According to an editorial report in London’s Telegraph earlier this year, an Italian court has ruled that it is not inappropriate for a lawyers’ association to discipline one of its members for uttering in the course of a social interaction that classic phrase of intimidation, “Do you know who I am?” (”We know who you are” (editorial), Daily Telegraph, Jan. 15). If adopted in this country, such a disciplinary rule might tend to crimp the style of famed tort high-roller Stanley Chesley, to judge by an generally puffy recent Cincinnati Enquirer profile (Chuck Martin, “Champion for little guy”, May 28). (These seeming puff pieces so often turn out to embarrass inadvertently.) More on Chesley: Mar. 6, 2006; Aug. 24, 2005; Jan. 11, 2004; Aug. 7-8, 2001; Aug. 16-17, 2000; Jun. 1, 2000; Apr. 12, 2000; Mar. 30, 2000; Dec. 23-26, 1999.
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“Robert Musil” marvels at the apparent untouchability of a key witness in the Anthony Pellicano wiretap case (Jun. 13) . At Volokh Conspiracy, Jonathan Adler skeptically examines a tendentious piece in Scientific American which claims that the Supreme Court’s pending decisions on two wetlands cases, Rapanos and Carabell, imperil the survival of the Florida Everglades (Jun. 13). The trial of journalist Oriana Fallaci, on charges of “insulting Islam” (see Jun. 11, 2005), has begun in an Italian courtroom; among the many giving it coverage are Dave Zincavage, Michelle Malkin and Howard M. Friedman. And Tyler Cowen expounds his opinions on the “net neutrality” issue here.
March 10-11 – “Burglars to be banned from suing victims”. United Kingdom: “Burglars who are injured while committing a crime are to banned from suing their victims for compensation. David Blunkett, the Home Secretary, has bowed to public pressure after the outcry over the case of Brendon Fearon, the burglar who is trying to sue Tony Martin for £15,000 after being shot while breaking into his home.” (David Bamber, Daily Telegraph, Mar. 9). (DURABLE LINK)
March 10-11 – Clear Channel = Deep Pocket. “With damage claims in the Rhode Island fire expected to run up to $1 billion, two lawyers representing victims have set their sights on a potential defendant with very deep pockets: Clear Channel Communications. The broadcasting giant owns WHJY-FM, a Providence radio station that ran ads for the Great White concert at The Station that ended moments into the first song when pyrotechnics set off by the band ignited the nation’s fourth-deadliest fire. A popular disc jockey at WHJY, Michael Gonsalves, introduced Great White and was among the 99 who died in the fire or from injuries suffered in the blaze. The two Providence lawyers, who between them represent about a dozen victims, said yesterday their expected lawsuits will almost certainly name Clear Channel as a defendant. The company, the largest operator of radio stations in the country, has assets that far outstrip those of the 14 defendants who were named in the only lawsuit filed so far.” (Jonathan Saltzman, “R.I. fire victims’ lawyers eye firm”, Boston Globe, Mar. 8). (DURABLE LINK)
March 10-11 – New Medicare drug benefit? Link it to product liability reform. “Even drugs like aspirin, which cause hundreds of deaths each year, could not meet the safety standards patients expect today,” argues Scott Gottlieb of the American Enterprise Institute. ” … But putting [older] patients on the pills they need means we need to prepare to tolerate more side effects or tolerate more lawsuits. Litigation should not be a cost of commerce when government puts itself in the business of pushing pills. … Without product liability reform, prescription drug coverage will transform into a full employment act for the lawyers, limiting development of new drugs and driving up prices for everybody.” (Scott Gottlieb, “More Drug Use Will Mean More Lawsuits,” AEI On the Issues, Mar.). (DURABLE LINK)
March 10-11 – Lawsuits vs. free speech, cont’d: jailhouse rock. Last year VH1 aired a special entitled Music Behind Bars, featuring the music of prisoners. Now the family of a West Virginia man murdered in 1994 by one of the inmate-performers is suing the network. The family’s lawyers are arguing that whether or not the network compensated the convicted killer for his performance — it says it did not — its broadcast occasioned the family emotional distress for which it should have to pay compensatory and punitive damages. (Maria Lehner, “Murder Victim’s Family Sues VH1″, Fox News, Mar. 6). (DURABLE LINK)
March 8-9 – Tobacco fees: feds indict former Texas AG. One of the biggest developments yet in the tobacco-fee saga: a federal grand jury is charging former Texas attorney general Dan Morales and his friend Marc Murr with conspiracy and mail fraud over Morales’s attempt to gain hundreds of millions of dollars in fees for Murr from the state’s tobacco settlement. More recently, Morales has suggested that he might be able to furnish information that would throw in question the fee entitlements of five politically influential trial lawyers who managed the state’s case (R. G. Ratcliffe and Clay Robison, “Former Attorney General Dan Morales indicted”, Houston Chronicle, Mar. 6; April Castro, “Ex-Attorney General Morales Indicted”, AP/Washington Post, Mar. 6; “Former Texas Attorney General Surrenders”, AP/ABC News, Mar. 7). For earlier coverage, see Jul. 15, 2002 and links from there; Jan. 10-12, 2003. (DURABLE LINK)
March 8-9 – Should have watched his step answering call of nature. Update: an appeals court in the Australian state of New South Wales has overturned the $60,000 judgment (see Mar. 5, 2002) awarded to Paul Jackson, who after a night drinking with friends walked home along a highway and “stepped over a low guard rail in order to urinate, not realising there was a drop of several metres.” The “plaintiff was not taking reasonable care for his own safety as he was obliged to do,” the justices said. (”That’s a long drop”, Sydney Morning Herald, Mar. 5; “Wee change in fortune for Wollongong man”, Aust. Broadcasting Corp., Mar. 5). (DURABLE LINK)
March 5-7 – Update: hospital rapist’s suit dismissed. Sandusky, Ohio: “A judge has dismissed the $2 million lawsuit filed by a convicted rapist who claimed the hospital where he sexually assaulted a woman was negligent because it didn’t prevent the crime, according to court records.” ((Richard Payerchin, “Ruling: Convict responsible for his own crime”, Lorain Morning Journal, Feb. 20)(see May 22-23, 2002). (DURABLE LINK)
March 5-7 – Stuart Taylor, Jr., on lead paint litigation. At his most scathing: “[O]ne group deserves a special niche in the annals of those who have perverted the legal system for personal and political gain at the expense of everyone else: the politically connected trial lawyers who have signed up Rhode Island, Chicago, San Francisco, St. Louis, and dozens of other governments, school districts, and housing authorities to sue over health hazards associated with sales of lead pigment and paint for indoor use. The last of those sales took place more than 45 years ago.” With details on the unusual “retainer agreement” with which former Rhode Island AG Sheldon Whitehouse signed over the state’s sovereign authority to two influential private law firms: “It not only guaranteed the lawyers a contingent fee of 16.67 percent of any money recovered, plus all litigation expenses; it also gave them considerable control over whom to sue, what to claim, whether to settle, and on what terms.” (Stuart Taylor Jr., “Perverting the Legal System: The Lead-Paint Rip-Off”, National Journal/The Atlantic, Feb. 19) (DURABLE LINK)
March 5-7 – Incoming link of the day. From the website of a Fort Worth, Texas cardiology practice: “We do not provide ANY email advice regarding medical issues. DO NOT contact us by email with clinical questions. The email addresses above are for business correspondence only. For some insight as to why, click here.” (DURABLE LINK)
March 5-7 – $6 million fee request knocked down to $25,000. Ouch! An appeals court in El Paso has upheld a trial judge’s decision to “award a group of plaintiffs’ lawyers $25,000 in attorney fees instead of the nearly $6 million they sought under a contingent-fee contract.” However, the attorneys, led by brothers Stephen F. Malouf and E. Wayne Malouf, are unlikely to go hungry; they’ve apparently obtained upwards of $2 million in fees from other aspects of the case, a complex litigation over oil rights. (Brenda Sapino Jeffreys, “Appeals Court Says Trial Judge Had Discretion to Reduce Fees”, Texas Lawyer, Feb. 26). (DURABLE LINK)
March 4 – “The Tort Tax”. “According to a new study by Tillinghast-Towers Perrin, the total cost of the U.S. tort system reached $205.4 billion in 2001, an increase of 14.3% over the previous year — far faster than the rate of economic growth. This is like a tax of 2% on everything in the American economy that takes $721 per year out of the pockets of every citizen.” Also cites a certain “excellent website that, unfortunately, I find too depressing to read regularly”. (Bruce Bartlett, syndicated/National Review Online, Mar. 3). (DURABLE LINK)
March 4 – Thrill of the chase. NYC: “A half-dozen personal-injury lawyers were charged [last week] in a scam that allowed a network of corrupt hospital employees to do the ambulance-chasing for them, authorities said. In at least three hospitals — Elmhurst, New York Presbyterian and Lincoln — emergency-room workers sold the attorneys confidential medical records of car-accident victims, evaluating the sales potential of the information as doctors were evaluating the patients for treatments, authorities said. Officials were clued in on the scheme — which ran for seven years — by a hospital employee after patients began complaining about calls at home from strangers who knew a lot about their medical conditions, according to Manhattan District Attorney Robert Morgenthau.” (Tom Perrotta, “Personal Injury Lawyers Indicted for Soliciting Scam”, New York Law Journal, Feb. 27; Laura Italiano, “Lawyers Charged in Hosp. E.R. Scam”, New York Post, Feb. 27). (DURABLE LINK)
March 4 – “Edwards doesn’t tell whole story”. In stump speeches since the outset of his political career, Sen. John Edwards has invoked the case of little Ethan Bedrick, a cerebral palsy victim, as emblematic of “the kids and families I’ve fought for.” One reporter was curious to learn more about Bedrick’s case, but Edwards’s campaign press secretary “told me if I wanted to know any details, I should ‘look it up.”’ So she did. It turns out Edwards’ firm obtained a settlement, often described as being for $5 million, of a lawsuit charging that asphyxiation during delivery caused Ethan’s disability. Edwards’s speech picks up the story only later, when Ethan’s family battled a health insurer to obtain needed therapy (Lynn Sweet, Chicago Sun-Times, Feb. 27) (& see letter to the editor, Mar. 31). (DURABLE LINK)
March 3 – By reader acclaim: “Man who threw dog into traffic sues dog’s former owner”. “A man who threw a dog to its death in a fit of road rage is suing the dog’s former owner and a newspaper, alleging mental anguish and seeking more than $1 million in damages. … [Andrew] Burnett was sentenced in July 2001 to three years in jail in the death of Leo, a bichon frise whose owner tapped Burnett’s bumper in rainy-day traffic in February 2000 near the San Jose Airport. Burnett threw the little dog into traffic before driving off.” (AP/San Francisco Chronicle, Feb. 28; Dan Reed, “Leo the dog’s killer claims mental anguish in suit”, San Jose Mercury News, Feb. 28). (DURABLE LINK)
March 3 – Update: Lockyer sues complaint mill. Following a continuing furor in California (see Jan. 15-16) about entrepreneurial lawyers’ practice of filing assembly-line complaints against thousands of small businesses, which then are informed that they must pay thousands of dollars to get the charges dropped, state Attorney General Bill Lockyer has announced that he is suing the most-publicized such law firm, Trevor Law Group, under the same unfair-business-practices law that it employs in its complaints. “Trevor Law Group operates a shakedown operation designed to extract attorneys’ fees from law-abiding small businesses,” Lockyer said. “They’ve abused one of the state’s most important consumer protection statutes and dishonored attorneys who practice law in the public interest. There’s some delicious irony in turning the weapon around and using it on them.” (Monte Morin, “State Accuses Law Firm of Extortion”, Los Angeles Times, Feb. 27; Dan Walters, “In ironic twist, law firm finds itself on other end of suit”, Sacramento Bee, Mar. 3). See also Jessica V. Brice, “Wave of lawsuits threatens 70-year-old consumer law”, AP/Sacramento Bee, Jan. 21). (DURABLE LINK)
February 20 – Start that movie on time, or else. Lawyers filed suit Tuesday “against movie theaters that claim in their ads they’ll show movies at a certain time, but, instead, show on-screen commercials at the advertised time, delaying the movie’s start. Theaters are committing consumer fraud when they claim in advertising that a movie starts at a certain time but it really starts a few minutes later because of the ads, said Mark Weinberg, a Chicago attorney who filed the two suits.” But a lawyer in China (of all places) got there first, as we reported Jan. 10. (Dave Newbart, “Pre-movie ads rip off theatergoers, suits claim”, Chicago Sun-Times, Feb. 19; Eric Krol, “If you don’t like commercials at movies, why not sue?”, Daily Herald (Chicago suburban), Feb. 19). (DURABLE LINK)
February 20 – Reforming punitive damages. “The best and most practical reform is to let the jury vote up or down on punitive damages, then have judges set the amount,” argues Douglas McCollam, Washington correspondent of the American Lawyer. Since punitive damages partake of the nature of civil fines, they should also be paid into a public fund, and plaintiff’s lawyers should not be allowed to capture a percentage share of them; instead they should be “paid for their time and reimbursed for their costs, with amounts determined at a fee-award hearing.” (”Damaging Justice”, Wall Street Journal, Oct. 31, 2002, reprinted at Texans for Lawsuit Reform). (DURABLE LINK)
February 19 – They’ll be back for seconds. Syndicated columnist Steve Chapman of the Chicago Tribune explains why we haven’t heard the last of the lawsuits trying to make food companies pay for obesity. Quotes our editor (”A fast track for fast-food lawsuits?”, Feb. 13). The New York Times’s “Editorial Observer” is oh-so-impressed with the suits’ logic (Adam Cohen, “The McNugget of Truth in the Fast-Food Lawsuits”, Feb. 3). But Rep. Ric Keller (R-Fla.) says he plans to introduce legislation in the U.S. Congress to cut off obesity suits against food companies; the AP quotes the Association of Trial Lawyers of America as opposing any such move (Mike Schneider, “Bill would outlaw lawsuits blaming restaurants for obesity”, AP/Naples Daily News, Jan. 28) (DURABLE LINK)
February 19 – “Pass-the-parcel” accounting liability. One company’s newsworthy firing of its CFO may signal that Sarbanes-Oxley is already having perverse effects on the interactions of accounting firms with their corporate clients, according to Asymmetrical Information’s pseudonymous “Mindles H. Dreck” (Feb. 17, and comments). Michael Fox at Employers’ Lawyer (Feb. 16) also has some thoughts. (DURABLE LINK)
February 19 – One solution to the malpractice crunch. “A New York doctor is commuting 1,220 miles to work to avoid the city’s high medical malpractice insurance rates. Dr David Abraham, an ear-nose-and-throat specialist from Long Island, leaves his family twice a month to travel to Minnesota.” According to the New York Post, Dr. Abraham had been paying $70,000 to insure his solo practice and can save up to $40,000 a year with the new arrangement. (”Doctor travels 1,220 miles to work”, Ananova, Feb. 3). (DURABLE LINK)
February 18 – It’s all for the clients. MedPundit Sydney Smith (Feb. 3) says next time you hear the trial lawyers’ association saying that litigation is about protecting the public, rather than about making money, you should keep in mind this page. (DURABLE LINK)
February 18 – “Namibian tribe sues Germany for genocide”. “A Namibian tribe that came close to being exterminated by Germany’s colonial forces nearly a century ago is suing the German government and two companies for £2.6 billion.” The forces of Kaiser Wilhelm committed atrocities against the Herero people in the then-German colony of South-West Africa between 1904 and 1907, as reprisals against the killing of white settlers. Rights activists and lawyers plan to sue the German government and German companies for compensation in — natürlich! — American courts. (Christopher Munnion, Daily Telegraph (U.K.), Jan. 31). (DURABLE LINK)
February 18 – My lawyer says I’m the valedictorian. Outside Boston: “The family of a student who could be denied valedictorian honors at Hull High School, even though she has the best grades, has sued the school district, arguing the top slot should be hers.” The suit filed by Sharisse Kanet’s family “seeks to enjoin Hull from naming any valedictorian until the matter is resolved.” (”Would-Be Valedictorian Sues to Ensure Top Rank”, WHDH Boston, Feb. 16) (DURABLE LINK)
February 17 – Pet custody as legal practice area. Everything you could want to know about the rapid rise of who-gets-Fluffy litigation, including the tale of a San Diego woman’s $146,000 (in fees incurred) courtroom battle to get custody of Gigi, a greyhound-pointer mix: “At trial, the court entertained a ‘day-in-the-life of Gigi’ video proffered by the wife’s divorce attorney, which showed Gigi sleeping under the wife’s desk while at work, walking in the park, and playing on the beach.” (Quentin Letts, “Fur better or fur worse”, Daily Telegraph (U.K.), Feb. 16; law firm of Blumberg Lorber Nelson LLP, “Who Gets Fido? Pet Custody in Divorce Cases”, undated; PetCustody.com). (DURABLE LINK)
February 17 – Inmate entitled to disability payments. “A Beverly Hills lawyer doing time for sinking his yacht to collect the insurance money won a judgment against two insurance companies that canceled his monthly disability payments because they suspected him of committing fraud. … The companies stopped paying [Rex K.] DeGeorge his $8,200-a-month disability payments in 1999, saying he faked his ailments and continued to work as a lawyer. DeGeorge filed the claims in 1990, saying he was disabled because of a heart condition and brain damage caused by an auto accident. … The jury also found DeGeorge remains disabled, forcing Equitable to continue paying him $4,700 a month for the rest of his life. … DeGeorge was sentenced last year to 7 1/2 years in federal prison for sinking his 76-foot yacht off the Italian coast to collect on his $3.5 million insurance policy, which prosecutors said was inflated through a series of phony sales transactions. He is appealing his conviction.” (”California Inmate Wins Disability Case”, AP/ABC News, Feb. 15) (DURABLE LINK)
