June 8-10 — Parted from his money. Philadelphia-area businessman David Piscitelli has settled his lawsuit against Sole Mio Balaam Nicola, 90, a resident of Egg Harbor City, N.J. who worked for many years as an astrologer at the Woolworth’s on the Atlantic City Boardwalk. Piscitelli said “he was the victim of a ‘gypsy scam’ from 1978 to 1991 that prompted him to turn over about $200,000, leave his wife, sell his real-estate business, and move to Brigantine to avoid snake attacks and other evil curses.” It all began, he told the court, when he found Nicola’s ad in the Yellow Pages and arrived at her establishment where she “instructed him to hand her $400 under her desk for the purchase of candles that, when burned, would remove his curse.” However, Nicola averred that he had been a willing financial supporter of her “pyramid-shaped Temple of Hope and Knowledge, a house of worship she founded on the White Horse Pike in Galloway Township.” Moreover, she “denied ever demanding cash to remove curses from Piscitelli’s family members, forcing him to turn over his wedding ring, depositing a beheaded bat at his home, or throwing his Christmas presents into the bay, as he claims.” (Amy S. Rosenberg, “Fortune teller or taker: Boardwalk astrologer got $200,000 and lawsuit”, Philadelphia Inquirer, May 17).
June 8-10 — Tobacco plunder in Los Angeles. Its anger whipped up by a sharp trial lawyer, an L.A. jury has voted $3 billion in punitive damages against Philip Morris in a case brought by an individual smoker. (CNNfn, June 6; Robert Jablon, “Los Angeles Jury Orders Philip Morris to Pay $3 Billion to Lifelong Smoker”, AP/Law.com, June 7). Our take on the earlier Engle case appeared in the Wall Street Journal: July 18, 2000 and July 12, 1999. Update Oct. 2, 2004: appeals court orders punitive award cut to a sum not to exceed $50 million.
June 8-10 — Lockyer should go. We weren’t the only ones who concluded (June 1-3) that California attorney general Bill Lockyer was unfit for public office after hearing him express a hope that an energy-company adversary would be jailed and suffer prison rape: Tom G. Palmer (Cato Institute), “‘Hi, My Name Isn’t Justice, Honey’, and Shame on Bill Lockyer”, Los Angeles Times, June 6; see also Steve Chapman, “Since when does rape equal justice?”, Chicago Tribune, June 7; Larry Elder, “Blame-shifting in California”, FrontPage, June 1. (See update, June 22-24).
June 8-10 — Forbes on lead paint suits, cont’d. There seems to be no dispute that some, if not many, cases of classic lead poisoning continue to occur among children who literally eat chips of old paint in dilapidated housing in inner-city areas like South Providence (see yesterday’s post). A key factual premise of the mass suits, however, is that the paint is causing learning deficits and behavioral problems among a wider class of children whose blood-lead levels might not have been considered particularly high by medical science through most of the twentieth century (when ambient lead levels in the human environment were far higher) but which are now viewed as triggers for concern or even as “poisoning” following a drastic downward revision of definitional thresholds some years back.
As Forbes‘s cover story points out, this leaves a question of how to account for why the symptoms now causing concern were not observed more widely during the long period when lead-based interior paints were commonly found in American homes. “If traces of lead near such levels have something to do with learning disabilities, the sweeping decline in blood-lead levels in the U.S. in the past half-century should have given us a generation of geniuses in our elementary schools. But test scores have scarcely been going up …. Even as blood-levels in children dropped drastically, IQ scores have increased a consistent 3% a decade for 100 years — possibly because of media exposure and better nutrition.” Nor, one might add, does one observe a big “absence of lead effect” if one compares the learning and behavioral problems of kids growing up in modern housing projects, most of which were built after the discontinuance of lead pigments in paint, with those of similarly disadvantaged kids growing up in older housing stock. (Michael Freedman, “Turning Lead Into Gold”, Forbes, May 14 (reg)).
MORE: For a contrary view, accepting the premise that lead paint in older housing is causing widespread as opposed to exceptional harm to children, see the recent series in the Providence Journal: Peter Lord, “Poisoned”, May 13-18. For more on the course of the litigation, see Bob Van Voris, “Paint suit’s a lead balloon (so far)”, National Law Journal, May 8; “San Jose: Judge gives counties OK to sue paint firms”, San Francisco Chronicle, June 4; Tom Kertscher, “Suing Just 2 Paint Firms Helps Case, Lawyers Say”, Milwaukee Journal Sentinel, April 9. (DURABLE LINK)
June 7 — “‘Pseudologia Fantastica’ Won’t Fly”. Contrary to what he claimed during the screening process that led up to his appointment to the bench, “Los Angeles Superior Court Judge Patrick Couwenberg never earned a Purple Heart. He didn’t fight in Vietnam or work for the CIA. Nor did he attend Loyola Law School or earn a master’s degree in psychology or any other subject.” Now a disciplinary panel has rejected the judge’s plea in mitigation of his fibs that he suffers from “a recently diagnosed condition called ‘pseudologia fantastica,’ which doctors say causes people to tell tall tales and mix fantasy with facts.” (Sonia Giordani, The Recorder, May 18). Update: state panel orders him removed from bench (see Aug. 20-21).
June 7 — Ness monster sighted in Narragansett Bay. Bad enough that Rhode Island, with its insider-dominated political system, has failed to shake its reputation as the “Louisiana of the North”. (See, e.g., Mark Sappenfield, “Legacy of scandal mars Rhode Island”, Christian Science Monitor, April 11). But will Little Rhody become the first state to auction itself off to out-of-state trial lawyers? You start wondering after reading Forbes‘s recent cover story on the nation’s richest tort law firm, Charleston, S.C.-based powerhouse Ness Motley (tobacco, asbestos, etc.), and its branch office in Providence, opened some years ago by partner John J. McConnell Jr. Ness Motley has quickly made itself “Rhode Island’s largest political contributor, at $540,950 for the 2000 national elections”, and its local partner McConnell has become treasurer of the Democratic party in the tiny state. By one of these coincidences that are so rare in novels but so common in real life, Rhode Island Democratic attorney general Sheldon Whitehouse, considered ambitious for a gubernatorial run, in 1999 awarded the Ness firm a contingency fee contract to sue on behalf of the state seeking money from former makers of lead paint — the only one of the fifty state AGs thus far to take such a step. If the firm and its superlawyer Ron Motley succeed in convincing cities, school districts and other governmental units to follow suit, they might extract billions from such companies as Arco, ICI Glidden, and American Cyanamid. “In April, in a major victory for Motley, a Rhode Island Superior Court judge rejected the defendants’ motion to dismiss, and Sherwin-Williams’ stock dropped 21%.” (Michael Freedman, “Turning Lead Into Gold”, Forbes, May 14 (reg)). Dueling websites: leadlawsuits.com (defendants) and aboutlead.com (Ness Motley)[more on lead paint litigation tomorrow] (DURABLE LINK)
June 7 — “Sorry, Slimbo, you’re in my seats”. Columnist Peter Simpson isn’t impressed with the opinion of the Canadian government that, as a matter of handicapped rights, severely overweight airline passengers should be given an extra seat free of charge (Ottawa Citizen/National Post, May 11; Glen McGregor, Treat the obese as disabled, airlines told”, Ottawa Citizen, Dec. 10; see Dec. 20, 2000). (Update Dec. 15-16: Canadian transportation agency backs off policy)
June 7 — Welcome WSJ OpinionJournal.com readers. We’ve figured in their “Best of the Web” feature quite a few times recently, including yesterday. Also: KRLD Dallas, “Eye on the Internet” with Katie Pruett (interviewed our editor last night); Good Clean Fun June 2; LynnLynn’s Links June 4; links lists Ennazus, Brian Tebeau’s, Breaching the Web, Stop Lawsuit Abuse — Mississippi, Amy Welborn’s, ChinaLawInfo.com, YouDontSay.org (“too many lawyers?”), Washington State University at Spokane, Eruditum.org, Joseph DeMartino’s (see “something we have no shortage of”), Weaverlane LogB2K, Univ. of Georgia Sagan Society, Baltimore Citizens Against Lawsuit Abuse, Snakebite’s, and Mr. Linck’s social studies class in Morrisville, N.Y. (gun debate).
