When driving through the hamburger chain’s order line, Karen Tumeh, who is hearing-impaired, doesn’t like to use the order box, which she says makes her hearing aid screech. Her lawsuit apparently construes the Americans with Disabilities Act as entitling her instead to place her order upon arriving at the pickup window and wait there until it is ready, even if other customers are lined up behind her. Employees at a Lincoln, Neb. outlet of the hamburger chain allegedly told her that if she couldn’t or wouldn’t use the order box she should come inside and order from the counter rather than hold up other patrons in the car line. (Clarence Mabin, “Hearing-impaired woman sues McDonald’s”, Jul. 15; AP/Omaha World Herald, Jul. 16).

• “Woman who ‘lost count after drinking 14 vodkas’ awarded £7,000 over New Year fall from bridge” [The Scotsman]
• Bar committee recommends disbarment for Beverly Hills lawyer who “played the courts like a bully in a child’s game of dodgeball” [Blogonaut (with response by attorney) via ABA Journal]
• Shot and paralyzed in parking lot of South Florida strip club, cared for back home in Tunisia, Sami Barrak is now $26 million richer by way of his negligent-security suit [Sun-Sentinel] Earlier Florida negligent-security here, here, and here.
• Canadian government orders airlines to stop charging the severely obese the price of a second seat [Winnipeg Free Press; earlier]
• Study of head-injury victims in Spain finds “nearly half of the people who go to court feign psycho-cognitive disorders with the objective of profiting from this in some way.” [Science Daily]
• Federal judge vacates $1.75 million verdict, questions reliability of expert testimony in Nebraska recovered-memory sex abuse case [Lincoln Journal-Star, AP/Sioux City Journal]
• Confess your thoughts, citizen: Ezra Levant on his interrogation by official panel in Canada for publishing Mohammed cartoons [Globe & Mail; earlier]
• Class-action lawyers continue to hop on glitches with Xbox Live, Halo 3 and related Microsoft gaming systems [Ars Technica, News.com; earlier here and here]
• Bay Area proposal to ban much burning of wood in fireplaces and stoves (Nov. 30, etc.) draws strong reactions both ways [SF Chronicle]
• Harder to get into Ringling Bros.’s Clown College than law school, says man who attended both [six years ago on Overlawyered]

• Client’s suit against Houston tort lawyer George Fleming alleges that cost of echocardiograms done on other prospective clients was deducted as expenses from her fen-phen settlement [Texas Lawyer]
• Preparing to administer bar exam, New York Board of Law Examiners isn’t taking any chances, will require hopefuls to sign liability waivers [ABA Journal]
• Thanks to Steven Erickson for guestblogging last week, check out his blogging elsewhere [Crime & Consequences, e.g.]
• “Freedom of speech” regarded as Yankee concept at Canadian tribunal? [Steyn @ NRO Corner; reactions]
• Court rules Dan Rather suit against CBS can go to discovery [NYMag; earlier here, here]
• Served seventeen years in prison on conviction for murdering his parents, till doubts on his guilt grew too loud to ignore [Martin Tankleff case]
• Orin Kerr and commenters discuss Gomez v. Pueblo County, the recent case where inmate sued jail for (among other things) making it too easy for him to escape [Volokh]
• New at Point of Law: Cleveland’s suit against subprime lending is even worse than Baltimore’s; Massachusetts takes our advice and adopts payee notification; law firm websites often promote medical misinformation; lawyer for skier suing 8-year-old boy wants court to stop family from talking to the press; Ted rounds up developments in Vioxx litigation once and then again; guess where you’ll find a handsome statue of Adam Smith; and much more;
• Good news for “resourceful cuckolds” as courts let stand $750,000 alienation of affection award to wronged Mississippi husband [The Line Is Here; ABCNews.com]
• Kimball County, Nebraska cops don’t know whether that $69,040 in cash they seized from a car is going to be traceable to drug traffickers, but plan to keep it in any case [Omaha World-Herald via The Line Is Here]
• Hunter falls out of tree, and Geoffrey Fieger finds someone for him to sue [seven years ago on Overlawyered]

Sen. Ernie Chambers does not deny the silliness of his complaint against Jehovah over natural disasters and the like, but says it’s meant to make a serious point. You might think that the point would have to be how little sense it makes to give anyone the power to sue anyone over anything, but it turns out that Sen. Chambers actually opposes proposals in Nebraska to restrict the filing of meritless lawsuits, and thinks, with perhaps elusive logic, that his stunt somehow will make people agree with him on that. (KPTM with filing in PDF format, KETV, FoxNews.com, AP/Omaha.com, Volokh). The best picture to run with the story is definitely the Apr. 12, 2006 file photo at MyWay/AP News.

• Pearson Pants update: dry cleaners offered to drop their fee demand if Pearson would end case, but he declined [Marc Fisher, other Washington Post coverage, Beldar]
• Check your oil, ma’am? On second thought, if it’s going to get us sued, never mind [Reiland/Pittsburgh Tribune-Review]
• “Surprising and uncommon” resolution of med-mal case: Nebraska Methodist Health System admits error, cooperates with family on video memorializing victim and educating other hospitals about aortic dissection [Omaha World-Herald, Chamber reprint]
• Heated email exchange between perennial Overlawyered favorite Jack Thompson and Take Two game company exec [Ambrogi]
• Putting her image on a Hallmark card? Now that’s degrading and exploitative enough to make Paris Hilton want to sue [K.C. Star]
• Uncle sues nephew over season tickets to Chicago Bears at 40-yard line [Crain's Chicago Business]
• Hurt her teeth on McDonald’s cherry pie, hurt her teeth on cheeseburger soon after — and what’s this about forged dental-work receipts? [Seattle Times]
• Wisconsin snuff users may soon be rolling in coupons following settlement of antitrust class action, lawyers to pocket $17 million [AP/Green Bay Press-Gazette]
• New at Point of Law: fiasco of UC Irvine’s withdrawn offer to Chemerinsky; judge says $500/hr is enough for lawyers in Northwest bankruptcy; law firm advertises for heart attack victims to sue over lack of defibrillators in public places; Astroturf detected in Washington-state insurance-suit referendum fight; NY Times takes skeptical look at Mount Sinai’s Selikoff Center; Jerry Brown sure fooled us, says San Diego paper; Ted expands his empire; and much more;
• A topic on which we’ve had a lot to say over the years — to what extent does the Americans with Disabilities Act apply to websites? — may be heating up again [Corporate Counsel]
• Thanks for the incoming links from, among others, Instapundit (on Ted’s reclining-car-seat post, which has drawn a bodacious number of comments), Patterico (on Jarek Molski), Bainbridge (on animal welfare laws), and Adam Smith Institute (on lawyers suing each other: “Such a pity that only one side can lose”.)