February 14-16 — Tried to outrun Coast Guard in chase. Last month a Cuban smuggling boat tried to outrun a pursuit by the U.S. Coast Guard and instead capsized; the 34 persons aboard were rescued and most were repatriated to Cuba. Now a lawyer for relatives of the Cubans is suggesting that the Coast Guard may have been overly aggressive in pursuit of the boat and thus responsible for its capsizing. A spokesman for the Coast Guard begs to differ: the boat “was grossly overloaded … and being captained by criminals with a ruthless intent.” (Elaine DeValle, “Video on Cubans’ boat that capsized sought by lawyer”, Miami Herald, Jan. 28). (DURABLE LINK)
February 14-16 – Take care of myself? That’s the doc’s job. “Physicians, lawyers, insurers, juries — all absorb criticism for the rising cost of medical premiums, a surge that has provoked the cry for tort reform. Meanwhile, patients remain generally blind to their own culpability in the crisis.” The story of how one Ohio man’s bad habits contributed to his demise, and how his widow then prevailed in a $4.7 million suit against the physician who treated him for prostate cancer but did not push him to seek a cardiologist’s help as well. Quotes our editor (Martin Kuz, “Cash Diet”, Cleveland Scene, Feb. 12) (see Sept. 18-19, 2002). (DURABLE LINK)
February 14-16 – Politico’s law associate suspended over “runner” use. “Louisiana’s highest court has suspended a former law associate of a since-disbarred and imprisoned state senate president for her role in the use of ‘runners’ to solicit personal injury clients for the senator’s law firm.” An official with the state bar says he has seen a sharp increase in offenses involving the use of “runners”, who drum up injury cases. (”Louisiana Cracks Down on Client Solicitation”, National Law Journal, Feb. 13). “At the former O’Keefe law firm, more than $1 million was paid annually to ‘runners’ who hustled car accident cases. One runner, caught on hidden camera, explains how the scheme worked. ‘Say look, you ain’t say you hurt, if you say no, ain’t nothing there for you, understand what I’m saying? Because you can’t collect nothing if you ain’t hurt, you understand? If anyone say they ain’t hurt ain’t gonna make no more money,’ he said. [Attorney Stephen] Bernstein ran the day-to-day business for attorney Michael O’Keefe, who bankrolled the entire operation and fronted the money to pay the runners, [reporter Richard] Angelico said. O’Keefe is serving 19 and-a-half years in federal prison on other charges. Although O’Keefe never performed any legal work, one lawyer who worked at the firm said that 60 percent of all legal fees flowed into O’Keefe’s pocket.” (”Feds Charge ‘Canal Street Cartel’ Lawyer, The New Orleans Channel, Oct. 16, 2000). “O’Keefe served in the state Senate from 1960-84, the last 12 years as president.” He was convicted for his role in a scheme that skimmed millions of dollars from an ailing medical malpractice insurer. (Joe Gyan Jr., “Ex-legislator O’Keefe appeals conviction, argues witness lied”, Baton Rouge Advocate, Aug. 21, 2002) (see Sept. 13, 1999, July 31, 2001). (DURABLE LINK)
February 13 – “Florida Jury Awards $100M for Pool Accident”. A case summarized by one of our readers thusly: “And the money goes to: the parents who left a 2 year old alone by the pool.” The plaintiff’s attorneys, in mock trials, “were careful about the composition of the jury. They were cautious of young, new parents who might be too critical of the father’s inattention”. (Dee McAree, National Law Journal, Feb. 10). (DURABLE LINK)
February 13 – ABA endorses asbestos litigation reform. What next — a blue moon, a month of Sundays, the freezing over of Hell? The nation’s largest lawyers’ group, the American Bar Association, can no longer be counted among consistent opponents of limits on litigation now that it’s voted to back restrictions on asbestos suits; it may also endorse measures to require that nationwide class actions be heard in federal rather than state court. Read, and rub your eyes: “ABA leaders argued that lawyers should accept blame for a crisis in courts overwhelmed with 600,000 asbestos claims, as well as the bankruptcies of dozens of companies that were sued. ‘This is not tort reform, it’s scandal reform,’ said Terrence Lavin, a Chicago plaintiffs’ attorney,” whom this site hereby nominates our Man of the Week. “‘I have watched helplessly as some, but not all, members of the asbestos bar have made a mockery of our civil justice system and inflicted financial ruin on corporate America.’” (Gina Holland, “Lawyer group wants to restrict asbestos suits “, AP/Chicago Sun-Times, Feb. 12). And over at the Volokh Conspiracy, Juan Non-Volokh catches out National Public Radio in a very funny bit of reportorial inconsistency — at the least — relating to asbestos litigation and this nation’s Public Enemy #1. (Feb. 12). (DURABLE LINK)
February 13 – “Illegal art”. An exhibit of artwork that could land its owners or creators in court, mostly consisting of parodies or adaptations vulnerable to attack by intellectual property owners. (via Jesse Walker, Reason “Hit and Run”, Dec. 9). (DURABLE LINK)
February 12 – Feinstein set to back Bush malpractice plan. California Democratic Senator Dianne Feinstein, often at odds with the Bush administration, has emerged as an unexpected ally of the President on the issue of medical malpractice and plans to introduce a federal bill mirroring the provisions of MICRA, the California law. “Feinstein said she agreed with much of Bush’s speech. ‘There is no question about malpractice,’ she said. ‘Before 1975, California had one of the highest malpractice insurance rates in the country.’ In 1975, the state enacted the Medical Injury Compensation Reform Act that capped pain-and-suffering judgments at $250,000. … Cases filed in California are also subject to caps on legal fees. The percentage of jury awards allowed for attorney fees decreases as the settlement increases, with lawyers collecting only 15 percent of any award of $600,000 or more. According to the California Medical Association, the state law has kept physician insurance rates considerably lower than in most other states.” (David Whitney, “Bush likes California medical suit law”, Sacramento Bee, Jan. 17; Feinstein press release, Jan. 16). (DURABLE LINK)
February 12 – Most overrated American judge ever? Aaron Haspel at God of the Machine levels pretty much that charge against Oliver Wendell Holmes, Jr. (Feb. 9). “Robert Musil” comments. (DURABLE LINK)
February 12 – “Grieve for Fido, but don’t litigate”. A bill pending in the Colorado legislature “would allow dog and cat owners to sue animal abusers and veterinarians and seek damage awards for ‘loss of companionship’ of up to $100,000. … [W]hatever the emotional distress of losing a dog or cat, we don’t think the courts should treat it the same way it treats injury to or death of, say, a child, a best friend, or a nonmarital partner. … would spur the statewide growth of the ‘pet lawyer’ industry, and we would soon see its ads in newspapers everywhere: ‘Have you lost a pet lately?’” (Rocky Mountain News (editorial), Feb. 11) (DURABLE LINK)
February 11 – By reader acclaim: “Sisters Suing Southwest Over ‘Racist Rhyme’”. “A judge has set a trial date in a discrimination lawsuit filed against Southwest Airlines by two black passengers who were upset when a flight attendant recited a version of a rhyme with a racist history. … [F]light attendant Jennifer Cundiff, trying to get passengers to sit down, said over the intercom, ‘Eenie, meenie, minie, moe; pick a seat, we gotta go.’” (AP/Fox News, Feb. 10; Robert A. Cronkleton, “Rhyme at center of lawsuit against Southwest Airlines”, Kansas City Star, Feb. 10). (DURABLE LINK)
February 11 – Welcome The Lawyer (U.K.) readers. Great Britain’s leading legal periodical, The Lawyer, in its Jan. 20 issue (not online, alas) accords generous coverage to “the rather wonderful US website overlawyered.com, which chronicles the excesses of litigation culture on the other side of the Atlantic” as well as our editor’s new book The Rule of Lawyers (”picking up rave reviews …delivers a withering attack on lawyer greed … a full-blooded attack on the massive class action culture that pervades US society”).
“The most popular section of the vast overlawyered.com site is the ‘Whatever happened to personal responsibility‘ section. A few headlines offer a flavour of the kind of stories posted there: ‘Patient sues hospital for letting him out on the night he killed‘; ‘Rough divorce predisposed him to hire hitman‘; and ‘Pitcher hit by line drive sues maker of baseball bat‘. Before we get too smug, though, there is an increasing contribution from the UK, such as ‘Stop clowning around, clowns told‘, which came from The Times last year. It tells the sorry tale of UK clowns terrified that unappreciative patrons would sue them over injuries from thrown pies and water-squirting. Does it worry Olson that overlawyered.com is read as a comic site as opposed to a platform for his more earnest law reforming? Not at all. “I try to make sure it’s humorous. Otherwise, frankly, you’d just cry,” he says.”
In other recent publicity, TechCentralStation columnist Duane Freese reviews The Rule of Lawyers together with Catherine Crier’s The Case Against Lawyers, emphasizing our proposal that the litigation business be required to submit to more disclosure and transparency (”Legal Tyrannies”, Feb. 6). And in the New York Post, William Tucker flays Attorney General Eliot Spitzer for the way Spitzer has gone to court to defend the exorbitant fees being collected by tobacco lawyers representing New York state (”Spitzer vs. N.Y.”, Feb. 4). (DURABLE LINK)
July 19-21 – Disabled lap dancing just the start. Our recent item (Jul. 16-17) on demands for accessibility in lap-dancing facilities reminded an alert Australian reader of a recent case from his country in which a disabled complainant filed charges against the proprietors of a “swinging house party”, which was found in unrelated proceedings to be operating as an unlicensed brothel, for excluding her because of her status as a wheelchair user. (Ball v Morgan & Anor [2001] FMCA 127)(adult content warning, though it’s a court opinion). (DURABLE LINK)
July 19-21 – Stolen silence? Via WSJ OpinionJournal Best of the Web Today: “The London Sun reports that Nicholas Riddle, who heads a firm that owns the copyright to the late John Cage’s composition ‘4′ 33″ ‘–which consists of four minutes, 33 seconds of silence–is suing ‘pop guru’ Mike Batt, whose new band, the Plantes, has just released an album with a track called ‘A One Minute Silence.’ Riddle alleges that Batt violated Cage’s copyright. ‘John always said the duration of his piece may be changed, so the Planets’ piece doesn’t escape by virtue of its shorter length,’ Riddle tells the paper. ‘We want our royalties.’” Oh please, let this be a Monty Python skit and not an actual lawsuit (Thomas Whitaker, “Silence is old ‘un”, The Sun (London), Jul. 18). (DURABLE LINK)
July 19-21 – Enron’s other helpers. If Arthur Andersen & Co. is going to get run out of business for approving Enron’s dubious financial deals, why is its outside law firm, Vinson & Elkins, unlikely to face similarly devastating consequences for approving and helping structure the same deals? Well, one reason is that accountants are conceived of as having broad obligations to the general public, while lawyers mostly aren’t. Rather convenient for the lawyers, don’t you think? Julie Hilden makes a valiant effort to defend the double standard as a principled one (”Scummery Judgment”, Slate, Jun. 21). (& see letter to the editor, Oct. 23) (DURABLE LINK)
July 18 – “Family of boy injured by leopard may sue”. “In April, Eric River, 11, sneaked into the Rosamond Gifford Zoo at Burnet Park with friends, tried to feed and pet a snow leopard, got 10 deep lashes to his face, arm and back, and received 500 stitches. Now, three months later, his mother, Terry Wells, is threatening to sue the zoo’s owner, Onondaga County, for failing to properly secure and police the zoo after hours.” River and three friends managed to get into the zoo by scaling one 8-foot fence, squeezing through a gap in another, and scaling a 4-foot fence before finally approaching the leopard in its cage. (Teri Weaver, Syracuse Post-Standard, Jul. 17) (see Sept. 21, 1999). (DURABLE LINK)
July 18 – “Trauma center reopens doors”. The only trauma center in southern Nevada has reopened, “ten days after a state malpractice insurance crisis forced its closure”. (Las Vegas Review-Journal, Jul. 14; Joelle Babula, “University Medical Center: Trauma center closing”, Las Vegas Review-Journal, Jul. 2; Steve Kanigher, “Trauma cases to shift to nearest hospital”, Las Vegas Sun, Jul. 2; William Booth, “Las Vegas Trauma Center Closes as Doctors Quit”, Washington Post, Jul. 4; Las Vegas Review-Journal, coverage at a glance). Crisis continues in Mississippi: Reed Branson, “Doctors shutting practices amid epidemic of lawsuits”, GoMemphis.com, Jul. 11; John Porretto, “Exodus of doctors causing crisis for moms-to-be in Mississippi”, AP, Jul. 11. Texas: Mary Ann Roser, “Doctors at a crossroads”, Austin American-Statesman, Jun. 17. (DURABLE LINK)
July 18 – “Edwards’ fund raising a strong suit”. Why are we not surprised that he’s vaulted ahead of some better-known Democrats on the money-raising front? “Reports released Monday show that two fund-raising committees controlled by Edwards raised a combined $2.6 million in the second quarter of this year and that the North Carolina Democrat now has more than $4.4 million in the bank. … A News & Observer analysis of Edwards’ PAC money showed that more than 77 percent of it came from lawyers or law firms.” (John Wagner, Raleigh News & Observer, Jul. 16). All five of the top contributors to the Edwards campaign are plaintiff’s law firms, the list topped by Girardi & Keese of Los Angeles and Baron & Budd of Dallas, both familiar to longtime readers of this site. (David Brown, “The Candidate”, The Recorder, Jun. 14). (DURABLE LINK)
July 16-17 – By reader acclaim: quadriplegic sues strip club over wheelchair access. Edward Law of Orlando, Fla., who is quadriplegic, “has sued a strip club, charging that it violates the Americans with Disabilities Act because the lap dance room does not have wheelchair access.” In addition to suing the Wildside Adult Sports Cabaret of West Palm Beach, Law has also recently sued a second strip clup, “an Orlando restaurant and a Daytona Beach Harley-Davidson motorcycle shop”; we don’t know yet whether to assign his filing activities to this category. (”Orlando quadriplegic sues strip club over wheelchair access”, AP/Palm Beach Post, Jul. 15)(for more on lap-dance handicap accommodation, see Sept. 27-28, 2000). (DURABLE LINK)
July 16-17 – Mercury in dental fillings. For well over a century dentists have used a mixture of metals including mercury in standard tooth fillings, and both the U.S. Public Health Service and Consumers Union have declared that patients have no grounds for alarm that the fillings pose a risk to health. That hasn’t convinced a small if longstanding body of dissenters who hold that exposure to even trace amounts of the heavy metal must be having toxic effects on users’ bodies. The dispute has lately turned litigious, with Van Nuys, Calif. personal injury and environmental attorney Shawn Khorrami spearheading several suits which accuse the American Dental Association and dentists of wrongly promoting the material, and the ADA striking back with a defamation suit. (Doug Bandow, “Killer teeth?”, Cato Institute Dailies, Jun. 28; Raymond J. Keating, “Lawsuits and Legislation Causing Pain for Dentists”, Small Business Survival Committee, Jun. 7; AltCorp (anti-mercury testing firm); Stephen Barrett, “The Mercury Amalgam Scam”, QuackWatch.com, last revised Apr. 23; search QuackWatch on “amalgam”; American Dental Association on ADA v. Khorrami). (DURABLE LINK)
July 16-17 – Hizzoner’s divorce, settled at last. “Anyone who’s been appalled at the depths to which the parties stooped in this Hanover/Giuliani split just hasn’t been divorced from a millionaire often enough. As big splashy divorces go, this was no uglier than most.” (Dahlia Lithwick, “Hats Off to Rudy”, Slate, Jul. 12). (DURABLE LINK)
July 16-17 – “Spanking Client Not Legitimate Trial Prep Tactic”. Just plain bizarre: U.S. District Judge Robert N. Chatigny has ruled that an attorney’s malpractice insurer is not obliged to pay out in a case in which Derby, Ct. attorney Milo J. Altschuler allegedly took a client across his lap and spanked her before a court appearance. “The woman claimed Altschuler, before removing her panties and stockings, told her he needed to spank her so the judge didn’t think she was lying.” Judge Chatigny ruled that the spanking did not constitute the rendering of professional services, although Altschuler “acknowledged that he used [threats of spanking] in representing more than a dozen other clients to make them ‘more afraid of him than they would be of the prosecutor.’” (Scott Brede, Connecticut Law Tribune, Jul. 15). (DURABLE LINK)
July 15 – “Morales’ $1 Million Tobacco Fee Under Fire”. “Former Attorney General Dan Morales told lawyers that a $1 million contribution to his political campaign fund was a condition for joining his anti-tobacco legal team, a Houston lawyer testified in a newly released document.” In a 1999 interview that has only now been made public in court proceedings, an assistant to Texas Attorney General John Cornyn questioned Houston attorney Wayne Fisher, a former president of the State Bar and a former president of the Texas Trial Lawyers Association, under oath. Fisher “said Morales outlined two separate requirements during a meeting he had with the then-attorney general in 1995. Fisher said one condition of employment was to ‘front’ the legal expenses and a second was to ‘commit to contribute $1 million to (Morales’) political campaign — to (Morales’) political campaign fund, as I recall it.’” Fisher “chose not to join Morales’ legal team”; he also “recalled wondering later if the meeting was a ’sting operation.’” Fisher’s account seems to buttress earlier recollections by noted plaintiff’s attorney Joe Jamail, who also did not join the state’s team (see Sept. 1-3, 2000, May 22, 2000, June 21, 2001, Aug. 29-30, 2001, Nov. 12, 2001).
