The American Bar Association, which is holding its annual meeting in Hawaii next week, has shied away from co-sponsoring the National Lawyers on Longboards Surfing Contest. “They were freaked out about the liability issue related to a surf contest, even though we had liability insurance and everything,” said Honolulu attorney Lea Hong, an organizer of the event. Instead, the Hawaii state bar and LexisNexis will be serving as sponsors. Hong says “participants have signed what she calls ‘a pretty serious liability waiver’” and the contest rules have been drafted with an eye to making them loophole-free given the nature of the contestants. The competition used to be called the Land Shark Contest, but Hong says “that seemed a little too negative”. (Stewart Yerton, “Liabilities scare lawyers’ group away from surf meet”, Honolulu Star-Bulletin, Jul. 26).
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Now that litigators from the National Resources Defense Council have won a temporary restraining order from a federal judge under the terms of the National Environmental Policy Act, the U.S. Navy says it will employ less effective passive sonar, rather than active sonar, in exercises off Hawaii intended to simulate anti-submarine warfare. The NRDC complained that when the Department of Defense granted the Navy a temporary exemption from the Marine Mammals Protection Act for purposes of the exercises, it was trying to evade being sued. (” Whale lawsuit forces Navy to change sonar plan”, AP/CNN, Jul. 5). “The Navy, in a statement after the ruling, said sonar was ‘the only effective means we have to detect and quickly target hostile submarines and keep sea lanes open,’ and that sonar operators needed training at sea ‘to protect our nation’s ships, shores and allies.’…. The sonar use is meant to test whether quiet, diesel-powered submarines like those used by Iran, North Korea and China can be detected.” (Tony Perry, “Judge Temporarily Bars Navy From Using Sonar Said to Harm Whales”, Los Angeles Times, Jul. 4) “The Navy says it must practice hunting submarines near the Hawaiian islands because that’s the type of environment where it most likely will face an emerging threat of submarine warfare.” (AP/Houston Chronicle, Jul. 4)(& welcome readers from Michelle Malkin, who provides more background on the controversy).
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Assumption of risk wins one in Hawaii: “A golfer may not be held liable for mistakenly hitting another golfer with an errant golf ball, the Hawaii Supreme Court ruled.” Ryan Yoneda sued after being hit in the left eye by Andrew Tom’s wayward ball at Mililani Golf Course, but “Chief Justice Ronald Moon wrote Yoneda assumed the risk of the injury when he played golf.” However, the court did allow a lawsuit to proceed against the course owner on grounds of negligent design. (AP/San Francisco Chronicle, May 16; Ken Kobayashi, “Golf at your own risk, court rules”, Honolulu Advertiser, May 15).
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Over-riding the Governor’s veto, the Kansas legislature has enacted a “Shall Issue” law for issuing licenses to carry a concealed handgun for lawful protection. Before, Kansas was one of only four states without any provision for issuing concealed handgun licenses. One of the remaining three states, Nebraska, appears poised to enact a similar law, which the Governor has said he will sign.
Kansas is now among the 39 states which have a fair procedure to allow citizens to carry handguns for protection. Along with the three states (Nebraska, Wisconsin, IIllinois) that currently do not issue permits, eight other states issue permits according to the whim of a local official (Hawaii, California, Maryland, New Jersey, New York, Massachusetts, Rhode Island, and Delaware). A Shall Issue bill is moving through the legislature in Delaware. Rhode Island already has a Shall Issue law, although the law is nullified by administrative practice.
In Wisconsin, a Shall Iissue bill has been vetoed twice, with the vetos sustained by only one or two votes. In every state where Shall Issue proponents have gotten as close as they have in Wisconsin, the state has always eventually enacted a Shall Issue law–although sometimes the process can take a while.
So of the eleven remaining states that are not Shall Issue, two of them (Nebraska and Wisconsin) are nearly certain to change at some point in the future, and there is reasonable possiblity of change in Delaware. All that Rhode Island needs to change is the election of Attorney General who will not interfere with the state law that local goverments must issue carry permits to qualified applicants.
So the number of Shall Issue states could be 43 in the not too distant future. In the seven hold-out states, Shall Issue has passed one body of the legislature at least once in the three largest states: California, New York, and Illinois.
Every year, more and more Shall Issue states create “reciprocity” with each other, so that a person with a permit from her home state can carry her firearm lawfully in a other state while visiting. Currently, a carry permit issued by one state is valid in over half of all states. (See Packing.org for details.)
As the combined total of “no issue” or “whimsical issue” states declines into the single digits, and reciprocity continues to spread, it seems hard to deny that America is concluding that Shall Issue is sensible gun control — one that regulates firearms carrying but does not infringe the right to self-defense.
For more on the Kansas law, see this excellent article in the Wichita Eagle.
You’d think one advantage of electing a Texas oil guy as president would be that, when prices at the pump react to a genuinely massive supply disruption as supply and demand predict they will, he’d know better than to direct public anger toward the ill-defined offense of “price gouging”. Apparently you’d be wrong, though:
“I think there ought to be zero tolerance of people breaking the law during an emergency such as this -– whether it be looting, or price gouging at the gasoline pump, or taking advantage of charitable giving or insurance fraud,” Bush said. “And I’ve made that clear to our attorney general. The citizens ought to be working together.”
(Adam Nossiter, “More National Guardsmen are sent in”, AP/San Diego Union-Tribune, Sept. 1). More: Mark Kleiman got there first (Sept. 1)(via Julian Sanchez). See also Dan Mitchell of Heritage at C-Log (Aug. 31). And Don Boudreaux, after thanking Hawaiian pols, wonders (Aug. 29):
Would it make sense to haul before Congress a group of real-estate agents, or a few homeowners, or some home-builders to accuse them publicly of causing the recent surge in real-estate prices?
Yet more, this time from Jane Galt (Sept. 1): “Prices of everything rise after a disaster, and a good thing too, since that encourages people and material to flood into the damaged area, where they’re needed most.”
Michelle Malkin has the latest (Jul. 12).
Nahid Davoodabadi, honeymooning in Hawaii in 1999, disappeared while kayaking. Her husband, Manouchehr Monazzami-Taghadomi, said she was killed by a shark, and set about suing the kayak rental company, Extreme Sports Hawaii, for the accident and the federal government for failing to rescue him. Extreme noted to a jury that the company had told the couple to kayak in an area close to shore protected from winds. Extreme also noted that Maui police found the kayak, its paddles, and a lifejacket–the latter without any tears or bites (though with all the buckles unbuckled). The police also found two paddles near the kayak, one leaning against rocks, though Monazzami said, among other fishy things, that he lost one of the paddles in the shark attack. (Police never charged Monazzami, who successfully petitioned a Hawaii court to have his wife declared dead, rather than missing.) The jury exonerated the company. The Ninth Circuit recently issued a ruling affirming on technical grounds the district court’s summary judgment for the government. It appears Extreme settled the case for some unknown amount rather than go through the expense of litigating the appeal. (Monazzami-Taghadomi v. United States (9th Cir. Mar. 22, 2005); Debra Barayuga, “Company not guilty in Maui kayak death”, Honolulu Star-Bulletin, May 9, 2003; “Kayak business cleared in 1999 death”, Honolulu Advertiser, May 12, 2003; Reuters, Mar. 23, 1999; Jaymes K. Song and Gary T. Kubota, “‘Unusual’: No blood on kayak”, Honolulu Star-Bulletin, Mar. 26, 1999; Charles Memminger, “Shark tale now is part of our history”, Honolulu Star-Bulletin, Mar. 26, 1999; Brian Perry, “Tourists wary in wake of latest shark attack”, Honolulu Star-Bulletin, Apr. 1, 1999; Monazzami-Taghadomi v. 25 Knots Inc. (D. Hawaii, No. CV01-00171 ACK-KSC)). For legal scholars: one asks whether anything remains of the doctrine of “assumption of the risk” if a company called “Extreme Sports Hawaii” can’t invoke it without going through a trial and an appeal.
In Connecticut, the town of Norwalk is paying $1.5 million in a settlement with pedestrians hit by a drunk driver fleeing police. Plaintiffs had sought millions. “[Julia] Johnson’s estate sought additional compensation for her death from cancer in August 2001. The estate argued that Johnson’s injuries caused her to miss a scheduled mammogram that would have caught the cancer in its early stages.” The settlement seems to be a “moral hazard” artifact of the insurance policy, which covered negligence, but not recklessness; the judge had ruled the city couldn’t be held liable for negligence, and the city worried that a jury sympathizing with the plaintiffs would’ve simply found the quantum of recklessness needed so they could award damages. This is a useful example about the inefficacy of immunity statutes that protect against “negligence” but not “gross negligence.” (Brian Lockhart, “City pays $1.5M to settle suit with hurt pedestrians”, Stamford Advocate, Mar. 14). Unrelatedly, Norwalk is also the defendant in a suit by Linda Gorman. Gorman took a job in the town clerk’s office , interacting with the general public, but complains that the town isn’t doing enough to deal with her sensitivity to fragrances and perfumes. (Brian Lockhart, “Norwalk City Hall employee files lawsuit over perfume”, Stamford Advocate, Mar. 1).
Thousands of miles away, a jury found Hawaii County 34% responsible for the death of Ellison Sweezey, who was killed when Richard Rosario, a 20-year-old crystal meth addict fleeing police, ran a red light and struck her car. Cost to taxpayers: $1.9 million. If there were joint and several liability, the county would also be on the hook for Rosario’s share. (Rod Thompson, “Jury awards $5.6M in death from car chase”, Honolulu Star-Bulletin, Mar. 9; “$5.6M awarded to family of Big Island crash victim”, Honolulu Advertiser, Mar. 9). Hawaii police have undergone training to limit their willingness to chase suspects, with the expected counterproductive result (which we discussed Sep. 21, 2003) that criminals are now more likely to flee because their chances of escape have increased. (Rod Thompson, “Car theft suspect flees after slow-speed pursuit”, Honolulu Star-Bulletin, Mar. 10). Other car-chase lawsuits: Jan. 3; Feb. 18, 2004 (& letter to the editor, Apr. 12).
“The Cheyenne and Arapaho tribes of Oklahoma filed a claim Wednesday for 27 million acres given to the tribes in a 19th century treaty but said they would settle for 500 acres to build a casino in a symbolic return to Colorado. The petition, filed with the Department of Interior, covers northeastern Colorado and about 40 percent of the state.” And just like many Eastern tribes or would-be tribes, they’ve got an investor: “Steve Hillard, a Longmont venture capitalist who pulled together investors for the plan, dubbed the ‘Homecoming Project,’ said the unresolved settlement claims could tie up land and water sales in northeastern Colorado until an agreement is reached. Hillard said similar claims in Hawaii, New York, South Carolina and Texas have slowed real estate sales.” (Deborah Frazier, “Indians file huge land claim”, Rocky Mountain News, Apr. 15). For more on Indian land claim blackmail, see Feb. 9 and Nov. 2-4, 2001, among many others.
Gregg Easterbrook’s new and already indispensable weblog for the New Republic has some harsh words (Sept. 15) for former Montgomery County, Maryland police chief Charles Moose, of sniper-investigation fame. In an episode that has received little press attention, Moose extracted something on the order of $200,000 from the Marriott hotel chain after threatening a race-bias lawsuit over an incident last December in which a guard demanded to see his room key at an exclusive beach in Hawaii (“Top cop in sniper case settles isle bias lawsuit”, AP/Honolulu Star-Bulletin, Aug. 8).
June 10-11 – New Orleans cleanup continues. “It was bad enough that New Orleans personal injury attorney Curtis Coney Jr. was illegally paying ‘runners’ to solicit accident victims, paying them $500 for each ambulance-chasing referral. When his secretary was subpoenaed to testify before a federal grand jury, Coney compounded his problems by urging her to lie about the payments, even though she was the one who usually doled them out. … In a plea agreement unveiled in federal court Wednesday, Coney, 58, pleaded guilty to 10 counts of ‘structuring’ referral payments to hide them from the state and federal governments, one count of conspiracy and one count of obstruction of justice for pressuring [the secretary] to lie. As part of the deal, lead prosecutor Irene Gonzalez recommended a 33-month jail sentence for Coney.” The lawyer’s guilty plea is among the fruits of “a 4-year federal investigation of personal injury attorneys, a quietly unfolding case that has resulted in more than 20 convictions”. Targeted along with attorneys and “runners” are “medical providers who exaggerated or falsified injury claims in order to secure lucrative insurance settlements.” (Michael Perlstein, “Lawyer guilty in referral scheme”, New Orleans Times-Picayune, May 16). (DURABLE LINK)
June 10-11 – Bounty-hunting in New Jersey. The administration of Gov. Jim McGreevey has retained a flamboyant private plaintiff’s lawyer to pursue claims seeking to hold businesses legally liable for wastes left over from the state’s industrial past. Although Allen Kanner is initially donating his services for free, it is expected that he will take a contingency stake in some or many of the state’s financial recoveries. Also being hired is a politically well-connected law firm named Lynch Martin Kroll, associated with one of the state’s Democratic power brokers. Together, Kanner and the Lynch firm “are scouring state files for possible ‘natural resource damage’ claims. Such claims — little used in the state’s past — require polluters to go far beyond simple cleanups by making them pay the public for things such as lost fishing time, lost tap water, injured wildlife and soiled scenery.” (Alexander Lane, “State retains enviro-lawyer who gets polluters’ attention”, Newark Star-Ledger, May 11). More: PointOfLaw.com, Sept. 5, 2004. (DURABLE LINK)
June 10-11 – The Rule of Lawyers reviewed. In the June Commentary, Washington attorney and Findlaw columnist Barton Aronson contributes a very generous appraisal of our editor’s latest book. (DURABLE LINK)
June 9 – “Silver’s wreck”. Our editor has an op-ed piece in today’s New York Post on the impending demise of auto leasing in New York state, wrecked by the state’s archaic “vicarious liability” law whose chief defenders include the state trial lawyers’ association and Assembly Speaker Sheldon Silver (Walter Olson, New York Post, Jun. 9). Our earlier coverage of the issue is here. More: Sept. 5, 2004. (DURABLE LINK)
June 9 – “Families of teens killed in crash after rave sue U.S. government”. “Family members of five teens who died when their car careened off a cliff after an all-night rave party have filed a suit against the U.S. government for issuing the event’s permit. ‘If you knowingly allow use of your land for a drug party and people get killed, we allege you are partially responsible,’ said Andrew Spielberger, a West Hollywood-based attorney representing the families.” (AP/Sacramento Bee, Jun. 1). (DURABLE LINK)
June 9 – The intimidation tactics of Madison County. Four business groups held a press event in Madison County, Ill., last week to unveil the latest report depicting the county’s courts as a paradise for plaintiff’s lawyers (U.S. Chamber of Commerce, “The Rogue Courts of Madison County” (PDF)). What happened next? Local plaintiff’s attorney Bradley M. Lakin promptly slapped them with a subpoena demanding that their executives testify in a would-be class action case against Ford Motor on alleged paint defects. “Subpoenas are for witnesses who know something about the case,” said Victor E. Schwartz, general counsel of the American Tort Reform Association. “In this situation, ATRA knows nothing. It is clear the subpoena power is being used to squelch ATRA from speaking out about Madison County and its inequities as one of the leading ‘judicial hellholes’ in the United States.” Last year ATRA published a report entitled “Justice for Sale: The Judges of Madison County“. (“ATRA Says Subpoena Power Should Not Be Used To Squelch First Amendment Rights”, ATRA press release, Jun. 6; Illinois Civil Justice League, which was one of the subpoenaed groups along with ATRA and the national and Illinois Chambers of Commerce, has links). Updates Jul. 12: subpoenas dropped and Jul. 26: sanctions motions dropped.
