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Chrysler

I expressed skepticism this summer that the Exxon Shipping v. Baker decision was a positive sign for the Court’s punitive damages jurisprudence. After the replay of Philip Morris v. Williams and, now, the Court’s denial of certiorari in DaimlerChrysler v. Flax this week, I can say I was right.

As readers of Overlawyered know, the Tennessee Supreme Court reinstated $13.3 million of punitive damages over a good-faith dispute over a van’s seat back design (in an accident caused by a drunk driver), giving no credit to the fact that the design in question was safer than federal safety standards, or to Exxon Shipping’s suggestion that punitive damages greater than a 1:1 ratio were possibly constitutionally inappropriate where compensatory damages were substantial and the defendant’s actions were not intentional or done for profit. As I described the case back then:

In 2001, Louis Stockell, driving his pickup at 70 mph, twice the speed limit, rear-ended a Chrysler minivan. Physics being what they are, the front passenger seat in the van collapsed backwards and the passenger’s head struck and fatally injured 8-month old Joshua Flax. The rest of the family walked away from the horrific accident. Plaintiffs’ attorney Jim Butler argued that Chrysler, which already designed its seats above federal standards, should be punished for not making the seats stronger — never mind that a stronger and stiffer seat would result in more injuries from other kinds of crashes because it wouldn’t absorb any energy from the crash. (Rear-end collisions are responsible for only 3% of auto fatalities.) Apparently car companies are expected to anticipate which type of crash a particular vehicle will encounter, and design accordingly.

(h/t Cutting)

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As Michael Krauss notes, an AP story today rehashes the details of last week’s Flax v. Chrysler case, though it falsely treats Paul Sheridan as a credible witness and doesn’t acknowledge most of Chrysler’s arguments.

It’s worth noting the Jim Butler firm’s description of the case:

The evidence showed the impact was minor. Though Stockell was speeding at the time, the minivan was also moving forward and the change in velocity (Delta V) was only 17 to 20 mph.

To repeat: the plaintiffs’ attorney said that a Delta-V of 17-20 mph is “minor.” I suppose in the astronomical sense that a Delta-V of 17-20 mph wouldn’t escape earth orbit, but it seems fairly major for someone in a heavy minivan. For those of you at home who want to experience what a “minor” Delta-V collision of “only” 17-20 mph feels like, drive into a reinforced brick wall at 17-20 mph with your airbag turned off, but be sure to wear your seat-belt to reduce the chance that you go through your windshield. Another way you can have a Delta-V of 20 mph is if you are dropped about 12-15 feet onto a concrete surface. I sure hope that the trial judge didn’t let Butler lie about physics to the jury like that, but I fear I know the answer.

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Perhaps we spoke too soon when we commended the Tennessee appellate court for getting it partially right. As we stated in November 2004:

In 2001, Louis Stockell, driving his pickup at 70 mph, twice the speed limit, rear-ended a Chrysler minivan. Physics being what they are, the front passenger seat in the van collapsed backwards and the passenger’s head struck and fatally injured 8-month old Joshua Flax. The rest of the family walked away from the horrific accident. Plaintiffs’ attorney Jim Butler argued that Chrysler, which already designed its seats above federal standards, should be punished for not making the seats stronger — never mind that a stronger and stiffer seat would result in more injuries from other kinds of crashes because it wouldn’t absorb any energy from the crash. (Rear-end collisions are responsible for only 3% of auto fatalities.) Apparently car companies are expected to anticipate which type of crash a particular vehicle will encounter, and design accordingly. The $105M verdict includes $98M in punitives.

We had more details of trial shenanigans in December 2004 and noted the reduction of the punitives by the trial court to a still unreasonable $20 million in June 2005. In December 2006, the intermediate appellate court threw out the punitive damages and the negligent infliction of emotional distress claim, leaving a $5 million compensatory damages verdict to be split between Chrysler and the driver responsible for the accident. An injustice, but at least a smaller injustice.

However, today, a 3-2 vote of the Tennessee Supreme Court made it a larger injustice again, reinstating $13,367,345 of punitive damages over a good-faith dispute over appropriate seatback design, giving no credit to evidence that the design in the Caravan was safer than the plaintiffs’ proposed design, and effectively disregarding Tennessee statutory law that compliance with federal standards creates a presumption against punitive damages. The Court did not mention Exxon Shipping‘s suggestion that punitive damages greater than a 1:1 ratio were possibly constitutionally inappropriate where compensatory damages were substantial and the defendant’s actions were not intentional or done for profit. The Court unanimously affirmed the elimination of the NIED claim; one justice would have thrown out the compensatory damages, as well, because of the volume of inadmissible and improperly prejudicial evidence admitted. (Flax v. Daimler Chrysler (Tenn. Jul. 24, 2008); id. (Wade, J., concurring); id. (Clark, J., partially dissenting); id. (Koch, J., partially dissenting); E. Thomas Wood, “High court upholds $18.4M damage award in DaimlerChrysler case”, Nashville Post, Jul. 24; Kristin M. Hall, AP/Chicago Tribune, Jul. 24). The majority decision relied heavily on the expert testimony of Paul Sheridan, an MBA non-engineer and professional anti-Chrysler witness whom a federal court called “wholly unqualified” to testify on seat back design.

