In May 2001, Cheryl Jane Hale was driving four children to a sleepover in her 1987 Ford Bronco. She didn’t bother to have the children wear their seat belts, so, when she took her eyes off the road to argue with the backseat passengers, and thus drove off the road and flipped the car, 12-year-old Jesse Branham was thrown from the car and suffered brain damage. A jury in Hampton County, South Carolina (the second jury to be impaneled—the first one was dismissed in a mistrial when it was discovered after two weeks of trial that five of the jurors were former clients of Branham’s lawyers) decided that this was only 45% Hale’s fault, held Ford 55% responsible, which puts Ford entirely on the hook for $31 million in damages.

On Monday, the South Carolina Supreme Court reversed because of prejudicial closing arguments that relied heavily on inadmissible evidence. More importantly for lawyers practicing in South Carolina, the Court adopted “the risk-utility test with its requirement of showing a feasible alternative design.”

How bad of a judicial hellhole is Hampton County? Though Hale was a co-defendant, she cooperated with the plaintiffs throughout the trial in their case against Ford, even sitting at the plaintiffs’ table; but because the judge classified Hale as a co-defendant, it meant that Hale got half of the peremptory challenges of the “defense.” More from Comer; no press coverage that I’ve seen yet. (cross-posted from Point of Law)

Update: Branham v. Ford is a post from Overlawyered - Chronicling the high cost of our legal system

1. West Virginia
2. South Florida
3. Cook County, Ill.
4. Atlantic County, NJ
5. Montgomery and Macon Counties, Ala.
6. Los Angeles County, CA
7. Clark County (Las Vegas), Nev.

The list reflects the views of big-company managers and lawyers as to tort lawsuits; a poll of, say, doctors might result in different nominations (Brooklyn, Bronx, Long Island*, Philadelphia) and one of class-action or patent-infringement defendants would likely produce yet other lists.

ATRA has a supplementary “Watch List”, nicknamed by some of us “Heckholes”, of toasty but not quite infernal jurisdictions, on which it places the Rio Grande Valley and Gulf Coast of Texas, Madison County, Ill., Baltimore, Md., and St. Louis city and county and Jackson County, Mo. It also offers side essays on notable scandals among high-rolling lawyers, trial lawyer-AG alliances, and pro-plaintiff’s-bar lobbying efforts.

Some coverage of the report: Pero, ShopFloor (with this and this on AG alliances), Ambrogi, Genova, CalBizLit (“We’re Number 6! We’re Number 6!), TortsProf, Miller (Baltimore), and Turkewitz (cross-posted from Point of Law; also note this recent post).

* Commenter VMS makes a case that Long Island does not belong on such a list.

ATRA’s “Judicial Hellholes 2008″ is a post from Overlawyered - Chronicling the high cost of our legal system

July 6 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

DANGER: ROTATING BLADES CUT OFF ARMS AND LEGS

· Do not mow when children or others are around.

· Do not mow in reverse.

· Look down and behind before and while backing.

· Never carry children even with blades off.

It also warns:

Using The Reverse Implement Option (RIO)

! CAUTION: Avoid injury! Rotating blades are dangerous. Children or bystanders may be injured by runover and rotating blades. Before backing up, carefully check the area around the machine.

NOTE: Backing up while the mower is engaged is strongly discouraged. The Reverse Implement Option should be used only when operating another attachment or when the operator deems it necessary to reposition the machine with the mower engaged.

1. Stop forward travel.

2. Look behind the machine to be sure there are no bystanders.

Alas, on March 25, 2007, Corey Nicklin didn’t follow the instructions, his three-year-old son Conor Jack Nicklin was behind him, and the warnings came to pass, with fairly gruesome injuries to the boy’s left leg. This is, of course, as a lawsuit filed in St. Clair County court alleges, the fault of John Deere and Home Depot. (Ann Knef, “Home Depot, John Deere named in child’s lawn mower accident suit”, Madison County Record, Jun. 25). The suit alleges that “The subject lawn mower is defectively designed in that it should have been designed in a manner that does not allow for the mower to be operated with its blades moving in reverse.” In other words, because someone might not follow instructions, the rest of us should be deprived of a feature we might want to use. Too, the suit implausibly claims a failure to warn; perhaps the warning label should have specified “Your three-year-old son Conor” rather than just “children.”

Suit: it’s the manufacturer’s fault that I backed a lawn mower over my son is a post from Overlawyered - Chronicling the high cost of our legal system

“As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else’s money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me. ”

– Richard Neely, Justice, West Virginia Supreme Court, The Product Liability Mess at 4

In his latest attack on Overlawyered, Justinian Lane claims that Walter Olson and I have misused this quote, because Justice Neely was being “ironic.”

