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Oklahoma

RIAA [might be] told to pay attorney fees

by Walter Olson on July 16, 2006

The recording industry association sued Debbie Foster of Oklahoma along with her daughter Amanda for $5000, saying her broadband account had been used for song downloading. But when Foster resisted the suit, and requested to know the dates and song titles of the allegedly infringing downloads, the association failed to respond. Foster filed for summary judgment and RIAA withdrew its suit against her. A judge said Foster counted as a prevailing party under the terms of the Copyright Act and that RIAA should could apply for RIAA to pay her attorney’s fees. (Eric Bangeman, Ars Tecnica, Jul. 13). See, e.g., Nov. 4, 2005, Feb. 7, 2005. (Fixed Jul. 16 to respond to reader comment noting that the judge did not in fact order a fee shift but only declared Foster eligible to apply for one. A PDF of the ruling is here)

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Employers win two in court

by Walter Olson on July 6, 2006

Each year Gerald Skoning, a prominent employment lawyer at Chicago’s Seyfarth Shaw, assembles his pick of the ten most bizarre employment cases of the previous year, and each year the National Law Journal publishes the roundup but omits to put it online. So I’ll just quote my two personal favorites from the latest list (“Last year’s bizarre cases”, Mar. 20):

…A federal district court in Oklahoma has dismissed a 70-year-old office worker’s claim that her employer discriminated against her because she was not fired. Mary Wyatt, who had worked for Occidental Petroleum for more than 24 years, argued that she should have been fired and awarded a severance package. The court disagreed, reasoning that, “Plaintiff has not suffered an adverse employment action by the continuation of her employment.” I commend the court for its eminently sensible recognition that the continued opportunity to earn a living isn’t discrimination.

…A federal court in Pennsylvania has ruled that a weight loss center did not violate the Americans with Disabilities Act by refusing to hire a salesman who weighed 350 pounds because it was concerned his appearance was inconsistent with the sale of its products. The court dismissed Bob Goodman’s claim, stating: “The mere fact that Defendant was aware of Plaintiff’s weight and rejected [him] for fear that his appearance did not accord with the company image was not improper.” I salute this weighty contribution to commonsense jurisprudence.

For another you-should-have-fired-me case, see May 11, 2004. For coverage of previous Skoning roundups, see May 12, 2005 and links from there.

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By popular demand: the $400,000 permanent erection

by Ted Frank on June 25, 2006

You’ve seen the AP press coverage. Charles Lennon had a pre-Viagra surgery to install a prosthesis, but had trouble keeping it in a concealed position; the legal opinion reveals he also complained about the product’s discomfort and noise. He won $400,000 after a jury trial. I don’t know whether the jury was correct. On the one hand, the description is one of a bad product failure. On the other hand, Lennon had trouble meeting federal evidentiary standards, and dismissed with prejudice the case he filed in federal court, rather than face the results of a summary judgment motion; moreover, an Oklahoma case against the manufacturer also suggests that the manufacturer didn’t do anything actionable. (Lennon also sued his doctor and his hospital; they won below.)

What nobody has mentioned is that the case turned on a lawyer’s use of Latin. The reference in the notice of appeal was to “Dacomed Corp., et al.” But Rule 3(c) requires parties to be named with specificity in such a notice. Thus, co-defendant National Union Fire Insurance was not allowed to appeal—and the appeal may very well have been dispositive in its favor, because Dacomed’s appeal—based on res judicata because they had succeeded in a previous federal lawsuit after two First Circuit appeals—was successful. The ruling is correct: better to have a straightforward rule that can be neutrally applied than a vague multi-factor balancing test that essentially permits a judge to let sympathy into play, and the insurer was on the wrong side of the rule. But when so much turns on something so seemingly trivial, judges should not be surprised that appellate briefing costs so much. Lennon v. Dacomed Corp. (R.I. Jun. 23, 2006).

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Watch what you tell your hairdresser, cont’d

by Walter Olson on June 19, 2006

The official recruitment of cosmetologists as informants (and as intermediaries steering customers to approved “domestic-violence” programs) continues, with programs reported in Florida, Idaho, Oklahoma, Virginia, Ohio and Maine, as well as Nevada and Connecticut (see Mar. 16 and Mar. 29, 2000). It’s not just black eyes or lacerations that the salon employees are supposed to be on the lookout for, either. A customer’s protestation that “he would not like that”, as a reason to turn down a new hairstyle, might be a sign of “controlling behavior” that needs watching. (“Salons join effort to stop violence”, Bangor Daily News, Jun. 15) (via van Bakel).