And St. Louis Post-Dispatch columnist Bill McClellan turns the spotlight on a recent Madison County class action settlement involving Sears tires: “If you have a receipt showing you purchased an AccuBalance from a Sears auto center between 1989 and 1994 and are willing to take the time to request a claims form and fill it out and send it in, you could get $2.50 for each tire, up to a total of $10. Of course, who keeps receipts from 1989? You still might be eligible for $1.25 a tire, up to a total of $5. If Sears does not have a record of your purchase, you will be eligible only for a $3 Sears coupon. Of course, there will be forms to fill out under threat of perjury. Things are a little better for the lawyers who ‘represented’ you. The settlement says that their legal fees cannot exceed $2.45 million.” McClellan is bold to tackle this subject, since when he criticized lawyers from the same class-action firm in 1999 they came after him with a lawsuit, later dropped (see Nov. 4, 1999)(Bill McClellan, “Just like your tires, wheels of justice may be out of balance”, St. Louis Post-Dispatch, Jun. 4). (DURABLE LINK)
June 6-8 – New legal ethics weblog. David Giacalone, formerly of PrairieLaw, has started a new weblog, ethicalEsq?, specializing in “client-centered legal ethics”. He’s already posted on several issues of interest, including Common Good’s early-offers proposal (May 30 and Jun. 3), the case for requiring lawyers to disclose more fully to clients the circumstances of their representation (Jun. 3), and (citing this website) the still-unfolding battle in a New York courtroom over whether Judge Charles Ramos has authority to review and correct outrageous tobacco fees (May 31; on tobacco fees, see Daniel Wise, “Judge’s Power to Review $625M Tobacco Fee Award Challenged”, New York Law Journal, May 28). (DURABLE LINK)
June 6-8 – Claims consciousness in Utah. To promote a contemplated April Fool’s Day festival, Mayor Gerald R. Sherratt of Cedar City, Utah, published in local papers a tall tale about how wandering Vikings had left precious ancient artifacts in a local cave. Most residents seem to have gotten the joke, but various readers in the nearby town of St. George stepped forward to lay claim to the supposed treasure found in the cave, several of them saying “their ancestors had been part of the settlement and had owned some of the artifacts. …When Sherratt explained the whole story was made up to promote the festival, the St. George residents accused him and other officials of a cover-up.” (Paul Rolly and JoAnn Jacobsen-Wells, “Ad Flap Is Stranger Than Fiction”, Salt Lake Tribune, May 26). (DURABLE LINK)
June 6-8 – Hiker cuts off use of his name. Equipped to Survive, a wilderness gear site, recommended a pocket-sized emergency beacon by referring to a recent survival story that received worldwide publicity: “Your survival should not require you to amputate your own arm, as Aron Ralston was recently forced to do in order to escape being trapped by an 800-lb. boulder.” Before long the site’s proprietor received this cease and desist letter (PDF format) dated June 5 from Ralston’s lawyer demanding that the reference be removed as in violation of the hiker’s “right of publicity” under state statutes. There followed this rude reply from the website proprietor, inviting the lawyer to “stick your ridiculous cease and desist demand where the sun don’t shine”. Now cut that out, boys, there’s no reason we can’t be polite. (DURABLE LINK)
June 4-5 – Blaming murder on flat tire. A 19-year-old woman, having stopped to change a flat tire at the side of the road, is taken away and murdered by a local man. According to a lawyer for her family, the Ford Motor Co. and tiremaker Bridgestone/Firestone should be made to pay for the murder. A court dismissed the case against the two companies on grounds that they could not have found harm of this sort foreseeable enough to trigger a legal duty of care, but the family’s lawyer, Richard Rensch, is appealing to the Nebraska Supreme Court. (AP/KETV, Jun. 3; “Murder victim’s parents say flat set off tragic events”, Fremont (Neb.) Tribune, Jun. 3). (DURABLE LINK)
June 4-5 – Fox News “The Big Story”. Our editor was interviewed on screen for a piece that Fox News’s “The Big Story” is preparing on the search for deep pockets in litigation. It’s tentatively scheduled to run Wednesday, but these things are always subject to change. Update: it did run Wednesday, Jun. 4. (DURABLE LINK)
June 4-5 – Malpractice: juggling the stats. In the course of an otherwise standard feature package on the medical malpractice crisis (Daniel Eisenberg and Maggie Sieger, “The Doctor is Out”, Time, Jun. 9, and sidebars) Time gives credence to a newly issued report asserting that doctors’ malpractice premiums are actually rising fastest in states without damage caps (Jyoti Thottam, “A Chastened Insurer”, Jun. 1). Very curiously, the new report (from Weiss Ratings, “an independent insurance-rating agency in Palm Beach Gardens, Fla.”) is described as compiling figures for median premiums and payouts (the numbers compared with which half of the data points are higher and half lower) rather than averages, even though this is a field where the outliers (giant awards, unusually litigious specialties) drive the debate and the dollar figures. CalPundit (Jun. 2) spots this anomaly and opines: “this is so obviously the wrong statistic to use in this case that there must be some kind of axe to grind here” (via Jonathan Adler, NR Corner).
A table laying out the (very large) differences between malpractice premiums between Los Angeles (where doctors practice under California’s MICRA damages cap) and three litigious jurisdictions elsewhere in the country (Miami, Long Island, Detroit) indicates that MICRA confers its greatest benefit by far on the most litigation-prone specialties: for example, the average savings from MICRA for a neurosurgeon is $ 145,813 and for an ob/gyn $ 88,593, but it’s only $24,599 for an internist and $15,639 for a dermatologist (“2003 Malpractice Premium Comparison“, California Physician (California Medical Association)) (PDF format)(CMA’s MICRA Resource Center). For a more reliable reading of the crisis and its relation to damage caps and the insurance market, check out the report issued by the U.S. Department of Health and Human Services this spring (“Addressing the New Health Care Crisis: Reforming the Medical Litigation System to Improve the Quality of Health Care”, Mar. 3; Senate testimony by Deputy Secretary Claude A. Allen, Mar. 13).
How big an impact do the “outlier” cases have, the small number of gigantic verdicts that almost vanish from the calculation when per-case outlays are calculated as a median? Among recent examples are the $78.5-million verdict against an Orlando hospital for failing to figure out that a woman visiting its emergency room was suffering from a bizarre undiagnosed tumor; thought to be the largest medical malpractice award in Florida history, it has “become the symbol of juries run amok” in the view of critics of the system. (William R. Levesque, “Tremors still felt from whopping jury award”, St. Petersburg Times, Jun. 2). And in a result vocally criticized by appeals judges even as they felt obliged to uphold it, a Manhattan jury’s $40 million malpractice award against one of the city’s premier hospitals, New York-Presbyterian, has been blown up to $140 million by a law mandating that annual interest of 4 percent be added to awards “even if the jury has already adjusted the annual amount for inflation. Critics say that means a double adjustment for inflation in some cases, like this one.” (Richard Perez-Pena, “New York Hospitals Fearing Malpractice Crisis”, New York Times, Jun. 3). (DURABLE LINK)
June 4-5 – “Rape defendant asks $20,000; found fly in mashed potatoes”. “If convicted later this year of raping a 16-year-old girl, [Kenneth] Williams could be sentenced to 112 years to life in prison. It would be his third, and last, trip to state prison, authorities say.” What has upset Williams recently, however, is the insect impurity he says he found in his prison dinner. He “is seeking $20,000 to ease the ‘mental stress and anguish’ he said finding the fly inflicted upon him. ‘It’s been almost a month since this occurred,’ Williams wrote last week in the claim, ‘and I still only pick at my food …. I’m losing weight and am unable to eat properly.’” The sum demanded was fair, according to his complaint, since public venting of the allegations “would cost the county ‘a great deal more both financially and in bad publicity.’” (J. Harry Jones, San Diego Union-Tribune, Jun. 3). (DURABLE LINK)
June 3 – An important litigation skill. From Gail Diane Cox’s “Voir Dire” column in the National Law Journal, Nov. 4, 2002 (scroll down to “Jargon Watch”): “Blamestorming: Variant of brainstorming. Sitting around in a group discussing a mistake and how to make someone responsible for it, preferably a deep-pocket defendant. Synonym: Litigation initiation.” Maybe a session of this sort was responsible for the naming of Shell Oil as a defendant in the Rhode Island nightclub fire (see May 30-Jun. 1). (DURABLE LINK)
June 3 – “Resumé spam saddles employers”. It’s common these days for employers to receive hundreds, thousands or even milllions of resumés via email from hopeful job-seekers. Federal regulations on the books since the 1970s, however, require most larger companies to preserve records of all job applications, the most important reason being to furnish evidence in case they are someday investigated for possible discrimination. Under the strictest interpretation of the rules, companies with more than fifteen employees must keep on file any resumé sent to them — even if “the applicant misspells the company’s name, applies for a job not listed or is simply not qualified.” The result: a large and ever-growing paperwork/compliance burden on American business. (Bill Atkinson, “Resume spam saddles employers”, Baltimore Sun, May 22; Michelle Martinez, “Who Really Is An Applicant When Recruiting Online?”, PeopleClick.com, undated). See Shirleen Holt, “Résumé spam is tiring those hiring”, Seattle Times, Jan. 19; Katherine Harding, “The new scourge: Résumé spam”, GlobeTechnology.com (Globe & Mail, Canada), Jan. 8 (“Companies that advertise jobs on-line are finding their e-mail boxes crammed with irrelevant responses”, some from applicants who blast out responses to every job listed on a posting board). (DURABLE LINK)
June 2 – Updates. Further developments in cases we’ve covered:
* Citing its recent jurisprudence bringing constitutional due process limits to bear on punitive damages, the U.S. Supreme Court has instructed lower courts to reduce a $290 million award against Ford Motor in the Romo case; the case arose from a Bronco rollover in central California, and we’ve had quite a bit to say about it over the four years since it went to trial (see Oct. 24, 2002 and links from there) (David Kravets, “High Court Reduces Damages in Car Crash”, AP/Yahoo, May 19; Bob Egelko, “Key ruling on punitive damages”, San Francisco Chronicle, May 19);
* The Los Angeles Zoo has transferred Ruby, its female African elephant, to a Tennessee zoo notwithstanding a pending lawsuit (see May 16-18) complaining that the move would disrupt Ruby’s bond with her elephant “best friend”; an attorney who had gone to court seeking a temporary restraining order against splitting the two elephants complained that zoo authorities had acted “like thieves in the middle of the night”. (Carla Hall, “Despite Protests, L.A. Zoo Sends Elephant to Tennessee”, Los Angeles Times, May 27) (via SoCalLaw, May 27);
* The Supreme Court of Hawaii has reversed a jury’s award of $2 million to an auto service manager fired over what his employer considered credible charges of sexual harassment (see Mar. 10-12, 2000) (Gonsalves v. Nissan Motor Corp. in Hawaii, Ltd., Supreme Court of Hawaii, Nov. 27, 2002; see Jeffrey Harris, “Law Watch: Preventing Harassment Trumps Keeping Promises”, Hawaii Business, Feb. 20);
* In a humiliating defeat for backers of anti-gun litigation, a federal “advisory” jury in Brooklyn has refused to hold manufacturers liable for inner-city gun crime in the much-publicized case brought by the NAACP before judge Jack Weinstein. “The panel of 12 jurors issued a finding of no liability for 45 of the defendants and was unable to reach a verdict for the remaining 23 manufacturers or gun dealers”. (Mark Hamblett, “Federal Advisory Jury Declines to Find Gun Industry Liable”, New York Law Journal, May 15; Katherine Mangu-Ward, “No Smoking Gun”, WeeklyStandard.com, May 8). Update Jul. 20: judge dismisses lawsuit entirely. (DURABLE LINK)
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April 30 – “Lawyers who won $10 bil. verdict had donated to judge”. Okay, so it’s among the year’s least surprising headlines: “Illinois campaign records show 19 lawyers or relatives connected to a law firm [Korein Tillery] that recently won a record tobacco judgment gave almost $10,000 in political donations to the presiding state judge last year, according to a published report”. Perhaps a bit more surprising: Judge Nicholas Byron’s campaign had also gotten $6,000 from the law firm that represented the defendant, Philip Morris. “Illinois law doesn’t prevent judges from accepting money from attorneys who argue cases in their courts, and there are no limits on the number or amount of contributions that politicians and judges can accept.” (AP/Chicago Sun-Times, Apr. 14; “Tobacco Case Judge Got Campaign Funds From Lawyers: Report”, Wall Street Journal, Apr. 11). An analysis for the St. Louis Post-Dispatch “found that judges running for election or retention in Madison County last year averaged more than $100,000 each in campaign receipts. That’s three times the roughly $29,000 average the newspaper found for judges statewide and 10 times the $10,000 average in Cook County’s crowded judicial system. The average take for Madison County judges is about four times more than for judges in neighboring St. Clair County, which has roughly the same population.” Most of the donations came from practicing lawyers. (Kevin McDermott, $218,000 for one judge”, St. Louis Post-Dispatch, Apr. 27)(see Mar. 24, Apr. 2, Apr. 4).