The five law firms eventually hired by Morales are all “major contributors to Democratic candidates and causes”. Michael Tigar, attorney for the five, denies that any of their tobacco fees or expenses went to Morales but concedes that “some was paid to Austin political consultant George Shipley. Tigar said all the payments to Shipley were first reviewed by University of Texas law professor Charles Silver, who was retained by the lawyers as an ethics adviser.” (Clay Robison, Houston Chronicle, Jul. 12). (DURABLE LINK)
July 15 – Paper currency should accommodate blind, suit argues. “The American Council of the Blind, which seeks to improve conditions for the visually impaired, has sued the Treasury Department to force its way into the currency revamping process. …The group is not promoting a specific change that would help blind and sight-impaired Americans sift through their money, but hopes the government will study an array of options that would be helpful. A major step could be offering denominations in different colors or sizes with large-print features, like many other countries, [Ralph] Brunson said. Braille and textures also are possibilities, although the markings are prone to wearing off. ‘We did not specify a particular option because, primarily, at this point we’re trying to get the dialogue going,’ Brunson said.” (Mark Babineck, “Blind Group Sues U.S. over Currency”, AP/FindLaw, Jul. 1). (DURABLE LINK)
July 15 – New civil rights target: “linguistic profiling”. With assistance from a Ford Foundation grant, the National Fair Housing Alliance and Stanford education and linguistics professor Dr. John Baugh have launched a project “to study the impact of linguistic profiling on housing discrimination. This summer, Baugh will track the instances of bias that the housing markets show toward speakers of non-standard English over the telephone. Baugh says speakers who do not ’sound white’ often are discriminated against over the telephone. ‘Even though the courts are reasonably well equipped to prosecute cases of face-to-face discrimination,’ says Dr. Baugh, ‘they have a hard time understanding and applying the law to linguistic profiling, and that’s where this research will help.’” “National Study on Linguistic Profiling in Housing Announced”, Jun. 26)(via Scott Norvell, FoxNews.com, Jul. 1). (DURABLE LINK)
July 12-14 – Welcome Salon.com readers, Bill O’Reilly listeners. We’re cited in Janelle Brown’s excellent article on parental lawsuits against teachers (”L is for Lawsuit”, Jul. 12) which mentions our subpage on overlawyered schools. And our editor is appearing today (Fri.) on Bill O’Reilly’s popular radio show to discuss the case of a New York City jury’s award to a woman who lay down on the subway tracks (see Jun. 26-27), along with other cases featured on our personal- responsibility subpage. Update: and welcome BBC-5 listeners, for whom our editor taped an interview arising from the Salon piece (DURABLE LINK)
July 12-14 – Credibility up in smoke? Environmentalist groups have strenuously denied that their use of litigation to stall road building, logging and the construction of firebreaks worsened this year’s raging wildfires out West (see Jul. 1-2). But it turns out that a recent General Accounting Office report, much cited by the enviro groups to show that they don’t sue often, actually may show nothing of the sort. “Environmental appeals delayed 48 percent of the [Forest Service]’s fire-suppression projects in fiscal 2001 and 2002, thereby stalling efforts to clear the brush and small trees that fuel the catastrophic wildfires plaguing the West, according to an internal Forest Service report obtained by The Washington Times. The report, slated for release [Thursday], found that 155 of the agency’s 326 plans to log overgrown, high-risk national forests were stymied by appeals. In Arizona and New Mexico, sites of some of this summer’s worst wildfires, that figure rose to 73 percent, and climbed to 100 percent in the Pacific Northwest”. (Valeria Richardson, “Forest Service Says Activists Played Role in Fires,” Washington Times, Jul. 11; Kimberley A. Strassel, “Truth Under Fire “, Wall Street Journal/ OpinionJournal.com, Jul. 11). (& see letter to the editor, Oct. 23) (DURABLE LINK)
July 12-14 – Read the label, then ignore it if you like. “Two carpet installers who admit they read the label of an adhesive they used, admit they understood the adhesive was flammable and should not be used inside, used it inside anyway, caused an explosion, were burned badly, sued, and won $8 million dollars.” (Phil Trexler, “2 installers get millions in blast suit”, Akron Beacon Journal, Jul. 10) (link and description via MedPundit, Jul. 10). (DURABLE LINK)
July 12-14 – Financial scandals: legislate in haste. The “chief sponsor of the House [financial-reform] legislation, Republican Michael G. Oxley of Ohio … complained that some aspects of the Sarbanes bill appeared to be turning into ‘a gravy train’ for trial lawyers.” (Richard A. Oppel Jr., “Senate Backs Tough Measures to Punish Corporate Misdeeds”, New York Times, Jul. 11). House Republicans are particularly critical of provisions which, in line with a long-term goal of the plaintiff’s bar, increase the time permitted to bring securities fraud lawsuits. The Mobile Register editorially warns that a number of ideas emanating from the Senate “would be a huge boon to voracious plaintiffs’ attorneys. And the last thing the nervous stock market needs, now or ever, is to worry about companies being ruined by ever-more creative lawsuits whose practical effect would do far more to enrich the lawyers than to protect the interests of individual investors.” (”Bush right, Shelby not, on business reform” (editorial), Mobile Register, Jul. 10). “Robert Musil” has some thoughts on the newly popular idea of requiring CEOs to certify their company’s financial filings on penalty of perjury (Jul. 7). And before assuming that it was management malfeasance alone that destroyed the market value of such companies as WorldCom and Adelphia, it would be wise to note that Europe, without benefit of major scandal, has managed to see most of the value of its telecom stocks evaporate since the sectoral bubble burst, with historic enterprises like Deutsche Telekom, France Télécom and Royal KPN of the Netherlands losing 80 or 90 percent of their value, and Britain’s BT doing not much better (Edmund L. Andrews, “Europe Shares Pain of the Fall in Phone Stocks”, New York Times, Jul. 11). And see Steve Chapman, “Real and phony fixes for corporate corruption”, Chicago Tribune, Jul. 11). (DURABLE LINK)
July 12-14 – “Court Tosses ‘Sopranos’ Suit”. Following an appellate court’s ruling against them, the Italian-American Defense Association has dropped its suit against HBO charging that “The Sopranos” offends the dignity of Italian Americans in supposed violation of the Illinois Constitution’s “individual dignity” clause. Score one for free speech (N.Y. Daily News, Jul. 2)(see Apr. 6-8, 2001). (DURABLE LINK)
June 19-20 – Supreme Court clarifies ADA. This term the Supreme Court handed down four decisions interpreting the Americans with Disabilities Act, in each case rejecting expansive readings of the law. Our editor analyzed the three employment cases in yesterday’s Wall Street Journal (Walter Olson, “Supreme Court Rescues ADA From Its Zealots,” Wall Street Journal, Jun. 18 (online subscribers only)). See also David J. Reis and Dipanwita Deb Amar, “U.S. Supreme Court in ‘Echazabal’ Puts Federal, State Disability Laws in Line”, The Recorder, Jun. 17) (even California employment law, nearly always more favorable for employees than its federal counterpart, acknowledges that employees may refuse to employ disabled workers in jobs that endanger their safety). (DURABLE LINK)
June 19-20 – Judicializing politics (cont’d). Rep. Bob Barr (R-Ga.), active in the 1998 battle over impeachment of then-Pres. Clinton, “has filed suit in a Washington federal court against the former president, Clinton loyalist James Carville and politically active pornographer Larry Flynt seeking compensatory damages ‘in excess of $30 million’ for ‘loss of reputation and emotional distress’ and ‘injury in his person and property’ allegedly caused by these three — who Barr claims conspired to ‘hinder [the plaintiff] in the lawful discharge of his duties.’” Barr is being represented by Larry Klayman of the famously litigious organization Judicial Watch (see Apr. 16-17). (Lloyd Grove, “Bob Barr’s Believe It or Not”, Washington Post, Jun. 13). (DURABLE LINK)
June 19-20 – To run a Bowery flophouse, hire a good lawyer. What with New York City’s absurdly anti-landlord rental code and the ongoing predations of publicly funded legal services groups, “it takes a tough lawyer to run a decent flophouse.” (John Tierney, “A Flophouse With a View (on Survival)”, New York Times, Jun. 11). Tierney, whose columns have been a highlight of the Times‘ Metro section, is moving to Washington to cover that city for the paper. (DURABLE LINK)
June 19-20 – “Suits Against Schools Explore New Turf”. Sexual harassment suits are on the rise, suits demanding concessions for special education students are already well-established, and although many states’ laws give schools some protection against personal-injury suits, “attorneys are finding creative new ways to get around the roadblocks”. (Alan Fisk, National Law Journal, Jun. 11). (DURABLE LINK)
June 17-18 – No “flood” of Muslim or Arab discrimination complaints. After the terrorist attacks last fall some major media outlets reported that state and local civil rights agencies were being flooded with complaints of discrimination by Muslims and persons of Arab descent. Notwithstanding a widely publicized recent suit against airlines for alleged misdeeds in passenger security profiling (see Jun. 6), the official numbers on other types of discrimination cases “tell a less alarming story. While there certainly was a hike in such bias claims since September, it’s hard to say that the increase was serious or even statistically significant.” (Jim Edwards, “Post-Sept. 11 ‘Backlash’ Proves Difficult to Quantify”, New Jersey Law Journal, Jun. 12). (DURABLE LINK)
June 17-18 – Spitzer riding high. In the New York Times Magazine, James Traub profiles New York Attorney General Eliot Spitzer, currently enjoying a wave of favorable publicity after negotiating a settlement in which Merrill Lynch agreed to change its analyst policy and fork over money to the states; Spitzer’s efforts to bludgeon the national gun industry into accepting unlegislated gun controls, however, have been markedly less successful. Quotes this site’s editor (James Traub, “The Attorney General Goes to War”, New York Times Magazine, Jun. 16). On abusive litigation by AGs, see the recently published analysis by Cumberland law prof Michael DeBow, “Restraining State Attorneys General, Curbing Government Lawsuit Abuse” (Cato Policy Analysis No. 437, May 10). On the federalism angle, see Michael S. Greve, “Free Eliot Spitzer!”, American Enterprise Institute Federalist Outlook, May-June. Plus: Boston Globe columnist Charles Stein on the trouble with policymaking by prosecution, also quotes our editor (”Memo to Policy Makers: Make Policy”, Jun. 16). (DURABLE LINK)
June 17-18 – Jury nails “The Hammer”. Rochester, N.Y.: “A state Supreme Court jury nailed personal-injury lawyer James ‘The Hammer’ Shapiro with a $1.9 million judgment Tuesday in a legal-malpractice case. Jurors found that Shapiro, best known for flamboyant television commercials in which he promises to deliver big cash to accident victims, mishandled the case of client Christopher Wagner, who was critically injured in a two-car crash in Livingston County. They also found that Shapiro’s advertising, which led Wagner to him, was false and misleading. … Wagner’s lawyers, Patrick Burke and Robert Williams, said the award should chasten Shapiro, who gleefully refers to himself as ‘the meanest, nastiest S.O.B. in town’ in his commercials.”
After suffering a severe auto crash which left him in a coma for a month, Wagner “hired Shapiro after his brother saw one of Shapiro’s TV commercials. Wagner dealt with a paralegal and never met a lawyer from Shapiro’s firm until after he agreed to a $65,000 settlement.” The jury found that the law firm had negligently failed to press Wagner’s case against the other motorist, instead accepting from that motorist’s insurer a settlement which undervalued the case and was insufficient to pay Wagner’s medical bills. “Shapiro, whose firm of Shapiro and Shapiro is based in Rochester, didn’t attend the trial. He testified by a videotaped deposition in which he admitted that he has never tried a case in court, leaves the legal work to subordinates and lives in Florida.” (Michael Ziegler, “Award claws ‘The Hammer’”, Rochester Democrat & Chronicle, Jun. 12)(link now dead). Shapiro is also known for his role in websites entitled Million Dollar Lungs (asbestos client recruitment) and CPalsy.com (”Your child’s cerebral palsy may be the result of a mistake. Don’t Get Mad, Get Even”). See also Dec. 5, 2003. Update May 24, 2004: court suspends Shapiro from practice in New York for one year. (DURABLE LINK)
June 17-18 – Not worth the hassle? “Home Depot Inc., the nation’s largest hardware and home-improvement chain, has told its 1,400 stores not to do business with the U.S. government or its representatives.” Most managers in the chain surveyed by the St. Louis Post-Dispatch said “they had received instructions from Home Depot’s corporate headquarters this month not to take government credit cards, purchase orders or even cash if the items are being used by the federal government. … One Home Depot associate at a store in San Diego said, ‘It feels weird telling some kid in uniform that I can’t sell him 10 gallons of paint because we don’t do business with the government.’” Although the Atlanta-based chain is close-lipped about the reasons for its policy, companies that sell more than nominal quantities of products or services to the federal government risk being designated as federal contractors, a status that brings them under a large body of regulation over their practices in employment and other areas. (Andrew Schneider, “Home Depot stops doing business with federal government”, St. Louis Post-Dispatch, Jun. 16). Update Jul. 1-2: company reverses policy. (DURABLE LINK)
June 17-18 – Alamo’s stand. “Alamo Rent A Car had no ‘duty to warn’ a Dutch couple visiting Miami not to drive into high-crime areas of the city, lawyers for the company told a three-judge panel of the 3rd District Court of Appeal Wednesday in an effort to overturn a $5.2 million jury verdict. Lawyers for Alamo told the judges that there is no way their client could have known that the couple would venture into Miami’s Liberty City neighborhood, where Tosca Dieperink was shot to death as she sat in the rental car in 1996.” We last covered this story Jun. 29, 2000, at which time we wondered: how many different kinds of legal trouble would Alamo have gotten into if it had warned its customers to stay out of the toughest urban neighborhoods? (Susan R. Miller, “Car Rental Agency Fights $5.2M Verdict for Slain Tourist”, Miami Daily Business Review, Jun. 14). (DURABLE LINK)
June 14-16 – “Civil Rights Agency Retaliated Against Worker, EEOC Rules”. Do as we say dept.: The Equal Employment Opportunity Commission has ruled that the U.S. Commission on Civil Rights, the federal agency which claims for itself the role of public watchdog on discrimination matters, unlawfully retaliated against its former staff solicitor, Emma Monroig, after she filed a discrimination complaint against it in 1995. The commission, which has a staff of about 75, has been hit with nine recent EEOC complaints from employees, of which at least three have been settled. (Darryl Fears, Washington Post, Jun. 13). (DURABLE LINK)
June 14-16 – Dealership on the hook. “A Michigan auto dealership that failed to complete the title transfer on a car involved in a fatal accident has been hit with a $12 million jury verdict.” In July 1999 Les Stanford Oldsmobile in suburban Troy allowed Mohammad Bazzi, then 20, to drive away his newly purchased 1996 Camaro convertible although the paperwork to transfer title was not complete. Bazzi was supposed to return to sign the papers, but never made it: two days later, driving intoxicated at an estimated 100 mph on I-75 at 2:30 in the morning, he smashed the car into the rear of a slower moving truck, killing his 18-year-old passenger, Ronny Hashem. Hashem’s survivors sued the dealership citing Michigan’s 70-year-old Owner Liability Statute, “which holds the owner of a car liable whenever the car is being operated consensually”. (Peter Page, “High-Speed Death”, National Law Journal, Jun. 12). (DURABLE LINK)
June 14-16 – Batch of reader letters. Readers take issue with our coverage of a Canadian court’s ruling on welfare reform (we stand accused of citing a conservative columnist) and of the recent suit against a baseball-bat maker by a teenager hit by a line drive; offer a different perspective on the Audubon String Quartet litigation; and track down the drunk driving defense law firm that has trademarked the phrase “Friends don’t let friends plead guilty”. (DURABLE LINK)
June 13 – Breaking news: slaying at Texas law firm. 79-year-old Richard Joseph Gerzine of Vidor, Tex. is in custody following a fatal shooting at the offices of the prominent Beaumont plaintiff’s firm of Reaud, Morgan & Quinn, known for its role in the asbestos and tobacco controversies. The victim was senior partner Cris Quinn. The perpetrator was said to have been angered by the law firm’s refusal to represent him in an asbestos case. (Beaumont Enterprise, Jun. 13; AP/Houston Chronicle, Jun. 13). (DURABLE LINK)
June 13 – “Student gets diploma after threatening lawsuit”. “A threatening letter from her lawyer and an opportunity to retake an exam hours before graduation helped a West Valley high school student get her diploma last month. … On May 22, Stan Massad, a Glendale attorney representing the Peoria family, faxed a letter to [English teacher Elizabeth] Joice asking her to take ‘whatever action is necessary’ for the student to graduate or the family would be forced to sue. ‘Of course, all information regarding your background, your employment records, all of your class records, past and present, dealings with this and other students becomes relevant, should litigation be necessary,’ he wrote to the teacher.” (Monica Alonzo-Dunsmoor, Arizona Republic, Jun. 10; lawyer’s letter; teacher’s response; Joanne Jacobs, Jun. 12).
