• Watch where you click: “Kentucky (secretly) commandeers world’s most popular gambling sites” [The Register/OUT-LAW]
• Erin Brockovich enlists as pitchwoman for NYC tort firm Weitz & Luxenberg [PoL roundup]
• U.K.: “Millionaire Claims Ghosts Caused Him to Flee His Mortgage, I Mean Mansion” [Lowering the Bar]
• Prosecution of Lori Drew (MySpace imposture followed by victim’s suicide) a “case study in overcriminalization” [Andrew Grossman, Heritage; earlier; some other resources on overcriminalization here, here, and here]
• Exonerated Marine plans to sue Rep. John Murtha for defamation [Pittsburgh Post-Gazette]
• Snooping on jurors’ online profiles? “Everything is fair game” since “this is war”, says one jury consultant [L.A. Times; earlier]
• Allentown, Pa. attorney John Karoly, known for police-brutality suits, indicted on charges of forging will to obtain large chunk of his brother’s estate; “Charged with the same offenses are J.P. Karoly, 28, who is John Karoly’s son, and John J. Shane, 72, who has served as an expert medical witness in some of John Karoly’s cases.” [Express-Times, AP, Legal Intelligencer]
• School safety: “What do the teachers think they might do with the Hula-Hoop, choke on it?” [Betsy Hart, Chicago Sun-Times/Common Good]

Longtime readers may recall (Oct. 24-25, 2001) what we described as the “unusually bare-knuckled” tactics, “even by Philadelphia standards”, of the Philly political machine when a business-oriented advocacy group called Pennsylvania Law Watch organized with a plan to issue ratings of judges statewide. We quoted the Philadelphia Daily News at the time:

“State Sen. Vincent Fumo prompted some controversy last month when he told the Philadelphia Chamber of Commerce that anyone who helped [Republican judge/candidate Michael] Eakin by donating to Pennsylvania Law Watch ’should expect to be arrested,’ according to a witness at the chamber meeting, who also said Fumo mentioned Richard Sprague as a member of a team of attorneys ready for action.”

Although no one was literally arrested, three local Democratic politicians proceeded to file a suit against Pennsylvania Law Watch seeking “a freeze on Law Watch’s assets, the right to go through its books, an injunction against its activities, and more.” Almost before the episode got any national attention, the case settled, “with Law Watch agreeing with Pennsylvania Democrats that ‘it would not attempt to influence the statewide judicial elections through advertising, ‘push polling’ or any other kind of communication with the public’”.

Now, six years later, and with no direct relation to the above, longtime powerbroker and State Sen. Fumo is going to trial in federal court “on charges he used $3.5 million in what he called ‘OPM’ _ other people’s money _ to keep his political machine well-oiled and fund a high life that included three vacation homes and heated sidewalks outside his mansion. Jury selection is expected to last a week, and the trial three months.” [AP/Wilkes-Barre Times-Leader, AP/York Daily Record, Philadelphia Daily News, Pittsburgh Tribune-Review].

In 1997, Erie, Pa. hired its first female firefighter. Nearly a decade later, she was quietly fired after setting fire to her father’s house as part of a suicide attempt.  In fact, the Erie Civil Service Commission wrote at the time that: “Her setting a fire … is the single most significant act a fire fighter may not commit.  The act of establishing a fire in a residence is wholly incompatible with the role of the fire fighter, despite the mitigating circumstances of [her] psychological state.”  Now, she has brought her appeal public in a filing in local courts earlier this year. (GoErie.com, 3/24)