The Federalist Society has posted a podcast of their recent panel:

Recently there has been growing discussion concerning the appropriate role of state Attorneys General. Some argue that state AGs have overstepped their boundary by prosecuting cases and negotiating settlements that have had extraterritorial effects, and sometimes even national effects. Others argue that state AGs are simply filling a vacuum left by the failure of others (for example, federal agencies) to attend to these issues. In light of this debate, the Federalist Society hosted a panel in Washington, D.C. featuring several state Attorneys General who discussed the proper role of state AGs.

Panelists included:

* Hon. Bob McDonnell, Attorney General of Virginia
* Hon. Donald Stenberg, former Attorney General of Nebraska; Erickson & Sederstrom
* Hon. John Suthers, Attorney General of Colorado
* Hon. J. B. Van Hollen, Attorney General of Wisconsin
* Ms. Peggy Little, Little & Little; Director, Federalist Society Pro Bono Center, Moderator

Given the economic costs imposed by today’s legal system (a staggering $865 billion per year according to one recent estimate), it’s surprising more companies don’t take into account a state’s liability climate when making critical decisions like where to open a new plant or invest in existing facilities.

A new report could help change that.

Risky Business: The Annual Boardroom Guide to Litigation in the 50 States provides the first ever ranking of state legal environments that combines economic science, real world corporate experience and input from state legal reform experts – people with the most current intelligence from the front lines.

It builds on a few landmark studies, including the American Tort Reform Association’s “Judicial Hellholes,” the Pacific Research Institute’s U.S. Tort Liability Index, and the Institute for Legal Reform/Harris Interactive survey.

So where are the soundest states – and where is the swampland?

Nebraska and Virginia top the list with the best legal climates. What do they have in common? Reasonable limits on punitive damages, a “rule of law” majority on the state Supreme Court, and Attorneys General who specialize in law enforcement, not grabbing the spotlight at the expense of businesses.

In stark contrast, West Virginia, Rhode Island and Florida round out the bottom of the list. All have activist Supreme Court majorities who consistently rule in favor of trial lawyers. West Virginia has a governor who supports legal reform – a reminder that having a pro-reform governor does not necessarily translate into a sound legal environment.

To see the full list go here.

Steve Hantler

A Nebraska state trooper stopped Emiliano Gomez Gonzolez for speeding on Interstate 80 in 2003 in his rental car, then proceeded to seize $124,000 from a cooler in the back seat. According to the Eighth Circuit U.S. Court of Appeals (opinion, PDF), Nebraska was within its rights to seize the $124,000 as presumed drug money (it then became the subject of a federal forfeiture action) even though 1) Gonzolez had no substantial or drug-related criminal record; 2) witnesses backed up his claim that the money had been pooled by several immigrants for purposes of buying a refrigerated truck for his produce business. Gonzolez had initially denied carrying money, and a drug-sniffing dog had detected drug residues in the rental car, though the same would probably prove true of many other rental cars. (”Court rules 2003 money seizure correct despite no drugs found”, AP/Sioux City Journal, Aug. 19; TheNewspaper.com, Aug. 19; libertarian blogs galore including KipEsquire, Radley Balko, Unrepentant Individual). Mike Cernovich (Aug. 21) analyzes what he finds the dubious maneuvers of the Eighth Circuit panel majority in dodging the requirement of deference to the trial court judge’s findings.

Over-riding the Governor’s veto, the Kansas legislature has enacted a “Shall Issue” law for issuing licenses to carry a concealed handgun for lawful protection. Before, Kansas was one of only four states without any provision for issuing concealed handgun licenses. One of the remaining three states, Nebraska, appears poised to enact a similar law, which the Governor has said he will sign.
Kansas is now among the 39 states which have a fair procedure to allow citizens to carry handguns for protection. Along with the three states (Nebraska, Wisconsin, IIllinois) that currently do not issue permits, eight other states issue permits according to the whim of a local official (Hawaii, California, Maryland, New Jersey, New York, Massachusetts, Rhode Island, and Delaware). A Shall Issue bill is moving through the legislature in Delaware. Rhode Island already has a Shall Issue law, although the law is nullified by administrative practice.
In Wisconsin, a Shall Iissue bill has been vetoed twice, with the vetos sustained by only one or two votes. In every state where Shall Issue proponents have gotten as close as they have in Wisconsin, the state has always eventually enacted a Shall Issue law–although sometimes the process can take a while.
So of the eleven remaining states that are not Shall Issue, two of them (Nebraska and Wisconsin) are nearly certain to change at some point in the future, and there is reasonable possiblity of change in Delaware. All that Rhode Island needs to change is the election of Attorney General who will not interfere with the state law that local goverments must issue carry permits to qualified applicants.
So the number of Shall Issue states could be 43 in the not too distant future. In the seven hold-out states, Shall Issue has passed one body of the legislature at least once in the three largest states: California, New York, and Illinois.
Every year, more and more Shall Issue states create “reciprocity” with each other, so that a person with a permit from her home state can carry her firearm lawfully in a other state while visiting. Currently, a carry permit issued by one state is valid in over half of all states. (See Packing.org for details.)
As the combined total of “no issue” or “whimsical issue” states declines into the single digits, and reciprocity continues to spread, it seems hard to deny that America is concluding that Shall Issue is sensible gun control — one that regulates firearms carrying but does not infringe the right to self-defense.
For more on the Kansas law, see this excellent article in the Wichita Eagle.

