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Minnesota

Surely it would have been possible to line up a lead plaintiff who did not himself turn out to run a competing collection agency [ABA Journal]

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“In Minnesota legal circles, a newspaper once wrote of him, David Moskal was ‘known for several remarkable achievements, including the fastest disbarment in the state’s history.’” Not content with making more than $1 million a year through his injury practice, Moskal also stole millions from clients. Even after his disgrace, he passed himself off as an attorney while working as a client liaison at a spine-injury center. [Legal Blog Watch, MinnLawyer, WestWord (which also has an interesting background article on the relations between lawyers and injury-treatment clinics in Denver)]

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Metal jewelry is among the relatively few children’s products that presents a risk of lead ingestion to children not approximating zero, so it’s not especially surprising that it is treated with special stringency under the Consumer Product Safety Improvement Act. As CPSC’s guidelines explain, metal children’s jewelry becomes subject to testing and certification requirements on the 20th of this month (its makers do not benefit from the one-year stay) and items with even the tiniest dab of paint are subjected to additional requirements, including a separate testing/certification requirement that is already in effect. Since the law went into effect lead content has been limited to 600 parts per million in both jewelry and paint, and on August 14 the threshold for paint content will drop to 90 per million. Lead in its natural state has in many eras been a popular constituent of jewelry because of the metal’s soft and easily worked consistency. It is also a constituent element of all true crystal and many or most rhinestones — although there is much evidence that it is poses far less hazard to health in those forms because it tends to remain chemically bound into the crystal structure rather than leaching or dissolving out if chewed or ingested.

jewelbox

Given the stringency of its testing requirements and its unfriendliness toward component certification, CPSIA is not surprisingly causing serious economic difficulties in the children’s jewelry business, not excluding makers who have never used materials or components containing lead but must shoulder the extensive cost of testing anyway. HABA, the much-admired German toy company, has already announced the departure of its jewelry line from the U.S. market:

Due to the new CPSIA laws we have made the voluntary financial decision to no longer have the jewelry section in our catalog. The 2009 catalog will not include the jewelry. This does NOT mean that our current jewelry does not meet the ASTM requirements. Our overall jewelry sales are a very small percent of our business and the cost to test these items would outweigh the margins to sell the products.

Rhode Island is the historic center of costume jewelry making in America, and the Providence Business News reported recently on the plight of some of its makers. Keith Barber, partner in Rainbow Sales Inc. in Cranston,

said he has been following this issue for at least five years, since California adopted a strict law banning lead in children’s products. The California law became the model for the federal version, and Barber noted that California included an exclusion for rhinestones and crystals. California, he said, “took the time and did it right.”

Alan R. Green, owner and operator of Argo Products in Johnston, like Barber has thousands of dollars now tied up in unsalable rhinestone items, and believes that plastic substitutions will not be as broadly appealing to customers.

Green says that he could live with going out of business if he were a lousy businessman or as a result of the weak economy. “But to lose my business because of an ill-conceived federal regulation that is completely divorced from reality, that’s really going to hurt,” said Green.

The Fashion Jewelry Trade Association (FJTA), based in North Kingstown, R.I., “represents about 2,500 costume jewelry makers worldwide,” the article says. Its president, Michael Gale,

said his organization several weeks ago submitted a 37-page petition to the CPSC, formally requesting an exclusion for crystal, rhinestone and glass, complete with scientific evidence and a risk-assessment study in what he called a “very elaborate presentation.” … No response has been received yet, Gale said.

