January 2002 archives

January 9-10 — Minimum GPA for study abroad said unfair to disabled. “A 19-year-old sophomore is suing Macalester College in St. Paul for discrimination and mental anguish because the school denied his application for a German study abroad program set to begin this month. Macalester officials told Colin Kennedy he was turned down for the program because he did not maintain a 2.5 grade-point average his first two semesters. … Kennedy claims depression prevented him from excelling at his studies during his first two semesters and that the school failed to make reasonable accommodations for his illness.” (Hannah Allam, “Macalester sued over denial of study abroad”, St. Paul Pioneer Press, Jan. 3). However, the U.S. Supreme Court has just dealt a blow to liberal interpretation of the ADA in the workplace, ruling unanimously that it does not entitle an employee to accommodation of a physical ailment that impairs her ability to do the job, unless the ailment also interferes with major life activities more generally (“Supreme Court limits disabilities law in unanimous decision”, CNN, Jan. 8; Warren Richey, “In workplace, tougher standard on job-related injuries”, Christian Science Monitor, Jan. 9; Charles Wolfe, “Toyota Suit Before High Court Raises ADA Issues for Business”, AP/Law.com, Nov. 7). “The justices are right,” says a Washington Post editorial (“Injuries and Disabilities”, Jan. 9). (DURABLE LINK)

January 9-10 — Updates. Further developments in possibly familiar controversies:

* In the litigation over Atlanta day-trader Mark Barton’s murderous 1999 rampage (see Dec. 5), a judge has dismissed the building owner, manager and security company as defendants, but let suits proceed for now at least against the two day-trading companies where Barton committed killings. (Trisha Renaud, “Suits Against Day-Trading Firms Survive Summary Judgment in Rampage Case”, Fulton County Daily Report, Dec. 10) (see update Dec. 19, 2003)

* On November 1 a court in New York City dismissed all remaining charges in the “cybersex” case against Columbia University student Oliver Jovanovic, bringing to a close one of the most controversial sexual-abuse prosecutions in recent years (see Dec. 23, 1999) and casting a shadow over the departure from the Manhattan D.A.’s office of celebrated prosecutor Linda Fairstein. The case is the latest to call in question the application of “rape shield” laws, which sometimes operate to exclude evidence highly probative of defendants’ innocence in cases of claimed sexual coercion (Cathy Young, “Excluded Evidence”, Reason, Feb.; Nat Hentoff, “Rashomon in the Bedroom”, Village Voice, Nov. 2 (mature content); defense site Cybercase.org).

* No sooner had the Pfizer company heaved a sigh of relief over a defense verdict in its first jury trial over recalled diabetic drug Rezulin (see Dec. 19) than it lost big in a second case: a Corpus Christi, Texas jury awarded $43 million in actual damages and the company quickly agreed to an undisclosed but presumably substantial settlement (Miriam Rozen, “Parties Settle Rezulin Case After Jury Awards $43 Million in Actuals”, Texas Lawyer, Jan. 2).

* In France, following a U.S.-imitative court decision allowing families to file “wrongful birth” damage suits on behalf of disabled children for violation of their “right not to have been born” (see Dec. 11), ob/gyns have responded by “refusing to carry out ultrasound scans on pregnant women … The protest action could have an impact on thousands of women.” (“Scan strike by French doctors”, BBC, Dec. 3).

January 9-10 — Fair is foul, and foul is fair. In a case where Philadelphia cops failed to prevent a schizophrenic from hurting himself, a few whispered lawyer incantations magically transmute a case of possible negligence into an “extreme and outrageous” instance of “intentional infliction of emotional distress”. (Lori Litchman, “Intentional Infliction of Emotional Distress Claim Against Police Goes Forward”, Legal Intelligencer, Nov. 14). And the Supreme Court of Pennsylvania has ruled that “sudden” might actually mean “gradual”, in another of those pollution-insurance cases where that kind of stretch occurs so often. (Lori Litchman, “Supreme Court Ruling Deals Blow to Insurers Over Pollution Clause”, Oct. 22).

January 7-8 — Like father, like daughter? Illinois House Speaker Michael Madigan has for years been the chief guardian of trial lawyer interests in the state legislature. Now his daughter Lisa is running for attorney general of the state, and gathering in endorsements from such potentates as Chicago mayor Daley. (Fran Spielman, “Daley backs Madigan for attorney general”, Chicago Sun-Times, Jan. 4).

January 7-8 — “Slipping straight to the jury”. “Grocery stores around the country spend $450 million annually to defend slip-and-fall claims, according to the Bedford, Texas-based National Floor Safety Institute. … The average slip-and-fall claim nationwide is for $3,900, while the cost to litigate a lawsuit has reached $100,000, says Russ Kendzior, executive director of the institute. … Last month, however, the Florida Supreme Court dramatically changed the rules in ways that delighted the plaintiffs’ bar and infuriated the defense bar and business groups. In a unanimous ruling, the state’s high court rewrote the rules, dramatically shifting the burden of proof away from the plaintiff and onto the shoulders of the defendant. Now, if a customer takes a tumble, it’s up to the store to prove that it exercised reasonable care to keep its floors clean.” (Susan R. Miller, Miami Daily Business Review, Dec. 13). (Update Apr. 15, 2002: legislature partially undoes ruling.

