Medpundit “Sydney Smith” writes about the anthrax vaccine and the decision of a judge to enjoin the military’s mandatory vaccination program. The article has links to other vaccination solutions stalled by lawyers. (“Trial Lawyers vs. the Armed Forces”, TechCentralStation, Jan. 2).
Posts tagged as:
Daubert
Eugene Volokh has extensive commentary in several posts on the recent Ninth Circuit 2-1 decision holding gun manufacturers potentially liable because a mentally ill bigot, Buford Furrow, went on a shooting rampage. (David Kravets, AP, Nov. 20) (via Bashman). Furrow is not one of the thirteen defendants.
Trivia not noted elsewhere: the two judges in the majority opinion, Richard Paez (see Kausfiles, Sep. 17) and Sidney Thomas, had some notoriety a couple of months ago when they were two thirds of a panel that made nationwide headlines by trying to enjoin the California recall election before an en banc panel of the Ninth Circuit overturned them in an 11-0 decision. Among the problems with this decision: it forces California standards upon defendants in other states in violation of the Commerce Clause; and, like the punchcard case, the judges impose a new judicially-created rule on their public-policy say-so without any thought as to real-world consequences, which Professor Volokh effectively elucidates. The lead attorney for the plaintiffs, Peter Nordberg (who is better known to readers of this site for his Blog 702, see July 5), is quoted by the AP as saying “I believe this is the first federal court of appeals decision to sustain a claim like this one.” Does it make me an old fogey already because I remember when calling a position “unprecedented” was an argument against its judicial adoption? (UPDATE: Peter Nordberg responds.)(& welcome Kausfiles readers)
UPDATE: As part of a lengthy criticism of the opinion, Clayton Cramer notes the absurdity of the following allegation: “Plaintiffs also allege that the defendants intentionally produced more firearms than the legitimate market demands with the intent of marketing their firearms to illegal purchasers who buy guns on the secondary market.” (Nov. 20) (via Volokh). That same logic of liability can, of course, be used to hit the manufacturers of any product that can be misused: alcohol, cigarettes, slot machines or casinos (the market of “legitimate gamblers” as opposed to addicts), prescription medications, sugar, SUVs, telephones. Congress is considering action to undo the decision. (Jason Hoppin, “9th Circuit Takes Aim at Gun Companies”, The Recorder, Nov. 21).
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Peter Nordberg and David Bernstein debate the study on Daubert discussed in this post. If I can take up Mr. Nordberg’s challenge to identify problems with the SKAPP report, I’ll just identify a handful that immediately came to mind as I read it. (This is long, so I’ve moved it off the main page. Click the link below.)
It’s the tenth anniversary (plus four days) of the Daubert v. Merrill Dow Pharmaceuticals opinion that limited in federal trials the use of expert testimony that is not scientifically reliable. Peter Nordberg’s Daubert on the Web is one of the more comprehensive sites on the web on any subject; he has started a blog that promises to be fascinating.
Along with recent Supreme Court jurisprudence on punitive damages in cases such as BMW v. Gore and the expansion of interlocutory review of class action certification, Daubert has been one of the few brakes on the expansion of tort liability in the last ten years. As my former Brandeis colleague and GMU Law professor David Bernstein points out, however, Daubert did not stop the use of junk science to extract billions from breast implant manufacturers, and now some of that money is being used to fund efforts to weaken Daubert.
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April 19-21 – Pitcher hit by line drive sues maker of baseball bat. Hurling for the Pittsfield (Ill.) High School baseball team, Daniel Hannant put one over the plate to a batter from opponent Calhoun High School, who smacked the ball in a line drive straight at the pitcher’s mound where it hit Hannant on the head. Now Hannant is suing … guess who? The maker of the baseball bat, Hillerich & Bradsby, known for its trademark Louisville Slugger. (“Lawsuit comes out swinging”, Chicago Tribune, Apr. 18) (& see letter to the editor, Jun. 14; update, Dec. 30). (DURABLE LINK)
April 19-21 – No apologies from RFK Jr. As the uproar continues in Iowa over Robert F. Kennedy Jr.’s assertion that large hog-raising operations are more of a threat to American democracy than Osama bin Laden, Kennedy’s office has sent word to the Des Moines Register not to expect an apology or retraction. (Mark Siebert, “Kennedy stands by hog-lot remark”, Apr. 18; J. R. Taylor, “To the Preening Born”, New York Press “Billboard”, Apr. 18; earlier reports on this site Apr. 15, Apr. 17). Far from being an unconsidered slip of the tongue, the comparison seems to have been a feature of Kennedy’s speeches for months, to judge from a report published back in January on another of his Midwestern swings: “This threat is greater than that in Afghanistan,” he was quoted as saying. “This is not only a threat to the environment, it is a threat to the American economy and democracy.” (Gretchen Schlosser, National Hog Farmer, Jan. 15, linked in WSJ OpinionJournal.com “Best of the Web” Jan. 21). And a staff attorney from Kennedy’s office has sent us a letter responding to our editor’s Wednesday New York Post op-ed on the affair, to which we append a fairly lengthy response — see our letters page.
MORE: The food-industry-defense group Center for Consumer Freedom has been on the warpath against Kennedy and his band of lawyers for a while. It quotes Iowa Agriculture Secretary Patty Judge as saying: “The true agenda of this group is to sue farms and take the monetary rewards back to the East Coast.” (“Trashing Pork, Cashing In”, Apr. 11). Kennedy has estimated “damages” against the industry of $13 billion: “We have lawyers with the deepest pockets, and they’ve agreed to fight the industry to the end,” he has said. “We’re going to go after all of them.” (“Kennedy’s Pork Police Hit Iowa”, Apr. 2; “Waterkeepers, Farmers Weepers”, Dec. 12, 2001) “‘We’re starting with hogs. After the hogs, then we are going after the other ones,’ referring to the poultry and beef industries.” (“Warning”, Jan. 16, 2001, citing “Concerns that pork suit may be extended to other areas,” Des Moines Register, Jan. 8, 2001). (DURABLE LINK)
April 19-21 – Traffic-cams, cont’d. In the controversy (see Apr. 8-9) over the uses and abuses of automated traffic camera systems, a reader writes in (see letters page) to say we were wrong to describe Lockheed Martin as the current contractor on the systems; it actually sold the operation last August to another company. Our apologies. And Eugene Volokh reports on his blog (Apr. 17) that he found some inaccuracies in Matt Labash’s Weekly Standard investigative series on the cameras which Labash and the Standard have been happy to correct. See also “Hawaii scraps ‘Talivan’ traffic cameras”, AP/ABC News, Apr. 11. (DURABLE LINK)
April 19-21 – Clipboard-throwing manager = $30 million clipping for grocery chain. The Ralphs supermarket chain in California had a store manager who over the course of a decade “physically and verbally abused six female Ralphs employees by calling them vulgar names, manhandling them, and throwing items like telephones, clipboards and, in one instance, a 30- to 40-pound mailbag, at them.” So a San Diego jury awarded them $5 million each in damages. (Alexei Oreskovic, “$30M Awarded in Sex Harassment Suit Against Grocery Chain”, The Recorder, Apr. 9)(& update Jul. 26-28: judge cuts total award to $8 million). (DURABLE LINK)
April 19-21 – See you … at the Big Apple Blog Bash Friday night. (DURABLE LINK)
April 18 – “Tampa Taliban” mom blames acne drug. By reader acclaim: “The family of 15-year-old Charles Bishop has filed a $70-million lawsuit against the maker of acne medication Accutane, saying nothing else explains the teenager’s suicidal flight into a downtown Tampa high-rise.” Bishop, whose father bore an Arab surname, left a suicide note praising Osama bin Laden; the county medical examiner’s office found no trace of Accutane in his bloodstream, although it says that does not rule out the possibility that he might have been on the medication, for which he had been written a prescription. Although the maker of the widely used acne drug denies that it causes psychosis or suicidal impulses, its cautious consent form “required the Bishops to agree to tell their physician ‘if anyone in the family has ever had symptoms of depression, been psychotic, attempted suicide, or had any other serious mental problems.’ Julia Bishop, however, did not reveal that in 1984, she and Charles’ estranged father failed in a bloody suicide pact during which she stabbed him with a 12-inch butcher knife.” Mrs. Bishop’s lawyer, Michael Ryan of Fort Lauderdale, calls that earlier suicide pact incident “completely irrelevant”. (Robert Farley, “Suit: Drug behind suicide flight”, St. Petersburg Times, Apr. 17; Natashia Gregoire, “Teen Pilot’s Family Sues Drug Maker”, Tampa Tribune, Apr. 17; “Accutane acne drug maker sued over suicide”, USA Today/Reuters, Apr. 16; Broward Liston and Tim Padgett, “Despair Beneath His Wings”, Time, Jan. 13; Howard Feinberg, “Is Accutane to Blame?”, TechCentralStation.com, Apr. 18; see Feb. 1). Updates: manufacturer wins first jury trial (Margaret Cronin Fisk, “Suits Probe Acne Drug, Depression”, National Law Journal, Apr. 25; Michael Fumento, “The Accutane Blame Game”, National Review Online, May 9). (DURABLE LINK)
April 18 – Judge compares class action lawyers to “squeegee boys”. A Florida judge has rejected the tentative settlement of a shareholder lawsuit filed by Milberg Weiss Bershad Hynes & Lerach against power company Florida Progress Corp. over a 1999 merger, saying the evidence indicated that the suit did not leave class members in a better position than if it had never been filed. Added Pinellas County Judge W. Douglas Baird: “This action appears to be the class litigation equivalent of the ‘squeegee boys’ who used to frequent major urban intersections and who would run up to a stopped car, splash soapy water on its perfectly clean windshield and expect payment for the uninvited service of wiping it off.” (Jason Hoppin, The Recorder, Apr. 17). (DURABLE LINK)
April 18 – Welcome Humorix.org readers. The Linux-humor site started linking to us way back in 1999, if we remember correctly. Also sending us visitors lately: Auckland (N.Z.) District Law Society, Mar. 14 (“For a change of pace, spend some time with this digest of news stories … Most cases reported on are from the U.S., but there are quite a few examples from Europe, Australia, and elsewhere”); WTIC-AM Hartford, “Morning Links”, Apr. 7; American Civil Rights Union “ACLU Watch”, Nintendominion “Site Unseen”, Mar. 31; Dog Brothers Martial Arts (Hermosa Beach, Calif.), Mutual Reinsurance Bureau, Anne Klockenkemper (Univ. of Florida) Media Law Resources, Smith Freed & Eberhard P.C. (attorneys at law, Portland, Ore.), Univ. of Nevada-Reno Tau Kappa Epsilon, RKKA.org (Russian Red Army-themed wargaming); Fureyous.com, Mar. (“My dream site, a site where I can find the entire downfall of civilization due to frivolous and pathetic lawsuits and legal actions”), and many more. (DURABLE LINK)
April 17 – New York Post op-ed on RFK Jr. & hogs. Our editor has a piece today on the op-ed page of the New York Post about the furor that broke out in Iowa when celebrity environmentalist Robert F. Kennedy, Jr. told a rally that large-scale hog farms are more of a threat to America than Osama bin Laden and his terrorists. For links to the local Iowa coverage, see our item here from Monday, of which the Post op-ed is an expansion. (Walter Olson, “Osama, the Pigs and the Kennedy”, New York Post, Apr. 17).
April 16-17 – Pharmaceutical roundup. The total cost of the settlement over the diet compound fen-phen has ballooned to more than $13 billion, swollen by mass recruitment by law firms of claimants who defendants believe have suffered no ill effects from the compound at all aside from possible worry. “Wyeth’s general counsel, Louis L. Hoynes Jr., said he believes that in a different legal climate his company might have been able to settle all serious claims for less than $1 billion. That would amount to an average of $1 million each for 1,000 cases.” (L. Stuart Ditzen, “Mass diet-pill litigation inflates settlement costs to $13.2 billion”, Philadelphia Inquirer, Apr. 9 — whole article well worth reading). Lawyers for a group of British women have filed what is believed to be the first injury suit over the “third-generation” birth control pill, which they say raises the risk of blood clots, and similar suits are expected to follow in the United States (Mary Vallis, “U.K. suit targets perils of The Pill”, National Post, Mar. 5). In one of the more recent applications of the U.S. Supreme Court’s Daubert doctrine, courts have dismissed several lawsuits seeking to blame Pfizer’s anti-impotency drug Viagra for users’ heart attacks, ruling that the expert testimony in the cases was not based on scientific principles that had gained “general acceptance.” (Tom Perrotta, “Viagra Cases Dismissed”, New York Law Journal, Jan. 22). The Nov. 9, 2001 installment of CBS’s “48 Hours” launched a one-sided attack on psychiatric drugs used to treat attention deficit and hyperactivity and told the stories of two parents who say their use of the ADHD drug Adderall caused them to behave irrationally, resulting in the death of their children; but Hudson Institute fellow Michael Fumento finds that much was misstated or left out in the network’s account, including the exact role of the trial lawyers hovering in the background (Michael Fumento, “Prescription for Bias“, “Dawn Marie Branson: A Sad Story Only Half Told“) And although the U.S. Food and Drug Administration has not chosen to give a green light for the reintroduction of silicone breast implants for American women following the litigation-fueled panic that drove them from the market, they have regained popularity among women in Canada, reports the CBC (“Silicone implants back in style”, Sept. 20, 2001). (DURABLE LINK)
April 16-17 – A DMCA run-in. Tom Veal’s Stromata site, which covers topics ranging from pension regulation to science fiction, had a run-in a few days ago with its hosting service, Tripod, which abruptly closed down access to the site and then took its sweet time about reopening it. The reason? Tripod had received a nastygram from a law firm charging that Stromata was in violation of the Digital Millennium Copyright Act, not because it had posted any copyrighted material itself, but because it had linked to another site which had (it said) posted an unauthorized translation of a widely discussed piece on terrorism by Italian journalist Oriana Fallaci. Unfortunately, as Veal notes, the incentives under DMCA are for hosts to muzzle speech in haste and un-muzzle at leisure. (“Et Cetera”, Apr. 9). (DURABLE LINK)
April 16-17 – Unlikely critic of litigation. The Washington group Judicial Watch files lawsuits at a manic clip, but now its founder Larry Klayman is taking to the mails to decry our national problem of excessive litigiousness. “One may liken the overall effect of Klayman’s direct-mail sermon against frivolous lawsuits to that of a Weight Watchers commercial starring Marlon Brando or a temperance lecture given by Hunter S. Thompson.” (Tim Noah, “Larry Klayman Decries Evils of Litigation!”, Slate, Apr. 3). (DURABLE LINK)
April 15 – RFK Jr. blasted for hog farm remarks. Robert F. Kennedy Jr., the highest-profile spokesman for the developing alliance between trial lawyers and some environmentalist groups (see Dec. 7, 2000), “made an ass of himself” in remarks last weekend at a Clear Lake, Ia. rally, according to veteran Des Moines Register political columnist David Yepsen. Kennedy’s “statement that large-scale hog producers were a bigger threat to America than Osama bin Laden’s terrorists has to be one of the crudest things ever said in Iowa politics. … [Kennedy] brought his Waterkeeper’s Alliance for a rally [in Clear Lake]. It’s a group that is threatening lawsuits against livestock industries. … Rural America needs positive solutions to this problem, not the corrosive rhetoric of another out-of-state political operative or lawsuits from greedy trial lawyers. … What was one of the finest hours of this legislative session was marred by this fool from the East. … Kennedy looks to be cashing in on his family’s name. … If his name were Bob Fitzgerald, he’d be dismissed as another one of the kooks on the fringe of this debate.” Other reaction was not much more favorable: “‘You have to be a complete wandering idiot to make that statement,’ said [Luke] Kollasch [of Algona, Ia.], whose family owns several hog farms and feed and construction companies in northwest Iowa.” (Donnelle Elder, “Big hog lots called greater threat than bin Laden”, Des Moines Register, Apr. 10; “Kennedy’s outrageous rhetoric” (editorial), Apr. 11; David Yepsen, “Kennedy cashes in on family name while acting like a fool”, Apr. 14) (DURABLE LINK)
April 15 – Updates. Stories that seem to have a life of their own:
* Richard Espinosa, “who is suing the city of Escondido because his dog was attacked by a cat inside a city library, now says the attack was a hate crime.” (see Dec. 4, 2001) (“Cat attack now described as hate crime”, MSNBC, Apr. 5)
* “The Florida Legislature has partially undone a landmark Florida Supreme Court ruling issued in November that gave slip-and-fall injury victims the upper hand in lawsuits against supermarkets and other premises owners.” (see Jan. 7). The ruling had required businesses to prove they were not negligent when presented with slip-fall claims. However, trial lawyers extracted a compromise in which plaintiffs will not have to prove that a slippery material was on the floor for long enough for the store owner to have known about it. (Susan R. Miller, “Florida Legislature Passes Bill on Slip-and-Fall Cases”, Miami Daily Business Review, Mar. 27).
