July 2000 archives

July 10 — Tobacco: why stop at net worth? Trial judge Robert Kaye, presiding over the Engle tobacco class action in Miami (see July 8, 1999, Sept. 28, June 2, our WSJ take July 1999), has declared that in calculating a basis for punitive damages there’s no reason jurors should feel obliged to stop at a sum representing the tobacco companies’ net worth. “There’s much more to this case than net worth or stockholder equity,” he said. Earlier, Judge Kaye ruled that it was proper to place before the jury the companies’ capacity to borrow funds to help meet a punitive damage award, and also agreed to let the jury consider companies’ operations worldwide in assessing those damages, though foreign countries might wonder why the hypothesized victimization of smokers worldwide should result in a punitive payoff exclusively to (certain) Floridians, and though overseas court systems are generally far more averse than ours to the award of punitive damages. Moreover, Judge Kaye “barred the defendants from arguing to the jury that they have already been punished enough by their earlier settlements with states valued at $246 billion” even though those settlements took place in the shadow of demands for punitive damages. (Imagine copping to a plea bargain in one court over your past doings, and then finding you get no double jeopardy protection when hauled up for punishment by a second court — after all, your plea bargain was “consensual”, so how can it count as punishment? But American courts are in fact permitted to assess punitive damages against civil defendants an unlimited number of times to chastise them for a single course of conduct, so it’s not as if any due process is owed or anything.)

Plaintiffs offered an expert witness, Prof. George Mundstock of Univ. of Miami School of Law, who testified that the nation’s five biggest cigarette makers “are worth $157 billion domestically and have a ‘strikingly rosy’ future”, per AP, which appears to make hash of suggestions that lawyers’ efforts previous to this point have made a vital difference in putting us on the road to a “smoke-free society”. Mundstock’s methodology reportedly reduced to a present value stream the surplus of all future tobacco company income over expenses. Even the Wall Street Journal‘s Milo Geyelin, not a reporter suspected of pro-business leanings, writes that Kaye’s handling of the legal issues in the suit has been “unorthodox”. At the New York Times, meanwhile, reporter Rick Bragg last month interviewed several of the dozen or more smoking-ravaged spectators who throughout the trial have taken highly visible seats in the courtroom day after day where the jury can hear and see their labored breathing, oxygen tanks, and mechanical voice boxes. While extracting considerable human-interest content from these interviewees, Bragg’s story does not display the least curiosity as to whether the idea of attending just happened to occur to all of them spontaneously, or instead, as defendants have hinted, was the result of an orchestrated effort by plaintiff’s attorneys Stanley and Susan Rosenblatt, which might have been ruled out of bounds as manipulative and prejudicial by a jurist less agreeable to the plaintiffs’ cause than Judge Kaye.

SOURCES: Milo Geyelin, “Judge Won’t Allow Tobacco Industry To Cite Settlements”, Wall Street Journal, May 18; “Jury can hear about tobacco industry’s borrowing power, judge rules”, FindLaw, May 31, no longer online; “Economist estimates tobacco industry worth $157 billion”, AP/FindLaw, June 6, no longer online; Gordon Fairclough, “Judge in Smoking-Illness Suit Tells Jury Not to View Settlements as Punishment”, Wall Street Journal, June 14; “Judge KO’s Tobacco Try on Damages”, AP/FindLaw, July 6; Milo Geyelin, “Judge Reverses, Lets Jury Weigh Foreign Tobacco Sales”, Wall Street Journal, June 7; Rick Bragg, “Where Smoking Damages Are Argued, Plaintiffs Fight for Air”, New York Times, June 3.

July 10 — “Why You Can’t Trust Letters of Recommendation”. Fear of lawsuits isn’t the only factor inhibiting candid letter-writing in higher education, but it’s an important one, especially since a recent decision by the Virginia Supreme Court stripped professors of immunity for allegedly defamatory reference-giving in the tenure process. Open-records laws add to the difficulties, as in the University of California system, where job candidates enjoy a big head start in figuring out who’s saying what about them (Alison Schneider, “Why You Can’t Trust Letters of Recommendation”, Chronicle of Higher Education, June 30) (via Arts & Letters Daily).

July 10 — Wonder Bread hierarchy too white, suit charges. What more symbolically fraught company to get sued on race discrimination charges than Wonder Bread? Bay Area politician/attorney Angela Alioto, representing 21 black workers at Interstate Brands’ San Francisco bakery, thinks $260 million an appropriate amount to ask for failure to promote and other sins; the trial began May 24. A feud has also developed between Alioto and co-counsel Waukeen McCoy, with Alioto accusing McCoy of swiping three of her clients. (Dennis J. Opatrny, “Wonder Bread Race Discrimination Trial Opens in S.F.”, The Recorder/CalLaw, May 30; Alioto website). Update: jury awarded $11 million in compensatory and $121 million in punitive damages (see Aug. 4).

July 7-9 — Veeps ATLA could love. For the organized plaintiff’s bar, more reason to smile: recent speculation about a running mate pick for Al Gore has centered on such names as Senator Dick Durbin (D-Ill.) and Defense Secretary Bill Cohen, a Republican Senator from Maine before joining the Clinton Administration. Trial lawyers have had few better friends in the U.S. Congress than Durbin, who’s taken a prominent role in advancing their interests in virtually every hot area of recent years: tobacco (where, notwithstanding language on his website about how he’s worked to prevent “unnecessary windfalls for special interests“, he led the successful fight against limiting multi-billion-dollar lawyers’ fees), gun and HMO liability (in both cases sponsoring legislation that would make it easier to sue) and product liability (where he helped lead opposition to various GOP-sponsored bills, such as one to ease liability pressure on biomaterials used in implants and other advanced medicine). (PBS “NewsHour with Jim Lehrer” transcript, May 19, 1998 (tobacco — scroll to near end); Bob Barr (R-Ga.) press release on Durbin gun bill, March 4, 1999; Durbin press release on HMO liability, April 29, 1998; Jeffrey J. Kimbell, “Biomaterials Access Bill Continues To Move Through Congress”, American Society for Artificial Internal Organs, undated 1998) (also see May 8). Cohen, though unlike Durbin not closely identified with the trial lawyer agenda, has the unusual distinction of having worked early in his career for both the Association of Trial Lawyers of America (as an assistant editor-in-chief) and the Maine Trial Lawyers Association (as vice president); not surprisingly, he acquired a reputation on the Hill as one who often strayed from the Republican fold on litigation issues. (Biographical note, University of Maine/Orono; Ramesh Ponnuru, “The Case for Bill Cohen”, National Review Online “Washington Bulletin”, July 3). (DURABLE LINK)

July 7-9 — Inmate: You didn’t supervise me. A former inmate at the Spartanburg County, S.C. jail has filed a lawsuit saying officials negligently failed to supervise him while he engaged in horseplay alone in his cell. Torrence Johnson, of Rock Hill, who was in jail after his arrest on charges of driving with a suspended license and another traffic infraction, says he fell and broke a vertebra with resulting paralysis. “If jail personnel had done a better job of supervising him, Johnson claims, he never would have been able to engage in the ‘horseplay’ that paralyzed him.” “He stood up on a desk in his cell and was cutting back flips off of it,” said jail director Larry Powers. “With the small number of detention officers we have, there’s no way that we can constantly monitor every inmate continuously around the clock.” (Tom Langhorne, “Paralyzed man blames jail for injury”, Spartanburg (S.C.) Herald-Journal, July 6).

July 7-9 — The Wal-Mart docket. The world’s largest retailer gets sued with such regularity that an enterprising Nashville lawyer has erected a site entitled the Wal-Mart Litigation Project devoted to the subject. You can browse 99 Verdicts Against Wal-Mart, search for attorneys who volunteer a willingness to sue the company, or consult a price list of packets you can buy on dozens of specialized topics such as “Pallets or Dollies Left in Aisle Ways (12 items, $100)” “Shopping Carts – Overloaded (4 items, $45)”, and “Restrooms – Water on Floor (3 items, $40)”. Some of the bigger-ticket lawsuits against the chain assert liability over the sale of guns later used to commit crimes, over abductions and other crime occurring in parking lots, and over tobacco sales: a suit in Arkansas last year labeled the retailer a “co-conspirator” with cigarette companies. Update: for another suit, see July 21-23.