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Starbucks claims exclusive rights to “doubleshot”

by Ted Frank on April 11, 2006

We normally see Starbucks in this space when they’re being sued over hot coffee, much like the infamous McDonald’s coffee case.

A Tulsa, Oklahoma, coffeeshop, Doubleshot Coffee, however, has received a scary-lawyer letter from Starbucks, claiming that Starbucks has an exclusive right to use the term “double shot” in relation to coffee. The proprietor writes in his blog (via Romenesko):

So today, as a legal clarification, I would like everyone to know that we are not Starbuck’s Doubleshot. If we tricked you into coming in here, thinking you could get a can of Starbuck’s DoubleShot here, please let me know. And if you thought that $2 Tuesday was a sale on Starbuck’s Doubleshot, I vehemently apologize for the confusion and ask you to please not come in here anymore because stupid people annoy me.

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Burger King hot coffee lawsuit settles

by Ted Frank on March 7, 2006

ATLA and its surrogates would have you believe that the McDonald’s coffee case reflected the unique circumstances of one chain that sold coffee hotter than anyone else. We’ve been telling you for a while that that’s not true, and there’s now another datapoint in Oklahoma. Donna Aslanis purchased two cups of coffee from a Rolla, Missouri, Burger King drive-thru in 1998, but burned herself severely when she spilled the coffee while pouring it into a plastic container in her lap, and sued in 2002, complaining that the employee failed to tell her that the coffee was hot. The case went into mediation and settled; the amount (if any) of settlement was not disclosed. Her lawyer was Steven Paulus. (Ryan Slight, “Woman settles in hot coffee lawsuit”, News-Leader, Mar. 7). (More on Stella Liebeck.)

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Indian land claims: give us Denver

by Walter Olson on January 12, 2006

We’ve covered this set of issues numerous times in the past, but here are some fresh details:

When the Indian Gaming Regulatory Act became law in 1988, no one imagined that it would become a Trojan Horse that would deliver Las Vegas-style casino gambling into communities across America. Having saturated local markets, many tribes are now seeking to acquire land near other, sometimes-distant, population centers, and converting it to “sovereign” territory, in an effort to shoehorn casinos into areas where they’re often not wanted by local populations. Once land becomes part of a reservation, it typically becomes exempt from local taxes, state labor laws, municipal ordinances, zoning restrictions and environmental review. In one of the most egregious cases, in 2004, the Cheyenne-Arapahoe Tribes of Oklahoma filed a 27 million acre land claim which included all of Denver and Colorado Springs, but offered to drop it in exchange for the approval of a Las Vegas-style casino near Denver Airport.

“These efforts are being funded by ‘shadowy’ developers who underwrite the litigation expenses, lobbyist fees and even the cost of land in exchange for a cut of the profits,” James T. Martin, the executive director of the United South and Eastern Tribes, told the Senate Committee on Indian Affairs in May 2005. “If even one of these deals is approved, the floodgates for this kind of ‘reservation shopping’ will open throughout the country.” (Mr. Martin, it should be said, is no opponent of gambling: his organization includes tribes whose main goal is to thwart new competition against their own casinos.)

(Fergus M. Bordewich, “The Least Transparent Industry in America”, Wall Street Journal, Jan. 5)(subscriber-only).

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Blawg Review #33

by Walter Olson on November 21, 2005

Welcome to Blawg Review #33, the latest installment of the weekly carnival assembling some of the best recent weblog posts about law.

If this is your first visit to Overlawyered, we’re among the oldest legal sites (launched in July 1999, practically the Eocene era), and over the years we’ve built a vast collection of information (with links/sources) on strange, excessive and costly legal cases, examples of the over-legalization of everyday life, pointers on litigation reform, policy stuff of generally libertarian leanings, and much more. We’re a fairly high-volume site; 6-8,000 unique visitors on a weekday is pretty typical. And although our work is regularly critical of trends in the legal profession — or maybe because of that fact — practicing lawyers around the world are among our most valued and loyal readers.