In the period leading up to CPSIA’s passage, the most publicized death — even, by some accounts, the only death — of an American child relating to an item regulated by CPSIA was that of 4-year-old Jarnell Brown of Minneapolis, who per the Star-Tribune “died from swallowing a heart-shaped charm made almost entirely of lead” in a charm bracelet that came free with Reebok sneakers bought by his mother; Reebok paid a $1 million fine. Minnesota Sen. Amy Klobuchar cited the case in campaigning for some of the law’s most stringent provisions. It can be hard to get a clear account of what happened in the Brown poisoning, and Michael Shaw has tried to track down “numerous inconsistencies in the reporting of this entire tragic business, including the health of the child before this incident, how he obtained the bracelet, and how a child with supposedly no history of ingesting foreign objects did so.” childmermaidAs far as the case for CPSIA goes, it bears repeating that the federal laws already in effect made it punishable for Reebok to distribute the merchandise in question — hence the record-setting fine (as well as other consequences to that company). The main point of CPSIA was to clamp a draconian regulatory regime on products that, unlike the heart charm, weren’t a risk for poisoning anyone. More commentary on the Jarnell Brown case: Deputy Headmistress, scroll also to comments; Kathleen Fasanella, scroll to third example in her response; Valerie Jacobsen in comments at League of Ordinary Gentlemen. On the adequacy of CPSC’s legal authority to address lead in jewelry under previous law, see also Rick Woldenberg/Little Ida.

Children’s jewelry is also produced by many beaders, crafters and other small enterprises for sale at local arts fairs, Etsy, and so forth.* The outcry on CPSIA from small producers, dealers and distributors includes, to pick a sampling, Fairy Tale Jewels, Angie Vinez, Birds and the Beads (”Even if the components have all been certified (such as TierraCast pewter), the CPSIA law still requires that the final product be tested regardless.”), My Aphrodite, Rings and Things, My Charmed Life, and Michon Jewelry.

In the coming days (per the article) CPSIA is expected to be a major topic of discussion at the annual exhibition of another jewelry trade group, the Providence-based (and fine-jewelry-oriented) Manufacturing Jewelers & Suppliers of America (MJSA), which holds its MJSA Expo at New York’s Javits Center from Sunday Mar. 8 through Tuesday, Mar. 10. Certain newspapers that have dismissed concerns about CPSIA’s effect on small businesses as “needless fears” could even send a reporter to that expo if they wanted — it’s only a few blocks’ stroll.

* Lab testing costs are likely to mount into the many thousands of dollars for many kitchen-table and cottage-industry makers, especially if they use many colors of bead or paint and produce multiple or customized styles.

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January 29 roundup

by Walter Olson on January 29, 2009

  • Free class-action swag if you bought department store cosmetics between 1994 and 2003; not that they’re giving away the very best stuff or anything [Tompkins/Poynter, California Civil Justice, WSJ Law Blog, settlement site] We’ve been covering the story for quite some time;
  • Law school “can be a financial disaster” for unwary students [Law and More] Law schools not immune from economic downturn [Above the Law]
  • Bruce Bawer on Dutch prosecution of Islam-criticizer Geert Wilders [City Journal]
  • More on possible passenger suits after the miracle Hudson-landing USAir Flight #1549 [USA Today, earlier] Update: NY Post, NY Mag.
  • Bad news for patients and other living things: Sidney Wolfe of Public Citizen somehow got named to a key FDA panel during the late Bush administration [Point of Law, Postrel, Bernstein/Volokh, Hooper & Henderson/Forbes]
  • “Friends weren’t really trying to reach me!” class action against Reunion.com encounters another setback [Spam Notes]
  • Stand and deliver it back: “Minnesota: $2.6 Million in Red Light Camera Tickets Refunded” [The Newspaper]
  • Gary, Indiana’s is the last standing of what were once thirty “gun sales = nuisance” suits filed by cities; now Indiana high court says it can go to trial [Point of Law]

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There go trailers, right? “An attorney for the family of the 10-year-old killed when the 2006 Rogers [Minnesota] tornado hit is arguing that faulty construction, not an act of God, is to blame.”

