Everyone else in the country has been talking about it, we may as well too. [Hanna Rosin, Slate via WSJ Law Blog] Another view: Cathy Young, Real Clear Politics.
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Posts tagged as:
domestic violence
That’s a more controversial proposition than you might think; the Connecticut Supreme Court was split 5-2 in agreeing that a hearing was necessary to confirm the validity of a protective order against a defendant who has been accused but not convicted. The case pitted the state ACLU against the Connecticut Coalition Against Domestic Violence. [Connecticut Law Tribune via Amy Alkon]
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Such is the contention of Yoichi and Ayisha Shimamoto, who are suing UAL “for ‘negligently’ overserving alcohol during a flight from Osaka, Japan, to San Francisco, saying the carrier’s drinks fueled the domestic violence involving the two shortly after their plane landed.” (Julie Johnsson, “Couple accuse United Airlines of overserving husband, causing him to beat wife”, Chicago Tribune, Dec. 17).
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Jurists behaving badly dept.:
According to the commission report, [Niagara Falls, N.Y. city court judge Robert] Restaino was presiding over a domestic-violence case when a ringing mobile phone interrupted proceedings. When no one took responsibility for the ringing phone, Restaino ordered that court security officers search for the device.About 70 defendants were in the courtroom that day to take part in a monitoring program for domestic violence offenders. … After all the defendants denied having the phone or knowing who it belonged to, Restaino sent 46 people to jail. Fourteen who were unable to make bail were handcuffed and jailed for several hours.
The New York state Commission on Judicial Conduct removed Restaino from office Tuesday, calling his action “a gross deviation from the proper role of a judge.” (Janine Brady, “Panel gives judge a ringing rebuke”, CNN, Nov. 28; Elefant, Nov. 28).
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Something unusual in the Yale Law Journal: an article that takes a not entirely enthusiastic view of the continued spread of domestic restraining orders. Under such orders (some earlier posts) allegations of spousal abuse, whether or not eventually proven at trial and whether or not withdrawn by the accuser, can trigger highly burdensome sanctions against the accused spouse, including a prohibition on entering his or her own home. Harvard Law assistant professor Jeannie Suk says the process can amount to “de facto state-imposed divorce” and greatly increases the power of the state to reach into and reorder family life, sometimes against the will of both parties. (”Criminal Law Comes Home”, Oct., abstract leads to PDF of full version)(via Pattis). In response, a second law professor argues that current legal trends appropriately treat alleged domestic violence as a crime against the state and not just against the nominal victim, and that it is wrong to place too much emphasis on accusers’ supposed right to forgive abusive conduct (Cheryl Hanna, “Because Breaking Up Is Hard To Do”, The Pocket Part, Oct. 12)(& welcome Ron Coleman/Dean Esmay readers).
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- Tennie Pierce update: only 6 out of 15 members vote to override mayor’s veto of $2.7M dog-food settlement (Nov. 11). [LA Times]
- Reforming consumer class actions. [Point of Law]
- Judicial activism in Katrina insurance litigation in Louisiana. [Point of Law; Rossmiller; AEI]
- What will and won’t the Seventh Circuit find sanctionable? Judge Posner’s opinion gets a lot of attention for snapping at the lawyers, but I’m more fascinated about the parts where the dog didn’t bark, which isn’t getting any commentary. [Point of Law; Smoot v. Mazda; Volokh; Above the Law]
- Montgomery County doesn’t get to create a trio-banking system. [Zywicki @ Volokh and followup]
- “The Hidden Danger of Seat Belts”: an article on the Peltzman Effect that doesn’t mention Peltzman. [Time; see also Cafe Hayek]
- Pending Michigan “domestic violence” bill (opposed by domestic violence groups) criminalizes ending a relationship with a pregnant woman for improper purposes. [Detroit News via Bashman; House Bill 5882]
- Did Griggs causes distortion in higher education? I’m not sure I’m persuaded, though Griggs is certainly problematic for other reasons (e.g., POL Aug. 12, 2004). [Pope Center via Newmark]
- The Kramer cash settlement. [Evanier]
- Jonathan Wilson gives Justinian Lane a solid fisking on loser pays. [Wilson]
- Speaking of Justinian Lane, for someone who says he was “silenced” because I didn’t post a troll of a comment on Overlawyered, he’s sure making a lot of whiny noise. Hasn’t corrected his honesty problem, though. [Lane]
- The stuff Gore found too inconvenient to tell you in “An Inconvenient Truth.” [CEI]
- Islam: the religion of peace and mercy, for sufficiently broad definitions of peace and mercy. [Volokh]
- One year ago in Overlawyered: photographing exhibitionist students at Penn. Jordan Koko doesn’t seem to have gone through with the threatened lawsuit. [Overlawyered]
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Via R.J. Lehmann (Mar. 27), here are some figures indicating that the sum total of the alleged costs of other people’s bad behavior may well exceed the total sum of money in existence. To be more specific: start by adding up the claimed health expenses, productivity losses and other social costs of such indulgences as alcohol ($185 billion a year, it’s said with spurious precision), overeating ($115 billion), gambling ($54 billion), and so forth. Then throw in categories such as the costs of crime, time wasted by employees visiting web sites and watching sports events, and so forth. By the time you’re done, Lehmann says, you can “come up with a grand total of $7.39 trillion – well in excess of the $6.70 trillion that actually exists” — at least if you’re willing to include a few dodgy entries in the catalog, such as taxes. (Thomas C. Greene, The Register (UK), Mar. 16).
It’s not hard to see the relevance of this line of logic to themes often dealt with in this space. In the utopia of the litigators we would succeed in charging the social costs of our overeating to the food business, the costs of our gambling to the casinos and lotteries that led us on, the costs of 9/11 to assorted banks, airlines, building owners and Saudi nabobs, the costs of street crime to deep-pocketed entities guilty of negligent security, and so on and so forth for the costs of auto accidents, pharmaceutical side effects, failure to learn in school, domestic violence, etc. It would not be surprising if the sum total of all the different injuries, insults and indignities dealt out to the human race, if monetized at the rates prescribed by advocates, handily exceeded the sum total of wealth on hand to pay, even were the whole wealth of the world placed at the courts’ disposal.
The official recruitment of cosmetologists as informants (and as intermediaries steering customers to approved “domestic-violence” programs) continues, with programs reported in Florida, Idaho, Oklahoma, Virginia, Ohio and Maine, as well as Nevada and Connecticut (see Mar. 16 and Mar. 29, 2000). It’s not just black eyes or lacerations that the salon employees are supposed to be on the lookout for, either. A customer’s protestation that “he would not like that”, as a reason to turn down a new hairstyle, might be a sign of “controlling behavior” that needs watching. (”Salons join effort to stop violence”, Bangor Daily News, Jun. 15) (via van Bakel).
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Colleen Nestler, a resident of Santa Fe, N.M., alleges that late night TV host David Letterman has communicated with her in coded words in his broadcasts, has tormented her and driven her into bankruptcy, and has promised to marry her. So far, nothing terribly unusual as regards the problems celebrities face from fixated fans; Letterman himself long endured the attentions of a female stalker suffering from mental illness, Margaret Mary Ray, who repeatedly was arrested for entering Letterman’s property. This time, however, the law has taken a different attitude: according to the Santa Fe New Mexican, Judge Daniel Sanchez of the district court in Santa Fe late last week granted Ms. Nestler a temporary restraining order against Letterman, which the entertainer’s lawyers are now attempting to get lifted. Ms. Nestler’s application for the order
requested that Letterman, who tapes his show in New York, stay at least 3 yards from her and that he not “think of me, and release me from his mental harassment and hammering,” according to the application.Nestler’s application was accompanied by a typed, six-page, double-spaced letter in which she said Letterman used code words, gestures and “eye expressions” to convey his desire to marry her and train her as his co-host. Her story also involves Regis Philbin, Kathie Lee Gifford and Kelsey Grammer, whom Nestler says either supported or attempted to thwart her “relationship” with Letterman, according to the letter….
When asked if he might have made a mistake, Sanchez said no. He also said he had read Nestler’s application.
(Jason Auslander, “Letterman lawyers: End Santa Fe claim”, Santa Fe New Mexican, Dec. 21) Discussion: Volokh, TalkLeft, and a hundred others. On judges’ over-readiness to grant restraining orders in cases of alleged domestic violence and its threat, see this set of links. Updates Dec. 23 (discussion); Jan. 2 (judge lifts order).
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In San Mateo, Calif., Katina Britt was nearly jailed a few days ago for her refusal to testify against the ex-boyfriend who allegedly battered her. (He was convicted anyway and the charges were dropped.) Under present California law, sexual assault victims cannot be jailed for refusing to testify against their attackers, but domestic violence victims can. Chief Deputy District Attorney Steve Wagstaffe said the court order compelling Britt to testify was “for her own protection”. (Malaika Fraley, “Ultimatum in abuse case: Testify or go to jail”, San Mateo County Times, Dec. 10; Michelle Durand, “Assemblyman to back abuse testimony bill”, San Mateo Daily Journal, Dec. 20; more coverage via Google News). Wendy McElroy wonders: “How has the issue of DV drifted from its early roots of empowering ‘victims’ and encouraging their voices toward imprisoning them and coercing their testimony?” (”Don’t jail domestic violence victims”, Enter Stage Right, Dec. 19).
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Welcome news from New York’s highest court: “A battered woman’s failure to prevent her children from witnessing her own abuse does not automatically give protective agencies license to remove the child, the New York Court of Appeals ruled Tuesday in a groundbreaking opinion.” (John Caher, New York Law Journal, Oct. 27). Four years ago (see “Battered? hand over your kids”, Jul. 12, 2000) the New York Times reported that city child protection authorities were removing children from homes in which one parent was found to have committed an act of domestic violence on the other, including such actions as slaps and shoving. “The rules encourage victims of abuse to conceal it, fearing their kids will be taken from them if they tell medical or social workers.” Update Dec. 19: New York City agrees to change policy.
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Britain: “One of the country’s most senior family judges launched a blistering attack on the legal system yesterday for failing divorced and separated fathers. Mr Justice Munby said he felt ‘ashamed’ after dealing with a man who had fought unsuccessfully for five years to see his daughter,” the mother having ignored contact arrangements and groundlessly accused him of abuse and domestic violence. (Sarah Womack and Yolanda Copes-Stepney, Daily Telegraph, Apr. 2).
In recent decades, influenced by feminist views, the law’s treatment of domestic violence has swung toward a “mandatory arrest, mandatory prosecution” model in which the full weight of criminal law is brought to bear on alleged batterers even if the victim would prefer not to press charges; reinforcing this model are mandatory-reporting laws requiring medical and other professionals to report on cases of likely battering. In Insult to Injury: Rethinking our Responses to Intimate Abuse, however, NYU social work and law professor Linda Mills argues that in practice this model often works against the interests of actual victims of domestic violence, undermining their power to improve their situations and discouraging them from seeking medical attention or other forms of assistance. Description and prologue from Princeton Univ. Press; reviews by Cathy Young (Reason), Clay Evans (Scripps Howard), Trish Oberweis (Law and Politics Book Review)(see Mar. 16 and Mar. 29, 2000; Mar. 4, 2002).
March 8-10 – Will EU silence the pipes? Some Scottish members of the European parliament are warning that new noise regulations could make it unlawful to play their nation’s musical instrument: lowering maximum noise levels to 87 decibels, as is being proposed, could “silence the bagpipes for the first time since Culloden”. “If this goes through then the Queen will have to be without her piper every morning who wakes her up at Buckingham Palace,” said Jim Banks, the head of the Piping Centre in Glasgow. “It is just daft.” An EU spokeswoman denied that the authorities in Brussels wished to suppress bagpipes, but a Tory MEP said the application of the rules to employment contexts could result in the end of professional pipe bands. Two years ago the British defense ministry announced that the din of military brass bands was in violation of job-safety noise limits (see Dec. 22, 2000) (Hamish Macdonell, “EU threat to noisy bagpipes”, The Scotsman, Mar. 6)(more on bagpipers in trouble: June 21, 2001).
March 8-10 – Inability to get along with co-workers. An assembly worker with bipolar disorder “fired in 1996 following a series of conflicts with her fellow employees and what court papers termed ‘her confrontational and irrational behavior’ with her supervisor” is entitled to sue her employer under the Americans with Disabilities Act since the ability to interact or get along with others is “a major life activity”, a federal judge ruled in New York. The employer had responded to the woman’s lawsuit with a counterclaim against her, charging that her erratic and hostile behavior had cost it $500,000 in losses to its operations, but Judge Frederic Block suggested that its counterclaim was “in terrorem tactics” and “a naked form of retaliation” against “a vulnerable plaintiff who suffers from a significant mental impairment, for filing her lawsuit,” and suggested that he might impose sanctions on the company for so foolishly imagining that the accusation game might work in both directions. (Mark Hamblett, “Plaintiff With Bipolar Disorder Protected Under ADA”, New York Law Journal, March 4).
March 8-10 – Near and dear to their hearts. Florida trial lawyers are up in arms over the merest suggestion, from a committee on jury innovations, that it might be time to start rethinking their cherished right to kick prospective jurors off panels without offering reasons or explanations. Thomas Scarritt, chair of the Florida bar’s trial lawyers section, “called any discussion of eliminating peremptory challenges ‘a dangerous move.’ Scarritt told the [state supreme] court ‘that is a subject that is near and dear to the hearts of trial lawyers and we do not think there should be any change whatsoever.’” (Susan R. Miller, “Juror Power?”, Miami Daily Business Review, Feb. 6).
March 8-10 – Crestfallen at the news. “Obviously, we’re disappointed.” — Len Selfon, director of benefits programs for the Vietnam Veterans of America, on word that the Institute of Medicine had found no evidence that the herbicide Agent Orange, to which many veterans were exposed, has contributed to the risk of a form of leukemia in children (”Washington in Brief: Science Panel Retreats On Agent Orange Risks”, Washington Post, Feb. 28) (via Health Facts and Fears (American Council on Science and Health), March 5).
March 6-7 – Updates. Stories that kept on developing:
* “A judge dismissed a lawsuit Monday that claimed several video game and movie makers shared blame for the 1999 Columbine High School massacre. … [Federal judge Lewis] Babcock said there was no way the makers of violent games and movies could have reasonably foreseen that their products would cause the Columbine shooting or any other violent acts. ‘Setting aside any personal distaste, as I must, it is manifest that there is social utility in expressive and imaginative forms of entertainment, even if they contain violence,’ Babcock wrote.” (”Columbine Family’s Lawsuit Against Video Game Makers Dismissed”, AP/Tampa Bay Online, Mar. 5)(see April 24, 2001).
* A Southwest Texas University student who bared her breasts at a wet T-shirt contest in Mexico over spring break 2000 has won a $5 million default judgment against the makers of a Wild Party Girls video who used the resulting topless picture of her in their promotions. She continues to pursue a lawsuit against the E! cable network for airing the “Too Hot for TV” ads with her image. (”Woman in ‘too hot for TV’ suit gets $5 million”, Cox/AZCentral, Feb. 27) (Update Apr. 15: default judgment thrown out). And the quest for a very private Mardi Gras continues as a Florida State University business major “has sued producers of the ‘Girls Gone Wild’ videos, claiming they invaded her privacy and used her image without permission. … [She] admits in her lawsuit that she was among the women on the streets and balconies of the French Quarter last year who removed their tops in exchange for Mardi Gras beads and trinkets.” (Janet McConnaughey, “Coed files suit over nude video”, AP/Polk County Online, Jan. 23)(see Sept. 28, 2001). At Metafilter, user “Mikewas” has some advice (Oct. 1) for how a defense lawyer might try such cases after first determining whether the local jury is of liberal or conservative leaning.
* ” In what is being described as a major victory for the so-called ‘visitability’ movement, two cities in disparate parts of the country [last month] started requiring all new homes to be accessible to the handicapped.” Besides the expected passage of such an ordinance in Naperville, Ill. (see Feb. 6), a new ordinance in Pima County, Arizona “includes the significant additional requirement of a zero-step entrance.” “I thought homes were for the owners,” says University of Chicago law professor Richard Epstein. A suburban Chicago homebuilder says the added expense could run as high as $3,000 a house: “it’s real easy to spend somebody else’s money,” adds J. Mark Harrison, executive director of the Home Builders Association of Illinois. (”Activists Win New Rules Requiring Handicapped-Accessible Private Homes”, FoxNews.com, Feb. 10).
March 6-7 – Quest for deep pockets in Ga. crematory scandal. “But while relatives focus their anger on the Marshes, their lawyers have deeper pockets in mind — the funeral homes that sent bodies to Tri-State. The reason is simple: Funeral homes have more insurance. Lawyers know the Marshes’ assets are likely to be eaten up in criminal court defending Ray Brent Marsh, the man charged with theft by deception in the Tri-State case. That leaves the funeral homes, who carry multimillion-dollar liability policies.” (Duane D. Stanford, “Big bucks at stake as lawsuits hit funeral homes that sent bodies to Tri-State Crematory”, Atlanta Journal-Constitution, Mar. 3).
