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Hawaii

March 4 roundup

by Walter Olson on March 4, 2008

  • Judge allows lawsuit to go forward as class action claiming consumers defrauded because gasoline expands in summer heat and so there’s less in a “gallon” [KC Star, TodaysTrucking.com; earlier at PoL]
  • Online speech: when a lawprof says it silences someone not to let them sue for defamation, it’s time to check definitions [Reynolds, Bainbridge, Volokh]
  • Should a law school invite Lerach of all people to teach legal ethics? [Massey/Faculty Lounge; earlier] Plus: Congress should investigate how widespread Lerach-style abuses were at other law firms [Columbus Dispatch editorial]
  • Usually no one gets hurt when a physician dodges having to deal with a litigious patient, but then there are those emergencies [Brain Blogger]
  • A lesson for Canada: judged by results in places like Kansas, the American approach to hate speech (i.e., not banning it) seems to work pretty well [Gardner/Ottawa Citizen]
  • “Way way too egocentric”: a marketing expert’s critique of injury law firm websites [Rotbart/LFOMA via ABA Journal]
  • More students are winding up in court after parodying their teachers on the Internet [Christian Science Monitor]
  • Money in the air? It happens the quiet little Alaskan Native village suing over global warming is being represented by some lawyers involved in the great tobacco heist [NY Times]
  • Ninth Circuit panel hands Navy partial defeat in enviro whale sonar suit; ditto federal court in Hawaii [Examiner; earlier]
  • Le Canard Noir “Quackometer” flays pseudo-science, some of its targets complain to ISP which then yanks the site: “We do not wish to be in a position where we could be taken to court” [Orac; earlier]
  • Hans Bader guestblogged at Point of Law last week, on such subjects as: courts that decide punishment before damages; presumed guilty of child abuse? inconsistent straight/gay treatment in sexual harassment law; and signs that today’s Supreme Court doesn’t exactly show a pro-business bias in discrimination cases.

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March 1 roundup

by Ted Frank on March 1, 2008

  • Oregon Supreme Court plays chicken with SCOTUS over $79.5 million punitive damages award in Williams v. Philip Morris case. [Sebok @ Findlaw; Krauss @ IBD; POL Feb. 1]
  • Speaking of punitive damages, I did a podcast on Exxon Shipping v. Baker. I can’t bear to listen to it, so let me know how I did. [Frank @ Fed Soc]
  • Arkansas case alleged legal sale of pseudoephedrine was “nuisance” because meth-makers would buy it; case dismissed. [Beck/Herrmann]. This is why I’ve stockpiled Sudafed.
  • Lawyers advertise for refinery explosion victims before fire goes out. [Hou Chron/TLR]
  • Connecticut Supreme Court: cat-attack victim can sue without showing past history of violence by animal. [On Point] Looking forward to comments from all the anti-reformers who claim to oppose reform because they’re against the abrogation of the common law.
  • Op-ed on the Great White fire deep pockets phenomenon. [SE Texas Record; earlier: Feb. 2]
  • “FISA lawsuits come from Twilight Zone.” [Hillyer @ Examiner]
  • Legislative action on various medical malpractice tweaking in Colorado, Hawaii, and Wyoming. [TortsProf]
  • Request for unemployment benefits: why fire me just because I asked staffers for a prostitute? [Des Moines Register]
  • “So much for seduction and romance; bring in the MBAs and lawyers.” [Mac Donald @ City Journal; contra Belle Lettre; contra contra Dank]
  • Where is the Canadian Brandeis standing up for free speech? [Kay @ National Post]
  • In defense of lobbying. [Krauthammer @ WaPo]

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October 30 roundup

by Walter Olson on October 30, 2007

  • Law firm of King & King in D.C. lost its chance at a contingency fee when its client elected not to pursue the case, so naturally it sued the client [Robert Loblaw @ eNotes; D.C. Circuit ruling for client, PDF]
  • How hot is the sausage gravy at Bob Evans? $5,000 worth of hot, says wrist-burned West Virginian [W.V. Record]
  • Kid on bicycle suffers catastrophic head injury, lawsuit blames road’s steepness and “dangerous wooden posts” alongside [St. Louis Post-Dispatch]
  • Genarlow sprung [Volokh and everyone else; earlier]
  • Better hope you make it to Chapel Hill: Fayetteville, N.C. loses 24-hour neurosurgery cover [F'ville Observer via KevinMD; trial lawyers' response]
  • Fans sue Aerosmith over canceled Maui concert [AP/IHT]
  • Class action over poor-quality Kia brakes yields $5.6 million jury verdict, but do lawyers really deserve $4.1 million? [Legal Intelligencer] More: whoops, covered already just below;
  • We don’t care what your wishes might be, we’re putting you on the ventilator to protect ourselves [RangelMD]
  • Tawdry sex angles aside, this really sounds like a cautionary tale of the dangers of liberal amendment of pleadings [Lat]
  • Observation on traffic-cams: “I’m sick of living in a world in which legal trouble can be generated by robots.” [Scheie via Reynolds]
  • Read all about it: we side with Paul Krugman and Atrios [four years ago on Overlawyered]