* “A Hays County judge has thrown out a default judgment that would have awarded $5 million to a local woman whose near-topless image was used in a national television ad for a ‘Wild Party Girls’ video without her permission. … Judge Charles Ramsay set aside the default judgment, ruling that the plaintiff had listed the wrong company in the lawsuit, and that the video’s makers were not either properly named or properly served.” (see Mar. 6-7) (Carol Coughlin, “Topless suit is groundless, judge rules”, San Marcos (Tex.) Daily Record, Mar. 30).
* More on the symbiotic relationship between state attorneys general and Microsoft competitors (see Apr. 3-4): “An April 2000 e-mail message from the Utah attorney general’s office to Novell, revealed in court, asked for ‘guidance … preferably without involving too many people seeing this language.’” (Declan McCullagh, “Report: MS Foes Bribed Attorneys”, Wired News, Apr. 6). (DURABLE LINK)
April 12-14 – Hey, no fair talking about the pot. During a 20-hour trip from California to Texas pulling a U-Haul trailer, three young women work their way through a bag of marijuana. Of course the ensuing rollover accident is, like, practically totally the fault of their Firestone tires and the U-Haul company, or at least so their lawyers argue in a suit against those companies, even though the tires did not suffer the “tread separation” that has heretofore been seen as the distinctive source of accident risk with the now-recalled Firestones. Now Matagorda County, Tex. Judge Craig Estlinbaum has declared a mistrial at the request of plaintiff’s lawyer Mikal Watts who complained that defense attorney Morgan Copeland “had breached a pretrial order by introducing detailed evidence of marijuana use” during the trip. If we read the AP story correctly, Judge Estlinbaum had ruled that the defense could mention only that portion of the marijuana it could prove the driver consumed, and attorney Copeland, who may now face sanctions in the famously pro-plaintiff county, had improperly let jurors know about the whole bag. The Ford Motor Co. was also named as a defendant but has already settled out of the case (“Texas judge declares mistrial in Firestone case”, Yahoo/ Reuters, Apr. 5; Pam Easton, “Judge declares Firestone mistrial”, AP/ MySanAntonio.com, Apr. 6). Update — additional coverage of ruling: Miriam Rozen, “Mistrial declared in Firestone case”, Texas Lawyer, Apr. 15).
April 12-14 – In the line of fire. Post-Enron, many companies feel the need to seek out savvier and more experienced executives to sit on boards and audit committees, but with escalating fears of personal liability “attracting talent may become nearly impossible. ‘Recruiting directors for the audit committee is like calling them on deck for a kamikaze attack,’ quips [corporate finance officer Bob] Williamson.” (Marie Leone, “Audit Committee? Thanks, But No Thanks”, CFO Magazine, Apr. 5).
April 12-14 – L.A. police sued, and sued. The family of the late James Allen Beck, who died in a fiery shootout with L.A. sheriff’s deputies last August after barricading himself in his home, has filed a wrongful death claim against the sheriff’s department. During the standoff Beck, an ex-police officer with a history of stockpiling weapons at his home, shot and killed Deputy Hagop Kuredjian. (“Mother of gunman who died in shootout files claim”, Sacramento Bee, Apr. 10)(& see Feb. 23, 2000). And: “Heirs of the late rap star Notorious B.I.G. have filed a wrongful death and federal civil rights lawsuit against Los Angeles Police Chief Bernard Parks, two former chiefs and the city of Los Angeles, claiming they did not do enough to prevent the rapper’s death five years ago in a drive-by shooting.” (“Notorious B.I.G. heirs sue LAPD, officials, city”, CNN, Apr. 11).
April 11 – Don’t ban therapeutic cloning. Though not usually the petition-signing types, we (our editor) have signed a petition being circulated by Virginia Postrel’s just-launched Franklin Society opposing the current stampede in Congress to ban all scientific use of cloned human cells including “therapeutic” (non-reproductive) uses, and even the use of imported pharmaceuticals developed via such methods (see “Criminalizing Science” (symposium), Reason, Nov.). If you agree with us that this proposed law is a bad idea, you can sign the petition here and view the list of distinguished signers: despite efforts in some conservative quarters to hand down a party line opposing this potentially life-saving branch of biomedical research, support for it in fact cuts across the political spectrum. For information on contacting elected representatives, see InstaPundit, Apr. 10. (DURABLE LINK)
April 11 – Texas doctors’ work stoppage. Monday’s one-day work stoppage by South Texas doctors outraged at spiraling malpractice costs (see Mar. 15-17) drew national attention (“Texas docs protest malpractice claims”, AP/CNN, Apr. 8; see also Dean Reynolds, “Crushing Cost of Insurance”, ABCNews.com, Mar. 5 (Nev., Pa.)). And a Florida physician has launched an insurance policy for doctors “that aims to provide them with the legal resources they would need to countersue lawyers or expert witnesses filing frivolous lawsuits”. (Tanya Albert, “Frivolous suits feel wrath of Medical Justice”, American Medical News, Feb. 11). (DURABLE LINK)
April 11 – Batch of reader letters. Topics include the “pedal-extender” suit against Ford; OxyContin; suing food companies for waistline problems; police getting ticketed while responding to calls; laws mandating handicap accessibility in private homes; and why schools would send kids home when they have a slight sniffle. One writer upbraids blogger Natalie Solent for thinking it crazy to impose strict product liability on British blood suppliers that currently offer their services free of charge to patients; he thinks she (and by extension we) must not have stopped to consider that blood transfusions can transmit lethal diseases like AIDS and hepatitis.
Best of all, we hear from attorney Jack Thompson, the anti-videogame crusader who has just filed a lawsuit claiming that Sony’s EverQuest game is responsible for the suicide of a user, and he turns out to be every bit as suave and ingratiating as we dared hope (“go to Afghanistan where your anarchist, pro-drug views will be greatly rewarded”), though we wonder whether he caught the phrase “as if” in our original Apr. 3 posting. Mr. Thompson will probably not appreciate Eugene Volokh’s new satirical piece for TechCentralStation.com (“Worse than Internet Addiction”, Apr. 10). (DURABLE LINK)
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January 18-20 – Web defamation roundup. “The Atlanta Humane Society has filed a $75,000 defamation lawsuit against a woman who called its executive director ‘Mr. Kill’ in an Internet chat room.” (“Woman sued over chat room comments”, AP/USA Today, Jan. 10). In New Jersey, a court has found that local officials have not sufficiently justified the use of subpoena power to reveal the identity of persons who posted insulting things about them on online bulletin boards (Robert MacMillan, “Judge Bars Town Brass From Learning Detractors’ IDs”, Newsbytes, Jan. 3). U.S.-based Dow Jones is entangled in a battle over whether the courts of Australia can require it to stand suit down there over an online article that it published about an Australian businessman. The lower court decision “opened up the possibility that publishers and Internet sites were potentially open to litigation in any country that allowed defamation cases.” (“Dow Jones Can Pursue Jurisdiction Battle in Internet Defamation Case”, AP/Law.com, Dec. 17; Eric J. Sinrod, “Online Defamation — It’s a Small World After All”, Law.com, Sept. 18)(Update Nov. 20, 2004: Dow Jones settles case). And an appeals court in New York has declined to resolve the question whether altering a website counts as “republication”, which can be legally important for various reasons, such as by restarting the clock on the statute of limitations. (John Caher, “New York Appellate Panel Upholds Dismissal of Web Defamation Claim”, New York Law Journal, Oct. 15).
January 18-20 – “How many people will this kill, I wonder?” Writes Natalie Solent on her weblog: “Sometimes it’s the little stories, the unsensational ones tucked away in the business section, that are the most ominous. An EU directive imposes insanely strict product liability. It is used to sue the providers of the free (FREE for heaven’s sake) blood transfusion service. So maybe, think would-be investors, researchers, entrepreneurs, jobseekers, just maybe we won’t go into the lifesaving business after all.” (Jan. 14; “EU rules open door to lawsuits”, Daily Telegraph (UK), Jan. 14). From another item on her site: “Al-Qaeda. Anthrax. Alimony. Which is the one that really terrifies you guys?”
January 18-20 – Planners tie up land for twenty years. For twenty years Patricia and Perry Smith’s dream of building a retirement home on their land at Lake Tahoe was blocked by a local moratorium on new construction. In a case now before the Supreme Court, lawyers for the Tahoe Regional Planning Agency say no compensation is owed owners like the Smiths because the moratorium might have been lifted at some point, whether or not it actually was. Too late for Perry Smith: “He died in 1999 and was never able to enjoy his dream of a Lake Tahoe retirement with his wife.” Local officials worry, however, that recognizing a right to compensation could cause a flood of litigation by owners. (Warren Richey, “A lakeview lot, a dream deferred, a 20-year lawsuit”, Christian Science Monitor, Jan. 7). Things aren’t much better up in British Columbia: Elizabeth Nickson, “B.C. property rights: endangered species”, National Post, Dec. 7.
January 16-17 – Australian summer festival. Look to your laurels, L.A.: Australia has become “an extraordinarily litigious environment”, said Nicholas Conca, senior vice president of a unit of Liberty Mutual Insurance, quoted in an article on suits against company officers and directors: “‘New South Wales has replaced Southern California as the most litigious environment in the world’ in terms of frequency of suits, he said.” (Regis Coccia, “D&O liability lawsuits increasing around the world”, Business Insurance, Nov. 26, not a free link). Plus: In a story that confirms everything you ever imagined about the atmosphere in Australian liquor establishments, a bar patron there is being sued after strapping pork chops to his feet like shoes and striding across the bar floor, leaving a greasy trail on which another patron allegedly slipped and fell (Leonie Lamont, “Meat tray winner faces $750,000 bill for carrying on like a pork chop”, Sydney Morning Herald, Jan. 15). And: Jellyfish stings are just one reason why touchy Oz residents sue their travel agents a lot (Simon Liddy (Ebsworth & Ebsworth), “Travellers behaving badly”, FindLaw Australia, undated)(via LegalHumour.com). Even more: should litigation lawyers have to display health warnings? (“Does litigation harm your health?”, ABC (Australian) with Damien Carrick, Oct. 23 (racp.edu.au report in PDF format)). (DURABLE LINK)
January 16-17 – “FTC Taking ‘Seriously’ Request To Probe Firearms Sites”. No one will accuse the left-wing lawyers’ group Alliance for Justice of being too delicate about its opponents’ free speech rights: it’s petitioned the Federal Trade Commission to prohibit firearms companies from arguing in print that buying a gun for home use is a way of protecting one’s family’s safety (Robert MacMillan, Newsbytes.com, Jan. 10; “‘Homeland Security’ Gun Not Misnamed — Firearms Dealer”, Jan. 14). It’s much the same approach as is taken in the federal government’s lawsuit against the tobacco industry, which charges the companies with unlawfully seeking to advance “false and misleading positions on issues” (emphasis added) (see Sept. 23, 1999). (DURABLE LINK)
January 16-17 – Undignified survivors. “Last month, for example, the federal government announced plans to disburse about as much money this year to families of attack victims as the entire international aid community has slated to give to Afghanistan over the next decade — and that money will come in addition to incredible amounts of charitable aid also already raised. Nevertheless, a spokesman for a victims’ lobby group immediately dissented, demanding more. ‘We are exploring our legal options and lining up attorneys,’ he said. Almost no criticism could be found in response.
“Emerson once wrote that ‘every hero becomes a bore at last.’ Well, at least their lawyers and lobbyists do.” (Nicholas Thompson, “Hero inflation”, Boston Globe, Jan. 13) (via Arts & Letters Daily). And why, exactly, are taxpayers or any other innocent parties obliged to compensate victims of the terrorist attacks for pain and suffering? (Thomas Connor, “Terror Victims Aren’t Entitled To Compensation”, Wall Street Journal, Jan. 2)(online subscribers only). (DURABLE LINK)
January 16-17 – Bounce those economists. There has been considerable progress in challenging the use of “junk science” in federal court, but it took a while for many participants to realize that disciplines like economics are also subject to the judicial-gatekeeper rules of the Supreme Court’s Daubert decision. Economists who hire themselves out to help lawyers make their case in antitrust, damages or commercial disputes had better be prepared to defend their methods and reasoning. (David Hechler, “Federal Judges Applying Tougher Standards on Expert Testimony”, National Law Journal, Jan. 8). (DURABLE LINK)
January 14-15 – “Avoiding court is best defence”. “The best way to deal with the legal industry is to avoid it. It should not be regarded as a justice system. It is an industry that provides incomes for its insiders and, as an industry, its raw material is us.