January 7-8 — Defoliant litigation proves evergreen. “Seventeen years after a class action settlement intended to end lawsuits over Agent Orange, the 2nd U.S. Circuit Court of Appeals has ruled that two Vietnam veterans may sue companies that made the product.” (Bob Van Voris, “Agent Orange Suits Still Viable, 2nd Circuit Says”, National Law Journal, Dec. 12; Michael Fumento on Agent Orange).

January 7-8 — Canada: front-row spectator sues “reckless” exotic dancer. “A stripper and the bar where she worked are being sued by a man who claims the dancer kicked him in the face while he watched the show. Greg Bonnett of suburban Coquitlam, B.C., alleges he was enjoying the performance from a front-row seat at the Barnet Hotel in nearby Port Moody when the stripper swinging around a pole put her foot in his face.” Bonnett says he suffered a broken nose, blurred vision, headaches and difficulty breathing. (“Man says stripper kicked face, broke nose”, Canadian Press/azcentral.com, Nov. 28; Jay Nordlinger, “Impromptus”, National Review Online, Dec. 11 (next to last item)). More Canadian exotic dancer litigation: Aug. 14 and May 23, 2000.

January 4-6 — Welcome InstaPundit.com, AndrewSullivan.com readers. Two of the hottest webloggers around have included this site on their ongoing recommend lists: “all-powerful hit-king” Glenn Reynolds did it a week or two ago (see left column) and now we’re on Andrew Sullivan’s just-redesigned site (he says we offer “Peerless scrutiny of legal insanity.”). We’ll never be hungry for traffic again!

January 4-6 — Paroled prisoner: pay for not supervising me. From Canada: “The National Parole Board is facing a unique lawsuit over a crime committed by a paroled prisoner: a $1.6-million negligence claim from the criminal himself, who says he should never have been let go unsupervised. …’I feel the CSC and CSC parole are responsible for my every move while under their supervision,’ [Mark] Turner says in an affidavit filed in the Federal Court of Canada.” (Colin Freeze, “Paroled convict sues board over release”, Globe and Mail, Jan. 2) (via Damian Penny’s blog, which sports the motto: “You report. I decide.”)

January 4-6 — Memo to welfare commissioner: defy suit-happy activists. Mayor Mike Bloomberg’s new welfare chief, Verna Eggleston, faces a tall order trying to build on the successes of her Giuliani-era predecessor Jason Turner, writes Mickey Kaus. “She has to aggressively resist the demands of the city’s highly litigious ‘advocate’ community, which will pressure her to sign crippling consent decrees that effectively transfer power over the city to the ‘advocates.’ … ” (Kausfiles.com, Jan. 2 — see “Hit Parade”, left column)

January 4-6 — “Woman Wins Verdict, but no Money, Against Seagal”. Notable quote from action star Steven Seagal’s attorney after the case was over: “Just because you curse in the workplace doesn’t mean you should have to write a check.” (Reuters, Dec. 21).

January 4-6 — Mom wants to be sued. “Children have the right to sue their mothers over injuries caused by bad driving during pregnancy,” a Florida appellate court ruled. Talk about lawsuits that are collusive rather than genuinely adversarial: the mother herself is the one who’s been pushing for her daughter’s right to sue her, so that the family can get at the insurance money. (Catherine Wilson, “Judge: Miami girl can sue mom for injuries suffered as a fetus”, AP/Fort Lauderdale Sun-Sentinel, Dec. 19).

January 2-3 — Environmental lawsuits vs. military readiness. The high accuracy of American air and ground military targeting in Afghanistan is the result of “practice, practice, practice” over years of peacetime exercises at proving grounds and bombing ranges at home. But environmentalist lawsuits are increasingly tying up the armed services’ use of training grounds across the country, with the Vieques controversy just the most visible of many. Marine Corps Maj. Gen. Edward Hanlon Jr., commander at Camp Pendleton, warned Congress earlier this spring: “Our ability to train is being slowly eroded by encroachment on many fronts.” (Michelle Malkin, “Hostile Fire from Eco-‘Extremists'”, syndicated/Capitalism Magazine, Dec. 11).

January 2-3 — “Hot-dog choking prompts lawsuit”. “The family of Kevin Rodriguez, a Coral Springs sixth-grader who choked to death on a hot dog, has filed a wrongful death lawsuit alleging the county School Board failed to serve him food that is safe to eat.” (Wanda J. DeMarzo & Daniel de Vise, Miami Herald, Dec. 28).

