Overlawyered » Jack Weinstein

December 10 roundup

Walter Olson — Mon, 10 Dec 2007 00:02:21 +0000

Joe Nocera’s recent column on the Vioxx settlement infuriated loyalists of the plaintiff’s bar, and they won’t like his new one on lead paint litigation much better [NY Times]

Trial of Overlawyered favorite Jack Thompson over ethical charges leveled by Florida bar wraps up, but judge won’t rule right away [GamePolitics earlier, more recent posts]

Two joggers hit by driver alongside Pacific Coast Highway will share $49 million from city of Dana Point — allegedly the bike lane was too wide — so now here come the concrete barriers [LA Times]

Do makers of anti-PC documentary “Indoctrinate U.” owe cash to Indiana U. for infringing on its logo? [Maloney, OpinionJournal, Coleman] Update Dec. 11: settled.

Casselberry, Fla. cop who sued parents after boy’s near-drowning in pool has now lost her job following public outcry over the incident [Orlando Sentinel; earlier]

Lawyer who says he was defamed by commenters on DontDateHimGirl.com is back in court [Pittsburgh Post-Gazette, Ambrogi, On Point; earlier here, here, etc.]

Outspoken blog of BU prof Dr. Michael Siegel ticks off “tobacco control” activists [Beam, Globe]

Warning label alert: old Sesame Street episodes unsafe for children? [Stier, Wash. Times]

Furor mounts in and out of Canada over “human rights” complaint against Maclean’s over Mark Steyn book excerpt [Wente, Globe and Mail; Eteraz, UK Guardian; Steyn, NRO; Kimball]

Judge rejects lawsuit by animal rights group challenging UCSF animal testing [SF Chronicle]

New at Point of Law: How do all those big cases wind up in Judge Jack Weinstein’s court, anyway?; latest Richard Epstein podcast is on antitrust, Microsoft, AT&T, etc.; abuse of the Family and Medical Leave Act; welcome new contributor Marie Gryphon; Yale Law clinic sues Yale-New Haven Hospital; bar official dismisses concerns about cy pres slush funds; breastfeeding accommodation on the job, via lawsuit?; just what New York needs, a new state law school at Binghamton; and much more.

Tags: animal rights, antitrust, cy pres, firefighters rule, free speech in Canada, hospitals, Indiana, Jack Thompson, Jack Weinstein, lead paint, libel slander and defamation, Mark Steyn, Pittsburgh, Richard Epstein, roundups, tobacco

Bloomberg gun lawsuits will go on

David Nieporent — Thu, 23 Aug 2007 13:03:30 +0000

Last year, New York City Mayor Bloomberg filed federal lawsuits against bunches of gun stores across the country; we’ve covered these suits extensively. (See, e.g. May 2006, Jun. 2006, Sep. 2006). NYC sent people to stores in places such as Georgia, Ohio, Virginia and South Carolina; these city agents then conducted “stings” in which they made supposedly illegal firearms purchases. Bloomberg then sued these stores, claiming that the guns were ending up in New York City and that the stores should for some reason be liable for this.

Somehow, despite the fact that whatever illegal sales took place did so in Georgia, Ohio, Virginia and South Carolina, the suit ended up in the Brooklyn courtroom of federal Judge Jack Weinstein, the man who has never seen a products liability case he couldn’t endorse. The gun stores moved to dismiss the suits on the grounds that New York courts have no jurisdiction.

Last week, Weinstein rejected the gun stores’ motion in a 99 page opinion (PDF) replete with anti-gun rhetoric (about criminals who “terrorize” the city and descriptions of guns as “Saturday Night Specials”) and citations to his own decisions in previous gun-litigation cases (Jul. 2003) So the suits will continue; a trial date has been set for January.

Republican presidential-non-candidate Fred Thompson doesn’t think much more of these suits than we do.

Tags: Fred Thompson, guns, Jack Weinstein, Ohio, South Carolina

First Lawful Commerce in Arms Act challenge

Ted Frank — Fri, 25 Nov 2005 00:14:08 +0000

Eastern District of New York Judge Jack Weinstein heard the first challenge to the Lawful Commerce in Arms Act Monday. Tom Perrotta of the New York Law Journal reports that Weinstein was dismissive of the constitutional arguments, but possibly open to the plaintiffs’ attempt to expand an exception in the Act into a loophole that would encompass virtually all litigation against gun manufacturers. (NYC Claims Exception in New Federal Law Allows Gun Suit, Nov. 23). See also Nov. 9; Apr. 13, 2004.

Tags: guns, Jack Weinstein

Vietnamese Agent Orange case dismissed

Walter Olson — Fri, 11 Mar 2005 00:09:19 +0000

In a 233-page ruling, federal judge Jack Weinstein has dismissed a lawsuit on behalf of Vietnamese plaintiffs demanding compensation over the use of the defoliant Agent Orange during the Vietnam War. (William Glaberson, “Agent Orange Case for Millions of Vietnamese Is Dismissed”, New York Times, Mar. 10). As Julian Ku puts it, “If the plaintiffs can’t convince Judge Weinstein, who can they convince?” The case is separate from one that has been allowed to proceed seeking compensation on behalf of U.S. veterans, despite a settlement brokered and approved by Judge Weinstein years ago which had been widely thought to have resolved that category of claim (see Jul. 4, 2003).

