Human interest: Family physicians Jim Schwieterman M.D., and Tom Schwieterman M.D., who are brothers, are “scheduled to deliver their last baby in September, stopping a more than 100-year run of their family bringing children into the world in Mercer County, Ohio.” Their practice in the rural town of Maria Stein dates back to their great-grandfather, and has never had a lawsuit payout. But obstetrics is a high-risk field legally speaking: their insurance company “was asking for $80,000 for the brothers to keep delivering the 60 or so babies a year that they average”, up 150% or so from six years ago. “And given how long their family has been in the community, neither wanted to move 20 miles west to Indiana where tort reform is established and rates would have been 75% less.” The brothers will continue in medical practice aside from obstetrics. (Tanya Albert, American Medical News (AMA), May 3).
Posts tagged as:
obstetric
“Dr. Eileen Murphy has been delivering babies for 18 years, including Governor [Rod] Blagojevich’s daughter, Anne. But on April 30 she’ll see her last patient. She just can’t afford to do it anymore. … The problem’s not her $170,000 a year salary. It’s her insurance premium which jumped to $138,000 this year. Without insurance she can’t get hospital privileges. ‘If anything goes wrong, even if it’s a possible complication, a possible natural outcome, you can almost guarantee that you are going to be sued,’ Murphy said.” (“Doctors Protest Malpractice Rates”, CBS 2 Chicago, Mar. 24). Murphy plans to become a junior high school teacher instead, according to news reports. “I am going on strike for tort reform,” she wrote in a letter to her patients. More: Spoons Experience, Capitol Grilling bulletin board. Even more: Chicago Tribune on state’s crisis (“The doctors are leaving”, Apr. 18) (editorial); Maureen Martin, Heartland Institute, Mar. 26; Patrick J. Powers, “Doctor laments loss of friends to other states”, Belleville News-Democrat, Jan. 14.
The Hartford Courant on Apr. 4 (reg) ran a guest commentary by an attorney named Henry Kopel (“My Colleagues Are Wrecking Health Care”) who is married to an obstetrician/gynecologist and who begins his column: “I am an attorney, and I am ashamed of what my profession is doing to health care in America.” (reprinted: Connecticut College of Emergency Physicians). And here are a couple more medical-liability sites we haven’t previously noted: Doctors for Medical Liability Reform (various physician specialty groups), Protect Access to Care & Treatment (American Academy of Orthopedic Surgeons).
State medical societies have expressed considerable ambivalence about proposals to proceed specialty by specialty on malpractice reform, starting with the hardest-hit areas such as obstetrics and emergency medicine, fearing that such measures might serve to divide the profession and allow politicians to say that they had “done something” after addressing only the most obvious crisis areas (“AMA vows united voice in battle for tort reform”, American Medical News, Jan. 5). At any rate, it seems the choice of such a compromise won’t be available at the federal level, since opponents have no seeming interest in it. This week the Senate’s Republican leadership brought back malpractice reform in a pared-down version intended just to address obstetric litigation, but no go: the 48-45 vote was pretty much the same as that by which omnibus reform had failed, falling far short of the 60 needed to overcome an expected filibuster by Democrats.
The Associated Press report on the vote (Jesse Holland, AP/DailyNews.com, Feb. 25) reported that “some conservatives” opposed the bill, but the conservative it quoted turned out to be Ken Connor, former head of the religious-right Family Research Council. What AP didn’t add is that Connor is not exactly your typical conservative, having made his fortune in Florida as a plaintiff’s lawyer suing nursing homes and having served as a tenacious legislative advocate for the interests of the trial bar before his stint at FRC (see Mar. 2-4, 2001).
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Good New York Times page-one article investigating the Senator’s legal work, and in particular his big-ticket lawsuits over cerebral palsy. (Adam Liptak and Michael Moss, Jan. 31). See our earlier coverage Jan. 20 and Jan. 26. Alex Tabarrok, Sydney Smith, Charlotte Hays and Wayne Eastman comment.
Meanwhile, a theme has developed among several lawyer and law-professor bloggers that Edwards should not be held up to reproach even if it turns out that he employed dubious expert testimony to extract fortunes from innocent obstetricians, on the grounds that a trial lawyer is just doing his job when he seeks to introduce all admissible evidence on behalf of his client; in fact, he may even be obliged to do so as an ethical matter of “zealous advocacy”. (It should be stressed that Edwards strongly disputes the idea that his cases were in any way scientifically dubious.) We ourselves aren’t buying this line of reasoning, but it has some articulate advocates, including Peter Nordberg (who also defends Edwards here, while acknowledging that some details in the new Times piece “may supply grist for Edwards’ critics”), Franco Castalone, and David Bernstein. For our views of what constitutes proper “zeal” on lawyers’ part, see Jul. 17.
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Having long taken an interest in the career of North Carolina Sen. John Edwards (see Sept. 16, Aug. 27 (talk about bad predictions!), Aug. 5, earlier posts), we are not entirely surprised that the silver-tongued trial lawyer/politician did so well among Iowa Democrats, not to mention charming such commentators as Mickey Kaus (scroll to second “P.P.S.” item) and Andrew Sullivan (second item). As we’ve had occasion to note, before entering politics Sen. Edwards had some of his greatest success representing families of kids with cerebral palsy against the doctors who’d allegedly botched their deliveries — this despite a steadily mounting pile of research (see Feb. 27, 2003) tending to refute the popular theory that cerebral palsy is commonly caused by obstetricians’ conduct during labor and delivery. Last March, in a letter to the editor printed at this site, Mississippi physician S.W. Bondurant wondered whether the press would look into the question of whether Edwards’s trial wins were based on sound science. Now reporter Marc Morano of the conservative CNSNews.com takes on that assignment (“Did ‘Junk Science’ Make John Edwards Rich?”, CNSNews.com, Jan. 20). Just to clarify my own views, which are quoted at some length: I don’t assert that every lawsuit blaming obstetricians for infant brain damage is unfounded. The problem is that our system gives wide leeway for cases of debatable scientific merit to be filed and then, after a battle of the hired experts, decided by appeals to jury emotion. (& welcome visitors from sites including Kaus (Jan. 20), Sullivan, MedPundit, Rangel M.D., Blog 702, MedRants, and many others)
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Lack of malpractice insurance is threatening to close the only obstetrics practice in Virginia’s rural and economically depressed Northern Neck region. The closure of Rappahannock General Hospital’s OB unit, which delivers about 250 babies a year, would be “absolutely devastating” to community health, says Albert C. Pollard Jr., who represents the region in the Virginia House of Delegates: “we’d lose a lot of babies if somebody has to drive to Richmond or Newport News.” (Frank Delano, “Crisis presses OB docs”, Fredericksburg (Va.) Free Lance-Star, Dec. 21). “While the governor and Legislature dither over fixing the state’s medical malpractice system, the [Philadelphia] region’s doctors have been voting with their feet,” reports the Philadelphia Daily News. “And they are choosing states that cap damages in malpractice lawsuits — or have other strong reforms to keep malpractice insurance premiums low.” (Michael Hinkelman, “Pa. docs are moving to ‘cap’ states”, Philadelphia Daily News, Dec. 8). Hard numbers on malpractice payouts are often in short supply, but the Missouri state department of insurance has some: it says insurance companies operating in the state “reported paying $135 million to cover 524 claims closed last year”. Self-insured entities, mostly hospitals, “reported paying $6.6 million to close 42 claims, but the actual number of claims and the amount paid may be understated in the data, department spokesman Randy McConnell said. … The average malpractice claim takes more than four years to reach resolution, so the 2002 claims data capture injuries sustained over a period of years. Only 15 of the 566 claims went to a court verdict.” Most of the paid cases involved claims that medical misadventure led to permanent injury or death. (Judith Vandewater, “566 medical malpractice claims were settled in Missouri in 2002″, St. Louis Post-Dispatch, Dec. 4). The American Medical Association rates Missouri a “crisis” state. (M. Steele Brown, “Malpractice ‘crisis’ drives docs from Missouri”, Kansas City Business Journal, May 5).
Lifeguards: “One of Victoria’s most popular surf beaches may be unpatrolled this summer as its lifesaving club struggles to pay the huge public liability insurance costs. The Torquay club will not put lifesavers on the beach this season if the State Government does not pass legislation protecting members and the club from litigation.” (Stephen Moynihan, “Popular beach may have no lifesavers this season”, Melbourne Age, Nov. 2). Pediatric surgeons: “Eighteen orthopedic surgeons and obstetricians have quit public hospitals in Sydney in the past week because of the Government’s medical indemnity charge.” (Ruth Pollard, “Children’s surgeons quit, more will follow”, Sydney Morning Herald, Oct. 2). Rural obstetricians (Lucy Beaumont, “Insurance fear on rural births”, Melbourne Age, May 6). See David Little, “Left untreated, the indemnity system will cause more suffering”, Sydney Morning Herald, Oct. 9; Richard Ackland, “In a row between doctor and lawyer, you know who the politician will call”, Sydney Morning Herald, Oct. 31)
New York City may soon be left with only a single independent center for natural childbirth: “The Brooklyn Birthing Center says its insurance company has stopped covering midwives, and a costlier new policy could push them out of the baby-birthing business as well. The news comes less than a week after the highly regarded Elizabeth Seton Childbearing Center, which delivers more than 400 babies a year, announced it will shut down its West 14th Street [Manhattan] birthing rooms on Sept. 1 because of malpractice insurance costs it says have quadrupled.” All three independent midwifery centers in New Jersey closed in recent years; one remains in the Bronx which receives federal funding and insurance. (Susan Edelman, “Midwife Strife Hits Moms in Brooklyn”, New York Post, Aug. 17; Dan Mangan, “Midwife Crisis”, New York Post, Aug. 12). And in Tallahassee, Fla., a doubling of insurance rates has contributed to the closing of Full Circle Women’s Health, a nonprofit midwifery agency whose efforts have been credited with helping reduce the county’s high rate of neonatal mortality. (Jeff Burlew, “Area midwifery agency closing after 20 years”, Tallahassee Democrat, Aug. 13)(more on obstetric liability)(& update Sept. 3, letter to the editor Sept. 18)
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Oregon: “Women who have delivered a baby by Caesarean section must deliver their next child the same way if they give birth at Merle West Medical Center. The hospital’s board of directors today announced a new policy that supports a decision by local obstetricians to not deliver a baby vaginally if the mother has had a previous Caesarean section, a surgical procedure that delivers the baby by making an incision in the abdomen and uterus. The decision is based more on legal implications related to the potentially high-risk procedure than on medical statistics, said Dr. Rick Zwartverwer, vice president for medical affairs at Merle West Medical Center.” (Marcia McGonigle, “Hospital alters C-section policy”, Klamath Falls (Ore.) Herald & News, Jul. 8)(see Feb. 5, 2001). Update Nov. 29, 2004: New York Times covers the story.
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“Texas’s giant legal reform“, Jun. 18-19, 2003.
Malpractice suit crisis, 2003: “Letter to the editor“, Jun. 20-22; “Docs leaving their hometowns“, Jun. 12-15; “Juggling the stats“, Jun. 4-5; “Malpractice studies“, May 12; “Public Citizen’s bogus numbers“, Apr. 10-13; “Malpractice crisis hits sports-team docs” (& general roundup), Apr. 7-8; “Would you go into medicine again?“, Mar. 18; “‘Public deceit protects lawsuit abuse’“, Mar. 15-16; “One solution to the malpractice crunch“, Feb. 19; “Feinstein set to back Bush malpractice plan“, Feb. 12; “State of the Union“, Jan. 29; “Malpractice-cost trends“, Jan. 24-26; “ATLA’s hidden influence“, Jan. 21-22; “Playing chicken on malpractice reform“, Jan. 9; “‘Doctors strike over malpractice costs’” (W.Va., Pa.), Jan. 3-6. 2002: “Campaign roundup“, Nov. 4-5; “Pennsylvania House votes to curb venue-shopping“, Oct. 11-13; “Rumblings in Mississippi“, Oct. 9-10 (& Sept. 9-10); “Let ‘em become CPAs“, Oct. 7-8; “Tour of the blogs“, Sept. 24; “You mean I’m suing that nice doctor?“, Aug. 1; “‘Bush urges malpractice damage limits’“, Jul. 29; “‘Trauma center reopens doors’“, Jul. 18; “Malpractice crisis latest” (Pa., Tex.), Jun. 11-12; “Sick in Mississippi? Keep driving“, Jun. 3-4 (& Apr. 5-7); “‘Rocketing liability rates squeeze medical schools’“, May 28-29; “‘The trials of John Edwards’“, May 20-21; “Ob/gyns warn of withdrawal“, May 17-19; “‘The Tort Mess’” (Forbes, etc.), May 13; “Texas doctors’ work stoppage“, Apr. 11 (& Mar. 15-17); “No more ANZAC Day marches?” (Australia), Apr. 1-2; “Scenes from a malpractice crisis“, Mar. 5; “Med-mal: should doctors strike?“, Jan. 21-22. 2001: “Soaring medical malpractice awards: now they tell us“, Sept. 11; “‘Valley doctors caught in “lawsuit war zone”‘“, May 3; “Pennsylvania MDs drop work today“, Apr. 24; “Philadelphia juries pummel doctors“, Jan. 24-25. 2000: “Trial lawyers’ clout in Albany“, Oct. 4; “Malpractice outlays on rise in Canada“, Oct. 2.