January 2-3 — Mass., Ill., NYC tobacco fees. “Despite having already received a record $178 million fee, a Boston law firm yesterday asked Suffolk Superior Court to force Massachusetts to pay it an additional $282 million for its work on the state’s suit against the tobacco companies.” Brown Rudnick Freed & Gesmer says it is entitled to collect on a 25 percent contingency deal, and points out that the suit when first dreamed up was considered virtually untenable, which they seem to think is something worth rewarding about it. (Frank Phillips, “Law firm asks court for more tobacco money”, Boston Globe, Dec. 28)(see Dec. 22, 1999). Illinois tobacco lawyers, who think their $121 million fee award isn’t enough and want another $800 million, have won a ruling from the state supreme court allowing their suit to proceed in a Cook County court and not in the state Court of Claims. (Chicago Sun-Times, “Judge will decide lawyers’ fees”, Dec. 4, no longer online) (see Oct. 16-17, 1999). And “a lawyer who is suffering from breast cancer sued her former firm, claiming the firm failed to pay her $1.7 million she earned representing New York City in its litigation against the tobacco industry. Janis L. Ettinger says New York’s Storch Amini & Munves told her she would not be paid further for her work because ‘she could not realistically be a part of the future of Storch Amini by virtue of her illness.'” Private businesses have paid large sums under the Americans with Disabilities Act to settle claims that they have discriminated against employees suffering from grave illnesses. (Daniel Wise, “New York Lawyer Sues Firm Over Share of Tobacco Fees”, New York Law Journal, Nov. 6).

January 2-3 — The talk of Laconia. Un-neighborly doings in central New Hampshire, where local political activist Harriet E. Cady is suing store owner Bernard J. Salvador over his appearance at an August board of selectmen meeting of the town of Sanbornton. “Cady alleges Salvador made a statement in which he referred to her as a ‘lunatic,’ then read a letter against her. She said in his letter, which was published in some area newspapers, that he referred to her as ‘Little Hitler from Deerfield.'” So now she’s suing him for $1 million, saying the epithet had caused her emotional distress and damage to her reputation that “could have a cataclysmic effect on her ability to champion her political causes.” Cady has been involved in lawsuits against the town of Sanbornton in the past. (Gordon D. King, “Woman files $1m slander and libel suit”, Laconia Citizen, Dec. 12).

January 18-20 — Web defamation roundup. “The Atlanta Humane Society has filed a $75,000 defamation lawsuit against a woman who called its executive director ‘Mr. Kill’ in an Internet chat room.” (“Woman sued over chat room comments”, AP/USA Today, Jan. 10). In New Jersey, a court has found that local officials have not sufficiently justified the use of subpoena power to reveal the identity of persons who posted insulting things about them on online bulletin boards (Robert MacMillan, “Judge Bars Town Brass From Learning Detractors’ IDs”, Newsbytes, Jan. 3). U.S.-based Dow Jones is entangled in a battle over whether the courts of Australia can require it to stand suit down there over an online article that it published about an Australian businessman. The lower court decision “opened up the possibility that publishers and Internet sites were potentially open to litigation in any country that allowed defamation cases.” (“Dow Jones Can Pursue Jurisdiction Battle in Internet Defamation Case”, AP/Law.com, Dec. 17; Eric J. Sinrod, “Online Defamation — It’s a Small World After All”, Law.com, Sept. 18)(Update Nov. 20, 2004: Dow Jones settles case). And an appeals court in New York has declined to resolve the question whether altering a website counts as “republication”, which can be legally important for various reasons, such as by restarting the clock on the statute of limitations. (John Caher, “New York Appellate Panel Upholds Dismissal of Web Defamation Claim”, New York Law Journal, Oct. 15).

January 18-20 — “How many people will this kill, I wonder?” Writes Natalie Solent on her weblog: “Sometimes it’s the little stories, the unsensational ones tucked away in the business section, that are the most ominous. An EU directive imposes insanely strict product liability. It is used to sue the providers of the free (FREE for heaven’s sake) blood transfusion service. So maybe, think would-be investors, researchers, entrepreneurs, jobseekers, just maybe we won’t go into the lifesaving business after all.” (Jan. 14; “EU rules open door to lawsuits”, Daily Telegraph (UK), Jan. 14). From another item on her site: “Al-Qaeda. Anthrax. Alimony. Which is the one that really terrifies you guys?”

January 18-20 — Planners tie up land for twenty years. For twenty years Patricia and Perry Smith’s dream of building a retirement home on their land at Lake Tahoe was blocked by a local moratorium on new construction. In a case now before the Supreme Court, lawyers for the Tahoe Regional Planning Agency say no compensation is owed owners like the Smiths because the moratorium might have been lifted at some point, whether or not it actually was. Too late for Perry Smith: “He died in 1999 and was never able to enjoy his dream of a Lake Tahoe retirement with his wife.” Local officials worry, however, that recognizing a right to compensation could cause a flood of litigation by owners. (Warren Richey, “A lakeview lot, a dream deferred, a 20-year lawsuit”, Christian Science Monitor, Jan. 7). Things aren’t much better up in British Columbia: Elizabeth Nickson, “B.C. property rights: endangered species”, National Post, Dec. 7.