Entrepreneurial lawyers have launched a thriving industry of class actions demanding statutory damages of $100-$1000 per violation (times the number of customers) from businesses that continue printing too much credit card information on receipts despite a federal law requiring them to stop that practice, the Fair and Accurate Credit Transaction Act (FACTA). Kings Family Restaurants, a Western Pennsylvania chain, has agreed to distribute coupons, as well as very non-couponic attorney’s fees, in one such case (WSJ law blog, Apr. 25). “Coffee Bean Tea & Leaf, a Los Angeles-based coffee-shop chain, agreed to give customers free drinks and pay customer lawyers $110,000.” On the other hand, judges have not always gone along with demands for class certification: “Costco, the largest U.S. warehouse-club chain, might have to pay as much as $17 billion without having harmed anyone, U.S. District Judge A. Howard Matz said in January, refusing to certify a class action. That’s 15 times the Issaquah, Washington-based company’s 2007 profit.” (Cynthia Cotts, “Costco, Kinko’s Battle Trial Lawyers Over Credit-Card Receipts”, Bloomberg, Apr. 5). One tactic, used in suits against U-Haul and In-N-Out Burger, is to limit the scope of the class action to a few stores or locations, on the theory that a court that might not let a class action with “annihilating” damages go forward might yet approve one inflicting a nonfatal though large shark-bite. (Matthew Hirsch, “Plaintiffs Attorneys Think Globally, Act Locally in Financial Privacy Cases”, The Recorder, Aug. 27, 2007). Among the 300+ defendants in receipt suits is 1-800-FLOWERS, whose attorney David E. Block expresses outrage:

“In 22 years, I have never had a plaintiff sit across the table from me and say, ‘I have no damages. My identity hasn’t been stolen. I’m just bringing this lawsuit because I can,’” said Block of the Miami office of Jackson Lewis. “There’s something inherently wrong with a lawsuit where the plaintiff has no injury.”

(Tresa Baldas, “Landslide of Suits Over Data on Receipts”, National Law Journal, Apr. 7). “Receipts” needn’t actually be printed out in a shop or public place to trigger the act; those that flash on a customer’s home computer screen count too. (WSJ law blog, Apr. 8). Our earlier coverage: May 10 and Oct. 31, 2007, and Apr. 4 of this year.

• Examiner newspaper begins series on how Milberg Weiss used nonprofit foundation to project its clout among judges, academics, influentials [Institute for Law & Economic Policy, three-parter]
• Judge Canute, or just reporter’s awkward wording? Australian jurist with great eyeglasses bans screening of TV drama in state of Victoria; “Under the order, all internet material relating to the series is also banned.” [Herald Sun] (More explanation on the court order: The Australian).
• Times Square’s Naked Cowboy sues over M & M candy ad playing off his image [NY Post]
• Bite mark testimony makes another chapter in catalogue of dubious prosecutorial forensics [Folo's NMC on two Mississippi Innocence Project cases]
• Update: Pennsylvania court upholds disputed fees in Kia-brake class action [Legal Intelligencer; earlier]
• Best not take McCain too literally when he says he’d demand that judicial nominees have a proven record on Constitutional interpretation [Beldar]
• Expert witness coaching …. by the Royal Society for the Prevention of Cruelty to Animals? [Nordberg; earlier]
• For some reason many Boston residents feel menaced by city’s plan for police to go door to door asking “voluntary,” “friendly” permission to search premises for guns [Globe]
• Lots and lots of publications print Mohammed cartoon in solidarity with Danish cartoonist and assassination-plot target Kurt Westergaard [CNN; Malkin]
• Calgary Muslim leader withdraws official complaint against Ezra Levant over his publication of Mohammed cartoons [National Post; earlier]
• Steyn, relatedly: critics dragging my book before Canadian tribunals wish not to “start a debate”, but to cut one off [National Post]

• Remember those class actions against tech manufacturers for allegedly misstating the capacity of hard drives? Another one just settled, with buyers in for coupons and discounts, lawyers for $1.78 million [The Register, Cho v. Seagate Technologies settlement website]
• Watch what you say about lawyers, cont’d: Erie, Pa. paper thus far has fended off libel suit by Pittsburgh attorney over coverage of his run-ins with authorities over client treatment [Post-Gazette via Ambrogi]
• New at Point of Law: suicide risk of anticonvulsants?; Ohio AG Dann rebuked on foreclosure activism; simultaneous asbestosis and silicosis happens all the time at some law firms; Bush nominates an ATLA/AAJ member to a federal judgeship; and much more.
• Has a prominent investor with close ties to President Bush set up shop as an East Texas patent troll? [Troll Tracker, The Recorder]
• Embattled Tom Lakin and Lakin Law Firm, once high on the Madison County heap, fight to overturn $3.7 million legal-malpractice judgment [MC Record]
• Brent Coon suing former colleagues at Beaumont’s Provost Umphrey over division of billions in tobacco-fee booty [Texas Lawyer]
• UK judge criticizes “barking mad” human rights rules after prisoner refuses to leave his “comfy” jail cell to attend hearing [Times Online, Telegraph]
• “Six years after Enron, executives face greater risks—but investors are no safer.” [Gelinas/City Journal]
• United Farm Workers union threatens to sue over unflattering coverage [two years ago on Overlawyered]