SEE ALSO: “Ala.Wal-Mart to pay up to $16 million over shotgun used to kill woman”, AP/Court TV, Feb. 23; Trisha Renaud, “Tangled Mind, Tangled Case”, Fulton County Daily Report (Atlanta), March 24; Bob Van Voris, “Wal-Mart Discovery Tactics Hit”, National Law Journal, March 29; Bob Van Voris, “More Sanctions for Wal-Mart”, National Law Journal, April 14; Seth Blomeley, “Pair sues Wal-Mart, tobacco firm, calls them ‘co-conspirators'”, Arkansas Democrat-Gazette, Dec. 16, 1999 (no longer online); Bob Van Voris, “Wal-Mart’s Bad Day”, National Law Journal, June 5.

July 7-9 — Welcome Australian Bar Association members. Our editor was a featured speaker at the Association’s conference in New York this week, which has helped boost this site’s already considerable traffic from Down Under. For more on Dame Edna’s fateful gladiolus toss, mentioned in our remarks, see our May 26 commentary.

July 6 — Foreign policy by other means. The Constitution entrusts to the President and his appointees the task of managing this nation’s relations with foreign powers, but now some in Congress are keen on giving private litigators ever more authority to initiate courtroom fights against those foreign powers, whether or not the State Department considers that such hostilities fit well into a coordinated national policy. A bill that would entitle U.S. victims of Iranian-backed terrorism to collect compensation payments from blocked Iranian bank accounts is moving swiftly on Capitol Hill, despite a plea from the Clinton Administration’s Stuart Eizenstat that significant foreign policy interests of the government will be impaired if blocking of foreign assets becomes simply a preliminary to attachment of those assets on behalf of particular injured litigants. (Jonathan Groner, “Payback Time for Terror Victims”, Legal Times (Washington), June 7). The touchy issue of U.S. relations with member nations of OPEC has in the past and might someday again engage this nation in armed conflict abroad, but Rep. Benjamin Gilman, R-N.Y., chairman of the House International Relations Committee, has just introduced a Foreign Trust Busting Act that could empower litigants to seize OPEC assets in this country, removing a legal obstacle known as the “Act of State” doctrine, under which U.S. courts generally avoid ascribing liability to the official acts of foreign governments. Presumably oil sheiks would proceed to submit to depositions in American courtrooms and negotiate over the size of the fees payable to entrepreneurial class action lawyers. (Ted Barrett, “Bill will allow antitrust suits against OPEC”, CNN, June 24). And lawyers for Argentine veterans and relatives are in Strasbourg, France, preparing to file a war crimes case against Great Britain over the 1982 sinking of the cruiser General Belgrano, which killed 323 seamen; Britain and Argentina were at war at the time over Argentina’s invasion of the Falkland Islands. (“Argentine war victims sniff justice in Belgrano case”, Reuters/CNN, July 3) (see Feb. 14 commentary and links there, and July 14).

July 6 — Trial-lawyer candidates. New York Press columnist Chris Caldwell, reflecting on the New Jersey Senate primary victory of Goldman Sachs executive Jon Corzine, predicts that more millionaire candidates will enter Democratic politics by staking their own campaigns, but says “[i]t’s unlikely most of them will be finance executives. More probably, they’ll resemble North Carolina Sen. John Edwards, who made his 25 million as a trial lawyer. Trial lawyers are the Democratic Party’s biggest contributors, and the party repays the favor by helping create a favorable litigating climate, and even breeding such golden-egg-laying geese as the various state tobacco agreements. But they’re increasingly coming to the conclusion that there’s no reason to bribe the party when you can run it yourself.

“Typical of the new lawyer/candidate class is Minnesota’s Michael Ciresi, who’s seeking the Democrat/ Farm[er]/ Labor nomination for Senate. Ciresi’s law firm got $400 million of Minnesota’s tobacco money. Why? Because then-state Attorney General Skip Humphrey (Hubert’s son) said it should. We seem to be arriving at a situation in which it is the government itself that puts up candidates.” (“Hill of Beans: Iron Jon (second item), New York Press, June 13).

July 6 — Update: Canadian skydiver recovers damages from teammate. A judge has awarded C$1.1 million ($748,000) to Gerry Dyck, a veteran skydiver who sued teammate Robert Laidlaw for allegedly failing to exercise proper care toward him during a dive. The case, along with other recent suits, had been criticized by some in the skydiving community as bad for the sport (see May 26) (“Canadian skydiver wins lawsuit against teammate”, Reuters/FindLaw, June 26).

July 5 — Feds’ own cookie-pushing. Even as the White House and Senators wring their hands over the threat to privacy posed by visitor tracking by private websites, dozens of federal agencies use cookies to track visitors, including those dispensing information on such sensitive topics as drug policy and immigration. (Declan McCullagh, “Feds’ Hands Caught in Cookie Jar”, Wired News, June 30; Eric E. Sterling, “Uncle Sam’s ‘cookie’ is watching you”, Christian Science Monitor, July 3). So does the website of a New Jersey Congressman who’s expressed high dudgeon about privacy issues in the past (Declan McCullagh, “How Congressional Cookies Crumble”, Wired News, June 30; John T. Aquino, “Senate Online Profiling Hearing Suggests Movement Toward Federal Legislation”, E-Commerce Law Weekly, June 16). Meanwhile, state attorneys general, emboldened by taking tobacco and Microsoft scalps, are moving closer to filing cases against cookie-setting dot-coms: “It’s like the thought police. It’s really an alarming specter in terms of privacy”, claims Michigan AG Jennifer Granholm, of the ability of servers to detect particular repeat visitors to their sites (Gail Appleson, “States may launch privacy suits”, Reuters/ZDNet, June 20). The Federal Trade Commission has moved to regulate privacy policies at financial services sites, and is asking Congress for legislation that would extend its authority much further (Keith Perine and Aaron Pressman, “FTC Publishes Internet Privacy Rule”, Industry Standard/Law.com, May 16; Keith Perine, “FTC Asks Congress for Online Privacy Laws”, Industry Standard/Law.com, May 24).

July 5 — Prospect of injury no reason not to hire. In May, the Ninth Circuit U.S. Court of Appeals ruled that employers can’t deny a job to a disabled applicant even if the work poses a “direct threat” to that applicant’s health or safety. Chevron had turned away Mario Echazabal for a job at the “coker unit” of its El Segundo, Calif., oil refinery in 1995 after a pre-employment exam revealed that he had a liver disorder that the company’s doctors feared would worsen in the unit’s harsh environment (“coker units” explained: Industrial Fire World site). Prominent liberal jurist Stephen Reinhardt, writing for a unanimous three-judge panel, held that it should be up to a disabled worker whether to risk a toxic exposure — never mind that the employer will predictably be presented with much or all of the bill if the exposure does wind up incapacitating the worker. Jeffrey Tanenbaum, with the San Francisco office of the management-side law firm Littler Mendelson, said “either the decision is terribly wrong, or the ADA is written in a ludicrous manner,” because “it makes no sense to make an employer violate a federal or state health and safety law,” referring to Occupational Safety and Health Administration statutes that require employers to avoid exposing employees to injury. (Michael Joe, “Employment Bar in Tizzy Over 9th Circuit Decision”, The Recorder/CalLaw, June 16).

July 5 — “Exporting tort awards”. Study of more than 7,000 personal injury cases by Eric Helland (Claremont McKenna College) and Alexander Tabarrok (Independent Institute) finds civil awards against out-of-state defendants ran an average of $652,000 in states where judges reach office by partisan election, but only $385,000 where selection is nonpartisan. For cases against in-state defendants, the gap was a narrower $276,000 vs. $208,000 — suggesting that while one effect of partisan judicial elections may be to raise the level of awards, an even more important effect may be to worsen the bias against out-of state entities which are not represented in a state’s political process but are subject to wealth redistribution by its courts (“Exporting Tort Awards“, Regulation, vol. 23, no. 2 (autoredirects to pdf document); “The Effect of Electoral Institutions on Tort Awards” (links to pdf document), Independent Institute Working Paper #1).

