The state of Rhode Island and town of West Warwick, the last major defendants left in the lawsuits over the Station/Great White fire, agreed to throw $10 million apiece into the settlement pot, which now reaches $175 million, to compensate the 200 injured and survivors of the 100 killed in the 2003 blaze. The town of West Warwick, population just under 30,000, is expected to have to borrow heavily to enable its payment; it has a $4 million insurance policy, but defense litigation costs will be deducted before any of that money is made available for the settlement (RedOrbit/ProJo, more, AP/Firefighting News via Childs).

Dozens of private companies named in the suits had settled earlier, including many with peripheral or remote connections to the calamity, such as beer sponsor Anheuser-Busch, which together with a beer distributor agreed to pay $21 million, and radio operator Clear Channel, which paid $22 million. West Warwick will wind up paying much less than that, although its negligent contribution to the disaster (in failing to enforce key provisions of its own fire code) would appear immeasurably greater. Earlier posts here.

Attorneys Thomas R. Bender, Richard O. Faulk, and John S. Gray analyze the Rhode Island Supreme Court ruling in the lead paint case, detailing the history of the case and note the implications for other public-nuisance suits in the global warming and mortgage foreclosure fields.

So AP reports. More details as they become available.

9:43: AP/Boston Globe reports a dramatic rejection of public-nuisance theory, holding the case should’ve been dismissed years ago. Good news that. The Rhode Island Supreme Court decision was unanimous.

5:00: Here is the opinion itself. James Beck has the most comprehensive analysis of the opinion so far; Walter gives thorough background at Point of Law as well as a roundup of other links. The defendants and NAM have released statements; Motley Rice claims they were doing it for the children, which doesn’t explain their self-serving settlement with DuPont or why they asked for a highly inefficient remediation remedy that would have maximized their attorneys’ fees.

Also: Jonathan Turley (who I just learned has a year-old blog with over a thousand posts), who, to his credit, has opposed such lawsuits; OpenMarket; Jane Genova; Publius. Attorney General Patrick Lynch is unhappy about the legal setback to his campaign contributors constituents.

Existing abatement efforts already required of landlords under Rhode Island law mean that lead paint exposure is at an all-time low in the state–evidence that was excluded at trial.

And more: ShopFloor; NFIB.

Sealed Air makes polyethylene foam for packaging material. The Great White plaintiffs allege that polyethylene foam in the soundproofing was part of the reason the Rhode Island Station nightclub fire spread so fast, killing 100–though they have no evidence that Sealed Air manufactured the foam in the club, not to mention the fact that the packing foam was never intended to be used as building material. Not to worry: with joint and several liability in Rhode Island, Sealed Air faced billions of dollars of potential liability because all of the other deep pockets (dozens of defendants ranging from a radio station to four other foam manufacturers to Anheuser-Busch to the bus that transported the band to the concert to a television station that covered the fire) have settled, Sealed Air couldn’t risk being held even 1% liable, especially given that at a trial plaintiffs would have no incentive to blame empty-chair or empty-pocket or settling defendants. Sealed Air will pay $25 million in protection money. (AP; Providence Journal; TortsProf). The miscarriage of justice continues, but the remaining defendants are apparently judgment-proof.

According to professor Tony Sebok, both sides botched the May 15 oral argument (available on webcast) over the multi-billion dollar lead-paint “public nuisance” judgment, but the plaintiffs botched it worse.  Sebok predicts “that the Rhode Island Supreme Court will understand what is at stake in this case, and do the right thing. It will act like a responsible common law court and interpret the doctrine of public nuisance in a principled way—which in this case means drawing the line between tort and public nuisance, and drawing that line in favor of the defendants.” A decision is expected by July 4.

(Disclosure: I purchased stock in Sherwin-Williams and NL Industries shortly after the oral argument.)

Hard-hitting column by Stuart Taylor, Jr. on the destructiveness of the current legal actions

seeking more than $400 billion from companies that did business in South Africa during apartheid, [which] score high on what I call Taylor’s Index of Completely Worthless Lawsuit Indicators:

• The lawsuits will do victims of wrongdoing little or no good.

• They will penalize no human being who has done anything wrong.