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A very belated update to our earlier posts of 2004 and 2005. As we stated in November 2004:

In 2001, Louis Stockell, driving his pickup at 70 mph, twice the speed limit, rear-ended a Chrysler minivan. Physics being what they are, the front passenger seat in the van collapsed backwards and the passenger’s head struck and fatally injured 8-month old Joshua Flax. The rest of the family walked away from the horrific accident. Plaintiffs’ attorney Jim Butler argued that Chrysler, which already designed its seats above federal standards, should be punished for not making the seats stronger — never mind that a stronger and stiffer seat would result in more injuries from other kinds of crashes because it wouldn’t absorb any energy from the crash. (Rear-end collisions are responsible for only 3% of auto fatalities.) Apparently car companies are expected to anticipate which type of crash a particular vehicle will encounter, and design accordingly. The $105M verdict includes $98M in punitives.

We had more details of trial shenanigans in December 2004 and noted the reduction of the punitives by the trial court to a still unreasonable $20 million in June 2005. And now the rest of the story:

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We covered this case in detail Nov. 24 and Dec. 21. The court reduced punitive damages from $98 million to $20 million, which means that the total injustice is $23.75 million instead of $101.75 million. The AP version of the story doesn’t even acknowledge the auto company’s defense. (Randy McClain, “Judge slashes damages against carmaker”, The Tennessean, Jun. 21; AP, Jun. 21).

Lawyers Weekly USA has more details about the trial, including the fact that the jury wasn’t allowed to hear that, with 7.1 million vehicles on the road, there were only three deaths from collapsing seatbacks. Moreover, the judge permitted plaintiffs to argue liability based on a post-sale duty to warn of (allegedly) improved technology, unprecedented in Tennessee and most other states: thus, according to plaintiffs, when Chrysler merged with Mercedes, Chrysler had a legal duty to inform every single one of its car owners of any safety features on Mercedes vehicles that weren’t on Chrysler vehicles (and, one would imagine, vice versa). How this would have prevented a pick-up truck from slamming into the rear of a minivan at twice the speed limit, one wonders, but too many judges have stopped requiring causation to be an element of a tort. (Reni Gertner, “Parents Of Baby Killed In Seatback Collapse Win $105.5M”, Lawyers Weekly USA, Jan. 2005).

DaimlerChrysler statement on the suit after the jump; it’s almost scandalous what the press accounts (Feb. 26)left out, but not as scandalous as the verdict. The unbelted Vickie Mohr was killed from blunt force trauma to the back of the head–caused when she was hit by the 245-pound unbelted passenger in the backseat. (The jury found that passenger, Carolyn Jones, responsible for only a small percentage.) Brett McAfee, the 17-year-old driver who killed the two plaintiffs when he fell asleep at the wheel going 45 mph, but was found slightly less than half-responsible by the civil jury, pleaded no contest to vehicular homicide criminal charges. (via Dodgeforum, which has an impressive array of photos of the totalled Durango Caravan).

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More press coverage on the $105 million collapsing seat verdict (Nov. 24). The Fulton County Daily Report spells out the plaintiff’s case, without much attempt at balance. A press release from the plaintiffs’ lawyers claims that Chrysler experts admitted that a “stronger” seat would not have collapsed and that other Chryslers have “stronger” seats–but leaves it ambiguous whether the first “stronger” is referring to something different than the second “stronger.” The artful phrasing in the release (instead of a straightforward statement about whether Chrysler’s experts admitted Joshua Flax would not have been hurt if he had been in a Mercedes), combined with the improbability that Chrysler would go to trial with such a fact pattern, suggests that this is sophistic equivocation. (R. Robin McDonald, “Partner Wins $105 Million Verdict Against Chrysler”, Fulton County Daily Report, Dec. 1; Butler Wooten press release, Nov. 23). The Detroit News has extensive followup coverage, featuring a photo of the totaled minivan from which five people walked away, and an interview with a NHTSA spokesman who notes that “If you merely increase seatback strength, you may be trading one set of injuries for another. These seats did exactly what they were designed to do.” (Jeff Plungis, “Trial puts spotlight on safety of car seats”, Dec. 19).

