September 9-10 — Mississippi doctors win a round. “[L]egislators passed new restrictions today [Friday] on lawsuits against doctors in Mississippi, the latest spasm in a national convulsion over sharply increasing medical malpractice insurance rates.” (Adam Nossiter, “Miss. Lawmakers Set Limits on Medical Lawsuits”, Washington Post, Sept. 7). “Mississippi’s legislature is the third in less than a year to be called into special session over the issue, an ‘extraordinary trend,’ said Cheye Calvo, an insurance specialist at the National Conference of State Legislatures.” The fate of the legislation remains uncertain, however. (Patrice Sawyer, “Plenty of talk, but no action”, Jackson Clarion-Ledger, Sept. 8).
It’s far too early for doctors to jubilate, anyway: if the measure makes it to into law, the trial lawyers will predictably commence efforts to convince the Mississippi Supreme Court to strike it down as unconstitutional, as they have gotten other state courts to do with many liability reforms of the past. (e.g. Ohio: Aug. 18, 1999). Some expect the re-election bid this fall of state supreme court justice Charles McRae, to serve as a kind of referendum on whether the court’s pro-plaintiff tilt has gone too far. McRae, a past president of the Mississippi Trial Lawyers Association, is the author of some of the court’s decisions most hostile to defendants. (Bobby Harrison, “McRae a lightning rod for business groups”, Daily Journal, Jul. 23; Jimmie E. Gates, Clarion-Ledger, Jul.29, Ben Bryant, Biloxi Sun-Herald, Aug. 15). (DURABLE LINK)
September 9-10 — Hiring apple pickers = racketeering. “A federal appellate court has revived a racketeering lawsuit filed by Washington state farm workers who claim apple growers and packers intentionally hired undocumented workers to depress wages. The suit says that Zirkle Fruit Co. and Matson Fruit Co., both based in Washington state, created an employment agency to recruit illegal immigrants, mainly from Mexico, knowing that many of the workers were providing false documentation. At the same time, the suit says, the companies rejected job candidates known to be legal aliens or U.S. residents.” Which naturally leads to the question: should those who knowingly hire undocumented gardeners, nannies and house painters be deemed racketeers as well? The pending suit demands monetary damages from the apple growers and packers, and is being pressed by superrich Seattle attorney Steve Berman, well known to readers of this column (Aug. 21, 1999; Oct. 16, 1999; Jan. 19, 2000; May 11, 2001). (“Racketeering suit vs. apple growers, packers is revived”, Seattle Post-Intelligencer, Sept. 6). (DURABLE LINK)
September 9-10 — Free legal services! (except when they aren’t). The Association of Trial Lawyers of America has derived great publicity mileage by saying it will help victims of last year’s terrorist attacks obtain legal representation for free, but it and its members have also worked quietly behind the scenes to defeat legislation that would in any way curb the amounts that lawyers could keep for themselves from 9/11 awards. “Senator [Charles] Schumer [D-N.Y.] is drafting legislation that would let attorneys collect between 8 and 12% of a family’s payout from the September 11th Victim Compensation Fund, a victims’ advocate said. The Schumer plan is a compromise between Senator [Don] Nickles [R-Okla.], who did not want lawyers to take any money from the fund, and the trial lawyers themselves, who want no limit on their contingency fees.” (Timothy Starks, “Schumer Pushes Fees”, New York Sun, Aug. 5). (DURABLE LINK)
September 9-10 — Ignominious wind-down to Norplant campaign. At one time, trial lawyers must have had high hopes that their campaign against the contraceptive Norplant, which is administered in the form of under-the-skin silicone arm implants, would bring down drugmaker Wyeth the way their breast implant campaign bankrupted silicone maker Dow Corning. The litigation dragged on for years and cannot have been encouraging to firms pursuing contraceptive research, but it now appears to be winding down with a whimper, reports Texas Lawyer. In an August 14 ruling, “a federal judge in Texas granted partial summary judgment to the makers of Norplant and dismissed the claims of most of the remaining 3,000 women, leaving only 10 plaintiffs to pursue their cases.” Earlier, a large class of plaintiffs “settled out of court for a payment of $1,500 each”, a paltry sum by the standards of what must originally have been expected. “Notably,” wrote U.S. District Judge Richard Schell, “in the three years since Defendants filed this motion for partial summary judgment, Plaintiffs have not produced a shred of evidence or expert testimony that supports an association between Norplant and” such conditions as polyarthralgia, fibromyalgia and rheumatoid arthritis. (Pamela Manson, “Federal Judge Dismisses Norplant Damage Claims”, Texas Lawyer, Aug. 27)(see Aug. 11 and Aug. 27, 1999). (DURABLE LINK)