• They will deter more conduct that is beneficial than harmful.

• The legal costs and any damages will come at the expense of the general public.

• The lawsuits therefore serve no purpose at all but to enrich lawyers and provide ideological power trips for some judges as well as lawyers.

American Isuzu Motors v. Ntsebeza, recently allowed to go forward, is being led by (among others) class-actioneer and frequent Overlawyered mentionee Michael Hausfeld.

The apartheid lawsuit is one of dozens seeking to pervert the Alien Tort Statute to mulct companies for ordinary commercial conduct in countries accused of human-rights violations. Caterpillar, for example, was sued for selling bulldozers that Israel used to destroy suspected Palestinian terrorists’ homes. (The case was dismissed.) “The American bar is actively soliciting alien plaintiffs” to try out novel theories, State Department legal adviser John Bellinger noted in a recent speech. Because so many federal judges have smiled on such suits, Bellinger added, foreign governments increasingly regard the U.S. judiciary “as something of a rogue actor.”

With added commentary on the Kivalina climate-change class action, Rhode Island lead paint, shareholder litigation, and Lerach, Weiss, and Scruggs. (National Journal, May 17, will rotate off page so catch it now).

• No imprisonment for debt, except when owed to a lawyer? Texas man who didn’t pay $1,750 attorney fee jailed for 30 days [ABA Journal; Jonathan Skero]
• Exploding-bra claim against Victoria’s Secret “does not specify how the injury occurred” [Greenville, S.C. News]
• We’re all set to close on your mortgage refinance, and while we’re at it could I interest you in a class action over courier fees? [Madison County Record]
• So long we elect state court judges, they’ll never escape taint associated with need to campaign [J.D. Hull, What About Clients?]
• Milberg now argues any forfeiture of proceeds from tainted cases should be confined to its actual net profits, not gross fee revenue — would it have let off defendants it sued so easily? [Gerstein, NY Sun]
• Tom Goldstein of Akin Gump (SCOTUSblog) has a spoof “Call 1-CER-TIORARI” TV ad hawking his Supreme Court advocacy [YouTube]
• New at Point of Law: Colorado unions’ revenge initiatives; Dennis Quaid at Congressional hearing on federal pre-emption; guess why Orlando isn’t getting commuter rail; drafting docs for ER duty; court green-lights suit blaming U.S. business for South African apartheid; what we can learn from defunct causes of action; Rhode Island high court mulls lead paint suit; and Ted on Massachusetts med-mal study and on reversal of $32 million Garza v. Merck Vioxx verdict.
• Managers at Tim Horton may have been ninnies to fire worker who quieted crying child by giving out free mini-donut, but today’s law does tend to ninnyize those in authority [Cosh/National Post, Canada]
• Jonathan Rauch isn’t overjoyed at California high court marriage ruling [Independent Gay Forum; more from Kmiec, Lederman and others at Slate and from Eugene Volokh] More: Steve Chapman via Sullivan and Dale Carpenter @ Volokh.
• Road delayed at £1million expense, and then great crested newt turned out not to be there [Leicester, U.K.; Ananova]
• Why trial lawyers were pleased when Boeing moved its HQ from Seattle to Chicago [seven years ago on Overlawyered]

The legal kitty for the Rhode Island nightclub fire now exceeds $100 million, bolstered by earlier settlements from such entities as Clear Channel Broadcasting and Home Depot, among at least 93 defendants in all. (Eric Tucker, AP/Boston Globe, May 13; earlier).

Jane Genova gets a report that access to her blog Law and More is blocked in the Rhode Island State Court Law Library, and I offer some conjectures as to why based on similar experiences at Overlawyered, in which posting about sexual harassment cases and even gun litigation has been enough to get me (temporarily) blocked (& welcome Above the Law readers).