In the Detroit News article, Clarence Ditlow complains that there’s an increase in collapsing front seats hitting children in the rear seats–but that’s surely a result of fewer children being seated in the front, where they were in danger of passenger-side airbag injuries. (Airbag-child fatalities have declined from 60 in 1995 to 10 in 1999.) Indeed, as the Washington Post notes, notwithstanding their headline, child deaths per mile traveled is down, as is the long-run trend of total child deaths. The Post article also suggests areas where we will see future auto litigation as new safety features transition from optional to standard. I’ve worked defending an auto company in shift-interlock litigation, for example. (Greg Schneider, “Kids, at Risk and Neglected”, Washington Post, Dec. 5).

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Another example of how personal injury attorneys and the “Center for Auto Safety” actually care very little about auto safety: In 2001, Louis Stockell, driving his pickup at 70 mph, twice the speed limit, rear-ended a Chrysler minivan. Physics being what they are, the front passenger seat in the van collapsed backwards and the passenger’s head struck and fatally injured 8-month old Joshua Flax. The rest of the family walked away from the horrific accident. Plaintiffs’ attorney Jim Butler argued that Chrysler, which already designed its seats above federal standards, should be punished for not making the seats stronger — never mind that a stronger and stiffer seat would result in more injuries from other kinds of crashes because it wouldn’t absorb any energy from the crash. (Rear-end collisions are responsible for only 3% of auto fatalities.) Apparently car companies are expected to anticipate which type of crash a particular vehicle will encounter, and design accordingly. The $105M verdict includes $98M in punitives, a number that will almost certainly be reduced, but the entire verdict is inappropriate. “It is unfairly punishing DaimlerChrysler for a reasonable engineering decision that resulted in a product that met all federal standards,” DaimlerChrysler spokesman Jason Vines said. (Rob Johnson, “Jury awards $105.5 M in baby’s death”, The Tennesseean, Nov. 24; Matt Gouras, AP, Nov. 24; “DaimlerChrysler Is Told to Pay $98 Mln in Van Crash”, Bloomberg, Nov. 23; Sheila Burke, “Chrysler being sued over baby’s van death”, The Tennesseean, Nov. 4). More coverage: Dec. 21.

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October 31 – Foster care abuses: taxpayers to owe billions? Injury lawyers plan a major push to develop damage lawsuits against government on behalf of children harmed under foster care, the New York Times reports. Florida tobacco-fee magnate Robert Montgomery (see Apr. 12) and other movers and shakers are encouraged by “court rulings that make government agencies easier to sue and sizable jury awards in foster care cases”. A lawyer with the National Center for Youth Law, part of the network of legal services groups that philanthropic foundations, organized lawyerdom, and taxpayers have all had occasion to support generously over the years, is cited saying that “groups like his had become more open to alliances with personal injury lawyers”. Suits often allege that different placement choices or more vigorous intervention by social workers might have prevented beatings, neglect or molestation of youngsters in foster care. States fear taking the cases to trial: “They’re very difficult cases to defend in front of juries because juries often have the benefit of 20-20 hindsight,” says a lawyer for the state of Washington, where “government payouts in civil cases in general have quadrupled in six years”. “Some officials, including Kathleen A. Kearney, the secretary of the Florida Department of Children and Families, say such litigation unfairly detracts from continuing efforts to improve child welfare, diverting resources that legislatures, not courts, should control.” (Nina Bernstein, “Foster-Child Advocates Gain Allies in Injury Lawyers”, New York Times, Oct. 27) (reg). See also Aug. 23-24 (billions demanded in lawsuits over Canadian residential schools).

October 31 – Tales from the tow zone. “A Dallas-area jury has ordered Chrysler Corp. and a local dealership to pay $83.5 million to a Texas couple who charged that the defendants misled them on the towing capacity of the Dodge Ram pickup truck they bought.” The couple did not suffer physical injury from the towing-force deficit, but argued that because the vehicle turned out not to be strong enough to pull horse trailers, they lost their equine transport business and the husband subsequently suffered depression. Nearly all of the award, $82.5 million, was in punitive damages; Texas’s limits on that category of damages, much deplored by trial lawyers, make it likely that the actual payout to the couple will not exceed $2.4 million, assuming they prevail in Chrysler’s planned appeal. (Margaret Cronin Fisk, “Jury Tags Chrysler for $83 Million”, National Law Journal, Oct. 5).

