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September 2001 archives, part 1

by Walter Olson on September 10, 2001

September 10 – “Group Sues Starbucks Over Tea Ingredient”. A newly formed group in Berkeley, Calif. by the name of Council for Education and Research on Toxics charges that the Tazo Chai tea sold by the Seattle-based coffee chain contains some quantity of ephedrine, a stimulant found in the Chinese herb ephedra or ma huang whose use poses hazards to health. (”Starbucks sued in LA court over alleged tea additive”, AP/KING-5 Seattle, Sept. 8; “Group Sues Starbucks Over Tea Ingredient”, Channel 2000, Sept. 6). Starbucks says that while it does not comment on litigation, “Starbucks and Tazo believe it is important to confirm for our customers that ephedrine has never been used as an ingredient in Tazo’s Chai Tea or any other Tazo product”. Lawyers have recently been making a big business suing over alleged health effects of ephedra consumed as a dietary supplement: searching on terms like ephedra and ma huang results in a bountiful harvest of lawyer advertising and client-recruitment pages. Ephedra has long been used in herbal teas and nutritional supplements, sometimes in trace quantities, other times in high dosages sought by dieters and athletes deliberately for its medicinal effects, which are related to those of phenylpropanolamine (PPA), a stimulant long ubiquitous in over-the-counter remedies until pulled off the market last fall (see April 6).

“The only purpose of the suit is to get Starbucks to get the ephedrine out of the product, not to get any money,” claims attorney Raphael Metzger, who filed the suit. While CERT is previously unknown, the same is not true of attorney Metzger, based in Long Beach, who runs a large “toxic-tort” practice whose website is publicizing the Starbucks action (leads to complaint in long PDF document). “The constitutional right of Californians to pursue and obtain safety could be an untapped source of riches that plaintiffs’ attorneys should consider on behalf of their clients and the public,” Metzger wrote a while back in the San Francisco Daily Journal regarding the prospect of tort claims based on the California Constitution’s “inalienable rights” provision. (Civil Justice Association of California “Balance”, Q4 1997 — scroll to “Deep Pocket Dreaming” near bottom).

September 10 – Japan sued for $1 trillion in reparations. We only thought there was a postwar treaty settling all claims against the Japanese — law prof Anthony D’Amato of Northwestern U. claims to have found a loophole that would let him reopen the whole thing. “I think we’re being conservative,” he says of his $1 trillion monetary demand. “This isn’t the first unusual legal action by D’Amato, who specializes in international law,” reports the Chicago Tribune. “In 1999 he filed suit seeking unsuccessfully to halt U.S. bombing of the former Yugoslavia to prevent damage to churches, shrines, monasteries and sacred relics.” (Matt O’Connor, “Suit seeks $1 trillion from Japan for war”, Chicago Tribune, Sept. 6 (reg); complaint in PDF format; “Japan sued for $1 trillion in reparations”, UPI/InfoSpace, Sept. 6).

September 10 – Employment class actions: EEOC to the rescue. For trial lawyers pressing job bias cases, the key to getting a big employer to offer a jumbo-sized settlement is to get the case certified as a class action on behalf of minority or female workers as a group: “Once it’s certified, it’s difficult for an employer to suck it up and go to trial. The [financial] risk is too high,” says management-side attorney C. Geoffrey Weirich of the Atlanta office of Paul, Hastings, Janofsky & Walker. But if plaintiff’s lawyers are falling short on the certification issue they can get a second bite at the apple by persuading the federal Equal Employment Opportunity Commission to intervene in the case; the EEOC is held to looser standards in class representation. “[S]howing up to bail out a plaintiffs’ lawyer who ran off the road doesn’t seem like a proper use of the process”, according to Fred Alvarez, a former EEOC commissioner who now represents employers at Palo Alto, Calif.’s Wilson Sonsini. Plaintiff’s lawyers counter that intervention on behalf of groups of workers is an intended part of the agency’s function and occurs only occasionally, despite a 1996 Forbes article in which an official of the EEOC’s Chicago office endorsed class actions as offering the agency “a much bigger bang for the buck”. (Mike McKee, “Employment Bar at War Over EEOC Intervention in Workplace Complaints”, The Recorder, Aug. 30). Sample case: Matt Gove, “Harris Teeter sued by black employees”, Atlanta Business Chronicle, Sept. 7.

September 7-9 – Judges overturning fewer huge verdicts. The litigation lobby is always insisting that alarm about excessive damage awards is misplaced because judges can be relied on to reduce or overturn anything really out of line. But is that so? A new survey by the National Law Journal of 100 jury awards exceeding $1 million dating back to 1997 that came under review by trial and appellate courts found that “the rate of outright reversal has fallen, and the bar has been raised considerably on what judges find offensive. “Federal and state judges are accepting numbers that would have been rejected as excessive only a few years ago,” notes the NLJ. “Jury awards that ‘used to make you gag and choke are being upheld,’ says defense counsel Frank Daily of Milwaukee’s Quarles & Brady.” Personal injury awards were least likely to be reversed, while large awards won by businesses against other businesses fared somewhat less well after trial. Somehow we doubt the folks at ATLA are going to be ringing their friends in the press about this one (Margaret Cronin Fisk, “Hard to Shock”, “After the Jurors Go Home”, National Law Journal, Aug. 29).

September 7-9 – Managed care bill: Do as we say…. Notable fact: “the Patients’ Bill of Rights just passed by the House exempts the 9 million federal workers, retirees and dependents covered by the federal health plan, including Congressional employees. … Tellingly, the House bill also exempts the 41 million people insured through Medicaid and the more than 50 million covered through Medicare and other federal programs from the potentially expensive new mandates and protections.” Proponents claim the new scope for litigation won’t drive up costs — but they sure don’t act as if they believe that (Ira Carnahan, “Do As We Say …”, Forbes, Sept. 3) (see also Dec. 6, 1999). And: “Liberals are right: a patients’ bill of rights is just a baby step. But it’s a step in the wrong direction,” expanding access to pricey experimental treatments for the middle class while pushing more poorer persons down into the ranks of the uninsured. (Noam Scheiber, “Daily Express: Stand Still”, The New Republic Online, July 13).

September 7-9 – Mosh pit mayhem. The mosh pit down front at the rock concert is a great place to get yourself injured (but you probably knew that). And it’s an equally great place for briefcase-toting lawyers to descend afterward filing “personal injury lawsuits with promoters, producers, arenas and sometimes even the musicians themselves as defendants”. Concert promoters say part of the crowd is always eager to enter the mosh area despite the known risks, but one plaintiff’s lawyer dismisses such talk: “The guy who controls the microphone controls the crowd,” he says. Among rock groups that have reached confidential settlements after being sued in such cases is the frenetically anti-capitalist group Rage Against the Machine, which distributes Noam Chomsky tracts to its fans. (Robert Wiener, “Rock And Roll Lawsuits”, LexisOne, July 31; Anthony DeBarros, “Injuries surge to high levels”, USA Today, Aug. 8, 2000).

September 7-9 – Watch what you say about lawyers (part XI). Aviation trial lawyer Arthur Alan Wolk, after winning a record-breaking $480 million jury verdict against Cessna last month, came in for heated criticism from readers of AVweb and other general aviation enthusiast websites (see Aug. 24-26, Aug. 20-21). Now, reports AVweb, Wolk “has filed a lawsuit against AVweb, two of its editors and four subscribers. Wolk’s suit, filed in a Pennsylvania court, is critical of statements made on AVweb. The lawsuit seeks in excess of $100,000 in compensatory and punitive damages.” AVweb says it is evaluating the merits of the suit. (AVweb Newswire, Sept. 6 (scroll to “On the Fly”, near bottom of page)). Update Oct. 12-14 (more on suit). Further update Sept. 16-17, 2002: in July 2002 AVweb capitulated and published on its website an extensive apology to Wolk, along with an apology from one of the individually sued posters.

September 6 – Red-light cameras. A San Diego judge has dismissed 300 traffic tickets issued under a system that “snaps a photo of a red-light runner and mails a $271 citation to the registered owner of the vehicle,” $70 of which is kept by a former Lockheed Martin subsidiary that operates the enforcement system. Such systems have already spread to fifty cities; critics charge that errors are common and very difficult for the motorist to fight, and that the company running the computerized cameras has no financial incentive to reduce the rate of erroneously issued tickets — quite the contrary, since it collects a share of the ill-gotten gains. According to Rep. Dick Armey (R-Tex.), since red-light cameras became a major source of municipal revenue, many cities have significantly shortened the duration of yellow lights, a practice that profitably increases the number of violations for the cameras to catch but worsens the risk of traffic accidents themselves. It’s another wrinkle on the bad old practice of contingency-fee law enforcement — a sure recipe for injustice whether inflicted by public authorities, private contractors, or the two in combination. (”Judge Dismisses 300 Tickets Spawned by Red-Light Cameras, FoxNews.com, Sept. 5; Alex Roth, “Ex-worker says firm puts profits over safety; Man testifies that revenue is main purpose of red-light cameras at intersections”, San Diego Union-Tribune, July 6; Ray Huard and Alex Roth, “Doubt focuses on red-light cameras”, San Diego Union-Tribune, Aug. 17; RedLightLawyers.com; Eric Peters, “Rigging traffic lights hurts safety”, Detroit News, Aug. 12; OpinionJournal.com, “Big Brother’s Camera” (editorial), July 3) (see also Apr. 8-9, 2002).

September 6 – Judge Kent: another helping. A Philadelphia environmental litigator who asks to remain anonymous writes: “I love your stuff on Judge Kent [the Hon. Samuel Kent, federal judge, S.D. Texas; see Aug. 2, Aug. 3]. I have in my grubby lawyer hands a Judge Kent order dated June 7, 2001 (entered June 8, 2001) in Labor Force, Inc. v. Jacintoport Corp. & James McPherson, Civ. Action No. G-01-058 (opinion in PDF form courtesy Green Bag). In that opinion, the judge, among other things, calls the lawyer’s motion ‘obnoxiously ancient, boilerplate, [and] inane.’ He also refers to it as asinine. … No URL as yet, and I don’t think it’s on Westlaw.

“There are 38 uses of ‘asinine’ in the allfeds database in Westlaw. Judge Kent has the vast majority of them. Thank God I’m in PA and not Texas.” (Corrected Aug. 15, 2004: fixed earlier erroneous spelling of case name).

September 6 – Reparations talk. “Reparations, so popular a topic in black-radio discussions and in black newspapers, masquerade as a bonus check for being black. They are a Trojan horse full of devastating consequences for the future of black America. Reparations are a dangerous, evil idea that has to be derailed now before emotions and momentum take American race relations on a crash course”. (Juan Williams, “Get a Check? No, Thanks”, GQ/FrontPage, Sept.) East Indians, recently arrived, made themselves a power in small business and science “with organization and planning. They certainly didn’t do it with reparations checks. Blacks could have done it, if for years we hadn’t been following leaders whose motto should be ‘Ain’t Too Proud to Beg.’” (Gregory Kane, “Slavery reparations no fix for ‘community in disarray’”, Baltimore Sun, Aug. 18). “Europe has indeed played a unique role in the history of slavery. Slavery has been a universal feature of all societies throughout most of history. … What makes Europe unique is that it ended slavery.” (Andrew Kenny, “White is Right”, The Spectator (UK), Aug. 25). And the King of Senegal has weighed in, pointing out that the guilt for slavery as an institution in his part of Africa long antedated Europeans’ arrival (Ellen Knickmeyer, “Senegal’s leader blasts idea of slave reparations”, AP/Nando, Aug. 29) (see Aug. 22 and links from there).

September 5 – “New law would stem abuses in Disabilities Act”. H.R. 914, the ADA Notification Act, is a bill introduced by Rep. Mark Foley (R-Fla.); Sen. Daniel Inouye (D-Haw.) is sponsoring a Senate counterpart. It would give businesses 90 days to make renovations to their facilities demanded under the Americans with Disabilities Act, thus putting a crimp (it’s hoped) in the complaint mills by which lawyers file accessibility complaints by the dozen and then collect legal fees from target businesses (see Jan. 26, 2000). (Hector Florin, Miami Herald, Aug. 31).

Among South Florida lawyers who have filed many near-identical complaints, collecting thousands of dollars per defendant in legal fees on settlement, are William Tucker and Lawrence McGuinness. The Fort Lauderdale Sun-Sentinel notes, however, that “Tucker works out of a Fort Lauderdale building that has no disabled parking, a ramp steeper than the law allows, no landing and a door with a round doorknob. McGuinness’ office in Coral Gables has a curb with no ramp to the front door.” (Aug. 26). The same paper editorializes: “The Americans with Disabilities Act has been hijacked by trial lawyers who are using it to drum up legal fees.” (editorial, Aug. 28) (via OpinionJournal.com “Best of the Web“).

September 5 – New York’s crazy homeless program. It’s the result of litigation by advocacy groups that have been tying the city in courtroom knots for years (Heather Mac Donald, “Forbidden Facts”, New York Post, Aug. 21).

September 5 – Target: trade associations. Two appeals courts in Washington state have upheld a verdict holding the National Spa and Pool Institute liable for $6.6 million in damages to a man who broke his neck diving into a below-ground pool and sued, saying the institute’s voluntary safety standards for pool design should have been stricter. “To protect its assets, the pool group was forced to file for bankruptcy (it’s now out of it) and sell off its $3 million (net income) trade show. Until this decision virtually all courts declined to extend product liability to associations that develop voluntary safety standards in good faith.” (Matthew Swibel, “On the Docket: In Hot Water”, Forbes, July 9 (reg)).

September 3-4 – “Lawsuit demands AOL stop anti-Islamic chat”. “A Muslim subscriber sued America Online yesterday, claiming that anti-Islamic insults in AOL’s chat rooms violate his civil rights. If successful, the suit could force the world’s largest Internet company to strictly limit what 30 million members can say in 14,000 chat rooms. … The suit alleges that by not kicking out the disrupters, AOL violated its contract with users. But it also claims that under the 1964 Civil Rights Act, an AOL chat room is a ‘public accommodation,’ as is a restaurant or a hotel.” (Hiawatha Bray, Boston Globe, Aug. 31; AP/Yahoo, Aug. 30; Leef Smith, “Suit Says AOL Permits Insults”, Washington Post, Aug. 31; BBC; Robyn Weisman, “AOL Stung by Hate Speech Lawsuit”, NewsFactor.com, Aug. 31) (& see Dec. 5-6).

September 3-4 – Not discriminatory to kick sleeping worker’s chair. A Pittsburgh federal jury has decided that it did not constitute race or sex discrimination for a supervisor to kick the chair of a sleeping 911 emergency dispatcher to wake her up. The supervisor had said that he had jostled the chairs of other workers who snoozed on the job. (”911 Boss Cleared In Woman’s Kicking Lawsuit”, WTAE/Yahoo, Aug. 28). And Great Britain’s Institute of Management has said that privacy provisions of that country’s newly enacted Human Rights Act may restrict an employer’s right to call its employees at home. “‘An employer does not have the right to demand an employee’s telephone number unless it is specified in the contract that the employee has a duty to be available outside normal working hours,’ the institute said. … The body also said employees are under no obligation to divulge their addresses except for the purpose of receiving ‘routine correspondence’ in connection with their job, such as salary slips.” (”Plagued by calls from the boss at home? Sue them”, Yahoo/Reuters, Aug. 24).

September 3-4 – Batch of reader letters. On topics such as Miniver Cheevy’s prospective wrongful-birth lawsuit, the next Cessna, slavery reparations, should doctors turn away lawyers as patients?; a 2-cent class action refund, and zero tolerance meets domestic violence. Also: we recommend a new book.

Tagged as: Atlanta, Baltimore, bankruptcy, deep pocket, Detroit, domestic violence, Europe, Pennsylvania, Philadelphia, Pittsburgh, reparations, San Diego, Seattle, Washington state, zero tolerance

August 2001 archives, part 1

by Walter Olson on August 10, 2001

August 10-12 – Smile-flag lawsuit. Dr. Patricia Sabers, a dentist in Sarasota, Fla., sometimes flies a colorful pennant adorned with smiles outside her office, but now a rival dentist, Mitchell Strumpf, is suing her, saying the smile on her flag is a distinctive design that he registered as a service mark some years ago and which he thus has the exclusive right to display in the area. “Sabers said her generic-looking flag comes from a dental supply company catalog”. Sabers “should get her own service mark,” said Strumpf’s attorney, Michael Taaffe. “It’s not a laughing matter.” (Kelly Cramer, “Smile logo brings frowns”, Venice Herald-Tribune, July 31).

August 10-12 – Perils of extraterritorial law. Elite opinion in the U.S. has been relatively uncritical toward the idea of putting unpopular foreign leaders on trial outside their home country for outrages committed in their official capacities, but the policy could easily backfire against us given that there are an awful lot of people and factions around the world aggrieved at the United States and its leaders, observes the former chief of staff of the Senate Foreign Relations Committee (Pat M. Holt, “The push for human rights could hurt Americans”, Christian Science Monitor, Aug. 2). And agitation continues for a lawsuit against the U.S. in international courts to blame us for global warming and our failure to back stronger steps against it (Andrew Simms, “Global Warming’s Victims Could Take U.S. to Court”, International Herald Tribune, Aug. 7).

August 10-12 – School email pranksters to Leavenworth? Sen. Robert Torricelli (D-N.J.) recently introduced a bill called the School Website Protection Act of 2001 which would provide that anyone who “knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally affects or impairs without authorization a computer of an elementary school or secondary school or institution of higher education” will to go federal prison for up to 10 years.” Critics say the bill “is worded so vaguely it would turn commonplace activities into federal crimes to be investigated by the U.S. Secret Service.” “Sending one unsolicited e-mail affects a computer,” says Jim Dempsey, deputy director of the Center for Democracy and Technology. “If I send an e-mail to my student’s teacher and I didn’t have her permission, I violate the act.” (”Senator Targets School Hackers”, Declan McCullagh, Wired News, Aug. 1).

August 10-12 – New in Letters. The operator of an online pet store writes in to amplify our coverage of his recent suit against participants in a hobbyist listserv (more).

August 10-12 – U.K.: Labour government proposes curbs on malpractice awards. In Britain, the newly reelected Labour government of Tony Blair is proposing to limit skyrocketing awards in medical malpractice cases against the National Health Service. It wants to adopt “fixed tariffs of compensation”, i.e. prescheduled amounts for types of injury that can be looked up in tables in lieu of individualized argumentation. Also in the works is a shift to in-kind awards, such as the provision of future nursing services, instead of large lump sums. “The Government is keen to cut the amount paid in lawyers’ fees — which often exceed the damages awarded by the courts.”

“The tariff scheme is similar to one brought in by the previous Tory government — amid stiff Labour opposition — to cut the cost of criminal-injuries compensation. Mr Milburn [Health Secretary in the Blair Cabinet] is determined to take an axe to the spiralling cost to the health service of legal claims which he believes are being driven by profiteering lawyers. ‘We need to get the lawyers out of the operating theatres and off the backs of doctors — and get doctors out of the courts,’ said a Health Department aide. ‘The amount of litigation is rising and causing distress not only to NHS staff but also to patients who find themselves drawn into protracted and upsetting legal battles.’” The Bar Council, representing barristers, has already attacked the proposals. (Joe Murphy and Jenny Booth, “Labour blocks big payouts to victims of NHS blunders”, Sunday Telegraph (U.K.), July 8).

August 9 – Why we lose workplace privacy. Employers are monitoring their employees’ email, web surfing logs and hard drives more than ever these days, and the number one reason is to protect themselves from lawsuits. “Almost every workplace lawsuit today, especially a sexual harassment case, has an E-mail component,” says one expert. Plaintiffs’ lawyers subpoena hard drives in search of sexually oriented jokes or other material they can use to build a case, and rather than leave themselves vulnerable many companies conduct pre-emptive searches before disputes arise. (Dana Hawkins, “Lawsuits spur rise in employee monitoring”, U.S. News & World Report, Aug. 13).

August 9 – “Nudist burned while fire-walking files lawsuit”. “A nudist whose feet were burned while fire-walking has filed a lawsuit that accuses event organizers of leading participants to believe the stunt was safe.” The suit by Eli Tyler of El Cajon claims that the organizer “told participants the walk would be ‘a safe and spiritual experience’” but that seven participants were hospitalized with severe burns to their feet. The owner of the resort where the event took place, who is also named as a defendant in the action, “said participants were warned of the dangers and each agreed not to sue if they were injured.” (AP/Sacramento Bee, Aug. 8).

August 9 – Forbes on lead paint suits, cont’d. The “suits claim the companies misrepresented the paint as safe for use around children. Evidence? In 1920 National Lead told retailers to be nice to children because they might someday be customers. More: In 1930 the company distributed coloring books with poems and a cartoon drawing of its Dutch Boy character. Hard to imagine children having much influence on paint purchases.” (Michael Freedman, “Turning Lead Into Gold”, Forbes, May 14 (reg)).

August 7-8 – Victory in California. By a 5-1 margin, the California Supreme Court has ruled that crime victims cannot sue gun manufacturers over criminals’ misuse of their wares. In doing so it reinforces a trend so clear that some day it might even sink in to the folks over at the hyperlitigious Brady Campaign: “Every state high court and federal appellate court in the nation to consider such lawsuits has ruled that makers of legal, non-defective guns cannot be sued for their criminal misuse.” (”California Supreme Court Says Gunmaker Not Liable in Killing Spree”, AP/Fox News, Aug. 6).

August 7-8 – Wrong guy? Doesn’t seem to matter. Antonio Vargas, a bus driver in Northern California, has the same name as an Antonio Vargas who owes child support in San Bernardino County, in Southern California. He’s been trying to disentangle himself from attachments, process servers and other legalities aimed at the other Mr. Vargas, but with at best temporary success — and it’s been going on for twenty years, he says. An official with the desert county acknowledges that Mr. Vargas’s protestations of being the wrong guy were probably ignored for a while; so many men falsely use that excuse that why should they listen?, seems to be the official’s reasoning (Dan Evans, “It’s the wrong Vargas”, San Francisco Examiner, Aug. 2).

August 7-8 – Trial lawyers vs. OxyContin. The breakthrough pain medication, a timed-release opioid, has brought unprecedented relief to sufferers from advanced cancer and chronic disease but can result in addiction if improperly prescribed and is unusually easy to abuse on purpose: users crush the time-release capsules into a powder that yields a heroin-like high when snorted or injected. Now, amid public alarm about its emergence as “hillbilly heroin”, lawyers have filed billions of dollars in claims against the drug’s manufacturer, Purdue Pharma, distributor Abbott Labs, and other companies; they’re also advertising heavily for clients, and the state of West Virginia has stepped in with its own suit. Well-known Cincinnati tort lawyer Stanley Chesley, of breast-implant and hotel-fire fame, is “working with a group of lawyers from Ohio, Kentucky and West Virginia on similar cases.” If such litigation drives the drug off the market, a million or more legitimate users may be forced back to lives of agonizing pain, but that won’t be the lawyers’ problem, now, will it?

SOURCES: “Maker of OxyContin is hit with lawsuits”, AP/Baltimore Sun, July 27; Paul Tough, “The Alchemy of OxyContin: From Pain Relief to Drug Addiction”, New York Times Magazine, July 29 (reg); National Clearinghouse for Drug and Alcohol Information; Amanda York, “1st Ohioan named in Oxy suit”, Cincinnati Enquirer, July 10; Norah Vincent, “A New ‘Worst’ Drug Stirs Up the Snoops”, Los Angeles Times, July 19; Eric Chevlen, “A Bad Prescription from the DEA”, Weekly Standard, June 4; “W.Va. files first state suit against OxyContin firms”, AP/Charleston Daily Mail, June 12; Common Sense for Drug Policy; “Oxycontin Lawsuit Aims For Class-Action Status”, Roanoke Times, June 19; many more links (Google search on “Oxycontin + lawsuits”). If you click on “OxycontinInfoCenter.com“, a sponsored link on Google, you get “Oxycontin law info and lawyers who specialize in Oxycontin litigation” (see also July 25).

August 7-8 – Dotcom wreckage: sue ‘em all. Class action firms are suing not only investment banks and directors of failed dotcoms, but also executives and lenders. (Joanna Glasner, “Bankrupt? So What? Lawyers Ask”, Wired News, Aug. 6).

August 7-8 – “Judge orders parents to support 50-year-old son”. “In what could turn out to be a landmark decision, a Ventura County Superior Court judge ordered a Ventura couple to support their 50-year-old son indefinitely. Judge Melinda Johnson ruled two weeks ago that James and Bertha Culp of Ventura pay their son David Culp $3,500 a month for living expenses because he is incapable of supporting himself. Culp suffers from depression and bipolar disorder.” The son had practiced as an attorney for 19 yearss, but his practice fell apart and he went on disability. “Johnson based her ruling on state law, Family Code section 3910(a). It states that ‘the father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means,’” language which the judge called “unambiguous on its face”. Representatives of the National Alliance for the Mentally Ill called the decision a “bad judgment” that could “set a terrible precedent”. (Leslie Parrilla, Ventura County Star, Aug. 2).

August 6 – “Airline restricts children flying alone”. America West Airlines, changing its previous policy, has announced that it will no longer allow children of 11 years or less to fly alone on connecting (as opposed to nonstop) routes. Last month a young girl traveling from L.A. to Detroit was mistakenly allowed to board a connecting flight to Orlando, and it took nearly a day before she was reunited unharmed with her father. The father, Bill McDaniel, said he was thinking of hiring a lawyer and suing because the airline’s proffered free ticket and other compensation was not enough. So now all families, including those who believe their kids can handle the responsibility, stand to lose a freedom that saves them a lot of money as well as hassle (Channel 2000, Aug. 3; “Airline Puts Young Girl On Wrong Plane”, July 18).

August 6 – Big fish devour the little? After hobbyists on a listserv dealing with aquatic plants criticized one online pet store for allegedly “horrible” service and worse, its operator proceeded to sue various individual posters who he says defamed his company with such comments. His complaint asks for $15 million in compensatory and punitive damages. (Aquatic Plants Mailing List listserv; discussion; TheKrib.com; AquariaCentral forums; Usenet rec.aquaria.freshwater.plants) (see letter to the editor from Robert Novak, owner of PetsWarehouse.com, Aug. 10)(see extensive update on case May 22-23, 2002).

August 6 – When trial lawyers help redesign cars. Class action lawyers suing GM over its old C/K full-size pickup trucks are venturing onto what you might think is perilous ground by proposing a retrofit change to the vehicles’ design, with effects on performance that can’t be foreseen with complete certainty. Aren’t they worried that if the design turns out to malfunction in some way they’ll be held responsible for the consequences? (Well, no, they probably aren’t, since they’ll just find some way to blame the carmaker if that happens.) (Dick Thornburgh (former U.S. attorney general), “Designing Ambulances and Retrofitting Class Actions”, National Law Journal, July 18).

August 6 – Mailing list switch. If you’ve been on the list to receive our periodic announcements of what’s new on Overlawyered.com, you should by now have received an email from Topica.com, our new list-hosting service, inviting you to continue your subscription. To do so, just respond to their email. If you take no action you’ll automatically be dropped from the list as ListBot closes down. If you discarded or didn’t receive the Topica email, or would like to join the list for the first time (it’s free), just visit our mailing list page.

Another logistical note: we’ve now established a separate archives page that makes it easier to navigate Overlawyered.com’s archives without repeatedly having to download large pages. Just as we encourage you to bookmark our search page if you expect to perform frequent searches at our site, so we encourage you to bookmark the new archives page if you expect to browse our archives often.

August 3-5 – “Lawyers pay price for cruel hoaxes”. “Two Florida lawyers, whose paternity hoaxes last year cost families of four Alaska Airlines crash victims hundreds of thousands of dollars to rebut, finally will have to pay for a smidgen of the damage they inflicted.” Attorneys Robert Parks and Edgar Miller of Coral Gables, Fla. filed suits on behalf of four distinct sets of supposed secret Guatemalan heirs claimed to have been fathered by men who perished on the doomed flight without direct heirs (see Nov. 29, 2000, April 10, 2001). The suspiciously multiple nature of the filings was noticed only by chance, and the outraged families of the deceased had to spend hundreds of thousands of dollars to fend off the phony heirs’ claims. Now, Parks and Miller have agreed in a court-ordered mediation to pay $225,000 toward the families’ costs; Seattle lawyer Harold Fardal, who assisted their claims, will help split the cost, though it doesn’t begin to cover the expense the families faced in rebutting the claims. “Miller, by his own admission, has [represented survivor claims] as many as 100 times before, mostly in Central and South America.”

To investigate the phony claims, the surviving Clemetson and Ryan families sent investigators to Guatemala, where the supposed secret heirs lived. “But an investigator and a court-appointed guardian found that the birth records were forged. They found that the alleged grandmothers couldn’t keep the girls’ names straight, couldn’t say where their own daughters were born or how they died, couldn’t remember their own addresses and had no knowledge of the details alleged in the inheritance claims. In February, DNA tests proved the girls weren’t related to the men.” The families now say they may file a complaint with the Florida bar against Parks and Miller. (Candy Hatcher, “Lawyers pay price for cruel hoaxes”, Seattle Post-Intelligencer, Aug. 2; “Claims against two Flight 261 victims thrown out” (AP), Feb. 7; “Heirs claimed in Flight 261 twist” (AP), Nov. 22, 2000).

According to Seattle Post-Intelligencer columnist Candy Hatcher, Seattle attorney Mark Vohr, who later withdrew from the case, sent the same photograph of two little Guatemalan girls to two different families against whom he was pursuing secret-heir claims. And: “The woman who was providing temporary housing for the girls and their ‘grandmothers’ said she was working with a ‘lawyer’ in Florida who had helped her when both her husbands died in aviation disasters in Central America. The ‘lawyer’ turned out to be an investigator for the Florida lawyers.” (”False claims add to the agony of a tragedy”, Feb. 26). See also Richard Marosi, “Unexpected ‘Heirs’ of Flight 261″, L.A. Times, Jan. 31, no longer online at Times site but Googlecached. (DURABLE LINK)

August 3-5 – More from Judge Kent. Yesterday we linked to a scorching opinion by Judge Samuel Kent of the U.S. District Court for the Southern District of Texas, excoriating what he saw as incompetent pleadings by the lawyers on both sides of a maritime injury case. Reader Keith Rahl points out that this is just the most recent in a series of colorful opinions from Judge Kent’s pen, and directs our attention to two of them that have been reprinted at The Smoking Gun: one in which he orders a change of venue (to the District of Columbia) for a suit that lawyers for the government of Bolivia had filed in his Galveston courtroom against the tobacco industry; and this one turning down a defendant’s request to transfer a case to Houston due to claimed travel inconveniences.

August 3-5 – Dra-clonian. By a margin of 265 to 162, the U.S. House of Representives has voted “to approve the Human Cloning Prohibition Act of 2001. It would impose steep criminal and civil penalties on any individual violating the ban — even scientists who create cloned human cells solely for research purposes. The penalties make participation in human cloning in any way — from creating cloned human cells to patients receiving medicine based on such research done abroad — subject to a felony conviction that could bring a 10-year prison term and, if done for profit, civil penalties of more than $1 million.” (Megan Garvey, “House Approves Strict Ban on Human Cloning”, L.A. Times, Aug. 1; Kristen Philipkoski, “What Side Effects to a Clone Ban?” Wired News, Aug. 1) The best critique we’ve seen of the stampede to legislate has come from Virginia Postrel at her VPostrel.com (several entries in recent weeks; also check out her new commentary on firearms and journalists).