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November 26 roundup

by Walter Olson on November 26, 2008

  • Businesswoman takes to her blog to criticize the business practices of a video-production firm, and then the lawsuit arrives [Inc. magazine via MediaBloggers; Vision Media Television v. Leslie Richard/Oko Box]
  • Litigious Minneapolis strip club owner “sued a one-time housemate for, among other things, not returning some pillows and a coat rack.” [Star-Tribune via Obscure Store]
  • Really now, says judge to Coughlin Stoia class-actioneers, $1,365.95/night in travel expenses is a bit rich in this Coke settlement [Krauss, PoL]
  • L.A. attorney Terry Christensen sentenced to three years in Pellicano wiretap scandal [AP/Variety] Did L.A. Times skew coverage toward Pellicano defense? [Patterico, more]
  • New Louisiana lawyer-ad rules: would they restrain lawyers from blogging or posting on Facebook/Twitter? [Coleman, Ribstein vs. O'Keefe vs. Greenfield]
  • Electing public defenders is bad idea to start with, and things get particularly dicey when the local cops throw their support to one candidate [Balko, Reason "Hit and Run"; Jacksonville, Fla.]
  • Online carpooling service? Great idea until the bus authorities get you closed down [Save PickUpPal in Ontario via Coyote; Canada]
  • Horizon Blue Cross agrees to settle suit over coverage of eating disorders, will pay $1.18 million to some policyholders to cover extended bulimia and anorexia treatments, and $2.45 million to class action lawyers led by Bruce Nagel of Roseland, N.J. [NJLJ]

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Minnesota: “In a landmark settlement that could change the way Muslims are treated in the workplace, St. Cloud-based Gold’n Plump Inc. has agreed to allow Somali workers short prayer breaks and the right to refuse handling pork at its poultry processing facilities.” The federal Equal Employment Opportunity Commission had sued Gold’n Plump Poultry, Inc., along with an employment agency that worked with it, charging religious discrimination and retaliation on behalf of the Muslim workers. The employment agency had required applicants to sign a form saying that they would not refuse to handle pork products if the occasion arose at work. (Chris Serres, “Somalis win prayer case at Gold’n Plump”, Minneapolis Star-Tribune, Sept. 10). “The timing of the [paid] added [prayer] break will fluctuate during the year so as to coordinate with the religious timing for Muslim prayers.” The two companies between them also agreed to pay $365,000 as part of the settlement. (Sept. 10; EEOC news release; via Workplace Prof Blog).

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July 13 roundup

by Walter Olson on July 13, 2008

  • Nothing new about lawyers stealing money from estates, but embarrassing when they used to head the bar association [Eagle-Tribune; Lawrence, Mass., Arthur Khoury]
  • Unusual “reverse quota” case: black job applicant wins $30K after showing beauty supply company turned her down because it had a quota of whites to hire [SE Texas Record]
  • Who knew? Per class action allegations, pet food contains ingredients “unfit for human consumption” [Daily Business Review]
  • U.K.: “A divorcee who won a £1.4million payout from her multi-millionaire husband is suing her lawyers because she claims she should have got twice that amount.” [Telegraph]
  • UW freshman falls from fourth-floor dorm window after drinking at “Trashed Tuesday”, now wants $ from Delta Upsilon International as well as construction firm that put in windows [Seattle P-I, KOMO]
  • After giant $103 million payday, current and former partners at Minneapolis law firm are torn by feuds and dissension — wasn’t there a John Steinbeck novella about that? [ABA Journal and again, Heins Mills]
  • Small firm that used to make Wal-Mart in-house videos sets up shop at AAJ/ATLA convention hawking those videos for use in suits against the retailer [Arkansas Democrat Gazette, earlier]
  • When the judge’s kid gets busted [Eric Berlin; Alabama]