October 31 – Fat tax proposed in New Zealand. The proposal, floated by public health activists down under in the country’s Medical Journal, got a cool reception from the Kiwi health minister as well as from people in the farming and meat businesses. The idea was hailed as worth considering, however, by a medical adviser to the country’s Heart Foundation. It would apply a saturated-fat tax to such food items as butter, cheese, meat and milk, the “full-cream” variety in particular (Al Gore isn’t the only one campaigning against the “top one percent”). (Martin Johnston, “Fat-tax plan to reduce disease”, New Zealand Herald, Oct. 30).

October 30 – Netscape “Best of ‘What’s Cool'”. Last month Overlawyered.com was one of the picks on Netscape’s popular “Cool Sitings of the Day”, and this weekend we were featured in its “Best of ‘What’s Cool'”, with another flood of newcomers resulting.

October 30 – Ohio high court races. Buckeye State voters next week will decide on the hotly contested re-election bid of Democratic state supreme court justice Alice Robie Resnick, a key member of the court’s 4-3 liberal majority; also seeking re-election is Republican Deborah Cook, who has voted on the opposite side from Resnick in several controversial cases. Bone of contention number one is last year’s decision in which Resnick and three other justices relied on a strained reading of the state constitution to strike down the liability reforms passed by that state’s legislature (see Aug. 17 and Aug. 18, 1999), a move highly welcome to the Ohio Academy of Trial Lawyers, which has supported Resnick’s re-election. Also at issue are a series of other Ohio Supreme Court decisions that have outraged the state’s business community, including a line of cases holding that commercial auto insurance policies by which companies cover their employees’ work-related driving can be made to pay for accidents suffered by the employees and their families in their own cars on their own time. (Scott-Pontzer v. Liberty Mutual (Ohio PIA); Charles T. McConville, “The Ohio Supreme Court, Your Business and Its Insurance”, Ohio Matters (Ohio Chamber of Commerce), Nov./Dec. ’99; Ohio Chamber of Commerce Court 2000 page). In some ways the hard-fought Ohio contest is the mirror image of the one in Michigan, where trial lawyers and labor unions have mounted a major effort to knock off conservative justices Clifford Taylor, Robert Young and Stephen Markman in next week’s vote (see Aug. 25-27, May 9, Jan. 31).

MORE: editorials, Cincinnati Post, Sept. 30, and Cleveland Plain Dealer, Oct. 29; Spencer Hunt, “Business, GOP work to boot Resnick”, Cincinnati Enquirer, June 25; William Glaberson, “A Spirited Campaign for Ohio Court Puts Judges on New Terrain”, New York Times, July 7 (reg); websites of Justice Alice Robie Resnick (incumbent) and challenger Terrence O’Donnell, Justice Deborah Cook (incumbent) and challenger Tim Black. The Ohio Chamber of Commerce has come under fire for supporting a group that has run hardball advertising against Resnick: Lee Leonard, “Sideswiping political ads ought to be ruled out of bounds”, Columbus Dispatch, Oct. 23; Randy Ludlow, “Resnick attack is ugly”, Cincinnati Post, Oct. 21 (DURABLE LINK).

October 30 – Cornfield maze as zoning violation. Zoning authorities in Snydersville, Pa. have sent a violation notice to father and son farmers Jake and Stuart Klingel. Their offense? Carving a maze through their cornfield and opening it to the public. (“Going in Circles?”, AP/Fox News, Oct. 6).

October 30 – $20 million for insolvency trustee? “Former Securities & Exchange Commission chairman Richard Breeden, 50, could make more than $20 million as the court-appointed trustee of Syracuse’s fraudulent, failed Bennett Funding Group. While a judge has the final say, Breeden could get a statutory 3% of what he recovers for creditors, less $642,000 in annual salary and expenses, and less a one-time $250,000 bonus. To investors facing an 82% haircut, he snaps, ‘I’m worth every penny of it.'” (Dorothy Pomerantz, “The Informer: Make That Breeden Funding”, Forbes, Sept. 4).

October 27-29 – “Lawyer take all”. Just as lawyers used to be barred from taking contingency stakes in their clients’ lawsuits lest they be tempted to push overly aggressive positions on their behalf, so they used to be discouraged from taking equity stakes in businesses they advised, lest they be tempted to assist in regulatory evasion or sharp financial practices. “In time, the dollar signs got bigger than the ethical misgivings.” Now, following major windfalls obtained by California tech lawyers who took holdings in clients’ stock, big law firms on the East Coast are rushing to emulate the practice. (Chana Schoenberger, Forbes, Oct. 16).

