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September 15 roundup

by Walter Olson on September 15, 2008

  • Saying fashion model broke his very fancy umbrella, N.Y. restaurant owner Nello Balan sues her for $1 million, but instead gets fined $500 for wasting court’s time [AP/, NY Times]
  • Spokesman for Chesapeake, Va. schools says its OK for high school marching band to perform at Disney World, so long as they don’t ride any rides [Virginian-Pilot]
  • More on Chicago parking tickets: revenue-hungry Mayor Daley rebuffed in plan to boot cars after only two tickets [Sun-Times, Tribune]
  • Too old, in their 50s, to be raising kids? [Houston Chronicle via ABA Journal].
  • Britain’s stringent libel laws and welcome mat for “libel tourism” draw criticism from the U.N. (of all places) [Guardian]
  • Beaumont, Tex.: “Parents sue other driver, bar for daughter’s DUI death” [SE Texas Record, more, more]
  • “Three pony rule”: $600,000 a year is needlessly high for child support, even if mom has costly tastes [N.J.L.J., Unfiltered Minds]
  • Advocacy groups push to require health insurers and taxpayers to pay for kids’ weight-loss camps [NY Times]
  • Lester Brickman: those fraud-rife mass screening operations may account for 90 percent of mass tort claims [PoL]


February 11 roundup

by Walter Olson on February 11, 2008

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(Update, December 16: And welcome, Consumerist readers. For more on the anti-consumer campaign against arbitration, see the Overlawyered arbitration section. Consumerist’s headline “Mandatory Binding Arbitration Means Alleged Halliburton Rapists Could Go Free” is entirely false. Aside from the fact that it does not appear the alleged rapists worked for Halliburton, the issue of whether Jones is contractually obligated to arbitrate her employment dispute with her employer is entirely unrelated to whether the government underinvestigated a criminal complaint against rapists. They are two entirely separate issues. It’s not the first time that Consumerist has reprinted misleading arguments against arbitration—a shame, because mandatory binding arbitration helps consumers, and Consumerist should care more about consumers than the trial lawyers who are lobbying for an anti-consumer law.)

In February 2006, Jamie Leigh Jones filed an arbitration complaint, complaining that, for her administrative assistant job with KBR in the Iraq Green Zone, she was placed in an all-male dorm for living arrangements, and a co-worker sexually assaulted her. (KBR says the co-worker claimed the sex was consensual, though Jones claims physical injuries, such as burst breast implants and torn pectoral muscles, that are plainly not consistent with consensual sex. The EEOC’s Letter of Determination credited the allegation of sexual assault.)

Fifteen months later, after extensive discovery in the arbitration, Jones, who lives in Houston, and whose lawyer is based in Houston, and who worked for KBR in Houston, sued KBR and a bunch of other entities (including Halliburton, for whom she never worked, and the United States), in federal court in Beaumont, Texas. The claims were suddenly of much more outrageous conduct: the original allegation of a single he-said/she-said sexual assault was now an allegation of gang rape by several unknown John Doe rapists who worked as firemen (though she did make a claim of multiple rape to the EEOC, though it is unclear when that claim was made); she claims that after she reported the rape, “Halliburton locked her in a container” (the EEOC found that KBR provided immediate medical treatment and safety and shipped her home immediately) and she threw in an allegation that a “sexual favor” she provided a supervisor in Houston was the result of improper “influence.” (But she no longer makes the implausible claim that she was living in an all-male dorm in Iraq.)

The US got the claim dismissed quickly (Jones hasn’t yet followed the appropriate administrative claims procedure); the case was transferred back to Houston where it belonged (the trial lawyer’s ludicrous brief in opposition didn’t help). But the fact that the defendants are pointing out that the lawsuit over a pending arbitration violates 28 U.S.C. § 1927 and are asking for the court to mandate only one single proceeding in arbitration rather than a multiplicity of parallel proceedings, is now being treated as a cause célèbre by the left-wing blogosphere in its campaign against the contractual freedom to arbitrate. (Note that two elements explicitly designed to arouse the ire and inflame the passions of the left—Halliburton and gang-rape—only came about after Jones switched attorneys.)

The Public Citizen blog complains that “the allegations of corporate and governmental misconduct will never see the light of day” in arbitration. Which is absurd:

1) For crying out loud, her case is on 20/20, which, as is its ken, happily unquestioningly gives the plaintiffs’ opening statement in handy manipulative video newsertainment form without mentioning any of the counterevidence. That sort of widespread publicity is hardly the lack of “light of day.” (Update, Dec. 15: the KBR arbitration procedure provides a transcript without confidentiality restrictions, permitting exactly the same publicity as an open court proceeding.)
2) If the government fails to offer Jones an adequate settlement for their alleged bungling of the criminal investigation, she has recourse under the Federal Tort Claims Act against the federal government—though she likely will not have any more recourse against them than any other criminal victim does when the government fails to protect them against crime or prosecute the criminal.
3) If the court system is about having recourse for injuries, she has that recourse. The judicial system is not for public storytelling; if you want to send a message, use Western Union (or ABC News, as the case may be).