September 6-8 — “Doctors hope fines will curb frivolous lawsuits”. Lawyers are seldom made to pay any tangible price when they wrongly accuse a doctor, but South Texas doctors are hoping District Judge Ronald M. Yeager of Corpus Christi will set a precedent by granting a motion for $50,000 sanctions against local attorney Thomas J. Henry for filing false claims against Dr. Steven Smith and Dr. Robert Low. “The case Henry originally brought to court alleged that the doctors had prescribed the drug Propulsid to Henry White, a patient at Northbay who eventually died of complications from a stroke. Propulsid is an acid reflux medicine that has been taken off the market. According to court documents, neither of the doctors had issued the prescription. Henry, who declined comment on the fines, filed a notice of appeal Friday. … Low said he will never forget the embarrassment the case caused and hopes the fines will deter similar suits in the future. … ‘It takes time away from your practice and these things can be emotionally devastating to a physician,” Low said. Attorney Henry is a high-profile local advertiser: “Many in the community know him by the prominent ad on the back of the local phonebook”. (Jesse Bogan, San Antonio Express-News, Aug. 5). (DURABLE LINK)
September 6-8 — Slippery slope on terrorism compensation. Just as skeptics predicted would happen, survivors of earlier terrorist attacks and outrages are looking at the generous payments forthcoming from the taxpayer-staked 9/11 compensation fund and asking: why shouldn’t we get retroactive compensation for our losses too? And so legislators are busily introducing bills to compensate victims of the Oklahoma City bombing, the first World Trade Center bombing, Pan Am Flight 103, the sailors on the U.S.S. Cole, and others. (Michael Freedman, “Compensatory Damages”, Forbes.com, Sept. 16)(reg). (DURABLE LINK)
September 6-8 — Update: government can be sued for not warning of Yellowstone thermal-pool dangers. “A Wyoming federal judge has refused to dismiss a lawsuit brought by a Utah teenager who was severely burned when he and two others jumped into a thermal pool in Yellowstone National Park. Assistant U.S. Attorney Thomas Roberts had asked the U.S. District Court in Cheyenne to reject Lance Buchi’s complaint, which alleges the federal government failed to adequately warn of dangers posed by thermal pools in the park.” (see Jun. 26, 2001) (“Judge won’t dismiss Yellowstone burn victim’s lawsuit”, AP/Billings Gazette, Aug. 30)
September 5 — “Disabled Entitled to Same Sight Line in Theaters”. Departing from decisions handed down by other courts, a federal judge in Albany, N.Y. “has held that a movie theater providing handicapped patrons with an unobstructed sight line to the screen has not necessarily complied with the Americans with Disabilities Act. Rather, U.S. District Judge David N. Hurd found, the law implicitly requires a qualitative element demanding an analysis into whether the lines of sight available to ambulatory and wheelchair customers are comparable.” Although Judge Hurd held that it might constitute an ADA violation for wheelchair-using patrons to be given less desirable viewing angles, he found that Hoyts Theaters had sufficiently complied with the mandate in the case at hand. (John Caher, New York Law Journal, Aug. 28). (DURABLE LINK)
September 5 — Missouri: a judge speaks out. Ralph Voss, recently retired from the Missouri bench, has launched a website that minces no words about what he sees as wrong with the local civil courts. “My story begins around 1985. By that time it was possible to see major inroads the plaintiffs’ lawyers were making in asserting control over the civil justice system. They exercised tremendous influence in the Missouri legislature, but also in the judiciary. Their influence came from their money and their money came in large part from huge and relatively easily-obtained victories in the courts of St. Louis and Kansas City. … The contingent fee has gotten so out of hand something needs to be done. I am told by one judge that 50 and 60 percent contingent fees in Kansas City are not uncommon. This same judge reports that the fee comes on top of charging the client for the expenses of depositions taken at 5-star resorts.” There’s much more, including critiques of forum-shopping, of lawyers who pocket big contingent fees on sure-thing insurance settlements, and of some fellow judges whom he names elsewhere on the site as (in his view) undeserving of re-election this November. (RalphVoss.com, “Opening Statement”, Aug. 16). (DURABLE LINK)
September 5 — A Gotham lawyer’s complaint. Outside the courthouse in Brooklyn, the New York Press‘s Johnny Dwyer transcribes the gripes of a local personal injury attorney who “only wants his first name used — Dan”. Not only are verdicts down and settlements harder to get in the formerly bounteous borough, but clients aren’t willing to accept the bad news. “Plaintiffs have a skewed view on what a case is worth. I’ve never seen a more obsessional group of people. The case becomes their whole life. And it’s the newer immigrants that are suing the most — at least in Brooklyn. …That’s become the new American dream.” (“Lawsuits: A Lawyer’s Dilemma”, New York Press, vol. 15, #36 (recent)). More: “Jane Galt” and her readers weigh in. (DURABLE LINK)
September 3-4 — By reader acclaim: “Airline sued for $5 million over lost cat”. “A couple sued Air Canada for $5 million, claiming the airline lost their tabby cat during a flight from Canada to California. … ‘It’s not about the money,’ [Andrew] Wysotski said.” (AP/CNN, Aug. 29). (DURABLE LINK)