October 27-29 –“Yankees Must Step Up to Plate in Civil Rights Action”. A judge has ordered to trial a case filed against the New York Yankees by a black woman who says she was told she could not enter the stadium restaurant wearing only a tank top, although once inside she noticed white women dressed in that manner. “The club’s dress code, which is printed outside the entrance to the club and on the back of the admission pass, prohibits the wearing of ‘tank tops . . . thongs or any other abbreviated attire.'” Lawyers for the Yankees said the plaintiff, V. Whitney Joseph, was let into the restaurant after she went back to her car and put on a t-shirt, and said the brief inconvenience should not be enough to support a federal lawsuit, but a judge said Joseph should be allowed to reach a jury with her claim that the dress code had been inconsistently applied. (Michael A. Riccardi, New York Law Journal, Oct. 20).

October 27-29 – Judge rules against Tattered Cover. Fears about free expression notwithstanding, a Denver judge has ruled that the city’s famed Tattered Cover book store can be forced to turn over customer purchase records to narcotics police seeking to identify the owner of two books on drug manufacturing found at the scene of an illegal methamphetamine laboratory (see April 28). (Susan Greene, “Judge: Cops can seize bookstore records”, Denver Post, Oct. 21).

October 27-29 – Patients’ Bill of Wrongs. “The ground is thus set for an uneasy alliance between the physicians who staff HMOs and MCOs and health care consumer organizations. Both, for different reasons, would like to neuter the managed care organizations by removing from their management teams the power to control physician practice. Yet by so doing, they do more than remove excessive intervention. They necessarily compromise, perhaps fatally, the critical cost containment functions that these organizations must supply if they are to survive at all. . . . In the short run, physicians will love the creation of a system that promises a restoration of their autonomy and insulates them from the costs of their mistakes after they settle their case out cheaply. . . . But in truth a rather different agenda is at work here, which becomes evident from looking at the one exclusion to the proposed Patients Bill of Rights. It seems not to apply to the United States Government in its role as the provider of health care services through Medicare or Medicaid. The proposals therefore are designed to cripple the private programs which compete in the political arena with government-supplied health care.” (Richard Epstein (University of Chicago Law School), “Managed Care Liability”, Manhattan Institute Civil Justice Memo #39, Sept.)

October 26 – Lab mice paperwork. “In a couple of years, medical progress could come to a screeching halt when it slams up against new regulations to be written by the Agriculture Department. The regs will extend the Animal Welfare Act to the millions of mice, rats, and birds used in lab experiments. When that happens, researchers will have to file papers for each individual critter. By the time they get through with the paperwork they might have just enough time to turn out the lights before going home.

“This all results from a settlement the Department made with the Alternatives Research and Development Foundation (an arm of the Anti-Vivisection Society) and Kristine Gausz, a psychology student at (really) Beaver College. Ms. Gausz said in an affidavit that the sight of rats being ‘subject to deplorable living conditions’ was ‘an assault on her senses’ that left her ‘personally, aesthetically, emotionally, and profoundly disturbed.’… Perhaps the next thing medical researchers should try to find is a cure for the common lawsuit.” (“Leash lawsuit” (editorial), Richmond Times-Dispatch, Oct. 23).

October 26 – Drunk-driving standards nationalized. Dealing a blow to principles of local control as well as rural hospitality, the federal government will arm-twist all states into adopting 0.08 blood alcohol standards by 2004 under legislation just signed by President Clinton as part of a transportation bill. “The .08 percent limit is clearly only a way station on the road to making life miserable for social drinkers. MADD’s [Mothers Against Drunk Driving's] Web site now calls for lowering the BAC limit to .05 percent,” writes Providence Journal columnist Froma Harrop (“Phonies for .08 – Harassment of social drinkers”, Oct. 8; “Clinton signs bill to lower drunken driving standards”, AP/Dallas Morning News, Oct. 23).

October 26 – New unfairness for old. Don’t assume voters or politicians are anti-gay just because they harbor doubts about setting up sexual orientation as a new category in job bias law, as would happen under the proposed Employment Non-Discrimination Act (ENDA). “Why does the term ‘special rights’ have such political potency? Because by now most people have had personal experience with the way employment discrimination laws operate. Members of protected classes are not equal, they’re super-equal, enjoying extra job security and other job-related privileges not afforded the average worker.” Quotes our editor (Robyn Blumner, “Laws Aimed at Correcting Discrimination Have Created New Types of Unfairness”, Tribune Media/Salt Lake Tribune, Oct. 20). See also Nigel Ashford, “Equal Rights, Not Gay Rights“, reprinted at Independent Gay Forum.