AP reports on the thriving business of mass-complaint-filing under the Americans with Disabilities Act, citing examples from Nebraska and Oklahoma as well as more familiar filing-mill locales such as California and Florida. As in the recent California case, however (Jan. 8), some judges are not pleased at what they see:

U.S. District Judge Gregory Presnell of Orlando, Fla., noted in a ruling last year that Jorge Luis Rodriguez, a paraplegic, had filed some 200 ADA lawsuits in just a few years, most of them using the same attorney.

“The current ADA lawsuit binge is, therefore, essentially driven by economics — that is the economics of attorney’s fees,” Presnell wrote. He said Rodriguez’s testimony left the impression that he is a “professional pawn in a scheme to bilk attorney’s fees” from those being sued.

(Kevin O’Hanlon, “‘Drive-By Lawsuits’ Raise Business Concern”, AP/San Francisco Chronicle, Mar. 17).

Speaking of the California saga of Jarek Molski (Sept. 21, Nov. 27, Dec. 12, Jan. 8), last month U.S. District Judge Edward Rafeedie extended from Molski to his lawyer, Thomas Frankovich, a requirement to obtain court permission before filing more suits under the act, a sanction ordinarily reserved for the most vexatious and troublesome litigants. Reports the Los Angeles Daily Journal:

The Los Angeles judge accused Molski and Frankovich of seeking quick cash settlements by filing a suspicious number of lawsuits in short periods of time. Their suits alleged handicap-access violations such as steep ramps, heavy doors and narrow hallways.

Rafeedie noted that the complaints are identical, right “down to the typos.” He said he believed the injuries alleged by Molski “are often contrived.”…

Rafeedie criticized at length Frankovich’s practice of sending letters to defendant business owners at the outset of litigation, urging them to settle the cases before hiring defense lawyers.

According to Rafeedie, Frankovich told the defendants that they did not have good legal defenses to the disability claims and that their insurance carriers could cover any damages.

Rafeedie said the letters were unethical and misleading.

However, Molski and Frankovich’s side of the case has retained prominent civil-rights attorney Stephen Yagman, and Yagman says well-known Duke lawprof Erwin Chemerinsky is also joining the plaintiff’s team, so who knows where matters are headed next. (John Ryan, “Jurist Finds Lawyer’s Conduct ‘Plainly Unethical’”, Los Angeles Daily Journal, Feb. 8, not online). More: blogger Patterico is among Yagman’s non-admirers (Jun. 3, 2004).

Nebraska: “A Hispanic man who spoke to his 5-year-old daughter in Spanish has been ordered to use primarily English around the girl as a condition of his visitation rights.” Ruling on a request by the mother, a Sarpy County judge decreed that Eloy Amador should “primarily” use English when conversing with his daughter, although it was all right to switch to Spanish for purposes of instructing her in the use of that language. (Jean Ortiz, AP/Las Vegas Sun, Oct. 14). More: Jim Boulet at NR Corner comments on the ruling and provides this link to a very curious 1995 court decision from Amarillo, Tex. in which a “judge overseeing a child-custody case told a Mexican native that speaking only Spanish at home constituted abuse of her 5-year old daughter. ”

As if to respond to our post on joint and several liability on Friday, a Nebraska jury found for a woman paralyzed in an accident when the driver drove off the road and rolled over their Chevy Blazer. Both GM and the driver (who was later charged with DUI) are held liable, but only one is actually going to pay the bulk of the award, if it is upheld. GM will effectively be paying insurance for the consequences of drunk driving–and of getting into a car with a drunk driver.

Plaintiff claimed that a $20 roof-strengthening would have prevented her injuries. GM denied this causation theory. (Butch Mabin, “Jury awards woman $19.5 million”, Lincoln Journal Star, Sep. 27) (via Bashman). But even if one accepts the plaintiff’s argument that the lack of an additional $20 is a sine qua non of her injuries, her lawsuit presents troubling public policy implications. GM isn’t faced with a single yes/no $20 safety decision when it designs a car–it faces hundreds, if not thousands, of them. And not all of them are binary. Twenty dollars of roof strengthening may have prevented these injuries, but once GM takes that step, there will still be other accidents where yet another twenty, or forty, or eighty dollars of metal in the roof would have prevented injuries. If too many $20 additions are made, some people will not buy the hypothetical Blazer and will instead buy a cheaper (and/or older) and less safe car. Adding $20 of roof-strengthening may decrease the likelihood that a particular accident will result in serious injury, but, by elevating the center of gravity, may increase the likelihood that the SUV is in a rollover accident in the first place and, by increasing the weight, increases the risk of an accident due to inadequate braking power. The SUV, as it is, may perform relatively poorly in rollovers as plaintiffs argue, but it performs much better (some would argue too well) in collisions with other vehicles. And we have not even begun to mention the societal cost that comes from reducing the gas mileage of the SUV by increasing its weight. (The one thing I have in common with Arianna Huffington is that I drive a Prius.)

A jury of laypeople seems to be poorly situated to make these holistic design decisions — especially when the rules of a product liability case often mean that a jury is considering a particular design question in isolation. Which is why plaintiffs’ attorneys are happy to characterize the scales as one of a quadriplegic against a heartless giant corporation that supposedly valued its $20 more than a mother’s ability to walk. It would take an exceptionally wise jury to accurately balance the visible and tangible costs of an after-the-fact gravely injured member of their community against the before-the-fact intangible benefits to society of the engineering design decision of different accidents prevented and of affordable new cars. The elites of the national media and our political and regulatory leaders have trouble articulating the subtleties of these issues. Why do we ask a jury of laypeople to grapple with them, often deliberately deprived by legal rules of a full complement of the tools they need to make a correct decision, when a decision on behalf of an automaker would require them to take the painful psychological step of looking in the eye a quadriplegic who has had her life irreversibly altered, and telling her she will recover nothing?