Tags: environment, Jack Weinstein

Update: N.Y. high court derails Blue Cross anti-tobacco suit

Walter Olson — Sat, 23 Oct 2004 17:52:22 +0000

Several years ago, in a controversial ruling, activist federal judge Jack Weinstein ruled that health insurance plans in New York could sue tobacco companies for cost recoupment under state consumer protection law. The result, in 2000, was a jury verdict of $17 million to which Weinstein added an award of $32 million in attorney’s fees (see Mar. 6-7, 2002). However, the state’s highest court, the Court of Appeals, has now declared that the basis of the case is invalid: the Blues can’t invoke the consumer protection act. That will probably mean the suit’s dismissal. Health insurers do have a separate right to sue under older principles of “subrogation”, but the tobacco companies have robust defenses against that variety of action. (John Caher, “Insurer Loses Bid for Direct Recovery in Test Case Against Cigarette Makers”, New York Law Journal, Oct. 20). Two other Blue Cross actions in other states have also been dismissed. On dismissal of union health plans’ suits against tobacco companies, see Jan. 11, 2000.

And what about similar actions on behalf of government health insurers, as in the state-Medicaid legislation? Well, the handwriting would seem to be on the wall that those cases are not exactly founded on a good legal theory of recovery either — the trouble being that in the mean time the muscle of the state AGs and their lawyers nonetheless managed to extract hundreds of billions in tobacco lucre.

Tags: Jack Weinstein, tobacco

Judge Weinstein shepherds gun lawsuit

Ted Frank — Tue, 13 Apr 2004 01:18:15 +0000

As if to confirm this website’s worst fears (Mar. 31, 2003 and Mar. 24, 2003), federal Judge Jack Weinstein of the Eastern District of New York is permitting the City of New York to proceed with a “public nuisance” suit against the gun industry. If that theory sounds eerily familiar, it is because a Manhattan appellate state court threw out an essentially identical public nuisance lawsuit by the state of New York against the gun industry in the Sturm, Ruger case, noting that New York state law did not countenance such attenuated theories of liability (Jun. 30 and Jul. 4). The district court opinion is a marvelous example of how an unprecedented theory of liability lifts itself up by the bootstraps: the decision relies heavily on Judge Weinstein’s previous opinions and the Ninth Circuit’s unreasoned Ileto v. Glock decision (Dec. 3 and Nov. 20); while claiming that Sturm, Ruger supports it, the decision ignores language (and related precedent) in that opinion that would preclude the City’s theory of liability. (Tom Perotta, “Federal Judge Keeps New York City’s Gun Suit Alive”, New York Law Journal, Apr. 13; City of New York v. Beretta opinion).

Update: Clayton Cramer comments.

Applicable language from the Appellate Division of New York:

However, even if such a legal duty were held to exist so as to hold these defendants accountable in the context of a common-law public nuisance claim, and, further, assuming plaintiff has sufficiently pleaded that element ? i.e., that by their manufacturing and marketing decisions and practices defendants created and maintain a common-law public nuisance in violation of a duty to the public at large ? plaintiff still falls short.

We so hold because (1) the harm plaintiff alleges is far too remote from defendants’ otherwise lawful commercial activity to fairly hold defendants accountable for common-law public nuisance; and (2) defendants’ lawful commercial activity, having been followed by harm to person and property caused directly and principally by the criminal activity of intervening third parties, may not be considered a proximate cause of such harm [FN3].

Footnote 3:The Courts of Appeals in at least eight circuits have dismissed lawsuits by union health benefit funds against tobacco companies to recover the costs of smoking-related illnesses on the ground that the harm to the fund participants is too remote from the companies’ wrongdoing to permit recovery under federal statutory and state common-law claims. Illustrative of the rationale behind these dismissals is the “tortured path” that must be followed from the tobacco companies’ wrongdoing to the union health benefit funds’ increased expenditures, which further demonstrates that plaintiff’s claims are exactly the type of indirect claims that proximate cause requirements are intended to weed out (Steamfitters, Local Union No 420 Welfare Fund v Philip Morris Inc., 171 F3d 912 [3d Cir 1999], cert denied 528 US 1105 [2000]; see also Service Employees International Union Health and Welfare Fund v Philip Morris, Inc., 249 F3d 1068 [DC Cir], cert denied 534 US 994 [2001]; Lyons v Philip Morris, Inc., 225 F3d 909 [8th Cir 2000]; United Food and Commercial Workers Unions, Employers Health and Welfare Fund v Philip Morris, Inc., 223 F3d 1271 [11th Cir 2000]; Texas Carpenters Health Benefit Fund v Philip Morris, Inc., 199 F3d 788 [5th Cir 2000]; Intl Bhd. Of Teamsters, Local 734 Health and Welfare Trust Fund v Philip Morris, Inc., 196 F3d 818 [7th Cir 1999]; Laborers Local 17 Health and Benefits Fund v Philip Morris, Inc., 191 F3d 229 [2d Cir 1999], cert denied 528 US 1080 [2000]; Oregon Laborers-Employers Health & Welfare Trust Fund v Philip Morris Inc., 185 F3d 957 [9th Cir 1999], cert denied 528 US 1075 [2000]).