Ob/gyn, 2003: “Juggling the stats“, Jun. 4-5; “Malpractice studies“, May 12; “‘Edwards doesn’t tell whole story’“, Mar. 4 (& letter to the editor, Mar. 31); “‘Delivering Justice’“, Feb. 27. 2002: “Ob/gyns warn of withdrawal“, May 17-19 (& see Jun. 11-12); “‘Support case hinges on failed sterilization’” (Ind.), Apr. 26-28; “Med-mal: should doctors strike?“, Jan. 21-22. 2001: “Fleeing obstetrics, again“, Dec. 21-23; “‘Wrongful life’ comes to France“, Dec. 11 (& updates Jan. 9-10, May 20-21, Jul. 1-2, 2002); “Meet the ‘wrongful-birth’ bar“, Aug. 22-23 (& letter to the editor, Sept. 3; more on wrongful birth/life: Nov. 22-23, Sept. 8-10, June 8, May 9, Jan. 8-9, 2000); “Pennsylvania MDs drop work today“, April 24; “Caesarean rate headed back up“, Feb. 5. 2000: “Birth cameras not wanted“, Oct. 18; “Plastic surgeons must weigh patients’ state of mind, court says” (roundup: anti-abortion suits), Aug. 15. 1999: “‘Trial lawyers on trial’” (Norplant, etc.), Dec. 23-26; “‘Your perfect birth control…blocked?’“, Aug. 11 (Norplant) (& update Aug. 27; company to settle 36,000 suits); “Yes, this drug is missed” (hospital admissions for hyperemesis tripled after lawyers drove Bendectin off market), Jul. 21.
“Malpractice studies“, May 12, 2003; “Radiologists: sue them enough and they’ll go away“, Nov. 2, 2000 (& see Sept. 24, 2002).
Nursing homes, geriatrics, 2003: “Florida: ‘New clout of trial lawyers unnerves legislators’“, Mar. 20; “$12,000 a bed“, Mar. 19. 2001: “Soaring medical malpractice awards: now they tell us“, Sept. 11; “‘Doctor liable for not giving enough pain medicine’“, Jun. 15-17; “‘Nursing homes a gold mine for lawyers’“, Mar. 13-14. 2000: “‘Litigation grows in ailing nursing home industry’“, Jun. 20 (& see Mar. 2-4, 2001).
“Incoming link of the day“, Mar. 5-7, 2003.
Emergency medicine: “‘Trauma centers warn lives could be at risk’” (Orlando), Feb. 28-Mar. 2, 2003; “Ambulances, paramedics sued more“, Oct. 28-29, 2002; “Let ‘em become CPAs“, Oct. 7-8; “Avoid having a medical emergency in Mississippi“, Apr. 5-7; “Scenes from a malpractice crisis” (closure of trauma centers), Mar. 5, 2002 (& see Jun. 11-12); “That’ll teach ‘em” (Chicago EMS), Dec. 26-28, 2000; “Highway responsibility” (ambulance, hospital sued in Derrick Thomas crash), Nov. 28, 2000.
“The jury pool he faced“, Feb. 25, 2003.
“Take care of myself? That’s the doc’s job“, Feb. 14-16, 2003; “Claim: docs should have done more to help woman quit smoking and lose weight” (Pa.), Sept. 18-19, 2002.
“Medical mistakes” estimates, 2001: “Report: ‘medical errors’ study overblown“, July 27-29. 2000: “‘Report on medical errors called erroneous’“, July 11; “Medical mistakes, continued“, March 7; “‘Medical errors’ study“, Feb. 28; “Against medical advice” (Clinton proposals), Feb. 22 (& see malpractice law section below).
“Mercury in dental fillings“, Jul. 16-17, 2002 (& Nov. 4-5, 2002).
Psychiatry and allied fields, 2002: “‘Mom who drugged kids’ ice cream sues’“, Nov. 1-3; “‘Patient sues hospital for letting him out on night he killed’” (Australia, psychiatric case), Oct. 16-17; “‘After stabbing son, mom sues doctors’“, May 31-June 2; “Counseling center may face closure” (Okla.), May 24-26. 2000: “Killed his mother, now suing his psychiatrists“, Oct. 2; “Not my fault, I” (woman who murdered daughter sues psychiatrists), May 17; “Legal ethics meet medical ethics” (lawyers advise schizophrenic murder defendant to go off his medication for trial), Feb. 26-27 (update, Mar. 2: he’s reported to have punched a social worker twice since going off medication; Mar. 29: jury convicts him anyway); “Latest excuse syndromes” (“Internet intoxication”, etc.), Jan. 13-14; “Warn and be sued” (clinical psychologist loses confidentiality suit after warning of patient’s dangerousness), Jan. 12. 1999: “Doctor sues insurer, claims sex addiction“, Oct. 13; see also personal responsibility.
“Artificial hearts experimental? Who knew?“, Oct. 23, 2002.
“U.K.: ‘Dr. Botch’ sues hospital for wrongful dismissal“, Oct. 18-20, 2002; “Let them sue us!” (hospitals get sued if they withdraw privileges from questionable doctors), Mar. 23, 2000.
“Lawyers fret about bad image” (lawyers’ own poll finds public has much more confidence in doctors than in lawyers), Oct. 3, 2002.
“‘Patient pays price for suing over cold’” (U.K.), Sept. 20-22, 2002.
“‘Doctors hope fines will curb frivolous lawsuits’“, Sept. 6-8, 2002; “The doctor strikes back” (neurosurgeon countersues), June 14-15, 2000; “‘Truly egregious’ conduct” (court cites misconduct by attorney Geoffrey Fieger in suit against cardiologist), Sept. 14, 1999.
“Accident medicine”, 2002: “‘How to spot a personal injury mill’“, Aug. 19. 2001: “Lawyers (and docs) block cleanup of Gotham crash fraud“, April 2. 2000: “‘How do you fit 12 people in a 1983 Honda?’“, Aug. 23-25; “His wayward clients“, May 25; “Less suing = less suffering” (NEJM whiplash study), Apr. 24 (& update Jun. 26).
“‘The NFL vs. Everyone’” (medical privacy laws could restrict sports teams from commenting on players’ injuries), Jun. 13, 2002; “Promising areas for suits” (sports medicine), Dec. 7, 2000; “Doctor cleared in Lewis cardiac case“, May 15, 2000.
“‘Remove child before folding’” (AEI-Brookings study on defensive medicine), Jun. 5, 2002.
Managed care/HMOs, 2002: “‘Bad movie, bad public policy’” (John Q), Mar. 19; “Washington Post blasts HMO class actions“, Jan. 30-31. 2001: “Managed care bill: Do as we say…“, Sept. 7-9 (& Dec. 6, 1999); “Contrarian view on PBR“, Aug. 17-19; “Chapman, Broder, Kinsley on patients’ rights“, June 28; “Managed care debate“, June 26; “Columnist-fest” (Morton Kondracke), June 22-24; “Docs and Dems“, June 19; “Roundup“, May 21. 2000: “Patients’ Bill of Wrongs” (Richard Epstein), Oct. 27-29; “Fortune on Lerach“, Aug. 16-17; “Arm yourself for managed care debate“, April 20; “Employer-based health coverage in retreat?“, March 31-April 2. 1999: “Weekend reading: columnist-fest” (John McCarron), Dec. 11-12; “Actions without class” (Wash. Post editorial: “extortion racket”), Dec. 2; “Who’s afraid of Dickie Scruggs?“, Dec. 2; “Aetna chairman disrespects Scruggs“, Nov. 18-19; “World according to Ron Motley” (world’s richest lawyer plans to sue HMOs, nursing homes, drugmakers), Nov. 1; “Deal with us or we’ll tank your stock” (managed care stock prices plunge), Oct. 21; “‘Health care horror stories are compelling but one-sided’“, Oct. 16-17; “After the HMO barbecue“, Oct. 12; “Power attracts power” (Boies joins anti-HMO effort), Sept. 30; “Impending assault on HMOs“, Sept. 30; “Rude questions to ask your doctor” (why are you helping trial lawyers make it easier to sue health plans?), Sept. 4-6; “From the fourth branch, an ultimatum” (leading trial lawyer vows to “dismantle” managed care), July 16.
“Hospital rapist sues hospital“, May 22-23, 2002 (& Mar. 5-7, 2003: court dismisses case).
“Bush’s big mistake on mental health coverage“, May 13, 2002.
“‘Big government ruined my long weekend’” (tide-over weekend prescribing), May 7, 2002.
“Lawyers stage sham trial aimed at inculpating third party“, Mar. 22-24, 2002.
“All things sentimental and recoverable” (veterinarians), Jan. 30-31, 2002.
Public health follies: “Infectious disease conquered, CDC now chases sprawl“, Nov. 9-11, 2001; “Letter to the editor” (activist doctors vs. gun ownership), May 18, 2001; “‘P.C., M.D.’“, Feb. 23-25, 2001.
“Bioterrorism preparedness” (laws hobble hospitals), Oct. 30, 2001.
“Letter to the editor“, Sept. 3, 2001 (can/should doctors avoid lawyers as patients?) (responses, Oct. 22).
“Clinical trials besieged“, Aug. 27-28, 2001; “Bioethicist as defendant” (Arthur Caplan, Jesse Gelsinger case), Oct. 6-9, 2000.
“‘Doctor liable for not giving enough pain medicine’“, Jun. 15-17, 2001.
“The unconflicted Prof. Daynard” (British Medical Journal and tobacco lawyer), April 21-23, 2000 (& update: letters, Jan. 2001, June 2001).
“To destroy a doctor” (lawyer’s campaign against laparoscopic surgeons), June 6, 2001.
“Mommy, can I grow up to be an informant?“, July 30, 2001; “A case of meta-False Claims” (overzealous prosecution of hospitals), Sept. 9, 1999.
“Updates” (Lawyers’ cameras in trauma ward), Dec. 26-28, 2000 (& Oct. 18).
“Promising areas for suits” (laser eye surgery), Dec. 7, 2000.
Plastic surgery: “Plastic surgeons must weigh patients’ state of mind, court says“, Aug. 15, 2000 (& June 11, 2001: she loses); “Strippers in court“, Jan. 28, 2000; “No spotlight on me, thanks” (leading breast-implant lawyer obtains gag order against lawyers for dissatisfied clients), August 4, 1999; “Never saying you’re sorry” (implants), July 2, 1999.
“Turn of the screw” (pedicle screw lawsuits), Oct. 24, 2000.
“Disabled rights roundup” (obligatory sign interpreters at doctor’s offices), Sept. 29-Oct. 1, 2000; “From our mail sack: ADA enforcement vignettes” (interpreters, guide dog allergy case), May 31, 2000.
“Embarrassing Lawsuit Hall of Fame” (intimate injury; misdiagnosis charge), Aug. 14, 2000.
“Senator Lieberman: a sampler” (cost of defensive medicine), Aug. 8-9, 2000.
“And don’t say ‘I’m sorry’” (nurse’s first-person account), June 21, 2000.
“Can’t sue over affair with doctor” (court rules it was consensual), June 13, 2000.
“Jumped ahead, by court order” (residency), May 31, 2000.
“‘Case’s outcome may spur more lawsuits’” (Mississippi fen-phen trial), Dec. 10, 1999; “‘Dieters still want fen-phen’“, August 18, 1999.
“Rhode Island A.G.: let’s do latex gloves next“, Oct. 26, 1999.
“Michigan high court upholds malpractice reform“, August 6, 1999.
Other resources on medicine and litigation:
Good general links pages on health law are provided by the St. Louis University Center for Health Law Studies and by the whimsically named but highly useful Health Hippo.
The Litigation Explosion, the 1991 book by Overlawyered.com editor Walter Olson, was excerpted in two parts by Medical Economics [part one] [part two]
Marc Arkin, “Products Liability and the Threat to Contraception” (Manhattan Institute Civil Justice Memo, February 1999).
L. William Luria, M.D., and Dennis G. Agliano, M.D., “Abusive Medical Testimony: Toward Peer Review“, describes efforts under way in Hillsborough County, Florida, to apply principles of peer review to the control of irresponsible or unqualified forensic testimony by medical professionals.
Walter Olson, “Lawyers with Stethoscopes: Clients Beware” (Manhattan Institute Civil Justice Memo, 1996) (abusive litigation is also bad for the medical prognosis of claimants)
Breast implants: see separate page
Vaccines:
Health Hippo vaccines section.
Peter Huber, “Dan Quayle, the Lawyers and the AIDS Babies“, Forbes, October 28, 1991 (liability and an AIDS vaccine).
Peter Huber, “Health, Death, and Economics“, Forbes, May 10, 1993 (“investment in vaccines remains far lower than it should be, given the huge benefits that vaccines provide”)
Walter Olson, “California Counts the Costs of Lawsuit Mania“, Wall Street Journal, June 3, 1992 (liability slowing research on AIDS vaccine).
