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Cyrus Dugger

…we debunked a debunking of Bodine v. Enterprise High School, the most famous burglar that fell through the skylight lawsuit. (The promulgator of the original fake debunking promised a comprehensive response “in the next week”, though, 26 weeks later, we haven’t seen it.)

Now, Hawaii is considering legislation similar to California’s that would give immunity to property-owners sued by people injured in the course of committing particular felonies, though it’s not clear to me that it would apply to unarmed burglary, which seems to only be a “Class C” felony in Hawaii.

Recently, I left a comment on the Bizarro-Overlawyered website commenting on the Milberg Weiss Fellow’s appallingly dishonest misrepresentation of a Walter Olson column, reprinted on two or three other left-wing websites and still not retracted, though Milberg Weiss Fellow Cyrus Dugger has had time to write over a dozen other posts since then. The comment has not been posted.

Fair enough: it’s their website, and they’re entitled to slant their comments section so that critical comments are not posted, and I could use all the disincentives I can get not to waste time in comments sections of other blogs. But I find it quite amusing that this policy is engaged in by a website that (1) threw a veritable tantrum because we stopped posting obsolete trackbacks and accused us of censorship because we wouldn’t let Justinian Lane monopolize the comments section with off-topic comments and (2) cares more about hypocrisy than actual wrongdoing.

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New York City police officer Cesar Borja died tragically young of lung disease last month. Advocacy groups (including a website that regularly accuses tort reformers of using oversimplified “pop” anecdotes) and Senator Clinton pushed his story to the media to promote a multi-billion-dollar taxpayer giveaway program (that, not incidentally, would provide contingent fees for attorneys) by claiming that Borja was sickened as a hero working “fourteen-hour days in the smoldering pit”, and was killed by alleged government lies about the safety of the air (though the government did call for respirators that they admitted Borja didn’t wear) and the media bought it in front-page tabloid stories. (That same website has been promising since it started to link “Ground Zero workers’ challenges to a larger critique of the tort reform movement”, but has yet to formally justify that non sequitur.)

Except more facts are coming to light about Borja, and as the New York Times reports, “very few of the most dramatic aspects of Officer Borja’s powerful story appear to be fully accurate”:

  • On September 11, Borja reported for duty… at the tow pound in Queens where he spent most of his career.
  • Borja did not work near the site until December 24, 2001, “after substantial parts of the site had been cleared and the fire in the remaining pile had been declared out.”
  • Borja thus never worked in the smoldering pit.
  • Borja never worked a 14-hour shift; rather, he worked a few shifts for a total of 17 days directing traffic to add to his overtime pay, most of which were in March and April 2002, and all blocks away from Ground Zero.
  • Borja smoked a pack a day until the mid-1990s.

Of course, evidence may yet arise linking Borja’s death to his work near the site. The New York Police Department and doctors, however, have yet to do so. (Sewell Chan and Al Baker, “Weeks After a Death, Twists in Some 9/11 Details”, New York Times, Feb. 13). About 50,000 Americans are diagnosed with pulmonary fibrosis each year; the fatal disease has no cure.

Update: David Nieporent has an amusing comment about Bizarro-Overlawyered’s shameless reaction to the revelation.

The post David responds to makes the mistake of making clear its political motivations for exaggerating health hazards from Ground Zero cleanup: a partisan smear of possible Republican presidential nominee Rudy Giuliani.

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October 27 roundup

by Ted Frank on October 27, 2006

  • Bill Moyers calls his lawyers. [Adler @ Volokh]
  • Jim Copland: 9/11 suits against New York City over emergency recovery work “simply wrong.” [New York Post]
  • Did the PSLRA help shareholders? [Point of Law]
  • 32-year-old Oregon grocery store employee sues, claiming that Green Day stole his never-recorded high-school writings. [Above the Law]
  • Does one assume the risk of a broken nose if one agrees to a sparring match at a karate school? [TortsProf]
  • “At KFC (né Kentucky Fried Chicken), the chicken is still fried. At Altria (né Philip Morris), the cigarettes still cause cancer. And at the American Association for Justice, some will say that the trial lawyers are still chasing ambulances.” [New York Times via Point of Law]
  • More on global warming lawsuits. [Point of Law]
  • Dahlia Lithwick, wrong again when bashing conservatives? Quelle surprise! [Ponnuru @ Bench Memos; see also Kaus] Earlier: POL Oct. 6 and links therein. Best commentary on New Jersey gay marriage decision is at Volokh.
  • Michael Dimino asks for examples of frivolous lawsuits. What’s the over-under until it turns into a debate over the McDonald’s coffee case? [Prawfsblawg]
  • Unintended consequences of campaign finance reform. [Zywicki @ Volokh; Washington Times]
  • Who’s your least favorite Supreme Court justice? [Above the Law]
  • More on Borat and the law. [Slate] Earlier on OL: Dec. 9 and links therein.
  • “Thrilled Juror Feels Like Murder Trial Being Put On Just For Her.” [Onion]
  • A revealing post by the Milberg Weiss Fellow at DMI: companies make “too much” profit. I respond: “Again, if you really think the problem is that insurance companies charge ‘too much’ and make ‘too much’ money, then the profitable solution is to take advantage of this opportunity and open a competing insurance company that charges less instead of whining about it. (Or, you could use a fraction of the profits to hire a dozen bloggers and thus solve the problem at the same time keeping the whining constant.)” [Dugger]

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Businesses “More Likely to Sue Frivolously” trumpets Bizarro-Overlawyered and Greedy Trial Lawyer, quoting a Public Citizen report. Except not even the Public Citizen report supports this claim, and no mathematically-literate person reading the report could think so.