September 3-4 — “Federal authorities say judge offered illegal payoff”. Pittsburgh: “In a meeting secretly taped by federal authorities, Allegheny County Common Pleas Judge Joseph A. Jaffe told a lawyer how he could use his judicial powers to pay back $13,000 in cash that the lawyer had given him in an envelope.” Judge Jaffe, who is presiding over thousands of asbestos cases, “said the attorney could file 26 motions in settled asbestos cases, and he would order insurance companies to pay the lawyer’s firm $500 per motion in legal fees, or $13,000.” He also said that by holding a mass settlement conference he could “put pressure on defendants to favorably settle the claims. …Jaffe evidently did not know that the lawyer, Joel Persky, was cooperating with federal investigators after receiving what he considered an improper request for money from the judge.” Persky’s firm, Goldberg, Persky, Jennings & White, represents thousands of asbestos complainants. Who says plaintiff’s attorneys don’t sometimes figure as heroes in these chronicles? (Marylynne Pitz, Pittsburgh Post-Gazette, Aug. 29). Update: Mar. 25-30, 2003. (DURABLE LINK)
September 3-4 — “Crime pays for teenage lout”. Australia: In a decision that “stunned the legal community and victim’s groups”, a “teenager who broke into a nightclub was yesterday awarded nearly $50,000 damages for injuries he received in an attack by the publican. Joshua Fox was a ‘grossly stupid, totally irresponsible drunken lout’, according to a court assessment. But a [New South Wales] judge said the force used against him was excessive. Mr. Fox’s mother was awarded $18,000 for nervous shock upon seeing her son’s injuries.” (Steve Gee and Patrick O’Neil, Melbourne Herald-Sun, Aug. 30). (DURABLE LINK)
September 3-4 — 2002’s least surprising headline. [Sen. John] “Edwards has been on a fundraising frenzy over the last three months, raising nearly $2 million in ‘soft money’ — the type of donation soon to be banned, with three-quarters of it coming from trial lawyers.” (Jim VandeHei, “Trial Lawyers Fund Edwards”, Washington Post, Sept. 3). (DURABLE LINK)
September 3-4 — A breast-cancer myth. For years many have held it as an article of faith that synthetic chemicals in the environment are an important contributor to American cancer rates, the best-known example being the supposedly inexplicably high rates of breast cancer occurring on New York’s Long Island. But as a new $8 million study from National Cancer Institute researchers concludes, science has not found evidence to document the thesis. (“Federal study shows no link between pollution and breast cancer”, AP/MedLine, Aug. 6; Gina Kolata, “Looking for the Link”, New York Times, Aug. 11; “Epidemic That Wasn’t”, Aug. 29)(both reg)). See Ronald Bailey, “Cluster Bomb”, Reason Online, Aug. 14. This weekend, in a perhaps surprising development, the New York Times‘s editorialists joined the chorus (“Breast Cancer Mythology on Long Island”, Aug. 31)(reg).
Who should be embarrassed by these developments? Well, for starters, Sen. Hillary Rodham Clinton (Margaret Costello, “Elmirans to testify about cancer”, Elmira (N.Y.) Star-Gazette, June 11, 2001); Ms. magazine (Sabrina McCormick, “Breast Cancer Activism”, Summer); activist groups like the Breast Cancer Fund and the Nader-orbit New York Public Interest Research Group (Stony Brook chapter). And perhaps more than any other well-known group, the Sierra Club, which notwithstanding its sometimes warm-huggy image has published spectacularly wrongheaded and irresponsible coverage of the issue (Sharon Batt & Liza Gross, “Cancer, Inc.”, Sierra Magazine, Sept./Oct. 1999). For similar myths about “cancer alley” in Louisiana, see Nov. 8, 2000. (DURABLE LINK)
September 20-22 — How sharper than a serpent’s tooth it is/To have a precociously musical child. “James Brown’s daughters have filed a federal lawsuit against the Godfather of Soul, seeking more than $1 million in back royalties and damages for 25 songs they say they co-wrote…. Even though they were children when the songs were written – 3 and 6 when ‘Get Up Offa That Thing’ was a hit in 1976 – Brown’s daughters helped write them, said their attorney, Gregory Reed.” (“Singer James Brown Sued by Daughters”, AP/Milwaukee Journal Sentinel, Sept. 18). (DURABLE LINK)
September 20-22 — “Patient pays price of suing over cold”. Salutary effects of loser-pays, cont’d: “A patient who claimed £227 damages from his doctor, insisting that she had given him her cold during an examination, was ordered to pay almost £1,000 in costs yesterday after his case was thrown out by a court. Trevor Perry, 47, sued Dr Helen Young for personal injury, stating that he went down with a sore throat, runny nose and a headache after a consultation with her when she had a cold.” (Stewart Payne, “Patient pays price of suing over cold”, Daily Telegraph (U.K.), Sept. 19). And don’t miss the very curious addendum to the case on the question of why Mr. Perry was observed running from the court with a jacket over his head (“The Broadsheets: Cold comfort”, Anorak, Sept. 19). (DURABLE LINK)
September 20-22 —Times on 9/11 fund. The New York Times editorially defends the federal 9/11 compensation fund from charges that its awards are inadequate in a way “especially prejudicial to high-income families”, who may be offered only a few million dollars of taxpayers’ money each. It is entirely legitimate, the paper believes, to seek to avoid “extravagant awards at the top”. We might add that if top-earning families want to feel secure in their living standards in case of disaster, the logical (and socially desirable) course is for them to make provision in advance through privately purchased insurance — which we suspect most of the higher-ups at places like Cantor Fitzgerald did in fact have in place. (“The Perils of Valuing Lives” (editorial), New York Times, Sept. 19). (DURABLE LINK)