Malpractice law:
Daniel Kessler and Mark McClellan of Stanford won the Kenneth Arrow Award in Health Economics in 1997 for their article “Do Doctors Practice Defensive Medicine?”, which “found that when states reformed malpractice laws to put caps on damages for pain and suffering, or to eliminate punitive damages, hospital expenditures for heart disease patients were reduced by about 5 percent, yet did not leave the patients with worse health outcomes.”
Richard Anderson, M.D., “An ‘Epidemic’ of Medical Malpractice? A Commentary on the Harvard Medical Practice Study“, Manhattan Institute Civil Justice Memo, July 1996 (shortcomings of famous study of medical care in New York hospitals).
Forbes columns by Peter Huber on the issue include “Malpractice Law: A Defective Product” (1990) and “Rx: Radical Lawyerectomy” and “Easy Lawsuits Make Bad Medicine” (1997).
Walter Olson, “A Story That Doesn?t Have a Leg To Stand On,” Wall Street Journal, March 27, 1995 (the famous “wrong-leg amputation” case).
In 1993, in a paper given at the annual meeting of the Association for Health Services Research, Daniel Mendelson and Robert Rubin estimated that defensive medicine practices in three areas alone — pre-surgical testing, fetal monitoring and skull x-rays — probably exceeded $2 billion a year, and estimated likely savings from “aggressive malpractice reform” at more than twice that amount. Perhaps in contrast (or perhaps not), a 1995 study of obstetrics in Washington state by L. Baldwin et al found no differences in practice between doctors who had been named in suits and those who had not. And Mark Hauser et al, “Fear of Malpractice Liability and its Role in Clinical Decision-Making” studied doctors’ reaction to hypothetical cases in which a patient’s file did or did not reveal a history of having sued physicians. They found that in cases where an earlier suit had been reported the doctors were modestly more likely to call in other doctors, to recommend hospital admission, to document a case “by the book” rather than rely on judgment, and to predict a bad outcome. Surprisingly, they did not order more tests or withdraw from cases more often when informed that a patient had a record of suing. The Hauser paper notes one possible cost of an over-hasty resort to hospitalization: “In psychiatry a defensive response might include a needlessly low threshold for involuntary hospitalization, where the patient’s liberty and autonomy are, in essence, sacrificed in favor of conservative practice for the sake of self-protection.”
The Michigan law firm of Garan, Lucow, Miller & Seward, P.C., which has a specialty in medical malpractice defense, maintains a comprehensive links page of resources in the field.
Among reform groups, the Health Care Liability Alliance is a nationwide advocacy group whose website offers a variety of useful materials on the case for lawsuit reform. Californians Allied for Patient Protection defends the Golden State’s MICRA limits on malpractice liability. CLYSIS is a Minnesota group working for medical liability reform. State medical societies, such as the Medical Society of the State of New York, often maintain law-related information at their websites.
May 20 – Suing ’til the cows come home. From a Forbes article on why the city of Fresno, Calif. and its surrounding Central Valley are so economically depressed: “Then there is the assault from the greenies. In Fresno’s surrounding counties, the Center on Race, Poverty & the Environment [a unit of the federally funded California Rural Legal Assistance -- ed.] has used lawsuits to halt 125 new and expanded dairy projects since 1998, projects that would have increased the state’s milk cow population by a third.” (Lynn J. Cook, “Economic Death Valley”, Forbes, May 26). See also Larry Serpa, “Dairies can coexist with environment”, Visalia Times-Delta, Nov. 3-4, 2001; Michael Boccadoro, “Activist groups do more to cause poverty than cure it”, Dairy Business, Feb. 2002, both reprinted at DairyCares site. (DURABLE LINK)
May 20 – “A Grand Façade”. “[Few Americans] have any idea about what the grand jury is supposed to do and its day-to-day operation. That ignorance largely explains how some over-reaching prosecutors have been able to pervert the grand jury, whose original purpose was to check prosecutorial power, into an inquisitorial bulldozer that enhances the power of government and now runs roughshod over the constitutional rights of citizens.” (W. Thomas Dillard, Stephen R. Johnson, and Timothy Lynch, “A Grand Façade: How the Grand Jury Was Captured by Government”, Cato Institute Policy Analysis #476, May 13 (executive summary; full paper in PDF format)) (DURABLE LINK)
May 19 – Sauce for the gander dept. Texas: “A major criticism of class-action lawsuits is that the public often gets nothing but coupons while their lawyers wind up with millions of dollars. If a proposed law makes it through the Legislature, the lawyers may be getting coupons, too. Sen. Bill Ratliff, R-Mount Pleasant, is proposing that lawyers who win class-action suits get the same thing that their clients get. If half the award to the clients is in coupons and discounts, the lawyers will get half their fees in coupons and discounts, too.” (Terry Maxon, “Bill would give attorneys same class-action payout as clients”, Dallas Morning News, May 5)(via Houston Citizens Against Lawsuit Abuse). (DURABLE LINK)
May 19 – “Lawyers spoil fun”. Georgia: “Families and kids who found summertime fun and enjoyment each year at the Krystal River Water Park in Evans will have to find somewhere else to cool off in the months ahead. The park is closing up shop because its liability insurance costs jumped from $8,000 a month to a whopping $58,000 a month. Customers couldn’t possibly afford to pay the higher admission price park owner Ken Edwards would have to charge to offset the 700-percent premium increase.” (Augusta (Ga.) Chronicle, May 11). (DURABLE LINK)
May 19 – “Law firms in tobacco suit seek $1.2b more”. Massachusetts: “As Beacon Hill grapples with a fiscal crisis, the lawyers who worked on the state’s lawsuit against the tobacco industry are demanding the state now pay them an additional $1.25 billion in legal fees. In recent court filings, four law firms, led by Brown Rudnick Berlack Israels of Boston, asked a Superior Court judge to enforce a contract that called for the lawyers to be given 25 percent of whatever proceeds Massachusetts received in the case. … The lawyers’ push to obtain more of the tobacco funds [on top of the $775 million they have already been awarded] has roiled the legal community in Massachusetts and nationally, with some worrying that the case will reinforce an image of avarice that dogs trial lawyers.” (Frank Phillips, Boston Globe, May 4)(see Jan. 2-3, 2002). (DURABLE LINK)
May 16-18 – Go ahead and have your Oreos (for now). The San Francisco lawyer who announced that he was suing Kraft/Nabisco (see May 13) now says he’s dropping the action and “only wanted to get the word out about the dangers of unlabeled fats contained in the popular black and white cookies. …[']Now everybody knows about trans fat.’ He expressed no remorse for using California courts as a publicity tool.” (Ron Harris, “SF lawyer says he’s dropping suit against Oreo cookies”, AP/San Francisco Chronicle, May 14). Bloggers Brian Peterson (May 13) and Timothy Sandefur (May 14) have their doubts about whether it’s actually consistent with legal ethics to file lawsuits in search of free publicity for causes, while George Mason University law professor David Bernstein, an old friend and collaborator of ours who’s just launched his own law blog, notes that (like it or not) lawsuits are often extraordinarily effective as bids for attention (May 15, archives busted, scroll down). Meanwhile the New York Times, which ran an “Editorial Observer” commentary favorable to the McDonald’s obesity suit (see Feb. 19), chimes in with an article presenting the Oreo affair exclusively from the plaintiff’s point of view, with not a syllable of dissent or skepticism about the suit’s merits (Marian Burros, “A Suit Seeks to Bar Oreos as a Health Risk”, New York Times, May 14). On the other hand, Chicago Sun-Times columnist Mark Brown rejoices that he’s “found a way to finance my children’s college education. … I don’t intend to quit until I’ve eaten all 45 cookies in the package.” (“In search of the lethal dose of Oreo cookies”, May 14). (DURABLE LINK)
May 16-18 – After California bounty-hunting scandal, lawyers win again. When people talk about the trial lawyers’ controlling the California legislature, this is the sort of thing they have in mind. For several months editorial and public opinion in the state has registered outrage at lawyers’ use of the state’s broad unfair-competition law to extort cash settlements from thousands of small-business owners (see Jan. 15, Mar. 3). But “The attorneys, to the utter surprise of no one, emerged as victors in a showdown hearing of the Assembly Judiciary Committee. Voting largely along party lines, in what was clearly a scripted scenario, the committee killed three bills that would have imposed some reforms on the unfair competition law — UCL, as it’s called — and approved a lawyer-backed substitute that contains only superficial changes and, if enacted, would actually make it easier to collect money in UCL cases.” The committee passed “a measure written by the personal injury attorneys lobby, Consumer Attorneys of California, [which] in conjunction with another lawyer-written measure in the Senate, would impose very mild new requirements on attorneys filing UCL suits, but it would also add a provision, called ‘disgorgement,’ that would allow more money to be obtained from UCL defendants and thus increase plaintiffs’ leverage. Recent state Supreme Court decisions had barred ‘disgorgement’ in UCL suits.” (Dan Walters: “Democrats side with lawyers over small-business owners”, Sacramento Bee, May 9). (DURABLE LINK)
May 16-18 – “Suit Seeks to Keep Elephant at L.A. Zoo”. “A woman has filed suit to stop the Los Angeles Zoo from sending its female African elephant, Ruby, to the Knoxville Zoo in Tennessee, a move she said would break a longtime bond between the animal and a female Asian elephant, Gita.” (Carla Hall, Los Angeles Times, May 15) (see also SoCalLaw) (DURABLE LINK)
May 15 – Judge kicks class-action lawyers off case. “It was a stunning ruling by a federal judge exposing what she saw as lawyers trying to settle a big class-action lawsuit for their own benefit and with little regard for their clients. U.S. District Judge Elaine E. Bucklo last month booted six Chicago-area lawyers off a national class-action suit that accused H&R Block Inc. of cheating customers who took out tax-refund loans. In her ruling, she chastised the lawyers for doing little spadework to prove their case. The settlement fund was to be capped at $25 million for a potential class of 17 million people. The lawyers, whom she described as ‘inadequate,’ would have received $4.25 million.” (Ameet Sachdev, “Class-action reform pushed into spotlight”, Chicago Tribune, May 1; “Federal Judge in Illinois Rejects Settlement In Suit Against H&R Block Over Refund Loans”, BNA Class Action Litigation Report, Apr. 2; Mark Tatge, “A Pox on Both Houses”, Forbes, May 26). (DURABLE LINK)
May 14 – NTSB blames pilot error, but airport told to pay $10 million. “A Cook County jury awarded $10.45 million to the family of a pilot killed in 1996 when the executive jet he was at the controls of slid off the runway and burned at Palwaukee Municipal Airport. The pilot, Martin Koppie, 53, had been accused in earlier lawsuits of causing the crash that killed three other people.” The new verdict, on the other hand, throws $9.9 million worth of blame onto the municipalities of Wheeling and Prospect Heights, which own and operate the airport, for allegedly locating a drainage ditch too close to the runway. “In a 1998 report, the National Transportation Safety Board faulted Koppie for not aborting the takeoff and co-pilot Whitener for not taking ‘sufficient remedial action.’ In 2001, a Cook County jury awarded $18.9 million to Whitener’s family, who had argued that Koppie caused the crash and Chicago-based Aon Corp. was responsible as his employer.” (Michael Higgins, “$10 million award in ’96 plane crash”, Chicago Tribune, May 7). (DURABLE LINK)
May 14 – “Prosecutor had ordeal as defendant”. An assistant Massachusetts attorney general gets caught up in charges of sexual harassment that mushroom into criminal charges before eventually collapsing, not before turning his life and reputation upside down. “Exculpatory evidence that surfaced during [Michael] Atleson’s trial, prosecutors now say, cast serious doubt on the credibility of his accusers.” Despite Atleson’s acquittal and the withdrawal of other charges against him, a spokesman for Suffolk District Attorney Daniel Conley has no apologies: “The system worked for Mr. Atleson”, he claims. Read the story and see whether you agree (Ralph Ranalli, Boston Globe, Apr. 14) (DURABLE LINK)
May 13 – Lawsuit’s demand: stop selling Oreos to kids. “Oreo cookies should be banned from sale to children in California, according to a lawsuit filed by a San Francisco attorney who claims that trans fat — the stuff that makes the chocolate cookies crisp and their filling creamy — is so dangerous children shouldn’t eat it. Stephen Joseph, who filed the suit against Nabisco last week in Marin County Superior Court,… [is a "public interest lawyer" who has also] formed a nonprofit corporation called BanTransFats.com, Inc.” (Kim Severson, “Lawsuit seeks to ban sale of Oreos to children in California”, San Francisco Chronicle, May 12). “Fast food restaurants are facing claims that hamburgers can be as addictive as heroin in the next twist to the obesity lawsuits that threaten McDonald’s and Burger King. John Banzhaf, the self-styled ‘legal terrorist’ who pioneered tobacco litigation in the 1960s,” contends that studies suggest that fat-laden food can produce the same sorts of changes in the brain as powerful drugs. (Simon English, “Burgers are ‘as bad as heroin’, activist claims”, Daily Telegraph (UK), May 9). More: Lance Gay, “Food industry balks at mandatory labeling”, Scripps Howard/Bremerton, Wash. Sun, May 9; “A Twinkie Tax”, CBS News, May 12. (& update May 16-18: suit dropped) (DURABLE LINK)
May 13 – Update: court installs valedictorian. “A high school student won sole rights to Moorestown High School’s valedictorian title Thursday when a judge ruled that she should not have to share the honor with two other students.” (see May 3-4) “U.S. District Judge Freda Wolfson ordered the Moorestown district to name Blair L. Hornstine the valedictorian for the class of 2003.” (“Student Wins Valedictorian Lawsuit In Moorestown”, NBC10.com, May 9). Kimberly Swygert has a lot of commentary on the case at her No. 2 Pencil blog (May 9, May 2). (DURABLE LINK)
May 12 – Shouldn’t have let him get so drunk. Australia: “A Norlane man is suing Geelong Football Club for allowing him to get too drunk at a president’s lunch. …In Supreme Court documents seen by the Geelong Advertiser, Gregory Allan Clifford claims he consumed ‘excessive quantities of liquor’ supplied by the club at a president’s lunch about two years ago. Mr Clifford claims he fell down a set of stairs at the club function and severely injured himself. In the civil lawsuit against the club he claims the club should have exercised reasonable care to conduct the function in a way where people drinking were reasonably safe.” In a case that made considerable headway in the Australian courts before recently being dismissed, a woman sued a New South Wales rugby club for allegedly continuing to serve her alcohol although she was intoxicated; the “woman had claimed she was hit by a car while ‘wandering drunkenly’ 100 metres away from the club, the Supreme Court documents said.” (Natalie Staaks, “Cats sued”, Geelong Advertiser, May 8, no longer online) (via Brain Graze) (DURABLE LINK)
May 12 – Malpractice studies. Congress’s Joint Economic Committee publishes a new study finding that the medical malpractice litigation system performs poorly in both its major social roles: deterring medical negligence and fairly compensating the negligently injured. Reform including liability limits would offer substantial benefits that could include billions in annual budgetary savings to the federal fisc and improvements in medical care affordability that could permit millions of Americans to be priced back into the health insurance market. (Senior Economist Dan Miller, “Liability for Medical Malpractice: Issues and Evidence”, Joint Economic Committee, May (PDF format)). A similar study, focusing on Texas: Chris Patterson, Colleen Whalen and John Pisciotta, “Critical Condition”, Texas Public Policy Foundation, April (PDF format). In an April poll of Texas Medical Association members, nearly two-thirds of the 1,027 physicians responding “say the climate in which they practice medicine has forced them to deny or refer high-risk cases in the past two years.” (“Doctors forced to limit or deny patient care”, Citizens Against Lawsuit Abuse Houston website, undated).