July 5 — We probably need a FAQ. “Does your law firm handle driving under the influence cases?” — thus a recent email to this site from a Mr. R.S. We do seem to spend an inordinate amount of time explaining to correspondents that we aren’t a law firm or legal referral service, and that we can’t advise folks with their legal problems, no way, nohow — both from lack of time and inclination and because we fear being dragged off to the Unauthorized Practice dungeons where they stow people who presume to dispense such advice without advance permission from the bar.

July 3-4 — “Parody of animal rights site told to close”. Several years ago internet entrepreneur Michael Doughney registered the web address www.peta.org and used it to put up a site called People Eating Tasty Animals, parodying the militant animal rights group People for the Ethical Treatment of Animals. Now a federal judge “has ordered him to relinquish the web address to PETA and limit his use of domain names to those not ‘confusingly similar'”. Doughney’s lawyer says he plans to appeal and says it’s not a cybersquatting case because his client had no wish to sell the domain name but simply wanted to use it for parody. Doughney has moved the site here; it includes a substantial list of links to sites which take the position that there’s nothing unethical about animal husbandry as such, as PETA would have it. (“Parody of animal rights site told to close”, Ananova.com, June 21; “Domain Strategies for Geniuses”, Rick E. Bruner’s Executive Summary, May 12, 1998). As for PETA, it’s not a group to shy away from charges of hypocrisy: it itself registered the domain name ringlingbrothers.com and used it for a site decrying alleged mistreatment of circus animals. A lawsuit by the real Ringling Brothers Circus ended with PETA’s agreement to relinquish the name. (“PETA’s Internet hypocrisy”, Animal Rights News (Brian Carnell), May 18, 1998; DMOZ).

July 3-4 — Multiple chemical sensitivity from school construction. At Gloucester High School on Massachusetts’s North Shore, some present and former staff members and students have sued the architects and contractors after a school construction project whose fumes, some of them say, sensitized them to the point where they now grow ill from a whiff of window cleaner, perfume, hairspray, or new upholstery, or even from contact with people who’ve laundered their clothes in regular detergent. The reporter doesn’t quote anyone who seems familiar with the skeptics’ case against MCS, but to us this sounds like a case for Michael Fumento (see his “Sick of It All”, Reason, June 1996). (Beth Daley, “Disrupted lives”, Boston Globe, June 26)

July 3-4 — A Harvard call for selective rain. “So far, legislators, loath to tamper with the dot-com wealth machine powering the U.S. economy, have left Web companies alone. But Jonathan Zittrain, executive director of Harvard’s Berkman Center for Internet and Society, believes that era is ending. Hot-button issues like personal privacy are putting Web companies under a microscope, he says. And continuing advancements in technology will soon make it easier for companies to patrol their sites much more aggressively. ‘No one wants to rain on the Internet parade so much that you wash it out,’ Mr. Zittrain says. ‘But people are starting to realize you’ll be able to very selectively rain on the parade'”. Aside from feeling some alarm at the content of these remarks by Mr. Zittrain, we hereby nominate them for the Unfortunate Metaphor Award: if rain is the sort of thing he thinks can be made to fall “very selectively”, why do we keep hearing that it falls on the just and the unjust alike? (Thomas E. Weber, “E-World: Recent Flaps Raise Questions About Role of Middlemen on Web”, Wall Street Journal, June 5) (fee).

July 3-4 — Overlawyered.com one year old. We started last July 1 and have set new visitor records in nearly every month since then, including last month … thanks for your support!

July 19-20 — “Coke Plaintiff Eavesdrops on Lawyers; Case Unravels”. After lawyers suing Coca-Cola on discrimination charges hold a conference call with their clients and with Jesse Jackson, one of the clients, a Coke security guard named Gregory Clark, quietly decides to stay on the line, rather than hang up as the others and Jackson do, and listen to what the lawyers say among themselves. The sensational results are aired in this remarkable article in the Atlanta legal paper, which just might blow the tightly screwed cap off the whole issue of lawyers’ management of litigation in their own interest — don’t even think of missing it (R. Robin McDonald, Fulton County Daily Report (Atlanta), July 18) (Atlanta Journal-Constitution special page on Coke discrimination litigation).

July 19-20 — Editorial roundup: “The wrong verdict on tobacco”. By a wide margin, the American people believe that though cigarettes are harmful, it should be lawful to sell them. “Last week’s verdict by a Florida jury, however, suggests that what the American people want is no longer terribly important when it comes to tobacco.” (Chicago Tribune, editorial, July 18). “[T]he judge prohibited any testimony relating to choice and personal responsibility,” contends the New York Post. In plain English, the fix was in.” (“Milking the Tobacco Cow”, July 18). Jury foreman Leighton Finegan said he was “insulted” when tobacco company lawyers raised the possibility that the throat cancer of one of the plaintiffs might have been caused by occupational dust exposure, but it’s perfectly legitimate for defendants to point out that health problems arise from multiple origins, which sheds light on the unmanageable nature of the supposed “class” (Hickory (N.C.) Record, “$145,000,000,000!”, July 17). “It says something about the class-action lawsuit Florida smokers filed against the industry that two of the lead plaintiffs in the case were medical officials who bragged of their own ignorance,” comments the Washington Times. “Said one, a 44-year-old nurse, ‘I had no idea there was anything wrong with cigarettes at all.” (“That will be $145 billion, please”, July 17). And Smarter Times, the new online venture edited by Ira Stoll that keeps a watchful journalistic eye on the New York Times, notes that the newspaper’s July 15 editorial “basically comes out in favor of using class action lawsuits to put companies out of business, even when the Congress or state legislatures are unwilling to declare the products illegal.” (Issue #28).

July 19-20 — Disabled accessibility for campaign websites: the gotcha game. The Washington Post‘s online edition plays gotcha with political campaign websites, most of which fail to heed disabled-accessibility guidelines of the sort that may already be legally binding on a wide range of private sites. The Al Gore (D) and Rick Lazio (R-N.Y.) websites are among the minority that comply with “Bobby“, the most widely used program for evaluating a site’s disabled accessibility. Sites that fall short on “Bobby” include those of George W. Bush (R), Hillary Clinton (D-N.Y.), Ralph Nader (Green) and Patrick Buchanan (Reform). (Ryan Thornburg, Mark Stencel and Ben White, “Political Graffiti Goes Online” (third item), WashingtonPost.com, July 17).

However, running the Thornburg-Stencel-White article itself through a “Bobby” check discloses that as of Tuesday evening it itself suffered from at least fifteen violations of disabled accessibility rules: lack of alternative text for images (12 instances), lack of redundant text links for server-side image map hot-spots (2 instances), and lack of alt text for image-type buttons in forms (1 instance) (full “Bobby” evaluation of Post article). The article is also reprinted on Slate, where as of Tuesday evening it suffered from at least 19 Bobby infractions, including lack of alt text (18 instances) and lack of button text (once) (evaluation). Numbers are subject to change if and as the pages change, of course.

July 19-20 — Target Detroit. “Those in Michigan cheering state assaults on the tobacco industry and gun manufacturers may want to hold their applause,” writes the Detroit News‘ Jon Pepper, since the state’s leading industry, automaking, could face assault from some of the same litigation forces. (“Auto industry could follow guns, tobacco into courtroom”, June 4). Many lawyers are eager to pin liability on the design of sport utility vehicles because of their tendency to inflict higher than usual damage on other motorists and pedestrians, but they’ve had trouble so far finding a theory that will stick (Keith Bradsher, “S.U.V. Suits Still Face Long Odds”, New York Times, May 30). And a federal judge has refused to dismiss a defamation countersuit by Philadelphia class action firm Greitzer & Locks against DaimlerChrysler and its associate general counsel, Lew Goldfarb, arising from charges DaimlerChrysler filed last fall (see Nov. 12) charging the Greitzer firm and another attorney with the filing of abusive class action litigation. The Greitzer firm is now suing Mr. Goldfarb personally for defamation and interference with contractual advantage and cites, as evidence of malice, his description of the cases filed by Greitzer & Locks as “a form of legalized blackmail” and of one such suit as one that “belongs in the class action hall of shame.” How many times do we have to warn you to watch very carefully what you say when you criticize lawyers? (Shannon P. Duffy, “DaimlerChrysler GC Can Be Sued in Pennsylvania”, The Legal Intelligencer (Philadelphia), June 30; “Greitzer & Locks Takes a Swing Of Its Own at DaimlerChrysler”, Jan. 14).

