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.

• “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.

Erin Brockovich, the real-life character who brings fictional lawsuits, thinks my criticism of her trolling for clients in Avandia lawsuits is “shameful”. She should know from shameless.

I was very amused by Brockovich’s remark “It is no coincidence that thousands on Avandia now have heart attacks.” Really? Thousands of people who saw Erin Brockovich in the theaters have had heart attacks, and many others have had strokes. Some even contracted cancer! Coincidence, or has Ms. Brockovich put movie royalties ahead of safety?

After the glamourpuss tort-chaser’s campaign over environmental contamination at the high school met with one reverse after another in court, ending in a judicial ruling of no merit, plaintiff’s lawyers have now agreed to reimburse the city and school district of Beverly Hills for a not insignificant chunk of their legal expenses in defending the claims, in the sum of $450,000. As readers of this site know, prevailing defendants very seldom recover fees from losing plaintiffs or their lawyers in American litigation. The Civil Justice Association of California has details (Oct. 9).

This summer Viking published a book by journalist Joy Horowitz entitled Parts Per Million: The Poisoning of Beverly Hills High School which, as its subtitle implies, would appear to place much credence in the lawsuits’ claims of disease causation from oil wells on the high school campus (undated L.A. Times review by Robin Abcarian). For the side of the story that proved more convincing to the courts, see the work of Norma Zager and Eric Umansky here and here as well as this article in Time. Brockovich herself, incidentally, now has a blog of her own.

A further stinging rebuff in court for the glamourpuss tort-chaser: “A judge on Friday dropped the Beverly Hills Unified School District from a lawsuit that claims an oil well on a high school campus caused cancer in former students. Superior Court Judge Wendell Mortimer Jr. said he was not persuaded that the well operating for decades at Beverly Hills High was a danger. He also found no evidence that the school district was aware of any danger.” (”Beverly Hills schools dropped from lawsuit over campus oil well”, AP/San Diego Union-Tribune, Mar. 23). For more on the Beverly Hills case, see Mar. 16, 2004, Nov. 3, 2005, and Dec. 1, 2006. For Brockovich’s rebuffs in Medicare-billing cases, see Mar. 15, etc.

This time it’s the federal court for the Eastern District of Tennessee that’s sent the glamourpuss bounty-hunter packing:

Plaintiff and his associate Erin Brockovich have filed 49 nearly identical complaints in jurisdictions across the country. Kris Hundley, Brockovich Teams Up With Local Firm, St. Petersburg Times, Dec. 21, 2006. Many of these complaints have already been dismissed . . .

Roy F. Harmon III at Health Plan Law explains why this one failed too (Mar. 13). For more, see Jun. 22 and Nov. 18, 2006 as well as, on the general Brockovich phenomenon, my October 2000 treatment in Reason.

• New legislation aimed at regulating “grassroots lobbying”: will it hit political bloggers? (Answer: apparently not.) [McCullagh, Hardy, Sullum, Bainbridge, Reynolds]


• Upper East Side merchant sues vagrants whose cardboard-box loitering ruins his location [NYSun, NYTimes]


• “People probably aren’t thinking about potential legal liability when they’re having casual sex,” says lawprof about new Calif. trend of spousal VD suits [KEYE-TV via KevinMD]


• “Devious, dissembling, dodgy. And that’s just the police”. Theodore Dalrymple on UK criminal justice [Times Online]


• Daniel Boulud of restaurant fame, targeted by lawsuit campaign, says he won’t pay to make worker advocates go away [NYTimes]


• Erin Brockovich on the warpath against recycling facility in Apple Valley, Calif. [Fumento/TCS]


• As a lawyer, Pres. John Adams represented Redcoats after Boston Massacre; what would he say about Guantanamo flap? [NYSun editorial]


• Nearly all radiologists frustrated with practice, liability is top reason [LocumTenens.com]


• Duke profs who egged on lynch mob in bogus rape case stand on melting ice floe of credibility [Reynolds, Althouse, Podhoretz, Bainbridge here and here, Allen]


• Ringling Bros. trainee says clown college was harder to get into than law school [Five years ago on Overlawyered]

Recent developments on past stories:

* Remember Shannon Peterson, the Denver condo owner who got sued by a neighbor who complained that she was taking baths too early? (Feb. 27). The case is still dragging on the better part of a year later, a judge having refused so far to throw it out. David Giacalone has the details (Nov. 30).

