Note the new RSS feed

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A novel means of processing asbestos claims was initiated in 1988, when the Johns-Manville corporation emerged from bankruptcy and established the Manville Personal Injury Settlement Trust, the first "bankruptcy trust" set up to pay out money to asbestos claimants. Unfortunately, plaintiffs' attorneys controlled the trust's claimants committee and set up procedures for the trust that were advantageous to themselves, rather than potential claimants. The trust rules minimized requirements of proof of actual injury or causation (exposure to Johns-Manville products). The trust thus paid out a lot of money quickly to the attorneys, all the while exhausting its funds for potential future claimants.

In just its first nine months of operation, the trust paid out some $500 million to 12,600 claimants -- and by the end of 1989, 89,000 more claimants were outstanding. Eventually, the trust had to sharply curtail payments to claimants -- to 10 percent in 1995, and 5 percent in 2001. Injured claimants were literally getting a nickel on the dollar. "As of June 30, 2006, the trust had received more than 773,000 claims and paid out about $3.4 billion--just $4,400 per claimant."

Airline mechanic Arnim Ramdass, 52, allegedly "disconnected the phone line at home and forbade his stay-at-home wife, Donna Campbell, 48, to watch television, Campbell claims in a lawsuit. Eventually, however, she learned the truth: Ramdass, along with 16 other mechanics at Miami International Airport, had won a $19 million lottery jackpot." (Martha Neil, "Wife Sues Husband for Share of Secret $600K Lottery Win", ABA Journal, May 13). See Nov. 20-21, 1999 (similar case from California).

Rebuilding your pool fence

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We're requiring you to do it, but we're also forbidding you to do it, explain the nice folks at Town Hall (Maggie's Farm, May 4, via Never Yet Melted).

Site housekeeping

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* Comments on the main site are still broken, sorry.

* Yesterday was one of our biggest Instalanches ever, with about 7,000 Glenn Reynolds readers coming over to visit this post.

* You can see our rapidly evolving WordPress "sandbox" here. One vexing problem we'll need to fix: most of the posts from guestbloggers are being attributed to the wrong contributors. That problem is evident in this recent post, which was really authored by Jim Copland; the case names don't render properly either. The posts in the sandbox may accept comments (which may or may not survive in a reconstructed site) but any permalinks are not really permanent and are apt to break soon. Comments about the reconstruction itself are best added to this sandbox post.

Even rural Northern California affords no refuge from the filing mills:

Eureka's Arctic Circle franchise has closed its doors after the restaurant was sued for noncompliance with the Americans with Disabilities Act.

Jack Williams, who has owned the franchise with his wife, Peggy, since 1989, said the couple decided to close the business last Tuesday because they cannot afford the renovations required by the lawsuit.

The suit was filed by local attorney Jason K. Singleton, who in recent years has filed ADA-related suits against a number of local establishments, including Village Pantry, Broadway Cinema, Fortuna Theatre, Cafe Waterfront and College of the Redwoods, among others. ...

"Here we had a business that was serving all kinds of customers and now is serving no one," Hockaday [J Warren Hockaday, executive director of the Greater Eureka Chamber of Commerce] said.

(Ryan Burns, "Arctic Circle closes due to ADA lawsuit", The Times-Standard, May 6; earlier).

"Oregon sent a cease-and-desist letter to Justia.com threatening a copyright lawsuit for republishing Oregon law." Neither Greg Beck (Apr. 17) nor Ron Coleman (May 1) is much impressed.

"An invaluable blog"

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A grateful hat tip to Johnathan Pearce of the U.K. site Samizdata.net for those kind sentiments: "As ever, those interested in silly lawsuits should keep an eye on Overlawyered, an invaluable blog." (May 2).

WordPress here we come?

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Given the vulnerabilities of Movable Type to attack -- comments are down once again and I don't know at this point when we can get them back up -- it looks as if we'll have to join the crowd in migrating over to WordPress. (And I had really wanted to spend the week on other projects.)

Those who might want to share relevant MT-to-WP conversion experience are welcome to check in through email (since comments are busted).

