Posts tagged as:

Erin Brockovich

Reader Dave Westheimer writes, regarding a news item that we briefly noted earlier:

Guess who’s coming to the suburb where I live? Erin Brockovich. She’s here and in the news.

Of course she’s not hearing “Fridley’s concerns” — she’s hearing the concerns of novices who’ve never heard of the Texas Sharpshooter Fallacy.

FWIW, “one of the worst Superfund sites in the country” refers to the old FMC plant in the southwest corner of the city by the Mississippi, well away from the closest residential neighborhood and more likely to affect Minneapolis than Fridley, if it affected anything at all. Fridley’s biggest industry is Medtronic’s headquarters. It’s a typical postwar residential suburb, mostly built in the 50s and 60s.

The neighborhood newspaper ran what I thought was a fawning article about her appearance here, written by an intern, along with a separate article about how the intern who wrote the article was so excited to meet her. So much for objectivity.

As the city’s water report (PDF) says, Fridley has never been in violation of the cancer causing agents standards in the Federal Safe Drinking Water Act.

Now if you’ll excuse me, I’m going to pour myself another tall glass of city water.

Environmental roundup

by Walter Olson on June 20, 2012

  • Nebraska Sen. Johanns proposes bill to curb EPA surveillance overflights (which, contrary to some erroneous reports going around, are manned flights) [Daily Caller, earlier]
  • “Time to Discard the Precautionary Principle at the CPSC” [Nancy Nord]
  • Victimology beats science with 9/11 dust fund [Point of Law, ACSH] Two NYC plaintiff’s firms fight over $50 million in 9/11-responder fees [Reuters]
  • “Court dismisses climate change ‘public trust’ suit” [Katie Owens, WLF]
  • Erin Brockovich promotes Fridley, Minnesota cancer cluster, local man “eager to hear” her spiel [StarTrib, earlier]
  • Jonathan Adler guestblogs on environmental policy at The Atlantic [Volokh]
  • Businesses’ donations on environmental advocacy? Never trust content from “Union of Concerned Scientists” [Ron Bailey]
  • Talking back to “Gasland,” the anti-fracking advocacy flick [Ron Bailey and more, Mark Perry, Business Week on local economic impact]

Environment roundup

by Walter Olson on May 30, 2012

  • “A loose coalition of eco-anarchist groups is increasingly launching violent attacks on scientists.” [Nature]
  • “Jury Blames ‘Erin Brockovich’ Doc For His Patient’s Illness, Not Defendants” [Daniel Fisher, Forbes]
  • “Judge declines to toss Chevron RICO case against lawyer over $18bln award” [Reuters, Folkman/Letters Blogatory] Videos tell Chevron side of story in hotly disputed Ecuador Lago Agrio dispute ["Amazon Post"]
  • NGOs’ bag of tricks: Greenpeace helped pack International Whaling Commission thirty years ago by paying dues for small states to join [Skodvin/Andresen via Spiro/OJ]
  • Distinguishing the areas of clear vision from the blind spots in Chicago Tribune’s flameproofing series [Coyote, earlier]
  • Wilderness regs prevent town of Tombstone, Ariz. from rebuilding water pipes destroyed in fire [Daily Caller]
  • Look! Over that factory! It’s a plume of (shudder) … water vapor! [Coyote]
  • National Science Foundation grantee: “Tort actions may impel industry to … redesign chemical molecules … to be less toxic.” [David Oliver, Ted Frank]

{ 4 comments }

Susan Dominus explores an outbreak of tics and other neurological symptoms among teenage girls in a town near Rochester, as hyped on outlets like “Today” and CNN. Roving Tort-Finder Erin Brockovich, who parachuted into the town to blame possible chemical spills, does not come off well either: “Things only go wrong,’ [King's College London epidemiologist Simon] Wessely wrote in 1995, ‘when the nature of an outbreak is not recognized, and a fruitless and expensive search for toxins, fumes and gases begins.’” [NY Times Magazine]