“Consider a 40-year-old father of three with an income in the $70,000 [C] range who appealed to the family court system for shared parenting. Before the court would rule, it insisted on a psychiatric assessment. That cost him $5,200 on top of legal fees that are approaching the $15,000 mark.” (Dave Brown, Ottawa Citizen, Jan. 12).
January 14-15 – Sept. 11 and court awards. An apparent decline in the number of huge jury awards since the terrorist attacks may represent a shift toward conservatism in juror psychology, or simply lawyers’ decision to postpone trials; police brutality claims are among those that seem to be faring less well. (Richard Willing, “Study: Sept. 11 influenced jury awards”, USA Today, Jan. 7; Pam Louwagie, “Lawyers, consultants: Sept. 11 influencing jurors”, Minneapolis Star Tribune, Jan. 7). Insurers have been paying far more than expected in recent years on employment practices liability claims, one reason being Congress’s 1991 expansion of the right to file discrimination suits. (Reed Abelson, “Surge in Bias Cases Punishes Insurers, and Premiums Rise,” New York Times, January 9).
January 14-15 – Armenians on reparations bandwagon too. “Descendants of Armenians killed in 1915 in what was then the Ottoman Empire have won a preliminary round in their class action fight to force New York Life Insurance Co. to pay benefits to insured victims’ families. New York Life sought to dismiss the suit, arguing that the insurance policies, purchased between 1875 and 1915, required litigation to be filed in France or England.” The state of California, in which Armenian-Americans constitute an ethnic lobby of some importance, had passed a law to help its constituents win. (Emily Heller, “Armenian Descendants Win Early Court Round”, National Law Journal, Dec. 21).
January 14-15 – Profiling: the costs of sparing feelings. Someone’s going to get killed, maybe soon, because our leaders — President Bush himself, John Ashcroft, Norman Mineta — bow to current civil rights doctrine by refusing to allow added scrutiny to airport-goers who fit terrorist demographic profiles. Will they change their minds in time? (Rich Lowry, “Mineta’s Folly”, National Review Online, Jan. 10; James Q. Wilson and Heather R. Higgins, “It Isn’t Easy Being Screened”, OpinionJournal.com, Jan. 10; Heather Mac Donald, “The War on the Police”, Weekly Standard, Dec. 31; Dorothy Rabinowitz, “Hijacking History”, OpinionJournal.com, Dec. 7; Terry Eastland, “Fitting the Profile”, Weekly Standard, Oct. 31).
January 11-13 – Class action on behalf of illegal-alien college students. On Monday, lawyers filed suit against the City University of New York on behalf of about 2,200 “undocumented immigrant” (a euphemism) students challenging a new policy under which the university would charge them out-of-state tuition rates, as opposed to the steeply subsidized rates available to city residents. University officials promptly caved in and agreed to notify the students “about a program to defer their tuition payments this semester.” The tuition hike came after CUNY administrators, re-evaluating their policies on immigrant students after the Sept. 11 terrorist attacks, “decided they had not been complying with a 1996 federal law making it illegal to favor undocumented immigrants over U.S. citizens.” Apparently the university has ruled out the option of ceasing to enroll illegals entirely, let alone the option of actively assisting the Immigration and Naturalization Service in enforcing the laws at which the plaintiffs have been thumbing their noses. It’s another sign, if any were needed, of what a privileged status university administrators enjoy in our legal system compared with employers, who face stringent penalties if they knowingly put illegals on their payroll. (Mae M. Cheng, “Tuition Waiver For CUNY Immigrants”, Newsday.com, Jan. 9). Plus: coverage of similar controversy at the Univ. of California mentions administrators’ “fears that the nine-campus system could be held liable if a nonresident of California who is a legal U.S. citizen challenged the law [giving illegals the in-state tuition break] and sued UC”. (Tanya Schevitz, “UC regents urged to let illegal immigrants pay in-state tuition rate”, San Francisco Chronicle, Jan. 12).
January 11-13 – Mummery of the law. A federal judge has ruled that lawyers pursuing civil suits against Osama bin Laden and Al Qaeda over the World Trade Center attack can serve them with adequate process by placing international broadcast TV ads and legal-notice ads in foreign newspapers. Maybe Osama will see one of the notices while browsing the classifieds for army-surplus munitions. (Melissa Sepos, “TV, Newspaper Ads Will Be Used to Serve Notice on Bin Laden, Al Qaeda”, The Legal Intelligencer, Jan. 8).
January 11-13 – “Ex-student sentenced for rape lie”. Key line in sad tale of made-up gang-rape story: “….she will begin classes at Drake University in Des Moines this month, and she wants to be an attorney.” (Staci Hupp, “Ex-student sentenced for rape lie”, Des Moines Register, Jan. 8)(via Obscure Store)(see May 26, 2000, on the Stephen Glass case).
January 11-13 – Prison litigation: “Kittens and Rainbows Suites”. As part of a federal court settlement with inmate lawyers, the state of Wisconsin has agreed to soften various living conditions at its Boscobel prison for the most violent and disruptive male offenders, and will stop calling the prison “Supermax”. “Lawyers for the inmates have objected to the ‘Supermax’ name and elected officials’ statements that it was built to hold the ‘worst of the worst’.” Republican Gov. Scott McCallum, asked recently about the phrase “worst of the worst”, told a reporter: “We’re not supposed to use that word anymore.” Rep. Mark Gundrum (R-New Berlin) proposes that the facility, which houses many murderers and rapists, be renamed “Kittens and Rainbows Suites”. (Steven Walters, “Supermax deal ‘coddles’ prisoners, GOP lawmakers say”, Milwaukee Journal Sentinel, Jan. 2). And in Canada, “the federal government quietly paid William Canning $2,500 last year after he took it to court for breaching the Charter of Rights by subjecting him to the ‘cruel and unusual punishment’ of second-hand smoke.” Canning, 44, is serving a 22-year sentence in a Quebec prison and objected to his cellmate’s smoking. (Janice Tibbetts, “Prisoner granted $2,500 because cellmate smoked”, Southam News/National Post, Jan. 7).
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May 31 – Fieger’s firecrackers frequently fizzle. Famed lawyer Geoffrey Fieger extracts huge damage awards from Michigan juries in civil cases even more often than he manages to get Dr. Jack Kevorkian off the hook from criminal charges, but he does much less well when the big awards reach higher levels of judicial consideration. “In the last two years, Fieger and his clients have watched as judges, acting on appeal or post-trial motion, erased more than $55 million in jury verdicts,” including $15 million and $13 million verdicts against Detroit-area hospitals and a $30 million verdict, reduced by the judge to $3 million, arising from a Flint highway accident. Opponents say Fieger’s courtroom vilification of opponents and badgering of witnesses often impresses jurors but plays less well in the calmer written medium of an appellate record.
Appeals courts are now considering Fieger cases “totaling an estimated $50 million to $100 million … Among those cases is $25 million awarded in the infamous Jenny Jones talk-show case and $20 million to a woman who was sexually harassed at a Chrysler plant.” (Update Oct. 25-27, 2002: appeals court throws out Jenny Jones verdict. Further update Jul. 24, 2004: state high court throws out Chrysler verdict). Fieger, who was the unsuccessful Democratic challenger to Michigan Gov. John Engler at the last election, charges that the appeals courts are politically biased against him: “It’s a conspiracy to get me”. However, a reporter’s examination of Fieger cases that went up to appeals courts indicates that the partisan or philosophic background of the judges on the panels doesn’t seem to make a marked difference in his likelihood of success (Dawson Bell, “Fieger’s wins lose luster in appeals”, Detroit Free Press, May 29). “Colorful” barely begins to describe Fieger’s past run-ins with the law and with disciplinary authorities; see Dawson Bell, “Fieger’s skeletons won’t stay buried”, Detroit Free Press, August 13, 1998.
May 31 – “Dead teen’s family sues Take our Kids to Work”. Had to happen eventually dept.: in Welland, Ontario, “[t]he family of a teenage girl killed while driving a utility vehicle at a John Deere plant is suing the company, the school board and the organizers of Take Our Kids to Work day.” (Karena Walter, National Post, May 25).
May 31 – Pale Nanny with an ad budget. The Indoor Tanning Association, a salon trade group, is “worried about proposed legislation in Texas that would outlaw indoor tanning for anyone under age 18, require tanning salons to post pictures of different types of skin cancer, and allow dermatologists and anti-tanning activists to make contributions to the Texas Health Department to pay for an anti-tanning advertising campaign.” You didn’t think these sorts of campaigns were going to stop with tobacco, did you? (“Inside Washington — Presenting: This Season’s Latest Tan Lines”, April 14, National Journal, subscribers only).
May 30 – Supreme Court: sure, let judges redefine golf. By a 7-2 vote, the high court rules that the PGA can be forced to change its rules so as to let disabled golfer Casey Martin ride in a cart between holes while other contestants walk. (Yahoo Full Coverage; Christian Science Monitor; PGA Tour v. Martin decision in PDF format — Scalia dissent, which is as usual the good part, begins about two-thirds of the way down). For our take, see Reason, May 1998; disabled-rights sports cases).
May 30 – Microsoft v. Goliath. “The antitrust laws originally aimed to preserve competition as idealized by Adam Smith. Can they now preserve and promote Schumpeter’s ["creative destruction"] competition? The Microsoft case suggests that they cannot. ” (Robert Samuelson, “The Gates of Power”, The New Republic, Apr. 23).
May 30 – Evils of contingent-fee tax collection, cont’d. Another city, this time Meriden, Ct., has gotten in trouble for hiring a private firm to assist in its taxation process on a contingent-fee basis — in this case, the firm conducted property reassessments and got to keep a share of the new tax revenue hauled in by them. A Connecticut judge has now found that this system gave the firm a pointed incentive to inflate supposed property values unjustifiably, that it had done so in the case at hand, and that the incentive scheme, by destroying the impartiality that we expect of public servants, had deprived taxpayers of their rights to due process under both federal and state constitutions. He ordered the city to refund $15.6 million to two utility companies whose holdings had been overassessed in this manner. (Thomas Scheffey, “Connecticut Judge Blasts City’s $15.6 Million Mistake”, Connecticut Law Tribune, May 3). It’s yet another recognition (see Jan. 10, 2001; Dec. 3, 1999) that when governments hire contingent-fee professionals to advise them on whether private parties owe them money and if so how much, due process flies out the window — as has happened routinely in the new tobacco/gun/lead paint class of lawsuits, which operate on precisely this model.
May 29 – Claim: inappropriate object in toothpaste caused heart attack. A Shelton, Ct. man is suing Colgate-Palmolive, claiming he discovered an extremely indelicate object in a six-ounce standup tube of the company’s regular toothpaste and that the resulting stress caused his blood pressure to escalate over a matter of months, leading him to suffer a heart attack a year later. The company said it does not think its production processes would have allowed the offending object to have entered the tube. (“Man sues over condom in toothpaste”, AP/WTNH New Haven, May 25).
May 29 – States lag in curbing junk science. According to one estimate, only about half of state courts presently follow the U.S. Supreme Court’s standard for excluding unreliable scientific evidence from trials (Daubert v. Merrell Dow, 1993). Where states follow a laxer standard, they run the risk of approving verdicts based on strawberry-jam-causes-cancer “junk science”. A new group called the Daubert Council, headed by Charles D. Weller and David B. Graham of Cleveland’s Baker & Hostetler, aims to fix that situation by persuading the laggard states to step up to the federal standard. (Darryl Van Duch, “Group is Pushing ‘Daubert’”, National Law Journal, May 25).
May 29 – Brace for data-disaster suits. Companies with a substantial information technology presence are likely to become the targets of major liability lawsuits in areas such as hacker attacks, computer virus spread, confidentiality breach, and business losses to co-venturers and customers, according to various experts in the field. (Jaikumar Vijayan, “IT security destined for the courtroom”, ComputerWorld, May 21).
May 28 – Holiday special: dispatches from abroad. Today is Memorial Day in the U.S., which we will observe by skipping American news just for today in favor of the news reports that continue to pour in from elsewhere:
* Swan victim Mary Ryan, 71, has lost her $32,600 negligence claim against authorities over an incident in which one of the birds knocked her to the ground in Phoenix Park in central Dublin, Ireland. She testified that she had just fed the swan and was walking away when she heard a great flapping of wings and was knocked down, suffering a broken wrist. “Ryan said park commissioners should have put up signs warning the public about ‘the mischievous propensity and uncertain temperament’” of the birds, but Judge Kevin Haugh ruled that evidence had not established that the park’s swans were menacing in general, although the one in question had concededly been having “a very bad day.” (Reuters/Excite, May 25).
* In Canada, the New Brunswick Court of Appeal has ruled improper the disbarment of Fredericton attorney Michael A.A. Ryan, whom the Law Society had removed from practice after finding that he had lied to clients and falsified work, reports the National Post. To conceal his neglect of cases which had lapsed due to statutes of limitations, “Mr. Ryan gave his clients reports of hearings, motions and discoveries that never occurred, and when pressed for details of a supposedly favourable judgment, forged a decision from the Court of Appeal. The clients were eventually told they had won $20,000 each in damages,” but in the end Ryan had to confess that he had been making it all up. “The lawyer has admitted to a long-standing addiction to drugs and alcohol, and told the court he was depressed during the period of his misconduct because of the breakup of his marriage.” (Jonathon Gatehouse, “Court gives lawyer who lied to clients second chance,” National Post, May 18).
* Authorities in Northumbria, England, have agreed to pay thousands of pounds to Detective Inspector Brian Baker, who blames his nocturnal snoring on excessive inhalation of cannabis (marijuana) dust in the line of police duty. Baker says that his spending four days in a storeroom with the seized plants resulted in nasal congestion, sniffing, dry throat, and impaired sense of smell as well as a snore that led to “marital disharmony”. (Ian Burrell, “Payout for policeman who blamed his snoring on cannabis”, The Independent (U.K.), April 11; Joanna Hale, “Drugs inquiry made detective a snorer”, The Times (U.K.), April 11). And updating an earlier story (see May 22), a woman in Bolton, Lancashire has prevailed in her suit against a stage hypnotist whose presentation caused her to regress to a childlike state and recall memories of abuse; damages were $9,000 (AP/ABC News, May 25).