August 2 – Fee fights. They’re worse than catfights, aren’t they? Lawyers are snapping and swatting at each other over the fee spoils of several dubious but lucrative mass-tort cases. “Wallace Bennett, former associate dean at the University of Utah’s law school, is suing well-known lawyer Robert DeBry, claiming his old friend is cheating him out of money he earned while they worked together on national breast implant litigation. … Bennett was part of a legal team that included former U.S. Sen. Frank E. Moss and former Utah Supreme Court Justice D. Frank Wilkins. … [He] alleges breach of contract, intentional breach of fiduciary duty, conversion and fraudulent transfer of assets, and usurpation of business opportunities.” (Elizabeth Neff, “Former U. of U. Dean Sues Ex-Law Partner Over Fees”, June 28, Salt Lake Tribune, no longer online on Tribune site but Googlecached). The breast implant campaign was based on charges of systemic illness soon refuted in scientific studies, which didn’t stop trial lawyers from cashing in a $7 billion settlement.

Meanwhile: “Several of the plaintiffs’ lawyers in the massive Orthopedic Bone Screw case are putting the screws to each other as an ugly battle has erupted” over how a court divided $12 million in fees deriving from a $100 million settlement by Acromed Corp. Among the charges flying: fraud, contempt of court and abuse of process. (More on the bone screw litigation: Oct. 24, 2000.) (Shannon P. Duffy, “Disgruntled Lawyers Sue in Louisiana to Get Bigger Share of Bone Screw Fees”, The Legal Intelligencer, July 18). Last but certainly not least, anti-tobacco prof. Richard Daynard has followed through on his pledge to sue legal sultans Richard Scruggs and Ron Motley, claiming they’d promised to cut him in on a 5% contingency share of the maybe $3 billion they stand to haul in from the tobacco caper. “In his role as intellectual godfather of tobacco litigation, Daynard has been quoted in news articles hundreds of times — though always as a public health advocate, never as a private litigator.” (see April 21, 2000). Scruggs and Motley “said that if Daynard had indeed been a member of their legal team, his attacks on a settlement proposal favored by their clients, the states, would have been a serious ethical lapse.” (Myron Levin, “Tobacco Wars’ Huge Legal Fees Ignite New Fight”, Los Angeles Times, May 20, reprinted at NYCClash.com)

August 2 – “Baskin-Robbins lawsuit puts family in dis-flavor”. The Janze family of Alamo, Calif. is surprised to have gotten such a disrespectful reception in the press and on the Web for its lawsuit against the ice cream chain over a frozen confection strewn with fizzy “Pop Rocks”, a scoop of which they say sent their 5-year-old daughter Fifi to the hospital. “Shrek Swirl” is “one of several ogre-related treats tied to the animated movie ‘Shrek’.” Baskin-Robbins spokeswoman Debra Newton “said the Janzes’ complaint has been the only one reported to the company. ‘What we can tell you is that we have absolutely no indication that there are any safety concerns whatsoever with Shrek Swirl,’” Newton said. (Claire Booth, Knight-Ridder/Bergen County (N.J.) Record, July 19).

August 2 – “Ouch”, they explained. It’s every lawyer’s nightmare: to be the target of a judicial opinion as scathing as this one from federal judge Samuel Kent (S.D. Tex.). Neither side’s attorney gets out unscorched (Bradshaw v. Unity Marine, June 26, reprinted at National Review Online).

August 1 – Batch of reader letters. Latest assortment covers everything from exploding Pop-Tarts and special-ed “mainstreaming” to small claims reform, IOLTA and zero tolerance, and includes an explanation of an unusual photograph sent in by a reader.

August 1 – “Businesses bracing for flood of lawsuits after state court ruling”. “If you wear glasses, use a hearing aid or take medication for high blood pressure, you now may be legally disabled in California.” Sacramento’s homegrown version of disabled-rights law is even more sweeping than the federal Americans with Disabilities Act, and the divergence has been widened by a new state law that “significantly broadens the definition of disabled and throws open the courthouse doors to workers with a wide range of diagnosable ailments — from depression to chronic back pain.” Things got even dicier “when a state appeals court in Los Angeles ruled that the new law applies retroactively to potentially thousands of cases that arose before Jan. 1, when the law went into effect. Employers are bracing for an onslaught of claims, warning that the statute signals open season on business.” (Harriet Chiang, “Businesses bracing for flood of lawsuits after state court ruling”, San Francisco Chronicle, July 29; Mike McKee, “California Disability Rules Declared Retroactive: State Supreme Court May Have to Referee”, The Recorder, July 27).

Tagged as: Alaska, attorneys general, Baltimore, Cincinnati, Detroit, global warming, hospitals, Houston, Kentucky, lead paint, Louisiana, Netherlands, Ohio, Seattle, tobacco, Utah, West Virginia, zero tolerance

June 2001 archives, part 3

by Walter Olson on June 30, 2001

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 Poor wandering one! 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).

Tagged as: ACLU, arbitration, asbestos, Australia, Baltimore, bankruptcy, baseball, Bill Lockyer, Canada, Cleveland, Connecticut, governors, Houston, John Edwards, libel slander and defamation, Maryland, Michigan, Milberg Weiss, Mississippi, Netherlands, Ohio, Pennsylvania, Philadelphia, South Carolina, tobacco, trademarks, Utah, Vermont, Wisconsin, zero tolerance

June 2001 archives, part 1

by Walter Olson on June 10, 2001

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.

Tagged as: Arizona, asbestos, attorneys general, Baltimore, Bay Area, Bill Lockyer, Bill McClellan, Canada, Cleveland, contingent fee, Dallas, Detroit, governors, lead paint, Louisiana, Mississippi, Missouri, New Zealand, Philadelphia, Rhode Island, tobacco, Washington state

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April 2001 archives, part 3

by Walter Olson on April 30, 2001

April 30 – Michigan prisoner sues for recognition as Messiah. “A prisoner who claims he is God has sued the U.S. government, the state of Michigan, a book publishing company, a radio program and several others.” The case of inmate Chad De Koven, 43, reflects a more serious problem: in spite of reforms at both the federal and state level that have aimed at curbing unmeritorious suits by those behind bars, “Michigan Assistant Attorney General Leo Friedman heads a division of 19 lawyers who do nothing but handle prison litigation.” (Crystal Harmon, Bay City Times, March 28). Update May 14: judge dismisses case in 22-page opinion.

April 30 – “States Mull Suit Against Drug Companies”. Latest nominee for Next Tobacco designation are the folks who’ve allegedly charged too much for saving our lives: “In an action modeled on their 1998 class action lawsuit against the tobacco industry, at least six states are poised to go to court to try to force pharmaceutical companies to lower prescription prices … Attorneys general in Florida, Georgia, Maine, Massachusetts, Nevada and Texas are among those considering legal action, officials from some of the offices said. … A catalyst for state legal action is Florida businessman Zachary Bentley, who is going from state to state urging state attorneys general to sue drug manufacturers.” Bentley, himself a disgruntled competitor of the drug companies, says they overstate the average wholesale price of many drugs so as to boost what Medicare and Medicaid programs will pay for them. “Under whistleblower and federal False Claims laws, Bentley gets a portion of any settlement that results from what he’s revealed.” (Mary Guiden, Stateline.org, April 2)(more on False Claims Act: July 30).

April 30 – “Radio ad pulled after lawyers object”. Following protests from the state bar association, the Kentucky transportation department last month agreed to stop airing a traffic-safety radio ad based on a well-worn lawyer joke. The joke? “A car full of lawyers turned over right in front of old man Jenkins’ place. He comes out and buries them all. The sheriff asked old man Jenkins, ‘You sure they were all dead?’ ‘Well,’ says Jenkins. ‘Some said they weren’t. But you know how them lawyers lie.”’ The ad urged motorists to slow down so as not to meet a similar fate. (Jack Brammer, Lexington (Ky.) Herald-Leader, March 27).

April 27-29 – Victory in Albany. Unanimous, long-awaited, and devastating: by a 7-0 vote New York’s highest court yesterday rejected the most important elements of the much-hyped lawsuit Hamilton v. Accu-Tek, which seeks retroactively to tag gun manufacturers with liability for criminal misuse of their products. Answering two questions Cardozo would be proud certified to them by the federal Second Circuit, the jurists of the New York Court of Appeals declined to impose a new legal duty of gun manufacturers toward anyone who might fall victim to post-sale misuse of guns, and also ruled out the application of “market-share liability”, the adventurous theory by which plaintiff’s lawyers were attempting to impose liability on gunmakers without having to show that their guns figured in particular shootings. Both rulings stand as a reproof to activist federal judge Jack Weinstein, who had kept the Hamilton suit alive despite many indications that it had no grounding in existing law. (Joel Stashenko, “Court says gun manufacturers not liable”, AP/Albany Times-Union, April 26; “N.Y. Gun Ruling Could Have National Impact”, AP/FoxNews.com, April 27; John Caher, “New York Rules Gun Manufacturers Not Liable for Injuries”, New York Law Journal, April 27; read full opinion (PDF) — Firearms Litigation Clearinghouse site).

Other judges have lately thrown out of court municipal antigun suits filed on behalf of New Orleans and Miami (Susan Finch, “N.O. gun suit shot down”, New Orleans Times-Picayune, April 4; Susan R. Miller, “Appeals Court Halts Miami-Dade Suit Against Gun Industry”, Miami Daily Business Review, Feb. 15). And the Florida legislature has voted on largely partisan lines, with Democrats opposed, to join 26 other states in spelling out explicitly that cities, counties and other subdivisions of state government have no authority to file recoupment actions against gun makers and dealers over criminals’ misdeeds (”Florida Legislature Votes to Insulate Gunmakers”. Reuters/Yahoo, April 25; see also Charlotte Observer, April 26) (N.C. bill). Unfortunately, judges have recently allowed novel anti-gunmaker suits to proceed in Chicago and Atlanta; and as the gun-control-through-lawyering crowd knows too well, even a few eventual breakthroughs for their side may be enough to ruin this lawful industry (Todd Lighty and Robert Becker, “Gun victims’ lawsuit against firearms industry can move forward”, Chicago Tribune, Feb. 15).

MORE: Jeff Donn, “Maker of the .44 Magnum turns to golf putters and teddy bears”, AP/Minneapolis Star Tribune, April 14 (after the failure of its attempt to cut a deal with its legal tormentors, S&W struggles to stay afloat; one lawsuit had cost the company $5 million just to be dropped from the case); Tanya Metaksa, “Smith & Wesson’s Deal With the Devil”, FrontPage, April 12; Kris Axtman, “Gunmakers not about to run up white flag”, Christian Science Monitor, Dec. 15. Politicians have begun to move away from reflexive antigun sloganeering as election results have made clear that the supposed antigun consensus in American public opinion is no consensus at all (Michael S. Brown, “Gun Control: What Went Wrong?”, FrontPage, April 26).

April 27-29 – “Iowa Supreme Court says counselors liable for bad advice”. “A high school guidance counselor can be held responsible for giving wrong advice to a student that damages the student’s educational goals, the Iowa Supreme Court ruled Wednesday.” Katie, bar the door! (AP/CNN, April 26).

April 26 – “Legal action prolongs whiplash effects: experts”. Yet another study, this time from researchers at the University of Adelaide, Australia, finds that after auto accidents people experience more pain and quality-of-life deterioration if they are pursuing litigation (Australian Broadcasting Corporation, April 12) (see April 24, 2000). Also see Kevin Barraclough, “Does litigation make you ill?” British Medical Journal, March 31.

April 26 – Judge offers “court phobia” defense. Court-appointed special masters found that Los Angeles County Judge Patrick Murphy took more than 400 days of unjustified sick leave at taxpayer expense since 1996. They were not “impressed with what they called his ‘evolving defense,’ which began with claims that his political opponents were behind the accusations and ‘matured’ into a defense that he was disabled because of a ‘phobic reaction to judicial activities.’” (Sonia Giordani, “Los Angeles Judge’s ‘Court Phobia’ Defense Falls Flat”, The Recorder, April 12).

April 26 – The law must be enforced. In St. Cloud, Florida, 12-year-old Derrick Thompson tried to cross a street against the traffic and got hit by a truck, to onlookers’ horror. Dazed and bleeding, Derrick got another surprise minutes later when town police handed him a ticket for jaywalking. (Susan Jacobson, “Ticket seen as insult to injury”, Orlando Sentinel, April 13).

April 25 – While you were out: the carbonless-paper crusade. Some people are convinced their health has been damaged by ordinary workplace exposure to the chemicals present in carbonless paper, the material used in pressure-sensitive memo slips and similar office supplies. (”Carbonless Copy Paper — The Injury and Information Network”, carbonless.org). Although the product’s makers, such as Appleton Papers and the Mead Corporation, deny that there’s anything to be feared from working with receptionist’s pads or other multiple forms, a number of news reports have uncritically accepted the idea of a causal link between the paper and the ills complained of — to MSNBC’s Francesca Lyman, for example, “probably thousands” have fallen victim to the scourge, showing how “a seemingly benign product could leave a trail of damage”. (”The carbonless paper caper”, MSNBC, Jan. 17 (page now removed, but GoogleCached); see also Keith Mulvihill, “Sick of Paperwork? Some Office Workers Say It’s the Paper”, New York Times, Sept. 26, 1999 (reg); Tracy Davidson, WCAU-TV Philadelphia “Consumer Alert“). Inevitably, those who feel victimized are filing suits against companies that manufacture the product.

None of the activists have figured more prominently in news stories than Brenda Smith of Virginia Beach, Va., who filed suit in 1993 over a variety of symptoms including “headaches, sinus and allergy problems, skin and eye irritation, sore throats, respiratory infections, bronchitis,” and others, which she believes resulted from exposure to the chemicals in carbonless paper at her job. “The potential for litigation from worker’s compensation to product liability is huge,” she told The American Enterprise. However, the magazine also unearthed one extra little fact which the earlier press reports had neglected to mention: that “the health-afflicted Brenda Smith was addicted to cigarette smoking, which she admitted to TAE when we bothered to ask. Apparently some reporters didn’t think that fact advanced their story.” (”Scan”, The American Enterprise, April/May (scroll down to “Smoking Gun”)) See also Bob Van Voris, “Scents or Nonsense?”, National Law Journal, Nov. 6, 2000. NIOSH review (PDF — very long)(& see letter to the editor, May 18).

April 25 – Value of being able to endure parody without calling in lawyers: priceless. When MasterCard sent its lawyers to do a cease and desist routine on rec.humor.funny over a tasteless parody of its “Priceless” ad campaign, list founder Brad Templeton posted this tart riposte on NetFunny.com (April).

April 24 – Put the blame on games. The lawyer for survivors of a murdered Columbine teacher has sued 25 media companies, mostly makers and distributors of video games whose violence he says incited the perpetrators of the crime. Attorney John DeCamp claims to be “100 percent on the side of the First Amendment” when he isn’t filing actions like this, and equally predictably says it’s not really about the money, which isn’t keeping him from demanding that the defendants fork over $5 billion-with-a-”b”. (Kevin Simpson, “Slain teacher’s family launches suit aimed at media violence”, Denver Post, April 21). Update Mar. 6, 2002: judge dismisses case.

April 24 – Pennsylvania MDs drop work today. “Hundreds of physicians from Southeastern Pennsylvania plan to shut down their offices and leave their hospital posts [Tuesday] to go to Harrisburg to insist that lawmakers enact insurance-tort reforms and give them relief from soaring malpractice-insurance premiums. … According to the Pennsylvania Medical Society, obstetricians in the Philadelphia region pay an average of $84,000 yearly in malpractice insurance, while the same doctors in New Jersey pay about $58,000, and in Delaware, $52,000. Neurosurgeons pay $111,000 for coverage in Philadelphia. If their practices were in New Jersey, the rate would be about $75,000.” (see Jan. 24-25). Timothy Schollenberger, president of the state trial lawyers’ association and evidently a man given to bold denials, says the protest is misplaced: “tort law is not a significant factor in making [malpractice] premiums rise or fall”. Kind of like an oil sheik denying that OPEC crude price hikes have anything to do with the cost of gas at the pump, isn’t it? (Ovetta Wiggins, “Doctors to protest premium increases”, Philadelphia Inquirer, April 23).

April 24 – Bush’s environmental centrism. The press has decided to make President Bush’s supposed anti-environmentalism the story du jour, but in fact “on almost every environmental issue, Bush has upheld the Clinton-Gore position.” (Gregg Easterbrook, “Health Nut”, The New Republic, April 30).

Among Bush proposals to meet with support from many centrists and Democrats is the one for a year-long moratorium on pressure groups’ use of endangered-species lawsuits to drive the agenda of the Fish and Wildlife Service; see Bruce Babbitt, “Bush Isn’t All Wrong About the Endangered Species Act,” New York Times, April 15 (reg); Michael Grunwald, “Bush Seeks To Curb Endangered Species Suits”, Washington Post, April 12 (”The litigation explosion has been so bad, we couldn’t even list species that were going over the edge,” said Jamie Rappaport Clark, who directed the service under Clinton. “We asked the courts to let us set our own priorities, but they wouldn’t budge.”)(see Dec. 4, 2000).

April 24 – Washington Post editorial on cellphone suit. We’ve appended highlights from yesterday’s refreshingly blunt Post editorial (”More Dumb Lawsuits”) to the item below on the Angelos onslaught against mobile telephony. Is it too much to hope that the New York Times or L.A. Times will someday start being even half as editorially sensible about litigation issues as the Post is?

April 23 – Sorry, wrong number. As expected, Baltimore tort tycoon Peter Angelos filed suit against 25 defendants including Nokia, Motorola, Ericsson, Verizon, Sprint and Nextel accusing them all of concealing the brain-frying horrors of cellular telephone use. “The suits do not claim that anyone has actually suffered an illness.” (Peter S. Goodman, “Angelos Suits Allege Cellular-Phone Danger”, WashTech.com/ Washington Post, April 19). In an editorial bluntly titled “More Dumb Lawsuits”, the Washington Post declares, “There is now a new way to satisfy the bemused foreigner who asks why a nation so proudly founded upon the rule of law is marked by such contempt for lawyers. Just tell the foreigner about the litigation against cell-phone makers that Peter Angelos began on Thursday.” Moreover, Angelos is demanding a remedy (free headsets) that “makes no sense … Mr. Angelos is seeking to replace a situation in which consumers are free to buy headsets if they choose with one in which they indirectly are forced to pay for them — and to pay Mr. Angelos’s fees into the bargain.” (April 23). Update Oct. 1-2, 2002: court dismisses case.

April 23 – Seventh Circuit rebukes EPA. A U.S. Court of Appeals has rebuked the Environmental Protection Agency, dismissing the Superfund suit in which the agency sought permission to enter and dig up the 16-acre property of John Tarkowski, a disabled and indigent building contractor in Wauconda, Ill. Tarkowski’s habit of accumulating surplus materials, from which he has constructed his house, has annoyed many of his upscale neighbors, but repeated investigations have failed to find any serious contamination on his property. Rejecting the government’s arguments, the appeals court held that EPA “sought a blank check from the court. It sought authorization to go onto Tarkowski’s property and destroy the value of the property regardless how trivial the contamination that its tests disclosed.” And: “In effect, the agency is claiming the authority to conduct warrantless searches and seizures, of a particularly destructive sort, on residential property, despite the absence of any exigent circumstances. It is unlikely, even apart from constitutional considerations, that Congress intended to confer such authority on the EPA.” (”U.S. Court of Appeals Dismisses EPA Suit Threatening to Destroy Elderly Wauconda Man’s Property”, press release from Mayer, Brown & Platt (whose Mark Ter Molen represented Tarkowski pro bono), Yahoo Finance/Business Wire, April 20).

April 23 – If I can’t dance, you can keep your social conservatism. The town of Pound in Virginia’s coal-mining western corner has an ordinance on the books that bans public dancing without a permit. Bill Elam is defying the law by operating his Golden Pine nightclub, while local clergy hope the town sticks to its guns: “I can never see a time when dancing can be approved of, especially with people who are not married,” said one. (”Virginia town outlaws dancing”, Nando Times, April 16).

Tagged as: Atlanta, attorneys general, Australia, Baltimore, Delaware, Denver, France, hospitals, Iowa, Jack Weinstein, Kentucky, Massachusetts, Michigan, New Jersey, obstetric, Pennsylvania, Philadelphia, pro bono, Superfund, The Litigation Explosion, tobacco

April 2001 archives, part 2

by Walter Olson on April 20, 2001

April 20-22 – Quite an ankle sprain. Michele Nations, 26, who sprained her ankle five years ago when she tripped into a hole at a municipal park in Tucson, has now been awarded $450,000 by a local jury. Nations’ attorney “says the case hinged on the city’s responsibility to post adequate warning about burrowing animals [such as squirrels and gophers] and to provide a safe alternative to dodging holes and caved-in tunnels.” An attorney for the city differs, and calls the outcome astonishing: “You would think in a park — in a natural space — people should have to watch where they’re going.” (April 19: Maureen O’Connell, “Gopher hole may cost city $450K”, Arizona Daily Star; “Jury awards Tucson woman who stepped into hole at a park”, AP/Arizona Republic). (DURABLE LINK)

April 20-22 – Thank you, Your Honor. The May Brill’s Content has a cover story (teaser only online) entitled “Human Portals: How people with an obsession — and a website — are upstaging big media”. It tells how weblogs, link-rich sites regularly updated and often zeroing in on a specialized theme, are the new Big Thing in online media; typically “curated by one person”, according to editor in chief David Kuhn, they “could teach big media portals a lot about engaging their audience”. Happy to read all this, we were particularly pleased to turn to the sidebar feature in which the magazine surveys a group of public luminaries about their favorite websites, which range from eBay (Nora Ephron) to 10KWizard.com (Gretchen Morgenson). And here’s Alex Kozinski, distinguished federal judge on the Ninth Circuit U.S. Court of Appeals, on his favorite: “Overlawyered (overlawyered.com) provides pointers to legal-system horror stories: the accused rapist who pockets disability checks for his ’sexual compulsion’; the drunk who climbs a voltage tower and sues the utility company when he gets injured; the guy who murders his mom and sues his shrinks for not stopping him. The site is run by Walter Olson, who likes nothing better than reporting on legal overkill, and he’s compiled serious research tools for anyone interested in trends and abuses within the civil litigation system.” Thank you, Your Honor! (DURABLE LINK)

April 20-22 – Comparable worth in Maine. Despite widespread criticism of the idea from economists and others, Maine has enacted new rules opening private employers to a serious threat of legal action if they pay less to a worker of one gender than to a worker of the opposite gender “for comparable work on jobs with comparable requirements related to skill, effort and responsibility”. Some other states have had “comparable worth” or “pay equity” laws on the books, but Maine is the first to enact regulations giving such laws serious teeth. “We won”, said an official with the state AFL-CIO. “The business community has not awakened to the fact that this is going to cost them.” Disagreements are all but inevitable as to whether (say) secretaries’ work should be regarded as just as valuable as that of (say) truck drivers, and the Maine law will allow lawyers to march into such controversies with class action suits for unlimited damages — won’t that be fun? The state chamber of commerce did not oppose the enactment. (”Equal pay advocates tout new state rules”, AP/Bangor Daily News, April 4; “Maine Becomes First State Requiring Pay Equity”, Women’s ENews, April 3 (via Freedom News Daily); Maine Equal Justice Partners, 2000 Docket Report (scroll down to “Pay Equity”)).

SEE ALSO May 17, 2000; Diana Furchtgott-Roth, “Suicide Mission: The Union Push for Comporable Worth”, Capital Research Center Labor Watch, Dec. 1999; Lawrence W. Reed, “Comparable Worth or Incomparably Worthless?”, Mackinac Center, Sept. 6, 1994. The late Clarence Pendleton Jr., chairman of the U.S. Civil Rights Commission, called comparable worth “the looniest idea since Looney Tunes came on the screen” (Simpson’s Contemporary Quotations #519). (DURABLE LINK)

April 20-22 – “Lie-tery winners”. All sorts of basically decent people, from cops to grandmothers, would never think of shoplifting or forging checks but do seem to think it’s okay to lie in lawsuits. “Just ask anyone who has taken more than a handful of depositions or cross-examined witnesses at trial — especially witnesses in tort cases. … the oath has become virtually meaningless,” writes Kirkland & Ellis partner Michael Jones (”Lie-tery Winners”, National Law Journal, March 22).

April 18-19 – Mistletoe dangerous even when absent. LeRoy Crawford says his female boss at the New York Stock Exchange behaved seductively and made remarks such as “if there were mistletoe, I would give you a kiss,” when giving him a Christmas bottle of cologne. Things went from bad to worse, and he now wants $1 million in compensatory damages and $1 million for “special damages as a result of physical and mental injury”. (Peter Noel, “Sex on the floor”, Village Voice, April 11-17).

April 18-19 – Randomness of case assignments questioned. San Francisco assigns cases for pre-trial motions to one of two judges, and it seemed that the plaintiff’s firm of Wartnick, Chaber, Harowitz & Tigerman kept getting lucky by drawing the more favorable judge to hear its asbestos cases. Lucky, indeed: over the past two years, 94 percent of the firm’s cases were assigned even numbers, instead of the odd numbers that would have sent the cases to the other judge. (Dennis J. Opatrny, “Playing the Numbers”, The Recorder, April 9).

April 18-19 – “Guests sue inn for overbooking”. When five Massachusetts couples arrived at Vermont’s romantic Woodstock Inn for an investment club weekend last April, they found the inn had inadvertently overbooked its rooms, and three of the couples had to stay at a local B&B. The inn proprietors were terribly apologetic and treated all five couples to the weekend’s lodging for free, as well as giving them a free dinner. Nonetheless, four of the couples are suing for a sum “substantially in excess of $25,000″ in a Boston court. (AP/Boston Globe, April 17).

April 18-19 – Tempest in an arsenic-laced teacup? President Bush deserves credit for standing up to demagogues by pulling back this bad regulation: Steve Chapman, “Who’s really poisoning our drinking water?”, Chicago Tribune, April 12; George Will, “The costs of moral exhibitionism”, Washington Post, April 15; Jason K. Burnett and Robert W. Hahn, Brookings/AEI Joint Center study, “EPA’s Arsenic Rule: The Benefits of the Standard Do Not Justify the Costs”, abstract, Jan. 2001; Mercatus Center (George Mason U.) Public Interest Comment series, Sept. 19, 2000; Michael Kinsley, “Bush is right on arsenic. Darn!”, Washington Post, April 13; Michael Y. Park, “Study: Arsenic Rule Would Have Increased Deaths”, FoxNews.com, April 17; Nick Schulz, “Poisoner-in-Chief Is Saving Lives”, American Spectator Online, April 17; Diane Rehm show transcript (National Public Radio), March 28.

April 17 – Reparations: take a number. National Journal columnist Stuart Taylor Jr. traces the link between demands for compensation for century-old evils such as slavery and colonization and legal battles over liability for decades-ago sales of products like lead paint and asbestos (”Paying Reparations for Ancient Wrongs Is Not Right”, The Atlantic/National Journal, April 11; our take, Reason, Nov. 2000). The group of lawyers mapping out slavery-reparations suits are scheduled to huddle on strategy today in Washington, and say they plan to name businesses as well as the U.S. government as defendants (Jamal E. Watson, “Lawyers plan suit for slavery reparations”, Boston Globe, April 13). The conservative magazine Insight has given uncritically positive coverage to demands for compensation over Japan’s World War II mistreatment of American servicemen, despite the clear laying to rest of such claims by postwar treaty. You’d think victims of the crimes of communism over its long reign would be even better placed to score positive ink in the conservative press, but we seem to hear little about them — not that we would want to load up the reparations bandwagon even further, you understand (Stephen Goode, “New book documents Japanese exploitation”, Insight, undated).

April 17 – A Pulitzer for Dorothy Rabinowitz. The Wall Street Journal editorialist, whose searing commentaries on dubious child-abuse prosecutions have helped expose some of the most glaring injustices to flow from sentimentalism and credulity in our legal system, snags one of this year’s Pulitzer Prizes for her commentaries on American society and culture (Yahoo Full Coverage — Pulitzers). OpinionJournal.com keeps an archive of her media criticism; her articles on abusive prosecution, when online at all, are found at far-flung corners of the web (”A Darkness in Massachusetts” -I-, -II-, -III- (RickRoss.com); more columns on Amirault case; “Through the Darkness” (the Grant Snowden case, forever linked with the name of Janet Reno) (DennisPrager.net); Wenatchee case -I-, -II-).

April 16 – “Woman settles hot pickle lawsuit with McDonald’s”. Or at least its local franchisee: “A woman who claimed she was permanently scarred by a hot McDonald’s hamburger pickle has settled her lawsuit against the restaurant chain. MAR Inc., which does business as McDonald’s in Knoxville, admitted no wrongdoing in the agreement signed by a judge Thursday. Other details of the settlement are to remain confidential. ” (see Oct. 10, 2000) (AP/CNN, April 13).

April 16 – New batch of reader letters. Our correspondents tell why the law makes it perilous to hire a home renovation contractor in New York, ask about buying T-shirts from us, wonder whether Indian-derived place names such as Wichita and Massachusetts are next up for abolition, lament American law’s resistance to the obvious fairness of the loser-pays principle, and hail a Supreme Court decision upholding employment arbitration.

April 16 – Big numbers. It is a truth universally acknowledged that if the injuries resulting from a transportation accident are sufficiently severe, a wealthy business must have been at fault. Teledyne Continental Motors of Mobile, Ala. has agreed to pay $27 million to settle a suit on behalf of survivors of five skydivers killed in the crash of a Cessna, though its attorney said the company’s oil tube design does not cause engine failure as the plaintiffs alleged (Joe Lambe, “$27 Million Settlement in Skydiving Plane Crash”, DropZone.com, March 16; “Poor Preflight Probably Killed Skydivers: NTSB”, Aero-News.Net, June 29, 2000). An Indiana appellate court has upheld a $55 million jury verdict against the Kroger Co. over a truck accident at a company terminal, rejecting the company’s contention that the award was excessive and in conflict with workers’ compensation laws (the injured man, a truck driver, worked for a wholly owned subsidiary of the large grocery chain). (Margaret Cronin Fisk, “Finding No Direct Employment Relationship, Indiana Appellate Court Upholds PI Award”, National Law Journal, March 28). A Los Angeles jury has just voted $55 million against General Tire, a unit of Germany’s Continental Gummi-Werke, over a “tread separation” accident (if you thought those were unique to Firestone, think again). (Myron Levin, Los Angeles Times, April 14; “Jury orders tire maker to pay $55 million”, AP/CNN, April 14). Among the plaintiff’s lawyers in the case was Brian Panish, famed for his 1999 feat in getting another L. A. jury to award $4.9 billion against GM, later reduced to $1.2 billion. And another well-known maker of replacement tires, Cooper Tire, got hammered the same week for $10 million in El Paso (”Jury OKs $10M Award Vs. Cooper Tire”, AP/FindLaw, April 13). Also see Margaret Cronin Fisk, “Two Tire Companies Punctured by Juries”, National Law Journal, April 24, with more details about both tire cases.

April 13-15 – It was the bar’s fault. “A 20-year-old Jamison man, who was shot last summer, says a Warminster bar is partially to blame for the incident. Had he not become drunk from alcohol consumption that night, Martin Joyce’s judgment would not have been impaired, he would not have approached an unknown man for change and he would not have been shot, alleges a suit filed in Montgomery County Court.” (John Corcoran, “Intoxication caused judgment error, suit claims”, Doylestown, Pa. Intelligencer-Record, April 11).

