Welcome New York Sun readers is a post from Overlawyered - Chronicling the high cost of our legal system

One thing I didn’t mention in the article that is on topic for this site is that Lieberman is one of the few prominent federal Democrats still in office that is generally willing to stand up to the trial bar. If Lamont does supplant Lieberman, the trial-lawyer takeover of the Democratic party (commented on a year ago by Walter) will be all but complete.

Update: Walter reminds me of his 2000 Wall Street Journal op-ed on Lieberman’s record on liability reform.

“The Lieberman Purge” is a post from Overlawyered - Chronicling the high cost of our legal system

It is easiest to judge the senators in the race, because there have been three major tort reform bills in the Senate in the last ten years: the 1995 Private Securities Litigation Reform Act (which passed); the Common Sense Product Liability Reform Act of 1996 (which was vetoed); and the Class Action Fairness Act of this year (which, so far, has been filibustered by 39 Democrats).

As a senator, Joe Lieberman was one of the most prominent Democrats in support of tort reform, including voting for cloture in the debate over the Class Action Fairness Act. On September 11, 2000, his spokesman, Dan Gerstein, told the Wall Street Journal that the tort system “drives up costs, stifles innovation, limits products available to consumers and undercuts the competitive advantage our leading companies have.” Lieberman was on the correct side on the PSLRA and the product liability bill; we earlier reviewed his promising record when he was named to the 2000 Gore ticket (Aug. 8, 2000). His presidential campaign web site, however, makes no mention of the issue.

Senator John Kerry voted for the PSLRA, but against the 1996 product liability reform bill, and absented himself from the cloture vote on the Class Action Fairness Act. Earlier this year, we noted that Kerry spoke at the ATLA convention (Aug. 25) and opposed a Senate effort to require tobacco attorneys to return moneys above $2500/hour that they earned representing state governments in the tobacco settlement (May 9). There is no mention of tort reform on his presidential campaign web site.

Senator John Edwards, of course, made his name as a plaintiffs’ lawyer; trial lawyers are notably among his leading supporters (Apr. 7). He was not in the Senate in 1995-96, but this web site has previously documented Edwards’s opposition to tort reform since he was named to the Gore short-list of VP candidates in 2000 (see also Sep. 16). Sen. Edwards defended the tort system in Newsweek a few weeks back (Dec. 8). We can safely assume he would oppose tort reform.

General Wesley Clark’s web site does not seem to mention tort reform (there is no search engine on the site that would permit us to confirm this), but he has called for an expansion of the ability to sue under the Americans with Disabilities Act.

In 1985, Rep. Dick Gephardt made a mild proposal for tort reform in the medical malpractice suits that would make it harder to obtain non-economic damages if the plaintiff refused to accept a settlement for economic damages; in 2000, he criticized an OSHA attempt to regulate home offices of employees. Gephardt’s campaign has extensively criticized Dean’s record as governor (such as Dean’s 1993 support of NAFTA), but has yet to mention his position on tort reform. There is no mention on Gephardt’s web site of tort reform issues.

Democratic candidates and tort reform is a post from Overlawyered - Chronicling the high cost of our legal system

* 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).

October 2000 archives, part 1 is a post from Overlawyered - Chronicling the high cost of our legal system

Now the Competitive Enterprise Institute has launched a website project devoted to documenting and exposing the campaign to get John fired, and to collecting letters, petition signatures, and other signs of support so that ABC will know how big a fan base he has rooting for him. (SaveJohnStossel.org, temporarily hosted at counterprotest.net/stossel).

August 18-20 – “Caffeine added to sodas aims to addict — study”. Because most consumers in a small study could not tell by taste whether a soda had caffeine in it or not, some researchers at Johns Hopkins arrived at the conclusion that the substance appears in sodas for the sole purpose of “addicting” consumers. (Most of the biggest mass-market sodas offer a choice of caffeinated and non-caffeinated versions; typically the latter is considerably less popular with consumers, who are presumably helpless to choose between the products, enslaved as they are by their addiction.) “The study appeared in Archives of Family Medicine, which is published by the American Medical Association”. (“Pop made to hook drinkers”, Reuters/Detroit News, Aug. 15; “Cola makers rip study on caffeine addiction”, AP/Spokane Spokesman-Review, Aug. 15). Advocates who have participated in the demonization of the tobacco industry and other businesses have frequently denied that the food industry is next on the list. It’s certainly on some folks’ list, however. Last year Yale University researcher Kelly Brownell said: “I have called the food environment in the United States toxic … The food companies and their advertisers are, in fact, luring our children into deadly behavioral patterns … Sooner or later, the food companies will be considered in the same way we regard the tobacco industry.” (“Regulation by Litigation: The New Wave of Government-Sponsored Litigation”, sponsored by Manhattan Institute, Chamber of Commerce of the U.S., and Federalist Society, June 22, 1999, conference proceedings)