July 18 — Florida tobacco verdict. Our editor has an op-ed piece in today’s Wall Street Journal discussing last week’s punitive award in the Florida tobacco class action: Walter Olson, “‘The Runaway Jury’ is No Myth”, Jul. 18. For more on the Engle case, see July 10; our editor’s Wall Street Journal op-ed from Jul. 12, 1999; the related commentaries on our tobacco-litigation page; and the press clips at Yahoo Full Coverage. Also check our numerous commentaries, from yesterday and earlier, on the multistate tobacco settlement, which counts as trial lawyers’ bird-in-the-hand compared with Engle‘s bird-in-the-bush. Later developments in case: see May 15, 2004 and links from there.

July 18 — “Court says warning about hot coffee unnecessary”. It makes a contrast to the famed McDonald’s case: the Nevada Supreme Court, upholding a lower court’s decision, has dismissed a lawsuit against a restaurant and its suppliers alleging negligent failure to warn about the dangers of hot coffee. Lane Burns had sued the Turtle Stop restaurant after spilling coffee on his leg and suffering burns, but District Judge Gene Porter ruled that the “danger is open and obvious.” That differs from the sentiments of the judge and jury in Albuquerque, New Mexico, where octogenarian Stella Liebeck won a $2.9 million judgment against the fast-food chain, which was later reduced to $480,000 and settled for an undisclosed sum. (Cy Ryan, “Court says warning about hot coffee unnecessary”, Las Vegas Sun, July 11).

July 18 —Chutzpah is. . .” Eugene Volokh of UCLA law school writes as follows: “Chutzpah is . . . when you get a job working for your wife’s parents because you are their son-in-law, and then when you and she get divorced and her parents fire you, you sue them for marital status discrimination.

“This is exactly what happened in Matteson v. Prince, Inc., Montana Dep’t of Lab. & Indus. No. 9901008658 (1999) (pdf document). Amazingly, the agency held that the employer’s behavior was illegal discrimination, but Matteson wasn’t entitled to any damages because in this particular case the ex-son-in-law would have been fired in any event because he had gotten into a shouting match with his employers at work.”

July 18 — Breakthrough for plaintiffs on latex gloves? Last Thursday an Alameda County, Calif. jury returned an $800,000 award to a health care worker against Baxter Health Care, which formerly made latex gloves for hospital use. Naturally occurring substances in the gloves sometimes trigger virulent allergies in health care workers which prevent them from continuing in medical work, and lawyers have argued that had Baxter instituted a practice of washing the gloves before sale to remove surface proteins, it would have reduced their allergy-stimulating potential. Hundreds more latex allergy lawsuits are pending, and lawyers are hoping the new case, McGinnis v. Baxter Health Care, will serve as a model for others. (Sonia Giordani, “California Latex Glove Verdict Sets Tone”, The Recorder (San Francisco), July 17) (more about latex allergies) (see also Oct. 26).

July 17 — Dershowitz’s Florida frolic? Alan Dershowitz is demanding $34 million for putting in 118 hours of work on the state of Florida’s Medicaid-reimbursement tobacco suit, according to two of the lawyers who helped mastermind that suit, Robert Montgomery and Sheldon Schlesinger. The two filed suit against the famed Harvard law prof last week, asking a judge to determine whether he’s entitled to a bonus they say they never promised him. Through their attorney they allege that Dershowitz is asserting an entitlement to 1 percent of the gargantuan $3.4 billion fee award made to the attorneys who represented the state, which would amount to $34 million, but they say he hasn’t submitted any hourly time sheets to back up that claim. “He wants a lot of money, and he’s not entitled to it,” said J. Michael Burman, attorney for Montgomery and Schlesinger. If the lawyers’ figures are accurate, $34 million divided by 118 hours would work out to $288,000 an hour. (Jon Burstein, “Lawyer wants $34 million for working 118 hours on Florida’s case against tobacco companies”, Fort Lauderdale Sun-Sentinel, July 14; more on Florida tobacco fees: April 12, December 27-28).

July 17 — Ness Motley’s aide-Grégoire. In a single day, December 8, 1999, Christine Gregoire, the attorney general from the state of Washington who’s been mentioned as a possible AG in a Gore administration, saw her re-election campaign kitty more than double. The benefactors, who sent nearly $23,000, weren’t Washington residents at all, but rather two dozen lawyers and their relatives associated with the Charleston, S.C. law firm of Ness, Motley, which is expected to pocket a billion dollars or more in fees from the multistate tobacco settlement that Gregoire was instrumental in brokering. An aide to Gregoire, who engaged Ness Motley to represent Washington along with the many other states it represented, dismisses talk of payoffs and calls the contributions “a reflection that someone has a high regard for an elected official.” “I only wish we had given her more,” says Ness superlawyer Joe Rice, quoted in this article in Mother Jones spotlighting the sluicing of tobacco-fee money to friendly Democratic pols. (Rick Anderson, “Tobacco money flows both ways”, Mother Jones, July 6).

July 17 — Challenging the multistate settlement. In a Cato Institute paper, Thomas C. O’Brien argues that the anticompetitive provisions of the multistate tobacco settlement, such as those curbing entry by newly formed cigarette companies, should rightly be seen as themselves an antitrust violation and as going beyond the duly constituted power of the fifty states, which would open up the possibility of injunctive relief and treble damage remedies “available in private lawsuits brought directly by injured parties, including smokers and nonparticipating tobacco companies.” (Thomas C. O’Brien, “Constitutional and Antitrust Violations of the Multistate Tobacco Settlement”, Cato Policy Analysis No. 371, May 18 (summary links to PDF document)). Also from Cato, Richard E. Wagner of George Mason University offers another critique of the multistate settlement (“Understanding the Tobacco Settlement: The State as Partisan Plaintiff”, Regulation, vol. 22, no. 4 (table of contents; follow links to PDF document). Cato, the Competitive Enterprise Institute and the National Smokers Alliance filed an amicus brief last week urging the Third Circuit to invalidate the nationwide tobacco settlement agreement on constitutional grounds. (“Public Interest Groups Urge Court to Invalidate Tobacco Agreement ” CEI press release, July 13). On collusive aspects of the multistate settlement, see our commentary for July 29 of last year; Rinat Fried, “Distributors Challenging Tobacco Deal”, The Recorder/CalLaw, June 30, 1999; and “Puff, the Magic Settlement” (Reason, January).

July 14-16 — “Are lawyers running America?”. Time‘s feature story this week on the Fourth Branch leads with the tale of tobacco/HMO nemesis Dickie Scruggs’ recent appearance before the Connecticut State Medical Society (see Feb. 22, “P.S.”), where he “was introduced so gushingly that even he was embarrassed. ‘You forgot to mention,’ he chided the society’s head, ‘that I rested on the seventh day.'” Among bits of new-to-us info about the great legal magnates, we learned that “Wayne Reaud (pronounced Ree-oh) has used his hundreds of millions of dollars in fees from asbestos and other ‘toxic tort’ litigation to buy the local newspaper and a chunk of downtown real estate in his hometown of Beaumont, Texas,” while Florida’s Frederic Levin “concedes his firm’s $300 million take [from tobacco] was ‘totally obscene’ and says he’s giving much of it to charity,” having already had the University of Florida Law School named after him following a big gift. Who’s to be sued next? All sorts of targets, but the magazine reports that some lawyers “are considering suits against the alcoholic-beverage industry, which they would hold responsible for drunk-driving deaths and other alcohol-related losses, using the same ‘negligent marketing’ allegations that have been lodged against gunmakers.” Quotes our editor twice, too. Most memorable line: “Ask Scruggs if trial lawyers are trying to run America, and he doesn’t bother to deny it. ‘Somebody’s got to do it,’ he says, laughing.” (Adam Cohen, “Are lawyers running America?”, Time, July 17)

July 14-16 — “‘Whiplash!’ America’s most frivolous lawsuits”. Michigan Lawsuit Abuse Watch is promoting this new book by comedy writer James Percelay and Jeremy Deutchman (Andrews & McMeel). Five of the cases from the book are retold at the M-LAW site, including ones involving a woman who sued a guide-dog service because the dog it provided did not keep its blind human master from stepping on her foot and breaking her toe; a man who cut off his hand, believing it Satanically possessed, refused a doctor’s pleas to let him reattach it, and then sued the doctor later for complying with his instructions; a college student who tried to “moon” friends from a third-floor window, fell out and sued for his injuries; a criminal who filed an excessive-force suit against police after being apprehended for a particularly brutal crime, and won a $184,000 jury verdict, later thrown out; and a man who spilled a cold chocolate milkshake on himself, was so startled that he crashed his car, and sued McDonald’s. (All five cases were sooner or later unsuccessful in the courts.) We haven’t seen the actual book yet (or fact-checked the five cases, although we remember most of them from when they originally happened) but it seems to be selling pretty well on Amazon. Also check out M-LAW’s “obligatory disclaimer“.