20/20 repeats the meaningless claim that “In recent testimony before Congress, employment lawyer Cathy Ventrell-Monsees said that Halliburton won more than 80 percent of arbitration proceedings brought against it”—meaningless because (1) it doesn’t include the cases that settle before arbitration with a favorable result to the employee and (2) there’s no comparison with how well such employees would do in the far more expensive forum of litigation (where the vast majority of employees lose at trial as well). (Update, Dec. 16: KBR (which is not Halliburton) says that 96% of employee claims settle before they get to an arbitrator.)

20/20 also adds the claim (absent in the arbitration and in the otherwise-lurid civil complaint) that Jones was threatened that she would be fired if she sought medical treatment.

[click to continue…]


For reporting on unlawful dumping of sludge into US waters, twelve ship workers are getting whistleblower payments of $437,500 apiece, in what one of their lawyers describes as an “amazing and unexpected windfall that the government essentially arranged for them”. Lawyers for all but two of the workers are charging them fees of $10,000 or less apiece, and one charged no fee at all. However, attorney Zachary Hawthorn of Beaumont, Texas, who represents two clients, says he’s entitled to a 33 percent contingency from their share, amounting to nearly $300,000. Federal prosecutors in Boston “suggest Hawthorn took advantage of unsophisticated ship hands who are not native English speakers and who had little familiarity with the American legal system. They also contend his work was ‘materially indistinguishable’ from that of the other lawyers, who were paid 90 percent less than his requested fee.” On the other hand, the clients have signed statements asking that the fees be approved. Prevailing law restricts lawyers from charging excessive fees and does not make client consent a defense if unreasonable fees are charged, but in practice “judges are typically reluctant to interfere with lawyer-client fee arrangements, especially when a client has not complained”. (Sacha Pfeiffer, Boston Globe, Nov. 10).

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Free market magic

by Ron Coleman on July 9, 2007

You can make these things up — economists do it all the time — but it’s a lot more compelling when they really happen (link added):

An influx of doctors lured to Texas by new limits on malpractice lawsuits has overwhelmed the state board that screens candidates for medical licenses, creating a backlog that forces many applicants to wait months before they can start seeing patients.

Officials said many of the relocating physicians are filling shortages in areas such as Beaumont, where trauma patients previously had to be flown other cities because there weren’t enough surgeons to treat them.

(Italicized part added:)This sounds like great news — more doctors coming back into the system. But who knows? Chances are the plaintiffs’ bar can find a way to spin this as an ominous development — the return of the malpracticers. Now it’s entirely possible that this represents an influx of marginally competent doctors who can’t afford to practice elsewhere because their malpractice premiums are justifiably sky-high. As it is, the article in the Houston Chronicle quoted above says that a simple background check takes 41 days — hence the huge bottleneck — and that more complex histories such as those of veteran or out-of-state doctors will take correspondingly more time. So it doesn’t seem as if the Texas regulatory authorities are lowering the bar too too low.

Indeed, any supply-and-demand interplay where the market is allowed to be distorted by an industry like the insurance business, whose operations seem to defy normal ways of doing business and which is itself hopelessly regulated, is going to be hard to predict.

But in fact, one thing that happened shortly after Texas’s Proposition 12 was passed is that malpractice insurance rates started dropping almost immediately. That’s consistent with reduced financial exposure, but certainly not with an influx of incompetent physicians coming to the “market” (i.e., seeking medical malpractice insurance). The pushmepullyou of the interplay between these things is the sort of thing that makes insurance underwriters such exciting company at a weenie roast, so I won’t even try to have at it.

Again, in any event, this is a stunning example of the invisible hand at work. But surely there is a down side, and not only to med-mal plaintiffs’ lawyers? Of course: Med-mal plaintiffs themselves, who no longer can play in the Texas state court injury lottery. That doesn’t mean other personal injury plaintiffs can’t, unfortunately. But one step at a time.

God forbid anyone reading this or their loved one should be in a position to be seeking damages, economic or otherwise, for medical malpractice. But short of the argument that, well, higher non-economic damages should be available just because they should — or proof, in ten years, that there’s more malpractice in Texas than there was before because of the influx of quack doctors attracted to the free bread crumbs of “easy” med-mal limits — this quacks like a policy that works.