August 18-20 – Weekend reading: Macaulay’s bicentenary. Your editor being a longtime admirer of the great classical liberal Thomas Babington Macaulay, his latest Reason column is devoted to appreciating the Whig historian’s written legacy on the 200th anniversary of his birth (Walter Olson, “Confessions of a Macaulay Fan”, Reason, August/September). An outfit called Electric Book is generous enough to webpost downloadable versions of many of his essays, free for individual use (zip files of PDF documents).

August 18-20 – Snakes’ rights not always paramount. Notwithstanding endangered species law, New York environmental authorities have decided not to press charges against 72-year-old Phillip Wheaton for killing a protected rattlesnake that had bitten him. Wheaton had just stepped from his car on a rural road in Cameron, N.Y. when the timber rattler bit him on the leg. Wheaton proceeded to hit the snake with his cane, injuring it; it was taken to a veterinary hospital where it later died. “I had a fight with that snake and I won,” Wheaton said later. “I didn’t cause no fight with that rattlesnake but he caused it with me.” (“Slain serpent”, AP/Fox News, Aug. 16). Last year (Oct. 12) we reported on a court’s ruling, also in New York, that a private landowner was obliged to host rattlers on its property; it ordered the tearing down of a “snake-proof” fence that had prevented the venomous creatures from approaching an area where humans were at work.

August 16-17 –Fortune on Lerach. Don’t miss this long but grippingly reported account of the rise, prosperity and current woes of the world’s most widely feared plaintiff’s securities lawyer, Bill Lerach of the west coast office of Milberg, Weiss. Full of remarkable material new to us (Peter Elkind, “The King of Pain Is Hurting”, Fortune, Sept. 4). Earlier this summer the same magazine published a colorfully detailed account of infighting among the troop of plaintiff’s lawyers angling to bring down the HMO industry (John Helyar, “They’re Ba-a-ack!”, Fortune, June 26).

August 16-17 – Okay to make lemonade. In Eustis, Fla., the city government has backed down from an inspector’s attempt to close down the lemonade stand that nine-year-old Rachel Caine runs across the street from her home. (Stephanie Erickson, “Eustis officials back down from order to make girl, 9, close lemonade stand”, Orlando Sentinel/Ft. Lauderdale Sun-Sentinel, Aug. 9). And in Longmont, Colo., 11-year-old “Soda Girl” Caitlin Rezac is back in business with her fizzy-refreshment stand after a run-in with the Boulder County health department, which had busted her for operating without a hand sink and $110 license; a local business donated the sink (search Denver Post archives on “Caitlin Rezac” (excerpts free, fee for full story); letter to the editor from county official Ann Walters, Boulder Daily Camera, Aug. 12 (scroll) (via Liberzine)).

August 16-17 – Olympics website’s accessibility complaint. The United States isn’t the only place where controversy is simmering over websites that “exclude” blind and other disabled users (by not adopting design and syntax that cater to them). At a recent hearing of the Human Rights and Equal Opportunity Commission in Australia, organizers of the Sydney Olympics defended themselves against charges that they hadn’t made their website usable by the vision-impaired. (Rachel Lebihan, “Olympics web site riddled with blind spots”, ZDNet, Aug. 9). America Online has reached a provisional settlement of the complaint filed against it by the National Federation of the Blind (see Nov. 5); the online service pledges to alter its software to bring it into fuller compatibility with screen reader technology and says it will train its employees to be sensitive to disabled users’ needs, in exchange for which NFB agrees to postpone suing for a year (Oscar S. Cisneros, “AOL Settles Accessibility Suit”, Wired News, July 28). Also: a clip we missed earlier on Congress’s February hearing on this topic: “Do Web Sites Violate the Americans with Disabilities Act?”, TechLawJournal, Feb. 10.

