On March 1 we reported,

Oregon Supreme Court plays chicken with SCOTUS over $79.5 million punitive damages award in Williams v. Philip Morris case. [Sebok @ Findlaw; Krauss @ IBD; POL Feb. 1]

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“Oregon sent a cease-and-desist letter to Justia.com threatening a copyright lawsuit for republishing Oregon law.” Neither Greg Beck (Apr. 17) nor Ron Coleman (May 1) is much impressed.

• Oregon Supreme Court plays chicken with SCOTUS over $79.5 million punitive damages award in Williams v. Philip Morris case. [Sebok @ Findlaw; Krauss @ IBD; POL Feb. 1]
• Speaking of punitive damages, I did a podcast on Exxon Shipping v. Baker. I can’t bear to listen to it, so let me know how I did. [Frank @ Fed Soc]
• Arkansas case alleged legal sale of pseudoephedrine was “nuisance” because meth-makers would buy it; case dismissed. [Beck/Herrmann]. This is why I’ve stockpiled Sudafed.
• Lawyers advertise for refinery explosion victims before fire goes out. [Hou Chron/TLR]
• Connecticut Supreme Court: cat-attack victim can sue without showing past history of violence by animal. [On Point] Looking forward to comments from all the anti-reformers who claim to oppose reform because they’re against the abrogation of the common law.
• Op-ed on the Great White fire deep pockets phenomenon. [SE Texas Record; earlier: Feb. 2]
• “FISA lawsuits come from Twilight Zone.” [Hillyer @ Examiner]
• Legislative action on various medical malpractice tweaking in Colorado, Hawaii, and Wyoming. [TortsProf]
• Request for unemployment benefits: why fire me just because I asked staffers for a prostitute? [Des Moines Register]
• “So much for seduction and romance; bring in the MBAs and lawyers.” [Mac Donald @ City Journal; contra Belle Lettre; contra contra Dank]
• Where is the Canadian Brandeis standing up for free speech? [Kay @ National Post]
• In defense of lobbying. [Krauthammer @ WaPo]

Inmate Jorey Lee Brewis, also known as Rebekah Katherine, is suing officials of the Oregon Department of Corrections who allegedly ignored Brewis’s gender identity disorder, leaving Brewis to resort to — details not for the squeamish — do-it-yourself sex change surgery by way of fingernails, hair ties, rubber bands and other implements available in the cell. A spokeswoman for the corrections department “says she can’t discuss Brewis’ case because of medical privacy concerns”. (James Pitkin, “Juicy Suits: Cutting Off Her Own Testicles in Prison”, Willamette Week, Dec. 13).

But they told us the malpractice crisis was just a myth dept. (Associated Press):

Oregon Health & Science University plans to cut at least 200 jobs and raise tuition by at least 10 percent to free the money needed for higher insurance costs following an Oregon Supreme Court ruling.

The December ruling cleared the way for the family of a brain-damaged child to pursue malpractice damages from the university. It effectively eliminated a liability cap of $200,000 designed to protect state agencies from major damage awards.

The cutbacks, expected to be announced Friday, were first reported by The Oregonian newspaper. Besides trimming jobs and hiking tuition, OHSU expects to restructure or close clinical, research and education programs, and scale back construction on Portland’s South Waterfront.

OHSU said the court ruling will add $30 million a year in insurance and administrative expenses. Though that’s only 2 percent of OHSU’s annual operating budget of about $1.5 billion, it amounts to more than 60 percent of its annual support from the state’s general fund. …

OHSU is Portland’s largest private employer with about 12,000 staff.

More: Victoria Taft (cross-posted from Point of Law).

Roger Parloff at Fortune Legal Pad is out with some informative analysis based on an interview with attorney John Griffin Jones, who filed the fee suit against Scruggs. Among the questions explored: how high were the stakes in that suit, and why might the defendants have been keen on an arbitration order? Relating to the latter point, Parloff writes:

Scruggs’s lead counsel, John Keker of Keker & Van Nest, adds that the notion that Scruggs might have wanted to keep the case out of public view by putting it into arbitration is “absurd as a motive” for a bribe, since the case “was certainly going into arbitration” and that was “the only place it could possibly be.”