• Raising ticket revenue seems more important to NYC authorities than actually recovering stolen cars [Arnold Diaz/MyFoxNY video via Coyote]
• Subpoena your Facebook page? They just might [Beck/Herrmann]
• Rhode Island nightclub fire deep pockets, cont’d: concert sponsor Clear Channel agrees to pay Station victims $22 million, adding to other big settlements [ProJo; earlier]
• Manhattan federal judge says “madness” of hard-fought commercial suit “presents a cautionary tale about the potential for advocates to obscure the issues and impose needless burdens on busy courts” [NYLJ]
• Wooing Edwards and his voters? Hillary and Obama both tacking left on economics [Reuters/WaPo, WSJ, Chapman/Reason, WaPo editorial]
• Sad: if you tell your employer that you’re away for 144 days on jury duty, you actually need to be, like, away on jury duty [ABA Journal]
• New at Point of Law: Florida “three-strikes” keeps the doctor away; court dismisses alien-hiring RICO suit against Tyson (and more); Novak on telecom FISA immunity; fortunes in asbestos law; Ted on Avandia and Vioxx litigation; new Levy/Mellor book nominates Supreme Court’s twelve worst decisions; and much more;
• U.K.: “Lawyers forced to repay millions taken from sick miners’ compensation” [Times Online]
• Outside law firm defends Seattle against police-misconduct claims: is critics’ beef that they bill a lot, or that they’re pretty good at beating suits? [Post-Intelligencer]
• Cincinnati NAACP is campaigning against red-light cameras [Enquirer]
• Omit a peripheral defendant, get sued for legal malpractice [six years ago on Overlawyered]

Innocent bystanders have paid the bulk of settlements to date in the catastrophic fire caused by Great White’s pyrotechnic display that killed 100 people at The Station nightclub in Providence, Rhode Island. The latest victims are a television station, WPRI, and a cameraman who will contribute $30 million to a settlement fund: WPRI’s Brian Butler is accused of impeding the crowd’s exit through the front door, though Butler’s contemporaneous account suggests that he probably saved some lives at the time. “Dozens of defendants remain, including … Anheuser-Busch Inc., which sold beer at the concert; and Clear Channel Communications, which owns a Providence radio station which ran advertisements promoting the show.” (Andrea Estes, “Tentative deal set in R.I. fire case”, Boston Globe, Feb. 2; “Tentative $30 Million Settlement in Club Fire”, AP/NY Times, Feb. 2). Earlier: Feb. 2006 and Nov. 2 (Home Depot pays $5M for failure to warn, though their foam is different than the foam that caught on fire).

All-New England edition:

• Massachusetts bar-exam flunker drops suit over gay-marriage question [Boston Herald, OnPointNews; see Jul. 7]
• “We cannot get rail service between Nashua and Boston because a cap on liability may be unconstitutional in New Hampshire thanks to the trial lawyers” [letter in Nashua Telegraph; earlier news story]
• Whodunit? Everyone, as in a certain Christie novel: Rhode Island nightclub fire lawsuits name 93 different defendants [New York Times; see Feb. 16, 2006]
• Update: skull-fragment-keeping officer Callahan departs the Norwalk, Ct. police force [Created Things; earlier Jan. 23 and Jun. 21]

• Can’t possibly be true: Tampa man sentenced to 25 years for possession of pills for which he had a legal prescription [Balko, Hit and Run]


• Plaintiff’s lawyers “viewed [Sen. Fred Thompson] as someone we could work with” and gave to his campaigns, but they can’t be pleased by his kind words for Texas malpractice-suit curbs [Washington Post, Lattman; disclaimer]


• Pace U. student arrested on hate crime charges after desecrating Koran stolen from college [Newsday; Volokh, more; Hitchens]


• Little-used Rhode Island law allows married person to act as spouse’s attorney, which certainly has brought complications to the divorce of Daniel and Denise Chaput from Pawtucket [Providence Journal]


• Lott v. Levitt defamation suit kinda-sorta settles, it looks like [Adler @ Volokh]


• Trial lawyer Mikal Watts not bowling ‘em over yet in expected challenge to Texas Sen. Cornyn [Rothenberg, Roll Call, sub-only via Lopez @ NRO]


• Frankly collusive: after Minnesota car crash, parents arrange to have their injured son sue them for negligence [OnPoint News]


• Canadian bar hot and bothered over Maclean’s cover story slamming profession’s ethics [Macleans blog]


• Five Democratic candidates (Clinton, Obama, Edwards, Biden, Richardson) auditioned at the trial lawyers’ convention earlier this month in Chicago [NYSun]


• Donald Boudreaux’s theory as to why Prohibition ended when it did [Pittsburgh Trib-Rev via Murray @ NRO]


• Speaker of Alaska house discusses recent strengthening of that state’s longstanding loser-pays law [new at Point of Law]

Given the economic costs imposed by today’s legal system (a staggering $865 billion per year according to one recent estimate), it’s surprising more companies don’t take into account a state’s liability climate when making critical decisions like where to open a new plant or invest in existing facilities.