January 16-17 — Australian summer festival. Look to your laurels, L.A.: Australia has become “an extraordinarily litigious environment”, said Nicholas Conca, senior vice president of a unit of Liberty Mutual Insurance, quoted in an article on suits against company officers and directors: “‘New South Wales has replaced Southern California as the most litigious environment in the world’ in terms of frequency of suits, he said.” (Regis Coccia, “D&O liability lawsuits increasing around the world”, Business Insurance, Nov. 26, not a free link). Plus: In a story that confirms everything you ever imagined about the atmosphere in Australian liquor establishments, a bar patron there is being sued after strapping pork chops to his feet like shoes and striding across the bar floor, leaving a greasy trail on which another patron allegedly slipped and fell (Leonie Lamont, “Meat tray winner faces $750,000 bill for carrying on like a pork chop”, Sydney Morning Herald, Jan. 15). And: Jellyfish stings are just one reason why touchy Oz residents sue their travel agents a lot (Simon Liddy (Ebsworth & Ebsworth), “Travellers behaving badly”, FindLaw Australia, undated)(via LegalHumour.com). Even more: should litigation lawyers have to display health warnings? (“Does litigation harm your health?”, ABC (Australian) with Damien Carrick, Oct. 23 (racp.edu.au report in PDF format)). (DURABLE LINK)

January 16-17 — “FTC Taking ‘Seriously’ Request To Probe Firearms Sites”. No one will accuse the left-wing lawyers’ group Alliance for Justice of being too delicate about its opponents’ free speech rights: it’s petitioned the Federal Trade Commission to prohibit firearms companies from arguing in print that buying a gun for home use is a way of protecting one’s family’s safety (Robert MacMillan, Newsbytes.com, Jan. 10; “‘Homeland Security’ Gun Not Misnamed — Firearms Dealer”, Jan. 14). It’s much the same approach as is taken in the federal government’s lawsuit against the tobacco industry, which charges the companies with unlawfully seeking to advance “false and misleading positions on issues” (emphasis added) (see Sept. 23, 1999). (DURABLE LINK)

January 16-17 — Undignified survivors. “Last month, for example, the federal government announced plans to disburse about as much money this year to families of attack victims as the entire international aid community has slated to give to Afghanistan over the next decade — and that money will come in addition to incredible amounts of charitable aid also already raised. Nevertheless, a spokesman for a victims’ lobby group immediately dissented, demanding more. ‘We are exploring our legal options and lining up attorneys,’ he said. Almost no criticism could be found in response.

“Emerson once wrote that ‘every hero becomes a bore at last.’ Well, at least their lawyers and lobbyists do.” (Nicholas Thompson, “Hero inflation”, Boston Globe, Jan. 13) (via Arts & Letters Daily). And why, exactly, are taxpayers or any other innocent parties obliged to compensate victims of the terrorist attacks for pain and suffering? (Thomas Connor, “Terror Victims Aren’t Entitled To Compensation”, Wall Street Journal, Jan. 2)(online subscribers only). (DURABLE LINK)

January 16-17 — Bounce those economists. There has been considerable progress in challenging the use of “junk science” in federal court, but it took a while for many participants to realize that disciplines like economics are also subject to the judicial-gatekeeper rules of the Supreme Court’s Daubert decision. Economists who hire themselves out to help lawyers make their case in antitrust, damages or commercial disputes had better be prepared to defend their methods and reasoning. (David Hechler, “Federal Judges Applying Tougher Standards on Expert Testimony”, National Law Journal, Jan. 8). (DURABLE LINK)

January 14-15 — “Avoiding court is best defence”. “The best way to deal with the legal industry is to avoid it. It should not be regarded as a justice system. It is an industry that provides incomes for its insiders and, as an industry, its raw material is us.

“Consider a 40-year-old father of three with an income in the $70,000 [C] range who appealed to the family court system for shared parenting. Before the court would rule, it insisted on a psychiatric assessment. That cost him $5,200 on top of legal fees that are approaching the $15,000 mark.” (Dave Brown, Ottawa Citizen, Jan. 12).

January 14-15 — Sept. 11 and court awards. An apparent decline in the number of huge jury awards since the terrorist attacks may represent a shift toward conservatism in juror psychology, or simply lawyers’ decision to postpone trials; police brutality claims are among those that seem to be faring less well. (Richard Willing, “Study: Sept. 11 influenced jury awards”, USA Today, Jan. 7; Pam Louwagie, “Lawyers, consultants: Sept. 11 influencing jurors”, Minneapolis Star Tribune, Jan. 7). Insurers have been paying far more than expected in recent years on employment practices liability claims, one reason being Congress’s 1991 expansion of the right to file discrimination suits. (Reed Abelson, “Surge in Bias Cases Punishes Insurers, and Premiums Rise,” New York Times, January 9).