UPDATE: The case has mushroomed into a cause celebre in Phoenix (Arizona Republic coverage: Maggie Galehouse, “Decision to allow Peoria student to graduate draws outrage”, Jun. 12; “State Bar probes threat against teacher over student’s graduation”, Jun. 13; “Failing your classes? Get a better lawyer”, (editorial), Jun. 11; “Pathetic plight in Peoria” (editorial), Jun. 12; Benson cartoon, Jun. 11; Richard Ruelas, “Lawyer made an offer school couldn’t refuse”, Jun. 12). In the blog world, see Thomas Vincent, Jun. 11 and later posts; Edward Boyd, Jun. 11 and later posts; DesertPundit, Jun. 13. And InstaPundit and “Max Power” discuss issues of whether the lawyer might face bar discipline and why the family members have been allowed to keep their names confidential. More update: Monica Alonzo-Dunsmoor, “Peoria district issues an apology for furor”, Arizona Republic, Jun. 15. (DURABLE LINK)
June 13 – “The NFL Vs. Everyone”. “Why is it that football players/owners/teams are in court all the time? And why would the Broncos sue fans? The NFL is a great case study in litigiousness gone haywire.” (Dan Lewis, dlewis.net, Jun. 12; see “NFL Bootleg: Making the Court Circuit”, Bootleg Sports/FoxSports, Jun. 12). Lewis’s blog also calls our attention (Jun. 11) to this article explaining one remarkable implication of new “medical privacy” laws: “Law May Forbid Leagues to Say if Player Is Hurt” (Buster Olney, New York Times, Jun. 11 (reg)) (DURABLE LINK)
June 13 – He’s at it again. It seems Kevin Phillips has published another of his awful books. Here’s what we said about one of the earlier ones. (DURABLE LINK)
June 11-12 – “French ban sought for Fallaci book on Islam”. The true meaning of hate-speech laws? In France, an “anti-racist” group has filed a legal action demanding a ban on the publication of a new book by outspoken Italian journalist Oriana Fallaci criticizing Islamic fundamentalism and defending the United States in the wake of the Sept. 11 attacks. (Reuters/MSNBC, Jun. 10)(& welcome InstaPundit readers). (DURABLE LINK)
June 11-12 – Malpractice crisis latest. More problems with the notion of suing our way to quality medical care: Philadelphia’s Jefferson Hospital, citing rising malpractice insurance bills, has laid off 99 workers and eliminated 80 vacant jobs. (Linda Loyd, “Jefferson Hospital cuts 179 positions”, Philadelphia Inquirer, May 21). Brandywine Hospital, which operates the only trauma center in Chester County, Pa., said it would temporarily close its center, with the result that “trauma patients — the most severely injured accident victims — will be diverted to trauma centers at hospitals in surrounding counties.”. It blamed malpractice costs for difficulty in recruiting qualified physicians (Josh Goldstein, “Hospital closing trauma center”, Philadelphia Inquirer, Jun. 5). The closure of a Wilkes-Barre ob/gyn practice typifies the forces driving doctors out of Pennsylvania, according to the Wilkes-Barre Times Leader (M. Paul Jackson, “Frustrated doctors look to quit area”, May 1). The supply of neurosurgeons in central Texas is likewise under pressure, resulting in the family of an accident victim’s “being told a city of Austin’s size had no spine surgeon available when they desperately needed one”. (Mary Ann Roser, “Neurosurgeons in short supply”, Austin American-Statesman, May 19). Update: Francis X. Clines, “Insurance-Squeezed Doctors Folding Tents in West Virginia”, New York Times, Jun. 13). (DURABLE LINK)
June 11-12 – Flash: law firm with sense of humor. This one’s been around for a while, but we’ve never paid it due tribute: Denver’s Powers Phillips maintains the only law firm website we’ve seen that’s laugh-out-loud funny (and even manages to tell you a lot about the firm) (& update:Metafilter thread). (DURABLE LINK)
June 11-12 – “San Francisco Verdict Bodes Ill for Oil Industry”. Oil refiners are unhappy about a recent verdict in which a West Coast jury declared that the gasoline additive MTBE, which has a nasty tendency to seep into water tables, is defective and should never have been marketed. The refiners have contended that the federal government itself pushed the industry into adding MTBE to gasoline by way of the Clean Air Act’s 1990 amendments, which mandated the use of reformulated and oxygenated gas to reduce air pollution. At least two earlier courts did accept that defense, but now the industry may stand exposed to potential billions in damages. (June D. Bell, National Law Journal, May 3). Background: Energy Information Administration, “MTBE, Oxygenates, and Motor Gasoline” (Mar. 2000). (DURABLE LINK)
June 11-12 – Welcome “Media Watch” (Australia). On the Australian Broadcasting Corp. program, which monitors the press, Steve Price traces the circulation of the much-forwarded “Stella Awards”, a list of (fictitious, invented) outrageous lawsuits (see Aug. 27, 2001) (June 10). (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; what happened to attorney Alan Wolk’s suit against posters who criticized him on AvWeb?; 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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June 20 – Mich. lawyer’s demand: get my case off your website. On April 3 we ran a brief item on the trademark lawsuit filed by Detroit-based jewelry-selling enterprise Love Your Neighbor Inc. against a Florida charity called Love Thy Neighbor, which assists homeless persons. A few weeks later Detroit Free Press legal correspondent Dawson Bell published a story going into more detail about the dispute and quoting Robert Dorigo Jones, director of the legal-reform advocacy group Michigan Lawsuit Abuse Watch (M-LAW), who said that while the suit might not count as a frivolous one, he considered it unnecessary: “This falls into the category of lawsuits that can be filed, but shouldn’t be.” (Dawson Bell, “Love your neighbor is suing one, instead”, Detroit Free Press, May 5).
It turns out that M-LAW’s Mr. Dorigo Jones was living dangerously by making such remarks. Within days he had received a letter (which he’s shared with us) from “Love Your Neighbor”’s attorney, Julie Greenberg of Birmingham, Mich.’s Gifford, Krass, Groh, Sprinkle, Anderson & Citkowski, P.C. The tone of the letter might reasonably be called menacing coming from a lawyer: it says that for him to have called her lawsuit unnecessary had “caused damage to my personal reputation in the legal and social community”. It claims to be “particularly disturbed” that Mr. Dorigo Jones would presume to comment on her suit even though he is not an expert in trademark law; “indeed, you are not even an attorney”. And it proceeds to the following bottom-line demand: “In an effort to curb potential ongoing damage to my reputation from your quote in the Free Press, I request that you retract your statement made, and further that you take all references to me or this lawsuit from your [M-LAW's] website, or your affiliated website Overlawyered.com, which is promoted and hyperlinked by your website. I look forward to your prompt response.”
Oh, dear. “Your affiliated website Overlawyered.com“? How’d we get dragged into this? As even casual investigation should have revealed to attorney Greenberg, Overlawyered.com and M-LAW aren’t “affiliated” with each other in any normal sense of that word: we link to them and they link to us, but that’s true of any number of other sites as well. Yet she seems to think Mr. Dorigo Jones has the power to get items removed from our site — or is that she thinks he should take down his site’s link to us? Whichever is the case, we have bad news for her: Mr. Dorigo Jones tells us that he has no intention of removing M-LAW’s link to Overlawyered.com, and we have no intention of removing our previous item mentioning Greenberg’s client, or this one either (& letter to the editor, July 6) (DURABLE LINK)
MORE: According to Bell’s report, Arnold Abbott founded the Florida charity in 1992 “in memory of his deceased wife”. Ms. Sims, who has registered the phrase as a trademark, had earlier challenged Mr. Abbott’s right to the domain name lovethyneighbor.org but lost in arbitration. Attorney Goldstein’s letter says the filing was “necessary” because owners of trademarks can lose their rights if they do not police infringement, and notes that various efforts by her client short of litigation had failed to keep the Florida charity from going right on calling itself “Love Thy Neighbor”. Mr. Abbott, for his part, told reporter Bell that “he is flabbergasted that it is possible to register rights to an expression that ‘has been around for 5,700 years. ‘If she’s right, then every time someone prints a Bible they’d have to pay her a royalty.”
June 20 – “Gambling addiction” class action. “A lawyer in Canada’s Quebec City is launching a class action suit against the province’s gambling monopoly for not warning players about the alleged dangers of its games.” The suit says the video gambling machines are addictive. (Mike Fox, “Addicted gamblers sue in Quebec”, BBC, June 14).
June 20 – By reader acclaim: “dog slobber” slip-fall case. Mary Lee Sowder of Rocky Mount, N.C. is suing a PetsMart store in Roanoke, saying she slipped on canine “slobber” on its floor. She claims knee damage and wants at least $100 grand. (Tad Dickens, “‘Dog slobber’ at pet store caused her fall, woman says in lawsuit”, Roanoke Times, June 19).
June 19 – Keeping child in her lap = homicide conviction. Prosecutors have prevailed on a Chattanooga, Tenn. jury to convict 20-year-old Latrece Jones of criminally negligent homicide in the death of her 2-year-old son Carlson Bowens Jr., “who was in her lap instead of a car seat during a car crash.” When we use the phrase “safety cops”, we’re really not kidding. (”Car seat conviction”, ABCNews.com, June 15) (& letters to the editor, July 6).
June 19 – Tobacco: Boeken record. Per AP and CNN reports, $3-billion jackpot winner Richard Boeken started smoking in 1957, yet “testified that he ‘never heard or read about the health risks of smoking until congressional hearings were held in 1994.’ This claim does not simply strain credulity; it smashes credulity into a million tiny pieces. … Until 1997, California law … classified tobacco as a product that is ‘known to be unsafe by the ordinary consumer…with the ordinary knowledge common to the community.’ Now we see the sort of idiocy that provision was holding back.” (Jacob Sullum, “Beyond belief”, June 12). The Onion weighs in with a satire, if it’s possible to satirize such things (”The $3 Billion Judgment“). See also Robert Jablon, “Los Angeles Jury Orders Philip Morris to Pay $3 Billion to Lifelong Smoker”, AP/Law.com, June 7; Bob Van Voris, “Big Bucks Guy Shows Little Ego”, National Law Journal, June 15 (profile of winning attorney Michael Piuze). And after Salon ran a piece by veteran tobacco-litigation advocate Elizabeth Whelan trying to defend the outcome of the L.A. case it immediately drew an influx of reader mail strongly disagreeing with her (”Tobacklash!”, June 15; letters, June 18). Update Oct. 2, 2004: appeals court orders punitive award cut to a sum not to exceed $50 million.
June 19 – Docs and Dems. The American Medical Association, which used to take a dim view of the litigation biz but now eagerly builds it up as a way of revenging itself against managed care, is tilting its campaign contributions these days toward lawsuit-friendly Democrats (OpenSecrets.org “Money in Politics Alert — New Friends: The American Medical Association, Democrats and the Patients’ Bill of Rights”, June 18). See also Kelley O. Beaucar, “Critics Decry ‘1-800- LAWSUITS’ Bill”, FoxNews.com, June 18 (quotes our editor); Fred Barnes, “The Right Medicine” (editorial), Weekly Standard, June 25. And SmarterTimes, the indispensable corrective to each morning’s dose of West 43rd St. tendentiousness, finds a number of misleading assertions in Monday’s New York Times editorial on “patients’ rights”. For instance: “The editorial says, ‘The White House, for its part, says the bill would open the floodgates to a wave of frivolous lawsuits, a claim not supported by the evidence in those states that have adopted similar legislation, including Texas under Governor Bush.’ This is misleading; the Texas patients’ bill of rights included limits on civil damage awards that are not included in the federal legislation to which the White House is objecting.” (June 18 — scroll to “Patients’ Bill of Wrongs”; “The Right Patients’ Bill of Rights” (editorial), New York Times, June 18).
June 19 – “Candles might be polluting your home, EPA says”. A new indoor environmental menace: just what we needed to ruin our wick end. (Traci Watson, USA Today, June 14).
June 18 – Lawsuits on overseas terrorism: guess who foots the bill. “Thanks to Congress’ largesse, U.S. taxpayers are paying hundreds of millions of dollars to compensate victims of foreign terrorism. And the tab might soon soar.” Given American jurors’ low opinion of regimes like those of Iran and Libya, trial lawyers often score big awards suing them — which they can then present to U.S. taxpayers for at least partial payment. “Stuart Eizenstat, deputy Treasury secretary under President Clinton, says lawyers are pressing cases under two laws: a 1996 statute that lets Americans file suit in U.S. courts against seven countries on a State Department list of terrorist states, and a 2000 law that authorizes the government to pay some damages. Congress has to approve new awards, but it has in every case so far. ‘It has become a race to the courthouse and then a race to get Congress to appropriate funds,’ Eizenstat says.” (Barbara Slavin, “Taxpayers get the bill when terrorists lose in court”, USA Today, June 14). “Two former hostages held in Lebanon by pro-Iranian kidnappers sued Iran on Tuesday, contending the country was responsible because its Muslim government shields and supports terrorists. The lawsuits, filed by Rev. Benjamin Weir and Frank A. Regier, seek $100 million in compensatory damages and an unspecified amount in punitive damages.” (”Former Iran [sic] Hostages File Lawsuits”, AP/FindLaw, June 13).
June 18 – Villaraigosa and the litigation lobby. One group that may be less than happy about leftist Antonio Villaraigosa’s June 5 loss to James Hahn in the L.A. mayoral race: trial lawyers, who’ve found Villaraigosa a close ally in his powerful post as speaker of the California Assembly. “In the 1997-1998 campaign cycle, Villaraigosa received $612,400 in campaign contributions from personal injury lawyers, a number that works out to be 25% of the almost $2.4 million given to California Assembly candidates,” notes California’s Torrance-based Citizens Against Lawsuit Abuse (”2001 L.A. Mayor’s Report“, undated). “In the 1999-2000 campaign cycle, he received $220,600 from personal injury lawyers, which works out to be 10 percent of funds contributed to California Assembly candidates.” See also Todd Purdum, “Hahn Wins Los Angeles Mayor’s Race”, New York Times, June 6 (reg).
June 18 – Next time, “endorse” only products you like? Tennis pro Martina Hingis has sued the Sergio Tacchini Italian sportswear company, claiming that its shoes caused her feet to hurt and made her drop out of tournaments. Couldn’t she just have removed the offending footgear? Well, she’d agreed to wear it as part of a $5.6 million endorsement deal. (”Hingis claims shoes injured her feet”, AP/ESPN, June 11; “Shoemaker says Hingis has no basis for claim”, AP/ESPN, June 12).
June 18 – Reader contributions pass $1,000. We’re doing better with the Amazon Honor System than most sites we know, thanks to generous readers like you; our average contribution is nearly $10. Have you done your bit yet?
June 15-17 – Jury: drunk driver hardly responsible at all for fatal crash. A Broward County. Fla. jury has found the state Department of Transportation and a highway construction firm to be 90 percent responsible for the 1995 traffic accident that took the life of former Miami Dolphins linebacker David Griggs. Griggs “had a blood-alcohol level of .16, twice the legal limit of .08, after which a person is considered drunk in Florida, according to the toxicology report from the Broward County Medical Examiner.” A second trial is set for the fall to determine damages. (”Jury: Road firm, government mostly to blame for Griggs’ death”, AP/Sacramento Bee, June 14).
June 15-17 – “Doctor liable for not giving enough pain medicine”. On Wednesday an Alameda County, Calif. jury found Dr. Wing Chin liable for recklessness and elder abuse for not giving sufficient pain medicine to 85-year-old William Bergman, who died three days later of lung cancer. “During the month-long trial, the doctor testified he followed established protocols in prescribing pain medication to Bergman. His attorney Bob Slattery also argued neither the patient nor his family requested that the doctor prescribe more pain medication to alleviate the suffering.” Plaintiff’s lawyer Jim Gearan said Dr. Chin had failed to take training in pain management. (”Doctor liable for not giving enough pain medicine”, CNN, June 14). We wonder whether this case ties in in any way with the phenomenon convincingly documented by Jacob Sullum, namely the widespread undertreatment of pain by doctors in a medical culture swayed both by fear of narcotics themselves and by fear of the enormous hassle from state regulators and the federal Drug Enforcement Administration that can descend on the heads of doctors perceived as too ready to furnish narcotics (”Who’ll stop the pain?”, Reason, Jan. 1997).
June 15-17 – “Lender hit with $71M verdict”. A Holmes County, Mississippi jury voted $69 million in punitive damages and $2.2 million in compensatory damages after a group of 23 plaintiffs accused Washington Mutual Finance Group of “goading customers into renewing loans with additional undisclosed charges”. The plaintiff’s lawyer was Rep. Edward Blackmon Jr., who chairs one of the two Judiciary committees in the lower house of the Mississippi legislature; his wife Barbara, also a plaintiff’s trial lawyer, serves in the state Senate where she sits on the Judiciary committee and is vice chair of the Insurance committee. (Jackson Clarion-Ledger, June 14).
June 14 – Wal-Mart-as-”cult” suit: it is about the money. A lawsuit accuses Wal-Mart of maintaining a “cult-like” atmosphere which encourages employees to put in unpaid overtime. “You bet it’s about the money,” said litigant Taylor Vogue. (”Wal-Mart Brainwashes Workers, Suit Alleges”, AP/Omaha World-Herald, June 9).