More specifically, there are two of us posting here. One of us (Walter Olson) has been writing about these topics for twenty years as the author of several books (The Litigation Explosion, The Excuse Factory, The Rule of Lawyers) and a great many shorter articles. He’s a senior fellow at the Manhattan Institute who lives and works in Chappaqua, N.Y., north of New York City. More recently Ted Frank, who’s in Washington with the American Enterprise Institute, joined as a regular blogger. Unlike Walter, Ted is a lawyer, having practiced until lately with O’Melveny & Myers. Both of us also blog at the (somewhat more serious-toned) website Point Of Law, which unlike this one is sponsored by our respective institutes and boasts numerous other contributing writers.

Enough about us. Here’s Blawg Review #33, written by Walter with

indented sections by Ted.

* * *

The week in headlines

The talk of the blawg world last week? The New Yorker’s unmasking of the girlish “Article III Groupie” who’s blogged anonymously about federal judges at “Underneath Their Robes”, as, in fact, a (male) Assistant U.S. Attorney in Newark. Much more on that from Ted, below.

The pace of commentary on Samuel Alito Jr.’s Supreme Court nomination has slowed a good bit, despite the release of a 1985 memo detailing Alito’s views on abortion (which occasioned this post by Will Baude taking exception to a Dahlia Lithwick Slate column) and, more tantalizingly, on the Warren Court’s reapportionment cases (see posts by Nathan Newman and Steve Bainbridge). Alito is now heavily favored among bettors to win confirmation, notes San Diego lawprof Tom Smith.

Possibly the week’s strangest headline, discussed by J-Walk: “1,100 Lawyers Leave Saddam Defense Team”. 1,100?

And the Fifth Circuit is coming back to New Orleans (Tom Kirkendall).

* * *

Splendors and miseries of legal practice

Find out:

* What makes a talented 39 year old attorney burn out of a criminal defense practice? (Norm Pattis, Crime and Federalism)

* What sorts of squirm-inducing compliments do criminal defense lawyers hear from their clients after scoring legal points on their behalf? (Ken Lammers, CrimLaw)

* Is it smarter for big law firms to compensate their partners on an “eat what you kill” model, a “lockstep” model, or something between the two? (Bruce MacEwen, Adam Smith, Esq.)

* How do licensing professionals decide what’s a reasonable royalty rate? (Patent Baristas)

* What sorts of bad things can happen to a law firm when one of its individual lawyers behaves rudely to a stranger? (Jim Calloway)

* * *

Controversies galore

Read, ponder, and make up your own mind:

Did Texas execute an innocent man, Ruben Cantu? (Doug Berman)

Conservatives are still griping about the Ninth Circuit, but the new twist is that they think its judges aren’t activist enough. (Eugene Volokh)

Every so often, through luck or pluck, the “fair use” side manages to win one in copyright litigation (Ron Coleman, Likelihood of Confusion).

A group is “pushing for a ballot referendum that would strip South Dakota judges of their immunity from suit for actions taken in their capacity as judges.” Atlanta attorney Jonathan B. Wilson calls it “one of the worst reform ideas ever”.

Michael Newdow, of Pledge of Allegiance suit fame, has filed a new legal action demanding that the motto “In God We Trust” be removed from U.S. currency. Jon Rowe winces.

Our own Ted Frank takes a look at the much-talked of “Dodgeball” document and concludes that it by no means proves Merck’s guilt in the Vioxx matter. (Point of Law). Also at Point of Law, James Copland of the Manhattan Institute and Dr. Bill Sage of Columbia have been engaged in a spirited debate on med-mal litigation.

In a Providence courtroom, the state of Rhode Island is demanding that companies that once manufactured lead paint be held liable for the cost of lead abatement programs. Speechwriter/ghostwriter Jane Genova is liveblogging the case’s retrial, and suggests that the defense side has been making its points more effectively.

A court has ordered the Armour Star meatpacking concern to pay $3 million for using a strength test to screen applicants for a job requiring much lifting. George Lenard’s Employment Blawg originally covered the case last month, Overlawyered picked it up, and now George has returned to the subject, observing that those dissatisfied with the suit’s outcome should realize that sex discrimination law’s distrust of strength tests isn’t something the EEOC just came up with the other day and in fact dates back at least a couple of decades. (I quite concur, having written at length on the subject back in the 1990s.)

