June 10-11 – New Orleans cleanup continues. “It was bad enough that New Orleans personal injury attorney Curtis Coney Jr. was illegally paying ‘runners’ to solicit accident victims, paying them $500 for each ambulance-chasing referral. When his secretary was subpoenaed to testify before a federal grand jury, Coney compounded his problems by urging her to lie about the payments, even though she was the one who usually doled them out. … In a plea agreement unveiled in federal court Wednesday, Coney, 58, pleaded guilty to 10 counts of ’structuring’ referral payments to hide them from the state and federal governments, one count of conspiracy and one count of obstruction of justice for pressuring [the secretary] to lie. As part of the deal, lead prosecutor Irene Gonzalez recommended a 33-month jail sentence for Coney.” The lawyer’s guilty plea is among the fruits of “a 4-year federal investigation of personal injury attorneys, a quietly unfolding case that has resulted in more than 20 convictions”. Targeted along with attorneys and “runners” are “medical providers who exaggerated or falsified injury claims in order to secure lucrative insurance settlements.” (Michael Perlstein, “Lawyer guilty in referral scheme”, New Orleans Times-Picayune, May 16). (DURABLE LINK)

June 10-11 – Bounty-hunting in New Jersey. The administration of Gov. Jim McGreevey has retained a flamboyant private plaintiff’s lawyer to pursue claims seeking to hold businesses legally liable for wastes left over from the state’s industrial past. Although Allen Kanner is initially donating his services for free, it is expected that he will take a contingency stake in some or many of the state’s financial recoveries. Also being hired is a politically well-connected law firm named Lynch Martin Kroll, associated with one of the state’s Democratic power brokers. Together, Kanner and the Lynch firm “are scouring state files for possible ‘natural resource damage’ claims. Such claims — little used in the state’s past — require polluters to go far beyond simple cleanups by making them pay the public for things such as lost fishing time, lost tap water, injured wildlife and soiled scenery.” (Alexander Lane, “State retains enviro-lawyer who gets polluters’ attention”, Newark Star-Ledger, May 11). More: PointOfLaw.com, Sept. 5, 2004. (DURABLE LINK)

June 10-11 – The Rule of Lawyers reviewed. In the June Commentary, Washington attorney and Findlaw columnist Barton Aronson contributes a very generous appraisal of our editor’s latest book. (DURABLE LINK)

June 9 – “Silver’s wreck”. Our editor has an op-ed piece in today’s New York Post on the impending demise of auto leasing in New York state, wrecked by the state’s archaic “vicarious liability” law whose chief defenders include the state trial lawyers’ association and Assembly Speaker Sheldon Silver (Walter Olson, New York Post, Jun. 9). Our earlier coverage of the issue is here. More: Sept. 5, 2004. (DURABLE LINK)

June 9 – “Families of teens killed in crash after rave sue U.S. government”. “Family members of five teens who died when their car careened off a cliff after an all-night rave party have filed a suit against the U.S. government for issuing the event’s permit. ‘If you knowingly allow use of your land for a drug party and people get killed, we allege you are partially responsible,’ said Andrew Spielberger, a West Hollywood-based attorney representing the families.” (AP/Sacramento Bee, Jun. 1). (DURABLE LINK)

June 9 – The intimidation tactics of Madison County. Four business groups held a press event in Madison County, Ill., last week to unveil the latest report depicting the county’s courts as a paradise for plaintiff’s lawyers (U.S. Chamber of Commerce, “The Rogue Courts of Madison County” (PDF)). What happened next? Local plaintiff’s attorney Bradley M. Lakin promptly slapped them with a subpoena demanding that their executives testify in a would-be class action case against Ford Motor on alleged paint defects. “Subpoenas are for witnesses who know something about the case,” said Victor E. Schwartz, general counsel of the American Tort Reform Association. “In this situation, ATRA knows nothing. It is clear the subpoena power is being used to squelch ATRA from speaking out about Madison County and its inequities as one of the leading ‘judicial hellholes’ in the United States.” Last year ATRA published a report entitled “Justice for Sale: The Judges of Madison County“. (”ATRA Says Subpoena Power Should Not Be Used To Squelch First Amendment Rights”, ATRA press release, Jun. 6; Illinois Civil Justice League, which was one of the subpoenaed groups along with ATRA and the national and Illinois Chambers of Commerce, has links). Updates Jul. 12: subpoenas dropped and Jul. 26: sanctions motions dropped.