The Simplicity Manufacturing riding mower, manufactured in 1994, includes the following warning, almost so obvious and over-the-top as to be wacky:

(I) DO NOT MOW WHEN CHILDREN OR OTHERS ARE AROUND; (ii) NEVER CARRY CHILDREN; (iii) LOOK DOWN AND BEHIND BEFORE AND WHILE BACKING.

Moreover, the manual includes the following warnings:

(I) Tragic accidents can occur if the operator is not alert to the presence of children. Children are often attracted to the unit and the mowing activity. Never assume that children will remain where you last saw them.
(ii) Keep children out of the mowing area and under the watchful care of another responsible adult.
(iii) Be alert and turn unit off if children enter the area.
(iv) Before and when backing, look behind and down for small children.

Nevertheless, on May 7, 2003, in Honeybrook, Pennsylvania, Melvin Shoff backed up his riding mower and managed to run over the foot of four-year-old Ashley Berrier, resulting in its amputation. This is, Ashley’s parents complain in a lawsuit, the fault of Simplicity Manufacturing for not doing more to idiot-proof the mower. The federal district court threw out the suit based on a 2003 Pennsylvania Supreme Court precedent (involving a two-year-old and a lighter), but the Third Circuit, twelve months after the case was argued, has certified the question to the Supreme Court whether they’ve changed their mind in the last five years. The Court appears to have been swayed by the American Law Institute’s “Restatement” proposal to expand product-liability law in this area. (Berrier v. Simplicity Manufacturing (3d Cir. Jan. 17, 2008) via Steenson; Legal Intelligencer).

Mary Jo Pletz, who lives north of Allentown, Pa., made a very successful time of it accepting people’s consigned items and selling them on eBay. Now the state of Pennsylvania is proceeding against her for not taking out an auctioneer’s license, though it denies that it is seeking the $10 million in fines that her lawyer alleges. (Bob Fernandez, “Pennsylvania takes on online auctions”, Philadelphia Inquirer, Jan. 30). Earlier similarly: Feb. 26, 2006 (California); Oct. 13, 2005 (North Dakota); Mar. 21, 2005 (Ohio).

• Lawyer for Mothers Against Drunk Driving: better not call yourself Mothers Against Anything Else without our say-so [Phoenix New Times]
• Ohio insurer agrees to refund $51 million in premiums, but it’s a mutual, so money’s more or less moving from customers’ left to right pockets — except for a big chunk payable to charity, and $16 million to you-know-who [Business First of Columbus; Grange Mutual Casualty]
• Sources say Judge Pearson, of pants suit fame, isn’t getting reappointed to his D.C. administrative law judge post [WaPo]
• Between tighter safety rules and rising liability costs, more British towns are having to do without Christmas light displays [Telegraph]
• So strong are the incentives to settle class-action securities suits that only four have been tried to a verdict in past twelve years [WSJ law blog]. More: D&O Diary.
• It’s so cute when a family’s small kids all max out at exactly the same $2,300 donation to a candidate, like when they dress in matching outfits or something [WaPo via Althouse]
• Idea of SueEasy.com website for potential injury plaintiffs [Oct. 19] deemed “incredibly stupid” [Turkewitz]
• New at Point of Law: med-mal reports from Texas and Colorado; Lynne-Stewart-at-Hofstra wrap-up (more); immune to reason on vaccines; turning tax informants into bounty-hunters?; and much more;
• $800,000 race-bias suit filed after restaurant declines to provide free extra lemons with water [Madison County Record]
• Settling disabled-rights suit, biggest card banking network agrees to install voice-guidance systems on 30,000 ATMs to assist blind customers [NFB]
• Think twice before publishing “ratings” of Pennsylvania judges [six years ago on Overlawyered]