The British government recently published a white paper entitled “The Future of Legal Services: Putting the Consumer First”. Dennis Kennedy at Between Lawyers provides a link.

In other consumer news, State Farm conceded earlier this year that when it disposed of many wrecked-and-repaired vehicles it failed to ensure that they were given appropriate “salvage titles”. E.L. Eversman at AutoMuse has been following the issue.

The head of the NY state bar association is advising prospective clients not to be swayed by lawyers’ advertising. David Giacalone, who frequently discusses legal advertising on his blog f/k/a, isn’t impressed.

San Diego lawprof Gail Heriot discovers a convicted rapist is living a few doors down from her, which gets her to thinking about the interaction of “Megan’s Law” statutes and statutory rape.

New York AG Eliot Spitzer has gone after former NYSE head Richard Grasso but not the board that approved Grasso’s plans. Larry Ribstein suspects the worst, charging that Spitzer “gets securities industry political support if he handles this so only Grasso gets hurt.”

* * *

Student division

Scheherezade at Stay of Execution, who wrote a classic post last year giving advice on whether or not to go to law school, now fields a reader’s question: Should I transfer to a higher-ranked law school?

Called for jury duty, Jeremy Blachman gets shown a somewhat hokey video entitled “Your Turn: Jury Service in New York State.” “I wanted to really mock the video, but in all honesty it was a better explanation of the jury system than anything we got in law school”.

Michael Froomkin offers a surprising and counterintuitive quiz on the U.S. Constitution in the form of a “scavenger hunt”. He also suspects that a national ID card might abet price discrimination.

And this from Ted:

Congratulations to Amber, G, Marissa, Grigori, Eve, Jeremy, and others who passed the bar. Third Attempt failed for the second time, and is opening a blog on the subject of his third try, with links to other passers and failers. Only 13% of those who repeated the California bar passed.

On the lighter side, law student Kurt Hunt quotes his prof’s maxim that “Cahoots is not a crime” but wonders what would happen if “tomfoolery, cahoots, no-gooding, antics and shenanigans were redefined as ‘Crime-Lite’”. And Colin Samuels of Infamy or Praise is among the many human beings who don’t manage to eat as well as (UCLA lawprof) Steve Bainbridge’s dog.

* * *

Buzz about blogs

Now I’ll turn the floor over to Ted again to discuss the UTR affair:

The blawgosphere likes nothing more than navel-gazing, and the New Yorker’s outing of anony-blawger “Article III Groupie” as Newark AUSA David Lat and resulting implosion of “her”/his popular “Underneath Their Robes” blawg has generated lots of curiosity and posts with Austin Powers references; the story even made Drudge and the New York Times. Blawg Review has a retrospective look at the blawg. Howard Bashman has done the most original reporting, interviewing Jeffrey Toobin, who revealed Lat’s identity, and publishing the reminiscences of a former co-worker of Lat’s. Denise Howell provides an obituary for the blawg. The Kitchen Cabinet’s “Lily” comments from the perspective of another anonymous blawger, as does Jeremy Blachman, who got a book deal from his anony-blogging. Ann Althouse muses on the nature of humor; Professor Solove and Howard Bashman comment on blogger anonymity, as does Half Sigma, who pulled a similar hoax using the photo of a Russian mail-order bride earlier this year as the image of “Libertarian Girl.” Another blawgger claiming to be a libertarian female, this one with the implausible name of “Amber,” meta-comments on the various shattered blog-crushes exhibited in the garment-rending Volokh Conspiracy reader comments on the subject; JD expresses his own disappointment. (Judge Kozinski claims to have known all along, but Judge Posner has proof of his foresight.) And Ian has sound commentary on A3G’s “status anxiety.” (And speaking of status anxiety, a Harvard Law School admissions dean snarks on Yale and gets snarked back. One can understand the sniping: HLS and YLS are good schools, and there’s a lot of competition for who’s #2 behind Chicago Law.)

Some fallout: anony-blogger “Opinionistas” got an e-mail accusing her of really being a man, and Will Baude and Heidi Bond make a bet over the gender of anony-law-prof Juan Non-Volokh, who promises to come out of the closet soon.