April 13-15 – Anti-Ritalin lawyers still acting out. Despite some early setbacks, tobacco-veteran lawyers including Richard Scruggs, John Coale and Marc Saperstein continue to seek megabucks damages against drugmaker Novartis (formerly Ciba-Geigy) over the widespread prescribing in schools of Ritalin, the drug meant to combat attention deficit disorder, hyperactivity, and related conditions. There’s a strong case to be made against the thoughtless overuse of this drug, but how characteristic of our litigation system that it proposes to take decisions about its use out of the hands of both medical professionals and parents, instead inviting the lawyers to shop around until they find a few sympathetic courts and a jury or two willing (effectively) to ban the drug through punitive damages. PBS “Frontline” covered the issue recently (”Medicating Kids“) and its website includes a section on the litigation (”ADHD Lawsuits“) which points out a noteworthy recent development: on March 8 of this year federal judge Rudi Brewster threw out a suit seeking class-action status on behalf of everyone in California who had used or bought Ritalin, and also “ruled that activities by defendants intended to advance the medical understanding, diagnosis and treatment of ADHD were free speech protected under California’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute.” This latter is significant because efforts by businesses to engage in medical promotion or policy defense of products, trade association activity etc. are now routinely sued over by trial lawyers in themselves (conspiracy! public brainwashing! tobacco all over again!) and anti-SLAPP statutes might prove useful in rebuffing such causes of action.

MORE: Sept. 18 & Sept. 22, 2000; Nancy Shute, “Pushing Pills on Kids?”, U.S. News, Oct. 2, 2000; Shankar Vedantam, “A symptom of the times? ADD, Ritalin focus of suits”, Philadelphia Inquirer, Dec. 11, 2000; Bob Seay, “Ten Questions for the Lawyers”, About.com ADD site, Sept. 16, 2000.

April 13-15 – “2000’s Ten Wackiest Employment Lawsuits”. Gerald Skoning of Chicago’s Seyfarth Shaw compiles an annual roundup of the most bizarre cases in employment law. Among this year’s highlights: a Minneapolis woman took a job in a sex-toy store and then filed a hostile-environment harassment lawsuit because of all the dirty talk she had to listen to; an Ohio court allowed a worker at a mental health facility to proceed with his reverse disability-discrimination claim that he had been singled out for mistreatment as the only employee at the facility without a mental disability; and a Boeing employee claimed that the company’s objection to his working in the nude was a failure to accommodate his religion, shamanism (”2000’s 10 Wackiest Employment Lawsuits”, National Law Journal, March 29).

April 12 – Zero-tolerance spiral. The WSJ’s OpinionJournal.com “Best of the Web” feature has lately made it a special project to collect reports of zero tolerance excesses, which are fast mounting beyond our ability to record them. F’rinstance, there are the school officials in West Annapolis, Md., who have banned kids from playing tag during recess, citing the school’s “no-touching” policy (Kimberly Marselas, “City school bans students from playing tag”, Annapolis Capital, March 26); and the honor student given an in-school suspension in West Monroe, La., for drawing a GI Joe-style commando with canteen, knife and grenades (Emeri O’Brien, “3rd-grader suspended for drawing”, Monroe, La. News-Star, March 24; “Soldier drawing gets wide attention”, March 27). A 16-year-old student at Legacy High School in Broomfield, Colo. “may be charged with a felony after school officials found an unloaded BB gun in his car.” (Christine Reid, “Student may face felony charge over unloaded BB gun”, Scripps-Howard, April 8). And in the continuing search for ways to build character in the leaders of tomorrow, some favor snitchlines: “Cedar Rapids police are believed to be the first in Iowa to create a student hot line to take tips on illegal activity. Teens who call about classmates they believe to have alcohol, drugs or weapons on school property get $50 if the police recover anything.” (Kate Kompas, “Teen crime hot line offers cash”, Des Moines Register, April 5).

April 12 – “The Last Tycoon”. This Baltimore City Paper profile from last August, which we missed at the time, says contingency fees to Peter Angelos’s law firm topped $100 million for asbestos work on behalf of Bethlehem Steel workers alone, with more riches expected to flow in from fen-phen, lead paint and those supposedly deadly cellular phones. “When it comes to Baltimore’s politics and finances, it seems, almost nothing happens without Peter Angelos. … in 1999, 10 lawyers and lobbyists were registered with the State Ethics Commission on his behalf.” The minority leader of the state house describes the Orioles owner’s power in Annapolis as “absolutely magical” and “amazing … It’s all based on huge amounts of money flowing [from] Peter Angelos’ pocket and into the coffers of the Democratic Party.’” (Molly Rath, Baltimore City Paper, Aug. 16, 2000)(more).

April 11 – Lost his live client, had to substitute dead one instead. In St. Louis, where lots of dead people are registered to vote, “a dead man was listed as the chief plaintiff in a lawsuit filed on Election Day in November,” according to the L.A. Times. “He was having trouble voting, the suit said, due to long lines at his polling station. So he petitioned a judge — successfully — to keep city ballot boxes open late. … The lawyer who filed the suit explained the mix-up by saying he had intended the plaintiff to be Robert ‘Mark’ Odom, an aide to a Democratic candidate for Congress.” However, “Odom had voted, without a wait, by the time the suit was filed,” and the papers had been prepared with his name on them. But as California judge William W. Bedsworth suggests, this supposed explanation if anything makes the case more egregious: the lawyer “‘explained’ how he filed a suit on behalf of a dead person by saying that the plaintiff turned out not to have had his rights violated, and the only available person with the same name happened to be dead. And this caused not the batting of an eyelash in St. Louis. No immediate suspension, no call for disbarment, no investigation into how he got a judge to sign this thing”. (”Meet Me in St. Louis”, The Recorder, April 9).

April 11 – Update: “metric martyr” convicted. In the first such prosecution in Britain, greengrocer Steven Thoburn of Sunderland has been convicted of violating a 1985 compulsory metric system laws by selling bananas in pounds and ounces (see Jan. 22) (”‘Metric martyr’ convicted”, The Guardian, April 9; “Bananas” (editorial), Daily Telegraph (editorial), April 10; footrule.org, of which the late Jennifer Paterson (TV’s “Two Fat Ladies”) was an honorary member).

Tagged as: arbitration, Arizona, asbestos, Baltimore, contingent fee, fen-phen, free speech, Germany, Indiana, Iowa, Janet Reno, lead paint, Massachusetts, Ohio, Philadelphia, reparations, Stuart Taylor Jr., tobacco, Vermont, zero tolerance

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February 2001 archives, part 2

by Walter Olson on February 19, 2001

February 20 – Australia: student wins millions over corporal punishment. “A man has been awarded more than [A]$2.5 million in damages for the pain and suffering he has endured since receiving the strap at school in 1984.” The Catholic Education Office has decried as “manifestly excessive” a court’s award to 30-year-old Paul Hogan of Sydney, who says being twice subjected to stropping as a student 17 years ago has left him with chronic pain and ruined his career hopes of becoming an engineering project manager. The second punishment had been administered to Hogan after he had called the school’s headmaster a “black bastard”. (Ellen Connolly, “$2.5m payout over school punishment”, The Age (Melbourne), Feb. 15) (& update Dec. 15-16: appeals court rules award excessive)

February 20 – “Overlawyered & Overgoverned”. In what is becoming something of an annual tradition, our editor devotes his Reason column to a roundup of last year’s highlights from this website, proceeding month by month from January (”New York City announced that it did not intend to give back the brand-new $46,000 Ford Explorer it had seized from 34-year-old construction worker Joe Bonilla after his arrest on drunk-driving charges, even though Bonilla had been found not guilty of the charges”) through December (Great Britain announces that soldiers’ exposure to the noise from military brass bands violates occupational-safety regulations). (March).

February 16-19 – “Angelos made rare donation to GOP”. During the last election cycle the torts magnate and Orioles owner made himself “one of the five biggest Democratic donors in the country. He gave nearly $1 million, most in the form of unregulated soft money. But just before the election, Angelos delivered a rare contribution to a Republican: $25,000 to Sen. Orrin G. Hatch, making the Baltimore trial lawyer the largest single donor to the Utah senator’s re-election campaign.” The safety of Hatch’s seat was never in doubt, and the senator won by an overwhelming margin; “I don’t follow his activities,” claims Angelos regarding the senator’s official work as chair of the Judiciary Committee, which oversees proposed curbs on litigation as well as the continuation of the baseball antitrust exemption. (Paul West, Baltimore Sun, Feb. 9).

February 16-19 – Tobacco arbitrator: they all know whose side I’m on. “Texas Tech University School of Law in Lubbock recently found itself in the ethical crosshairs over a $12.5 million donation it solicited from Wayne Reaud, a prominent trial attorney and alumnus of the school. Texas Lawyer reported earlier [in 2000] that the situation was ‘raising eyebrows’ in the state, because the school’s dean, Frank Newton, solicited the donation and then later agreed to serve on an arbitration panel setting fees for lawyers in the state’s $17.3 billion settlement with cigarette manufacturers. The problem: Reaud was one of the lawyers due to receive part of the eventual $3.3 billion fee. Newton saw no conflict since everyone, including the tobacco firms, knew where his loyalties lay. ‘There’s no question about who I am or what my role was,’ he said. ‘The tobacco companies knew that I was going to try and get the most money for Texas [and the attorneys].’” Are we the only ones who are having to rethink associating the term “arbitrator” with such presumed virtues as neutrality, objectivity and impartiality? (”Tough Questions: Taking the High Road”, National Jurist, Oct. 2000; “Donor remains generous after donation ‘not enough’”, AP/ AmarilloNet.com, Sept. 12 (school says Reaud would have to give twice as much for it to rename itself after him); Linda P. Campbell and John Moritz, “Lawyers who led Texas’ assault on the tobacco industry awarded $3.3 billion”, Fort Worth Star-Telegram, Dec. 11, 1998).

February 16-19 – Expanding definitions of child abuse. Only an extremely conservative parent these days would punish a child for using profanity by washing his mouth out with soap, or punish lying by putting hot pepper on the child’s tongue. And only an extremely progressive parent would dispense condoms to her sexually active 13-year-old son. What both manners of parenting have in common in America today is that they can get you into deep trouble with child welfare authorities and even put you at risk of jail time. (Paul Craig Roberts, “Targeting Parents”, TownHall.com, Dec. 13; “Criminalizing sex ed”, Feb. 1).

February 16-19 – Trial lawyers (some of them) yank Nader funding. Peeved at the longtime litigation advocate for helping defeat Al Gore, some leading trial lawyers are pulling back the generous contributions they’d been making to the Nader network of pressure groups. For example, prominent plaintiff’s aviation attorney Lee Kreindler has un-pledged his firm’s $10,000 pledge to Nader’s Aviation Consumer Action Project, and others are said to have cut their support of his Center for Auto Safety, Center for the Study of Responsive Law, Public Citizen and so forth. (This is soooo confusing since the official line of many Nader organizations had been that the trial bar was not an important source of funding for them.) Even San Antonio personal injury attorney Pat Maloney (”We support him overtly, covertly, in every way possible”, he once said of Nader — see June 13, 2000) says he’s not giving his usual $5-10 K. All together now: boo-hoo! (Tatiana Boncompagni, “Nader Facing Trial Lawyer Backlash”, Legal Times, Feb. 15).

February 14-15 – E-privacy invasion made simple. As Bill Gates and all the rest of the world now knows, getting sued under American rules means that hostile lawyers can demand back copies of more or less every byte of e-mail you’ve sent or received from your workplace, which they can then trawl through in search of the bits that make you look worst. Now specialized “electronic discovery” companies have sprung up to assist in this process; an exec with one such company says reading your opponent’s past e-mails as part of the “discovery” process should be “as easy as surfing the Internet”. Toward that salutary end, new technology allows electronic discovery “to be reviewed in its native format — electronically” — which means the litigator won’t risk missing the chance to inspect aspects of your correspondence like lists of bcc (blind-carbon-copy) recipients, forwarding trails, or revision time-stamps. (Virginia Llewellyn, “Discovery the E-Way”, Texas Lawyer, Feb. 1). And messages you thought you deleted long ago (Ross Hanig, “Computer Forensics Lab Plumbs the Depths of E-Mail Evidence”, The Recorder (San Francisco), Feb. 14). More on electronic discovery: Thomas W. Hazlett, “Tattletale emails”, Forbes ASAP, Aug. 21 (lesson: “Burn the emails”); Chris Oakes, “This email will self-destruct”, Wired News, Sept. 21 (some ways to do that).

February 14-15 – Microdonation update. We’ve been pleased by the response during the inaugural week of Amazon.com’s new “Honor System”, which gives readers a chance to make small donations ($1 to $50) to support websites they enjoy. (This site was among Amazon’s picks as a participant in the launch, which resulted in a little attention for us all by itself.) Thanks to all of you who’ve contributed. We notice that several of the writer-driven sites we visit regularly, including Kausfiles, Virginia Postrel’s VPostrel.com, AndrewSullivan.com, and The Occasional, either have signed up with the system already or are talking about doing so. Think of us all (to borrow Mickey Kaus’s image) as buskers on the street, competing for you to throw your entertainment dollar into our hat (see left column of front page).

February 14-15 – $1,000/hour for shareholder class lawyers. Last month a federal judge “awarded $24.3 million in attorney’s fees — 30 percent of an $82.5 million settlement — to the team of plaintiffs’ lawyers in the class-action shareholder’s suit against Aetna Inc.” Attorneys from Savett Frutkin Podell & Ryan and the law offices of Bernard M. Gross, both of Philadelphia, and New York’s Milberg Weiss Bershad Hynes & Lerach claimed to have spent a necessary 22,000 hours on a settled case accusing Aetna of painting an overly rosy picture of its merger with managed-care giant U.S. Healthcare in 1996, a merger that worked out less well in practice. Even accepting the 22,000-hour claim at face value, the fee request works out to more than $1,000 an hour, but Judge John Padova declared that it would be “arbitrary” to give the lawyers any less. At one point the underlying suit was thrown out on summary judgment, but the lawyers got it revived. (Shannon P. Duffy, “Federal Judge Awards $24.3 Million in Fees to Attorneys of Aetna Shareholders”, Legal Intelligencer (Philadelphia), Jan. 9).

February 14-15 – U.K.’s school bullying suits. Vaulting ahead of the United States in this respect, Britain has been rapidly establishing a new right for schoolchildren bullied by their classmates to sue education authorities for cash awards. The first such claim, in 1994, won £30,000 damages for derogatory remarks, teasing and name-calling, and another claim of verbal bullying won £1,500 in October. “According to the National Association of Head Teachers‘ bullying guidelines, bullying can be ‘physical, verbal, emotional, racist or sexual’, and includes ’sarcasm, gestures, and exclusion from social groups’. And just in case that leaves anything out, the guidelines go on to say that ‘while others may not feel that certain actions or words are of a bullying nature, if the recipient feels they are being bullied that is sufficient evidence to treat the case as prima facie bullying’ … When almost anything can be interpreted as bullying, the scope for compensation claims against schools and [local authorities] is enormous. It is not necessary for the potential litigant to have suffered any physical harm. … Claims for compensation usually include the allegation that as a result of being bullied the victim underachieved or failed to reach their potential in life.” While the problem of school bullying is hardly an imaginary one, handing over authority to the courts further enfeebles schools’ authority and the democratic process. (Charlotte Reynolds, “Law School Bullies”, SpikedOnline (UK), Jan. 29).

February 12-13 – Welcome KSFO listeners. The San Francisco station’s “Web Wanderer” feature gives us a recommendation (Feb. 10), as does “O’Donnell on Computers” in an echo effect (also Feb. 10). In an interview with Online Journalism Review, Stephen Mayne, who puts out Australia’s stylish humor/politics site crikey.com.au, says the land down under has no equivalent of Matt Drudge or of American websites that provide critical coverage of a single industry or profession, such as (blush) us (Tim Blair, “Where Are Australia’s Web Voices?”, Feb. 6). And we’re linked (as one of the “Good Guys”) by numberwatch.co.uk, a new British site “working to combat Math Hysteria” by looking at “the scares, scams, junk, panics, and flummery cooked up by the media, politicians, bureaucrats, so-called scientists and others who try to confuse you with wrong numbers.”

February 12-13 – GAF sues asbestos lawyers. GAF, the biggest name in the roofing materials business, recently reorganized itself as G-1 Holdings and filed for bankruptcy under the pressure of thousands of lawsuits claiming injury from asbestos products it sold decades ago. Now it has sued several prominent asbestos plaintiffs’ law firms on a variety of grounds. It claims that Charleston, S.C.’s Ness Motley and New York’s Weitz & Luxenberg pushed forward claims by thousands of workers who lack significant health impairment despite a promise not to do so on which GAF relied in contributing to earlier settlement rounds; and it charges Dallas-based Baron & Budd, through its use of the now-famed secret “Preparing for Your Deposition” memo (more), with “intentionally generating false testimony” to support claims against former makers of asbestos-containing products and “induce inflated settlements of such claims.” (Baron & Budd chieftain Frederick Baron is the current president of the Association of Trial Lawyers of America.)

GAF/G-1 also alleges that the lawyers successfully arm-twisted other defendant companies to stop pressing for a bill in Congress that would replace asbestos litigation with an administered compensation scheme, by threatening to turn down otherwise acceptable settlement offers from those companies (thus menacing them with the risks and costs of trial) unless they agreed to stop supporting the legislation. GAF/G-1 argues (which sounds like a dubious line of argument to us) that this variety of hardball violated its constitutional right to petition the government for redress of grievances; a more apt criticism of the law firms (if the allegations turn out to be true) would be that they stood ready to sacrifice the interest of some current clients, who might have been well served by accepting immediate settlements, so as to maximize the legal clout enjoyed by future claimants (we would never imagine that the lawyers’ opposition to administered compensation had anything to do with their own self-interest). One of the opposing lawyers calls GAF’s suit “desperate”. (Mark Hamblett, “Asbestos Lawyers Named in Civil RICO Suit”, New York Law Journal, Jan. 12). (See update Dec. 10.)

February 12-13 – Sleepin’-lawyer case to get more review. The full Fifth Circuit U.S. court of appeals has agreed to consider whether Death Row inmate Calvin Burdine should automatically be assumed to have been deprived of his constitutional right to a fair trial if his lawyer fell asleep during parts of that trial, or whether, as the majority of a three-judge panel had it, the appropriate inquiry is whether the dozed-through portions of the proceedings were important enough to have made a difference in the outcome. Episodes of barrister somnolence recur often enough in Texas capital jurisprudence that the locals term the resulting appeals “sleepin’-lawyer cases”. (Mary Alice Robbins, “Sleeping Lawyer Case Reheard by 5th Circuit”, Texas Lawyer, Jan. 30; “Court revisiting murder case in which lawyer dozed”, AP/CNN, Jan. 22). Update Aug. 20-21: court rules trial improper, new trial likely.

February 12-13 – Batch of reader letters. We hear from our correspondents regarding the “chicken-finger” and “dramatic-reading” zero-tolerance cases; more instances of food companies’ asserting intellectual property claims over seemingly familiar munchies; how personal responsibility should cut both ways in the Cincinnati all-you-can-drink contest case; and what you may not have known about trifecta and perfecta payouts.

Tagged as: antitrust, arbitration, asbestos, Australia, Baltimore, bankruptcy, baseball, Bill Lerach, Cincinnati, Dallas, Fred Baron, Milberg Weiss, Philadelphia, Public Citizen, tobacco, Utah

January 2001 archives, part 2

by Walter Olson on January 20, 2001

January 19-21 – “Wacky warning label” winners. First place in the fourth annual Wacky Warning Label contest sponsored by Michigan Lawsuit Abuse Watch went to “a label on a pair of shin guards for bicyclists: “Shin pads cannot protect any part of the body they do not cover.” Second place? a “label on a toilet at a public sports facility in Ann Arbor, Michigan warning ‘Recycled flush water unsafe for drinking’ … Honorable mention went to a Texan who found a label on an electric wood router made for carpenters which cautions: ‘This product not intended for use as a dental drill.’” (Jan. 17; M-LAW site; Andrea Cecil, “Wacky warnings”, FoxNews.com, Jan. 17).

January 19-21 – Come to America and sue. Lawyers representing survivors of German victims of last summer’s Concorde crash near Paris airport have now sued Air France, Continental Airlines and several other defendants. And where have they filed their suit? Why, in the United States, naturally — which is thousands of miles from the crash site, but where we hand out much bigger tort awards than they do in France. (”Victims’ families file suit in Concorde crash”, CNN, Jan. 9; see Sept. 29).

January 19-21 – Turn off those registers. The Lemelson Foundation, famously hyperactive in patent assertion (see Aug. 28, 1999), has sued 135 national retail chains claiming that its patents have been infringed by their use of bar-code scanning technology. Representing defendants, Kenneth Chiate of Pillsbury, Madison & Sutro says that if the foundation prevails it could get a court to issue an injunction against using the familiar check-out method: “They could put a stop to the whole retail industry in this country… it could be devastating.” (Kirsten Andelman, “Pillsbury Wins Beauty Contest”, The Recorder (San Francisco), Nov. 7).

January 18 – Annals of zero tolerance: gun-shaped medallion. “School officials have suspended a third-grade student under the state’s zero-tolerance weapons law after he brought a 1 1/2-inch-long gun-shaped medallion to class. The boy apparently found the piece of jewelry in a snowbank and brought it to Owen Elementary School on Wednesday, school officials said. ‘State law takes precedence and requires us to take action even though it was a toy,’ said Donna Poag, director of elementary education for the Pontiac [Mich.] School District.” (”Third-grader suspended for gun-shaped medallion in school”, AP/CNN, Jan. 13).

January 18 – “Bogus” assault on Norton. Opponents of Interior Secretary-designate Gale Norton (Jan. 15, Jan. 5) have absurdly sought to depict her as pro-Confederacy based on a 1996 speech she gave to the Independence Institute. But as Mickey Kaus points out at Kausfiles.com: “The more inflammatory charges against Norton based on this speech appear to be almost totally bogus …. Norton’s opponents ask ‘Who is “we” in the phrase “we lost too much”‘? But ‘we’ clearly means ‘we Americans who should believe in states’ rights,’ not ‘we Americans who believe in the Confederate cause.’ …You might not find her speech convincing, but only a willful misreading turns it into any sort of secret embrace of the Confederate cause.” (left column, dated Jan. 17).

Meanwhile, the Sierra Club, in what may be another sign of an emerging working relationship between the more extreme environmental groups and activist trial lawyers (see Dec. 7), has made it an explicit part of its case against Norton’s confirmation that while a lawyer in private practice she “worked to dissuade state attorneys general” from turning paint companies (one of which she was representing) into the “next tobacco”. Other public figures who get in the way of this kind of retroactive expropriation through litigation should be duly warned: they, too, may turn up on the Sierra Club’s hit list (”NH Sierra Club opposes Norton confirmation”, AP/FindLaw, Jan. 17). (DURABLE LINK)

January 18 – What they did for lead-plaintiff status? A brief filed by New York’s Sullivan & Cromwell last fall alleged that class-action powerhouse Milberg Weiss Bershad Hynes & Lerach engaged in some fancy footwork in an attempt to gain the lucrative lead counsel position in a huge securities class action against Sullivan’s client, Oxford Health Plans Inc. “According to the brief, Milberg Weiss clients filed ‘misleading’ affidavits to ‘create the appearance that they had suffered substantial losses’ from trading in Oxford stock. In fact, one of Milberg’s two clients reaped a huge profit from his trading, while the other suffered much smaller losses than others vying to become ‘lead plaintiff’ and seize control of the litigation under the Private Securities Litigation Reform Act of 1995, the brief alleges. … Milberg Weiss’ response … contends that Sullivan & Cromwell ‘distorted the facts and ignored the law, all the while peppering their papers with outrageous and unfounded allegations.’” (Karen Donovan, “A Case of Ill-fitting Oxfords?”, National Law Journal, Oct. 3). More on the case: Peter Elkind, “The King of Pain Is Courting New Trouble”, Fortune, Oct. 2; Cameron Stracher, “Attorneys’ Fee-for-All”, New York, Oct. 23 (”S&C is just mad,” claims one lawyer, “because Milberg partners make more money than they do.”); Scott Gottlieb, “Presidency or Health Care Giant, There’s a Lawsuit in There Somewhere”, WebMD, Nov. 17. Update: a federal judge rejected the charges; see Feb. 21-22.

January 17 – “Coming soon to a school near you”. In Washington’s alt-weekly City Paper (Jan. 12-18), “Loose Lips” columnist Jonetta Rose Barras reprints the following letter, which “leaves even [her] speechless”:

District of Columbia Public Schools
Office of the General Counsel
Labor Management and Employee Relations

November 16, 2000

Dear Ms. [name withheld]:

On June 23, 2000, you were informed by letter that you would not receive an offer of employment with the District of Columbia Public Schools (DCPS) based on the results of your criminal background check. Based on your subsequent presentation of documentation that your 1984 charge for Uniformed Controlled Substance Act, Cannabis was no papered; that your 1984 charge for shoplifting was nolle prosequi; that your 1984 charge for assault with a dangerous weapon, razor was no papered; that your 1984 charge for destruction of government property was nolle prosequi; that your 1986 charge for assault with a deadly weapon was dismissed; that your 1987 charge for soliciting for prostitution was nolle prosequi; that your 1989 charge for assault with a dangerous weapon, razor was no papered; and that your 1992 Uniform Controlled Substance Act, possession with intent to distribute cocaine was dismissed. You are eligible for employment with DCPS.

If you have any questions or concerns, kindly contact Labor Management and Employee Relations at (202) 442-5373.

Sincerely,

Delores Hamilton
Acting Director of Human Resources

cc: Alfred Winder
Employee Services and Staffing
Office of the General Counsel
Labor Management and Employee Relations
Division of Security
Official Personnel File

January 17 – ABA’s toothless ethics proposals. The American Bar Association’s “Ethics 2000″ commission wants to revise lawyers’ ethical code, the Model Rules of Professional Conduct. But don’t get your hopes up: the panel shows little enthusiasm for requiring lawyers to observe basic consumer protection precepts such as the disclosure to clients of the billing methods they use or of the existence of alternatives to contemplated legal work. Public comments must be submitted before May. (David A. Giacalone, “Counselors Oughtta Counsel (Not Conceal)”, PrairieLaw, Dec. 7).

January 16 – “Holocaust Reparations — A Growing Scandal”. Back in the September issue of the American Jewish Committee’s journal Commentary, senior editor Gabriel Schoenfeld laid down a courageous challenge to the prevailing view of the World War II reparations crusade, pointing out the difficulties of resolving old title claims to bank accounts, insurance and real estate even when the holders of financial trusts are acting in good faith; questioning some reparations activists’ insistence on portraying in the worst possible light the actions during the war of such nations as the Netherlands and Switzerland; and exploring the often far from constructive role played by ambitious American lawyers and politicians. Now, in its January issue, the magazine publishes a “Controversy” in which numerous readers, including Deputy Secretary of the Treasury and key reparations negotiator Stuart Eizenstat, react to Schoenfeld’s article, and he responds to their criticisms.

January 16 – Batch of reader mail. The latest additions to our letters page discuss tax farming, things hospital staff do to so as not to risk being sued, lawyers’ monopoly on real estate transactions (and the state of the courts generally), and where to buy hallucinogens other than on eBay. Also, an attorney from Louisiana is really upset with us for our coverage of his client’s suit over racetrack payouts.

January 15 – The Times vs. Gale Norton. “The New York Times, for reasons that must be assumed to be political, has attempted to smear Gale Norton, President-elect George W. Bush’s choice for secretary of Interior,” writes Al Knight, columnist with the generally liberal Denver Post. Times reporter Timothy Egan sought to link Norton, who served as Attorney General of the state of Colorado, with inadequate law enforcement efforts in response to contamination from a gold mine in the town of Summitville, which allegedly led to the “death” of the Alamosa river. Don’t miss Knight’s devastating point-by-point correction of Egan’s numerous misimpressions: Knight concludes that “[a]ny mishandling of the [four-year-old] Summitville litigation can be directly traced to the EPA and to the Justice Department.” (Timothy Egan, “The Death of a River Looms Over Choice for Interior Post”, New York Times, Jan. 7 (reg); “Summitville gold mine is cast as a political boogeyman”, Denver Post, Jan. 10; “The blame for Summitville” (editorial), Jan. 11; via WSJ OpinionJournal.com).

National environmental groups’ jihad against Norton may have found a ready ear among some editors in cities like New York where, to quote Fran Lebowitz, the outdoors consists of the distance between one’s apartment lobby and a taxicab. But it exasperates many who actually worked with Norton in Colorado, to judge by a report in Denver’s other major paper, the Rocky Mountain News. “‘There was never one iota of reticence to pursue polluters on (Norton’s) part,’ said Patrick Teegarden, policy director for the Colorado Department of Public Health and Environment and himself a Democrat. ‘She took her role in enforcing our laws very, very seriously and did an excellent job on behalf of this agency.’” On the much-misrepresented “self-audit” issue (see July 19, 1999 and link to Schulte, Roth and Zabel article there), Norton’s position was backed by Democratic Gov. Roy Romer and by the state legislature. (Todd Hartman, “Ex-cohorts deny Norton was patsy for polluters”, Rocky Mountain News, Jan. 14). Some trial lawyers, meanwhile, have it in for Norton because as a private attorney she counseled a major paint manufacturer on how to resist the courtroom assault aimed at turning the decades-ago sale of lead paint into the next tobacco (Douglas Jehl, “Environmental Groups Join in Opposing Choice for Interior Secretary”, New York Times, Jan. 12 (reg)).

A Jan. 13 Times report, meanwhile, darkly announces that Norton “has repeatedly challenged some of the laws that she would be obligated to enforce.” As one example, it offers the famous case of Adarand Contractors v. Pena, in which Norton as AG declined to represent the state against a suit that “challenged Colorado’s support of a law setting aside some highway contracts for businesses headed by members of minority racial groups, a provision that Ms. Norton has opposed as unfair.” But Times reporter Douglas Jehl fails to note that higher courts, including the U.S. Supreme Court, proceeded to rule in Adarand’s favor, confirming Norton’s view. Writes Ira Stoll of the invaluable daily Times-watchdog newsletter, SmarterTimes: “It’s just flat-out false for the New York Times to report this Adarand matter as proof that Ms. Norton ‘has repeatedly challenged some of the laws that she would be obligated to enforce.’ She’d be under no obligation to enforce those racial set-aside laws as secretary of the interior — they are illegal and unconstitutional, as federal courts have repeatedly ruled. She was right to have challenged them.” And Stoll observes that the Denver Post’s Al Knight “noted in a column that in opposing some of the state’s affirmative action policies in 1995, Ms. Norton was ‘doing precisely what the law requires her to do, make sure that the state is behaving in a lawful manner with minimal exposure to discrimination lawsuits.’” (Douglas Jehl, “Norton Record Often at Odds With Laws She Would Enforce”, New York Times, Jan. 13 (reg); SmarterTimes, Jan. 13) (write a letter to the Times). (DURABLE LINK)

January 15 – “Killer’s suit alleges job discrimination”. Committed to state psychiatric care since the 1978 killing of his wife and stabbing of his daughter and grandmother, Richard L. Greist is now suing the hospital where he’s a resident for allegedly discriminating against him by refusing to hire him for a job as clerk. His suit charges that Norristown State Hospital and the Pennsylvania Department of Public Welfare violated the Americans with Disabilities Act as well as the Constitution’s Equal Protection Clause. “Greist has been found to have paranoid schizophrenia and mixed-personality disorder.” He is being represented by attorney Neil O’Leary. (Kristin E. Holmes, “Killer’s suit alleges job discrimination”, Philadelphia Inquirer, Jan. 4) (more on killers’ rights: Jan. 7, 2000, Sept. 24, 1999).