• Picture of farmer with goose appears on greeting card, he wants $7.5 million [Roanoke Times; earlier]


• More class actions filed over Apple iPhone [Ars Technica on roaming and battery claims, O'Grady's PowerPage, iPhoneWorld; earlier]


• L.A. Times quotes attorney Stephen Yagman on prison overcrowding, but forgets to mention that he was lately convicted of thirteen felonies [Patterico]


• Bad idea watch: compulsory national service [Somin @ Volokh]


• Doing well representing the little guy: Gerry Spence lists his Wyoming residence for sale at $35 million [WSJ/Chicago Daily Herald]


• “Appropriate”, not “perfect”, justice needed: “We simply have to stop killing litigants with kindness,” says chief judge of Australia’s largest state [The Australian]


• Toddler killed after wandering into heavy traffic, trucker should have been more on guard against such a thing happening [Salt Lake Tribune]


• Pennsylvania pro se litigant sues Google, says it spells his social security number upside down [Ambrogi] More: Coyote says “Up next, the owner of Social Security number 71077345 sues Shell Oil for the same reason.”


• Once billed as “King of Torts”, Miami asbestos lawyer faces fifteen years behind bars for stealing $13 million from clients [Sun-Sentinel]


• Groom sues bride, saying she took the ring and presents and never got the wedding paperwork straightened out leaving them legally unmarried [ClickOnDetroit]


• Surgical resident on the hook for $23 million in Wisconsin case; she was the only one of the docs involved not covered by damage limits [Journal Sentinel via KevinMD]

According to an indictment handed down by a federal grand jury, Erie, Pa.-based state appellate judge Michael T. Joyce, a ten-year Republican veteran of the bench,

received $440,000 in settlements for injuries he claimed “affected his professional and personal life in a very significant way” after an SUV rear-ended his state-leased Mercedes Benz at a traffic light in Erie.

Joyce claimed the accident made him unable to play golf, scuba dive or exercise. He also claimed the injuries prevented him from pursuing higher judicial office, according to the indictment.

The judge complained of constant neck and back pain, headaches, difficulty sleeping, anxiety and short-term memory loss, according to the indictment. He claimed he was in such pain from May to July 2002 that he could not play a round of golf or hold a cup of coffee in his right hand, the indictment said.

During the same period Joyce made these claims, he played several rounds of golf in Jamaica, Florida, New York and Pennsylvania, went scuba diving in Jamaica and renewed his diving instructor’s certificate, prosecutors said.

The indictment also alleges Joyce used some of the settlement money to buy a Harley-Davidson motorcycle, a share in a single-engine Cessna airplane, property in Millcreek Township, Pa., and to pay down a personal line of credit.

(Peter Hall and Asher Hawkins, “Federal Indictment Looms Over Pa. Superior Court Judge’s Retention Race”, Legal Intelligencer, Aug. 17).

At first Joyce vowed to hold onto his seat, but after a public outcry, and a quick move by the state supreme court to suspend him from his duties pending resolution of the charges, he agreed not to stand for re-election in November. (”Indicted Superior Court Judge” (editorial), Philadelphia Inquirer, Aug. 22; Paula Reed Ward, “Indicted judge won’t seek retention”, Pittsburgh Post-Gazette, Aug. 21; “The Joyce indictment: A matter of integrity”, Pittsburgh Tribune-Review, Aug. 21).

“An en banc Superior Court panel has ordered a new trial in a case in which a western Pennsylvania trial judge awarded $102.7 million in 2003 to one of the owners of a property company identified as being at the center of a mid-1980s Ponzi scheme.” Two couples, Thomas and Barbara Reilly and Edward and Karen Krall, each jointly owned half the stock in Canterbury Village Inc., a property development that was oversold in what was later described as a Ponzi scheme that bilked thousands of investors. When Canterbury Village landed in bankruptcy proceedings, an Ernst & Young predecessor was called in to organize the books, which were in great disarray. According to a judge’s footnote, “the male halves of Canterbury Village’s two couple-owners pleaded guilty to criminal charges stemming from the Ponzi scheme.” Mr. Reilly served about four years on fraud and tax evasion charges. The eventual reorganization plan approved by the court barred the Reillys and Kralls from any stake in the emerging business entity.