State governments — and the municipal-finance lawyers that have helped them “securitize” streams of future tobacco booty — heaved a sigh of relief when Judge Byron earlier this month agreed to reduce Philip Morris’s appeals bond (to a still extraordinarily onerous level), thus averting a possible bankruptcy filing and interruption of payments to the states (Brenda Sandburg, “Tobacco Decision Gives Bond Lawyers Breathing Room”, The Recorder, Apr. 15). Judge Byron also decreed in the original verdict that the tobacco company should pay the plaintiff’s team legal fees approaching $1.8 billion, which works out to $13,100 per hour even if you swallow the lawyers’ contention that they spent a staggering 135,500 hours of work on the case over the past three years. If you’re curious to see the audit trail documenting those hours, your curiosity may be in vain. “Charles W. Chapman, a retired Illinois appellate court judge who testified in support of such fees for the plaintiffs’ attorneys, “said that it was not his duty to verify the hours Tillery worked. ‘It’s basically an honor system,’ Chapman said. ‘I don’t have any way of knowing if he worked those hours.’” (Trisha L. Howard and Paul Hampe, “Record legal fee averages to $13,100 an hour”, St. Louis Post-Dispatch, Apr. 6). (DURABLE LINK)
April 28-29 — Latest Rule of Lawyers publicity. At Forbes.com, reviewer Robert Lenzner pens a rave for our editor’s new book: “Anyone in the market for a truly gripping read about tort lawyers should skip [John] Grisham’s [latest] novel and instead pick up Walter K. Olson’s nonfiction book The Rule of Lawyers, a brilliant expose of the way courts are being overwhelmed by mass tort actions. … Grisham’s indictment of the tort bar can’t hold a candle to Olson’s thorough journalistic impeachment of the dangers posed by these lawyers.” (Robert Lenzner, “The Rule of Lawyers”, Forbes.com, Apr. 21). The blurb/summary for the review provided by the Forbes.com editors is reasonably flattering as well. In Paris, meanwhile, Le Monde discusses our editor’s “dernier livre” and also provides a link to this website, which it describes as “très documenté”. (Claire Ané, “Dommages et intérêts collatéraux de la justice américaine”, Le Monde, Apr. 22). The March/April issue of the American Spectator features a substantial excerpt from the book’s chapter on trial lawyers and politics (Walter Olson, “The Lawsuit Lobby”, not online). In the print version of National Review, the book is favorably reviewed by Doug Bandow (“Shyster Heaven”, Apr. 21). And the Boston Globe‘s Charles Stein mentioned the book and quoted our editor in a recent column on the states’ interest in preventing tobacco companies from going under (“States confront a necessity: ‘evil’”, Apr. 13). (DURABLE LINK)
April 28-29 – Had no idea you can’t launder campaign contributions. “A lawyer for Tab Turner, the head of a Little Rock law firm under investigation by the U.S. Department of Justice, suggested Thursday that his client had not been aware of an election law that prevents him from reimbursing employees who contribute to U.S. Sen. John Edwards’ presidential campaign.” (John Wagner, “Edwards donor will cooperate”, Raleigh News & Observer, Apr. 25). “Twenty people who were identified on Edwards’s report as ‘paralegal’ employees each gave $2,000, as did nine persons described as ‘legal assistants.’” Most of those contacted by the Washington Post claimed that they had chosen to donate their own money, but two employees at Turner’s firm indicated that they expected to be reimbursed by their employer. “Federal election laws prohibit a person from funneling donations through someone else to conceal their source. Such practices would enable the reimburser to exceed the legal contribution limit for individuals, recently raised to $2,000 from $1,000 per election.” Turner is among the best-known attorneys specializing in product liability suits against automakers. (Thomas B. Edsall and Dan Balz, “Edwards Returns Law Firm’s Donations”, Washington Post, Apr. 18). (DURABLE LINK)
April 28-29 – “Solicitor billed for 81-hour day”. Pennsylvania: “The lawyer for Upper Darby’s financially pressed schools paid back $19,361 in fees after The Inquirer showed him evidence that he had billed the district for more than 24 hours’ work on each of four days. …Barry Van Rensler, who was paid $421,327 last year and more than $2.8 million in his last 14 years as district solicitor, said the billings in question were innocent mistakes involving misplaced decimal points. … District officials say they are satisfied that the errors in Van Rensler’s billings were innocent.” One bill was for an 81-hour day. (Barbara Boyer and Tina Moore, Philadelphia Inquirer, Apr. 27). (DURABLE LINK)
April 28-29 – Wouldn’t want to look unsafe. City officials in Oakland, Calif. would like to crack down on businesses’ right to use “exterior security devices” to protect their premises. Aside from unsightliness, “It gives a sense that our community is not a very safe city,” said City Manager Robert Bobb. Last month a City Council committee “backed a plan … to prohibit barbed wire fences in commercial districts but stopped short of supporting a more far-reaching proposal to eliminate burglar bars, roll-down doors and retractable security gates, common fixtures throughout the city.” Many small business owners aren’t impressed: “‘There is a lot of crime in Oakland. Who’s trying to kid who?’ Josefina Lopez, owner of Corazon Del Pueblo, said at her Mexican imports store and art gallery on International Boulevard, near High Street. … When riots broke out after the Super Bowl in January, Lopez watched from her store as vandals and looters broke nearly every window of the Kelly-Moore Paint store across the street. Her shop, with a wrought-iron gate in front of its doors and metal roll-down doors over the windows, escaped unharmed.” (Janine DeFao, “Oakland trying to avoid that ‘war zone’ look: Ban on metal bars, roll-down doors considered”, San Francisco Chronicle, Mar. 26). (DURABLE LINK)
April 25-27 – Price of bad hairdo: $6,000. “The bad hairdo blamed by a woman for her emotional tailspin was worth $6,000, a St. Louis County jury decided Wednesday in a verdict that delivered far less than she sought.” Geremie Hoff sued the local Elizabeth Arden salon after an Aug. 2001 hair straightening job was followed by brittleness and fall-outs. Hoff’s attorney had said “his client was so distressed that she retired early from the University of Missouri at St. Louis, where she taught, and also stopped guiding tours to Italy.” A defense lawyer, however, “noted that Hoff didn’t retire until nearly a year later, after her hair returned. He said her tour business would have suffered anyway, in the aftermath of the terrorist attacks of Sept. 11, 2001.” (William C. Lhotka, “Jury awards Creve Coeur woman $6,000 in suit over hairdo”, St. Louis Post-Dispatch, Apr. 9; Cynthia Billhartz, “What’s the price of a really bad hair day?”, Apr. 14). (DURABLE LINK)
April 25-27 – Gun lawsuit columns. Did the U.S. House of Representatives ignore proper principles of federalism when it recently passed a bill that would pre-empt some lawsuits in state court seeking to saddle gun manufacturers with the costs of crimes? Columnist Jacob Sullum takes up the question, quoting our editor’s recent Capitol Hill testimony on the subject (“Federalist Case”, syndicated/Reason, Apr. 18). Also citing our work on gun lawsuits recently have been columnists Chuck Colson (“Standing on Dangerous Ground”, syndicated/TownHall, Apr. 16); Wayne LaPierre of the National Rifle Association, in his second monthly column in a row (“Standing Guard”, American Hunter, May, not online); and Paul Craig Roberts (“Gun control: the criminal lobby”, syndicated/Town Hall, Apr. 23). (DURABLE LINK)
April 25-27 – “Reforming Class-Action Suits”. “[C]ompanies operating nationwide get haled into local courts that plaintiffs’ lawyers have found particularly willing to accept class actions — and to hit out-of-state firms with costly judgments. This situation allows state judges at the county level to issue rulings that ‘federalize’ their decisions — effectively writing rules for the whole country. In recent years, for example, an Illinois court imposed Illinois law on the insurance laws or regulations of New York, Massachusetts, and Hawaii. Class-action suits have also become an ATM for unscrupulous lawyers, who win millions of dollars for themselves but sometimes leave clients empty-handed.” The Christian Science Monitor lends its editorial endorsement to the Class Action Fairness Act, which has passed the House and is now pending in the Senate (Apr. 17). And Baseball Crank, which we have been tardy in thanking for its kind link to us, has a highly recommended post (Apr. 16) on “Federalism’s Edge: the point at which an exercise of state power (by a state or group of states) infringes on the right to self-government of the citizens of the other states”, an issue that underlies both the CAFA and gun-suit-preemption controversies. (DURABLE LINK)
April 25-27 – Manufacturer sued after bullet fails to take down lion. Professional big-game hunter Rolf Rohwer is suing bullet manufacturers after an unfortunate occurrence on safari in Africa in which he shot a charging lion from about 30 yards away but was mauled anyway. According to his lawyer’s allegations, the Federal Cartridge Co.’s Trophy Bonded Bear Claw bullet, even if suitable for hunting such big game animals as rhinoceros, elephant, buffalo and hippopotamus, was insufficiently lethal when aimed at a lion because the smaller animal’s thinner skin permitted the bullet to pass through with minimal damage. (Howie Padilla, “Injured big-game hunter takes aim at bullet manufacturers”, Minneapolis Star Tribune, Apr. 16). Update Jan. 15, 2005: judge dismisses complaint. (DURABLE LINK)
April 24 – Posting to resume tomorrow. Following two weeks in which our editor, called away by a death in his family, was without web-posting capability, we expect to pick up where we left off momentarily.
April 14-23 – (On hiatus).
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April 10-13 – Posting slowdown. Updates will be sparse for a while as our editor responds to a family emergency. See you, most likely, early next week. (DURABLE LINK)
April 10-13 – Public Citizen’s bogus numbers. The supposed consumer group now concedes that it put out erroneous numbers which made Pennsylvania doctors look artificially bad (“Watchdog group backs off claim that Pa. doctors top nation’s repeat malpractice payouts”, AP/Scranton Times, Apr. 2; see our Mar. 15-16 report). In January, in a move timed to undercut President Bush’s Scranton speech calling for malpractice reform, Public Citizen claimed that 10.6 percent of Keystone State doctors had paid out on more than one malpractice allegation; it now admits it can verify only a figure of 5.4 percent. The false numbers were widely reported in the press, and the AP last week published an unusual correction (AP/Kansas City Star, Apr. 4). Pennsylvania Medical Society spokesman Chuck Moran called for Public Citizen to apologize: “It’s ironic that they initiated a report called ‘Medical Misdiagnosis: challenging the malpractice claims of the doctor’s lobby’, when, in fact, they are the ones that misdiagnosed the situation.” The accuracy of the group’s figures have also been challenged in Colorado (“Monitoring malpractice” (editorial), Denver Post, Mar. 10).
There is at any rate a more fundamental problem with the litigation lobby’s contention that the current crisis is caused by a small number of bad doctors who attract most malpractice suits and should simply be driven out of practice. As Binghamton, N.Y. neurologist Dr. Jeffrey Riben points out, the number of malpractice lawsuits doctors face often have less to do with their competence than with their specialty and geographic location. “If you look around at physicians that get sued a lot, they tend to be highly prestigious names, people who get difficult cases in difficult specialties where the results are predestined not to be as good as those of people who handle simpler cases, Riben said. ‘Those are the people who have litigation. So it you want to eliminate those people with multiple suits, you would have to eliminate all of our neurosurgeons, all of our orthopedic surgeons, all of our obstetricians, anybody working in an emergency room and everybody reading mammograms,’ he said. ‘I think you would agree if we eliminated those specialties we would not improve health care.’” (Eric Durr, “Docs, public interest groups battle over malpractice issues”, Albany Business Review, Mar. 14). (DURABLE LINK)
April 10-13 – Employers liable for not filtering raunchy spam? At least if workers have complained, employers may be at risk of liability under sexual harassment law if they fail to install blocking software on email inboxes, say various legal experts. Quotes our editor (Declan McCullagh, “Por nspam: Are employers liable?”, CNET News, Apr. 7) (DURABLE LINK)
April 10-13 – Best and worst state courts for business. The U.S. Chamber of Commerce releases the results of a detailed Harris poll of business respondents. The “top five states today as evaluated by corporate America at doing the best job at creating a fair and reasonable litigation environment are: Delaware, Nebraska, Iowa, South Dakota, and Indiana whereas in 2002 Delaware, Virginia, Washington, Kansas, and Iowa were listed as the top 5. The worst perceived states today are: Mississippi, West Virginia, Alabama, Louisiana, and Texas, exactly the same as in 2002.” California scores low marks for punitive damages and treatment of class actions; Hawaii is criticized for onerous discovery and the difficulty of getting weak cases thrown out quickly; New York and Minnesota win plaudits for their handling of scientific and technical evidence. Where does your state rank? (overview) (press release in PDF format) (poll results as Word document) (press conference) (DURABLE LINK)
April 9 – Schools roundup. In Camden, N.J., second grade teacher Eileen Blau has sued student Daniel Allen for running into her in a school hallway at an “excessive rate of speed”, thus inflicting “severe and multiple injuries, some of which are permanent in nature,” according to her suit. Young Allen, who at the time of the incident was 11 and weighed about 90 pounds, didn’t know his family was the target of a claim until the sheriff’s deputy showed up at the door. “He didn’t understand why someone would want to do this to him,” said his mother. “He said ‘Why does she hate me? Why is she doing this. I said I was sorry.’” (Bill Duhart, “Teacher sues student over hall collision”, Cherry Hill, N.J., Courier-Post, Mar. 29). The American Bar Association Journal presents an overview of suits arising when girls aren’t picked for the cheerleading squad (Stephanie Francis Cahill, “Bring It On”, Apr. 4; see Jun. 4, 2001). And “[a] group of attorneys who sued Mississippi schools for millions of dollars on behalf of custodians, bus drivers and cafeteria workers has turned to Alabama, filing more than 60 similar lawsuits”. (Scott Parrott, “Local school systems sued”, Tuscaloosa News, Apr. 4). More on the Jackson, Miss.-based School Litigation Group, which according to one of its principals, former congressman and secretary of agriculture Mike Espy, “takes a contingency fee of between 40 percent and 50 percent, depending on the complexity of the case”: Gary Young, “Overtime Suits 101″, National Law Journal, Mar. 19. (DURABLE LINK)
April 7-8 – Bag of treasures. Cornell Curry, 57 and homeless in New York City, says the Partnership for the Homeless’s drop-in center on W. 23rd St. negligently lost a duffel bag of his belongings last fall; he had been unable to stop by to retrieve the belongings because he was spending three weeks in jail after being arrested for public urination. The shelter “admits it did toss one of Curry’s bags in the garbage, but said that one contained only three soiled pieces of clothing.” Au contraire, says Curry in his lawsuit: he avers that the contents of the lost duffel bag included “an $18,000 star sapphire ring, a $4,000 gold watch, $200 in cash and ‘extremely valuable’ photographs, including his parents’ 1937 wedding photo”, entitling him to $2 million in compensatory and $2 million in punitive damages. Last month Manhattan Supreme Court Justice Rosalyn Richter denied a motion to throw out the claim: “It is simply too early to resolve whether the plaintiff did, in fact, leave the bag in the defendant’s possession and whether the plaintiff also shares some responsibility for the alleged loss,” Richter said. (Helen Peterson, “Homeless, or Mister money bag?”, New York Daily News, Mar. 20). (DURABLE LINK)