March 6-7 – Washington eyes your 401(k). At Reason Online, Mike Lynch explains why the Enron collapse doesn’t prove what members of Congress keep saying it does about the supposed laxity of pension regulation (”Political Returns”, April) (see Feb. 15).
March 6-7 – Dewey deserve that much? Dig deeper into your pockets, smokers: federal judge Jack Weinstein of the Eastern District of New York “has awarded nearly $38 million in legal fees to New York-based Dewey Ballantine for representing Blue Cross and Blue Shield in a suit against the tobacco industry — more than twice the amount of a jury verdict in the case last year.” (Tom Perrotta, “Dewey Ballantine Given $38 Million Fee Award”, New York Law Journal, Mar. 1). (Update Oct. 23, 2004: New York high court derails award and underlying case.) And Loyola University law professor Dane Ciolino has dropped his challenge of the $575 million in legal fees private lawyers got for representing the state of Louisiana in the national tobacco settlement. Terms were confidential; Ciolino said he is not receiving personal benefit from the deal. “When they signed on to represent the state, the lawyers from 13 different firms became Louisiana assistant attorneys general. The lawyers claimed they acted as independent contractors, not government employees.” (Marsha Shuler, “Tobacco fee challenge dropped”, Baton Rouge Advocate, Feb. 15).
March 5 – Scenes from a malpractice crisis. “In Las Vegas, more than 10% of the doctors are expected by summer to quit or relocate, plunging the city toward crisis. … In California — where juries hearing malpractice lawsuits are limited to maximum awards of $250,000 for pain and suffering — [ob/gyn Dr. Cheryl] Edwards’ insurance premium this year is $17,000 [it had been $150,000 when she practiced in Nevada]. Because of 1975 tort reform, doctors in California are largely unaffected by increasing insurance rates. But the situation is dire in states such as Nevada where there is no monetary cap.”
“Doctors in Oregon have been told to brace for ‘breathtaking’ increases in malpractice insurance premiums in coming weeks. … When the Oregon Supreme Court in 1999 rejected as unconstitutional a $500,000 lid on pain- and- suffering awards in malpractice cases, jury awards of $8 million, $10 million and $17 million swiftly followed. … The Arizona border town of Bisbee has lost its hospital maternity ward because four of the town’s six obstetricians can no longer afford to practice. … Both trauma centers in Wheeling, W.Va., have closed because their neurosurgeons couldn’t pay their new malpractice premiums. The trauma center at Abington Memorial Hospital outside Philadelphia faces closure next month as its doctors scramble to find affordable insurance.” (Tom Gorman, “Physicians Fold Under Malpractice Fee Burden”, Los Angeles Times, Mar. 4; also (same story) Boston Globe; Joelle Babula, “Malpractice Crisis: Trauma unit faces cuts”, Las Vegas Review-Journal, Feb. 7). In Mississippi, where trial lawyers hold great sway in many courts and recently blocked tort reform in the state legislature, an 18-doctor group of emergency physicians in Hattiesburg two years ago “paid $140,000 for malpractice insurance. Last year, the premium went to $250,000. The next annual premium would be $437,500 or $475,000…” (”Cost to cover errors in ER to rise for doctors”, Hattiesburg American, Jan. 26). See also Geekemglory blog, Dec. 13. (DURABLE LINK)
March 5 – Case for declaring wars, cont’d. “The framers had good reason to separate the dangerous power to declare (and finance) war from the power to command the armed forces.” Unfortunately, Congress nowadays tends to abdicate its responsibility by delegating to the White House discretion on whether to institute hostilities. (Sheldon Richman, “Anything to declare?”, Foundation for Economic Education, Feb. 16) (see Sept. 13, 2001) (via Free-Market.Net).
March 5 – “Man awarded $60,000 for falling over barrier”. Australia: “A surfer who fell and injured his back when he stepped over a guard rail to urinate has been awarded more than [A]$60,000 in compensation. Paul Andrew Jackson was aged 35 when he crossed a bicycle bridge on the Pacific Highway at Kanahooka, in Wollongong South, and stepped over a barrier to relieve himself in what he thought was ground level bush.” (The Age (Melbourne), Mar. 4). Update Mar. 8-9, 2003: award overturned.
March 4 – 9/11: grab for the gems. Lawyers have sued large Manhattan jewel dealer STS Jewels Inc., the Tanzanian Mineral Dealers Association and other defendants, seeking to attach proceeds from the sale of the popular gemstone tanzanite on behalf of victims of Sept. 11 terror. Muslim radicals with links to Al-Qaeda are widely believed to have engaged in trading in the gem, which is extensively smuggled out of Tanzania, the East African country where it is mined. “Yesterday, representatives of STS and the Tanzanian Mineral Dealers Association vehemently denied any connection between their industry and al Qaeda. ‘My sympathies to the victims, but this is ridiculous,’ said STS owner Sunil Agrawal.” Among lawyers involved in filing the action are Texas asbestos lawyer Mark Lanier, corporate defense lawyer Paul Hanly and celebrity lawyer Ed Hayes. (Jerry Markon, “Tanzanite Dealers Named in Suit Brought by the Families of Victims”, Wall Street Journal, Feb. 15 (online subscribers only)). See also Ralph R. Reiland, “Lawyers Lust for 9-11 Gold” (The American Enterprise, Feb. 18). And a great Stuart Taylor, Jr. column from January that we somehow missed back then: “How 9/11 Shines a Spotlight on Litigation Lottery”, (National Journal/The Atlantic, Jan. 8).
March 4 – No reply. Lawyers from Jacoby & Meyers have filed a class action suit against online payments firm PayPal alleging all manner of atrocities in its customer service. “PayPal’s spokesman said he could not comment on the suit because his company is in the midst of a [legally mandated] post-IPO [initial public offering] quiet period.” You get to accuse them, and they can’t answer back — isn’t it fun being a lawyer? (Cheryl Meyer, “Class Action Filed Against PayPal”, The Deal, Feb. 25).
March 4 – A menace in principle. Under a law that took effect in New Hampshire last year, police are required to arrest and hold until arraignment anyone accused of violating a domestic protective order. So when a woman in the town of Farmington charged her estranged husband with placing harassing phone calls, they had to haul him in, even after a visit to his house revealed that he is blind, uses a wheelchair, and is on dialysis, leaving him not much of a credible threat to anybody. “Police had to wait three hours for an ambulance to bring [him] to the jail, but the jail wouldn’t hold him because of potential liability.” (”State domestic violence law puts police in bind”, AP/Manchester Union-Leader, Feb. 25) (via Free-Market.Net).
March 1-3 – Should have arrested him faster. “A convicted sex offender wanted in Florida who fled into the Maine woods from police is complaining that he got frostbite and lost a few toes because he wasn’t arrested fast enough. Harvey Taylor, 48, who spent at least three nights in the woods in Mattawamkeag after running from a Penobscot County Sheriff’s detective a few weeks ago, is threatening to sue the detective for not arresting him promptly.” (Mary Anne Lagasse, Flight from law leads to frostbite, threat of lawsuit”, Bangor Daily News, Feb. 27).
March 1-3 – Too much Nintendo. “A Louisiana woman is suing Nintendo, alleging her 30-year-old son suffered seizures after playing video games for eight hours a day, six days a week.” (AP/Minneapolis Star Tribune, Feb. 24; Brett Barrouquere, “Woman sues Nintendo in death of her son, 30″, Baton Rouge Advocate, Feb. 23).
March 1-3 – Batch of reader letters. We’ve fallen far behind both on posting reader letters and in answering our mail (and unfortunately we can’t answer all of it). Still, we’ve managed to put up a batch of letters from the closing weeks of last year. Topics include safe deposit boxes at the WTC, a federal judge’s decision striking down high school sports schedules that put boys’ and girls’ sports in different seasons, and discrimination against motorcyclists.
March 1-3 – Entitled to jobs that kill? On Wednesday the Supreme Court heard argument on the case of Echabazal vs. Chevron, which poses the question: “Does the Americans with Disabilities Act force employers to hire disabled workers for a job, even when the position could cause injury or death to the worker?” The Bush administration and business groups are trying to advance what turns out to be the controversial proposition that “employers have an interest in keeping their employees from being hurt or killed.” (Michael Kirkland, “Are disabled entitled to jobs that kill?”, UPI, Feb. 27; Warren Richey, “Can a disabled worker put himself at risk?”, Christian Science Monitor, Feb. 27; Marcia Coyle, “Rejecting a Worker”, National Law Journal, Feb. 26)(see Nov. 5, 2001). Update: Court unanimously rules for defense (see Jun. 19-20, 2002).
March 1-3 – Launder mania. Rushed through Congress in the weeks after Sept. 11, the USA Patriot Act “requires every financial institution — not just traditional banks — to monitor and to report suspicious customers to federal officials.” The paperwork and compliance burdens will be enormous, but there is little assurance that the program will make much difference in preventing terrorism, which tends to be accomplished on relatively small budgets. (Krysten Crawford, “On the Home Front”, Corporate Counsel, Jan. 22) (see Nov. 29, 2001).
March 1-3 – Welcome Boortz.com listeners. Popular Atlanta-based broadcaster Neal Boortz calls this site “one of my frequent stops” in researching his show (Feb. 27). He sure does have a lot of listeners — our traffic on Wednesday, when he did a segment paying us this tribute and endorsing loser-pays, was among the best ever.
Another noteworthy bit from his commentary: “Day after day people file lawsuits just to ’see if we can get the other side to pay something.’ I’ve been there, folks. I’ve seen it. I was a member of the Georgia Trial Lawyers Association and the American Association of Trial Lawyers. I went to the conventions. I sat in the meetings. I participated in those discussions where lawyers would say ‘I know we don’t have a case — but maybe they would rather fork over a hundred thousand or so rather than taking the chance of going to trial. Hell, their expenses alone would be more than we’re asking!’”.
November 9-11 – “Politically Incorrect Profiling: A Matter of Life or Death”. Stuart Taylor, Jr. returns to the subject of air passenger profiling in a must-read sequel to his September column: “Political pressure from Arab-American and liberal groups spurred the Clinton and Bush Administrations to bar use of national origin as a profiling component before September 11. … [This] achieved its goal of minimizing complaints, which plunged from 78 in 1997 to 11 in 1998, 13 in 1999, and 10 last year, according to Transportation Department data. It did not work so well at preventing mass murder. On September 11, the CAPS [Computer-Assisted Passenger Screening] system flagged only six of the 19 Middle Eastern hijackers for extra scrutiny, which was apparently confined to the bags of the two who checked luggage. None of the 19 men or their carry-ons appear to have been individually searched. And the FAA’s 1999 decision to seal CAPS off from all law enforcement databases — after complaints from liberal groups that criminal records were error-prone — may help explain why the FBI had not told the FAA that two of the 19 were on its watch list of suspected terrorists.” Incredibly, the Bush Administration has signaled that it’s sticking to the current ban on letting airlines do national-origin passenger profiling. (National Journal/The Atlantic, Nov. 6) See Oct. 3-4; also Richard Cohen, “Profiles in Evasiveness”, Washington Post, Oct. 11).
MORE: This makes a good time to catch up on Taylor’s columns since the attacks, all recommended: index; “The Bill to Combat Terrorism Doesn’t Go Far Enough”, Oct. 31; “The Media, the Military, and Striking the Right Balance”, Oct. 23; “The Rage of Genocidal Masses Must Not Restrain Us”, Oct. 16; “Wiretaps Are An Overblown Threat To Privacy”, Oct. 10; “How To Minimize the Risks of Overreacting to Terrorism”, Oct. 2; “Thinking the Unthinkable: Next Time Could Be Much Worse”, Sept. 19.
November 9-11 – Must be the Ninth Circuit, right? Yep, it is: in a September ruling, the much-reversed West Coast federal appeals court “discovered that male inmates in prisons have a ‘fundamental’ right to procreate by artificial insemination,” and thus to become daddies via FedEx delivery (George Will, “Inmates and Proud Parents”, Washington Post, Nov. 8).
November 9-11 – Infectious disease conquered, CDC now chases sprawl. The Centers for Disease Control were established to combat outbreaks of infectious disease, but have been steadily expanded and politicized to the point where the agency has recently crusaded against “epidemics” of gun ownership, tobacco use and domestic violence. The newest initiative of agency officials? A joint effort with the Sierra Club to put over the notion that housing sprawl is a public health risk, in part because suburbanites don’t get exercise walking to shops or work the way many city dwellers do — though you’d think their bigger yards and easier access to outlying recreational areas might give them more chance to exercise in other ways. Vincent Carroll pokes several holes in this theory, noting for example that Colorado, an archetypal suburban-sprawl state, has the country’s lowest rate of obesity (”Once more into the big, bad suburbs”, Rocky Mountain News, Nov. 3; Richard J. Jackson, M.D. (director of CDC’s National Center for Environmental Health), and Chris Kochtitzky (associate director for policy and planning at NCEH’s Division of Emergency and Environmental Health Services), “Creating A Healthy Environment: The Impact of the Built Environment on Public Health”, SprawlWatch Clearinghouse Monograph Series, report in PDF format; Washington Times, “Sprawl alert” (editorial), Nov. 8). Then there’s the CDC’s own recent finding, which goes unmentioned on the Sierra Club’s page, that suburban areas boast better public health indicators than either cities or rural areas (”HHS Issues Report On Community Health in Rural, Urban Areas”, CDC press release, Sept. 10). Given the agency’s performance in the anthrax affair, where it has been left playing desperate catchup to close the gaps in its knowledge base and capabilities, we hope budgeters realize that it can ill afford to squander its resources and credibility on this kind of thing. (See InstaPundit, Oct. 24). (DURABLE LINK)
November 9-11 – Welcome JerryPournelle.com readers. On his “Computing at Chaos Manor” website, the famous science fiction writer and polymath recommends: “If you have any extra time, take a look at Overlawyered.com to see just what our legal system is capable of…” (Thursday’s entry — after this week an archive search will be required, look for Nov. 8). Not only is Pournelle a Macaulay fan, but he’s completely sound on the proposition that wars should be declared (our takes on the former, latter). We’ve also recently been linked by Robert Longley in his About.com sites on U.S. Government Info — specifically, in the environment and gun control subsections. Longley cites our environment page as offering “some fascinating reading” and gives a “Best of the Net” designation to our gun page: “an excellent resource to important gun-related cases”, he calls it.
November 7-8 – Vaccine industry perennially in court. Why are drug companies so chary about participating in the vaccine business? As a medical intervention administered to otherwise healthy persons, vaccination is easy to blame when recipients are later struck by otherwise inexplicable medical problems, and it’s not easy to distinguish genuine (often rare) side effects from unexplained maladies that would have struck just as frequently in the absence of vaccination. Although an Oct. 1 report from the National Academy of Sciences’ Institute of Medicine found no evidence that children have suffered autism or other brain damage from vaccines employing trace amounts of mercury-containing thimerosal as a preservative (as well as no disproof of that scary proposition), a consortium of plaintiff’s law firms was undeterred from piling on a day or two later with mass lawsuits against Merck, Lilly, Abbott, Glaxo SmithKline, and numerous other firms (IOM press release, study; American Medical Association; William McCall, “Drug Companies Sued Over Vaccines Containing Traces of Mercury”, AP/law.com, Oct. 3; “Immune to Reason” (editorial), Wall Street Journal, Oct. 23 (online subscribers only)). For the history of lawsuits charging that the diphtheria- tetanus- pertussis (DTP) and measles, mumps, and rubella (MMR) childhood vaccines cause autism and brain damage, see Aug. 31; American Medical Association; Howard Fienberg, “This Vaccine Won’t Hurt at All”, National Post (Canada), March 22; Howard Fienberg, “There’s No Vaccine Against Irrational Fears”, San Francisco Chronicle, July 5, 2000 (both reprinted at STATS site with long list of links appended).
The troubled recent production history of the anthrax vaccine administered to members of the U.S. military has been matched by an equally troubled legal history (Vanessa Blum, “At War Over Anthrax”, Legal Times, Oct. 23; Matt Fleischer-Black and Bob Van Voris, “Anthrax Vaccine’s Liability Issue”, National Law Journal, Oct. 23). On a personal level all this has tended to hit home for us with the word that our friend Mark Cunningham of the New York Post editorial page has been diagnosed as victim #18 in the anthrax attacks, and the third employee at the paper to contract the illness; it’s just a skin case and he’s doing fine (”really no big deal,” he says). “Fight Terror; Buy the Post” is his new slogan.
November 7-8 – Sued if you do dept.: co-worker’s claim of rape. For years now, HR compliance manuals have been warning that employers face liability if they fail to launch prompt and vigorous investigations when female employees charge male colleagues with sexual harassment, and the more serious the alleged harassment, the more trouble the company is in if it fails to investigate. But now a Philadelphia jury has awarded $150,000 to a male employee against his employer, chemical company Rohm & Haas, which he said invaded his privacy by subjecting him to an embarrassing police-style interrogation after a female co-worker wrongly accused him of rape. The employee’s attorney, Richard Silverberg, “said he believes the company had no business investigating the incident at all. ‘Rape is a police matter. An employer shouldn’t be undertaking to investigate whether a rape occurred,’ Silverberg said.” The jury also found the woman had defamed the man by making false accusations, but declined to order her to pay him any money. (Shannon P. Duffy, “Employee Awarded $150,000 After Co-Worker Falsely Accuses Him of Rape”, The Legal Intelligencer, Oct. 24).