June 14 – “Lawsuit rocks Virginia string quartet”. Further developments in the ongoing Audubon String Quartet mess, last reported on here June 5, 2000: estranged first violinist David Ehrlich is suing the other three members of the ensemble for $2 million and has obtained a court order preventing them from playing together under the Audubon name or any other group name (they can still use their individual names). Robert Mann, an original member of the Juilliard Quartet, thinks chamber musicians should not take differences to court: “If anyone who becomes disaffected with his group can sue the others for money, it would be disastrous.” (Chris Kahn, AP/ SFGate.com, June 8). Update Nov. 13, 2001: judge awards Ehrlich more than $600,000 in damages.
June 14 – Fee fracas still going 23 years after case filed. Chick Kam Choo was a ship worker killed in 1977 in an accident on a tanker in Singapore harbor. His survivors’ wrongful-death suit against Exxon and other defendants was filed in Houston, Tex., with its big verdicts, rather than in Singapore. It finally settled this January for $2.7 million after protracted battles that reached the U.S. Supreme Court, but as of April the plaintiffs hadn’t seen a penny because of new squabbling between eight different plaintiff’s lawyers over who gets fees. John O’Quinn of O’Quinn and Laminack, whose doings are frequently reported on in this space, says his firm gets it all. But Newton B. Schwartz Sr., C. Benton Musslewhite Sr. and his son Charles B. Musslewhite Jr., Richard Sheehy, Gary Polland, and Joseph C. Blanks all maintain that they deserve some or all of the fees. (Brenda Sapino Jeffreys, “A Piece of the Action”, Texas Lawyer, April 17).
June 13 – Dodge ball on endangered list. “Educators in several states are fighting to ban dodge ball, but the game remains popular with kids.” A professor at Eastern Connecticut State University says the game is “litigation waiting to happen.” (”Educators want dodge ball tossed out”, AP/CNN, June 7). And a touch football game has brought youngsters to court in a Wisconsin broken-arm case unlikely to have any real winners (Tom Kertscher, “Trial is about pals, football, evening the score”, Milwaukee Journal Sentinel, June 10).
June 13 – Antidepressant blamed for killing spree. Three years after Donald Schell went on a murderous rampage, a Cheyenne, Wyo. jury has blamed the episode on Glaxo SmithKline, maker of the anti-depressant Paxil, with an $8 million verdict. (”Shooter’s family awarded $8 million in drug suit”, AP/CNN, June 7).
June 13 – Batch of reader letters. The latest sack of correspondent mail includes a note from Ric Espinosa, who filed the “library cat” suit reported on last month; letters on the ethics of ghostwriting for lawyers, class action suits, Prof. Richard Daynard’s conflicts and their tardy disclosure, the Casey Martin case, and flashlight warnings; along with the possibly relevant lyrics of an Al Stewart song.
June 12 – “Hearsay harassment” not actionable. Diane Leibovitz, a now-retired mid-level manager at the New York City Transit Authority, filed a sexual harassment lawsuit against the TA because, though she had not herself been a target of harassment, reports had reached her at second hand that other women employees had been. She got a $60,000 jury award after a trial presided over by federal judge Jack Weinstein, but the Second Circuit U.S. court of appeals has reversed it, saying the law does not confer a right to sue on a worker who “was not herself a target of the alleged harassment, was not present when the harassment supposedly occurred, and did not even know of the harassment when it was ongoing”. Leibovitz’s lawyer, Merrick Rossein, a law professor at CUNY and author of a widely used textbook on employment discrimination law, was disappointed: “They’re saying that since she didn’t directly observe the harassment and didn’t prove the harassment actually occurred, it is not cognizable under the theory of hostile environment.” (John Springer, “Court overturns transit authority sexual harassment award”, Court TV/Yahoo, June 11).
June 12 – Ghost blurber case. Almost as fast as Sony Pictures got caught inventing quotes from nonexistent film critic “David Manning” to hype four of its films, a class action lawyer sued on behalf of two L.A. moviegoers whose desire to engage the studio in legal battle no doubt welled up in a wholly spontaneous fashion (Denise Levin, “Sony’s Bogus Blurbmeister Spurs Class Action Suit”, Yahoo/Inside.com, June 8; Anthony Breznican, “2 Moviegoers Sue Sony Over Review”, AP/Yahoo, June 8). And even faster off the dime was Connecticut Attorney General Richard Blumenthal, who seized on the scandal’s very tenuous Nutmeg State connection (the fictitious Manning was said to work for the Ridgefield Press) as excuse for an investigation (”Conn. AG to Investigate Film Reviews”, AP/Yahoo, June 6). According to Jim Knipfel of the New York Press, the investigation may be a wide-ranging one : “Blumenthal is not only upset by the fake critic business, but also by the age-old publicist’s trick of carefully editing lukewarm reviews into raves” via ellipses, and says that may be unlawful too. Where has he been for the past 30 years, Knipfel wonders? “Mr. Blumenthal should find himself some sort of hobby.” (”Billboard: ‘Stunning! … An Amazing Achievement … Seething with Forbidden … Desire!’”, New York Press, June 6 (strong language); Mickey Kaus, Kausfiles “Hit Parade” (left column — scroll to June 8).
June 12 – Bicycles not “motor vehicles”, court rules. Aren’t you relieved? If they had motors, you’d always be buying gasoline for them. (Danielle N. Rodier, “Bicycles Not Motor Vehicles Under Governmental Immunity Statute”, The Legal Intelligencer (Philadelphia), June 7).
June 12 – Record traffic on Overlawyered.com. Last week set another record for pages served at 31,600 (with about 14,000 distinct visitors). We must have gotten some big publicity Thursday (more than 8,000 pages served on that day) but we’re not sure what it was.
June 11 – Blockbuster Video class action. Yet another headline-grabber from the world-famed courts of Beaumont, Tex.: customers will get various free-rental and cents-off coupons with a notional value approaching $450 million and a real value of some minute fraction of that, while class-action plaintiff’s lawyers will take home $9.25 million. The video chain’s sin was, allegedly, to have made too much money from late fees and to have changed its policies without notifying customers. (”Blockbuster settles suits”, AP/CNNfn, June 5; details; William F. Buckley, Jr., “Trial lawyers vs. sanity”, National Review Online, June 8).
June 11 – “Plastic surgery addiction” patient loses suit. In a unanimous ruling, New York’s highest court last week “tossed a lawsuit from a woman addicted to plastic surgery — she had over 50 operations — who claimed her doctor should have referred her to a psychiatrist before using the knife.” A lower court had ruled that the suit could proceed, raising fears that physicians might have to arrange psychiatric pre-screening of patients before many elective operations (see Aug. 15, 2000) (Kenneth Lovett, “Plastic-Surgery Addict Suit Gets Carved Up”, New York Post, June 8).
June 11 – $5,133.47 a cigarette. That’s how much the jury awarded plaintiff Richard Boeken last week when it told Philip Morris to pay him $3 billion for having enabled his smoking habit, according to calculations by reader Nathan Clark by WSJ OpinionJournal “Best of the Web” (June 8). “Based on Boeken’s claim that he smoked two packs a day for 40 years, Clark figured Boeken had smoked 584,000 cigarettes”, which divided into $3 billion “comes to $5,133.47 per cigarette Boeken smoked. Look for a big increase in teen smoking as word gets around the schoolyards that it’s a ticket to untold wealth.” Update Oct. 2, 2004: appeals court orders punitive award cut to a sum not to exceed $50 million.
June 11– End the dairy compact. Sen. Jeffords (I-Vt.) has been a leading defender of the “indefensible boondoggle” by which Northeastern milk prices are kept high, and his party switch makes a perfect opportunity to get rid of the thing (Jonathan Chait, “Spilled milk”, The New Republic, June 11). And Republican electoral victories in states like West Virginia are dearly bought if the quid pro quo for them is that consumers in the rest of the country have to suffer restrictions on steel imports (”Protectionist Bush?” (editorial), Christian Science Monitor, June 11).
May 31 – Fieger’s firecrackers frequently fizzle. Famed lawyer Geoffrey Fieger extracts huge damage awards from Michigan juries in civil cases even more often than he manages to get Dr. Jack Kevorkian off the hook from criminal charges, but he does much less well when the big awards reach higher levels of judicial consideration. “In the last two years, Fieger and his clients have watched as judges, acting on appeal or post-trial motion, erased more than $55 million in jury verdicts,” including $15 million and $13 million verdicts against Detroit-area hospitals and a $30 million verdict, reduced by the judge to $3 million, arising from a Flint highway accident. Opponents say Fieger’s courtroom vilification of opponents and badgering of witnesses often impresses jurors but plays less well in the calmer written medium of an appellate record.
Appeals courts are now considering Fieger cases “totaling an estimated $50 million to $100 million … Among those cases is $25 million awarded in the infamous Jenny Jones talk-show case and $20 million to a woman who was sexually harassed at a Chrysler plant.” (Update Oct. 25-27, 2002: appeals court throws out Jenny Jones verdict. Further update Jul. 24, 2004: state high court throws out Chrysler verdict). Fieger, who was the unsuccessful Democratic challenger to Michigan Gov. John Engler at the last election, charges that the appeals courts are politically biased against him: “It’s a conspiracy to get me”. However, a reporter’s examination of Fieger cases that went up to appeals courts indicates that the partisan or philosophic background of the judges on the panels doesn’t seem to make a marked difference in his likelihood of success (Dawson Bell, “Fieger’s wins lose luster in appeals”, Detroit Free Press, May 29). “Colorful” barely begins to describe Fieger’s past run-ins with the law and with disciplinary authorities; see Dawson Bell, “Fieger’s skeletons won’t stay buried”, Detroit Free Press, August 13, 1998.
May 31 – “Dead teen’s family sues Take our Kids to Work”. Had to happen eventually dept.: in Welland, Ontario, “[t]he family of a teenage girl killed while driving a utility vehicle at a John Deere plant is suing the company, the school board and the organizers of Take Our Kids to Work day.” (Karena Walter, National Post, May 25).
May 31 – Pale Nanny with an ad budget. The Indoor Tanning Association, a salon trade group, is “worried about proposed legislation in Texas that would outlaw indoor tanning for anyone under age 18, require tanning salons to post pictures of different types of skin cancer, and allow dermatologists and anti-tanning activists to make contributions to the Texas Health Department to pay for an anti-tanning advertising campaign.” You didn’t think these sorts of campaigns were going to stop with tobacco, did you? (”Inside Washington — Presenting: This Season’s Latest Tan Lines”, April 14, National Journal, subscribers only).
May 30 – Supreme Court: sure, let judges redefine golf. By a 7-2 vote, the high court rules that the PGA can be forced to change its rules so as to let disabled golfer Casey Martin ride in a cart between holes while other contestants walk. (Yahoo Full Coverage; Christian Science Monitor; PGA Tour v. Martin decision in PDF format — Scalia dissent, which is as usual the good part, begins about two-thirds of the way down). For our take, see Reason, May 1998; disabled-rights sports cases).
May 30 – Microsoft v. Goliath. “The antitrust laws originally aimed to preserve competition as idealized by Adam Smith. Can they now preserve and promote Schumpeter’s ["creative destruction"] competition? The Microsoft case suggests that they cannot. ” (Robert Samuelson, “The Gates of Power”, The New Republic, Apr. 23).
May 30 – Evils of contingent-fee tax collection, cont’d. Another city, this time Meriden, Ct., has gotten in trouble for hiring a private firm to assist in its taxation process on a contingent-fee basis — in this case, the firm conducted property reassessments and got to keep a share of the new tax revenue hauled in by them. A Connecticut judge has now found that this system gave the firm a pointed incentive to inflate supposed property values unjustifiably, that it had done so in the case at hand, and that the incentive scheme, by destroying the impartiality that we expect of public servants, had deprived taxpayers of their rights to due process under both federal and state constitutions. He ordered the city to refund $15.6 million to two utility companies whose holdings had been overassessed in this manner. (Thomas Scheffey, “Connecticut Judge Blasts City’s $15.6 Million Mistake”, Connecticut Law Tribune, May 3). It’s yet another recognition (see Jan. 10, 2001; Dec. 3, 1999) that when governments hire contingent-fee professionals to advise them on whether private parties owe them money and if so how much, due process flies out the window — as has happened routinely in the new tobacco/gun/lead paint class of lawsuits, which operate on precisely this model.
May 29 – Claim: inappropriate object in toothpaste caused heart attack. A Shelton, Ct. man is suing Colgate-Palmolive, claiming he discovered an extremely indelicate object in a six-ounce standup tube of the company’s regular toothpaste and that the resulting stress caused his blood pressure to escalate over a matter of months, leading him to suffer a heart attack a year later. The company said it does not think its production processes would have allowed the offending object to have entered the tube. (”Man sues over condom in toothpaste”, AP/WTNH New Haven, May 25).
May 29 – States lag in curbing junk science. According to one estimate, only about half of state courts presently follow the U.S. Supreme Court’s standard for excluding unreliable scientific evidence from trials (Daubert v. Merrell Dow, 1993). Where states follow a laxer standard, they run the risk of approving verdicts based on strawberry-jam-causes-cancer “junk science”. A new group called the Daubert Council, headed by Charles D. Weller and David B. Graham of Cleveland’s Baker & Hostetler, aims to fix that situation by persuading the laggard states to step up to the federal standard. (Darryl Van Duch, “Group is Pushing ‘Daubert’”, National Law Journal, May 25).
May 29 – Brace for data-disaster suits. Companies with a substantial information technology presence are likely to become the targets of major liability lawsuits in areas such as hacker attacks, computer virus spread, confidentiality breach, and business losses to co-venturers and customers, according to various experts in the field. (Jaikumar Vijayan, “IT security destined for the courtroom”, ComputerWorld, May 21).
May 28 – Holiday special: dispatches from abroad. Today is Memorial Day in the U.S., which we will observe by skipping American news just for today in favor of the news reports that continue to pour in from elsewhere:
* Swan victim Mary Ryan, 71, has lost her $32,600 negligence claim against authorities over an incident in which one of the birds knocked her to the ground in Phoenix Park in central Dublin, Ireland. She testified that she had just fed the swan and was walking away when she heard a great flapping of wings and was knocked down, suffering a broken wrist. “Ryan said park commissioners should have put up signs warning the public about ‘the mischievous propensity and uncertain temperament’” of the birds, but Judge Kevin Haugh ruled that evidence had not established that the park’s swans were menacing in general, although the one in question had concededly been having “a very bad day.” (Reuters/Excite, May 25).
* In Canada, the New Brunswick Court of Appeal has ruled improper the disbarment of Fredericton attorney Michael A.A. Ryan, whom the Law Society had removed from practice after finding that he had lied to clients and falsified work, reports the National Post. To conceal his neglect of cases which had lapsed due to statutes of limitations, “Mr. Ryan gave his clients reports of hearings, motions and discoveries that never occurred, and when pressed for details of a supposedly favourable judgment, forged a decision from the Court of Appeal. The clients were eventually told they had won $20,000 each in damages,” but in the end Ryan had to confess that he had been making it all up. “The lawyer has admitted to a long-standing addiction to drugs and alcohol, and told the court he was depressed during the period of his misconduct because of the breakup of his marriage.” (Jonathon Gatehouse, “Court gives lawyer who lied to clients second chance,” National Post, May 18).
* Authorities in Northumbria, England, have agreed to pay thousands of pounds to Detective Inspector Brian Baker, who blames his nocturnal snoring on excessive inhalation of cannabis (marijuana) dust in the line of police duty. Baker says that his spending four days in a storeroom with the seized plants resulted in nasal congestion, sniffing, dry throat, and impaired sense of smell as well as a snore that led to “marital disharmony”. (Ian Burrell, “Payout for policeman who blamed his snoring on cannabis”, The Independent (U.K.), April 11; Joanna Hale, “Drugs inquiry made detective a snorer”, The Times (U.K.), April 11). And updating an earlier story (see May 22), a woman in Bolton, Lancashire has prevailed in her suit against a stage hypnotist whose presentation caused her to regress to a childlike state and recall memories of abuse; damages were $9,000 (AP/ABC News, May 25).
May 25-27 – “Judge buys shopaholic defense in embezzling”. “A Chicago woman who stole nearly $250,000 from her employer to finance a shopping addiction was spared from prison in a novel ruling Wednesday by a federal judge who found that she bought expensive clothing and jewelry to ’self-medicate’ her depression.” Elizabeth Roach faced a possible 18-month prison term for the embezzlement under federal sentencing guidelines, but U.S. District Judge Matthew Kennelly reduced her sentence, sparing her the big house, in what was evidently “the first time in the country that a federal judge reduced a defendant’s sentence because of an addiction to shopping.” She had bought a $7,000 belt buckle and run credit-card bills up to $500,000. (Matt O’Connor, Chicago Tribune, May 24).
May 25-27 – Columnist-fest. More reasons to go on reading newspapers:
* A New York legislator has introduced a joint custody bill that he thinks would significantly reduce the state’s volume of child custody litigation, but it hasn’t gone anywhere. Leaving aside debates about the other pros and cons of joint custody, one reason it languishes is that it “has been opposed by matrimonial lawyers in the state. ‘They make their living on these divorces,’ said [assemblyman David] Sidikman, a lawyer himself. “… The parents usually start off these cases promising to be adults, but that doesn’t last once the lawyers get involved.” “(John Tierney, “The Big City: A System for Lawyers, Not Children”, New York Times, May 15 (reg)). Bonus: Tierney on the NIMBY-ists who would sue to keep IKEA from building a store in a blighted Brooklyn neighborhood (”Stray Dogs As a Litigant’s Best Friend”, April 13).