And more May 17 updates

by Ted Frank on May 17, 2007

  • Google beats Perfect 10 in Ninth Circuit appeal over copyright suit over thumbnail images. (Earlier: Feb. 06, Jul. 05, Nov. 04.) [LA Times; WaPo; Bashman; Perfect 10 v. Amazon (9th Cir. 2007)]
  • Judge thinks better over Brent Coon’s attempt to intimidate local press through subpoenas. Earlier: Apr. 24. [WSJ Law Blog]
  • US Supreme Court throws out punitive damages ruling in Buell-Wilson case, lets rest of decision stand. Earlier: Jan. 4 and links therein. Beck and Herrmann also discussed the case in March in the context of a larger discussion of the appropriateness of issuing punitive damages against a company that relied on government safety standards in good faith. [LA Times; AP].
  • Big LA Times piece on the still-pending Extreme Makeover suit, where a family seeks to hold ABC responsible for an intra-household dispute over the spoils of a reality show. Earlier: Mar. 4, Aug. 12, 2005. [LA Times]
  • KFC may have won on trans-fats litigation, as David reported May 3, but they capitulate to Jerry Brown’s pursuit of Lockyer’s equally bogus acrylamide suit over the naturally-occurring chemical in potatoes (Oct. 05, Aug. 05, Aug. 05, May 05, Apr. 04, etc.). KFC will pay a nuisance settlement of $341,000 and will add a meaningless warning in California stores. (Tim Reiterman, “KFC to tell customers of chemical in potatoes”, LA Times Apr. 25).
  • McDonald’s sued over hot coffee. Again. One of the allegations is that McDonald’s failed to secure the lid, which is a legitimate negligence suit, but there’s also a bogus “failure to warn me that coffee is hot” count. [Southeast Texas Record; and a Southeast Texas Record op-ed that plainly read Overlawyered on the subject]


April 24 roundup

by Ted Frank on April 24, 2007


John O’Quinn update

by Ted Frank on April 15, 2007

Judge Denise Page Hood has issued an order to show cause why the O’Quinn law firm (many entries; also POL Jul. 15, 2005, POL Jul. 10, and POL Aug. 3) should not be held in contempt for improperly withholding breast implant settlement money from their clients. There is no press coverage of this brewing scandal.

There has, however, been plenty of press coverage of one of O’Quinn’s other clients, Anna Nicole Smith’s mother. In that circus, O’Quinn finds himself a defendant in a civil defamation suit brought by Smith’s, er, widower, attorney Howard K. Stern, for going on national television and accusing Stern of murdering Smith. [AP/ABC News] The fact of having this client gave cause to dig up some of the more obvious scandals in O’Quinn’s past, though they still missed the more recent ones covered by Point of Law.

Elsewhere in O’Quinn news: the firm settled its $1 billion fen-phen verdict (Apr. 28, 2004) for an unknown amount on the eve of appeal as part of a global settlement of O’Quinn’s caseload of fen-phen cases. (Brenda Sapino Jeffreys, “$1 Billion Fen-Phen Case Settles Before Appellate Oral Arguments”, Texas Lawyer, Apr. 16). The verdict was tainted because the plaintiffs blamed fen-phen for Cynthia Cappel-Coffey’s PPH, but Ms. Cappel-Coffey had been taking four other diet drugs since fen-phen had been pulled from the market that had the known risk of causing PPH. Yet that evidence was excluded from the jury, though the Texas Lawyer coverage barely touches upon this outrage. The state court in judicial hellhole Beaumont also improperly applied Texas caps on punitive damages.

Complete text of the breast implant order after the jump, if you don’t want to read the order in PDF format.

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To celebrate Beaumont tobacco/asbestos lawyer Walter Umphrey’s seventieth birthday, fellow Texas Tobacco Five member John Eddie Williams took over a private aircraft hangar — Umphrey’s own, in fact — “moved out the two private jets and the helicopter, added on a two-story party tent and threw a no-holds-barred tribute to Umphrey.” Music was provided by Chuck Berry, Jerry Lee Lewis and Rotel and the Hot Tomatoes, performing on two different stages, and there was some pretty decent food too. Among the 400 attendees: gubernatorial candidate Carole Keeton Strayhorn. (Shelby Hodge, “Wild soiree in hangar was Western to the hilt”, Houston Chronicle, May 14). Of course it was a mere kaffeeklatsch compared with a Willie Gary or Mark Lanier party.

Now back to your previously scheduled news story about excessive CEO compensation.

Broadcast appearances

by Walter Olson on July 1, 2005

I’m scheduled to join a reporter and anchor in the studios of New York’s WCBS-Channel 2 this afternoon to discuss the retirement of Justice Sandra Day O’Connor; look for me sometime in the 5-to-6 p.m. slot.

More (7:30 p.m. Eastern): I’ll be on WCBS-TV again tomorrow between 9 and 10 a.m. for a second appearance. And (updated) on Monday morning I did two Texas radio phone interviews, including KTSA (San Antonio) with Steve Gehrlein, on the battle over Justice O’Connor’s seat, and KOLE (Beaumont), on the litigation explosion. P.S. on WCBS I mentioned Judge Edith Jones. It’s fun to be a mentioner!

Judicial Hellholes III Report

by KeyMonk on December 15, 2004

The American Tort Reform Association today released its third annual Judicial Hellholes report — ATRA’s report on the worst court systems in the United States where “‘Equal Justice Under Law’ does not exist.”

Here is the press release from ATRA. The highlights, including the top nine worst areas (seven counties and two regions — all of West Virginia and all of South Florida) and a salute to Mississippi for its tremendous and far-reaching tort reforms are on this page. The full report is in PDF format here.