Taking second place in interblog buzz is the IP sticky wicket that awaited the former Pajamas Media (discussed by Blawg Review here) when shortly before launching it decided to switch to the more dignified monicker of Open Source Media. Turned out there was already a well-known public radio show by the name of Open Source which hadn’t been consulted even though it occupied such URLs as opensourcemedia.net. Ann Althouse has been merciless (here, here and here) in needling the OSM organizers, while Prof. Bainbridge piles on with a law and economics analysis of OSM’s market.

Monica Bay passes along the views of legal-tech consultant and frequent CLE presenter Ross Kodner, who charges that law blogs are “narrow-minded” and display “elitist exclusionism”. “I am sick and tired of being repeatedly asked why I don’t have a blog,” he declares. Okay, Mr. Kodner, we promise never to ask you that.

* * *

In conclusion

Finally, intellectual property lawyer Doug Sorocco, of the ReThink(IP) and phosita blogs, arrives “fashionably late to the BlawgThink ball” (in Chicago last week). Sorocco’s Oklahoma City firm also figures prominently (as the acquiring party) in what Dennis Kennedy says may amount to a milestone: “the first move of one legal blogger to the law firm of another legal blogger.” Stephen Nipper has more details about this “move” at ReThink(IP).

By coincidence, and giving us a nice way to wrap things up, phosita is going to be the home of next week’s Blawg Review #34. Blawg Review has information about that and other upcoming matters, as well as instructions how to get your blawg posts considered for upcoming issues.

P.S. As Bob Ambrogi notes, you can now check out — and tag your own location in — Blawg Review’s reader map feature.

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Also at Point of Law

by Walter Olson on July 22, 2005

Along with a great deal of other discussion of the John Roberts nomination (for which see the site’s special Supreme Court nominations page), Point of Law has kicked off a featured discussion of the confirmation saga by two distinguished contributors, U. of Chicago lawprof Richard Epstein and Northwestern lawprof Stephen Presser (more).

Some other recent highlights at the site: Jim Copland and Jonathan Wilson on the Texas Merck trial, Wilson on Georgia’s new rule regarding “offers of judgment”, and posts from me on an expansion of ADA coverage, school finance suits, the retention by Oklahoma’s attorney general of private tort lawyers to sue chicken farmers in nearby Arkansas, an appeals court approves RICO suits against employers of illegal aliens, health care qui tam actions, the “cab-rank” principle in legal ethics (observed more in Britain than here), and Astroturf in the liability wars.

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More on District of Columbia v. Beretta, U.S.A.

by Ted Frank on April 29, 2005

We get mail:

You mention in your “District of Columbia v. Beretta, U.S.A.” post that other commentators, such as Mr. Healy and Mr. Levy, have argued that individual states, not the federal government, should be initiating legislation preventing lawsuits against gun manufacturers. The idea is that businesses can “withdraw from doing business in a state that has an oppressive tort regime.” Your counter-argument, however, is that the latter idea “doesn’t help gun manufacturers who don’t do business in the District of Columbia to begin with.”

But, in fact, can’t businesses withdraw from states to the point where these businesses no longer have the “minimum contacts” necessary for the state courts to assert personal jurisdiction over the businesses? Then the businesses would be avoiding the oppressive tort laws of those states, but the states would not have personal jurisdiction for any lawsuits against these businesses.

Chris Schmitthenner

It is correct that gun manufacturers will, in litigation, attempt to get themselves out of the case by arguing lack of personal jurisdiction via such precedents as Asahi Metal Industry Co. Ltd. v. Superior Court of California. However, there are two separate issues that prevent Asahi from providing complete relief.

First, plaintiffs will argue that there are minimum contacts that suffice for personal jurisdiction. They’ll argue that the manufacturers placed ads in magazines that would be seen by residents of the state. They’ll argue purposeful availment under the same factual theories that underlie the “nuisance” claims in the Weinstein litigation. Cf. GTE New Media Services v. BellSouth Corp. (D.C. 2000) (plaintiff entitled to discovery whether defendant, while not physically present in District, intended for District residents to do business with it and caused injury within District); LaMarca v. Pak-Mor Mfg. Co. (N.Y. 2000) (distinguishing Asahi to find personal jurisdiction). In the case of the D.C. city council law, the manufacturers may even have problems to the extent they have lobbyists in the area. A particular judge may well decide that it’s a jury issue, and many manufacturers won’t want to take that risk.