And St. Louis Post-Dispatch columnist Bill McClellan turns the spotlight on a recent Madison County class action settlement involving Sears tires: “If you have a receipt showing you purchased an AccuBalance from a Sears auto center between 1989 and 1994 and are willing to take the time to request a claims form and fill it out and send it in, you could get $2.50 for each tire, up to a total of $10. Of course, who keeps receipts from 1989? You still might be eligible for $1.25 a tire, up to a total of $5. If Sears does not have a record of your purchase, you will be eligible only for a $3 Sears coupon. Of course, there will be forms to fill out under threat of perjury. Things are a little better for the lawyers who ‘represented’ you. The settlement says that their legal fees cannot exceed $2.45 million.” McClellan is bold to tackle this subject, since when he criticized lawyers from the same class-action firm in 1999 they came after him with a lawsuit, later dropped (see Nov. 4, 1999)(Bill McClellan, “Just like your tires, wheels of justice may be out of balance”, St. Louis Post-Dispatch, Jun. 4). (DURABLE LINK)

June 6-8 – New legal ethics weblog. David Giacalone, formerly of PrairieLaw, has started a new weblog, ethicalEsq?, specializing in “client-centered legal ethics”. He’s already posted on several issues of interest, including Common Good’s early-offers proposal (May 30 and Jun. 3), the case for requiring lawyers to disclose more fully to clients the circumstances of their representation (Jun. 3), and (citing this website) the still-unfolding battle in a New York courtroom over whether Judge Charles Ramos has authority to review and correct outrageous tobacco fees (May 31; on tobacco fees, see Daniel Wise, “Judge’s Power to Review $625M Tobacco Fee Award Challenged”, New York Law Journal, May 28). (DURABLE LINK)

June 6-8 – Claims consciousness in Utah. To promote a contemplated April Fool’s Day festival, Mayor Gerald R. Sherratt of Cedar City, Utah, published in local papers a tall tale about how wandering Vikings had left precious ancient artifacts in a local cave. Most residents seem to have gotten the joke, but various readers in the nearby town of St. George stepped forward to lay claim to the supposed treasure found in the cave, several of them saying “their ancestors had been part of the settlement and had owned some of the artifacts. …When Sherratt explained the whole story was made up to promote the festival, the St. George residents accused him and other officials of a cover-up.” (Paul Rolly and JoAnn Jacobsen-Wells, “Ad Flap Is Stranger Than Fiction”, Salt Lake Tribune, May 26). (DURABLE LINK)

June 6-8 – Hiker cuts off use of his name. Equipped to Survive, a wilderness gear site, recommended a pocket-sized emergency beacon by referring to a recent survival story that received worldwide publicity: “Your survival should not require you to amputate your own arm, as Aron Ralston was recently forced to do in order to escape being trapped by an 800-lb. boulder.” Before long the site’s proprietor received this cease and desist letter (PDF format) dated June 5 from Ralston’s lawyer demanding that the reference be removed as in violation of the hiker’s “right of publicity” under state statutes. There followed this rude reply from the website proprietor, inviting the lawyer to “stick your ridiculous cease and desist demand where the sun don’t shine”. Now cut that out, boys, there’s no reason we can’t be polite. (DURABLE LINK)

June 4-5 – Blaming murder on flat tire. A 19-year-old woman, having stopped to change a flat tire at the side of the road, is taken away and murdered by a local man. According to a lawyer for her family, the Ford Motor Co. and tiremaker Bridgestone/Firestone should be made to pay for the murder. A court dismissed the case against the two companies on grounds that they could not have found harm of this sort foreseeable enough to trigger a legal duty of care, but the family’s lawyer, Richard Rensch, is appealing to the Nebraska Supreme Court. (AP/KETV, Jun. 3; “Murder victim’s parents say flat set off tragic events”, Fremont (Neb.) Tribune, Jun. 3). (DURABLE LINK)