Disclaimer: I represented GM from 1995 to 1997.

In the latest lawsuit seeking to find a large enterprise liable for the murder of a stranded female motorist, the survivors of Melissa Gosule are beginning a trial against the AAA auto club over the dilatory way in which it set about rescuing her after her car broke down on Cape Cod in 1999. Ms. Gosule instead accepted a ride from a stranger who turned out to have a long criminal record, and who murdered her. “Every year, the American Automobile Association, with a dues-paying membership of more than 46 million in the United States and Canada, gets about 30 million calls from motorists who need help with dead batteries, flat tires and other roadside problems.” (Denise Lavoie, “Auto club goes on trial over slaying of motorist”, AP/San Francisco Chronicle, Sept. 8). Last month (see Aug. 9) the Nebraska Supreme Court ruled that the family of Amy Stahlecker could not sue the Ford and Firestone companies after a tire blowout left her stranded at the side of the road, where she was picked up and murdered by a stranger. Update Sept. 14: AAA case settles.

Updating our story of Jun. 4-5: “Ford Motor Co. and Bridgestone/Firestone Inc. are not liable for the death of a 19-year-old woman killed by a man who gave her a lift after she got a flat tire, the Nebraska Supreme Court ruled Friday.” (Kevin O’Hanlon, AP/Washington Post, Aug. 8).

The following essay was written circa 1999 by our editor and formerly appeared on the site’s topical page on loser-pays.

* * *

America differs from all other Western democracies (indeed, from virtually all nations of any sort) in its refusal to recognize the principle that the losing side in litigation should contribute toward “making whole” its prevailing opponent.  It’s long past time this country joined the world in adopting that principle; unfortunately, any steps toward doing so must contend with deeply entrenched resistance from the organized bar, which likes the system the way it is.

Overlawyered.com’s editor wrote an account in Reason, June 1995, aimed at explaining how loser-pays works in practice and dispelling some of the more common misconceptions about the device.  He also testified before Congress when the issue came up that year as part of the “Contract with America”.  Not online, unfortunately, are most of the relevant sections from The Litigation Explosion, which argues at length for the loser-pays idea, especially chapter 15, “Strict Liability for Lawyering”.

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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)

April 10-13 – Posting slowdown. Updates will be sparse for a while as our editor responds to a family emergency. See you, most likely, early next week. (DURABLE LINK)

April 10-13 – Public Citizen’s bogus numbers. The supposed consumer group now concedes that it put out erroneous numbers which made Pennsylvania doctors look artificially bad (”Watchdog group backs off claim that Pa. doctors top nation’s repeat malpractice payouts”, AP/Scranton Times, Apr. 2; see our Mar. 15-16 report). In January, in a move timed to undercut President Bush’s Scranton speech calling for malpractice reform, Public Citizen claimed that 10.6 percent of Keystone State doctors had paid out on more than one malpractice allegation; it now admits it can verify only a figure of 5.4 percent. The false numbers were widely reported in the press, and the AP last week published an unusual correction (AP/Kansas City Star, Apr. 4). Pennsylvania Medical Society spokesman Chuck Moran called for Public Citizen to apologize: “It’s ironic that they initiated a report called ‘Medical Misdiagnosis: challenging the malpractice claims of the doctor’s lobby’, when, in fact, they are the ones that misdiagnosed the situation.” The accuracy of the group’s figures have also been challenged in Colorado (”Monitoring malpractice” (editorial), Denver Post, Mar. 10).

There is at any rate a more fundamental problem with the litigation lobby’s contention that the current crisis is caused by a small number of bad doctors who attract most malpractice suits and should simply be driven out of practice. As Binghamton, N.Y. neurologist Dr. Jeffrey Riben points out, the number of malpractice lawsuits doctors face often have less to do with their competence than with their specialty and geographic location. “If you look around at physicians that get sued a lot, they tend to be highly prestigious names, people who get difficult cases in difficult specialties where the results are predestined not to be as good as those of people who handle simpler cases, Riben said. ‘Those are the people who have litigation. So it you want to eliminate those people with multiple suits, you would have to eliminate all of our neurosurgeons, all of our orthopedic surgeons, all of our obstetricians, anybody working in an emergency room and everybody reading mammograms,’ he said. ‘I think you would agree if we eliminated those specialties we would not improve health care.’” (Eric Durr, “Docs, public interest groups battle over malpractice issues”, Albany Business Review, Mar. 14). (DURABLE LINK)

April 10-13 – Employers liable for not filtering raunchy spam? At least if workers have complained, employers may be at risk of liability under sexual harassment law if they fail to install blocking software on email inboxes, say various legal experts. Quotes our editor (Declan McCullagh, “Por nspam: Are employers liable?”, CNET News, Apr. 7) (DURABLE LINK)

April 10-13 – Best and worst state courts for business. The U.S. Chamber of Commerce releases the results of a detailed Harris poll of business respondents. The “top five states today as evaluated by corporate America at doing the best job at creating a fair and reasonable litigation environment are: Delaware, Nebraska, Iowa, South Dakota, and Indiana whereas in 2002 Delaware, Virginia, Washington, Kansas, and Iowa were listed as the top 5. The worst perceived states today are: Mississippi, West Virginia, Alabama, Louisiana, and Texas, exactly the same as in 2002.” California scores low marks for punitive damages and treatment of class actions; Hawaii is criticized for onerous discovery and the difficulty of getting weak cases thrown out quickly; New York and Minnesota win plaudits for their handling of scientific and technical evidence. Where does your state rank? (overview) (press release in PDF format) (poll results as Word document) (press conference) (DURABLE LINK)