June 6 — Intellectual-property dispute Hall of Fame. San Francisco Bay area artists Emily Duffy and Ron Nicolino have each retained lawyers and have exchanged threatening letters in a dispute over who owns the concept underlying their art, which consists of giant bundles of brassieres: hers weighs 650 pounds, his twice as much. Both bra assemblages “keep growing — huge spheres of lace, silk, padding and underwire bras of all colors, shapes and sizes.” Nicolino “has used 14,000 bras from an abandoned project to hook them across the Grand Canyon. Now he’s pulling his ball to Los Angeles behind his 1963 flamingo pink Cadillac, looking for someone to sponsor a worldwide tour and eventually, a showcase where people can continue hooking on their own bras.” “I think it’s a major important part of American art,” he said. Duffy says he swiped the idea from her. (Margie Mason, “Bay Area artists battle over giant bra balls”, Modesto Bee, May 29). They both have websites: braball.com and nicolinosbraball.com.
June 6 — “Risks of the crime”. A Florida appeals court has dealt a setback to two men who sued a hotel for damages after they were shot in its parking lot during a suspected drug deal. The appeals court said the hotel chain should not be held responsible for injuries incurred by visitors engaged in criminal acts. A jury had ruled for the men to the tune of $1.7 million (see Dec. 15, 1999) after Judge Celeste Muir “excluded all evidence of the suspected drug deal — including the previous drug conviction of one of the men suing, an electronic scale and $38,000 in cash found at the scene. All the jury heard was that two hotel guests who were shot in a dimly lit Ramada Inn parking lot in Hialeah wanted damages from the hotel.” The case is still pending. (“Risks of the crime” (editorial), Miami Herald, June 5).
June 6 — To destroy a doctor. Laparoscopic (small-incision) surgery counts as one of the major medical advances of recent years, and among its internationally famed practitioners have been the three Iranian-born Nezhat brothers, all of whom are on the faculty at Stanford Medical School. For more than seven years Cleveland lawyer James Neal has been pursuing medical malpractice complaints against the Nezhats, accusing them “of, among other things: lying about their credentials; systematically overbilling their patients; threatening witnesses; conducting unauthorized experimental surgeries; sexually assaulting patients; kidnapping at gunpoint; and faking their research in order to promote devices [used in surgery] in exchange for consulting fees and royalties from manufacturers. ” Although he hasn’t made much progress in getting courts to accept his charges, Neal’s pursuit of the numerous lawsuits has taken over his life and, say the Nezhats, has ruined theirs. (Alison Frankel, “Obsession” (cover story), The American Lawyer, June 4).
June 5 — Prisoners stay acoustic. The First Amendment does not confer on federal prisoners a right to practice on electric guitars, ruled U.S. District Judge Emmet Sullivan May 22. “[C]onvicted bomber and frequent litigant Brett Kimberlin … who’s in federal prison in Petersburg, Va., on parole violations”, had sued the federal Bureau of Prisons over a rule restricting inmates to acoustic instruments, saying it inhibited his rights of expression. (Jonathan Groner, “Inadmissible: Unplugged”, Legal Times, May 28) (second item).
June 5 — NFL satellite ticket class action. The National Football League has agreed to settle a class action lawsuit filed four years ago over its practice of selling only season packages to its satellite-TV televised games. Under the settlement, subscribers will get cash payments of between $8.33 and $20.83, and will be able to buy individual weeks at $29.99 each instead of the whole season at $169.99 for the last two years of existing contracts; two named plaintiffs will get $1,000 each, and the lawyers will enjoy an appetizing $3.7 million in fees. Counting administrative costs as well as the legal payouts, the settlement is expected to cost the league more than $13 million, and if you think fans may wind up footing much of the bill for such legally inflicted outlays over the long run as ticket prices go up to cover them, why, shame on you for being such a cynic (“Lawsuit settlement with DSS allows fans to buy single weekend games”, AP/Detroit News, June 1; ValkyrieRiders.net discussion, May 31) Update Aug. 20-21: judge disallows settlement.
June 5 — Missouri’s tagalong tobacco fees. When it came to the role it played in the multistate tobacco litigation, Missouri “didn’t need red-hot lawyers. Our lawsuit was what’s called a tagalong suit. We were the 27th state to sue the tobacco companies. A national settlement was already in the works. … Five months after Team Missouri was assembled, [it] was reached.” But that didn’t stop the lawyers who represented the state — some of whom “were distinguished more for their political connections than their legal track records”– from asking for a cool $480 million in fees, though they later declared themselves willing to settle for $100 million (see Sept. 21, 2000). Readers will recall that not long ago popular St. Louis Post-Dispatch columnist Bill McClellan had the temerity to criticize the high fees trial lawyers were getting in another case, and they promptly slapped him with an intimidating $1 million lawsuit (Nov. 4, 1999; Nov. 30, 1999; Feb. 29, 2000). But he still goes right on writing these sorts of columns, even though he must know it’s bound to get more lawyers mad at him. Hasn’t he learned his lesson yet? (Bill McClellan, “Just what did our tobacco legal team do for $100 million?”, St. Louis Post-Dispatch, May 16). Update Oct. 5, 2003: Missouri Supreme Court refuses to entertain challenge to tobacco fees.
June 4 — “Dad Sues After Girl Fails to Make Cheerleading Squad”. In Vestavia Hills, Ala., the father of Laura Brooke Smith “has sued [the] school district, saying his daughter’s rejection from the high school cheerleading squad despite professional coaching has caused her humiliation and mental anguish.” (Fox News, May 31). And in North Haven, Ct., the “families of two high school sophomores have filed a federal lawsuit over the school’s decision to drop them from the drum majorette squad.” Stephanie Tata and Rebecca Mickolyczk and their mothers filed the suit in U.S. District Court April 30. Town attorney Robert K. Ciulla says the schools get “many” disputes over after-school activities, but this is the first involving baton twirling. (Ann DiMatteo, “Families Sue Over Unfair Twirl Tryouts”, New Haven Register, May 18).
June 4 — Maori tribes v. Lego. “Three New Zealand Maori tribes are considering a legal challenge to Danish toy company Lego over the use of Maori words and Polynesian culture in a new computer game. New Zealand-based barrister Solomon Maui has written to Lego asking for sales of the game to be suspended, saying it infringed the Polynesian people’s intellectual property rights to their language and culture.” (“Maori challenge Lego over use of culture”, CNN, June 1; Slashdot thread).
June 4 — EEOC: unfiltered computers “harass” librarians. In a “blockbuster” ruling, the Equal Employment Opportunity Commission declared on May 23 that the Minneapolis Public Library may have subjected its librarians to unlawful “hostile work environment” sexual harassment by exposing them to sexually explicit images called up by patrons on unfiltered computers. The pro-censorship religious-right Family Research Council hailed the ruling, which is likely to intensify legal pressure on institutions of all sorts (including libraries at private universities and research institutions, and indeed all enterprises with employees) to install “filtering” software which excludes a wide variety of websites deemed obscene, hateful or otherwise improper.
Public libraries like the one in Minneapolis are likely to be sued if they do, sued if they don’t, given the precedent of a 1998 federal district court decision finding that the filtering policy of a public library in Loudoun County, Va., was unconstitutional. However, UCLA’s Eugene Volokh predicts that the balance of legal pressure will tilt toward website blocking, because losing a First Amendment lawsuit filed by patrons will subject a library to only “nominal damages”, while losing a Title VII discrimination suit can result in a damage figure “with lots of zeros in it”. In the Minneapolis case, “[Librarian Wendy] Adamson said the E.E.O.C. had privately suggested to the library that it pay each of the 12 employees $75,000 in damages,” which would add up to $900,000. (Carl S. Kaplan, “Cyber Law Journal: Controversial Ruling on Library Filters”, New York Times, June 1)(reg).
