Championship bodybuilder Doug Burns, who sued the government of Redwood City, Calif. over an incident in which police scuffled with him not realizing that his erratic behavior was the result of insulin shock, defended his decision to file a suit but agreed that the dollar amount assigned was over the top. “The lawyers jacked up the amount, because they always expect to settle for less. ‘Something like this shouldn’t have a $5 million dollar price tag on it. I should have had a better look at the amount. It’s my fault,’ Doug told [blogger Amy Tenderich]“. (Diabetes Mine, Jun. 22).

Canada: “The family of Tim McLean is suing Greyhound, the RCMP and the man suspected of committing the gruesome killing of the 22-year-old man aboard a bus in rural Manitoba in July.” (CBC, Sept. 2).

From the “Not About the Money” files; reader D.W. writes:

Seguin is about 35 miles east of downtown San Antonio. The deceased student/athlete was an adult, chose to run on a busy street despite ample on-campus facilities, and chose to run with traffic instead of facing it. The story doesn’t say, but the street in question is actually US90, possibly the heaviest traveled street in town aside from I-10. So naturally it’s the university’s fault she was struck and killed. Oh well, it could have been worse, at least they were only held 5% responsible.

(Ron Maloney, “Jury finds TLU partially responsible”, Seguin (Texas) Gazette-Enterprise, Aug. 29; more background here and here).

Or, so says a family’s suit against a funeral home and crematorium.  It never ceases to crack me up how some people can take a modest, legitimate claim and blow it up into a claim for financial independence.

53-year-old Pamela Grant died unattended, was autopsied and later cremated despite a fax by the funeral home to the crematorium instructing it to hold off.  You see, the family says they wanted to view the body before cremation and place mementos with it.  They were deprived of that chance and filed suit against the funeral home for $3M and the crematorium for $450K.

Now, there’s certainly a legitimate complaint here but I see little to justify the sky-high demand.  Naturally, the plaintiffs’ attorney is high-minded saying “his clients sued because they wanted to send a message to the businesses that their behavior was unacceptable.”  Translation: it’s not about the money.

The jury got it right, awarding $48K from the crematorium to the Grant children and nothing from the funeral home.  That’s a far cry from the $3.5M demand and right in line with what the crematorium’s defense counsel suggested to the jury.  (“Missed goodbye to cost crematory, not Oregon City funeral home”, OregonLive.com, Aug. 15).

I’ve finished my week as guest blogger and will pass the torch back to Walter Olson.  Walter, thank you again for the opportunity here on Overlawyered.

Problem #1: children abused by clergy decades ago are demanding recognition from the civil justice system; it’s not about the money they say, but justice.

Problem #2: simply reviving 35-year-old tort claims that are otherwise barred by the statute of limitations, aside from the basic unfairness and loss of legal certainty to others, encourages fraud on and error by the judicial system.

Solution, in Ohio S.B. 17, passed in May 2006:

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• Curlin gets 400 new owners, as the Kentucky fen-phen plaintiffs ripped off by their attorneys get the right to seize Shirley Cunningham Jr. and William Gallion’s 20% share of the Preakness Stakes winner. [AP/NYT; earlier]
• As Lerach pleads guilty, LA Times editorial defends class action abuses, incorrectly says that the PSLRA fixed everything and that Lerach didn’t act illegally after it was passed. [LA Times]
• That $10.9 million verdict against the Westboro Baptist Church was “not about the money.” [Reuters] Really, now, this case imposing bankrupting damages for a protest on a public sidewalk is appalling. Granted: Phelps is bigoted scum, and rude bigoted scum at that. But Albert Snyder’s claimed physical injury is that the protest exacerbated his diabetes: what sort of junk science is that? NB that Snyder was not even aware of the protest at the funeral until he watched it on television. Why not liability for the news program? Even those happy to see the anti-gay bigotry of the WBC punished should take pause: Snyder testified at length that the protest upset him particularly because his son was not gay.
• Overlawyered favorite Willie Gary (Apr. 29, Oct. 2004), on the hook for $28,000/month in child support for love child. [Atlanta Journal-Constitution]
• Deep-pocket search in Great White fire case. [Childs]
• Lawsuit over which school 9-year-old can play football for. [Tulsa World (via TMQ G. Easterbrook)] Worse, the judge rewarded the plaintiff by second-guessing the league decision. [Tulsa World]
• It only takes ten months of legal proceedings for Cal-Berkeley to evict trespassers squatting on university property. [SF Gate]
• Don’t hold your breath: who’s watching the trial lawyers? [Examiner]

No, this case isn’t going to get messy: in 2004, a Long Island couple went to a fertility clinic to help them get pregnant with a biological child. Apparently, the clinic botched the procedure by using the wrong sperm (Oops!); the couple figured it out when they noticed that the child was black and they weren’t.