October 25 – “Power lawyers may sue for reparations”. More details about the plans of Willie Gary and other lawyers to file lawsuits demanding trillions of dollars in black reparations (see Letters, Oct. 19). Planned are “a series of suits against the U.S. government, states, corporations and individuals who continue to benefit from slavery’s aftermath.” Participants “met last month in Washington at Transafrica, a lobbying group that monitors U.S. policy in Africa and the Caribbean, and plan to continue meeting monthly until a strategy is formed.” Participants include Richard Scruggs, Johnnie Cochran, Jr., Harvard Law’s Charles Ogletree, author Randall Robinson, “Alexander Pires of Washington, who won a $1 billion settlement for black farmers in a discrimination case against the U.S. Department of Agriculture; … and Dennis Sweet of Jackson, Miss., who won a $400 million settlement in the fen-phen diet drug case last year.” Sweet “also plans to sue history book publishers that give blacks short shrift,” which suggests that he himself may give the First Amendment short shrift. “We are a nation of litigators. That’s what we do. We go to court,” said Harper’s editor Jack Hitt. (Amy Martinez, Palm Beach Post, Oct. 23).

October 25 – “Laptop lawsuit: Toshiba, feds settle”. Piling on the $1 billion-plus class action settlement, the U.S. government is now extracting money from Toshiba over its flawed laptops. Still in very short supply: evidence that the glitch caused data loss in any real-world situations (Reuters/ZDNet, Oct. 13, with reader discussion).

October 25 – South Carolina tobacco fees: how to farm money. Lawyers who represented the state of South Carolina in the Medicaid-recoupment litigation will get a whopping $82.5 million; it wasn’t easy to argue that the mostly pro-tobacco Palmetto State had been instrumental in nailing the cigarette industry, but the lawyers found a golden rationale for large fees in their having been assigned to speak up for the interests of tobacco farmers like those in South Carolina. Since lawyers representing late-to-sue North Carolina, Kentucky and Tennessee (see May 2) are also reportedly making the we-represented-farmers argument in their own fee quest, the tobacco caper may go down in history as the most richly compensated instance ever of farmer “representation” — with no need for any control of the attorneys by actual farmers, of course. The secretive arbitration panel voted along its now-familiar two-to-one lines, with dissenter Charles Renfrew charging that the award was a windfall and “grossly excessive”, but as usual being outvoted by the other two panel members. (“Panel says $82.5 million lawyers’ fees are fair”, AP/CNN.com, Oct. 24).

October 24 — Turn of the screw. Revealing article in Philadelphia Inquirer magazine tells the story in detail of how lawyers whipped up mass litigation against companies that make screws used for bone-setting in spinal and other orthopedic surgery, alleging that the devices caused all manner of dreadful injuries. As so often the mass client recruiting got under way in earnest after a scary and misleading report on network TV, this time on ABC’s “20/20″, attacked the product as unsafe. Since most orthopedic surgeons continued to favor the screws’ use, lawyers turned for assistance to a Texas dermatologist who had gone to prison and lost his medical license in the 1980s for illegal distribution of prescription drugs, and who after release had set up shop as a go-between for lawyers who needed medical experts. After this physician “attended an organizational meeting with plaintiffs’ lawyers in Philadelphia, about 20 lawyers with bone screw cases enlisted his services,” and he proceeded to locate for them a Florida orthopedic surgeon who then cranked out about 550 opinions for the lawyers’ use — without actually examining the patients on whose behalf they were suing. “Invariably, [he] concluded, with scant explanation, that bone screws caused injury.” Eventually, Judge Louis Bechtle barred all 550 of the Florida doctor’s reports after one of the doctor’s employees testified that she’d been ordered to destroy tapes of telephone calls in which the Texas dermatologist/expert recruiter had dictated the language of the medical reports he expected the doctor to submit.

According to other sworn depositions, plaintiffs who rejected lawyers’ entreaties to sue were surprised to learn that cases had been filed in their names anyway; this happened, for example, to patients from California, Pennsylvania and Minnesota who did not blame the screws for their health problems. “There were no consequences for the lawyers who filed those suits.” Most of the story is told through the eyes of the best-known defendant in the cases, a company named Sofamor Danek, which chose to fight rather than pay; eventually it enjoyed outstanding success in repelling the suits, losing only one of 3,200 cases it faced, that one currently on appeal. But its vindication has come at a steep cost: $75 million in legal expenses, and who knows what unquantifiable costs. No wonder one of its competitors, AcroMed, gave up and agreed to pay $100 million to resolve 5,000 of the actions. (L. Stuart Ditzen, “The bone screw files”, Inquirer magazine (Philadelphia Inquirer), Aug. 27; David F. Fardon, M.D., “President’s Message”, North American Spine Society, Jan. 1997; “Third Circuit Denies Request for Mandamus Relief in Pedicle Screw Suits”, NASS, Jan. 1998).