November 7-8 – Byways of intellectual property law. They include this 1993 patent, called to our attention by one of our readers, for a laser-assisted cat-exerciser (US5443036: Method of exercising a cat — issued Aug. 22, 1995, filed Nov. 2, 1993) (Delphion.com).
November 7-8 – “They’re Making a Federal Case Out of It . . . In State Court”. Everything you wanted to know about why big class actions of nationwide scope belong in federal, not state court, from John H. Beisner and Jessica Davidson Miller of O’Melveny & Myers, in a paper for a forthcoming Harvard Journal of Law and Public Policy and the Manhattan Institute’s Center for Legal Policy (with which this site’s editor is affiliated). (No. 3, Sept. 2001: html, PDF formats). For frequent updates on new publications from the Manhattan Institute, whose areas of special focus include not only legal policy but education, urban policy (including New York’s recovery), taxation, crime and many other subjects, many of them covered in the acclaimed publication City Journal, we recommend signing up for the Institute’s free announcement list.
November 6 – NBC mulls Brockovich talk show. “NBC said this week it will feature Erin Brockovich in a pilot for a one-hour syndicated talk show that could begin airing as soon as early next year.” Writing for TechCentralStation.com, Sallie Baliunas and Nick Schulz are not impressed, calling Brockovich “the poster figure for trial lawyer excess and the assault on sound science”. (”Trial Lawyer TV: NBC Announces New Erin Brockovich Program”, Oct. 24; our take, “All About Erin”).
November 6 – In the mean time, let them breathe spores. “The U.S. Postal Service has bought millions of protective masks to guard its 700,000 workers who handle mail against inhaling anthrax spores, but postal workers are not allowed to use the masks until they are trained under Occupational Safety and Health Administration (OSHA) rules. On the advice of health officials at the federal Centers for Disease Control and Prevention (CDC) in Atlanta, the Postal Service bought 4.8 million of the spore-proof masks for its workers who handle mail and began offering workers the masks last week. But according to OSHA officials and regulations, the workers must undergo hours of training and pass a ‘fit test’ before they can be allowed to use the protective masks, which are like those worn by construction workers who install drywall and can be purchased at hardware stores.” (Daniel F. Drummond, “OSHA halts mask use in Postal Service”, Washington Times, Nov. 2).
November 6 – Gun controllers on the defensive. “Though gun-control groups have tried to capitalize on the Sept. 11 attacks, those attempts have misfired.” Indeed, the recent events have pointed up the questionable nature of several of the gun control movement’s underlying tenets: “that violence – even against a criminal – is always bad, that ordinary people are not to be trusted, and that it is best to let the authorities look out for you. … Americans have learned that being harmless does not guarantee that they will not be harmed”. (Glenn Harlan Reynolds, “Terrorists Attacked Gun Control Movement”, FoxNews.com, Nov. 4; George Will, “Armed Against Terrorism”, Washington Post, Nov. 4). Another major setback to the gun-confiscation cause came last month with the Fifth Circuit’s important decision in U.S. v. Emerson making clear that the Second Amendment protects an individual right to gun ownership (David Kopel and Glenn Reynolds, “A Right of the People”, National Review Online, Oct. 25; Michael Barone, “A decision of historic importance”, U.S. News, Oct. 19; Jacob Sullum, “Second Sight”, Reason Online, Oct. 23). For the Taliban’s version of gun control, see Reynolds’s Instapundit (Oct. 24). Go into the kitchen, said Winston Churchill, and get a carving knife: Michael Barone, “Time to stand and fight”, U.S. News, Nov. 11.
November 5 – Talk of torture. “It’s the sort of question that, way back in spring semester, would have made for a good late-night bull session in a college dorm room: If an atomic bomb were about to be detonated in Manhattan, would police be justified in torturing the terrorist who planted it to learn its location and save the city? But today, the debates are starting up in the higher reaches of the federal government. And this time, the answers really matter.” (Steve Chapman, “Should we use torture to stop terrorism?”, Chicago Tribune, Nov. 1; Dahlia Lithwick, “Tortured Justice”, Slate, Oct. 24).
November 5 – Judge may revive “Millionaire” ADA case. Citing the U.S. Supreme Court’s ruling in favor of golfer Casey Martin, a federal judge has indicated that he may revive a dismissed suit, now on appeal, in which disabled plaintiffs charged that the qualifying rounds of ABC’s “Who Wants To Be a Millionaire” unlawfully fail to provide accommodations that would allow deaf or paralyzed applicants to answer questions over the telephone. (Susan R. Miller, “Federal Judge Seeks Rerun of ‘Millionaire’ ADA Case”, Miami Daily Business Review, Nov. 1). And in what promises to be a much-watched case, the U.S. Supreme Court has agreed to review the Ninth Circuit’s ruling in favor of Mario Echazabal in his ADA suit against Chevron Corp. over a refinery job, “contending that he should have gotten the job despite a chronic case of hepatitis C. Doctors who examined Mr. Echazabal said exposure to chemicals at the refinery would speed the deterioration of Mr. Echazabal’s liver and that a large exposure from a plant fire or other emergency could kill him.” (”Justices to decide if ADA protects hepatitis patient”, AP/Dallas Morning News, Oct. 31). Dissenting judge Stephen Trott called the result “unconscionable” and noted that it “would require employers knowingly to endanger workers” in pursuit of the nondiscrimination ideal. (”Needlessly endangering workers” (editorial), Las Vegas Review-Journal, Oct. 30).
November 5 – “Teen sex offenders face years of stigma”. “He was 16, wanting to be one of the guys, playing truth or dare. The dare: touch a girl’s breast during a football game at Hazel Park High School last year [outside Detroit]. He did. As a result, the boy will be branded as a sex criminal until the year 2024.” (L.L. Brasier, Detroit Free Press, Oct. 15) (via iFeminists.com).
November 2-4 – Opponents of profiling, still in the driver’s seat. Hiring for a job that involves, say, transporting petroleum, caustic chemicals or other hazardous materials? Don’t you dare apply any extra scrutiny to driver-applicants of Mideast origin, experts warn. Federal anti-discrimination law bans employer policies or interview questions that relate in any way to religion, ethnicity, or national origin and the Equal Employment Opportunity Commission has put out word that its commitment to this policy is in no way altered by the events of Sept. 11. “Experts say that companies must be careful to apply equally to all job applicants any beefed up prejob screening. Companies can’t, for example, run criminal background checks only on their Middle Eastern job applicants.” It’s also extremely hazardous as a legal matter to contact law enforcement about any unusual pattern of behavior involving one or more employees of Mideast origin unless one is prepared to show in court that one would have acted just as quickly to report the same unusual pattern in employees of Welsh or Korean or West Indian extraction. Hey, we may be sitting ducks, but at least we’re non-discriminatory sitting ducks, right? And of course if someone uses one of your trucks to cause harm you can expect to be sued for every dime you’re worth to compensate the survivors (Deirdre Davidson, “Rethinking the Workplace After Sept. 11″, Legal Times, Oct. 17).
Fourteen Syrian men arrived at Dallas/Fort Worth Airport last month to enroll in U.S. flight schools; although “their country is one of seven on the State Department’s ‘watch list’ of nations that sponsor terrorism,” they were waved through, there still being no official policy that would pose the slightest impediment to their obtaining such training here (Ruben Navarrette, “Flight training for Syrians should raise red flags”, Dallas Morning News, Oct. 19). The Associated Press, describing reports of extra scrutiny given to air passengers of Middle Eastern descent, quotes a parade of sources who deplore such scrutiny but not a single source willing to say there might be good reasons for it, although majorities of both blacks and Arab Americans have supported passenger profiling in post-Sept. 11 polls. (”Some travelers suspect profiling”, AP/CNN, Oct. 21). “A traveler, no less a potential immigrant, with a passport from Yemen and visas from Lebanon and Qatar should receive greater scrutiny — not harassment, but careful scrutiny — than a traveler with a passport from Chile and a visa from Spain. That is not racism; it is prudence — an objective assessment of where the threat resides. To do otherwise after September 11 would constitute extraordinary negligence,” writes Martin Peretz (”Entry Level”, The New Republic, Oct. 15). Before jumping into any proposal to apply heightened scrutiny to residents of Arab descent in this country, however, it should be recalled that the vast majority of Arab-Americans are in fact of Christian, not Muslim, descent, which makes them especially unlikely targets of recruitment efforts by bin Laden cell organizers. (Smart — and Stupid — Profiling”, Chris Mooney, The American Prospect, Oct. 23). (DURABLE LINK)
MORE: Air Canada has assured the Canadian Arab Federation that it has no policy of coordinating with police about passengers with Arabic-sounding names who check in on its flights (Jamie Glazov, “Discrimination a Must For Protection Against Islamic Terrorism”, FrontPage, Sept. 24). On Sept. 22 a United Air Lines flight crew prevented M. Ahsan Baig, a Pakistani man who works for a California high-tech company, from boarding a flight bound from the West Coast to Philadelphia. “A customer service manager repeatedly apologized to Baig for the incident and immediately got him on another flight,” but he’s suing the airline anyway (Harriet Chiang, “Man barred from flight sues airline”, San Francisco Chronicle, Oct. 30). Also see Jason L. Riley, “‘Racial Profiling’ and Terrorism”, OpinionJournal.com, Oct. 24; Jonah Goldberg, “In current context, racial profiling makes sense”, TownHall, Oct. 26; Allison Sherry, “Profile protest ignites debate”, Denver Post, Oct. 21 (sensitivity training demanded after incident at a Radio Shack). See Sept. 19-20, Oct. 3-4, Oct. 9.
November 2-4 – Updates. Digging deep into our backlog in search of items we can call good news:
* Gov. Bob Taft has signed a bill reversing some of the most extreme aspects of the Ohio Supreme Court’s recent jurisprudence expanding the bounds of employer-provided auto insurance. The new law went into effect Oct. 29 on a prospective basis, but judicially mandated retroactive liability will still cost employers more than $1.5 billion in estimated claims currently in the pipeline. (Ohio Chamber of Commerce, summary, “Uninsured/ Underinsured Motorists Availability Act of 2001“; see June 29 and David J. Owsiany, “Judicial tyranny in Ohio”, Buckeye Institute, 2000).
* Following urgings in this space (do you think we had an effect?), the U.S. Department of Justice has reversed its previous position and asked federal judges “to drop thousands of upstate property owners as defendants in lawsuits by Indian tribes to recover land they contend New York State took from them illegally in the 19th century.” (see Nov. 3, 2000 and commentaries linked there) (Richard Perez-Peña, “Justice Dept. Moves to Drop Homeowners In Tribes’ Suits”, New York Times, Aug. 4, not online)
* Courts have generally been frowning on the idea of letting companies milk their insurance policies for the cost of fixing Y2K computer problems, which was the goal of an attempt by creative policyholder lawyers to reinterpret an old marine insurance doctrine known as “sue and labor”. (Celia Cohen, “Y2KO’d: Unisys Damage Suit Voluntarily Dismissed”, Delaware Law Weekly, Aug. 30; Sept. 16, 1999).
November 2-4 – Ambulance driver who broke for doughnuts entitled to sue. “A federal judge has denied the city of Houston’s request to throw out a lawsuit filed by a former ambulance driver fired after he stopped for doughnuts while transporting a patient to a hospital.” On July 10, 2000 Larry Wesley made a snack stop while transporting an injured youth to Ben Taub Hospital; the boy’s mother filed a complaint, and Wesley subsequently lost his job. But U.S. District Judge Lee Rosenthal said Wesley could proceed with his suit charging that had he been white rather than black he would not have been disciplined as severely for the lapse. (Rosanna Ruiz, “Judge refuses to toss suit by ambulance driver fired after doughnut stop”, Houston Chronicle, Oct. 31)(& update Jun. 28-30, 2002: Wesley loses case). (DURABLE LINK)
November 1 – Cipro side effects? Sue! In a welcome if somewhat belated move, public health authorities have advised the public that the normally indicated treatment for suspected exposure to the current round of anthrax attacks should be older antibiotics such as doxycycline rather than the extremely potent antibiotic Cipro, which is best reserved for infections that do not yield to conventional germ-killers. The German drug and chemical company Bayer, having been whipped up one side of the street for its perceived reluctance to hand out Cipro to everyone among the worried well who feels they would like some, might end up getting whipped down the other because it failed to dissuade consumers from using the drug, given the side effects some will likely suffer from it. “Cipro, or ciprofloxacin, is one of several fluoroquinolones, a controversial class of antibiotics that can cause a range of bizarre side effects: from psychological problems and seizures to ruptured Achilles tendons. … Fluoroquinolone users who have suffered severe side effects call themselves ‘floxies’ and have created their own Web site ["Quinolone Antibiotics Adverse Reaction Forum"]. … The Philadelphia law firm Sheller Ludwig Badey has been involved in about two dozen cases of severe quinolone side effects.” (Tara Parker-Pope, “Health Journal: Surge in Use of Cipro Spurs Concerns About Side Effects”, Wall Street Journal, Oct. 26 (online subscribers only)) Lawyers have already jumped all over Bayer over claimed side effects from its cholesterol-lowering drug, Baycol (Ruth Bryna Cohen, “More Locals Jump on Baycol Bandwagon”, The Legal Intelligencer (Philadelphia), Aug. 31).
November 1 – Swiss banks vindicated. A four-year investigation has concluded that “[m]ost dormant Swiss bank accounts thought to have belonged to Holocaust survivors were opened by wealthy, non-Jewish people who then forgot about their money.” Although officials at first assumed that a large share of the 10,000 older dormant accounts would turn out to be those of Nazi victims, only about 200 were, accounting for around $10 million. A public relations and litigation campaign led by American trial lawyers forced Swiss banks into a $1.5 billion settlement of claims that they withheld money from Holocaust victims’ families. (Adam Sage and Roger Boyes, “Swiss Holocaust cash revealed to be myth”, The Times (London), Oct. 13; see Aug. 29, 2000; May 31, 2000 (second item); Feb. 5, 2000 (second item); Aug. 25, 1999).
November 1 – Words as property: “entrepreneur”. How common does a common English word have to be before it’s okay to use it as a domain name without fear of being sued? The magazine named Entrepreneur has made legal rumblings suggesting that it violates its trademark rights for an unrelated entity to run a website entitled Entrepreneurs.com. The latter site does not plan to fold its tent quietly, however, and has mounted a vigorous defense of its position.
September 10 – “Group Sues Starbucks Over Tea Ingredient”. A newly formed group in Berkeley, Calif. by the name of Council for Education and Research on Toxics charges that the Tazo Chai tea sold by the Seattle-based coffee chain contains some quantity of ephedrine, a stimulant found in the Chinese herb ephedra or ma huang whose use poses hazards to health. (”Starbucks sued in LA court over alleged tea additive”, AP/KING-5 Seattle, Sept. 8; “Group Sues Starbucks Over Tea Ingredient”, Channel 2000, Sept. 6). Starbucks says that while it does not comment on litigation, “Starbucks and Tazo believe it is important to confirm for our customers that ephedrine has never been used as an ingredient in Tazo’s Chai Tea or any other Tazo product”. Lawyers have recently been making a big business suing over alleged health effects of ephedra consumed as a dietary supplement: searching on terms like ephedra and ma huang results in a bountiful harvest of lawyer advertising and client-recruitment pages. Ephedra has long been used in herbal teas and nutritional supplements, sometimes in trace quantities, other times in high dosages sought by dieters and athletes deliberately for its medicinal effects, which are related to those of phenylpropanolamine (PPA), a stimulant long ubiquitous in over-the-counter remedies until pulled off the market last fall (see April 6).
“The only purpose of the suit is to get Starbucks to get the ephedrine out of the product, not to get any money,” claims attorney Raphael Metzger, who filed the suit. While CERT is previously unknown, the same is not true of attorney Metzger, based in Long Beach, who runs a large “toxic-tort” practice whose website is publicizing the Starbucks action (leads to complaint in long PDF document). “The constitutional right of Californians to pursue and obtain safety could be an untapped source of riches that plaintiffs’ attorneys should consider on behalf of their clients and the public,” Metzger wrote a while back in the San Francisco Daily Journal regarding the prospect of tort claims based on the California Constitution’s “inalienable rights” provision. (Civil Justice Association of California “Balance”, Q4 1997 — scroll to “Deep Pocket Dreaming” near bottom).
September 10 – Japan sued for $1 trillion in reparations. We only thought there was a postwar treaty settling all claims against the Japanese — law prof Anthony D’Amato of Northwestern U. claims to have found a loophole that would let him reopen the whole thing. “I think we’re being conservative,” he says of his $1 trillion monetary demand. “This isn’t the first unusual legal action by D’Amato, who specializes in international law,” reports the Chicago Tribune. “In 1999 he filed suit seeking unsuccessfully to halt U.S. bombing of the former Yugoslavia to prevent damage to churches, shrines, monasteries and sacred relics.” (Matt O’Connor, “Suit seeks $1 trillion from Japan for war”, Chicago Tribune, Sept. 6 (reg); complaint in PDF format; “Japan sued for $1 trillion in reparations”, UPI/InfoSpace, Sept. 6).
