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silicone breast implants

The New York Times columnist responds to critics of his coverage (earlier here, here, etc.) of the BP Gulf spill claims bonanza:

Until that story [on the silicone breast implant episode], I’d always taken the liberal view of plaintiffs’ lawyers as avenging angels, righting wrongs and helping wrest compensation for people who had been harmed by greedy corporations. …

[Since then] I’ve seen mass torts where the actual plaintiffs get coupons while the lawyers reap millions. Mass torts where the connection between the product and the harm is illusory. Mass torts built on fraud (silicosis). Complex litigation settled for billions even when the government implies that consumers are responsible (Toyota sudden acceleration). I’ve also seen cases where some victims hit the jackpot with a giant jury verdict and other victims come up empty. Or where a corporation really has done harm but pays off the lawyers instead of the victims. Over the years, I’ve thought: There’s got to be a better way.

Read the whole thing [via Ted at Point of Law]

New reports of a study linking an exceedingly rare cancer (anaplastic large cell lymphoma, 3 in 100 million women) to breast implants shouldn’t be seen as somehow vindicating the long-discredited litigation-driven scare campaign against the implants. [David Gorski; Robert Goldberg, DrugWonks; David Oliver]

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As longtime readers of this site know well, the late mass tort king John O’Quinn nicked the accounts of breast implant plaintiffs with a fortune in unauthorized overcharges. Austin attorney Terry Scarborough, who spent ten years helping get some of the money back, “says he could have built a practice based on people itching to sue O’Quinn, whose generosity toward charitable and Democratic causes was shadowed by a reputation for stiffing fellow attorneys — a mortal sin in the practice of law.” [Austin American-Statesman, Texas Lawyer]

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  • Understatement alert: per the official Congressional Research Service on Capitol Hill, “For the moment…one thing seems certain: implementation of the CPSIA is not going well.” [report in PDF format courtesy ShopFloor]
  • In Wisconsin, the Madison Children’s Museum has for the past 21 years based its annual fundraiser (July 18, this year) on a big discount sale of American Girl dolls and accessories. Worse luck for them.
  • “Anti-recycling”, maybe? Is there a word for what happens when you yank perfectly safe, useful products off shelves by the ton and send them instead to landfills?
  • Blast from the past dept.: if you think Public Citizen has made a mess of the risk and science issues in its advocacy on behalf of CPSIA, you should check out the world-class mess it made when it enlisted in the trial lawyer campaign against silicone breast implants, to name but such one campaign of many.
  • Powersports dealers wary of whether new stay of enforcement really protects them [DealerNews, Sioux City (Iowa) Journal]
  • The first senior, influential Senate Democrat to acknowledge that CPSIA needs fixing? Montana’s Max Baucus is willing at least to sign on to a legalize-minibikes bill.
  • In the comments section on NPR’s phthalates story earlier this month, one of the most-recommended comments was that by Steven Tesney of Houston, who wrote, “As a result of CPSIA and the surrounding political grandstanding, my small home-based company will be going out of business. I design clothing for ‘Alternative’ families with infants, toddlers & kids. My products are organic and use natural dyes but because of new testing requirements that are completely cost prohibitive, I will be forced – along with hundreds of thousands of crafters, artisans and other small business owners – to close my doors. The only companies that will be able to afford the testing will be large corporations (many from China). Mass produced goods win while homemade, handcrafted goods lose. Say goodbye to the charming hand carved wooden toys & crocheted baby caps that you take to baby showers. Say hello to a plethora of licensed products staring back at your children.”
  • “CPSIA and the black market” [Wacky Hermit]

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Public domain image courtesy ChildrensLibrary.org: Walter Crane, illustrator, The Baby’s Aesop (1887)

Lester Brickman has a new must-read paper on an under-reported problem:

Lawyers obtain the “mass” for some mass tort litigations by conducting screenings to sign-up potential litigants en masse. These “litigation screenings” have no intended medical benefit. Screenings are mostly held in motels, shopping center parking lots, local union offices and lawyers’ offices. There, an occupational history is taken by persons with no medical training, a doctor may do a cursory physical exam, and medical technicians administer tests, including X-rays, pulmonary function tests, echocardiograms and blood tests. The sole purpose of screenings is to generate “medical” evidence of the existence of an injury to be attributed to exposure to or ingestion of defendants’ products. Usually a handful of doctors (“litigation doctors”) provide the vast majority of the thousands and tens of thousands of medical reports prepared for that litigation.

By my count, approximately 1,500,000 potential litigants have been screened in the asbestos, silica, fen-phen (diet drugs), silicone breast implant, and welding fume litigations. Litigation doctors found that approximately 1,000,000 of those screened had the requisite condition that could qualify for compensation, such as asbestosis, silicosis, moderate mitral or mild aortic value regurgitation or a neurological disorder. I further estimate that lawyers have spent at least $500 million and as much as $1 billion to conduct these litigation screenings, paying litigation doctors and screening companies well in excess of $250 million, and obtaining contingency fees well in excess of $13 billion.