* Glamourpuss lawsuit-chaser Erin Brockovich, fresh from the humiliating dismissal (Nov. 18) of suits she fronted against California hospitals alleging Medicare overbilling, has been rebuffed in another high-profile case. This time a judge has dismissed twelve lawsuits brought by her law firm of Masry & Vititoe alleging that exposure to oil rigs at Beverly Hills High School caused cancer among students there (Martha Groves and Jessica Garrison, “School oil-rig lawsuits dismissed”, Los Angeles Times, Nov. 23) (via Nordberg who got it from Legal Reader). For more on the case, see Jul. 15 and Nov. 19, 2003, and Mar. 16, 2004. The New Republic has marked the occasion by reprinting its revealing 2003 article on the affair by Eric Umansky. P.S. More from Umansky, who has his own blog, here.

* Reader E.B. writes in to say:

Remember the group of parents (Oct. 23) who threatened litigation over their daughters’ playing time on the girl’s basketball team? The ones who demanded a six-person panel to oversee the selection of the players?

None of the parents’ daughters made the team. And they’re not happy about it. See C.W. Nevius, “Castro Valley hoops coach can’t win”, San Francisco Chronicle, Nov. 30.

* A court has dismissed the action (Aug. 10, 2005; Feb. 9, Feb. 20, Mar. 6, Jun. 28, 2006) by fair housing activists against Craigslist over user ads that expressed improper preferences or mentioned forbidden categories in soliciting tenants, apartment-sharers and so forth. (Anne Broache, “Craigslist wins housing ad dispute”, CNet, Nov. 17). However, blawger David Fish says the court’s reasoning was highly unfavorable to many other Internet companies generally, and may expose them to future liabilities (Nov. 15). Craigslist now has an elaborate page warning users that it is unlawful for them to post preferences, etc. in most situations not involving shared living space. Update: David Fish’s name corrected, apologies for earlier error.

* 3 pm update to the updates from Ted: “An Illinois intermediate appellate court overturned the $27 million verdict in Mikolajczyk v. Ford (which we reported on last year), ordering the lower court to replace the arbitrary jury verdict with a lower arbitrary number. Why the jury’s damage award is considered the product of passion and prejudice, but the same jury’s liability award is kosher, remains unclear. (Steve Patterson, “Court says $27 million crash award too much”, Chicago Sun-Times, Nov. 23).”

Glamor proved no substitute for legal merit as U.S. District Judge Thomas Whelan in San Diego dismissed two lawsuits by the highly publicized Brockovich against major hospital chains, alleging that the chains should refund to Medicare sums spent on treating injuries caused by earlier hospital negligence (see Jun. 22). The suits “made no specific claims of patient injury” but instead proffered studies estimating the nationwide incidence of negligent patient injury in hospitals. The judge termed the claims “speculative allegations” intended to allow Brockovich and the lawyers for whom she was fronting to “begin a fishing expedition”. “The judge also noted that Brockovich, 46, was not eligible to receive Medicare benefits, was never treated at any of the Scripps or Sharp hospitals, and was never injured by hospital staff misconduct.” (Keith Darcé, San Diego Union-Tribune, Nov. 16). For more on Brockovich’s activities generally, follow links from Nov. 3, 2005.

For those who never expected to see the words “glamourpuss” and “Medicare” in the same sentence: “The onetime legal assistant, whose environmental crusade against a utility company inspired a hit movie starring Julia Roberts, has lent her name as plaintiff in lawsuits against several California hospitals and convalescent homes.” Two law firms, including Wilkes & McHugh, have engaged Brockovich as the public face of bounty-hunting “whistleblower” suits pursuing the adventuresome theory that hospitals defraud the government by accepting Medicare reimbursement for further medical care occasioned by their own earlier errors, even when no legal process has yet determined the earlier medical decisions to have been erroneous. The “lawsuits do not involve specific allegations of wrongdoing “. Ms. Brockovich is managed by the William Morris talent agency. (Daniel Yi, Los Angeles Times, Jun. 7). For much more on her activities, follow links from Nov. 3, 2005. Update Nov. 18: federal judge in San Diego tosses two suits.

The CJAC has an idea for the Harvard School of Public Health: rather than make an embarrassing decision to give a “Health Award” to the facile celebrity, why not give the award to Norma Zager, the Beverly Hills Courier reporter who exposed Erin Brockovich’s quackery? (May Habib, “Brockovich Awarded SPH’s Highest Honor”, Harvard Crimson, Oct. 19; Jessica Heslam, “Lawyer group protests award for `Erin Brockovich’”, Boston Herald, Oct. 18). Earlier coverage: Oct. 6 and especially Sep. 30 and links therein.