April 7-8 – Malpractice crisis hits sports-team docs. Some of organized sports’ most memorable highlights have come when athletes played through pain and injury, but increasingly the result is to create a risk of litigation against team physicians, who are exposed to monetary damages that are potentially enormous given their patients’ potential loss of earning power. Some doctors are withdrawing from the care of professional athletes, and organized football is discussing schemes to indemnify team doctors for their escalating insurance bills. (Jason Cole, “With malpractice rates skyrocketing, many doctors are hesitant to care for professional athletes”, Miami Herald, Apr. 2). Our editor’s Feb. 27 Wall Street Journal piece on lawsuits blaming obstetricians for cerebral palsy is now online, thanks to the folks at Texans for Lawsuit Reform. And welcome readers from Sydney Smith’s excellent medical weblog MedPundit, which has run posts in recent weeks on California’s MICRA and insurance rates, what happens to patients who win awards (plus North Carolina crisis notes), the problem with physician “report cards”, Public Citizen, and a link to this Tallahassee Democrat op-ed (Mar. 3) on how Florida’s malpractice crisis is harming its medical schools. (DURABLE LINK)
April 7-8 – Edwards leads in fund-raising. The North Carolina senator aces his Democratic rivals in the White House money race: “The key to Edwards’ success may have come from trial lawyers, a group of which Edwards is a part and from whom he received 80 percent of political action committee money in recent years.” (“Dem Presidential Hopefuls Compete for Cash”, FoxNews.com, Apr. 2; Richard A. Oppel, Jr., “With $7 Million in Donations, Kerry Trails Democratic Rival”, New York Times, Apr. 3). However, a January poll conducted for the Raleigh News & Observer found the senator none too popular in his home state: “The poll found that 47 percent of active Tar Heel voters disapprove of Edwards’ decision to seek the presidency, while 37 percent approve”. (“Poll: Edwards wouldn’t beat Bush in North Carolina”, AP/Charlotte Observer, Jan. 18) (via “Robert Musil“). (DURABLE LINK)
April 7-8 – U.K.: “Killer wrongly sacked for axe attack”. “A convicted murderer who tried to attack a colleague with an axe was wrongly sacked from his job, an employment tribunal ruled yesterday.” The tribunal in the British Midlands ruled that Preston city council was wrong to fire James Robertson, 50, without notice from his health inspector post after he “brandished the [axe] in an Indian restaurant in Preston after an argument”. However, the tribunal ordered the council to pay only “two weeks’ wages, or £807, for breach of contract,” rejecting a plea for more extensive compensation by Robertson, who “gave evidence while handcuffed to a prison guard.” The council “had employed him when he was released from jail on licence after being convicted of kicking a man to death in Glasgow in 1971.” (Daily Telegraph, Apr. 3) (& welcome Dave Barry readers — the great humorist generously calls us “the always fascinating Overlawyered.com” (archives not working, Apr. 7)). (DURABLE LINK)
April 4-6 – Gun lawsuit preemption moves forward. On Wednesday a House Judiciary subcommittee held a hearing on H.R. 1036, the Protection of Lawful Commerce in Arms Act, which would “prohibit civil liability actions from being brought or continued against manufacturers, distributors, dealers, or importers of firearms or ammunition for damages resulting from the misuse of their products by others.” Our editor testified in favor of the measure (his prepared statement). The proceedings were televised live on C-SPAN III and rebroadcast overnight on C-SPAN II (schedule, Apr. 2). Yesterday the full House Judiciary Committee gave its approval to the legislation, with Virginia Democrat Rick Boucher joining all panel Republicans in support of the measure. John Tierney’s New York Times account (“A New Push to Grant Gun Industry Immunity From Suits”, Apr. 4) quotes our editor on the subject and mentions The Rule of Lawyers (see second page of article). (DURABLE LINK)
April 4-6 – C-SPAN again. Speaking of C-SPAN II, the network’s “BookTV” feature will be rebroadcasting our editor’s Manhattan Institute speech on The Rule of Lawyers at 3:30 p.m. Eastern on Saturday, April 5. (DURABLE LINK)
April 4-6 – A bond too far. Even the editorialists of the New York Times agree that it’s “absurd” and “the kind of ruling that erodes the credibility of our legal system” to require Philip Morris to post a ruinous $12 billion bond before it can appeal the class action ruling of a judge in plaintiff-friendly Madison County, Ill. (“Too Costly an Appeal”, New York Times, Apr. 4)(see Wednesday’s post; more). “As for Judge [Nicholas] Byron, it’s difficult to divine if he was playing jurist or friendly croupier. He sought to sweeten the pot by awarding the State of Illinois $3 billion in punitive damages, out of the total $10.1 billion judgment.” (“A Madison County jackpot”, Chicago Tribune, Apr. 2). Perhaps influenced by the prospect that the state will be thrown this slice of the booty, the Illinois Senate is refusing (for now) to lift a finger to reduce the bonding requirement (“Panel nixes bill to help Philip Morris”, Chicago Sun-Times, Apr. 4)(Update Apr. 30: judge agrees to reduce bond somewhat). (DURABLE LINK)
April 2-3 – Appeals bonds, again. Once again the business end of an otherwise outlandish mega-verdict turns out to be the requirement that a defendant post a bond before it can appeal: Philip Morris says it is unable to put up the requisite $12 billion needed to appeal the recent Madison County, Ill, verdict against it (see Mar. 24). Officials of the fifty states are running around in near-hysteria: they’re bothered not by the possible injustice or community-and-investor disruption involved in bankrupting the giant company, whose holdings include Kraft Foods and Oscar Mayer, but instead by the prospect that an insolvency will jeopardize the flow of billions of dollars into their own coffers under the tobacco settlement. So the AGs, supposedly second to none in their loathing of the tobacco companies, are making noises about intervening to try to get the appeals bond requirement lowered. This is the second time around (at least) for this issue: state governments also mobilized after the Engle tobacco case in Florida threatened bonding requirements high enough to destroy the industry. See also the Loewen case (Ameet Sachdev, “States line up against smoking case bond”, Chicago Tribune, Apr. 1; Neil Buckley, “Philip Morris ‘cannot afford’ $12bn bond”, Financial Times, Apr. 1; “Philip Morris woes hurt stock”, AP/Seattle Times, Apr. 1; “Appeals bond a symptom of need for tort reform”, Bloomington (Ill.) Pantagraph, Apr. 1; related). (DURABLE LINK)
April 2-3 – After the R.I. club fire. “Ignoring calls from peers to hold off on lawsuits for now, a Providence lawyer [earlier this month] fired the second salvo in what is expected to become a barrage of litigation resulting from the fire at The Station. The lawsuit was filed in Providence Superior Court on behalf of Lisa Kelly of Swansea, a 27-year-old single mom who was among the 99 people killed in the Feb. 20 blaze at the West Warwick, R.I., nightclub. The lawsuit was filed by Ronald Kingsley, the father of Kelly’s daughter, Zoe Jean Kingsley. Kelly’s mother, Barbara Nagle of Attleboro, yesterday said she knew nothing about the suit and that Kingsley hadn’t had any contact with his daughter in three years as far as she knew….
“The latest lawsuit names 19 individuals and companies as defendants, including the St. Louis-based beer giant Anheuser-Busch Inc., whose Budweiser brand accompanied some advertising for the ill-fated show. Anheuser-Busch Inc. yesterday denied any role in promoting or sponsoring the concert in a statement sent to the Herald. ‘The company that distributes Anheuser-Busch Inc. products in Rhode Island is an independent business that has the right to use our beer brand name in its advertising,’ wrote Stephen Lambright, a company lawyer.” (Thomas Caywood, “Second suit filed over fire at Station”, Boston Herald, Mar. 11)(see Mar. 10-11). See also Roger Parloff; “Where There’s Smoke, There’s Ire”, Fortune, Mar. 19; Deroy Murdock, “Lawyers turn tragedy to farce”, Scripps Howard/Naples, Fla. Daily News, Mar. 28. (DURABLE LINK)
April 2-3 – “Mayor: WTC Personal Injury Suits Could Bankrupt NYC”. “New York City Mayor Michael Bloomberg on Monday warned that personal injury lawsuits filed by people who claim their long-term health was damaged by the clean-up of the World Trade Center site could bankrupt the city in the next 20 years.” (Reuters/Yahoo, Mar. 31). See also Paul Howard (Manhattan Institute), “A 9/11 Tort-Fest”, New York Post, Aug. 10, 2002, and New York Law Journal coverage: Mark Hamblett, “9/11 Victims’ Suits Flood Court to Meet One-Year Time Limit”, Sept. 11; Tom Perrotta, “New York City Creates Unit for Suits From Sept. 11″, Sept. 12; Daniel Wise, “Sept. 11 Fund Master Found to Give ‘Fair Compensation’”, Oct. 2). (DURABLE LINK)
April 1 – Maybe crime pays dept.: not an April Fool’s joke. Gerald Skoning’s annual National Law Journal roundup of the year’s weirdest cases in labor and employment law includes the following gem: “Richard N. Shick — while employed as a caseworker in the Illinois Department of Public Aid — robbed a convenience store in Joliet, Ill., armed with a sawed-off shotgun. Afterward, he sued the department, claiming that he was discriminated against because of his disabilities and his sex, the trauma of which caused him to commit the robbery. The jury awarded him $5 million in damages and $166,700 in back pay. The U.S. District Court for the Southern District of Illinois partially vacated and dismissed the judgment, but awarded $303,830 in front pay, even while he serves a 10-year sentence. Thankfully, the 7th Circuit reversed.” (“Legal Weirdness at Work”, Mar. 26; Gail Diane Cox, “Here’s the tort reform poster boy for 2002″, National Law Journal, Oct. 28). Also on Skoning’s list: voodoo signs ruled not an unfair labor practice; employer dodges harassment charge after conduct is ruled “even-handedly offensive” rather than discriminatory; hemorrhoids not a protected disability under ADA. (DURABLE LINK)
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November 8-10 – By reader acclaim: “Father files suit after son fails to win MVP award”. “A Canadian father is suing the New Brunswick Amateur Hockey Association after his 16-year-old son failed to win the league’s most valuable player award. Michael Croteau is seeking about $200,000 in psychological and punitive damages from the association. He also demands that the MVP trophy be taken from the winner and given to his son, Steven.” (“Father sues team for not naming son MVP”, AP/ESPN, Nov. 7; Shawna Richer, “Father files suit after son fails to win MVP award”, Globe and Mail, Nov. 7). (DURABLE LINK)
November 8-10 – Welcome Weekly Standard readers. The magazine’s “Scrapbook” feature generously refers to us as “One of [its] favorite sites” (“The Scrapbook: DeWayne Wickham, Wellstone, and more”, Nov. 11)(requires print sub + reg) in the course of hailing a Miami federal judge’s recent ruling that the Americans with Disabilities Act does not require website operators to redesign their offerings for the convenience of blind customers (see Oct. 22). (DURABLE LINK)
November 8-10 – Asbestos opinions. The Supreme Court has just heard oral argument on Norfolk & Western Railway Co. v. Ayers, a case raising the question whether railroad workers who have not in fact developed cancer from exposure to asbestos can nonetheless sue under federal law for fear of same (Dahlia Lithwick, “Supreme Torts: How to get paid a million dollars for your phobias.”, Slate, Nov. 6; Marcia Coyle, “Litigating Over the Fear of Cancer”, National Law Journal, Oct. 30). The recent massive combined asbestos suit in West Virginia has served to expose the rift between plaintiffs’ counsel whose clients are seriously sick, and those whose strategy leads them to recruit other kinds of clients (Lisa Stansky, “Unusual Clash in Asbestos Case”, National Law Journal, Oct. 31). In the latest of several scorching columns he has written on the controversy, Stuart Taylor, Jr., charges that “lawyer-plutocrats continue to obscenely enrich themselves by using massive asbestos lawsuits and a disgracefully dysfunctional litigation system to extort billions of dollars from American consumers every year. The lawyers blackmail mostly blameless companies, while cheating the real victims of asbestos. This scandal in turn dramatizes how our lawsuit industry often operates as an engine of injustice — and as a drain on the economy, an inadequate vehicle for compensating people actually harmed by corporate wrongdoing, and a transparent fraud in its pretensions to punish those responsible for such wrongdoing.” (“Greedy Lawyers Cheat Real Asbestos Victims”, National Journal/The Atlantic, Oct. 1). See also James A. Lacey, “Asbestos Suits: Worse Than Enron”, New York Post, Oct. 9. (DURABLE LINK)
November 8-10 – Munched zoo animals, gets six months severance. “A German zookeeper, fired last month for eating animals in a town zoo, has been awarded six-months severance pay after reaching a settlement in a labour court. The town of Recklinghausen, north of Cologne, fired the zookeeper after he was caught barbecuing five Tibetan mountain chickens and two Cameroonian sheep at the zoo, popular with children who were allowed to stroke the animals. … Germany’s laws make it extremely difficult for employers to fire workers.” (“Animal feast zookeeper win pay claim”, Yahoo/UK Reuters, Nov. 7) (DURABLE LINK)
November 8-10 – “Lawyers Fight Over Louima Case Fees”. Continuing the tawdry saga last aired in this space July 24, 2001: “The Abner Louima police brutality case resurfaced in federal court Wednesday, as attorneys disputed the distribution of nearly $3 million in attorney fees amid accusations of slipshod lawyering, client poaching and greed. Johnnie L. Cochran, Peter Neufeld and Barry S. Scheck have filed a motion to prevent Louima’s first two lawyers — Carl W. Thomas and Brian Figeroux — from receiving any portion of the fees associated with the record $8.75 million settlement Louima received from New York City.” (Tom Perrotta, New York Law Journal, Oct. 18; “Louima’s first team of lesser-known attorneys seek share of $3 million”, AP/CNN, Oct. 18). “According to Scheck’s testimony, the relationship between the two groups of lawyers was tense from the very beginning, with members of both teams launching racial slurs.” (“Lawyers Fight Over Fees From Louima Settlement”, (WNBC-TV, Oct. 17). (DURABLE LINK)
November 7 – Some election results. The Senate results, as will be surmised, were a spectacular rout for organized trial lawyer interests, which had spent heavily to defend Democratic control of the upper chamber. (Another key litigation lobby ally, Sen. Dick Durbin (D-Ill.) (Jul. 7, 2000) did not face serious challenge and won easy re-election.) Of the three extremely wealthy trial attorneys who ran for U.S. House seats in West Virginia and Florida (Oct. 11-13), all lost by margins of 60-40 or worse (Humphreys, Jacobs, Hogan). And all of the nationally publicized state supreme court races seem to have been resolved in a manner favorable to litigation reformers. Mississippi Supreme Court Justice Chuck McRae, widely viewed as symbolizing his court’s runaway-litigation faction (Sept. 9-10), lost badly, actually coming in third in a three-way race with 23 percent of the vote. (Antoinette Konz, “Dickinson takes high court position”, Hattiesburg American, Nov. 6). Despite a nasty ad campaign against them (Nov. 1-3), Maureen O’Connor and Evelyn Stratton won convincing victories for seats on the Ohio high court, whose balance of power may shift as a result. Judges Robert Young (Michigan) and Harold See (Alabama), who have drawn trial lawyer fire in the past, were both re-elected, albeit narrowly in See’s case.