Update: Nov. 9, 2005.

Tags: guns, Jack Weinstein, Oregon, tobacco

Another New York gun lawsuit dismissed

Leah Lorber — Wed, 30 Jul 2003 11:25:55 +0000

Upholding an advisory jury’s verdict in favor of the firearms industry, federal judge Jack Weinstein has dismissed the NAACP’s public nuisance lawsuit against 68 gun manufacturers and distributors, discussed earlier in this space. The National Association for the Advancement of Colored People had asked the court to declare the manufacturers and distributors liable for creating a public nuisance under New York law. Rather than monetary damages, the NAACP sought “sweeping restrictions on buyers and sellers of handguns.” (Tom Hays, “Judge Dismisses NAACP Gun Lawsuit,” Assoc. Press, July 21, 2003). Judge Weinstein said that “while the NAACP’s evidence showed some gun retailers were careless in allowing a large number of handguns to enter the illegal market, the group did not prove its members suffered unique harm.” (”Court dismisses NAACP gun suit,” Reuters, July 21, 2003). His 175-page opinion is available here.

Judge Weinstein’s ruling follows by a month a Manhattan appellate court’s decision affirming the dismissal of state Attorney General Eliot Spitzer’s lawsuit against gun manufacturers, also brought on public nuisance grounds.

Tags: attorneys general, Eliot Spitzer, guns, Jack Weinstein

New York gun suits

Ted Frank — Fri, 04 Jul 2003 14:10:27 +0000

As earlier discussed by Walter, a Manhattan appellate court has affirmed the dismissal of Attorney General Eliot Spitzer’s state lawsuit against gun manufacturers. Spitzer had sued under a theory of “public nuisance.” The opinion is now on-line and the court’s language is interesting:

[P]laintiff would have us summarily ignore: [...]

2) the importance and fairness of considering such concepts as remoteness, duty, proximate cause and the significance of the indisputable intervention of unlawful and frequently violent acts of criminals — over whom defendants have absolutely no control — who actually, directly, and most often intentionally, cause the cited harm;

3) the significance and unfairness of holding defendants accountable even though their commercial activity is wholly lawful and currently heavily regulated, and that their products are non-defective; and

4) the plain fact that courts are the least suited, least equipped, and thus the least appropriate branch of government to regulate and micro-manage the manufacturing, marketing, distribution and sale of handguns.

An identical federal suit filed by the NAACP is pending before Judge Jack Weinstein in Brooklyn. (Samuel Maull, “Appeals court affirms dismissal of state’s lawsuit against gun makers,” AP, June 24).

Weinstein is perhaps best known for his work on the Agent Orange class action settlement, which the U.S. Supreme Court recently allowed to be reopened when it split 4-4 in its review of a Second Circuit opinion holding that the settlement did not preclude veterans from seeking additional damages. There are obvious implications, since now class action defendants risk losing the benefits of finality in the Second Circuit. (Tony Mauro, “Vets Win Chance At Agent Orange Damages,” Legal Times, June 10).
(Full disclosure: My firm filed an amicus brief on behalf of the Product Liability Advisory Council in Dow Chemical v. Stephenson.)

Tags: attorneys general, Eliot Spitzer, guns, Jack Weinstein

June 2003 archives, part 1

Walter Olson — Tue, 10 Jun 2003 14:25:09 +0000

June 10-11 – New Orleans cleanup continues. “It was bad enough that New Orleans personal injury attorney Curtis Coney Jr. was illegally paying ‘runners’ to solicit accident victims, paying them $500 for each ambulance-chasing referral. When his secretary was subpoenaed to testify before a federal grand jury, Coney compounded his problems by urging her to lie about the payments, even though she was the one who usually doled them out. … In a plea agreement unveiled in federal court Wednesday, Coney, 58, pleaded guilty to 10 counts of ’structuring’ referral payments to hide them from the state and federal governments, one count of conspiracy and one count of obstruction of justice for pressuring [the secretary] to lie. As part of the deal, lead prosecutor Irene Gonzalez recommended a 33-month jail sentence for Coney.” The lawyer’s guilty plea is among the fruits of “a 4-year federal investigation of personal injury attorneys, a quietly unfolding case that has resulted in more than 20 convictions”. Targeted along with attorneys and “runners” are “medical providers who exaggerated or falsified injury claims in order to secure lucrative insurance settlements.” (Michael Perlstein, “Lawyer guilty in referral scheme”, New Orleans Times-Picayune, May 16). (DURABLE LINK)