I’m holding The Product Liability Mess in front of me, and Neely is most certainly not being “ironic”: he is offering a mea culpa. Here’s the full paragraph (emphasis added), to show that it’s not being taken out of context:

The anarchy that current prevails among American state jurisdictions absolutely guarantees politically that no line of any sort will be drawn. After all, I’m not the only appellate judge who wants to sleep at night. As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else’s money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me. ”

And from the very first page:

[U]p to this very moment in my life I have been part of the problem rather than part of the solution. As a state court judge, much of my time is devoted to designing elaborate new ways to make business pay for everyone else’s bad luck.”

And here’s one more quote from pp. 70-72, with Neely talking about a specific West Virginia case, again emphasis added:

From what I know about myself and my colleagues, I have the distinct impression that in a product liability case the vote would have been 3 to 2 the other way, and the whole $10 million judgment would have been sustained. Had a defective Ford automobile killed the little boy, even I would have had none of the enthusiasm for reducing the judgment that I had when the judgment against the defendants would affect business and consumer costs in West Virginia. What do I care about the Ford Motor Company? To my knowledge Ford employs no one in West Virginia in its manufacturing processes…

“The best that I can do, and I do it all the time, is make sure that my own state’s residents get more money out of Michigan than Michigan residents get out of us.”

That, dear readers, is not irony.

Neely goes on to argue for the need for federal preemption to solve the product liability problem to protect the American economy from judges like him. Justinian clearly never read the book before he made his personal attack.

Lane bases his argument on a few ipse dixit sentences from Elizabeth Thornburg’s advocacy piece in the West Virginia Law Review attacking the characterization of West Virginia as a judicial hellhole. Thornburg, whose citations cherry-pick studies favorable to her conclusions, while ignoring those that are not, largely ignores or elides the real reasons why reformers justly call West Virginia a judicial hellhole. For example, her paper does not mention State ex rel. Johnson & Johnson Corp. v. Karl, where two justices of the WV Supreme Court majority expressly adopted Neely’s point of view about redistribution from out-of-state corporations to local doctors, much less the Beck/Frank critique of the West Virginia Supreme Court’s decision in Karl. There are arguments about some anecdotes, but not about others. The paper doesn’t mention Trial Court Rule 26.01, reverse bifurcation in West Virginia, and the appalling violation of due process it creates. Her paper also dishonestly claims that the state’s “medical monitoring” jurisprudence is in the “mainstream,” which is most certainly not true, but is a claim that must be justified to falsify the reformer critique of the state’s justice system.

Lane demands a retraction, but he seems to be the one who needs to make a retraction of his erroneous claims. Given Justinian Lane‘s previous record, we doubt one is forthcoming.

“As long as I am allowed to redistribute wealth…”: was Richard Neely being “ironic”? is a post from Overlawyered - Chronicling the high cost of our legal system

Volkswagen moved to transfer venue to the Dallas Division of the Northern District of Texas (“Dallas Division”). Volkswagen asserted that a transfer was warranted as (1) the Volkswagen Golf was purchased in Dallas County, Texas; (2) the accident occurred on a freeway in Dallas, Texas; (3) Dallas residents witnessed the accident; (4) Dallas police and paramedics responded and took action; (5) a Dallas doctor performed the autopsy; (6) the third-party defendant lives in Dallas County, Texas; (7) none of the plaintiffs live in the Marshall Division; (8) no known party or significant non-party witness lives in the Marshall Division; and (9) none of the facts giving rise to this suit occurred in the Marshall Division.

The district court refused to transfer to the Northern District, VW sought mandamus, and got it on the second try, with the Fifth Circuit ordering transfer. (See also John Council, “5th Circuit Restricts Trial Courts’ Discretion in Venue Motions”, Texas Lawyer, Nov. 5; John Council, “5th Circuit Case Could Reduce Product Liability Caseload in Texas’ Eastern District”, Texas Lawyer, Aug. 7).

In February, however, the Fifth Circuit vacated the decision, and granted en banc rehearing. Argument is Thursday in New Orleans, and the decision will determine whether the Fifth Circuit will tolerate forum shopping in the federal courts. (Michelle Massey, “Appeals court scheduled to hear arguments over forum shopping”, SE Texas Record, May 20). The case is of special importance to the patent bar, given the fact that Marshall, Texas, has become the unlikely capital of United States patent litigation. Blog coverage: PatentlyO, Prior Art.

