over certain development projects (mining, housing, shopping malls, etc.) impacting what are considered historically sacred sites.” Such a bill has sailed through the California legislature and onto the desk of Gov. Gray Davis. A mining exec grouses that the Quechan Tribe “considers everything from Los Angeles to the Arizona border and up to Las Vegas sacred.” (Brad Knickerbocker, “More rights for sacred sites?”, Christian Science Monitor/Arizona Daily Sun, Sept. 4; “California Native Americans Want Law Preserving Some Land as Sacred”, FoxNews.com, Sept. 21). (DURABLE LINK)

September 25-26 –The blame for suicide. Two Connecticut teenagers commit suicide in separate incidents sixteen years apart, and in both cases parents sue police departments for failing to protect the youths from themselves. Showing that the cops messed up, however, is not enough; if the jury lacks sympathy for the parents, the case is still in trouble. (Colleen Van Tassell, “When teen suicide doesn’t pay”, New Haven Advocate, Aug. 8). (DURABLE LINK)

September 24 – Tour of the blogs. The medical weblogs have been abuzz with discussion of the malpractice crisis in recent days; see MedPundit for interesting items on whether any doctor in his or her right legal mind should be reading mammograms these days (Sept. 21); on the shamelessness with which trial lawyer apologists deny that there’s any connection between the sums paid out on malpractice claims and the insurance rates charged to doctors (Sept. 20); and on whether penicillin would have been adopted as quickly in today’s liability climate (Sept. 17). Plus much more from RangelMD (Sept. 18 and Sept. 19); MedRants (whole category); and The Bloviator (Sept. 20). Also see Sydney Smith (MedPundit), “Law and Orderlies”, TechCentralStation, Sept. 24.

Meanwhile, newly launched blog The Staffer comments on a lawsuit on behalf of four minority seniors in Massachusetts high schools challenging statewide achievement tests. (Sept. 19; see Ed Hayward, “MCAS mess: Students’ lawyers to sue state over controversial test”, Boston Herald, Sept. 19). And “Robert Musil”, normally a calm and collected sort, gets downright angry at the way some supporters of the federal Title IX sports gender-quota scheme airily dismiss the plight of male “walk-ons”, students who would like to participate in sports though they aren’t of starting-team caliber. (Sept. 22). (DURABLE LINK)

September 23 – “Greek net cafes face ruin”. Police acting under a controversial law banning all forms of computer games have closed down internet cafes around Greece, confiscating computers as evidence. “A judge in the city of Thessaloniki had earlier thrown out the first case brought under the gaming law but prosecutors have appealed against the decision and launched a new crackdown. … The Greek Government passed legislation in July outlawing all electronic or mechanical games in a bid to stamp out an illegal gambling epidemic … The bill has been widely criticised for failing to distinguish between [electronic slot machines, known in British English as "fruit machines"] and mainstream computer games such as Counter-Strike and Age of Empires.” (Daniel Howden, BBC, Sept. 20). The bill bans the playing of computer games in private as well as public places, and on electronic devices of any sort, such as personal organizers and cell phones.

MORE: Rupert Goodwins and Matt Loney, “In Greece, use a Game Boy, go to jail”, ZDNet (UK), Sept. 3; unverified English translation of the law; Nikos Kakayanis, Overclockers.com forum, Sept. 4; “Greeks fight computer game ban”, BBC, Sept. 5; Dan Farber, “Who’s gunning for Game Boy and Google?”, ZDNet, Sept. 5. (DURABLE LINK)

September 23 – “Doctors find no evidence of mold as a toxic disease”. Burgeoning litigation on stachybotris in homes has far outrun the available science, according to the Texas Medical Association’s Council on Scientific Affairs. “Mold can cause reactions in people with allergies and asthma [said allergist/immunologist Wes Stafford]. But there’s no evidence that it causes other health problems or aggravates other existing health conditions, the report said.” Some families have won multi-million-dollar lawsuits over alleged mold-related health problems, and mold claims are considered a key factor in skyrocketing homeowners’ insurance rates in Texas and other states. (Janet Elliott, Houston Chronicle, Sept. 21). And see Christopher Wanjek, “It’s Everywhere”, Washington Post, Sept. 17; RangelMD, Sept. 17 and earlier posts. (DURABLE LINK)

September 23 – Annals of zero tolerance: “No scissors allowed at ribbon-cutting ceremony at Pittsburgh airport”. After all, they’re weapons, right? Officials were reduced to tearing the ribbon. (AP/Canada.com, Sept. 20). (DURABLE LINK)