June 10-11 – Bounty-hunting in New Jersey. The administration of Gov. Jim McGreevey has retained a flamboyant private plaintiff’s lawyer to pursue claims seeking to hold businesses legally liable for wastes left over from the state’s industrial past. Although Allen Kanner is initially donating his services for free, it is expected that he will take a contingency stake in some or many of the state’s financial recoveries. Also being hired is a politically well-connected law firm named Lynch Martin Kroll, associated with one of the state’s Democratic power brokers. Together, Kanner and the Lynch firm “are scouring state files for possible ‘natural resource damage’ claims. Such claims — little used in the state’s past — require polluters to go far beyond simple cleanups by making them pay the public for things such as lost fishing time, lost tap water, injured wildlife and soiled scenery.” (Alexander Lane, “State retains enviro-lawyer who gets polluters’ attention”, Newark Star-Ledger, May 11). More: PointOfLaw.com, Sept. 5, 2004. (DURABLE LINK)

June 10-11 – The Rule of Lawyers reviewed. In the June Commentary, Washington attorney and Findlaw columnist Barton Aronson contributes a very generous appraisal of our editor’s latest book. (DURABLE LINK)

June 9 – “Silver’s wreck”. Our editor has an op-ed piece in today’s New York Post on the impending demise of auto leasing in New York state, wrecked by the state’s archaic “vicarious liability” law whose chief defenders include the state trial lawyers’ association and Assembly Speaker Sheldon Silver (Walter Olson, New York Post, Jun. 9). Our earlier coverage of the issue is here. More: Sept. 5, 2004. (DURABLE LINK)

June 9 – “Families of teens killed in crash after rave sue U.S. government”. “Family members of five teens who died when their car careened off a cliff after an all-night rave party have filed a suit against the U.S. government for issuing the event’s permit. ‘If you knowingly allow use of your land for a drug party and people get killed, we allege you are partially responsible,’ said Andrew Spielberger, a West Hollywood-based attorney representing the families.” (AP/Sacramento Bee, Jun. 1). (DURABLE LINK)

June 9 – The intimidation tactics of Madison County. Four business groups held a press event in Madison County, Ill., last week to unveil the latest report depicting the county’s courts as a paradise for plaintiff’s lawyers (U.S. Chamber of Commerce, “The Rogue Courts of Madison County” (PDF)). What happened next? Local plaintiff’s attorney Bradley M. Lakin promptly slapped them with a subpoena demanding that their executives testify in a would-be class action case against Ford Motor on alleged paint defects. “Subpoenas are for witnesses who know something about the case,” said Victor E. Schwartz, general counsel of the American Tort Reform Association. “In this situation, ATRA knows nothing. It is clear the subpoena power is being used to squelch ATRA from speaking out about Madison County and its inequities as one of the leading ‘judicial hellholes’ in the United States.” Last year ATRA published a report entitled “Justice for Sale: The Judges of Madison County“. (”ATRA Says Subpoena Power Should Not Be Used To Squelch First Amendment Rights”, ATRA press release, Jun. 6; Illinois Civil Justice League, which was one of the subpoenaed groups along with ATRA and the national and Illinois Chambers of Commerce, has links). Updates Jul. 12: subpoenas dropped and Jul. 26: sanctions motions dropped.

And St. Louis Post-Dispatch columnist Bill McClellan turns the spotlight on a recent Madison County class action settlement involving Sears tires: “If you have a receipt showing you purchased an AccuBalance from a Sears auto center between 1989 and 1994 and are willing to take the time to request a claims form and fill it out and send it in, you could get $2.50 for each tire, up to a total of $10. Of course, who keeps receipts from 1989? You still might be eligible for $1.25 a tire, up to a total of $5. If Sears does not have a record of your purchase, you will be eligible only for a $3 Sears coupon. Of course, there will be forms to fill out under threat of perjury. Things are a little better for the lawyers who ‘represented’ you. The settlement says that their legal fees cannot exceed $2.45 million.” McClellan is bold to tackle this subject, since when he criticized lawyers from the same class-action firm in 1999 they came after him with a lawsuit, later dropped (see Nov. 4, 1999)(Bill McClellan, “Just like your tires, wheels of justice may be out of balance”, St. Louis Post-Dispatch, Jun. 4). (DURABLE LINK)

June 6-8 – New legal ethics weblog. David Giacalone, formerly of PrairieLaw, has started a new weblog, ethicalEsq?, specializing in “client-centered legal ethics”. He’s already posted on several issues of interest, including Common Good’s early-offers proposal (May 30 and Jun. 3), the case for requiring lawyers to disclose more fully to clients the circumstances of their representation (Jun. 3), and (citing this website) the still-unfolding battle in a New York courtroom over whether Judge Charles Ramos has authority to review and correct outrageous tobacco fees (May 31; on tobacco fees, see Daniel Wise, “Judge’s Power to Review $625M Tobacco Fee Award Challenged”, New York Law Journal, May 28). (DURABLE LINK)

June 6-8 – Claims consciousness in Utah. To promote a contemplated April Fool’s Day festival, Mayor Gerald R. Sherratt of Cedar City, Utah, published in local papers a tall tale about how wandering Vikings had left precious ancient artifacts in a local cave. Most residents seem to have gotten the joke, but various readers in the nearby town of St. George stepped forward to lay claim to the supposed treasure found in the cave, several of them saying “their ancestors had been part of the settlement and had owned some of the artifacts. …When Sherratt explained the whole story was made up to promote the festival, the St. George residents accused him and other officials of a cover-up.” (Paul Rolly and JoAnn Jacobsen-Wells, “Ad Flap Is Stranger Than Fiction”, Salt Lake Tribune, May 26). (DURABLE LINK)