When Whale It End?

by David Nieporent on May 17, 2007

Environmental groups keep suing the United States Navy (See: Oct. 2004, Jul. 2006, and Mar. 2006) over its use of sonar, on the speculative theory that sonar hurts whales. Now they’re at it again, filing a lawsuit yesterday in federal court in Hawaii. This time it’s Earthjustice, suing on behalf of the Ocean Mammal Institute, the Animal Welfare Institute, KAHEA, the Center for Biological Diversity, and the Surfrider Foundation, trying to stop naval exercises off the coast of Hawaii. (PDF copy of complaint.)

Regardless of what one thinks of the merits of using sonar or privileging whales over national security, it’s absurd that federal judges — experts, we think, neither in marine biology nor submarine warfare — should be the ones deciding these policy questions. But it’s more absurd that these issues get to be relitigated over and over and over again. Of course environmental groups are the ones filing these repeated lawsuits, but in the big picture, the blame for this situation should be laid at the feet of Congress, which passes vague environmental laws which create broad standing allowing infinite numbers of random bystanders to sue without having to suffer tangible personal harm. (“I like looking at whales.”) And, perhaps worse than the vagueness of the laws is the fact that so many of these laws simply exist to create a zillion procedural hoops to jump through. (To provide an idea of these hoops, this complaint alone alleges the following causes of action:

  • Failure to provide public notice and an opportunity to comment in violation of Administrative Procedure Act and National Environmental Policy Act
  • Failure to prepare an Environmental Impact Statement in violation of Administrative Procedure Act and National Environmental Policy Act
  • Issuance of an inadequate Environmental Assessment in violation of Administrative Procedure Act and National Environmental Policy Act
  • Issuance of an inadequate Biological Opinion in violation of Administrative Procedure Act and Endangered Species Act
  • Failure to consult with the Hawaii State Coastal Zone Management Program For Undersea Warfare Exercises in violation of Administrative Procedure Act and Coastal Zone Management Act

Have your eyes glazed over yet?)

Whatever the appropriate policy balance to be struck here, it should probably be determined by Congress, and it should definitely be decided once and for all, rather than each and every time a submariner sneezes. If the Navy is to be required to use specific types of sonar or other equipment, or is to be denied permission to operate in certain locales, or whatever, then there ought to be a statute or regulation which spells these rules out explicitly, rather than allowing activist groups to rush to court on a weekly basis to get a judge to decide.

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…we debunked a debunking of Bodine v. Enterprise High School, the most famous burglar that fell through the skylight lawsuit. (The promulgator of the original fake debunking promised a comprehensive response “in the next week”, though, 26 weeks later, we haven’t seen it.)

Now, Hawaii is considering legislation similar to California’s that would give immunity to property-owners sued by people injured in the course of committing particular felonies, though it’s not clear to me that it would apply to unarmed burglary, which seems to only be a “Class C” felony in Hawaii.

Oh well, at least it’s not as intrusive as driving around their neighborhoods and interviewing their acquaintances:

[Bob] Marx, a personal injury attorney at The Law Offices of Robert Marx in Hilo, Hawaii, regularly hires a handwriting expert to help him select a jury.

“I feel like it’s a significant competitive edge,” he said. “It’s not 100 percent accurate, but if you know some history or a little bit more about a potential juror together with this analysis, it helps a whole lot more.”

Since the mid-1990s, Marx has paid an expert to analyze jurors’ handwriting for all of his big trials. The findings help paint a picture of the jurors and point out characteristics such as whether they are likely to be leaders or followers, if they are analytical or visual, or toward which side they are likely to be sympathetic.

Marx’s last three juries awarded a total of $31 million, and he said handwriting analysis helped him.

(Vesna Jaksic, “Looking for Clues in a Juror’s ‘John Hancock’”, National Law Journal, Feb. 27).