In governor’s races, on the other hand, there was little to cheer about, with trial-lawyer-backed candidates pulling out mostly narrow victories in Michigan, Oregon and Tennessee. We never expect much good news to come out of attorney general races, and were unsurprised to see New York’s Eliot Spitzer and Connecticut’s Richard Blumenthal glide to re-election; we’re also expecting the worst from Illinois’s incoming Lisa Madigan (Jan. 7). But we note GOP takeovers of the AG’s office in Michigan and Florida, as well as retention of the crucial Texas post. (full list at NAAG site)
A footnote: one of the engineers of the great 1998 tobacco heist, Florida Attorney General Bob Butterworth, was term-limited and deigned to run instead for a state senate seat in Broward/Palm Beach, but lost to the Republican candidate (WSVN-TV, Nov. 6). This continues the series of political pratfalls by which key players in the tobacco affair — the list includes former attorneys general Hubert Humphrey III of Minnesota, Dan Morales of Texas and Scott Harshbarger of Massachusetts, and Minnesota private attorney Michael Ciresi — have come up short when they tried to run for other offices. (DURABLE LINK)
November 7 – Scourge of the Super-Size order. The hullabaloo over suing fast-food chains has been great publicity for Washington-based law prof John Banzhaf, who finds himself the subject of a profile in the Washington Post (Libby Copeland, “Snack Attack”, Nov. 3), not to mention all the publicity furthered by his own website and its obesity links. Less respectful views are offered by syndicated columnist Doug Bandow (“Lawyers run amok”, TownHall, Nov. 5) and Southern restauranteur Robert St. John (“In state’s legal climate, ‘I could sue, … retire to Hawaii’”, Hattiesburg American, Oct. 15). (DURABLE LINK)
November 6 – Notation on Scruggs’ court file: to be “kept away from the press”. “Even as famed Pascagoula trial lawyer Dickie Scruggs testified in Hattiesburg Tuesday in a lawsuit over legal fees from asbestos litigation, records of the lawsuit were being withheld from the media by Jackson County officials. The file for the case … contains the original complaint in the lawsuit between Scruggs’ firm and Merkel & Cocke, a Clarksdale law firm that also handled asbestos cases in the 1990s. Scruggs believes that Merkel & Cocke owes him money for a case that the firm and Scruggs worked on together. … A handwritten note attached to the court file in Jackson County, found by a Sun Herald reporter, said, ‘This file is being kept away from the press/media, etc., but is not under seal per Court Order…’ The word ‘not’ was underlined twice for emphasis.” (Beth Musgrave and Karen Nelson, “Scruggs’ case file being kept away from media”, Biloxi Sun-Herald, Oct. 30). The next day county officials relented and agreed to let the newspaper see the file (“Court opens Scruggs file to newspaper”, Oct. 31). The paper’s editorialists call the withholding of the file “brazen” and “no innocent mistake”. (“Public records are not private property of government officials” (editorial), Oct. 31). (DURABLE LINK)
November 6 – Choirgirl vs. cathedral. In Britain, a judge has dismissed the complaint that 13-year-old choirgirl Pollyanna Molloy filed against the Dean and Chapter of Lincoln Cathedral (consecrated 1092) after she was passed over for a “cope”, a senior chorister position. Molloy says she was “utterly destroyed” to learn that a less experienced girl had been chosen for the honor, and her lawsuit claims damages for mental anguish. Molloy’s parents say they plan to appeal the judge’s order. (“Judge throws out choirgirl’s writ”, Lincolnshire Echo, Oct. 30; Jonathan Petre, “Girl sues cathedral for choir honour ‘snub’”, Daily Telegraph, Sept. 10). (DURABLE LINK)
November 6 – “Google sued over search ratings”. “Top billing in Google search results has become so coveted that one Web hosting company is suing for it. Search King, an Oklahoma City-based Web site network and advertising seller,” claims in its federal complaint that the popular search service “purposefully reduced Search King’s value, as well as that of Web sites hosted by Search King,” by downgrading its rankings. “According to the complaint, the Web hosting company in August started the PR Ad Network — an advertising network in which it sold text links on the popular Web sites to get them a better listing in Google’s results.” Google has recently been reported to have cracked down on “link farm” techniques by which sites are artificially induced to link to each other for purposes of boosting the beneficiaries’ search results. (Stefanie Olsen, ZDNet, Oct. 22). (DURABLE LINK)
November 4-5 – Campaign roundup. As we prepare to vote:
* Election Day is just the start: “both major parties have recruited unprecedented armies of lawyers — at least 10,000 on the Democratic side — for possible recount battles but also to keep an eye on voting procedures. …The campaign’s tone also shows the indelible mark of the 2000 election. The [Florida] recount battle signaled that lawyers can be as important as voters in shaping the outcomes of tight races.” Elections expert Larry Sabato says we “may not know for sure who controls the House and Senate until December or January.” (Gail Russell Chaddock, “As vote arrives, lawyers are ready”, Christian Science Monitor, Nov. 4). More: John Fund, “Have You Registered to Sue?”, OpinionJournal, Nov. 6.
* Medical malpractice reform has flared as an issue in races across the country. A very small sampling: the Tennessee governor’s race (Bill Poovey, “Hilleary says malpractice suit awards need a limit”, Knoxville News-Sentinel, Nov. 1); the Texas attorney general’s race (Jim Belew, “Abbott touts solution for healthcare”, Conroe Courier, Oct. 31); the Oregon governor’s race (“Governor hopefuls respond to readers”, Salem Statesman-Journal, Oct. 28 — scroll to near end); the Ohio high court races (“Taft says a GOP high court will fix malpractice problems”, Toledo Blade, Oct. 31; the Maryland governor’s race (“Maryland medical society turns against Townsend”, Baltimore Sun, Oct. 31); Pennsylvania’s 13th District U.S. House race (John Anastasi, “Doctors group backs tort reform supporters”, PhillyBurbs.com, Nov. 3); the Florida governor’s race (Mary Ellen Klas, “Candidates clash on medical liability”, Palm Beach Post, Oct. 16); and Mississippi state legislative races (Matthew Coleman, “Lawyers’ group targets Lincoln County senator”, Brookhaven (Miss.) Daily Leader, Oct. 9).
* In Connecticut, attorney Martha Dean has taken up the thankless task of running against the Northeast’s most successful political demagogue, Attorney General Richard Blumenthal, and has been making a spirited job of it (Edmund H. Mahony, “Attorney Takes On A General”, Hartford Courant, Oct. 19; Ray Hackett, “GOP challenger: Blumenthal’s high-profile cases waste tax dollars”, Norwich Bulletin, Oct. 28; “Dean says Blumenthal should stop Microsoft suit”, AP/WSFB-TV, Nov. 3). In news coverage no longer online, Dean has assailed Blumenthal for his continued denials that there was anything wrong with the way he picked his former law partners for the fabulously lucrative job of representing the state in the tobacco litigation (see Feb. 3 and Feb. 16, 2000).
* Of donations to federal candidates this election cycle by California’s 40 biggest law firms, which mostly represent corporations and other large institutions, 62 percent of the money has gone to Democrats, 35 percent to Republicans. (Jason Dearen, “Big-Firm Backing”, The Recorder, Oct. 29; “By the Numbers”). What, you thought it would be any different?
* In West Virginia’s hotly contested House race, asbestos plaintiff’s lawyer James Humphreys, “who made $10 million from his successful law practice last year, has spent $5.2 million of his own money in his quest to unseat Republican Shelley Moore Capito. Two years ago, the Charleston Democrat spent $6.1 million of his own cash in a narrow loss to Capito.” Make him spend it all, Shelley! (Karin Fischer, “Humphreys’ top contributor is himself”, Charleston Daily Mail, Oct. 24; “Bush pre-election drive stops in W.Va.”, Huntington Herald-Dispatch, Nov. 1; “Elections 2002: West Virginia House rematch”, UPI, Oct. 22).
More: A Washington Times editorial reminds us that trial lawyers have staked many, many chips on Michigan AG and gubernatorial candidate Jennifer Granholm; her GOP opponent, Lt. Gov. Dick Posthumus, “as the majority leader of the state senate tenaciously pushed the 1995 tort reforms through the legislature, and has been the personal-injury lawyers’ Public Enemy No. 1 ever since.” (“Lawsuit abuse”, Nov. 4; see Oct. 9). Those following Missouri politics will want to check out retired judge Ralph Voss’s website calling for voters to reject several incumbent judges. And here’s a list of local webloggers who will be following key races across the country (courtesy DailyPundit). (DURABLE LINK)
November 4-5 – “Lawyers who sue to settle”. L.A. Times profiles local attorney Morse Mehrban, a major user of California’s bounty-hunting charter Proposition 65, whose exploits include filing 400 separate claims against candle makers and more than a dozen against fireplace log makers, claiming their products emit toxic fumes when burned. “A group of Los Angeles-area hardware stores paid Mehrban $27,500 last year to settle a lawsuit claiming that discarded metal filings from key-duplicating machines posed a threat of lead contamination.” A Los Angeles judge who dismissed one of Mehrban’s cases — against a hotel for failing to post signs warning that cigarette smoke in public areas of the hotel was toxic — “likened the lawsuit to ‘racketeering.’ … Though [Mehrban] bills his time at as much as $400 an hour and drives a Mercedes roadster, he says he’s not in it for the money.”
“The plaintiff in many of Mehrban’s suits is Consumer Cause Inc., which describes itself as a statewide advocacy group. Its mailing address is the Brentwood home of Mehrban’s mother, Rafat Efraim, who for a time was listed on state incorporation records as the group’s only officer. According to Mehrban, Consumer Cause now has five officers, including his mother and fiancee. He declined to identify the other officers.” In one case Mehrban filed, “the manufacturer’s lawyer called Mehrban’s mother to the witness stand during a pretrial hearing in an effort to show that Consumer Cause was a mere front for Mehrban’s legal practice. Efraim speaks only Farsi and testified through an interpreter. Asked the name of the consumer group, she replied: ‘Help the customers.’ Efraim said she did not know whether it had any other officers.”
However, the Times reports that Mehrban has also represented clients whose independent existence will be familiar to some of our readers, including the National Coalition of Free Men (on whose behalf he filed suit recently against Los Angeles County, saying it was being discriminatory by maintaining a commission on women’s issues but not one for men’s) and the National Council Against Health Fraud (on whose behalf Mehrban went to court over the effectiveness of homeopathic remedies; numerous favorable mentions of Mehrban turn up on QuackWatch and he is listed on QuackWatch’s Legal Advisory Board). According to the Times, Mehrban is currently in court suing dentists on the claim “that the mercury in silver fillings could cause birth defects and diseases”. We wonder how that sits with his friends over at the NCAHF, which recently voiced agreement with the view of the American Dental Association that a different lawyer’s West Coast suit against mercury fillings constitutes “an egregious abuse of the legal system.” (see Jul. 16). (Monte Morin, Los Angeles Times, Oct. 26). For more on Prop 65 litigation, see Daniel Blackburn, “The be-all, catch-all”, San Luis Obispo New Times, Mar. 7. (DURABLE LINK)
November 4-5 – Self-defense, of course. Former policeman Eddie Myers fired 36 shots at Emma Horton from three different guns, hitting her 14 times. Last month a jury acquitted Myers on grounds of — what else? — self-defense. “This is a runaway jury and crazy verdict,” said Holmes County District Attorney James Powell III. Defense attorney Chokwe Lumumba disagreed, saying Myers was reasonably in fear of his life: Horton, who was an assistant police chief and Myers’s sister-in-law, was armed and Myers said she had reached for her gun. When found, “Horton was armed, but her gun was found strapped in its holster on her body.” (Jimmie E. Gates, “Ex-cop offers apology to family”, Jackson Clarion-Ledger, Oct. 23). (DURABLE LINK)
November 4-5 – You breached my privacy, says serial killer. Australia: “Serial killer Ivan Milat could receive up to $40,000 in compensation over alleged breaches of [New South Wales] privacy laws, State Parliament heard yesterday. Milat has lodged a complaint with the NSW Privacy Commission over the public release of x-rays taken last year when he swallowed three razor blades, 24 blade staples and a nail-clipper chain. Milat claimed he did this in protest at his solitary confinement but prison authorities believe the killer was hoping for a transfer to a medical facility from which to escape…. Milat, who is serving seven life sentences for the murder of seven backpackers between September 1992 and November 1993, stood to gain up to $40,000 in compensation if his complaint was upheld, he said. … ‘Milat believes as a result of those x-rays becoming public, that his personal rights have been impinged,’ [Corrective Services Minister Richard Amery] told Parliament.” (Linda Silmalis, “Milat’s compo bid could pay $40,000″, Sydney Morning Herald, Oct. 30). (DURABLE LINK)
November 4-5 – “Resounding victory” for Microsoft. Last Friday’s ruling was a rebuke to activist state attorneys general and others who’d wanted to pursue the technology company to the bitter end. “U.S. District Judge Colleen Kollar-Kotelly embraced, with minor changes, the settlement struck last winter aimed at addressing Microsoft’s violations of antitrust laws. …And she all but ridiculed the states for the legal theories they put forth to justify tougher restrictions on the Redmond, Wash., company.” (Jonathan Krim, “Judge Accepts Settlement in Microsoft Case”, Washington Post, Nov. 2; Dennis J. Opatrny, “Reaction Mixed on Microsoft Decision”, The Recorder, Nov. 4). (DURABLE LINK)
November 1-3 – WHO demands pretzel de-salting by law. “Far from just encouraging people to leave aside the salt pot to prevent high blood pressure, governments should resort to legislation to cut the amount of salt in processed foods, the World Health Organisation (WHO) said Wednesday.” The transnational agency for years has been pushing governments to restrict tobacco, which seems to have whetted its activist spirit. (“East Less Salt — By Law, Says WHO”, AFP/Discovery Health Channel, Oct. 30). In Australia, “Take-away [take-out] chains may face pressure to end cheap deals on super-sized meals under a radical plan to be proposed to the Federal Government to combat obesity. Commercial television networks could also face new restrictions on screening fast-food and confectionery advertisements, especially to children.” (Fia Cumming, “New laws target fast food”, Sydney Morning Herald, Oct. 13). See also Andrew Ferguson, “Tobacco Lesson for McDonald’s in Fat War”, Bloomberg.com, Sept. 10 (interview with John Banzhaf); Iain Murray, “Slaughtering the Fatted Calf”, TechCentralStation, Aug. 19. (DURABLE LINK)
November 1-3 – Mudslinging in Ohio high court races. Trial lawyers and labor unions have been funding attack ads against two Republican candidates for the Ohio Supreme Court, incumbent Justice Evelyn Stratton and Lt. Gov. Maureen O’Connor, in a campaign so ugly that it has drawn a formal condemnation from the Ohio State Bar Association. “The ad, produced by the Citizens for an Independent Court political action committee, depicts laughing businessmen in suits inside a limousine, as a narrator states Justice Stratton and Ms. O’Connor are on ‘their side.’” (Jim Provance, “State bar assails ad in Ohio court race”, Toledo Blade, Oct. 22; Emily Heller, “Attack ads, big money set tone again this year”, National Law Journal, Oct. 28). Ohio GOP chairman Bob Bennett identifies an element of hypocrisy: “The same trial lawyers who funded this ad were outraged only two years ago when similar tactics were used against Justice [Alice Robie] Resnick,” one of their own favorites. (Liz Sidoti, “Group’s ad links GOP Supreme Court candidates to big business”, AP/Akron Beacon Journal, Oct. 16)(see Oct. 30, 2000). On judicial races in other states, see “Courting the Vote”, National Law Journal, Nov. 1 (fewer big fights between trial lawyers and their opponents than two years ago, Mississippi and Ohio aside). (DURABLE LINK)
November 1-3 – “Mom who drugged kids’ ice cream sues”. “A Phoenix mother who admitted lacing her daughters’ ice cream with prescription tranquilizers is suing a health care provider and others, saying they are responsible for her drug-induced delirium at the time. Jodi Lynn Henry, 38, who was acquitted in July of attempted murder charges, filed a medical malpractice claim in Maricopa County Superior Court against Jewish Family Services, a nurse practitioner and ValueOptions, a mental-health care provider.” (Carol Sowers, Arizona Republic, Oct. 30). (DURABLE LINK)
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April 19-21 – Pitcher hit by line drive sues maker of baseball bat. Hurling for the Pittsfield (Ill.) High School baseball team, Daniel Hannant put one over the plate to a batter from opponent Calhoun High School, who smacked the ball in a line drive straight at the pitcher’s mound where it hit Hannant on the head. Now Hannant is suing … guess who? The maker of the baseball bat, Hillerich & Bradsby, known for its trademark Louisville Slugger. (“Lawsuit comes out swinging”, Chicago Tribune, Apr. 18) (& see letter to the editor, Jun. 14; update, Dec. 30). (DURABLE LINK)
April 19-21 – No apologies from RFK Jr. As the uproar continues in Iowa over Robert F. Kennedy Jr.’s assertion that large hog-raising operations are more of a threat to American democracy than Osama bin Laden, Kennedy’s office has sent word to the Des Moines Register not to expect an apology or retraction. (Mark Siebert, “Kennedy stands by hog-lot remark”, Apr. 18; J. R. Taylor, “To the Preening Born”, New York Press “Billboard”, Apr. 18; earlier reports on this site Apr. 15, Apr. 17). Far from being an unconsidered slip of the tongue, the comparison seems to have been a feature of Kennedy’s speeches for months, to judge from a report published back in January on another of his Midwestern swings: “This threat is greater than that in Afghanistan,” he was quoted as saying. “This is not only a threat to the environment, it is a threat to the American economy and democracy.” (Gretchen Schlosser, National Hog Farmer, Jan. 15, linked in WSJ OpinionJournal.com “Best of the Web” Jan. 21). And a staff attorney from Kennedy’s office has sent us a letter responding to our editor’s Wednesday New York Post op-ed on the affair, to which we append a fairly lengthy response — see our letters page.