Although Massachusetts’s situation is not as bad as that as many other states, it is still seeing a departure of respected doctors from the liability-wracked field of obstetrics. “‘You start to think maybe this isn’t worth it,’ said Dr. Ronald Rubin, 41, of Shrewsbury, who gave up obstetrics after being sued and is now completing an anesthesia residency. ‘My case was dismissed, but I got deposed. It was six years of going back and forth and taking time off from work. It took a tremendous toll.’” (Liz Kowalczyk, “Insurance costs leave one less baby doctor”, Boston Globe, Apr. 27). And following a tripling of its insurance premiums, a 16-doctor radiologist practice in the Daytona Beach, Fla. area has announced that it intends to stop performing mammograms, which is particularly problematic since the practice currently performs the majority of the mammograms carried out in Volusia and Flagler counties. (“Radiologists say they’ll stop performing mammograms on June 1″, AP/Daytona Beach News-Journal, May 8)(see Nov. 2, 2000). (DURABLE LINK)
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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)
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February 28-March 2 — NYC challenges class action fees; taxpayers save $200 million. Litigation over financial wrongdoing at Cendant Corp. led to a mammoth award of fees to class action lawyers. Some major class members, including the states of California and New York, acquiesced in the judge’s ruling on fees, but New York City’s Corporation Counsel courageously “appealed — and won a decisive victory: The entire $207 million saving will revert to the pension funds.” Among other things, the “story is also a window into the amazing power lawyers now wield in our economy.” (William Tucker, “Shark Hunt”, New York Post, Feb. 27). (DURABLE LINK)
February 28-March 2 – We have an RSS feed. We’re not exactly sure how these work, but they allow subscribers to obtain the latest “headlines” from this site by means of a kind of remote broadcasting. See the orange “XML” button at the left column of this site’s front page. If it malfunctions, could readers let us know? Courtesy of the nice folks at Janes’ Blogosphere. (DURABLE LINK)
February 28-March 2 – “Trauma centers warn lives could be at risk”. “Trauma centers across Central and North Florida warned Thursday that they may be unable to take up the slack when Orlando Regional Medical Center, barring a ‘miracle,’ shuts its Level 1 trauma unit April 1.” The trauma unit, which serves 33 counties, is losing its existing neurosurgery team and has been unsuccessful in recruiting out-of-state replacements to a legal climate symbolized by liability insurance costs that run as much as $175,000 a year. It is expected that central Florida trauma victims will be airlifted to already overburdened trauma centers in Tampa and Jacksonville, if there is room for them there, but the added time needed to fly them may rob them of their chance of survival. “Hospital officials and emergency-services personnel said they expect the shutdown will cost some people their lives…. ‘I don’t think there is any question that patients will be compromised,’ said John Hillenmeyer, Orlando Regional’s president.” (Greg Groeller and Jerry W. Jackson, Orlando Sentinel, Feb. 28). (DURABLE LINK)
February 27 – Obstetric liability: “Delivering Justice”. Our editor has an op-ed in today’s Wall Street Journal summarizing some of the implications of a new and comprehensive study finding that — contrary to the premises underlying many medical malpractice suits — most cases of cerebral palsy and other brain damage in newborns have nothing to do with mistakes by obstetricians. (Walter Olson, “Delivering Justice”, Wall Street Journal, Feb. 27. See Jane E. Brody, “Labor Problems Do Not Cause Most Cerebral Palsy, Study Finds”, New York Times, Feb. 26; Carey Goldberg, “Disputed study finds doctors not to blame in most cerebral palsy”, Boston Globe, Jan. 31; William Tucker, “Profiteers of Tragedy”, New York Post, Feb. 10; American College of Obstetricians and Gynecologists, “Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysiology”, executive summary and press release (& welcome “Robert Musil” readers) (DURABLE LINK)
February 26 – Our editor profiled in New York Sun. Where he’s called “intellectual point man for the tort reform movement … Mr. Olson’s vision could be the inspiration for John Grisham’s latest legal thriller ‘The King of Torts,’ in which obscenely rich trial lawyers fly their private jets in ostentatious loop de loops, landing every now and again to mine an industry for everything it’s worth.” Plus more about his home life than you could have wanted to know (Lauren Mechling, “He’s Taking On the ‘Tort Kings’”, New York Sun, Feb. 26) (& welcome InstaPundit readers; likewise those from Ernie the Attorney, whose kind words are much appreciated). Last Friday’s Wall Street Journal also pursues the Grisham parallel: “Trumped-up charges of neglect. Huge lawsuits. Lurid tales of lawyerly sleight-of-hand. Whopping jury awards. Fat legal fees. Bankrupt businesses. Abused clients. Above all, an appalling indifference to morality and justice. I am referring, of course, to the shocking details to be found in Walter Olson’s ‘The Rule of Lawyers,’ a recent account of real-life class-action litigation, from asbestos and tobacco to breast implants and diet pills. John Grisham writes about this world, too…” (Erich Eichman, “Bookmarks”, Wall Street Journal, Feb. 21 (online subscribers only)). (DURABLE LINK)
February 26 – “Family of electrocuted thief gets $75,000″. “The family of a convicted burglar who was electrocuted in 1997 when he tried to break in to a bar in Aurora after-hours and triggered a homemade booby trap has been awarded a $75,000 jury verdict to be paid by the owners of the bar and the property.” Frustrated by repeated burglaries, Jessie Ingram electrified the inside of his tavern’s window and “then posted several warning signs outside, including one outside the window [Larry] Harris broke in through. Drunk and high on cocaine, Harris, 37, either didn’t see or ignored the warnings.” (Dan Rozek, Chicago Sun-Times, Feb. 25). (DURABLE LINK)
February 26 – Punitive damages soared in 2002. “In 2001, total punitives [awarded in the fifty biggest jury verdicts, of which 22 included punitive damages] was $3.2 billion. For 2002, the figure was $32.6 billion. … [T]he ratio of punitive damages to compensatory damages shot up substantially”. (Gary Young, “Juror Anger Leads to Larger Punitive Awards”, National Law Journal, Feb. 10). (DURABLE LINK)
February 26 – Pigs’ right not to be bored. Under new European Community animal-welfare regulations, farmers will face fines if they do not provide toys such as balls for their pigs to play with. “Farmers may also need to change the balls so the pigs don’t get tired of the same ones,” said a British official. There is still no law requiring that human children be given toys, which suggests that “animals have a stronger constituency than children have in certain EU countries.” (Debra Saunders, San Francisco Chronicle/TownHall, Feb. 10). Addendum: a reader directs us to this Jan. 30 New York Times dispatch which reports that EU officials, irritated at public derision occasioned by earlier reports, have specified that balls and other toylike objects are not required, at least on solid floors, so long as the swine are provided with other “manipulable materials” such as straw, wood or sawdust to keep them interested. See also Brian Kimberling, “Fat cats and laughing pigs”, Prague Post, Feb. 28. (DURABLE LINK)
February 25 – The jury pool he faced. One of MedPundit’s readers recalls the following regarding the jury selection for the malpractice case against him in a jurisdiction known for high jury awards and aggressive lawyer advertising: “One of the questions the judge asked these twenty five people is, ‘How many of you have filed or are in the process of filing a medical malpractice suit, personal liability claim, or disability claim?’ 12/25 jurors raised their hands. Just about 50%. I was stunned.” (Feb. 22) (DURABLE LINK)
February 25 – MIT sued over student’s nitrous-oxide death. The parents of the late Richard A. Guy Jr., a 22-year-old MIT student who died of asphyxiation after abusing nitrous oxide (“laughing gas”), have filed a wrongful death suit against the university, saying it should have taken stronger measures to keep students from stealing the gas from laboratories and that it should have been put on notice of illegal drug use by the condition of their son’s dorm, where “the walls and ceilings of part of the 5th floor were painted black and light bulbs [were] painted pink and purple”. “The complaint admits that prior to 1999, Guy ‘had engaged in experimental drug use, and had sought treatment from MIT’s medical and health service staff for this problem.’” (Kevin R. Lang, “Wrongful Death Suit Against MIT Filed By Parents of Richard Guy”, The Tech, Nov. 8, 2002). (DURABLE LINK)
February 24 – Hotel sued in “Murder by Mercedes” case. “A private investigation firm and a hotel chain were added Thursday as defendants in a civil lawsuit brought against a woman convicted last week of mowing down her husband in her Mercedes-Benz. … Clara Harris, a 45-year-old dentist, ran over her orthodontist husband last year in the parking lot of a Hilton in suburban Houston after finding him there with his receptionist-turned-lover. She was sentenced to 20 years in prison Feb. 14. The lawsuit alleges Hilton had not properly trained employees to handle the confrontation”. (“Woman Who Ran Over Husband Named in Suit”, AP/ABC News, Feb. 20). Update Jun. 27, 2004: hotel and investigation firm settle case. (DURABLE LINK)
February 24 – Supervising the church hierarchy. A Massachusetts judge has ruled that Boston’s Roman Catholic archdiocese can be sued under a standard of whether it provided “reasonable care” to prevent sex abuse by priests, not unlike the standard of “reasonable care” applied to corporate boards of directors. Blogger “Robert Musil” (who we wish would come out from behind that pseudonym) argues that the ruling bids to prescribe certain forms of governance for churches in violation of current Supreme Court precedent on religious liberty, and also makes a startling prediction: a legal motion, at some point down the road, “to replace the Archbishop with a trustee in bankruptcy” in the form of a secular lawyer representing the interests of plaintiff/creditors. (Feb. 20). And scroll up for a post on punitive damages, federalism and the asbestos mess (Feb. 22). (DURABLE LINK)
February 21-23 – Client-chasing: we interrupt your grief. Following the stampede at Chicago’s E2 nightclub, which killed 21, families are feeling besieged by lawyers hoping to sign them up as clients. “The family of Nicole Patterson had not even had a chance to identify her body when the calls started coming. Did she need representation? attorneys wanted to know. ‘I don’t even know how they got our number,’ said Sheretta Patterson-Pennington, Nicole’s mother. … [Felesa] Melvin-Childs said one funeral director offered her free services if she agreed to sign with the attorney he suggested.” (Bryan Smith, “Families feel besieged by lawyers, morticians”, Chicago Sun-Times, Feb. 20) (DURABLE LINK)
February 21-23 – Client-chasing: tantrum-enablers. The prominent law firm of Bingham McCutchen LLP recently took out a half-page ad in the Wall Street Journal to hawk its litigation services to business clients. What illustration did it employ to catch readers’ attention? A close-up of a bawling toddler in mid-tantrum, accompanied by the caption, “In litigation, getting what you want is everything.” The subsequent text explains that “Litigation can be rough” and that the Bingham firm will “commit to achieving nothing less” than “what you want”.