June 6-8 – Hiker cuts off use of his name. Equipped to Survive, a wilderness gear site, recommended a pocket-sized emergency beacon by referring to a recent survival story that received worldwide publicity: “Your survival should not require you to amputate your own arm, as Aron Ralston was recently forced to do in order to escape being trapped by an 800-lb. boulder.” Before long the site’s proprietor received this cease and desist letter (PDF format) dated June 5 from Ralston’s lawyer demanding that the reference be removed as in violation of the hiker’s “right of publicity” under state statutes. There followed this rude reply from the website proprietor, inviting the lawyer to “stick your ridiculous cease and desist demand where the sun don’t shine”. Now cut that out, boys, there’s no reason we can’t be polite. (DURABLE LINK)

June 4-5 – Blaming murder on flat tire. A 19-year-old woman, having stopped to change a flat tire at the side of the road, is taken away and murdered by a local man. According to a lawyer for her family, the Ford Motor Co. and tiremaker Bridgestone/Firestone should be made to pay for the murder. A court dismissed the case against the two companies on grounds that they could not have found harm of this sort foreseeable enough to trigger a legal duty of care, but the family’s lawyer, Richard Rensch, is appealing to the Nebraska Supreme Court. (AP/KETV, Jun. 3; “Murder victim’s parents say flat set off tragic events”, Fremont (Neb.) Tribune, Jun. 3). (DURABLE LINK)

June 4-5 – Fox News “The Big Story”. Our editor was interviewed on screen for a piece that Fox News’s “The Big Story” is preparing on the search for deep pockets in litigation. It’s tentatively scheduled to run Wednesday, but these things are always subject to change. Update: it did run Wednesday, Jun. 4. (DURABLE LINK)

June 4-5 – Malpractice: juggling the stats. In the course of an otherwise standard feature package on the medical malpractice crisis (Daniel Eisenberg and Maggie Sieger, “The Doctor is Out”, Time, Jun. 9, and sidebars) Time gives credence to a newly issued report asserting that doctors’ malpractice premiums are actually rising fastest in states without damage caps (Jyoti Thottam, “A Chastened Insurer”, Jun. 1). Very curiously, the new report (from Weiss Ratings, “an independent insurance-rating agency in Palm Beach Gardens, Fla.”) is described as compiling figures for median premiums and payouts (the numbers compared with which half of the data points are higher and half lower) rather than averages, even though this is a field where the outliers (giant awards, unusually litigious specialties) drive the debate and the dollar figures. CalPundit (Jun. 2) spots this anomaly and opines: “this is so obviously the wrong statistic to use in this case that there must be some kind of axe to grind here” (via Jonathan Adler, NR Corner).

A table laying out the (very large) differences between malpractice premiums between Los Angeles (where doctors practice under California’s MICRA damages cap) and three litigious jurisdictions elsewhere in the country (Miami, Long Island, Detroit) indicates that MICRA confers its greatest benefit by far on the most litigation-prone specialties: for example, the average savings from MICRA for a neurosurgeon is $ 145,813 and for an ob/gyn $ 88,593, but it’s only $24,599 for an internist and $15,639 for a dermatologist (”2003 Malpractice Premium Comparison“, California Physician (California Medical Association)) (PDF format)(CMA’s MICRA Resource Center). For a more reliable reading of the crisis and its relation to damage caps and the insurance market, check out the report issued by the U.S. Department of Health and Human Services this spring (”Addressing the New Health Care Crisis: Reforming the Medical Litigation System to Improve the Quality of Health Care”, Mar. 3; Senate testimony by Deputy Secretary Claude A. Allen, Mar. 13).

How big an impact do the “outlier” cases have, the small number of gigantic verdicts that almost vanish from the calculation when per-case outlays are calculated as a median? Among recent examples are the $78.5-million verdict against an Orlando hospital for failing to figure out that a woman visiting its emergency room was suffering from a bizarre undiagnosed tumor; thought to be the largest medical malpractice award in Florida history, it has “become the symbol of juries run amok” in the view of critics of the system. (William R. Levesque, “Tremors still felt from whopping jury award”, St. Petersburg Times, Jun. 2). And in a result vocally criticized by appeals judges even as they felt obliged to uphold it, a Manhattan jury’s $40 million malpractice award against one of the city’s premier hospitals, New York-Presbyterian, has been blown up to $140 million by a law mandating that annual interest of 4 percent be added to awards “even if the jury has already adjusted the annual amount for inflation. Critics say that means a double adjustment for inflation in some cases, like this one.” (Richard Perez-Pena, “New York Hospitals Fearing Malpractice Crisis”, New York Times, Jun. 3). (DURABLE LINK)