January 12-14 – Hunter sues store over camouflage mask. Gregory Abshier, 42, of Kent City, Michigan, was paralyzed three years ago when he fell out of a tree stand used for bow hunting. He’s now suing retailer Meijer Inc. for selling him the camouflage mask he was using at the time, claiming he was overcome by fumes from its dyes. He’s being represented by the Southfield law firm of well-known litigator Geoffrey Fieger. Also named in the suit is Hunter’s Specialties Inc., of Cedar Rapids, Iowa, makers of the mask. (Doug Guthrie, “Paralyzed hunter sues Meijer over camouflage mask”, Grand Rapids Press, Dec. 26).

January 12-14 – The Kessler agenda. Critics used to say former food and drug chief David Kessler had a more extreme antilibertarian agenda on tobacco than he let on at the time, and you know what? They were right. He’s now out with a new book (A Question of Intent) arguing that the government should prohibit the sale of cigarettes to persons not already confirmed smokers (after all, wasn’t alcohol prohibition a roaring success?) and that it should establish a nonprofit monopoly enterprise to sell the things. (Duncan Campbell, “US call to ban cigarette sales”, Guardian (UK), Jan. 8).

January 11 – By reader acclaim. Among recent stories submitted by multiple correspondents:

* Latest McDonald’s coffee lawsuit: Teresa Reed of Murphysboro, Ill. says her ankle was burned on New Year’s Eve 1998 when the hot beverage spilled out of a cup holder in her mother’s car. She’s suing the local McDonald’s operator, along with Wal-Mart for selling the cup holder, another company for making it, and — best detail — her mom, asking $450,000. What, no suit against the automaker? (Karen Binder, “McDonald’s Being Sued; Couple Allege Coffee Was Served Too Hot”, Southern Illinoisan, Jan. 8; “McDonald’s Sued Over Spilled Coffee”, AP/Washington Post, Jan. 9) (more on hot beverage suits: Aug. 10 and list at end).

* In Vancouver, B.C., a “man who became a slave to crack cocaine is suing his alleged dealers, claiming they ‘owed a duty of care’ to their customers and should have known their activities could cause harm. ” (Greg Joyce, “Cocaine-addicted man files court claim, suing alleged dealers for damages”, CP/Ottawa Citizen, Jan. 3; “Crack addict sues dealers for lack of care”, Ananova.com, Jan. 4).

* As expected, Baltimore lawyer-Orioles owner Peter Angelos (asbestos, tobacco, lead paint) has sued companies connected with the cellular phone industry charging that radiation from the devices causes cancer, despite a further ebbing of the always-tenuous scientific backing for that proposition (National Cancer Institute, “No Association Found Between Cellular Phone Use and Risk of Brain Tumors”, press release, Dec. 21; Steven Milloy, “Junk science: Studies steal cell phone lawyer’s Christmas”, FoxNews.com, Dec. 22; Chris Ayres, “Vodafone sued over brain cancer”, The Times (London), Dec. 28; “Cancer scare hits cell firms”, CNNfn, Dec. 28; Richard Baum, “Mobile phone firms face fresh suits over tumours”, Reuters/ FindLaw, Dec. 28). Update Oct. 1-2, 2002: court dismisses case.

January 11 – In the gall department. Napster Inc., the company that made a huge success by encouraging its users to take a casual approach toward other people’s intellectual property, went to court last month to file a trademark-infringement suit. It’s suing a souvenir apparel-maker for allegedly selling T-shirts and other items bearing its well-known logo without its consent. (Benny Evangelista, “Napster Sues Firm for Trademark Violations”, San Francisco Chronicle, Dec. 30).

Tagged as: asbestos, attorneys general, Baltimore, Bill Lerach, Colorado, Denver, France, Geoffrey Fieger, Germany, hospitals, Illinois, Iowa, lead paint, Louisiana, Michigan, Milberg Weiss, Netherlands, Pennsylvania, Philadelphia, reparations, Switzerland, tobacco, trademarks, zero tolerance

December 2000 archives, part 3

by Walter Olson on December 31, 2000

December 29, 2000-January 2, 2001 – Gambler rebuffed. Reversing a lower court, the Mississippi Supreme Court has ruled that Robert Shindler has no cause of action to sue the Grand Casino Tunica for extra winnings he said he was due “for a series of mini-baccarat games he played on August 22, 1997. Shindler claims that although he wanted to bet $20,000 per hand, casino personnel would only let him bet $5,000 at a time.” (Grand Casino Tunica v. Robert Shindler, Dec. 14).

December 29, 2000-January 2, 2001 – Makes others pay, doesn’t pay himself. Civil rights activist Al Sharpton says he is planning a class-action lawsuit against the Burger King Corporation as well as “acts of civil disobedience that will be organized at targeted Burger Kings across the country.” The vow came after federal court cleared the hamburger chain of charges that it discriminated against Detroit-based black franchisee La-Van Hawkins (May 11), who had hired high-profile litigator Willie Gary to press his case. “U.S. District Court Judge Marianne Battani in Ann Arbor, Mich., ruled that Hawkins and Burger King signed a ‘clear and unambiguous’ agreement in July 1999 barring Hawkins from suing the company for any problems that arose before then. Battani also wrote that Hawkins failed to state a claim for relief. ” (”Sharpton Plans Lawsuit Against Burger King”, FoxNews.com, Dec. 18).

However, the wherewithal for Sharpton’s hyperactive litigation posture is somewhat mysterious since he claims not to have the money on hand to pay the $65,000 a jury says he owes former prosecutor Steven Pagones for defaming him during the Tawana Brawley affair 13 years ago. During a seven-hour deposition in the ongoing Pagones case, it recently emerged that Sharpton, a leading New York power broker whose publicity machine gets him into the papers approximately daily, and whose daughters attend an expensive private school, “says he owns no suits, but has ‘access’ to a dozen or so. He says he owns no television set because the one he watches in his home was purchased by a company he runs. He says he has no checking accounts, no savings accounts, no credit cards, no debit cards … The only thing he admits to owning is a $300 wristwatch and a 20-year-old wedding ring.” (”Sharpton says he has no assets to pay slander victim”, AP/CNN, Dec. 7; Alan Feuer, “Asking How Sharpton Pays for Those Suits”, New York Times, Dec. 21; “It Depends on What You Mean by ‘Own’” (sidebar), Dec. 21). (Update June 22-24, 2001: he finally pays Pagones).

December 29, 2000-January 2, 2001 – Seats in all parts. “Tiered” stadium-style seating has been a boon to countless moviegoers who no longer fear having their view blocked by a tall person in the row in front of them. But wheelchair activists are targeting such arrangements as a violation of their right to sit in all parts of a theater, and the U.S. Justice Department is backing their complaints. “The ADA has proved a powerful tool on a similar issue — handicapped seating in sports stadiums. In 1996, a U.S. District Court judge in Washington forced builders of MCI Center to halt work in mid-construction to add spaces so that wheelchair users could see beyond standing spectators and to adequately disperse wheelchair spaces throughout the arena.” (Matthew Mosk, Ian Shapira, “Buying a Ticket to Court”, Washington Post, Dec. 8; Mark Pratt, “Theaters Sued Over Disabled Seating”, AP/FindLaw, Dec. 18). And: “Country music star Garth Brooks is being sued for allegedly limiting wheelchair seating at a concert so ‘pretty women’ could sit in the first two rows. Brooks’ attorney denied the allegation, saying people in the front rows are generally Brooks’ friends. A judge ruled Friday that the complaint can proceed to trial, but said Brooks’ liability is limited because he had no control over concert operations at Seattle’s Key Arena.” (”Brooks accused of discrimination”, AP/Washington Post, Dec. 17).

December 29, 2000-January 2, 2001 – Enviro litigator: debate belongs in Congress, not courts. We promise we didn’t make up the following quote, though we understand why it might astound readers familiar with the environmental movement’s record over the past three decades of heading for court in quest of victories it couldn’t win in Congress: “Howard Fox, a lawyer with the Earthjustice Legal Defense Fund [commenting on a pending high court case which could invoke the "nondelegation" doctrine to strike down EPA-set air standards], said that industry should take its battles over national environmental policy to Congress rather than pressing the Supreme Court to overturn half a century of legal precedents that allowed Congress to delegate authority to the regulatory agencies. ‘We think EPA’s policy on this issue is a good policy,’ said Fox, who is representing the American Lung Association in the case. ‘But if someone wants to have a debate on public policy, it should be in the Congress, not the courts.’” (Margaret Kriz, “Trying to Roll Back the Regulators”, National Journal, Nov. 4, not online). See also Gregg Easterbrook, “Green values”, The New Republic, Nov. 13).

December 26-28 – That’ll teach ‘em. In the largest personal-injury verdict ever handed down against the city of Chicago, a jury has ordered the city to pay $50 million to the parents of 19-year-old Douglas Gant, who died of an asthma attack. The ambulance arrived eight and a half minutes after the mother’s 911 call, but lawyers argued that it should have come sooner and that in the mean time operators should have given the family instructions on resuscitation, all of which “constituted ‘willful and wanton misconduct,’ the standard for erasing municipal immunity.” Just the sort of development sure to attract talent into the emergency services, at least if you believe the law schools’ invisible-fist theory. (Margaret Cronin Fisk, “911 Incident Brings $50 Million Award”, National Law Journal, Dec. 13)(& letter to the editor from lawyer for Gant, May 7, 2004).

December 26-28 – Appearance-blind hiring? Green-haired Santas, take hope! A popular marketing strategy among hotels, restaurants and other hospitality businesses is to differentiate themselves by style, with some going for a hip look, others dignified, others conveying a mood of family fun, and so forth. “But when hoteliers try to control the look and feel of their personnel, they can run into big legal trouble.” They may be violating employment law if they want to hire only “lithe” or “athletic-looking” personnel, for example. However, Colonial Williamsburg, the historical re-creation in Virginia, did manage to escape being sued after it asked an employee with a wild dye job to redo the look of her hair to something more “natural-looking”. (Virginia Postrel, “When the ‘Cool’ Look Is Illegal”, Forbes, Nov. 27).

December 26-28 – Updates. Further developments in stories already covered in this space:

* The tactic that occurred to various businesses of demanding that their insurance companies pay the cost of their Y2K remediation efforts, under “sue and labor” clauses originally arising from maritime emergencies (Sept. 16, 1999), has met with a setback in the first court to rule on the issue. Justice Charles E. Ramos of State Supreme Court in Manhattan ruled that the Xerox Corp. should not have waited for three years, during which it spent $138 million on the Y2K problem, before notifying its insurer that it was hoping to pass the costs along. (Barnaby J. Feder, “Court Rules on Year 2000 Claim”, New York Times, Dec. 22 (reg)).

* Cameras in the hospital: a New Jersey appeals court has set aside Cooper Medical Center’s rule against legal photography (see Oct. 18) so as to allow a lawyer into its trauma unit to take pictures of a client (Randall J. Peach, “Court Overrides Hospital’s Ban on Photographs in Intensive Care Unit”, New Jersey Law Journal/Law.com, Dec. 4).

* In the latest sign that “baby Castano” (statewide class action) tobacco cases are not faring well, a New York court has rejected the idea of certifying a statewide class of ill smokers to sue tobacco companies (”NY court rejects smokers’ class-action certification”, Reuters/FindLaw, Nov. 30).

December 22-25 – Victory in Philadelphia. “A federal judge yesterday dismissed Philadelphia’s lawsuit against gun manufacturers, ruling that the city and several civic groups that joined the suit did not have legal standing to sue.” Even if the plaintiffs had survived the standing issue, declared federal judge Berle M. Schiller, their “novel legal theories” would have failed as a matter of law. “The city’s drive to sue gun manufacturers began three years ago, under Mayor Edward G. Rendell. However, Rendell, who has ambitions to run for governor in 2002 in a state [Pennsylvania] that is famously pro-gun rights, eventually balked at filing a suit.” His successor as mayor, John Street, did proceed to sue. Many other cities’ gun suits have also been dismissed, most recently Chicago’s. (Frederick Cusick, “Court rejects city gun lawsuit”, Philadelphia Inquirer, Dec. 21).

December 22-25 – Suits even ATLA admits are frivolous dept. An inmate at a Texas prison sued Penthouse magazine, saying its recent photo spread of presidential accuser Paula Jones was insufficiently pornographic. Federal judge Sam Sparks dismissed the suit and fined the prisoner $250 for frivolous litigation, adding to his opinion a 12-line poem which concluded: “Life has its disappointments. Some come out of the blue/ But that doesn’t mean a prisoner should sue.” (”Dissatisfied Customer”, Reuters/ABCNews.com, Dec. 20)

December 22-25 – Britain’s delicate soldiery. The chief of the British military staff, General Sir Charles Guthrie, has delivered a stinging attack on “what he called a culture of ‘risk aversion’, warning of the prospect of young officers being sued by their platoons for leading men into action which could lead to death or injury. … In a swipe at the ‘litigious nation’ Britain was becoming, Sir Charles expressed surprise that policemen involved in the Hillsborough football disaster were awarded compensation for the horrors they had to cope with. … He added: ‘But what really concerns me about the creeping advance of litigation is that it will breed a cautious group of leaders who may step back from courageous decisions for fear that they will be pursued through the courts if it all goes wrong. … There is a culture of risk aversion developing in society which is anathema to servicemen. We are not foolhardy but our profession requires a degree of decisiveness, flair and courage which sits badly with some of the more restrictive practices of modern employment legislation.’” In particular, Guthrie assailed the idea recently floated by figures within British officialdom (see Sept. 29, Oct. 16) that the military should be compelled to accept disabled recruits: “we need to guard against such ill-conceived ideas in future”. (Richard Norton Taylor, “Defence chief lays into culture of ‘risk aversion’”, The Guardian (UK), Dec. 20). (”Armed Forces ‘under threat from human rights legislation’” (text of speech), Daily Telegraph, Dec. 21; Michael Smith, “Guthrie attacked over ban on disabled”, Daily Telegraph, Dec. 21; “General alert” (leader/editorial), Dec. 21). And the U.K. defense ministry has announced that the noise of military brass bands, as well as that from gunfire during infantry training exercises, is in violation of occupational-safety regulations safeguarding workers from excessive noise. “‘One solution would be to provide ear protectors during training, but then soldiers couldn’t hear their sergeant major giving orders,’” said a spokesman. (”British Army Bands May Have to Pipe Down”, Reuters/Excite, Dec. 21).

December 22-25 – Not pro bono, not nohow. The roundtable discussion in the November Harper’s on slave reparations lawsuits (see Oct. 25, July 14) was going along quite merrily, and then, as American Lawyer tells the tale, “came a conversation-stopper, when one panelist had the nerve to suggest that the lawyers toil without pay:”

Alexander Pires, Jr.: So would you all work for free?

Dennis Sweet: What?

Richard Scruggs: Um.

Willie Gary: Clients sometimes try to negotiate me down to 10 percent on a case, and I say, “Why would you want me working unhappy for you? [If I'm unhappy,] I’ll get you 100,000 bucks. If you got me happy, I’ll get you 2 million.”

Pires: Maybe I’m wrong.

Jack Hitt (moderator): I guess that issue’s resolved. (Harper’s, November; quoted in American Lawyer, Dec. 2000)

December 22-25 – Welcome visitors. Among the many personal websites linking to Overlawyered.com: Ellen’s Place, Jocelyn Payne, Whoozyerdaddy (Oct. 10), Carl Riegel and Melissa Dallas, Paul Falstad, and Frank Cross (Siskiyou County (Calif.) Amateur Radio — Aug. 3).

December 21 – Errin’ Brockovich? “An arbitrator in Ventura County, Calif., ruling on a legal malpractice case involving a law firm made famous by the film ‘Erin Brockovich‘, found that Brockovich’s testimony in the arbitration proceeding ‘was hardly credible’,” notes the Wall Street Journal’s Opinion Journal. Former client Bilal Baroody had sued the law firm of Masry and Vititoe after losing more than $400,000 in a real estate deal on which it had represented him. Arbitrator Jeffrey Krivis wrote that the Masry/Brockovich firm had been “preoccupied with other significant matters” during the episode, which occurred while the firm was litigating the Hinkley, Calif. toxic case portrayed in the Julia Roberts movie. “[Faulty representation] is evidenced not only by the poor result, but also by the firm’s overall lack of professionalism; by the firm’s putting its own interests above those of the client; and by the firm playing fast and loose with the rules of professional conduct,” wrote Krivis. Partner Ed Masry criticized the findings as mistaken and as reflecting the arbitrator’s excessive credence in Baroody’s witnesses; it is not known whether his professional liability insurer will appeal. Moreover, “a claim isn’t necessarily because you did something wrong,” Cathy Hastings, insurance manager for the State Bar of California, told a reporter. “It’s only because someone decided to sue you.” That last strikes us as a noteworthy concession from a bar association, and we just wish it would be forthcoming more often when the topic was something other than claims against lawyers themselves. (Brad Smith, “Law firm made famous by film ruled negligent in case”, Ventura County Star, Dec. 13).

December 21 – ADA requires renting to addiction facility. A jury has found that the port of Baltimore violated the Americans with Disabilities Act when it declined to lease berth space to a ship housing a residential treatment program for recovering drug addicts. Officials of the Maryland Port Administration had considered a working port an unsuitable location for such a facility. The jury did turn down the drug program’s request for millions of dollars in damages, however. Drug users in treatment programs are deemed disabled under the ADA and enjoy its protection. (Kate Shatzkin, “Judge orders long-term lease for ship treating drug addicts”, Baltimore Sun, Dec. 12).

Tagged as: arbitration, Baltimore, Dallas, Detroit, Erin Brockovich, governors, hospitals, libel slander and defamation, Maryland, Mississippi, New Jersey, Pennsylvania, Philadelphia, pro bono, reparations, Seattle, tobacco, Willie Gary

November 2000 archives, part 3

by Walter Olson on November 29, 2000

November 30 – The right to be poisoned. Large numbers of urban apartments continue to have old lead-based interior paint on their walls, and you might think it makes obvious sense from a public health standpoint to take precautions to keep children who already show dangerous levels of lead in their blood from moving into such units. At least, you might think so if you weren’t among the “public interest” lawyers who’ve now successfully sued Northern Brokerage, a Baltimore landlord, over its policy of not letting lead-affected kids move into apartments where they might be exposed to more of the same. It’s a discrimination issue, you see: Ruth Ann Norton, executive director of the Coalition to End Childhood Lead Poisoning, said it’s “hugely discriminatory” to turn families away from such housing just because their kids already display high lead levels. In a settlement earlier this month, “Northern Brokerage agreed to no longer require testing for children under 6 and to pay a total of $13,000 in damages to the plaintiffs and their attorneys.” Of course, if the kids’ blood-lead levels keep rising after they move in, other lawyers might very well step forward to sue the same landlords for every last dime they possess. But that’s only fair, too, right? (John Biemer, “Landlord settles lawsuit for refusing to rent to lead-poisoned families”, AP/FindLaw, Nov. 16).

November 30 – Welcome Mother Jones readers. MoJoWire’s “Alternative Election News Coverage” summarized one of our commentaries about a Gore lawyer’s dimple flip-flop (see Nov. 24). “Not everyone is happy that it appears the next president will be chosen by what some have called a tournament of lawyers. America’s litigation explosion was itself a subtext of the campaign, critics point out. Mr. Bush has called for tort reform to limit the ability of class-action lawyers to win big judgments. Mr. Gore has adopted the traditional Democratic Party position of trial-lawyer defense.” (Peter Grier, Justin Brown and Francine Kiefer, “All Florida becomes a stage for lawyers”, Christian Science Monitor, Nov. 30 — quotes our editor). And we evidently spoke too soon when we praised a New York Times editorial on the Florida mess immediately after the election (see Nov. 10), since within days the paper had reversed its editorial line almost completely on the relevant issues (Elizabeth Arens, “Times falls back into line”, National Review Online, Nov. 28).

November 30 – Updates. Further developments in stories previously covered in this space:

* “Samuel Feldman, convicted in September for a two-year spree of bread and cookie destruction in a Yardley supermarket (see Oct. 6), was sentenced [Nov. 20] to 180 days’ probation and ordered to make $1,000 in restitution payment.” He also got a severe scolding from the judge (Oshrat Carmiel, “Bucks bread squeezer sentenced to probation”, Philadelphia Inquirer, Nov. 21).

* Falling upward in Washington state: “An assistant attorney general who lost one of the state’s largest civil cases and later shared blame for missing the deadline to appeal the case has been promoted to a new job in state government.” As we reported Sept. 13, state attorney general Christine Gregoire missed a deadline to appeal a $17.8 million verdict against the state, a goof that aroused widespread consternation in Evergreen State legal circles. Now assistant attorney general Loretta Lamb, whom an investigation saddled with some of the responsibility for the mix-up, has been appointed assistant vice president of Washington State University for personnel and business administration. (Eric Nalder, “Attorney in missed deadline case gets new job”, Seattle Times, Sept. 29).

* Although a Bridgeport jury last year gave Microsoft an almost complete victory in an antitrust suit filed by competitor Bristol Technologies (see Aug. 31, 1999), awarding only a token dollar, federal judge Janet Hall upped the award under a Connecticut trade statute to $1 million and Bristol is now asking for a new trial (Thomas Scheffey, “Connecticut Judge Socks Microsoft with $1 Million in Punitives”, Connecticut Law Tribune, Sept. 11; “What was the Microsoft Jury Thinking?”, Nov. 27).

November 29 – After an air crash, many Latin “survivors”. “Three of the 88 passengers and crew who died when Alaska Airlines Flight 261 crashed into the Pacific Ocean on Jan. 31 allegedly had something in common apart from their tragic deaths: They cheated on their partners, led secret lives and fathered secret illegitimate children, all of whom were growing up in Guatemala.” Or at least that’s the story being told by Coral Gables, Fla. lawyer Robert Parks, who’s filed wrongful-death suits against the airline, Boeing and other defendants on behalf of the alleged secret survivors. “The crash victims’ undisputed relatives and close friends say the stories have been fabricated in an effort to capitalize on the tragedy.” In one case, a 53-year-old San Francisco man who perished on the doomed flight is alleged to have recently fathered two Latin American children who deserved to collect for his decease, a story that ran into trouble when his outraged gay partner of twenty years, Dale Rettinger, 63, stepped forward to challenge it.

David Lietz, a Washington, D.C. lawyer hired by Rettinger to investigate the case, said: “We do this kind of work all the time and in the course of doing it, we’ve seen people who make their living lining up victims. It’s not uncommon to find people in Mexico or Central America who try to craft these stories and shop them around to lawyers,’ Lietz said. ‘It’s the aviation equivalent of ‘bus jumping,’ which is a bunch of people seeing a bus accident and running up to it so they can claim whiplash or something.” Many such claims come from Latin America, where “records are very bad and (false claimants) will swear under oath but say anything they want,” he added.

Families of two other victims also named as supposed secret fathers of Latin American children also reacted with indignation or incredulity. However, Parks, the Florida lawyer pressing the cases, says criticism is misplaced. “We wouldn’t have filed the lawsuits if we didn’t feel these people had claims. I don’t deal in coincidences … I’ve been involved in aviation litigation over 30 years, a lot in Central America and South America,” he said. “Sometimes in these areas, truth is stranger than fiction. … The process is going to sort this out. No one is trying to get something that isn’t there”. Parks is also preparing a claim on behalf of alleged secret offspring of yet a fourth Alaska Air crash victim, this time from a still unnamed Latin American country. (Scott Winokur, “Capitalizing On a Crash? Suits allege secret lives for some on fated Alaska Airlines flight”, San Francisco Chronicle, Nov. 26) (via Aero News Network)(and see April 10, 2001, Aug. 3, 2001) (DURABLE LINK)

November 29 – “Clinton readies avalanche of regulations” “The Clinton administration is striving mightily to pour forth regulations on the environment, labor, health care and other controversial topics before Jan. 20 brings a new occupant to the White House.” So-called midnight regulations are especially common in cases where a new party is coming in: “The Jimmy Carter administration became renowned for stuffing the Federal Register with 23,000 pages of regulations during the three months before Ronald Reagan took office in 1981.” The Mercatus Center at George Mason University has launched a website, RegRadar.com, to monitor the last-minute onslaught (Robert A. Rosenblatt and Elizabeth Shogren, L.A. Times/Chicago Tribune, Nov. 26).

November 29 – “Hush — good news on silicone”. More details on the release of that new study (see Oct. 23) exonerating breast implants of a once-feared link to cancer, which the National Cancer Institute commissioned at great expense but whose results it quietly buried: “NCI press representative Brian Vastag says he was ‘forbidden’ by his superiors from touting the impending release of this study the way he normally does with other public health research. … So Mr. Vastag, who had already announced he was leaving NCI, defied his bosses and e-mailed names in his media Rolodex. ‘It drives me crazy when tax-funded public health research doesn’t make it to the public,’ he said.” (John Meroney, Washington Times, Nov. 22).

November 28 – Highway responsibility. A Fort Lauderdale jury has awarded $7 million to Diana Mancuso, 43, who was badly hurt when her car was hit broadside by a drunk driver six years ago. The drunk driver, Shane Peter Leanna, who was 23 at the time, served nearly two years in prison. However, the ones being ordered to pay the bill are McFadden Leasing Inc., which owned the sport utility vehicle Leanna was driving, and Next Generation Inc., which leased it to him. (”Woman gets $7 million in DUI case”, AP/New York Times, Nov. 23). And last month the mother of late National Football League star Derrick Thomas went to court to blame various organizations for his death following a crash in which he had been speeding on an icy road without wearing a seat belt. The lawsuit names General Motors Corp. as a defendant as well as local ambulance service Emergency Providers Inc. and Liberty Hospital, both of which tried to save Thomas after the accident and may now have reason to be sorry they got near him. (Cindy Lin, “Derrick Thomas (1967-2000)”, ChannelOne.com, Feb. 9; Kenny Morse, editorial, MrTraffic.com, Feb. 10; “Derrick Thomas’ mother sues GM”, Jefferson City News-Tribune, Oct. 11). Update Aug. 18, 2004: jury rejects suit against GM. (DURABLE LINK)

November 28 – “NCAA Can Be Sued Under ADA, Federal District Judge Rules”. “In a major defeat for the National Collegiate Athletic Association, a federal judge has ruled that it qualifies as a “place of public accommodation” under the Americans with Disabilities Act and can therefore be sued by a learning-disabled student who says its discriminatory rules barred him from getting an athletic scholarship.” (Shannon P. Duffy, Legal Intelligencer (Philadelphia), Nov. 14).

November 28 – Federal power over mud puddles? The Supreme Court is expected to resolve this term whether the federal Clean Water Act applies to “isolated wetlands that have no connection to major rivers or drainage systems flowing from state to state.” Environmental groups favor wide federal authority over “prairie potholes” and the like, which they say are important to migratory waterfowl. A brief supporting property owners, however, counters: “Under the Corps’ [of Engineers] interpretation of the [Act], its regulatory authority stretches to virtually every body of water in the country — including seasonally wet areas in homeowners’ backyards — because virtually any water body is or could be used as a feeding or resting place by some of the 5 billion birds that migrate over the continental United States each year.” The brief also warns: “The Corps’ rationale would justify federal regulation not just of all waters but of virtually all human activity.” (Warren Richey, “Wetlands and federal power”, Christian Science Monitor, Oct. 31).

November 27 – Follow instructions, please. Well before Election Day, the Gore campaign was ready for a massive recount campaign based on a 1994 manual called The Recount Primer, whose tactical advice presciently foreshadows many recent developments (Ryan Lizza, “Overtime: How the Gore campaign came back from the dead”, The New Republic Online, Nov. 16).

“Note: If you make a mistake, return your ballot card and obtain another. AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD. –Voting instructions, Palm Beach County, Florida”

“The capitalized words appeared on the voting guide clearly posted in every Florida polling station that used Votomatic machines and in leaflets mailed to many voters in Palm Beach. They are the only instructions on the flyer in bold capitals. … The [Gore] position, so far as I can glean, is that … [a] vote should be counted … even if the voter blithely ignores clear voting instructions” … A Gore victory through judicially imposed, loosely interpreted hand counts in South Florida will resonate across the country as the triumph of a liberalism that has replaced responsibility with victimhood, law with legalism, character with partisanship. Rather than challenging voters to a new civic responsibility, the Democrats are defining down democracy to include those who cannot even be held responsible for following a simple ballot instruction.” (Andrew Sullivan, “TRB from Washington: Bad Intent”, The New Republic Online, Nov. 22; see also commentaries on andrewsullivan.com, and Charles Krauthammer, “There is a good reason that casting a ballot is a precise act”, Dallas Morning News, Nov. 24). “[I]t is the voter’s duty to take reasonable care to record a vote. To correct that judgment after the fact is unfair.” (”Dimples aren’t votes” (editorial), Miami Herald, Nov. 24).

November 27 – Asbestos litigation destroying more companies. The lawsuits’ relentless logic is devouring more leading industrial companies. Armstrong World Industries, the nation’s pre-eminent manufacturer of flooring, failed to repay $50 million in commercial paper that came due Wednesday (Reuters/Yahoo, Nov. 22), and a Nov. 16 Bloomberg story said its parent, Armstrong Holdings Inc., may seek Chapter 11 bankruptcy protection. The company’s stock, which stood at $36 in January, on Friday closed at 1 3/16 (stock chart). In early October (see Oct. 6-9) Owens-Corning, the number one maker of insulation, filed for bankruptcy protection (asbestos product makers list, law firm of Patten, Wornom, Hatten & Diamonstein).

Many of these concerns’ involvement with asbestos was both remote in time and tangential to their main operations. Of Crown Cork & Seal, the large packaging concern that closed Friday at 4 5/8, down from 24 in January and 50 in 1997, Yahoo/Reuters reported as follows: “Its only ties to asbestos-related products stem from an acquisition more than 40 years ago of a company that had a subsidiary that made insulation products, said Andrew O’Conor, an analyst with Merrill Lynch. It sold the insulation business three months after acquiring it, he said. ‘They’re more of a peripheral player,’ O’Conor said. ‘It was a tiny thing.’” (stock chart; “Crown Cork jumps on reevaluation of asbestos claims”, Yahoo/Reuters, Nov. 20). For trial lawyers’ ingenuity in identifying new defendants to name in suits, see June 1 and “Thanks for the Memories“.