{ 6 comments }

“In non-Western countries, demons and witchcraft are still sometimes blamed for outbreaks of fainting and fits [PDF]. Pollution, poisoning, chemical weapons, and other environmental concerns are dominant in the West (a fact that makes Brockovich something of a mass hysteria machine). Some bloggers are now claiming that the upstate New York girls fell ill because of the HPV vaccine or fracking.” [Ruth Graham, Slate]

{ 3 comments }

January 5 roundup

by Walter Olson on January 5, 2011

  • Notables including Alan Morrison, Richard Epstein, Kathleen Sullivan sign amicus brief urging court review of multistate tobacco settlement [Daniel Fisher/Forbes, Christine Hall/CEI, Todd Zywicki]
  • “Congress rediscovers the Constitution” [Roger Pilon, WSJ]
  • Chief Justice John Roberts Jr. profiled [Roger Parloff, Fortune]
  • When outside investors stake divorce litigants: yes, there are legal ethics angles [Christine Hurt]
  • Mexico, long noted for strict gun control laws, has only one legal gun store [WaPo]
  • Judge throws out “parasitic” lawsuit piggybacking on Wisconsin drug-pricing settlement [Madison.com]
  • Erin Brockovich sequel: Talking back to the Environmental Working Group on dangers of chromium-6 in drinking water [Oliver, Logomasini/CEI]
  • “Little white lies” to protect the bar’s image [five years ago on Overlawyered]

After alarmist coverage about how the water supply of rural Hinkley, Calif. is laced with carcinogenic chromium 6, it may have surprised some L.A. Times readers to learn that the town’s cancer rate is actually a bit below average. One interviewed local family blames the pollution for a variety of ills ranging from stroke to cognitive deficits to miscarriage to tumors in a pet dog. When the movie “Erin Brockovich” came out, it was pointed out that workers at the utility plant where the contamination originated had a life expectancy exceeding the California average.

P.S. I see that Tim Cavanaugh of Reason is on the case too.

{ 1 comment }

November 23 roundup

by Walter Olson on November 23, 2010

  • Growth of regulatory state makes lobbying more attractive path than innovation [Morris Panner, WaPo]
  • Long-awaited Norma Zager book flays Erin Brockovich role in Beverly Hills High School controversy [CJAC]
  • Colorado high court: no need to limit medical fee awards to sums plaintiffs actually paid [CCJL, Law Week Colorado]
  • Please, law firm marketers, don’t assume we’re in need of your services [Popehat]
  • Updates on prosecutorial silencing of pain treatment activist Siobhan Reynolds [Sullum, more, yet more, Balko]
  • Comments of NTSB official notwithstanding, riding motorcycle without helmet is no “public health issue” [Boaz, Cato] Watch out for more paternalism premised on government health care expenditures [Coyote]
  • No contracting out? Can California really be this screwed up? [Coyote]
  • Claim: railroad should have warned against walking on the right-of-way [six years ago on Overlawyered]

July 28 roundup

by Walter Olson on July 28, 2010

{ 1 comment }

Michael Fumento has a noteworthy statistical update on the case that made Erin Brockovich famous.

{ 1 comment }

February 18 roundup

by Walter Olson on February 18, 2010

November 16 roundup

by Walter Olson on November 16, 2009

  • German law firm demands that Wikipedia remove true information about now-paroled murderers [EFF] More: Eugene Volokh.
  • “Class Actions: Some Plaintiffs’ Lawyers Fed Up, Too?” [California Civil Justice]
  • Drop that Irish coffee and back away: “F.D.A. Says It May Ban Alcoholic Drinks With Caffeine” [NYT]
  • Profile of L.A. tort lawyers Walter Lack and Thomas Girardi, now in hot water following Nicaraguan banana-pesticide scandal [The Recorder; my earlier outing on "Erin Brockovich" case]
  • Federalist Society panel on federalism and preemption [BLT]
  • Confidence in the courts? PriceWaterhouseCoopers would rather face Satyam securities fraud lawsuits in India than in U.S. [Hartley]
  • Allegation: Scruggs continuing to wheel and deal behind bars [Freeland]
  • Not much that will be new to longtime readers here: “Ten ridiculous lawsuits against Big Business” [Biz Insider] P.S.: Legal Blog Watch had more lists back in June.