June 4-5 – Fox News “The Big Story”. Our editor was interviewed on screen for a piece that Fox News’s “The Big Story” is preparing on the search for deep pockets in litigation. It’s tentatively scheduled to run Wednesday, but these things are always subject to change. Update: it did run Wednesday, Jun. 4. (DURABLE LINK)

June 4-5 – Malpractice: juggling the stats. In the course of an otherwise standard feature package on the medical malpractice crisis (Daniel Eisenberg and Maggie Sieger, “The Doctor is Out”, Time, Jun. 9, and sidebars) Time gives credence to a newly issued report asserting that doctors’ malpractice premiums are actually rising fastest in states without damage caps (Jyoti Thottam, “A Chastened Insurer”, Jun. 1). Very curiously, the new report (from Weiss Ratings, “an independent insurance-rating agency in Palm Beach Gardens, Fla.”) is described as compiling figures for median premiums and payouts (the numbers compared with which half of the data points are higher and half lower) rather than averages, even though this is a field where the outliers (giant awards, unusually litigious specialties) drive the debate and the dollar figures. CalPundit (Jun. 2) spots this anomaly and opines: “this is so obviously the wrong statistic to use in this case that there must be some kind of axe to grind here” (via Jonathan Adler, NR Corner).

A table laying out the (very large) differences between malpractice premiums between Los Angeles (where doctors practice under California’s MICRA damages cap) and three litigious jurisdictions elsewhere in the country (Miami, Long Island, Detroit) indicates that MICRA confers its greatest benefit by far on the most litigation-prone specialties: for example, the average savings from MICRA for a neurosurgeon is $ 145,813 and for an ob/gyn $ 88,593, but it’s only $24,599 for an internist and $15,639 for a dermatologist (”2003 Malpractice Premium Comparison“, California Physician (California Medical Association)) (PDF format)(CMA’s MICRA Resource Center). For a more reliable reading of the crisis and its relation to damage caps and the insurance market, check out the report issued by the U.S. Department of Health and Human Services this spring (”Addressing the New Health Care Crisis: Reforming the Medical Litigation System to Improve the Quality of Health Care”, Mar. 3; Senate testimony by Deputy Secretary Claude A. Allen, Mar. 13).

How big an impact do the “outlier” cases have, the small number of gigantic verdicts that almost vanish from the calculation when per-case outlays are calculated as a median? Among recent examples are the $78.5-million verdict against an Orlando hospital for failing to figure out that a woman visiting its emergency room was suffering from a bizarre undiagnosed tumor; thought to be the largest medical malpractice award in Florida history, it has “become the symbol of juries run amok” in the view of critics of the system. (William R. Levesque, “Tremors still felt from whopping jury award”, St. Petersburg Times, Jun. 2). And in a result vocally criticized by appeals judges even as they felt obliged to uphold it, a Manhattan jury’s $40 million malpractice award against one of the city’s premier hospitals, New York-Presbyterian, has been blown up to $140 million by a law mandating that annual interest of 4 percent be added to awards “even if the jury has already adjusted the annual amount for inflation. Critics say that means a double adjustment for inflation in some cases, like this one.” (Richard Perez-Pena, “New York Hospitals Fearing Malpractice Crisis”, New York Times, Jun. 3). (DURABLE LINK)

June 4-5 – “Rape defendant asks $20,000; found fly in mashed potatoes”. “If convicted later this year of raping a 16-year-old girl, [Kenneth] Williams could be sentenced to 112 years to life in prison. It would be his third, and last, trip to state prison, authorities say.” What has upset Williams recently, however, is the insect impurity he says he found in his prison dinner. He “is seeking $20,000 to ease the ‘mental stress and anguish’ he said finding the fly inflicted upon him. ‘It’s been almost a month since this occurred,’ Williams wrote last week in the claim, ‘and I still only pick at my food …. I’m losing weight and am unable to eat properly.’” The sum demanded was fair, according to his complaint, since public venting of the allegations “would cost the county ‘a great deal more both financially and in bad publicity.’” (J. Harry Jones, San Diego Union-Tribune, Jun. 3). (DURABLE LINK)