We can think of several ways of interpreting this ad campaign, none of them flattering to the Bingham firm. Does it really conceive of its prospective clients as squalling infants who care for nothing but getting their own way? (Or do the clients walk in its doors as sober, self-possessed adults, and get turned into red-faced me-machines only after spending time with Bingham litigators?) We figured that most lawyers, like parents, realized that there are times when the demanding center of the household isn’t entitled to get what he wants (when the object of desire rightly belongs to someone else, for example), other times when he expresses unrealistic wants (a million billion cookies), and other times when he shouldn’t want something in the first place (as from revenge or mere destructiveness). If Bingham wants to make itself the law firm for clients’ inner brats, the sad truth is that it will have a lot of competition. (DURABLE LINK)
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July 10-11 – Convicted, but still on their teaching jobs. How hard is it to fire a bad teacher in New York City? “Daniel LaBianca, chief of outside funding for School District 14 in Brooklyn, pleaded guilty in 1999 to helping private school officials embezzle millions in federal aid for poor children. Three years later, he still holds his New York public school job — and has a $10,000 raise to boot. A Daily News review of the seven cases since 1999 in which the Board of Education filed to terminate tenured school teachers or administrators with criminal convictions found that in every case, the crooks stayed in the school system.” The state education probe requires that attempts to oust educators be sent to arbitration, where the teacher’s union has an impressive record of defending its members against ouster. (Alison Gendar and Bob Port, “Cons in Classroom: Crooked teachers, officials cling to jobs”, New York Daily News, Jun. 26) (& welcome Joanne Jacobs readers; she describes three appalling teacher-ouster cases that she covered years ago). (DURABLE LINK)
July 10-11 – Memo to bar associations: save your P.R. bucks. The new president of the Florida Bar “is asking Florida lawyers to chip in as part of a $750,000 campaign to improve the image of lawyers. He’s even hired a public-relations firm.” Back in 1993 “the American Bar Association tried this same sort of thing …. The ABA paid a consultant $170,000 to improve the image of lawyers. It didn’t do any good then, either.” The way to salvage the profession’s reputation is precisely what the bar associations are not about to do, namely to police the profession’s excesses, writes columnist Howard Troxler. (“Mere PR campaign won’t change public’s low view of lawyers”, St. Petersburg Times, Jul. 8). Read the whole thing, which is full of observations like: “People tell lawyer jokes as a defense mechanism, because a certain percentage of lawyers exist for the sole purpose of finding a new victim from whom to extract money. Every small business owner dreads the lawsuit that will destroy all their efforts.” And see fuller report, Oct. 3. (DURABLE LINK)
July 10-11 – The legal price for roommate discrimination. “Do you have the right to say whom you want for a roommate? In California, you apparently don’t”, notes Eugene Volokh. “On May 7, the California Fair Employment & Housing Commission penalized Melissa DeSantis $500 for inflicting ‘emotional distress’ on a would-be roommate by allegedly telling him that ‘I don’t really like black guys. I try to be fair and all, but they scare me.’ It also required her to pay him $240 in expenses — and take ‘four hours of training on housing discrimination.’” The case is Department of Fair Employment & Housing v. DeSantis (Cal. FEHC May 7, 2002).) Volokh thinks that if the issue were litigated far enough the courts would probably wind up finding there to be a constitutional right to “intimate association” that would protect people like DeSantis from being forced to room with people they didn’t want to room with, but writes, “To my knowledge there’s no caselaw on the matter.” (Volokh brothers blog, Jul. 8). In the reasonably well-publicized “lesbian roommate” case of 1996, however, Ann Hacklander-Ready and another respondent were made to pay several hundred dollars plus thousands of dollars in plaintiff’s attorney fees after deciding that they didn’t want to be co-tenants with a lesbian applicant, in violation of the fair housing laws of Madison, Wisconsin. The case reached the state’s appellate courts (Court of Appeals, Sept. 26, 1996) and the U.S. Supreme Court eventually denied certiorari (Hacklander-Ready v. Wisconsin, 117 S.Ct. 1696 (May 12, 1997)). So it would be natural for the California authorities to assume that, no, there is no remaining individual liberty left in this country to decide with whom one wants to live in a shared tenancy (& see Volokh updates, Jul. 12 -1-, -2-). More: Aug. 10, 2005 and Feb. 9, 2006 (Craigslist) (DURABLE LINK)
July 10-11 – They thought we’d just sue. “The fifth element that made Bin Ladenism possible was the West’s, especially America’s, perceived weakness if not actual cowardice. A joke going round the militant Islamist circles until last year was that the only thing the Americans would do if attacked was to sue the attackers in court. That element no longer exists. The Americans, supported by the largest coalition in history, have shown that they are prepared to use force against their enemies even if that means a long war with no easy victory in sight.” (Amir Taheri, “Bin Laden no longer exists: Here is why”, Arab News, Jul. 9) (via Instapundit, Jul. 7). (DURABLE LINK)
July 3-9 – Now we are three. We launched Overlawyered.com on July 1, 1999, which means we’re now beginning the site’s fourth year of commentary. Tell your friends! (DURABLE LINK)
July 3-9 – Law blogs. While we’re on a week-long hiatus, check out some of these weblogs on law and law-related topics, a category that barely existed a year ago. Aside from InstaPundit and the Volokhii, which if you’re like us you already visit daily or more often, there are the pseudonymous “Max Power” and pioneering Breaching the Web; Rick Klau; Bag and Baggage; Ernie the Attorney; zem; and Held in Contempt. (All the above-mentioned also display an excellent sense of taste by linking to this site). Most have link lists that will lead you to other law blogs and sites. Two others that are deservedly popular: Howard Bashman’s How Appealing and the pseudonymous “Robert Musil“. Not surprisingly, blogs are especially well established in the world of IP law and copyright, with such entries as Yale Law’s LawMeme; Donna Wentworth‘s blog at Corante, and EFF’s wonderfully named Consensus at LawyerPoint. (DURABLE LINK)
July 3-9 – “Tampa Judge Tosses Out Class-Action Suit Against Hog Company”. “A judge dismissed a federal class-action lawsuit against the nation’s largest hog producer, ordering the plaintiffs’ attorneys, including Robert Kennedy Jr., to pay the company’s legal expenses.” (We’ve been covering this case since it was farrowed in late 2000, not excluding Kennedy’s embarrassing public forays into the controversy). Chief U.S. District Judge Elizabeth A. Kovachevich granted Smithfield Foods’ motions to dismiss the case, “saying the plaintiffs did not succeed in establishing how the company’s actions damaged their property. The judge also said the plaintiffs’ attorneys filed ‘frivolous motions,’ and ordered the dozen or so law firms representing the plaintiffs, including Kennedy’s, to pay Smithfield’s legal costs.” Sometimes the system does work as it ought to — happy Fourth of July! (AP/Tampa Bay Online, Jul. 2). (DURABLE LINK)
July 3-9 – Drunk pilots. It’s apparently happened again, this time with an America West flight stopped before taking off at Miami. We covered the legal aftermath the last time around. (DURABLE LINK)
July 1-2 – Going to blazes. Raging wildfires are what you get if you suppress smaller burns and forbid deliberate thinning of forests through logging, but both logging and “controlled burns” out West have run into community opposition and litigation. “The uncertainty caused by [anti-logging] lawsuits has decimated the logging industry in Arizona, and that has contributed heavily to the situation we find ourselves in today,” writes Republican Rep. Jeff Flake of Arizona. “… If we want to save what remains of our forests in Arizona, we’ve got to get a handle on the frivolous lawsuits that prevent us from doing so.” (Rep. Jeff Flake, “Costly lawsuits provide kindling for forest blazes”, Arizona Republic, Jun. 25). In an article promoting the use of controlled burns, the New York Times cites prominent Westerners who seem to feel much as Flake does (“Gov. Jane Dee Hull of Arizona said it was ‘policies from the East Coast’ that kept the Forest Service from pruning overgrown forests. Gov. Judy Martz of Montana said environmental groups ‘played a great role in the fires,’ by blocking some efforts to log trees.”) while also quoting environmentalists who point to a General Accounting Office study which they say proves that they have seldom challenged fuel-reduction projects (Timothy Egan, “Idea of Fighting Fire With Fire Wins Converts”, New York Times, Jun. 30). Update: “Plans to cut fire danger by thinning trees in an Arizona forest now being destroyed by the nation’s largest active wildfire were blocked for three years by a Tucson environmental group, a Tribune investigation has found. The U.S. Forest Service approved a plan to thin trees and remove volatile debris in parts of the Apache-Sitgreaves National Forest on the Mogollon Rim in September 1999, according to court records. The plan was halted after the Center for Biological Diversity appealed the decision, then sued in May 2000, claiming the Forest Service had not followed regulations. The matter is still pending in federal court.” Mark Flatten and Dan Nowicki, “Green group lawsuit blocked forest thinning”, East Valley Tribune, Jul. 1). Further update Jul. 12-14: new Forest Service report indicates that fire-prevention projects have been frequently litigated, throwing doubt on the environmentalists’ case. (DURABLE LINK)
July 1-2 – Updates. The other shoe drops on various stories:
* Well, that didn’t last long: “Home Depot Changes Mind, Will Sell to Uncle Sam” reads the headline (AP/Tampa Bay Online, Jun. 28)(see Jun. 17-18).
* Former Minnesota court of appeals judge Roland Amundson has been sentenced to 69 months in prison for stealing more than $300,000 from the trust fund of a mentally retarded client (see Mar. 19) (Minneapolis Star-Tribune, Jun. ![](http://wac.0873.edgecastcdn.net/800873/overlawyered/wp-includes/images/smilies/icon_cool.gif" alt=){kind=icon}
(via Burt Hanson’s Law and Everything Else, Jun. 8; Hanson argues that the sentence is too stiff).
* Another wrongful birth case for your list: “The family of a child born with a disabling chromosomal defect that went undetected during pregnancy has settled a wrongful-birth lawsuit against the mother’s obstetrician for $1.65 million, according to court papers and attorneys.” Cynthia Fields argued that she would have had an abortion “in the blink of an eye” had she been given an amniocentesis that revealed that her daughter Jade, now 7, would be born severely disabled, requiring round the clock care (Lindy Washburn, “Family of disabled child settles for $1.65M”, NorthJersey.com, May 23). On the crisis in obstetrics law generally, see Rita Rubin, “Fed-up obstetricians look for a way out”, USA Today, Jun. 30. (DURABLE LINK)
July 1-2 – Mississippi’s other disaster. As if the collapse of locally based WorldCom weren’t bad enough, state lawmakers still haven’t done anything about the litigation climate (Tim Lemke, “Best place to sue?”, Washington Times, Jun. 30). But at least Judge Lamar Pickard says his court in Jefferson County has enough out-of-town litigants for now and has told plaintiffs with no local connection to start taking their business elsewhere. (DURABLE LINK)
July 1-2 – Moving to new host. We’re in the process of moving this site to a new host (Verio); we moved our editor’s home site there a couple of weeks ago, as a trial run. It’ll be a little more expensive, but we can afford it thanks to our generous readers whose Amazon Honor System donations (more than $1,000 in all) put the site in the black last year. We expect the new service to be more reliable, especially on email, which had been a chronic problem with our previous service (we had a miserable time trying to get email to AOL users, for example). Thanks for your support! (DURABLE LINK)
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June 10 – Advertisement for “friendly” employee deemed discriminatory. In Bolton, England, a government job listing center has refused to accept an advertisement asking for a “friendly” applicant to manage a travel agency’s staff cafe. The travel agency’s manager said “we were told, ‘It’s discriminatory because some people may perceive that they are friendly even if you don’t’.” A spokeswoman for the government bureau that runs the job center service acknowledged that “somebody’s been a little over-zealous,” but also said: “We’ve got to be very careful when we get adverts so we don’t discriminate against anybody.” (“Jobcentre comes under ‘friendly’ fire”, BBC, Jun. 7). (DURABLE LINK)
June 10 – Profiling: a Democrat outflanks Ashcroft. On CNN last week, California Democratic Sen. Dianne Feinstein spoke frankly of the need for some measure of ethnic profiling in both air passenger security and intelligence gathering — a position that places her considerably to the right of Attorney General John Ashcroft and his colleagues in the Bush Administration, who continue to deny any such need. (Chris Weinkopf, “Sanity, not bigotry, calls for profiling”, L.A. Daily News, Jun. 9). (DURABLE LINK)
June 10 – Sin-suit city. In Las Vegas, ripples continue from the word that some lawyers and activists are eyeing the hometown industry as their nominee for Next Tobacco (“Organization: Casinos could be sued”, Las Vegas Review-Journal, Jun. 6; see May 31, May 20-21). And on the food-suit front, a major British newspaper, the Independent, has claimed that corporate machinations make healthful and low-calorie foods simply unavailable to Middle Americans, an assertion that columnist Jacob Sullum calls “such an audacious misrepresentation that I don’t know whether to refute it or simply stand in awe.” (Andrew Gumbel, “Fast Food Nation: An appetite for litigation”, The Independent, Jun. 4 (profile of anti-tobacco and anti-food industry law prof John Banzhaf)(alternate site); Jacob Sullum, “Big fat lie”, Reason Online, Jun. 7). (DURABLE LINK)
June 7-9 – “Tough tobacco laws may not deter kids”. Now they tell us dept.: “Stopping kids from buying cigarettes has become a centerpiece of anti-smoking campaigns, but a new study finds that cracking down on merchants doesn’t prevent underage smoking.” (Jim Ritter, Chicago Sun-Times, Jun. 3; Caroline M. Fichtenberg and Stanton A. Glantz, “Youth Access Interventions Do Not Affect Youth Smoking”, Pediatrics, Jun.) (via MedPundit, Jun. 5)(see Sept. 16, 1999). (DURABLE LINK)
June 7-9 – “Legal Fight Over Chemical Leak Ends With Whimper”. “Attorneys who won $38.8 million in West Virginia’s first class action toxic tort case have agreed to settle for a fraction of that amount after a federal appeals court ruled their original victory was based on the testimony of a witness who did not know what he was talking about.” FMC Corp. will instead pay only $1.35 million, which “will cover about $500,000 in litigation expenses but nothing for fees”, according to the plaintiff’s counsel, attorney/author and former state chief justice Richard Neely. (Peter Page, National Law Journal, Jun. 4). (DURABLE LINK)
June 7-9 – Helmets for roller skaters. First it was motorcycles, then bicycles, and now the anti-fun brigade, in the form of the California state senate, has voted to extend mandatory helmet-wearing to riders of skateboards, non-motorized scooters and even roller skates. (“Senate OKs helmet law for skateboarders”, AP/Contra Costa Times, May 17). (DURABLE LINK)
June 6 – Airlines sued over alleged profiling. “Washington is in its third week of self-flagellation over why the U.S. government couldn’t prevent the Sept. 11 hijackers from commandeering four planes and slamming them into the World Trade Center and the Pentagon. Meanwhile, with no sense of irony, the ACLU, the American-Arab Anti-Discrimination Committee, and some other groups are launching five separate lawsuits over cases of men being removed from airplanes. The ACLU is party to three of the suits.” (Jonah Goldberg, “Flying While Arab”, National Review Online, Jun. 5). The men were removed from planes or denied boarding in various incidents late last year after airline employees or co-passengers deemed them suspicious in behavior or appearance. “The airlines named in the suits are American, Continental, Northwest and United. Most of the companies responded strongly to the suits yesterday, denying allegations of prejudice.” (“Lawsuits Accuse 4 Airlines of Bias”, Washington Post, Jun. 5; Niala Boodhoo, “Rights Groups Hit Airlines with Post-Sept. 11 Suits”, Reuters/ Yahoo, Jun. 4).