September 10 – Employment class actions: EEOC to the rescue. For trial lawyers pressing job bias cases, the key to getting a big employer to offer a jumbo-sized settlement is to get the case certified as a class action on behalf of minority or female workers as a group: “Once it’s certified, it’s difficult for an employer to suck it up and go to trial. The [financial] risk is too high,” says management-side attorney C. Geoffrey Weirich of the Atlanta office of Paul, Hastings, Janofsky & Walker. But if plaintiff’s lawyers are falling short on the certification issue they can get a second bite at the apple by persuading the federal Equal Employment Opportunity Commission to intervene in the case; the EEOC is held to looser standards in class representation. “[S]howing up to bail out a plaintiffs’ lawyer who ran off the road doesn’t seem like a proper use of the process”, according to Fred Alvarez, a former EEOC commissioner who now represents employers at Palo Alto, Calif.’s Wilson Sonsini. Plaintiff’s lawyers counter that intervention on behalf of groups of workers is an intended part of the agency’s function and occurs only occasionally, despite a 1996 Forbes article in which an official of the EEOC’s Chicago office endorsed class actions as offering the agency “a much bigger bang for the buck”. (Mike McKee, “Employment Bar at War Over EEOC Intervention in Workplace Complaints”, The Recorder, Aug. 30). Sample case: Matt Gove, “Harris Teeter sued by black employees”, Atlanta Business Chronicle, Sept. 7.
September 7-9 – Judges overturning fewer huge verdicts. The litigation lobby is always insisting that alarm about excessive damage awards is misplaced because judges can be relied on to reduce or overturn anything really out of line. But is that so? A new survey by the National Law Journal of 100 jury awards exceeding $1 million dating back to 1997 that came under review by trial and appellate courts found that “the rate of outright reversal has fallen, and the bar has been raised considerably on what judges find offensive. “Federal and state judges are accepting numbers that would have been rejected as excessive only a few years ago,” notes the NLJ. “Jury awards that ‘used to make you gag and choke are being upheld,’ says defense counsel Frank Daily of Milwaukee’s Quarles & Brady.” Personal injury awards were least likely to be reversed, while large awards won by businesses against other businesses fared somewhat less well after trial. Somehow we doubt the folks at ATLA are going to be ringing their friends in the press about this one (Margaret Cronin Fisk, “Hard to Shock”, “After the Jurors Go Home”, National Law Journal, Aug. 29).
September 7-9 – Managed care bill: Do as we say…. Notable fact: “the Patients’ Bill of Rights just passed by the House exempts the 9 million federal workers, retirees and dependents covered by the federal health plan, including Congressional employees. … Tellingly, the House bill also exempts the 41 million people insured through Medicaid and the more than 50 million covered through Medicare and other federal programs from the potentially expensive new mandates and protections.” Proponents claim the new scope for litigation won’t drive up costs — but they sure don’t act as if they believe that (Ira Carnahan, “Do As We Say …”, Forbes, Sept. 3) (see also Dec. 6, 1999). And: “Liberals are right: a patients’ bill of rights is just a baby step. But it’s a step in the wrong direction,” expanding access to pricey experimental treatments for the middle class while pushing more poorer persons down into the ranks of the uninsured. (Noam Scheiber, “Daily Express: Stand Still”, The New Republic Online, July 13).
September 7-9 – Mosh pit mayhem. The mosh pit down front at the rock concert is a great place to get yourself injured (but you probably knew that). And it’s an equally great place for briefcase-toting lawyers to descend afterward filing “personal injury lawsuits with promoters, producers, arenas and sometimes even the musicians themselves as defendants”. Concert promoters say part of the crowd is always eager to enter the mosh area despite the known risks, but one plaintiff’s lawyer dismisses such talk: “The guy who controls the microphone controls the crowd,” he says. Among rock groups that have reached confidential settlements after being sued in such cases is the frenetically anti-capitalist group Rage Against the Machine, which distributes Noam Chomsky tracts to its fans. (Robert Wiener, “Rock And Roll Lawsuits”, LexisOne, July 31; Anthony DeBarros, “Injuries surge to high levels”, USA Today, Aug. 8, 2000).
September 7-9 – Watch what you say about lawyers (part XI). Aviation trial lawyer Arthur Alan Wolk, after winning a record-breaking $480 million jury verdict against Cessna last month, came in for heated criticism from readers of AVweb and other general aviation enthusiast websites (see Aug. 24-26, Aug. 20-21). Now, reports AVweb, Wolk “has filed a lawsuit against AVweb, two of its editors and four subscribers. Wolk’s suit, filed in a Pennsylvania court, is critical of statements made on AVweb. The lawsuit seeks in excess of $100,000 in compensatory and punitive damages.” AVweb says it is evaluating the merits of the suit. (AVweb Newswire, Sept. 6 (scroll to “On the Fly”, near bottom of page)). Update Oct. 12-14 (more on suit). Further update Sept. 16-17, 2002: in July 2002 AVweb capitulated and published on its website an extensive apology to Wolk, along with an apology from one of the individually sued posters.
September 6 – Red-light cameras. A San Diego judge has dismissed 300 traffic tickets issued under a system that “snaps a photo of a red-light runner and mails a $271 citation to the registered owner of the vehicle,” $70 of which is kept by a former Lockheed Martin subsidiary that operates the enforcement system. Such systems have already spread to fifty cities; critics charge that errors are common and very difficult for the motorist to fight, and that the company running the computerized cameras has no financial incentive to reduce the rate of erroneously issued tickets — quite the contrary, since it collects a share of the ill-gotten gains. According to Rep. Dick Armey (R-Tex.), since red-light cameras became a major source of municipal revenue, many cities have significantly shortened the duration of yellow lights, a practice that profitably increases the number of violations for the cameras to catch but worsens the risk of traffic accidents themselves. It’s another wrinkle on the bad old practice of contingency-fee law enforcement — a sure recipe for injustice whether inflicted by public authorities, private contractors, or the two in combination. (”Judge Dismisses 300 Tickets Spawned by Red-Light Cameras, FoxNews.com, Sept. 5; Alex Roth, “Ex-worker says firm puts profits over safety; Man testifies that revenue is main purpose of red-light cameras at intersections”, San Diego Union-Tribune, July 6; Ray Huard and Alex Roth, “Doubt focuses on red-light cameras”, San Diego Union-Tribune, Aug. 17; RedLightLawyers.com; Eric Peters, “Rigging traffic lights hurts safety”, Detroit News, Aug. 12; OpinionJournal.com, “Big Brother’s Camera” (editorial), July 3) (see also Apr. 8-9, 2002).
September 6 – Judge Kent: another helping. A Philadelphia environmental litigator who asks to remain anonymous writes: “I love your stuff on Judge Kent [the Hon. Samuel Kent, federal judge, S.D. Texas; see Aug. 2, Aug. 3]. I have in my grubby lawyer hands a Judge Kent order dated June 7, 2001 (entered June 8, 2001) in Labor Force, Inc. v. Jacintoport Corp. & James McPherson, Civ. Action No. G-01-058 (opinion in PDF form courtesy Green Bag). In that opinion, the judge, among other things, calls the lawyer’s motion ‘obnoxiously ancient, boilerplate, [and] inane.’ He also refers to it as asinine. … No URL as yet, and I don’t think it’s on Westlaw.
“There are 38 uses of ‘asinine’ in the allfeds database in Westlaw. Judge Kent has the vast majority of them. Thank God I’m in PA and not Texas.” (Corrected Aug. 15, 2004: fixed earlier erroneous spelling of case name).
September 6 – Reparations talk. “Reparations, so popular a topic in black-radio discussions and in black newspapers, masquerade as a bonus check for being black. They are a Trojan horse full of devastating consequences for the future of black America. Reparations are a dangerous, evil idea that has to be derailed now before emotions and momentum take American race relations on a crash course”. (Juan Williams, “Get a Check? No, Thanks”, GQ/FrontPage, Sept.) East Indians, recently arrived, made themselves a power in small business and science “with organization and planning. They certainly didn’t do it with reparations checks. Blacks could have done it, if for years we hadn’t been following leaders whose motto should be ‘Ain’t Too Proud to Beg.’” (Gregory Kane, “Slavery reparations no fix for ‘community in disarray’”, Baltimore Sun, Aug. 18). “Europe has indeed played a unique role in the history of slavery. Slavery has been a universal feature of all societies throughout most of history. … What makes Europe unique is that it ended slavery.” (Andrew Kenny, “White is Right”, The Spectator (UK), Aug. 25). And the King of Senegal has weighed in, pointing out that the guilt for slavery as an institution in his part of Africa long antedated Europeans’ arrival (Ellen Knickmeyer, “Senegal’s leader blasts idea of slave reparations”, AP/Nando, Aug. 29) (see Aug. 22 and links from there).
September 5 – “New law would stem abuses in Disabilities Act”. H.R. 914, the ADA Notification Act, is a bill introduced by Rep. Mark Foley (R-Fla.); Sen. Daniel Inouye (D-Haw.) is sponsoring a Senate counterpart. It would give businesses 90 days to make renovations to their facilities demanded under the Americans with Disabilities Act, thus putting a crimp (it’s hoped) in the complaint mills by which lawyers file accessibility complaints by the dozen and then collect legal fees from target businesses (see Jan. 26, 2000). (Hector Florin, Miami Herald, Aug. 31).
Among South Florida lawyers who have filed many near-identical complaints, collecting thousands of dollars per defendant in legal fees on settlement, are William Tucker and Lawrence McGuinness. The Fort Lauderdale Sun-Sentinel notes, however, that “Tucker works out of a Fort Lauderdale building that has no disabled parking, a ramp steeper than the law allows, no landing and a door with a round doorknob. McGuinness’ office in Coral Gables has a curb with no ramp to the front door.” (Aug. 26). The same paper editorializes: “The Americans with Disabilities Act has been hijacked by trial lawyers who are using it to drum up legal fees.” (editorial, Aug. 28) (via OpinionJournal.com “Best of the Web“).
September 5 – New York’s crazy homeless program. It’s the result of litigation by advocacy groups that have been tying the city in courtroom knots for years (Heather Mac Donald, “Forbidden Facts”, New York Post, Aug. 21).
September 5 – Target: trade associations. Two appeals courts in Washington state have upheld a verdict holding the National Spa and Pool Institute liable for $6.6 million in damages to a man who broke his neck diving into a below-ground pool and sued, saying the institute’s voluntary safety standards for pool design should have been stricter. “To protect its assets, the pool group was forced to file for bankruptcy (it’s now out of it) and sell off its $3 million (net income) trade show. Until this decision virtually all courts declined to extend product liability to associations that develop voluntary safety standards in good faith.” (Matthew Swibel, “On the Docket: In Hot Water”, Forbes, July 9 (reg)).
September 3-4 – “Lawsuit demands AOL stop anti-Islamic chat”. “A Muslim subscriber sued America Online yesterday, claiming that anti-Islamic insults in AOL’s chat rooms violate his civil rights. If successful, the suit could force the world’s largest Internet company to strictly limit what 30 million members can say in 14,000 chat rooms. … The suit alleges that by not kicking out the disrupters, AOL violated its contract with users. But it also claims that under the 1964 Civil Rights Act, an AOL chat room is a ‘public accommodation,’ as is a restaurant or a hotel.” (Hiawatha Bray, Boston Globe, Aug. 31; AP/Yahoo, Aug. 30; Leef Smith, “Suit Says AOL Permits Insults”, Washington Post, Aug. 31; BBC; Robyn Weisman, “AOL Stung by Hate Speech Lawsuit”, NewsFactor.com, Aug. 31) (& see Dec. 5-6).
September 3-4 – Not discriminatory to kick sleeping worker’s chair. A Pittsburgh federal jury has decided that it did not constitute race or sex discrimination for a supervisor to kick the chair of a sleeping 911 emergency dispatcher to wake her up. The supervisor had said that he had jostled the chairs of other workers who snoozed on the job. (”911 Boss Cleared In Woman’s Kicking Lawsuit”, WTAE/Yahoo, Aug. 28). And Great Britain’s Institute of Management has said that privacy provisions of that country’s newly enacted Human Rights Act may restrict an employer’s right to call its employees at home. “‘An employer does not have the right to demand an employee’s telephone number unless it is specified in the contract that the employee has a duty to be available outside normal working hours,’ the institute said. … The body also said employees are under no obligation to divulge their addresses except for the purpose of receiving ‘routine correspondence’ in connection with their job, such as salary slips.” (”Plagued by calls from the boss at home? Sue them”, Yahoo/Reuters, Aug. 24).
September 3-4 – Batch of reader letters. On topics such as Miniver Cheevy’s prospective wrongful-birth lawsuit, the next Cessna, slavery reparations, should doctors turn away lawyers as patients?; a 2-cent class action refund, and zero tolerance meets domestic violence. Also: we recommend a new book.
July 19-20 – “Coke Plaintiff Eavesdrops on Lawyers; Case Unravels”. After lawyers suing Coca-Cola on discrimination charges hold a conference call with their clients and with Jesse Jackson, one of the clients, a Coke security guard named Gregory Clark, quietly decides to stay on the line, rather than hang up as the others and Jackson do, and listen to what the lawyers say among themselves. The sensational results are aired in this remarkable article in the Atlanta legal paper, which just might blow the tightly screwed cap off the whole issue of lawyers’ management of litigation in their own interest — don’t even think of missing it (R. Robin McDonald, Fulton County Daily Report (Atlanta), July 18) (Atlanta Journal-Constitution special page on Coke discrimination litigation).
July 19-20 – Editorial roundup: “The wrong verdict on tobacco”. By a wide margin, the American people believe that though cigarettes are harmful, it should be lawful to sell them. “Last week’s verdict by a Florida jury, however, suggests that what the American people want is no longer terribly important when it comes to tobacco.” (Chicago Tribune, editorial, July 18). “[T]he judge prohibited any testimony relating to choice and personal responsibility,” contends the New York Post. In plain English, the fix was in.” (”Milking the Tobacco Cow”, July 18). Jury foreman Leighton Finegan said he was “insulted” when tobacco company lawyers raised the possibility that the throat cancer of one of the plaintiffs might have been caused by occupational dust exposure, but it’s perfectly legitimate for defendants to point out that health problems arise from multiple origins, which sheds light on the unmanageable nature of the supposed “class” (Hickory (N.C.) Record, “$145,000,000,000!”, July 17). “It says something about the class-action lawsuit Florida smokers filed against the industry that two of the lead plaintiffs in the case were medical officials who bragged of their own ignorance,” comments the Washington Times. “Said one, a 44-year-old nurse, ‘I had no idea there was anything wrong with cigarettes at all.” (”That will be $145 billion, please”, July 17). And Smarter Times, the new online venture edited by Ira Stoll that keeps a watchful journalistic eye on the New York Times, notes that the newspaper’s July 15 editorial “basically comes out in favor of using class action lawsuits to put companies out of business, even when the Congress or state legislatures are unwilling to declare the products illegal.” (Issue #28).
July 19-20 – Disabled accessibility for campaign websites: the gotcha game. The Washington Post’s online edition plays gotcha with political campaign websites, most of which fail to heed disabled-accessibility guidelines of the sort that may already be legally binding on a wide range of private sites. The Al Gore (D) and Rick Lazio (R-N.Y.) websites are among the minority that comply with “Bobby“, the most widely used program for evaluating a site’s disabled accessibility. Sites that fall short on “Bobby” include those of George W. Bush (R), Hillary Clinton (D-N.Y.), Ralph Nader (Green) and Patrick Buchanan (Reform). (Ryan Thornburg, Mark Stencel and Ben White, “Political Graffiti Goes Online” (third item), WashingtonPost.com, July 17).
However, running the Thornburg-Stencel-White article itself through a “Bobby” check discloses that as of Tuesday evening it itself suffered from at least fifteen violations of disabled accessibility rules: lack of alternative text for images (12 instances), lack of redundant text links for server-side image map hot-spots (2 instances), and lack of alt text for image-type buttons in forms (1 instance) (full “Bobby” evaluation of Post article). The article is also reprinted on Slate, where as of Tuesday evening it suffered from at least 19 Bobby infractions, including lack of alt text (18 instances) and lack of button text (once) (evaluation). Numbers are subject to change if and as the pages change, of course.
July 19-20 – Target Detroit. “Those in Michigan cheering state assaults on the tobacco industry and gun manufacturers may want to hold their applause,” writes the Detroit News‘ Jon Pepper, since the state’s leading industry, automaking, could face assault from some of the same litigation forces. (”Auto industry could follow guns, tobacco into courtroom”, June 4). Many lawyers are eager to pin liability on the design of sport utility vehicles because of their tendency to inflict higher than usual damage on other motorists and pedestrians, but they’ve had trouble so far finding a theory that will stick (Keith Bradsher, “S.U.V. Suits Still Face Long Odds”, New York Times, May 30). And a federal judge has refused to dismiss a defamation countersuit by Philadelphia class action firm Greitzer & Locks against DaimlerChrysler and its associate general counsel, Lew Goldfarb, arising from charges DaimlerChrysler filed last fall (see Nov. 12) charging the Greitzer firm and another attorney with the filing of abusive class action litigation. The Greitzer firm is now suing Mr. Goldfarb personally for defamation and interference with contractual advantage and cites, as evidence of malice, his description of the cases filed by Greitzer & Locks as “a form of legalized blackmail” and of one such suit as one that “belongs in the class action hall of shame.” How many times do we have to warn you to watch very carefully what you say when you criticize lawyers? (Shannon P. Duffy, “DaimlerChrysler GC Can Be Sued in Pennsylvania”, The Legal Intelligencer (Philadelphia), June 30; “Greitzer & Locks Takes a Swing Of Its Own at DaimlerChrysler”, Jan. 14).