Yesterday the New York Times reported on the longstanding problem of patient assaults on medical personnel, particularly in psychiatric care: citing Bureau of Labor Statistics numbers, it said “half of all nonfatal injuries resulting from workplace assaults occur in health care and social service settings”. (David Tuller, “Nurses Step Up Efforts to Protect Against Attacks”, Jul. 8). So it’s worth noting what happened to Northfield City Hospital in Northfield, Minnesota when a man showed up at the emergency room at 2 a.m., ranting and yelling in an increasingly agitated manner. Hospital staff finally called the police, who arrived on the scene at 7 a.m., assessed the situation and tasered the man. (He was uninjured otherwise and was subdued without losing consciousness.) “Now federal and state health officials have cited the Northfield hospital for violating the patient’s rights,” a development that has outraged hospital officials in the state. The state health department says it believes that staff at the facility, a small one with fewer than 100 beds, “needs more training in deescalation techniques”. The hospital has hired two security guards and is negotiating other steps with the state (Maura Lerner, “Hospital calls cops and feels the sting”, Minneapolis Star-Tribune, Jun. 15). A commenter at KevinMD asserts:

A few years ago, Medicare tried to prohibit physicians from discharging a patient for any reason, up to and including physical attacks on physicians and staff.

Just as the doctors were required to hire translators at the doctor’s expense, they would be required to hire security at the doctor’s expense.

They backed off then, when they physicians called them on it. Not surprised they would try again.

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Industrial safety specialists have long warned of the hazards of letting employees wear baggy garments around assembly-line machinery, hence the snug uniform, including pants, prescribed for both sexes by Mission Foods at its tortilla-making plant in New Brighton, Minn. Fatuma Hassan, an employee of Somali descent, claims it’s religious discrimination not to let her wear traditional garb. Thanks in part to activist groups eager to provide backup, Minnesota has become a flashpoint for Muslim employees’ demands for religious accommodation on the job: the cab drivers who refused to transport arriving airline passengers carrying duty-free alcohol and the Target cashiers who declined to scan pork apparently never made it to court, but complainants in the state filed 45 other cases with the EEOC last year. A class action is in progress against circuit-board maker Celestica on behalf of 22 employees, many of whom “were fired or suspended for taking unauthorized breaks at sunset. The changing Islamic prayer schedule was a key reason.” (”Cultural traditions can lead to conflict on the job”, AP/Rochester (Minn.) Post-Bulletin, Jun. 17)(via Michelle Malkin).

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June 5 roundup

by Walter Olson on June 5, 2008

  • “I believe it’s frivolous; I believe it’s ridiculous, and I believe it’s asinine”: Little Rock police union votes lopsidedly not to join federal “don/doff” wage-hour lawsuit asking pay for time spent on uniform changes [Arkansas Democrat Gazette courtesy U.S. Chamber]
  • Must-read Roger Parloff piece on furor over law professors’ selling of ethics opinions [Fortune; background links @ PoL]
  • Too rough on judge-bribing Mississippi lawyers? Like Rep. Conyers at House Judiciary, but maybe not for same reasons, we welcome renewed attention to Paul Minor case [Clarion-Ledger]
  • American Airlines backs off its plan to put Logan skycaps on salary-only following loss in tip litigation [Boston Globe; earlier]
  • U.K.: Infamous Yorkshire Ripper makes legal bid for freedom, civil liberties lawyer says his human rights have been breached [Independent]
  • In long-running campaign to overturn Feres immunity for Army docs, latest claim is that military knowingly withholds needed therapy so as to return soldiers to front faster [New York Rep. Maurice Hinchey on CBS; a different view from Happy Hospitalist via KevinMD]
  • Profs. Alan Dershowitz and Robert Blakey hired to back claim that Russian government can invoke U.S. RICO law in its own courts to sue Bank of New York for $22 billion [WSJ law blog, earlier @ PoL]
  • Minnesota Supreme Court declines to ban spanking by parents [Star-Tribune, Pioneer Press]
  • Following that very odd $112 million award (knocked down from $1 billion) to Louisiana family in Exxon v. Grefer, it’s the oil firm’s turn to offer payouts to local neighbors suffering common ailments [Times-Picayune, UPI]
  • AG Jerry Brown “has been suing, or threatening to sue, just about anyone who doesn’t immediately adhere” to his vision of building California cities up rather than out [Dan Walters/syndicated]
  • Virginia high school principal ruled entitled to disability for his compulsion to sexually harass women [eight years ago on Overlawyered]

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We had a request to post the District of Minnesota opinion dismissing the meritless Sinclair v. Obama litigation (discussed May 15), so I have uploaded the magistrate’s thorough report and recommendation in Case No. 08-cv-00360-JMR-RLE (D. Minn.).  Sinclair failed to file objections to the February 25 report, and Judge James M. Rosenbaum adopted it in a summary order dated March 19, issuing final judgment the same day.