January 14-15 — Armenians on reparations bandwagon too. “Descendants of Armenians killed in 1915 in what was then the Ottoman Empire have won a preliminary round in their class action fight to force New York Life Insurance Co. to pay benefits to insured victims’ families. New York Life sought to dismiss the suit, arguing that the insurance policies, purchased between 1875 and 1915, required litigation to be filed in France or England.” The state of California, in which Armenian-Americans constitute an ethnic lobby of some importance, had passed a law to help its constituents win. (Emily Heller, “Armenian Descendants Win Early Court Round”, National Law Journal, Dec. 21).

January 14-15 — Profiling: the costs of sparing feelings. Someone’s going to get killed, maybe soon, because our leaders — President Bush himself, John Ashcroft, Norman Mineta — bow to current civil rights doctrine by refusing to allow added scrutiny to airport-goers who fit terrorist demographic profiles. Will they change their minds in time? (Rich Lowry, “Mineta’s Folly”, National Review Online, Jan. 10; James Q. Wilson and Heather R. Higgins, “It Isn’t Easy Being Screened”, OpinionJournal.com, Jan. 10; Heather Mac Donald, “The War on the Police”, Weekly Standard, Dec. 31; Dorothy Rabinowitz, “Hijacking History”, OpinionJournal.com, Dec. 7; Terry Eastland, “Fitting the Profile”, Weekly Standard, Oct. 31).

January 11-13 — Class action on behalf of illegal-alien college students. On Monday, lawyers filed suit against the City University of New York on behalf of about 2,200 “undocumented immigrant” (a euphemism) students challenging a new policy under which the university would charge them out-of-state tuition rates, as opposed to the steeply subsidized rates available to city residents. University officials promptly caved in and agreed to notify the students “about a program to defer their tuition payments this semester.” The tuition hike came after CUNY administrators, re-evaluating their policies on immigrant students after the Sept. 11 terrorist attacks, “decided they had not been complying with a 1996 federal law making it illegal to favor undocumented immigrants over U.S. citizens.” Apparently the university has ruled out the option of ceasing to enroll illegals entirely, let alone the option of actively assisting the Immigration and Naturalization Service in enforcing the laws at which the plaintiffs have been thumbing their noses. It’s another sign, if any were needed, of what a privileged status university administrators enjoy in our legal system compared with employers, who face stringent penalties if they knowingly put illegals on their payroll. (Mae M. Cheng, “Tuition Waiver For CUNY Immigrants”, Newsday.com, Jan. 9). Plus: coverage of similar controversy at the Univ. of California mentions administrators’ “fears that the nine-campus system could be held liable if a nonresident of California who is a legal U.S. citizen challenged the law [giving illegals the in-state tuition break] and sued UC”. (Tanya Schevitz, “UC regents urged to let illegal immigrants pay in-state tuition rate”, San Francisco Chronicle, Jan. 12).

January 11-13 — Mummery of the law. A federal judge has ruled that lawyers pursuing civil suits against Osama bin Laden and Al Qaeda over the World Trade Center attack can serve them with adequate process by placing international broadcast TV ads and legal-notice ads in foreign newspapers. Maybe Osama will see one of the notices while browsing the classifieds for army-surplus munitions. (Melissa Sepos, “TV, Newspaper Ads Will Be Used to Serve Notice on Bin Laden, Al Qaeda”, The Legal Intelligencer, Jan. 8).

January 11-13 — “Ex-student sentenced for rape lie”. Key line in sad tale of made-up gang-rape story: “….she will begin classes at Drake University in Des Moines this month, and she wants to be an attorney.” (Staci Hupp, “Ex-student sentenced for rape lie”, Des Moines Register, Jan. 8)(via Obscure Store)(see May 26, 2000, on the Stephen Glass case).

January 11-13 — Prison litigation: “Kittens and Rainbows Suites”. As part of a federal court settlement with inmate lawyers, the state of Wisconsin has agreed to soften various living conditions at its Boscobel prison for the most violent and disruptive male offenders, and will stop calling the prison “Supermax”. “Lawyers for the inmates have objected to the ‘Supermax’ name and elected officials’ statements that it was built to hold the ‘worst of the worst’.” Republican Gov. Scott McCallum, asked recently about the phrase “worst of the worst”, told a reporter: “We’re not supposed to use that word anymore.” Rep. Mark Gundrum (R-New Berlin) proposes that the facility, which houses many murderers and rapists, be renamed “Kittens and Rainbows Suites”. (Steven Walters, “Supermax deal ‘coddles’ prisoners, GOP lawmakers say”, Milwaukee Journal Sentinel, Jan. 2). And in Canada, “the federal government quietly paid William Canning $2,500 last year after he took it to court for breaching the Charter of Rights by subjecting him to the ‘cruel and unusual punishment’ of second-hand smoke.” Canning, 44, is serving a 22-year sentence in a Quebec prison and objected to his cellmate’s smoking. (Janice Tibbetts, “Prisoner granted $2,500 because cellmate smoked”, Southam News/National Post, Jan. 7).