July 14-16 — Never too stale a claim. Asbestos, lead paint, small-plane and machine-tool liability cases have all demonstrated that American lawyers are willing to trace responsibility back at least as far as the first decades of the twentieth century if that’s what it takes to find a deep pocket chargeable with injury. So it shouldn’t really have come as much of a surprise when a Texas court entered a $234 million default judgment against the government of Russia on behalf of a man whose grandfather’s property was confiscated during the 1917 Bolshevik Revolution. Dan Nelson, attorney for claimant Lee Magness, “says he will start trying to collect by seizing any Russian art exhibits on tour in this country”, and preliminary maneuvers to that effect led to a temporary delay in two art tours. The Russian government has filed a protest with our State Department (for more on the foreign-policy repercussions of the American way of suing, see July 6). The extreme willingness of our current legal system to revisit very old transactions in search of grist for litigation — much in contrast with an earlier law’s concern for repose and finality — probably made it inevitable that we’d see the current boomlet of discussion regarding reparations claims over slavery: if we’re already willing to go back 83 years to 1917, why not a further 52 years to 1865? Besides, some of us have our eye on the British, who’ve enjoyed virtual impunity for much too long over their burning of American homes during the Revolutionary War and War of 1812. (Susan Borreson, “Texans’ Default Judgment Against Russians Stands”, Texas Lawyer, Feb. 1).

July 13 — Class-action assault on eBay. It’s doubtful whether eBay, the massively popular electronic flea market, would ever have gotten off the ground had its proprietors been required to warrant the goods being sold. In April, however, attorney James Krause of the San Diego-based class-action firm of Krause & Kalfayan filed a lawsuit on behalf of six California residents who had bought sports memorabilia, the subject of widely reported fakery, over the online marketplace. An eight-year-old provision of California law stipulates that dealers in autographed sports memorabilia must provide a certificate of authenticity. Krause is seeking class-action status on behalf of all California buyers, and is asking for the penalties laid out in the statute, which according to AuctionWatch “entitles the buyer to ten times the purchase amount and other damages should an autograph prove to be forged or come without this certificate”. EBay contends that it is not a dealer or auctioneer but simply provides the modern equivalent of newspaper classified ads, so that only the individual sellers could properly be held liable. “If successful, the suit could undermine eBay’s business model,” reports the Industry Standard. “Legal experts say that if the company can be held liable for the actions of its users, it is likely to face a flurry of suits that would severely handicap its business.” Krause & Kalfayan has also filed suits on unrelated theories against such firms as Microsoft (see Dec. 23), Federal Express, Atlantic Richfield, Nine West and Charles Schwab (complaint and related news story at Krause & Kalfayan site; Victoria Slind-Flor, “EBay Denies Auctioneer Status”, National Law Journal, July 10; Miguel Helft, “EBay: We’re Not Auctioneers”, Industry Standard, May 1; “The Class Action Suit”, AuctionWatch, undated). Bonus:Weird eBay Auctions (WhatTheHeck.com) (& update Nov. 22-23: judge certifies class action)

July 13 — Nader on the Corvair. The litigation advocate’s presidential candidacy makes a good occasion to revisit his original claim to fame, the Corvair episode. The car’s safety record turned out in hindsight far better than you’d have guessed reading Unsafe at Any Speed, but “being wrong on the Corvair hasn’t hurt Nader’s career one bit,” writes Ronald Bailey, science correspondent for Reason. (“‘Saint Ralph’s’ Original Sin”, National Review Online, June 28).

MORE LINKS: Bill Vance, CanadianDriver.com (“The Corvair’s handling would later be exonerated, but the damage had been done”); Corvair Society of America (CORSA); Brock Yates, Car & Driver, reprinted in CORSA’sThe Windmill, Nov./Dec. 1971, and Charles B. Camp, “Popularity of Nader Declines to Its Nadir Among Corvair Owners”, Wall Street Journal, July 23, 1971, reprinted at Rick’s Corvair Scrapbook; Thomas Sowell, “Lawsuits and Legal Visions”, 1987 speech at Shavano Institute Seminar, reprinted at tsowell.com; Andrew Gurudata, “Great Car At Any Speed“, Corvair Webring; Corvair Project.

July 13 — Access to something. Federal prosecutors are investigating claims that attorney Denice Patrick of Lynnwood, Washington, outside of Seattle, violated ethics and conflict-of-interest rules. Specifically, they’re looking into allegations that while employed to write legal decisions for the federal Social Security Administration, she also “moonlighted for more than a year as a private lawyer who devoted much of her practice to bringing claims against the agency.” Ms. Patrick, whose attorney denies the charges and says they’re being brought against her in retaliation for whistleblowing about agency wrongdoing, has been active on a Washington State Bar Association panel promoting “access to justice“. (Sam Skolnik, “Lawyer allegedly violated ethics”, Seattle Post-Intelligencer, May 22).

July 12 — Battered? Hand over your kids. Latest advance in child protection: seizing and placing in foster care children whose moms are abused by their husbands or boyfriends or vice versa. New York City can remove kids from their homes if either parent is believed to “engage in acts of domestic violence,” such as slaps, kicks, shoves, or more serious violence, whether or not these acts are directed at the children. “Often,” reports the New York Times‘s Somini Sengupta, the parent who loses children this way “may have done nothing wrong or negligent, but simply lacked the financial or emotional resources to leave an abusive partner.” The rules encourage victims of abuse to conceal it, fearing their kids will be taken from them if they tell medical or social workers. And while it’s clearly not good for a child to observe parents engaged in domestic battles, advocates say the city underestimates the trauma to kids of being yanked out of the home they know and sent to live among strangers. (Somini Sengupta, “Tough Justice: Taking a Child When One Parent Is Battered”, New York Times, July 8 (reg)). Update Oct. 31, 2004: New York high court ruling favorable to mothers; Dec. 19, 2004 city agrees to change policy.

July 12 — Forum-shopping in South Carolina. Last year, AP reports, the big railroad CSX paid out about $5 million in five accident lawsuits filed in Hampton County, S.C., and it faces another 15 cases pending in the county, all represented by the Hampton law firm of Peters, Murdaugh, Parker, Eltzroth & Detrick. However, none of the five accidents being sued over had actually taken place in Hampton County; all had been taken there from elsewhere in search of the plaintiff-friendly brand of justice handed out in the impoverished county, where 40 percent of residents have not graduated high school. “They are poor people who don’t like big corporations,” said Dick Harpootlian, a prominent plaintiff’s lawyer in the state capital, Columbia, as well as chairman of the state’s Democratic Party. “We don’t mind being there if we belong there, but these cases are being valued at between two and three times what they would elsewhere,” said Jim Lady, a lawyer for the railroad, who adds that it would be equally unfair if the law permitted his client to remove all cases to Lexington County, where jurors are known as being as conservative as those in Hampton are liberal. Now a move is afoot in the state legislature to curb forum-shopping by giving plaintiffs a choice of at most three venues: the one where the accident took place, the one where they live, or the one where the railroad is headquartered. Trial lawyers are upset: “If they are paying us more than what they are paying elsewhere, it’s because they are not paying fairly in other counties,” says Johnny Parker, a lawyer with the Peters firm in Hampton. State Sen. Brad Hutto (D-Orangeburg), whose district includes Hampton County and who also happens to be a trial attorney, says that the move “smacks of special-interest legislation … Every courthouse in this state is presided over by a judge. If CSX doesn’t like the result of a court case, they have the right to appeal. It’s not the law firm that’s being punished, it’s the person bringing the suit.” The Virginia legislature some years back enacted similar legislation curbing the ability of lawyers from around the state to file railroad suits in the city of Portsmouth, where juries had a reputation for big-ticket verdicts. (Associated Press, “Bill would make generous Hampton County juries unavilable in many railroad suits,” South Carolina state/regional wire, June 12).