But there may yet be hope:

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Following the spectacular $2 billion class action settlement in Beaumont, Texas against Toshiba for a reported data glitch in its laptop computers (see Nov. 3, 1999 and later coverage) class action lawyers descended with copycat suits against Compaq and other rival laptop makers. A federal class action was however rejected (see May 11-13, 2001) and now the Texas Supreme Court has rejected a national class action filed in Texas state courts. However, “attorneys for the class aren’t throwing in the towel and say a statewide class action still is possible”. Besides proffering other defenses, a lawyer for the company “contends that a buffer in Compaq’s computers prevents problems with the FDC [floppy disk controller].” (Mary Alice Robbins, “Court Boots Nationwide Class Action Against Compaq”, Texas Lawyer, May 18).

…setting the stage for appeal. For our coverage of this Beaumont/John O’Quinn case, see Apr. 28. (Dale Lezon, “Judge supports $1 billion verdict in drug suit”, Houston Chronicle, May 18).

Despite objections from rival plaintiff’s lawyers and others, state district judge Donald Floyd in Beaumont, Texas, has approved the settlement of a class action on behalf of consumers who own or owned recalled Firestone tires allegedly prone to tread separation. The settlement excludes anyone who has filed actual claims of personal or property injury related to the tires. Class members (other than 45 named plaintiffs who will receive $2,500 each) will get no monetary compensation, but will have the right to trade in the tires if they did not respond to the earlier recall, and Firestone has pledged another $65 million for education and safety programs. The class action lawyers, meanwhile, which include Beaumont’s Provost Umphrey, will get $19 million. See our reports of Sept. 19 and Oct. 8. (Brenda Sapino Jeffreys, “Judge Approves $149 Million Firestone Tire Settlement”, Texas Lawyer, Mar. 22).

“A jury awarded $1 billion to the family of a woman who once took the Wyeth-made diet drug Pondimin, part of the now-banned weight-loss combination fen-phen.” Cynthia Cappel-Coffey, who died last year at 41 of primary pulmonary hypertension (PPH), did not develop symptoms of PPH until more than four years after using the Wyeth drug. According to Bill Sims, a lawyer for Wyeth, the Beaumont judge refused to allow the company to introduce evidence that Cappel-Coffey had taken four other diet drugs in the intervening years, although all four of the other drugs warn of a risk of PPH. Wyeth has already set aside nearly $17 billion for fen-phen litigation. (“Jury awards $1 billion to family of woman whose death was connected to diet drug”, AP/Court TV, Apr. 28; Reed Abelson and Jonathan D. Glater, “Texas Jury Rules Against the Maker of Fen-Phen, a Diet Drug”, New York Times, Apr. 28; Tony Freemantle, “Beaumont jury awards $1 billion in diet drug suit”, Houston Chronicle, Apr. 28). (More: Texas Lawyer). For more on fen-phen litigation, see Jan. 25, Jan. 6, Aug. 19 and links from there. For more on Beaumont, that very special jurisdiction, see Jul. 31 and many more. And for more on attorney John O’Quinn, a frequent source of material for this page, see Feb. 26 and many more.

Disappearing Australians

by Walter Olson on November 3, 2003

Lifeguards: “One of Victoria’s most popular surf beaches may be unpatrolled this summer as its lifesaving club struggles to pay the huge public liability insurance costs. The Torquay club will not put lifesavers on the beach this season if the State Government does not pass legislation protecting members and the club from litigation.” (Stephen Moynihan, “Popular beach may have no lifesavers this season”, Melbourne Age, Nov. 2). Pediatric surgeons: “Eighteen orthopedic surgeons and obstetricians have quit public hospitals in Sydney in the past week because of the Government’s medical indemnity charge.” (Ruth Pollard, “Children’s surgeons quit, more will follow”, Sydney Morning Herald, Oct. 2). Rural obstetricians (Lucy Beaumont, “Insurance fear on rural births”, Melbourne Age, May 6). See David Little, “Left untreated, the indemnity system will cause more suffering”, Sydney Morning Herald, Oct. 9; Richard Ackland, “In a row between doctor and lawyer, you know who the politician will call”, Sydney Morning Herald, Oct. 31)

Lawyers and judges in Beaumont, Texas are far from pleased to hear their city called a “judicial hellhole” and “the Barbary Coast for class-action litigation.” “Defense lawyer James R. (“Jay”) Old Jr. says the county has unfairly gotten a reputation as a place where ‘the plaintiffs and defense bar work together to combine for the greatest amount of billables for the defense lawyers and the greatest recoveries for the plaintiff'”. Why, sir, the very idea is preposterous! Besides, there’s a silver lining in the city’s reputation as a forum-shopping destination for lawyers around the state and country: “In fairness, it represents to us an industry. It puts a lot of people to work here,” says Jim Rich, who heads the Beaumont Chamber of Commerce. However, things might be changing: recent elections have shifted the three-member appeals court that oversees Beaumont to a 2-1 Republican edge, from 3-0 Democratic. (Terry Maxon, “Beaumont known for torts”, Dallas Morning News, Jul. 20).