Which raises the question: if an order for arbitration was a foregone conclusion, why are Scruggs chums floating the theory that attorney Timothy Balducci thought he could impress Scruggs by getting such an order from Judge Lackey?

The WSJ law blog reports that Balducci was arraigned Tuesday and has asked to withdraw his law license. On the location of his arraignment, see Mississippi blogger Folo (earlier). (Update: Whoops, actually Mississippi expatriate, see comments.) Balducci was named to represent himself, drawing many puzzled reactions. (Update: NE Mississippi Daily Journal has more on Balducci’s arraignment and likely cooperation, via Folo.) Also, the WSJ law blog interviews David Rossmiller (who himself has several new posts up) and reports that the Scruggs firm may be withdrawing from Scruggs Katrina Group cases after all. (Update: confirmed in this Sun-Herald story).

This Sunday profile of Judge Lackey in the Sun-Herald notes that he’s “a deacon at First Baptist Church and a member of a state commission charged with ensuring judicial integrity,” which as several commentators note might indicate that he was a risky one to approach with a proposal for corruption.

A commenter at David Rossmiller notes whose interests are served by the pre-emptive “character assassination of Balducci” in recent coverage and also writes:

Patterson resigned Oct. 18, 1996 after pleading guilty to filing false documents to avoid paying taxes on a Range Rover. And Grisham thinks these folks are super sophisticated, why?…

And how bad does the spin from last week look? The FBI did not find “the document” and Scruggs is not withdrawing from Katrina cases, and then a few days later he is withdrawing. By the way, the FBI removed computer data which is most likely being analyzed right now, so who the heck knows what they have found. Maybe “dead bodies”? …

Earlier coverage of the indictment here, here, here, and here.

Disposing of a worn-out vehicle, appliance, computer, even maybe a house in the state of Oregon? Maybe you’d better worry that a subsequent user will get injured by or in or with it and blame the mishap on your negligent failure to perform proper maintenance. That theory is getting a plaintiff to trial past a motion to dismiss in a case where a crash victim is suing not only the owner of the truck that hit him, but also a former owner that had sold the truck about a year earlier. The Oregon Supreme Court, reversing a trial and appeals court, is allowing the case to go to trial. Lewis & Clark lawprof Jack Bogdanski writes:

How far does the rule of this case go? Would it cover tools that you unloaded at a garage sale last year? How about the house you sold last year, or five years ago? Surely, it would cover that used car you got rid of, although the court hinted that maybe you’d be off the hook if the dangerous condition was obvious when you sold it, or if you traded the car in at a dealership.

What can you do to protect yourself? I doubt that your insurance covers it — at least auto policies end when the vehicle is sold, and I’d be surprised if a standard homeowners policy wouldn’t work the same way. There’s no way to get a release in advance from everyone who might be hurt by breakdowns of your former stuff while it’s in the hands of future owners whom you don’t even know.

(Jack Bog’s Blog, Oct. 21; Bailey v. Lewis Farm, Inc., Oregon Supreme Court, Oct. 11). P.S. Corrected procedural posture of case following reader comment.

• L.A. city council debating settlement of Tennie Pierce (firehouse dog food prank) case, apparently for several million [AP/Mercury-News; earlier]


• Lerach said to accept jail term of 2 years or less in plea deal, won’t testify against former partners [Washington Post, Point of Law; earlier]


• No shock, Sherlock: divorce cases said to have the highest rate of perjury in open court [Oregonian via WSJ law blog]


• Things you might not have known about the Duke/Nifong case unless you’ve read the new Stuart Taylor/K.C. Johnson book [Leo, Minding the Campus; Thernstrom]


• Take a wild guess as to one reason doctors are reluctant to communicate with their patients via email, despite the many potential advantages [Medical Economics via KevinMD]


• Latest suit charging casino should have recognized customer’s gambling addiction [Indianapolis Star; earlier]