* Steve Chapman points out that the recent release of an Oklahoma man long imprisoned for a rape he didn’t commit (see May 9) casts doubt not only on shoddy forensics but also on that convincing-seeming kind of evidence, eyewitness testimony (”Don’t believe what they say they see”, Chicago Tribune, May 13). Bonus: Chapman on the scandal of medical-pot prohibition (”Sickening policy on medical marijuana”, May 17).
* Reparations: “Germans may be paying for the sins of their fathers but asking Americans to stump up for what great-great-great-grandpappy did seems to be rather stretching a point. ” (Graham Stewart, “Why we simply can’t pay compensation for every stain on our history”, The Times (U.K.), March 22).
May 25-27 – “Gone with the Wind” parody case. The legal status of parody as a defense to copyright infringement is still uncertain in many ways, and contrary to a widespread impression there is no legal doctrine allowing extra latitude in copying material from works such as the Margaret Mitchell novel that have become “cultural icons” (Kim Campbell, “Who’s right?”, Christian Science Monitor, May 24; Ken Paulson, “What — me worry? Judge’s suppression of Gone With the Wind parody raises concerns”, Freedom Forum, May 20).
May 24 – “Family awarded $1 billion in lawsuit”. Another great day for trial lawyers under our remarkable system of unlimited punitive damages: a New Orleans jury has voted to make ExxonMobil pay $1 billion to former state district judge Joseph Grefer and his family because an Exxon contractor that leased land from the family for about thirty years left detectable amounts of radioactivity behind from its industrial activities. Exxon “said it offered to clean up the land but the Grefers declined its offers.” The company says the land could be cleaned up for $46,000 and also “claims that less than 1 percent of the land contains radiation levels above naturally occurring levels.” The jury designated $56 million of the fine for cleaning up the land; the total value of the parcel is somewhere between $500,000 (Exxon’s view) and $1.5 million (the owners). (Sandra Barbier, New Orleans Times-Picayune, May 23; Brett Martel, “Jury: ExxonMobil Should Pay $1.06B”, AP/Yahoo, May 22; “Exxon Mobil to Appeal $1 Billion Fine”, Reuters/New York Times, May 23).
May 24 – Humiliation by litigators as turning point in Clinton affair. “It strikes me as relevant that the turning point in the Lewinsky saga was the broadcasting of Clinton’s deposition, an image of an actual human being humiliated for hours on end. It was then that we realized we had gone too far — but look how far down the path we had already gone.” (Andrew Sullivan, TRB from Washington, “Himself”, The New Republic, May 7).
May 24 – Tobacco: angles on Engle. With three cigarette companies having agreed to pay $700 million just to guarantee their right to appeal a Miami jury’s confiscatory $145 billion verdict in Engle v. R.J. Reynolds, other lawyers are piling on, the latest being an alliance of hyperactive class action lawyers Cohen, Milstein, Hausfeld & Toll with O.J. Simpson defense lawyer Johnnie Cochran (”Lawsuit says tobacco industry tried to hook kids”, CNN/AP, May 23; Jay Weaver, “Tobacco firms agree to historic smoker payment”, Miami Herald, May 8; “Tobacco Companies Vow to Fight $145 Billion Verdict”, American Lawyer Media, July 17, 2000; Rick Bragg with Sarah Kershaw, “”Juror Says a ‘Sense of Mission’ Led to Huge Tobacco Damages”, New York Times, July 16, 2000 (reg); “Borrowing power to be considered in tobacco suit”, AP/Seattle Post-Intelligencer, June 1, 2000 (judge ruled that companies’ ability to borrow money could be used as a predicate for quantum of punitive damages)).
May 23 – “Insect lawyer ad creates buzz”. Torys, a large law firm based in Toronto, has caused a stir by running a recruitment ad aimed at student lawyers with pictures of weasels, rats, vultures, scorpions, cockroaches, snakes and piranhas, all under the headline “Lawyers we didn’t hire.” The ad, devised by Ogilvy and Mather, says the firm benefits from a “uniquely pleasant and collegial atmosphere” because it doesn’t hire “bullies, office politicians or toadies”, who presumably go to work for other law firms instead.
However, some defenders of invertebrates and other low-status fauna say it’s unfair to keep comparing them to members of the legal profession. Vultures, for example, “provide a really essential role in terms of removing dead animals and diseases,” says Ontario zoologist Rob Foster. “It’s slander, frankly,” he says, “adding that one exception might be the burbot, a bottom-feeding fish whose common names include ‘the lawyer.’ … ‘Whenever I see a dung beetle portrayed negatively in a commercial, I see red,’ he said yesterday, recalling that in The Far Side comic strip, cartoonist Gary Larson once drew two vermin hurling insults by calling each other ‘lawyer.’” (Tracey Tyler, Toronto Star, Apr. 19). (DURABLE LINK)
May 23 – “Working” for whom? An outfit called the Environmental Working Group has recently taken a much higher profile through its close association with “Trade Secrets”, a trial-lawyer-sourced (and, say its critics, egregiously one-sided) attack on the chemical industry that aired March 26 as a Bill Moyers special on PBS. Spotted around the same time was the following ad which ran on one of the FindLaw email services on behalf of EWG: “Thought the Cigarette Papers Were Big? 50 years of internal Chemical Industry documents including thousands of industry meeting minutes, memos, and letters. All searchable online. Everything you need to build a case at http://www.ewg.org“. Hmmm … isn’t PBS supposed to avoid letting itself be used to promote commercial endeavors, such as litigation? (more on trial lawyer sway among environmental groups)
MORE: Michael Fumento, “Bill Moyers’ Bad Chemistry”, Washington Times, April 13; PBS “TradeSecrets”; Steven Milloy, “Anti-chemical Activists And Their New Clothes”, FoxNews.com, March 30; www.AboutTradeSecrets.org (chemical industry response); ComeClean.org; Ronald Bailey, “Synthetic Chemicals and Bill Moyers”, Reason Online, March 28. The New York Times’s Neil Genzlinger wrote a less than fully enthralled review of the Moyers special (”‘Trade Secrets’: Rendering a Guilty Verdict on Corporate America”, television review, March 26) for which indiscretion abuse was soon raining down on his head from various quarters, including the leftist Nation (”The Times v. Moyers” (editorial), April 16). (DURABLE LINK)
May 22 – From dinner party to court. “I’m never going to invite people around for dinner again,” says Annette Martin of Kingsdown, Wiltshire, England, after being served with a notice of claim for personal injury from dinner guest Margaret Stewart, who says she was hurt when she fell through a glass and steel dining chair in Miss Martin’s home. Martin says that “up to then we had been good friends,” and that Miss Stewart “looked perfectly fine when she walked out the door that evening. … I feel very strongly about the television adverts that encourage this sort of nonsense. I think the Government should intervene before we become like the Americans and sue over anything.” (Richard Savill, “Dinner party ends with a sting in the tail”, Daily Telegraph, May 19). In other U.K. news, a woman from Bolton, Lancashire, is suing stage hypnotist Philip Green, claiming that during one of his performances “she was induced to chase what she believed were fairies around the hall, drink a glass of cider believing it was water and believe she was in love with Mr. Green,” all of which left her depressed and even for a time suicidal, calling up memories of childhood abuse. (”Woman sues stage hypnotist over ‘abuse memories’”, Ananova.com, May 21) (more on hypnotist liability: March 13). UpdateMay 28: she wins case and $9,000 damages.
May 22 – Razorfish, Cisco, IPO suits. In a decision scathingly critical of the “lawyer-driven” nature of securities class action suits, New York federal judge Jed Rakoff rejected a motion by five law firms to install a group of investors as the lead plaintiff in shareholder lawsuits against Razorfish Inc., a Web design and consulting company. The investor group had been “cobbled together” for purposes of getting their lawyers into the driver’s seat, he suggested. “Here, as in many other such cases, most of the counsel who filed the original complaints attempted before filing the instant motions to reach a private agreement as to who would be put forth as lead plaintiff and lead counsel and how fees would be divided among all such counsel.” Rakoff instead installed as lead counsel Milberg Weiss and another firm, which jointly represented the largest investor claiming losses in the action. “Judge Rakoff noted drily in a footnote that numerous complaints were filed within days that essentially copied the original Milberg Weiss complaint verbatim,” and wondered whether the lawyers filing those copycat suits had taken into account the requirements of federal Rule 11. (Bruce Balestier, “Judge Rejects Lawyers’ Choice of Lead Plaintiff in Razorfish Class Actions”, New York Law Journal, May 8).
Observers are closely watching the onslaught of class action suits filed against Cisco Systems since its stock price declined. Stanford securities-law professor Joseph Grundfest, who “helped craft the 1995 reform act and has worked on both plaintiffs-side and defense cases … said he sees the Cisco case as part of a buckshot strategy by plaintiffs’ lawyers. They are suing multiple technology companies with hopes of extracting a large settlement from at least one. ‘They only need a small probability to make it worth their while,’ Grundfest said. ‘How much does it cost to write a complaint?’”. (Renee Deger, “Cisco Inferno”, The Recorder, April 27). Shareholder suits in federal court are headed toward record numbers this year in the wake of the dotcom meltdown (Daniel F. DeLong, “Lawyers Find Profit in Dot-Com Disasters”, Yahoo/ NewsFactor.com, May 14; see also Richard Williamson, “Shareholder Suits Slam High-Tech”, Interactive Week/ZDNet, Dec. 19, 2000).
May 22 – Welcome SmarterTimes readers. Ira Stoll’s daily commentary on the New York Times mentioned us on Sunday (May 20 — scroll to first “Late Again”). And Brill’s Content has now put online its “Best of the Web” roundtable in which we were recommended by federal appeals judge Alex Kozinski (May — scroll about halfway down righthand column).
May 21– Six-hour police standoff no grounds for loss of job, says employee. “A formerly suicidal insurance executive who lost his job after a six-hour standoff with police at Park Meadows mall [in Denver] is suing his former employer for discrimination under federal and state laws protecting the mentally disabled. The 43-year-old plaintiff, Richard M. Young, alleges he was wrongfully terminated from Ohio Casualty Insurance Co. after the company interpreted a suicide note he wrote to be his letter of resignation. … The civil complaint says Young was on emergency medical leave for an emotional breakdown May 29, 2000, when he drove to the shopping center’s parking garage and was spotted on mall security cameras with a revolver. … Douglas County sheriff’s deputies finally coaxed him into surrendering”. His suit seeks back pay, front pay and punitive damages. (John Accola, “Man who was suicidal sues ex-employer for discrimination”, Rocky Mountain News, May 18). (DURABLE LINK)
May 21 – “Anonymity takes a D.C. hit”. If Rep. Felix Grucci has his way, you won’t be able to duck into a library while on the road to check your Hotmail; the New York Republican has “introduced legislation requiring schools and libraries receiving federal funds to block access from their computers to anonymous Web browsing or e-mail services. … Grucci says it’s necessary to thwart the usual suspects, terrorists and child molesters.” (Declan McCullagh, Wired News, May 19). And did you know that it would be unlawful to put out this website in Italy without registering with the government and paying a fee? New regulations in that country are extending to web publishers an appalling-enough-already set of rules that require print journalists to register with the government. Says the head of the Italian journalists’ union approvingly: “Thus ends, at least in Italy, the absurd anarchy that permits anyone to publish online without standards and without restrictions, and guarantees to the consumer minimum standards of quality in all information content, for the first time including electronic media.” (Declan McCullagh’s politechbot, “Italy reportedly requires news sites to register, pay fees”, April 11; “More on Italy requiring news sites to register, pay fees”, April 12) (via Virginia Postrel’s “The Scene”, posted there May 6). (DURABLE LINK)
May 21 – “Patients’ rights” roundup. Well, duh: “Doctors supporting patients’ rights bills have suddenly become alarmed that some of the proposals could boomerang and expose them to new lawsuits.” (Robert Pear, “Doctors Fear Consequences of Proposals on Liability”, New York Times, May 6 (reg)). “Consumers do not consider the right to sue health insurers over coverage issues a top healthcare priority, according to new survey data released by the Blue Cross and Blue Shield Association (BCBSA),” which is of course an interested party in the matter; a right to sue “finished last among 21 major health issues that consumers were asked to rank.” (Karen Pallarito, “Poll: Right to sue HMOs low priority for consumers,” Reuters Health, April 26 (text) (survey data — PDF)). And if liability is to be expanded at all, Congress should consider incorporating into the scheme the “early offers” idea developed by University of Virginia law professor Jeffrey O’Connell, which is aimed at providing incentives for insurers to make, and claimants to accept, reasonable settlements at an early stage in the dispute (John Hoff, “A Better Patients’ Bill of Rights,” National Center for Policy Analysis Brief Analysis No. 355, April 19). (DURABLE LINK)
MORE: Greg Scandlen, “Legislative Malpractice: Misdiagnosing Patients’ Rights”, Cato Briefing Papers, April 7, 2000 (executive summary) (full paper — PDF); Gregg Easterbrook, “Managing Fine”, The New Republic, March 20, 2000.
April 10 – “The love children of Flight 261″. “Families of four men killed in the crash of Alaska Airlines Flight 261 en route from Puerto Vallarta, Mexico, claim they are victims of a cruel scam. Attempting to cash in on multimillion-dollar wrongful-death lawsuits, claimants in Guatemala said the men had all secretly fathered children in that country. The families say the lawyers representing the phony heirs knew, or should have known, their clients’ claims were fraudulent.” We covered this story (via the San Francisco Chronicle and Aero News Network) back on Nov. 29, but this new piece adds some telling details: for example, two of the (genuine) survivor families say they had to spend $200,000 to fend off the supposed Guatemalan heirs, and they wonder why the American lawyers who represented those claimants shouldn’t be held financially accountable for the harm their lawyering inflicted, especially since two of these lawyers — Robert Parks and Edgar Miller of Coral Gables, Fla., — just happen to have represented all four sets of supposed secret Guatemalan children to file claims in connection with Flight 261 (Bob Van Voris, National Law Journal, Apr. 9). (& see Aug. 3).
April 10 – Canada’s secret legal aid. In the United States, the Legal Services Corporation subsidizes litigation efforts meant to push the law in a “good” or “progressive” ideological direction, and has accordingly long met with criticism from those of us who are not convinced that the proposed changes in the law are always so great and wonder why everyone’s tax dollars should be handed over to one side of these debates to pursue essentially ideological court struggles. Our neighbor to the north has hit on a handy way to keep its aid program for “law-reform” litigation from being as controversial as ours: it simply refuses to disclose the recipient list (Scott Edmunds, “Recipients of Ottawa’s legal aid kept secret”, Canadian Press/National Post, Feb. 26).
April 9 – By reader acclaim: “Clowns told to get custard pie insurance”. Clowns in Britain are “terrified to the tips of their red noses” that unappreciative patrons will sue them over injuries from thrown pies and water-squirting, or more hazardous acts such as those involving fire and unicycles. Ian James, who heads the performers’ trade union, says that while none of his colleagues in the United Kingdom have yet been sued, “we are worried now that British audiences may be becoming like American, ready to sue anyone for anything.” (Alan Hamilton, “Stop clowning around, clowns told”, The Times (UK), April 6; Reuters/Yahoo, Apr. 6).
April 9 – Plastic cup blamed for child’s autism. A “personal injury lawyer is threatening a lawsuit alleging a plastic drinking cup caused a child’s autism … Dallas-based lawyer Brian R. Arnold wrote Playtex Products, Inc. in January alleging that a toddler became seriously ill and, eventually, ‘began to exhibit autistic behavior,’ after drinking from a plastic spill-proof cup made by Playtex. Arnold claims the spill-proof cup was designed in a defective manner that allowed bacteria and mold to build in the cup. Alleging the bacteria caused the child’s condition, Arnold accused Playtex of negligence in distributing a defective cup and demanded $11 million in damages.” Although the causes of autism remain unknown, “there is a network of ‘experts’ who are ready, willing and able to support such a wild claim”. (Steven Milloy, “Quack Attack! The Case of the Dangerous Sippy Cup”, Fox News, Apr. 6).
April 6-8 – “Court upholds workers compensation for drunk, injured worker”. “A man who got drunk on a business trip and suffered severe frostbite after passing out in very low temperatures should be entitled to worker’s compensation, the Wisconsin Supreme Court ruled Wednesday. The court in a 4-3 decision upheld the ruling of the Wisconsin Industry Review Commission, which said William Larsen was in northern Wisconsin expressly for work, but it also reduced Larsen’s compensation by 15 percent, since he was injured while he was intoxicated.” (”Court upholds workers compensation for drunk, injured worker”, AP/Milwaukee Journal Sentinel, Apr. 4; Jessica McBride, “Worker prevails in frostbite case”, Apr. 4).
April 6-8 – Suing “The Sopranos”. “An Italian-American lawyers group says it will sue the makers of HBO’s ‘The Sopranos’ series today for offending the ‘dignity’ of Italian-Americans by implying most of them are mobsters. … [citing] Section 20 of Illinois’ Constitution [which] reads in part: ‘Communications that portray criminality, depravity or lack of virtue in . . . a group of persons by reason of or by reference to religious, racial, ethnic, national or religious affiliation are condemned.”" (Abdon M. Pallasch, “Stung by ‘Sopranos’”, Chicago Sun-Times, April 5; Matt Zoller Seitz, “Advocacy group claims series runs afoul of the law”, Newark Star-Ledger, Apr. 5) (Update Sept. 21-23: judge dismisses; Jul. 12-14, 2002: case dropped after appellate court upholds dismissal).