So they sued the clinic for malpractice and infliction of emotional distress. (Just for good measure, they sued their obstetrician, who had nothing whatsoever to do with the actual fertilization; the court dismissed that claim. Gee, I wonder why medical malpractice insurance rates are so high.) The court rejected the emotional distress claim, ruling that (as most courts do) a baby being born is not an injury to the parents, but it allowed the malpractice claim to proceed.

Speaking of emotional distress, the judge handling the case quoted the parents as saying things every child wants to hear from her parents:

“[W]e are reminded of this terrible mistake each and every time we look at her.”

and

“We are conscious of and distressed by this mistake each and every time we appear in public.”

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No, really. This time, it might not be.

In January 2006, retired New York Times reporter David Rosenbaum was mugged in Washington, D.C.; the muggers hit him over the head with a pipe. When his body was discovered and emergency workers responded, they somehow missed the fact that he had been bashed over the head (Oops!), and decided he was merely drunk. Because of that mistake, every aspect of the response was botched; police failed to investigate the crime right away, and emergency workers and the hospital where they eventually took him failed to immediately treat him for his serious head injury. Two days later, he died.

Last November, his family sued the city and the hospital for $20 million. On Thursday, they settled their lawsuit with the city, for no money (Washington Post):

The family of a slain New York Times journalist yesterday agreed to forgo the potential of millions of dollars in damages in exchange for something that might be harder for the D.C. government to deliver: an overhaul of the emergency medical response system that bungled his care at nearly every step.

David E. Rosenbaum’s family said it will give up a $20 million lawsuit against the city — but only if changes are made within one year.

Under a novel legal settlement, the city agreed to set up a task force to improve the troubled emergency response system and look at issues such as training, communication and supervision. A member of the family will be on the panel.

Although legal experts said the family could have won millions had it pursued the case, Rosenbaum’s brother Marcus said he and other relatives were more interested in making sure that the city enacted measurable changes.

The family hasn’t abandoned the path of litigation entirely; their suit against Howard University Hospital continues. And the family can reinstate the lawsuit against the city if it fails to implement the reforms it has promised within a year.

Interestingly, a search of news coverage about this lawsuit did not reveal even one instance of any of the plaintiffs or their lawyers uttering the immortal mantra, “It’s not about the money.”

• Reader James Huff passes along this (Bloomington) Pantagraph story from last October of a lawsuit in Illinois over a police shooting of a driver after a car chase. The driver was drunk and had multiple drug convictions for which he was on probation at the time of the incident. The officer said he shot the driver when the driver tried to run him down. Of course, it’s Not About The Money:
  

  Dorris said Ruch’s parents, Jack and Margery Ruch, are more interested in details of the incident becoming public than collecting a financial settlement.

  “The thing the Ruch family wants the most is to search for the truth,” Dorris said. “If we have to try this case to get that, then it’ll be tried.”

  That didn’t stop them from requesting that the details of the settlement remain private, though. They later changed their mind after the local paper sued; they settled for $750,000.

• Via Howard Bashman: on Monday, the Sixth Circuit reversed a lower court opinion finding the police liable when a drunk driver killed another driver. The court agreed that (treating the victim’s allegations as true) the police were incompetent, but incompetence does not create a violation of constitutional rights. (Whatever happened to “Don’t make a federal case out of it?”) The opinion is here (PDF).

Pop quiz: the police try to pull over a car, and the driver, instead of slowing down, flees at high speed. The police should (A) Let him go; (B) Keep chasing him, and pray that he doesn’t kill anybody; or (C) Try to physically stop him by bumping his car with theirs.

Okay, here’s the real pop quiz: which of those will not result in taxpayers getting the shaft and trial lawyers making out like bandits? We know from experience that the answer is not (B). The Supreme Court heard oral arguments (PDF) on Monday in a case entitled Scott v. Harris to decide whether (C) is a viable option.