September 18-19 — Claim: docs should have done more to help woman quit smoking and lose weight. “A Wilkes-Barre woman is suing several doctors at the Department of Veterans Affairs Medical Center, saying the physicians did not do enough to assist her in making life changes — including quitting smoking and losing weight — that might have prevented a debilitating heart attack she suffered.” Kathleen Ann McCormick’s suit “says the physicians knew she had multiple risk factors to develop heart disease” but dismissed her symptoms as “basically normal and non-life threatening” and failed to put her on aggressive anti-cholesterol medication, as well as failing to help her with the smoking and weight issues. (Terrie Morgan-Besecker, “Woman suing VA doctors”, Wilkes-Barre (Pa.) Times-Leader, Sept. 11). (DURABLE LINK)
September 18-19 — Voltaire spinning in grave. If you disagree with what someone says, but would defend to the death his right to say it, chances are you aren’t running things in today’s France. Prominent French author Michel Houllebecq (pronounced “Wellbeck”) went on trial this week for “inciting racial hatred” on the grounds that he had aimed contemptuous comments at Islam. The case, which evokes parallels with that of author Salman Rushdie, is “being brought by the largest mosques in Paris and Lyon, the National Federation of French Muslims (FNMN) and the World Islamic League. France’s Human Rights League has also joined them, saying that Mr Houellebecq’s comments amount to ‘Islamophobia'” (see Aug. 23-25) (Charles Bremner, “I attack … I insult”, The Times (London), Sept. 18; “French author denies racial hatred”, BBC, Sept. 17). More: Christopher Hitchens on the case (“The stupidest religion”, Free Inquiry, v. 21, #4). Update Oct. 25-27: Houellebecq acquitted. (DURABLE LINK)
September 18-19 — Canada: “Woman freezes, sues city, cabbie”. “A Winnipeg woman who nearly froze to death after a night of drinking is suing the city, emergency personnel and the taxi driver who dropped her at home.” Emergency workers left Kim Simon at her residence but “she was later found outside with her pants pulled down, her winter jacket open and a cut on her lip. The woman claims that emergency personnel and the taxi driver should have made sure Simon was safely inside her house before leaving.” (Canadian Press/Canada.com, Sept. 16). (DURABLE LINK)
September 18-19 — Mississippi: eyeing the exits. Washington Mutual, the giant lender and the nation’s largest thrift institution, “is in the process of suspending all its lending channels in the state of Mississippi due to litigation risk and other factors. ‘We are evaluating the litigation environment and business climate in the state,’ WaMu senior vice president and associate general counsel Jim Garner told MortgageWire. ‘That is why we are suspending loan originations.'” Last year a Mississippi jury hit one of the company’s subsidiaries with a $71 million verdict. (Origination News — will scroll off site’s front page soon). (DURABLE LINK)
September 18-19 — AVweb case and chatroom liability. Eugene Volokh (his site) comments regarding the litigation referenced below: “Incidentally, not supervising one’s chat room is *not* actionable, even if the chatters make libelous statements and you could have stepped in to stop them; that’s what 47 U.S.C. sec. 230 says, see also Zeran v. America Online (4th Cir.) (both available on Findlaw).” See also ChillingEffects.org, Mar. 8; summary of Zeran case, TechLawJournal. (DURABLE LINK)
September 16-17 — Free speech & web litigation: the theory…. Los Angeles Times columnist Norah Vincent, the target of a remarkably silly recent smear (summarized and refuted by, among others, Stuart Buck, Juan Non-Volokh and Megan McArdle) got so angry at her online attackers that she wondered aloud whether she should think of suing them for defamation. Our editor wrote in at her suggestion (Sept. 13) to offer some reasons why, no, she shouldn’t. (DURABLE LINK)
September 16-17 — Right to break workplace rules and then return. This summer the Ninth Circuit ruled that it was an unlawful violation of the Americans with Disabilities Act for a company to follow an otherwise neutral policy barring the rehire of employees who had been terminated (or resigned in lieu of termination) over violations of company rules. In the case at hand, an employee had resigned after testing positive for cocaine, had completed a rehabilitation program, and now wanted to return to the company. Although Hughes Missiles Systems’ rule did not bar the hiring of rehabilitated drug users as such, the court nonetheless ruled that “Hughes’ unwritten policy against rehiring former employees who were terminated for any violation of its misconduct rules, although not unlawful on its face, violates the ADA as applied to former drug addicts whose only work-related offense was testing positive because of their addiction. If Hernandez is in fact no longer using drugs and has been successfully rehabilitated, he may not be denied re-employment simply because of his past record of drug addiction.” (Hernandez v. Hughes Missiles Systems, No. 01-15512, June 11, 2002, write-up at Jackson Lewis site). Update Dec. 13, 2003: Supreme Court rules in favor of employer. (DURABLE LINK)
September 16-17 — Dave Barry on tobacco settlement, round III. Okay, maybe it’s easy to satirize (rounds I and II), but he still does it so well. “The underlying moral principle of these lawsuits was: ‘You are knowingly selling a product that kills tens of thousands of our citizens each year. We want a piece of that action!'” (“In War On Tobacco, money goes up in smoke”, Miami Herald, Sept. 15) (DURABLE LINK)