May 25-27 – “Judge buys shopaholic defense in embezzling”. “A Chicago woman who stole nearly $250,000 from her employer to finance a shopping addiction was spared from prison in a novel ruling Wednesday by a federal judge who found that she bought expensive clothing and jewelry to ‘self-medicate’ her depression.” Elizabeth Roach faced a possible 18-month prison term for the embezzlement under federal sentencing guidelines, but U.S. District Judge Matthew Kennelly reduced her sentence, sparing her the big house, in what was evidently “the first time in the country that a federal judge reduced a defendant’s sentence because of an addiction to shopping.” She had bought a $7,000 belt buckle and run credit-card bills up to $500,000. (Matt O’Connor, Chicago Tribune, May 24).
May 25-27 – Columnist-fest. More reasons to go on reading newspapers:
* A New York legislator has introduced a joint custody bill that he thinks would significantly reduce the state’s volume of child custody litigation, but it hasn’t gone anywhere. Leaving aside debates about the other pros and cons of joint custody, one reason it languishes is that it “has been opposed by matrimonial lawyers in the state. ‘They make their living on these divorces,’ said [assemblyman David] Sidikman, a lawyer himself. “… The parents usually start off these cases promising to be adults, but that doesn’t last once the lawyers get involved.” “(John Tierney, “The Big City: A System for Lawyers, Not Children”, New York Times, May 15 (reg)). Bonus: Tierney on the NIMBY-ists who would sue to keep IKEA from building a store in a blighted Brooklyn neighborhood (“Stray Dogs As a Litigant’s Best Friend”, April 13).
* Steve Chapman points out that the recent release of an Oklahoma man long imprisoned for a rape he didn’t commit (see May 9) casts doubt not only on shoddy forensics but also on that convincing-seeming kind of evidence, eyewitness testimony (“Don’t believe what they say they see”, Chicago Tribune, May 13). Bonus: Chapman on the scandal of medical-pot prohibition (“Sickening policy on medical marijuana”, May 17).
* Reparations: “Germans may be paying for the sins of their fathers but asking Americans to stump up for what great-great-great-grandpappy did seems to be rather stretching a point. ” (Graham Stewart, “Why we simply can’t pay compensation for every stain on our history”, The Times (U.K.), March 22).
May 25-27 – “Gone with the Wind” parody case. The legal status of parody as a defense to copyright infringement is still uncertain in many ways, and contrary to a widespread impression there is no legal doctrine allowing extra latitude in copying material from works such as the Margaret Mitchell novel that have become “cultural icons” (Kim Campbell, “Who’s right?”, Christian Science Monitor, May 24; Ken Paulson, “What — me worry? Judge’s suppression of Gone With the Wind parody raises concerns”, Freedom Forum, May 20).
May 24 – “Family awarded $1 billion in lawsuit”. Another great day for trial lawyers under our remarkable system of unlimited punitive damages: a New Orleans jury has voted to make ExxonMobil pay $1 billion to former state district judge Joseph Grefer and his family because an Exxon contractor that leased land from the family for about thirty years left detectable amounts of radioactivity behind from its industrial activities. Exxon “said it offered to clean up the land but the Grefers declined its offers.” The company says the land could be cleaned up for $46,000 and also “claims that less than 1 percent of the land contains radiation levels above naturally occurring levels.” The jury designated $56 million of the fine for cleaning up the land; the total value of the parcel is somewhere between $500,000 (Exxon’s view) and $1.5 million (the owners). (Sandra Barbier, New Orleans Times-Picayune, May 23; Brett Martel, “Jury: ExxonMobil Should Pay $1.06B”, AP/Yahoo, May 22; “Exxon Mobil to Appeal $1 Billion Fine”, Reuters/New York Times, May 23).
May 24 – Humiliation by litigators as turning point in Clinton affair. “It strikes me as relevant that the turning point in the Lewinsky saga was the broadcasting of Clinton’s deposition, an image of an actual human being humiliated for hours on end. It was then that we realized we had gone too far — but look how far down the path we had already gone.” (Andrew Sullivan, TRB from Washington, “Himself”, The New Republic, May 7).
May 24 – Tobacco: angles on Engle. With three cigarette companies having agreed to pay $700 million just to guarantee their right to appeal a Miami jury’s confiscatory $145 billion verdict in Engle v. R.J. Reynolds, other lawyers are piling on, the latest being an alliance of hyperactive class action lawyers Cohen, Milstein, Hausfeld & Toll with O.J. Simpson defense lawyer Johnnie Cochran (“Lawsuit says tobacco industry tried to hook kids”, CNN/AP, May 23; Jay Weaver, “Tobacco firms agree to historic smoker payment”, Miami Herald, May 8; “Tobacco Companies Vow to Fight $145 Billion Verdict”, American Lawyer Media, July 17, 2000; Rick Bragg with Sarah Kershaw, “”Juror Says a ‘Sense of Mission’ Led to Huge Tobacco Damages”, New York Times, July 16, 2000 (reg); “Borrowing power to be considered in tobacco suit”, AP/Seattle Post-Intelligencer, June 1, 2000 (judge ruled that companies’ ability to borrow money could be used as a predicate for quantum of punitive damages)).
May 23 – “Insect lawyer ad creates buzz”. Torys, a large law firm based in Toronto, has caused a stir by running a recruitment ad aimed at student lawyers with pictures of weasels, rats, vultures, scorpions, cockroaches, snakes and piranhas, all under the headline “Lawyers we didn’t hire.” The ad, devised by Ogilvy and Mather, says the firm benefits from a “uniquely pleasant and collegial atmosphere” because it doesn’t hire “bullies, office politicians or toadies”, who presumably go to work for other law firms instead.
However, some defenders of invertebrates and other low-status fauna say it’s unfair to keep comparing them to members of the legal profession. Vultures, for example, “provide a really essential role in terms of removing dead animals and diseases,” says Ontario zoologist Rob Foster. “It’s slander, frankly,” he says, “adding that one exception might be the burbot, a bottom-feeding fish whose common names include ‘the lawyer.’ … ‘Whenever I see a dung beetle portrayed negatively in a commercial, I see red,’ he said yesterday, recalling that in The Far Side comic strip, cartoonist Gary Larson once drew two vermin hurling insults by calling each other ‘lawyer.’” (Tracey Tyler, Toronto Star, Apr. 19). (DURABLE LINK)
May 23 – “Working” for whom? An outfit called the Environmental Working Group has recently taken a much higher profile through its close association with “Trade Secrets”, a trial-lawyer-sourced (and, say its critics, egregiously one-sided) attack on the chemical industry that aired March 26 as a Bill Moyers special on PBS. Spotted around the same time was the following ad which ran on one of the FindLaw email services on behalf of EWG: “Thought the Cigarette Papers Were Big? 50 years of internal Chemical Industry documents including thousands of industry meeting minutes, memos, and letters. All searchable online. Everything you need to build a case at http://www.ewg.org“. Hmmm … isn’t PBS supposed to avoid letting itself be used to promote commercial endeavors, such as litigation? (more on trial lawyer sway among environmental groups)
MORE: Michael Fumento, “Bill Moyers’ Bad Chemistry”, Washington Times, April 13; PBS “TradeSecrets”; Steven Milloy, “Anti-chemical Activists And Their New Clothes”, FoxNews.com, March 30; www.AboutTradeSecrets.org (chemical industry response); ComeClean.org; Ronald Bailey, “Synthetic Chemicals and Bill Moyers”, Reason Online, March 28. The New York Times‘s Neil Genzlinger wrote a less than fully enthralled review of the Moyers special (“‘Trade Secrets’: Rendering a Guilty Verdict on Corporate America”, television review, March 26) for which indiscretion abuse was soon raining down on his head from various quarters, including the leftist Nation (“The Times v. Moyers” (editorial), April 16). (DURABLE LINK)
May 22 – From dinner party to court. “I’m never going to invite people around for dinner again,” says Annette Martin of Kingsdown, Wiltshire, England, after being served with a notice of claim for personal injury from dinner guest Margaret Stewart, who says she was hurt when she fell through a glass and steel dining chair in Miss Martin’s home. Martin says that “up to then we had been good friends,” and that Miss Stewart “looked perfectly fine when she walked out the door that evening. … I feel very strongly about the television adverts that encourage this sort of nonsense. I think the Government should intervene before we become like the Americans and sue over anything.” (Richard Savill, “Dinner party ends with a sting in the tail”, Daily Telegraph, May 19). In other U.K. news, a woman from Bolton, Lancashire, is suing stage hypnotist Philip Green, claiming that during one of his performances “she was induced to chase what she believed were fairies around the hall, drink a glass of cider believing it was water and believe she was in love with Mr. Green,” all of which left her depressed and even for a time suicidal, calling up memories of childhood abuse. (“Woman sues stage hypnotist over ‘abuse memories’”, Ananova.com, May 21) (more on hypnotist liability: March 13). UpdateMay 28: she wins case and $9,000 damages.
May 22 – Razorfish, Cisco, IPO suits. In a decision scathingly critical of the “lawyer-driven” nature of securities class action suits, New York federal judge Jed Rakoff rejected a motion by five law firms to install a group of investors as the lead plaintiff in shareholder lawsuits against Razorfish Inc., a Web design and consulting company. The investor group had been “cobbled together” for purposes of getting their lawyers into the driver’s seat, he suggested. “Here, as in many other such cases, most of the counsel who filed the original complaints attempted before filing the instant motions to reach a private agreement as to who would be put forth as lead plaintiff and lead counsel and how fees would be divided among all such counsel.” Rakoff instead installed as lead counsel Milberg Weiss and another firm, which jointly represented the largest investor claiming losses in the action. “Judge Rakoff noted drily in a footnote that numerous complaints were filed within days that essentially copied the original Milberg Weiss complaint verbatim,” and wondered whether the lawyers filing those copycat suits had taken into account the requirements of federal Rule 11. (Bruce Balestier, “Judge Rejects Lawyers’ Choice of Lead Plaintiff in Razorfish Class Actions”, New York Law Journal, May 8).
Observers are closely watching the onslaught of class action suits filed against Cisco Systems since its stock price declined. Stanford securities-law professor Joseph Grundfest, who “helped craft the 1995 reform act and has worked on both plaintiffs-side and defense cases … said he sees the Cisco case as part of a buckshot strategy by plaintiffs’ lawyers. They are suing multiple technology companies with hopes of extracting a large settlement from at least one. ‘They only need a small probability to make it worth their while,’ Grundfest said. ‘How much does it cost to write a complaint?’”. (Renee Deger, “Cisco Inferno”, The Recorder, April 27). Shareholder suits in federal court are headed toward record numbers this year in the wake of the dotcom meltdown (Daniel F. DeLong, “Lawyers Find Profit in Dot-Com Disasters”, Yahoo/ NewsFactor.com, May 14; see also Richard Williamson, “Shareholder Suits Slam High-Tech”, Interactive Week/ZDNet, Dec. 19, 2000).
May 22 – Welcome SmarterTimes readers. Ira Stoll’s daily commentary on the New York Times mentioned us on Sunday (May 20 — scroll to first “Late Again”). And Brill’s Content has now put online its “Best of the Web” roundtable in which we were recommended by federal appeals judge Alex Kozinski (May — scroll about halfway down righthand column).
May 21– Six-hour police standoff no grounds for loss of job, says employee. “A formerly suicidal insurance executive who lost his job after a six-hour standoff with police at Park Meadows mall [in Denver] is suing his former employer for discrimination under federal and state laws protecting the mentally disabled. The 43-year-old plaintiff, Richard M. Young, alleges he was wrongfully terminated from Ohio Casualty Insurance Co. after the company interpreted a suicide note he wrote to be his letter of resignation. … The civil complaint says Young was on emergency medical leave for an emotional breakdown May 29, 2000, when he drove to the shopping center’s parking garage and was spotted on mall security cameras with a revolver. … Douglas County sheriff’s deputies finally coaxed him into surrendering”. His suit seeks back pay, front pay and punitive damages. (John Accola, “Man who was suicidal sues ex-employer for discrimination”, Rocky Mountain News, May 18). (DURABLE LINK)
May 21 – “Anonymity takes a D.C. hit”. If Rep. Felix Grucci has his way, you won’t be able to duck into a library while on the road to check your Hotmail; the New York Republican has “introduced legislation requiring schools and libraries receiving federal funds to block access from their computers to anonymous Web browsing or e-mail services. … Grucci says it’s necessary to thwart the usual suspects, terrorists and child molesters.” (Declan McCullagh, Wired News, May 19). And did you know that it would be unlawful to put out this website in Italy without registering with the government and paying a fee? New regulations in that country are extending to web publishers an appalling-enough-already set of rules that require print journalists to register with the government. Says the head of the Italian journalists’ union approvingly: “Thus ends, at least in Italy, the absurd anarchy that permits anyone to publish online without standards and without restrictions, and guarantees to the consumer minimum standards of quality in all information content, for the first time including electronic media.” (Declan McCullagh’s politechbot, “Italy reportedly requires news sites to register, pay fees”, April 11; “More on Italy requiring news sites to register, pay fees”, April 12) (via Virginia Postrel’s “The Scene”, posted there May 6). (DURABLE LINK)
May 21 – “Patients’ rights” roundup. Well, duh: “Doctors supporting patients’ rights bills have suddenly become alarmed that some of the proposals could boomerang and expose them to new lawsuits.” (Robert Pear, “Doctors Fear Consequences of Proposals on Liability”, New York Times, May 6 (reg)). “Consumers do not consider the right to sue health insurers over coverage issues a top healthcare priority, according to new survey data released by the Blue Cross and Blue Shield Association (BCBSA),” which is of course an interested party in the matter; a right to sue “finished last among 21 major health issues that consumers were asked to rank.” (Karen Pallarito, “Poll: Right to sue HMOs low priority for consumers,” Reuters Health, April 26 (text) (survey data — PDF)). And if liability is to be expanded at all, Congress should consider incorporating into the scheme the “early offers” idea developed by University of Virginia law professor Jeffrey O’Connell, which is aimed at providing incentives for insurers to make, and claimants to accept, reasonable settlements at an early stage in the dispute (John Hoff, “A Better Patients’ Bill of Rights,” National Center for Policy Analysis Brief Analysis No. 355, April 19). (DURABLE LINK)
MORE: Greg Scandlen, “Legislative Malpractice: Misdiagnosing Patients’ Rights”, Cato Briefing Papers, April 7, 2000 (executive summary) (full paper — PDF); Gregg Easterbrook, “Managing Fine”, The New Republic, March 20, 2000.