The Reillys then proceeded to sue Ernst & Young, alleging that its report had contained inaccuracies which had injured their business interests. When the Reillys filed requests for admissions in support of their allegations, Ernst first missed a deadline to respond and then, granted a do-over, omitted to include a required verification from its lawyer. The judge in response deemed Ernst to have agreed to all the requested admissions — in effect, preventing the firm from contesting the key elements of the Reillys’ case. A verdict was then entered on behalf of Barbara Reilly that “included $34 million for her ownership interest in Canterbury Village — half of the $68 million appraised value — plus an additional $50,945,222 in interest, based on a rate of 6 percent per annum beginning in 1986, for a total compensatory damage award of $84,018,989. Yeager also awarded her $18.17 million in punitive damages for a total verdict of $102,718,989.” The appeals panel has now decided, however, that loss (in effect) of its right to mount a substantive defense is too harsh a sanction for Ernst’s procedural fumblings, so a retrial is on its way. (Asher Hawkins, “Retrial Ordered in Nine-Figure Fraud Case”, Legal Intelligencer, Jul. 27; Karen Kane, “Seven Fields developer faults Ernst & Young in lawsuit”, Pittsburgh Post-Gazette, Aug. 25, 2002).

It’s good to be back at Overlawyered. For those of you not scarred by my prior guest-blogging stint, this is Skip Oliva, director of the anti-antitrust Voluntary Trade Council, regular co-blogger for the Mises Institute, and freelance paralegal-for-hire.

Since antitrust is my bread and butter, I’ll spend some time this week examining the impact of the four antitrust cases decided in the last Supreme Court term. I’ll also discuss some lesser-known antitrust cases that I’ve been following (and in some cases, directly participating in); and maybe I’ll even address some purely non-antitrust legal topics as well.

But let’s start with—you guessed it—an antitrust case. Last week the U.S. Third Circuit Court of Appeals decided Cosmetic Gallery, Inc. v. Schoeheman Corporation (download PDF), one of the first appellate decisions that relies on the Supreme Court’s May decision in Bell Atlantic v. Twombly. In Twombly, a 7-2 court held that a complaint alleging a conspiracy to restrain trade under Section 1 of the Sherman Act required more than “an allegation of parallel conduct and a bare assertion of conspiracy”; there must be “enough factual matter (taken as true) to suggest that an agreement was made.”

In the Third Circuit case, a New Jersey company that operates hair salons and retails related hair care products (Cosmetic Gallery) sued a Pennsylvania distributor of said products (Schoeneman). Specifically, the issue is “salon-only” products that are normally sold, as the name suggests, only through salons. Distributors like Schoeneman agree to manufacturers’ restrictions on the sale of these products to, according to the Third Circuit, “increase the cachet and prestige” of the products.

Continue Reading »

• Despite seeming majority support in both houses, conference committee on the Hill drops protection against lawsuits for “John Does” who report suspicious security behavior to authorities [PowerLine, Malkin; see May 11, etc.]


• U.K. town advises holders of allotment gardens: you could be liable if trespasser gets hurt vandalizing your trellises [Gloucestershire Echo; Cheltenham, Prestbury, etc.]


• School groundskeeper fired for illiteracy sues under ADA; suit’s future may depend on whether he can allege underlying predisposition such as dyslexia [St. Louis Post-Dispatch, StLRecruiting]


• Large Pakistan bank should pay for my husband’s murder, says Mariane Pearl in lawsuit [NYSun]


• Tell it to the EEOC, bud: Pennsylvania survey of law firm “diversity” finds plaintiff’s firms lag well behind their business/defense counterparts when it comes to hiring minorities [Legal Intelligencer first and second pieces]


• Spare a tear for Gov. Spitzer, never realized public life would be such a rough and tumble affair [Kirkendall]


• Trail of bogus auto accidents and “runners” leads to West Orange, N.J. lawyer and his law firm, say prosecutors [NJLJ; related New Jersey report on insurance fraud, PDF]


• I’m interviewed re: the Giuliani announcement [Paul Mirengoff @ PowerLine] and publicity in National Journal is nice too [Blog-O-Meter]


• Two Australian grave owners sue for damages over loss of feng shui [Melbourne Age]


• You have to let me use your bathroom, I’ve got a note from my doctor [Robert Guest on Texas legislation]


• New at Point of Law: University of Alberta lawprof Moin Yahya is guestblogging this week on Conrad Black trial, extraterritoriality, antitrust, etc.