September 13-15 — Patriotic, or promotional? Mickey Kaus nominates this “Patriot Troll” and this “Twin Towers handbag” (appears as popup ad when link is clicked) as among the tackiest commercial tie-ins to arise from 9/11. We might also call to his attention this billboard from a personal injury law firm in Schenectady, New York (photographed by reader Steve Furlong) which isn’t going to win prizes for either taste or subtlety. (DURABLE LINK)
September 13-15 — “Epileptic ordered to pay £3,500 for contorted face”. “A man who suffers from epilepsy has been ordered to pay compensation to a student who was upset by his contorted face during a seizure. In a case described by an epilepsy charity as ‘like something you would see on the Ally McBeal show’, Edwin Young has been told to pay £3,500 to Yvonne Rennie for the mild post-traumatic stress that she suffered. Mrs Rennie sued after Mr Young suffered an epileptic fit while driving four years ago and crashed into her car at traffic lights in Perth.” In addition to awarding Mrs. Rennie £1,500 for slight personal injuries and £1,000 for a fear of driving that she had developed, the magistrate accepted that she had suffered emotional injuries from observing the contorted look on Mr. Young’s face during his fit, which made her think he was going to die. “Epilepsy Action Scotland described the case as ‘bizarre’.” (Auslan Cramb, Daily Telegraph (U.K.), Sept. 9).
Addendum: one of our less sympathetic readers calls to our attention this Sept. 13-dated press release and article from Epilepsy Action Scotland (EAS), describes it as proving that the above report is “not true”, and chides us for not referencing it in our original post. To begin with a minor housekeeping point, this reader is apparently unaware that items on this site dated “Sept. 13-15″ will in most instances have been posted in the final hours of Sept. 12, so that a fair bit of clairvoyance would be required to anticipate the contents of a press release issued the next day (even in Scotland, which is a few time zones ahead).
More substantively, although it may well be that other press reports did misstate the Rennie/Young case, it is by no means clear that EAS is questioning the accuracy of the Daily Telegraph report linked above. Both EAS and the Telegraph (and our excerpt) make clear that the overall award arose in the context of a car crash and drew on a number of factors. EAS is at pains to emphasize that the court did not rule that “watching a seizure in itself [emphasis added] provides grounds to sue for compensation” absent some other entitlement to compensation such as a physical injury — and of course it’s a familiar practice in compensation systems to let mental injury piggyback on physical injury but not stand alone as a claim. The one interviewee quoted in the Telegraph piece as wondering aloud whether a bystander’s distress at watching a person collapse might stand alone as a damage claim was the spokesman for EAS itself (“Does this mean…?”). This makes it less surprising that the organization would four days later make a point of reassuring the public that, no, it probably doesn’t mean that.
Does Epilepsy Action Scotland, as our reader seems to think, now therefore regard the Rennie/Young case as some kind of overblown urban legend that should never have gotten play in the papers, and regret that its spokesman had been so critical of the ruling before? Quite the contrary: it makes clear the extent to which it continues to be alarmed and upset at the case (“we have forcefully put across the points that this is a shocking case”), it has called for investigations and organized protests, and it “has offered its full support if [Mr. Young] decides to pursue the matter” on appeal. Nothing inaccurate in our post that we can see. (DURABLE LINK)
September 13-15 — We have competition! Or at least sorta-kinda competition, from Colorado humorist Randy Cassingham. But the more the merrier, say we. (DURABLE LINK)
September 12 — Personal responsibility roundup. New York attorney Samuel Hirsch, who made big headlines a few weeks ago by filing a lawsuit on behalf of an overweight man against fast-food chains, has now added another car to the train in the form of a suit on behalf of several obese teens who “say the restaurant chain used marketing practices such as toy and value meal promotions to entice its patrons to eat the food.” (No! Not value meals!) “Mr. Hirsch said his clients ate at McDonald’s almost every day for at least five years. One teenager, who is 5-foot-9-inches tall, now weighs 270 pounds; another, who is 5-foot-3-inches tall, now weighs 200. The parents of the teenagers, either unemployed or on disability, filed the lawsuit on behalf of their children.” Note to parents: those benefit checks will stretch further if you teach kids how to make sandwiches at home (Ellen Sorokin, “McDonald’s marketing cited for teens’ obesity”, Washington Times, Sept. 10). Director Tom Grey of the National Coalition Against Legalized Gambling, who has been beating the drums for years in hopes of making the wagering business the next tobacco, hopes governors and attorneys general will pile on in support of the latest lawsuit by a compulsive bettor claiming his losses were the casino’s fault for luring him in (Rod Smith, “Gambling foes hope federal lawsuit will lead casinos into tobacco industry’s fate”, Gaming Wire/Las Vegas Review-Journal, Sept. 10). The Wyoming Supreme Court has ruled that an employee who tried to commit suicide after being depressed over a work-related injury can collect workers’ compensation from his employer for the injuries inflicted by his attempt (Brierley v. Wyoming, Aug. 14). And the editorialists of Canada‘s National Post applaud Ontario judges’ refusal to follow the lead of many American courts in making party hosts legally responsible if their guests drive away drunk (“Blame drunks, not hosts” (editorial), Sept. 5). (DURABLE LINK)