Note that the magistrate applied 28 U.S.C. § 1915(e)(2)(B)(i) to dismiss the plainly frivolous case sua sponte without requiring the victimized defendants to expend legal fees in responding; in December 2006, I discussed the underuse of this provision in pro se litigation.  More on delusional pro se cases.

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City governments, sometimes in league with private counsel working on contingency fee, “have started suing banks and mortgage companies to recoup their costs” on such services as “fire departments, police, code enforcement or even demolition” in blighted neighborhoods. “The lawsuits were filed in recent months under different theories, in state and federal court. Cleveland and Buffalo filed suits under public nuisance laws. Minneapolis’ suit was brought on consumer fraud grounds, while Baltimore took the unusual approach of filing suit in federal court under alleged Fair Housing Act violations.” Bank of New York says it was included in Buffalo’s suit against 39 lenders even though it neither originated nor purchased loans, but merely acted as trustee. (Julie Kay, “Empty Homes Spur Cities’ Suits”, National Law Journal, May 9).

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Roundup, March 15

by Ted Frank on March 15, 2008

  • Speaking of prostitutes and politicians, Deborah Jeane Palfrey has come to recognize that Montgomery Blair Sibley (Oct. 29; May 4; etc.) may not be the best lawyer for her. [WTOP via BLT]
  • Update: Nearly two years later, trial court gets around to upholding $2 million verdict in lawn-mower death we covered Jun. 16 and Aug. 18, 2006. [Roanoke Times (quoting me); opinion at On Point]
  • In other lawn mower news, check out Jim Beck’s perceptive comment on a Third Circuit lawn-mower liability decision.
  • Update: Willie Gary wins his child-support dispute. [Gary v. Gowins (Ga.); Atl. Journal-Const.; via ABA Journal; earlier: Nov. 2]
  • Tobacco-lawyer Mike Ciresi drops out of Minnesota senate race. [WCCO]
  • Belfast court quashes libel ruling against restaurant critic. [AFP/Breitbart]
  • Trial-lawyer-blogger happy: jury returned $1.25 million med-mal verdict for death of totally disabled person suffering from end-stage renal disease, pulmonary hypertension, oxygen dependent lung disease, and obesity, after rejecting businessperson from jury “for cause” because he was head of local Chamber of Commerce. [Day]
  • Car-keying anti-military attorney Jay Grodner faced the law in January; here’s the transcript. [Blackfive]
  • Anonymous blog post not reliable evidence of factual allegations. [In re Pfizer, Inc. Sec. Litig., 2008 WL 540120 (S.D.N.Y. Feb. 28, 2008) via Roberts, who also reports on fee reduction in same post]
  • Clinton’s nutty mortgage plan. [B&MI (quoting me)]
  • A supposed DC cabbie’s take on DC v. Heller. [DC Cabbie blog]

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Med-mal in the Upper Midwest

by Walter Olson on February 22, 2008

The lowest medical malpractice insurance rates are found in Minnesota, Wisconsin, Iowa and the Dakotas. Why is that? Probably not because doctors there have managed to achieve anything resembling error-free practice; and probably not because the five states, taken as a whole, are distinguished by any unusually pro-defendant set of tort laws. MedInnovationBlog takes up the question here and here, and speaks with a mutual insurer executive in search of explanations, which may include (among others) a “culture of collegiality among doctors and society as a whole”, a hard line against doubtful claims, and a paucity of giant verdicts of the John Edwards variety. (cross-posted from Point of Law).