July 18 – Florida tobacco verdict. Our editor has an op-ed piece in today’s Wall Street Journal discussing last week’s punitive award in the Florida tobacco class action: Walter Olson, “‘The Runaway Jury’ is No Myth”, Jul. 18. For more on the Engle case, see July 10; our editor’s Wall Street Journal op-ed from Jul. 12, 1999; the related commentaries on our tobacco-litigation page; and the press clips at Yahoo Full Coverage. Also check our numerous commentaries, from yesterday and earlier, on the multistate tobacco settlement, which counts as trial lawyers’ bird-in-the-hand compared with Engle’s bird-in-the-bush. Later developments in case: see May 15, 2004 and links from there.
July 18 – “Court says warning about hot coffee unnecessary”. It makes a contrast to the famed McDonald’s case: the Nevada Supreme Court, upholding a lower court’s decision, has dismissed a lawsuit against a restaurant and its suppliers alleging negligent failure to warn about the dangers of hot coffee. Lane Burns had sued the Turtle Stop restaurant after spilling coffee on his leg and suffering burns, but District Judge Gene Porter ruled that the “danger is open and obvious.” That differs from the sentiments of the judge and jury in Albuquerque, New Mexico, where octogenarian Stella Liebeck won a $2.9 million judgment against the fast-food chain, which was later reduced to $480,000 and settled for an undisclosed sum. (Cy Ryan, “Court says warning about hot coffee unnecessary”, Las Vegas Sun, July 11).
July 18 – “Chutzpah is. . .” Eugene Volokh of UCLA law school writes as follows: “Chutzpah is . . . when you get a job working for your wife’s parents because you are their son-in-law, and then when you and she get divorced and her parents fire you, you sue them for marital status discrimination.
“This is exactly what happened in Matteson v. Prince, Inc., Montana Dep’t of Lab. & Indus. No. 9901008658 (1999) (pdf document). Amazingly, the agency held that the employer’s behavior was illegal discrimination, but Matteson wasn’t entitled to any damages because in this particular case the ex-son-in-law would have been fired in any event because he had gotten into a shouting match with his employers at work.”
July 18 – Breakthrough for plaintiffs on latex gloves? Last Thursday an Alameda County, Calif. jury returned an $800,000 award to a health care worker against Baxter Health Care, which formerly made latex gloves for hospital use. Naturally occurring substances in the gloves sometimes trigger virulent allergies in health care workers which prevent them from continuing in medical work, and lawyers have argued that had Baxter instituted a practice of washing the gloves before sale to remove surface proteins, it would have reduced their allergy-stimulating potential. Hundreds more latex allergy lawsuits are pending, and lawyers are hoping the new case, McGinnis v. Baxter Health Care, will serve as a model for others. (Sonia Giordani, “California Latex Glove Verdict Sets Tone”, The Recorder (San Francisco), July 17) (more about latex allergies) (see also Oct. 26).
July 17 – Dershowitz’s Florida frolic? Alan Dershowitz is demanding $34 million for putting in 118 hours of work on the state of Florida’s Medicaid-reimbursement tobacco suit, according to two of the lawyers who helped mastermind that suit, Robert Montgomery and Sheldon Schlesinger. The two filed suit against the famed Harvard law prof last week, asking a judge to determine whether he’s entitled to a bonus they say they never promised him. Through their attorney they allege that Dershowitz is asserting an entitlement to 1 percent of the gargantuan $3.4 billion fee award made to the attorneys who represented the state, which would amount to $34 million, but they say he hasn’t submitted any hourly time sheets to back up that claim. “He wants a lot of money, and he’s not entitled to it,” said J. Michael Burman, attorney for Montgomery and Schlesinger. If the lawyers’ figures are accurate, $34 million divided by 118 hours would work out to $288,000 an hour. (Jon Burstein, “Lawyer wants $34 million for working 118 hours on Florida’s case against tobacco companies”, Fort Lauderdale Sun-Sentinel, July 14; more on Florida tobacco fees: April 12, December 27-28).
July 17 – Ness Motley’s aide-Grégoire. In a single day, December 8, 1999, Christine Gregoire, the attorney general from the state of Washington who’s been mentioned as a possible AG in a Gore administration, saw her re-election campaign kitty more than double. The benefactors, who sent nearly $23,000, weren’t Washington residents at all, but rather two dozen lawyers and their relatives associated with the Charleston, S.C. law firm of Ness, Motley, which is expected to pocket a billion dollars or more in fees from the multistate tobacco settlement that Gregoire was instrumental in brokering. An aide to Gregoire, who engaged Ness Motley to represent Washington along with the many other states it represented, dismisses talk of payoffs and calls the contributions “a reflection that someone has a high regard for an elected official.” “I only wish we had given her more,” says Ness superlawyer Joe Rice, quoted in this article in Mother Jones spotlighting the sluicing of tobacco-fee money to friendly Democratic pols. (Rick Anderson, “Tobacco money flows both ways”, Mother Jones, July 6).
July 17 – Challenging the multistate settlement. In a Cato Institute paper, Thomas C. O’Brien argues that the anticompetitive provisions of the multistate tobacco settlement, such as those curbing entry by newly formed cigarette companies, should rightly be seen as themselves an antitrust violation and as going beyond the duly constituted power of the fifty states, which would open up the possibility of injunctive relief and treble damage remedies “available in private lawsuits brought directly by injured parties, including smokers and nonparticipating tobacco companies.” (Thomas C. O’Brien, “Constitutional and Antitrust Violations of the Multistate Tobacco Settlement”, Cato Policy Analysis No. 371, May 18 (summary links to PDF document)). Also from Cato, Richard E. Wagner of George Mason University offers another critique of the multistate settlement (”Understanding the Tobacco Settlement: The State as Partisan Plaintiff”, Regulation, vol. 22, no. 4 (table of contents; follow links to PDF document). Cato, the Competitive Enterprise Institute and the National Smokers Alliance filed an amicus brief last week urging the Third Circuit to invalidate the nationwide tobacco settlement agreement on constitutional grounds. (”Public Interest Groups Urge Court to Invalidate Tobacco Agreement ” CEI press release, July 13). On collusive aspects of the multistate settlement, see our commentary for July 29 of last year; Rinat Fried, “Distributors Challenging Tobacco Deal”, The Recorder/CalLaw, June 30, 1999; and “Puff, the Magic Settlement” (Reason, January).
July 14-16 – “Are lawyers running America?”. Time’s feature story this week on the Fourth Branch leads with the tale of tobacco/HMO nemesis Dickie Scruggs’ recent appearance before the Connecticut State Medical Society (see Feb. 22, “P.S.”), where he “was introduced so gushingly that even he was embarrassed. ‘You forgot to mention,’ he chided the society’s head, ‘that I rested on the seventh day.’” Among bits of new-to-us info about the great legal magnates, we learned that “Wayne Reaud (pronounced Ree-oh) has used his hundreds of millions of dollars in fees from asbestos and other ‘toxic tort’ litigation to buy the local newspaper and a chunk of downtown real estate in his hometown of Beaumont, Texas,” while Florida’s Frederic Levin “concedes his firm’s $300 million take [from tobacco] was ‘totally obscene’ and says he’s giving much of it to charity,” having already had the University of Florida Law School named after him following a big gift. Who’s to be sued next? All sorts of targets, but the magazine reports that some lawyers “are considering suits against the alcoholic-beverage industry, which they would hold responsible for drunk-driving deaths and other alcohol-related losses, using the same ‘negligent marketing’ allegations that have been lodged against gunmakers.” Quotes our editor twice, too. Most memorable line: “Ask Scruggs if trial lawyers are trying to run America, and he doesn’t bother to deny it. ‘Somebody’s got to do it,’ he says, laughing.” (Adam Cohen, “Are lawyers running America?”, Time, July 17)
July 14-16 – “‘Whiplash!’ America’s most frivolous lawsuits”. Michigan Lawsuit Abuse Watch is promoting this new book by comedy writer James Percelay and Jeremy Deutchman (Andrews & McMeel). Five of the cases from the book are retold at the M-LAW site, including ones involving a woman who sued a guide-dog service because the dog it provided did not keep its blind human master from stepping on her foot and breaking her toe; a man who cut off his hand, believing it Satanically possessed, refused a doctor’s pleas to let him reattach it, and then sued the doctor later for complying with his instructions; a college student who tried to “moon” friends from a third-floor window, fell out and sued for his injuries; a criminal who filed an excessive-force suit against police after being apprehended for a particularly brutal crime, and won a $184,000 jury verdict, later thrown out; and a man who spilled a cold chocolate milkshake on himself, was so startled that he crashed his car, and sued McDonald’s. (All five cases were sooner or later unsuccessful in the courts.) We haven’t seen the actual book yet (or fact-checked the five cases, although we remember most of them from when they originally happened) but it seems to be selling pretty well on Amazon. Also check out M-LAW’s “obligatory disclaimer“.
July 14-16 – Never too stale a claim. Asbestos, lead paint, small-plane and machine-tool liability cases have all demonstrated that American lawyers are willing to trace responsibility back at least as far as the first decades of the twentieth century if that’s what it takes to find a deep pocket chargeable with injury. So it shouldn’t really have come as much of a surprise when a Texas court entered a $234 million default judgment against the government of Russia on behalf of a man whose grandfather’s property was confiscated during the 1917 Bolshevik Revolution. Dan Nelson, attorney for claimant Lee Magness, “says he will start trying to collect by seizing any Russian art exhibits on tour in this country”, and preliminary maneuvers to that effect led to a temporary delay in two art tours. The Russian government has filed a protest with our State Department (for more on the foreign-policy repercussions of the American way of suing, see July 6). The extreme willingness of our current legal system to revisit very old transactions in search of grist for litigation — much in contrast with an earlier law’s concern for repose and finality — probably made it inevitable that we’d see the current boomlet of discussion regarding reparations claims over slavery: if we’re already willing to go back 83 years to 1917, why not a further 52 years to 1865? Besides, some of us have our eye on the British, who’ve enjoyed virtual impunity for much too long over their burning of American homes during the Revolutionary War and War of 1812. (Susan Borreson, “Texans’ Default Judgment Against Russians Stands”, Texas Lawyer, Feb. 1).
July 13 – Class-action assault on eBay. It’s doubtful whether eBay, the massively popular electronic flea market, would ever have gotten off the ground had its proprietors been required to warrant the goods being sold. In April, however, attorney James Krause of the San Diego-based class-action firm of Krause & Kalfayan filed a lawsuit on behalf of six California residents who had bought sports memorabilia, the subject of widely reported fakery, over the online marketplace. An eight-year-old provision of California law stipulates that dealers in autographed sports memorabilia must provide a certificate of authenticity. Krause is seeking class-action status on behalf of all California buyers, and is asking for the penalties laid out in the statute, which according to AuctionWatch “entitles the buyer to ten times the purchase amount and other damages should an autograph prove to be forged or come without this certificate”. EBay contends that it is not a dealer or auctioneer but simply provides the modern equivalent of newspaper classified ads, so that only the individual sellers could properly be held liable. “If successful, the suit could undermine eBay’s business model,” reports the Industry Standard. “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.” Krause & Kalfayan has also filed suits on unrelated theories against such firms as Microsoft (see Dec. 23), Federal Express, Atlantic Richfield, Nine West and Charles Schwab (complaint and related news story at Krause & Kalfayan site; Victoria Slind-Flor, “EBay Denies Auctioneer Status”, National Law Journal, July 10; Miguel Helft, “EBay: We’re Not Auctioneers”, Industry Standard, May 1; “The Class Action Suit”, AuctionWatch, undated). Bonus:Weird eBay Auctions (WhatTheHeck.com) (& update Nov. 22-23: judge certifies class action)
July 13 – Nader on the Corvair. The litigation advocate’s presidential candidacy makes a good occasion to revisit his original claim to fame, the Corvair episode. The car’s safety record turned out in hindsight far better than you’d have guessed reading Unsafe at Any Speed, but “being wrong on the Corvair hasn’t hurt Nader’s career one bit,” writes Ronald Bailey, science correspondent for Reason. (”‘Saint Ralph’s’ Original Sin”, National Review Online, June 28).
MORE LINKS: Bill Vance, CanadianDriver.com (”The Corvair’s handling would later be exonerated, but the damage had been done”); Corvair Society of America (CORSA); Brock Yates, Car & Driver, reprinted in CORSA’sThe Windmill, Nov./Dec. 1971, and Charles B. Camp, “Popularity of Nader Declines to Its Nadir Among Corvair Owners”, Wall Street Journal, July 23, 1971, reprinted at Rick’s Corvair Scrapbook; Thomas Sowell, “Lawsuits and Legal Visions”, 1987 speech at Shavano Institute Seminar, reprinted at tsowell.com; Andrew Gurudata, “Great Car At Any Speed“, Corvair Webring; Corvair Project.
July 13 – Access to something. Federal prosecutors are investigating claims that attorney Denice Patrick of Lynnwood, Washington, outside of Seattle, violated ethics and conflict-of-interest rules. Specifically, they’re looking into allegations that while employed to write legal decisions for the federal Social Security Administration, she also “moonlighted for more than a year as a private lawyer who devoted much of her practice to bringing claims against the agency.” Ms. Patrick, whose attorney denies the charges and says they’re being brought against her in retaliation for whistleblowing about agency wrongdoing, has been active on a Washington State Bar Association panel promoting “access to justice“. (Sam Skolnik, “Lawyer allegedly violated ethics”, Seattle Post-Intelligencer, May 22).
July 12 – Battered? Hand over your kids. Latest advance in child protection: seizing and placing in foster care children whose moms are abused by their husbands or boyfriends or vice versa. New York City can remove kids from their homes if either parent is believed to “engage in acts of domestic violence,” such as slaps, kicks, shoves, or more serious violence, whether or not these acts are directed at the children. “Often,” reports the New York Times’s Somini Sengupta, the parent who loses children this way “may have done nothing wrong or negligent, but simply lacked the financial or emotional resources to leave an abusive partner.” The rules encourage victims of abuse to conceal it, fearing their kids will be taken from them if they tell medical or social workers. And while it’s clearly not good for a child to observe parents engaged in domestic battles, advocates say the city underestimates the trauma to kids of being yanked out of the home they know and sent to live among strangers. (Somini Sengupta, “Tough Justice: Taking a Child When One Parent Is Battered”, New York Times, July 8 (reg)). Update Oct. 31, 2004: New York high court ruling favorable to mothers; Dec. 19, 2004 city agrees to change policy.
July 12 – Forum-shopping in South Carolina. Last year, AP reports, the big railroad CSX paid out about $5 million in five accident lawsuits filed in Hampton County, S.C., and it faces another 15 cases pending in the county, all represented by the Hampton law firm of Peters, Murdaugh, Parker, Eltzroth & Detrick. However, none of the five accidents being sued over had actually taken place in Hampton County; all had been taken there from elsewhere in search of the plaintiff-friendly brand of justice handed out in the impoverished county, where 40 percent of residents have not graduated high school. “They are poor people who don’t like big corporations,” said Dick Harpootlian, a prominent plaintiff’s lawyer in the state capital, Columbia, as well as chairman of the state’s Democratic Party. “We don’t mind being there if we belong there, but these cases are being valued at between two and three times what they would elsewhere,” said Jim Lady, a lawyer for the railroad, who adds that it would be equally unfair if the law permitted his client to remove all cases to Lexington County, where jurors are known as being as conservative as those in Hampton are liberal. Now a move is afoot in the state legislature to curb forum-shopping by giving plaintiffs a choice of at most three venues: the one where the accident took place, the one where they live, or the one where the railroad is headquartered. Trial lawyers are upset: “If they are paying us more than what they are paying elsewhere, it’s because they are not paying fairly in other counties,” says Johnny Parker, a lawyer with the Peters firm in Hampton. State Sen. Brad Hutto (D-Orangeburg), whose district includes Hampton County and who also happens to be a trial attorney, says that the move “smacks of special-interest legislation … Every courthouse in this state is presided over by a judge. If CSX doesn’t like the result of a court case, they have the right to appeal. It’s not the law firm that’s being punished, it’s the person bringing the suit.” The Virginia legislature some years back enacted similar legislation curbing the ability of lawyers from around the state to file railroad suits in the city of Portsmouth, where juries had a reputation for big-ticket verdicts. (Associated Press, “Bill would make generous Hampton County juries unavilable in many railroad suits,” South Carolina state/regional wire, June 12).