September 12 — “9/11 aid bill contains giant bonus for trial lawyers”. “Sacramento — Saying that it was primarily a bill to help families of Sept. 11 victims, Gov. Gray Davis on Tuesday signed a sweeping change in California tort law backed by trial lawyers, some of his biggest contributors. In a bill signing ceremony, the Democratic governor focused on only four paragraphs of the seven-page bill that allows relatives of the terrorist attacks more time to file civil lawsuits. Davis did not mention that the bulk of the bill — which extends from one year to two the filing period for all personal injury or wrongful death lawsuits in California — is opposed by more than 80 companies and business groups. They say the measure will sharply increase their insurance and litigation costs.” (Greg Lucas and Lynda Gledhill, San Francisco Chronicle, Sept. 11). (DURABLE LINK)
September 12 — No joy in Mudville. “Saying America’s favorite pastime had become a ‘nuisance’ to a northwest Houston man, a Harris County jury awarded him more than $75,000 Tuesday. ‘I’m happy that 12 people were in full agreement,’ said plaintiff E.S. Armstrong after the verdict was read. Armstrong filed a lawsuit in December 2000 in state district court against Baseball U.S.A., claiming games played on the group’s fields adjacent to his home in the Spring Shadows subdivision are too noisy and the field lights too bright. The lawsuit also claimed that baseballs from the fields, near Sam Houston Tollway and Gessner, twice crashed through Armstrong’s bedroom window.” Baseball U.S.A., a nonprofit group, may appeal. (Dale Lezon, Houston Chronicle, Sept. 11). (DURABLE LINK)
September 11 — Never forgotten. For this site’s commentaries from a year ago, begin here with Sept. 12 items and then scroll upwards. (DURABLE LINK)
September 30 — Australia: “Blind, disabled should be able to fly”. “The physically and mentally disabled may no longer be barred from becoming pilots or air traffic controllers. Eyesight and other medical tests imposed on flight crew have been found to be in breach of anti-discrimination laws.” In the wake of the finding by the federal Attorney General’s department, lawyers for Australia’s Civil Aviation Safety Authority have urgently applied to the Human Rights and Equal Opportunity Commission to allow an exemption to the federal Sex and Disability Discrimination Acts to permit medical tests and standards for pilots, flight navigators and engineers and air traffic controllers. (Matthew Denholm, News Corp./Daily Telegraph (Australia), Sept. 27). Yes, this reads like parody, but we have a sinking feeling that it is not, since the same general issue has given rise to considerable litigation in the U.S.: see our July 1998 column and later articles on safety and disabled-rights law. (DURABLE LINK)
September 30 — “Black eye for zero tolerance”. A hearing officer has ruled in favor of Teresa Elenz, a Pensacola, Fla. honor student who says she found a bag of pills on school grounds, in the latest Pensacola-area incident to draw media attention to the harshness of zero tolerance policies. Besides nail clipper and paring knife cases, there was this: “In 1998, a 12-year-old student at Sims Middle School in Pace was expelled for possession of drugs because he briefly held a Ritalin pill. Robert Starkie held out his hand when a student on his bus asked him to take something. When he saw it was a pill, he threw it out the window.” Nationwide, about 80 percent of school districts are estimated to have zero tolerance policies. (Jenny LaCoste, Pensacola News Journal, Sept. 29; Bill Kaczor, “Pensacola honor students win zero tolerance drug ruling”, AP/Bradenton Herald, Sept. 27). (DURABLE LINK)
September 30 — George Will on litigation reform. He uses Mississippi as his jumping-off point, but his overall message is broader: “nowadays punitive damages are, as Justice Sandra Day O’Connor says, quoting a 9th U.S. Circuit opinion, ‘limited only by the ability of lawyers to string zeros together in drafting a complaint.’ … So remember the candidates who support tort reform when you vote on Nov. 5.” (Washington Post, Sept. 29) (DURABLE LINK)
September 27-29 — Judge overturns $1.3 billion tobacco fee award. Big development on the tobacco-fee front: “A New York judge threw out a $1.25 billion legal fee award to attorneys who represented California in a $206 billion settlement between 46 states and the tobacco industry, saying the amount was ‘irrational'”. The award was to the so-called Castano Group of lawyers, who didn’t actually represent California — the state’s own lawyers did that — and were in fact rivals, rather than allies, of the Scruggs-Moore team of lawyers who did manage to pull off the settlement. The Castano lawyers, however, repositioned themselves as somehow a catalyst for the national settlement and thus entitled to fees — the high point of this effort coming when they managed to obtain what was effectively a commercial endorsement from then-sitting President Bill Clinton (see Mar. 9, 2001).