July 30-31 – Tobacco fees: one brave judge. Although most of the press from the New York Times on down continues to ignore this developing story, on July 10 Manhattan Supreme Court Justice Charles E. Ramos “told lawyers for six law firms that were awarded $625 million for their work in the historic 1998 tobacco settlement in no uncertain terms that he will examine whether the fee award is unethical. The April 2001 decision of the arbitration panel that issued the award set off ‘a flashing light that got my attention’ that the $625 million fee might violate the New York Code of Professional Responsibility’s proscription against illegal or excessive fees, Ramos told the throng of lawyers that filled his courtroom,” reports Daniel Wise in the New York Law Journal. Virtually the entire array of lawyers in the case was lined up against Judge Ramos: the trial lawyers themselves of course were furious, the tobacco companies were disputing his jurisdiction over the matter, and New York Attorney General Eliot Spitzer’s office was defending the mega-fees in a brief. Outside the courtroom, meanwhile, establishment legal ethicist Stephen Gillers was scoffing that “There doesn’t seem to be any legal or ethical basis for this inquiry.” There doesn’t? The state’s Disciplinary Rule 2-106 bars lawyers from collecting “an illegal or excessive fee,” and it says nothing about excessive fees being okay so long as the other parties in the case have been dragooned into not objecting. (Daniel Wise, “New York Judge Begins Query Into Tobacco Fees”, New York Law Journal, Jul. 12)(see Jun. 21-23 and Oct. 25-27, 2002; May 11-13, 2001). Correction Jul. 31: our first report mistakenly named the scene of these proceedings as the Superior Court; it is in fact the Supreme Court (which in New York is a trial court and not the highest appellate body).

On July 25 the judge held a further hearing which even fewer press outlets seem to have covered — the only account we’ve seen ran on the Bloomberg wire (“N.Y. Judge Calls Tobacco Pact Legal Bills ‘Offensive”, Bloomberg News Service, Jul. 25, fee-based archive (search on date in litigation category, pulling up additional screens if necessary)). Judge Ramos pointed out that the $625 million fee amounted to $13,000 an hour, a figure he described as “offensive”. Although the trial lawyers who are set to collect those fees include many powerful insiders in New York politics — the sort of men who can make or break the career of an elected judge — the judge seemed admirably uncowed by them. He compared the lawyers’ overcompensation to “the problems now emerging in large corporate America”, which prompted Philip Damashek of Schneider, Kleinick, Weitz, Damashek & Shoot, which was awarded $98.4 million in fees, to demand an apology for “comparing me and my colleagues to these Enron people'”. And Ramos “ordered another attorney at the firm, Harvey Weitz, removed from the courtroom when he loudly told partner Brian Shoot not to let the judge interrupt him. ‘You’re sandbagging us,’ Weitz shouted at Ramos as he was escorted out. The judge threatened to hold him in contempt.” The judge “ordered the attorneys to file a new application supporting their fee request by August 30, or submit papers challenging his jurisdiction in the matter. The attorneys declined to say after the hearing how they planned to respond.” Addendum: Daniel Wise of the New York Law Journal also covered the July 25 hearing and provides further details of an oral argument that was “unparalleled — for its vitriol, much of it aimed at the judge.” (“New York Tobacco Fee Hearing Has Lawyers Smoking”, Jul. 26).

More: in Texas, Attorney General John Cornyn’s ethics investigation is turning up the heat on the Big Five tobacco lawyers who for years now have dodged being put under oath over the terms of their hiring by Cornyn’s predecessor Dan Morales (Brenda Sapino Jeffreys, “Investigation of Texas Tobacco Litigators Still Smokin'”, Texas Lawyer, Jul. 22)(see Jul. 15 and links from there). (DURABLE LINK)

July 30-31 – Lying’s not nice, especially when representing the bar. “Oregon’s highest court has suspended for two years an insurance defense lawyer who lied, while being deposed, to conceal a strategy that allowed his client to control both sides of a claim. … The lawyer, John P. Davenport of Portland, Ore., represented the Professional Liability Fund, an insurer established by the State Bar to provide mandatory malpractice insurance.” The Fund used a shell corporation to buy up unpaid malpractice judgments at a discount from claimants, which it could then dismiss; the strategy is not in itself illegal, but the court found that Davenport had not provided forthcoming answers to a bankruptcy examiner about the shell’s dealings with a bankrupt couple who had sued their lawyer for malpractice. (Annie Hsia, “Two-year Ban for Oregon Lawyer Who Lied”, National Law Journal, Jul. 18). In other sanctions news, a federal judge has ordered French drug company Aventis “to pay $32.6 million in attorney fees for vexatious conduct in patent litigation against Bristol-Myers Squibb Co. Southern District of New York Judge Robert P. Patterson said last week that [the company] ‘defiled the temple of justice’ by obstructing depositions and discovery, instructing a witness not to answer questions at a deposition and advancing baseless claims.” The finding of vexatious conduct is on appeal (Tom Perrotta, “Drug Company Must Pay Fees of $32 Million”, New York Law Journal, Jul. 29). (DURABLE LINK)