MORE: The food-industry-defense group Center for Consumer Freedom has been on the warpath against Kennedy and his band of lawyers for a while. It quotes Iowa Agriculture Secretary Patty Judge as saying: “The true agenda of this group is to sue farms and take the monetary rewards back to the East Coast.” (“Trashing Pork, Cashing In”, Apr. 11). Kennedy has estimated “damages” against the industry of $13 billion: “We have lawyers with the deepest pockets, and they’ve agreed to fight the industry to the end,” he has said. “We’re going to go after all of them.” (“Kennedy’s Pork Police Hit Iowa”, Apr. 2; “Waterkeepers, Farmers Weepers”, Dec. 12, 2001) “‘We’re starting with hogs. After the hogs, then we are going after the other ones,’ referring to the poultry and beef industries.” (“Warning”, Jan. 16, 2001, citing “Concerns that pork suit may be extended to other areas,” Des Moines Register, Jan. 8, 2001). (DURABLE LINK)
April 19-21 – Traffic-cams, cont’d. In the controversy (see Apr. 8-9) over the uses and abuses of automated traffic camera systems, a reader writes in (see letters page) to say we were wrong to describe Lockheed Martin as the current contractor on the systems; it actually sold the operation last August to another company. Our apologies. And Eugene Volokh reports on his blog (Apr. 17) that he found some inaccuracies in Matt Labash’s Weekly Standard investigative series on the cameras which Labash and the Standard have been happy to correct. See also “Hawaii scraps ‘Talivan’ traffic cameras”, AP/ABC News, Apr. 11. (DURABLE LINK)
April 19-21 – Clipboard-throwing manager = $30 million clipping for grocery chain. The Ralphs supermarket chain in California had a store manager who over the course of a decade “physically and verbally abused six female Ralphs employees by calling them vulgar names, manhandling them, and throwing items like telephones, clipboards and, in one instance, a 30- to 40-pound mailbag, at them.” So a San Diego jury awarded them $5 million each in damages. (Alexei Oreskovic, “$30M Awarded in Sex Harassment Suit Against Grocery Chain”, The Recorder, Apr. 9)(& update Jul. 26-28: judge cuts total award to $8 million). (DURABLE LINK)
April 19-21 – See you … at the Big Apple Blog Bash Friday night. (DURABLE LINK)
April 18 – “Tampa Taliban” mom blames acne drug. By reader acclaim: “The family of 15-year-old Charles Bishop has filed a $70-million lawsuit against the maker of acne medication Accutane, saying nothing else explains the teenager’s suicidal flight into a downtown Tampa high-rise.” Bishop, whose father bore an Arab surname, left a suicide note praising Osama bin Laden; the county medical examiner’s office found no trace of Accutane in his bloodstream, although it says that does not rule out the possibility that he might have been on the medication, for which he had been written a prescription. Although the maker of the widely used acne drug denies that it causes psychosis or suicidal impulses, its cautious consent form “required the Bishops to agree to tell their physician ‘if anyone in the family has ever had symptoms of depression, been psychotic, attempted suicide, or had any other serious mental problems.’ Julia Bishop, however, did not reveal that in 1984, she and Charles’ estranged father failed in a bloody suicide pact during which she stabbed him with a 12-inch butcher knife.” Mrs. Bishop’s lawyer, Michael Ryan of Fort Lauderdale, calls that earlier suicide pact incident “completely irrelevant”. (Robert Farley, “Suit: Drug behind suicide flight”, St. Petersburg Times, Apr. 17; Natashia Gregoire, “Teen Pilot’s Family Sues Drug Maker”, Tampa Tribune, Apr. 17; “Accutane acne drug maker sued over suicide”, USA Today/Reuters, Apr. 16; Broward Liston and Tim Padgett, “Despair Beneath His Wings”, Time, Jan. 13; Howard Feinberg, “Is Accutane to Blame?”, TechCentralStation.com, Apr. 18; see Feb. 1). Updates: manufacturer wins first jury trial (Margaret Cronin Fisk, “Suits Probe Acne Drug, Depression”, National Law Journal, Apr. 25; Michael Fumento, “The Accutane Blame Game”, National Review Online, May 9). (DURABLE LINK)
April 18 – Judge compares class action lawyers to “squeegee boys”. A Florida judge has rejected the tentative settlement of a shareholder lawsuit filed by Milberg Weiss Bershad Hynes & Lerach against power company Florida Progress Corp. over a 1999 merger, saying the evidence indicated that the suit did not leave class members in a better position than if it had never been filed. Added Pinellas County Judge W. Douglas Baird: “This action appears to be the class litigation equivalent of the ‘squeegee boys’ who used to frequent major urban intersections and who would run up to a stopped car, splash soapy water on its perfectly clean windshield and expect payment for the uninvited service of wiping it off.” (Jason Hoppin, The Recorder, Apr. 17). (DURABLE LINK)
April 18 – Welcome Humorix.org readers. The Linux-humor site started linking to us way back in 1999, if we remember correctly. Also sending us visitors lately: Auckland (N.Z.) District Law Society, Mar. 14 (“For a change of pace, spend some time with this digest of news stories … Most cases reported on are from the U.S., but there are quite a few examples from Europe, Australia, and elsewhere”); WTIC-AM Hartford, “Morning Links”, Apr. 7; American Civil Rights Union “ACLU Watch”, Nintendominion “Site Unseen”, Mar. 31; Dog Brothers Martial Arts (Hermosa Beach, Calif.), Mutual Reinsurance Bureau, Anne Klockenkemper (Univ. of Florida) Media Law Resources, Smith Freed & Eberhard P.C. (attorneys at law, Portland, Ore.), Univ. of Nevada-Reno Tau Kappa Epsilon, RKKA.org (Russian Red Army-themed wargaming); Fureyous.com, Mar. (“My dream site, a site where I can find the entire downfall of civilization due to frivolous and pathetic lawsuits and legal actions”), and many more. (DURABLE LINK)
April 17 – New York Post op-ed on RFK Jr. & hogs. Our editor has a piece today on the op-ed page of the New York Post about the furor that broke out in Iowa when celebrity environmentalist Robert F. Kennedy, Jr. told a rally that large-scale hog farms are more of a threat to America than Osama bin Laden and his terrorists. For links to the local Iowa coverage, see our item here from Monday, of which the Post op-ed is an expansion. (Walter Olson, “Osama, the Pigs and the Kennedy”, New York Post, Apr. 17).
April 16-17 – Pharmaceutical roundup. The total cost of the settlement over the diet compound fen-phen has ballooned to more than $13 billion, swollen by mass recruitment by law firms of claimants who defendants believe have suffered no ill effects from the compound at all aside from possible worry. “Wyeth’s general counsel, Louis L. Hoynes Jr., said he believes that in a different legal climate his company might have been able to settle all serious claims for less than $1 billion. That would amount to an average of $1 million each for 1,000 cases.” (L. Stuart Ditzen, “Mass diet-pill litigation inflates settlement costs to $13.2 billion”, Philadelphia Inquirer, Apr. 9 — whole article well worth reading). Lawyers for a group of British women have filed what is believed to be the first injury suit over the “third-generation” birth control pill, which they say raises the risk of blood clots, and similar suits are expected to follow in the United States (Mary Vallis, “U.K. suit targets perils of The Pill”, National Post, Mar. 5). In one of the more recent applications of the U.S. Supreme Court’s Daubert doctrine, courts have dismissed several lawsuits seeking to blame Pfizer’s anti-impotency drug Viagra for users’ heart attacks, ruling that the expert testimony in the cases was not based on scientific principles that had gained “general acceptance.” (Tom Perrotta, “Viagra Cases Dismissed”, New York Law Journal, Jan. 22). The Nov. 9, 2001 installment of CBS’s “48 Hours” launched a one-sided attack on psychiatric drugs used to treat attention deficit and hyperactivity and told the stories of two parents who say their use of the ADHD drug Adderall caused them to behave irrationally, resulting in the death of their children; but Hudson Institute fellow Michael Fumento finds that much was misstated or left out in the network’s account, including the exact role of the trial lawyers hovering in the background (Michael Fumento, “Prescription for Bias“, “Dawn Marie Branson: A Sad Story Only Half Told“) And although the U.S. Food and Drug Administration has not chosen to give a green light for the reintroduction of silicone breast implants for American women following the litigation-fueled panic that drove them from the market, they have regained popularity among women in Canada, reports the CBC (“Silicone implants back in style”, Sept. 20, 2001). (DURABLE LINK)
April 16-17 – A DMCA run-in. Tom Veal’s Stromata site, which covers topics ranging from pension regulation to science fiction, had a run-in a few days ago with its hosting service, Tripod, which abruptly closed down access to the site and then took its sweet time about reopening it. The reason? Tripod had received a nastygram from a law firm charging that Stromata was in violation of the Digital Millennium Copyright Act, not because it had posted any copyrighted material itself, but because it had linked to another site which had (it said) posted an unauthorized translation of a widely discussed piece on terrorism by Italian journalist Oriana Fallaci. Unfortunately, as Veal notes, the incentives under DMCA are for hosts to muzzle speech in haste and un-muzzle at leisure. (“Et Cetera”, Apr. 9). (DURABLE LINK)
April 16-17 – Unlikely critic of litigation. The Washington group Judicial Watch files lawsuits at a manic clip, but now its founder Larry Klayman is taking to the mails to decry our national problem of excessive litigiousness. “One may liken the overall effect of Klayman’s direct-mail sermon against frivolous lawsuits to that of a Weight Watchers commercial starring Marlon Brando or a temperance lecture given by Hunter S. Thompson.” (Tim Noah, “Larry Klayman Decries Evils of Litigation!”, Slate, Apr. 3). (DURABLE LINK)
April 15 – RFK Jr. blasted for hog farm remarks. Robert F. Kennedy Jr., the highest-profile spokesman for the developing alliance between trial lawyers and some environmentalist groups (see Dec. 7, 2000), “made an ass of himself” in remarks last weekend at a Clear Lake, Ia. rally, according to veteran Des Moines Register political columnist David Yepsen. Kennedy’s “statement that large-scale hog producers were a bigger threat to America than Osama bin Laden’s terrorists has to be one of the crudest things ever said in Iowa politics. … [Kennedy] brought his Waterkeeper’s Alliance for a rally [in Clear Lake]. It’s a group that is threatening lawsuits against livestock industries. … Rural America needs positive solutions to this problem, not the corrosive rhetoric of another out-of-state political operative or lawsuits from greedy trial lawyers. … What was one of the finest hours of this legislative session was marred by this fool from the East. … Kennedy looks to be cashing in on his family’s name. … If his name were Bob Fitzgerald, he’d be dismissed as another one of the kooks on the fringe of this debate.” Other reaction was not much more favorable: “‘You have to be a complete wandering idiot to make that statement,’ said [Luke] Kollasch [of Algona, Ia.], whose family owns several hog farms and feed and construction companies in northwest Iowa.” (Donnelle Elder, “Big hog lots called greater threat than bin Laden”, Des Moines Register, Apr. 10; “Kennedy’s outrageous rhetoric” (editorial), Apr. 11; David Yepsen, “Kennedy cashes in on family name while acting like a fool”, Apr. 14) (DURABLE LINK)
April 15 – Updates. Stories that seem to have a life of their own:
* Richard Espinosa, “who is suing the city of Escondido because his dog was attacked by a cat inside a city library, now says the attack was a hate crime.” (see Dec. 4, 2001) (“Cat attack now described as hate crime”, MSNBC, Apr. 5)
* “The Florida Legislature has partially undone a landmark Florida Supreme Court ruling issued in November that gave slip-and-fall injury victims the upper hand in lawsuits against supermarkets and other premises owners.” (see Jan. 7). The ruling had required businesses to prove they were not negligent when presented with slip-fall claims. However, trial lawyers extracted a compromise in which plaintiffs will not have to prove that a slippery material was on the floor for long enough for the store owner to have known about it. (Susan R. Miller, “Florida Legislature Passes Bill on Slip-and-Fall Cases”, Miami Daily Business Review, Mar. 27).
