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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Ohio,
Oklahoma,
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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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Nebraska,
Oklahoma,
Stephen Yagman,
Thomas Frankovich
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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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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Denver,
Oklahoma,
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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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Wyoming
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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Oklahoma
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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hospitals,
medical,
Oklahoma
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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hospitals,
medical,
Oklahoma
“The Cheyenne and Arapaho tribes of Oklahoma filed a claim Wednesday for 27 million acres given to the tribes in a 19th century treaty but said they would settle for 500 acres to build a casino in a symbolic return to Colorado. The petition, filed with the Department of Interior, covers northeastern Colorado and about 40 percent of the state.” And just like many Eastern tribes or would-be tribes, they’ve got an investor: “Steve Hillard, a Longmont venture capitalist who pulled together investors for the plan, dubbed the ‘Homecoming Project,’ said the unresolved settlement claims could tie up land and water sales in northeastern Colorado until an agreement is reached. Hillard said similar claims in Hawaii, New York, South Carolina and Texas have slowed real estate sales.” (Deborah Frazier, “Indians file huge land claim”, Rocky Mountain News, Apr. 15). For more on Indian land claim blackmail, see Feb. 9 and Nov. 2-4, 2001, among many others.
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Oklahoma,
South Carolina
Despite a federal judge’s recent dismissal of one slavery-era suit (see Jan. 30), reparations advocates are hoping to score a comeback with a lawsuit demanding damages 82 years after the fact for a lethal rampage by white rioters against black residents of Tulsa, Oklahoma, in 1921. They’ll have to overcome both sovereign immunity and the statute of limitations, though. (Scott Gold, “Reparations Sought Decades After Race Riot”, Los Angeles Times, Feb. 13). And New York Life has agreed to hand over $20 million to settle claims arising under policies sold to ethnic Armenians in the former Ottoman Empire, many of whom were murdered during the rise of modern Turkey in “a deliberate, systematic and government-controlled genocide that began in April 1915,” according to a statement by California insurance commissioner John Garamendi, who announced the settlement (Armenian-Americans are a potent ethnic lobby in California.) Of the $20 million, $11 million will be set aside for heirs and $3 million for Armenian civic organizations, leaving somewhere around $6 million for lawyers who include Mark Geragos, William Shernoff and Brian Kabateck. According to the last-named of these, the settlement “is the result of a very personal campaign to bring attention to the history of the Armenian Genocide.” The news accounts do not reveal what if any role the court system and insurance law of present-day Turkey — the government of which rejects the genocide charge — might have been allowed to play in the disposition of the claims (”Calif. Commissioner Announces Settlement on Behalf of Survivors of Victims of Armenian Holocaust”, Insurance Journal, Jan. 28; AP/CBS News, Jan. 29; CNN, Feb. 17)(via Law.com)
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reparations,
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“I have recently been made aware of a market practice known as ’short selling’ and am amazed that it is legal,” Oklahoma Attorney General Drew Edmondson wrote the Securities and Exchange Commission last year. That’s one of many tidbits to be found in a column by the L.A. Times’s Mike Hiltzik about politicians’ ties to Oklahoma-based Pre-Paid Legal Services, a multilevel marketing (MLM) enterprise that has been the subject of a fair bit of controversy and litigation over the years (Mike Hiltzik, “Lockyer Not Above a Little Legal Aid”, Los Angeles Times, Dec. 18). Oklahoma AG Edmondson’s bio lists him as having been born on “October 12, 1946″ rather than, as one might assume, “yesterday”.
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Oklahoma,
politics
Yesterday at 3:15 p.m. EST I was a guest on Michael Graham’s talk show on WRVA, Richmond, Va., to discuss money laundering regulations and the latest controversy to assail radio host Rush Limbaugh (I wrote about the general subject of money laundering law in 1999 for Reason). And tomorrow morning at 8:35 a.m. CST I’ll be a guest on Oklahoma City’s WKY radio morning program.