July 12 — Suing Nike for getting hacked. Some Web-watchers have been predicting (see Feb. 26) that lawsuits may be forthcoming attempting to lay the costs of hacker attacks on deep-pocket entities that, it’s argued, should have done more to prevent them. Now a Web entrepreneur named Greg Lloyd Smith says his lawyers are drawing up a complaint against Nike. “His beef: When Nike’s website was hijacked [last month], whoever hijacked the domain re-directed Nike.com’s traffic through Smith’s Web servers in the U.K., bogging them down and costing Smith’s Web hosting company time and money.” (Craig Bicknell, “Whom to Sue for Nike.com Hack?”, Wired News, June 29; “Webjackers Do It To Nike”, Wired News, June 21).

July 11 — Australia: antibias laws curb speech. An official civil-rights tribunal in New South Wales, the most populous state in Australia, has ruled that the Australian Financial Review committed an unlawful act of bias when it published an article on its opinion page making slighting comments about Palestinians. The offending piece, a short item by journalist Tom Switzer, had suggested that Palestinians had engaged in acts of terrorism, could not be trusted in Mideast peace talks, and remained “vicious thugs who show no serious willingness to comply with agreements”. The tribunal “found it was irrelevant whether the author intended to incite racial hatred or whether anyone had in fact been incited”, and dismissed a free-comment defense as irrelevant. It has yet to decide on a “remedy” for the speech; among its powers are to order a retraction and apology, and to order the paper, which is owned by the John Fairfax Group, to “implement a program or policy aimed at eliminating unlawful discrimination”. (Mike Seccombe, “Finding ‘restricts’ freedom of speech”, Sydney Morning Herald, Jul. 10) (via Freedom News Daily).

July 11 — “Report on medical errors called erroneous”. You read it here first (see Feb. 22, Feb. 28, March 7 commentaries): more critics are stepping forward to find fault with that highly publicized study alleging that “medical errors” kill between 44,000 and 98,000 patients a year. In the Journal of the American Medical Association, three doctors associated with the University of Indiana’s Regenstreif Institute explain why they believe the study is so constructed as to exaggerate the avoidable damage done by medical mistakes, and study author Lucian Leape, of Harvard’s School of Public Health, responds with a defense. (Rick Weiss, “Report on Medical Errors Called Erroneous”, Washington Post, July 5; Clement J. McDonald; Michael Weiner; Siu L. Hui, “Deaths Due to Medical Errors Are Exaggerated in Institute of Medicine Report” (text) (pdf); Lucian L. Leape, “Institute of Medicine Medical Error Figures Are Not Exaggerated” (text) (pdf), JAMA, July 5 (table of contents))

July 11 — ADA’s unintended consequences. The Americans with Disabilities Act was supposed to improve the employment outlook for disabled persons, but instead their participation in the labor force has plunged steeply since the act’s passage compared with that of the able-bodied. Thomas DeLeire, assistant professor at the University of Chicago, Harris Graduate School of Public Policy Studies, analyzed data for a sample of men aged 18 to 65 and found that labor force participation fell after the act for virtually every identifiable subgroup of disabled men, but that the relative slippage was worst for those with lower levels of job experience and education, and those with mental impairments. DeLeire believes the law has imposed on employers perverse incentives not to hire and retain disabled workers, since they now risk the possibility of costly and uncertain disputes should they differ with the worker about what constitutes “reasonable” (and thus obligatory) accommodation. (“The Unintended Consequences of the Americans with Disabilities Act”, Regulation, v. 23, no. 1 — table of contents links to pdf document).

July 31 — Clinton’s date with ATLA. Bill Clinton’s speaking engagement yesterday before trial lawyers at their convention draws this hard-hitting column by New York Post‘s Rod Dreher, who writes: “Though he has signed a few small tort-reform measures, the President has vetoed every major effort to rein in the berserk lawsuit culture, which is turning civil courts into casinos for trial lawyers and greedy plaintiffs.” Dreher’s column also quotes this site’s editor at length about how tobacco lawyers since their lucrative settlement have become “an institutional ATM for the Democratic Party”; on how Gov. George Bush pushed through legal reform in Texas, a state where they said it couldn’t be done; and on what’s likely to happen if voters don’t break the lawyers’ momentum at the polls this fall (Rod Dreher, “Greedy Dems Refuse to Curb Lawsuit Madness”, New York Post, Jul. 30). Best of all, Dreher refers to this site as “the must-bookmark www.overlawyered.com”.

July 31 — No diaries for Cheney. “A small anecdote about a large facet of his [Dick Cheney’s] personality. [At a White House dinner] in the summer of 1992 … President Bush’s sister turned to him and said she hoped he would someday write a book, and hoped he was keeping a diary. He sort of winced, and looked down. No, he said, ‘unfortunately you can’t keep diaries in a position like mine anymore.’ He explained that anything he wrote could be subpoenaed or become evidence in some potential legal action. ‘So you can’t keep and recount your thoughts anymore.’ We talked about what a loss this is for history. It concerned him. It was serious; so is he. Then everyone started talking politics again.” (Peggy Noonan, “The Un-Clinton”, Wall Street Journal, July 26, subscriber site).

July 31 — Nader cartoon of the year. By Henry Payne for the Detroit News, it depicts Ralph as the parrot on a pirate’s shoulder, and you can guess who’s the pirate (at News site — July 25) (via National Journal Convention Daily).

July 31 — Our most ominous export. Trial lawyers in the United States have been steadily internationalizing their activities, bringing the putative benefits of American-style product liability suits to faraway nations. Now it’s happening with litigation against gunmakers: attorney Elisa Barnes, who managed the Hamilton v. Accu-Tek case in Brooklyn, is assisting a Brazilian gun-control group in a suit against local firearms maker Taurus International over sales of its lawful product. (“Brazil’s biggest gun maker under fire from rights group”, AP/Dallas Morning News, July 27).

July 31 — Running City Hall? Stock up on lawyers. “Time was that most small cities in California were represented by one in-house attorney, who likely had a sole practice on the side. Today, laws such as the Americans With Disabilities Act, requirements such as environmental impact reports and intricate ballot initiatives make running a city too complicated for that kind of legal staffing.” (Matthew Leising, “Meyers Nave spins cities’ legal hassles into gold”, National Law Journal, August 9, 1999, not online).

July 28-30 — Clinton to speak Sunday to ATLA convention. Confirmed on ATLA’s website: President Bill Clinton is scheduled to address the annual convention of the Association of Trial Lawyers of America at Chicago’s Hyatt Regency on Sunday at 2:30 p.m., the first such appearance by a sitting president ever, and another confirmation that this administration is friendlier to the litigation lobby than any before it in American history. More than 3,000 trial lawyers are expected to attend.

July 28-30 — New subpage on Overlawyered.com: Trial lawyers and politics. Former California Assembly Speaker Willie Brown has called plaintiff’s lawyers “anchor tenants” of the Democratic Party, and they’re rather well connected in many Republican circles as well (as for their longtime role in backing Ralph Nader, currently running as a Green, don’t get us started). Is anyone keeping proper tabs of their activities in the political sphere? We’re not sure, but figure it can’t hurt to start a new subpage on that topic.

July 28-30 — Wall Street Journal “OpinionJournal.com” launches. Today the Wall Street Journal is scheduled to go live with its eagerly awaited OpinionJournal.com, which is expected to embody the crusading spirit of the paper’s editorial page. They tell us Overlawyered.com will be listed among OpinionJournal.com’s “favorite” sites, with a standing link.