Second, even if D.C. courts do not have personal jurisdiction over the manufacturer, little stops a D.C. plaintiff from suing a gun manufacturer in a state where there is personal jurisdiction. For example, in Peterson v. BASF, Minnesota state courts applied the New Jersey Consumer Fraud Act to a nationwide class; in Ysbrand v. DaimlerChrysler, Oklahoma state courts applied Michigan law. One can easily imagine a D.C. plaintiff and a well-funded attorney filing suit in Los Angeles County against a California manufacturer asking for application of D.C. law. I think, in such a circumstance, gun manufacturers have strong arguments under the principles behind Phillips Petroleum v. Shutts that, if D.C. has no personal jurisdiction over a defendant, choice-of-law principles cannot be used to apply D.C. law to the defendant in a manner consistent with due process. But the question, to my knowledge, has not yet been resolved definitively; the defendants in Peterson and Ysbrand certainly were within the personal jurisdiction of the forum whose law was applied. Cf. also the different case of Keeton v. Hustler Magazine, Inc., where a New York plaintiff was allowed to sue an Ohio/California defendant using New Hampshire courts and laws, solely for the purpose of taking advantage of a favorable statute of limitations.

In short, gun manufacturers have strong arguments for application of the Healy/Levy federalism theory should such a suit actually happen. But plaintiffs get to choose their forum, and a large part of forum-shopping is finding a forum where the courts are less likely to resolve issues of law in favor of the defendant. The advantage of an immunity law is that it removes that uncertainty.

I’ve opened comments on the narrow question of the interrelationship between personal jurisdiction and choice of law. Please keep discussion civil and limited to this issue.

Update:David Hardy provides another example.

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ADA filing mills: “drive-by lawsuits”

by Walter Olson on March 18, 2005

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

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

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

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

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

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

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

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

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

Rafeedie said the letters were unethical and misleading.

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

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Oklahoma high court judge sues colleagues

by Walter Olson on January 11, 2005

Frontiers of age discrimination: Marian P. Opala, a justice of the Oklahoma Supreme Court, has gone to federal court to sue all eight of his colleagues charging age bias. Members of the court select one of their number to serve as chief justice, and for years the seat has rotated automatically among members, but lately, as Opala’s turn was drawing near, the court voted to change the rules to adopt a different selection method. Eugene Volokh called the justice’s equal protection claim “very, very weak” and said it was annoying to see an official of a state court seek the intervention of a federal court against the authority of his own. (Adam Liptak, “Oklahoma Judge, 83, Files Bias Suit Against Colleagues”, New York Times, Jan. 5).

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A university athlete’s heirs

by Walter Olson on December 30, 2004

But the lion took the biggest share:

Relatives of an Oklahoma State basketball player killed in a university plane crash in 2001 were awarded a $1.6 million settlement, a newspaper [The Oklahoman] reported Monday….

Lawson, a 21-year-old junior guard, was one of 10 men who died Jan. 27, 2001, when an airplane carrying members of the basketball program crashed in a Colorado field on the way back from a basketball game at the University of Colorado….

Lawson’s son, Ramses B. Hereford, received $440,139, his parents, Daniel Lawson Sr. and Phyllis Lawson, each received $223,238 and the remaining money — nearly $730,000 — was awarded to attorneys for legal fees and costs, according to court records.

Contributing to the settlement are North Bay Charter, the owner of the downed airplane; the estate of the late pilot, Denver Mills; Marathon Power Technologies, a maker of airplane parts; and Oklahoma State University. Wichita-based Raytheon Aircraft did not settle, and a lawsuit continues seeking to saddle it with the blame for the crash. (“Legal wrangling not finished”, AP/ESPN, Dec. 19).