Many opponents of passenger profiling (including, frequently, officials within the Bush administration) act as if it were flatly impermissible to apply even the slightest bit more scrutiny to young male Arab fliers with Muslim first names than to elderly Dutch nuns — a position that at least has the merit of bright-line clarity and consistency, however suicidal it could prove in practice. Curiously, the lawyers filing the latest suits seem to be taking pains to stake out a critique of profiling that is less absolutist and makes more concessions to the threats made manifest last Sept. 11. Thus Reginald Shuford, an ACLU lawyer based in New York, says his clients are resigned to a “higher level of scrutiny when they fly, more security checks” but suggests that further extra scrutiny becomes intolerable once fliers have “cleared all security checks [and are] sitting on the airplane”. (Why? He doesn’t say.) Even Ibish Hussein, of the American- Arab Anti- Discrimination Committee, acknowledges that it’s “a tricky situation” and says of refusals to fly passengers: “It’s understandable, but it’s not acceptable.” (Alexandra Marks, “New lawsuits aim to curb racism aboard airplanes”, Christian Science Monitor, Jun. 5). Despite this concessionary- sounding language, with its seeming recognition of the unavoidability of judgment calls and gray areas, at least three of the suits ask for the airlines to be subjected to punitive damages. See also Eugene Volokh, Volokh Conspiracy weblog, Jun. 4. (DURABLE LINK)
June 6 – Alexa “Editor’s Pick”. The editors of indexing service Alexa have selected various sites in the category of “Legal Reform”, with you-know-who leading the pack (June 5). This site’s front page clocks in at #94,327 in Alexa’s traffic ratings, a little ahead of Virginia Postrel (#103,177) and nipping at the heels of Matt Welch (#90,063) and Mickey Kaus (#78,754) — though we have no idea how reliable all these numbers are. Update: not very reliable at all, says Glenn Reynolds (Jun. 6) (DURABLE LINK)
June 5 – “Remove child before folding”. “Americans are not losing their minds, but they are afraid of using their minds. They are afraid to exercise judgment — afraid of being sued.” Not-to-be-missed George Will column ties together overprotective playgrounds, fear-of-asbestos verdicts, demoralized obstetricians and public employee tenure and tips the hat to author Philip Howard’s new organization Common Good, which intends to call public attention to legal excess on a regular basis (Washington Post, June 2). In April, Common Good released the results of its first study, in association with the AEI-Brookings Joint Center, on defensive medicine: “Concerns about liability are influencing medical decision-making on many levels. From the increased ordering of tests, medications, referrals, and procedures to increased paperwork and reluctance to offer off-duty medical assistance, the impact of the fear of litigation is far-reaching and profound.” (“The Fear of Litigation Study: The Impact on Medicine”, AEI-Brookings Joint Center Related Publication, April (abstract), (full text, PDF format) (DURABLE LINK)
June 3-4 – Australian party calls for banning smoking while driving. The Australian Democrats, a small but non-fringe political grouping, have called for a ban on smoking cigarettes while driving. “If using mobile phones is illegal, so should cigarette smoking in cars because of its capacity to distract drivers,” said party official Sandra Kanck in a statement. “Ms. Kanck called for legislation to also ban smoking cigarettes in vehicles transporting children. ‘Parents and other adults shouldn’t subject young people to the carcinogenic dangers of side-stream smoke in cars, yet it is common to see this happening,’ she said.” (“Democrats call to ban smoking while driving”, AAP/West Australian, May 31; see Oct. 5, 2001, Dec. 29, 1999). And although anti-tobacco campaigners are crowing about a recent court verdict in Australia against British American Tobacco, blogger “Max Power” (May 23) suggests the verdict may reflect one judge’s idiosyncratic view of company document retention obligations. (DURABLE LINK)
June 3-4 – Penthouse sued on behalf of disappointed Kournikova-oglers. Dignity of the law dept.: The skin mag has already paid to settle the legal claim of a woman whose topless images it mistakenly ran as those of Anna Kournikova, and “now Miami, Florida lawyer Reed Stomberg has filed a class-action lawsuit on behalf of himself and every other male who purchased the June issue. Stomberg explains, ‘The sole reason I paid the $8.99 was for the alleged Anna pictorial. I bought it for a friend of mine, not to say I didn’t take a quick peek at the pictures.’” (IMDB People News, May 30) (& welcome WSJ Best of the Web readers). (DURABLE LINK)
June 3-4 – Sue foodmakers for obesity? Of course! In response to its publication (see May 27) of an article critically examining the push for class actions against purveyors of calorie-laden foodstuffs, Salon draws a big sack of mail from its readers, including a couple of amusingly hysterical attacks on author Megan McArdle (May 31). (DURABLE LINK)
June 3-4 – “Top Ten New Copyright Crimes”. Satire making the rounds on what could soon land you in trouble if ideas of creators’ rights continue to proliferate: “10. Watching PBS without making a donation … 9. Changing radio stations in the car when a commercial comes on. … 7. Getting into a movie after the previews, but just in time for the main feature. … 5. Inviting friends over to watch pay-per-view.” (Ernest Miller, LawMeme, May 2 & May 8). (DURABLE LINK)
June 3-4 – Sick in Mississippi? Keep driving. Malpractice-suit crisis, cont’d: “You are driving through Mississippi and you develop a serious pain in your side. What do you do? If you are smart, you keep on driving until you reach the border.” (Dick Boland, “Sue your way to the morgue”, Washington Times, May 25; see Apr. 5) Evidence that he may not entirely be joking: Ed Cullen, “Natchez doctors eye Vidalia”, Baton Rouge Advocate, May 19 (doctors in Natchez, Miss. consider transferring practices to Vidalia, La., across the river). (DURABLE LINK)
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May 20-21 – “Next tobacco” watch: gambling. “One of the first state attorneys general to sue the tobacco industry told a problem gambling conference Thursday that the gaming business will be the next target for lawyers seeking compensation for addicts. As gambling continues to expand in Connecticut and across the country, ‘somebody is going to sue somebody,’ former Massachusetts Attorney General Scott Harshbarger told participants at the New England Conference on Problem Gambling.” Harshbarger, who now heads the private group Common Cause, said “there is a dramatic public health cost, there is a dramatic social cost” to the wagering habit. “In Canada, Harshbarger’s prediction is already reality. Last week, a judge allowed a class-action lawsuit against Loto-Quebec to go forward. The lawsuit seeks hundreds of millions of dollars in damages on behalf of people addicted to video lottery terminals.” (see June 20, 2001) (Rick Green, “Problem-Gambler Suits: Activist Foresees Damage Claims”, Hartford Courant, May 17) (see May 31, Jun. 28-30). (DURABLE LINK)
May 20-21 – “A Fence Too Far”. “Whether you believe that this country should be tightening copyright protections online or loosening them, you should oppose the Hollywood- and record industry-endorsed bill introduced in March by Sen. Ernest Hollings of South Carolina,” argues commentator Roger Parloff. “While the draft legislation, known as the Consumer Broadband and Digital Television Promotion Act, pursues plausible goals, it seeks to achieve them by authorizing mammoth government intrusion into the design of computer hardware and software.” Although Parloff considered Napster illegal and views the DMCA as constitutional and sensible, he draws the line at the latest: “The prospect of gumming up the works of the globe’s most exuberant engine of technological innovation and prosperity by subjecting it to bureaucratic notice-and-comment rule-making is unthinkable. … If controlling digital property requires government intervention on this scale, then there should be no such control.” (American Lawyer, May 15). For more critiques of the Hollings bill, see many items and links on InstaPundit. (DURABLE LINK)
May 20-21 – “Trial Lawyers Go to War Against Arbitration”. Trial lawyers keep trying to kill arbitration as an alternative to the lucrative litigation process, and Stephen J. Ware, professor of law at Samford University, blows the whistle on them in a series of new Cato Institute publications (“Arbitration Under Assault: Trial Lawyers Lead the Charge”, Cato Institute Policy Analysis #433, Apr. 18; news release; “Trial Lawyers Go to War Against Arbitration”, Cato Daily Commentary, May 3). Ware also rebuts the Nader-founded litigation lobby Public Citizen, which recently “released a study claiming that it costs significantly more to resolve disputes through arbitration than through the court system”. (“Public Citizen Arbitration Study Contains Errors, Half-Truths and Exaggerations, Scholar Says”, Cato news release, May 3; “Arbitration costs are so high, many victims are unable to pursue complaints, new Public Citizen report reveals”, Public Citizen news release and link to study, May 1). It might be noted, incidentally, that the same profession that does so much sniping at arbitration when conducted by anyone else is perfectly free to get its clients to enter binding arbitration agreements: “Lawyers can include arbitration clauses in retainer agreements for fee disputes and malpractice claims so long as the client consents after receiving full disclosure, an American Bar Association ethics panel concluded”. (“ABA Panel OKs Arbitration Clauses in Retainers Based on Informed Consent”, New Jersey Law Journal, Apr. 16). We hope the lawyer members of ATLA and similar groups will show the sincerity of their opposition to arbitration by pledging never to make their own clients sign such an arbitration agreement. (DURABLE LINK)
May 20-21 – “The Trials of John Edwards”. The prospective White House run of trial lawyer/Senator John Edwards might be just what’s needed to politically energize the nation’s doctors at last — in opposition to Edwards, that is (Radley Balko, “Malpractice Suits Driving Out Doctors”, FoxNews.com, May 9). In National Review Online, Byron York takes issue with Edwards’ rough handling of Fifth Circuit judicial nominee Charles Pickering: “Edwards’s performance was almost a parody of the bad-guy trial lawyer. In an aggressive cross-examination, Edwards relied on misleading questions, misrepresented premises, and unfounded conclusions as he tried to force Pickering to admit wrongdoing. Although Edwards’s style was extraordinarily smooth and polished, it was precisely the kind of exhibition that reinforces the worst images of trial lawyers — whether they are running for president or not.” (“The Trials of John Edwards”, May 6). See also Eric Dyer, “Conservative detractors taking swipes at Edwards”, Greensboro (N.C.) News-Record, May 12; Joshua Green, “John Edwards, Esq.”, Washington Monthly, Oct. 2001; Ned Martle, “Starting Gun”, New York, May 28, 2001. (DURABLE LINK)
May 17-19 – Flowers, perfume in airline cabins not OK? “The Canadian Transportation Agency has issued a landmark ruling that could affect what passengers are allowed to take on airplanes, including pets, flowers and even the perfume they wear. The CTA ruled that allergies can be considered a disability and said it will investigate seven complaints against Air Canada by passengers who had allergic reactions to dogs, cats, flowers and paint.” The agency’s mandate includes the removal of “undue obstacles” for disabled travelers. (Paul Waldie, “Allerge ruling nothing to sneeze at”, Globe and Mail, May 14). For more on anti-scent policies in Canada, see Apr. 24, 2000. (DURABLE LINK)
May 17-19 – Charged $16,000 for brief he copied from book. The Iowa Supreme Court has given a six-month license suspension to attorney William J. Lane for claiming to have spent 80 hours writing a brief which the court found he had in fact mostly copied from Barbara Lindemann’s and Paul Grossman’s “Employment Discrimination Law,” a standard 1996 treatise. Lane, of Sioux City, had submitted an overall $122,000 fee bill to the court for representing a client in an Americans with Disabilities Act case, including $16,000 for writing the brief in question. “Lane plagiarized from a treatise and submitted his plagiarized work to the court as his own,” the court said. “This plagiarism constituted, among other things, a misrepresentation to the court.” Lane’s overall fee award in the case was reduced by about five-sixths, to $20,000. (Mike Glover, “Lawyer’s License Suspended for Plagiarizing Treatise”, AP/Law.com, Apr. 4). (DURABLE LINK)