July 29 – “Bush Urges Malpractice Damage Limits”. “President Bush urged Congress today to impose substantial nationwide restrictions on medical malpractice cases, arguing that million-dollar verdicts are driving up health care costs and forcing doctors out of business.” Sen. John Edwards (D-T.Law.) promptly charged that under the White House proposal, when a child is blinded or paralyzed for life, “He [Bush] proposes what they get for that is $250,000.” (Mike Allen and Amy Goldstein, Washington Post, Jul. 26). In fact, as Edwards cannot but be aware, damages to cover the costs of care, lost income and other monetizable damages, which commonly would run into the millions in the case of a paralyzed child, would remain fully collectable as before; the mooted limit would apply only to the portion of awards which covered “non-economic” elements such as pain and suffering. (Bush remarks; White House “Policy in Focus“; HHS report on effects of medical liability, PDF format). The Senate Republican Policy Committee has published a paper collecting some of the malpractice-suit-crisis “horror stories” from recent months, with links to accounts in the press (Jul. 25). See also Steve Friess, “Liability costs drive doctors from practice”, Christian Science Monitor, Jul. 17; “Soaring Liability Costs Blamed for Non-Profit Nursing Home Closures”, Dallas Morning News, Jul. 25 (reg); Corpus Christi (Tex.) Caller special section, letters. Sasha Volokh and correspondents discuss the federalism angles (Jul. 27). (DURABLE LINK)

July 29 – Law lectures needn’t be dull. We were familiar with some of the writings of Harvard law prof David Rosenberg, but we had no idea his lecture style was so … colorful, as evidenced by this best-of collection (Harvard Law Record, 1999) (via Eve Tushnet, Jul. 25, who got it from Stuart Buck, Jul. 22 and Jul. 25; and thanks to Dan Lewis for the web-archive link). (DURABLE LINK)

July 29 – New medium, new opportunities. John Steele Gordon, the history-of-business columnist for American Heritage and author of such acclaimed books as A Thread Across the Ocean and The Business of America, devotes his new column to comparing the rise of online publishing with the technological developments, such as the rotary press, that ushered in the era of the metropolitan newspaper in the years before the American Civil War. “When the young can enter a business and experiment with new technology at little risk, revolution is on the way.” Small internet news-gathering and news-assemblage sites can now “have a great impact. … [One of them] has been giving tort lawyers and activist judges fits by assembling in one much-visited site called the most egregious lawsuits and decisions from around the country and beyond. It makes for reading that is often hilarious, infuriating, and sad at the same time.” (“The Man Who Invented the Newspaper”, Aug./Sept.). (More on weblog impact: John Leo, “Flogged by Bloggers”, U.S. News, Aug. 5). While on the subject of nice publicity, we won’t even try to summarize all the additional exposure this site and its editor have gotten in the past few days from the lawyers-sue-fast-food controversy, but we will note that our editor’s O’Reilly Factor appearance of last Tuesday, on educational lawsuits, is now online at (“Watch out Teachers!”, Jul. 24). (DURABLE LINK)

July 26-28 – Fat suits, cont’d. George Washington University law prof John Banzhaf, who got himself so much publicity in the tobacco round, says he’s advising the plaintiff who just announced that he’s suing fast-food chains, so we know the suit must be serious (right?) (Geraldine Sealey, “Fat suits filed”, ABC News, Jul. 25; BBC, “Fat Americans sue fast food firms”, Jul. 25, and “Talking Points“). As for our editor, he’s in considerable demand on the subject, having appeared over the past day on (among others) Fox News Network, CBS radio, and the BBC. This just in: debating our editor on Laura Ingraham’s radio show Friday evening, Banzhaf announced that he is working up a possible suit against milk marketers which will charge that the “Milk Moustache” campaign should give rise to liability because it doesn’t warn consumers that skim milk is sometimes better for you than whole milk. Is he serious? He sure sounded like it (discussion on Democratic Underground). (DURABLE LINK)

July 26-28 – Third Circuit: prisoners may be entitled to watch R-rated films. “Inmates in federal prisons who challenged a ban on allowing them to watch movies rated R or NC-17 have won a new shot at making their case now that a federal appeals court has ruled that a Western District of Pennsylvania judge was too quick to rule in favor of the government. In Wolf v. Ashcroft, the 3rd U.S. Circuit Court of Appeals found that U.S. District Judge Sean J. McLaughlin of the Western District of Pennsylvania ‘did not conduct a proper, thorough analysis’ of whether the ban is ‘reasonably related to legitimate penological interests.'” The trial judge’s ruling against the prisoners, furthermore, “improperly relied on ‘common sense'”. (Shannon P. Duffy, “Prisoners’ Suit Over R-Rated Movies Worth Another Look, Says 3rd Circuit”, The Legal Intelligencer, Jul. 25). (DURABLE LINK)