{ 2 comments }

Erin Brockovich in Florida

by Walter Olson on October 22, 2009

An editorial in the Palm Beach Post advises reader caution about the glamorous tort-chaser’s efforts to drum up clients for Weitz & Luxenberg and Searcy Denney Scarola Barnhart & Shipley based on allegations of a cancer cluster with a claimed link to radioactive drinking water:

The lawyers discussed water samples from 10 homes of cancer patients that showed at least trace amounts of radium, a naturally occurring metal. Those studies, however, echoed Florida Department of Environmental Protection results from 50 randomly selected homes. …

…one resident concluded on a Web site after the meeting: “Last night, we were validated.” Amid the personal appeals came the business pitch. Attorney Jack Scarola explained the contingency contract, which means that clients would pay nothing, even if they lost. He urged residents to take their time reading the contract because if “you inform yourselves well, you will find it’s in your best interest to sign with us.”

{ 5 comments }

September 9 roundup

by Walter Olson on September 9, 2009

{ 2 comments }

Contacts on Capitol Hill inform me that Republicans yesterday managed to block a remarkable provision that had been slipped into the House leadership’s 794-page health care bill just before it went to a House Ways & Means markup session. If their description of the provision is accurate — and my initial reading of the language gives me no reason to think it isn’t — it sounds as if they managed to (for the moment) hold off one of the more audacious and far-reaching trial lawyer power grabs seen on Capitol Hill in a while.

For some time now the federal government has been intensifying its pursuit of what are sometimes known as “Medicare liens” against third party defendants (more). In the simplest scenario — not the only scenario, as we will see below — someone is injured in, say, a car accident, and has the resulting medical bills paid by Medicare. They then sue and successfully obtain damages from the other driver. At this point Medicare (i.e. the government) is free to demand that the beneficiary hand over some or all of the settlement to cover the cost of the health care, but under some conditions it is also free to file its own action to recover the medical outlays directly from the negligent driver (who in some circumstances might even wind up paying for the same medical bills twice). It might do this if, for example, it does not expect to get a collectible judgment from the beneficiary.

The newly added language in the Thursday morning version of the health bill (for those following along, it’s Section 1620 on pp. 713-721) would greatly expand the scope of these suits against third parties, while doing something entirely new: allow freelance lawyers to file them on behalf of the government — without asking permission — and collect rich bounties if they manage thereby to extract money from the defendants. Lawyers will recognize this as a qui tam procedure, of the sort that has led to a growing body of litigation filed by freelance bounty-hunters against universities, defense contractors and others alleged to have overcharged the government.

It gets worse. Language on p. 714 of the bill would permit the lawyers to file at least some sorts of Medicare recovery actions based on “any relevant evidence, including but not limited to relevant statistical or epidemiological evidence, or by other similarly reliable means”. This reads very much as if an attempt is being made to lay the groundwork for claims against new classes of defendants who might not be proved liable in an individual case but are responsible in a “statistical” sense. The best known such controversies are over whether suppliers of products such as alcohol, calorie-laden foods, or guns should be compelled to pay compensation for society-wide patterns of illness or injury.

A few other highlights of the provision, pending analysis by persons more familiar with Social Security and Medicare law than myself:

  • A bit of language on p. 714, I am told, would remove a significant barrier to litigation, namely a rule authorizing a lien action to be filed on behalf of Medicare only after a previous “judgment”, that is to say, only after the success of an earlier lawsuit (by the injured party) establishing responsibility for the injury.
  • Language on p. 715 would double damages in cases of “intentional tort or other intentional wrongdoing”.
  • P. 716 specifies that “any person” may bring the action, that is, it need not be a lawyer representing the injured person or any other injured person.
  • P. 717: the bounty would be a rich one, 30 percent plus expenses. P. 719 provides that even if the federal government itself intervenes and insists on taking over the lawsuit, the bounty-hunter would still get a minimum of 20 percent, perhaps as reward for winning the race to the courthouse. No one other than the federal government could oust the first-to-file lawyer from control of the action, so other private lawyers who lost the race to the courthouse would be out of luck. Page 720 specifies that the suit may be settled “notwithstanding the objections of the United States” — that is, the objections of the entity on whose behalf it was supposedly filed — if a court so agrees.
  • Medicare would have to cooperate with the private lawyers, whether or not the government joined or approved of the action, by handing over various documents useful to them.