April 6-8 – Target: Alka-Seltzer. Until November, phenylpropanolamine (PPA) “was a ubiquitous ingredient in over-the-counter cold remedies and diet aids found in practically everyone’s medicine cabinet,” including Alka-Seltzer, Contac, Tavist-D, Robitussin, Acutrim and many more. Now it’s been withdrawn following a study suggesting that its use may correlate with a slightly elevated (though still very small) risk of stroke. Trial lawyers, who expect thousands of suits to result, are vigorously advertising for clients who suffered strokes and had previously used common over-the-counter remedies containing PPA — and if it isn’t easy to sort out the genuine propter hocs from a haystack of specious post hocs, well, that’s what we have jury trials for, right? (Bob Van Voris, “Plaintiffs Rev Up New PPA Drug Lawsuits”, National Law Journal, March 19; FDA information page; list of OTC products (Aphanet)).
April 5 – Selling out the class? “Angry plaintiffs’ lawyers have accused other members of the plaintiffs’ bar of colluding with H&R Block and Beneficial National Bank to settle litigation allegedly worth more than $1 billion for just $25 million.” The underlying litigation charged that Block violated federal truth-in-lending laws and state laws by not adequately disclosing to its customers that it got a referral fee and other financial benefits when they took out “Refund Anticipation Loans”. Now a group of plaintiffs’ lawyers allege that with the litigation reaching a dangerous stage in other courts, Block negotiated a quick and confidential settlement of the class claims with a group of Chicago plaintiffs’ lawyers who cut the deal without conducting discovery or consulting with experts. The Chicago lawyers heatedly deny that the settlement was collusive; a federal district judge found in their favor, rejecting the objectors’ arguments and approving the settlement, but the objectors have appealed to the Seventh Circuit. (Elizabeth Amon, “Class Action ‘Collusion’ Claimed in H&R Block Appeal”, National Law Journal, Mar. 26) (see also Dec. 3).
April 5 – “Lungren now a paid advocate for his former foes”. Former California Attorney General Dan Lungren since leaving office has been “doing something that has surprised detractors and admirers alike. He’s being paid to help his longtime political adversaries — a group of plaintiffs’ attorneys. Lungren, a Republican, testified late last month that he has earned $204,000 in 11 months as an expert witness and consultant to the Castano group of 60 law firms. The firms are trying to win billions of dollars in lawyer fees for their role in suing tobacco companies.” At the time, Lungren opposed having the state hire private tort firms to sue — “We are simply not selling tickets to a lottery for law firms,” he said in 1997 — but now he testifies that the lawyers’ efforts were vital. “It’s further proof that the tobacco fee awards are so astronomical that there’s enough money for everybody, even Lungren,” said John Sullivan, president of the Civil Justice Association of California, which criticizes litigation excesses. (Bill Ainsworth, San Diego Union-Tribune, March 14 — search on “Castano”).
April 3-4 – Patenting the web? A small Chicago firm named TechSearch holds a patent which it believes entitles it to exclusive rights over some of the basic image-serving processes underlying the World Wide Web, which means that it considers all the rest of us as infringing on its property by publishing sites like, well, like this one. It manufactures nothing and has no lab; instead, its business plan consists of demanding money from companies to “license” their web use, and it has extracted payments in the $30,000-$80,000 range from several big firms including Walgreen and Sara Lee. It has also sued Intel Corporation for libel and slander because an Intel spokesman told the Wall Street Journal that it “exists solely for the purpose of purchasing patents and extorting funds from another company.” (Ian Mount, “Would You Buy a Patent License From This Man?”, eCompanyNow, April). Critics “fault the PTO [Patent and Trademark Office] for approving ‘inventions’ that are obvious, trivial or simply representative of the Internet version of well-known business practices”. (William C. Smith, “Patent this!”, ABA Journal, March). The report that Bill Gates is staking an intellectual property claim to the numbers “0″ and “1″ is, however, a parody (Microsoft Patents Ones, Zeros”, The Onion). Not a parody: the St. Louis Business Journal purports to sell, for $5 a throw, the right to link to the articles it has made publicly accessible on the Web (iCopyright clearance form).
April 3-4 – Asbestos claims bankrupt W. R. Grace. Another historic name in American industry goes the way of Owens Corning, Armstrong World Industries, GAF and many others. According to the Washington Post, “Grace’s asbestos liabilities largely stem from commercially purchased asbestos added to some of its fire protection products. The company said it stopped adding any asbestos to its products in 1973. Grace to date has received more than 325,000 asbestos personal injury claims and has paid $1.9 billion to manage and resolve asbestos litigation. In 2000, asbestos claims against Grace increased 81 percent from 1999 with even higher increases for the first three months of 2001.” According to Grace and other defendants, most new claims entering the system are filed by persons who have no illness or impairment but seek financial compensation simply for having been exposed to the mineral. “We believe that the state court system for dealing with asbestos claims is broken, and that Grace cannot effectively defend itself against unmeritorious claims,” said company president Paul J. Norris.
As lawyers redirect claims against remaining defendants, each new bankruptcy increases pressure on those still solvent. Leading wallboard maker USG, which says it stopped making products containing asbestos 25 years ago, took an $850 million charge in January to cope with spiraling liability. Three years ago Sealed Air Corporation, maker of bubble wrap, bought a W.R. Grace subsidiary that made plastic packaging; although that subsidiary had never been involved with asbestos, lawyers are now going after Sealed Air on the theory that all of Grace’s liabilities should convey to it along with the business it bought. “To an indeterminate degree, the threat of lawsuits could be driving the widening of spreads between corporate and government bonds, says John Puchalla, a Moody’s economist.” The rising capital premium needed to overcome aversion to legal risk in turn raises the cost of doing business in the United States, the Economist of London points out, in a recent survey of rising American litigation costs (”The people v. America Inc.”, The Economist, March 22).
SOURCES: Sabrina Jones, “W.R. Grace files for bankruptcy”, Washington Post, April 2; “Asbestos Litigation Costs Burden Grace”, March 19; “Lawsuits Cloud Grace’s Future”, March 7; “Alarm Sounded Over Asbestos in Insulation”, Aug. 15, 2000; Tom Shean, “USG Corp. takes $1 billion hit from asbestos suits”, Norfolk Virginian-Pilot, Jan. 12. Among the many other companies facing widening claims are auto parts maker Dana Corp. and building materials maker Georgia-Pacific.
April 3-4 – Trademark litigation hall of fame. “The Detroit-based Love Your Neighbor Corp. has sued a charity, Love Thy Neighbor Fund Inc. of Fort Lauderdale, Fla., for trademark infringement. … Among the allegations is the complaint that Love Thy Neighbor caused Love Your Neighbor to suffer ‘lost sales and profits it would have made but for these wrongful acts.’ At least 40 U.S. organizations use ‘love thy neighbor’ in their names.” (National Law Journal, via Progressive Review, April 2). Update: June 20 (lawyer writes menacing letter to activist who criticized case)
April 3-4 – “State running background checks on new parents”. Bound to happen dept.: “A new state program intended to protect newborn babies runs background checks on their parents to determine whether they have a history of child abuse that resulted in termination of their parental rights.” “The whole idea here is prevention,” said an official with the state’s Family Independence Agency, which certainly boasts an Orwellian name. “We want to identify those parents who have been abusive in the past and try to head off any possible incidents of future abuse.” (AP/Detroit Free Press, March 23).
April 2 – Lawyers (and docs) block cleanup of Gotham crash fraud. New York’s wide-open climate of accident fraud (more) results in some of the highest car insurance rates in the country. But most ideas for doing something about it, such as stiffening penalties for fraud ringleaders and requiring timely notice of claims to automobile insurers so they can better investigate dubious allegations, face likely defeat in the state Assembly in Albany, where trial lawyers are leading donors to the Democratic majority. Nor does it help that organized doctors join with lawyers in resisting attempts to regulate the running up of hugely inflated bills for post-accident therapies, which are then foisted on auto insurers. (Steven Malanga (Manhattan Institute), “Albany’s War on Drivers”, New York Post, March 29).
April 2 – Priest can sue church over circumstances of suspension. A Massachusetts appeals court has reinstated several claims in a lawsuit by a former priest who “charged he was slandered when his diocese made public an alleged extramarital sexual relationship and subsequent suspension.” The Rev. James Hiles had sued the state’s Episcopal diocese after it suspended him following charges of sexual misconduct; a lower court judge threw out much of his suit, citing a longstanding doctrine by which courts are supposed to refrain from interfering in church administration. A state appeals court, while agreeing that Hiles could not sue over his removal as such, reinstated his action against church officials for allegedly conspiring to vilify him, Hiles’s attorney having argued that defamation is a “secular tort” which courts should feel at liberty to address even in a context of church administration. The case now goes back to the lower court. (Denise Lavoie, “Court says case not just a church matter”, AP/San Francisco Chronicle (SFGate.com), Mar. 28; Michael Paulson, “A Brockton ex-rector wins part of suit against diocese”, Boston Globe, Mar. 29).
October 10 – Hot pickle suit. Veronica Martin of Knoxville, Tenn. has sued a local McDonald’s restaurant, alleging that last October it sold her a hamburger containing an overly hot pickle that dropped onto her chin, burning it so badly as to leave a scar. She’s asking $110,000 for medical bills, lost wages, physical and mental suffering, while her husband Darrin says he deserves $15,000 for being deprived of her services and consortium. The complaint was filed by attorney Amelia G. Crotwell, of a Knoxville law firm coincidentally known as McDonald, Levy & Taylor. (Randy Kenner, “Couple sue McDonald’s over spilled ‘hot’ pickle”, Knoxville News-Sentinel, Oct. 7; “Couple Sues Over Hot Pickle Burn”, AP/Yahoo, Oct. 7). (case settled: see April 16, 2001)
October 10 – “Gunshot wounds down almost 40 percent”. The steep decline took place between the years of 1993 and 1997, well before the unleashing of mass litigation against gunmakers by way of big-city lawsuits (AP/USA Today, Oct. 8). And despite attempts to redefine private ownership of guns as some sort of out-of-control public health epidemic, “the number of fatal gun accidents is at its lowest level since 1903, when statistics started being kept.” (Dave Kopel, “An Army of Gun Lies”, National Review, Apr. 17). The Colorado-based Independence Institute, of which Kopel is research director, maintains a Second Amendment/criminal justice page which includes a section on gun lawsuits.
October 10 – Spread of mold law. Injury and property damage claims arising from the growth of mold in buildings were “virtually unheard of a few years ago” but are now among the “hottest areas” in construction defect and toxic tort law, reports Lawyers Weekly USA. “I view these mold claims as similar to asbestos 30 years ago,” Los Angeles lawyer Alexander Robertson told the Boston-based newspaper. “Mold is everywhere,” another lawyer says. “There are no specific government guidelines and not a whole lot of medical information on it. It’s ripe for lawyers to get into and expand it.” Most commonly found when water gets into structures, mold has been blamed for a wide variety of health woes including “respiratory problems, skin rashes, headaches, lung disease, cognitive memory loss and brain damage, common everyday symptoms that could be caused by other factors. That’s where lawyers and expert witnesses come in.” (”Toxic mold a growing legal issue”, UPI/ENN, Oct. 6) (via Junk Science).
October 10 – Updates. Following up on stories covered earlier in this space:
* Amid “tense confrontations”, attempts to disrupt and block the march, and the arrest of 147 protesters, Denver’s Columbus Day parade (see Oct. 3) went on without actual bloodshed: Rocky Mountain News, Denver Post and New York Post coverage, and National Review commentary.
* At the time of our June 12 commentary, hyperactive Connecticut attorney general Richard Blumenthal was up for a Second Circuit federal judgeship; now, the window of opportunity for confirmation having slammed down on Clinton nominees, he’s angling for the Senate seat that Dems hope Joe Lieberman will soon vacate. David Plotz in Slate profiles the ambitious pol as state AG, “always trolling for power and press”. (Sept. 15).
* In the race-bias case filed by 21 workers at a northern California Wonder Bread bakery (July 10, Aug. 4), a judge has reduced the jury’s punitive damage award from $121 million to $24 million (Dennis J. Opatrny, “Dough Sliced in Wonder Bread Case as Punitives Cut by $100 Million”, The Recorder/CalLaw, Oct. 9).
* An English instructor at the City College of San Francisco has dropped his suit against the proprietor of a “course critique” Web site that posts anonymous critiques of teachers (see Nov. 15, 1999). Daniel Curzon-Brown agreed to drop his defamation suit over comments posted about him at the site and pay $10,000 in attorneys’ fees to the American Civil Liberties Union, which had represented the proprietor of the website, Teacherreview.com. An ACLU lawyer hails the outcome as a victory for free speech on the Web. (Lisa Fernandez, “Instructor at City College settles suit on Web critiques”, San Jose Mercury News, Oct. 3).
October 6-9 – Owens Corning bankrupt. The building materials giant, known for its Pink Panther fiberglass insulation mascot, has filed for Chapter 11 bankruptcy protection, thus becoming one of the biggest of the 25+ companies to be bankrupted so far by the ongoing litigation over injuries attributed to asbestos. Between 1952 and 1972 it sold a pipe insulation product trade-named Kaylo containing the mineral, which brought it total revenues of $135 million over that period; since then it’s paid or committed to pay $5 billion in resulting injury claims, with billions more still looming ahead (Oct. 5: CNNfn; AP; Reuters; company site). Over the years, Owens kept coming back to set aside one more supposedly final reserve to cover its remaining lawsuit exposure, but was proved wrong each time as claims accumulated (representative sunny-side-up profile: Thomas Stewart, “Owens Corning: Back from the Dead”, Fortune, May 26, 1997). In late 1998 it agreed to pay $1.2 billion to settle what were billed as 90 percent of the claims then in its pipeline, but that pipeline soon filled up again as lawyers filed new suits (”Owens Corning settles suits”, CNNfn, Dec. 15, 1998). Regarding the irrationality of the current asbestos litigation system as a way to compensate injured workers, its high overhead and delay, the capriciousness of its outcomes, and its burdensomeness to the thousands of businesses that by now have been pulled in as defendants, see the testimony of several witnesses at the House Judiciary Committee hearing held July 1, 1999, in particular Harvard prof Christopher Edley, former HHS secretary Louis Sullivan, and GAF’s Samuel Heyman; regarding the quality of many of the claims, the means by which many were recruited, and the techniques used to maximize the number of defendants named in each, see our “Thanks for the Memories”, Reason, June 1998.
Owens Corning at various times acquired a reputation as the asbestos defendant that would try to meet the plaintiff’s lawyers halfway rather than fight them ditch by ditch. It opposed last year’s proposal for a legislated federal system of asbestos compensation, saying that it placed more confidence in the arrangements it was negotiating with trial lawyers to resolve claims (Owens testimony and attachment). This testimony was delightedly seized on by the bill’s opponents (dissent by twelve Democratic members, see text at note 8; note the striking similarity in the dissent’s overall arguments to those in earlier ATLA testimony). Earlier, the company had even gone so far as to fund discovery by trial lawyers aimed at uncovering other asbestos defendants for them to sue in hopes of taking some of the pressure off itself, according to Michael Orey’s Assuming the Risk: The Mavericks, The Lawyers and the Whistle-Blowers Who Beat Big Tobacco (Little, Brown, 1999, p. 255). In the end, these methods seemed to work no better in saving it from ruin than the ditch by ditch style of defense worked for others.
Iin their dissenting opinion, the twelve Democratic House members also wrote as follows: “We also find little evidence to support the proponents’ claim that the legislation is needed because we will otherwise face a growing stream of bankruptcies by defendant companies. …Our review of the specific liability statements by publicly traded asbestos defendants confirms that the principal remaining asbestos defendants are not facing any significant threat of bankruptcy.” They name, as particular examples of companies for which there is no such threat, W.R. Grace and Owens Corning. “The situation is much the same with other significant asbestos defendants – U.S. Gypsum, Federal Mogul, Armstrong World Industries, and Pfizer (parent company of Quigley) all have indicated there is little likelihood that asbestos liability could lead to bankruptcy.” (see text at notes 10-15). Pfizer aside, most of these stocks were hit Thursday on Wall Street with losses of 20 to 35 percent of their value, and many have lost 75 percent or more of their value over the past year (Jonathan Stempel, “Owens Corning Woes Hit Other Firms”, Yahoo/Reuters, Oct. 5). It would be remiss of us not to name the twelve Judiciary Democrats responsible for this peer into a decidedly clouded financial crystal ball: they are John Conyers, Jr. (Mich.), Howard L. Berman (Calif.), Rick Boucher (Va.), Robert C. Scott (Va.), Melvin L. Watt (N.C.), Zoe Lofgren (Calif.), Sheila Jackson Lee (Texas), Maxine Waters (Calif.), William D. Delahunt (Mass.), Steven R. Rothman (N.J.), Tammy Baldwin (Wisc.), and Anthony D. Weiner (New York). (DURABLE LINK)
October 6-9 – Bioethicist as defendant. Arthur Caplan of the University of Pennsylvania, perhaps the nation’s most quoted medical ethicist, is now also apparently the first to face a lawsuit over his advice. “The father of Jesse Gelsinger, an 18-year-old from Arizona who died a year ago during experimental therapy for his inborn metabolic disorder, named Caplan in a lawsuit against several Penn doctors and two hospitals,” saying he should not have advised researchers to use full-grown research subjects on ethical grounds (because they could give knowing consent), as opposed to infants, in their experimental therapy. Some say that for practitioners to start getting sued represents a sign that bioethics has finally made it as a discipline. (Arthur Allen, “Bioethics comes of age”, Salon, Sept. 28).