• Quadriplegic sues Florida strip club under ADA because its lap dance room not wheelchair accessible [five years ago on Overlawyered]

Hierarchical government a pain? Separation of powers getting you down? Not a problem! Not if you’d rather be in Philadelphia:

Two Philadelphia City Council members plan to file suit against the state House and Senate Wednesday for preventing the city from passing more restrictive gun laws.

Council members Donna Reed Miller and Darrell Clarke called the city’s surging homicide rate in part a “state-created danger.”

Lawmakers have tied the city’s hands by not giving it the authority to limit gun purchases to one a month and require lost or stolen guns to be reported, according to Miller.

I’m sure the city does feel bad that it can’t pass more laws to make it feel good about the fact that its residents have turned America’s first capital into a shooting gallery… mm, like its present capital. But that is the fool’s perspective; for see how the state is even described — in its role in actually arrogating to itself the right to set policies for, er, the state — not as a sort accessory to crime, or, switching to civil liablity, a but-for cause or even a proximate cause. No, homicide in Brotherlovopolis are a “state-created danger”! Only a sage who merits a seat on the Philadelphia City Council can see these murders committed by carbon-based entities in Philadelphia for what they are: The product of passive, robotic mayhem-slaves of the blood-lusting Commonwealth of Pennsylvania, doing its cynically William Penn-garbed bidding and killing! Killing! Killing!

Quaker State indeed.

Getting wide exposure on YouTube, and providing fodder for Lou Dobbs:

The video shows attorneys for Cohen & Grigsby, one of the largest law firms in Pittsburgh, explaining at a conference on immigration how to obey laws that require Americans be given top priority for jobs while still ensuring foreigners are hired.

“The goal here of course is to meet the requirements, number one, but also do so as inexpensively as possible, keeping in mind our goal. And our goal is clearly not to find a qualified and interested U.S. worker,” Lawrence Lebowitz, the firm’s vice president of marketing, told the audience in May.

(”Pa. law firm’s immigration talk hits YouTube; U.S. senator demands investigation”, AP/Arizona Star, Jun. 23; Sister Toldjah; Doug Ross). More: Kim’s Play Place says the lawyers were serving their clients’ legitimate interests and that if they can arrange compliance with the letter of an irrational law there’s no reason for them to show allegiance to its claimed spirit. Further: Gina Passarella, “Immigration Law Seminar Generates Unwanted Publicity for Firm”, Legal Intelligencer, Jun. 25 (& welcome Opinionator readers).

WashingtonPost.com’s “Think Tank Town” feature has a symposium on the policy implications of the Virginia Tech massacre, including contributions from Ted on fear of litigation and from me on the legal constraints on universities faced with problem students, as well as from Jim Copland (Point of Law, Manhattan Institute) on gun control.

This morning’s New York Times (Apr. 19) includes a must-read article by Tamar Lewin spelling out in more detail the problems I refer to in my short commentary. Writes Lewin:

Federal privacy and antidiscrimination laws restrict how universities can deal with students who have mental health problems.

For the most part, universities cannot tell parents about their children’s problems without the student’s consent. They cannot release any information in a student’s medical record without consent. And they cannot put students on involuntary medical leave, just because they develop a serious mental illness….

Universities can find themselves in a double bind. On the one hand, they may be liable if they fail to prevent a suicide or murder. After the death in 2000 of Elizabeth H. Shin, a student at the Massachusetts Institute of Technology who had written several suicide notes and used the university counseling service before setting herself on fire, the Massachusetts Superior Court allowed her parents, who had not been told of her deterioration, to sue administrators for $27.7 million. The case was settled for an undisclosed amount.

On the other hand, universities may be held liable if they do take action to remove a potentially suicidal student. In August, the City University of New York agreed to pay $65,000 to a student who sued after being barred from her dormitory room at Hunter College because she was hospitalized after a suicide attempt.