June 4-5 – “Rape defendant asks $20,000; found fly in mashed potatoes”. “If convicted later this year of raping a 16-year-old girl, [Kenneth] Williams could be sentenced to 112 years to life in prison. It would be his third, and last, trip to state prison, authorities say.” What has upset Williams recently, however, is the insect impurity he says he found in his prison dinner. He “is seeking $20,000 to ease the ‘mental stress and anguish’ he said finding the fly inflicted upon him. ‘It’s been almost a month since this occurred,’ Williams wrote last week in the claim, ‘and I still only pick at my food …. I’m losing weight and am unable to eat properly.’” The sum demanded was fair, according to his complaint, since public venting of the allegations “would cost the county ‘a great deal more both financially and in bad publicity.’” (J. Harry Jones, San Diego Union-Tribune, Jun. 3). (DURABLE LINK)

June 3 – An important litigation skill. From Gail Diane Cox’s “Voir Dire” column in the National Law Journal, Nov. 4, 2002 (scroll down to “Jargon Watch”): “Blamestorming: Variant of brainstorming. Sitting around in a group discussing a mistake and how to make someone responsible for it, preferably a deep-pocket defendant. Synonym: Litigation initiation.” Maybe a session of this sort was responsible for the naming of Shell Oil as a defendant in the Rhode Island nightclub fire (see May 30-Jun. 1). (DURABLE LINK)

June 3 – “Resumé spam saddles employers”. It’s common these days for employers to receive hundreds, thousands or even milllions of resumés via email from hopeful job-seekers. Federal regulations on the books since the 1970s, however, require most larger companies to preserve records of all job applications, the most important reason being to furnish evidence in case they are someday investigated for possible discrimination. Under the strictest interpretation of the rules, companies with more than fifteen employees must keep on file any resumé sent to them — even if “the applicant misspells the company’s name, applies for a job not listed or is simply not qualified.” The result: a large and ever-growing paperwork/compliance burden on American business. (Bill Atkinson, “Resume spam saddles employers”, Baltimore Sun, May 22; Michelle Martinez, “Who Really Is An Applicant When Recruiting Online?”, PeopleClick.com, undated). See Shirleen Holt, “Résumé spam is tiring those hiring”, Seattle Times, Jan. 19; Katherine Harding, “The new scourge: Résumé spam”, GlobeTechnology.com (Globe & Mail, Canada), Jan. 8 (”Companies that advertise jobs on-line are finding their e-mail boxes crammed with irrelevant responses”, some from applicants who blast out responses to every job listed on a posting board). (DURABLE LINK)

June 2 – Updates. Further developments in cases we’ve covered:

* Citing its recent jurisprudence bringing constitutional due process limits to bear on punitive damages, the U.S. Supreme Court has instructed lower courts to reduce a $290 million award against Ford Motor in the Romo case; the case arose from a Bronco rollover in central California, and we’ve had quite a bit to say about it over the four years since it went to trial (see Oct. 24, 2002 and links from there) (David Kravets, “High Court Reduces Damages in Car Crash”, AP/Yahoo, May 19; Bob Egelko, “Key ruling on punitive damages”, San Francisco Chronicle, May 19);

* The Los Angeles Zoo has transferred Ruby, its female African elephant, to a Tennessee zoo notwithstanding a pending lawsuit (see May 16-18) complaining that the move would disrupt Ruby’s bond with her elephant “best friend”; an attorney who had gone to court seeking a temporary restraining order against splitting the two elephants complained that zoo authorities had acted “like thieves in the middle of the night”. (Carla Hall, “Despite Protests, L.A. Zoo Sends Elephant to Tennessee”, Los Angeles Times, May 27) (via SoCalLaw, May 27);

* The Supreme Court of Hawaii has reversed a jury’s award of $2 million to an auto service manager fired over what his employer considered credible charges of sexual harassment (see Mar. 10-12, 2000) (Gonsalves v. Nissan Motor Corp. in Hawaii, Ltd., Supreme Court of Hawaii, Nov. 27, 2002; see Jeffrey Harris, “Law Watch: Preventing Harassment Trumps Keeping Promises”, Hawaii Business, Feb. 20);

* In a humiliating defeat for backers of anti-gun litigation, a federal “advisory” jury in Brooklyn has refused to hold manufacturers liable for inner-city gun crime in the much-publicized case brought by the NAACP before judge Jack Weinstein. “The panel of 12 jurors issued a finding of no liability for 45 of the defendants and was unable to reach a verdict for the remaining 23 manufacturers or gun dealers”. (Mark Hamblett, “Federal Advisory Jury Declines to Find Gun Industry Liable”, New York Law Journal, May 15; Katherine Mangu-Ward, “No Smoking Gun”, WeeklyStandard.com, May 8). Update Jul. 20: judge dismisses lawsuit entirely. (DURABLE LINK)

Tags: ATRA, Baltimore, Bill McClellan, deep pocket, Detroit, Ford Motor, Hawaii, hospitals, Illinois, Jack Weinstein, Long Island, Madison County, Nebraska, New Jersey, Rhode Island, San Diego, Seattle, Sheldon Silver, Tennessee, tobacco, Utah