* “A Hays County judge has thrown out a default judgment that would have awarded $5 million to a local woman whose near-topless image was used in a national television ad for a ‘Wild Party Girls’ video without her permission. … Judge Charles Ramsay set aside the default judgment, ruling that the plaintiff had listed the wrong company in the lawsuit, and that the video’s makers were not either properly named or properly served.” (see Mar. 6-7) (Carol Coughlin, “Topless suit is groundless, judge rules”, San Marcos (Tex.) Daily Record, Mar. 30).
* More on the symbiotic relationship between state attorneys general and Microsoft competitors (see Apr. 3-4): “An April 2000 e-mail message from the Utah attorney general’s office to Novell, revealed in court, asked for ‘guidance … preferably without involving too many people seeing this language.’” (Declan McCullagh, “Report: MS Foes Bribed Attorneys”, Wired News, Apr. 6). (DURABLE LINK)
April 12-14 – Hey, no fair talking about the pot. During a 20-hour trip from California to Texas pulling a U-Haul trailer, three young women work their way through a bag of marijuana. Of course the ensuing rollover accident is, like, practically totally the fault of their Firestone tires and the U-Haul company, or at least so their lawyers argue in a suit against those companies, even though the tires did not suffer the “tread separation” that has heretofore been seen as the distinctive source of accident risk with the now-recalled Firestones. Now Matagorda County, Tex. Judge Craig Estlinbaum has declared a mistrial at the request of plaintiff’s lawyer Mikal Watts who complained that defense attorney Morgan Copeland “had breached a pretrial order by introducing detailed evidence of marijuana use” during the trip. If we read the AP story correctly, Judge Estlinbaum had ruled that the defense could mention only that portion of the marijuana it could prove the driver consumed, and attorney Copeland, who may now face sanctions in the famously pro-plaintiff county, had improperly let jurors know about the whole bag. The Ford Motor Co. was also named as a defendant but has already settled out of the case (“Texas judge declares mistrial in Firestone case”, Yahoo/ Reuters, Apr. 5; Pam Easton, “Judge declares Firestone mistrial”, AP/ MySanAntonio.com, Apr. 6). Update — additional coverage of ruling: Miriam Rozen, “Mistrial declared in Firestone case”, Texas Lawyer, Apr. 15).
April 12-14 – In the line of fire. Post-Enron, many companies feel the need to seek out savvier and more experienced executives to sit on boards and audit committees, but with escalating fears of personal liability “attracting talent may become nearly impossible. ‘Recruiting directors for the audit committee is like calling them on deck for a kamikaze attack,’ quips [corporate finance officer Bob] Williamson.” (Marie Leone, “Audit Committee? Thanks, But No Thanks”, CFO Magazine, Apr. 5).
April 12-14 – L.A. police sued, and sued. The family of the late James Allen Beck, who died in a fiery shootout with L.A. sheriff’s deputies last August after barricading himself in his home, has filed a wrongful death claim against the sheriff’s department. During the standoff Beck, an ex-police officer with a history of stockpiling weapons at his home, shot and killed Deputy Hagop Kuredjian. (“Mother of gunman who died in shootout files claim”, Sacramento Bee, Apr. 10)(& see Feb. 23, 2000). And: “Heirs of the late rap star Notorious B.I.G. have filed a wrongful death and federal civil rights lawsuit against Los Angeles Police Chief Bernard Parks, two former chiefs and the city of Los Angeles, claiming they did not do enough to prevent the rapper’s death five years ago in a drive-by shooting.” (“Notorious B.I.G. heirs sue LAPD, officials, city”, CNN, Apr. 11).
April 11 – Don’t ban therapeutic cloning. Though not usually the petition-signing types, we (our editor) have signed a petition being circulated by Virginia Postrel’s just-launched Franklin Society opposing the current stampede in Congress to ban all scientific use of cloned human cells including “therapeutic” (non-reproductive) uses, and even the use of imported pharmaceuticals developed via such methods (see “Criminalizing Science” (symposium), Reason, Nov.). If you agree with us that this proposed law is a bad idea, you can sign the petition here and view the list of distinguished signers: despite efforts in some conservative quarters to hand down a party line opposing this potentially life-saving branch of biomedical research, support for it in fact cuts across the political spectrum. For information on contacting elected representatives, see InstaPundit, Apr. 10. (DURABLE LINK)
April 11 – Texas doctors’ work stoppage. Monday’s one-day work stoppage by South Texas doctors outraged at spiraling malpractice costs (see Mar. 15-17) drew national attention (“Texas docs protest malpractice claims”, AP/CNN, Apr. 8; see also Dean Reynolds, “Crushing Cost of Insurance”, ABCNews.com, Mar. 5 (Nev., Pa.)). And a Florida physician has launched an insurance policy for doctors “that aims to provide them with the legal resources they would need to countersue lawyers or expert witnesses filing frivolous lawsuits”. (Tanya Albert, “Frivolous suits feel wrath of Medical Justice”, American Medical News, Feb. 11). (DURABLE LINK)
April 11 – Batch of reader letters. Topics include the “pedal-extender” suit against Ford; OxyContin; suing food companies for waistline problems; police getting ticketed while responding to calls; laws mandating handicap accessibility in private homes; and why schools would send kids home when they have a slight sniffle. One writer upbraids blogger Natalie Solent for thinking it crazy to impose strict product liability on British blood suppliers that currently offer their services free of charge to patients; he thinks she (and by extension we) must not have stopped to consider that blood transfusions can transmit lethal diseases like AIDS and hepatitis.
Best of all, we hear from attorney Jack Thompson, the anti-videogame crusader who has just filed a lawsuit claiming that Sony’s EverQuest game is responsible for the suicide of a user, and he turns out to be every bit as suave and ingratiating as we dared hope (“go to Afghanistan where your anarchist, pro-drug views will be greatly rewarded”), though we wonder whether he caught the phrase “as if” in our original Apr. 3 posting. Mr. Thompson will probably not appreciate Eugene Volokh’s new satirical piece for TechCentralStation.com (“Worse than Internet Addiction”, Apr. 10). (DURABLE LINK)
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April 10 – “Pilloried, broke, alone”. Canadian journalist’s probe of “deadbeat dad” issue finds some bad guys but also many who “are too impoverished to pay, have been ordered to pay unreasonable amounts, have been paying for unreasonable lengths of time, or are the victims of bureaucratic foul-ups.” (Donna LaFramboise, “Pilloried, broke, alone”, National Post, March 25, link now dead).
April 10 – Verdict on Consumer Reports: false, but not damaging. After a two-month trial, a federal jury found Thursday that the magazine had made numerous false statements in its October 1996 cover story assailing the 1995-96 Isuzu Trooper sport utility vehicle as dangerously prone to roll over, but declined to award the Japanese carmaker any cash damages. The jury found that CR’s “testing” had put the vehicle through unnatural steering maneuvers which, contrary to the magazine’s claims, were not the same as those to which competitors’ vehicles had been subjected. Jury foreman Don Sylvia said the trial had left many jurors feeling that the magazine had behaved arrogantly, and that eight of ten jurors wanted to award Isuzu as much as $25 million, but didn’t because “we couldn’t find clear and convincing evidence that Consumers Union intentionally set out to trash the Trooper”. The jury found eight statements false but in only one of the eight did it determine CR to be knowingly or recklessly in error, which was when it said: “Isuzu … should never have allowed these vehicles on the road.” However, it ruled that statement not to have damaged the company, despite a sharp drop in Trooper sales from which the vehicle later recovered. The magazine sees fit to interpret these findings as “a complete and total victory for Consumer’s Union” (attorney Barry West) and “a complete vindication” (CU vice president David Pittle). (DURABLE LINK)
SOURCES: Consumers Union; its reaction (link now dead); Isuzu; its reaction; Dan Whitcomb, Reuters/Yahoo, April 6, link now dead; “Jury clears Consumer Reports magazine of liability in Isuzu case”, AP/CourtTV, Apr. 7; David Rosenzweig, “Jury Finds Magazine Erred in Isuzu Critique”, Los Angeles Times, April 7, link now dead. More background: Max Boot, “Guardian of the Lawyers’ Honey Pot”, Wall Street Journal, Sept. 19, 1996, reprinted at JunkScience.com site, link now dead; Walter Olson, “It Didn’t Start with Dateline NBC”, National Review, June 21, 1993.
April 10 – Lawyers charged with $4.7 million theft from clients. “Two Manhattan lawyers were arrested and charged Friday with stealing $4.7 million from clients, including a widower with two children and a college professor who fractured her skull in an accident.” Jay Wallman and Alan Wechsler, both 60 years of age, “used the money to keep their Madison Avenue law firm afloat and to pay personal expenses, said Assistant District Attorney Doreen Klein”; in Wechsler’s case, that included paying some of his dues at the Willow Ridge Country Club in Harrison, N.Y., where he was president. The two have pleaded not guilty; “Wallman has resigned from practicing law and Wechsler has been suspended, the prosecutor said.” About $2.7 million of the alleged theft was carried out in the handling of an estate, and the rest in the course of representing medical malpractice and other personal injury plaintiffs, some of whom never were given any of the settlements collected on their behalf, prosecutors say. (“Two NYC lawyers arrested”, AP/CNNfn, April 7, link now dead).
April 10 – Diapered wildlife? Large-scale agriculture has come under criticism for its effects on the environment, but researchers are discovering that naturally occurring fauna can be destructive in similar ways. Colonies of seabirds, for example, “are releasing large amounts of ammonia into the atmosphere through their droppings. … Very large emissions of ammonia could have a detrimental impact on the local ecology, and may be just as problematic as intensive farming. Scientists studying a seabird colony on Bass Rock off the east coast of Scotland have already measured ammonia concentrations 20 times higher than those on chicken farms.” Global warming researchers have noted that among the more important contributors to the level of “greenhouse gas” emissions is cows’ natural tendency to emit methane, and controls on bovine flatulence may be necessary in the future if countries like Ireland are to contribute proportionally to world reductions in such emissions. (“The ‘innocent’ polluters”, BBC News (Scotland), March 8; “Don’t forget methane, climate experts say”, CNN/ENN, Nov. 10, 1999; Google search on “bovine flatulence“). (DURABLE LINK)
April 10 – Courts split on disabled golfer issue. “In a 24-hour span [last month], two federal appeals courts gave opposing decisions on whether handicapped golf pros can use motorized carts during tournament play” — that is to say, whether they can do so against the wishes of tournament organizers. In the more publicized of the two cases, the 9th Circuit agreed with Casey Martin’s demand that he be allowed to use a cart in the PGA Tour; but a day later “a three-judge panel with the 7th U.S. Circuit Court of Appeals in Chicago amid much less fanfare affirmed a lower court decision denying Ford Olinger similar mechanical assistance.” Circuit splits make it more likely that an issue will eventually be heard by the U.S. Supreme Court. (Mark R. Madler, “Fed Circuits Suddenly Split on Handicapped Golfers”, American Lawyer Media, March 9). “Olinger himself may have made the most penetrating observation, bemoaning that his appeal was heard by a panel of golfers, while Martin’s was not.” (Robert S. Shwarts, “A Good Walk Spoiled”, American Lawyer Media, March 23).
April 10 – 300,000 pages served on Overlawyered.com. Thanks for your support!
April 7-9 – Silicon siege. With Bill Gates down for the count, who’s next? Antitrust officials, having recently nailed old-line auction houses (“dowagers in the paddy wagon”) Sotheby’s and Christie’s, have now begun an investigation of eBay (“eBay Is Subject of Antitrust Probe, Congress Considers Underlying Issue”, E-Commerce Law Weekly, Feb. 9). Trial lawyers are pressing hard against laptop makers, hoping to repeat their nine-digit take from the Toshiba-glitch class action. (Joe Wilcox, “Data-storage suit sends shockwaves through PC industry”, CNet News, March 1). The many pending claims against AOL include those seeking to reclassify volunteers as workers entitled to back wages and those over the tendency of the 5.0 upgrade to interfere with alternative Internet access (“AOL Sued in Federal and State Court”, E-Commerce Law Weekly, Feb. 9). And privacy suits are being launched against all sorts of Internet leaders, from Yahoo on down (Susan Borreson, “Do You Yahoo?”, Texas Lawyer, Feb. 14). Cypress Semiconductor CEO T.J. Rodgers, in a piece written before the Microsoft ruling, says high-tech firms will just be asking for trouble if they cuddle up to Washington in search of official favors, and would do better to unite in resistance: “Silicon Valley is an island of capitalism in a sea of collectivism …. an island of meritocracy in a sea of power struggles.” (“Why Silicon Valley Should Not Normalize Relations With Washington, D.C.”, Cato Institute monograph (PDF format); Declan McCullagh, “Schmoozing: A Capitol Offense”, Wired News, March 20; “It’s All About Capitalism”, March 20).
April 7-9 – Trips on shoelace, demands $10 million from Nike. “A Manhattan orthopedic surgeon sued Nike Inc. on Wednesday for $10 million, saying shoes made by the athletic footwear giant tripped her and caused permanent injury.” Dr. Deborah A. Faryniarz says that while she was jogging last April “the right shoelace hooked around the back tab of the left sneaker, spilling her onto her wrists and knees” and causing a wrist injury that imperils her future career as a surgeon. Nike spokeswoman Cheryl McCants in Beaverton, Ore., said the company hadn’t yet seen the complaint but that people “sometimes don’t tie their shoes properly.” (“Nike Sued Over Shoelace”, AP/FindLaw, April 5, link now dead).
April 7-9 – School safety hysteria, institutionalized. “North Carolina has quietly launched a program that allows students to call in anonymously or fill out a Web-based form to report on classmates who might appear depressed or angry — or who just scare them,” reports Wired News. The Wave America program and website are run by the Pinkerton Corp., of security fame. On Slashdot, Jon Katz says that the site’s criteria for evaluating whether a fellow student is disturbed or depressed are alarmingly vague. The site also invites students to report anonymously about “intensely prejudiced or intolerant attitudes”, possession of weapons or alcohol on campus, or “anything else harmful to you or your school”. (Lynn Burke, “A Chilling Wave Hits Schools”, April 5; “Why call the WAVE line?“; “Early signs of violence“; Slashdot April 4 thread; our “Annals of Zero Tolerance“).
April 7-9 – L.A.’s mystifying jury summons. Think the long-form census is overkill? “The Los Angeles County court system has come up with a new jury summons form so dense that even some judges can’t make sense of it. The form, resembling a cross between a mortgage application and a deli menu, has generated a flood of complaints — including one from a Pasadena resident called to jury duty: Judge Lance Ito. He filled it out incorrectly.” (David Colker, “Jury Summons Is Guilty of Confusion”, Los Angeles Times, April 3).