August 16-17 – “City gun suit shot down on appeal”. An appeals court has unanimously upheld a lower court’s dismissal of the city of Cincinnati’s lawsuit against the gun industry, likening that suit “to the ‘absurdity’ of suing the makers of matches because of losses from arson.” Prominent tort attorney Stanley Chesley (see June 1, March 30), representing the city, says he will appeal to the Ohio Supreme Court, which, ominously for the gunmakers, is currently controlled by a majority of justices well disposed to trial-lawyer arguments (see May 8, 2000; Aug. 17 and Aug. 18, 1999). (Dan Horn, Cincinnati Enquirer, Aug. 12; “Cincinnati can’t sue gunmakers for damages, court rules”, Reuters/FindLaw; text of decision (Cincinnati v. Beretta; retrievable Word document, not website).

August 16-17 – Web-copyright update: “Dialectizer” back up, “MS-Monopoly” down. The “Dialectizer“, a website that will translate another page of your choice into a variety of stagey dialects including Redneck, Cockney, Elmer Fudd and Pig Latin, is back up and running; we reported May 18 that the site had closed itself down for fear of being sued by businesses that might view such automated translation of their websites’ contents to be an infringement on their copyright. However, the “MS-Monopoly” parody site, which adapted elements from the popular board game Monopoly to comment on the Microsoft case (see Dec. 3) has been pulled down at the behest of lawyers for toymaker Hasbro, which puts out the real game: “MS-Monopoly.com ‘Cease and Desist’ed by Hasbro Lawyers“. In Forbes, Virginia Postrel says big companies are being shortsighted when they sic lawyers on fan sites that happen to use copyrighted material; News Corp.’s Fox properties, for example, have issued rumbling letters to online enthusiasts of cult shows such as The X-Files and Buffy the Vampire Slayer. (“The Shortsighted Site Busters”, Forbes/Reason Online, July 24).

August 15 – Plastic surgeons must weigh patients’ state of mind, court says. By a 3-2 margin, a New York court has allowed a claim to proceed against a cosmetic surgeon for conducting liposuction and abdominoplasty procedures on a patient while “fail[ing] to take into account that she suffered from Body Dysmorphic Disorder, or a preoccupation with a minor or imaginary physical flaw,” which meant that her consent to the procedures might not really count as informed. The patient made at least fifty visits to the doctor’s office. (Michael A. Riccardi, “Doctor Must Weigh Patient’s Mental State”, New York Law Journal, June 29; Renee Kaplan, “What Should Plastic Surgeons Do When Crazy Patients Demand Work?”, New York Observer, July 31). (Update June 11, 2001: she loses in New York’s highest court). The American Life League, an anti-abortion group, plans to take a leaf from its counterparts on the left and launch a systematic litigation campaign based on malpractice, consumer protection and other theories to shut down abortion clinics, while a conservative writer suggests approaching sympathetic state attorneys general and getting them to file a tobacco-style megasuit against abortion providers (Julia Duin, “Pro-life advocates aim to hit clinics in the pocketbook”, Washington Times, Aug. 10; Chuck Morse, “Big Tobacco and the Abortion Industry”, EtherZone, June 12). In Erie, Pennsylvania, a judge has declared a mistrial in a medical malpractice trial after a juror fainted during the trial and the defendant physicians revived him; the judge thought it necessary, lest this act of kindness be thought to have improperly prejudiced the proceedings, to restart the whole ordeal from scratch (“Doctors accused of malpractice aid juror who fainted”, AP/CNN, Aug. 11). And Overlawyered.com‘s page on law and medicine has been selected as a resource by the MedExplorer medical search site.

August 15 – The Veep that got away. It’s been widely reported that the other finalist in the process by which Al Gore picked his running mate was youthful Sen. John Edwards of North Carolina, who’d have been an equally noteworthy pick from litigation reformers’ perspective but for opposite reasons: after briefly representing record companies Edwards “moved to Raleigh, N.C., in 1981 and became a plaintiffs’ lawyer. That made him a millionaire. His fortune has been estimated at $20 million to $50 million.” Edwards proceeded to sink an estimated $10 million from his own pocket into his first and only political campaign, knocking off incumbent Republican Lauch Faircloth by 4 points. The Gore camp saw Edwards as telegenic, a skillful speaker and from an important state, but worried that his past could backfire among voters unhappy with trial lawyers for “doing things like suing doctors and winning big verdicts, which then drive up health care costs — and Edwards has been an incredibly successful one of that breed.’” (Michael Kramer, “Aides: Al Leaning Toward Edwards”, New York Daily News, Aug. 6).