An important all-day conference at AEI next week:

In the last several years, nearly every major pharmaceutical company has paid hundreds of millions of dollars to settle allegations of illegal "off-label" marketing of drugs. There has been a growing trend of actions by federal prosecutors, state attorneys general, and cooperating trial lawyers to litigate against pharmaceutical manufacturers for allegedly doing too much to promote off-label use of prescription products. Citing recent legal changes mandating exclusion from federal programs after a conviction, many manufacturers say they are forced to settle rather than risk defending themselves--even as prosecutions against individual executives have foundered in front of juries.


At this AEI Legal Center event, experts on both law and health care will present papers on the law, economics, medicine, and public policy of off-label marketing, discussing everything from the abuse of class action mechanisms to implications for the First Amendment and medical malpractice. Speakers include former Food and Drug Administration chief counsel Daniel Troy; former Cephalon general counsel John Osborn; former deputy attorney general George Terwilliger; principal deputy assistant attorney general and acting assistant attorney general for the Civil Division Jeffrey Bucholtz; attorneys Brian Anderson, James Beck, Mark Herrmann, Richard Samp, and Kyle Sampson; law professor Margaret Johns; and AEI scholars John E. Calfee, Theodore H. Frank, and Scott Gottlieb.

Panel I: Off-Label Marketing, R&D, and Medical Practice

Panel II: The Legal Environment from Federal Regulation and Enforcement

Panel III: Distortions from State and Private Enforcement

Panel IV: Legal Implications for Commercial Speech and Medical Practice

Register here. Earlier discussion on POL: Feb. 1; Feb. 19; Mar. 24; Dec. 17; Aug. 31; Aug. 22 (Richard Epstein); Aug. 1, 2006 (state AGs); Mar. 19 (InterMune indictment).

The site crashed under spammer attack this morning -- I'm told the link from Instapundit with its resulting heavy traffic was just a coincidence -- and we've had to shut down comments and search temporarily while we try to get back on our feet. Update 1:15 p.m. Eastern: search back up (although all old saved searches are broken, you'll have to re-search on individual terms), comments still down.

In more than twenty felon-found-with-firearm cases, judges have found the testimony of New York City police "to be unreliable, inconsistent, twisting the truth, or just plain false. The judges' language was often withering: 'patently incredible,' 'riddled with exaggerations,' 'unworthy of belief.'" Yet "with few exceptions", the testifying officers have faced no consequences, "prosecutors did not notify police authorities about the judges' findings", and the Police Department says it has no official knowledge of most of the cases. Could this relate to the arrogance of a city administration hardened in the belief that individual rights always have to give way to the greater social good of "getting guns off the streets"? (Benjamin Weiser, "Police in Gun Searches Face Disbelief in Court", New York Times, May 12)(& welcome Instapundit readers).

Litigants with too much time on their hands? An enactment called the Presidential Coin Act directs the Treasury to mint coins honoring each President. Stanley L. Klos of Florida is suing, claiming the ten men who served as president under the Articles of Confederation should be entitled to coins too. Under traditional concepts of legal standing, it would seem Klos might have trouble proving a particularized injury to his own legally protected interests. (Elaine Silvestrini, "Scholar Sues To Recognize 'Presidents' Before Washington", Tampa Tribune, May 7)(via Above the Law).

May 12 roundup

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  • Canada free speech: Islamic group files complaint against Halifax newspaper over cartoon of burka-wearing terror fan; two more libel suits aimed at online conservative voices; growing furore over complaint against Steyn/Macleans [National Post]
  • More than 5,000 students committed crimes last year in Philadelphia schools, but none were expelled -- consent decrees tying system's hands are one reason [Inquirer]
  • U.K.: Man threatened with legal action for flying pirate flag as part of daughter's birthday party [Guardian]
  • Bankruptcy judge doesn't plan to accept at face value Countrywide's claim that it generated false escrow documents by mistake in foreclosure [WSJ, WSJ law blog]
  • Amid bipartisan calls to step down, Ohio AG Marc Dann [Apr. 19, May 6] hires an opposition researcher [Adler @ Volokh] on top of Washington lobbyist [Legal NewsLine], after being rebuked by judge for political suit [Dispatch]. And where's that ethics form on the Chesley flight? [Dayton Daily News]
  • Missouri med-mal claims fall sharply after legislated damages curb [Springfield News-Leader]
  • More on Dartmouth prof Priya Venkatesan, the one who wants to sue her students -- as suspected, she's a devotee of deconstructionist Science Studies [Allen/MtC; earlier]
  • Covert plan to sabotage Chinese economy? [Wilson Center event]
  • What, never? Well, hardly ever: Docs continue to assail notion that various complications such as patient delirium, clostridium difficile infection, iatrogenic pneumothorax, etc. -- not to mention falls -- are "never events" [KevinMD various posts; earlier]
  • Mich. high court agrees anti-gay-marriage amendment bars municipal health benefits for domestic partners, just what key proponents had claimed it wouldn't do [Rauch @ IGF, Carpenter @ Volokh, earlier]
  • Private service rates the safety of charter air providers -- but can it afford the cost of being sued after giving a bad rating? [Three years ago on Overlawyered]