• One brother kills the other in anger in the North Carolina woods, both members of a logging crew; ruled compensable under workers’ comp [Coppelman]


• My client, the dog: another trend piece on steady expansion of animal law [Boston Globe]


• Prankster gets American U. alumni mag to print erroneous report of two classmates as being gay. Defamatory? [New York Post, Smoking Gun; Julie Hilden a while back]


• Trial begins in Kentucky of civil suit arising from the string of McDonald’s strip-search hoaxes Ted wrote about last year [OnPoint News, Louisville C-J/USA Today]


• Woman who nearly froze to death after a night of drinking sues city, emergency personnel and taxi driver who dropped her at home [five years ago on Overlawyered]

• Criminal charges dropped against Oregon 13-year-olds over fanny-swatting in school corridors [CBSNews.com, Malkin, KGW.com and AP; earlier]


• Elasticity of “medical error” concept: Medicare will stop paying hospitals for treatment of “reasonably preventable” injuries that happen in hospitals, such as patient falls — we all know those are preventable given enough duct tape [NCPA, Right Side of the Rainbow; and before assuming that bed sores invariably result from negligent care, read this](more: Turkewitz)


• Yale University Press beats back libel suit in California court by Muslim charity over allegations in book scrutinizing terrorist group Hamas [Zincavage]


• Law firms, including Philadelphia’s senatorially connected Kline & Specter, already advertising for clients following Mattel toy recall [Childs]


• First class action against RIAA over its scattershot anticopying suit campaign [P2PNet]


• Four Oklahoma inmates claim copyright to their own names, demand millions from warden for using those names without permission, then things really start getting wild [UK Telegraph and TechDirt via Coleman]


• UCLA’s Lynn LoPucki, scourge of corporate bankruptcy bar, has another study out documenting soaring fees [WSJ Law Blog]


• Man who knifed school headmaster to death is expected to win right to remain in Britain on grounds deporting him would violate his human rights [Telegraph]


• Among targets of zero tolerance bans: jingle of ice cream trucks in NYC, screaming on Sacramento rollercoasters [ABCNews.com]


• Does California antidiscrimination law require doctors to provide artificial insemination to lesbian client against religious scruples? [The Recorder]


• Alabama tobacco farmers got $500,000 from national tobacco settlement, though fewer than 300 acres of tobacco are grown in Alabama [five years ago on Overlawyered]

• Patent suit by firm called Parallel Processing demands that all Sony PlayStation 3 consoles be impounded and destroyed [ArsTechnica, Slashdot]


• It’s not all going to Edwards: a scorecard on presidential campaigns’ law-firm fundraising [National Law Journal]


• Link roundup on Oregon criminal charges against fanny-swatting 13-year-olds [Right Side of the Rainbow; earlier]


• New at Point of Law: Spitzenfreude is mirth derived from ethical pratfall of NY’s moralist governor; Florida’s insurance fiasco; more on those “medical” bankruptcies; Alabama judge appoints special prosecutor in Dickie Scruggs affair after feds take a pass; and much more;


• One hurdle for court action by survivors of slain Middle East contractors against Blackwater: the four men had signed contracts agreeing not to sue their employer [Henley; W$J]


• Saying swim diaper should suffice, Akron mom and “fair housing” advocates sue condo that barred pre-potty-trained kids from pool [AP/FoxNews.com]


• Not only are those punitive new Virginia traffic laws unpopular, but a judge has just declared them unconstitutional as well [Washington Post; earlier here and here]


• Pepsi settles class actions over minute quantities of benzene that might form when soft drink ingredients combine [Reuters, Food Navigator, Journal-News]


• U.K. considers making it easier for unmarried cohabitators to go to court when their households break up [Times Online]


• Did a securities fraudster use protracted depositions to browbeat his victims? [Salt Lake City Tribune]


• “Victims’ Rights Amendment” to U.S. Constitution, promoted as giving crime victims a fairer shake, is bad idea for lots of reasons [eight years ago on Overlawyered]