August 15 – “Teams liable for fans’ safety”. A Colorado court of appeals has ruled that “sports teams must protect fans from known dangers — such as flying hockey pucks — unless lawmakers specifically exempt the teams from such liability.” Diane Smith, a lawyer for the now-defunct Denver DareDevils roller hockey team, said fans sit in the more hazardous area near the goal because they want the best view and “if you are going to sit where the action is, there are risks that go along with that”; appeal to the state’s high court is planned (Howard Pankratz, Denver Post, Aug. 4).

August 14 – Bush-Lieberman vs. Gore-Nader? Our editor contributes a guest column today (pinch-hitting for the vacationing Holman Jenkins) for Opinion Journal, the Wall Street Journal editorial page’s new online venture. The column discusses the strong record Sen. Joe Lieberman has compiled on litigation reform, the dilemma this poses for Vice President Gore, the wrath it calls down on his head from fellow Connecticut resident Ralph Nader, and the reasons why America is unusual in treating the pro-litigation position as “progressive” when it isn’t deemed to be such in much of the rest of the world (“Not All Liberals Love Lawsuits”, Aug. 14).

August 14 – “Disney must pay $240 million in sports park lawsuit”. A jury in Orlando “ruled Friday that the Walt Disney Co. stole the idea for a sports theme park from a former baseball umpire and his architect partner and must pay $240 million in damages,” a sum that the judge has discretion to increase because the jury found Disney acted with malice. “The notion that we had to steal the idea from the plaintiffs, an idea as old as ancient Greece, is preposterous,” said Disney general counsel Lou Meisinger, who said “the plaintiffs lawyers had tried to frame the case as ‘little people against big business’ and attempted to ‘inflame their prejudice.’ Plaintiffs’ lawyer Willie Gary”, well known for his work on the Loewen and Coke cases, “called Disney’s reaction ‘sour grapes.’ ‘We beat ‘em and quite frankly we’ll beat ‘em again if we need to,’ Gary said. ‘They’re crying like little babies.’” Another member of the team of plaintiff’s attorneys was Johnnie Cochran of O.J. Simpson case fame (CNN, Aug. 11; Beth Piskora, “Ump and architect sue Disney for $1.5 B”, New York Post, Aug. 10; “The Mouse Stole Idea”, Aug. 12; Yahoo Full Coverage).

August 14 – “Airbag chemical on trial”. Because of the airbag in her $30,000 Mercedes, Edith Krauss and her husband walked away from a 1997 crash that otherwise might have killed them. But Krauss is suing the luxury automaker anyway: she “contends that she has been plagued by throat ailments since the crash and they stem from her inhaling sodium azide, the chemical that allows for the forceful deployment of airbags.” The company says the concentration of the chemical in an airbag is too low to cause harm. Trial began last week in Elizabeth, N.J. (MaryAnn Spoto, Newark Star-Ledger, Aug. 8).

August 14 – Embarrassing Lawsuit Hall of Fame. Among recent lawsuits with details so embarrassing it’s a wonder anyone would file them: a Barberton, Ohio woman is suing an acquaintance in small claims court, saying he reneged on a promise to let her pay in sexual favors for part of the sale price for a truck (Stephanie Warsmith, “An unusual ‘contract’ is in court”, Akron Beacon Journal, Aug. 10); the Massachusetts Commission Against Discrimination has recommended dismissal of a complaint by an employee of the town of Plymouth, who had charged that a town official inflicted a hostile working environment on her by (among other things) subjecting her to flatulence, the commission reasoning that the passing of gas is not sexual in nature (Aug. 27, 1999; not online, case referred by UCLA law prof Eugene Volokh); and an Ottawa man has sued a city hospital, saying it misdiagnosed a very intimate injury committed to his person after he got on stage at a club and allowed an exotic dancer to sit on his chest (Glen McGregor, “Man sues hospital over testicle removal”, Ottawa Citizen/National Post, Aug. 8; more exotic dancer litigation: July 26, May 23 (also from Canada), Jan. 28).