June 3 – An important litigation skill. From Gail Diane Cox’s “Voir Dire” column in the National Law Journal, Nov. 4, 2002 (scroll down to “Jargon Watch”): “Blamestorming: Variant of brainstorming. Sitting around in a group discussing a mistake and how to make someone responsible for it, preferably a deep-pocket defendant. Synonym: Litigation initiation.” Maybe a session of this sort was responsible for the naming of Shell Oil as a defendant in the Rhode Island nightclub fire (see May 30-Jun. 1). (DURABLE LINK)

June 3 – “Resumé spam saddles employers”. It’s common these days for employers to receive hundreds, thousands or even milllions of resumés via email from hopeful job-seekers. Federal regulations on the books since the 1970s, however, require most larger companies to preserve records of all job applications, the most important reason being to furnish evidence in case they are someday investigated for possible discrimination. Under the strictest interpretation of the rules, companies with more than fifteen employees must keep on file any resumé sent to them — even if “the applicant misspells the company’s name, applies for a job not listed or is simply not qualified.” The result: a large and ever-growing paperwork/compliance burden on American business. (Bill Atkinson, “Resume spam saddles employers”, Baltimore Sun, May 22; Michelle Martinez, “Who Really Is An Applicant When Recruiting Online?”, PeopleClick.com, undated). See Shirleen Holt, “Résumé spam is tiring those hiring”, Seattle Times, Jan. 19; Katherine Harding, “The new scourge: Résumé spam”, GlobeTechnology.com (Globe & Mail, Canada), Jan. 8 (”Companies that advertise jobs on-line are finding their e-mail boxes crammed with irrelevant responses”, some from applicants who blast out responses to every job listed on a posting board). (DURABLE LINK)

June 2 – Updates. Further developments in cases we’ve covered:

* Citing its recent jurisprudence bringing constitutional due process limits to bear on punitive damages, the U.S. Supreme Court has instructed lower courts to reduce a $290 million award against Ford Motor in the Romo case; the case arose from a Bronco rollover in central California, and we’ve had quite a bit to say about it over the four years since it went to trial (see Oct. 24, 2002 and links from there) (David Kravets, “High Court Reduces Damages in Car Crash”, AP/Yahoo, May 19; Bob Egelko, “Key ruling on punitive damages”, San Francisco Chronicle, May 19);

* The Los Angeles Zoo has transferred Ruby, its female African elephant, to a Tennessee zoo notwithstanding a pending lawsuit (see May 16-18) complaining that the move would disrupt Ruby’s bond with her elephant “best friend”; an attorney who had gone to court seeking a temporary restraining order against splitting the two elephants complained that zoo authorities had acted “like thieves in the middle of the night”. (Carla Hall, “Despite Protests, L.A. Zoo Sends Elephant to Tennessee”, Los Angeles Times, May 27) (via SoCalLaw, May 27);

* The Supreme Court of Hawaii has reversed a jury’s award of $2 million to an auto service manager fired over what his employer considered credible charges of sexual harassment (see Mar. 10-12, 2000) (Gonsalves v. Nissan Motor Corp. in Hawaii, Ltd., Supreme Court of Hawaii, Nov. 27, 2002; see Jeffrey Harris, “Law Watch: Preventing Harassment Trumps Keeping Promises”, Hawaii Business, Feb. 20);

* In a humiliating defeat for backers of anti-gun litigation, a federal “advisory” jury in Brooklyn has refused to hold manufacturers liable for inner-city gun crime in the much-publicized case brought by the NAACP before judge Jack Weinstein. “The panel of 12 jurors issued a finding of no liability for 45 of the defendants and was unable to reach a verdict for the remaining 23 manufacturers or gun dealers”. (Mark Hamblett, “Federal Advisory Jury Declines to Find Gun Industry Liable”, New York Law Journal, May 15; Katherine Mangu-Ward, “No Smoking Gun”, WeeklyStandard.com, May 8). Update Jul. 20: judge dismisses lawsuit entirely. (DURABLE LINK)

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;