April 9 – Schools roundup. In Camden, N.J., second grade teacher Eileen Blau has sued student Daniel Allen for running into her in a school hallway at an “excessive rate of speed”, thus inflicting “severe and multiple injuries, some of which are permanent in nature,” according to her suit. Young Allen, who at the time of the incident was 11 and weighed about 90 pounds, didn’t know his family was the target of a claim until the sheriff’s deputy showed up at the door. “He didn’t understand why someone would want to do this to him,” said his mother. “He said ‘Why does she hate me? Why is she doing this. I said I was sorry.’” (Bill Duhart, “Teacher sues student over hall collision”, Cherry Hill, N.J., Courier-Post, Mar. 29). The American Bar Association Journal presents an overview of suits arising when girls aren’t picked for the cheerleading squad (Stephanie Francis Cahill, “Bring It On”, Apr. 4; see Jun. 4, 2001). And “[a] group of attorneys who sued Mississippi schools for millions of dollars on behalf of custodians, bus drivers and cafeteria workers has turned to Alabama, filing more than 60 similar lawsuits”. (Scott Parrott, “Local school systems sued”, Tuscaloosa News, Apr. 4). More on the Jackson, Miss.-based School Litigation Group, which according to one of its principals, former congressman and secretary of agriculture Mike Espy, “takes a contingency fee of between 40 percent and 50 percent, depending on the complexity of the case”: Gary Young, “Overtime Suits 101″, National Law Journal, Mar. 19. (DURABLE LINK)

April 7-8 – Bag of treasures. Cornell Curry, 57 and homeless in New York City, says the Partnership for the Homeless’s drop-in center on W. 23rd St. negligently lost a duffel bag of his belongings last fall; he had been unable to stop by to retrieve the belongings because he was spending three weeks in jail after being arrested for public urination. The shelter “admits it did toss one of Curry’s bags in the garbage, but said that one contained only three soiled pieces of clothing.” Au contraire, says Curry in his lawsuit: he avers that the contents of the lost duffel bag included “an $18,000 star sapphire ring, a $4,000 gold watch, $200 in cash and ‘extremely valuable’ photographs, including his parents’ 1937 wedding photo”, entitling him to $2 million in compensatory and $2 million in punitive damages. Last month Manhattan Supreme Court Justice Rosalyn Richter denied a motion to throw out the claim: “It is simply too early to resolve whether the plaintiff did, in fact, leave the bag in the defendant’s possession and whether the plaintiff also shares some responsibility for the alleged loss,” Richter said. (Helen Peterson, “Homeless, or Mister money bag?”, New York Daily News, Mar. 20). (DURABLE LINK)

April 7-8 – Malpractice crisis hits sports-team docs. Some of organized sports’ most memorable highlights have come when athletes played through pain and injury, but increasingly the result is to create a risk of litigation against team physicians, who are exposed to monetary damages that are potentially enormous given their patients’ potential loss of earning power. Some doctors are withdrawing from the care of professional athletes, and organized football is discussing schemes to indemnify team doctors for their escalating insurance bills. (Jason Cole, “With malpractice rates skyrocketing, many doctors are hesitant to care for professional athletes”, Miami Herald, Apr. 2). Our editor’s Feb. 27 Wall Street Journal piece on lawsuits blaming obstetricians for cerebral palsy is now online, thanks to the folks at Texans for Lawsuit Reform. And welcome readers from Sydney Smith’s excellent medical weblog MedPundit, which has run posts in recent weeks on California’s MICRA and insurance rates, what happens to patients who win awards (plus North Carolina crisis notes), the problem with physician “report cards”, Public Citizen, and a link to this Tallahassee Democrat op-ed (Mar. 3) on how Florida’s malpractice crisis is harming its medical schools. (DURABLE LINK)

April 7-8 – Edwards leads in fund-raising. The North Carolina senator aces his Democratic rivals in the White House money race: “The key to Edwards’ success may have come from trial lawyers, a group of which Edwards is a part and from whom he received 80 percent of political action committee money in recent years.” (”Dem Presidential Hopefuls Compete for Cash”, FoxNews.com, Apr. 2; Richard A. Oppel, Jr., “With $7 Million in Donations, Kerry Trails Democratic Rival”, New York Times, Apr. 3). However, a January poll conducted for the Raleigh News & Observer found the senator none too popular in his home state: “The poll found that 47 percent of active Tar Heel voters disapprove of Edwards’ decision to seek the presidency, while 37 percent approve”. (”Poll: Edwards wouldn’t beat Bush in North Carolina”, AP/Charlotte Observer, Jan. 18) (via “Robert Musil“). (DURABLE LINK)

April 7-8 – U.K.: “Killer wrongly sacked for axe attack”. “A convicted murderer who tried to attack a colleague with an axe was wrongly sacked from his job, an employment tribunal ruled yesterday.” The tribunal in the British Midlands ruled that Preston city council was wrong to fire James Robertson, 50, without notice from his health inspector post after he “brandished the [axe] in an Indian restaurant in Preston after an argument”. However, the tribunal ordered the council to pay only “two weeks’ wages, or £807, for breach of contract,” rejecting a plea for more extensive compensation by Robertson, who “gave evidence while handcuffed to a prison guard.” The council “had employed him when he was released from jail on licence after being convicted of kicking a man to death in Glasgow in 1971.” (Daily Telegraph, Apr. 3) (& welcome Dave Barry readers — the great humorist generously calls us “the always fascinating Overlawyered.com” (archives not working, Apr. 7)). (DURABLE LINK)