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Virginia
“A group of workers’ compensation attorneys is increasingly relying on its clients to finance a political warchest created to influence elections, and some injured workers are angry about it,” reports Oklahoma’s largest newspaper. The president of Lawyers for Working Oklahomans says client donations to its PAC are “strictly voluntary”, which is not how several clients remember it. “Some said they didn’t even know they had made donations. ‘I didn’t see why I had to but they already had it taken out of my check,’ said Tom Rice, 42, of Washington, Okla., a laid-off crane operator listed as donating $68. … Also unaware was former hairdresser Christina Dueck, 31, of Norman. She is listed as a $340 donor. ‘I cannot believe that. You’re kidding me. That’s ridiculous,’ said Dueck, who settled her comp case in November for $35,000.” A Chickasha welder said he learned after the fact about the deduction: “What can you do about it? They didn’t give you no choice,” he said. “It’s politics.” “I didn’t know I donated to it. I guess I didn’t pay that much attention,” said a flour mill worker. The PAC, formed in 1999, “has already had an impact on state politics. It spent $67,210 in October on independent political ads that helped Gov. Brad Henry (D) to his upset victory.” (Nolan Clay, Sunday Oklahoman, Aug. 10 (search for pay archives with registration); “Concerns raised over donations to a lawyers’ political action committee”, AP/KOTV, Aug. 12; AP/KJRH, Googlecached)).
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Last week this site’s editor visited the Sooner State to speak to the Oklahoma Council of Public Affairs, in conjunction with which visit commentator/radio host Brandon Dutcher recorded this informal Q & A which touches on the tobacco and fast food litigation, the prophetic role of former Okla. Sen. Fred Harris, and more (”No Joke: Lawsuit Abuse Hurts Us All”, interview with Walter Olson, OCPA Perspective, August)
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We’re named among the weekly “Web Winners” picks of Philadelphia Inquirer columnist Reid Kanaley, who recommends us for “such class-action gems as the one in California demanding discounts for men on ‘ladies night.’” (Aug. 14). Vincent Carroll, writing in Denver’s Rocky Mountain News, predicts that the forthcoming Kobe Bryant trial is unlikely to resemble the atrocious O.J. Simpson trial, and quotes our editor on the question of jury selection and its abuse (”Spectacle of O.J. trial won’t repeat itself here”, Aug. 16).
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This Thursday, Aug. 14, our editor will be giving a luncheon speech to the Milwaukee chapter of the Lawyers Division, Federalist Society (details). And on Wed., Aug. 20, he’ll address the Oklahoma Council of Public Affairs as the final speaker in its Summer Speaker series in Oklahoma City (flyer) (Tulsa Today). In conjunction with the OCPA event he’ll be heard on several broadcast shows in the Sooner State, including, on Tues. Aug. 12 at 1 p.m. CDT, station WKY with host Brandon Dutcher, and on Fri. Aug. 15 at 7:15 a.m. CDT, station KTOK with host Cam Edwards, as well as a discussion show (time TBA) on KFOR-TV (NBC, ch. 4).
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The following essay was written circa 1999 by our editor and formerly appeared on the site’s topical page on loser-pays.
* * *
America differs from all other Western democracies (indeed, from virtually all nations of any sort) in its refusal to recognize the principle that the losing side in litigation should contribute toward “making whole” its prevailing opponent. It’s long past time this country joined the world in adopting that principle; unfortunately, any steps toward doing so must contend with deeply entrenched resistance from the organized bar, which likes the system the way it is.
Overlawyered.com’s editor wrote an account in Reason, June 1995, aimed at explaining how loser-pays works in practice and dispelling some of the more common misconceptions about the device. He also testified before Congress when the issue came up that year as part of the “Contract with America”. Not online, unfortunately, are most of the relevant sections from The Litigation Explosion, which argues at length for the loser-pays idea, especially chapter 15, “Strict Liability for Lawyering”.
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The Litigation Explosion