Each removal of another solvent defendant shifts more litigation pressure onto remaining defendants. Owens-Illinois, the prominent glass and packaging concern, closed Friday at 3 13/16, down from 25 in January and 48 in 1998 (stock chart). Federal-Mogul (brakes, auto parts) closed at 2, down from 24 in January and 70 in 1998 (stock chart). W.R. Grace, the giant chemicals manufacturer much in the news lately because of the contamination of its Montana vermiculite mining operations with naturally occurring asbestos, closed Friday at 2 1/2, down from 15 in January and more than 20 earlier. (stock chart). Investment analyst Jim Cramer wrote last month that Armstrong, Federal-Mogul, and Grace, all longtime mainstays of industrial portfolios, now find themselves “on a death march to zero … I am combing through this embattled trio looking for signs that they won’t meet Owens’ fate. I haven’t found any yet.” (James J. Cramer, “The Death of the Value Stalwarts”, TheStreet.com, Oct. 25). Of the billions sunk in the litigation, a very high percentage goes toward the process itself, or other purposes other than actual compensation of workers for injuries. Meanwhile, intensive advertising and recruitment campaigns by law firms continue to attract thousands of new asymptomatic claimants into the system, while asbestos plaintiff’s lawyers are numbered prominently among instigators of the “tobacco round” as well as among the most prominent financial supporters of the Democratic Party and the Al Gore campaign. (DURABLE LINK)

November 26 – Sunday election special: votes only lawyers can see. “He squinted and stared, but Bob Kerrey was blind to the party line.” The Nebraska senator was making the South Florida rounds to talk up the Democratic line on the virtues of hand recounts and patience, but when he squinted at a ballot allegedly sporting an actual “dimpled chad” of the sort his fellow Democrats want to count, Kerrey admitted he couldn’t see it. “‘I better get out of here before I get you guys in trouble,’ Kerrey reportedly joked to his party’s team. But senator, isn’t it a little scary to decide an election with votes that only lawyers can see?” (Brad Hahn, “Nebraska senator sees sights — but can’t see chads”, South Florida Sun-Sentinel, Nov. 25; Drudge Report transcript of Broward dimple-asserting). “On my local television station, the latest update was followed by the reassuringly familiar commercial for personal-injury lawyers Welch, Graham and Manby — ‘where winning is no accident’. That’s the spirit!” (Mark Steyn, “Even Al’s friends are sick of his dimples”, Sunday Telegraph (UK), Nov. 26).

On Saturday, the Broward County Election Canvassing Board conveniently decided to go looking for dimpled chads on 500 previously disqualified absentee ballots, even though on an absentee ballot the “voter can clearly see how he voted and whether the chad fell out, unlike the Votamatic machines used at polling places in Broward.” Did demonstrators, as Democrats claim, “intimidate[ ] the Miami-Dade canvassing board into canceling its planned recount [?]. Nonsense, say board members. ‘I was not intimidated,’ David Leahy told CNN. ‘My vote had nothing to do with the protests. It simply had to do with not enough time.’” (John Fund, “Gore’s Electoral ‘Lock Box’”, Opinion Journal (WSJ), Nov. 25).

“Vice President Gore’s effort to convince Florida election officials to count indented or ‘dimpled’ ballots as votes for him runs contrary to the practice in almost all jurisdictions that use the punch card system, with the notable exception of Texas, the home state of George W. Bush, his rival for the presidency. In the 38-year history of punch card voting, only a small number of communities have counted these ballots as valid, voting experts said. R. Doug Lewis, executive director of the Election Center, a nonpartisan group that trains and certifies election supervisors, said that to his knowledge, with the exception of Texas, ‘no election official has counted a dimpled chad as a vote. Instead they tend to turn the question over to a judge, and historically courts around the country have said dimpled chads aren’t clear enough for them,’ Lewis said, stressing that he is not referring to Florida.” (John Mintz, “Most states don’t count dimples”, Washington Post, Nov. 24). Despite the Florida Supreme Court’s wholesale rewrite of the state’s election law after the fact, “it is still possible that the will of the people will prevail. … Broward County has for 10 years refused to count ‘dimpled chad’ as a vote. Now, it has changed that rule. … It may become necessary for [the Florida legislature] to exercise its responsibility and ensure a fair outcome to the presidential election of 2000.” (”Elections: A grand larceny” (editorial), Florida Times-Union (Jacksonville), Nov. 24).

“Today, the courts — that is, the lawyers – run nearly every aspect of American life. … They tell us how much tobacco is appropriate. Who may buy and sell guns — and how. What level of care governments must provide the needy. They set taxes and school curricula. Now they mean to pick a president.” (”Government by lawyers” (editorial), New York Post, Nov. 24 — cites our editor). “Where has abandoning law and tradition left us? Courts have put the fate of the election in the hands of Democratic partisans reviewing pregnant chads only in Gore’s strongholds. … Is it any wonder that the rest of the world is laughing at us?” (”Comedy of errors of the lowest sort” (editorial), Chicago Sun-Times, Nov. 24).

November 24-26 – Gore lawyers mishandled Illinois precedent. Lawyers for Vice President Al Gore repeatedly cited, and the Florida Supreme Court obligingly quoted at length and with approval, an Illinois Supreme Court opinion from 1990 which directed election officials to consider voters’ intent, which the Gore team suggested provided a rationale for counting punchcard ballots with the now-fabled “dimpled chad”. But in fact “the Illinois court actually affirmed a trial judge’s order to exclude dented ballots,” and a Cook County attorney who provided the Gore effort with an affidavit to the contrary last week now concedes that his recollection was mistaken (Jan Crawford Greenburg and Dan Mihalopoulos, “Illinois case offers shaky precedent”, Chicago Tribune, Nov. 23). “Doesn’t [Gore attorney David] Boies now have a professional obligation to inform the courts and others of his error?,” asks Mickey Kaus (”Hit Parade”, Kausfiles.com)

The generally liberal Miami Herald, which endorsed Gore in the election, editorializes that the Florida high court “made hash of Florida’s election law” and agrees with Gov. George W. Bush’s charge that the court “has changed the rules after the election”. It cites “the court’s unseemly willingness to stand in for the Legislature and create a new election scheme … by deciding that the counts could continue until as late as Monday morning, the justices have substituted their own deadlines for those that have long existed in state law and that Secretary [of State Katherine] Harris was sworn to uphold.” (”A muddled ruling raises questions of fairness” (editorial), Miami Herald, Nov. 23). On the New York Times op-ed page, New Republic legal affairs correspondent Jeffrey Rosen calls the Florida court’s rewrite of state election law “a bold example of judicial activism” in which the court “vastly overplayed its hand” and which “has made the justices appear to be partisans rather than neutral arbiters”. Rosen says the ruling allows Republicans to “argue plausibly that activist Democratic judges changed the counting rules in the middle of the game, only after it was obvious that the Democratic candidate needed dimpled ballots to win”. (”Florida’s Justices Pushed Too Far”, Nov. 23).

November 24-26 – “Qwest ordered to pay AT&T $350 million”. A Travis County, Texas jury has voted $1.2 million in actual damages and $350 million in punitive damages against telecommunications carrier Qwest for negligently cutting an AT&T fiber-optic phone line on several occasions in 1997. “It’s not unique that a fiber line gets cut. It’s unique it gets to [a] jury and gets this far down the road,” an investment analyst told the Austin American-Statesman. “We tried to send a message,” said a juror, as usual. “The only way to do that was to make the stockholders feel it in the bottom line.” (AP/CNet, Nov. 15).

November 24-26 – “Company Is Told to Stay and Face New Union”. A Los Angeles federal judge, “acting on a union’s complaint, has … issued a preliminary injunction preventing Quadrtech, a small manufacturer of earrings and ear-piercing machines, from laying off 118 newly unionized workers and moving its manufacturing operations to Tijuana until labor complaints against it are resolved. … Lawyers at the National Labor Relations Board, which petitioned the court on behalf of the workers, said this was the first time an American company trying to keep out a union had been prevented from leaving the United States.” (Anthony DePalma, New York Times, Nov. 23).

November 22-23 – “Gore’s point man argued against dimples in 1996″. Attorney Dennis Newman of Boston is now the point man in charge of putting Al Gore in the White House by insisting that “dimples show the true intent of the voter. Voters caused those dimples. Dimples should count. Four years ago, in a similar election spat, Newman took a much different stand. Employing his best legal tactics on behalf of a Democrat holding a slight lead in a primary race for Congress, Newman scoffed at the idea of counting the tiny indentations as votes.” Back in that case, Newman endorsed the series of propositions now urged by Republicans about the tiny indentations: that they could have been inflicted by later handling, that they could represent hesitation marks (the kind coroners find on suicides — ed.), and so forth. (Joel Engelhardt, Palm Beach Post, Nov. 22). Although the press has widely echoed the assertion of Gore attorneys that federal courts stay out of state electoral disputes — even, purportedly, when the elections are for federal offices such as president — Alabama Attorney General Bill Pryor argues that there is squarely opposed precedent to the contrary in the Eleventh Circuit, which includes both Alabama and Florida. In Roe v. Alabama (1995), the Eleventh Circuit found a federal constitutional violation in state balloting irregularities that accompanied a very close race, including a court order which appeared to change the rules after the election as to which votes would count. Moreover, the federal court intervened in Roe even though the election was for Alabama state office, not federal office (”Attorney General Bill Pryor and Secretary of State Jim Bennett File Friend of the Court Brief in Presidential Election Dispute”, Office of the Alabama Attorney General, Nov. 20, links to PDF document). (DURABLE LINK)

November 22-23 – “Descent into the lawyerclysm”. Humorix, the Linux-oriented parody site, takes off from the Florida election mess to imagine the lawsuit-ridden dystopia of the not too distant future: “Nuclear weapons are scrapped and replaced by subpoenas. … While most forms of physical violence ceases, the ensuing legal violence is far, far worse — a fleet of lawyers can bring poverty and bankruptcy to billions of innocent civilians within a matter of hours. Stage 6. World economy collapses under the weight of overlawyering.” (Jon Splatz, Nov. 19).

November 22-23 – Don’t do it, Tillie! Tillie Tooter, 84, gained national attention in August when she survived for three days trapped in her wrecked car, which had gone over a Florida interstate highway abutment; she “survived by capturing rainwater in a steering wheel cover and divvying up a stick of gum, a cough drop and a mint.” Now a lawyer is representing her and has “put her rescuers on notice that she intends to sue them for not finding her sooner”. Jim Romenesko at Obscure Store has some advice for her: you’re an old lady, you really don’t want to spend your remaining days hanging around lawyers and courtrooms. (Jodie Needle, “Tillie Tooter to sue Lauderdale, FHP for not finding her sooner in wreck”, Fort Lauderdale Sun-Sentinel, Nov. 16).

November 22-23 – France OKs wrongful-birth suit. “A severely disabled French boy has won a landmark case against medical authorities for allowing him to be born rather than aborted.” Josette and Christian Perruche sued doctors for negligently failing to realize that Josette had contracted rubella (German measles) during her pregnancy; their son Nicolas was born deaf, part-blind and with mental disabilities as a result. “Would my son really have wanted to live if he’d known he had all these disabilities?” asked Christian. “That’s the question I’m posing.” (”Boy compensated for being born”, BBC, Nov. 17).

November 22-23 – “eBay suit wins class-action status”. San Diego Superior Court Judge Linda B. Quinn has granted class-action status to a suit against eBay that “alleges the largest Internet auction company is liable for facilitating the sale of fake sports memorabilia”. (”eBay suit wins class-action status”, Bloomberg News/CNet, Nov. 19) “If successful, the suit could undermine eBay’s business model,” the Industry Standard reported earlier this year (see July 13). “Legal experts say that if the company can be held liable for the actions of its users, it is likely to face a flurry of suits that would severely handicap its business.” Also earlier this year four New Jersey teens “were treated for vomiting and disorientation after taking a substance called dextromethorphan, or DXM”, which one of them had bought on the online flea market. (Mylene Mangalindan, “Is eBay Liable in Drug Sale?”, WSJ Interactive/ZDNet, May 31)(see letter, Jan. 16).

November 22-23 – Canada reins in expert witnesses. “The Supreme Court of Canada accelerated its campaign against doubtful expert witnesses [Nov. 9], ruling that ‘novel scientific evidence’ from a Quebec sexologist had no place in a criminal trial.” Like the U.S. Supreme Court in its landmark 1994 Daubert decision, the Canadian high court urges judges to take responsibility as “gatekeepers” to exclude dubious testimony. (Kirk Makin, “Top court reins in use of experts”, The Globe and Mail (Toronto), Nov. 10).

November 21 – The O.J. trial of politics. By early in the morning after the long election night, “the phones began ringing at the 16-lawyer West Palm Beach personal injury firm Lytal, Reiter, Clark, Fountain & Williams, which claims credit for 22 multimillion-dollar verdicts and settlements. Local Democratic staffers had used the firm’s conference room to make get-out-the-vote calls on Election Day, and the phones were still there.” (Peter Aronson, “Lawyers take center stage”, National Law Journal, Nov. 20). “This is the O.J. trial of politics,” the Boston Globe quotes GOP lawyer Tom Rath as saying, while the Wall Street Journal reports that clients in high-profile cases turn to attorney David Boies “as much to signal a declaration of war as anything else.” (Both quoted in Deborah Asbrand, “David Boies Rides Again”, Industry Standard/Law.com, Nov. 17). It’s a class action suit with the presidency rather than the coffers of the tobacco or gun industries as the target, argues the Wall Street Journal’s editorial side (”Al Gore’s Class-Action”, Nov. 17). When Gore brings out the lawyers by the hundreds to help him, he’s bringing out his base (Rich Lowry, “Lawyers: The Gore Hard Core”, New York Post/National Review Online, Nov. 20).

November 21 – Burglar sues for compensation. In Australia, “[a] man who broke into a house and attacked the home owner when he was discovered has launched a civil action against his victim for compensation.” Shane Colburn says he is still suffering “physically and emotionally” from the aftermath of the 1997 incident, in which he scuffled with Peter Vucetic and Giavanna Grah and was attacked by the couple’s dogs. (”The thief who sued his victim”, Daily Telegraph (NSW, Australia), Nov. 17).

November 21 –Behind “Boston Public”. “[David E.] Kelley, an ex-lawyer [and creator of hit TV show Ally McBeal and the new Boston Public], has made this subject [overregulation] the obsession of every TV show he has written. Whenever teachers or administrators try to help or discipline students, they immediately butt up against their or their bosses’ anxiety about litigation. The worst, in Kelley’s book, are sexual harassment laws, which he started railing about in Ally McBeal long before Monica Lewinsky got down on her knees. But there are also digs at anti-discrimination laws and an episode about a degrading school board regulation that requires all teachers to submit to thumb printing since they work with children. . . . people who should be looked up to and supported are met instead by automatic suspicion.

“So what’s the parallel between Boston Public and the current crisis? That you can’t educate children, just as you can’t run a country, in an atmosphere of rancor and litigiousness, when the people who are supposed to be in charge are dismissed in a knee-jerk fashion as corrupt and illegitimate by the people they’re supposed to be governing.” (Judith Shulevitz, “Culturebox: The Ungovernable Boston Public”, Slate, Nov. 10; “Public-School Teachers, Those Ink-Stained Wretches”, Nov. 14 (more on teacher fingerprinting)).

November 21 – Reckless skier convicted. Nathan Hall has been convicted of criminally negligent homicide in the case arising from his fatal collision with another skier three years ago on the slopes at Vail, Colo. (see Sept. 25-26) (Steve Lipsher, “Skier verdict closes chapter”, Denver Post, Nov. 18; “Ski Racer Convicted in Homicide”, AP/FindLaw, Nov. 17).

Tagged as: Alabama, Alaska, antitrust, asbestos, attorneys general, Australia, Baltimore, bankruptcy, Canada, Connecticut, Dallas, Daubert, Denver, Europe, France, General Motors, Germany, hospitals, Illinois, Mark Steyn, Montana, Nebraska, New Jersey, Philadelphia, San Diego, Seattle, silicone breast implants, tobacco, Washington state

October 2000 archives, part 2

by Walter Olson on October 20, 2000

October 19 – Sexual harassment: ask the experts (if that’ll help). CNN.com asks authorities on harassment law for advice on handling common workplace situations and gets strikingly contradictory answers. Should employers ban consensual dating between supervisors and subordinates? Yes, says employment-law attorney Anne Covey; no, says business professor Dennis Powers. Does a desk photo of a wife or girlfriend in a bikini count as harassment? Yes, says Covey (”You wouldn’t allow somebody in a bathing suit to be in the office. So I don’t think the picture is appropriate either”); no, says Powers. Although the number of harassment complaints filed with the EEOC has been flat recently, sums of money recovered through the agency’s efforts have more than doubled since 1995. And don’t expect a potential complainant to tell you you’re doing something wrong before taking a gripe to management, says Covey: “An employee does not have an obligation to walk up to you and educate you about your behavior that they find to be inappropriate”. (Larry Keller, “Sexual harassment: Serious, subtle, stubborn”, CNN.com, Oct. 3).

October 19 – All shook up. Music student Anna Lloyd, 22, was among the 136 survivors of a fiery 1999 American Airlines plane crash at the Little Rock airport that killed 10 passengers and the pilot. Her attorney acknowledges that she is physically fine after the minor injuries she sustained at the time, but he says the psychological scars of the experience have left her emotionally disconnected, anxious, prone to angry outbursts, and socially withdrawn. American Airlines thought $330,000 in compensation was sufficient for her situation, but Lloyd asked a jury for $15 million, and last week it gave her $6.5 million. (”Jury awards woman $6.5 million in plane crash trial”, AP/FindLaw, Oct. 13; “Plane crash traumatized college student for life, lawyer argues”, AP/CNN.com, Oct. 11; passenger and crew list, Flight 1420 (Arkansas Democrat-Gazette)). In August, in the first lawsuit over the Little Rock crash to go to trial, Lloyd’s friend Kristin Maddox was awarded nearly $11 million; see Aug. 31.

October 19 – Courtroom crusade on drug prices? We’ve lost count of the number of fields of litigation that eager lawyers have nominated as the “next tobacco”: guns, lead paint, casinos, HMOs, class actions against Microsoft, and so on. One more to add to the scrapbook, which we missed earlier: class action suits over pricing of pharmaceutical drugs. “Chicago lawyer Robert Green … says [they] could eventually dwarf current tobacco litigation. ‘There’s much more money at stake, if you can believe that,’ he said.” (Mark Curriden, “Drug firms’ price-setting investigated”, Dallas Morning News, Dec. 7, 1999).

October 18 – Historically inauthentic? Book her. Betty Deislinger, age 70, fixed up an 1870s house in a historic district of Little Rock, Ark., but declined to take the burglar bars off the front, the way the preservation code requires. She was arrested, fingerprinted and booked. (Suzi Parker, “Bars bring long arm of the law”, Dallas Morning News, Oct. 14).

October 18 – Yahoo pulls message board. “Within hours of a Miami appellate court’s order that Yahoo and America Online must disclose the identities of eight Web critics who allegedly defamed former Hvide Marine boss J. Erik Hvide, Yahoo shut down the Hvide Marine company’s message board where the offending words were posted. The board, where thousands of messages about the ups and downs at international marine services company Hvide Marine of Fort Lauderdale, Fla., were posted during the past few years, was also removed from the Web, and previously posted messages are no longer accessible.” “It may be a matter of Yahoo deciding they don’t want to create a headache for themselves by continuing this forum that has resulted in litigation,” said one of the lawyers in the case. (Dan Christensen, “Yahoo Pulls Marine Services Company Message Board”, Miami Daily Business Review, Oct. 17; Catherine Wilson, “Anonymous Net Posting Not Protected”, AP/Excite, Oct. 16; John Roemer, “The Battle Over John Doe”, Industry Standard/Law.com, Oct. 13; Slashdot thread on anonymous message-board speech).

October 18 – Birth cameras not wanted. In a recent survey, 40 percent of obstetricians said they had prevented families from using videocameras to record births, and 80 percent of those cited legal concerns. Such videotapes, or edited snippets from them, may be placed before juries in case of later malpractice suits. (Geraldine Sealey, “Lights, Camera, Lawsuit”, ABC News, Oct. 3) (& see Dec. 26).

October 18 – Product liability: Americanization of Europe? An expected European Community directive will expand rights to sue under product liability law, and business is worried about having to face “a whole new continent of potential plaintiffs.” Among ideas being considered are “the introduction of class actions and market-share liability, and the elimination of both the 70 million euro cap on damages and the ’state-of-the art’ defense.” However, European consumer groups point out that earlier rounds of liberalization have not resulted in sky-high American-style litigation levels: “Even if these latest pro-plaintiff reforms pass, companies still won’t face juries and punitive damages, the most unpredictable aspects of the U.S. system” — not to mention two other significant aspects of the U.S. system, the lawyer’s contingency fee and the failure of costs to follow the event. (Ashlea Ebeling, “Sue Everywhere”, Forbes, Oct. 16).

October 16-17 – George W. Bush on lawsuit reform. The Bush campaign has put up this page explaining the Governor’s point of view on civil justice reform, his record on the issue in Texas, and his plans for tackling it at the federal level if elected (disclosure: this site’s editor has been involved as an advisor to the campaign). (George W. Bush for President official site; Issues; Civil Justice Reform). And: Wall Street Journal lead editorial Monday assails the Democratic Party for its “captivity” to trial lawyers. “Mr. Gore walked into it again when his claimed visit with the FEMA head to inspect fire-damaged Parker County turned out never to have taken place. As the world now knows, he was in Houston for a fund-raiser with the head of the Texas trial lawyers association.” (”The Lawyer Issue”, Oct. 16).

October 16-17 – European roundup. “The rights of pets in divorce cases would be similar to those of children under proposals in Switzerland, where campaigners have 250,000 signatures for two petitions demanding substantial new rights for pets and other animals.” (Claire Doole, “Animals’ rights could make an ass of Swiss law”, Sunday Times (London), Oct. 8). In Britain, where the exemption of police jobs from the Disability Discrimination Act is set to expire in 2004, “police officers with part of a leg missing are likely to be pounding the beat and one-eyed drivers could be at the wheel of pursuit cars in four years’ time,” to the dismay of the Metropolitan Police Federation, which represents rank-and-file officers (James Clark, “Disability law exposes police to one-legged recruits”, Sunday Times (London), Oct. 8; see also Sept. 29). And in France, the resort town of Le Lavandou attempted to cope with a lack of space in its cemetery by passing a law making it unlawful for persons who lack a cemetery plot to die within town limits; the mayor acknowledges that there will be no levying of penalties against those who violate the law by dying without authorization (”Death be not proud”, AP/Fox News, Sept. 21).

October 16-17 – “Is $30,000 an hour a reasonable fee?” Readers of this space are familiar with the controversy in which attorney Peter Angelos is demanding $1 billion for representing the state of Maryland in the tobacco-Medicaid litigation, while the state is trying to get off with paying him a mere $500 million (see Dec. 9 and Oct. 19, 1999). One tidbit of which we had been unaware: “[A]fter a Baltimore Sun lawsuit forced Angelos to disclose his billing records, the public learned that the lawyer (and Orioles owner) had used $12-an-hour lawyers from a temp agency for nearly 25 percent of the hours he billed. From $12 to $15,000 is a markup of 1,250,000 [sic] percent.” (Phillip Bissett (Baltimore Regional Citizens Against Lawsuit Abuse), Washington Post, Aug. 13). Reader A. J. Thieblot of Baltimore points out that the actual markup number, based on the above calculations, was in fact only 125,000 percent, so in fact Angelos “showed restraint … Doesn’t that make you feel better about him?”

October 16-17 – Fed prosecutors chafe at state ethics rules. Two years ago Congress passed a law requiring U.S. Attorneys to obey the ethical rules applicable to lawyers in the states in which they work. The bill was named after its sponsor, Pennsylvania Republican Joseph McDade, who became a critic of overzealous prosecution after the Justice Department targeted him in an eight-year racketeering probe which ended in his acquittal by a jury. The new law is having a major effect in some states: in Oregon, for example, the state supreme court has forbidden all lawyers as an ethical matter to lie, cheat, or misrepresent themselves. Federal prosecutors complain that kind of restriction deprives them of many cherished investigative techniques, but House Judiciary Chairman Henry Hyde (R-Ill.) says he’s not inclined to repeal the McDade law. (Chitra Ragavan, “Federally speaking, a fine kettle of fish”, U.S. News & World Report, Oct. 16).

October 16-17 – Hasty tire judgments. Does Ford’s Explorer suffer a higher rate of tire-related accidents even when equipped with Goodyear tires, as opposed to the Firestones implicated in the recent furor? Last Monday the Washington Post reported that it did, only to report two days later that some of the vehicles in the data base it had been looking at were equipped with Firestones after all. “In its rush to judge the Explorer a deathtrap, the Post engaged in what social scientists call ‘confirmation bias.”" writes Jack Shafer of Slate (”The Washington Post Blows the Blowout Story”, Slate, Oct. 11; Dan Keating and Caroline E. Mayer, “Explorer Has Higher Rate of Tire Accidents”, Washington Post, Oct. 9; “Ford Cites Flaws in Tire Data”, Oct. 11).

Should the tire problem have been obvious from road statistics? It may depend on how you slice those statistics, says mathematician John Allen Paulos: crashes associated with tire failure are so rare as a percentage of all crashes that it can be easy to lose them in the data (”Statistics and Wrongdoing”, ABC News, Oct. 1). Reports of accidents and deaths “linked to” the tires flooded into the federal government’s National Highway Traffic Safety Administration after the furor broke, not because the crash rate had suddenly jumped, but because informants rushed to inform the agency of previously unreported older cases; and the phrase “linked to” itself elides issues of causation that can be resolved only by case-by-case investigation (Dan Ackman, “Tire Deaths Linked To Tough Questions”, Forbes.com, Sept. 7).

Also shedding light on the degree to which the origin of the tire problems remains less than fully obvious: “[p]laintiff’s lawyers have been trading theories, information and documents for more than a year in lawsuits related to the tires”, the news-side Wall Street Journal’s Milo Geyelin reported in August, but “so far they have yet to reach a consensus”. Some think the lower tire pressure recommended by Ford is a key factor, others downplay its significance; there’s no agreement as to whether the problem is specific to tires manufactured at Firestone’s Decatur, Ill. plant; and so on. (Milo Geyelin, “Theories Mount Regarding Root of Tire Defects”, Wall Street Journal, Aug. 23 (fee-based archive)). See also Melanie Wells and Robyn Meredith, “Nothing Comes Between Me and My SUV”, Forbes.com, Oct. 16; FindLaw page on tire litigation.

October 16-17 – “Judge Lenient With Perjurer, Cites Clinton Case”. “Chief U.S. District Judge James A. Parker told prosecutors last week that it was unfair of them to ask for a strict prison sentence in a New Mexico perjury case, pointing out that President Clinton recently asked for leniency for lying under oath.” Ruben Renteria Sr. had been acquitted of drug conspiracy but was convicted on a count of perjury related to the investigation. (Guillermo Contreras, Albuquerque Journal, Oct. 14) (via Drudge).

October 13-15 – Place kicker awarded $2 million. “A jury awarded a female place-kicker $2 million in punitive damages Thursday, ruling Duke University cut her from the team solely because of her gender.” Heather Sue Mercer, a walk-on player, had sued for damages that included emotional distress, humiliation and periods of depression after being dropped from the college team. Team members testified that Mercer was not a powerful kicker; the jury voted her $1 in compensatory damages and $2 million in punitives. (”Jury rules Mercer was cut because of gender”, AP/ESPN, Oct. 12; Reuters/Yahoo; “Ex-coach says he admired kicker’s ’spunk’”, AP/ESPN, Oct. 11; “Woman sues Duke over being cut from team”, Oct. 4). Update Dec. 30, 2002: appeals court overturns punitive damage component of verdict. See also Nov. 3-5 commentary.

October 13-15 – (Civil court) policeman to the world. Among the many foreign powers and principalities considered suitable targets for correction by way of lawsuits in American courtrooms: perpetrators of ethnic atrocities in Bosnia (”Jury returns $4.5 billion verdict against ex-Bosnian Serb leader Karadzic”, AP/CNN, Sept. 26); Chinese dictators who repressed pro-democracy demonstrators in Tienanmen Square (Edward Wong, “Chinese Leader Sued in New York Over Deaths Stemming From Tiananmen Crackdown”, New York Times, Sept. 1); Cuba, Iran, and other regimes that sponsor acts of terrorism in third countries (”Senate votes to allow compensation for terror victims, re-authorizes Violence Against Women Act”, CNN.com, Oct. 11; Seth Lipsky, “Justice for Alisa”, Opinion Journal (WSJ), Sept. 27); and OPEC, for fixing the international price of oil, which would become an offense suable in American courts under a bill okayed by a Senate panel (”Senate panel bill would allow lawsuit against OPEC”, Reuters/FindLaw, Sept. 21). Few of the American backers of these legal actions have been eager to point out the mirror-image corollary they would logically entail, namely suits against our own government and its elected officials in the courts of unfriendly foreign nations.

October 13-15 – Man sues over “Ladies’ Nights”. Christopher Langdon, a 48-year-old businessman, has filed federal lawsuits against nearly a dozen Orlando bars saying that their offering of “Ladies’ Night” discounts to women constitutes unlawful sex discrimination. He wants up to $100,000 and an end to the promotions. (Tyler Gray, “Man makes his move on ladies night”, Orlando Sentinel, Oct. 10).

October 13-15 – “Philly looking for a few good lawsuits”. More reaction to the plans of Philadelphia’s city solicitor Kenneth Trujillo, a class-action specialist, to establish a special legal strike force to hit up business defendants for money through offensive litigation (see Oct. 5). Quotes our editor (Patrick Riley, Fox News, Oct. 10).

October 13-15 – “Stop driving my car”. If you live in one of five states — New York, Rhode Island, Connecticut, Maine, and Iowa — “vicarious liability” laws make you automatically liable for the driving of anyone to whom you lend your car, even if the borrower has a clean record and there are no other advance signs of trouble. (In other states, lawyers who want to sue you as the owner must allege that you were at fault in some way.) The laws also apply to rent-a-car companies, putting them in an especially tough position since laws in some of the same states make it virtually impossible for them to turn away most prospective renters (James T. Riley, Citizens for a Sound Economy, Oct. 2).

October 12 – Wal-Mart wins female Santa case. “The Kentucky Commission on Human Rights has ruled that a Wal-Mart in Morganfield did not discriminate against Marta Brown when it forbid her from portraying Old St. Nick in December 1995.” (Chris Poynter, “Wal-Mart had right to stop female Santa”, Louisville Courier-Journal, Oct. 10).

October 12 – “All about Erin”. “It took a few months for the investigative journalists to overtake the Hollywood dream spinners, but by now it’s been pretty well established: What got left out of the blockbuster movie Erin Brockovich (now available at a video store near you) was in many ways juicier than what got put in.” Our editor’s latest column in Reason explains (October). Also: Michael Fumento of the Hudson Institute returns to the warpath (”Errin’ Brockovich”, American Outlook, Summer).

October 12 – Forfeiture-reform initiatives. Voters in three states, Massachusetts, Utah and Oregon, will consider initiatives that would curb the controversial law enforcement technique. “The ballot measures would, in effect, require law enforcement to prove that a crime had occurred before property could be forfeited. And drug money, instead of going back to police, would be sent to a public education fund in Utah and drug treatment funds in Oregon and Massachusetts.” (Karen Dillon, “Ballot initiatives seek to change forfeiture laws in three states”, Kansas City Star, Oct. 8; see May 25). National Post columnist David Frum asks some basic questions about the drug war in Canada and the U.S. (”Target ‘victims’ to solve the drug problem”, Sept. 9). And the name of Lebanon, Tennessee resident John Adams, 64, was added to the list of “collateral damage” drug war casualties when police officers mistook his house for one cited in a drug warrant, burst in and shot him dead. “It was a severe, costly mistake,” said the Lebanon police chief. “They were not the target of our investigation. We hate that it happened.” (Warren Duzak, “Innocent man dies in police blunder”, Nashville Tennesseean, Oct. 6).

October 12 – Political notes: friend to the famous. “Our Managing Partner John Eddie Williams [one of the Big Five trial lawyers who are splitting a $3.3 billion fee for representing Texas in the tobacco-Medicaid litigation -- see May 22, Sept. 1] and his wife Sheridan welcomed the first lady to their Houston home in August [1999]. Fifty guests enjoyed dinner with Hillary Rodham Clinton, who spent two days in Texas raising money for the Democratic Senate Campaign Committee and her own exploratory committee. The Williams’ home has been visited in the past by other well known workers on Capitol Hill including Vice President Al Gore, Sen. Edward Kennedy and Sen. Barbara Boxer. Ms. Clinton said she would be pleased to be an adopted senator for Texas Democrats.” (”Hillary Rodham Clinton Visits Williams’ Home”, from the Williams, Bailey law firm’s “Letter of the Law” newsletter, Oct. 1999 (displays correctly in IE, has trouble in Netscape — Netscape users might try “View Source”)) (top Texas soft money donors).