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Center for Justice & Democracy’s Zany “Zany Immunity Law Awards”

by Ted Frank on December 23, 2004

Many farmers use anhydrous ammonia as fertilizer, because it provides vital nitrogen nutrients to the soil. The combustible material is produced in Louisiana, and then shipped to the Midwest on barges or through pipelines, and then stored on tanks on farms. However, ammonia is also useful for making illegal methamphetamines, and thefts are a regular problem. (KOMU-TV, “Law Officers Fight Ammonia Thefts”, May 19). If a thief injures himself tampering with an ammonia tank, should he be able to sue the farmer for the injury? Three states, Kansas, Missouri, and Wyoming, say no, and provide immunity for those who store, handle, or own ammonia equipment from suit by thieves. Legislatures are considering the issue in other midwestern states.

The misnamed anti-tort reform Center for Justice & Democracy has noticed the success of the ATRA’s judicial hellhole campaign (Dec. 15; Dec. 3, 2003), and decided to respond with its own report, the “Zany Immunity Law Awards”, intended to single out “special interests” who opportunistically subvert the legislative system to get improper immunity from liability. The cover shows a legislator receiving a statuette, cash in his pocket, and roses with a ribbon labeled “Sleaziest Legislation.”

Exposing sleazy special-interest immunity laws is a noble sentiment–but it’s a sure sign of how few and far between such laws are that CJD singles out the sensible anhydrous ammonia immunity laws for its top ten list. The CJD incorrectly blames the law on a supposed “anhydrous ammonia business lobby”; in fact, it’s groups like the Michigan Farm Bureau that push for laws like Michigan S.B. 786. Indeed, the only group to oppose such laws? Trial lawyers’ lobbying groups. See also Kelly Lenz, “Fertilizer law to help farmers”, Farm and Auction, Jun. 12, 2002.

How ridiculous are the CJD awards? One of the top ten “zany immunity laws” refers to “immunity” granted to placebo manufacturers and distributors. Except the immunity in question isn’t immunity–it’s an exception to a criminal statute prohibiting the sale of fake drugs! E.g., Fla. Stat. 817.564(6)(a). (This is the only appearance of the word “placebo” in the Florida Code. It’s telling that CJD omits the statutory cite in its footnotes.) Perhaps this law is zany, but it’s hardly an example of a special interest group buying sleazy legislation that damages consumers. A subject of a research test who is injured by adulterated placebos (has this ever happened?) will still have a cause of action.

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“Workplace bullying” legislation

by Walter Olson on December 22, 2004

Michael Fox of Jottings by an Employer’s Lawyer sees a resurfacing of this campaign, about whose merits he’s skeptical (Dec. 20). For the schools context, see Feb. 14-15, 2001. More: Point of Law, Apr. 18, 2005 (jury award in Indiana on the theory). More: Mar. 2, 2007.

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“Woman Drops Sunflower Seed, Pays $185 Fine”

by Walter Olson on November 8, 2004

The Oklahoma City Municipal Court has upheld Tricia Morgan’s fine for discarding a single sunflower seed on the street: biodegradable or not, it’s still litter. Next stop: fingernail clippings? (The KCRAChannel.com, Nov. 4)(via Matt Welch, Reason “Hit and Run”).

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Another med-mal insurer collapses

by Walter Olson on August 11, 2004

This time it’s the Hospital Casualty Co. of Oklahoma, a subsidiary of the Oklahoma Hospital Association founded in 1977 by 12 local hospitals, capsized by nursing-home suits and by the general Sooner-get-sued atmosphere in its home state. Must have been mismanaged, our friends in the plaintiff’s bar will say. Earlier this year, the Physicians Liability Insurance Co., owned by the Oklahoma Medical Association and the state’s largest med-mal insurer, “was placed under formal supervision of the Insurance Department because the company didn’t have money to pay anticipated claims.” Another mismanaged outfit, no doubt. More details at Point of Law, where I also discuss the anguish felt by California insurance regulators over the relative lack of interest among low-income drivers in taking advantage of a scheme to rob Peter in Pacific Palisades to pay Paul in Pico-Union.