April 4-6 – Gun lawsuit preemption moves forward. On Wednesday a House Judiciary subcommittee held a hearing on H.R. 1036, the Protection of Lawful Commerce in Arms Act, which would “prohibit civil liability actions from being brought or continued against manufacturers, distributors, dealers, or importers of firearms or ammunition for damages resulting from the misuse of their products by others.” Our editor testified in favor of the measure (his prepared statement). The proceedings were televised live on C-SPAN III and rebroadcast overnight on C-SPAN II (schedule, Apr. 2). Yesterday the full House Judiciary Committee gave its approval to the legislation, with Virginia Democrat Rick Boucher joining all panel Republicans in support of the measure. John Tierney’s New York Times account (”A New Push to Grant Gun Industry Immunity From Suits”, Apr. 4) quotes our editor on the subject and mentions The Rule of Lawyers (see second page of article). (DURABLE LINK)

April 4-6 – C-SPAN again. Speaking of C-SPAN II, the network’s “BookTV” feature will be rebroadcasting our editor’s Manhattan Institute speech on The Rule of Lawyers at 3:30 p.m. Eastern on Saturday, April 5. (DURABLE LINK)

April 4-6 – A bond too far. Even the editorialists of the New York Times agree that it’s “absurd” and “the kind of ruling that erodes the credibility of our legal system” to require Philip Morris to post a ruinous $12 billion bond before it can appeal the class action ruling of a judge in plaintiff-friendly Madison County, Ill. (”Too Costly an Appeal”, New York Times, Apr. 4)(see Wednesday’s post; more). “As for Judge [Nicholas] Byron, it’s difficult to divine if he was playing jurist or friendly croupier. He sought to sweeten the pot by awarding the State of Illinois $3 billion in punitive damages, out of the total $10.1 billion judgment.” (”A Madison County jackpot”, Chicago Tribune, Apr. 2). Perhaps influenced by the prospect that the state will be thrown this slice of the booty, the Illinois Senate is refusing (for now) to lift a finger to reduce the bonding requirement (”Panel nixes bill to help Philip Morris”, Chicago Sun-Times, Apr. 4)(Update Apr. 30: judge agrees to reduce bond somewhat). (DURABLE LINK)

April 2-3 – Appeals bonds, again. Once again the business end of an otherwise outlandish mega-verdict turns out to be the requirement that a defendant post a bond before it can appeal: Philip Morris says it is unable to put up the requisite $12 billion needed to appeal the recent Madison County, Ill, verdict against it (see Mar. 24). Officials of the fifty states are running around in near-hysteria: they’re bothered not by the possible injustice or community-and-investor disruption involved in bankrupting the giant company, whose holdings include Kraft Foods and Oscar Mayer, but instead by the prospect that an insolvency will jeopardize the flow of billions of dollars into their own coffers under the tobacco settlement. So the AGs, supposedly second to none in their loathing of the tobacco companies, are making noises about intervening to try to get the appeals bond requirement lowered. This is the second time around (at least) for this issue: state governments also mobilized after the Engle tobacco case in Florida threatened bonding requirements high enough to destroy the industry. See also the Loewen case (Ameet Sachdev, “States line up against smoking case bond”, Chicago Tribune, Apr. 1; Neil Buckley, “Philip Morris ‘cannot afford’ $12bn bond”, Financial Times, Apr. 1; “Philip Morris woes hurt stock”, AP/Seattle Times, Apr. 1; “Appeals bond a symptom of need for tort reform”, Bloomington (Ill.) Pantagraph, Apr. 1; related). (DURABLE LINK)

April 2-3 – After the R.I. club fire. “Ignoring calls from peers to hold off on lawsuits for now, a Providence lawyer [earlier this month] fired the second salvo in what is expected to become a barrage of litigation resulting from the fire at The Station. The lawsuit was filed in Providence Superior Court on behalf of Lisa Kelly of Swansea, a 27-year-old single mom who was among the 99 people killed in the Feb. 20 blaze at the West Warwick, R.I., nightclub. The lawsuit was filed by Ronald Kingsley, the father of Kelly’s daughter, Zoe Jean Kingsley. Kelly’s mother, Barbara Nagle of Attleboro, yesterday said she knew nothing about the suit and that Kingsley hadn’t had any contact with his daughter in three years as far as she knew….

“The latest lawsuit names 19 individuals and companies as defendants, including the St. Louis-based beer giant Anheuser-Busch Inc., whose Budweiser brand accompanied some advertising for the ill-fated show. Anheuser-Busch Inc. yesterday denied any role in promoting or sponsoring the concert in a statement sent to the Herald. ‘The company that distributes Anheuser-Busch Inc. products in Rhode Island is an independent business that has the right to use our beer brand name in its advertising,’ wrote Stephen Lambright, a company lawyer.” (Thomas Caywood, “Second suit filed over fire at Station”, Boston Herald, Mar. 11)(see Mar. 10-11). See also Roger Parloff; “Where There’s Smoke, There’s Ire”, Fortune, Mar. 19; Deroy Murdock, “Lawyers turn tragedy to farce”, Scripps Howard/Naples, Fla. Daily News, Mar. 28. (DURABLE LINK)

April 2-3 – “Mayor: WTC Personal Injury Suits Could Bankrupt NYC”. “New York City Mayor Michael Bloomberg on Monday warned that personal injury lawsuits filed by people who claim their long-term health was damaged by the clean-up of the World Trade Center site could bankrupt the city in the next 20 years.” (Reuters/Yahoo, Mar. 31). See also Paul Howard (Manhattan Institute), “A 9/11 Tort-Fest”, New York Post, Aug. 10, 2002, and New York Law Journal coverage: Mark Hamblett, “9/11 Victims’ Suits Flood Court to Meet One-Year Time Limit”, Sept. 11; Tom Perrotta, “New York City Creates Unit for Suits From Sept. 11″, Sept. 12; Daniel Wise, “Sept. 11 Fund Master Found to Give ‘Fair Compensation’”, Oct. 2). (DURABLE LINK)