June 1-3 — Sweetness and light from Bill Lockyer. As the state’s power crisis continues, California attorney general Bill Lockyer provokes a few gasps with his recent comments about Enron Corp. chairman Kenneth Lay: “I would love to personally escort Lay to an 8-by-10 cell that he could share with a tattooed dude who says, ‘Hi my name is Spike, honey,'” Lockyer told the Wall Street Journal. While the state’s top law enforcement officer thus quips about subjecting a prominent adversary to prison rape, the Los Angeles Times notes that “neither Lockyer’s office nor any investigative panel has filed charges against Enron or other companies”. (Jenifer Warren, “Lockyer Fires Earthy Attack at Energy Exec”, L.A. Times, May 23, fee-based archive; “Lockyer lockdown”, L.A. Daily News, May 29). Lockyer, who’s promised a bounty of millions of dollars to any informant who can nail the generating firms, was elected AG in a well-funded campaign after serving for many years as head of the Judiciary Committee and chief guardian of litigation-lobby interests in the state Senate; The Recorder (S.F.), Dec. 11, 1992, described him as “the darling of trial lawyers…a part time plaintiff’s attorney”.
Other California politicos have also stepped up the business-bashing to an intensity not heard since the 1970s, to judge from an account by Chris Weinkopf in the Los Angeles Daily News. At a press conference, state senate president pro tem John Burton “announced the solution is for Sacramento to ‘terrorize the bastards’ [electricity generators] by seizing their power plants. If he were governor, he said, he ‘would have taken them yesterday.’ The actual governor, Gray Davis, is more subtle in his attacks. He’s only called the generators ‘marauders,’ ‘pirates’ and ‘the biggest snakes on the planet Earth.’ … Lt. Gov. Cruz Bustamante has called for empowering the state to put energy executives in jail. …Treasurer Phil Angelides has suggested that if generators ‘don’t take their foot off our throat,’ the state should ‘seize a plant or two to sober them up.'” (Chris Weinkopf, “California’s Assault on Energy Producers”, Los Angeles Daily News, April 24, reprinted at FrontPage magazine).
MORE: In San Francisco Weekly, Jeremy Mullman makes the case that the key error in California’s electricity restructuring was to proceed with government-supervised “Reliability Must-Run” (RMR) contracts (he explains what these are) which perversely rewarded generators for unreliability and supply shortfalls (“Contract Killings”, May 30). See also William Tucker, “California Unplugged”, The American Spectator, April; Rob Wherry, “Crossed Wires,” Forbes, March 5 (reg); “Power Scramble”, Forbes, April 23. (DURABLE LINK)(& welcome visitors from AndrewSullivan.com; Sullivan nominates Lockyer for his “Paul Begala Award” for intemperate rhetoric, linking to our item)
June 1-3 — Old-hairstyle photo prompts lawsuit. Speaking of the unlamented 1970s: Skip Johnson, a production manager who once toured with Jefferson Airplane and the Eagles and was married to singer Grace Slick, has sued a dotcom, its advertising firm, and photo firm Corbis over an ad prominently displaying an old photo of him and implicitly poking fun at the unruly 1970s-vintage hairstyle he then wore. He now sports a more conservative ‘do; suits over commercial use of people’s pictures without their permission go back at least as far as 1902, according to his lawyers. (Peter Hartlaub, “S.F. dot-com is sued over big hair ad”, San Francisco Chronicle, May 29). And the latest tattoo-misspelling lawsuit comes from Tucson where a parlor left out one of the “n”s in the motto 22-year-old West Hill had asked to have inscribed on his arm, thus rendering it as “New Beginings”. (Maureen O’Connell, “A major tattoo miscue”, Arizona Daily Star, May 29).
June 1-3 — “A disabling verdict for organized sports”. Steve Chapman’s take on the high court’s ruling in the Casey Martin case; quotes our editor (Chicago Tribune, May 31). Also: Lance Morrow, “PGA, not SCOTUS, Should Have Decided the Casey Martin Case”, Time.com, May 31; Paul Campos, “Martin ruling only further handicaps us”, Rocky Mountain News, June 2; “The court’s errant shot” (editorial), Chicago Tribune, May 31.
June 20 — Mich. lawyer’s demand: get my case off your website. On April 3 we ran a brief item on the trademark lawsuit filed by Detroit-based jewelry-selling enterprise Love Your Neighbor Inc. against a Florida charity called Love Thy Neighbor, which assists homeless persons. A few weeks later Detroit Free Press legal correspondent Dawson Bell published a story going into more detail about the dispute and quoting Robert Dorigo Jones, director of the legal-reform advocacy group Michigan Lawsuit Abuse Watch (M-LAW), who said that while the suit might not count as a frivolous one, he considered it unnecessary: “This falls into the category of lawsuits that can be filed, but shouldn’t be.” (Dawson Bell, “Love your neighbor is suing one, instead”, Detroit Free Press, May 5).
It turns out that M-LAW’s Mr. Dorigo Jones was living dangerously by making such remarks. Within days he had received a letter (which he’s shared with us) from “Love Your Neighbor”‘s attorney, Julie Greenberg of Birmingham, Mich.’s Gifford, Krass, Groh, Sprinkle, Anderson & Citkowski, P.C. The tone of the letter might reasonably be called menacing coming from a lawyer: it says that for him to have called her lawsuit unnecessary had “caused damage to my personal reputation in the legal and social community”. It claims to be “particularly disturbed” that Mr. Dorigo Jones would presume to comment on her suit even though he is not an expert in trademark law; “indeed, you are not even an attorney”. And it proceeds to the following bottom-line demand: “In an effort to curb potential ongoing damage to my reputation from your quote in the Free Press, I request that you retract your statement made, and further that you take all references to me or this lawsuit from your [M-LAW’s] website, or your affiliated website Overlawyered.com, which is promoted and hyperlinked by your website. I look forward to your prompt response.”
Oh, dear. “Your affiliated website Overlawyered.com“? How’d we get dragged into this? As even casual investigation should have revealed to attorney Greenberg, Overlawyered.com and M-LAW aren’t “affiliated” with each other in any normal sense of that word: we link to them and they link to us, but that’s true of any number of other sites as well. Yet she seems to think Mr. Dorigo Jones has the power to get items removed from our site — or is that she thinks he should take down his site’s link to us? Whichever is the case, we have bad news for her: Mr. Dorigo Jones tells us that he has no intention of removing M-LAW’s link to Overlawyered.com, and we have no intention of removing our previous item mentioning Greenberg’s client, or this one either (& letter to the editor, July 6) (DURABLE LINK)
MORE: According to Bell’s report, Arnold Abbott founded the Florida charity in 1992 “in memory of his deceased wife”. Ms. Sims, who has registered the phrase as a trademark, had earlier challenged Mr. Abbott’s right to the domain name lovethyneighbor.org but lost in arbitration. Attorney Goldstein’s letter says the filing was “necessary” because owners of trademarks can lose their rights if they do not police infringement, and notes that various efforts by her client short of litigation had failed to keep the Florida charity from going right on calling itself “Love Thy Neighbor”. Mr. Abbott, for his part, told reporter Bell that “he is flabbergasted that it is possible to register rights to an expression that ‘has been around for 5,700 years. ‘If she’s right, then every time someone prints a Bible they’d have to pay her a royalty.”
June 20 — “Gambling addiction” class action. “A lawyer in Canada’s Quebec City is launching a class action suit against the province’s gambling monopoly for not warning players about the alleged dangers of its games.” The suit says the video gambling machines are addictive. (Mike Fox, “Addicted gamblers sue in Quebec”, BBC, June 14).
June 20 — By reader acclaim: “dog slobber” slip-fall case. Mary Lee Sowder of Rocky Mount, N.C. is suing a PetsMart store in Roanoke, saying she slipped on canine “slobber” on its floor. She claims knee damage and wants at least $100 grand. (Tad Dickens, “‘Dog slobber’ at pet store caused her fall, woman says in lawsuit”, Roanoke Times, June 19).
June 19 — Keeping child in her lap = homicide conviction. Prosecutors have prevailed on a Chattanooga, Tenn. jury to convict 20-year-old Latrece Jones of criminally negligent homicide in the death of her 2-year-old son Carlson Bowens Jr., “who was in her lap instead of a car seat during a car crash.” When we use the phrase “safety cops”, we’re really not kidding. (“Car seat conviction”, ABCNews.com, June 15) (& letters to the editor, July 6).