A new report could help change that.

Risky Business: The Annual Boardroom Guide to Litigation in the 50 States provides the first ever ranking of state legal environments that combines economic science, real world corporate experience and input from state legal reform experts – people with the most current intelligence from the front lines.

It builds on a few landmark studies, including the American Tort Reform Association’s “Judicial Hellholes,” the Pacific Research Institute’s U.S. Tort Liability Index, and the Institute for Legal Reform/Harris Interactive survey.

So where are the soundest states – and where is the swampland?

Nebraska and Virginia top the list with the best legal climates. What do they have in common? Reasonable limits on punitive damages, a “rule of law” majority on the state Supreme Court, and Attorneys General who specialize in law enforcement, not grabbing the spotlight at the expense of businesses.

In stark contrast, West Virginia, Rhode Island and Florida round out the bottom of the list. All have activist Supreme Court majorities who consistently rule in favor of trial lawyers. West Virginia has a governor who supports legal reform – a reminder that having a pro-reform governor does not necessarily translate into a sound legal environment.

To see the full list go here.

Steve Hantler

• Reversing course, Rhode Island attorney general drops rape charge based on 32-year-old “repressed memory”, thus disappointing some advocates [Volokh; Jul. 10]


• Massachusetts disciplinary panel files misconduct charges against Judge Ernest Murphy over the “bring me a check and keep quiet” surrender-Dorothy letter he sent to Boston Herald publisher during his (successful) libel suit [Ambrogi; Dec. 23, 2005, May 11, 2007, etc.]


• California jury rejects tippling speeder’s lawsuit against landowner, automaker, town, etc. in the case we headlined “Shouldn’t Have Put Its Berm Where He Wanted To Skid” [Dec. 24, 2005; Douglas Domel v. DaimlerChrysler Corp., City of Santa Clarita, and Does 1 to 50, inclusive (PC030045Y), L.A. Superior Court, L.A. Daily Journal, no free link]


• Nominal damages only against German teens accused of scaring ostrich into impotence [UPI/ScienceDaily; Mar. 6]


• Dubious bill authorizing lawsuits against OPEC may be headed to President’s desk [W$J/CattleNetwork; Jun. 8]


• Jury convicts press baron Conrad Black on four counts, acquits on nine [Telegraph; Kirkendall, Bainbridge, Ribstein; Mar. 19, Jun. 5]


• Michigan Supreme Court reinstates reprimand against Geoffrey Fieger over abusive language [NLJ; Jul. 3, Aug. 2, 2006, etc.]

The Rhode Island attorney general’s office has charged a man with rape based on a memory “repressed” by the complainant “until recently”. Harold Allen of Narragansett, 48, at the time of the alleged incident was sixteen years old, as was the complainant. Allen has pleaded not guilty, and through his attorney says he never had relations with the woman, though he was acquainted with her. There is no statute of limitations on the charge of first-degree sexual assault. (”Man charged with rape 32 years later”, AP/EyewitnessNews, Jun. 14; Volokh, Jul. 3).

One of the common minor medical malpractice “tort reforms” that have been proposed in recent years is the “apology law.” That’s the law which permits doctors to apologize to patients for bad outcomes without having those apologies thrown back in their face at trial. (Reasonable, if relatively trivial.)Rhode Island is now looking at joining the 15 or so states that have enacted such apology laws, and over at the New York Personal Injury Law Blog and crossposted at Bizarro-Overlawyered, plaintiff’s attorney Eric Turkewitz endorses the bill, saying:

I’ve always believed, based on the manner in which calls come in to my office, that poor communication (bad bedside manner) is the primary reason patients call attorneys. They are angry, or confused, or both.