July 12 – Suing Nike for getting hacked. Some Web-watchers have been predicting (see Feb. 26) that lawsuits may be forthcoming attempting to lay the costs of hacker attacks on deep-pocket entities that, it’s argued, should have done more to prevent them. Now a Web entrepreneur named Greg Lloyd Smith says his lawyers are drawing up a complaint against Nike. “His beef: When Nike’s website was hijacked [last month], whoever hijacked the domain re-directed Nike.com’s traffic through Smith’s Web servers in the U.K., bogging them down and costing Smith’s Web hosting company time and money.” (Craig Bicknell, “Whom to Sue for Nike.com Hack?”, Wired News, June 29; “Webjackers Do It To Nike”, Wired News, June 21).
July 11 – Australia: antibias laws curb speech. An official civil-rights tribunal in New South Wales, the most populous state in Australia, has ruled that the Australian Financial Review committed an unlawful act of bias when it published an article on its opinion page making slighting comments about Palestinians. The offending piece, a short item by journalist Tom Switzer, had suggested that Palestinians had engaged in acts of terrorism, could not be trusted in Mideast peace talks, and remained “vicious thugs who show no serious willingness to comply with agreements”. The tribunal “found it was irrelevant whether the author intended to incite racial hatred or whether anyone had in fact been incited”, and dismissed a free-comment defense as irrelevant. It has yet to decide on a “remedy” for the speech; among its powers are to order a retraction and apology, and to order the paper, which is owned by the John Fairfax Group, to “implement a program or policy aimed at eliminating unlawful discrimination”. (Mike Seccombe, “Finding ‘restricts’ freedom of speech”, Sydney Morning Herald, Jul. 10) (via Freedom News Daily).
July 11 – “Report on medical errors called erroneous”. You read it here first (see Feb. 22, Feb. 28, March 7 commentaries): more critics are stepping forward to find fault with that highly publicized study alleging that “medical errors” kill between 44,000 and 98,000 patients a year. In the Journal of the American Medical Association, three doctors associated with the University of Indiana’s Regenstreif Institute explain why they believe the study is so constructed as to exaggerate the avoidable damage done by medical mistakes, and study author Lucian Leape, of Harvard’s School of Public Health, responds with a defense. (Rick Weiss, “Report on Medical Errors Called Erroneous”, Washington Post, July 5; Clement J. McDonald; Michael Weiner; Siu L. Hui, “Deaths Due to Medical Errors Are Exaggerated in Institute of Medicine Report” (text) (pdf); Lucian L. Leape, “Institute of Medicine Medical Error Figures Are Not Exaggerated” (text) (pdf), JAMA, July 5 (table of contents))
July 11 – ADA’s unintended consequences. The Americans with Disabilities Act was supposed to improve the employment outlook for disabled persons, but instead their participation in the labor force has plunged steeply since the act’s passage compared with that of the able-bodied. Thomas DeLeire, assistant professor at the University of Chicago, Harris Graduate School of Public Policy Studies, analyzed data for a sample of men aged 18 to 65 and found that labor force participation fell after the act for virtually every identifiable subgroup of disabled men, but that the relative slippage was worst for those with lower levels of job experience and education, and those with mental impairments. DeLeire believes the law has imposed on employers perverse incentives not to hire and retain disabled workers, since they now risk the possibility of costly and uncertain disputes should they differ with the worker about what constitutes “reasonable” (and thus obligatory) accommodation. (”The Unintended Consequences of the Americans with Disabilities Act”, Regulation, v. 23, no. 1 — table of contents links to pdf document).
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March 31-April 2 – Punished for resistance. Gun-suit organizers were hoping Smith & Wesson’s capitulation would bring about a race among other firearms makers to settle; instead, manufacturers, dealers and buyers are racing to dissociate themselves from the hapless company, formerly the market leader. Now — in a move that counts as heavy-handed even by the standards of activist attorneys general — Connecticut AG Richard Blumenthal and New York’s Eliot Spitzer are readying antitrust action against companies in the gun industry for the offense of shunning S&W. Connecticut reportedly issued subpoenas yesterday; among possible grievances bruited in the New York Times‘ account are that some organizers of shooting matches have told S&W that it is no longer welcome, that dealers are dropping its wares, and that other gun companies are unwilling to go on coordinating their legal defense efforts with S&W, which means it will have to find a new law firm. Blumenthal’s and Spitzer’s message to those in the gun business could hardly be clearer: better go quietly, because we’ll crush you if you resist in any organized way. (Fox Butterfield and Raymond Hernandez, “Gun Maker’s Accord on Curbs Brings Industry Pressure”, New York Times, March 30; Peter Slevin and Sharon Walsh, “Conn. Subpoenas Firms in Gun Antitrust Probe”, Washington Post, March 31).
March 31-April 2 – Terminix vs. consumer critic’s website. Pest control company Terminix retreats from courtroom efforts to swat dissatisfied consumer Carla Virga, who put up a website to publicize her unhappiness with its services. After its defamation suit was dismissed, the company tried again on the theory that Ms. Virga was infringing its rights by using the word Terminix itself in “metatags” directed at search engine listings. This succeeded in infuriating many in the Web community, and now the company has backed off that second action as well. Other companies that have gone to court against angry-consumer websites include Bally Total Fitness, Circuit City, and U-Haul. (Craig Bicknell, “Site No Longer Bugs Terminix”, Wired News, Mar. 11; Robyn Blumner, “Welcome to the world of free-speech exterminators”, St. Petersburg Times, Mar. 19).
March 31-April 2 – Employer-based health coverage in retreat? Report in the news-side Wall Street Journal last month suggests more big employers are beginning to “look for an exit strategy from the health-benefits business”, especially since “it’s possible that Congress or a court ruling will expose employers to legal liability in malpractice cases“. Under “defined contribution” models pioneered at Xerox Corp. and elsewhere, employees are given lump-sum health vouchers and told to find the plan that’s best for them. Sanford C. Bernstein analyst Kenneth Abramowitz sees the benefits of giving workers choice, but points out the danger that employees will be cut loose with a “Yellow Pages” outcome: “Here’s $5,000 and the Yellow Pages. You figure it out.” “Adding new liability for companies could prompt some to scuttle their health-benefits programs and send employees into the market to fend for themselves. Says Margaret O’Kane, head of a managed-care accrediting organization called the National Committee for Quality Assurance: ‘If employers find themselves in the path of the trial lawyers, I think you can expect a massive bailout’”. (Ron Winslow and Carol Gentry, “Health-Benefits Trend: Give Workers Money, Let Them Buy a Plan”, Wall Street Journal, Feb. 8, fee-based library).
March 31-April 2 – Welcome Milwaukee Journal Sentinel readers. Overlawyered.com was a featured website earlier this month in Bob Schwabach’s “On Computers” column, which runs in Wisconsin’s leading paper and many others nationwide (March 9).
March 30 – Hollywood special: “Erin Brockovich”. The words “babelicious” and “toxic tort” had probably never been used in the same sentence before, but Julia Roberts’ new flick is finally showing that with the right costume design a litigation movie can ace the box office. Now the Hudson Institute’s Mike Fumento, in an op-ed in Tuesday’s Wall Street Journal expanded considerably into a piece in yesterday’s National Post (Canada), challenges the premise, taken for granted among most reviewers of the film, that Pacific Gas & Electric was guilty as charged of poisoning the populace of a small California desert town with chromium-6 in the water. Fumento says the levels of contamination found were orders of magnitude lower than those needed to induce health effects in experimental animals; that the lawyers sought to blame on the water a wide assortment of ailments among local residents that science has not linked to chromium exposure; and that health studies found that the plant’s own workers, who were likely exposed to at least as much pollution as neighbors, had a life expectancy comfortably exceeding the California average. (Michael Fumento, “The dark side of Erin Brockovich”, National Post, March 29; Michael Fumento, “‘Erin Brockovich’, exposed”, Wall Street Journal, March 28; official film site; Mr. Showbiz review; Christine Hanley, “Brockovich’s Work Is Just Beginning”, AP/ABC News, March 27).
March 30 – Hollywood special: “The Insider”. Though nominated for numerous Oscars, last season’s portentous litigation epic The Insider got shut out in the actual naming of awards. Were Academy voters bothered by the film’s unacknowledged fictionalizations, or did they just share the views of Adam Heimlich of the New York Press, who last week called the film “preposterously overheated … The title character’s big revelation in this interminable movie — which treats the looting of tobacco companies by trial lawyers with enough gravitas to make Judgment at Nuremberg feel like Oklahoma! by comparison — is that ‘cigarettes are nothing but a delivery system for nicotine.’ … God forbid someone in Hollywood or on the Upper West Side speaks out against the selective demonization, for purposes of state and oligarchic power, of the drugs they don’t happen to use. Philip Morris should fight back with a drama exposing that Starbucks lattes are nothing but a delivery system for caffeine and martinis are nothing but a delivery system for alcohol. If Insider wins Best Picture … it’ll prove that Hollywood is nothing but a delivery system for the propagandistic justification of top-down class warfare.” But it didn’t win. (Adam Heimlich, “Heimytown”, New York Press, Mar. 22).
March 30 – Al Gore among friendly crowd. Last Thursday Vice President Gore attended a $500,000 luncheon fund-raiser at the Cincinnati home of Stanley Chesley, sometimes nicknamed the “Master of Disaster”, one of the country’s most prominent plaintiff’s trial lawyers. The Cincinnati Post says that Chesley, known for air-crash, tobacco and Microsoft suits, “has been a dependable fund-raiser for the vice president and President Clinton.” (Bill Straub, “Gore next to visit Cincinnati to raise funds”, Cincinnati Post, March 22; Sharon Moloney, “Gore bashes Bush tax plan”, Cincinnati Post, March 24); Christopher Palmeri and James Samuelson, “The Golden Leaf”, Forbes, July 7, 1997). For recent fund-raising by Bill Clinton among trial lawyers, see our Feb. 14 commentary.
Forbes Online columnist James Freeman recently took a hard look at Gore’s in-depth support from trial lawyers (”Who’s funding Gore?”, Feb. 28). Gore’s financial backers over the years have included most of the biggest names in the litigation business, including Wayne Reaud (asbestos, Toshiba laptops), John O’Quinn (breast implants, many others), Joe Rice (asbestos, tobacco), Bill Lerach (shareholder lawsuits), etc. Gore hosted Lerach at the White House for coffee in February 1995, Freeman writes, and Chesley was there for coffee that same day.
March 29 — Litigator’s bliss: finding opponent’s disgruntled former employee. “Assume the legal lotus position and imagine a happy place. What greater nirvana could there be than [finding] the disgruntled former employee of an opposing party? Gruntled or not, a high priority of any good discovery plan should be to identify and interview former employees as quickly as possible, before the other side can neutralize or co-opt them.” (Jerold S. Solovy and Robert L. Byman, “Discovery: Ex parte, Brutus?” (practitioners’ advice column), National Law Journal, March 27, not online).
March 29 – Why rush that software project, anyway? California adds to its reputation as a high-hassle state for tech employers with a law taking effect this year, backed by unions and plaintiff’s employment lawyers, requiring that many computer consultants be paid overtime rates if they put in more than eight hours in a day. Many such consultants bill at rates that exceed $50, $100 or even $200 an hour, before the overtime premium is added in. One Bay Area staffing exec says most of his employer clients are unwilling to trigger the overtime entitlement and are instead sending home specialists after eight hours who would previously have worked longer (Margaret Steen, “New overtime law spurs change in tech firms”, San Jose Mercury News, March 22, link now dead; “Hi, OT Law; Bye, Tech Boom?”, Reuters/Wired News, March 2; Margaret Steen, “New law means overtime pay for computer consultants”, San Jose Mercury News, Feb. 29; Kirby C. Wilcox, Leslie L. Abbott and Caroline A. Zuk, “The 8-Hour Day Returns”, CalLaw, Jan. 24).
March 29 – The bold cosmetologists of law enforcement. The New York Times took note this Sunday of efforts in Nevada and Connecticut to enlist beauty-parlor personnel in the task of identifying possible victims of domestic violence for referral to battered women’s shelters and other social service agencies (see our March 16 commentary). Its report adds a remarkable new detail regarding the sorts of indicators that Nevada cosmetologists are being officially encouraged to watch for as signs of household violence (being licensed by the state, they have reason to listen with care to what’s expected of them). “Torn-out hair or a bruised eye may signal abuse, but more subtle warning signs may come out in conversation. One Nevada hairdresser, [state official Veronica] Boyd-Frenkel said, told of a client who said: ‘My husband doesn’t want me to see my friend anymore. He says she is putting bad ideas in my head.’
“‘Emotional abuse, intimidation, control, jealousy, overpossessiveness and constant monitoring,’ she said, can be as sure signs of domestic violence as physical injuries.” Does Ms. Boyd-Frenkel, who holds the title of “domestic violence ombudsman” for the attorney general of Nevada, really deem it “emotional abuse” and potential domestic violence when a husband seeks to warn a wife (or vice versa) away from a friend who’s considered a bad influence? Is such spousal behavior really to trigger the notice of the official social-service apparatus, and its new deputies in the hair and nail salons of Nevada? (Jeff Stryker, “Those Who Stand and Coif Might Also Protect”, New York Times, March 26).
March 29 – Update: advice to drop medication unavailing. As reported earlier, subway-push defendant Andrew Goldstein went off his antipsychotic medication before his recent murder trial on advice of his lawyers, in order to demonstrate to the jury how deranged he was (see Feb. 26-27 and March 2 commentaries). Whatever the ethical status of this tactic, it was apparently unavailing in practice: a New York City jury convicted Goldstein of murder last week. He will probably serve his sentence in a state prison outfitted to give him psychiatric care. (Samuel Maull, “Man Convicted in Subway Shove Case”, AP/Excite, Mar. 22).
March 28 – $65 million Texas verdict: driver at twice the legal blood limit. “A Galveston, Texas, jury has awarded $65 million to the parents and estate of a woman who drowned after her car plunged off a boat ramp and she couldn’t disengage her seat belt.
“The jury found defendants Honda of America Manufacturing Co. Inc. and Honda R & D Co. Ltd. 75 percent responsible for the death of Karen Norman — even though after her death, Norman’s blood-alcohol level measured at nearly twice the Texas legal limit. …
“After the accident, [Honda attorney Brad] Safon noted, Norman’s blood-alcohol level was measured at 0.17. The Texas drunk driving limit at the time of the accident was 0.10; it is now 0.08.” Plaintiff’s lawyers said the salt water in which Norman drowned might have thrown off the blood level reading. (Margaret Cronin Fisk, “Fatal Grip of Seat Belt Results in $65M Verdict”, National Law Journal, Mar. 27)(& update Oct. 13, 2003: appeals court throws out award, which trial judge has previously reduced to $43 million).
March 28 – Call me a fraud, will you? Why, I’ll…I’ll hire you! Last year Big Five accountants Ernst & Young paid $185 million to settle a bankruptcy trustee’s charges that it had mishandled the affairs of the now-defunct Merry-Go-Round apparel chain. Now Ernst has sued its former law firm, D.C.-based Swidler Berlin Shereff Friedman, which it says should share the blame. And to prosecute the new suit Ernst has hired none other than the law firm that sued it in the first round, Snyder, Weiner, Weltchek & Vogelstein of Pikesville, Md. “Swidler noted that Snyder Weiner in the earlier suit had accused Ernst of fraud, and now Snyder Weiner in ‘this complaint asserts “E&Y’s innocence of the fraud”‘”. An Ernst executive shrugs off criticism: “Who knows about the case more than the firm that argued the other side?” (Elizabeth MacDonald, “Ernst & Young Sues Law Firm Over Settlement”, Wall Street Journal, March 14 (online subscribers only); James V. Grimaldi, “Accounting Firm Sues Lawyers”, Washington Post, March 14).
March 28 – Annals of zero tolerance: don’t play James Bond. A fifth-grade “model student” at Sutton Elementary School in Tecumseh, Michigan faces expulsion for up to a half year for bringing a plastic toy gun to school because he wanted to “play James Bond”. “You could see it was plastic,” said school superintendent Rich Fauble. “If you looked at it, you could tell it wasn’t a gun.” “I just wanted to play with it at recess,” said the boy, in Fauble’s account. “I didn’t want to hurt anybody. I play with it at home.” Sutton principal Debra Langmeyer said the board’s recommendation of expulsion “might seem extreme” but is intended to “send a message” about guns. (”Toy gun may cause student’s expulsion”, Toledo Blade, Mar. 16).
March 28 – From the labor arbitration front. The Connecticut Supreme Court, over dissents from two of its members, has upheld an arbitrator’s order that David Warren be reinstated to his municipal job in the town of Groton, from which he was dismissed in 1997 after pleading no contest to charges of larceny. Warren was accused of stealing money from the town by selling dumping permits and pocketing the proceeds himself, but the court saw no reason to disturb an arbitrator’s reasoning that his no contest plea might have reflected a wish to avoid the cost and inconvenience of trial, rather than actual guilt. (”‘No-contest’ not guilty, Supreme Court says”, New Haven Register, March 21). And the U.S. Supreme Court has agreed to review an arbitrator’s order that a West Virginia mining company rehire a heavy machinery operator fired after he twice tested positive for marijuana use. The Fourth Circuit upheld the reinstatement, noting that courts “overwhelmingly” defer to the results of arbitration in the unionized workplace. (AP/FindLaw, “Supreme Court to clarify when lower courts can overrule arbitrators”, Mar. 20; Eastern Associated Coal Corp. vs. United Mine Workers, 99-1038).