April 1 – Maybe crime pays dept.: not an April Fool’s joke. Gerald Skoning’s annual National Law Journal roundup of the year’s weirdest cases in labor and employment law includes the following gem: “Richard N. Shick — while employed as a caseworker in the Illinois Department of Public Aid — robbed a convenience store in Joliet, Ill., armed with a sawed-off shotgun. Afterward, he sued the department, claiming that he was discriminated against because of his disabilities and his sex, the trauma of which caused him to commit the robbery. The jury awarded him $5 million in damages and $166,700 in back pay. The U.S. District Court for the Southern District of Illinois partially vacated and dismissed the judgment, but awarded $303,830 in front pay, even while he serves a 10-year sentence. Thankfully, the 7th Circuit reversed.” (”Legal Weirdness at Work”, Mar. 26; Gail Diane Cox, “Here’s the tort reform poster boy for 2002″, National Law Journal, Oct. 28). Also on Skoning’s list: voodoo signs ruled not an unfair labor practice; employer dodges harassment charge after conduct is ruled “even-handedly offensive” rather than discriminatory; hemorrhoids not a protected disability under ADA. (DURABLE LINK)

August 30-September 2 – Banish those desk photos of spouse at beach. A few years ago, when a Nebraska graduate student was targeted with a complaint from a university colleague for displaying a photo at his workplace of a woman in skimpy beachwear who happened to be his wife, some assumed it was a fluke case. But it wasn’t. “[D]esktop photographs of bikini-clad girlfriends or bare-chested husbands … could result in sexual harassment claims, lost productivity or a tarnished company image, say employment experts. ‘Employers have a duty to provide a work environment that is not objectionably and subjectively hostile, so the days of pinups in the locker room should be past,’ says John Lowe IV, an attorney in Kegler Brown Hill & Ritter’s Columbus labor and employment practice group.” Yep, they’re perfectly serious (Betsy Butler, “Dress code good strategy for desktop photo display”, Columbus Business First, Aug. 23). (DURABLE LINK)

August 30-September 2 – Intel sued in notorious county. Lawyers have filed a lawsuit seeking class-action status on behalf of personal computer owners “against Intel, Gateway, and Hewlett-Packard alleging the companies misled them into believing the Pentium 4 was a superior processor to Intel’s own Pentium III and AMD’s Athlon. The complaint — Neubauer et al v. Intel et al — was filed June 3 in the Third Judicial Circuit in Madison County, Illinois.” (Tom Mainelli, “Intel, PC Makers Sued Over P4 Performance”, PCWorld.com, Aug. 16; discussion, StorageReview forums). Litigation buffs will immediately recognize the chosen venue, Madison County, Ill., as being perhaps the most celebrated destination in the country for class-action “forum-shopping”, its courts recognized as unusually accommodating to the designs of the lawyers who file such suits. For one recent view of the county’s reputation, see: Adam Liptak, “Court Has Dubious Record as a Class-Action Leader”, New York Times, Aug. 15 (reg) (DURABLE LINK)

August 30-September 2 – Second Circuit: we mean business about stopping frivolous securities suits. The New York law firm of Jaroslawicz & Jaros “faces nearly $200,000 in sanctions after a federal appeals court said it had not received a severe enough penalty for an abusive securities fraud suit.” The 2nd U.S. Circuit Court of Appeals has weighed in three times on the case; among its rulings was that “the presence of some nonfrivolous claims in an otherwise frivolous complaint is not sufficient, standing alone, to establish that either the violation of Rule 11 [the main federal rule providing sanctions against meritless litigation] was de minimis or that the sanctions would create an unreasonable burden, for purposes of overcoming the statutory presumption of the PSLRA [Private Securities Litigation Reform Act of 1995].” (Tom Perrotta, “2nd Circuit Imposes Stiff Fine in Securities Fraud Case”, New York Law Journal, Aug. 27). Mr. David Jaroslawicz, of Jaroslawicz & Jaros, last figured in these chronicles on Jan. 17, 2000, after he was quoted in the New York Observer as hoping to spearhead a wave of sexual-harassment suits against the then-flush firms of New York’s Silicon Alley. (DURABLE LINK)

August 29 – 7.000 missing colors, many of them crisply green. Last week Palm, the handheld computer maker, conceded that although it had advertised its m130 model, introduced in March, as displaying 65,536 different colors or color combinations, the actual number is a mere 58,621 — “approximately 11 percent fewer color combinations than we had originally believed”, as a Palm spokeswoman said. Attorneys with the Philadelphia law firm of Sheller, Ludwig & Bailey promptly filed a lawsuit in Santa Clara, Calif. Superior Court seeking class-action status on behalf of Palm’s customers, traumatized as they no doubt were by this hue shortfall. Legal experts predict that Palm will most likely settle rather than face the legal uncertainties and bad publicity of a protracted suit, but that customers shouldn’t expect anything more than coupons, future discounts and the like. “It’s hard to put a dollar figure on how much you have been damaged because your computer won’t do some particular feat you might never ask it to do anyway,” said Norman Spaulding, a professor at the Boalt Hall School of Law at the University of California at Berkeley. (Elisa Batista, “Palm Handed Suit Over Colors”, Wired News, Aug. 24). (DURABLE LINK)

August 29 – Discrimination suit roundup. “The state of New Jersey has agreed to pay $250,000 to settle claims by three black men who said they were victims of racial profiling by the New Jersey state police. Attorney Stefan Presser of the American Civil Liberties Union of Pennsylvania said the settlement is the largest ever in a civil rights suit in which the victims were neither physically injured nor jailed” and says New Jersey should adopt it a model for other cases where black motorists were stopped and questioned without adequate justification. (Shannon P. Duffy, “New Jersey Settles Profiling Suit for $250,000″, The Legal Intelligencer, Aug. 22). The Taco Bell chain has agreed to pay $160,000 to settle the racial discrimination claims of a St. Louis family who, traveling 24-strong on a chartered bus through Cullman, Ala. in July 1998, waited about 15 minutes after requesting service. Each of the 24 will get about $1,000; the settlement “includes another $111,000 for attorney expenses and more than $17,000 in attorney fees.” (”Taco Bell settles discrimination lawsuit”, AP/NBC13.com, Aug. 26). And New York gubernatorial hopeful Andrew Cuomo, the former federal housing secretary and gun-suit backer, has called for legislation to make discrimination a felony — we’ll sleep a lot sounder knowing errant taco-chain managers are behind bars. (”Cuomo: Make Discrimination a Felony”, News12/The Bronx, Aug. 25). (DURABLE LINK)