En banc briefs in 07-40058, In re Volkswagen AG:

• Petitioners (Volkswagen)
• Respondents (plaintiffs)
• Product Liability Advisory Council, amicus on behalf of petitioners
• American Intellectual Property Law Association, amicus on behalf of petitioners
• Railroads, amicus on behalf of petitioners
• Law professors, amicus on behalf of respondents
• Trial lawyers, amicus on behalf of respondents

Department of Strangely Shifting Academic Positions: In December 2007, law professor Georgene Vairo wrote a LexisNexis Expert Commentary on the Volkswagen case explaining its consistency with Supreme Court precedents, and writing

The Fifth Circuit is not alone in permitting the use of mandamus in limited circumstances. For example, in Lemon v. Druffel, 253 F.2d 680 (6th Cir. 1958), a case decided shortly after Congress codified § 1404(a), the Sixth Circuit ruled that mandamus was an appropriate remedy to test a district court’s discretion on a motion to transfer.

In April 2008, she signed on to a brief taking precisely the opposite position, which does not cite Lemon. Curious.

Overlawyered has more on the Eastern District of Texas, and on Judge T. John Ward.

In re Volkswagen en banc argument is a post from Overlawyered - Chronicling the high cost of our legal system

When I started the blog, I did so mainly out of frustration. I was shocked to learn that a huge portion of the tech industry’s patent disputes were with companies that were shells, with little cash and assets other than patents and a desire to litigate, and did not make and had never made any products. Yet when I would search the Internet for information about these putative licensors, I could find nothing. I was frustrated by the lack of information, and also by the vast array of anti-patent-reform bloggers out there, without a voice supporting what I did believe and still believe is meaningful reform.

(For the record, I liked the blog even before they praised me.) Plaintiffs’ attorney Ray Niro had put a bounty on the identity of the Troll Tracker, who had been critical of Niro’s tactics (as have Walter and I). Frenkel is considering shutting down his blog now that he is out of the closet; one hopes someone else picks up the torch, because he was performing a valuable service, to the extent that I had limited my blogging about it because he had the subject-area covered so well.

I missed the debate in November among Dennis Crouch, Michael Smith, and Frenkel on whether the Eastern District of Texas is “waning” as a magnet jurisdiction for patent plaintiffs (May 2006, Dec. 2005, Jan. 2005), or I might have made reference to it in my latest Liability Outlook on patent reform. Frenkel seems to have the best of that debate, and follows up:

Let’s highlight one really outstanding statistic from November: The number of defendants sued in the Eastern District of Texas in November 2007: 244. The number of defendants sued in Los Angeles, San Francisco/Silicon Valley, New York City, Chicago, Delaware, and New Jersey combined in November 2007: 162.

Patent lawyers often seem to be of a different stripe than other lawyers, and there is a similar patent-law-blogging community largely separate from the other law-bloggers. The commenters go mad at Crouch’s blog over the Frenkel revelation because Cisco is a strong patent reform supporter. Elsewhere: IPBiz; TechDailyDose; NetworkWorld; 271Blog; Mises Blog; and the anti-reform Patent Prospector.

Blogs I wish I read more frequently: Patent Troll Tracker is a post from Overlawyered - Chronicling the high cost of our legal system

Judicial Hellholes 2007 is a post from Overlawyered - Chronicling the high cost of our legal system

I can’t imagine why anyone thinks such a study will produce useful results. The study has typical issues, such as the typical anti-reform eliding of what “frivolous” means, ignoring that the state-law definition of “frivolous” differs from the common-sense meaning of the word used by many politicians. Another question asks whether judges have recently presided over cases where compensatory damages awarded were too high, but excludes cases where compensatory damages were required to be reduced by statutory limits, and the authors draw opinions from this intentionally biased question.

But there’s a larger problem with the very nature of the study. Judges who correctly run their courtroom and follow the law are generally not going to have runaway juries, so they are likely to say (and even say correctly) that their juries generally don’t produce outlandish results. The problem requiring reform are judges who are in the pocket of the plaintiffs’ bar, and create judicial hellholes, and let Mikal Watts and Mark Lanier run wild. If such judges thought there was a problem requiring tort reform, they wouldn’t let plaintiffs’ attorneys get away with what they get away with. Most reasonable judges would find it problematic if a plaintiff loaned money to a juror and had phone conversations with them during trial when a jury came back with an implausible multi-million dollar verdict for an overweight 71-year-old man’s second heart attack when he wasn’t even taking Vioxx, but the Starr County judge in Garza v. Merck signed off on the judgment: of course he doesn’t think anything’s wrong with that if he’s polled by professors, but that doesn’t make him correct.

Polling judges in judicial hellholes to find out whether there is a need for legal reform is like polling O.J. Simpson to find out if there’s a problem with domestic violence.

Nevertheless, expect to see the poll widely used by the litigation lobby and their academic water-carriers in upcoming months and years.

Post updated 10:30 PM to clarify nature of questioning.

Survey of Texas judges is a post from Overlawyered - Chronicling the high cost of our legal system

“The Best Little Courthouse in Texas” is a post from Overlawyered - Chronicling the high cost of our legal system