October 11 – Brownout, Shivers & Dim, attorneys at law. “[T]he nation’s energy producers, even those proposing to meet the surging demand for electricity with the cleanest types of power plants, find themselves stymied by environmental groups concerned about pollution and damage to natural resources.” Hydroelectric plants, bird-menacing windmill farms (”Condor Cuisinarts”) and natural-gas-fueled turbines (ugly-looking) have all run into opposition from enviros, and don’t even think of asking them to consider coal or nuclear. “‘Bottom line,’ says Sen. Slade Gorton, a Washington Republican who often sides with the power industry, ‘whatever suggestion you make, they find something wrong with it and bring more lawsuits.’” (Jim Carlton, “Electricity Crunch May Force The U.S. Into Tough Tradeoffs”, Wall Street Journal, Oct. 10) (subscriber-only site).

October 11 – Curse of the dummy’s kiss. In Hammond, Indiana, Brenda Nelson has filed a federal lawsuit against the American Red Cross, saying she “contracted herpes after giving mouth-to-mouth resuscitation to an improperly sanitized mannequin.” (”Woman sues Red Cross, alleging she contracted herpes from CPR dummy”, AP/FindLaw, Oct. 10). (Update Dec. 7: she drops case)

October 11 – New Hampshire chief justice acquitted. By a wide margin, the Granite State’s senate declined to convict the state’s highest judicial officer, David Brock, on any of several counts against him (see April 5). (”Brock acquitted overwhelmingly”, AP/Concord Monitor, Oct. 10).

October 11 – NLRB lurches left. The National Labor Relations Board, according to Republican and business critics, acts as if it wants to yank labor law as far left as it can before the Clinton term ends. Among its more dramatic recent decisions were one in July making it a labor law violation to question a nonunion worker in a disciplinary context without allowing him to have present a co-worker of his choosing, and one in August facilitating the unionization of temporary workers (Michael D. Goldhaber, “Is NLRB in a Pro-Labor Mood?”, National Law Journal, Oct. 4; Julie Kay, “The Buddy System”, Miami Daily Business Review, Sept. 8). Meanwhile, a General Accounting Office study has found that businesses undergoing labor strife are six and a half times as likely as other businesses to be made the targets of inspection by the Occupational Safety and Health Administration, bolstering employer suspicions that unions often use OSHA inspections as a weapon to make employers’ lives difficult (”Worker Protection: OSHA Inspections at Establishments Experiencing Labor Unrest”, GAO, August (PDF)).

October 11 – Welcome visitors. Among sites that link to Overlawyered.com are the Clatsop County (Ore.) Coastal Voice, the Zoh Hieronymus show, the CBEL.com alternative media guide, Flangy, iRights, SkeptiNews and What’s On It For Me? weblogs, Cindy Furnare’s Conservative Education Forum, Wisconsin Democratic Congressional candidate Mike Clawson (MikeforCongress.com), the Alexander County (N.C.) Republican Party, the Idaho, Illinois and Wisconsin Libertarian parties, and firearms sites The Gunnery, PaulRevere.org, RKBA Legal Docket, and SaferGunsNow.org.

Tagged as: Arkansas, Baltimore, Connecticut, contingent fee, Dallas, divorce, emotional distress, Erin Brockovich, Europe, France, governors, Houston, Idaho, Illinois, Indiana, Iowa, Kentucky, lead paint, Maryland, Massachusetts, New Hampshire, New Mexico, obstetric, Oregon, Pennsylvania, Philadelphia, Rhode Island, Switzerland, Tennessee, tobacco, Utah, Wisconsin

{ 1 comment }

October 2000 archives, part 1

by Walter Olson on October 10, 2000

October 10 – Hot pickle suit. Veronica Martin of Knoxville, Tenn. has sued a local McDonald’s restaurant, alleging that last October it sold her a hamburger containing an overly hot pickle that dropped onto her chin, burning it so badly as to leave a scar. She’s asking $110,000 for medical bills, lost wages, physical and mental suffering, while her husband Darrin says he deserves $15,000 for being deprived of her services and consortium. The complaint was filed by attorney Amelia G. Crotwell, of a Knoxville law firm coincidentally known as McDonald, Levy & Taylor. (Randy Kenner, “Couple sue McDonald’s over spilled ‘hot’ pickle”, Knoxville News-Sentinel, Oct. 7; “Couple Sues Over Hot Pickle Burn”, AP/Yahoo, Oct. 7). (case settled: see April 16, 2001)

October 10 – “Gunshot wounds down almost 40 percent”. The steep decline took place between the years of 1993 and 1997, well before the unleashing of mass litigation against gunmakers by way of big-city lawsuits (AP/USA Today, Oct. 8). And despite attempts to redefine private ownership of guns as some sort of out-of-control public health epidemic, “the number of fatal gun accidents is at its lowest level since 1903, when statistics started being kept.” (Dave Kopel, “An Army of Gun Lies”, National Review, Apr. 17). The Colorado-based Independence Institute, of which Kopel is research director, maintains a Second Amendment/criminal justice page which includes a section on gun lawsuits.

October 10 – Spread of mold law. Injury and property damage claims arising from the growth of mold in buildings were “virtually unheard of a few years ago” but are now among the “hottest areas” in construction defect and toxic tort law, reports Lawyers Weekly USA. “I view these mold claims as similar to asbestos 30 years ago,” Los Angeles lawyer Alexander Robertson told the Boston-based newspaper. “Mold is everywhere,” another lawyer says. “There are no specific government guidelines and not a whole lot of medical information on it. It’s ripe for lawyers to get into and expand it.” Most commonly found when water gets into structures, mold has been blamed for a wide variety of health woes including “respiratory problems, skin rashes, headaches, lung disease, cognitive memory loss and brain damage, common everyday symptoms that could be caused by other factors. That’s where lawyers and expert witnesses come in.” (”Toxic mold a growing legal issue”, UPI/ENN, Oct. 6) (via Junk Science).

October 10 – Updates. Following up on stories covered earlier in this space:

* Amid “tense confrontations”, attempts to disrupt and block the march, and the arrest of 147 protesters, Denver’s Columbus Day parade (see Oct. 3) went on without actual bloodshed: Rocky Mountain News, Denver Post and New York Post coverage, and National Review commentary.

* At the time of our June 12 commentary, hyperactive Connecticut attorney general Richard Blumenthal was up for a Second Circuit federal judgeship; now, the window of opportunity for confirmation having slammed down on Clinton nominees, he’s angling for the Senate seat that Dems hope Joe Lieberman will soon vacate. David Plotz in Slate profiles the ambitious pol as state AG, “always trolling for power and press”. (Sept. 15).

* In the race-bias case filed by 21 workers at a northern California Wonder Bread bakery (July 10, Aug. 4), a judge has reduced the jury’s punitive damage award from $121 million to $24 million (Dennis J. Opatrny, “Dough Sliced in Wonder Bread Case as Punitives Cut by $100 Million”, The Recorder/CalLaw, Oct. 9).

* An English instructor at the City College of San Francisco has dropped his suit against the proprietor of a “course critique” Web site that posts anonymous critiques of teachers (see Nov. 15, 1999). Daniel Curzon-Brown agreed to drop his defamation suit over comments posted about him at the site and pay $10,000 in attorneys’ fees to the American Civil Liberties Union, which had represented the proprietor of the website, Teacherreview.com. An ACLU lawyer hails the outcome as a victory for free speech on the Web. (Lisa Fernandez, “Instructor at City College settles suit on Web critiques”, San Jose Mercury News, Oct. 3).

October 6-9 – Owens Corning bankrupt. The building materials giant, known for its Pink Panther fiberglass insulation mascot, has filed for Chapter 11 bankruptcy protection, thus becoming one of the biggest of the 25+ companies to be bankrupted so far by the ongoing litigation over injuries attributed to asbestos. Between 1952 and 1972 it sold a pipe insulation product trade-named Kaylo containing the mineral, which brought it total revenues of $135 million over that period; since then it’s paid or committed to pay $5 billion in resulting injury claims, with billions more still looming ahead (Oct. 5: CNNfn; AP; Reuters; company site). Over the years, Owens kept coming back to set aside one more supposedly final reserve to cover its remaining lawsuit exposure, but was proved wrong each time as claims accumulated (representative sunny-side-up profile: Thomas Stewart, “Owens Corning: Back from the Dead”, Fortune, May 26, 1997). In late 1998 it agreed to pay $1.2 billion to settle what were billed as 90 percent of the claims then in its pipeline, but that pipeline soon filled up again as lawyers filed new suits (”Owens Corning settles suits”, CNNfn, Dec. 15, 1998). Regarding the irrationality of the current asbestos litigation system as a way to compensate injured workers, its high overhead and delay, the capriciousness of its outcomes, and its burdensomeness to the thousands of businesses that by now have been pulled in as defendants, see the testimony of several witnesses at the House Judiciary Committee hearing held July 1, 1999, in particular Harvard prof Christopher Edley, former HHS secretary Louis Sullivan, and GAF’s Samuel Heyman; regarding the quality of many of the claims, the means by which many were recruited, and the techniques used to maximize the number of defendants named in each, see our “Thanks for the Memories”, Reason, June 1998.

Owens Corning at various times acquired a reputation as the asbestos defendant that would try to meet the plaintiff’s lawyers halfway rather than fight them ditch by ditch. It opposed last year’s proposal for a legislated federal system of asbestos compensation, saying that it placed more confidence in the arrangements it was negotiating with trial lawyers to resolve claims (Owens testimony and attachment). This testimony was delightedly seized on by the bill’s opponents (dissent by twelve Democratic members, see text at note 8; note the striking similarity in the dissent’s overall arguments to those in earlier ATLA testimony). Earlier, the company had even gone so far as to fund discovery by trial lawyers aimed at uncovering other asbestos defendants for them to sue in hopes of taking some of the pressure off itself, according to Michael Orey’s Assuming the Risk: The Mavericks, The Lawyers and the Whistle-Blowers Who Beat Big Tobacco (Little, Brown, 1999, p. 255). In the end, these methods seemed to work no better in saving it from ruin than the ditch by ditch style of defense worked for others.

Iin their dissenting opinion, the twelve Democratic House members also wrote as follows: “We also find little evidence to support the proponents’ claim that the legislation is needed because we will otherwise face a growing stream of bankruptcies by defendant companies. …Our review of the specific liability statements by publicly traded asbestos defendants confirms that the principal remaining asbestos defendants are not facing any significant threat of bankruptcy.” They name, as particular examples of companies for which there is no such threat, W.R. Grace and Owens Corning. “The situation is much the same with other significant asbestos defendants – U.S. Gypsum, Federal Mogul, Armstrong World Industries, and Pfizer (parent company of Quigley) all have indicated there is little likelihood that asbestos liability could lead to bankruptcy.” (see text at notes 10-15). Pfizer aside, most of these stocks were hit Thursday on Wall Street with losses of 20 to 35 percent of their value, and many have lost 75 percent or more of their value over the past year (Jonathan Stempel, “Owens Corning Woes Hit Other Firms”, Yahoo/Reuters, Oct. 5). It would be remiss of us not to name the twelve Judiciary Democrats responsible for this peer into a decidedly clouded financial crystal ball: they are John Conyers, Jr. (Mich.), Howard L. Berman (Calif.), Rick Boucher (Va.), Robert C. Scott (Va.), Melvin L. Watt (N.C.), Zoe Lofgren (Calif.), Sheila Jackson Lee (Texas), Maxine Waters (Calif.), William D. Delahunt (Mass.), Steven R. Rothman (N.J.), Tammy Baldwin (Wisc.), and Anthony D. Weiner (New York). (DURABLE LINK)

October 6-9 – Bioethicist as defendant. Arthur Caplan of the University of Pennsylvania, perhaps the nation’s most quoted medical ethicist, is now also apparently the first to face a lawsuit over his advice. “The father of Jesse Gelsinger, an 18-year-old from Arizona who died a year ago during experimental therapy for his inborn metabolic disorder, named Caplan in a lawsuit against several Penn doctors and two hospitals,” saying he should not have advised researchers to use full-grown research subjects on ethical grounds (because they could give knowing consent), as opposed to infants, in their experimental therapy. Some say that for practitioners to start getting sued represents a sign that bioethics has finally made it as a discipline. (Arthur Allen, “Bioethics comes of age”, Salon, Sept. 28).

October 6-9 – Car dealers vs. online competition. The Internet could make car buying a lot cheaper and easier; unfortunately, existing dealers have a strong lobby in state capitals and have been working hard to block online competition (Solveig Singleton, “Will the Net Turn Car Dealers Into Dinosaurs?”, Cato Briefing Papers #58, July 25 (study in PDF format); James Glassman, “Car Dealers Declare War on the New Economy”, TechCentralStation/ Reason Online, April 3; Murray Weidenbaum, “Auto dealers quash Internet competition”, Christian Science Monitor, Aug. 17; Scott Woolley, “A car dealer by any other name”, Forbes, Nov. 29, 1999).

October 6-9 – Blue-ribbon excuses. In Bucks County, Pa., Samuel Feldman has been convicted of mutilating baked goods in stores over a two-year period; merchants complained of thousands of dollars of losses including 3,087 loaves of sliced bread, 175 bags of bagels, and 227 bags of potato dinner rolls. An Archway distributor said that after the defendant visited shelves of packaged cookies, each was found to have a thumb-poke through its jelly center. Feldman’s wife Sharon told the jury that the couple are “picky shoppers” and inspect products carefully: “Freshness is important.” And his attorney, Ellis Klein, “asked the jury to be tolerant of different styles of bread selection. ‘Not everybody just takes a loaf and puts in their cart.’” (Oshrat Carmiel, “Judge clamps down on bread squisher”, Philadelphia Inquirer, Sept. 22) (see update Nov. 30).

Meanwhile, in West Palm Beach, Fla., after being found guilty of bribery, former criminal defense lawyer Philip G. Butler “decided he had done a bad job of defending himself. So Butler appealed his felony conviction, arguing that he failed to tell himself about the danger of waiving competent counsel.” An appeals court wasn’t buying. (Stephen Van Drake, A Fool for a Client”, Miami Daily Business Review, Sept. 8).

October 6-9 – “Money to burn”. American Lawyer profile of Charleston, S.C.’s Ness, Motley, Loadholt, Richardson & Poole talks about some of the ways the firm’s trial lawyers are handling their enormous income from the state tobacco settlement (156-foot yacht, new office building, hanging out with Hillary Clinton and Al Gore a lot) but doesn’t get into the question of what their aggregate take from the tobacco caper will be — elsewhere it’s been reported to be in the billions, with a “b”. (Alison Frankel, American Lawyer, Sept. 27).

October 6-9 – “Attorneys general take on Mexican food industry”. A parody we missed earlier, appearing in the online Irk Magazine (March 24). As always with these things, do as we do and keep repeating to yourself: it’s just a parody … it’s just a parody … it’s just a parody.

October 5 – For Philly, gun lawsuits just the beginning. Philadelphia’s city solicitor, Kenneth I. Trujillo, is forming a new “affirmative-litigation unit” within his department to file lawsuits against national and local businesses and recover (he hopes) millions of dollars for the city, teaming up with private lawyers who will work on contingency. “He said he hoped the city’s pending lawsuit against gun manufacturers would prove to be just the beginning. ‘It’s really about righting a wrong,’ Trujillo said about the cases he plans to pursue. ‘Not only do they have a public good, but they’re rewarding in other ways. They’re rewarding financially.’” While in private practice, Trujillo founded a firm that specialized in filing class-action suits. He declines to discuss possible targets, but other cities and states have sued lead paint and pigment makers, and San Francisco, which pioneered the idea of a municipality-as-plaintiff strike force, has gone after banks and other financial companies. (Jacqueline Soteropoulos, “City solicitor banks on lawsuits”, Philadelphia Inquirer, Sept. 26). (also see Oct. 13-15)

October 5 – New feature on Overlawyered.com: letters page. We get a lot of mail from readers and have thus far been able to fit only a very few highlights from it onto our front page. This new separate page series should give us a chance to publish a wider selection without interrupting the flow of main items. We start with two letters, from PrairieLaw columnist David Giacalone and HALT counsel Thomas Gordon, reacting to reader David Rubin’s criticism of small claims court earlier this week.

October 5 – Scarier than they bargained for. When lawyers’ promotional efforts go wrong: California law firm Quinn Emanuel Urquhart Oliver & Hedge, to call attention to its new San Francisco office, sent hundreds of potential clients brown cardboard boxes filled with realistic-looking grenades, along with a promotional note advising businesses to “arm” themselves against legal dangers. Unfortunately, two of the recipients thought the devices were real and called the bomb squad (Gail Diane Cox, “Law Firm’s Explosive Ad Campaign Draws Critics, Attention”, CalLaw/The Recorder, Sept. 22).

October 5 – Judge tells EEOC to pay employer’s fees. “Calling it ‘one of the most unjustifiable lawsuits’ he ever presided over, U.S. District Judge Robert Cleland in Bay City, Mich., ordered the Equal Employment Opportunity Commission to pay a Burger King owner more than $58,000 in his legal costs fighting discrimination charges. The judge also ordered five EEOC lawyers to present the commission with his findings that they mishandled the case,” brought against E.J. Sacco Inc. (Winston Wood, “Work Week”, Wall Street Journal/Career Journal, Aug. 8 (next to last item)).

October 5 – Sidewalk toilets nixed again. Boston is the latest city whose plans to become more Paris-like have run into trouble, as its planned $250,000 outdoor commodes fail to comply with handicap-access laws. (Steven Wilmsen, “State approval denied for city’s new ’street furniture’”, Boston Globe, Sept. 26).

October 4 – Presidential debate. Vice President Al Gore: “I cast my lot with the people even when it means that you have to stand up to some powerful interests who are trying to turn the policies and the laws to their advantage.” He mentions HMOs, insurance, drug and oil companies, but omits an interest group that’s backed him with great enthusiasm over the years, trial lawyers. “I’ve been standing up to big Hollywood, big trial lawyers,” responds Texas Gov. George W. Bush. And later: “I think that people need to be held responsible for the actions they take in life.” (CNN transcript; scroll 3/4 and 7/8 of way down)

October 4 – Aviation: John Denver crash. Survivors of singer John Denver, who was killed three years ago in the crash of a do-it-yourself amateur airplane he was flying off the Pacific coast, have obtained a settlement in their lawsuit against Gould Electronics Inc. and Aircraft Spruce & Specialty Co., which made and sold a fuel valve on the craft. An investigation by the National Transportation Safety Board concluded that the accident happened because Denver knowingly took off with low fuel in a plane with which he was unfamiliar, the fuel lever was hard to reach, and when he reached around to grab it he lost control of the aircraft. A commentary on AvWeb describes the evidence in the manufacturers’ defense as “seemingly overwhelming”: “Everyone involved in general aviation knows that out-of-control lawsuits are the reason a flange on a car costs a quarter and the same flange for a Mooney will run you 150 bucks, and it only seems to be getting worse. …Perhaps in addition to asking the presidential candidates their stands on user fees, the aviation industry should demand to know their positions on tort reform.” The commentary goes on to discuss lawsuits filed over the Air France Concorde crash and over Northwest Airlines’ New Year’s Day 1999 customer delay fiasco at the snowbound Detroit airport (”John Denver’s relatives settle lawsuit against manufacturers”, AP/FindLaw, Sept. 29; “John Denver’s Heirs Settle Lawsuit Over His Death”, Reuters/ Yahoo, Sept. 30; “Run Out Of Fuel? Stuck In A Storm? File A Lawsuit And Win!”, AvWeb, Oct. 2; “Close-Up: The John Denver Crash”, AvWeb, May 1999; NTSB synopsis; rec.aviation.homebuilt (Usenet discussions — check recent thread on Denver crash)).

October 4 – School now says hugs not forbidden. Euless Junior High School, in suburban Dallas, now denies that it punished eighth-graders Le’Von Daugherty, 15, and Heather Culps, 14, for simply hugging each other in the hallway, as was widely reported last week. Instead it says the girls had been repeatedly insubordinate and that hugging as such is not against the rules, only “overfamiliarity”. However, last week Knight-Ridder reported that the school’s principal, David Robbins, “says such physical contact is inappropriate in school because it could lead to other things. Robbins said he stands by his rule that no students should hug in school. … [It] increases the chances of inappropriate touching and creates peer pressure for students who may not want that type of contact.” (”Texas school defends punishing girls for hug”, Reuters/ FindLaw, Oct. 2; Gina Augustini Best, “Texas junior high punishes girls for hugging in hallway”, Knight-Ridder/Miami Herald, Oct. 1; see also March 2 (Halifax, N.S.)). And in suburban Atlanta, school officials have explained why 11-year-old Ashley Smith will not be allowed to appeal her two-week suspension over the 10-inch novelty chain that hangs from her Tweety bird wallet (see Sept. 29): “They noted that students are routinely shown samples of items banned under the weapons policy at the beginning of the school year. ‘These items have been used in the past as weapons. A chain like the one in question can have any number of devices attached to it and it becomes a very dangerous weapon,’ said Jay Dillon, communications director for Cobb County school district.” (”Feathers fly over school suspension”, Reuters/ Excite, Sept. 29).

October 4 – Trial lawyers’ clout in Albany. “Albany insiders say David Dudley — a former counsel to Senate Majority Leader Joseph Bruno who now lobbies for the state trial lawyers association — was a key figure behind Senate passage of a bill to lift caps on fees lawyers earn in medical malpractice cases,” Crain’s New York Business reported this summer. The measure, long sought by trial lawyers, “had the support of the Democrat-run Assembly, but could never win backing from Mr. Bruno and the Republican-controlled Senate. Insiders believe Mr. Dudley reminded Senate Republicans that failure to give the trial lawyers at least one victory this election year could prompt the lawyers to fund Democratic opponents.” Mr. Dudley would not comment; since passing both houses, the bill has been sent to the desk of Republican Governor George Pataki. (”Bruno ex-counsel key to lawyer bill”, Crain’s New York Business, July 24, fee-based archives).

October 4 – New visitor record on Overlawyered.com. We set another weekly and daily traffic record last week. Thanks for your support!

October 3 – U.S. Department of Justice vs. Columbus Day? The Italian-American organizers of Denver’s Columbus Day parade are in hot water because they’d like the event to include some reference to the man for whom the holiday is named. Local American Indian and Hispanic groups have protested honoring someone they see as symbolizing European settlement, native displacement, slavery and even genocide; heeding their concerns, the city and federal governments pressed organizers to accept permit conditions under which the parade would avoid mentioning the explorer, according to attorney Simon Mole of the American Civil Liberties Union. “With the help of the U.S. Justice Department, Italian-Americans and American Indians reached agreement [earlier in September] to hold a ‘March for Italian Pride’ on Oct. 7 that would exclude any references to Christopher Columbus,” reports the Denver Post, but the agreement fell through after the organizers decided they had been giving away their First Amendment rights under government pressure. Menacingly, however, “LeRoy Lemos, who represents a group called Poder, a Hispanic community rebuilding program, said references to Columbus at the parade will not be tolerated. ‘After seven years of peace, our position remains that there will never be a Columbus Day parade in Denver – not this year, not next year, not ever,’ Lemos said. ‘If they violate the terms of the agreement, there will be no parade. Period.’” Who’s the Justice Department protecting, anyway?

SOURCES: J. Sebastian Sinisi, “Columbus’ name banned from ‘Italian Pride March’”, Denver Post, Sept. 21; J. Sebastian Sinisi, “Columbus parade pact fails”, Denver Post, Sept. 29; “The right to march” (editorial), Denver Post, Sept. 30; Al Knight, “Webb deaf to free speech”, Denver Post, Oct. 1; related articles; Peggy Lowe and Kevin Flynn, “Italians renege on renaming parade”, Rocky Mountain News, Sept. 29; Vince Carroll, “Let Columbus rest in peace”, Rocky Mountain News, Sept. 24; Bill Johnson, “Columbus, well, that’s not all this parade’s about”, Rocky Mountain News, Oct. 1; Columbus bio courtesy of student projects, St. Joseph’s School, Ireland. Update: parade held with disruptions and mass arrests, no bloodshed (see Oct. 10). (DURABLE LINK)

October 3 – From our mail sack: small claims court. David Rubin writes from Los Angeles: “I am a defense lawyer who generally supports the ideas which you espouse on this forum. However, I can safely say that out in Los Angeles, the small claims court (see Sept. 29) is more akin to a Kangaroo court than anything else. The reason cases can be heard so quickly in small claims is that judges spend so little time on them. The average small claims case lasts 5 minutes. I had a client who had a small claims judgment entered against him, based on a contractual debt owed to a company. This company had been shut down by the Corporations Department for fraud, based on the very contract the client had been found liable on. The client had evidence of this, but the judge wouldn’t hear of it.

“The judge simply asked ‘Did you sign this contract?’ – Client: ‘Yes’. – Judge: ‘Did you pay this debt?’ – Client: ‘Well, you see…’ – Judge: ‘Yes or no?’ – Client: ‘No’ – Judge: ‘Judgment for the plaintiff’.

“Speedy justice isn’t always justice, you know…”

October 3 – Volunteer gamers’ lawsuit. Heated discussions in progress around the Net re Fair Labor Standards Act lawsuit demanding retroactive minimum wage pay and benefits for volunteer fans who’ve helped administer online role-playing games (see Sept. 12): Nihilistic.com discussion; “GamerX”, “Money Changes Everything”, CNET GameCenter, Sept. 22; CNET discussion; complaint (Lum the Mad).

October 3 – More things you can’t have: raw-milk cheeses. “The Food and Drug Administration is considering new rules that either would ban or drastically limit the manufacture and import of raw milk, or unpasteurized, cheeses.” These include most of the interesting ones that one would go out of one’s way to eat. Safety grounds, of course, are cited: the more the compulsory assurances that we will live to a healthy old age, the fewer the reasons to want to do so. (Eric Rosenberg, “U.S. ponders ban on raw milk cheese”, San Francisco Examiner, Sept. 18; “Do dangerous organisms lurk in your favorite unpasteurized cheese?”, Reuters/CNN, Sept. 27).

October 2 – Killed his mother, now suing his psychiatrists. “Two summers ago, Alfred L. Head drove his car through the front wall of his family’s Reston[, Va.] home, then walked in with a baseball bat and beat his mother to death.” Found not guilty by reason of insanity and sent to a mental hospital, he’s now suing the psychiatrists he says should have prevented him from doing it. According to the Washington Post, “a number of experts said Head may have a strong case. They point to Wendell Williamson, a North Carolina man who went on a shooting rampage that killed two people and later won $500,000 after suing a psychiatrist who had stopped treating him eight months before the shooting….. Commonwealth’s Attorney Robert F. Horan Jr., who prosecuted Head, said he had ‘a history of manipulating the mental health community.’ Head knew the right words and behaviors to avoid hospitalization, Horan said. ‘It’s hard for me to believe,’ he said, ‘that the very guy who manipulated the system now says the system screwed up while he was manipulating them. He successfully conned all of them.’” (Tom Jackman, “Reston Family Sues in Insanity Case”, Washington Post, Oct. 1).

October 2 – No fistful of dollars. After deliberating for four hours, a San Jose jury found that Clint Eastwood does not have to pay damages to a disabled woman who said his inn/restaurant violated the Americans with Disabilities Act. The jury found him liable for two minor violations of the law but declined to assign damages. (Brian Bergstein, “Eastwood cleared in disabled case”, AP/Yahoo, Sept. 29; Reuters/Yahoo; “Clint Eastwood Explains His Beef With the ADA”, Business Week, May 17; Sept. 21 and earlier commentaries linked there).

October 2 – Judge throws out half of federal tobacco suit. In a 55-page opinion, U.S. district judge Gladys Kessler last week threw out the health-cost reimbursement portions of the Clinton Administration’s much-ballyhooed federal lawsuit against tobacco companies, while allowing to proceed, for now at least, its claims under the dangerously broad and vague RICO (racketeering) law. “Congress’ total inaction for over three decades precludes an interpretation … that would permit the government to recover Medicare” and other expenses, Kessler ruled. Both sides claimed victory, but cigarette stocks rose sharply on Wall Street.

According to Reuters, ‘Kessler expressed reservations about whether the racketeering claims would ultimately prove successful. ‘Based on the sweeping nature of the government’s allegations and the fact the parties have barely begun discovery to test the validity of these allegations, it would be premature for the court to rule (now),’ Kessler wrote. ‘At a very minimum the government has stated a claim for injunctive relief: whether the government can prove it remains to be seen.’” (Pete Yost, “Judge: 2 Claims Out in Tobacco Case”, AP/Yahoo, Sept. 28; Lyle Denniston, “Federal judge throws out half of tobacco industry lawsuit”, Baltimore Sun, Sept. 29; Reuters/FindLaw; MS/NBC; Washington Post)(U.S. v. Philip Morris — main decision in PDF format via Findlaw).

October 2 – Malpractice outlays on rise in Canada. “Damage claims arising from medical malpractice are costing Canadian doctors and taxpayers an arm and a leg, especially in Ontario,” according to estimates from the Canadian Medical Protective Association, which defends doctors in court. There are pronounced regional differences, with average settlements in closed cases running C$172,000 in Ontario, C$67,000 in Quebec, and in between elsewhere. The projected cumulative cost of all pending claims is expected to reach C$3 million per Canadian doctor by the end of 2000 — a number that seems strangely high given the reported size of claims, but which is not further elucidated in the story. (Dennis Bueckert, “Malpractice awards averaging $3 million per doctor are a major cost to taxpayers”, CP/St. Catharines (Ont.) Standard, Oct. 1) (more on regional differences).

Tagged as: ACLU, Arizona, asbestos, Atlanta, attorneys general, Baltimore, bankruptcy, baseball, Canada, Colorado, Connecticut, Dallas, Denver, Detroit, Europe, France, free speech, governors, hospitals, Ireland, Italian, Joe Lieberman, lead paint, libel slander and defamation, North Carolina, Pennsylvania, Philadelphia, tobacco, tobacco settlement

September 2000 archives, part 3

by Walter Olson on September 30, 2000

September 29-October 1 – Disabled rights roundup. The U.S. Supreme Court has agreed to decide whether the PGA golf tour must bend its rules to allow disabled golfer Casey Martin to ride in a golf cart (”U.S. High Court To Decide Case of Disabled Golfer”, Reuters/FindLaw, Sept. 26; see April 10, our May 1998 take). The government of Great Britain is considering legislation that would compel its armed forces to accept disabled recruits, and pressures are rising to accept handicapped military personnel in front-line as well as auxiliary positions, given the principle of nondiscrimination (Michael Smith, “Disabled want frontline jobs in ‘pc’ Services”, Daily Telegraph (London), Sept. 26; “Forces may have to admit disabled”, Aug. 21; UK Disability Discrimination Act). And a trend that has been well established under U.S. disabled rights law for some time — doctors’ having to hire sign-language translators at their own expense when a deaf patient wishes to call on them for a consultation — is exemplified by a consent decree negotiated by the office of New York Attorney General Eliot Spitzer, requiring an upstate doctors’ group to provide interpreters-on-demand for “all significant medical encounters” (”Spitzer Announces Agreement With Upstate Physician’s Practice To Provide Sign Language Interpreters for Deaf Patients”, press release, June 21; see also May 31).