January 30-31 — Don’t mess with the taste cops. Arizona: Angelica Flores was handcuffed by police officers in front of her daughter and packed off to jail because “she and her husband, Tony, last year violated a code requiring Christmas decorations to be removed 19 days after the holiday.” Thinking that the charges had been dropped, the couple had skipped a court date with officials of the town of Peoria. (Monica Alonzo-Dunsmoor, “Couple jailed for Christmas lights see charge as humbug”, Arizona Republic, Jan. 28).

January 30-31 — “Legal Lesson for Afghanistan: War’s Not a Slip-and-Fall Case”. “For centuries, it has been accepted that damage caused in wartime cannot be claimed as injuries deserving compensation. … combatants are not required to treat every invasion like a massive slip-and-fall case,” notes law prof/pundit Jonathan Turley of George Washington University (L.A. Times, Jan. 29) (via InstaPundit).

January 30-31 — Washington Post blasts HMO class actions. The paper’s editorialists warn of “a new rash of abusive class action lawsuits” that “are being filed by an array of plaintiff’s lawyers, led by Richard Scruggs — of tobacco litigation fame and fortune — and David Boies”. The suits’ premise that managed health care cost control amounts to “racketeering” is a “novel but silly” theory that has already been rejected by one federal appeals court, the Third Circuit. “The notion of a national class of HMO enrollees is absurd. … The suits are a transparent effort to hijack the policy debate about managed care.” (“More actions without class”, Jan. 28).

January 30-31 — All things sentimental and recoverable. Down, attorney, down! cont’d: trial lawyers are salivating at the prospect of getting the law changed so they can file malpractice suits against veterinarians not just for a pet’s economic or replacement value as an animal, as is mostly the rule now, but for its personal and sentimental value, which would clear the way for six- and even seven-figure recoveries. In a closely watched case called Bluestone v. Bergstrom, an Orange County, Calif. judge has ruled in favor of a plaintiff’s right to pursue the larger scope of damages. At present only one veterinarian in sixteen faces a malpractice claim every year, but insurance specialist Mike Ahlert of Mack & Parker predicts skyrocketing rates if courts adopt the new doctrines: “it will drive up the cost of claims and attract plaintiff’s attorneys looking for new sources of income”. (Jennifer Fiala, “Court rulings could up ante on DVM malpractice”, DVM (veterinary newsmagazine), Sept., reprinted at ABD Services site); see also Thomas Scheffey, “Putting a Price on Pets”, Connecticut Law Tribune, Nov. 21).

January 28-29 — “Probe of Milberg Weiss Has Bar Buzzing”. Rumors fly that a grand jury is investigating class-action behemoth Milberg Weiss. Accounts differ, but the focus of the investigation is said to be the firm’s financial relationships with clients serving as plaintiffs in securities cases. (Jason Hoppin, The Recorder, Jan. 28). (DURABLE LINK)

January 28-29 — State of prosecution in Iowa. In a bizarre application of federal sentencing guidelines, the U.S. attorney’s office in Cedar Rapids, Iowa has gotten Dane Allen Yirkovsky, 38, sentenced to prison for 15 years for possessing a single .22 caliber bullet. “Yirkovsky’s saga began when he happened to come across a loaded .22-caliber round while pulling up carpets in the home of a friend who was putting him up in exchange for some remodeling work. He stuck the bullet in a box in his room. The bullet was discovered by police who were searching Yirkovsky’s room after his ex-girlfriend asserted he had some of her belongings.” (“Editorial: One bullet, 15 years”, Des Moines Register, Jan. 21). “The Iowa Supreme Court ruled Thursday that Polk County authorities were within their rights to confiscate a $9,000 car for a $35.81 crime.” (Frank Santiago, “County seizure of $9,000 car for $35.81 crime is upheld”, Des Moines Register, Jan. 25) And thank the Iowa attorney general’s office for this one: “Critics say a state law aimed at confining sexual predators past their prison terms is being used to punish offenders for crimes that aren’t sex-related.” (Jeff Eckhart, “Predator law used in non-sex crimes, critics say”, Des Moines Register, Dec. 23 — via Free-Market.Net). (DURABLE LINK)

January 28-29 — Strain, sprain injuries get $350K. “A California shopper who sustained a lower-back injury after a slip and fall in a department store settled her case for $349,999. On Dec. 26, 1998, plaintiff Bianca Hernandez, an unemployed female in her early 50s, was shopping in the sportswear section of a J.C. Penney store when she slipped and fell on coat hangers, clothes and other debris that were left on the floor.” Hernandez was taken to an emergency room. “She suffered sprain and strain injuries to her lumbar spine, left knee and left ankle.” Her suit alleged “that the store was inadequately supervised because the department manager and the assistant manager were both on break at the time, and sales associates were fully occupied serving customers.” Hernandez v. J.C. Penney Co. Inc., No. VC 030 725 (L.A. County) (“Fall during post-holiday sale costs J.C. Penney”, National Law Journal, Jan. 21, not online). (DURABLE LINK)