For the moment, at least, the bullet seems to have been dodged. Some Republicans on the committee spotted the issue and raised strong protests, and by the end of the day an agreement had been reached with Democratic managers to withdraw the provision. That still provides no guarantee that it will not rear its head later in the process at some stage that proponents judge more favorable to their designs.

The idea being promoted here is an atrocious one. Even when it comes to garden-variety torts, there are many entirely legitimate reasons why federal managers might not decide to pursue Medicare liens from every possible defendant. To take only one example, they might have scruples about suing peripheral defendants who might be made to cough up settlement money to avoid the costs of litigation but against whom liability was doubtful. Freelance private lawyers would be free to sue everyone in sight and employ the most hardball tactics along the way. If the language about epidemiological and statistical evidence is indeed meant to pave the way for future suits against liquor, gun or cheeseburger purveyors, it represents a stealth attempt to restore via fine print a lawyerly dream that the courts have almost uniformly rejected over the past decade, as well as personally enrich lawyers with fees that could soar beyond even those of the scandalous tobacco-Medicaid litigation. Who in Congress slipped this language in, anyway — and on whose behalf?

Incidentally, this is not the first time the idea of Medicare-lien/”secondary payer” qui tam has been given an outing. In 2006 the famous Erin Brockovich lent her name and efforts to lawsuits filed by Wilkes & McHugh and another law firm pursuing the highly adventurous theory that a qui tam right to sue over tort-induced Medicare overpayments already exists, at least against hospitals. This campaign fared extremely poorly in court (see our earlier coverage here, here, and here). Last year, in a case argued by Kenneth Connor for Wilkes & McHugh, the Sixth Circuit ruled that claims brought by Wilkes’s client against dozens of hospitals were “utterly frivolous” and ordered counsel to show cause why sanctions should not be imposed for “unreasonable and vexatious” appeals (Stalley v. Methodist Healthcare, PDF; more at Jones Day site). (reposted with slight changes and bumped from an earlier post this morning) (& welcome Popehat, Coyote, Weisenthal/Business Insider, Hemingway/NRO “Corner”, For What It’s Worth, Blogs for Victory, TigerHawk, The Agitator, Colossus of Rhodey readers).

{ 22 comments }

September 29 roundup

by Walter Olson on September 29, 2008

  • Watch where you click: “Kentucky (secretly) commandeers world’s most popular gambling sites” [The Register/OUT-LAW]
  • Erin Brockovich enlists as pitchwoman for NYC tort firm Weitz & Luxenberg [PoL roundup]
  • U.K.: “Millionaire Claims Ghosts Caused Him to Flee His Mortgage, I Mean Mansion” [Lowering the Bar]
  • Prosecution of Lori Drew (MySpace imposture followed by victim’s suicide) a “case study in overcriminalization” [Andrew Grossman, Heritage; earlier; some other resources on overcriminalization here, here, and here]
  • Exonerated Marine plans to sue Rep. John Murtha for defamation [Pittsburgh Post-Gazette]
  • Snooping on jurors’ online profiles? “Everything is fair game” since “this is war”, says one jury consultant [L.A. Times; earlier]
  • Allentown, Pa. attorney John Karoly, known for police-brutality suits, indicted on charges of forging will to obtain large chunk of his brother’s estate; “Charged with the same offenses are J.P. Karoly, 28, who is John Karoly’s son, and John J. Shane, 72, who has served as an expert medical witness in some of John Karoly’s cases.” [Express-Times, AP, Legal Intelligencer]
  • School safety: “What do the teachers think they might do with the Hula-Hoop, choke on it?” [Betsy Hart, Chicago Sun-Times/Common Good]