MORE: The Health Research Group of Ralph Nader’s Public Citizen established a clearinghouse for plaintiff’s lawyers suing screw manufacturers, among other clearinghouses it runs for plaintiff’s lawyers, and whose goals include that of “generat[ing] media attention for the pertinent issue”. Among support groups for those who believe themselves victimized by the devices is Pedicle Screw’d. The North American Spine Society, a professional organization, was named as a defendant in many lawsuits because of its educational seminars on the use of screws, which lawyers charged were really a conspiracy to promote the devices.

October 24 – Monitor vote fraud, get sued for “intimidation”. Although ballot box irregularities, 109-percent precinct turnouts and other indicators of vote fraud continue as a very definite problem around the country, “anyone who combats vote fraud comes in for abuse. The Justice Department has become expert at raising cries of ‘voter intimidation’ at any attempt to monitor polling places. Last week Justice dispatched investigators to Fort Worth, Texas, merely because a political activist there distributed leaflets alleging Democrats were casting absentee ballots on behalf of shut-in voters. When the Miami Herald won a Pulitzer Prize for its reporting on the fraud in that city’s mayoral election, the Pulitzer jury noted it had been subject to ‘a public campaign accusing the paper of ethnic bias and attempted intimidation.’ Local officials who’ve tried to purge voter rolls of felons and noncitizens have been hit with nuisance lawsuits alleging civil-rights abuse.” (John Fund, “Political Diary: Phantom Voters”, Opinion Journal (WSJ), Oct. 23).

October 23 – Election roundup. “If you’re a swing voter, vacillating between Bush and Gore, here’s one compelling reason to vote for the former: tort reform,” writes New York Press editor Russ Smith in his “Mugger” column. He cites the recent hot-pickle case (see Oct. 10) and says the “simple solution” is loser-pays (“Gore’s Next Move?”, Oct. 16 (see item #2). “If trial lawyers had a dashboard saint, it would be Ralph Nader“, but this time around they’re not giving him money, lest they take votes away from their favorite: despite Gore’s selection of a running mate with strong legal reform credentials, “trial lawyers are so anxious to see the vice president elected, I doubt very seriously if [Lieberman] will make one bit of difference,” says ATLA president Fred Baron. (Bob Van Voris, “The Politics of the Practical”, Corporate Counsel/Law.com, Oct. 19). Governor Bush’s proposal to protect educators against needless lawsuits wins applause from New York Post columnist Arnold Ahlert (“Dubya Stood Up To Parents, Too”, Oct. 20). If Vice President Gore in his current demagoguish attack-mode were handed a big bill for his child’s orthodontia, he might start railing against “Big Dentistry”: “In the end, Gore’s cartoonish view of big business does a disservice both to him and to the American people. He knows life is more complicated than he’s letting on,” write Steven Syre and Charles Stein of the Boston Globe (“Gore proves big on bashing big business”, Sept. 28). And in West Virginia, where asbestos trial lawyer Jim Humphreys had previously been thought a prohibitive favorite for a U.S. House seat after spending an eye-popping $5 million on his campaign, Republican candidate Shelley Moore Capito, daughter of a former governor, is putting up a surprisingly strong race and might pull off an upset in what’s shaping up as an unusually strong year for the GOP in the mountain state (Matthew Rees, “Will West Virginia Go Republican?”, Weekly Standard, Oct. 23, not online).

October 23 – Wheelchair marathon suit. After getting sued last year, the New York Road Runners Club, which organizes the New York City Marathon, agreed to establish a separate division of the race for entrants in wheelchairs, and award trophies to the winners. That wasn’t enough to keep it from being sued again, this time by six disabled entrants who complained that the club violated the Americans With Disabilities Act “by moving the marathon start time for 60 disabled people not in wheelchairs from 8 a.m. to 8:40 a.m.”, a less convenient time for some entrants since it might require them to finish after dark. The man coordinating the wheelchair side of the 26.5 mile event, which will be held November 5, called the new lawsuit “unbelievable” and “truly frivolous.” (“Lawyer Criticizes ‘Disabled’ Suit”, AP/FindLaw, Oct. 19).