Note that this was a different proceeding from the case involving the tobacco lawyers representing New York itself, discussed recently in this space, who are also finding their fees subject to unwelcome review (see Jul. 30-31). This time the courageous judge was Nicholas Figueroa of New York State Supreme Court. (Daniel Wise, “$1.3 Billion Tobacco Attorney Fee Overturned”, New York Law Journal, Sept. 27; William McQuillen, “Court Throws Out $1.25 Bln Award to California Tobacco Lawyers”, Bloomberg.com, Sept. 26). Update May 25, 2004: appeals court reverses Judge Figueroa and reinstates award. (DURABLE LINK)
September 27-29 — After our own heart. Regarding Kansas City Royals coach Tom Gamboa, who was set upon and beaten by two fans last week during a baseball game at Chicago’s Comiskey Park: “Gamboa has been contacted by several lawyers who told him he could get money from the White Sox, but the coach doesn’t plan legal action. ‘The fault is with the two people who did it,’ he said. ‘I’m not one who looks to place blame. It’s nobody’s fault but the two idiots who did it.'” (“Gamboa’s hearing impaired since attack”, AP/Sports Illustrated, Sept. 24). Update Sept. 21, 2003: not quite so much after our own heart, it turns out, AP reports that Gamboa has filed suit not only against attacker but also stadium security and drinks concessionaire. (DURABLE LINK)
September 27-29 — Fen-phen settlement abuses: the plot thickens. Lawyers for all three lead parties in the $3.75 billion fen-phen diet drug settlement — the settlement trust, the class action lead plaintiffs’ lawyers, and defendant American Home Products — are asking the federal judge in charge of the case to “order an ’emergency suspension’ of all claims processing, and to reconfigure the entire process so that all future claims of actual heart valve damage will be audited.” They say a group of plaintiffs’ lawyers, with assistance from hired doctor-experts, are engaged in “systematic abuse” of the settlement claims process and have set up what is effectively a “production line” that has resulted in gross overdiagnoses of highly compensable heart conditions in claimants. One of the hired doctors, they say, “has earned some $2.5 million during the past year reviewing 10,000 echocardiograms for a consortium of firms led by Petroff & Associates. She did all this while continuing to see up to 80 patients a week and still participating in some, if not all, of her extracurricular activities.” Money drained from the fund for exaggerated or nonexistent ailments, they note, is not available to compensate genuinely injured users of the compound. (Shannon P. Duffy, “Fen-Phen: Are Claims Exaggerated?”, The Legal Intelligencer, Sept. 26)(see Dec. 28, 2001 and Feb. 25, 2002). More: lawyes respond to allegations (“Plaintiffs’ Lawyers Strike Back in Fen-Phen Settlement Case”, Oct. 3). (DURABLE LINK)
September 27-29 — Sued over 18 cents. A collection agency went after Wendy Ehringer of Seattle with a lawsuit demanding the grand total of 18 cents — plus $311.26 in attorney’s fees and other charges. The court recognized litigation abuse when it saw it and applied the equivalent of sanctions — but now Ehringer’s lawyer is claiming to have put $7,600 worth of time into fighting the case, which is itself rather curious. (Maureen O’Hagan, “Suit over 18 cents redefines ‘small-claims’ court”, Seattle Times, Sept. 26). (DURABLE LINK)
September 25-26 — Skating first, instructions later. Edmonton, Canada: “An Alberta man who crashed on in-line skates before his instructor could teach him how to use them has won damages from the store that arranged the lessons and rented him the wheels. In a decision that expands the controversial concept of ‘duty of care,’ Justice Donald Lee of the Court of Queen’s Bench held Skier’s Sportshop of Edmonton partly liable for Robert Rozenhart’s injuries — even though Mr. Rozenhart was told to wait for his instructor before setting out.