July 26-28 – Skittish at Kinko’s. The clerk at the copy shop raises objections to a request to photocopy a newspaper column: “Do you have permission to duplicate this copyrighted material?” But it’s my column, the customer protests — I wrote it! “Look — my picture is on the top.” “He told me that didn’t matter, that corporate Kinko’s was overburdened with copyright lawsuits, and consequently he wasn’t about to run my copy job. Sheesh.” (“Inane Laws and Egotistical Copy Men”, Cornell Daily Sun, Mar. 4). (DURABLE LINK)

July 26-28 – Update: cost of clipboard-throwing only $8 million. A San Diego judge has reduced the damage award from $30 million to $8 million in a case against the Ralphs supermarket chain over the conduct of a manager who over the course of a decade is alleged to have verbally harassed female employees and thrown such objects as a telephone and clipboard at them. Superior Court judge Michael Anello called the damages “grossly excessive” and the result of the jury’s “passion and prejudice,” and said “the evidence was insufficient to support the conclusion that defendant [corporation] approved of or ratified [the manager's] conduct.” The decision is “a slap in the face of women’s rights,” countered the plaintiffs’ co-counsel (see Apr. 19-21) (Alexei Oreskovic, “Judge Slashes Sex Harassment Damages Against Ralphs Grocery”, The Recorder, Jul. 17). (DURABLE LINK)

July 25 – “Ailing Man Sues Fast-Food Firms”. You knew it was coming: “A New York City lawyer has filed suit against the four big fast-food corporations, saying their fatty foods are responsible for his client’s obesity and related health problems. Samuel Hirsch filed his lawsuit Wednesday at a New York state court in the Bronx, alleging that McDonald’s, Burger King, Wendy’s and KFC Corporation are irresponsible and deceptive in the posting of their nutritional information, that they need to offer healthier options on their menus, and that they create a de facto addiction in their consumers, particularly the poor and children.” Quotes our editor, who takes the dim view of the suit that you would expect (Michael Y. Park,, Jul. 24). (DURABLE LINK)

July 25 – “Surgeon halts operation over foreign nurses’ poor English”. Britain: “A surgeon at a leading hospital has said he had to stop halfway through an operation because foreign nurses could not follow his instructions. As a result, he said he has been threatened with disciplinary action for racism. David Nunn, a consultant orthopaedic surgeon at Guy’s and St Thomas’s Hospitals, in London, told The Telegraph that he was unable to complete the operation last week without certain instruments. When he asked the nurses, all of whom were foreign, to find them, ‘I was met with a selection of bemused reactions,’ he said. ‘They were produced only when the scrub nurse de-scrubbed and went to find them herself.’ Mr Dunn, 48, said his superiors had accused him of racism and threatened him with being disciplined.” Dunn said the influx of nurses from outside Britain are “without doubt well-trained and dedicated professionals, but if medical staff cannot communicate effectively then patients’ care may be put at risk.” Careful what you say, doc… (Richard Eden, Daily Telegraph, Jul. 22). (DURABLE LINK)

July 25 – “Licensing Deadline Sneaks Up In District”. “Consultants, landlords, music teachers, nannies, massage therapists and other home-based workers in the District face fines of as much as $500 if they do not obtain a new type of city license by Aug. 31, but most are unaware of it. Self-employed individuals and District firms, including nonprofit groups, that collect more than $2,000 in annual revenue will have to obtain a master business license to legally sell their services.” More “than 60,000 businesses and individuals in the District face fines of as much as $500 if they don’t obtain a new type of city license by Aug. 31″ — and have things really reached the point where it’s going to require a license from the government to practice independent journalism from your apartment? (Avram Goldstein, Washington Post, Jul. 21; “How D.C. Creates Chaos” (editorial), Jul. 23; Eugene Volokh, Jul. 23). (DURABLE LINK)

July 24 – Smog fee case: “unreal world of greed”. A California appeals court has thrown out an arbitration panel’s $88.5 million award of attorneys’ fees, amounting to an estimated $8,800/hour, to five law firms which had prosecuted a case against the state of California arguing the unconstitutionality of its former assessment of “smog impact fees” on cars registered from out of state. “The justices called the panel’s $88.5 million fee award ‘an unconstitutional gift of public funds’ that was not authorized by the Legislature. In a scathing concurring opinion, Justice Richard Sims said the award from the arbitration panel was ‘completely in outer space.’ ‘The fact that attorneys even requested a fee award of that magnitude from the taxpayers,’ Sims wrote, ‘is a testament to the unreal world of greed in which some attorneys practice law in this day and age.'” The five law firms included Milberg Weiss Bershad Hynes & Lerach, long a major political donor in California, as well as “New York’s Weiss & Yourman; San Diego’s Sullivan, Hill, Lewin, Rez & Engel; La Jolla, Calif.’s Blumenthal & Markham, and Berkeley, Calif., solo practitioner Richard Pearl.” (see Dec. 5, 2000, Jun. 22, 2001)(Robert Salladay, “Court rips $8,800 an hour in attorneys’ fees”, San Francisco Chronicle, Jul. 23; Mike McKee, “California Appeals Court Rips $88M Fee Award in Smog Case”, The Recorder, Jul. 23). (DURABLE LINK)