September 29-October 1 – Annals of zero tolerance: Tweety bird chain. In suburban Atlanta, the Garrett Middle School has suspended 11-year-old Ashley Smith from sixth grade for two weeks on charges of breaking its zero-tolerance weapons policy by bringing a chain to school. It’s a 10-inch novelty chain that dangles from her Tweety bird wallet. “It’s only a little chain, and I don’t think it can really hurt anyone,” said Ashley, a “Tweety fan who publishes her own Web site devoted to the cartoon character.” Earlier, the ACLU successfully represented an Atlanta public school student who was charged with criminal weapons possession after she brought African tribal knives to school for a project (”Girl suspended for Tweety chain”, AP/Salon, Sept. 28; UPI/Virtual New York) (Ashley Smith’s guestbook) (update Oct. 4: school’s explanation).

September 29-October 1 – French crash, German victims, American payout levels? Air France has sued Continental Air Lines to recoup its costs from the July Concorde disaster in Paris that killed 113 people, charging that a strip of metal that fell off a Continental DC-10 caused the incident. The French airline has already offered to compensate survivor families, who are mostly German, but “German lawyers are pushing for a settlement in the United States, where courts order higher payouts.” (”Airline files Concorde suit”, Reuters/CNNfn, Sept. 27).

September 29-October 1 – “Denny’s fights back against false suits”. The restaurant chain, dogged by past charges of racial discrimination, releases more details on how it uses videotapes and other techniques to disprove dubious copycat claims (see Aug. 29-30). In Oakland, Calif., the lawyer son of John S. Harrison Sr. sued Denny’s claiming that a white couple had been served before his father though they had arrived later. “Mr. Harrison conceded he had been a customer for 20 years and ate at that Denny’s counter twice a day for 10 to 12 years with no problems in a store whose clientele was 50 percent black.” He had been happy with the meal and had left a tip. A federal magistrate threw out the suit and gave Denny’s legal fees. (Frank Murray, Washington Times, Sept. 25).

September 29-October 1 – “Supersize small claims”. Prairielaw columnist David A. Giacalone argues for reviving the nearly moribund institution of small claims court by boosting the threshold value of claims handled by such courts to $20,000, a change also endorsed by the HALT legal reform group. Thresholds around $3,000 are now common. Such a shift might relieve some of the docket pressure on regular courts while allowing ordinary citizens to vindicate more claims without lawyers’ assistance, a feature that may help explain why the bar shows little enthusiasm for the idea (undated, but appeared Aug.) (see also Oct. 3).

September 27-28 – Welcome UserFriendly.org readers. We’re picked as the link of the day by the website for the cartoon strip User Friendly, by Illiad.

September 27-28 – “Blind customers want to touch club lapdancers”. In East Sussex, England, the Brighton and Hove municipal council says it will consider a request by the Pussycats Club that its blind patrons be permitted to touch the exotic dancers as a form of handicap accommodation. The club says its vision-impaired customers appreciate the proximity of the lapdancers and their perfume but would get a better idea of what they looked like if they were allowed a hands-on experience, which is currently forbidden by the club’s license. (David Sapsted, Daily Telegraph (London), Sept. 26).

September 27-28 – Welcome Toronto Star readers. “One of my favourite Web sites is overlawyered.com, a collection of the most asinine stories from the admittedly ordinarily twisted universe of American law,” writes columnist Jason Brooks. He interviews our editor about a current proposal for Ontario to enact its own law emulating the Americans with Disabilities Act. No one seems to have any very clear idea what such a law would cost, but the Ontarians with Disabilities Act Committee says “the idea of a total cost figure misses the point.” Uh-oh…. (Jason Brooks, “Will new act go too far for the disabled?”, Toronto Star, Sept. 25).

September 27-28 – “Controversial drug makes a comeback”. A small Canadian firm, Duchesnay Inc., wants to reintroduce to the U.S. market Bendectin, the pregnancy-nausea drug driven off the market by mass litigation claiming that it caused birth defects. “Bendectin was the archetypical case of junk science scuttling a perfectly safe product,” Dr. Michael Greene, director of maternal-fetal medicine at Massachusetts General Hospital, tells New York Times science correspondent Gina Kolata. “It was a sad episode in American jurisprudence.” Although ultimately the manufacturer never paid damages, it spent $100 million in defense costs, says Prof. David Bernstein of George Mason University (Sept. 26)(reg).

September 27-28 – Stuart Taylor, Jr. on Gore and Vetogate. Another scathing, must-read column on trial lawyers and politics by the National Journal columnist, written before Janet Reno’s announcement last week that the Justice Department would not pursue an investigation of the Umphrey call sheet affair. Did you know that lawyers as a group have donated nearly ten times as much to the Democrats during this election cycle as the tobacco industry has given Republicans? (”Gore’s Shameless About Posing As A Populist”, National Journal/Atlantic Unbound, Sept. 26) .

September 27-28 – Microsoft wins one. The U.S. Supreme Court has turned down a Justice Department request that it hear the Microsoft case immediately, instead allowing the D.C. Circuit Court of Appeals to review the case, which is what the company preferred; past D.C. Circuit rulings suggest that it may be more sympathetic to Microsoft’s position than was the trial judge. (”High Court Defers to Microsoft”, AP/Wired News, Sept. 26; Declan McCullagh, “Microsoft gets what it wants”, Wired News, Sept. 26). And a number of courts have thrown out statewide consumer class actions against Microsoft based on the sale of Windows, although this doesn’t really come as much of a surprise in the case of states that bar indirect (end-user) antitrust claims, since cases filed in those courts were always long shots (Jonathan Groner, “The Cases Microsoft Is Winning”, Legal Times (Washington), Sept. 18).

September 27-28 – Bank error in your favor. Latest coins- found- under- the- sofa- cushions class action settlement: Wilmington, Del.-based credit card giant MBNA Corp. agrees to pay $3.57 each to current and former customers to settle claims that its ads were misleading in the early 1990s when they promoted a low interest rate for balances transferred from another card, but did not warn that the low rate did not apply to newly incurred charges. Lawyers for the plaintiff class, meanwhile, are set to pocket $1.3 million. Major credit card companies are frequent targets of class action litigation; Chase Manhattan and Providian Financial have recently settled such actions, and Citibank and Bank One/First USA face pending claims (Joseph N. DiStefano, “MBNA settles suit over card ads”, Philadelphia Inquirer, Sept. 26).

September 27-28 – Final innings for Kennewick Man. Score stands at archaeologists 0, multiculturalists 1, as Interior Secretary Bruce Babbitt announces that the 9,000-year-old skeleton found along the Columbia River four years ago will be given to local Indian tribes, who intend to bury the remains without allowing a complete examination. “If Babbitt’s ruling stands, the loss to science is beyond comprehension,” writes National Review Online’s John Miller (”Kennewick Man’s last stand”, Sept. 26; see also Oct. 11, 1999).

September 25-26 – New data on state campaign contributions. Triallawyermoney.org, the project of the American Tort Reform Foundation that tracks plaintiff lawyers’ political contributions, has just expanded its coverage to include local elections in seven key states as well as federal elections. The states include Alabama, Florida, Illinois, Michigan, Ohio and Texas; there is also a link to similar data collected by the Civil Justice Association of California (launched Sept. 19 — “State Races“).

September 25-26 – “Skier to be tried for manslaughter in Colorado in fatal collision”. Although two county courts ruled that a reasonable person would not have expected skiing too fast to result in another person’s death, prosecutors in Denver have insisted on pressing a manslaughter rap against Chico, Calif. college student Nathan Hall, who in 1997, at the age of 18, headed down Vail Mountain and collided with 33-year-old Denverite Alan Cobb on the slope, killing him almost instantly. (AP/CNN, Sept. 11). Update Nov. 21: Hall convicted of criminally negligent homicide.

September 25-26 – Wal-Mart’s tobacco exposure. Through a little-known subsidiary named McLane Co., the Bentonville, Ark.-based retailer is the largest distributor of cigarettes to convenience stores, which makes it the biggest handler of that commodity aside from the tobacco companies themselves. Despite Wal-Mart’s deep pockets, plaintiff’s attorneys seem not to have noticed it yet. (Kelly Barron, “Smoking gun”, Forbes, Aug. 21) (see also July 7).

September 25-26 – A job offer for the judge. Following protests from defendants, Judge Edward Angeletti of Baltimore, Maryland Circuit Court removed himself from a series of asbestos-injury cases over which he was presiding and declared a mistrial after it was revealed that he had received a job offer from plaintiff’s attorney and political kingmaker Peter Angelos (see Oct. 19 and Dec. 9, 1999, March 15, 2000). According to AP/CNN, “Angelos has said that he made a ‘very substantial’ offer for Angeletti to head his office’s pursuit of lawsuits against lead paint manufacturers.” Angelos, who has become immensely wealthy through his handling of asbestos litigation, controls about three of every four asbestos cases in the Baltimore court. (”Job offer from lawyer leads judge to step down from asbestos trial”, AP/CNN, Aug. 1; “Judge removes himself from absbestos [sic] trials”, AP/Prince George’s County [Md.] Journal, Aug. 2)

September 25-26 – Kopel on zero-tolerance policies. Dave Kopel, Paul Gallant, & Joanne D. Eisen of the Independence Institute comment on the school zero-tolerance policies under which possession of an obvious toy gun — or sometimes just making a thumb-and-first-finger “gun” gesture — is considered grounds for punishment. (”Gunning for the Kiddies”, National Review Online, Sept. 22).

September 25-26 – Treaties rule. A federal judge in San Francisco has thrown out a lawsuit against Japanese defendants over World War II atrocities. In 1951 we signed a peace agreement with Japan which prohibited exactly these sorts of claims. Now we have to live up to our end of the treaty — period. (Louis Sahagun, “Suit on WWII Slave Labor in Japan Voided”, L.A. Times, Sept. 22; Reuters/FindLaw; see Sept. 20, 1999).

September 22-24 – “N.Y. Lawyer Charged in Immigrant Smuggling”. In a 44-count indictment, federal prosecutors on Wednesday charged the Manhattan lawyer who runs the country’s largest political asylum practice, Harvard Law-educated Robert Porges, with a wide range of offenses including concocting thousands of fictitious stories of persecution by which detained aliens could avoid deportation, advising smugglers how best to avoid detection by the Immigration and Naturalization Service, and “helping smugglers detain illegal immigrants until debts were paid.” According to prosecutors, paralegals wrote out longhand accounts of persecution, claiming of women clients, for example, that they had suffered forced abortions under China’s “one-child” policy, and then coached the immigrants on how to carry off the story convincingly. Porges is said to have “collected as much as $13 million in fees for helping to transport as many as 7,000 illegal immigrants from mainland China to the United States”. (Hanna Rosin and Christine Haughney, Washington Post, Sept. 21). Update Sept. 21, 2003: Porges and wife sentenced in 2002 to about eight years.

September 22-24 – RN’s illusions. Ralph Nader campaigns on the theme that anti-business advocates like himself are somehow kept from circulating their message or swaying policy. Is he really so disconnected from reality as to think that? (Sebastian Mallaby, “Victim of His Success”, Washington Post, Sept. 17). Before you get too enthusiastic about the Greens, suggests James Lileks, take a look at their platform: “They want your money, your job, your freedom and your car.” (”A look at Nader and his merry Greens”, San Francisco Examiner, July 14). And since some Nader groups have proposed the setting aside of a new .sucks domain to express discontent with powerful institutions (ibm.sucks, mcdonalds.sucks, etc.) some Seattle libertarians have turned the tables by founding the rudely named but inevitable Nadersucks.org, which bills itself as the largest collection of critical links about him online, outpacing the “Nader Skeleton Closet” feature at Realchange.org.

Other links of note from a Nader-watcher’s scrapbook: Doug Henwood, “1.75 cheers for Ralph”, Left Business Observer, Oct. 1996; discussion on LBO mailing list re RN finances, Sept. 9, 1998; RN denounces tort reform in campaign press release, VoteNader.org, Aug. 11; Robert Bryce, “Naturally Nader”, Austin Chronicle, April 7; Mike Allen, “Nader: The Little Guy’s Multimillionaire” (worth $3.8 million, heavily invested in tech stocks, still refuses to reveal income tax records), Washington Post, June 18; Paul West, “Corporate gadfly turns out to be rich”, Baltimore Sun, June 17; Michael Lewis, “Campaign Journal: The Normal Person of Tomorrow”, The New Republic, May 20, 1996.

September 22-24 – From our mail sack: hyperactive lawyers. Reader Scott Replogle, M.D., writes from Colorado: “I see (Sept. 18) that trial lawyer Richard Scruggs is suing psychiatrists and the makers of the drug Ritalin, alleging they conspired to ‘create’ a disease, Attention Deficit/Hyperactivity Disorder, and then overdiagnose it for monetary gain. Which raises the question: when can we sue the people who not too long ago ‘created’ the previously unknown disorders of ’silicone disease’ and ‘human adjuvant disease’ during the breast-implant controversy, and conspired to overdiagnose those diseases for monetary gain? And does it matter that many of those people were trial lawyers?” (see also April 13, 2001)

September 21 — Missouri tobacco fees. Lawyers stand to make $100 million or more for representing the state of Missouri in the Medicaid-tobacco litigation and the state’s largest newspaper, the St. Louis Post-Dispatch, says that sum “is out of proportion to the work performed and the risk involved … troubling … grossly overpays the lawyers involved … creates an unholy alliance between the state and tobacco interests” It’s also “a political gravy train” since “the five law firms involved in the case donated a total of more than $500,000 in campaign contributions over the past eight years, mostly to Democrats”; a prominent Republican former judge and Democratic former mayor of St. Louis were also cut in. “An important issue of public policy — the lawyers’ fees — will be determined outside the public forum” given that a secret arbitration proceeding will be employed to set the fees. “…It is private money in the public trough. But that doesn’t make the sight of the lawyers lining up to feed any prettier.” (”All aboard the gravy train” (editorial), St. Louis Post-Dispatch, Sept. 17).

Brent Evans, a state senate candidate in Missouri, has posted extensive documentation on the circumstances surrounding state attorney general Jay Nixon’s hiring of outside lawyers to prosecute the suit. According to Evans, the lawyers’ campaign contributions of $561,000 included $139,000 for Nixon himself and $113,000 for Democratic Gov. Mel Carnahan (”The Tobacco Papers“; the lawyers; their generosity; the work they might have done to justify the fees; “Attorneys mum about how much they’re seeking” (fee request “confidential”), Jefferson City News-Tribune, April 26, 1999; Jack Cashill, “Warning: Tobacco Settlements May Endanger The Integrity of Your Elected Officials” (also discusses Kansas fees), Cashill.com, undated 1999; “Appeals court sides with Nixon on legal fees in tobacco settlement”, Jefferson City News-Tribune, May 31, 2000; James Baughn, The Cape Rock webzine (Cape Girardeau, Mo.), June).

Last year Missouri Digital News reported that Paul Wilson, lead attorney on the matter with AG Nixon’s office, “urged lawmakers to pass legislation that will protect the major tobacco companies from a market-share loss once the impact of the tobacco settlement sets in. Off-brand cigarette companies, those not participating in the settlement, could otherwise undercut the prices of the major tobacco companies. Missouri will keep getting its billions so long as the market share of the signatories does not dip below 95 percent. If it were to do so and Missouri had no off-brand tobacco law, explained Wilson, the terms of the settlement let the major tobacco companies stop paying.” (Anna Brutzman, “Legislators Bewildered By Settlement”, April 4, 1999). Update Oct. 5, 2003: Missouri Supreme Court refuses to entertain challenge to tobacco fees.

September 21 – Dangerous divorce opponents. It’s tough enough going through a divorce in any case, but you’d really better watch out if your spouse is a successful lawyer, according to the New York Post. Advice: try for a change of venue. (Laura Williams, “Attorneys’ Wives Court Disaster”, Sept. 20).

September 21 – Eastwood trial begins. Jurors will hear an Americans with Disabilities Act complaint against the actor’s Mission Ranch hotel in Carmel. For our coverage of the Eastwood case and related Congressional hearings, see May 18, March 7, Feb. 15 and Jan. 26. (”Eastwood to Jurors: ‘Make My Day’”, AP/Fox News, Sept. 20; Shannon Lafferty, “Eastwood in the Line of Fire,” The Recorder/CalLaw, Sept. 21).

Tagged as: ACLU, Alabama, antitrust, arbitration, asbestos, Atlanta, ATRA, attorneys general, Baltimore, Canada, Colorado, deep pocket, Denver, divorce, Eliot Spitzer, Europe, France, Germany, hospitals, Illinois, Janet Reno, lead paint, Maryland, Massachusetts, Michigan, Missouri, Ohio, Philadelphia, Provost Umphrey, Ralph Nader, Seattle, silicone breast implants, strippers and exotic dancers, tobacco, tobacco settlement, zero tolerance

May 2000 archives, part 3

by Walter Olson on May 31, 2000

May 31 – From our mail sack: ADA enforcement vignettes. Reader Roger Clegg of the Center for Equal Opportunity tells us that every month or so he visits the Department of Justice to pore over the new batch of publicly released enforcement letters from the department’s Civil Rights Division. Although the letters are made available by the Department in such a way that parties in the disputes are not individually identifiable, they do provide insight into current enforcement priorities and trends. A few highlights that Roger passes on from letters issued by DoJ regarding the enforcement of the Americans with Disabilities Act:

“The Civil Rights Division’s Disability Rights Section has in the last month or so sent a lot of letters to doctors’ offices on behalf of hearing-impaired patients complaining that the doctors don’t have interpreters (a couple of the offices didn’t understand why the doctor and patient couldn’t just write notes to each other) [see also Sept. 29-Oct. 1].

* “A dance studio got a DOJ letter when it refused to continue giving lessons to a student who was prompting complaints from other students’ parents because accommodating her took up so much class time.

“Other interesting issues prompting DOJ letters:

* “A cruise ship that refused to let a blind person on board for a trip unless he had a medical note stating he could safely travel alone;

* “An HIV-positive student who demanded an air-conditioned classroom;

* “A blind person who wasn’t allowed into a doctor’s office because in the past other patients had had an allergic reaction to his guide dog; and

* “A truly tragic case — a man with a ‘manual disability’ who could not pull the trigger on a gun.”

May 31 – Jumped ahead, by court order. A Delaware court has found that Christiana Care Health Services breached its contract with Ahmad Bali, MD, when it demoted him from third-year to second-year resident. Rather than simply allot monetary damages to Dr. Bali for the trouble and expense of having been held back needlessly at the second-year stage, the court took the more unusual step of ordering the hospital to accord him fourth-year residency status as if he’d completed the third-year program. The result is to put him in the same place he’d be if not for the hospital’s earlier breach, which is certainly one kind of fairness for which the law sometimes strives. But what if third-year residency isn’t simply a re-run of second-year, but involves the acquisition of distinctive skills? (Miles J. Zaremski, “Delaware court reinstates terminated resident”, American Medical News, March 20).

May 31 – Columnist-fest. More opinions worth considering:

* Paul Campos weighs in on the “pink-skirt” case, in which a transgendered employee of a Boulder, Colo. bagel shop is suing because its owner wouldn’t let him wear that girlish item of apparel on the job (”The strange land of identity politics”, Rocky Mountain News, May 16; Matt Sebastian, “Bagel shop wouldn’t let him wear pink dress [sic], so he sues”, Scripps Howard News Service, May 11).

* Big American companies whose German operations were seized by the Nazi regime and run with forced labor are now coming under legal pressure to pay “reparations”. “If we Jews care about justice and retribution, we should not take this money,” argues Sam Schulman of Jewish World Review. “It is tainted — tainted with innocence. And taking money from the innocent blurs the line between innocence and guilt.” (”Some Reparations Money is Better Left on the Table”, Jewish World Review, May 18). An earlier Schulman column examines the drift of the campaigns against the Swiss and the Austrians away from the aim of individualized justice for expropriated families and toward the expiation of inherited national guilt by way of large transfer payments. (”David Irving’s Mirror for the Jews”, May 2).

* Rachelle Cohen of the Boston Herald can’t help wondering: does Massachusetts really need to spend tax money setting up a state-sponsored law school? (”Must taxpayers pay to create more lawyers?”, May 24).

May 30 – You were negligent to hire me. “A former Escondido school district administrator who resigned two years ago after revelations of a 1963 rape-related conviction won a $255,000 jury verdict yesterday against Superintendent Nicolas Retana and the district.” Thirty-four years previously, at age 17, William Zamora had been convicted in New Mexico of assault with intent to rape, serving two years in prison and later being pardoned by the governor. When he applied for an $88,000/year administrative job in 1997 with the district near San Diego, he failed to disclose his long-ago conviction on his employment application, later saying he thought the pardon had wiped his record clean. But an FBI fingerprint check turned it up, and Zamora resigned at once: a California law passed the previous year forbade school districts to hire persons with felony sex convictions. He then proceeded to sue the district and supervisor, contending that if they “had done their jobs properly… they would have waited until the crime check came back before hiring him,” and charging that his privacy had been invaded when Retana conversed with an Albuquerque school board member about the conviction. Last week a jury awarded him $15,000 on the negligent hiring claim and $240,000 on the invasion of privacy claim. “Superior Court Judge Lisa Guy-Schall kept jurors from hearing the details of Zamora’s conviction, in which he pleaded guilty. She said she didn’t want to preside over a mini-trial of events that happened 37 years ago.” (Onell R. Soto, “Ex-administrator wins $255,000 verdict against Escondido schools chief, district”, San Diego Union-Tribune, May 24; and earlier Union-Tribune coverage, May 17, May 21, 1999; May 20, 1999).

May 30 – Illegal to talk about drugs? The so-called Methamphetamine Anti-Proliferation Act, which has been moving rapidly through Congress with relatively little public outcry, would make it a felony punishable by ten years in prison “to teach or demonstrate to any person the manufacture of a controlled substance, or to distribute to any person, by any means, information pertaining to, in whole or in part, the manufacture or use of a controlled substance,” knowing or intending that a recipient will use the information in violation of the law. The aim is to shut down the publishing of books, magazines and websites that furnish information on drug manufacture or use, such as High Times magazine and Lycaeum.org. The prohibition on “distribut[ing]” such information “to any person, by any means” could make it unlawful even to post a weblink to offshore sites of this nature. Another provision of the bill would make it a crime to “directly or indirectly advertise for sale” drugs or drug paraphernalia — and whatever the peculiar phrase “indirectly advertise” may mean in practice, it’s probably not good news for the First Amendment. A Washington Post editorial calls the provisions “overly broad” and “so vague as to threaten legitimate speech”: “The mere dissemination of information, especially without specific intent to further crime, seems within the bounds of free speech protections.”

SOURCES: “The Anti-Meth Bill” (editorial), Washington Post, May 26; Amy Worden, “House Bill Would Ban Drug Instructions”, APBNews, May 10; Declan McCullagh, “Bill criminalizes drug links”, Wired News, May 9; Jake Halpern, “Intentional Foul”, The New Republic, April 10; “Senate panel considers ban on Internet drug recipes”, AP/Freedom Forum, July 29, 1999; Debbi Gardiner and Declan McCullagh, “Reefer Madness Hits Congress”, Wired News, Aug. 6, 1999; J. T. Tuccille, “Shall make no law”, About.com Civil Liberties, Aug. 15, 1999; Phillip Taylor, “Marijuana activists denounce proposed ban of drug recipes”, Freedom Forum, Jan. 6.

May 30 – Won’t pay for set repairs. Orkin, the pest control company, is declining to compensate two consumers who’ve requested that it pay for fixing their TV sets after they attacked unusually convincing simulations of cockroaches that ran across the screen in its ads. The company says a Tampa, Fla., woman tried to kill the insect by throwing a motorcycle helmet at her set, while another man damaged his set by throwing a shoe at it. (”‘I felt really stupid’: Orkin cockroach commmercial has some viewers fooled “, AP/Seattle Post-Intelligencer, April 6).

May 30 – Welcome San Jose Mercury News visitors. At Silicon Valley’s hometown paper, columnist John Murrell (”Minister of Information”) proposes this among sites “for your weekend Web wandering pleasure … your darkest visions of out-of-control litigiousness will be confirmed”. (May 26 entry). The weblog at uJoda.com (”From My Desktop”), where you can pick up Macintosh icons and graphics, reports that its author “found a great site called overlawyered.com, though not eye candy, it is rich in content” (May 6 entry). The pro-Second Amendment Fulton Armory featured us as their site of the week a couple of weeks ago, and we’ve also been linked recently by the Australian Public Law page maintained by the law faculty at the Northern Territory University, down under (”Not much to do with public law but we couldn’t help ourselves,” they explain re including us); by the Smith Center for Private Enterprise, a free-market think tank at Cal State, Hayward; by ClaimsPages.com, which offers a vast array of insurance-oriented links; and by the website of attorney Jule R. Herbert, Jr. of Alabama’s Gulf Coast, among many others.

May 26-29 – “Dame Edna’s Gladioli Toss Lands in Court”. “Dame Edna Everage”, the character created by Australian comedian Barry Humphries (website, B’way show), makes a custom of ending her show by flinging gladioli to the crowd, but now a man has hired a Melbourne law firm to undertake legal action, saying a stem of one of the large flowers struck him in the eye. 49-year-old singing teacher Gary May is “seeking unspecified damages for pain and suffering, loss of income and medical expenses.” (Reuters/Excite, May 25, lnk now dead). Last year (see Dec. 7) NBC’s “Tonight Show with Jay Leno” was sued by an audience member who says he was injured by one of the free t-shirts propelled into the crowd.

May 26-29 – “Skydivers don’t sue”. Lively Usenet discussion last month and this among skydiving enthusiasts (rec.skydiving) over recent lawsuits in the sport. In one, Canadian skydiving acrobat Gerry Dyck is suing teammate Robert Laidlaw over a 1991 accident during an eight-man stunt jump near Calgary in which Dyck was knocked unconscious and severely hurt on landing. (Jeffrey Jones, “Canadian skydiver sues teammate for mid-air crash”, San Jose Mercury News, April 24, no longer online). The other followed the death of James E. Martin, Jr., a Hemet, Calif. dentist and veteran of more than 5,000 jumps who perished when a line snagged on his parachute, his fifth time out on that gear. Now his widow’s suing the gear maker, Fliteline Systems of Lake Elsinore, Calif.; vice president Mick Cottle of Fliteline, the first defendant named in the suit, says Martin was a “close friend”. “Few lawsuits over sky diving deaths ever reach judgment,” reports the Riverside Press-Enterprise. And “most makers of sky-diving gear do not carry liability insurance, which reduces the likelihood of plaintiffs gaining a settlement.” About 32 sky-diving deaths occur annually in the U.S., of which about five lead to lawsuits, according to one frequent expert witness in the field; he estimates that plaintiffs have won only 1 or 2 percent of cases he’s seen, though it’s unclear whether he’s including settlements in that estimate. (Guy McCarthy, “Lawsuit blames gear in sky diver’s death”, Riverside Press-Enterprise, May 8, link now dead; Remarq saved thread; Deja.com archive, recent search on “lawsuit” — hundreds of posts in all)

May 26-29 – Insurers fret over online privacy suits. The wave of lawsuits against Yahoo!, DoubleClick and others for privacy sins has insurance companies “concerned they will have to pay for potentially massive torts they didn’t anticipate” in liability policies they’ve written for the dot-com sector. “‘If it’s not the next really big issue, it’s one of the next big issues where we can expect a lot of litigation,’ said Thomas R. Cornwell, VP of the technology insurance group” for insurer Chubb. “Plaintiff’s attorneys are honing their skills and preparing for a boom in such lawsuits,” reports the magazine Business Insurance in its May 22 lead story. “‘Just as the Internet itself is a growth area, Internet law is being recognized as a growth area within the legal profession,’ said David Sobel, general counsel for the Electronic Privacy Information Center in Washington. The nonprofit organization supports plaintiff lawsuits on Internet privacy.” “My guess is that now that the blood is in the water there will be a lot of plaintiffs’ attorneys sniffing it up,” said one lawyer who’s sued Yahoo. (Roberto Ceniceros, “Internet privacy liability growing”, Business Insurance, May 22, fee-based archives). Expect the cost of securing liability insurance for an Internet launch to rise accordingly.

May 26-29 – Suits by household pets? “Somewhere out there — maybe in a Boston zoo or a Fresno research lab — a Bonzo or Fido is biding his time, deceptively peeling a banana or playing dead, quietly getting ready to sue his master,” writes Claire Cooper of the Sacramento Bee. As animal-rights courses proliferate at law schools, activists are quietly looking for test cases in which to assert the singular new notion of standing for nonhuman creatures — with themselves as the designated legal representatives, needless to say. (”Pets suing their masters? Stay tuned, advocates say”, May 13). In March the Seattle Times profiled the Great Apes Legal Project, which views the non-human primate kingdom as plausible rights-bearing clients. This provoked a letter from reader David Storm of Everett, who said the article was “very interesting, but the goal doesn’t go far enough. In addition, we should declare the apes to be lawyers, which would simultaneously improve our legal system.” (Alex Tizon, “Cadre of lawyers working to win rights for apes”, Seattle Times, March 19; letters, March 21). See also Roger Bryant Banks, “Animal Dogma”, SpinTech (online), May 12, on the question: if Chimp v. Zoo is a good case, why not also Chimp v. Chimp, following incidents of violence or harassment?

May 26-29 – EPA’s high courtroom loss rate. Most federal agencies win most of the time when their regulatory decisionmaking is challenged in federal court, but the Environmental Protection Agency in recent years has been a glaring exception, losing a large share of the cases it has defended, including high-profile battles over electric car mandates, gasoline reformulation, and Clean Water Act permit-granting, among many others. Why does it fare so badly? Jonathan Adler of the Competitive Enterprise Institute thinks one reason is that agency policymakers adopt extreme legal positions, partly due to unclear authorizing statutes, partly due to zealousness among political appointees at the top. “Environmental Performance at the Bench: The EPA’s Record in Federal Court”, Reason Public Policy Institute, Policy Study #269; “EPA in Need of Adult Supervision”, CEI Update, March 1; Adler’s home page. Ben Lieberman, also of CEI, calls attention to one of the more unusual confrontations the EPA has gotten into of late: its crackdown on coal-burning utilities has led it into a showdown with the government-owned Tennessee Valley Authority, which means it’s the feds versus the feds. (”EPA’s tug at TVA’s power”, May 19, no longer online).

May 26-29 – Ready to handle your legal needs. Stephen Glass, who resigned in disgrace from The New Republic just over two years ago after being caught making up stories, is graduating this month from Georgetown Law School. The Pop View has posted this summary of the episode for anyone who’s forgotten (via Romenesko’s Media News).

May 25 – Conference on excessive legal fees. In Washington today from 10 to 4 Eastern, the Manhattan Institute, Federalist Society, Hudson Institute and Chamber of Commerce of the U.S. team up to host a conference on ideas for “protecting unsophisticated consumers, class action members, and taxpayers/citizens” from overreaching legal fees (schedule and confirmed speakers at Federalist Society site; live broadcast at U.S. Chamber site requires RealPlayer).

May 25 – Thomas the Tank Engine, derailed. “Children’s online privacy“: the sort of sweetness-and-light notion practically no one’s willing to criticize in principle. Yet regulation is regulation, and seldom lacking in real-world bite. Declan McCullagh at Wired News reports that the popular children’s TV show Thomas the Tank Engine has had to discontinue sending regular email bulletins to legions of young fans because obtaining parental consent individually would be too cumbersome. The show’s website cites the Children’s Online Privacy Protection Act, which took effect last month. Other online publishers are also unilaterally cutting off subscribers under the age of 12, to their distress. (”COPPA Lets Steam Out of Thomas”, May 13; Lynn Burke, “Kid’s Privacy an Act, or Action?”, April 20).