August 11-13 – Litigation reform: the Texas experience. Citizens for a Sound Economy releases a report evaluating the results of the 1995 package of litigation reforms enacted in Texas under Gov. George W. Bush (more about package, from Governor’s office). Prepared by the Perryman Group of Waco, Tex., the report estimates that the reforms contributed significantly to reducing prices, raising personal incomes and stimulating economic development in the Lone Star State, with resulting benefits to the average Texas household of $1,078 a year. (“The Impact of Judicial Reforms on Economic Activity in Texas”, Aug. 9; executive summary links to PDF document).

Earlier, Texas insurance commissioner Jose Montemayor estimated that insurance buyers in the state would save a cumulative $2.9 billion by 2000 through mandated rate reductions linked to the lawsuit reforms: “Tort reform has been a tremendous success.” (“Commissioner says tort reform saves Texans $2.9 billion”, AP/Abilene Reporter-News, Oct. 2, 1999). Trial-lawyer-allied groups soon attacked the figures (Terrence Stutz, “Tort Reform Savings on Insurance Overstated”, Dallas Morning News, Dec. 21, 1999, reprinted at Kraft Law Firm site), and have gone to considerable lengths to publicize their case since then (see Richard A. Oppel Jr. and Jim Yardley, “Bush Calls Himself Reformer; the Record Shows the Label May Be a Stretch”, New York Times, March 26, 2000, excerpted at Democratic National Committee site; now 404 Not Found, but GoogleCache has preserved a version). For a riposte from the reform side, see Tom Beaty, “Legal reform has brought benefits to business”, Houston Business Journal, Feb. 21, 2000.

And see: Constance Parten, “Texas Holds Its Own in Insurance Rates”, Insurance Journal, June 26, 2000 (reform package wasn’t expected to bring major savings in auto insurance, as opposed to commercial and medical lines, but did so anyway); Lone Star Report, Aug. 27, 1999 (scroll halfway down for item); and Texans for Lawsuit Reform. Citizens Against Lawsuit Abuse, Houston, has posted a variety of materials on the controversy at its website, including a summary of reforms; Jon Opelt, “$3 Billion Hardly Chump Change“; and Cora Sue Mach, “Governor Bushwhacked over Lawsuit Savings“. (DURABLE LINK)

August 11-13 – “Ohio cracks down on keggers”. Under a new Ohio law, people who want to give parties for which they’ll buy five or more kegs of beer must register the location of the party in advance, wait five days to take possession of the kegs, and “allow liquor agents and police to enter the property to enforce state liquor laws, a requirement that bothers the American Civil Liberties Union and others.” Several states have or are considering similar laws. “Maryland has required keg registration since 1994 to allow the containers to be traced to the buyer and the seller, both of whom are held accountable if minors are caught drinking the alcohol.” (Liz Sidoti, AP/St. Louis Post-Dispatch, Aug. 8).

August 11-13 – Stay away, I’ve got a court order. Last year Maryland passed a new law allowing residents to apply for a civil restraining order to keep away people who they say have frightened or harassed them, a type of protection long available in matrimonial cases. Now the law is being used more than proponents expected, and not just by unmarried paramours and other intimates but as a way to settle — or escalate — spats among schoolmates, neighbors, co-workers and virtual strangers. (Donna St. George, “Residents Seeking ‘Peace’ Invade Md. Courts”, Washington Post, Aug. 7).

August 11-13 – “Not even thinking about” fees. With appeals and other legal maneuvering expected to last quite a while after a Miami jury’s $145 billion punitive damage award against tobacco companies, Knight-Ridder asked plaintiff’s attorney Stanley Rosenblatt about fees he might reap from the action. “It’s so far down the road that we’re not even thinking about it,” he claimed. (Uh-huh.) “Generally lawyers’ fees in class-action suits are about 25 to 30 percent of the award or settlement,” the news service reports, though it speculates that trial judge Robert Kaye might approve a smaller fee award than that, perhaps a mere $1 billion. Rounded off in the overall context, that would count as almost nothing, right? (“Smokers’ lawyers could get $1B — or zilch”, Knight Ridder/Norwalk (Ct.) Hour, July 26, not online). Plus: commentary by the Cato Institute’s Robert Levy (“Litigation Lunacy in Florida”, Cato Daily, July 31).

August 2000 archives, part 2 is a post from Overlawyered - Chronicling the high cost of our legal system