June 19 — Tobacco: Boeken record. Per AP and CNN reports, $3-billion jackpot winner Richard Boeken started smoking in 1957, yet “testified that he ‘never heard or read about the health risks of smoking until congressional hearings were held in 1994.’ This claim does not simply strain credulity; it smashes credulity into a million tiny pieces. … Until 1997, California law … classified tobacco as a product that is ‘known to be unsafe by the ordinary consumer…with the ordinary knowledge common to the community.’ Now we see the sort of idiocy that provision was holding back.” (Jacob Sullum, “Beyond belief”, June 12). The Onion weighs in with a satire, if it’s possible to satirize such things (“The $3 Billion Judgment“). See also Robert Jablon, “Los Angeles Jury Orders Philip Morris to Pay $3 Billion to Lifelong Smoker”, AP/Law.com, June 7; Bob Van Voris, “Big Bucks Guy Shows Little Ego”, National Law Journal, June 15 (profile of winning attorney Michael Piuze). And after Salon ran a piece by veteran tobacco-litigation advocate Elizabeth Whelan trying to defend the outcome of the L.A. case it immediately drew an influx of reader mail strongly disagreeing with her (“Tobacklash!”, June 15; letters, June 18). Update Oct. 2, 2004: appeals court orders punitive award cut to a sum not to exceed $50 million.
June 19 — Docs and Dems. The American Medical Association, which used to take a dim view of the litigation biz but now eagerly builds it up as a way of revenging itself against managed care, is tilting its campaign contributions these days toward lawsuit-friendly Democrats (OpenSecrets.org “Money in Politics Alert — New Friends: The American Medical Association, Democrats and the Patients’ Bill of Rights”, June 18). See also Kelley O. Beaucar, “Critics Decry ‘1-800- LAWSUITS’ Bill”, FoxNews.com, June 18 (quotes our editor); Fred Barnes, “The Right Medicine” (editorial), Weekly Standard, June 25. And SmarterTimes, the indispensable corrective to each morning’s dose of West 43rd St. tendentiousness, finds a number of misleading assertions in Monday’s New York Times editorial on “patients’ rights”. For instance: “The editorial says, ‘The White House, for its part, says the bill would open the floodgates to a wave of frivolous lawsuits, a claim not supported by the evidence in those states that have adopted similar legislation, including Texas under Governor Bush.’ This is misleading; the Texas patients’ bill of rights included limits on civil damage awards that are not included in the federal legislation to which the White House is objecting.” (June 18 — scroll to “Patients’ Bill of Wrongs”; “The Right Patients’ Bill of Rights” (editorial), New York Times, June 18).
June 19 — “Candles might be polluting your home, EPA says”. A new indoor environmental menace: just what we needed to ruin our wick end. (Traci Watson, USA Today, June 14).
June 18 — Lawsuits on overseas terrorism: guess who foots the bill. “Thanks to Congress’ largesse, U.S. taxpayers are paying hundreds of millions of dollars to compensate victims of foreign terrorism. And the tab might soon soar.” Given American jurors’ low opinion of regimes like those of Iran and Libya, trial lawyers often score big awards suing them — which they can then present to U.S. taxpayers for at least partial payment. “Stuart Eizenstat, deputy Treasury secretary under President Clinton, says lawyers are pressing cases under two laws: a 1996 statute that lets Americans file suit in U.S. courts against seven countries on a State Department list of terrorist states, and a 2000 law that authorizes the government to pay some damages. Congress has to approve new awards, but it has in every case so far. ‘It has become a race to the courthouse and then a race to get Congress to appropriate funds,’ Eizenstat says.” (Barbara Slavin, “Taxpayers get the bill when terrorists lose in court”, USA Today, June 14). “Two former hostages held in Lebanon by pro-Iranian kidnappers sued Iran on Tuesday, contending the country was responsible because its Muslim government shields and supports terrorists. The lawsuits, filed by Rev. Benjamin Weir and Frank A. Regier, seek $100 million in compensatory damages and an unspecified amount in punitive damages.” (“Former Iran [sic] Hostages File Lawsuits”, AP/FindLaw, June 13).
June 18 — Villaraigosa and the litigation lobby. One group that may be less than happy about leftist Antonio Villaraigosa’s June 5 loss to James Hahn in the L.A. mayoral race: trial lawyers, who’ve found Villaraigosa a close ally in his powerful post as speaker of the California Assembly. “In the 1997-1998 campaign cycle, Villaraigosa received $612,400 in campaign contributions from personal injury lawyers, a number that works out to be 25% of the almost $2.4 million given to California Assembly candidates,” notes California’s Torrance-based Citizens Against Lawsuit Abuse (“2001 L.A. Mayor’s Report“, undated). “In the 1999-2000 campaign cycle, he received $220,600 from personal injury lawyers, which works out to be 10 percent of funds contributed to California Assembly candidates.” See also Todd Purdum, “Hahn Wins Los Angeles Mayor’s Race”, New York Times, June 6 (reg).
June 18 — Next time, “endorse” only products you like? Tennis pro Martina Hingis has sued the Sergio Tacchini Italian sportswear company, claiming that its shoes caused her feet to hurt and made her drop out of tournaments. Couldn’t she just have removed the offending footgear? Well, she’d agreed to wear it as part of a $5.6 million endorsement deal. (“Hingis claims shoes injured her feet”, AP/ESPN, June 11; “Shoemaker says Hingis has no basis for claim”, AP/ESPN, June 12).
June 18 — Reader contributions pass $1,000. We’re doing better with the Amazon Honor System than most sites we know, thanks to generous readers like you; our average contribution is nearly $10. Have you done your bit yet?
June 15-17 — Jury: drunk driver hardly responsible at all for fatal crash. A Broward County. Fla. jury has found the state Department of Transportation and a highway construction firm to be 90 percent responsible for the 1995 traffic accident that took the life of former Miami Dolphins linebacker David Griggs. Griggs “had a blood-alcohol level of .16, twice the legal limit of .08, after which a person is considered drunk in Florida, according to the toxicology report from the Broward County Medical Examiner.” A second trial is set for the fall to determine damages. (“Jury: Road firm, government mostly to blame for Griggs’ death”, AP/Sacramento Bee, June 14).
June 15-17 — “Doctor liable for not giving enough pain medicine”. On Wednesday an Alameda County, Calif. jury found Dr. Wing Chin liable for recklessness and elder abuse for not giving sufficient pain medicine to 85-year-old William Bergman, who died three days later of lung cancer. “During the month-long trial, the doctor testified he followed established protocols in prescribing pain medication to Bergman. His attorney Bob Slattery also argued neither the patient nor his family requested that the doctor prescribe more pain medication to alleviate the suffering.” Plaintiff’s lawyer Jim Gearan said Dr. Chin had failed to take training in pain management. (“Doctor liable for not giving enough pain medicine”, CNN, June 14). We wonder whether this case ties in in any way with the phenomenon convincingly documented by Jacob Sullum, namely the widespread undertreatment of pain by doctors in a medical culture swayed both by fear of narcotics themselves and by fear of the enormous hassle from state regulators and the federal Drug Enforcement Administration that can descend on the heads of doctors perceived as too ready to furnish narcotics (“Who’ll stop the pain?”, Reason, Jan. 1997).
June 15-17 — “Lender hit with $71M verdict”. A Holmes County, Mississippi jury voted $69 million in punitive damages and $2.2 million in compensatory damages after a group of 23 plaintiffs accused Washington Mutual Finance Group of “goading customers into renewing loans with additional undisclosed charges”. The plaintiff’s lawyer was Rep. Edward Blackmon Jr., who chairs one of the two Judiciary committees in the lower house of the Mississippi legislature; his wife Barbara, also a plaintiff’s trial lawyer, serves in the state Senate where she sits on the Judiciary committee and is vice chair of the Insurance committee. (Jackson Clarion-Ledger, June 14).
June 14 — Wal-Mart-as-“cult” suit: it is about the money. A lawsuit accuses Wal-Mart of maintaining a “cult-like” atmosphere which encourages employees to put in unpaid overtime. “You bet it’s about the money,” said litigant Taylor Vogue. (“Wal-Mart Brainwashes Workers, Suit Alleges”, AP/Omaha World-Herald, June 9).
June 14 — “Lawsuit rocks Virginia string quartet”. Further developments in the ongoing Audubon String Quartet mess, last reported on here June 5, 2000: estranged first violinist David Ehrlich is suing the other three members of the ensemble for $2 million and has obtained a court order preventing them from playing together under the Audubon name or any other group name (they can still use their individual names). Robert Mann, an original member of the Juilliard Quartet, thinks chamber musicians should not take differences to court: “If anyone who becomes disaffected with his group can sue the others for money, it would be disastrous.” (Chris Kahn, AP/ SFGate.com, June 8). Update Nov. 13, 2001: judge awards Ehrlich more than $600,000 in damages.
