Chronicling the high cost of our legal system
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The College Sports Council has recent reports from New York City, where both boys’ and girls’ squads have been sidelined following a New York Civil Liberties Union (NYCLU) suit over fall vs. spring scheduling (related earlier here, here, and here), and Kentucky, where quotas have prevented formation of a boys’ team.
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“In a new move against the online gambling industry, Gov. Steve Beshear’s administration is attempting to use an obscure state law to recover losses incurred by Kentuckians who placed bets through Web sites.” Three times the losses, in fact. [Stephanie Steitzer, Louisville Courier-Journal]
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Those of you who have attended my “Law of McDonald’s” talks in California and Florida may recall the case of the strip search hoax. A Florida man who was unusually persuasive would call dozens of fast food restaurants until he could find someone who would believe he was with the police and who would disrobe employees (or themselves) at his instructions; though there have been other lawsuits seeking to blame the fast food restaurants for this, courts have generally thrown them out. One exception was the case of Ogborn v. McDonald’s, where two targets of the hoax successfully sued for millions. On Friday, the Kentucky Court of Appeals largely affirmed the lower court judgment, though it reduced the punitive damages received by Donna Summers (who gave an Alford guilty plea for her role in the strip search) from $1 million to $400,000. McDonald’s hasn’t yet decided whether to appeal to the Kentucky Supreme Court. (Andrew Wolfson, “Appeals court upholds $6.1 million strip-search verdict against McDonald’s”, Kentucky Courier-Journal, Nov. 20, via ABA Journal).
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“U.S. Bankruptcy Judge Joan Lloyd ruled Friday that attorney Bruce Atherton and [financier] Randall Scott Waldman ‘blatantly breached’ their duty to the owner of a Louisville tool machinery company by forcing him out of business and seizing his assets. …Atherton was suspended from practicing law last month by the Kentucky Supreme Court based on his guilty plea in September in Pennsylvania federal court to charges that he aided a scheme in which other defendants allegedly ‘busted out’ small businesses by pretending to buy them, then draining their assets before the deals were completed.” [Louisville Courier-Journal via ABA Journal]
The story is from Kentucky, but it’s different from and evidently unrelated to the much-publicized episode in which three lawyers from that state arranged to divert large sums from the proceeds of a group settlement of fen-phen claims. Patricia Fulkerson of Nelson County sued the lawyer and law firm that had represented her in her fen-phen claim, saying that the lawyer sexually harassed her and that the law firm (quoting Andrew Wolfson in the Louisville Courier-Journal) “exaggerated her heart injuries — and those of other clients — so it could collect higher fees”:
A former paralegal in the firm, Fonda Walters, testified in a deposition that it exaggerated the injuries of a half-dozen clients, and that their initial test results, which had showed little or no heart damage, were altered. …Walters acknowledged she was fired from the firm in connection with a dispute over a bonus she claims she was owed.
The law firm’s defense raised (inter alia) an interesting argument:
Those lawyers also have argued that the alleged altering of Fulkerson’s medical records by the Florida-based firm of Wasserman Riley & Associates also doesn’t amount to negligence because “the claimed goal of the alleged malpractice was to get her more money.”
Apparently the judge rejected that argument, though. In a second Journal-Courier report dated June 22 — the same date as the above item, but presumably subsequent to it — Wolfson reports that Fulkerson’s lawsuit “has been successfully mediated and will be dismissed, lawyers for both sides said.” Speaking to the Broward-Palm Beach (Fla.) New Times, partner Jay Wasserman called the claims of diagnosis-embellishment “absolute nonsense”:
Wasserman also says there were only about six claims filed among the many prospective clients who received the complimentary tests. “If [falsifying results] was going on, why didn’t we have a much bigger number?” Wasserman asks, adding that since the reports were produced by experts and would be part of the case, it wouldn’t be possible to fake them, even if he wanted to.
More: Ronald Miller.
You may recall the earlier trial of the Kentucky fen-phen attorneys who had stolen tens of millions of dollars from their clients ended in a mistrial for two and an acquittal for their third compatriot. This time around, a federal court jury, after ten hours of deliberation, found William Gallion and Shirley Cunningham Jr. guilty of eight counts of fraud and one count of conspiracy. A streamlined prosecution case no doubt helped make a difference; defense attorneys sought to blame the matter on Stan Chesley, who negotiated the underlying settlement and received millions more than he was contracted to receive, and it remains mysterious why he was not charged. [Courier-Journal]
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The state of Kentucky enacted a new sales tax on the services of telecommunications companies. It also forbade the companies from breaking the tax out as a line item on customer’s bills — that might get people mad at the legislators, after all. The Sixth Circuit, Sutton, J., ruled that under the intermediate level of First Amendment scrutiny applied to limitations on commercial speech, the “no-stating-the-tax” provision was unconstitutional. (BellSouth v. Farris, Sept. 9).
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If you recall, the theory of defenders of the McDonald’s coffee case was that McDonald’s, and only McDonald’s, served coffee so hot as to burn, and thus merited special disapprobation.
As Overlawyered readers know, that just ain’t so. The recommended serving temperature of coffee can cause third-degree burns; coffee-drinkers prefer coffee that is that hot. Thus, lots of vendors sell coffee that causes third-degree burns when spilled.
Add to that list the Pilot Travel Center truck stop in Mount Sterling, which is the defendant in a Kentucky suit brought by Thomas Skaggs, who says he spilled coffee on his leg in December and got a third-degree burn. The skimpy press coverage on WLKY.com gives no further details other than an unimpressive photo.
The press is starting to catch on to the scandal of Judge Bamberger not being charged in the Kentucky fen-phen settlement scandal, and we have criminal trial updates after the jump.
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The name does have a clean, daisy-fresh smell to it, like a good laundry. In this case the laundering being done was of settlement money in the Kentucky fen-phen scandal. (WSJ law blog, Louisville Courier-Journal, Lexington Herald-Leader, Krauss @ PoL).
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Here’s your $3 million bonus, young man, and whatever you do, don’t tell the clients how much the case settled for (Jim Hannah, “Fen-phen lawyer details bonus”, Cincinnati Enquirer, May 15; earlier)(via Slater, WSJ law blog).
We’ve extensively covered the scandal over charges that attorneys William Gallion, Shirley Allen Cunningham Jr. and Melbourne Mills Jr. siphoned off $65 million or so in settlement money due claimants in the diet drug litigation, using the proceeds to buy, among other things, the Preakness-winning race horse Curlin. Ted notes the latest developments over at Point of Law, as does Carter Wood. (Wolfson/Courier-Journal, WSJ law blog).
More from WSJ law blog: Mills’ lawyer tells jury his client “was hospitalized for an ‘alcoholic seizure’ a month after the case was settled, didn’t take part in any court hearings and was too drunk at the time to be responsible,” while prosecutor says “that Mills ’sat back and laughed’ when the other two described a plan to overcharge the clients.”
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Not only can you not sell the Kentucky dessert unless you are Kern’s Kitchen, Inc., but you’d better not offer any “Bluegrass Bourbon Pie” and get all winky-winky with your customers about it, either. Wikipedia discusses the litigation history. (Charlie Pearl, “Still playing the pie game”, Frankfort State-Journal, Apr. 17)(via Catallaxy.net).
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