Chad M. Doherty wasn’t married to Christy M. Wizner when their daughter was born in April 2004, but he nonetheless wanted the child to bear the surname Doherty and objected to the mother’s bestowing on her instead the surname Wizner. Both sides lawyered up and have been duking it out in court ever since. A trial judge ruled in the father’s favor, finding it of significance that Wizner was the name of the mother’s former spouse but not the mother’s birth surname. The Oregon Court of Appeals, invoking an 11-factor balancing test, reversed the ruling and allowed the mother’s choice to prevail. The mother says she wants the girl to bear the same surname as her older siblings. (Ashbel S. Green, “For a baby name with appeal, try appeals court”, The Oregonian, Jan. 1).

P.S. I see J. Craig Williams got this first (Jan. 3)(via Blawg Review #90 at Minor Wisdom).

In today’s WaPo, Spencer Kim, the father of James Kim, the father of two who died of hypothermia after his family became lost in an Oregon park, notes the effect that privacy laws and liability concerns had on the search:

Congress should change the law so that most recent credit card and phone-use records can be immediately released to the next of kin in the event of an emergency. Privacy laws are important to safeguard personal information, but there needs to be provision for exceptional access to information by relatives when it is critical to a family member’s survival.

Four days passed before we even knew James and his family were missing. But because my family was unable to confirm credit card and phone-use information until days after their absence was discovered, the start of the search was needlessly delayed. Precious time and a precious life were lost. Privacy concerns kept both the hotel where James and his family last stayed and the restaurant where they last dined from sharing credit card records, thus denying us for days important clues that would have helped narrow the initial search area.

It’s not going to wind up helping patients, argue two letter writers in Portland’s Oregonian (Dec. 1)(via KevinMD). Leonard Berlin, M.D., thinks providers do not always give the public a realistic view of the benefits and limitations of cancer screening (”A Manifesto for Truth-in-Mammography Advertising”, Imaging Economics, Nov. 2004).

One reads a lot about how a conservative judiciary has supposedly pulled the teeth of the Americans with Disabilities Act. Particularly noteworthy is a series of decisions in which the Supreme Court, faced with employment claims in which safety might be at risk (from commercial pilots with poor vision, for example), ruled against the employee’s claim and widened the effective range of employer discretion.

No doubt there is some truth to the idea that the high court’s employment decisions have curbed the ADA’s expansionary momentum. But then there are the cases like that of Dark v. Curry County, decided by the Ninth Circuit this summer. Robert Dark, an epileptic from youth, operated heavy construction equipment for the road department of an Oregon county. One morning he experienced an “aura”, a sensation which often presages a coming seizure, but did not inform anyone at the job about it when he reported for work. Later that day, he did in fact experience a seizure. An accident was avoided because a co-worker managed to seize control of the machine Dark was operating before it could do any damage.

The county terminated Dark, with emphatic language about how his medical condition prevented him from safely accomplishing his duties. A lower court agreed with the county, but a three-judge Ninth Circuit panel reinstated his suit. Its key points: the county did not adequately give consideration to reassigning Dark to light-duty positions, in particular those that it might have anticipated would “become available within a reasonable period” following his removal from the machinery job, even though the jobs were not in fact open at the time. And although the county placed considerable weight during the dispute on Dark’s misconduct in not informing his supervisors or co-workers about his indications of a possible impending seizure, it did not cite that reason at the time in dismissing Dark, instead (and more diplomatically) reciting the safety concerns of a prospective nature.

The case (available at FindLaw here in PDF format) sparked considerable discussion on the web, including Phillip J. Griego (to whom the above discussion is indebted), HRHero/M. Lee Smith, and Proskauer Rose. Robert Loblaw at Appellate Decisions writes (Jul. 6):

The ADA often places employers in a difficult position, since they have knowledge of the dangers of employing a particular individual but cannot always take steps to address those dangers. Indeed, this case is similar to last year’s Pacific Bell case, which involved a home repair technician who had spent time in a mental hospital after being found not guilty of attempted murder by reason of insanity (my coverage here). As in that case, Curry County would probably be found liable in tort if Dark injured somebody while on the job, due to its knowledge of his condition. Indeed, Curry County is even more likely to be on the hook if Dark has another seizure that results in injury, since he already had one near-miss on the job. But as far as the ADA is concerned, Curry County’s potential tort liability is simply not relevant.