June 14 — Fee fracas still going 23 years after case filed. Chick Kam Choo was a ship worker killed in 1977 in an accident on a tanker in Singapore harbor. His survivors’ wrongful-death suit against Exxon and other defendants was filed in Houston, Tex., with its big verdicts, rather than in Singapore. It finally settled this January for $2.7 million after protracted battles that reached the U.S. Supreme Court, but as of April the plaintiffs hadn’t seen a penny because of new squabbling between eight different plaintiff’s lawyers over who gets fees. John O’Quinn of O’Quinn and Laminack, whose doings are frequently reported on in this space, says his firm gets it all. But Newton B. Schwartz Sr., C. Benton Musslewhite Sr. and his son Charles B. Musslewhite Jr., Richard Sheehy, Gary Polland, and Joseph C. Blanks all maintain that they deserve some or all of the fees. (Brenda Sapino Jeffreys, “A Piece of the Action”, Texas Lawyer, April 17).
June 13 — Dodge ball on endangered list. “Educators in several states are fighting to ban dodge ball, but the game remains popular with kids.” A professor at Eastern Connecticut State University says the game is “litigation waiting to happen.” (“Educators want dodge ball tossed out”, AP/CNN, June 7). And a touch football game has brought youngsters to court in a Wisconsin broken-arm case unlikely to have any real winners (Tom Kertscher, “Trial is about pals, football, evening the score”, Milwaukee Journal Sentinel, June 10).
June 13 — Antidepressant blamed for killing spree. Three years after Donald Schell went on a murderous rampage, a Cheyenne, Wyo. jury has blamed the episode on Glaxo SmithKline, maker of the anti-depressant Paxil, with an $8 million verdict. (“Shooter’s family awarded $8 million in drug suit”, AP/CNN, June 7).
June 13 — Batch of reader letters. The latest sack of correspondent mail includes a note from Ric Espinosa, who filed the “library cat” suit reported on last month; letters on the ethics of ghostwriting for lawyers, class action suits, Prof. Richard Daynard’s conflicts and their tardy disclosure, the Casey Martin case, and flashlight warnings; along with the possibly relevant lyrics of an Al Stewart song.
June 12 — “Hearsay harassment” not actionable. Diane Leibovitz, a now-retired mid-level manager at the New York City Transit Authority, filed a sexual harassment lawsuit against the TA because, though she had not herself been a target of harassment, reports had reached her at second hand that other women employees had been. She got a $60,000 jury award after a trial presided over by federal judge Jack Weinstein, but the Second Circuit U.S. court of appeals has reversed it, saying the law does not confer a right to sue on a worker who “was not herself a target of the alleged harassment, was not present when the harassment supposedly occurred, and did not even know of the harassment when it was ongoing”. Leibovitz’s lawyer, Merrick Rossein, a law professor at CUNY and author of a widely used textbook on employment discrimination law, was disappointed: “They’re saying that since she didn’t directly observe the harassment and didn’t prove the harassment actually occurred, it is not cognizable under the theory of hostile environment.” (John Springer, “Court overturns transit authority sexual harassment award”, Court TV/Yahoo, June 11).
June 12 — Ghost blurber case. Almost as fast as Sony Pictures got caught inventing quotes from nonexistent film critic “David Manning” to hype four of its films, a class action lawyer sued on behalf of two L.A. moviegoers whose desire to engage the studio in legal battle no doubt welled up in a wholly spontaneous fashion (Denise Levin, “Sony’s Bogus Blurbmeister Spurs Class Action Suit”, Yahoo/Inside.com, June 8; Anthony Breznican, “2 Moviegoers Sue Sony Over Review”, AP/Yahoo, June 8). And even faster off the dime was Connecticut Attorney General Richard Blumenthal, who seized on the scandal’s very tenuous Nutmeg State connection (the fictitious Manning was said to work for the Ridgefield Press) as excuse for an investigation (“Conn. AG to Investigate Film Reviews”, AP/Yahoo, June 6). According to Jim Knipfel of the New York Press, the investigation may be a wide-ranging one : “Blumenthal is not only upset by the fake critic business, but also by the age-old publicist’s trick of carefully editing lukewarm reviews into raves” via ellipses, and says that may be unlawful too. Where has he been for the past 30 years, Knipfel wonders? “Mr. Blumenthal should find himself some sort of hobby.” (“Billboard: ‘Stunning! … An Amazing Achievement … Seething with Forbidden … Desire!'”, New York Press, June 6 (strong language); Mickey Kaus, Kausfiles “Hit Parade” (left column — scroll to June 8).
June 12 — Bicycles not “motor vehicles”, court rules. Aren’t you relieved? If they had motors, you’d always be buying gasoline for them. (Danielle N. Rodier, “Bicycles Not Motor Vehicles Under Governmental Immunity Statute”, The Legal Intelligencer (Philadelphia), June 7).
June 12 — Record traffic on Overlawyered.com. Last week set another record for pages served at 31,600 (with about 14,000 distinct visitors). We must have gotten some big publicity Thursday (more than 8,000 pages served on that day) but we’re not sure what it was.
June 11 — Blockbuster Video class action. Yet another headline-grabber from the world-famed courts of Beaumont, Tex.: customers will get various free-rental and cents-off coupons with a notional value approaching $450 million and a real value of some minute fraction of that, while class-action plaintiff’s lawyers will take home $9.25 million. The video chain’s sin was, allegedly, to have made too much money from late fees and to have changed its policies without notifying customers. (“Blockbuster settles suits”, AP/CNNfn, June 5; details; William F. Buckley, Jr., “Trial lawyers vs. sanity”, National Review Online, June 8).
June 11 — “Plastic surgery addiction” patient loses suit. In a unanimous ruling, New York’s highest court last week “tossed a lawsuit from a woman addicted to plastic surgery — she had over 50 operations — who claimed her doctor should have referred her to a psychiatrist before using the knife.” A lower court had ruled that the suit could proceed, raising fears that physicians might have to arrange psychiatric pre-screening of patients before many elective operations (see Aug. 15, 2000) (Kenneth Lovett, “Plastic-Surgery Addict Suit Gets Carved Up”, New York Post, June 8).
June 11 — $5,133.47 a cigarette. That’s how much the jury awarded plaintiff Richard Boeken last week when it told Philip Morris to pay him $3 billion for having enabled his smoking habit, according to calculations by reader Nathan Clark by WSJ OpinionJournal “Best of the Web” (June 8). “Based on Boeken’s claim that he smoked two packs a day for 40 years, Clark figured Boeken had smoked 584,000 cigarettes”, which divided into $3 billion “comes to $5,133.47 per cigarette Boeken smoked. Look for a big increase in teen smoking as word gets around the schoolyards that it’s a ticket to untold wealth.” Update Oct. 2, 2004: appeals court orders punitive award cut to a sum not to exceed $50 million.
June 11– End the dairy compact. Sen. Jeffords (I-Vt.) has been a leading defender of the “indefensible boondoggle” by which Northeastern milk prices are kept high, and his party switch makes a perfect opportunity to get rid of the thing (Jonathan Chait, “Spilled milk”, The New Republic, June 11). And Republican electoral victories in states like West Virginia are dearly bought if the quid pro quo for them is that consumers in the rest of the country have to suffer restrictions on steel imports (“Protectionist Bush?” (editorial), Christian Science Monitor, June 11).
June 29-July 1 — Crowded drugstores illegal? For years lawyers have warned that cramped retail store layouts may violate the Americans with Disabilities Act because of the way they impede “access” by customers with wheelchairs and other mobility impairments. Now an advocacy group for the disabled has sued the Duane Reade drugstore chain, charging that many of its outlets in Manhattan are in violation, especially those with multiple levels and obstructed aisles. One plaintiff says some nonprescription medicines are placed on shelves too high for her to reach; another says she feels her privacy is compromised when a store employee assists her to the pharmacy area. In crowded locations such as midtown Manhattan, mandates for uncrowded drugstores will probably lead to the closure of some locations — thus making everyone go farther to get their prescriptions filled — and higher prices at the rest, given that rent per square foot is a major element of overhead cost. The law firm Fish & Neave is representing the disabled group, in conjunction with the not unironically named New York Lawyers for the Public Interest. (David W. Dunlap, “Tight Retail Spaces Prompt Suit by the Disabled”, New York Times, June 27; “Duane Reade Stores: Disability-Impaired”, VisualStore.com, June 27) (& letter to the editor, July 6).