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Bizarro-Overlawyered is upset about the fact that a legislator, over twenty years ago, mentioned a lawsuit involving “a burglar [that] fell through a skylight and injured himself only to recover thousands of dollars from the owner of the skylight,” and points to this MS Word account of the case of Bodine v. Enterprise High School to debunk the tale. Those dastardly reformers, misrepresenting the facts once again! (Of course, there are several thousand posts on Overlawyered over the last seven years, and not a one before today mentions this case, so it’s hardly central to the reform movement. It doesn’t appear on the ATRA website, either. But why split hairs when there’s a chance to demonize reformers?)

Except if one actually goes to the document, buried within a lot of rhetoric criticizing reformers for mentioning the Bodine lawsuit, we learn: Ricky Bodine was a 19-year-old high-school graduate who, with three other friends (one of whom had a criminal record), decided the night of March 1, 1982, to steal a floodlight from the roof of the Enterprise High School gymnasium. Ricky climbed the roof, removed the floodlight, lowered it to the ground to his friends, and, as he was walking across the roof (perhaps to steal a second floodlight), he fell through the skylight. Bodine suffered terrible injuries to be sure, though one questions the relevance: if the school is legally responsible for burglars’ safety, it doesn’t matter whether Bodine stubbed a toe or, as actually happened, became a spastic quadriplegic. But I fail to see what it is that reformers are supposedly misrepresenting. A burglar fell through a skylight, and sued the owner of the skylight for his injuries. Bodine sued for $8 million (in 1984 dollars, about $16 million today) and settled for the nuisance sum of $260,000 plus $1200/month for life, about the equivalent of a million dollars in conservatively-estimated 2006 present value.

In other words, a burglar fell through a skylight, and blamed the skylight’s owners for his injuries; because the law permits such suits, and because the law does not compensate defendants for successful defenses, Bodine had the ability to extort hundreds of thousands of dollars from taxpayers for injuries suffered in the course of his own criminal behavior. Bodine’s only hope of recovery is the law’s rejection of proximate cause as prerequisite to liability. Assemblyman Alister McAlister, the Democratic legislator who used the story to push for reform, described the facts correctly. McAllister didn’t mention that Bodine was 19, but so what? He didn’t mention that Bodine was 6’1″ and a waiter, either, and all three facts are irrelevant. Lilliedoll accuses McAlister of falsely claiming that the legal theory was “failure to warn,” but that’s hardly an inaccurate description of a duty-to-trespassers theory: the alleged duty could have been fulfilled by posting visible warnings to trespassers of the dangers of traversing the roof.

Were the skylights safe? Perhaps not; there had been other accidents (all involving trespassers) at other schools, though not long enough before Bodine’s accident for a school bureaucracy to have time to react. But, for most people’s sense of justice, that is hardly relevant: Bodine had no business being on the roof in the first place. In the words of anti-reformer Justinian Lane, “If you can’t do the time, don’t do the crime.”

If this is the best the anti-reformers can do to point out “distortions” in the reform movement, I’d say we’re doing a pretty good job. (Earlier in the series: Sep. 17; Sep. 18). And once again, the only people misrepresenting anything are the supporters of the litigation lobby, who once again fail to honestly engage with the reform position in their efforts to rebut it.

Update: David Nieporent notes in the comments:

Ted, you missed the best part of the skylight anecdote. In another post on Tortdeform, Cyrus Dugger approvingly cites a long passage from a book review of an anti-tort reform book. That passage also attempts to debunk the skylight story. But here’s how it describes it:

The actual case involved a teenager who was on the roof of a school and, by the best accounts we can find, was trying to redirect a light because they were trying to play basketball. And while he was on the roof he stepped through the skylight, which had been painted over black. So this may have been a trespasser, but it wasn’t a burglar. (Emphasis added.)

That’s right: in this account which is trying to debunk myths about the case, cited approvingly by Tortdeform, it turns a thief into a guy “trying to redirect a light.”

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Justinian Lane: reform supporter?

by Ted Frank on September 17, 2006

Until now, we’ve ignored a small left-wing think-tank’s admitted attempt to create a Bizarro-world version of Overlawyered. The writers are a recent college graduate and a recent law-school graduate who don’t appear to have actually read anything reformers write in support of reform. (For example, one post links to Overlawyered when defending the infamous McDonald’s coffee lawsuit, but fails to address any of Overlawyered’s arguments for why the McDonald’s coffee case is meritless, and simply repeats ATLA propaganda that Overlawyered refuted.) The blog has consisted mostly of thoughtless regurgitation of trial-lawyer talking points; when original analysis is attempted, it rises to the level of self-parody, such as an analysis of Leonard v. Nationwide (see POL Sep. 7 and links therein) that ignores the language of the insurance policy, the relevant Mississippi precedent, the existing discussion in the blogosphere, and any semblance of public policy rationalization in lieu of a Wikipedia definition to argue that the decision (and the defendant) are racist because some African-American plaintiffs might lose as a result.

Another such post is Justinian Lane’s “The Myth of the Frivolous Lawsuit.” The standard trial-lawyer talking point on such issues is to redefine “frivolous lawsuit” to consist of an exceedingly narrow subset of what it is laypeople are talking about when using the term “frivolous lawsuits,” note that the legal system has some mechanisms to address this narrow subset of cases, and then conclude that there’s no problem and thus no need for reform. (Or, as per John Edwards, announce Potemkin legislation to tackle this artificially constrained set of “frivolous lawsuits” that does nothing to actually address the problems of the tort system.) But Lane, perhaps because of his unfamiliarity with the legal system, bites off more than he can chew and inadvertently proves the reformers’ point.

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