July 28-30 — “How the ADA Handicaps Me”. “I graduated from a good law school but finding a job has been difficult, much more difficult, than I expected,” writes Julie Hofius, an Ohio attorney who uses a wheelchair. “Getting interviews has not been a problem. Getting second interviews or job offers has been. … The physical obstacles have been removed, but they have been replaced with a more daunting obstacle: the employer’s fear of lawsuits. … job-hunters with disabilities are viewed by employers as ‘lawsuits on wheels.'” (“Let’s get beyond victimhood of disabilities act”, Houston Chronicle, July 25, and Cato Daily Commentary, July 26). The tenth anniversary of the enactment of the Americans with Disabilities Act has occasioned a flood of commentary and reportage, an ample selection of which is found at Yahoo Full Coverage. Check out in particular Carolyn Lochhead, “Collecting on a Promise”, San Francisco Chronicle, July 26, and Aaron Brown, “What’s Changed? Assessing the Disabilities Act, 10 Years Later”, ABCNews.com, July 26 (sidebar, “Too Many Lawsuits?” by Betsy Stark, quotes this site’s editor).

July 28-30 — Smoking and responsibility: columnists weigh in. “I watched my father die from smoking … [he] would not have taken kindly to being portrayed as an innocent victim of the tobacco industry,” writes the New York Press‘s John Strausbaugh. “The popularity of the fairy tale in which Demon Philip Morris pins innocent victims to the ground and forces them to smoke cigarette after cigarette until they die is another example of the way Americans enjoy infantilizing themselves and shirking responsibility for their own lives.” (“Demoned Weed”, Jul. 22). Legendary Pittsburgh shortstop Honus Wagner, of baseball-card fame, “demanded that his card be taken off cigarette packs because smoking was bad, and habit-forming. That, my friends, was in 1910. Even back then we all knew cigarette smoking was bad. … When do we stop blaming other people?” (Steve Dunleavy, “Cig-Makers Paying Price for Smokers’ Free Choice”, New York Post, Jul. 16). $145 billion, the punitive damages figure assessed by a Florida jury earlier this month, amounts to “more than twice the gross domestic product of New Zealand. It is, in short, a ridiculous number, pulled out of thin air …Why not $145 trillion?” (Jacob Sullum, “The $145 Billion Message”, Creators’ Syndicate column, July 19). And even before the state settlement jacked up the price of cigarettes for the financial benefit of state governments and their lawyers, government was reaping a bigger profit through taxes from tobacco than were manufacturers: roughly 74 cents per pack, compared with 28 cents’ profit for Philip Morris, according to Sullum. “Some will protest that there is a moral distinction here. To be sure: While politicians and tobacco companies both take money from smokers, only the tobacco companies give them something in return.” (Jacob Sullum, New York Times, July 20, reprinted at Reason site).

July 28-30 — Lenzner: “I think what we do is practice law”. Profile of Terry Lenzner, much-feared Washington private investigator in the news recently for his firm’s attempts to buy trash from pro-Microsoft advocacy groups on behalf of client Oracle, and whose services are in brisk demand from law firms and Clinton Administration figures wishing to dig dirt on their opponents. Known for his operatives’ irregular methods of evidence-gathering — he recommends posing as journalists to worm information out of unwary prospects — Lenzner recently addressed a seminar at Harvard about his calling. “I think what we do is practice law, although I use a lot of nonlawyers, he told the attendees.” (Brian Blomquist, “Gumshoe’s reputation is all heel and no soul”, New York Post, Jul. 18).

July 26-27 — Losing your legislative battles? Just sue instead. Lawyers for Planned Parenthood in Seattle have filed a lawsuit against the Bartell drugstore chain, claiming it amounts to sex discrimination for the company’s employee health plan not to cover contraception. Many employers’ health plans curb costs by not covering procedures not deemed medically necessary, such as cosmetic surgery, contraception, in vitro fertilization, and elective weight reduction. Planned Parenthood had earlier sought legislation in Olympia, the state capital, to compel employer plans to cover contraception, as has been done in about a dozen states, but strong opposition defeated their efforts; running to court, however, dispenses with the tiresome need to muster legislative majorities. A Planned Parenthood official said Bartell was selected as the target for the test case “because the drugstore chain is generally considered to be a good employer and progressive company” — that’ll teach ’em. (Catherine Tarpley, “Bartell sued over contraceptives coverage”, Seattle Times, July 20; David A. Fahrenthold, “Woman Sues for Contraception Coverage”, Washington Post, July 22; Planned Parenthood of Western Washington advocacy site, covermypills.org).

July 26-27 — Update: Tourette’s bagger case. The Michigan Court of Appeals has upheld the right of the Farmer Jack supermarket chain to refuse to employ Karl Petzold, 22, as a bagger in its checkout lines. Petzold suffers from coprolalia, a symptom of Tourette’s Syndrome that causes him involuntarily to utter obscenities and racial slurs (see June 9). “We find it ridiculous to expect a business … to tolerate this type of language in the presence of its customers, even though we understand that because of plaintiff’s condition, his utterance of obscenities and racial epithets is involuntary,” the court wrote in a 3-0 decision reversing a trial court’s denial of summary judgment. Petzold’s attorney vowed an appeal to the Michigan Supreme Court. (“Court Rules on Tourette Suit”, AP/FindLaw, Jul. 21) (text of decision, Petzold v. Borman’s Inc.) (via Jim Twu’s FindLaw Legal Grounds).

July 26-27 — “It isn’t about the money”. An Atlanta jury has awarded former stripper Vanessa Steele Inman $2.4 million in her suit against the organizers of the 1997 Miss Nude World International pageant as well as the Pink Pony, the strip club at which the week-long event was held. Ms. Inman said organizers rigged the balloting to favor a rival contestant and “blackballed her from nightclubs around the country owned by the Pink Pony’s owner, Jack Galardi”, to retaliate for her refusal to do lap dances on a tour bus, let herself be “auctioned off” to drunken golfers, or allow her breasts to be employed in conjunction with whipped cream in a manner not really suitable for description on a family website. The jury awarded her $835,000 in compensatory damages, in part to make up for the impairment of her earnings in the exotic dance field, plus $1.6 million in punitive damages. “It isn’t even about the money,” she said. “Now people believe what I had to say.” (Jim Dyer, “Former stripper awarded $2.4 M against pageant organizers”, Atlanta Journal- Constitution, Jul. 25) (more on litigation by strippers: May 23, Jan. 28). Update Apr. 17, 2004: Georgia Court of Appeals overturns verdict.

July 26-27 — “Power company discriminates against unemployed”. In New Zealand, the Human Rights Commission is telling an electricity supplier to amend its “discriminatory” policies regarding prospective customers who might have trouble paying their bills. “A woman complained that her application to become a customer was rejected because she was unemployed, did not have a credit card and did not own her own home.” The company has already agreed to cease asking applicants whether they are employed, but the commissioners say it has been “indirectly discriminating against unemployed people by requiring its customers to have a credit card, own their own home and have an income greater than $10,000 a year.” (“Stuff” (Independent Newspapers Ltd.), Jul. 26).

July 26-27 — Couple ordered to give son Ritalin. A family court judge in Albany County, N.Y. has ordered Michael and Jill Carroll to resume giving their 7-year-old son Ritalin, the controversial psychiatric drug. The couple, who reside in the town of Berne, had taken their son Kyle off the medication, which is used to treat attention deficit/hyperactivity disorder; they feared the drug was harming his appetite and sleep. An official at the Berne-Knox-Westerlo School District proceeded to inform on them to the county Department of Social Services, which filed child abuse charges against the couple on charges of medical neglect. The charges, which might have led to the son’s removal from the home, were dropped when they agreed before the judge to put Kyle back on the drug; they will, however, be allowed to seek a second opinion on whether the boy should get Ritalin and return to court to argue for the right to discontinue the drug at some future date. (Rick Carlin, “Court Orders Couple To Give Son Drug”, Albany Times-Union, July 19 (fee-based archive — search on “Ritalin” or other key words to find story)) (update — see Aug. 29-30).