June 29-July 1 — Ohio auto insurance wreck. The trial-lawyer-backed 4-3 majority on the Ohio Supreme Court has been doing creative things to expand the scope of coverage of auto insurance in the Buckeye State, with the unfortunate consequence that the price of it is soaring. “The court says that the insurance policies a business buys on its fleet of automobiles covers its employees and their families when driving their personal cars on vacation or on any other personal matter — from taking the kids to school to driving out for groceries.” (“Liability unlimited? This is not your father’s car insurance”, (editorial), Columbus Dispatch, June 3; “Court extends uninsured coverage beyond belief” (letter to the editor), Columbus Dispatch, June 2)(& letter to the editor, July 6). Update Nov. 2-4: bill to reverse court decision goes into effect after being signed by governor.
June 29-July 1 — Domain-name disputes are busting out all over. A site called BaseballProspectus.com thinks a site called BaseballPrimer.com is infringing on its intellectual property, right down to its initials “BP”, which we regret to inform them British Petroleum got to first (Sean Forman and Jim Furtado, “Unexpected Reader Mail”, BaseballPrimer.com, April 4 — includes lots of reader reaction). The Fox television network this spring sicced its lawyers on a science-education web site created by the University of Wisconsin-Madison, “The Why Files“, whose title it says infringes on the trademark of its series “The X-Files.” “I’m not sure if Fox is trying to get a legal hammerlock on the alphabet or what their motives are, but that’s what it seems,” said the “Why” site’s editor. (“Fox aims to shut down acclaimed science web site”, ESchoolNews, March 1). And the Tata Group, a diversified industrial group on the Indian subcontinent, has obtained a ruling from the World Intellectual Property Organization closing down a sixually* oriented website by the name of bodacious-tatas.com; Marc Schneiders, a commentator from the Netherlands who says he is not connected with either party in the controversy, has put up a (clean) site called bodacious-tatas.org explaining why he thinks this ruling is madness. (Tata Group’s view: “Tata Sons evicts porbographic* cyber squatter”, Aug. 28, 2000).
* Misspelled deliberately, to dodge filters.
June 29-July 1 — Cell phone follies. “The New York assemblyman who drafted a bill that bans the use of cell phones while driving is pushing a bill that would punish offenders of the law as if they’d been driving drunk.” In Connecticut, a bill introduced in the state senate “also makes eating, tuning the radio and reading in the car an offense.” (Elisa Batista, “Car Phone Ban Author Wants More”, Wired News, June 28).
June 29-July 1 — Now we are 2. Overlawyered.com began publishing July 1, 1999, which makes us two years old. Drop us a line with testimonials about how you first learned of the page, what your favorite feature is, stories that got picked up by the wider press after running here first, unlikely people who read us — all that sort of thing. We’ll publish some highlights and keep the rest as souvenirs.
June 28 — “Colorblind Traffic-Light Installer Gets Fired, Sues County”. Former traffic-light installer Cleveland Merritt is suing Palm Beach County, Fla., “for firing him because he is colorblind and couldn’t distinguish between red and green wires.” The Equal Employment Opportunity Commission has already ruled in his favor on his Americans with Disabilities Act claim, agreeing with his lawyer that “the county could have kept him on the job by assigning him to other duties not affected by his colorblindness.” There are “19 differently colored wires in a traffic light”. (AP/FoxNews.com, June 27).
June 28 — Chapman, Broder, Kinsley on patients’ rights. The American Medical Association recognizes that medical malpractice litigation operates with amazing randomness and is actually “a barrier to quality improvement” — so why exactly do they wish to expand it? (Steve Chapman, “Seeing your HMO in court”, Chicago Tribune, June 21). Backers of the Kennedy- McCain- Edwards bill rely to an extraordinary degree on anecdotes — keep that in mind the next time the trial lawyers start dismissing critics like us as anecdotal (David Broder, “Battle of Anecdotes”, Washington Post, June 26). And Slate editor Michael Kinsley calls the bill the perfect piece of legislation for our era, not meaning that in a complimentary way. “Republicans charge that Democrats are in the pocket of the Trial Lawyers Association, and it’s pretty true. But there are also strategic and even philosophical reasons why proposals like the patients’ bill of rights rely on lawsuits to do their dirty work.” They are a “way to impose rules on the private economy while avoiding the big-government stigma.” Unfortunately, the “downside of this approach includes the enormous, though hidden, cost of litigation (the lawyers, the punitive damages, etc.), the inconsistent standards of judge-made law as opposed to uniform rules,” and so on. Kinsley concludes that liberalism of this sort is “flawed … [but] better than nothing.” (“Liberalism a la Mode”, Slate, June 21). See also “Patients’ Right to Sue” (WSJ editorial), OpinionJournal.com, June 24).
June 28 — More things you can’t have: glowsticks. Some federal drug enforcement officials consider glowsticks, the neonlike tubes of light waved by concertgoers, to be “drug paraphernalia”, and a group of New Orleans “rave” promoters, attempting to comply with a court order, have barred the novelty items from their clubs. (Janelle Brown, “Sell a glowstick, go to prison”, Salon, June 20). Update Feb. 20, 2002: court strikes down.
June 28 — “Lawyers put profits above lives”. Why did Texas lawyers suing Firestone (see June 25) refrain for years from reporting the tire failures to the federal government’s safety agency, NHTSA, thus ensuring the danger would continue? They’ve claimed it was because they were afraid NHTSA would undercut their cases by investigating and wrongly clearing the tires, but Prof. Lester Brickman, a legal ethics specialist at Yeshiva University’s Cardozo Law School, holds out an alternative theory: “they didn’t want to alert other lawyers to the chance for profit”. (New York Post (op-ed), June 27).
June 27 — By reader acclaim: student sues law prof over class demonstration. Talk about learning by doing: a student is suing her law professor “for pulling a chair out from under her as a demonstration in a class on personal injury lawsuits. Denise DiFede, 30, charges Pace University Law prof Gary Munneke caused her ‘severe pain and mental anguish’ when he pulled the stunt.” She’s demanding $5 million and is also suing Pace University School of Law, in White Plains, N.Y., where the incident took place. “Munneke was teaching a ‘torts’ class, discussing Garrett vs. Daley — a case about a child who injured another kid when he pulled out a chair from under him.” DiFede’s lawyer said she “was badly injured because she has an ‘eggshell’ body and had undergone a back operation shortly before her fall.” (Dareh Gregorian, “Class Action”, New York Post, June 26; “Student Sues Professor Over Class Demonstration”, Reuters, June 26; Jim Knipfel, “Billboard: The Three Stooges Go To Law School”, New York Press, June 27).
June 27 — Educational privacy gone to extremes. The Family Education Rights and Privacy Act is another of those feel-good enactments whose cumulative effect on our national life has been so harshly punitive: it prohibits public schools from releasing any “education records of students … without the written consent of their parents.” Since that includes grades, it may now violate federal law for a teacher to disclose how a student scored in any class or project — even posting a child’s artwork on a wall with a gold star may be legally dubious, according to one school attorney. The U.S. Supreme Court has agreed to help clarify the law in a case where a teacher allowed students to “grade” each other’s work aloud, which meant the grades were necessarily “disclosed” as they were given. (“High court to hear school grade, honor roll case”, AP/CNN, June 26; “Why Is This In Court?” (editorial), Washington Post, June 27).