March 28 – Another visitor record set. Last week was the busiest yet for visitors since Overlawyered.com was launched nine months ago … thanks for your support!
March 27 – Welcome Arts & Letters Daily readers. The best weblog in the world for coverage of essays and history, biography and belles-lettres, is put out for a worldwide audience by philosophy professor Denis Dutton of the University of Christchurch in New Zealand. We get a featured link today (see right-hand column after link to Sullivan piece, for which itself see below).
March 27 – Another S&W thing. “We want to do a Smith & Wesson-like thing with DoubleClick,” Michigan attorney general Jennifer Granholm said Thursday, referring to restrictions on Web data collection that she and attorneys general from New York, Connecticut, and Vermont have been negotiating with the biggest online ad-placement company. We suppose this means that she and her colleagues want to invent far-fetched legal theories to attack business practices that have long been regarded as lawful; file a great flurry of suits in multiple courts so as to overwhelm the designated opponent; use the threat of bankrupting legal expense to muscle it into submission with no need to reach a decision on the merits; and instill fear into other businesses that the same thing could happen to them unless they cooperate with the dictates of ambitious AGs. After all, that’s what was done to S&W. (”AGs Eye Privacy”, Reuters/Wired News, March 23; “DoubleClick in settlement discussions”, Bloomberg News/CNet, March 23).
March 27 – Philadelphia: feminist groups to be consulted on whether to classify incidents as rape. As several high-profile cases in recent years demonstrate, authorities sometimes charge men with rape or sexual abuse in cases where there’s conflicting or ambiguous evidence as to whether there was nonconsensual sexual contact (see, for example, the case of Columbia University grad student Oliver Jovanovic, whose conviction was overturned by a New York appeals court in December). Now Philadelphia police commissioner John Timoney has announced that “he will let women’s organizations help police decide when to believe sexual-assault complaints and how to classify them.” Barbara DiTullio, who heads the Pennsylvania chapter of the National Organization for Women, called the plan “wonderful” and said it could become a model for police departments across the country. “We’re putting together a committee of women . . . and [will] actually, quite literally, let this women’s group be the final say on our classification [of cases]” said Timoney in an interview, though the women’s groups themselves expressed doubt as to whether their say would be final. (Mark Fazlollah, Craig McCoy, and Robert Moran, “Timoney to allow sex-case oversight”, Philadelphia Inquirer, Mar. 21) (via Freedom News).
March 27 – Microsoft Windows downgrade. Be prepared for the Justice Department’s anticipated “remedies” in Reno v. Gates by visiting this parody site (Bob Rivers, KISW, Seattle).
March 27 – Social engineering by lawsuit. Yale law professor Peter Schuck “doubts [that Smith & Wesson] would have lost a court case,” according to this New York Times “Week in Review” piece, which also quotes the editor of this website concerning the evils of litigation as an end run around democratic process (Barry Meier, “Bringing Lawsuits to Do What Congress Won’t”, New York Times, March 26). Cato Institute fellow Doug Bandow wonders why undemocratic lawmaking-by-lawsuit hasn’t become a bigger election issue: “Politics is a bad way to make policy. Litigation is worse.” (”Litigative vs. Legislative Democracy”, Cato Daily Commentary, March 20). And Andrew Sullivan warns Britons that unless they watch out, their country’s trend toward “empowerment of lawyers” will lead them to the state of “hyper-litigation” typified by the U.S. (”A brief warning: soon lawyers will have Britain by the throat”, Sunday Times (London), March 26).
Also: we’ve now put online our editor’s op-ed from last Tuesday on the Smith & Wesson settlement, which expanded on the arguments made earlier in this space (Walter Olson, “Plaintiff’s lawyers take aim at democracy”, Wall Street Journal, March 21).
March 27 – Kessler rebuked. Last week the Supreme Court ruled that former Food and Drug Administration chief David Kessler had made an improper power grab when he claimed for his agency “broad powers that had somehow gone unnoticed for more than half a century” to regulate tobacco, writes Chicago Tribune columnist Steve Chapman: “This was a startling revelation indeed. In 1964, the FDA said it had no authority to regulate tobacco. In 1965, it said it had no authority to regulate tobacco. In 1972, it said it had no authority to regulate tobacco. Ditto in 1977, 1980, 1988, and so on — until four years ago, when Kessler checked the attic and was pleasantly surprised to find this prerogative stashed in a box crammed with eight-track tapes and copies of Look.” (”On Target: A Setback for the Anti-Tobacco Jihad”, March 23; Tony Mauro, “For ‘Better or Worse’ FDA Can’t Regulate Tobacco”, American Lawyer Media, March 22).
March 24-26 – “Trial Lawyers Pour Money Into Democrats’ Chests”. The article everyone’s talking about: yesterday’s New York Times shines some overdue light on the trial lawyers’ frantic shoveling of vast sums into this year’s federal election races. “‘It would be very, very horrifying to trial lawyers if Bush were elected,’ said John P. Coale, a Washington lawyer involved in the tobacco litigation, who has given over $70,000 to the Democrats. ‘To combat that, we want to make sure we have a Democratic president, House and Senate. There is some serious tobacco money being spread around.’” “What’s different this time around,” said Michael Hotra, vice president of the American Tort Reform Foundation, “is that everyone recognizes that the stakes are higher. We have a candidate who is making legal reform a core issue and we certainly applaud Bush for that.” Also discusses the website ATRF has set up to monitor trial lawyer campaign spending (Leslie Wayne, “Trial Lawyers Pour Money Into Democrats’ Chests”, New York Times, March 23).
March 24-26 – Who wants to sue for a million? A group of disabled Miami residents has filed a federal lawsuit against Disney and ABC under the Americans with Disabilities Act, claiming that the screening process for the hit TV show “Who Wants To Be a Millionaire” requires the use of a touch-tone telephone and does not make alternative provision for deaf applicants. “The group is seeking class-action status for themselves and others who are deaf, blind or paralyzed and have problems using the phone or hearing the instructions.” (Jay Weaver, “Disabled 4 sue to try for TV million”, Miami Herald, March 17). Update Nov. 7: federal judge dismisses case.
March 24-26 – Next: gender-blind stage casting? A federal jury in Nashville has returned a sex discrimination verdict against a pair of historical theme restaurants that hired only male food servers as a part of attempting to convey the atmosphere of 1800s-era riverboats. The Equal Employment Opportunity Commission sued Cock of the Walk restaurants in 1996 after a woman named Susan Mathis carried a secret tape recorder in her purse while applying for a server’s job (more on the curious lack of outrage over this practice). “The servers had to represent the legendary fighters who brawled for the privilege of steering the riverboats, which netted them the best-of-the-best title: ‘Cock of the Walk’,” a group that historically did not include women.
In 1997 the EEOC came under criticism for its crusade against the “Hooters” sexy-waitress chain, which paid $3.75 million in a settlement in hopes of not having to hire “Hooters Boys”. However, the agency’s contention that entertainment value is an improper basis for sex-casting in the hiring of food servers “has never been applied [by a court] to a more mainstream restaurant such as this, which does not have sexual titillation as part of its theme,” said a lawyer for the restaurants. (Stacey Hartmann, “Restaurants’ male-server policy loses in court”, The Tennessean (Nashville), March 16).
March 24-26 – Slip, fall, head for court. Roundup of recent Chicago gravity mishaps, as reported in the Sun-Times and relayed in Jim Romenesko’s irresistible Obscure Store: “Debbie Jacques was forced to wear paper booties when she tumbled. Monica Beeks walked in deep, loose grass, and fell. John Incisi tripped on a Kleenex box left on the stairs. They’re all hanging out in civil court, hoping to get some cash.” (Tim Novak, “Health worker blames paper booties for slip”, Chicago Sun-Times, Mar. 21).
March 24-26 – Welcome visitors. A sampling of the websites that have linked to Overlawyered.com recently: the distinguished literary and arts monthly, the New Criterion; ABC News correspondent John Stossel’s site; the Capital Research Center, which keeps an eye on politicized philanthopy; Pat Fish’s Luckyfish.com; the Nebraska Taxpayers for Freedom; Pickaway County (Ohio) Sportsmen, known for their shooting competitions; and Turkey’s Association for Liberal Thinking (Liberal Düsünce Toplulugu).
March 23 – Baron’s judge grudge. Dallas asbestos-suit czar Fred Baron may or may not have added another notch to his belt with the GOP primary defeat this month of Texas 14th District Court judge John Marshall. In 1998 Judge Marshall was presiding over asbestos litigation filed by Baron & Budd when evidence surfaced that the firm had engaged in extensive witness-coaching (see “Thanks for the Memories“); Judge Marshall referred the matter to a grand jury for possible prosecution, but the charges were eventually quietly buried without indictments. Baron, who now claims vindication, “made no secret of the fact he wants Marshall’s head,” according to alt-weekly Dallas Observer in a report just before the primary. “As early as last spring, Baron was casting about, looking for a candidate to back. ‘I talked to half a dozen people. We were looking for any candidate we could get who would be qualified to run against John Marshall’”. It had to be in the Republican primary, though, which is nowadays tantamount to election in Dallas County. First-time candidate Mary Murphy of Jenkins & Gilchrest, the one who eventually stepped forward to challenge Marshall, “insists she’ll be a fine Republican judge even though she wrote a $1,000 check to the Democratic party four years ago” among other past Democratic ties. “I had nothing to do with getting Mary Murphy to run. That’s a lie, a complete and absolute lie,” Baron told the Observer. Murphy says Baron did try to talk her into running but that it was others who convinced her. Promptly assembling an ample campaign chest, she went on to defeat the incumbent Marshall, obtaining 52 percent of the vote. (Thomas Korosec, “Bench Press”, Dallas Observer, March 9; Todd J. Gillman, “Republican judge questions challenger’s party loyalty”, Dallas Morning News, Feb. 19; Holly Becka, “Voters sent message by ousting three judges, experts say”, Dallas Morning News, March 16 (links now dead)).
Baron, whom we believe holds the title of president-elect of the Association of Trial Lawyers of America (we apparently jumped the gun recently in awarding him the title of president), has in the past been touchy about criticism. In 1998, when the Dallas Observer ran a cover-story exposé on his firm, columnist Julie Lyons said Baron had “bullie[d] the Observer’s every effort to investigate his firm’s practices, even taking the newspaper to court to discover sources, in a pattern of intimidation and paranoia such as the Observer has never experienced before.” (Patrick Williams, Christine Biederman, Thomas Korosec, Julie Lyons, “Toxic Justice”, August 18, 1998; Julie Lyons, “The Control Freak”, August 12, 1998. See also earlier Baron coverage on this website: Feb. 14, Jan. 8).
March 23 – Update: mistrial in bank robber’s suit, more litigation expected. By a vote of 9 to 3, jurors in their deliberations were of the view “that the civil rights of Emil Matasareanu, armed criminal, shooter of cops, were not violated on Feb. 27, 1998, by officers who didn’t get an ambulance to poor Emil quickly enough” after his bloody shootout with police following a North Hollywood bank robbery (see Feb. 23 commentary). A federal judge declared a mistrial, and an L.A. Times columnist writes that “the attorney for Matasareanu’s survivors is expected to bring the case against the city and two retired LAPD officers to court again. By survivors, I mean the dead man’s family, not the people he didn’t kill.” (Mike Downey, “A World With No Bad Guys, Just Topsy-Turvy Juries”, Los Angeles Times, March 17, link now dead).
March 23 – Let them sue us! In the recent media boomlet over “medical mistakes”, it’s been easy to forget that hospitals currently must anticipate years of expensive litigation if they move aggressively to withdraw practice privileges from perceived “problem doctors”. Consider the now-celebrated “Dr. Zorro” case, in which Dr. Allan Zarkin is alleged to have carved his initials into a patient’s body at New York’s Beth Israel Hospital. The hospital’s chairman, Morton P. Hyman, “vowed he would make it harder for doctors to maintain their privileges at Beth Israel and would see that hospital procedures were tightened further. … Doctors disciplined by the state will be automatically dismissed from the hospital, he announced, even if their firings leave the hospital liable. ‘Let them sue us,’ he said, pounding the table.” (Jennifer Steinhauer, “At Beth Israel, Lapses in Care Mar Gains in Technology”, New York Times, Feb. 15, not online).
March 22 – Next on the class-action agenda: liquor? Public Citizen, whose campaigns against American business often closely parallel those of the organized plaintiff’s bar, has for a while been grouping alcohol and gambling companies with tobacco and gun makers as “killer industries” in its distinctively shrill propaganda. (”Killer Industries Fund Congressional Champions of “Family Values’”, press release, Dec. 28, 1998, “Family Values, Killer Industries”, undated; both on Public Citizen website). And the pro-hospitality-business Guest Choice Network thinks it has evidence that the previously long-shot idea of mass litigation against alcoholic beverage makers may be getting to be less of a long shot:
“* The Minnesota DWI Task Force called upon their state’s criminal justice system to initiate class action litigation against makers of adult beverages.
“* MADD’s [Mothers Against Drunk Driving's] year-end press conference closed with a comment from president Karolyn Nunnallee that initiating litigation against alcohol and hospitality companies ‘will be an issue of discussion’ at an upcoming meeting. Although MADD did not have plans to sue ‘at this time,’ she added, ‘but never say never!’” (”They’re Bellying Up to the Bar!”, Guest Choice Network, undated). Martin Morse Wooster examines the evolution of MADD’s views in a new paper for Capital Research Center (”Mothers Against Drunk Driving: Has Its Vision Become Blurred?”, Feb. 2000).
March 22 – Rise of the high school sleepover disclaimer. Before having some of his daughter’s tenth-grade classmates out for the weekend to the family home in East Hampton, a parent at Manhattan’s tony Brearley School had his attorney draft a 765-word “liability waiver and indemnification agreement” for the other parents to sign and return. It describes the students’ impending visit to the “house and surrounding property at the above address (the ‘premises’) without charge on or about Saturday, November 20, 1999 and Sunday, November 21, 1999 during their weekend trip to East Hampton, NY (such use of the premises, the ‘visit’).” Several dense sentences later, it gets to the point: “Student and parent hereby waive any and all present and future claims related to or arising out of or in connection with the visit or any losses they, any other family member or any third party may suffer in connection therewith…” Apparently enough parents signed and the trip came off with no problem. (”Gotham: In Loco Parentis”, New York, Dec. 6; portions of disclaimer appear in printed magazine but not online).
March 22 – Newest disabled right: audio TV captioning. Decision expected this summer on Federal Communications Commission proposal that TV networks be compelled to provide at least four hours of programming a week with “secondary audio” descriptions of filmed action (“…Rhett takes Melanie in his arms and carries her to safety as Atlanta burns around them”) in hopes of giving blind viewers an “equivalent experience” to what sighted viewers are getting. Hollywood types “say descriptions will stifle creativity and jack up programming costs by about $4,000 for an hour of airtime”; audio captioning is considerably more expensive than closed-captioning for the deaf, mandated since 1998, because descriptions of filmed action call for a modicum of editorial judgment as opposed to mere transcription. And the National Federation of the Blind reports that many of its constituents have mixed feelings about the technique, finding it “irritating, overdone, and full of irrelevant information” and switching it off after a trial. (FCC captioning page; Nat’l Fed. Blind comments; Jonathan Aiken, “FCC proposes descriptive audio to help blind enjoy TV”, CNN, Feb. 24). See also our Feb. 19-21 commentary, on the ADA suit filed by deaf moviegoers in Oregon seeking to compel theaters to install closed captioning for films.
March 21 – Smith & Wesson’s “voluntary” capitulation. Today’s Wall Street Journal carries our editor’s op-ed on the Smith & Wesson settlement, adapted and expanded from yesterday’s commentary on this site. The piece asks: why aren’t Republican members of Congress and business people expressing more outrage? “It would surely make a symbolic difference if a few CEOs of companies outside the gun industry chipped in personal checks to start a legal defense fund for small gun makers being bulldozed by the cost of litigation, to give them at least a hope of surviving to fight the suits on the merits. Or if they let it be known that mayors who’ve signed on to the gun-suit jihad should stop passing themselves off as ‘pro-business.’ Not long ago the mayor of Bridgeport, Conn., Joseph Ganim, a gun-suit mastermind who’s considered ambitious for statewide office, was feted by a Chamber of Commerce in his local Fairfield County. Hey — it’s someone else’s industry he’s working to destroy, right?” (Walter Olson, “Plaintiffs Lawyers Take Aim at Democracy”, Wall Street Journal, March 21 (requires online subscription)).