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November 30 – The right to be poisoned. Large numbers of urban apartments continue to have old lead-based interior paint on their walls, and you might think it makes obvious sense from a public health standpoint to take precautions to keep children who already show dangerous levels of lead in their blood from moving into such units. At least, you might think so if you weren’t among the “public interest” lawyers who’ve now successfully sued Northern Brokerage, a Baltimore landlord, over its policy of not letting lead-affected kids move into apartments where they might be exposed to more of the same. It’s a discrimination issue, you see: Ruth Ann Norton, executive director of the Coalition to End Childhood Lead Poisoning, said it’s “hugely discriminatory” to turn families away from such housing just because their kids already display high lead levels. In a settlement earlier this month, “Northern Brokerage agreed to no longer require testing for children under 6 and to pay a total of $13,000 in damages to the plaintiffs and their attorneys.” Of course, if the kids’ blood-lead levels keep rising after they move in, other lawyers might very well step forward to sue the same landlords for every last dime they possess. But that’s only fair, too, right? (John Biemer, “Landlord settles lawsuit for refusing to rent to lead-poisoned families”, AP/FindLaw, Nov. 16).
November 30 – Welcome Mother Jones readers. MoJoWire’s “Alternative Election News Coverage” summarized one of our commentaries about a Gore lawyer’s dimple flip-flop (see Nov. 24). “Not everyone is happy that it appears the next president will be chosen by what some have called a tournament of lawyers. America’s litigation explosion was itself a subtext of the campaign, critics point out. Mr. Bush has called for tort reform to limit the ability of class-action lawyers to win big judgments. Mr. Gore has adopted the traditional Democratic Party position of trial-lawyer defense.” (Peter Grier, Justin Brown and Francine Kiefer, “All Florida becomes a stage for lawyers”, Christian Science Monitor, Nov. 30 — quotes our editor). And we evidently spoke too soon when we praised a New York Times editorial on the Florida mess immediately after the election (see Nov. 10), since within days the paper had reversed its editorial line almost completely on the relevant issues (Elizabeth Arens, “Times falls back into line”, National Review Online, Nov. 28).
November 30 – Updates. Further developments in stories previously covered in this space:
* “Samuel Feldman, convicted in September for a two-year spree of bread and cookie destruction in a Yardley supermarket (see Oct. 6), was sentenced [Nov. 20] to 180 days’ probation and ordered to make $1,000 in restitution payment.” He also got a severe scolding from the judge (Oshrat Carmiel, “Bucks bread squeezer sentenced to probation”, Philadelphia Inquirer, Nov. 21).
* Falling upward in Washington state: “An assistant attorney general who lost one of the state’s largest civil cases and later shared blame for missing the deadline to appeal the case has been promoted to a new job in state government.” As we reported Sept. 13, state attorney general Christine Gregoire missed a deadline to appeal a $17.8 million verdict against the state, a goof that aroused widespread consternation in Evergreen State legal circles. Now assistant attorney general Loretta Lamb, whom an investigation saddled with some of the responsibility for the mix-up, has been appointed assistant vice president of Washington State University for personnel and business administration. (Eric Nalder, “Attorney in missed deadline case gets new job”, Seattle Times, Sept. 29).
* Although a Bridgeport jury last year gave Microsoft an almost complete victory in an antitrust suit filed by competitor Bristol Technologies (see Aug. 31, 1999), awarding only a token dollar, federal judge Janet Hall upped the award under a Connecticut trade statute to $1 million and Bristol is now asking for a new trial (Thomas Scheffey, “Connecticut Judge Socks Microsoft with $1 Million in Punitives”, Connecticut Law Tribune, Sept. 11; “What was the Microsoft Jury Thinking?”, Nov. 27).
November 29 – After an air crash, many Latin “survivors”. “Three of the 88 passengers and crew who died when Alaska Airlines Flight 261 crashed into the Pacific Ocean on Jan. 31 allegedly had something in common apart from their tragic deaths: They cheated on their partners, led secret lives and fathered secret illegitimate children, all of whom were growing up in Guatemala.” Or at least that’s the story being told by Coral Gables, Fla. lawyer Robert Parks, who’s filed wrongful-death suits against the airline, Boeing and other defendants on behalf of the alleged secret survivors. “The crash victims’ undisputed relatives and close friends say the stories have been fabricated in an effort to capitalize on the tragedy.” In one case, a 53-year-old San Francisco man who perished on the doomed flight is alleged to have recently fathered two Latin American children who deserved to collect for his decease, a story that ran into trouble when his outraged gay partner of twenty years, Dale Rettinger, 63, stepped forward to challenge it.
David Lietz, a Washington, D.C. lawyer hired by Rettinger to investigate the case, said: “We do this kind of work all the time and in the course of doing it, we’ve seen people who make their living lining up victims. It’s not uncommon to find people in Mexico or Central America who try to craft these stories and shop them around to lawyers,’ Lietz said. ‘It’s the aviation equivalent of ‘bus jumping,’ which is a bunch of people seeing a bus accident and running up to it so they can claim whiplash or something.” Many such claims come from Latin America, where “records are very bad and (false claimants) will swear under oath but say anything they want,” he added.
Families of two other victims also named as supposed secret fathers of Latin American children also reacted with indignation or incredulity. However, Parks, the Florida lawyer pressing the cases, says criticism is misplaced. “We wouldn’t have filed the lawsuits if we didn’t feel these people had claims. I don’t deal in coincidences … I’ve been involved in aviation litigation over 30 years, a lot in Central America and South America,” he said. “Sometimes in these areas, truth is stranger than fiction. … The process is going to sort this out. No one is trying to get something that isn’t there”. Parks is also preparing a claim on behalf of alleged secret offspring of yet a fourth Alaska Air crash victim, this time from a still unnamed Latin American country. (Scott Winokur, “Capitalizing On a Crash? Suits allege secret lives for some on fated Alaska Airlines flight”, San Francisco Chronicle, Nov. 26) (via Aero News Network)(and see April 10, 2001, Aug. 3, 2001) (DURABLE LINK)
November 29 – “Clinton readies avalanche of regulations” “The Clinton administration is striving mightily to pour forth regulations on the environment, labor, health care and other controversial topics before Jan. 20 brings a new occupant to the White House.” So-called midnight regulations are especially common in cases where a new party is coming in: “The Jimmy Carter administration became renowned for stuffing the Federal Register with 23,000 pages of regulations during the three months before Ronald Reagan took office in 1981.” The Mercatus Center at George Mason University has launched a website, RegRadar.com, to monitor the last-minute onslaught (Robert A. Rosenblatt and Elizabeth Shogren, L.A. Times/Chicago Tribune, Nov. 26).
November 29 – “Hush — good news on silicone”. More details on the release of that new study (see Oct. 23) exonerating breast implants of a once-feared link to cancer, which the National Cancer Institute commissioned at great expense but whose results it quietly buried: “NCI press representative Brian Vastag says he was ‘forbidden’ by his superiors from touting the impending release of this study the way he normally does with other public health research. … So Mr. Vastag, who had already announced he was leaving NCI, defied his bosses and e-mailed names in his media Rolodex. ‘It drives me crazy when tax-funded public health research doesn’t make it to the public,’ he said.” (John Meroney, Washington Times, Nov. 22).
November 28 – Highway responsibility. A Fort Lauderdale jury has awarded $7 million to Diana Mancuso, 43, who was badly hurt when her car was hit broadside by a drunk driver six years ago. The drunk driver, Shane Peter Leanna, who was 23 at the time, served nearly two years in prison. However, the ones being ordered to pay the bill are McFadden Leasing Inc., which owned the sport utility vehicle Leanna was driving, and Next Generation Inc., which leased it to him. (“Woman gets $7 million in DUI case”, AP/New York Times, Nov. 23). And last month the mother of late National Football League star Derrick Thomas went to court to blame various organizations for his death following a crash in which he had been speeding on an icy road without wearing a seat belt. The lawsuit names General Motors Corp. as a defendant as well as local ambulance service Emergency Providers Inc. and Liberty Hospital, both of which tried to save Thomas after the accident and may now have reason to be sorry they got near him. (Cindy Lin, “Derrick Thomas (1967-2000)”, ChannelOne.com, Feb. 9; Kenny Morse, editorial, MrTraffic.com, Feb. 10; “Derrick Thomas’ mother sues GM”, Jefferson City News-Tribune, Oct. 11). Update Aug. 18, 2004: jury rejects suit against GM. (DURABLE LINK)
November 28 – “NCAA Can Be Sued Under ADA, Federal District Judge Rules”. “In a major defeat for the National Collegiate Athletic Association, a federal judge has ruled that it qualifies as a “place of public accommodation” under the Americans with Disabilities Act and can therefore be sued by a learning-disabled student who says its discriminatory rules barred him from getting an athletic scholarship.” (Shannon P. Duffy, Legal Intelligencer (Philadelphia), Nov. 14).
November 28 – Federal power over mud puddles? The Supreme Court is expected to resolve this term whether the federal Clean Water Act applies to “isolated wetlands that have no connection to major rivers or drainage systems flowing from state to state.” Environmental groups favor wide federal authority over “prairie potholes” and the like, which they say are important to migratory waterfowl. A brief supporting property owners, however, counters: “Under the Corps’ [of Engineers] interpretation of the [Act], its regulatory authority stretches to virtually every body of water in the country — including seasonally wet areas in homeowners’ backyards — because virtually any water body is or could be used as a feeding or resting place by some of the 5 billion birds that migrate over the continental United States each year.” The brief also warns: “The Corps’ rationale would justify federal regulation not just of all waters but of virtually all human activity.” (Warren Richey, “Wetlands and federal power”, Christian Science Monitor, Oct. 31).
November 27 – Follow instructions, please. Well before Election Day, the Gore campaign was ready for a massive recount campaign based on a 1994 manual called The Recount Primer, whose tactical advice presciently foreshadows many recent developments (Ryan Lizza, “Overtime: How the Gore campaign came back from the dead”, The New Republic Online, Nov. 16).
“Note: If you make a mistake, return your ballot card and obtain another. AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD. –Voting instructions, Palm Beach County, Florida”
“The capitalized words appeared on the voting guide clearly posted in every Florida polling station that used Votomatic machines and in leaflets mailed to many voters in Palm Beach. They are the only instructions on the flyer in bold capitals. … The [Gore] position, so far as I can glean, is that … [a] vote should be counted … even if the voter blithely ignores clear voting instructions” … A Gore victory through judicially imposed, loosely interpreted hand counts in South Florida will resonate across the country as the triumph of a liberalism that has replaced responsibility with victimhood, law with legalism, character with partisanship. Rather than challenging voters to a new civic responsibility, the Democrats are defining down democracy to include those who cannot even be held responsible for following a simple ballot instruction.” (Andrew Sullivan, “TRB from Washington: Bad Intent”, The New Republic Online, Nov. 22; see also commentaries on andrewsullivan.com, and Charles Krauthammer, “There is a good reason that casting a ballot is a precise act”, Dallas Morning News, Nov. 24). “[I]t is the voter’s duty to take reasonable care to record a vote. To correct that judgment after the fact is unfair.” (“Dimples aren’t votes” (editorial), Miami Herald, Nov. 24).
November 27 – Asbestos litigation destroying more companies. The lawsuits’ relentless logic is devouring more leading industrial companies. Armstrong World Industries, the nation’s pre-eminent manufacturer of flooring, failed to repay $50 million in commercial paper that came due Wednesday (Reuters/Yahoo, Nov. 22), and a Nov. 16 Bloomberg story said its parent, Armstrong Holdings Inc., may seek Chapter 11 bankruptcy protection. The company’s stock, which stood at $36 in January, on Friday closed at 1 3/16 (stock chart). In early October (see Oct. 6-9) Owens-Corning, the number one maker of insulation, filed for bankruptcy protection (asbestos product makers list, law firm of Patten, Wornom, Hatten & Diamonstein).
Many of these concerns’ involvement with asbestos was both remote in time and tangential to their main operations. Of Crown Cork & Seal, the large packaging concern that closed Friday at 4 5/8, down from 24 in January and 50 in 1997, Yahoo/Reuters reported as follows: “Its only ties to asbestos-related products stem from an acquisition more than 40 years ago of a company that had a subsidiary that made insulation products, said Andrew O’Conor, an analyst with Merrill Lynch. It sold the insulation business three months after acquiring it, he said. ‘They’re more of a peripheral player,’ O’Conor said. ‘It was a tiny thing.’” (stock chart; “Crown Cork jumps on reevaluation of asbestos claims”, Yahoo/Reuters, Nov. 20). For trial lawyers’ ingenuity in identifying new defendants to name in suits, see June 1 and “Thanks for the Memories“.
Each removal of another solvent defendant shifts more litigation pressure onto remaining defendants. Owens-Illinois, the prominent glass and packaging concern, closed Friday at 3 13/16, down from 25 in January and 48 in 1998 (stock chart). Federal-Mogul (brakes, auto parts) closed at 2, down from 24 in January and 70 in 1998 (stock chart). W.R. Grace, the giant chemicals manufacturer much in the news lately because of the contamination of its Montana vermiculite mining operations with naturally occurring asbestos, closed Friday at 2 1/2, down from 15 in January and more than 20 earlier. (stock chart). Investment analyst Jim Cramer wrote last month that Armstrong, Federal-Mogul, and Grace, all longtime mainstays of industrial portfolios, now find themselves “on a death march to zero … I am combing through this embattled trio looking for signs that they won’t meet Owens’ fate. I haven’t found any yet.” (James J. Cramer, “The Death of the Value Stalwarts”, TheStreet.com, Oct. 25). Of the billions sunk in the litigation, a very high percentage goes toward the process itself, or other purposes other than actual compensation of workers for injuries. Meanwhile, intensive advertising and recruitment campaigns by law firms continue to attract thousands of new asymptomatic claimants into the system, while asbestos plaintiff’s lawyers are numbered prominently among instigators of the “tobacco round” as well as among the most prominent financial supporters of the Democratic Party and the Al Gore campaign. (DURABLE LINK)
November 26 – Sunday election special: votes only lawyers can see. “He squinted and stared, but Bob Kerrey was blind to the party line.” The Nebraska senator was making the South Florida rounds to talk up the Democratic line on the virtues of hand recounts and patience, but when he squinted at a ballot allegedly sporting an actual “dimpled chad” of the sort his fellow Democrats want to count, Kerrey admitted he couldn’t see it. “‘I better get out of here before I get you guys in trouble,’ Kerrey reportedly joked to his party’s team. But senator, isn’t it a little scary to decide an election with votes that only lawyers can see?” (Brad Hahn, “Nebraska senator sees sights — but can’t see chads”, South Florida Sun-Sentinel, Nov. 25; Drudge Report transcript of Broward dimple-asserting). “On my local television station, the latest update was followed by the reassuringly familiar commercial for personal-injury lawyers Welch, Graham and Manby — ‘where winning is no accident’. That’s the spirit!” (Mark Steyn, “Even Al’s friends are sick of his dimples”, Sunday Telegraph (UK), Nov. 26).