June 27 — Warren Buffett was wrong. Not long ago the famed investor, through his Berkshire Hathaway, bought a substantial stake in USG (Yahoo page), the big maker of drywall, joint compound, ceiling tiles and other familiar construction-site products. In doing so Buffett was widely reported to have placed a bet that the company’s legacy of asbestos litigation would soon be resolved through some agreed-on scheme of compensation for injured workers, despite the opposition of organized trial lawyers to any legislation that would remove claims from the tort system. No such reforms have been forthcoming, however, and on Monday USG joined Owens Corning, Armstrong World Industries, GAF, W.R. Grace and other major industrial companies that have lately sought protection from asbestos suits in the bankruptcy courts (“USG files for Chapter 11″, CNNfn, June 25; “USG Files for Bankruptcy, Blames Lawsuits”, Yahoo/Reuters, June 25; company site). As each company folds its hand, lawyers demand higher payouts from those remaining, in a joint-and- several-liability “last-man club”. While USG reported $3.78 billion in revenue last year, its asbestos-related payouts this year are expected to surpass $275 million, a large portion of which will likely go toward claims on behalf of persons never injured by its products, with more claims flooding in by the tens of thousands, the “vast majority”, it says, for workers who are not in fact ill (background). “We have said repeatedly that U.S. Gypsum can afford to pay for its own liability, but it cannot pay for the liability of other companies or pay everyone who was exposed to asbestos-containing products — yet that is exactly what is happening because of the high volume of new cases and other asbestos-related bankruptcies,” said chairman William C. Foote. The company’s management cites the party switch of Vermont Sen. James Jeffords as a reason for throwing in the towel, since a Senate organized by Democrats is unlikely to give the nod to any legislative fix for the litigation morass. (“USG Says It May Seek Bankruptcy Protection After Jeffords Decision”, Wall Street Journal, June 5).
Still not bankrupt is Crown Cork & Seal (Yahoo page), the big Philadelphia-based packaging company, which in 1963 “bought Mundet, a North Bergen, N.J. firm that made cork bottle caps and insulation that contained asbestos. Only interested in the bottle-cap business, Crown sold off the insulation part of Mundet just 93 days later. It neither operated the insulation business nor ever intended to. Crown has paid dearly for those 93 days, paying out millions of dollars to settle some 70,000 asbestos-related claims, and bringing the company to the edge of bankruptcy” with its aggregate payouts mounting into many hundreds of millions (Monte Burke, “An Affair to Remember”, Forbes, June 11 (reg)). Update Jun. 26-27, 2002: judge upholds bill passed by Pa. legislature limiting Crown’s asbestos liability (DURABLE LINK)
June 26 — Managed care debate. “The ‘patients bill of rights’ is the issue du jour, but the problems it was designed to address have largely passed,” writes Virginia Postrel. “Managed care operates in a market, imperfect though it may be. When patients are unhappy enough to complain to Congress, they’re also unhappy enough to complain to their insurance-buying employers — who are a lot more nimble than the political process.” As employers shop for plans that will not tick off their workforces too badly, many of the things people hated about managed care a couple of years ago are already being changed (VPostrel.com, “The Scene“, scroll to “Obsolete Reform”; and see Michael Lynch, “Timing Error”, Reason, July 1998). Those without health insurance currently constitute 17 percent of the U.S. population, and the Employment Policy Foundation estimates that the figure would increase to 23 percent by 2010 if Congress enacts the cost-inflating new bill, with 9 million more persons off the insured rolls (“Patients’ Rights Legislation: The Triangle of Health Insurance: Quality, Cost and Access”, June 20 (PDF). Not all the increase is attributable to the PBR, however, since the EPF’s paper says that the number would increase to 19 percent even without the change. Although Sen. McCain has described organized medicine’s support for the PBR as unanimous, the American Association of Physicians and Surgeons begs to differ (letter from Jane Orient, M.D., June 21). And employers are not inclined to credit assurances from trial lawyer-Sen. John Edwards (D.-N.C.) and other Kennedy-McCain sponsors that tagging them with liability for managed-care practices is the furthest thing from their minds (“Senate Patients’ Rights Debate Focuses on Employers”, Fox News, June 25).
June 26 — Spoof memo draws EEOC probe. Dateline Columbia, S.C.: the federal Equal Employment Opportunity Commission “has opened a preliminary inquiry into a tongue-in-cheek memo that urged female pages at the state House to dress more provocatively. The memo was written as a spoof reply to a dress code banning the pages, mostly University of South Carolina students, from wearing low-cut blouses or short skirts.” The memo’s anonymous authors also exhibited disrespect toward the Women’s Caucus, urging female pages to ignore future memos from the caucus. (Jim Davenport, AP/Nando, June 13).
June 26 — “Burn Victim Files Suit Over Yellowstone Scalding”. “A man is suing the federal government for negligence after he was badly scalded in a Yellowstone National Park thermal pool last year. Lance Buchi, 19, of Holladay, Utah, and two friends jumped into the 178-degree water at night on Aug. 21, apparently mistaking the pool for a narrow stream. … The three worked for Amfac Parks and Resorts, the park’s management company.” (“Burn Victim Files Suit Over Yellowstone Scalding”, AP/FoxNews.com, June 21). Update Sept. 6-8, 2002: judge lets case go forward.
June 26 — Welcome Bourque.org readers. Pierre Bourque’s page has been called the “Drudge Report of Canada” and we were stampeded by Canadian readers yesterday after he linked our piece on trial lawyers and tire defects. Also sending us visitors: John Armor’s American Civil Rights Union, conceived as a counterweight to the ACLU; WCSI Radio, Columbus, Ind. (among “sites of the week”, June 9); Green Party volunteer Paul Franklin in Santa Cruz, Calif.; “Libertarianistaj Organizoj kaj Aliaj Subtenantoj de Libereco“, a page for libertarian-minded speakers of Esperanto; Max Utens Press, publisher of “Informed Consent in Otolaryngology” and other medico-legal treatises; DomeLights.com “Cop’s Lounge” (“Links and other features of interest to cops and their friends”); CapitolGate, among the favorite sites of Ohio political consultant Mark R. Weaver (June 25); and Burton Randall Hanson’s “Law and Everything Else” page (featured site this week), among hundreds of others. Ask your favorite webmaster to give us a link as well!
June 25 — Trial lawyers knew of tire failures, didn’t inform safety regulators. “A group of personal-injury lawyers and one of the nation’s top traffic-safety consultants identified a pattern of failures of Firestone ATX tires on Ford Explorer sport utility vehicles in 1996,” reported Keith Bradsher in yesterday’s New York Times lead story. “But they did not disclose the pattern to government safety regulators for four years, out of concern that private lawsuits would be compromised.” By 1996 trial lawyers suing Bridgestone/Firestone, through the work of a consultant named Sean Kane, had identified 30 cases of tire failure, “a few” involving deaths. For the next four years, however, they chose not to file the safety complaints that would have called the pattern to the attention of the National Highway Traffic Safety Administration. They were afraid doing so might prejudice their chances of winning their cases because the agency might investigate and find no proof of a defect. Of the 203 reported U.S. deaths linked to failure of the tires, 190 occurred after 1996 and thus might in principle have been averted had the lawyers chosen to speak up.
“Dr. Ricardo Martinez, the administrator of the traffic safety agency from 1994 to 1999, said he was appalled to learn that information had been kept from his staff for years. He said he would have ordered an immediate investigation if anyone had told him of the tire problems. …Mr. Kane said that the lawyers’ first duty was to win as much money as possible for the crash victims whom they represented. The lawyers typically work on contingency and collect up to a third of any settlement or court verdict.”
Prominent legal ethicist Geoffrey Hazard Jr. of the University of Pennsylvania Law School agrees that current ethical codes leave lawyers with only a “civic responsibility”, not a legal duty, to report safety problems of which they become aware. “Ford engineers were falsely reassured in 1999 when they checked the federal complaint database and found it virtually empty — because lawyers had not filed complaints.” Even after a February 2000 Houston TV report on the tires triggered a NHTSA investigation, the lawyers withheld from the agency some information on problems with the tires: “You don’t want to be tipping your hand to the defendants,” said Mr. Kane, who since 1997 has been the partner for tire issues at a litigation consultancy called Strategic Safety. (Keith Bradsher, “S.U.V. Tire Defects Were Known in ’96 but Not Reported”, New York Times, June 24 (reg); see Sept. 15, 2000) (& letter to the editor, July 6). (DURABLE LINK)
June 25 — “Lawyers’ client bashed for due fees”. Dateline Australia: “Two Melbourne lawyers, one of them a QC, stood outside a conference room while a client who owed them money was bashed inside, a court was told yesterday.” Solicitor Alan Shnider is now facing criminal charges over the incident, as are two men who summoned property developer George Kallis to the rendezvous and then allegedly beat him while Shnider waited outside. (Melbourne Age, June 23). In other news, while public concern is on the rise in Australia about mounting litigiousness, some members of the Down Under bar are dismissing it all as a “myth” and “smokescreen” cooked up by their opponents — taking a leaf from their American counterparts, who’ve been sticking to that line for years (Larissa Dubecki, “Come up and sue me some time”, Melbourne Age, June 23).