October 23 – No breast cancer link. A major federal study recently helped lay to final rest fears of an association between silicone breast implants and breast cancer, yet the federal agency in charge seems to have gone out of its way not to publicize the reassuring results. (Denise Dowling, “Covering up the breast”, Salon.com, Oct. 9). See also Nov. 29; Stuart Bondurant et al, “Safety of Silicone Breast Implants”, Institute of Medicine, 1999; “Off the Lawyers’ Reservation” (profile of Kathleen Anneken), The American Enterprise, Sept./Oct. 1998).

October 20-22 – Product liability criminalized? Green presidential candidate Ralph Nader has called for criminal prosecutions in the Firestone case, where failed tires have been blamed for more than 100 highway deaths. “A Harvard-Brookings Institution study estimates that the downsizing of vehicles caused by fuel economy standards results annually in 2,200 to 3,900 deaths,” notes a Detroit News editorial. “Consumer advocates like Mr. Nader support these fuel efficiency standards and want them increased, which could kill more people. The question becomes: Should certain consumer advocates be accused of criminal neglect?” (“How Many Deaths Are Truly Criminal?”, Detroit News, Oct. 14). Cartoonist Henry Payne, of the same paper, has a similar take on the matter of federal mandating of airbags, which turned out to harm numerous children: Oct. 12 (via Junk Science).

The U.S. Congress has rushed to act before its adjournment on a new federal law criminalizing some product safety matters, but the Federalist Society Criminal Law & Procedure Group earlier this month sponsored a discussion on Capitol Hill which took a dim view of the idea. “Most criminal statutes punish only where there is evidence beyond a reasonable doubt that a prohibited act was performed with mens rea, the guilty mind. … the proposed legislation is broad in its importation into penal law of the state of mind and knowledge standards of civil products liability law,” argued George Terwilliger (White & Case). Michael Krauss (George Mason U.) pointed out that the increased use of criminal charges in aviation accidents is now seriously hampering investigations after crashes given participants’ reluctance to cooperate and right to invoke the Fifth Amendment against having to testify in cases of criminal (as opposed to civil) jeopardy (see Sept. 6). Legislation to stiffen criminal penalties in product cases has passed both Houses this month, though its terms do not go as far as some of the earlier proposals. (“U.S. House Passes Tire Legislation”, Reuters/FindLaw, Oct. 11). See also Bob Van Voris, “Tire Deaths: Criminal Acts?”, National Law Journal, Sept. 11.

October 20-22 – CueCat’s legal claws. The CueCat is a new little gadget that works on the principle of a personal barcode scanner; its maker has sent it out free to subscribers of Forbes and Wired, Radio Shack catalogue customers, and others, for the purpose of making advertising more interactive (you scan a barcode on the ad, and a related webpage comes up in your browser). Realizing that a working personal barcode scanner would have many uses other than ad-linking, Linux programmers promptly reverse engineered the device and published code which makes the CueCat usable for other scanning tasks, such as keeping inventories. CueCat’s maker, a company called Digital Convergence, objects to the reverse engineering and has also made legal rumblings hinting that in its view ordinary consumers may not have a right to use the device for purposes other than the intended one — even though the general rule is that if someone sends you an item through the mails for free, you’re at liberty to use it as you wish. (Neil McAllister, “The Clause of the CueCat Legal Language Could Shut Down Hardware Tinkerers”, SFGate, Oct. 11).

October 20-22 – Sweepstakes, for sure. Last month class action lawyers extracted a $33 million settlement from American Family Publishers, plus $8 million in legal fees, over allegedly deceptive practices in its magazine-selling sweepstakes. “Refunds will be distributed among the more than 143,000 people who filed claims. The refunds will be allocated in proportion to the claimants’ purchases in excess of $40 per year or ‘their total purchases influenced by the belief that a purchase was either necessary to win or enhanced their chances of winning,'” though it is not explained how it will be possible to verify claimants’ self-reports of having been influenced by such beliefs. Among the plaintiff’s-side law firms expected to split the fees are the Belleville, Ill. firm of Steven Katz (see Nov. 4, 1999) and San Francisco’s Lieff, Cabraser. Time Inc., a defendant in the action and the owner of sweepstakes firm Magazine Associates, will be footing the bill; American Family Enterprises is in Chapter 11 bankruptcy. (Mary P. Gallagher, “Sweepstakes Class Action Settles for $33M, and $8M in Legal Fees”, New Jersey Law Journal, Sept. 19).

October 20-22 – ABA as liberal lobby. Boston Globe columnist Jennifer Braceras says it’s past time to end the American Bar Association’s gatekeeper status in accrediting law schools: “the ABA is not a trade association dedicated to preserving the integrity of the legal profession [but] a political lobbying group that represents the interests of a small, but powerful, liberal elite.” (“Call the ABA what it is: a liberal lobbying group”, Oct. 19).


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).

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