On Saturday, the Broward County Election Canvassing Board conveniently decided to go looking for dimpled chads on 500 previously disqualified absentee ballots, even though on an absentee ballot the “voter can clearly see how he voted and whether the chad fell out, unlike the Votamatic machines used at polling places in Broward.” Did demonstrators, as Democrats claim, “intimidate[ ] the Miami-Dade canvassing board into canceling its planned recount [?]. Nonsense, say board members. ‘I was not intimidated,’ David Leahy told CNN. ‘My vote had nothing to do with the protests. It simply had to do with not enough time.’” (John Fund, “Gore’s Electoral ‘Lock Box’”, Opinion Journal (WSJ), Nov. 25).
“Vice President Gore’s effort to convince Florida election officials to count indented or ‘dimpled’ ballots as votes for him runs contrary to the practice in almost all jurisdictions that use the punch card system, with the notable exception of Texas, the home state of George W. Bush, his rival for the presidency. In the 38-year history of punch card voting, only a small number of communities have counted these ballots as valid, voting experts said. R. Doug Lewis, executive director of the Election Center, a nonpartisan group that trains and certifies election supervisors, said that to his knowledge, with the exception of Texas, ‘no election official has counted a dimpled chad as a vote. Instead they tend to turn the question over to a judge, and historically courts around the country have said dimpled chads aren’t clear enough for them,’ Lewis said, stressing that he is not referring to Florida.” (John Mintz, “Most states don’t count dimples”, Washington Post, Nov. 24). Despite the Florida Supreme Court’s wholesale rewrite of the state’s election law after the fact, “it is still possible that the will of the people will prevail. … Broward County has for 10 years refused to count ‘dimpled chad’ as a vote. Now, it has changed that rule. … It may become necessary for [the Florida legislature] to exercise its responsibility and ensure a fair outcome to the presidential election of 2000.” (“Elections: A grand larceny” (editorial), Florida Times-Union (Jacksonville), Nov. 24).
“Today, the courts — that is, the lawyers – run nearly every aspect of American life. … They tell us how much tobacco is appropriate. Who may buy and sell guns — and how. What level of care governments must provide the needy. They set taxes and school curricula. Now they mean to pick a president.” (“Government by lawyers” (editorial), New York Post, Nov. 24 — cites our editor). “Where has abandoning law and tradition left us? Courts have put the fate of the election in the hands of Democratic partisans reviewing pregnant chads only in Gore’s strongholds. … Is it any wonder that the rest of the world is laughing at us?” (“Comedy of errors of the lowest sort” (editorial), Chicago Sun-Times, Nov. 24).
November 24-26 – Gore lawyers mishandled Illinois precedent. Lawyers for Vice President Al Gore repeatedly cited, and the Florida Supreme Court obligingly quoted at length and with approval, an Illinois Supreme Court opinion from 1990 which directed election officials to consider voters’ intent, which the Gore team suggested provided a rationale for counting punchcard ballots with the now-fabled “dimpled chad”. But in fact “the Illinois court actually affirmed a trial judge’s order to exclude dented ballots,” and a Cook County attorney who provided the Gore effort with an affidavit to the contrary last week now concedes that his recollection was mistaken (Jan Crawford Greenburg and Dan Mihalopoulos, “Illinois case offers shaky precedent”, Chicago Tribune, Nov. 23). “Doesn’t [Gore attorney David] Boies now have a professional obligation to inform the courts and others of his error?,” asks Mickey Kaus (“Hit Parade”, Kausfiles.com)
The generally liberal Miami Herald, which endorsed Gore in the election, editorializes that the Florida high court “made hash of Florida’s election law” and agrees with Gov. George W. Bush’s charge that the court “has changed the rules after the election”. It cites “the court’s unseemly willingness to stand in for the Legislature and create a new election scheme … by deciding that the counts could continue until as late as Monday morning, the justices have substituted their own deadlines for those that have long existed in state law and that Secretary [of State Katherine] Harris was sworn to uphold.” (“A muddled ruling raises questions of fairness” (editorial), Miami Herald, Nov. 23). On the New York Times op-ed page, New Republic legal affairs correspondent Jeffrey Rosen calls the Florida court’s rewrite of state election law “a bold example of judicial activism” in which the court “vastly overplayed its hand” and which “has made the justices appear to be partisans rather than neutral arbiters”. Rosen says the ruling allows Republicans to “argue plausibly that activist Democratic judges changed the counting rules in the middle of the game, only after it was obvious that the Democratic candidate needed dimpled ballots to win”. (“Florida’s Justices Pushed Too Far”, Nov. 23).
November 24-26 – “Qwest ordered to pay AT&T $350 million”. A Travis County, Texas jury has voted $1.2 million in actual damages and $350 million in punitive damages against telecommunications carrier Qwest for negligently cutting an AT&T fiber-optic phone line on several occasions in 1997. “It’s not unique that a fiber line gets cut. It’s unique it gets to [a] jury and gets this far down the road,” an investment analyst told the Austin American-Statesman. “We tried to send a message,” said a juror, as usual. “The only way to do that was to make the stockholders feel it in the bottom line.” (AP/CNet, Nov. 15).
November 24-26 – “Company Is Told to Stay and Face New Union”. A Los Angeles federal judge, “acting on a union’s complaint, has … issued a preliminary injunction preventing Quadrtech, a small manufacturer of earrings and ear-piercing machines, from laying off 118 newly unionized workers and moving its manufacturing operations to Tijuana until labor complaints against it are resolved. … Lawyers at the National Labor Relations Board, which petitioned the court on behalf of the workers, said this was the first time an American company trying to keep out a union had been prevented from leaving the United States.” (Anthony DePalma, New York Times, Nov. 23).
November 22-23 – “Gore’s point man argued against dimples in 1996″. Attorney Dennis Newman of Boston is now the point man in charge of putting Al Gore in the White House by insisting that “dimples show the true intent of the voter. Voters caused those dimples. Dimples should count. Four years ago, in a similar election spat, Newman took a much different stand. Employing his best legal tactics on behalf of a Democrat holding a slight lead in a primary race for Congress, Newman scoffed at the idea of counting the tiny indentations as votes.” Back in that case, Newman endorsed the series of propositions now urged by Republicans about the tiny indentations: that they could have been inflicted by later handling, that they could represent hesitation marks (the kind coroners find on suicides — ed.), and so forth. (Joel Engelhardt, Palm Beach Post, Nov. 22). Although the press has widely echoed the assertion of Gore attorneys that federal courts stay out of state electoral disputes — even, purportedly, when the elections are for federal offices such as president — Alabama Attorney General Bill Pryor argues that there is squarely opposed precedent to the contrary in the Eleventh Circuit, which includes both Alabama and Florida. In Roe v. Alabama (1995), the Eleventh Circuit found a federal constitutional violation in state balloting irregularities that accompanied a very close race, including a court order which appeared to change the rules after the election as to which votes would count. Moreover, the federal court intervened in Roe even though the election was for Alabama state office, not federal office (“Attorney General Bill Pryor and Secretary of State Jim Bennett File Friend of the Court Brief in Presidential Election Dispute”, Office of the Alabama Attorney General, Nov. 20, links to PDF document). (DURABLE LINK)
November 22-23 – “Descent into the lawyerclysm”. Humorix, the Linux-oriented parody site, takes off from the Florida election mess to imagine the lawsuit-ridden dystopia of the not too distant future: “Nuclear weapons are scrapped and replaced by subpoenas. … While most forms of physical violence ceases, the ensuing legal violence is far, far worse — a fleet of lawyers can bring poverty and bankruptcy to billions of innocent civilians within a matter of hours. Stage 6. World economy collapses under the weight of overlawyering.” (Jon Splatz, Nov. 19).
November 22-23 – Don’t do it, Tillie! Tillie Tooter, 84, gained national attention in August when she survived for three days trapped in her wrecked car, which had gone over a Florida interstate highway abutment; she “survived by capturing rainwater in a steering wheel cover and divvying up a stick of gum, a cough drop and a mint.” Now a lawyer is representing her and has “put her rescuers on notice that she intends to sue them for not finding her sooner”. Jim Romenesko at Obscure Store has some advice for her: you’re an old lady, you really don’t want to spend your remaining days hanging around lawyers and courtrooms. (Jodie Needle, “Tillie Tooter to sue Lauderdale, FHP for not finding her sooner in wreck”, Fort Lauderdale Sun-Sentinel, Nov. 16).
November 22-23 – France OKs wrongful-birth suit. “A severely disabled French boy has won a landmark case against medical authorities for allowing him to be born rather than aborted.” Josette and Christian Perruche sued doctors for negligently failing to realize that Josette had contracted rubella (German measles) during her pregnancy; their son Nicolas was born deaf, part-blind and with mental disabilities as a result. “Would my son really have wanted to live if he’d known he had all these disabilities?” asked Christian. “That’s the question I’m posing.” (“Boy compensated for being born”, BBC, Nov. 17).
November 22-23 – “eBay suit wins class-action status”. San Diego Superior Court Judge Linda B. Quinn has granted class-action status to a suit against eBay that “alleges the largest Internet auction company is liable for facilitating the sale of fake sports memorabilia”. (“eBay suit wins class-action status”, Bloomberg News/CNet, Nov. 19) “If successful, the suit could undermine eBay’s business model,” the Industry Standard reported earlier this year (see July 13). “Legal experts say that if the company can be held liable for the actions of its users, it is likely to face a flurry of suits that would severely handicap its business.” Also earlier this year four New Jersey teens “were treated for vomiting and disorientation after taking a substance called dextromethorphan, or DXM”, which one of them had bought on the online flea market. (Mylene Mangalindan, “Is eBay Liable in Drug Sale?”, WSJ Interactive/ZDNet, May 31)(see letter, Jan. 16).
November 22-23 – Canada reins in expert witnesses. “The Supreme Court of Canada accelerated its campaign against doubtful expert witnesses [Nov. 9], ruling that ‘novel scientific evidence’ from a Quebec sexologist had no place in a criminal trial.” Like the U.S. Supreme Court in its landmark 1994 Daubert decision, the Canadian high court urges judges to take responsibility as “gatekeepers” to exclude dubious testimony. (Kirk Makin, “Top court reins in use of experts”, The Globe and Mail (Toronto), Nov. 10).
November 21 – The O.J. trial of politics. By early in the morning after the long election night, “the phones began ringing at the 16-lawyer West Palm Beach personal injury firm Lytal, Reiter, Clark, Fountain & Williams, which claims credit for 22 multimillion-dollar verdicts and settlements. Local Democratic staffers had used the firm’s conference room to make get-out-the-vote calls on Election Day, and the phones were still there.” (Peter Aronson, “Lawyers take center stage”, National Law Journal, Nov. 20). “This is the O.J. trial of politics,” the Boston Globe quotes GOP lawyer Tom Rath as saying, while the Wall Street Journal reports that clients in high-profile cases turn to attorney David Boies “as much to signal a declaration of war as anything else.” (Both quoted in Deborah Asbrand, “David Boies Rides Again”, Industry Standard/Law.com, Nov. 17). It’s a class action suit with the presidency rather than the coffers of the tobacco or gun industries as the target, argues the Wall Street Journal‘s editorial side (“Al Gore’s Class-Action”, Nov. 17). When Gore brings out the lawyers by the hundreds to help him, he’s bringing out his base (Rich Lowry, “Lawyers: The Gore Hard Core”, New York Post/National Review Online, Nov. 20).
November 21 – Burglar sues for compensation. In Australia, “[a] man who broke into a house and attacked the home owner when he was discovered has launched a civil action against his victim for compensation.” Shane Colburn says he is still suffering “physically and emotionally” from the aftermath of the 1997 incident, in which he scuffled with Peter Vucetic and Giavanna Grah and was attacked by the couple’s dogs. (“The thief who sued his victim”, Daily Telegraph (NSW, Australia), Nov. 17).
November 21 –Behind “Boston Public”. “[David E.] Kelley, an ex-lawyer [and creator of hit TV show Ally McBeal and the new Boston Public], has made this subject [overregulation] the obsession of every TV show he has written. Whenever teachers or administrators try to help or discipline students, they immediately butt up against their or their bosses’ anxiety about litigation. The worst, in Kelley’s book, are sexual harassment laws, which he started railing about in Ally McBeal long before Monica Lewinsky got down on her knees. But there are also digs at anti-discrimination laws and an episode about a degrading school board regulation that requires all teachers to submit to thumb printing since they work with children. . . . people who should be looked up to and supported are met instead by automatic suspicion.
“So what’s the parallel between Boston Public and the current crisis? That you can’t educate children, just as you can’t run a country, in an atmosphere of rancor and litigiousness, when the people who are supposed to be in charge are dismissed in a knee-jerk fashion as corrupt and illegitimate by the people they’re supposed to be governing.” (Judith Shulevitz, “Culturebox: The Ungovernable Boston Public”, Slate, Nov. 10; “Public-School Teachers, Those Ink-Stained Wretches”, Nov. 14 (more on teacher fingerprinting)).
November 21 – Reckless skier convicted. Nathan Hall has been convicted of criminally negligent homicide in the case arising from his fatal collision with another skier three years ago on the slopes at Vail, Colo. (see Sept. 25-26) (Steve Lipsher, “Skier verdict closes chapter”, Denver Post, Nov. 18; “Ski Racer Convicted in Homicide”, AP/FindLaw, Nov. 17).