Tom Bray of the Detroit News weighs in on the controversy over the Harvard School of Public Health’s decision to give an award to Erin Brockovich (earlier: Sept. 30) and points out that the glamourpuss toxic-tort-chaser is making a push into TV:

She is listed as the executive producer of an upcoming NBC series titled “Class Action,” which will lionize a team of fictional plaintiff’s attorneys who specialize in class-action lawsuits.

(”Radical parody threatens environmental movement”, Oct. 2)(via Toxic Tort News).

Why, oh, why, asks Michael Fumento, is the Harvard School of Public Health bestowing its Julius Richmond Award on glamour-puss toxic-tort-chaser Erin Brockovich? (more, more, more, more)(cross-posted at Point of Law; and see later post there).

In part II of their series on behalf of the trial lawyers’ bar, the LA Times repeats a mistake from part I and then compounds the error by citing misleading statistics.

As you recall in Part I, the LA Times noted that there exist urban legends about litigation, and claimed that these urban legends have distorted the debate in favor of tort reform. (And, as Walter points out, gives unmerited credence to a nefarious allegation.) The first part is trivially true, but the only evidence cited in support of the conclusion is a second-hand tale of a credulous radio talk show listener who called in to repeat the Winnebago story. And why this radio talk show caller is proof of a distorted debate towards tort reform, while, say, big-budget movies like “Erin Brockovich,” “The Insider,” and “A Civil Action” that glamorize plaintiffs who had bad cases or the numerous newsmagazine segments that consist of nicely-produced twenty-minute videos for a plaintiff’s opening statement don’t distort the debate remains unclear, but the Times assumes that people support tort reform because of the urban legends rather than because of the true tales and statistics and despite Hollywood propaganda. (Indeed, the Times article itself is a prime example of the media distorting the debate in favor of plaintiffs’ attorneys, as it repeats the ATLA viewpoint supporting the McDonald’s coffee case while ignoring the numerous facts and arguments showing why that viewpoint is wrong (Aug. 13 and links therein.)

In Part II, we see a similar logical leap. There is a trivially true point: newspapers report what is, well, newsworthy, and thus big verdicts get reported and small verdicts or defense decisions or verdict reversals don’t get reported. The Times then goes on to conclude that this distorts the debate in favor of tort reform. Why? Why doesn’t it distort the debate in favor of plaintiffs by making outrageously large judgments seem commonplace, by persuading juries that there’s nothing wrong with awarding a billion dollars to get their names in the paper, by making corporations seem like wrongdoers because the defense verdicts get ignored? (Indeed, as Steven Hantler has noted, studies have shown that this bias might be why defendants don’t do more to publicize defense verdicts: the mere fact that a corporate defendant is sued implies wrongdoing to a majority of people.) The Times cites absolutely no evidence that people misperceive the tort reform debate in favor of tort reformers, or even that they misperceive the tort reform at all, much less because of these media decisions. But it feels free to assume this conclusion and report it.

The tort reform opponents (the only tort reform supporter quoted, Theodore Boutrous, is quoted for the fact that newspaper ignore defense verdicts) and the LA Times make hay over three statistics, but each is irrelevant.

First, the “number of lawsuits” filed in thirty-five states has declined four percent in ten years between 1993 and 2002. But so what? If a doctor says a patient is dangerously obese because he weighs 480 pounds, I don’t think she’ll be less concerned because the patient weighed 500 pounds ten years ago. More importantly, the number of “lawsuits” isn’t the relevant metric. In particular, the nature of a “lawsuit” has changed. Between 1993 and 2002, it became increasingly common for litigation to feature hundreds or thousands or millions of claims tied together in a single suit. Liability has expanded such that many states permit plaintiffs to recover without any showing of concrete injury. These are problems that aren’t a function of simple counting.