October 6-9 – Car dealers vs. online competition. The Internet could make car buying a lot cheaper and easier; unfortunately, existing dealers have a strong lobby in state capitals and have been working hard to block online competition (Solveig Singleton, “Will the Net Turn Car Dealers Into Dinosaurs?”, Cato Briefing Papers #58, July 25 (study in PDF format); James Glassman, “Car Dealers Declare War on the New Economy”, TechCentralStation/ Reason Online, April 3; Murray Weidenbaum, “Auto dealers quash Internet competition”, Christian Science Monitor, Aug. 17; Scott Woolley, “A car dealer by any other name”, Forbes, Nov. 29, 1999).
October 6-9 – Blue-ribbon excuses. In Bucks County, Pa., Samuel Feldman has been convicted of mutilating baked goods in stores over a two-year period; merchants complained of thousands of dollars of losses including 3,087 loaves of sliced bread, 175 bags of bagels, and 227 bags of potato dinner rolls. An Archway distributor said that after the defendant visited shelves of packaged cookies, each was found to have a thumb-poke through its jelly center. Feldman’s wife Sharon told the jury that the couple are “picky shoppers” and inspect products carefully: “Freshness is important.” And his attorney, Ellis Klein, “asked the jury to be tolerant of different styles of bread selection. ‘Not everybody just takes a loaf and puts in their cart.’” (Oshrat Carmiel, “Judge clamps down on bread squisher”, Philadelphia Inquirer, Sept. 22) (see update Nov. 30).
Meanwhile, in West Palm Beach, Fla., after being found guilty of bribery, former criminal defense lawyer Philip G. Butler “decided he had done a bad job of defending himself. So Butler appealed his felony conviction, arguing that he failed to tell himself about the danger of waiving competent counsel.” An appeals court wasn’t buying. (Stephen Van Drake, A Fool for a Client”, Miami Daily Business Review, Sept. 8).
October 6-9 – “Money to burn”. American Lawyer profile of Charleston, S.C.’s Ness, Motley, Loadholt, Richardson & Poole talks about some of the ways the firm’s trial lawyers are handling their enormous income from the state tobacco settlement (156-foot yacht, new office building, hanging out with Hillary Clinton and Al Gore a lot) but doesn’t get into the question of what their aggregate take from the tobacco caper will be — elsewhere it’s been reported to be in the billions, with a “b”. (Alison Frankel, American Lawyer, Sept. 27).
October 6-9 – “Attorneys general take on Mexican food industry”. A parody we missed earlier, appearing in the online Irk Magazine (March 24). As always with these things, do as we do and keep repeating to yourself: it’s just a parody … it’s just a parody … it’s just a parody.
October 5 – For Philly, gun lawsuits just the beginning. Philadelphia’s city solicitor, Kenneth I. Trujillo, is forming a new “affirmative-litigation unit” within his department to file lawsuits against national and local businesses and recover (he hopes) millions of dollars for the city, teaming up with private lawyers who will work on contingency. “He said he hoped the city’s pending lawsuit against gun manufacturers would prove to be just the beginning. ‘It’s really about righting a wrong,’ Trujillo said about the cases he plans to pursue. ‘Not only do they have a public good, but they’re rewarding in other ways. They’re rewarding financially.’” While in private practice, Trujillo founded a firm that specialized in filing class-action suits. He declines to discuss possible targets, but other cities and states have sued lead paint and pigment makers, and San Francisco, which pioneered the idea of a municipality-as-plaintiff strike force, has gone after banks and other financial companies. (Jacqueline Soteropoulos, “City solicitor banks on lawsuits”, Philadelphia Inquirer, Sept. 26). (also see Oct. 13-15)
October 5 – New feature on Overlawyered.com: letters page. We get a lot of mail from readers and have thus far been able to fit only a very few highlights from it onto our front page. This new separate page series should give us a chance to publish a wider selection without interrupting the flow of main items. We start with two letters, from PrairieLaw columnist David Giacalone and HALT counsel Thomas Gordon, reacting to reader David Rubin’s criticism of small claims court earlier this week.
October 5 – Scarier than they bargained for. When lawyers’ promotional efforts go wrong: California law firm Quinn Emanuel Urquhart Oliver & Hedge, to call attention to its new San Francisco office, sent hundreds of potential clients brown cardboard boxes filled with realistic-looking grenades, along with a promotional note advising businesses to “arm” themselves against legal dangers. Unfortunately, two of the recipients thought the devices were real and called the bomb squad (Gail Diane Cox, “Law Firm’s Explosive Ad Campaign Draws Critics, Attention”, CalLaw/The Recorder, Sept. 22).
October 5 – Judge tells EEOC to pay employer’s fees. “Calling it ‘one of the most unjustifiable lawsuits’ he ever presided over, U.S. District Judge Robert Cleland in Bay City, Mich., ordered the Equal Employment Opportunity Commission to pay a Burger King owner more than $58,000 in his legal costs fighting discrimination charges. The judge also ordered five EEOC lawyers to present the commission with his findings that they mishandled the case,” brought against E.J. Sacco Inc. (Winston Wood, “Work Week”, Wall Street Journal/Career Journal, Aug. 8 (next to last item)).
October 5 – Sidewalk toilets nixed again. Boston is the latest city whose plans to become more Paris-like have run into trouble, as its planned $250,000 outdoor commodes fail to comply with handicap-access laws. (Steven Wilmsen, “State approval denied for city’s new ’street furniture’”, Boston Globe, Sept. 26).
October 4 – Presidential debate. Vice President Al Gore: “I cast my lot with the people even when it means that you have to stand up to some powerful interests who are trying to turn the policies and the laws to their advantage.” He mentions HMOs, insurance, drug and oil companies, but omits an interest group that’s backed him with great enthusiasm over the years, trial lawyers. “I’ve been standing up to big Hollywood, big trial lawyers,” responds Texas Gov. George W. Bush. And later: “I think that people need to be held responsible for the actions they take in life.” (CNN transcript; scroll 3/4 and 7/8 of way down)
October 4 – Aviation: John Denver crash. Survivors of singer John Denver, who was killed three years ago in the crash of a do-it-yourself amateur airplane he was flying off the Pacific coast, have obtained a settlement in their lawsuit against Gould Electronics Inc. and Aircraft Spruce & Specialty Co., which made and sold a fuel valve on the craft. An investigation by the National Transportation Safety Board concluded that the accident happened because Denver knowingly took off with low fuel in a plane with which he was unfamiliar, the fuel lever was hard to reach, and when he reached around to grab it he lost control of the aircraft. A commentary on AvWeb describes the evidence in the manufacturers’ defense as “seemingly overwhelming”: “Everyone involved in general aviation knows that out-of-control lawsuits are the reason a flange on a car costs a quarter and the same flange for a Mooney will run you 150 bucks, and it only seems to be getting worse. …Perhaps in addition to asking the presidential candidates their stands on user fees, the aviation industry should demand to know their positions on tort reform.” The commentary goes on to discuss lawsuits filed over the Air France Concorde crash and over Northwest Airlines’ New Year’s Day 1999 customer delay fiasco at the snowbound Detroit airport (”John Denver’s relatives settle lawsuit against manufacturers”, AP/FindLaw, Sept. 29; “John Denver’s Heirs Settle Lawsuit Over His Death”, Reuters/ Yahoo, Sept. 30; “Run Out Of Fuel? Stuck In A Storm? File A Lawsuit And Win!”, AvWeb, Oct. 2; “Close-Up: The John Denver Crash”, AvWeb, May 1999; NTSB synopsis; rec.aviation.homebuilt (Usenet discussions — check recent thread on Denver crash)).
October 4 – School now says hugs not forbidden. Euless Junior High School, in suburban Dallas, now denies that it punished eighth-graders Le’Von Daugherty, 15, and Heather Culps, 14, for simply hugging each other in the hallway, as was widely reported last week. Instead it says the girls had been repeatedly insubordinate and that hugging as such is not against the rules, only “overfamiliarity”. However, last week Knight-Ridder reported that the school’s principal, David Robbins, “says such physical contact is inappropriate in school because it could lead to other things. Robbins said he stands by his rule that no students should hug in school. … [It] increases the chances of inappropriate touching and creates peer pressure for students who may not want that type of contact.” (”Texas school defends punishing girls for hug”, Reuters/ FindLaw, Oct. 2; Gina Augustini Best, “Texas junior high punishes girls for hugging in hallway”, Knight-Ridder/Miami Herald, Oct. 1; see also March 2 (Halifax, N.S.)). And in suburban Atlanta, school officials have explained why 11-year-old Ashley Smith will not be allowed to appeal her two-week suspension over the 10-inch novelty chain that hangs from her Tweety bird wallet (see Sept. 29): “They noted that students are routinely shown samples of items banned under the weapons policy at the beginning of the school year. ‘These items have been used in the past as weapons. A chain like the one in question can have any number of devices attached to it and it becomes a very dangerous weapon,’ said Jay Dillon, communications director for Cobb County school district.” (”Feathers fly over school suspension”, Reuters/ Excite, Sept. 29).
October 4 – Trial lawyers’ clout in Albany. “Albany insiders say David Dudley — a former counsel to Senate Majority Leader Joseph Bruno who now lobbies for the state trial lawyers association — was a key figure behind Senate passage of a bill to lift caps on fees lawyers earn in medical malpractice cases,” Crain’s New York Business reported this summer. The measure, long sought by trial lawyers, “had the support of the Democrat-run Assembly, but could never win backing from Mr. Bruno and the Republican-controlled Senate. Insiders believe Mr. Dudley reminded Senate Republicans that failure to give the trial lawyers at least one victory this election year could prompt the lawyers to fund Democratic opponents.” Mr. Dudley would not comment; since passing both houses, the bill has been sent to the desk of Republican Governor George Pataki. (”Bruno ex-counsel key to lawyer bill”, Crain’s New York Business, July 24, fee-based archives).
October 4 – New visitor record on Overlawyered.com. We set another weekly and daily traffic record last week. Thanks for your support!
October 3 – U.S. Department of Justice vs. Columbus Day? The Italian-American organizers of Denver’s Columbus Day parade are in hot water because they’d like the event to include some reference to the man for whom the holiday is named. Local American Indian and Hispanic groups have protested honoring someone they see as symbolizing European settlement, native displacement, slavery and even genocide; heeding their concerns, the city and federal governments pressed organizers to accept permit conditions under which the parade would avoid mentioning the explorer, according to attorney Simon Mole of the American Civil Liberties Union. “With the help of the U.S. Justice Department, Italian-Americans and American Indians reached agreement [earlier in September] to hold a ‘March for Italian Pride’ on Oct. 7 that would exclude any references to Christopher Columbus,” reports the Denver Post, but the agreement fell through after the organizers decided they had been giving away their First Amendment rights under government pressure. Menacingly, however, “LeRoy Lemos, who represents a group called Poder, a Hispanic community rebuilding program, said references to Columbus at the parade will not be tolerated. ‘After seven years of peace, our position remains that there will never be a Columbus Day parade in Denver – not this year, not next year, not ever,’ Lemos said. ‘If they violate the terms of the agreement, there will be no parade. Period.’” Who’s the Justice Department protecting, anyway?
SOURCES: J. Sebastian Sinisi, “Columbus’ name banned from ‘Italian Pride March’”, Denver Post, Sept. 21; J. Sebastian Sinisi, “Columbus parade pact fails”, Denver Post, Sept. 29; “The right to march” (editorial), Denver Post, Sept. 30; Al Knight, “Webb deaf to free speech”, Denver Post, Oct. 1; related articles; Peggy Lowe and Kevin Flynn, “Italians renege on renaming parade”, Rocky Mountain News, Sept. 29; Vince Carroll, “Let Columbus rest in peace”, Rocky Mountain News, Sept. 24; Bill Johnson, “Columbus, well, that’s not all this parade’s about”, Rocky Mountain News, Oct. 1; Columbus bio courtesy of student projects, St. Joseph’s School, Ireland. Update: parade held with disruptions and mass arrests, no bloodshed (see Oct. 10). (DURABLE LINK)
October 3 – From our mail sack: small claims court. David Rubin writes from Los Angeles: “I am a defense lawyer who generally supports the ideas which you espouse on this forum. However, I can safely say that out in Los Angeles, the small claims court (see Sept. 29) is more akin to a Kangaroo court than anything else. The reason cases can be heard so quickly in small claims is that judges spend so little time on them. The average small claims case lasts 5 minutes. I had a client who had a small claims judgment entered against him, based on a contractual debt owed to a company. This company had been shut down by the Corporations Department for fraud, based on the very contract the client had been found liable on. The client had evidence of this, but the judge wouldn’t hear of it.
“The judge simply asked ‘Did you sign this contract?’ – Client: ‘Yes’. – Judge: ‘Did you pay this debt?’ – Client: ‘Well, you see…’ – Judge: ‘Yes or no?’ – Client: ‘No’ – Judge: ‘Judgment for the plaintiff’.
“Speedy justice isn’t always justice, you know…”
October 3 – Volunteer gamers’ lawsuit. Heated discussions in progress around the Net re Fair Labor Standards Act lawsuit demanding retroactive minimum wage pay and benefits for volunteer fans who’ve helped administer online role-playing games (see Sept. 12): Nihilistic.com discussion; “GamerX”, “Money Changes Everything”, CNET GameCenter, Sept. 22; CNET discussion; complaint (Lum the Mad).
October 3 – More things you can’t have: raw-milk cheeses. “The Food and Drug Administration is considering new rules that either would ban or drastically limit the manufacture and import of raw milk, or unpasteurized, cheeses.” These include most of the interesting ones that one would go out of one’s way to eat. Safety grounds, of course, are cited: the more the compulsory assurances that we will live to a healthy old age, the fewer the reasons to want to do so. (Eric Rosenberg, “U.S. ponders ban on raw milk cheese”, San Francisco Examiner, Sept. 18; “Do dangerous organisms lurk in your favorite unpasteurized cheese?”, Reuters/CNN, Sept. 27).
October 2 – Killed his mother, now suing his psychiatrists. “Two summers ago, Alfred L. Head drove his car through the front wall of his family’s Reston[, Va.] home, then walked in with a baseball bat and beat his mother to death.” Found not guilty by reason of insanity and sent to a mental hospital, he’s now suing the psychiatrists he says should have prevented him from doing it. According to the Washington Post, “a number of experts said Head may have a strong case. They point to Wendell Williamson, a North Carolina man who went on a shooting rampage that killed two people and later won $500,000 after suing a psychiatrist who had stopped treating him eight months before the shooting….. Commonwealth’s Attorney Robert F. Horan Jr., who prosecuted Head, said he had ‘a history of manipulating the mental health community.’ Head knew the right words and behaviors to avoid hospitalization, Horan said. ‘It’s hard for me to believe,’ he said, ‘that the very guy who manipulated the system now says the system screwed up while he was manipulating them. He successfully conned all of them.’” (Tom Jackman, “Reston Family Sues in Insanity Case”, Washington Post, Oct. 1).
October 2 – No fistful of dollars. After deliberating for four hours, a San Jose jury found that Clint Eastwood does not have to pay damages to a disabled woman who said his inn/restaurant violated the Americans with Disabilities Act. The jury found him liable for two minor violations of the law but declined to assign damages. (Brian Bergstein, “Eastwood cleared in disabled case”, AP/Yahoo, Sept. 29; Reuters/Yahoo; “Clint Eastwood Explains His Beef With the ADA”, Business Week, May 17; Sept. 21 and earlier commentaries linked there).
October 2 – Judge throws out half of federal tobacco suit. In a 55-page opinion, U.S. district judge Gladys Kessler last week threw out the health-cost reimbursement portions of the Clinton Administration’s much-ballyhooed federal lawsuit against tobacco companies, while allowing to proceed, for now at least, its claims under the dangerously broad and vague RICO (racketeering) law. “Congress’ total inaction for over three decades precludes an interpretation … that would permit the government to recover Medicare” and other expenses, Kessler ruled. Both sides claimed victory, but cigarette stocks rose sharply on Wall Street.
According to Reuters, ‘Kessler expressed reservations about whether the racketeering claims would ultimately prove successful. ‘Based on the sweeping nature of the government’s allegations and the fact the parties have barely begun discovery to test the validity of these allegations, it would be premature for the court to rule (now),’ Kessler wrote. ‘At a very minimum the government has stated a claim for injunctive relief: whether the government can prove it remains to be seen.’” (Pete Yost, “Judge: 2 Claims Out in Tobacco Case”, AP/Yahoo, Sept. 28; Lyle Denniston, “Federal judge throws out half of tobacco industry lawsuit”, Baltimore Sun, Sept. 29; Reuters/FindLaw; MS/NBC; Washington Post)(U.S. v. Philip Morris — main decision in PDF format via Findlaw).
October 2 – Malpractice outlays on rise in Canada. “Damage claims arising from medical malpractice are costing Canadian doctors and taxpayers an arm and a leg, especially in Ontario,” according to estimates from the Canadian Medical Protective Association, which defends doctors in court. There are pronounced regional differences, with average settlements in closed cases running C$172,000 in Ontario, C$67,000 in Quebec, and in between elsewhere. The projected cumulative cost of all pending claims is expected to reach C$3 million per Canadian doctor by the end of 2000 — a number that seems strangely high given the reported size of claims, but which is not further elucidated in the story. (Dennis Bueckert, “Malpractice awards averaging $3 million per doctor are a major cost to taxpayers”, CP/St. Catharines (Ont.) Standard, Oct. 1) (more on regional differences).