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November 10-12 – Election special: litigating our way into a constitutional crisis? It isn’t often that a New York Times editorial exactly captures our own reaction to public events, but we wouldn’t have changed a word in this morning’s. It expresses concern about the “Gore campaign’s rush to litigation” and the possibility that matters might escalate into “scorched-earth legal strategy” on both sides of the presidential contest: “it is worrying that Mr. Gore and a legal team led by Warren Christopher, the former secretary of state, would announce their support for a lawsuit while the mandatory recount is still going on and while seven days remain for the arrival of overseas absentee ballots. It is doubly worrying that some Gore associates are using the language of constitutional crisis and talking of efforts to block or cloud the vote of the Electoral College on Dec. 18 and of dragging out the legal battle into January….
“We take very seriously the fairness issues raised by the ballot confusion in Palm Beach County and understand the public frustration or even outrage attendant upon the possibility of having the popular will thwarted by procedural errors, especially when a presidential outcome hangs in the balance. The problem is that potential remedies, such as a new election in Palm Beach County, seem politically unsound and legally questionable. The sad reality is that ballot disputes and imperfections are a feature of every election. It will poison the political atmosphere if presidential elections, in particular, come to be seen as merely a starting point for litigation.” (“A Fateful Step Toward Court” (editorial), New York Times, Nov. 10) (reg). Also: “Senator Robert G. Torricelli, Democrat of New Jersey, warned against getting mired in the courts. ‘I want Al Gore to win the election,’ Mr. Torricelli told reporters, ‘but more than that, I want somebody to win this election. There is going to have to be a very compelling case for anybody to take this into a court of law. It’s a downward spiral. It may begin in Florida, but it can go to other states and ultimately the presidency of the United States should not be decided by a judge.’” (R.W. Apple Jr., “Gore Campaign Vows Court Fight Over Vote, With Florida’s Outcome Still Up in the Air”, New York Times, Nov. 10). (DURABLE LINK)
November 10-12 – Election special: Nader non grata. Many liberals are furious with Ralph Nader for apparently costing Al Gore the election, with the Times rounding up indignant quotes from union, feminist and environmentalist officials. “Senator Joseph R. Biden Jr. of Delaware, echoing the sentiments of several other Democrats on Capitol Hill, said: ‘Ralph Nader is not going to be welcome anywhere near the corridors. Nader cost us the election,’ … Several Democrats said today that they expected many longtime financial supporters of Mr. Nader to cut off their contributions to organizations with which he is affiliated” — though, frustratingly, the article says nothing about what kind of supporters these might be (trial lawyers? unions?) thus accommodating Nader’s longtime practice (see June 13, Andrew Tobias in Worth) of concealing his sources of financial support (James Dao, “Angry Democrats, Fearing Nader Cost Them Presidential Race, Threaten to Retaliate”, New York Times, Nov. 9 (reg)). At an election-night gathering at Bill and Hillary Clinton’s hotel room, according to Lloyd Grove of the Washington Post, publishing figure Harry Evans exclaimed “I want to kill Nader!”, to which Sen.-elect Hillary Clinton replied, “That’s not a bad idea!”, immediately followed by a collective cry of “That’s off the record!” — too late (Lloyd Grove, “The Reliable Source”, Washington Post, Nov. 9) “My only hope is that no matter who wins, he will name Ralph Nader the first U.S. ambassador to North Korea. That way Ralph can spend his days with another egomaniacal narcissist, Dear Leader Kim Jong Il, and get a real taste of what a country that actually follows Mr. Nader’s insane economic philosophy — high protectionism, economic autarky, anti-markets, anti-globalization, anti-multinationals — is like for the people who live there.” (Thomas L. Friedman, “Original Sin”, New York Times, Nov. 10) (DURABLE LINK)
November 10-12 – Obese soldiers class action. When kicking out servicepeople for gaining too much weight, the U.S. armed services have insisted that they return their enlistment bonuses. “Under a federal ruling handed down last week, they’ll be able to sue the Pentagon in a class-action lawsuit to recover damages.” (Justin Brown, “How far can military go in punishing obese soldiers?”, Christian Science Monitor, Nov. 9).
November 10-12 – Dubious death-penalty science. The Supreme Court in 1993 (Daubert v. Merrell Dow) instructed lower federal courts to curb the use of unreliable expert testimony in civil litigation, with highly beneficial results for the quality of justice. Oddly, the Court has failed to tighten the corresponding rules for capital criminal cases, although there is evidence that some expert testimony that sends prisoners to Death Row would flunk a Daubert test, notably testimony which purports to predict future dangerousness with a high degree of certainty. “The use of psychiatric testimony in capital cases has also been sharply criticized by Peter Huber, a fellow at the Manhattan Institute in New York and a former law clerk for Justice Sandra Day O’Connor whose influential book denouncing junk science is widely credited with sparking the legal movement to limit expert testimony.” (Henry Weinstein, “Death Penalty Debate — Can New Violence Be Predicted?” Los Angeles Times, Nov. 6). Also: some critics are questioning whether fingerprint identification, among the pillars of forensics for a century or more, is really 100 percent reliable as is commonly assumed (Simon Cole, “The Myth of Fingerprints”, Lingua Franca, Nov.).
November 10-12 – Mickey Kaus on constitutional activism. The Slate and Kausfiles.com columnist worries that Bush high court nominees would go too far in striking down Congressional legislation on federalism grounds, but expresses even more alarm at the implicit activist judicial philosophy of Vice President Gore, which recalls “my law school days, in the mid-1970s, when the rights-making machine of legalistic liberalism was still churning away. …When Gore babbles eagerly about how ‘the Constitution ought to be interpreted as a document that grows with … our country and our history’ — sounding like a guy who went to the first year of law school for a few months but didn’t stick around long enough to realize what a crock much of it was — I think back to the liberals-out-of-control paradigm of my youth.” Whole piece is worth a read (“Don’t Rush Me! (Part 8)”, Slate, Nov. 6) (Kausfiles.com).
November 10-12 – Did securities-law reform fail? Five years ago Congress overrode President Clinton’s veto and enacted legislation intended to deter unwarranted shareholder “strike suits” organized by professional class action lawyers. Since then the number of suits has gone up, however, and observers differ as to how much good the law may have done and whether lawyers are finding it easy to evade. (Tamara Loomis, “Securities Reform: What Went Wrong?”, New York Law Journal, Oct. 27; Peter Catapano, “Who Wants To Be a Fraud Litigant”, Wired News, Nov. 8).
November 9 – Lawyers descend on Florida. “Over the sunny horizon, a plague of lawyers is descending on Florida. They officially are ‘watching’ the presidential recount. But they are also scouring every comma and ‘whereas’ in the Florida code to see if any loophole can be found to invalidate Florida, or to block such an action.” “Soon after [Florida Secretary of State Katherine Harris] ordered the recount, lawyers for both candidates flocked to the state, led by two former secretaries of state — Warren Christopher for Gore and James A. Baker III for Bush.” Jesse Jackson said black leaders may sue, while a Bush campaign source told Insight that “[o]ur people down there are getting the clear impression that the Democrats are searching madly for anything they can litigate on.” (Nov. 8: “Recount continues in Florida”, AP/Northern Light; Rod Thomson, “The Florida Rules”, National Review Online; Jamie Dettmer, “Election Update: Charges of Cheating Abound”, Insight Magazine; Raju Chebium, “Election Day allegations could form basis for legal challenges, experts say”, CNN.com; Paul Singer, “Rev. Jackson hints legal challenge to Fla vote”, Virtual New York; “More Irregularities Alleged”, ABCNews.com.)
November 9 – More election results. Three Michigan Supreme Court justices assailed by trial lawyers and other critics “trounced their Democratic opponents by large margins” (see Nov. 7; David Shepardson, “GOP projected to win state Supreme Court”, Detroit News, Nov. 8). In Ohio, however, Justice Alice Robie Resnick easily held onto her seat despite outrage from organized business over her authorship of a decision invalidating liability limits in the state, and a challenger nearly succeeded in knocking off incumbent Justice Deborah Cook, who had voted to sustain the reforms (see Oct. 30; James Bradshaw, “High court unchanged despite negative TV ads”, Columbus Dispatch, Nov. 8). And in a House race in West Virginia, GOP insurgent Shelley Moore Capito pulled off an upset to defeat Jim Humphreys, a wealthy asbestos lawyer who had poured more than $6 million of his own money into his campaign. (see Oct. 23; Karin Fischer, “Capito scores upset”, Charleston Daily Mail, Nov. 8).
November 9 – Reshuffling blackjack decks not racketeering. A three-judge panel has ruled that Atlantic City, N.J. casinos did not violate the federal RICO (racketeering) law by adopting “countermeasures” against known and suspected practicers of card-counting at the blackjack tables. At the “heart of the lawsuit … was the players’ objection to the casinos’ practice of re-shuffling the decks ‘at will’ whenever a card-counter is spotted.” The plaintiffs included 60 casino patrons, most with card-counting skills, as well as companies that offer courses in the memory technique, which allows a customer to increase the chances of beating the house by deducing the distribution of cards remaining undealt. Federal judge Morton Greenberg ruled that the claims “are completely insubstantial and border on the frivolous” because the rules of the New Jersey Casino Control Commission specifically authorize casinos to reshuffle at will, because the players “can avoid any injury simply by walking away from the alleged wrongdoers, the casinos”, and because the loss of the chance to make money at a casino’s expense can hardly be characterized as “an injury to business or property”. (Shannon P. Duffy, “Federal Court Finds Players Have No RICO Claim Against Casinos, The Legal Intelligencer, Nov. 6).
November 8 – “Opposition to Indian mascots intensifies”. Legal pressure is intensifying on school systems, universities and professional sports clubs to drop mascots and team nicknames (“Warriors”, “Chieftains”, etc.) that refer to American Indians. In a case now on appeal, “[t]he U.S. Patent and Trademark Office ruled last year that [football's Washington] Redskins have no right to trademark the name because it is disparaging to American Indians.” Activists are filing complaints seeking the cutoff of federal education funds to schools that decline to drop old team names. “Kevin Gover, who heads the Interior Department’s Bureau of Indian Affairs, applauds such an effort. ‘Any school putting forward a stereotyped image of any race is in violation of civil rights laws, and I think should lose federal funding,’ he said. ‘If the Justice Department won’t do it, lots of lawyers like me will do it for them.’” (Don Babwin, AP/FindLaw, Nov. 6). St. Petersburg Times columnist Robyn Blumner takes a dim view of using copyright law to enforce a regime of political correctness in cases like that of the Washington football club (“Government has no business in Redskins opinion”, July 23).
November 8 – Loser-pays activism. The New Century Project, a fledgling policy group chaired by retiring Rep. John Kasich (R-Ohio), lists “Legal Reform” among its four central issues and in particular states: “We support a so-called “loser pays” reform which would allow judges to order fee shifting in tort and contract cases. Such efforts may also include imposing penalties on attorneys, law firms, or individuals bringing frivolous lawsuits.” Its other three main issues: school choice, elimination of the federal estate tax, and opposition to Internet taxation.
November 8 – From the evergreen file: cancer alley a myth? “Everyone knows that cancer rates are sky-high along the Mississippi River between Baton Rouge and New Orleans.” Trial lawyers and the “environmental justice” movement say the area’s poor and black residents fall victim to cancer at high rates because of the large concentration of chemical refineries along the river. “The only problem is that what ‘everyone knows’ just isn’t true.” According to an article in the Journal of the Louisiana Medical Society, the incidence of most types of cancer in the alley does not differ from national incidence, and the few exceptions, such as high rates of lung cancer in New Orleans, are plausibly attributable to smoking and other familiar risks. (Michael Gough, “Did You Hear? Good News from Cancer Alley”, Cato Daily, October 15, 1997) (via Junk Science). The contrary view, which dismisses the incidence comparisons as inept or corrupt, is widely found around the Web (stored Google search), including Barbara Koepple, “Cancer Alley, Louisiana”, The Nation, Nov. 8, 1999. Also: there’s now a whole parody page (dhmo.org) devoted to warning against that insidious substance, dihydrogen monoxide (you might drown in it).
November 7 – Litigation reform: what a Democratic Congress would mean. What would happen to the chances for curbing excessive litigation should the Democratic Party retake Congress in today’s election? To begin with, key committee posts (as at Judiciary and Commerce) would fall to longtime trial lawyer allies like Sen. Ernest Hollings (D-S.C.), Sen. Edward Kennedy (D-Mass.), Sen. Patrick Leahy (D-Vt.), and Rep. John Conyers (D-Mich.). And then there’s Rep. Patrick Kennedy (D-R.I.), who serves as spokesman for his party as chair of the Democratic Congressional Campaign Committee. On October 10 the younger Kennedy was making an appearance on CNBC “Hardball” when host Chris Matthews brought up the topic of excessive trial lawyer sway within the Democratic Party. Kennedy began his answer by questioning the patriotism of those who presume to criticize the American litigation system (graciously suggesting we should “go someplace else and live” if we don’t appreciate it). When Matthews volunteered that he himself was “a little skeptical of the motives” of trial lawyers, Kennedy suggested that such a view was really tantamount to opposing the system of trial by jury. Finally, after Matthews persisted, saying that in his view “there’s probably too much litigation in the country and too many big settlements”, Kennedy simply dismissed the whole subject out of hand, saying his host must have “been reading the Republican propaganda”. The entire sequence must be read to be fully disbelieved, so we’ve posted it on a separate page. Also: don’t forget our special page on trial lawyers and politics.
November 7 – Michigan high court races. More coverage of the closely watched state supreme court races in which three respected conservatives appointed by Republican Gov. John Engler have been targeted by the state Democratic Party and its trial lawyer and union allies; partisans of both camps have run injudicious ads, with the Detroit News calling the latest broadside from the Democratic side “truly vicious” (Detroit News, Oct. 31; Nov. 1; Nov. 6; Detroit Free Press, Sept. 25; Oct. 21; Oct. 24; Oct. 27; Oct. 28 Markman, Taylor, Young). Earlier coverage on this site: Aug. 25, May 9, May 15, 2000; Aug. 6, 1999.
November 7 – Family law roundup. Headline says it all regarding bitter split between ex-spouses over a farm in Somerset, England: “Divorce battle ends with £840,000 bill” (Ananova.com, Oct. 26). Conflicts over the disposition of frequent flier miles in divorces and will contests are on the rise, reports the New York Times. A Dallas woman says she and her ex-husband “had agreed to split the miles in their divorce settlement, but that he used the bulk of them before the divorce was finalized. She said she was shocked when she called American Airlines days after her divorce and was told that there were only 543 miles left in her husband’s account, down from more than 60,000.” Her hubby’s lawyer says she should have asked the judge for a restraining order if she didn’t want him to use up the miles (Jane Wolfe, “A New Thorn in Divorces: Who Gets the Miles?”, New York Times, Oct. 29) (reg). And controversy is simmering over allegedly clubby relations between family law judges and lawyers in Marin County, Calif.: was it easier to win your divorce or custody case if you’d attended one of the judge’s big parties, or hired a member of the insider lawyers’ group that called itself FLEAs, for Family Law Elite Attorneys? (Matt Isaacs, “Odor! Odor in the court!”, San Francisco Weekly, Oct. 18).