Now, the practical implication of that for doctors is clear: doctors should apologize. But he doesn’t seem to reflect on the implication of that for lawyers. If med-mal cases are brought based on anger over bad bedside manner rather than wrongdoing, then our med-mal system will punish bad bedside manner rather than wrongdoing.

In any case, Turkewitz mocks an insurance company which advises doctors who apologize — even if those apologies are protected — to apologize for the outcome but not to admit error, claiming that this sensible advice “encourages more of the same thing that has gotten docs into trouble in the past.” But Turkewitz doesn’t mention that even this extremely modest reform is too much for some trial lawyers. As quoted in the same article he cites:

Providence lawyer Steven Minicucci, who handles malpractice suits, said displays of compassion are rarely useful in building such cases. But an apology and an admission of error could be key evidence. He opposes the Rhode Island legislation.

“I like to call it the `I’m-sorry-I-killed-your-mother’” bill, Minicucci said. “If a doctor comes out and says something like that, he shouldn’t be able to immunize himself against statements like that by couching it in an apology.”

You’ve got to love that “rarely,” in “displays of compassion are rarely useful in building such cases.” Rarely, but hey, sometimes a trial lawyer can turn compassion against the doctor. And we wouldn’t want to stop that.

Speaking of apologizing (and updating an earlier story), I’m pretty sure that Mike Nifong’s apology to the Duke lacrosse players (”To the extent that I made judgments that ultimately proved to be incorrect, I apologize to the three students that were wrongly accused.”) is not going to cut it.

Overlawyered has been covering the Rhode Island lead paint trial for quite some time. A year ago last February, a jury found lead paint makers liable (and see links therein); on Monday, a Rhode Island judge issued a 197 page opinion (PDF) rejecting all the motions filed by the manufacturers, and upholding the jury verdict. Associated Press; Providence Journal. There will, of course, be an appeal.

It’s a case which fits well with the theme I mentioned yesterday, with all the elements of litigation as Robin Hood-style wealth redistribution:

• Creative lawyering, to turn a non-case into a case: this is really a products liability case, but if it had been tried under that theory, the state would have lost. So the plaintiffs called lead paint a “public nuisance,” even though any harms here are identifiably private.

• Irresponsible victims: The proximate cause of lead-paint-related injuries is the failure of homeowners and landlords to fix peeling paint. But we wouldn’t want to hold people responsible for maintaining their own homes.
• Going after the deep pockets rather than wrongdoers: Homeowners can’t sue themselves, and landlords don’t have nearly as much money as Sherwin Williams and the other paint manufacturers? So of course the paint manufacturers are liable. Never mind that the paint was perfectly legal when it was sold, sometimes as long as 50 years ago or more. Never mind that the plaintiffs didn’t and couldn’t prove that any of the outstanding problem was caused by any of the defendants.
• Unlimited liability, unrelated to any money made by the manufacturers for the products in question: the judge hasn’t even figured out how much this cleanup will cost, but he’s nonetheless sure that it’s reasonable to hold that the paint companies should have done this already. Estimates range from a billion dollars to several billion, to clean up any remaining lead paint.
• Dubious benefit to actual victims: people who have children affected by lead paint aren’t the ones who receive money as a result of this case.
• Shades of the tobacco cases: private trial lawyers inducing the state to sue, and then then pretending to be acting on behalf of the public.

Of course, we get the obligatory disingenuous comments from the plaintiffs:

Jack McConnell, a lawyer representing the state, called the judge’s decision a “huge, huge victory for lead-poisoned children, homeowners and taxpayers.”

Except, of course, for taxpayers and homeowners who are shareholders in paint companies. Or taxpayers and homeowners who are looking to buy products whose prices will have to rise to cover the costs of lawsuits that may spring up decades down the road because of some unforeseeable risks.

And how it’s a victory “for lead-poisoned children” is a mystery, given that the only outcome of this case is that the paint companies will have to pay for the costs of cleaning up homes. The children who have actually been poisoned do not see a cent from this judgment. Jack McConnell and Motley-Rice, the lawyers “representing the state,” will rake in a few hundred million dollars in contingency fees, though.

Walter Olson also comments at Point of Law.