{ 9 comments }

Thomas Girardi, of Girardi & Keese, and Walter Lack, of Engstrom Lipscomb & Lack, are among California’s highest-profile plaintiff’s lawyers, often working closely together on litigation; perhaps their best-known case was the “Erin Brockovich” action against Pacific Gas & Electric, which I covered here and again here (highlight: the chartered Mediterranean cruise to which Girardi and Lack invited the three arbitrators soon after winning their split of $133 million in fees). Now both men are in a spot of bother with the Ninth Circuit, where a special master, senior circuit judge A. Wallace Tashima, has recommended hundreds of thousands of dollars in sanctions against them and where a three-judge panel (Kozinski, Reinhardt, Berzon) has just moved to appoint a special prosecutor to recommend further discipline in the case.

The imbroglio arose from a pesticide toxic tort which resulted in a Nicaraguan court’s $489 million judgment against defendants including Shell Oil, Dow Chemical and Dole Food, which plaintiffs had sought to enforce in this country. Amid mounting evidence that many of the various American and Nicaraguan lawyers involved had not been entirely (as they say) candid with the tribunal on a variety of points, the court has been trying to sort out who knew what when. “In his 65-page report, Tashima said Lack had a personal role in asserting repeatedly that a writ of execution made by the Nicaraguan judge to enforce the judgment in America was corrected to name Dole Food Co. and Shell Chemical Co. Girardi, meanwhile, allegedly allowed the misstatements to continue on his behalf without becoming directly involved.” (Evan Hill, “9th Circuit Taps Special Prosecutor for Toxic-Tort Case”, The Recorder, Jun. 10; latest order and March special master’s report from Judge Tashima, both PDF, via California Appellate Report). We understand that changes to California ethics rules have put a crimp in Girardi and Lack’s former practice of throwing luxurious events for judges, but even aside from that, we don’t think judges Tashima, Kozinski, Reinhardt and Berzon would probably have been making any plans to attend.

April 29 roundup

by Walter Olson on April 29, 2008

  • “Dog owners in Switzerland will have to pass a test to prove they can control and care for their animal, or risk losing it, the Swiss government said yesterday.” [Daily Telegraph]
  • 72-year-old mom visits daughter’s Southport, Ct. home, falls down stairs searching for bathroom at night, sues daughter for lack of night light, law firm boasts of her $2.475 million win on its website [Casper & deToledo, scroll to "Jeremy C. Virgil"]
  • Can’t possibly be right: “Every American enjoys a constitutional right to sue any other American in a West Virginia court” [W.V. Record]
  • Video contest for best spoof personal injury attorney ads [Sick of Lawsuits; YouTube]
  • Good profile of Kathleen Seidel, courageous blogger nemesis of autism/vaccine litigation [Concord Monitor*, Orac]. Plus: all three White House hopefuls now pander to anti-vaxers, Dems having matched McCain [Orac]
  • One dollar for every defamed Chinese person amounts to a mighty big lawsuit demand against CNN anchor Jack Cafferty [NYDN link now dead; Independent (U.K.)]
  • Hapless Ben Stein whipped up one side of the street [Salmon on financial regulation] and down the other [Derbyshire on creationism]
  • If only Weimar Germany had Canada-style hate-speech laws to prevent the rise of — wait, you mean they did? [Steyn/Maclean's] Plus: unlawful in Alberta to expose a person to contempt based on his “source of income” [Levant quoting sec. 3 (1)(b) of Human Rights Law]
  • Hey, these coupon settlements are giving all of us class action lawyers a bad name [Leviant/The Complex Litigator]
  • Because patent law is bad enough all by itself? D.C. Circuit tosses out FTC’s antitrust ruling against Rambus [GrokLaw; earlier]
  • “The fell attorney prowls for prey” — who wrote that line, and about which city? [four years ago on Overlawyered]

*Okay, one flaw in the profile: If Prof. Irving Gottesman compares Seidel to Erin Brockovich he probably doesn’t know much about Brockovich.

{ 4 comments }