November 7 – Update: judge turns down “Millionaire” ADA suit. A federal judge ruled last week that the Americans with Disabilities Act does not prohibit ABC and the producers of the TV show “Who Wants To Be a Millionaire?” from using a touch-tone phone system to pre-screen entrants, despite the hurdle that poses to deaf contestants (see March 24) (“Judge: ‘Millionaire’ qualifying round not covered by ADA”, AP/Boston Globe, Oct. 30). Update Jun. 21-23, 2002: appeals court reinstates suit.
November 6 – Coercive capitalism? “Nader is most famous for his attacks on corporations and capitalism. . . .He does not believe that individuals choose their economic relationships with these companies. Instead, he argues that they involve some type of force or compulsion. In short, he equates the coercive power of government with the economic power of the private sector.
“If you think he’s right, try two things. For a whole year, don’t send your money to the IRS, and don’t send your money to McDonald’s. Don’t pay your taxes and don’t buy a Big Mac. See which organization — the government or McDonald’s — comes after you with guns, threatening to put you in jail, seize your property, or even take your life, if you don’t give them your money.” (David Parker, “An American Dictatorship: Ralph Nader’s Vision for America”, Capitalism Magazine, August). See also Jay Whitehead, “Ralph Nader: Analog Anachronism”, ZDNet, Sept. 1.
November 6 – Beehive of legal activity: Utah tobacco fees. Utah is one of the smaller states, but the Tobacco Fee Arbitration Panel has shown its usual generosity and awarded the attorneys who represented it in the state-Medicaid litigation a whopping $64.85 million. Even this sum is a great deal less than some of the lawyers feel entitled to recover for working on behalf of the state; last year one of the law firms involved, Giauque, Crockett, Bendinger & Peterson, got into a fight with state attorney general Jan Graham when it filed a lien to claim 25 percent of the state’s settlement, or about $250 million. The Giauque Crockett website says that the arbitration award “will be a dollar for dollar offset or credit against the obligation of the state of Utah to pay the Firm under the Firm’s contingent fee contract.” South Carolina’s Ness, Motley is also sharing in the Utah payout, as in many other states’. (Reuters/CNN, “Utah attorneys awarded $64.85 million in tobacco fees”, Oct. 25; Judy Fahys, “Tobacco Tussle, Round II, Graham sues law firms in dispute over settlement, Salt Lake Tribune, Nov. 25, 1999).
November 6 – Good Humor man busted for ringing bell. In Arlington, Va., it’s against the law for a commercial vendor to ring a bell to attract notice, resulting in a recent wave of law enforcement activity targeting the venerable Good Humor ice cream man. “That’s crazy,” one mom says. “How would the kids know he was there if he didn’t ring his bell?” (Patricia Davis, “In Arlington, Ringing Up the Tickets”, Washington Post, Oct. 30).
November 6 – Welcome visitors. Overlawyered.com has recently been cited on the Eight Kinds of Ice weblog (November 5 entry) and LinkLog; won the “MadPick” site award bestowed by humor columnist Madeleine Begun Kane; figured several times as a source for the Bonehead of the Day award; been among Jack Lyne’s weekly Editor’s Choice Web Picks (week of Oct. 2) at Site Selection Online Insider, which serves commercial real estate execs; been called a “must-visit Web site” by Jacquelyn Horkan, editor of the “InBox” at Florida Business Insight (August 4) (Associated Industries of Florida); and gotten a mention in the online Law Society Journal of the Law Society of New South Wales, Australia (Patrick McAlister, “Outside View”, Sept.).
November 3-5 – Rick & Hillary spar over Indian land claims. GOP senatorial candidate Rick Lazio has been running radio ads in upstate New York criticizing the Clinton Administration’s support for Indian land claims that have asserted title to wide swaths of the western part of the state, mobilizing thousands of property owners to outraged protest (see Oct. 5 and Oct. 27, 1999; Feb. 1, 2000) The ads say his Democratic opponent, Hillary Clinton, “refuses to stand up for the rights of upstate New Yorkers” on the land issue. A spokeswoman for Mrs. Clinton says the First Lady supports the litigation in general, which has been backed and assisted by her husband’s Justice Department, but does not approve of the naming of individual homeowners as defendants.
Meanwhile, “[t]he U.S. Interior Department has proposed a new American Indian land claim case that could affect property owners on more than 100,000 acres of prime suburban and rural land in western New York,” this time on behalf of the Senecas, including large areas in suburban Buffalo. Jim Mazzarella, of Republican Gov. George Pataki’s Washington office, “called the potential suit ‘outrageous’ and ‘another attack on the homeowners of western New York.’” (John Machacek, “Indian land claim may hit area”, Rochester Democrat & Chronicle, Nov. 1). Upstate Citizens for Equality, an organization critical of Cayuga and other claims, maintains information on its website about the status of Indian claims in New York and elsewhere. Update Nov. 2-4, 2001: Bush Justice Department reverses position and urges judges to dismiss individual homeowners from the suit.
November 3-5 – Just had to donate. This year, as in the past, plaintiff’s lawyers are pouring money into the campaigns of judicial candidates considered friendly to their interests, and in Mississippi, as in other states, they prefer to put forward the notion that their spending is purely reactive, meant to offset the donations that their dastardly opponents are making in judicial contests (and by their opponents they tend to mean pretty much every donor to such campaigns other than themselves, with the possible exception of labor unions). However, that still doesn’t explain why they feel obliged to give their favored judicial candidates enough money to outspend their opponents two to one. Thus Supreme Court candidate Percy Lynchard, heavily backed by plaintiffs’ lawyers, has raised $446,000 in his bid to unseat incumbent Justice Kay Cobb, while Cobb has raised $171,000; and Frank Vollor, whom they are backing for another seat on the court, raised $402,000 as compared with $217,000 for his opponent, incumbent Justice Jim Smith. Lynchard’s “frenzy” of fund-raising included $83,000 in contributions on a single day, Oct. 17, “mostly from plaintiff lawyers”, and $276,690 for October as a whole. (Beverly Pettigrew Kraft, “Judicial gifts hit record amounts”, Jackson Clarion-Ledger, Nov. 1).
November 3-5 – Gets no kick from football verdict. Last month (see Oct. 13) a jury awarded $2 million to Heather Sue Mercer, who sued Duke University for sex bias after being cut from her walk-on spot as a kicker with the football team. Among those not thrilled by the jury’s action, according to last Sunday’s Atlanta Journal-Constitution, is kicker Tonya Butler of Middle Georgia College, whose dream is to become the first female given a football scholarship to a four-year school. “‘That’s ridiculous,’ Butler remembers thinking. ‘Not just the money, but the whole case. I thought it would be thrown out of court. I’m sorry, but she just got beat out by the other kickers. That happens.’
“‘I’m afraid the case has really hurt my chances. Now everyone has to worry if I’ll sue, too, if things don’t work out. I hope it hasn’t closed all the doors for me.
“I don’t play football to make a statement. I play because I love kicking and I’m good at it. I shouldn’t be penalized because of what someone else did.” She has been calling colleges trying to assure them she wouldn’t sue if things didn’t work out, but their interest has waned since the verdict. In 1997 Willamette University in Oregon drew national attention when it briefly employed Liz Heaston as a kicker, but Willamette coach Mark Speckman “said he would not dare call on Heaston now. He, like other coaches, has two million reasons why, after the Duke case. ‘A coach in my position can’t take the risk,’ Speckman said. ‘This is just going to freeze any possibility out. It isn’t worth it.’” Current interpretations of Title IX, the feminist athletics statute, do not entitle women to join men’s football teams but do allow them to sue for damages if they are accepted and then treated unequally. Former Duke coach Fred Goldsmith, who befriended Mercer and then saw the relationship deteriorate and give rise to the lawsuit, said, “I was a nice guy, and I got stabbed in the back.” (Guy Curtright, “Blow to the cause”, Atlanta Journal-Constitution, Oct. 29).
November 3-5 – Alarming byline. “MIKE CRAIG is an attorney and writer in Chicago. He has written for Online Investor and sued nearly everyone for all sorts of misbehavior.” — byline on an article in Green Magazine (“Listen to the Money Talk”, Oct. 27).
November 2 – Radiologists: sue them enough and they’ll go away. Although more women are getting the word about the life-saving benefits of mammography (X-ray screening for breast cancer), “doctors who read the X-rays seem to be fleeing the field at an alarming rate. Caught between rising litigation over allegedly missed tumors and low reimbursement for their services, a growing number of radiologists say their field just isn’t worth the stress any more,” writes Judy Foreman in the Boston Globe. On the legal front, failure to diagnose breast cancer is “‘the number-one allegation against all doctors, in Massachusetts and nationally,’ said Martha Byington, a loss-prevention specialist at the Risk Management Foundation, which insures Harvard doctors and hospitals.” Radiologists have replaced gynecologists as the medical professionals that lawyers most often go after in that variety of case, especially since “mammograms can be extremely difficult to read. Indeed, with hindsight — that is, after a diagnosis of breast cancer — radiologists say they can often look back at old mammograms and pick up tell-tale signs of cancer that, on first reading, did not raise a red flag.” Not surprisingly, high-profile jury verdicts and settlements have proliferated.
As the specialty has developed a reputation for being legally difficult, young doctors have shunned it. Meanwhile, “[t]he retirement rate of radiologists doubled from 1995 to 1997, from 400 to 800 a year, while the number of new radiologists specializing in mammograms dropped by 80 percent, according to a study by the American College of Radiology. . . . For women, radiologist burnout translates into a months-long wait for routine screening at many centers — when the mammograms are available at all.” With the availability of free and even paid mammograms plunging, more women are likely to go without exams, with deadly consequences. (Judy Foreman, “Stressed Out: Burned by Lawsuits and Low Pay, Radiologists Are Quitting, Making Women Wait Longer to Find Out If They Have Breast Cancer”, Boston Globe, Oct. 24).
November 2 – Pot tax bond. Kentucky investigators lacked enough evidence of criminality to convict or even arrest 23-year-old Charles Thomas Jr., who lived in a trailer in Breathitt County near where 517 marijuana plants were found growing on land he did not own. “Nevertheless, Thomas owes the state a little more than $1 million under a 1994 law that taxes [presumed] marijuana dealers $1,000 a plant and penalizes those who do not pay the tax before they are caught.” Moreover, the law “requires suspected dealers to post a bond equal to the amount owed before they can file a protest.” Since Thomas doesn’t have that kind of money, his lawyer says his right to protest the assessment in court might as well be a dead letter. (“$1 Million Pot Tax Bill Stirs Fight”, APBNews/FindLaw, Oct. 27).
November 2 – No K Street in Forbidden City. “During the 300 years of the Qing Dynasty, lobbying was an offense punishable by death. The emperor was considered the Son of Heaven, and for a mere mortal to have the audacity to suggest policy to him was unforgivable.” (Sam Loewenberg, “Navigating the Maze” (lobbying in present-day China), Legal Times, Sept. 19).
November 1 – Don’t meet with her alone. “Michael Land wants other male sole practitioners to learn from his sexual harassment disaster. Never meet a prospective female client alone, the Atlantic County, N.J., lawyer advises. Always have a secretary or paralegal present. . . . In 1996, a potential client complained to police that Land fondled her while they were alone. Police officers arrested him and handcuffed him to a pipe while they booked him.” A judge soon threw out the woman’s criminal complaint, and evidence came to light that she was a frequent filer of suits deemed frivolous, but customers whispered and Land’s business began to dry up. Four years later, in a most unusual turn of the tables, a jury not only denied her claim but ordered her to pay him $225,000 on his counterclaim of malicious prosecution. Vindication, yes, but at a price: “I have not seen a female client unescorted after-hours since this incident and probably never will again,” he told a local paper. (Henry Gottlieb, “New Jersey Jury Docks Client $225K for Saying Lawyer Groped Her”, New Jersey Law Journal, Sept. 6).
November 1 – Contingency fee reform. State ethics codes do not give inexperienced legal consumers enough protection from excessive lawyers’ fees, argues the University of Illinois’s Richard Painter, especially in the realm of contingency fees, where it is “difficult to discern much competition in a market that usually assigns the same risk premium (33%) to a plaintiff’s case, no matter how large the case is and no matter how likely the client is to win.” In this paper for the Civil Justice Memo series of the Manhattan Institute (with which this site’s editor is associated), Painter “reviews a number of the proposals that have been made so far and discusses the comparative strengths of a new proposal made by Jim Wootton, President of the U.S. Chamber of Commerce Institute for Legal Reform: a ‘New American Rule’ that would require a lawyer to set for each client at the beginning of a representation a limit of any amount (phrased in dollars per hour of legal services) on how high the contingent fee can go and then disclose to the client general information about the fees that the lawyer has charged to other clients.” (Richard W. Painter, “The New American Rule: A First Amendment to the Client’s Bill of Rights”, Manhattan Institute Civil Justice Report #1, March 2000). Columnist David A. Giacalone at PrairieLaw also endorses disclosure-based contingency-fee reforms (“Advocate This!: Pricey Contingency Fees“), as does presidential candidate George W. Bush (campaign website, “Civil Justice Reform” — see “Client’s Bill of Rights” item).
November 1 – “School Suspends Girl for Casting Spell”. In Broken Arrow, Oklahoma, the Union Intermediate School District is said to have suspended student Brandi Blackbear on suspicion of casting a spell. According to the American Civil Liberties Union, assistant principal Charlie Bushyhead called Blackbear to his office after a teacher fell unexplainedly ill, questioned her about her passing interest in Wicca, and summarily suspended her. “I, for one, would like to see the so-called evidence this school has that a 15-year-old girl made a grown man sick by casting a magic spell,” said the ACLU’s Joann Bell. However, the school attorney, Doug Mann, called the account into question, saying privacy laws protecting juvenile records prevented him and the district from commenting on the case: “It’s totally unfair that we are gagged by federal and state law and they can say anything they want,” he said. “If the parents will sign a release for what’s in the girl’s files, we will talk about the true facts.” (Ben Fenwick, Reuters/Excite, Oct. 30).
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