April 7-9 – OSHA & telecommuters: the long view. Our editor’s April Reason column finds that this winter’s failed OSHA effort to regulate home offices was no fluke, being in many ways the logical culmination of an animus against home-based work that can be traced through decades of federal labor law (Walter Olson, “Office Managers”, Reason, April). The whole episode reminded columnist Joanne Jacobs of the manner of governance of the Emerald City: “I am OSHA, the Great and Powerful. Pay no attention to that clerk behind the curtain. The Great and Powerful OSHA has spoken. … Sorry. Never mind.” (“Work-at-home employees don’t need this kind of help from Washington”, San Jose Mercury News, Jan. 12, no longer online)
April 6 – Feds file Medicare recoupment suit over silicone implants. “The federal government wants to recover millions of dollars it spent treating thousands of women allegedly injured by silicone breast implants, and it’s trying to get in line ahead of the women for its money,” reports AP. The operative phrase above is “allegedly”, since by now it’s widely conceded that science didn’t bear out the original implant panic stoked by federal regulators and trial lawyers. But the feds undoubtedly did lay out health care moneys to treat immune disorders and other ailments “allegedly” (if not necessarily in reality) caused by the implants, so now the feds are going to demand compensation from the manufacturers. You didn’t think medical-recoupment lawsuit theories were really going to remain confined to tobacco, just because they kept saying that at the time, did you? (Michael J. Sniffen, “US Sues Over Implant Fund Recovery”, AP/Excite, April 1, link now dead; Yahoo Full Coverage; Professor David Bernstein’s breast implant litigation page; Doug Bandow, “Breast Implant Myths”, Cato Daily Commentary, Feb. 24).
April 6 – Columnist-fest. They keep writing them, and we keep linking them:
* Microsoft‘s $80 billion plunge in market valuation in recent days has directly or indirectly dealt a blow to the retirement security of as many as 80 million investors, and Schroder & Co. chief economist Larry Kudlow predicts a public reaction against the kind of anti-business grandstanding exemplified by attorneys general Richard Blumenthal (Connecticut) and Eliot Spitzer (New York), whose ubiquitous appearances on cable news have been “limited only by the available volume of airtime.” Also includes some choice quotes from Gov. George W. Bush (“I’m unsympathetic to lawsuits, basically; write that down. …I have been a tort-reform governor. I’ll be a tort-reform president.”) (“Americans Vote Microsoft”, National Review, April 4; “Microsoft’s Market Value Drops $80B”, AP/Washington Post, April 3, link now dead).
* “No aspect of life is untouched by lawyers,” observes Mona Charen, citing recent cases on employer liability (Hawaiian car dealership case, see March 10-12) and personal responsibility (drunk Honda driver’s drowning, see March 28) and mentioning this website. Also quotes from an elaborate disclaimer presented to Girl Scouts before they go horseback riding (“Society is Oppressed by Litigation”, Omaha World Herald, April 5).
* Cathy Young is troubled by the recent decision of Philadelphia’s police commissioner to give outside feminist groups a big role in deciding which ambiguous incidents should be categorized as rape (“Let’s not forget the rights of accused in rape cases”, Detroit News, April 5; see March 27 commentary).
April 6 – High fee dosage. “Twenty law firms are set to share a staggering $175 million fee award for winning the settlement of a class action against drug manufacturers and wholesalers over their pricing practices.” Much of the booty will go to four veteran class action firms that filed the antitrust charges: San Francisco’s Saveri & Saveri, Chicago’s Much Shelist Freed Denenberg Ament & Rubenstein, Chicago’s Specks & Goldberg, and Philadelphia’s Berger & Montague. (Brenda Sandburg, “They’re in the Money”, The Recorder/CalLaw, Feb. 16).
April 6 – For the legal-definition file. Varying standards of proof, as defined by Slate Supreme Court correspondent Dahlia Lithwick: “The Due Process Clause of the 14th Amendment requires that each element of a crime be proved ‘beyond a reasonable doubt.’ This means that jurors must be pretty darn certain before they vote for a conviction. In contrast, the ‘preponderance of the evidence’ standard required under the New Jersey hate-crimes statute [now being reviewed by the U.S. Supreme Court] is a standard used in civil trials to mean that the facts in question are more likely true than not. This is the standard used by parents when they smell beer on your breath.” (Dahlia Lithwick, “Clarence Thomas Speaks!”, Slate, March 28).
April 5 – New Hampshire high court blowup. Yes, scandals happen even up there. Associate Justice Stephen Thayer of the New Hampshire Supreme Court resigned last Friday “after prosecutors concluded he broke the law by trying to improperly influence the assignment of judges hearing his divorce case.” Thayer maintains his innocence, but struck a deal with state Attorney General Philip McLaughlin to resign on a promise that he would not face criminal ethics charges. McLaughlin then released a report saying it was an “institutional practice” at the court for judges who’d excused themselves from cases to review and discuss draft decisions in those cases. Calls for the impeachment or resignation of other justices followed, and are being taken seriously in the state legislature.
However, Chief Justice David Brock says that, Thayer aside, judges have never been permitted to comment on draft opinions in cases where they’d recused themselves because of conflict of interest; and Justice Sherman Horton told a reporter that the sorts of occasions when judges would comment had been when they’d excused themselves for other reasons, such as illness or temporary absence. Accusing the attorney general of grandstanding, Brock said the practice went back decades and that the AG had not given the court a chance to answer the charges before taking them to the press and legislature.
SOURCES: court home page; Holly Ramer, “N.H. Supreme Court Justice Resigns”, AP/Excite, March 31, link now dead; Katharine Webster, “Three N.H. Justices May Be Removed”, AP/Excite, April 1, link now dead; “Whistleblower called hero”, Boston Globe, April 1, link now dead; Norma Love, “Legislators reeling from allegations against justices”, AP/Boston Globe, April 3, link now dead; Brock statement; Kevin Landrigan, “Judge strikes back”, Nashua Telegraph, April 4; Alec MacGillis, “He won’t resign; calls accusations ‘unfounded attack’”, Concord Monitor, April 4; Manchester Union Leader; Foster’s Daily Democrat (Dover). Updates: Brock acquitted at impeachment trial before New Hampshire Senate (Oct. 11); state disciplinary panel gives him admonishment only (May 3, 2001).
April 5 – Update: judge okays “deep linking”. In a much-watched case, Los Angeles federal judge Harry Hupp has ruled that the practice of linking to interior pages of a competitor’s web site does not by itself violate the competitor’s copyright (see our Aug. 13 commentary). The Ticketmaster Corporation had sued California-based Tickets.com, an online tickets service which provides links to the Ticketmaster site for tickets that it does not itself have available. The judge allowed Ticketmaster to proceed with claims that its competitor had breached its copyright in other ways, as by improperly compiling and repackaging information obtained from the Ticketmaster site. (Michelle Finley, “Attention Editors: Deep Link Away”, Wired News, March 30; Brenda Sandburg, “Copyright Not Violated by Hypertext Link”, The Recorder/CalLaw, March 31).
April 5 – Seemed a little excessive. The Pennsylvania Supreme Court has agreed to decide whether it was appropriate for a Chester County court to award $46,000 in legal fees stemming from a dispute over an original $500 legal bill. The case arose in 1988 after Maria P. Bomersbach withheld her monthly owner’s assessment at the Mountainview Condominium Owners Association because of a dispute with the association’s management over her request to inspect its budget documents. The condo association took her to court and the two sides almost settled, but were $300 apart in their offers. Ten years of intensive litigation followed, during which Mrs. Bomersbach, according to judges’ opinions, “engaged in legal ‘trench warfare’ and subjected the association to a ‘pleadings onslaught’ that would render even a competent attorney ‘shell-shocked.’” A dissenting appellate judge called the $46,548 fee “totally unreasonable, and perhaps unconscionable,” and said the condo association shared responsibility for protracting the litigation. (Lori Litchman, “Pa. Supreme Court to Decide Dispute Over $46,000 Fee to Collect $500 Legal Bill”, The Legal Intelligencer, Feb. 28).
April 5 – The booths have ears. In Canada’s National Post, John O’Sullivan writes that his “attention was caught by a small item in the British press: Police in Gloucester are cracking down on local racism by entering restaurants in disguise and listening for racist conversation. In the first week of ‘Operation Napkin,’ one man was arrested for racially aggravated harassment. Another was overheard mimicking an Indian waiter, but the police decided that his behavior did not warrant prosecution.” (John O’Sullivan, “Operation Napkin to the Rescue”, National Post, March 28, link now dead).
April 4 – Microsoft violated antitrust law, judge rules. Competitors gloat: “I think it’s fair to say that the logical conclusion is that the degree to which Microsoft is restrained, that ought to be good for everybody else in tech,” says Sun Microsystems general counsel Michael Morris, henceforth to be known as “Zero-Sum” Morris. NASDAQ investors evidently don’t agree with him, sending the index skidding 349.15 points, or 7.6 percent. “Microsoft has been kept in check by all these antitrust proceedings from doing anything too bold,” says Kevin Fong with Mayfield Fund in Menlo Park; non-boldness has its costs, Microsoft now having slipped behind Cisco in market value for the first time. And Brookings’ Robert Litan calls the ruling “manna from heaven for the private plaintiffs because it basically should eliminate a lot of their need for proof”. (Eun-Kyung Kim, “Judge Rules Against Microsoft”, AP/Yahoo, April 3, link now dead; Dick Satran, “Tech Industry Remains Guarded on Microsoft”, Reuters/Yahoo, April 3, link now dead; Yahoo Full Coverage).
April 4 – Emerging campaign issue: “brownfields” vs. Superfund lawyers. A few weeks ago (see February 26-27 commentary) a report from the U.S. Conference of Mayors found that Superfund liability fears are among major factors stalling redevelopment of “brownfields” (abandoned or underused industrial sites) in American cities. Now the issue has reached the presidential campaign, with Texas Gov. George Bush yesterday calling for reforms aimed at encouraging brownfield redevelopment, including liability protections for new developers that perform responsible cleanups, an initiative that is anathema to the Superfund bar. “The old system of mandate, regulate and litigate only sends potential developers off in search of greener pastures — literally,” Bush told workers at a plant in Pennsylvania. Vice President Gore has cited the Superfund law as among his proudest legislative achievements, though others have much criticized it as a boondoggle for litigators that slows down actual cleanups. (Patricia Wilson, “Bush on Gore Turf Proposes Environmental Agenda”, Reuters/Yahoo, April 3, link now dead; Bush campaign statement).
April 4 – Progressives’ betrayal. Jonathan Rauch’s new National Journal column argues that the American Left betrayed its principles when it got into bed (much of it, at least) with trial lawyers who have lately pitched their services as ways to bypass the tiresome need for legislation. “Suddenly the American Left is on the side of fantastically wealthy private actors who are accountable to no one.”
“Who elected these lawyers to help legislatures? What will they do next, helpfully, with their billions? If lawyers file and finance lawsuits against an unpopular industry and then channel billions of dollars of booty back into government treasuries, while also channeling millions more into soft-money donations to political parties, how is that any less corrupting than when chemical companies make PAC contributions in exchange for tax breaks? … If the Left ceases to be a counterweight to huge concentrations of unaccountable private wealth and power, of what earthly use is it?” Also, don’t miss the old quote that Rauch unearths from Ralph Nader, about how undemocratic it is for governance to go on in back rooms without informed public consent and participation — this before Ralph’s friends in the trial bar realized they could govern that way. (“Triumphantly, America’s Left Betrays Itself (Again)”, National Journal, March 31).
April 4 – Now it’s hot chocolate. As if the menace of hot take-out coffee were not bad enough, Dunkin Donuts is now being sued over the temperature of the hot chocolate served at one of its outlets in Barre, Vermont. “The suit was filed in Washington County Superior Court by Diane Bradeen who claims her daughter Katrina suffered burns on her lap when the hot drink was spilled.” (“Suit filed over temperature of Dunkin Donuts’ hot chocolate”, AP/Boston Globe, April 3, link now dead).
April 3 – Book feature: “The Kinder, Gentler Military”. “So how did we get from the blood, sweat, and tears version of boot camp, to ‘Bootcamp Lite,’ … ‘battle buddies,’ ‘training time-outs,’ ‘confidence course facilitators,’ and the ‘gender-normed’ grenade throw?…
“Government nineties-style was obsessed with the self-esteem of its citizens and with avoiding injury — psychic and physical. … A doddering kind of hypochondria filled the land. Since so many new kinds of injuries were now validated by the courts and by the culture at large, new classes of victims proliferated, and activities that used to be considered a bit risky (but generally worth it) were treated like virtual minefields of danger …
“It was [also] inevitable that the personal-is-political crowd would get around to the military. They had spent much of the seventies and eighties focusing on the workplace, the home, and schools, but it had been harder to find a way into that monastery standing outside the gates, the preserve of all that was imperialistic, aggressive, violent, hierarchical, uncompromising, authoritarian. … And the military made such an exciting end-of-the-century project. In an era devoted to examining, criticizing, and rebuking masculinity, the armed forces were the last preserve where the species ran free. …
“The new broadly written and subjectively defined infraction [of "hostile environment" sexual harassment] opened up a new frontier for litigation and created a new legal language. A hostile and offensive environment is very difficult to define. … A vague definition combined with lawyers smelling money is a dangerous combination. Wherever there is a possibility for confusion (as between men and women most of the time) there is a possibility for injury, and the law gave us a crude template of victim and victimizer, hurtful act and injury, perpetrator and receiver, to fit over the most complex, the most ambivalent, the most highly charged, of our relationships: between men and women, employer and employee, teacher and student. …
“Nobody really knew where ‘sexual harassment’ began and ended and we were still struggling in the early nineties: Society and the military [are] just beginning to understand that certain behaviors constituted harassment,’ one congressman explained with great earnestness at the time. But while we tried to figure out what sexual harassment was and what it was not, the new law seemed to take on a life of its own. Our half-finished creation began to toddle around the countryside scooping up victims in its large bumbling hands. Even the president could not escape….
“[Quoting military sociologist Charles Moskos:] ‘The Tailhook convention of ’91 was the worst event for the [U.S.] Navy since Pearl Harbor.’”
– from The Kinder, Gentler Military: Can America’s Gender-Neutral Fighting Force Still Win Wars? by Stephanie Gutmann, newly published by Scribner (Review: Richard Bernstein, New York Times, March 24; Yahoo full coverage).
April 3 – Update: junk-fax lawsuit rebuffed. In Houston, Judge Harvey Brown has dismissed the lawsuit discussed in this space October 22, which demanded $7 billion from 80 area businesses that had patronized ad services that faxed coupons and other circulars to what the lawyers said were unwilling recipients. Since the suit was filed in 1995, Texas has passed a law prohibiting unsolicited commercial faxing, but the lawyers had come up with the idea of suing in state court under an earlier federal statute providing for penalties of $500 to $1500 per fax sent, which given the class action format added up to billions: one defense lawyer called it “Powerball for the clever”. (Citizens Against Lawsuit Abuse-Houston, undated; judge’s order made public March 22).
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