May 25 – “Taking cash into custody”. Local law enforcement agencies systematically dodge the constraints of state forfeiture law to help themselves to proceeds after seizing cash and property in traffic stops and drug busts, according to this Kansas City Star investigation. And though Congress’s enactment of federal-level forfeiture law reform was much trumpeted earlier this year (see April 13, Jan. 31), it’s likely to leave many of the abuses unchecked. (Karen Dillon, Kansas City Star, series May 19-20).

May 25 – What the French think of American harassment law. Pretty much what you’d expect: “Fifteen years after the first harassment trials, puritanism in the office is total,” marvels the New York correspondent of a French paper named Liaisons Sociales. “A suggestive calendar in a man’s locker? Prohibited. Below-the-belt jokes? Totally excluded. Comments about physique? Illegal. The result is that behavior in the workplace has been profoundly changed. The doors of offices are always open. The secretaries are always present during tete-a-tete meetings, in case they need to be witnesses in litigation.” A few feminist French lawyers would like to emulate the American way of doing things but lament that in their country litigation is frowned on, damages are set at a token level, and, as one complains, “current French law makes no mention of things like improper jokes”. (Vivienne Walt, “Curbing Workplace Sexism Evolving Slowly in France,” New York Times, May 24 (reg)). Plus: chief exec of leading British fashion chain canned after inappropriate conduct (Fraser Nelson and Tim Fraser, “Pat on the bottom costs boss £1m job” Sunday Times (London), May 10).

May 25 – His wayward clients. In March, in 275 pages of court filings, Allstate, Geico and other insurers filed a lawsuit charging what they called “the most extensive fraud upon the New York no-fault system that has ever been uncovered,” suing 47 doctors, chiropractors and businessmen all told. But the complaint did not name as a defendant a lawyer who’s given legal advice or assistance to just about every one of those 47 defendants; he’s a former chairman of the State Bar Association’s health committee who rents office space in a politically connected law firm. Among his specialties is to assist chiropractors and others in getting around a New York rule that no one can own a medical practice other than a licensed doctor. The complaint says a Milford, Conn. physician who holds a license to practice medicine in New York had served as the front guy for no fewer than 29 medical practices in the state. (Glenn Thrush, “Black Belt Lawyer Robert B orsody Evades $57 Million Fraud Lawsuit”, New York Observer, March 20).

May 24 – Musical chairs disapproved. “The traditional children’s party game of musical chairs has been accused of breeding violence,” reports the BBC. A booklet produced under the auspices of the British education ministry by a group called the Forum on Children and Violence argues that the diversion rewards the “strongest and fastest” children and suggests that nursery schools consider an alternative game such as “musical statues”. The education spokeswoman for the opposition Tories, Theresa May, called the advice “political correctness gone mad”. (”Musical chairs ‘too violent’”, BBC News, May 23).

May 24 – After the great power-line panic. Eleven years ago reporter Paul Brodeur penned a series of articles for The New Yorker charging that electric power-line fields were causing childhood cancers and other ailments, later published as a book entitled Currents of Death. Trial lawyers promptly went on the warpath, and the resulting binge of scare publicity terrified countless parents. Hundreds of millions in litigation costs later, the suits have mostly fizzled. But have any lessons been learned? Forbes reprints an excerpt from Robert L. Park’s much-discussed new book, “Voodoo Science” (Oxford U. Press). (”Voodoo Science and the Power-Line Panic”, May 15). Among groups that stoked the panic were Trial Lawyers for Public Justice: see, e.g., “Names in the News: Kilovolt Cancer”, Multinational Monitor, March 1992 (second item, quoting TLPJ’s Michael Koskoff).

May 24 – Smudged plumage. The Baltimore Orioles, owned by trial lawyer zillionaire/political kingmaker Peter Angelos, say that in order not to threaten the “goodwill” arising from their exhibition performance against the Cuban national team last year (see Dec. 9, Oct. 19 commentaries), they’ll refuse to hire any baseball player who defects from Cuba. Roger Clegg of the Center for Equal Opportunity calls this stand “morally indefensible — telling those fleeing a totalitarian regime that they are unwelcome and unemployable” — and wonders how well it accords with the federal laws banning employment discrimination on the basis of national origin and lawful-immigrant status. Maybe the team could beat such charges by arguing that it has nothing against Cuban émigrés based on their national origin as such — it might hire them, after all, if they were loyal Castroites playing with Fidel’s approval. (”Peter Angelos in foul territory”, National Review Online, May 18; “Orioles Avoid Cuban Players Who Have Defected”, Reuters/Yahoo, May 17, link now dead).

May 24 – ADA & the web: sounding the alarm. “It’s simply a matter of (Internet) time before pitched battles over accommodations in the virtual world rival their physical counterparts,” writes MIT’s Michael Schrage (”Brave New Work: E-Commodating the Disabled in the Workplace”, Fortune, May 15; quotes our editor). The National Federation of the Blind’s recent lawsuit against AOL is “a 500-pound gorilla that party-goers can’t ignore,” according to a metaphor-happy lawyer with Morrison & Foerster. “…If the court rules that AOL is a public accommodation, it could require anyone engaging in e-commerce to make their Web site …accessible to people with disabilities.” (Ritchenya A. Shepherd, “Net Rights for the Disabled?”, National Law Journal, Nov. 15, 1999). “In a few years, if regulatory history is repeated, any Web site that doesn’t provide government-sanctioned equal access for the handicapped could be declared illegal,” warns an Internet Week columnist (Bill Frezza, “The ADA Stalks The Internet: Is Your Web Page Illegal?”, Feb. 28). Coming soon, we hope: a few highlights from the mail we’ve been inundated with on this topic, much of which we haven’t even had a chance to answer yet (thanks for your patience, correspondents!).

May 24 – Bargain price on The Excuse Factory. Usually we urge you to buy books through our online bookstore, but right now Laissez Faire Books is offering an unbeatable discount on our editor’s book about law and what it’s doing to the American workplace, The Excuse Factory, just $12.25 while they last (hardcover, too). And it makes a good occasion to check out the rest of the LFB catalogue. (Order direct from them.)

May 23 – Steering the evidence. The FBI is probing charges of evidence- and witness-tampering in a liability case that led a San Antonio judge last week to impose sanctions on plaintiff’s attorneys Robert Kugle, Andrew Toscano and Robert “Trey” Wilson. Bridgett and Juan Fabila had sued DaimlerChrysler, demanding $2 billion, over a 1996 accident in Mexico which killed several family members in their Dodge Neon. Their lawyers alleged that the car’s steering column decoupler was defective. But someone anonymously sent DaimlerChrysler evidence of misconduct by its adversaries, and eventually the carmaker succeeded in laying before 224th District Judge David Peeples evidence of the following:

* The steering decoupler was broken by the time the carmaker was allowed to see it, but photographs taken shortly after the accident showed it intact. The plaintiff’s lawyers denied for two years having any knowledge of such photos, and then, when they came to light, moved unilaterally to drop the suit, then argued (unsuccessfully) that the judge had no authority to impose sanctions on them because his jurisdiction ended with the suit. Close inspection of the steering decoupler revealed the minute scrapings of wrench marks and other signs of deliberate tampering.

* One of the attorneys’ investigators “tried to bribe two Mexican highway patrol officers in an attempt to change their testimony and threatened the family of a Red Cross official who said Fabila told him the accident had occurred because her husband fell asleep behind the wheel.”

* The “investigator who took the first set of photographs claim[ed] Wilson told him in March that his firm was ‘running a bluff, but we had our hand called.’” The lawyers said later that their real demand was for $75 million, of which they would get 40 percent as their share, according to the San Antonio paper’s Rick Casey.

Senior partner Robert Kugle of the Kugle Law Firm counter-accused the car company of itself bribing witnesses and tampering with evidence, while Wilson and investigator Stephen Garza “both asserted their Fifth Amendment right not to testify”. After an inquiry, Judge Peeples dismissed the Fabila family’s suit with prejudice, ordered attorneys Kugle, Toscano and Wilson to pay $920,000 in legal expenses that DaimlerChrysler had incurred — it’s not quite impossible for a defendant to recover its legal costs in an American courtroom — and said he planned to report his findings to the state bar and to county prosecutors for possible action. The FBI has seized the vehicle pursuant to further investigation, according to Casey. Kugle continues to declare his innocence of wrongdoing and says he intends to appeal; the other two attorneys were not available to reporters for comment. Ken Glucksman, associate general counsel of DaimlerChrysler, said the case was “the most flagrant example of misconduct I’ve seen in more than 20 years as a lawyer” and said he hoped the attorneys were disbarred. Update: final ruling by judge sets stage for appeal (June 26). Further update (Mar. 17, 2003).

SOURCES: Adolfo Pesquera, “Sanctions issued in tampering case”, San Antonio Express-News, May 18; San Antonio Express-News coverage by Rick Casey, various dates; “Judge Dismisses $2 Bln Suit vs. Daimler”, Reuters/FindLaw, May 18; “DaimlerChrysler wins $920,489 in fines against three Texas attorneys”, AP/Detroit Free Press, May 18; Dina ElBoghdady, “DaimlerChrysler fights baseless suits”, Detroit News, May 19; “Lawyers who sued DC fined”, Detroit Free Press, May 19, link now dead.

May 23 – “Toronto Torch” age-bias suit. Shirley Zegil, 52, has filed a complaint with the Ontario Human Rights Commission, saying she was improperly discharged by a Brantford strip club because of her age. “They told me I was too old and fat,” said Zegil, who has been disrobing for audiences for more than two decades and performs under the nicknames “The Contessa” and “Toronto Torch”. But she still has plenty of loyal fans among older clubgoers: “A girl is never too old to strip,” she says. (Dale Brazao, “Stripper, 52, a winner in my court of appeal”, Toronto Star, May 22, no longer online).

May 23 – Favorite bookmark. Edward E. Potter is president of the Employment Policy Foundation, which plays a prominent role in debates on workplace issues in the nation’s capital. Yesterday the Cincinnati Enquirer asked him to list his favorite bookmarks, and this site made it onto the short list. Thanks! (”Weighing future of work force” (interview), May 22).

May 23 – “Lawyers’ tobacco-suit fees invite revolt”. Arbitrators’ award of $265 million to Ohio tobacco lawyers was the final straw for editors of USA Today, which came out editorially yesterday in favor of limiting attorneys’ tobacco swag. Fee hauls have mounted to $10.4 billion, including $3.4 billion for lawyers representing Florida, $3.3 billion (Texas), $1.4 billion (Mississippi), and $575 million (Louisiana), the latter of which works out, according to a dissenting arbitrator, to $6,700 an hour. The paper calls the “mega-paydays” a “sorry legacy” of the tobacco deal and notes that lawyers “who represented many states are being paid repeatedly for piggyback efforts.” (May 22).

May 23 – “Harvard reenacts Jesus trial”. Among dramatis personae in simulated trial of founder of Christianity: divinity prof Harvey Cox as Pontius Pilate and, as defense lawyer for the man of Galilee, none other than Alan Dershowitz, who “said the role fulfilled a lifelong dream. ‘Jesus is the one client I’ve always wished I could have represented,’ said the law professor whose clients have included O.J. Simpson, Claus von Bulow and Leona Helmsley”. Arguing that crucifixion was too severe a penalty for defying Roman authorities, Dershowitz “came up with a novel substitute punishment. ‘I think it would be appropriate to tie him in litigation and appeals for years,” he said. ‘That way he would spend his life with lawyers, whom he hated.’” (Richard Higgins, Boston Globe/Omaha World Herald, May 13).

May 22 – Texas tobacco fees. “Every three months, like clockwork, another $25 million arrives for the five Texas tobacco lawyers.” The five are fighting tooth and nail to avoid being put under oath by Texas Attorney General John Cornyn, a Republican, about how they came by that money, specifically, “longtime allegations that his predecessor, Dan Morales, solicited large sums of money from lawyers he considered hiring” for the state’s tobacco case. (Wayne Slater, “Trial lawyers give heavily to Democrats”, Dallas Morning News, May 14; Clay Robison, “Cornyn moves in on anti-tobacco lawyers”, Houston Chronicle, April 27; Susan Borreson, “Motions Flying Again Over Tobacco Lawyers’ Fees”, Texas Lawyer, July 26, 1999; “Lawyers Challenge AG’s Subpoenas”, Nov. 17, 1999).

So far, according to the Dallas Morning News report, the five have taken in more than $400 million of the billions they expect eventually from the tobacco settlement, and have recycled a goodly chunk of that change into political donations — more than $2.2 million in unrestricted soft money to the Democrats already in this election cycle, with further sums expected. Walter Umphrey, along with members of his Beaumont firm, “has put at least $350,000 into Democratic coffers. ‘The only hope of the Democratic Party is that the trial lawyers nationwide dig down deep and the labor unions do the same thing,’ he said. In addition to Mr. Umphrey and his firm, John Eddie Williams and members of his Houston firm have given $720,000; Harold Nix of Daingerfield, $420,000; Wayne Reaud of Beaumont, $250,000; and John O’Quinn of Houston, $100,000.”

May 22 – Not child’s father, must pay anyway. “Told by his girlfriend that she was pregnant, Bill Neal of Glasgow Village presumed he was the father and agreed to pay child support.” Eight years and $8,000 in payments later, Neal was curious why the child didn’t take after his looks, arranged for a DNA test to be done, and discovered the boy was someone else’s. So far the courts have ruled that he has to keep paying anyway because he didn’t contest the matter earlier. The legal system is big on finality on the matter of paternity, as men have learned to their misfortune in similar cases lately in Ohio, Texas and Pennsylvania. (Tim Bryant, “Man must pay support even though he is not boy’s father”, St. Louis Post-Dispatch, May 17, no longer online). Plus: John Tierney on “throwaway dads” (”An Imbalance in the Battle Over Custody”, New York Times, April 29 (requires registration)).

May 22 – “Jury Awards Apparent Record $220,000 for Broken Finger”. It happened in Atlanta after 41-year-old dental hygienist Linda K. Powers took a spin on the dance floor with Mike D. Lastufka but came to grief when Lastufka “tried a shag-style spin move”; her thumb wound up broken and she sued him. The previously reported Georgia record for a broken finger or thumb was $20,000 to a tennis instructor hurt in an auto accident. (Trisha Renaud, Fulton County Daily Report, Jan. 28).

May 22 – Annals of zero tolerance. In Canton, Ohio, a six-year-old boy has been suspended from school for sexual harassment after he jumped from the tub where he was being given a bath and waved out the window to a school bus that was picking up his sister (Lori Monsewicz, “Boy, 6, jumps from tub into sex harassment trouble”, Canton Repository, May 11). In the latest “finger-gun” incident, the principal of a Boston elementary school visited a class of second-graders to admonish several of them for making the thumb-as-trigger gesture during a supervised play-acting session; the youngsters were not subjected to discipline, however. (Ed Hayward, “School gives hands-on lesson after kids pull ‘finger guns’”, Boston Herald, March 28). And the American Bar Association Journal — who says its views don’t coincide with ours occasionally? — points out that “a child is three times more likely to be struck by lightning than to be killed violently at school” and recounts many noteworthy cases: “A second-grader who accidentally grabbed her mother’s lunch bag containing a steak knife was disciplined despite turning the bag over to her teacher as soon as she realized her mistake. A middle-schooler who shared her asthma inhaler on the school bus with a classmate experiencing a wheezing attack was suspended for drug trafficking.” “Kids are not going to respect teachers and administrators who cannot appreciate the difference between a plastic knife and a switchblade,” says Virginia lawyer Diane Fener. (Margaret Graham Tebo, “Zero tolerance, zero sense”, ABA Journal, April).

Tagged as: Alabama, Allstate, Atlanta, attorneys general, Australia, Baltimore, baseball, Beaumont, Canada, Chrysler, Cincinnati, Dallas, Delaware, Denver, Detroit, France, free speech, Germany, governors, hospitals, Houston, John O'Quinn, Louisiana, Manhattan Institute, Massachusetts, Mississippi, New Mexico, Ohio, Pennsylvania, Provost Umphrey, reparations, San Diego, Seattle, Switzerland, Tennessee, The Excuse Factory, tobacco, tobacco settlement, zero tolerance

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April 2000 archives, part 3

by Walter Olson on April 30, 2000

April 28-30 – Degrees of intimidation. Diploma mills (self-proclaimed universities willing to mail out meaningless degrees, in exchange for what is often substantial “tuition”) have flourished lately and efforts to rein them in have foundered, writes a specialist in the field. “In 1982 the American Council on Education announced an impending, hard-hitting, and uncompromising book (I hoped) on fake schools. But by the time Diploma Mills: Degrees of Fraud finally emerged in 1988, the lawyers had marched in, and the book was, at best, soft-hitting and compromised. The authors apologized for lack of specificity (not a single currently operating fake was named) because of ‘the present litigious era.’

“Yes, schools do sue. … I’ve been sued eight times by schools …. Only one ever got to court, and that was thrown out by the judge, as frivolous, in minutes. But there is a cost in both dollars and, my wife will confirm, despondency.” (John Bear, “Diploma Mills: The $200 Million a Year Competitor You Didn’t Know You Had”, University Business, March) (via Arts & Letters Daily).

April 28-30 – Collateral damage in Drug War. Authorities earlier this month arrested Dorothy Jean Manning, 66, Ramona Ann Beck, 61, and Armitta Mae Granicy, 59, for selling iodine crystals without keeping tabs on buyers’ names and vehicle IDs as required by law. All three women work at Granicy’s Feed Store in rural Lancaster, Calif. and have been charged with repeatedly selling the crystals to undercover agents despite warnings. Ranchers use iodine crystals to treat hoof ailments in livestock, but they are also a so-called “precursor chemical” in the production of methamphetamine. (Reason Express, April 17 — third item). (Update: see letter to the editor, May 18, 2001). And Denver’s famous bookstore, the Tattered Cover, is locked in a courtroom battle with the North Metro Drug Task Force over demands that it disclose the identity of the purchaser of two books found in an Adams County residence which also contained a methamphetamine lab; the books, apparently bought from the Tattered Cover with a credit card, contained instructions for manufacturing the drug. “On April 5, five plain clothes Denver police officers showed up at the bookstore with [a] search warrant and insisted on conducting a search” but agreed to wait until a court resolved the situation. (Cheryl Arvidson, “Denver bookstore’s sales records sought in drug-lab investigation”, Freedom Forum, April 20). Update Oct. 27-29: judge orders store to hand over records.

April 28-30 –Legal Times (Washington, D.C.) “Web of the Week”. One of the nicest encomia we’ve received lately makes us anxious to live up to it. “Lawyers and litigation have been lampooned at least since Dickens. Now Walter Olson of the Manhattan Institute, a longtime critic of the excesses of litigation, has launched overlawyered.com, a Web site that gathers daily nearly every story of this type from the media and gently skewers the profession. It remains just this side of acerbic, which actually makes the site more effective. Excessive fees, silly cases, outlandish extenuations, and my favorite, ridiculous warning labels, abound here. Read it and laugh, but take much of it to heart.” (Jonathan Groner, Legal Times, April 10).

April 28-30 – Updating Jane Austen. If the author were writing today. … “After recovering memories of childhood abuse by their father, the novel ends with the Bennet sisters awash in cash, their futures secure, and their romantic lives no longer held in thrall to the economic oppression of the patriarchy.” (Mark Lasswell, “Get real, Jane”, Women’s Quarterly, Winter 2000 (via The Occasional)).

April 27 – Sock puppet lawsuit. Internet pet supply enterprise Pets.com has filed a federal lawsuit against Robert Smigel, a writer with NBC’s “Late Night With Conan O’Brien”, over Smigel’s creation of “Triumph the Insult Comic Dog”, a satirical character reminiscent of Pets.com’s own highly visible sock-puppet mascot. “‘Triumph is a rubber-dog that … regularly uses vulgarity, insults both the humans and other dogs around him and often conducts physical attacks of a sexual nature on female dogs,’ the complaint says.” (”The sock that roared”, TVBarn, April 25; “Pets.com socks it to ‘Late Night’ writer”, AP/FindLaw, April 26, link now dead).

In more news from the world of doll litigation, Barbie-maker Mattel, Inc., has sued the prominent San Diego law firm of Luce, Forward, Hamilton & Scripps for slander and libel. The case arises out of a longstanding legal dispute between the giant toy company and one of Luce Forward’s clients, the Collegiate Doll Co., over sales of dolls by the latter company that allegedly infringed on “college cheerleader” versions of Barbie. Mattel now claims to have been falsely accused of illegalities and unethical conduct in an article published in Luce’s newsletter and on its website. Previously, Mattel successfully sought judicial sanctions against a Luce partner who, having weathered earlier rounds of litigation involving the curvaceous plaything, “began to tout himself as an expert in Barbie disputes,” and whose sanctionable misconduct allegedly included tossing Barbie dolls during a videotaped meeting of counsel. (Gail Diane Cox, “Barbie’s Backers Smack Firm With Slander Suit”, CalLaw, March 2).

April 27 – Let’s go to the tape. “Brian Lopina, a lobbyist for the Association of Trial Lawyers of America [recently broke] the Golden Rule of Washington Voicemail [, which] states that the only message you should ever leave on anyone’s machine is Call me …. Lopina tried to intimidate Sen. Rod Grams, the Minnesota Republican, out of backing a bill that would scrutinize asbestos suits more carefully. … [He] warned Grams that ATLA was bankrolling a set of highly effective ads against senators (like Montana Republican Conrad Burns) who weren’t dancing to the lawyers’ tune. He offered to send over a transcript of the ads, ’so you’ll see exactly how hard-hitting this stuff is. I think you really ought to get off this bill.’ Lopina claimed to have been calling Grams as a ‘friend,’ and ATLA denied that he’d made the calls at its request. Yeah, sure — he works as a lobbyist but makes threatening calls about legislation in his spare time.” (Christopher Caldwell, “Tele-Grams”, New York Press, April 19-25). The Wall Street Journal beat us to this one with their editorial Tuesday: “The New Commissars”, April 25 (online subscribers only)). See also Dane Smith and Greg Gordon, “Grams said lobbyist tried to ‘blackmail’ him”, Minneapolis Star-Tribune, April 11 (reprinted at Coalition for Asbestos Resolution site).

April 27 – Legal Intelligencer sees Fidel’s sunny side. Whatever divergent views we may hold on the armed seizure and prospective return of Elian Gonzalez, you’d think we could all at least agree in execrating the brutal dictator whose misrule the little boy and his mother were fleeing. But no, even at this late date, the old monster has his defenders — including, it seems, some in the legal profession. Last month Philadelphia’s couldn’t-be-more-respectable Legal Intelligencer ran a kissy account of how fourteen American lawyers went to Cuba on a “fact-finding” mission sponsored by the far-left National Lawyers Guild, met the great man himself, and came back singing his praises. “There is a sense of respect for other human beings there,” effused attorney Joshua Rubinsky. “A respect you don’t see [in the United States] in terms of labor relations.”

Queasy yet? There’s much more. “Fidel Castro is a lawyer,” the account begins (which, for the record, is meaner than anything this site has ever said about lawyers). “He graduated from Cuba’s Havana University with a law degree in 1950, and, although he never practiced law, his political influence has helped shape Cuba’s legal system” — “political influence” being here a remarkable euphemism for the Communist strongman’s tendency to murder or jail opponents and critics. The story proceeds to quote attorney Gail Lopez-Henriquez, who like Mr. Rubinsky practices labor law in Philadelphia, as saying: “People we met really believe that they have a system that has some very important principles and structures that protect people’s rights, dignity and material needs.” The Legal Intelligencer never sees fit to quote even a single critic of the Cuban regime, or indeed anyone outside the admiring circle of trip-goers. (April White, “Meeting Castro Highlight of Study Trip To Cuba for Group of U.S. Labor Lawyers”, The Legal Intelligencer, March 16).

April 25-26 – New page on Overlawyered.com: Free speech & media law. Newest addition to our collection of topical pages covers libel, slander and defamation suits; the use of litigation to suppress or intimidate criticism and political opposition; harassment law’s effects in curbing email jokes, cartoons and workplace banter; efforts to hold makers of shoot-’em-up movies and videogames liable for damages when their customers commit acts of violence; regulation of campaign speech; copyright, broadcast law, and other topics relating to free expression and media law. Also: we’ve updated the desktop links on the front page’s left column, dropping some less-used links, adding a half-dozen new, and creating a new section for “Science/skepticism” links, most of which had previously been found in “Diversions”.

April 25-26 – Celera stockholders vent at Milberg Weiss. Lively discussion breaks out on Motley Fool investment bulletin boards concerning suit filed by class-action filers Milberg Weiss against genome-mapping pioneer Celera after stock price drop (suit announcement). Most of the participants are decidedly unhappy about the suit’s filing, and their email protests succeeded in drawing some response from Milberg Weiss attorneys. Some jumping-off points to browse the discussion: messages #13466, 13594 (cites this site), 13775, 13806, 14041 (view threads).

April 25-26 – Preferred seating. ADA lawsuits against movie theaters proliferate, with a D.C. law firm last week seeking class-action status on behalf of millions of hearing-impaired moviegoers against two of the biggest cinema chains over their failure to install expensive captioning and other assistive technology. (”Hearing-impaired moviegoers sue Lowes [sic] and AMC”, Bloomberg/Boston Globe, April 21, link now dead). In Oregon, where activists filed a suit earlier this year seeking mandatory captioning (see February 19-21 commentary), they’ve now filed another one charging that it’s unlawful for wheelchair users to be seated in front where they may be obliged to crane their necks at an uncomfortable angle (Ashbel S. Green, “Regal Cinemas sued over seats”, The Oregonian (Portland), April 12). The Fifth Circuit, however, recently turned two thumbs down on a similar lawsuit out of El Paso. (Nathan Koppel, “Court Failed to Recognize Disabled Movie Patrons’ Difficulties, Expert Says”, Texas Lawyer, April 13).

April 25-26 – Toronto coach: ich kann nicht anders. Toronto Raptors basketball coach Butch Carter has filed a defamation lawsuit against departed player Marcus Camby, who recently described Carter as a “liar” and unpopular with the team. Camby, who alleges that Carter assured him he’d be kept on the team just before the front office traded him to the New York Knicks, said, “No one likes him and no one wants to play for him. That is the kind of guy that he is.” “I’m responding to an article of untruths in the only manner I can,” said Carter, on the question of why he was suing. “That’s through the courts.” You might think he’s overlooking at least one other manner of responding short of litigation, namely airing his side of the story in the press. Carter hasn’t been shy about doing that in the past: in an upcoming book, he alleges that one of his own former coaches back at Indiana is a “bully” and “self-serving coward” and has used racial slurs. (”Carter would withdraw suit for apology”, ESPN, April 23; “Raptors’ Carter Defends Camby Suit”, Yahoo/AP, April 24; “Carter claims Knight used racial slur”, AP/ESPN, April 14). Update: Carter soon dropped the suit (see May 4 commentary).

April 25-26 – Gray sameness of modern playgrounds. “Is there anything lamer than these new ’safe’ playgrounds? Where is the fun in the Big Hollow Plastic Cube with Holes Cut in It? Or the Three Axles with Triangular Plastic Spinning Things for Playing Tic-Tac-Toe? … And yet overprotective surrogate mothers from the National Program for Playground Safety insist that still not enough is being done to protect the children. … Give me spinal injury inducing monkey bars over this modern plastic junk any day.” (Eigengrau weblog, April 20 entry).

April 25-26 – Thought for the day. “The history of censorship is a history of folly and cruelty” — Judge Richard Posner in Miller v. Civil City of South Bend, Seventh Circuit, 1990; quoted in the substantial new profile of him in Lingua Franca (James Ryerson, “The Outrageous Pragmatism of Richard Posner”, May).

April 25-26 – Regulation by litigation: what to do? Some ideas that might curb courts’ and trial lawyers’ penchant for acting as surrogate legislatures, including a “Model Separation of Powers Act”, a Sunshine Act requiring that governments disclose the manner in which they hire outside attorneys, and an act making clear that government can’t oust traditional defenses to liability in the course of filing third-party lawsuits over Medicaid reimbursement and the like (assuming governments should be filing such suits at all). (Victor E. Schwartz and Leah Lorber, “Regulation Through Litigation Has Just Begun: What You Can Do To Stop It”, “Briefly…” Series, National Legal Center for the Public Interest, November 1999 (PDF)).

April 24 – Scented hair gel, deodorant could mean jail time for Canadian youth. “A Halifax-area teenager may face criminal charges for wearing Dippity Do hair gel and Aqua Velva deodorant to school after his teacher complained to the RCMP [Royal Canadian Mounted Police, Mounties] about his fragrant abuse of the school’s no-scent policy. Gary Falkenham, 17, has twice been suspended from Duncan MacMillan High School in Sheet Harbour, N.S., for violating the school’s strict policy banning perfumes, aftershaves and scented hairsprays and deodorants.” (Shaune MacKinlay and Adrian Humphreys, “Student may face criminal charge for wearing smelly hair gel”, Halifax Daily News/National Post, Apr. 19. More on the “scent-free” movement, which has made Halifax its poster city: Larry M. Greenburg, “One City Turns Up Its Nose Against the Use of Perfume”, Wall Street Journal, July 28, 1999, reprinted at Junk Science; Betty Bridges, “Halifax Leads the Way With Fragrance-Free Policies”, Flipside, Sept. 1999; Dalhousie U. policy, Environmental Health Network, Fragranced Products Information Network).

April 24 – Court rejects “telephone sex slave” charge. A federal judge has dismissed Doris Ford’s lawsuit charging that Hartford businessman and power broker Arthur T. Anderson had coerced her into being his highly paid “telephone sex slave”. Ms. Ford did not allege that the couple had had physical contact since 1977, and the judge said that even if it were true that the two had more recently engaged in sexually oriented telephone conversations and that she had received sums in excess of $150,000 from Mr. Anderson, the relationship could at most be described as contractual. Anderson’s lawyer says his client had made payments to Ford for years to keep her from revealing their long-ago extramarital relationship. Ms. Ford’s lawyer, Norman A. Pattis, conceded that his claim invoking the federal Violence Against Women Act was “creatively pleaded and probably on the cutting edge.” (Mark Pazniokas, “Judge Rejects Sex Slave Suit”, Hartford Courant, Apr. 21, link now dead).

April 24 – Less suing = less suffering. New England Journal of Medicine study on crash injuries before and after Saskatchewan’s introduction of no-fault insurance finds “the elimination of compensation for pain and suffering is associated with a decreased incidence and improved prognosis of whiplash injury.” Not only did fewer people claim whiplash under the no-fault system, but no-fault’s much faster resolution of claims appeared to be strongly correlated with faster recovery, less intense pain and fewer depressive symptoms. (J. David Cassidy and other authors, “Effect of Eliminating Compensation for Pain and Suffering on the Outcome of Insurance Claims for Whiplash Injury”, New England Journal of Medicine, April 20). A related editorial in NEJM calls the findings “dramatic” and adds: “An obvious concern is whether this change simply forced severely injured patients to suffer in silence without appropriate compensation for ongoing impairments. Several considerations suggest that this explanation is unlikely.” The medical harm done by the fault system, the editorialist proposes, is not so much in encouraging conscious malingering as in generating excessive medical attention and overly alarmist diagnoses that can become self-fulfilling. The editorial also cites studies from Australia and Lithuania suggesting that the legal environmen