July 24 – Update: “Harassment by kids gets ex-teacher 50G” Following up on a story from last month: the city of New York has agreed to pay $50,000 to settle a lawsuit by a former Queens teacher who says his students had harassed him by way of derogatory comments about his immigrant status (from Sri Lanka), accent and ethnicity. “Legal experts said the suit was the first of its kind in which a teacher successfully brought a civil rights action alleging that students had created a ‘hostile work environment.'” The other noteworthy feature of the dispute (see Jun. 26) is the defense the city put forth, namely that it was powerless to discipline the students, who had special education (disabled) status, for insulting the teacher “because students with that classification have already been identified as having behavioral problems, and the verbal misconduct might be considered a manifestation of their disability,” as a city lawyer put it (John Marzulli, “Harassment by kids gets teacher 50K”, New York Daily News, Jul. 22). (DURABLE LINK)

July 23 – Welcome O’Reilly Factor viewers. Our editor was a guest on the top-rated TV talk show this evening, interviewed one-on-one by host Bill O’Reilly on the subject of parents threatening to sue teachers over their kids’ bad grades. We mentioned the recent Arizona case and an earlier Ohio case that we understand has been dismissed by the court; and here’s our theme page on overlawyered schools. (DURABLE LINK)

July 22-23 – Politicos’ “stagey” outrage at balance-sheet sins. “John Walker Lindh got 20 years this week for joining a terrorist network at war with his country. Lucky for him he didn’t try something really bad, like capitalizing an expense item. … President Bush, who spent 56 years on this earth without revealing the slightest passion for corporate reform, now says life will be intolerable if he doesn’t have a bill to sign within a couple of weeks. And he has sent signals that he doesn’t give much of a hoot what is in it.” (Michael Kinsley, “Stock Option Cure-All”, Washington Post, Jul. 19). “Even now, the mob waving pitchforks and torches finds the details of accounting, compensation and corporate governance too tedious to take seriously. But ‘reforms’ that ignore the role of incentives and competition will turn out to be monsters themselves.” (Virginia Postrel, “Business ‘Reforms’ Should Not Ignore Incentives and Competition”, New York Times, Jul. 18 (reg)). (DURABLE LINK)

July 22-23 – Nightmare under the palms. You retire to a Florida condo, and imagine that the hassles of life are over — that is, until you discover that a couple of your neighbors have turned asserting their legal rights into an art form. (Joe Kollin, “Sunrise condo residents get socked with bill because neighbors won’t pay”, South Florida Sun-Sentinel, Jul. 19). (DURABLE LINK)

July 22-23 – Disabled testing: hence, loathèd asterisk. In a settlement with a disabled-rights litigation group, the College Board has agreed to stop flagging the test scores of students who got extra time or other accommodations in taking its college admissions test. The effect will be to allow applicants to conceal from colleges whether they “took the test under normal conditions, or used a computer, worked in a separate quiet room, and had four and a half hours for the three-hour test. … High school guidance counselors said the elimination of flagging could set off a wave of new applications for accommodations, including some from students without real disabilities. … most of those who are accommodated have attention deficit problems or learning disabilities like dyslexia, a reading disorder.” “It’s very clear who’s been getting extended-time: the highest-income communities have the highest rates of accommodations,” said Bruce Poch, the dean of admissions at Pomona College in Claremont, Calif. “I think what’s going to have to happen now is that everyone will, in effect, get more time.” (Tamar Lewin, “Abuse Is Feared as SAT Test Changes Disability Policy”, New York Times, Jul. 15 (reg)). Among commenters: Kimberly Swygert at No. 2 Pencil (Jul. 15 and 17) and Joanne Jacobs (Jul. 15 and Jul. 17). We covered the controversy back in February 1999, May 10, 2000 and Feb. 9-11, 2001. (DURABLE LINK)

July 22-23 – Last-minute friends in Texas politics. “In 1998 [John] Sharp narrowly lost the lieutenant governor’s race to Republican Mr. Perry, who later became governor when George W. Bush became president.” Sharp drew about 15 percent of his financial backing from trial lawyers in that race, which actually probably isn’t all that high a percentage for a Lone Star Democrat. What was interesting was the timing: “A review by The News of finance reports in that matchup indicates that nearly half Mr. Sharp’s trial lawyer support came in the final eight days of the campaign and was not reported until after the race. For example, a few days before the election, Mr. Sharp collected $250,000 from Houston trial lawyer John Eddie Williams and $150,000 apiece from lawyers Walter Umphrey of Beaumont and Harold Nix of Daingerfield. And he got $15,000 from Michael Gallagher of Houston.” Reports of trial lawyer backing can damage a candidate in Texas campaigns, but when the lawyers donate at the last minute the voters may be none the wiser as they troop to the polls (Wayne Slater, “Trial lawyers’ cash at issue”, Dallas Morning News, Jul. 13). (DURABLE LINK)

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