And before assuming that this is just one of those wacky Ninth Circuit cases, note (as does Ross Runkel) that the author of the opinion is the highly regarded conservative jurist Diarmuid O’Scannlain. Maybe it just is an extreme law, with no judicial activism needed to get extreme results out of it.

I was a guest Wednesday afternoon on Lars Larson’s nationwide talk show, based at Portland Oregon’s KXL, to discuss federal judge James Robertson’s ruling ordering the U.S. Treasury to redesign U.S. paper money so as not to exclude blind users from reasonable access (see yesterday’s post). And at 10 a.m. Mountain Standard Time this morning (Thursday) I’m scheduled to join Mike Rosen on his popular show based at Denver’s KOA, on the same topic.

Reader Greg Dwyer of Oregon sends the following:

Yours is the website I have been continuously reading the longest and the one I most identify with. So I figured I’d tell you something. I recently celebrated the birth of my first son, Michael Gabriel. And he will not go through life padded in Nerf.

He is going to play dodge ball and tag.

I will let him eat trans fats and foie gras.

He can play Grand Theft Auto when he is old enough.

He will know that medicine is a risky business that doesn’t always provide perfect cures.

He is going to be able to shoot a gun well by the time he is 21 and I will take him to get his gun license myself.

Most of all, I will teach him that life is what you make of it and if he fails at something, he will have no one to blame but himself.

Loving father and non-victicrat,

Greg Dwyer

In foie gras; Grand Theft Auto; Oregon; personal responsibility

• Bill Moyers calls his lawyers. [Adler @ Volokh]
• Jim Copland: 9/11 suits against New York City over emergency recovery work “simply wrong.” [New York Post]
• Did the PSLRA help shareholders? [Point of Law]
• 32-year-old Oregon grocery store employee sues, claiming that Green Day stole his never-recorded high-school writings. [Above the Law]
• Does one assume the risk of a broken nose if one agrees to a sparring match at a karate school? [TortsProf]
• “At KFC (né Kentucky Fried Chicken), the chicken is still fried. At Altria (né Philip Morris), the cigarettes still cause cancer. And at the American Association for Justice, some will say that the trial lawyers are still chasing ambulances.” [New York Times via Point of Law]
• More on global warming lawsuits. [Point of Law]
• Dahlia Lithwick, wrong again when bashing conservatives? Quelle surprise! [Ponnuru @ Bench Memos; see also Kaus] Earlier: POL Oct. 6 and links therein. Best commentary on New Jersey gay marriage decision is at Volokh.
• Michael Dimino asks for examples of frivolous lawsuits. What’s the over-under until it turns into a debate over the McDonald’s coffee case? [Prawfsblawg]
• Unintended consequences of campaign finance reform. [Zywicki @ Volokh; Washington Times]
• Who’s your least favorite Supreme Court justice? [Above the Law]
• More on Borat and the law. [Slate] Earlier on OL: Dec. 9 and links therein.
• “Thrilled Juror Feels Like Murder Trial Being Put On Just For Her.” [Onion]
• A revealing post by the Milberg Weiss Fellow at DMI: companies make “too much” profit. I respond: “Again, if you really think the problem is that insurance companies charge ‘too much’ and make ‘too much’ money, then the profitable solution is to take advantage of this opportunity and open a competing insurance company that charges less instead of whining about it. (Or, you could use a fraction of the profits to hire a dozen bloggers and thus solve the problem at the same time keeping the whining constant.)” [Dugger]

“While finding a place to relieve himself, plaintiff walked off the unguarded and unprotected cliff falling approximately 20 to 30 feet to the creek bed below,” reads the complaint. And so Jerry Mersereau is suing the United States of America, which maintains the Mt. Hood National Forest in Oregon where the mishap occurred. (Noelle Crombie, The Oregonian, Aug. 4).