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December 18 roundup

by Walter Olson on December 18, 2007

  • “Of all the body parts to Xerox!” Another round of stories on efforts to reduce liabilities from office holiday parties [ABA Journal, Above the Law, and relatedly Megan McArdle]
  • New edition of Tillinghast/Towers Perrin study on insurance costs of liability system finds they went down last year, which doesn’t happen often [2007 update, PDF]
  • Vermont student sues Burger King over indelicate object found in his sandwich; one wonders whether he’s ruled out it being a latex finger cot, sometimes used by bakery workers [AP/FoxNews.com]
  • Good discussions of “human rights commission” complaints against columnist Mark Steyn in Canada [Volokh, David Warren and again @ RCP, Dan Gardner; for a contrasting view, see Wise Law Blog]
  • Having trousered $60-odd million in fees suing Microsoft in Minnesota and Iowa antitrust cases, Zelle Hofmann now upset after judge says $4 million in fees should suffice for Wisconsin me-too action [Star-Tribune, PheistyBlog]
  • Australian rail operator will appeal order to pay $A600,000 to man who illegally jumped tracks, spat at ticket inspectors, hurt himself fleeing when detained [Herald Sun]
  • Lawyers’ fees in Kia brake class action (Oct. 29, Oct. 30) defended by judge who assails honesty of chief defense witness [Legal Intelligencer]
  • Who deserves credit for founding Facebook? Question is headed for court [02138 mag]
  • Yes, jury verdicts do sometimes bankrupt defendants, as did this $8 million class action award against a Kansas City car dealer [KC Star, KC Business Journal]
  • Dispute over Burt Neuborne’s Holocaust fees is finally over, he’ll get $3.1 million [NY Sun]
  • So long as we’re only fifty votes behind in the race for this “best general legal blog” honor, we’re going to keep nagging you to vote for Overlawyered [if you haven't already]

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For a while now, lawyers in Minnesota, Oklahoma and elsewhere have been suing companies that make over-the-counter cold remedies containing ephedrine and pseudoephedrine on the grounds that they were aware some buyers were using the drugs as raw material for illegal methamphetamine labs. Now such litigation appears to be gaining momentum in Arkansas, where many county governments have signed up to sue Johnson & Johnson, Pfizer, and other companies. “If successful, it could open up litigation against manufacturers of other produce used in making meth, such as drain cleaners and acetone.” (E. Alan Long, “Williams updates JPs on methamphetamine litigation”, Carroll County News, May 29; and see this, on anhydrous ammonia). As of last month, twenty-two counties had enlisted in the litigation, which seeks to recoup, among other things, money spent on the processing of criminal methamphetamine cases. “What more could we have done with a million dollars a year for our county? Would that have meant a half dozen more police officers? Would that have meant a better solid waste program? Who knows, what could your county have done with an extra million dollars,” asked Judge Bill Hicks of Independence County, a backer of the suits. (”Special Report: Meth Related Lawsuit Filed Against Pharmaceutical Companies”, KAIT, Aug. 1; Pharmalot via Childs)(& welcome Megan McArdle readers).

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Minneapolis bridge aftermath

by Walter Olson on September 6, 2007

A federal judge has rebuked a large Minnesota personal-injury law firm that, even before rescuers had emerged from the treacherous waters, had petitioned for access to the I-35W site for three attorneys and two expert witnesses. And Democrat-Farmer-Labor State Rep. Ryan Winkler has suggested establishing a public compensation fund, along the lines of the 9/11 fund, for victims who agree not to sue:

The legal spectacle about to play out threatens to drag on for years and impose huge costs on some defendants.

In the future, as Winkler has pointed out, even the largest contractors may hesitate to work on Minnesota’s riskiest projects: repairs to crumbling infrastructure. “If engineers and constructors are scared away from bidding,” he warns, “it will be a long time before our infrastructure is adequate and safe.”

(Katherine Kersten, “After I-35W bridge collapse, lawyers promptly pounced”, Minneapolis Star-Tribune, Sept. 2). Earlier: Aug. 9, Aug. 2.

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