The second and third statistics are also irrelevant: the median jury verdict has allegedly decreased in the last ten years, and defendants win jury trials about 50% of the time. But so what? An anecdote in the LA Times and covered in Overlawyered demonstrates precisely why this is irrelevant: Ford won at least twelve straight jury verdicts over allegations that its SUV was defectively designed—but a San Diego jury awarded $367 million (Jun. 3, 2004). (Ironically, the LA Times repeats the mistake it is commenting on—it fails to report that this verdict was reduced to “only” $273 million and that Ford has appealed.) This is a huge verdict, with a substantial impact on the total verdict awards and the mean jury award (and there were several that were even higher in 2004), but it affects the median barely a jot. Juries went with the defense more than 90% of the time, the median decision was $0—but the mean plaintiff won over $20 million. Which statistic do you think Ford shareholders care about the most? Which statistic do you think the plaintiffs’ bar cares about the most? Hint: it’s the same statistic that the LA Times ignores, the statistic that shows that the cost of litigation has been steadfastly increasing (POL Jan. 10). When the plaintiffs’ bar engages in settlement negotiations with Ford next products liability lawsuit, they’re not going to be persuaded to lower their demands because the median verdict has dropped. (Myron Levin, “Coverage of Big Awards for Plaintiffs Helps Distort View of Legal System”, Los Angeles Times, Aug. 15).

If you’re not reading our sister site PointOfLaw.com, you’re missing out on a lot. I’ve been doing about half my blog writing over there, on topics that include: a powerful new St. Louis Post-Dispatch investigation of asbestos litigation in Madison County, Ill. (here, here and here, with more to come, and note this too); the busy borrowings of Harvard’s Larry Tribe; when “not-for-profits” organize employment suits; Erin Brockovich’s respectability; crime without intent; experts and the CBS scandal; stay open through a hurricane, go to jail; suits over failure to put warnings on sand (yes, sand); West Virginia legal reform; Merrill Lynch/Enron trial; Hayek and the common law, reconsidered; getting creative about tapping homeowners’ policies; AdBusters sues to have its ads run; plaintiff’s lawyers represent criminal defendants to put drugmakers behind the eight ball; update on the law firm that competes on price; Spitzer and investors; Ohio med-mal crisis (and more); a welcome Schwarzenegger veto; dangers of firing your lawyer; ephedra retailer litigation; churchruptcies (if banks can do it…); and hardball in nonprofit hospital litigation.

Plus Ted Frank on tort reform in Mississippi and Jim Copland on California’s Proposition 64 (which would reform the notorious s. 17200 statute); the federal tobacco trial and Boeken; gender bias at work; and Rule 11 revival.

Better bookmark PointOfLaw.com now, before you forget.

Parachuting in without actually touching toe? This time it’s a toxic-tort case in central Florida: “She has never set foot in Hillsborough County’s rural Plant City, but her name alone is influencing news coverage, attracting clients and conferring credibility to illness reports.” The suit alleges that Coronet Industries’ phosphate plant is responsible for a wide range of ills, including those of the lead claimant’s 3-year-old son, who suffers from autism and language disorders. (Ron Matus, “The Erin Brockovich effect: influence, inference”, St. Petersburg Times, Apr. 11). For much more on Brockovich, see Mar. 16, Jan. 3 and links from there, and our Oct. 2000 treatment.

Little-known Beverly Hills reporter Norma Zager may be making herself the number one nemesis of glamourpuss toxic-tort-chaser Erin Brockovich-Ellis. Zager, who is with the Beverly Hills Courier, has tenaciously dug into the facts surrounding Brockovich’s and employer Edward Masry’s wild charges about supposed contamination at Beverly Hills High School (see Jan. 3 and links from there, and our Oct. 2000 treatment). (Eric Umansky, “Muckraker 90210: A Most Unlikely Reporter Nails Erin Brockovich”, Columbia Journalism Review — now there’s a magazine we haven’t often had a chance to quote favorably–, Mar./Apr.).

Erin Brockovich’s law firm has filed its third lawsuit against Beverly Hills, its school district and several oil and gas companies, claiming that emissions from an oil derrick on the Beverly Hills High School campus caused former students and others to develop high rates of cancer - or at least put them at greater risk of developing the disease. (”Brockovich Files Third Lawsuit in Cancer Case,” L.A. Times, Jan. 3; Associated Press, “Brockovich Firm Against Sues Beverly Hills,” lasvegassun.com, Jan. 3 ). City officials have disputed the claims.

The latest lawsuit filed in California state court lists nearly 300 plaintiffs, “a number” of which claim that they “do not have cancer but are at greater risk of developing the disease.” Earlier posts on the media-savvy paralegal’s environmental lawsuits can be found on Nov. 19, July 15, and elsewhere in this space.