March 2003 archives, part 3

Walter Olson — Mon, 31 Mar 2003 13:50:17 +0000

March 31 – Gun-suit thoughts. Our editor has contributed an op-ed to the New York Sun outlining his view that the NAACP’s lawsuit against gunmakers (which went to trial last week amid a flurry of favorable press notices; see Mar. 24) is plenty lame and derives its only real vitality from having been filed before a favorable judge (Walter Olson, “Gun Lawsuit Meets Activist Judge”, New York Sun, Mar. 26). On an unrelated note, the House Judiciary Committee has asked our editor to discuss federal pre-emption of anti-gunmaker litigation at a hearing this Wednesday before the Subcommittee on Commercial and Administrative Law (Rayburn HOB 2141, 10 a.m.) (DURABLE LINK)

March 31 – Teachers afraid. “Educators in Baltimore County and beyond say the threat of lawsuits prevents administrators from backing their punishment of disorderly or dishonest students.” One of the more thorough explorations of this topic we’ve seen recently (Jonathan D. Rockoff, “Teachers say the law adds to disorder in classroom”, Baltimore Sun, Mar. 23) (via Joanne Jacobs). (DURABLE LINK)

March 31 – Some reader letters. We’ve fallen lamentably behind in publishing readers’ letters. Here’s a batch of four, on terrorism suits against foreign entities, Sen. Edwards and cerebral palsy, one New Jersey judge’s dismissal of a playground lawsuit, and an unwelcome (to us) advertising intrusion into our newsletter. Quite a few other letters remain in our pipeline — we’ll try to get to them soon. (DURABLE LINK)

March 25-30 – Fast food opinion roundup. “The word “addiction” is perilously close to losing any meaning. If lawyers can turn fast food into an addiction and pin liability on restaurants, it won’t be long before adulterers sue Sports Illustrated, claiming its swimsuit issue led them astray.” (Sally Satel, “Fast food ‘addiction’ feeds only lawyers”, USA Today, Mar. 12, reprinted at AEI site). One 270-lb., 5-foot-6 plaintiff “said her regular diet included an Egg McMuffin for breakfast and a Big Mac meal for dinner”, but Chris Rangel at RangelMD concludes that the calorie count doesn’t add up — the only way you could get up to 270 pounds would be by consuming a whole lot more food than that. (RangelMD, Feb. 23). “Big Food stands charged with making the plaintiffs fat, notes Howard Fienberg in a review of a fairly dreadful-sounding book on the much-ballyhooed obesity epidemic. Yet “Grocery stores are easily accessible for most Americans. …. Healthy choices are everywhere.” (”Supersize Nation?”, AmericasFuture.org, Winter). As expected, attorney Samuel Hirsch has re-filed his suit against McDonald’s (John Lehmann, “McFatties Bite Back”, New York Post, Feb. 20). “And now, Hirsch tells Newsweek, he’s targeting companies selling weight-loss products such as herbal supplements. Within weeks, he says, his law firm will begin placing ads in magazines to invite clients who bought the products but failed to lose weight to join a class-action lawsuit.” (Daniel McGinn, Newsweek, Feb. 10). See also “Tobacco-war lawyers taking aim at fast food”, Sacramento Bee, Feb. 24; Duane Freese, “Frankensuits”, Tech Central Station, Feb. 27.
(DURABLE LINK)

March 25-30 – “How a lawyer blew the whistle on a judge”. “It was the most distasteful thing I ever had to do in my life” said Joel Persky of his decision to turn in Allegheny County Common Pleas Judge Joseph A. Jaffe, who offered favorable rulings in Persky’s asbestos cases in exchange for a cash quid pro quo (see Sept. 3, 2002). Had Persky merely ignored the judge’s overtures, according to one “seasoned” lawyer, he might have been laying himself open to legal malpractice charges. “Jaffe, 52, pleaded guilty last month to extorting money from Persky and will be sentenced May 16. Jaffe has qualified for a temporary, $60,000 a year disability from the State Employees’ Retirement System because he is depressed. The system’s board of trustees will vote on whether to award the money in March.” (Marylynne Pitz, Pittsburgh Post-Gazette, Mar. 2). (DURABLE LINK)

March 25-30 – Gone for a few days. The site will lie fallow while our editor gives several speeches to promote his new book. See you Monday. (DURABLE LINK)

March 24 – Mad County pays out again. “A judge in Madison County, Ill., ordered Philip Morris USA Inc. to pay $10.1 billion in a class-action lawsuit that claimed the tobacco giant misled smokers about the dangers of light cigarettes.” Circuit Judge Nicholas G. Byron “gave the plaintiffs’ lawyers a quarter of the compensatory damages, or nearly $1.8 billion.” (”Philip Morris Hit With $10.1B Verdict in Illinois Case, Dow Jones/Quicken, Mar. 21; Trisha Howard and Paul Hampel, “Tobacco firm lawyer derides court’s reputation”, St. Louis Post-Dispatch, Mar. 22; related stories; Sherri Day, “Philip Morris Faces Big Penalty”, New York Times, Mar. 22). Madison County, Ill. is located east of St. Louis (map); its main cities include Alton, Edwardsville and Granite City. For more on its fame as a “plaintiff’s paradise” and “judicial hellhole” for defendants, see notes below, including work sponsored by the Manhattan Institute, with which our editor is associated. (Update Apr. 2-3: Philip Morris says it is unable to post appeals bond; more updates.)