July 24-25 — Update: drunken bicyclist out of luck. A Louisiana appeals court has thrown out a trial court’s $95,485 award against city hall to a drunken bicyclist who was injured when he ran a stop sign and collided with a police car responding to a call (see Dec. 1). Plaintiff Jerry Lawrence’s lawyer explained the verdict at the time by saying, “Drunks have some rights, too”. (Angela Rozas, “No cash for drunken bicyclist”, New Orleans Times-Picayune, May 20). Police chief Nick Congemi said one reason Lawrence got as far as he did in his suit was that the department hadn’t issued him a ticket at the time for bicycling while intoxicated. “We learned a lesson, too. Because he was injured so badly, we decided not to give him any citations. … we’re going to change our policies on that. Here on out, we’re going to issue citations, even if they’re injured.” More proof of the inspirational things litigation can accomplish! (via “Backstage at News of the Weird”, May 29)

July 24-25 — “Going after corporations through jury box”. Christian Science Monitor takes a look at what comes next in mass torts after the Florida tobacco verdict, which Lawrence Fineran of the National Association of Manufacturers calls “really scary”. Quotes this site’s editor, too (Kris Axtman, July 24).

July 24-25 — Welcome Wall Street Journal readers. In its Friday editorial on the sensational developments in the Coke discrimination case, the Journal suggested people learn more by visiting this site (if you’re here to do that, see July 21-23 and July 19-20; click through from the latter to the big article on the case in the Fulton County Daily Report). Thanks in no small part to the Journal, last week (and Friday in particular) saw this site set new traffic records. (“The Practice”, July 21) (requires online subscription).

July 24-25 — “Poll: majority disapprove of tobacco fine.” Gallup asked 1,063 adults their opinion of a Florida jury’s $145 billion punitive verdict against tobacco companies. 59 percent “disapprove”, 37 percent “approve” and 4 percent had “no opinion.” Asked who was predominantly to blame for smokers’ illnesses, 59 percent said smokers themselves “mostly” or “completely” were and 26 percent said tobacco companies were (20 percent “mostly”, 6 percent “completely”). Another 14 percent blamed the two equally. Disapproval of the award increased among older age groups and with political conservatism; the results are consistent with a 1994 poll on tobacco liability. In December the public was asked whether it agreed with the U.S. government’s view that gun manufacturers could rightly be held financially responsible for the costs of shootings; it said no by a 67 to 28 percent margin. (Carol Rosenberg, Miami Herald, July 19)

July 24-25 — Florida verdict: more editorial reaction. “Given the industry’s history of evasion and equivocation about the health risks of smoking, it is tempting to welcome as a comeuppance a Florida jury’s $144.8 billion judgment against six tobacco companies. The temptation should be resisted. The judgment is a disgrace to the American legal system and an affront to democracy…. These issues should be confronted by the people’s elected representatives. They should not be hijacked by the judicial process under the guise of a tort case.” (“Smoke signal: An anti-tobacco verdict mocks law and democracy”, Pittsburgh Post-Gazette, July 21). “Ridiculous … outrageous … A ruling that completely ignores personal responsibility is a joke.” (Cincinnati Enquirer). “The biggest damages here may be to the reputation of the legal system.” (Washington Post). “Monstrous … Now that they have taken an unwise gamble on their health, the Florida plaintiffs portray themselves as victims of Big Tobacco. … outlandish” (San Diego Union-Tribune). “Falls somewhere between confiscation and robbery” (Indianapolis Star). A “fantasy verdict” (Cincinnati Post/Scripps Howard). “The bottom line is that courtrooms are not the proper forums for setting public policy, and personal responsibility should not be dismissed out of hand. ” (Tampa Tribune). “Yuck…. [the] tendency to run from personal accountability is one of the least attractive of modern human characteristics. A lot has also been said about the wrongness — yes, the fundamental wrongness — of a system that makes billionaires of attorneys based on their ability to minimize the responsibility of their clients when a deep-pockets defendant is in the dock.” (Omaha World-Herald). “You don’t have to love tobacco companies to recognize the wrong that’s been going on in Florida for the past six years…. [a lawsuit] ran amok.” (Louisville Courier-Journal). “Ambitious and politically motivated lawyers are usurping decision- and policymaking that in a democracy is appropriately left to the voters and their representatives. Tyranny of the tort may be putting it too strongly — at least for now. But who knows who will be next on the trial lawyers’ hit list?” (Chicago Sun-Times). “Justice is not served … ridiculous.” (Wisconsin State Journal (Madison)). “Absurdly excessive … provides a further reminder that the national “settlement” between Big Tobacco and the states aimed at curbing lawsuits over smoking hasn’t resolved much of anything.” (Memphis Commercial Appeal). “‘This was never about money,’ the plaintiffs’ attorney said immediately after the verdict. Whooooo, boy.” (Des Moines Register). Newspapers that approved of the verdict included the New York Times, USA Today, Dallas Morning News, San Francisco Chronicle, Milwaukee Journal Sentinel, Bergen County (N.J.) Record, Palm Beach Post, Spokane Spokesman-Review, Buffalo News, and Charleston (W.V.) Gazette.

July 21-23 — Principal, school officials sued over Columbine massacre. Three families were already suing the Jefferson County sheriff’s office, the killers’ parents and others, and now they’ve added Principal Frank DeAngelis and other school officials as defendants. After all, the more different people you sue, the more justice will get done, right? (“Columbine principal sued by victims of massacre”, CNN/Reuters, Jul. 19). Update Nov. 30-Dec. 2, 2001: judge dismisses most counts against school and its officials, parents having settled earlier.

July 21-23 — Washington Times on lawyers. Reporter Frank J. Murray’s series examining the legal profession has been running all week with installments on lawyer image, the boom in pay, lack of teeth in the lawyer-discipline process and more (July 17-21).

July 21-23 — Complaint: recreated slave ship not handicap accessible. A group of disabled New Haven, Ct. residents is charging that the publicly funded schooner Amistad, a traveling historical exhibit, is not accessible to wheelchairs as required by the Americans with Disabilities Act. The Amistad was the scene of an important slave revolt in 1839-1842 and its recreated version helps evoke the overcrowding and other inhumane conditions of the slave trade. (“Amistad Raises Concerns About Handicap Access”, AP/Hartford Courant (CtNow.com), July 18).

July 21-23 — Class-action lawyers to Coke clients: you’re fired. As we mentioned yesterday, there have been sensational new developments in the Coca-Cola Co. bias-suit saga, following an episode in which a plaintiff lingered on the line after a conference call and heard what his lawyers told each other when they thought they were among themselves (see July 19-20). One reader writes to say he found it “an interesting commentary on class action litigation. The plaintiff becomes dissatisfied with the way his attorneys are handling his law case. So the client fires the attorney, right? Wrong. The attorney fires the client and continues the case with other plaintiffs. What’s wrong with this picture?”

July 21-23 — When sued, be sure to respond. A “default judgment” is what a plaintiff can obtain when a defendant fails to show up in court and contest a suit, and it’s often very bad news indeed for the defendant, as in a case out of New Brunswick, N.J., where a judge has ordered Wal-Mart “to pay more than $2 million to a former cashier who said he was harassed and fired after a boss learned he was undergoing a male-to-female sex change.” Ricky Bourdouvales, 27, says his troubles began when he confided to a manager that he was in the middle of crossing genders, though when he was fired in January he was told it was because of discrepancies with his cash register count. The giant retailer says it will ask the judge to overturn the award, saying it was aware that a document had been filed in May but did not realize its nature. “We were totally unaware of the lawsuit, and we want to have the opportunity to defend ourselves,” said its spokesman. (“Judge Orders Wal-Mart to Pay Fired Transsexual $2 Million in Bias Case”. AP/FindLaw, July 18) (more on suits against Wal-Mart: July 7-9). Update Sept. 6-7: judge grants retrial.

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  • […] The Recorder: “A federal judge turned down a request for more than $2 million in fees and sanctioned a San Francisco plaintiffs lawyer $25,000 for submitting false fee applications in civil rights litigation against FedEx.” Judge Susan Illston wrote that Waukeen McCoy’s “acts of misconduct with regard to the fee petitions are among the most egregious that this court has seen in almost 14 years on the bench.” More: California Civil Justice. Earlier: Nov. 14, 2007 (McCoy’s firm “billed [opponent] Federal Express for 23.5 hours of one of its attorneys’ time over a single day”), and, on the same lawyer, July 10, 2000. […]