August 28 – “Parents suing youth football league”. Texas: “Parents of a fifth-grade boy asked the courts Tuesday to throw a yellow penalty flag on Katy Youth Football over a rule change that switched players to different teams after practice started. In a lawsuit filed Tuesday, an attorney sued the Katy Youth Football league on behalf of his son. The boy had played with his grade-level team before being switched because of age to a junior high-level group with “significantly larger” players. Russell Van Beustring and his wife, Pamela Van Beustring, are asking a judge to order the league to revert to rules in place when children registered in May.” (Jo Ann Zuniga, Houston Chronicle, Aug. 20). (DURABLE LINK)

August 27 – Ford rollover verdict: you read it here first. We usually refrain from running items pointing out that we covered one or another litigation story before the major media picked it up. However, we can’t help noting for the record that we were three years (!) early in beating the New York Times to the facts of the case they gave front page treatment to yesterday, namely Romo v. Ford Motor, “the largest punitive award ever affirmed by an American court in a personal injury case: $290 million to the family of three people killed in the rollover of a Ford Bronco.” (Ford has asked the California Supreme Court to review an intermediate court’s upholding of the award.) We’re glad to see this case finally getting some attention, and glad to find the Times highlighting the same angle of the case that we found most striking, the very strange goings-on in the jury room: one juror recounted to her colleagues a gruesome, omen-like dream revealing Ford’s guilt, while another juror passed on to her colleagues the contents of a badly misremembered “60 Minutes” episode also supposedly establishing the carmaker’s malign state of mind. The Times sees all this as reason to hold a public debate about whether juries’ determinations of such issues as punitive damages are sufficiently reliable to count as law at all. We don’t mind having such a debate — we just wonder why we couldn’t have had it three years ago, when all the same facts were on the public record (see this site’s entries for Aug. 24, 1999 and Sept. 17-19, 1999). (Adam Liptak, “Debate Grows on Jury’s Role in Injury Cases”, New York Times, Aug. 26 (reg))(& update Oct. 24: California Supreme Court leaves verdict intact)

P.S. While on the subject of juror misconduct, Vanderbilt University law professor Nancy J. King found in a study “that modern-day judges, while acknowledging that sleeping jurors are a fairly common sight, do not see them as a serious threat to the fairness of trials.” So comforting! “In June, two members of the jury that convicted the accounting firm [Arthur Andersen] of obstruction of justice told Texas Lawyer, an affiliate of The National Law Journal and law.com, that two colleagues slept through parts of the six-week trial, and that the alleged nappers were in such a fog that one thought NASA was involved in the case and the other believed that prosecution star witness David Duncan was the one on trial.” In a 1987 case, Tanner v. United States, 483 U.S. 107, “a majority composed of the U.S. Supreme Court’s most conservative members” declined to overturn Anthony Tanner’s conviction for mail fraud despite testimony from two jurors that several of their colleagues had dozed off; one juror in his affidavit said “the jury was on one big party,” and that consumption of marijuana, liquor and cocaine at lunch all contributed to later drowsiness. (Gary Young, “Asleep at the Trial”, National Law Journal, Aug. 21). (DURABLE LINK)

August 27 – OxyContin wins one in West Virginia. A judge has dismissed a case filed against Purdue Pharma, maker of the pain medication, on behalf of the estate of a 41-year-old drug abuser who died after crushing the pills and injecting them into her bloodstream. The Charleston Daily Mail editorially draws some lessons about personal responsibility (Aug. 23)(see Apr. 10 and links from there). (DURABLE LINK)

August 26 – “Junk fax” suit demands $2 trillion. The Federal Communications Commission recently took enforcement action against the enterprise Fax.com for (it said) extensively violating the federal law banning unsolicited commercial fax-sending. Last week Silicon Valley entrepreneur Steve Kirsch (more) and another plaintiff filed suits demanding the federal statutory penalty of $500 for each unsolicited fax sent, trebled to a sum he estimates at $2.2 trillion; Kirsch says Fax.com boasts that it sends 3 million faxes a day. The gross national product of all countries on the globe stands at $29 trillion or thereabouts, which would leave the plaintiffs if successful with a claim on something like 7 percent of the earth’s annual output if they could collect it. And although it is not clear how many assets Fax.com will be found to have at the end of a suit, Kirsch is also suing for $500 per offending transmission Fax.com’s telecommunications provider, Cox Communications, as well as its advertisers. “‘We believe that there are companies with substantial assets in this group. We will seek treble damages of $1,500 per unsolicited fax from Fax.com and Cox Communications,’ Kirsch said in a statement.” (Bob Egelko, “2 trillion junk fax suit: Silicon Valley man demands Fax.com end unsolicited messages”, San Francisco Chronicle, Aug. 22; Andrew Quinn, “Lawsuits Seek $2.2 Trillion over ‘Junk’ Faxes”, Reuters/IEEE Spectrum, Aug. 23). Cox Communications is a NYSE-listed company with assets of $25 billion, according to Fortune. More on junk-fax suits as “Powerball for the clever”: July 24, 2001 and links from there. Fax.com’s own website seems to be doing its best to portray the company as dedicated to charitable endeavors for the recovery of missing children, with a remarkable lack of emphasis on how it actually mak