Harris was a 19-year old driver in Georgia who was doing 73 in a 55 MPH zone; when police tried to pull him over, he sped up and tried to escape, reaching at least 90 miles per hour on a two-lane road. Police officer Scott joined the chase, and after Harris drove recklessly for about 10 minutes, running red lights and weaving through traffic on the wrong side of the road, Scott bumped his car to stop him. Unfortunately, Harris lost control, crashed, and was rendered a quadriplegic. A sad ending for Harris, to be sure — but in a sane world, his fault. In our world, of course, he immediately sued Scott for violating his fourth amendment right not to be “unreasonably” seized.

Over at the Volokh Conspiracy, Orin Kerr, who co-represented Scott on appeal, has been blogging about the case. (Technically, the Supreme Court is addressing the narrower question of whether Scott is entitled to qualified immunity — but as any Overlawyered reader knows, lawsuits are crapshoots; if immunity is denied and Scott is forced to go to trial, the case will probably settle so that Harris can’t win the lottery from a befuddled jury.)

If the Supreme Court rules for the driver — though oral arguments didn’t seem to be in his favor — then trial lawyers will have successfully created a no-win scenario for police; criminals will be free to flee without fear of police pursuit. Maybe it’s just me, but that would seem to be a strange incentive: criminals who surrender peacefully go to jail, and those who refuse to submit are rewarded with cash or freedom.

• Related to this story, a reader (okay, Ted Frank) passes along another police chase lawsuit story which is (predictably) “Not about the money”: parents collect quarter-million-plus for kids’ deaths fleeing high-speed police chase [Robesonian Online]

A breastfeeding activist promotes, inter alia, t-shirts with the slogan “The other white milk.” This has the National Pork Board, with its slogan “The other white meat,” up in arms, and a Faegre & Benson attorney issued a ceast-and-desist letter. The shirt wasn’t a big seller (and CafePress quickly acceded to the threat), so it’s really not about the money, but Jennifer Laycock isn’t happy about the bullying (h/t W.C.).

If you ever want to see a trial lawyer manipulate the press, and the press unskeptically eat it up, you could do worse than to watch the recent performance of Steve Yerrid (Oct. 5-6) in a recent Tampa trial.

The facts convey an undeniably terrible accident. Fifty-year-old high-school-dropout Denzil Blake was cleaning an Isuzu Rodeo at Town ‘N Country Car Wash when he accidentally hit the gearshift, sending the car (which should not have been running) out of neutral. Blake didn’t know how to drive (Florida law allows a person without a driver’s license to operate a vehicle on private property, so there was nothing illegal about allowing unlicensed drivers to move cars in a carwash), panicked, and accidentally hit the accelerator instead of the brake, sending the car speeding into 43-year-old Brenda Lee Brown, striking her just after she pushed her young son’s stroller to safety; she died of her injuries two days later. Blake was not criminally charged.

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“It was never about the money for me, this litigation,” said Dickie Scruggs, who stands to collect between $26 million and $46 million from a settlement accomplished by the use of the state attorney general, Jim Hood, to extort State Farm with the threat of criminal proceedings for daring to enforce their flood exclusion clauses in their contracts. [Lattman] Many many posts on the subject at Point of Law.

Some quick links:

• Michael Krauss reviews a Mississippi Court of Appeals decision on a bogus fender-bender claim. [Point of Law; Gilbert v. Ireland]
• Yet another example of overbroad laws on sex offenders (see also Jul. 3, 2005). [Above the Law]
• “As far as the law is concerned, those individuals whose pacemakers fail are the lucky ones.” [TortsProf Blog]
• Emerson Electric sues NBC in St. Louis over a scene in an hourly drama where a cheerleader mangles her hand in a branded garbage disposal. [Hollywood Reporter, Esq.; Lattman; Defamer and Defamer update; St. Louis Post Dispatch]
• A case that’s really not about the money: Man stiffs restaurant over $46 check, defends himself against misdemeanor charge with $500/lawyer. [St. Petersburg Times; Obscure Store]
• Bill Childs catches yet another Justinian Lane misrepresentation. See also Sep. 26 and Sep. 17 (cf. related posts on Lane’s co-blogger Oct. 3 and Sep. 25), and we might just have to retire the category, since we can only hope to scratch the surface. Point of Law has the Gary Schwartz law review article discussed by Childs. [TortsProf Blog and ] Lane’s post also deliberately confuses non-economic damages caps with total damages caps: nothing stops someone with more than $250,000 in economic damages from recovering more than $250,000, even in a world with non-economic damages caps.
• Update: Bill Childs in the comments-section to Lane:
  