“The judge agreed Mr. Rozenhart’s foray was ill-advised, but he found fault with a general reassurance store staff gave him that morning that in-line skating is ‘very similar’ to ice-skating. Mr. Rozenhart … and his daughter … were scheduled to meet the instructor at 10 a.m. in a nearby park, but store workers told him that his instructor was running 15 minutes late and asked him to wait. But Mr. Rozenhart struck out on his own, clad in a cycling helmet, knee-pads and wrist protectors. Only after he was coasting down a paved trail did he realize he did not know how to stop.” As he soon learned to his cost, in-line skates do not brake the same way ice skates do. Lawyers for the family-owned store plan to appeal. (Charlie Gillis, “In-line skates rental store blamed for injuries suffered by novice”, National Post, Sept. 20). On Sunday our editor discussed this and other personal responsibility cases on Peter Warren’s radio show, based at Vancouver’s CKNW and broadcast in many Canadian cities. (DURABLE LINK)
September 25-26 — Investigate, but gently. Sued if you do dept.: “For the first time since the state supreme court told corporate New Jersey to root out sexual harassers or risk huge damages, a company is to be tried on a charge that it ensnared and fired an innocent employee without a fair and thorough investigation. A Middlesex County judge ruled Aug. 30 that a supervisor who had a consensual sexual relationship with a co-worker can pursue a claim that the company violated a public-policy mandate by discharging him for harassment he never committed.” (Henry Gottlieb, “Too Good At Purging the Workplace?”, New Jersey Law Journal, Sept. 13). (DURABLE LINK)
September 25-26 — How much did you say that Indian legend was worth? Flexing their political muscle with casino revenues and major campaign contributions, “Native Americans are pushing for new laws that would give them what could amount to veto power over certain development projects (mining, housing, shopping malls, etc.) impacting what are considered historically sacred sites.” Such a bill has sailed through the California legislature and onto the desk of Gov. Gray Davis. A mining exec grouses that the Quechan Tribe “considers everything from Los Angeles to the Arizona border and up to Las Vegas sacred.” (Brad Knickerbocker, “More rights for sacred sites?”, Christian Science Monitor/Arizona Daily Sun, Sept. 4; “California Native Americans Want Law Preserving Some Land as Sacred”, FoxNews.com, Sept. 21). (DURABLE LINK)
September 25-26 —The blame for suicide. Two Connecticut teenagers commit suicide in separate incidents sixteen years apart, and in both cases parents sue police departments for failing to protect the youths from themselves. Showing that the cops messed up, however, is not enough; if the jury lacks sympathy for the parents, the case is still in trouble. (Colleen Van Tassell, “When teen suicide doesn’t pay”, New Haven Advocate, Aug. 8). (DURABLE LINK)
September 24 — Tour of the blogs. The medical weblogs have been abuzz with discussion of the malpractice crisis in recent days; see MedPundit for interesting items on whether any doctor in his or her right legal mind should be reading mammograms these days (Sept. 21); on the shamelessness with which trial lawyer apologists deny that there’s any connection between the sums paid out on malpractice claims and the insurance rates charged to doctors (Sept. 20); and on whether penicillin would have been adopted as quickly in today’s liability climate (Sept. 17). Plus much more from RangelMD (Sept. 18 and Sept. 19); MedRants (whole category); and The Bloviator (Sept. 20). Also see Sydney Smith (MedPundit), “Law and Orderlies”, TechCentralStation, Sept. 24.
Meanwhile, newly launched blog The Staffer comments on a lawsuit on behalf of four minority seniors in Massachusetts high schools challenging statewide achievement tests. (Sept. 19; see Ed Hayward, “MCAS mess: Students’ lawyers to sue state over controversial test”, Boston Herald, Sept. 19). And “Robert Musil”, normally a calm and collected sort, gets downright angry at the way some supporters of the federal Title IX sports gender-quota scheme airily dismiss the plight of male “walk-ons”, students who would like to participate in sports though they aren’t of starting-team caliber. (Sept. 22). (DURABLE LINK)
September 23 — “Greek net cafes face ruin”. Police acting under a controversial law banning all forms of computer games have closed down internet cafes around Greece, confiscating computers as evidence. “A judge in the city of Thessaloniki had earlier thrown out the first case brought under the gaming law but prosecutors have appealed against the decision and launched a new crackdown. … The Greek Government passed legislation in July outlawing all electronic or mechanical games in a bid to stamp out an illegal gambling epidemic … The bill has been widely criticised for failing to distinguish between [electronic slot machines, known in British English as “fruit machines”] and mainstream computer games such as Counter-Strike and Age of Empires.” (Daniel Howden, BBC, Sept. 20). The bill bans the playing of computer games in private as well as public places, and on electronic devices of any sort, such as personal organizers and cell phones.
MORE: Rupert Goodwins and Matt Loney, “In Greece, use a Game Boy, go to jail”, ZDNet (UK), Sept. 3; unverified English translation of the law; Nikos Kakayanis, Overclockers.com forum, Sept. 4; “Greeks fight computer game ban”, BBC, Sept. 5; Dan Farber, “Who’s gunning for Game Boy and Google?”, ZDNet, Sept. 5. (DURABLE LINK)
September 23 — “Doctors find no evidence of mold as a toxic disease”. Burgeoning litigation on stachybotris in homes has far outrun the available science, according to the Texas Medical Association’s Council on Scientific Affairs. “Mold can cause reactions in people with allergies and asthma [said allergist/immunologist Wes Stafford]. But there’s no evidence that it causes other health problems or aggravates other existing health conditions, the report said.” Some families have won multi-million-dollar lawsuits over alleged mold-related health problems, and mold claims are considered a key factor in skyrocketing homeowners’ insurance rates in Texas and other states. (Janet Elliott, Houston Chronicle, Sept. 21). And see Christopher Wanjek, “It’s Everywhere”, Washington Post, Sept. 17; RangelMD, Sept. 17 and earlier posts. (DURABLE LINK)
September 23 — Annals of zero tolerance: “No scissors allowed at ribbon-cutting ceremony at Pittsburgh airport”. After all, they’re weapons, right? Officials were reduced to tearing the ribbon. (AP/Canada.com, Sept. 20). (DURABLE LINK)