March 21 – Ability to remain conscious not obligatory for train dispatcher, EEOC argues. “In the case of a former Consolidated Rail Corp. employee with a heart condition that can cause him to lose consciousness, the Equal Employment Opportunity Commission told a federal appeals court in Philadelphia that ‘while consciousness is obviously necessary to perform’ train-dispatcher tasks, ‘it is not itself a job function.’” The worker had sued Conrail under the Americans with Disabilities Act and lost in federal court; on appeal, the EEOC argued that the railroad could have accommodated his condition and that he was not a ‘direct threat’ to others, which is the standard employers must meet under the ADA if they wish to exclude disabled employees from jobs on safety grounds. “The employee was denied a dispatcher’s job that involves directing trains and taking emergency action to prevent crashes.” (”Employment Briefs: Worker denied promotion sues”, Detroit News, March 18).
March 21 – Furor just one click away. Outcry over Amazon.com’s patent of “one-click” shopping method rumbles on. Founder/CEO Jeff Bezos says the company did it in self-defense; he’s now proposed an across-the-board reduction in the length of patent protection for software and business-method patents. Some veteran intellectual-property lawyers take issue with that scheme and are also upset at a New York Times Magazine article by science writer James Gleick questioning some of the patent system’s fundamental assumptions. Until recently it was widely assumed that business methods — the discovery of a superior method for laying out the aisles of a supermarket, for example — couldn’t be patented at all. What would stores be like today if the idea of a “checkout counter” had been locked up for twenty years by the first company to file for it?
SOURCES: Victoria Slind-Flor, “The Biz-Method Patent Rush”, National Law Journal, Feb. 28; Chris Oakes, “Another Amazon Patent Furor”, Wired News, March 2; Boycott Amazon site (Free Software Foundation); Chris Oakes, “Bezos: Patents Were Self-Defense”, Wired News, Mar. 3; Chris Oakes, “Patently Absurd”, Wired News, Mar. 3; Bezos open letter, Amazon site; Dugie Standeford, “Book Publisher Launches Cybercampaign Against Amazon.com”, E-Commerce Law Weekly, March 8; James Gleick, “Patently Absurd,” New York Times Magazine, March 12; “The Harm of Patents”, O’Reilly Network, March 13; Omar Perez, “Amazon.com Patents Cast Giant Shadow Over Affiliates”, March 20; Miami Daily Business Review, March Victoria Slind-Flor, “Bar Reacts To Bezos Patent Reform Plan”, National Law Journal, March 20.
March 21 – Whether they meant to hurt anyone or not. How harsh can the legal environment become for drunk drivers? North Carolina seems to have pushed things to the ultimate extreme: its prosecutors seek to execute them when they cause fatal accidents. (Paula Christian, “Supreme Court to decide if drunk drivers get death penalty”, Greensboro News & Record, Mar. 12).
March 21 – New subpage on Overlawyered.com: Canadian corner. Finally! A page for our many readers north of the border who’ve noticed the nuggets of Canadian content we periodically slip in and would like them gathered in one spot for convenience. As befits the differences between the two legal systems, there isn’t so much “overlawyering” apparent in most of the stories we relay from Canada; but with regard to most other types and varieties of human folly, the two nations seem to be are in a neck-and-neck race.
March 20 – Liberty no longer insured by Smith & Wesson. In an ominous triumph for brute litigation force — and a setback for both democratic governance and Second Amendment liberties — the Clinton Administration and lawyers representing city governments on Friday bullied the nation’s largest gun maker into agreeing to a variety of controls on the distribution of its products, controls that the Administration had not been able to obtain through the normal legislative process. The company said its capitulation would preserve the “viability of Smith & Wesson as an ongoing business entity in the face of the crippling cost of litigation.” As the New York Times reports, the deal has “opened a new avenue for regulating the firearms industry without action from Congress, where partisan gridlock has stalled even modest gun-control legislation in recent months” — “partisan gridlock” being here employed by the Times as a pejorative synonym for the normal democratic process, which when working properly does not result in the speedy enactment of measures passionately opposed by a large constituency within the majority legislative party.
At this point it would make sense for the Republican Congressional leadership to rise up in unmistakable disapproval of the Clintonites’ invasion of their legislative prerogatives, and announce that –whatever one’s personal position on the details of gun control proposals — the use of litigation as an undemocratic end run around the legislative process is categorically wrong and must be fought with appropriate means at Congress’s disposal, such as funding cutoffs. And yet the first round of wire service stories quotes only one GOP Congressional leader, J.C. Watts of Oklahoma, as reacting to the news, and his quoted words, incredibly, are favorable: “we hail Smith & Wesson for taking a pro-active approach to the problem of violence”.
Advocates of gun-control-through-litigation — not to mention trial lawyers looking for an eventual payday from gun suits — view Smith & Wesson’s surrender as a harbinger of more victories ahead. “The legal fees alone are enough to bankrupt the industry,” boasts John Coale, one of the lawyers masterminding the city suits. “The pressure is going to be on”. Why are so few elected officials standing up to say that what’s going on is wrong?
SOURCES: Agreement text at HUD website; Smith & Wesson statement; Clinton Administration press release; “U.S. Drops Legal Threat Against Smith & Wesson”, Reuters/Excite, Mar. 17; Knut Engelmann, “U.S. Drops Legal Action Against Gun Maker”, Reuters/Excite, Mar. 17; David Ho, “Officials Praise Smith & Wesson”, AP/Excite, Mar. 17; Amy Paulson, “Smith & Wesson agrees to landmark gun safety settlement”, CNN, Mar. 17; Brigitte Greenberg, “Smith & Wesson Gets Preference”, AP/Excite, Mar. 18; Edward Walsh and David A. Vise, “U.S., Gunmaker Strike a Deal”, Washington Post, March 18; James Dao, “Gun Maker Agrees to Curbs in Exchange for Ending Suits”, New York Times, March 18 (requires free registration).
March 20 – “Study Shows Breast Implants Pose Little Risk”. “An analysis appearing in Thursday’s New England Journal of Medicine suggests silicone breast implants are safe, despite widespread perception that the controversial devices cause health problems” — not to mention a trial-lawyer-led campaign that drove the devices off the market and reaped a settlement totaling billions of dollars from manufacturers. Researchers at the University of North Carolina, Chapel Hill, performed a combined analysis of 20 earlier studies and concluded that “‘the elimination of implants would not be likely to reduce the incidence of connective-tissue diseases’ such as rheumatoid arthritis, lupus, or other illnesses caused by the misfiring of the immune system”. (Reuters/ FindLaw, Mar. 15).
March 20 – Do as we say, cont’d. Disabled-rights laws are feared by many private business owners who face the prospect of heavy fines and lawsuit settlements for noncompliance. As for the judicial branch, charged with enforcing these selfsame laws? Well, they’re often a wee bit less mindful of ‘em. Howard County, Maryland Circuit Judge James B. Dudley, who isn’t disabled, concedes that his desire to stick close to the courthouse so he could answer jurors’ questions during a trial was “probably not a justification” for his having chosen to park in a clearly marked handicapped space, a practice also engaged in by local sheriff’s deputies. (Del Quentin Wilber, “Judge parks in hot water”, Baltimore Sun, Mar. 11). And in Massachusetts, following on the revelation that Boston’s opulent new courthouse lacks wheelchair access to its jury boxes and witness stands (see July 17-18, 1999 commentary), the Cape Organization for Rights of the Disabled sued over the disabled-unfriendly state of the Plymouth County courthouse; Barry Sumner couldn’t get over the threshold to divorce his wife and had to ask her to help lift his chair. (Paul Sullivan, “Suit seeks access for disabled at Plymouth court”, Boston Herald, Sept. 10, 1999). Aren’t these courts lucky they’re not private businesses?
March 20 – Costs of veggie-libel laws. Talk show hostess Oprah Winfrey keeps winning in round after round of litigation filed by cattlemen after a February 1998 show she did on mad-cow disease. “Ironically, the more she wins, the more she loses,” observes First Amendment specialist Paul McMasters. Aside from our lack of a loser-pays rule, the culprit is “agricultural-disparagement” laws enacted in 13 states, which menace media producers if they knowingly broadcast false and disparaging statements that harm the salability of perishable farm products. (”Shut up and eat everything on your plate”, Freedom Forum Online, Feb. 21; Ronald K.L. Collins and Paul McMasters, “Veggie Libel Laws Still Out to Muzzle Free Speech”, Texas Lawyer, March 30, 1998). Last year the Texas legislature turned back an attempt to repeal that state’s ag-disparagement law, though the Abilene Reporter-News pointed out that the law is hard to square with the state’s successful efforts under Governor Bush to curb excessive litigation. (”‘Veggie libel’ law Texas can live without” (editorial), April 13, 1999; “House lets ‘veggie libel’ law stand; Bill seeking repeal voted down 80-57″, AP/Dallas Morning News, May 8, 1999).
March 20 – 250,000 pages served on Overlawyered.com. Thanks for your support!
March 17-19 – Holiday literary selection: Irish squire’s litigious ways.“Then there was a bleach yard near us, and the tenant dare refuse my lady nothing, for fear of a law-suit Sir Murtagh kept hanging over him about the water course. With these ways of managing, ’tis surprising how cheap my lady got things done, and how proud she was of it. … [The tenants] 
knew her way, and what with fear of driving for rent and Sir Murtagh’s law-suits, they were kept in such good order, they never thought of coming near Castle Stopgap without a present of something or other nothing too much or too little for my lady eggs honey butter meal fish game, grouse, and herrings, fresh or salt all went for something. … [H]e made a good living of trespassing cattle there was always some tenant’s pig, or horse, or cow, or calf, or goose, trespassing, which was so great a gain to Sir Murtagh, that he did not like to hear me talk of repairing fences….
“As for law, I believe no man, dead or alive, ever loved it so well as Sir Murtagh. He had once sixteen suits pending at a time, and I never saw him so much himself roads lanes bogs wells ponds eel-wires orchards trees tythes vagrants gravel-pits sandpits dung-hills and nuisances every thing upon the face of the earth furnished him good matter for a suit. He used to boast that he had a law-suit for every letter in the alphabet. How I used to wonder to see Sir Murtagh in the midst of the papers in his office why he could hardly turn about for them. I made bold to shrug my shoulders once in his presence, and thanked my stars I was not born a gentleman to so much toil and trouble but Sir Murtagh took me up short with his old proverb, ‘learning is better than house or land.’ Out of forty-nine suits which he had, he never lost one but seventeen; the rest he gained with costs, double costs, treble costs sometimes but even that did not pay. He was a very learned man in the law, and had the character of it; but how it was I can’t tell, these suits that he carried cost him a power of money in the end he sold some hundreds a year of the family estate but he was a very learned man in the law, and I know nothing of the matter except having a great regard for the family. I could not help grieving when he sent me to post up notices of the sale of the fee simple of the lands and appurtenances of Timoleague. ‘I know, honest Thady,’ says he to comfort me, ‘what I’m about better than you do; I’m only selling to get the ready money wanting, to carry on my suit with spirit with the Nugents of Carrickashaughlin.’” — from Chapter 1, Castle Rackrent, subtitled An Hibernian Tale Taken from Facts, and from the Manners of the Irish Squires, Before the Year 1782, by Maria Edgeworth (1800) (biographies: Edgeworth family site, E-Search Ireland, WritePage, Morley’s) (e-text at Carnegie-Mellon; alternate e-text location, Creighton U.) (passage is from fourth long paragraph of text).
March 17-19 – Letterman sign suit. Anna Soares, 79, who lives near the Manhattan studio where David Letterman tapes his show, filed a lawsuit last month demanding $12 million from CBS because the network has declined to remove a giant illuminated sign of Letterman’s likeness which shines into her apartment’s window. Network officials say they believe they have the proper permits for the sign. Reader Gregory Kohs of American Cynic comments: “what I find preposterous is the $12 million sum the lady decided would be fair.” If the sign does not violate code, how about asking for the costs of relocating to a less-commercial neighborhood? “I think a wee bit less than $12 million would be sufficient to get her belongings into a moving truck.” (”People in the news: Woman files lawsuit over Letterman sign”, Boulder Daily Camera, Feb. 19) (second item).
March 17-19 – Go ahead and comment — if it’ll do much good. The Occupational Safety and Health Administration’s proposals on ergonomics “may be the single most costly employment policy regulation in U.S. history,” according to the Employment Policy Foundation. Now OSHA has thrown open a period for public comment on the rules, but the Clinton Administration has already signaled that the option favored by most organized employers — not proceeding with the rules at all — is unlikely to be considered, no matter what volume of critical comments may come in. (Alice Ann Love, “Public dialog opens on new workplace safety rules”, AP/Fox News, March 14; Michael D. Towle, “OSHA pushing for new regulations aimed at preventing repetitive motion injuries”, CNN, March 9).
SOURCES: OSHA proposed standard; Yahoo Full Coverage; Ron Bird and Jill Jenkins, “Ergonomics Regulation: Vague, Broad and Costly”, EPF Backgrounder, Jan. 12; National Coalition on Ergonomics (employer alliance); Matt Labash, “Hooked on Ergonomics”, Weekly Standard, Feb. 28; “OSHA Unveils Ergonomics Standard To Ire of Congress, Employer Groups”, Employment Law Weekly, Nov. 29; comments of Mercatus Center, George Mason U., National Association of Manufacturers; (via Junk Science 
Robert Hahn, “Bad Economics, Not Good Ergonomics,” Wall Street Journal, Nov. 24; David Saito-Chung, “What Price Workplace Safety? New Rules Spark Debate Over Science, Business Costs”, Investor’s Business Daily, Nov. 30; “New OSHA regs need rethinking” (editorial), Boston Herald, Nov. 26; “OSHAme on them!” (editorial), New York Post Nov. 24; “Repetitive Bureaucracy Syndrome” (editorial), Chicago Tribune, Nov. 24.
March 16 – Dave Barry on tobacco suits, round II. The humorist, who wrote a priceless column on the federal tobacco suit last fall (see Oct. 26) now offers an update reflecting on the news that “so far the states are spending more than 90 percent of the tobacco-settlement money on programs unrelated to smoking, such as building highways. … This is good, because we need quality highways to handle the sharp increase in the number of Mercedes automobiles purchased by lawyers enriched by the tobacco settlement.” Then there’s the new round of class-action suits contending that smokers themselves deserve money from the states, which if successful will establish the following cycle:
“1. SMOKERS would give money to THE TOBACCO COMPANIES in exchange for cigarettes.
“2. THE TOBACCO COMPANIES would then give the money to THE STATES (and their lawyers).
“3. THE STATES would then give the money to SMOKERS (and their lawyers).
“4. THE SMOKERS would then presumably give the money to THE TOBACCO COMPANIES in exchange for more cigarettes.”
But isn’t this inefficient, you may ask? Wouldn’t it be easier to order the tobacco companies to give smokers free cigarettes directly? “The trouble with that idea is that it would defeat the two main purposes of the War on Smoking, which are (1) to provide the states with money; and (2) to provide lawyers with, well, money.” Don’t miss this one (”War on Smoking always has room for another lawyer”, Miami Herald, Feb. 18).
March 16 – Judges can’t charge cost of corruption defense to insurer. “Three former San Diego Superior Court judges convicted of corruption charges can’t parlay judicial liability insurance into coverage for their criminal defense, the 9th U.S. Circuit Court of Appeals ruled.” In one of the biggest judicial scandals in California history (see our editor’s 1996 piece on the case), Michael Greer, James Malkus and G. Dennis Adams were found to have accepted gifts from prominent trial lawyer Patrick Frega in exchange for favorable rulings in cases. (Jason Hoppin, “No Coverage for Judges Convicted of Corruption”, The Recorder/ CalLaw, March 2).
March 16 – Your hairdresser — and informant? Hairdressers “are often confidantes for many people,” says Veronica Boyd-Frenkel, who holds the post of “domestic violence ombudsman” in the state of Nevada. All this is by way of explaining why her office, working with the state attorney general’s office, has launched a program to train cosmetologists to recognize signs of domestic abuse, the better to steer suspected victims to approved anti-domestic-violence groups. “They may hear things even someone’s best friend may not hear,” says Ms. Boyd-Frenkel, of the hair stylists. The Las Vegas Review-Journal, in an editorial, thinks it all rather smacks of the enlistment of ever wider circles of the citizenry as official informants (Angie Wagner, “State asks hairdressers to help domestic abuse victims”, AP/Las Vegas Review-Journal, Feb. 28; “Down the wrong path” (editorial), Feb. 29; Vin Suprynowicz, “The Libertarian: Watch what you tell your hairdresser” (expanded version of editorial), March 1; “Training would not make informants of cosmetologists” (letter to the editor from Ms. Boyd-Frenkel), March 5).
March 16 – Prof sues for right to flunk students. The University of Michigan describes as “utterly without merit” a lawsuit filed by Dental School associate professor Keith Yohn challenging the university’s refusal to fail two sophomore dental students. Yohn charges that the school bent its academic rules to allow the two to remain, and that an assistant dean sent him a belligerent email informing him that poor grades he and three other professors had given the students would be disregarded. Acting as his own attorney, Yohn went to federal court to charge the university with “deprivation of ‘freedom of speech’” and disregard of the ‘health care interest’ of the public and their children”; he also asks $125,000 for emotional distress. (David Shepardson, “U-M sued over dental grades”, Detroit News, Dec. 30; Hanna Lopatin, “Dental Prof. Sues U. Michigan for Refusing to Fail Students”, Michigan Daily/ StudentAdvantage.com, Jan. 5).
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