January 28-29 — Third Circuit nixes Philly gun suit. Goodbye to the city’s nuisance of a suit against the gun industry: “gun manufacturers are under no legal duty to protect citizens from the deliberate and unlawful use of their products,” said the federal appeals court, which also ruled the city couldn’t show the gunmakers were the “proximate cause” of harm suffered. (Shannon P. Duffy, “Philadelphia’s Gun Suit Off Target, 3rd Circuit Says”, Legal Intelligencer, Jan. 14). (DURABLE LINK)

January 25-27 — Warning on fireplace log: “Risk of Fire”. Michigan Lawsuit Abuse Watch has released the results of its fifth annual contest for the wackiest warning label, with the warning on the fireplace log coming in second. The winning entry, found on a CD player: “Do not use the Ultradisc2000 as a projectile in a catapult.” Third prize went to the label on a box of birthday candles: “DO NOT use soft wax as ear plugs or for any other function that involves insertion into a body cavity.” (Larry Hatfield, “Dumbest warning labels get their due”, San Francisco Chronicle, Jan. 24; M-Law press release, Jan. 22). (DURABLE LINK)

January 25-27 — Goodbye to zero tolerance? Democratic state senator Richard Marable is leading a bipartisan group of lawmakers in the Georgia legislature who want to give school authorities more discretion for lenience in cases of students found with weapons or weapon-like objects in their possession. The public has been soured on zero-tolerance policies by cases like that of Ashley Smith, the Cobb County sixth-grader suspended for 10 days for bringing to school a Tweety Bird keychain (see Sept. 29, Oct. 4, 2000), and an Eagle Scout punished after “return[ing] to school from a weekend expedition with a broken ax in his car … An Atlanta Journal-Constitution poll this past Friday found that 96 percent of respondents supported examining each case individually. Only 1 percent liked zero tolerance the way it was, and 3 percent wanted school safety laws to be stricter.” (“Georgia Pols Want ‘Common Sense’ to Trump ‘Zero Tolerance'”, FoxNews.com, Jan. 21). (DURABLE LINK)

January 25-27 — McMouse story looking dubious. Brett B., 32, “said he found a mouse inside his Big Mac sandwich in June of 2001.” His story has been looking a little peaked, however, since he and four others were busted “as part of a methamphetamine ring in Berkeley County. Police say [he] was also part of a scam that went around the state stealing people’s identities and credit cards. But one of his alleged accomplices spoke up about last June’s mouse incident, telling police, ‘Brett had got together with myself … and had planned to come up with a scam to pull on McDonald’s where Brett was going to say he had bit into a mouse that the employees of McDonald’s had put in there.'” (Dan Krosse, “McMouse Case Looks Like a Hoax”, WCIV-TV (Charleston, S.C.), Jan. 15). (DURABLE LINK)

January 25-27 — “Companies may be liable for drugs used in rapes”. “Drug manufacturers whose products are used by offenders to help them commit rape could be held legally responsible for the crimes, according to a Melbourne lawyer. Eugene Arocca was commenting on reports of increasing drug-assisted date-rape in and around Melbourne clubs and entertainment venues. … However, the managing director of Roche Australia, the drug company that produces several drugs that have allegedly been used in date-rapes, described the whole idea as ‘bloody ridiculous’.” (Heather Kennedy, The Age (Melbourne), Jan. 6). (DURABLE LINK)

January 23-24 — Life imitates parody: “Whose Fault Is Fat?” By reader acclaim: “Some say the food industry — particularly fast food, vending machine and processed food companies — should be held accountable for playing a role in the declining health of the nation, just as the tobacco industry ultimately was forced to bear responsibility for public health costs associated with smoking in its landmark $206 billion settlement with the states. Although no one is taking such legal action against the food industry, nutrition and legal experts say it is reasonable to think that someday, it may come to that. ‘There is a movement afoot to do something about the obesity problem, not just as a visual blight but to see it in terms of costs,’ says John Banzhaf, a George Washington University Law School professor.” (Geraldine Sealey, “Whose Fault Is Fat? Experts Weigh Holding Food Companies Responsible for Obesity”, ABCNews.com, Jan. 22). OpinionJournal.com “Best of the Web” (Jan. 22) reports that “This past Sunday, ‘The Simpsons’ aired a new episode in which Marge, shocked to learn that Springfield is the fattest town in America, hires a lawyer to sue ‘big sugar.'” See Michael Y. Park, “Lawyers See Fat Payoffs in Junk Food Lawsuits”, FoxNews.com, Jan. 23 (quotes our editor).

January 23-24 — “Law hurts men, women”. Title IX, the feminist sports law run amok, is taking an ever-increasing toll: “Baseball at Boston University — gone. Kent State hockey — goodbye. Swimming at New Mexico — finished. The list goes on and on, more than 350 programs in virtually every sport on campus, and with it go the scholarships earned by student athletes and their dreams of competition to which most have devoted a lifetime. Incredibly, that has happened to more than 22,000 college athletes in recent years.” (Mike Moyer (executive director of the National Wrestling Coaches Association), Yahoo/USA Today, Jan. 21)(see Nov. 3, 2000, and our 1998 take).