  “Of course, all of this gets pretty far afield from what I originally wrote and that you’ve conceded, which is that you (unintentionally but sloppily) misrepresented the facts of the Pinto memo, failed to research its background beyond what was apparently represented to you, and still haven’t (last time I checked, at 9:10 p.m.) updated your site to reflect your error. Nor have you approved the trackback I sent to the site. You’ve posted comments to that very entry and another entry has gone up on the site, but readers still see the plainly inaccurate statement that the memo excerpt you show was Ford evaluating tort liability for rearendings, when in fact it was Ford evaluating a regulatory proposal for rollovers using numbers from NHTSA.

Reader D.B. of Cincinnati writes, regarding “not about the money” lawsuits (Sept. 1, Sept. 7, etc.):

You may be interested in the tragic story from Cincinnati. Three year old Marcus Fiesel was taken from his mother. She had three children by three fathers and they lived in a flea infested place which was smeared with feces and lacked food. She told police that the children were “their problem” now. The children were put into foster care. Marcus was placed in a home where he should not have been, as the foster father had a police record that was not discovered. His foster mother pretended to faint at a local park, and when she awoke she said Marcus was missing. There was a huge community search, but Marcus was never found. Later police discovered that the foster parents had wrapped him in a blanket and left him in a hot closet for 2 days while they attended a family reunipn.Then the foster father burned his body. The birth mother is suing everyone she can for $5 million and saying it is “not about the money.” There is outrage in Cincinnati first over the circumstances of his death and now over this outrageous lawsuit. The Cincinnati press has covered the story for the last 2 weeks with almost daily updates. Here is a report on the lawsuit and a Cincinnati Enquirer editorial.

Update: Sept. 26.

Myrtle Beach, South Carolina: “Police said Jeffrey Rothman died in March 2001 at age 20 after jumping off Second Avenue Pier, and an autopsy determined that he had taken the drug Ecstasy and died accidentally. His father, David Rothman, charges that the police department did not follow proper procedures, did not treat the case as a possible homicide and showed a general lack of professionalism.” The senior Rothman, who is filing his suit without a lawyer, says it’s not about the money and talks of using the $10 million for charity. (Lisa Fleisher, “Trial date set in lawsuit against MB, police”, Myrtle Beach (S.C.) Sun-News, Aug. 24; comments at Fark).

September 11 litigation as an industry, courtesy of the asbestos/tobacco zillionaires from South Carolina:

While other lawyers have resolved most or all of their cases — at least 32 of the roughly 90 total lawsuits have settled — Motley Rice has settled only three. …According to several lawyers and plaintiffs in the case, Motley Rice has made unusually high settlement demands, often 5 to 10 times higher than similar plane crash cases. The higher demands stem from Motley’s calculations for what it calls “terror damages” — compensation for the amount of time frightened victims knew they were fated to die — of between $750,000 and $1 million a minute, according to those lawyers and clients, who requested that their names not be used because the settlement process is confidential.

The story deserves a place in the “Not About The Money” files because client after client informs the Boston Globe that their litigation stance is entirely unrelated to that disdained cash nexus; presumably it’s just happenstance that they have wound up represented by lawyers who are making monetary recovery a very high priority indeed. Somehow one is reminded of the character in Flannery O’Connor: “Mrs. Hopewell had no bad qualities of her own but she was able to use other people’s in such a constructive way that she never felt the lack.” (via Lattman)(cross-posted from Point of Law).

One of our favorite clichés is repeated in a tale of a lawsuit over a tragic electrocution. Because it’s BGE’s fault Gary Dart’s trailer caught on fire, because, after all, powerlines never go down during a snowstorm without negligence. Good thing it’s not about the money, or they might have asked for a lot more than $175 million. The attorney is Dave Ellin. (Joseph M. Giordano, “BGE Is Sued Over Electrocution”, Dundalk Eagle, Mar. 27). Because BGE is a regulated utility (whose maintenance budget is set in negotiations with the governmental public utility commission), the expenses of the lawsuit, including any damages, will eventually be passed on to local ratepayers. (Update: or not. See comments.)