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One Man’s Not So Unusual Experience

by MedPundit on July 27, 2004

One of the most frustrating aspects of the medical malpractice business from the physician’s perspective is the seeming carelessness with which malpractice attorneys launch suits. It usually works like this: Someone has a bad outcome, say, in the hospital. The attorney gets the medical record, but he doesn’t use it to determine who is at fault. He uses it to collect all the physician names within it, from the doctor who saw the patient in the ER to the resident who ordered a Tylenol for a fever. The suit is then filed, naming every last doctor with a legible name. It’s only after the suit has been filed – and defense attorneys get involved – that the names are whittled down to who is deserving of being sued – a process that often takes months and thousands of dollars. In some cases, the lawyers don’t even make an attempt to determine if they have the right doctor, as in the case of this family physician from rural Oklahoma who was willing to share his story with Overlawyered:

I was served at my university job (where I was an academic fellow at the time) with papers for a lawsuit that at first blush looked absolutely horrific.? I think that there in fact were material questions of possible physician negligence that resulted in a patient’s death.? I was devastated, and began racking my brain trying to recall the specifics of this case (I had been an attending physician for a residency at the time I practiced there so it could have been any of a number of patients I had passing involvement in).? I went home and called my fiance and began to get very depressed.? Then I noticed something…the dates of the alleged incidents.? I HAD BEEN GONE FROM THAT HOSPITAL FOR OVER A YEAR AND A HALF BEFORE THIS PATIENT WAS EVER ADMITTED!!!? Apparently the order in question read “telephone order from Dr. A”.? It hadn’t been signed off, and the lawyer for some reason decided that I must be the “Dr. A” in question.?

Now here is where I think that he was negligent (defined by me as not taking reasonable measures to ensure he was naming people appropriately).? He had to ask the hospital’s medical staff office for a forwarding address, since I was gone.? Had he only asked, “When did this guy leave here?” he would have known he had the wrong doctor.

I called an attorney friend whose partner does medmal defense, and they managed to fire off a letter to the filing attorney and the court.? I was removed within a few weeks.?… Had I not called my friend first, but rather relied on the malpractice insurance carrier to do this for me, I would have had an open claim with costs incurred.? I would have had my insurance premium go up, and I would have had to forever list in credentialing documents that I had been sued.? As it is, multiple sources have advised me to not list this incident as I was ultimately “no suited”.?

When I asked multiple friends in the legal field about what possible complaint or discipline could be brought to bear, I was repeatedly told “nothing”.? I would have been thrilled if a letter apologizing for their error had been sent to me, but apparently apologizing (i.e. taking responsibility for ones incorrect actions) is not something that trial lawyers do.? Apparently, reckless behavior by an attorney in the name of “protecting the rights of his client” is allowed, no matter how negligent and regardless of its effect/potential effect on innocent third parties.

I have long past put this incident in perspective and resigned myself to the fact that the game as it is set up is inherently unfair.? To this day, though, I carry a small scar and a huge amount of fear/loathing for a system that allows bullies to run rough-shod over people with no chance of reining in their bad behavior.? Oh…by the way.? My attorney friend said that me having obtained the name of the actual Dr A involved (by way of asking the hospital risk manager, “who WAS the Dr. A who gave that order”…they found a signed note by him four pages away in the chart) and her giving it to the plaintiffs attorney was key in them dropping me without further question.

I’d like to reiterate, had I not done things the way I had, but rather called my insurer and had them handle it, it would have probably cost tens of thousands of their dollars to figure this out. Further, I would have had an open claim on my record and my rates would have been jacked up for several years…all because a lawyer wasn’t held accountable up front for reckless behavior.

There were about a dozen docs named in that suit initially. All but two were dropped within two months of the intial filing. My experience was apparently not unique.

Unfortunately, it isn’t unique, but all too commonplace. It is, in fact, the “standard of care” for plaintiff’s attorneys. When asked about the practice, even defense attorneys shrug and explain it’s a necessary evil. If a plaintiff’s attorney fails to name someone in the original suit, they can’t go back and add him. No one wants to explain to an angry client that they overlooked the person truly responsible.

And yet, this strikes us as a poor excuse for actions that have such far-reaching consequences for so many innocent bystanders. Prosecutors have to have fairly good evidence that they’re charging the right person before they file a criminal case. They don’t bring charges against everyone who ever encountered the crime victim. Shouldn’t malpractice attorneys have to live by the same standards?

MORE: Fellow medical blogger and Georgian surgeon Bard-Parker notes that doctors with illegible signatures get sued, too – as Dr. John Does (scroll down to “Itinerant Blogging”.

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