January 23-24 — “Dangerous compensation”. “It seems that envy has replaced acceptance as the final stage of grief. … Washington’s payments to the victims of terrorism exposes the government to a potentially limitless array of future claims. Families of those killed in the 1988 bombing of Pan Am 103 over Lockerbie, Scotland, received nothing from Washington; relatives of federal employees killed in the 1995 Oklahoma City bombing collected approximately US $100,000 each. But if US $1.6-million per decedent is the going rate, then a proper accounting for past and future terrorist attacks might bleed the coffers dry.” (National Post (editorial), Jan. 21).

January 23-24 — Drug demagogy and needless pain. Doctors still underprescribe opioids for the control of chronic pain, and it doesn’t help when CBS “60 Minutes” lends its assistance to the campaign against one of the most important recent pain advances, the drug OxyContin (Jane E. Brody, “Misunderstood Prescription Drugs and Needless Pain”, New York Times, Jan. 22 (reg); Jacob Sullum, “Killing a Painkiller”, Dec. 18; Geov Parrish, “A junkie’s confession”, Seattle Weekly, Dec. 20-26) (see Aug. 7, 2001). A Google search on the drug’s name immediately calls up ads from the websites AboutOxyContin.com and OxycontinInfoCenter.com, which might sound neutrally informative but turn out to be client intake sites for trial lawyers.

January 21-22 — Med-mal: should doctors strike? Insurance rates for doctors are soaring in New Jersey, and the legislature in Trenton is too deeply entwined with trial lawyers to pass anything likely to curtail the bar’s prosperity. “Calling the supply of surgeons tenuous, Dr. Michael Goldfarb, chief of surgery at Monmouth Medical Center in Long Branch, said that unless action is taken soon, New Jersey and the rest of the nation will have a surgeon shortage.” Neptune, N.J. ob/gyn Dr. George Lauback “gave up the obstetrical side of his practice, realizing that paying the $170,000 annual premium would mean he was working for the insurance company, not his family.” Brick, N.J. obstetrician Dr. Charles Brick suggests the state’s physicians stage a work stoppage of non-emergency care to draw attention to their plight (Naomi Mueller, “Malpractice costs driving doctors out”, Asbury Park Press, Jan. 19). In neighboring Pennsylvania, where payouts per doctor are said to be the highest in the country, the “Pennsylvania Medical Society reports that, according to data compiled by CASCO Consulting, a typical obstetrician in the regions of Pennsylvania with the highest average premiums, pays $83,541 a year in insurance premiums …[a] typical orthopedic surgeon in Pennsylvania’s highest region pays $96,199 a year … the average neurosurgeon in the same Pennsylvania region pays $111,296 a year.” (“Focus on medical malpractice”, Law.com, Oct. 31).

One Delaware County, Pa., orthopedic surgeon calculates that his liability insurance costs him $300 per surgery, which is more than some of the procedures are reimbursed for, so that “he’s losing money before other expenses are even factored into the equation.” (Tanya Albert, “Liability rates squeezing out specialties”, American Medical News (A.M.A.), Dec. 3; Tanya Albert and Damon Adams, “Professional liability insurance rates go up, up; doctors go away”, Jan. 7). On the withdrawal from delivering babies of half or more of the obstetricians practicing in various Mississippi Delta counties since just a year or two ago, see Hugh A. Gamble (president, Mississippi State Medical Association), letter to the editor, Mississippi Medical News, Dec., (PDF format, large download), at p. 4. (DURABLE LINK)

January 21-22 — “In a class of his own”. Profile of famed class-actioneer Melvyn Weiss of Milberg Weiss Bershad Hynes & Lerach. Quotes our editor (The Economist, Jan. 17).

January 21-22 — Student: clown college harder to get into than law school. Soon after graduating with his law degree from the University of California, Berkeley, David Carlyon left it all behind to enroll in the Ringling Bros.-Barnum & Bailey clown training program. “Hey, listen, it’s harder to get into that Clown College than it is into a law school,” he told the Saginaw (Mich.) News. “Some 3,000 apply to it each year, only 60 get in and only 30 get contracts after they graduate.” (“Berkley [sic] grad says getting into clown school harder than getting into law school”, AP/AZcentral.com, Jan. 18). (DURABLE LINK)

January 21-22 — “Judo champion refuses to bend in lawsuit”. Challenging the ritual which begins sanctioned judo matches, a suit by three students “against three U.S. judo groups, as well as the International Judo Federation. …claim[s] that the forced bowing to inanimate objects, such as judo mats and pictures of the Japanese martial art’s founder, is religious in nature and violates federal and Washington state discrimination laws.” (Sam Skolnik, Seattle Post-Intelligencer, Dec. 7) (via OpinionJournal.comBest of the Web“).

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  • […] he’s at odds with a fellow Democrat, state house Speaker Michael Madigan — himself a longtime guardian of trial lawyer interests in Springfield — following what the St. Louis Post-Dispatch […]