Readers who follow the phenomenon of ADA filing mills (Dec. 7, etc.) may recall the case of West Coast attorney Theodore Omholt, who has filed hundreds of legal complaints against businesses for violations (trivial or otherwise) of disabled-access laws, which he then settles for cash. In Honolulu, according to one news report, Omholt filed 574 lawsuits. (Carolyn Said, “Controversial disability rights lawyer”, San Francisco Chronicle, Apr. 21, 2002.) Omholt then refocused his practice on California where he sent out the following letter, quoted in my article three years ago in City Journal:

I am the attorney (age 48) who for the past three years has had the privilege to represent a small action group of six wonderful individuals who use wheelchairs age 37 to 66. . . . Their shopping at inaccessible stores in San Francisco and then filing lawsuits as clients of mine against those inaccessible stores nets them each an income which makes them financially independent. For each of them, the lack of funds which used to limit them to life’s bare necessities and which plagues so many disabled individuals today has become only an unpleasant memory from the past. As a reward for implementing the law and making stores more accessible for other disabled shoppers, group members now use their stream of income to eat out at good restaurants when they want to, buy new clothes and computers and televisions and gifts for family members, travel and take vacations wherever and whenever they want to go, and live a lifestyle they could only imagine prior to joining the group. . . . The group has room for a small number of additional members. Once that small number of additional members has been selected, the group will again close to new members.

Alas, even the most thoughtfully devised business plans sometimes meet with a hitch. Reader W.R. alerts us to this copy of Supreme Court minutes (PDF) from San Francisco, dated May 10 of last year, which at page 51 reports the following:

S143253 OMHOLT ON RESIGNATION — The voluntary resignation of TED OMHOLT, State Bar No. 92979, as a member of the State Bar of California is accepted without prejudice to further proceedings in any disciplinary proceeding pending against respondent should he hereafter seek reinstatement. It is ordered that he comply with rule 955 of the California Rules of Court and that he perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 days, respectively, after the date this order is filed.* Costs are awarded to the State Bar. *(See Bus. and Prof. Code, §6126, subd. (c).)

It’s too bad the minutes aren’t more informative about the circumstances surrounding Mr. Omholt’s voluntary resignation from the California bar. Readers familiar with the details are welcome to illuminate matters.

UPDATE: Omholt writes to dispute the accuracy of certain details in the Honolulu account; seeing no reason to doubt his word, we have revised the post to omit those details.

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February 5 Roundup

by Ted Frank on February 5, 2007

  • First Democratic earmark for trial lawyers. [Point of Law; Grace]
  • Philip Howard on the lack of trust in the American justice system. [Common Good/NY Sun]
  • Cooperman pleads guilty to Milberg Weiss kickbacks. Anonymous commenter at WSJ Law Blog: “Mr. Taylor of Zuckerman Spaeder contends that Mr. Cooperman’s statements “have never been credible.” Then why on God’s green earth did Milberg Weiss repeatedly use Mr. Cooperman as a plaintiff in the first instance for so many years if he was not credible? Is Mr. Vogel, another plaintiff whom Milberg Weiss repeatedly used for decades who also has pled guilty similarly not credible? Milberg Weiss certainly has a penchant for finding “not credible” plaintiffs for representing class interests.” [Point of Law; WSJ Law Blog]
  • Bone-screw litigation and informed consent claims. [Drug and Device Law Blog]
  • Dan Markel has a more theoretical look at the car-wash “forgiveness” case. [Prawfsblawg]
  • Getting rich on backdating (but not the way you think) [Ribstein]
  • Jury selection in San Francisco [Cal Biz Lit; see also NLJ]
  • Hawaii losing doctors; gov calls for reform; 86% of Hawaii med-mal claims without merit [The Honolulu Advertiser]
  • The miracle of joint and several liability: Police chase injuries put city on hook $4.5 million, because city held a 10% responsible for felon’s car accident. [The Olympian]
  • Judge Harry Hanna becomes star for his slap on the wrist to Chris Andreas, but, more jaw-dropping: Ninth Circuit Judge Bea defends the double-dipping lawyer. [Point of Law; Legal Pad; WSJ Law Blog photo of Andreas t-shirt]
  • The Guardian v. AEI. [Adler @ Volokh; Frum; Point of Law]

Learning to accept coconuts

by Walter Olson on November 27, 2006

From a New York Times article on the city of Los Angeles’s decision to curtail the planting of palm trees along public streets and parks, one reason being that the majestic plants have been known to drop bulky fronds on persons below:

“Hawaii has a lot of coconut tree liability problems because they fall on people’s heads,” he said. “But the people there have said, ‘That is something that we have to accept.’”

(Jennifer Steinhauer, “City Says Its Urban Jungle Has Little Room for Palms”, Nov. 26). See also Jun. 11 (similar, from Torquay, England). More on coconut liability, in both cases relating to the decorated Mardi Gras variety: Mar. 4, 2005 (thrown at parade spectators); Mar. 13-14, 2002 (copyright claim).

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).

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.

Gasoline prices spike

by Walter Olson on September 1, 2005

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.”

Hawaiian tribal recognition

by Walter Olson on September 1, 2005

Gail Heriot continues on the case with new posts Aug. 29 and Aug. 30. See Jun. 23, Jul. 13.

Michelle Malkin has the latest (Jul. 12).

…federal tribal recognition of native Hawaiians. Michelle Malkin is on the case (Jun. 23) (& see Jul. 13).

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.