State laws providing a kind of tenure protection for no-longer-needed car dealers are among the reasons it can be extremely expensive to close down a failing marque. General Motors, which closed Oldsmobile eight years ago, "spent more than five years battling dealer lawsuits" despite having set aside almost $1 billion to handle the transition, and Ford may face similar challenges if it tries to shutter its ailing Mercury line. (Martin Zimmerman, "Mercury may be coming to the end of the road", Los Angeles Times, May 10). Earlier: Oct. 5, 2006. For more see this 2001 speech by FTC commissioner Thomas Leary, and this article by Missouri lawyer Gene Brockland on the federal Auto Dealers' Day in Court Act, which is exceeded in stringency by some of its counterpart laws at the state level.

A mom yields to the pressures in our educatio-legal* system to let her son be given the "disabled" label. "I realized was that among the parents I knew, well over 50 percent had their child in some form of therapy". (Linda Keenan, Burbia, Apr. 4).

* Yes, it's a coinage, but since "medico-legal" is by this point an accepted term, it's probably only a matter of time before "educatio-legal" makes its way too.

It might only confuse the jury in the city's lawsuit against a Georgia gun shop whose wares too often found their way North (Joseph Goldstein, "Gag on 2nd Amendment Is City's Aim in Guns Suit", New York Sun, May 9). "Mr. [John] Renzulli, who has defended suits against the gun industry in Judge Weinstein's courtroom before, said that in the past the defense has struck a deal with the plaintiffs on the matter: Lawyers for the gun industry won't mention the Bill of Rights to the jury, if the plaintiffs don't mention the National Rifle Association."

41-year-old South Texas personal injury solo practitioner Hermes Villareal was admitted to a McAllen hospital on April 16, 2005, reporting that his heart was racing. The hospital put him on a 24-hour EKG. Villareal reported being under stress, but refused a psychiatric consultation or the recommended medication. At 5 a.m. on April 19, 2005, the day of his scheduled discharge, "Villarreal summoned the nurse on duty and requested a razor, saying that he wanted to take a shower and shave his chest, because the EKG monitor leads attached to his chest were bothering him." The nurse complied with his wishes, and Villareal locked himself in the bathroom and committed suicide with the razor.

This was, said Villareal's family, the hospital's fault; since it's South Texas, a Hildago County jury, after a three-week trial, awarded $9 million in March (which looks to be reduced at least to $1.64 million under Texas law capping damages). Ironically, the opening line of the Texas Lawyer story says "It was a suicide no one saw coming," but doesn't question the resulting jury verdict.

Somehow, the trial lawyer, Raymond L. Thomas, a close friend of Villareal's, interjected himself into the closing argument, telling an emotional story of a Rolex Villareal had given him as a gift that left the jury in tears; the press coverage doesn't acknowledge the blatant violation of ethical rules (see also Texas Rule 3.04(c)(3)), much less indicate whether he got away with it because of the failure of the defense to object or a judge's failure to oversee her courtroom. (Jenny B. Davis, "Attorney, Interrupted: Seeking Meaning, Recovery for a Legal Life Lost," May 5 via ABA Journal).

Deflating many a future backyard birthday party: "Parents who hire bouncy castles for a child and his or her friends could be liable for damages for any injuries suffered by the children after a landmark High Court ruling yesterday." (Times Online/Telegraph).

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