June 25 — Barney’s bluster. After online joke site Cybercheeze ran an item proposing a variety of demises for the cartoon character Barney (“150 Ways to Kill the Purple Dinosaur“), it got this letter (June 6) from Barney’s owners, Lyons Partnership, L.P., advising: “We have reviewed your website and have concluded that it incorporates the use and threat of violence towards the children’s character Barney without permission from Lyons Partnership” and demanding that the item be pulled, to which the site owners fired off this massively rude reply (June 14).
June 22-24 — Columnist-fest. To read at the beach, or even inland:
* Christopher Caldwell on the Jenna Bush case and our absurdly puritanical youth-drinking laws (thanks so much, Liddy Dole) (“Pour, Little Rich Girl”, New York Press, June 6).
* Wendy McElroy on the EEOC’s finding that librarians suffered “second-hand harassment” when patrons were permitted to visit dirty websites (“The Next Wave of Office Politics: ‘Second-Hand Harassment'”, Fox News, June 6; see June 4).
* Amity Shlaes on the traveling circus of product-liability forum-shopping that has currently pitched its tent in Jefferson County, Mississippi (“Will Grisham soon be unemployed?”, Financial Times/Jewish World Review, May 30; see May 4-6).
* “Kennedy-McCain is the medical profession’s effort to counterattack its enemy, the insurance industry, using expensive lawsuits as a weapon. … the ultimate victims will be lower-income employees who will lose insurance coverage,” writes Morton Kondracke (“Patients Rights’ Bill Is Doctors’ Overkill In War With HMOs”, Roll Call, June 21).
* Jacob Sullum on the welcome dismissal of several municipal suits against the gunmaking industry (“Shot down”, Creator’s Syndicate/Reason.com, May 15) and on the reasons the Bush Justice Department should simply drop, rather than try to settle through negotiation, the lawsuit it inherited against tobacco companies (“A Real Racket”, National Review Online, June 21).
* Wrap-ups on the Court’s lamentable Casey Martin decision: Stuart Taylor, Jr., “Nice Guy Wins, Dumb Lawsuits to Follow”, National Journal/The Atlantic Online, June 5 (quotes our editor); John Leo, “Duffers in the Court”, Jewish World Review, June 6; David E. Bernstein (George Mason U.), “Casey Martin Ruling Is Par for the Course”, Wall Street Journal, May 30.
June 22-24 — Updates. Further developments in stories we’ve written about:
* In as belated and ungracious an apology as he could muster without sustaining further political damage, California AG Bill Lockyer now says he regrets his remark about locking Enron exec Ken Lay in a cell with tattooed “Spike” (June 1-3, 8-10) and doesn’t after all think “that prison rape is proper punishment for criminals” (“Lockyer Regrets ‘Crude Remark'”, L.A. Times, June 20).
* New York’s Rev. Al Sharpton, widely seen as wanting to clean up his affairs in preparation for running for office, has at last paid Steven Pagones the money he owes for defaming him in the Tawana Brawley case, thus ending a prolonged charade in which Sharpton claimed that the many tailored suits and other accouterments of his expensive lifestyle didn’t really belong to him and therefore couldn’t be seized to satisfy the debt (Dave Goldiner, “Rev. Al Pays Off Pagones in Brawley Slander Case”, New York Daily News, June 14; see Dec. 29, 2000).
* A California judge last month vacated an $88.5 million arbitration award of legal fees that would have been paid to Milberg Weiss and other politically connected law firms that successfully litigated a challenge to the state’s “smog impact fee” (see Dec. 5, 2000). The fee was supposed to remain “confidential” but leaked out anyway, resulting in a huge public outcry. (Statement, Dean Andal, member, Calif. Board of Equalization; Michael A. Glueck, “Sweetheart Deal Enriches Law Firm”, Orange County Register, Jan. 21, reprinted at Orange County CALA; Greg Turner, “State Gambles, Taxpayers Lose”, Cal-Tax Digest, February; “Taxpayers fleeced again: Lawyers’ bill for smog-fee suit should be challenged”, editorial, Sacramento Bee, Jan. 12; Kevin Livingston, “California Ups the Ante in Smog Fee Award Fracas”, Law.com, Dec. 15).
June 21 — “Catherine Crier Live” today. Our editor is scheduled to be a guest today on the Emmy award-winning journalist’s “Court TV” program, to discuss this website. (5 p.m. Eastern/Pacific).
June 21 — Annals of zero tolerance: bagpiper prom garb. In Holt, Mich., 17-year-old Jeremy Hix went to his school’s May senior prom “in his authentic bagpiper’s uniform, including a skandubh [skean dubh], a knife with a 3-inch blade. In keeping with Scottish tradition, Hix carried the knife in a sheath tucked into his sock.” Although he did not remove the knife from its sheath, a chaperone noticed it and reported him for weapons possession. Now Hix, “one year shy of graduation, is facing an expulsion that would effectively ban him from all Michigan public schools for the rest of his high school career.” Veteran teacher Bill Savage said the authorities are scared of not being punitive enough: “The school’s legal counsel is saying, ‘If we make an exception in this case, it will explode the litigation box wide open.'” (John Schneider, “Schneider: Legal Ploy”, Lansing State Journal, June 14) (& letter to the editor, July 6).
June 21 — Pregnant actress complains at being denied virgin role. In Great Britain, actress Bethany Halliday is filing a complaint with an employment tribunal against the famed D’Oyly Carte opera company, which taking note of her state of pregnancy declined to cast her in the role of a virginal teenager. In Gilbert & Sullivan’s “Pirates of Penzance“, the daughters of Major-General Stanley are supposed to have been raised in such delicacy and seclusion that they scream every time they see a man. The D’Oyly Carte producers noted that Ms. Halliday “would be at least six months pregnant at the time the show was due to open”, beyond which the show’s costumes call for tight Victorian corseting. Actors’ Equity is backing Ms. Halliday’s complaint, which may test the bounds of the widely noted “authenticity” exception to discrimination law, which allows an employer to take into account otherwise protected characteristics when they affect the believability of character portrayals. (“Pregnant singer ‘refused’ virgin role”, BBC, May 18; Art: Bab collection).
June 21 — Tobacco-fee tensions. A newly organized group in Maryland is calling for a boycott of baseball’s Baltimore Orioles until owner Peter Angelos retreats from his demand to be paid $1.1 billion for representing the state in the tobacco litigation. “‘We believe Mr. Angelos should be fairly compensated for his effort. However, as a matter of law, the $1.1 billion fee is totally outrageous,’ said Jeffrey C. Hooke, a Chevy Chase investment banker and co-founder of the organization called Project $1.1 Billion Recovery”. Earlier this month, “Maryland’s highest court found the lawyer’s argument that he [Angelos] is entitled to the full 25 percent [of the state’s $4.4-billion recovery] to be ‘completely without merit.'” (Lori Montgomery, “Taxpayers Call for Boycott Against Angelos, Orioles”, Washington Post, June 10). (Update Apr. 10, 2002: Angelos settles for $150 million). Wrangling continues over Texas tobacco fees as new AG John Cornyn seeks to escape the Texarkana court of federal judge David Folsom, who appears less than well disposed to Cornyn’s efforts to investigate the circumstances under which the politically connected Big Five trial lawyers hauled home a $3.3 billion fee (Brenda Sapino Jeffreys, “5th Circuit Weighs Dispute Between Texas AG and Plaintiffs’ Lawyers Over Big Tobacco Litigation”, Texas Lawyer, June 12; see Sept. 1, 2000). And the state of Florida, which has helped lead the way in escalating the level of rhetoric against tobacco companies, has quietly decided to resume investing state pension fund money in those very same companies (“Florida approves pension fund investments in tobacco stocks”, AP/FindLaw, June 20) (& letter to the editor, July 6).