May 17-19 – Ob/gyns warn of withdrawal. “On May 6, most of the obstetricians in Las Vegas adopted a policy of rejecting newly pregnant women as patients, even if the woman was an existing patient.” (Wendy McElroy, “Lawsuits Fueling Health Care Crisis”, Fox News, May 14). The American College of Obstetricians and Gynecologists has issued a “Red Alert” warning that shortages of liability insurance may soon leave many areas of the country, particularly rural areas, without adequate obstetric services. (Ed Susman, “Obstetricians issue alert on insurance”, UPI Science News, May 6; Marilyn Elias, “Obstetricians dwindle amid high malpractice costs”, USA Today, May 6). And at medical weblog MedPundit, Sydney Smith offers a rebuttal to an op-ed piece in which the president of the Association of Trial Lawyers of America blames the malpractice crisis on “negligence of bad doctors and the bad business decisions of insurance companies”. (MedPundit, May 15; Leo V. Boyle, “It’s not patients’ fault when insurance earnings dip”, Akron Beacon Journal, Apr. 14) (DURABLE LINK)
May 16 – TV’s lawyer dramas: why they hit home. “What many of these shows do best is attack the legal system for being obsessed with achieving correct legal results even if the outcomes are morally wrong. … The greater cynicism and resentment [in jokes about lawyers] is reserved for the moral lapses and legal hair-splittings, the way in which the demands of lawyering furnish a license to engage in dishonest behavior. ‘Lawyers go into court and deny what they know to be true,’ said William Finkelstein, another former lawyer and executive producer of ‘L.A. Law,’ who produced and wrote [a reunion show for the series that aired May 12]. ‘Whenever anyone does that, it doesn’t square with our vision of public morality, and on television we try to get underneath that, or reject it entirely.’” (Thane Rosenbaum, “Where Lawyers With a Conscience Get to Win Cases”, New York Times, May 12)(reg). Meanwhile, the American Bar Association is the latest establishment law group to conduct a public survey finding that lawyers are poorly regarded by the public, a phenomenon it chooses to blame — you guessed it — on negative media portrayals rather than anything real about today’s legal system that the media might be picking up on. (Mary P. Gallagher, “ABA Survey Finds Lawyers Among Lowest-Regarded U.S. Professions”, New Jersey Law Journal, May 7). (DURABLE LINK)
May 16 – Catharine MacKinnon, call your office. Latest case illustrating how sexual harassment law can be turned to purposes rather remote from those one associates with feminism: “In a federal lawsuit brimming with biblical references, a Tennessee administrative law judge charges that her supervisors have created a hostile work environment for women and that she has been the victim of discrimination because of her religious beliefs.” The lawsuit by a judge, 45, against her employer, the Tennessee Department of State, charges that co-workers circulated sexually explicit jokes in email and that “her religious belief that homosexuality is a sin puts her at odds with someone in her office”. “‘The plaintiff is a Bible-believing Christian who holds to the orthodox belief that the Bible is absolutely true; the Bible contains no mistakes; and the Bible has no contradictions or inconsistencies,’ her suit states, before listing citations from Psalms, Proverbs, John and Revelations. Biblical references aside, the suit is also filled with language often found in federal discrimination cases.” The judge charges that she was assigned a heavier workload and drew poorer evaluations than she deserved, and that “when she posted notices on department bulletin boards about the National Day of Prayer last year, they were taken down without her permission”. (Rob Johnson, “Judge files bias suit against state office”, The Tennessean, May 7). (DURABLE LINK)
May 16 – Annals of zero tolerance: steak knives, finger “guns”. The Washington Times has an overview of zero tolerance controversies which mentions this site (Valerie Richardson, “Zero tolerance takes toll on pupils”, May 13). In Leesburg, Ga., 18-year old Lee County High School senior Chet Maine “was expelled three weeks before graduation after school officials found two steak knives in the bed of his pickup truck. … Maine claimed the knives were left over from a weekend camping trip he had taken with friends. But the county school said it was bound by a state zero-tolerance policy for weapons in school.” (AP/WTLV (Fla.), May 8). In Colorado, “Dry Creek Elementary school has disciplined seven boys for playing a game of ‘army and aliens’ in which they used their fingers as imaginary weapons and pretended to shoot creatures in the background. … And, in an Orwellian touch, at least one student was interrogated by school officials who asked whether his family had real guns at home.” (“Zero common sense” (editorial), Denver Post, May 15; Robert Sanchez, “Zero tolerance turns into 100 percent trouble”, Rocky Mountain News, May 14; “Overreacting to gun games” (editorial), May 15; Mike Littwin, “Not to point fingers, but schools really need to get a grip”, May 16). At Mellon Middle School in Mt. Lebanon, Pa., 11-year-old Becca Johnson was suspended for drawing stick-figure doodles of teachers with arrows through their heads, in a moment of frustration after she had done badly on a test; the same week, “a 17-year-old in Fayette County, Ga., was suspended and arrested when school officials found a machete he used in his part-time landscaping business in the back of his truck, which he’d driven to school.” (Dean Schabner, “Zero for conduct”, ABCNews.com, May 8). (DURABLE LINK)
May 14-15 – Officious intermeddlers, pet division. Animal-rights lawyers are looking for the perfect chimp case to establish their right to file legal actions on behalf of animals; U. of Chicago law prof and frequent New Republic contributor Cass Sunstein, like Harvard’s Larry Tribe (see Apr. 29), seems on board with the plan. The article’s scariest bit appears toward the end, where the executive director of the Animal Legal Defense Fund says the fund is getting involved in “custody battles over pets” such as cats and dogs: “the fund has been submitting legal briefs to the courts, suggesting that judges look at the case in terms of the animal’s interest.” Just what divorce law needs: an influx of ideologically motivated outside lawyers filing new paperwork to which spouses will have to pay their lawyers to respond, and perhaps urging judges to impose “remedies” over the objections of both human parties. And how long before they start asking the judge to subtract a suitable fee from the marital estate to compensate them for their animal-advocacy efforts? (Amanda Onion, “Fighting for Moe: Activists Pursuing Legal Status for Animals One Case at a Time”, ABC News.com, May 13). P.S. Or could “custody battles over pets” refer to something other than family law cases? The ALDF website doesn’t seem to mention any cases fitting that description. (DURABLE LINK)
May 14-15 – New York Times endorses liability reform! With respect to lawsuits against City Hall, at least. Well, it’s a start (“Slip, Fall, Collect” (editorial), May 13 (reg)). (DURABLE LINK)
May 14-15 – “Tilting the Playing Field”. While on the subject of pleasing if belated developments at the Times, the paper has now officially taken note of the devastation visited by the federal government’s Title IX on “smaller” men’s collegiate sports such as track and field, wrestling, and diving (Bill Pennington, “More Men’s Teams Benched, As Colleges Level the Field,” New York Times, May 9 (reg)) (our take on Title IX). See also Kathryn Lopez, “Benched at Bowling Green”, National Review Online, May 10) (men’s sports at Bowling Green State U.) In a new book entitled Tilting the Playing Field, Jessica Gavora not only recounts the sad history of quota-mongering in collegiate sports participation but warns that feminist litigators are rapidly pushing the mandates of Title IX into academic areas. Perhaps most alarming is the prospect of an assault on numerical imbalances in the hard sciences: “to get the numbers right, universities likely will end up having to discourage men from pursuing scientific and engineering careers.” (Nick Schulz, “Feminism vs. Sports and Science”, TechCentralStation, May 10). (DURABLE LINK)
May 14-15 – The mystery of the transgenic corn. In March a federal judge approved the settlement of a class action lawsuit filed after the disclosure that genetically modified corn had found its way into products on grocery shelves in violation of an EPA permit which gave it the green light only for use as animal feed. The food companies “will attach $6 million in coupons, each good for a dollar off, to packages of their products. … The Chicago law firm of Krislov and Associates will receive $2.4 million for filing the class action lawsuit on behalf of consumers who said they suffered allergic reactions from eating food products that contained the genetically modified corn.” Too bad the case settled, since we would have looked forward to hearing the expert testimony about those claimed allergic reactions (Mike Robinson, “Judge Approves $9M Settlement in Engineered-Corn Suit”, AP/Law.com, Mar. 8). (DURABLE LINK)
May 13 – “Friends Don’t Let Friends Plead Guilty”. This slogan, for a lawyer who defended accused drunk drivers, made for “one of the most effective ads I’ve seen”, though “I’m not sure I agree with the sentiment, either as an ethical matter or a pragmatic matter”. (Eugene Volokh, Volokh brothers blog, May 10). (& see letter to the editor, Jun. 14 (pointing out website of L.A. law firm that has trademarked this phrase)). (DURABLE LINK)
May 13 – “The Tort Mess”. “It’s even worse than you think.” Cover story in Forbes tours some of the best-known lawsuit disaster areas including Mississippi medical practice, asbestos litigation, condo construction-defect suits (Michael Freedman, Forbes, May 13). Plus: opinion pieces on similar themes (Alex F. Rubalcava, “The Cost of Legal Extortion”", Harvard Crimson, Apr. 17; Pejman Yousefzadeh, “Delay No Longer”, TechCentralStation, Apr. 8). (DURABLE LINK)
May 13 – Bush’s big mistake on mental health coverage. Commentators have given the president pretty much a free pass on his call for forcing health insurance plans to cover mental-health services at some rate that reflects “parity” with therapy for physical illness. Potential critics may hold their tongues for fear of being charged with ignorance about mental illness or animus toward those it affects. But the “Bush plan is vintage Clinton: Give Washington the credit for doing good, but send the private sector the bill, and let someone else worry about the consequences.” (Steve Chapman, “Delusions on mental-health treatment”, Chicago Tribune, May 9). (DURABLE LINK)
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March 8-10 – Will EU silence the pipes? Some Scottish members of the European parliament are warning that new noise regulations could make it unlawful to play their nation’s musical instrument: lowering maximum noise levels to 87 decibels, as is being proposed, could “silence the bagpipes for the first time since Culloden”. “If this goes through then the Queen will have to be without her piper every morning who wakes her up at Buckingham Palace,” said Jim Banks, the head of the Piping Centre in Glasgow. “It is just daft.” An EU spokeswoman denied that the authorities in Brussels wished to suppress bagpipes, but a Tory MEP said the application of the rules to employment contexts could result in the end of professional pipe bands. Two years ago the British defense ministry announced that the din of military brass bands was in violation of job-safety noise limits (see Dec. 22, 2000) (Hamish Macdonell, “EU threat to noisy bagpipes”, The Scotsman, Mar. 6)(more on bagpipers in trouble: June 21, 2001).
March 8-10 – Inability to get along with co-workers. An assembly worker with bipolar disorder “fired in 1996 following a series of conflicts with her fellow employees and what court papers termed ‘her confrontational and irrational behavior’ with her supervisor” is entitled to sue her employer under the Americans with Disabilities Act since the ability to interact or get along with others is “a major life activity”, a federal judge ruled in New York. The employer had responded to the woman’s lawsuit with a counterclaim against her, charging that her erratic and hostile behavior had cost it $500,000 in losses to its operations, but Judge Frederic Block suggested that its counterclaim was “in terrorem tactics” and “a naked form of retaliation” against “a vulnerable plaintiff who suffers from a significant mental impairment, for filing her lawsuit,” and suggested that he might impose sanctions on the company for so foolishly imagining that the accusation game might work in both directions. (Mark Hamblett, “Plaintiff With Bipolar Disorder Protected Under ADA”, New York Law Journal, March 4).
March 8-10 – Near and dear to their hearts. Florida trial lawyers are up in arms over the merest suggestion, from a committee on jury innovations, that it might be time to start rethinking their cherished right to kick prospective jurors off panels without offering reasons or explanations. Thomas Scarritt, chair of the Florida bar’s trial lawyers section, “called any discussion of eliminating peremptory challenges ‘a dangerous move.’ Scarritt told the [state supreme] court ‘that is a subject that is near and dear to the hearts of trial lawyers and we do not think there should be any change whatsoever.’” (Susan R. Miller, “Juror Power?”, Miami Daily Business Review, Feb. 6).