MORE ON MADISON COUNTY: “Study finds Madison County has most class action suits per capita”, AP, Sept. 11, 2001; Jim Getz, “Class-Action Suits Soar In Madison County, Study Says; Think Tank Argues For Moving Cases To Federal Court”, St. Louis Post-Dispatch, Sept. 11, 2001; John H. Beisner and Jessica Davidson Miller, “They’re Making a Federal Case Out of It … In State Court”, Manhattan Institute Civil Justice Report #3, Sept. 2001; Noam Neusner with Brian Brueggemann, “The judges of Madison County”, U.S. News, Dec. 17, 2001 (fee); Sen. Herb Kohl (D-Wis.), Statement on Class Action Fairness Act, Congressional Record, Nov. 15, 2001; Lester Brickman, “Anatomy of a Madison County (Illinois) Class Action: A Study of Pathology”, Manhattan Institute Civil Justice Report #6, press release, Aug. 12, 2002. (DURABLE LINK)

March 24 – Stalking horse for anti-gun litigators. If the NAACP really does have legal standing to sue firearms manufacturers and demand that a court impose gun-control measures on them, one might reasonably conclude that in the future anyone will henceforth have standing to sue anyone over anything. Still, this notional standing has been the excuse for longtime anti-gun litigators to make yet another pilgrimage to the Brooklyn courtroom of federal judge Jack Weinstein, who’s considered far more sympathetic to their cause than most of his colleagues (Tom Hayes, “Ex-Lobbyist to Testify for Gun Foes in Federal Trial”, AP/Law.com, Mar. 21). Jacob Sullum comments on the resulting trial set to begin today (”Jack B. Trick”, syndicated/Reason Online, Mar. 21), as does Eugene Volokh, who points out that the arguments for holding gun manufacturers liable would, if taken seriously, also lead to findings of liability against liquor manufacturers for “foreseeable misuse” of their wares — not that some ambitious lawyers wouldn’t like to do that too (Volokh Conspiracy blog, archive link not working, scroll to Mar. 23). The NAACP case seeks injunctive relief; per the AP, above, Judge Weinstein “has decided the jury will play only an ‘advisory role,’ leaving himself to make the final determination on liability and remedy.” For our earlier coverage of the suit, click here. See also “Off Target: Anti-gunners again take aim at manufacturers”, (editorial), McAllen (Tex.) Monitor, Mar. 21; and Hunting and Shooting Sports Heritage Fund site (& welcome Kausfiles readers). Updated to include correct HSSHF link (DURABLE LINK)

March 21-23 – “Lawyers find gold mine in Phila. pension cases”. Philadelphia Inquirer exposes how the city’s municipal pension funds enlisted as the complaisant clients of two prominent class action law firms, Berger & Montague and Barrack, Rodos & Bacine, which between 1996 and 2002 scooped up $19 million in fees representing the city in securities litigation. Then-Mayor Ed Rendell green-lighted the suits, and also happens to have received $460,000 in contributions from the lawyers since 1990. “‘The truth is, there was just a bounty hunter prowling the security industry, picking things and putting our names on it,’ said Joseph Herkness, the pension fund’s former director. ‘We were told, basically, to sign these things.’” “It was an opportunity to make money for the city without any risk,” claims Rendell, who is now Pennsylvania’s governor. But perhaps not quite so much money as if the city had driven a harder bargain: “Funds in Florida, Connecticut, Wisconsin, and New York City have trimmed millions off legal fees by seeking bids and setting fees in advance,” but not Philadelphia, the paper reported. As reported earlier (see Jan. 31) the FBI is investigating the actions of city officials in hiring the firms and resisting a judge’s efforts to encourage competitive bidding. (Joseph Tanfani and Craig R. McCoy, Philadelphia Inquirer, Mar. 16; “Lawyer’s responses scrutinized”, Feb. 14). Name partner Leonard Barrack of Barrack, Rodos, a big-league political donor, served as finance chairman for the Democratic National Committee under President Clinton (Washington Post, Jan. 12, 1999); he has said his firm is cooperating with the FBI probe. (DURABLE LINK)

March 21-23 – More notices for The Rule of Lawyers. Free-Market.net, one of the major libertarian sites, names our author’s new book “Freedom Book of the Month”, with reviewer Sunni Maravillosa calling it “clear, compelling” and “very important” and saying its “revelations will likely astonish most people who aren’t intimately acquainted with the American legal system” (March). In a review for the Indianapolis Star, reviewer Peter J. Pitts applauds the book as “insightful and frightening” (”Lawyers get rich; we get a warped idea of blame”, Mar. 15). And in American Hunter and its sister publications (American Rifleman, etc.), National Rifle Association Executive Vice President Wayne LaPierre uses his monthly column to call NRA members’ attention to the continuing outrage of the municipal gun suits and to The Rule of Lawyers in particular (April, not online). If you haven’t ordered your copy yet, what are you waiting for? (DURABLE LINK)

Tags: asbestos, Baltimore, Connecticut, governors, Illinois, Indiana, Jack Weinstein, light cigarettes, Madison County, Manhattan Institute, New Jersey, Pennsylvania, Philadelphia, Pittsburgh, tobacco, Wisconsin

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