Also last year, George Washington University reached a confidential settlement in a case charging that it had violated antidiscrimination laws by suspending Jordan Nott, a student who had sought hospitalization for depression….

Last month, Virginia passed a law, the first in the nation, prohibiting public colleges and universities from expelling or punishing students solely for attempting suicide or seeking mental-health treatment for suicidal thoughts.

The article also refers to the role of the Buckley Amendment (FERPA), the HIPAA medical-privacy law, and disabled-rights law, which prohibits universities from inquiring of applicants whether they suffer serious mental illness or have been prescribed psychotropic drugs. Incidentally, the Allegheny College case, in which a Pennsylvania college came under fire for not notifying parents about their son’s suicidal thoughts, was discussed in a W$J article last month: Elizabeth Bernstein, “After a Suicide, Privacy on Trial”, Mar. 24. And Mary Johnson suspects that HIPAA will turn out to have played a role in the calamitous dropping of the ball regarding Cho’s behavior (Apr. 18). More: Raja Mishra and Marcella Bombardieri, “School says its options were few despite his troubling behavior”, Boston Globe, Apr. 19; Ribstein.

And: How well did privacy laws/policies work? Why, just perfectly:

Ms. Norris, who taught Mr. Cho in a 10-student creative writing workshop last fall, was disturbed enough by his writings that she contacted the associate dean of students, Mary Ann Lewis. Ms. Norris said the faculty was instructed to report problem students to Ms. Lewis.

“You go to her to find out if there are any other complaints about a student,” Ms. Norris said, adding that Ms. Lewis had said she had no record of any problem with Mr. Cho despite his long and troubled history at the university.

“I do not know why she would not have that information,” she said. “I just know that she did not have it.”

(Shaila Dewan and Marc Santora, “University Says It Wasn’t Involved in Gunman’s Treatment”, New York Times, Apr. 19). And Barbara Oakley, a professor at Oakland University in Michigan, has an op-ed in today’s Times, recounting her experience with a disturbing student: “It must have seemed far more likely that Rick could sue for being thrown out of school, than that I — or anyone else — could ever be hurt.” (”The Killer in the Lecture Hall”, Apr. 19). The tease-quote from the Times’s editors: “Do universities fear lawsuits more than violent students?”

Hospital X was grossly — if not criminally — negligent, and you ought to award zillions of dollars in punitive damages for their misconduct! Consider this list of sins: this hospital knew that its surgeon was mentally ill. He had been diagnosed with bipolar disorder, and they knew it. He had been locked up in mental institutions at least twice before. The danger here was very real. Don’t let them try to claim they didn’t foresee danger. Why, once when that surgeon was operating on a patient, multiple witnesses will tell you that he “became disoriented during the surgery, forgot the names of certain instruments and at one point appeared to be talking to the wall!” Even after he was treated, two different psychiatrists who evaluated him refused to unequivocally state that he was competent. And they let him continue to operate on vulnerable patients. Without any supervision. Even though they knew he had a history of failing to take his medication.

Well, that would be the summary of my argument to the jury if the surgeon in question botched my poor client’s operation and left him permanently injured. So a hospital would have to be crazy to let this state of affairs go on, right?

Right. Except that when Wyoming Valley Health Care System decided not to take any chances, and refused to let mentally ill surgeon Jonathan Haas operate without supervision, he sued the hospital in federal court for violating the Americans with Disabilities Act. And this week, a Pennsylvania jury awarded $250,000 to Haas for this violation of his rights. That’s the case, even though the Americans with Disabilities Act ostensibly has an exception for situations where employing the disabled person would be a threat to the health or safety of other people.

Haas’s complaint was that since he couldn’t find anybody to supervise him, the hospital’s condition effectively prevented him from acting as a surgeon. (Oddly, once this happened, Haas moved on to a hospital in Minnesota which imposed exactly the same supervisory requirement on him, which he accepted. But neither the judge nor jury found that relevant to the question of whether the requirement was reasonable.)

In short, the hospital had the choice of risking a patient’s life and being sued for malpractice, or restricting the privileges of the surgeon and being sued for discrimination. (And we know that had a patient sued for malpractice, the hospital couldn’t possibly have defended itself by pointing to the requirements of the ADA and saying that it was forced to employ the surgeon.)