March 8-10 – Crestfallen at the news. “Obviously, we’re disappointed.” — Len Selfon, director of benefits programs for the Vietnam Veterans of America, on word that the Institute of Medicine had found no evidence that the herbicide Agent Orange, to which many veterans were exposed, has contributed to the risk of a form of leukemia in children (“Washington in Brief: Science Panel Retreats On Agent Orange Risks”, Washington Post, Feb. 28) (via Health Facts and Fears (American Council on Science and Health), March 5).
March 6-7 – Updates. Stories that kept on developing:
* “A judge dismissed a lawsuit Monday that claimed several video game and movie makers shared blame for the 1999 Columbine High School massacre. … [Federal judge Lewis] Babcock said there was no way the makers of violent games and movies could have reasonably foreseen that their products would cause the Columbine shooting or any other violent acts. ‘Setting aside any personal distaste, as I must, it is manifest that there is social utility in expressive and imaginative forms of entertainment, even if they contain violence,’ Babcock wrote.” (“Columbine Family’s Lawsuit Against Video Game Makers Dismissed”, AP/Tampa Bay Online, Mar. 5)(see April 24, 2001).
* A Southwest Texas University student who bared her breasts at a wet T-shirt contest in Mexico over spring break 2000 has won a $5 million default judgment against the makers of a Wild Party Girls video who used the resulting topless picture of her in their promotions. She continues to pursue a lawsuit against the E! cable network for airing the “Too Hot for TV” ads with her image. (“Woman in ‘too hot for TV’ suit gets $5 million”, Cox/AZCentral, Feb. 27) (Update Apr. 15: default judgment thrown out). And the quest for a very private Mardi Gras continues as a Florida State University business major “has sued producers of the ‘Girls Gone Wild’ videos, claiming they invaded her privacy and used her image without permission. … [She] admits in her lawsuit that she was among the women on the streets and balconies of the French Quarter last year who removed their tops in exchange for Mardi Gras beads and trinkets.” (Janet McConnaughey, “Coed files suit over nude video”, AP/Polk County Online, Jan. 23)(see Sept. 28, 2001). At Metafilter, user “Mikewas” has some advice (Oct. 1) for how a defense lawyer might try such cases after first determining whether the local jury is of liberal or conservative leaning.
* ” In what is being described as a major victory for the so-called ‘visitability’ movement, two cities in disparate parts of the country [last month] started requiring all new homes to be accessible to the handicapped.” Besides the expected passage of such an ordinance in Naperville, Ill. (see Feb. 6), a new ordinance in Pima County, Arizona “includes the significant additional requirement of a zero-step entrance.” “I thought homes were for the owners,” says University of Chicago law professor Richard Epstein. A suburban Chicago homebuilder says the added expense could run as high as $3,000 a house: “it’s real easy to spend somebody else’s money,” adds J. Mark Harrison, executive director of the Home Builders Association of Illinois. (“Activists Win New Rules Requiring Handicapped-Accessible Private Homes”, FoxNews.com, Feb. 10).
March 6-7 – Quest for deep pockets in Ga. crematory scandal. “But while relatives focus their anger on the Marshes, their lawyers have deeper pockets in mind — the funeral homes that sent bodies to Tri-State. The reason is simple: Funeral homes have more insurance. Lawyers know the Marshes’ assets are likely to be eaten up in criminal court defending Ray Brent Marsh, the man charged with theft by deception in the Tri-State case. That leaves the funeral homes, who carry multimillion-dollar liability policies.” (Duane D. Stanford, “Big bucks at stake as lawsuits hit funeral homes that sent bodies to Tri-State Crematory”, Atlanta Journal-Constitution, Mar. 3).
March 6-7 – Washington eyes your 401(k). At Reason Online, Mike Lynch explains why the Enron collapse doesn’t prove what members of Congress keep saying it does about the supposed laxity of pension regulation (“Political Returns”, April) (see Feb. 15).
March 6-7 – Dewey deserve that much? Dig deeper into your pockets, smokers: federal judge Jack Weinstein of the Eastern District of New York “has awarded nearly $38 million in legal fees to New York-based Dewey Ballantine for representing Blue Cross and Blue Shield in a suit against the tobacco industry — more than twice the amount of a jury verdict in the case last year.” (Tom Perrotta, “Dewey Ballantine Given $38 Million Fee Award”, New York Law Journal, Mar. 1). (Update Oct. 23, 2004: New York high court derails award and underlying case.) And Loyola University law professor Dane Ciolino has dropped his challenge of the $575 million in legal fees private lawyers got for representing the state of Louisiana in the national tobacco settlement. Terms were confidential; Ciolino said he is not receiving personal benefit from the deal. “When they signed on to represent the state, the lawyers from 13 different firms became Louisiana assistant attorneys general. The lawyers claimed they acted as independent contractors, not government employees.” (Marsha Shuler, “Tobacco fee challenge dropped”, Baton Rouge Advocate, Feb. 15).
March 5 – Scenes from a malpractice crisis. “In Las Vegas, more than 10% of the doctors are expected by summer to quit or relocate, plunging the city toward crisis. … In California — where juries hearing malpractice lawsuits are limited to maximum awards of $250,000 for pain and suffering — [ob/gyn Dr. Cheryl] Edwards’ insurance premium this year is $17,000 [it had been $150,000 when she practiced in Nevada]. Because of 1975 tort reform, doctors in California are largely unaffected by increasing insurance rates. But the situation is dire in states such as Nevada where there is no monetary cap.”
“Doctors in Oregon have been told to brace for ‘breathtaking’ increases in malpractice insurance premiums in coming weeks. … When the Oregon Supreme Court in 1999 rejected as unconstitutional a $500,000 lid on pain- and- suffering awards in malpractice cases, jury awards of $8 million, $10 million and $17 million swiftly followed. … The Arizona border town of Bisbee has lost its hospital maternity ward because four of the town’s six obstetricians can no longer afford to practice. … Both trauma centers in Wheeling, W.Va., have closed because their neurosurgeons couldn’t pay their new malpractice premiums. The trauma center at Abington Memorial Hospital outside Philadelphia faces closure next month as its doctors scramble to find affordable insurance.” (Tom Gorman, “Physicians Fold Under Malpractice Fee Burden”, Los Angeles Times, Mar. 4; also (same story) Boston Globe; Joelle Babula, “Malpractice Crisis: Trauma unit faces cuts”, Las Vegas Review-Journal, Feb. 7). In Mississippi, where trial lawyers hold great sway in many courts and recently blocked tort reform in the state legislature, an 18-doctor group of emergency physicians in Hattiesburg two years ago “paid $140,000 for malpractice insurance. Last year, the premium went to $250,000. The next annual premium would be $437,500 or $475,000…” (“Cost to cover errors in ER to rise for doctors”, Hattiesburg American, Jan. 26). See also Geekemglory blog, Dec. 13. (DURABLE LINK)
March 5 – Case for declaring wars, cont’d. “The framers had good reason to separate the dangerous power to declare (and finance) war from the power to command the armed forces.” Unfortunately, Congress nowadays tends to abdicate its responsibility by delegating to the White House discretion on whether to institute hostilities. (Sheldon Richman, “Anything to declare?”, Foundation for Economic Education, Feb. 16) (see Sept. 13, 2001) (via Free-Market.Net).
March 5 – “Man awarded $60,000 for falling over barrier”. Australia: “A surfer who fell and injured his back when he stepped over a guard rail to urinate has been awarded more than [A]$60,000 in compensation. Paul Andrew Jackson was aged 35 when he crossed a bicycle bridge on the Pacific Highway at Kanahooka, in Wollongong South, and stepped over a barrier to relieve himself in what he thought was ground level bush.” (The Age (Melbourne), Mar. 4). Update Mar. 8-9, 2003: award overturned.
March 4 – 9/11: grab for the gems. Lawyers have sued large Manhattan jewel dealer STS Jewels Inc., the Tanzanian Mineral Dealers Association and other defendants, seeking to attach proceeds from the sale of the popular gemstone tanzanite on behalf of victims of Sept. 11 terror. Muslim radicals with links to Al-Qaeda are widely believed to have engaged in trading in the gem, which is extensively smuggled out of Tanzania, the East African country where it is mined. “Yesterday, representatives of STS and the Tanzanian Mineral Dealers Association vehemently denied any connection between their industry and al Qaeda. ‘My sympathies to the victims, but this is ridiculous,’ said STS owner Sunil Agrawal.” Among lawyers involved in filing the action are Texas asbestos lawyer Mark Lanier, corporate defense lawyer Paul Hanly and celebrity lawyer Ed Hayes. (Jerry Markon, “Tanzanite Dealers Named in Suit Brought by the Families of Victims”, Wall Street Journal, Feb. 15 (online subscribers only)). See also Ralph R. Reiland, “Lawyers Lust for 9-11 Gold” (The American Enterprise, Feb. 18). And a great Stuart Taylor, Jr. column from January that we somehow missed back then: “How 9/11 Shines a Spotlight on Litigation Lottery”, (National Journal/The Atlantic, Jan. 8).
March 4 – No reply. Lawyers from Jacoby & Meyers have filed a class action suit against online payments firm PayPal alleging all manner of atrocities in its customer service. “PayPal’s spokesman said he could not comment on the suit because his company is in the midst of a [legally mandated] post-IPO [initial public offering] quiet period.” You get to accuse them, and they can’t answer back — isn’t it fun being a lawyer? (Cheryl Meyer, “Class Action Filed Against PayPal”, The Deal, Feb. 25).
March 4 – A menace in principle. Under a law that took effect in New Hampshire last year, police are required to arrest and hold until arraignment anyone accused of violating a domestic protective order. So when a woman in the town of Farmington charged her estranged husband with placing harassing phone calls, they had to haul him in, even after a visit to his house revealed that he is blind, uses a wheelchair, and is on dialysis, leaving him not much of a credible threat to anybody. “Police had to wait three hours for an ambulance to bring [him] to the jail, but the jail wouldn’t hold him because of potential liability.” (“State domestic violence law puts police in bind”, AP/Manchester Union-Leader, Feb. 25) (via Free-Market.Net).
March 1-3 – Should have arrested him faster. “A convicted sex offender wanted in Florida who fled into the Maine woods from police is complaining that he got frostbite and lost a few toes because he wasn’t arrested fast enough. Harvey Taylor, 48, who spent at least three nights in the woods in Mattawamkeag after running from a Penobscot County Sheriff’s detective a few weeks ago, is threatening to sue the detective for not arresting him promptly.” (Mary Anne Lagasse, Flight from law leads to frostbite, threat of lawsuit”, Bangor Daily News, Feb. 27).
March 1-3 – Too much Nintendo. “A Louisiana woman is suing Nintendo, alleging her 30-year-old son suffered seizures after playing video games for eight hours a day, six days a week.” (AP/Minneapolis Star Tribune, Feb. 24; Brett Barrouquere, “Woman sues Nintendo in death of her son, 30″, Baton Rouge Advocate, Feb. 23).
March 1-3 – Batch of reader letters. We’ve fallen far behind both on posting reader letters and in answering our mail (and unfortunately we can’t answer all of it). Still, we’ve managed to put up a batch of letters from the closing weeks of last year. Topics include safe deposit boxes at the WTC, a federal judge’s decision striking down high school sports schedules that put boys’ and girls’ sports in different seasons, and discrimination against motorcyclists.
March 1-3 – Entitled to jobs that kill? On Wednesday the Supreme Court heard argument on the case of Echabazal vs. Chevron, which poses the question: “Does the Americans with Disabilities Act force employers to hire disabled workers for a job, even when the position could cause injury or death to the worker?” The Bush administration and business groups are trying to advance what turns out to be the controversial proposition that “employers have an interest in keeping their employees from being hurt or killed.” (Michael Kirkland, “Are disabled entitled to jobs that kill?”, UPI, Feb. 27; Warren Richey, “Can a disabled worker put himself at risk?”, Christian Science Monitor, Feb. 27; Marcia Coyle, “Rejecting a Worker”, National Law Journal, Feb. 26)(see Nov. 5, 2001). Update: Court unanimously rules for defense (see Jun. 19-20, 2002).
March 1-3 – Launder mania. Rushed through Congress in the weeks after Sept. 11, the USA Patriot Act “requires every financial institution — not just traditional banks — to monitor and to report suspicious customers to federal officials.” The paperwork and compliance burdens will be enormous, but there is little assurance that the program will make much difference in preventing terrorism, which tends to be accomplished on relatively small budgets. (Krysten Crawford, “On the Home Front”, Corporate Counsel, Jan. 22) (see Nov. 29, 2001).
March 1-3 – Welcome Boortz.com listeners. Popular Atlanta-based broadcaster Neal Boortz calls this site “one of my frequent stops” in researching his show (Feb. 27). He sure does have a lot of listeners — our traffic on Wednesday, when he did a segment paying us this tribute and endorsing loser-pays, was among the best ever.
Another noteworthy bit from his commentary: “Day after day people file lawsuits just to ‘see if we can get the other side to pay something.’ I’ve been there, folks. I’ve seen it. I was a member of the Georgia Trial Lawyers Association and the American Association of Trial Lawyers. I went to the conventions. I sat in the meetings. I participated in those discussions where lawyers would say ‘I know we don’t have a case — but maybe they would rather fork over a hundred thousand or so rather than taking the chance of going to trial. Hell, their expenses alone would be more than we’re asking!’”.
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