On the basis of the evidence I review in this article, I conclude that approximately 900,000 of the 1,000,000 claims generated were based on “diagnoses” of the type that U.S. District Court Judge Janis Jack, in the silica MDL, found were “manufactured for money.”

Despite the considerable evidence I review that most of the “medical” evidence produced by litigation screenings is at least specious, I find that there is no effective mechanism in the civil justice system for reliably detecting or deterring this claim generation process. Indeed, I demonstrate how the civil justice system erects significant impediments to even exposing the specious claim generation methods used in litigation screenings. Furthermore, I present evidence that bankruptcy courts adjudicating asbestos related bankruptcies have effectively legitimized the use of these litigation screenings. I also present evidence that the criminal justice system has conferred immunity on the litigation doctors and the lawyers that hire them, granting them a special dispensation to advance specious claims.

Finally, I discuss various strategies that need to be adopted to counter this assault on the integrity of the civil justice system.

Unclear on the concept

by Ted Frank on February 27, 2008

Bizarro-Overlawyered hasn’t quite gotten the hang of how to put forward their propaganda campaign to deprive consumers of the choice of arbitrating disputes.

A New Orleans woman, Patricia Dicorte, says she got ripped off by her contractor in May 2007, so she took him to an arbitrator, and in July 2007—a fraction of the time it would take in a civil suit of that magnitude—she had an arbitration ruling in her favor for $219 thousand. Unfortunately for her, she then took it to the cesspool of Orleans Parish Courts for enforcement, and Democratic Judge Yada Magee—a colleague of the cousin of the contractor—violated the Federal Arbitration Act and threw out the arbitrator’s ruling. (Dennis Woltering, “Despite arbitrator’s ruling woman still fighting contractor”, WWL-TV, Feb. 25). This will eventually be reinstated on appeal at some unnecessary expense, but somehow Kia Franklin is advertising this fiasco as an example of problems with arbitration (!), rather than as a problem with the judicial hellhole of New Orleans. (If the judge isn’t willing to give a fair ruling for the consumer in something as straightforward and administrative as arbitration judgment enforcement, what makes Franklin think that the consumer would have had a better chance with that judge in a civil trial?)

Judge Magee is best known for railroading negligence findings for 1800 plaintiffs against Dow Chemical in bogus silicone breast implant litigation in 1997, a decision thrown out by a Louisiana appellate court in 2002. Spitzfaden v. Dow Corning Corp., 833 So.2d 512 (La. App. 2002).

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As always, worth reading: “In the end, the truth — and personal freedom — prevailed [when the FDA re-approved the devices after 15 years]. But only after a heck of a fight, and only after sustaining some serious wounds.” (“Recovering, finally, from the breast implant panic”, syndicated/Chicago Tribune, Nov. 3). More: Nov. 20, etc.

“The government on Friday rescinded a 14-year ban on silicone gel implants for cosmetic breast enhancement, a decision praised by some for providing women with a better product but criticized by others who still question their safety. … After rigorous review, the [Food and Drug Administration] can offer a ‘reasonable assurance’ that silicone implants are ‘safe and effective,’ said Donna-Bea Tillman, director of the FDA Office of Device Evaluation.” (Ricardo Alonso-Zaldivar and Daniel Costello, Los Angeles Times, Nov. 18). Silicone breast implants, available to consumers in most other countries, were driven from the market after a campaign of speculation and misinformation by trial lawyers and allied “consumer” groups, particularly Dr. Sidney Wolfe’s Public Citizen Health Research Group. The campaign resulted in billions in legal settlements over nonexistent autoimmune effects from the devices, none of which had to be repaid even after more careful scientific studies dispelled the early alarms. Chapter 4 of my book The Rule of Lawyers, which tells the story of the silicone litigation episode in detail, isn’t online. The New York Sun has an editorial drawing some of the appropriate conclusions (“Now They Tell Us”, Nov. 20)(& welcome Above the Law readers). More: Second Hand Conjecture channels Virginia Postrel (via InstaPundit).

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Australia: “Leading plaintiff lawyer Peter Gordon from the firm Slater & Gordon was paid a $1 million bonus he was not entitled to from the profits of a massive class action over faulty breast implants. A disgruntled former partner has alleged the $1 million bonus was paid directly to Mr Gordon despite having been earmarked by the firm as ‘post-settlement expenses’.” The allegations filed in court by the former partner, Paul Mulvany, offer “a rare insight into the inner workings of Australia’s best known no-win, no-fee law firm”. However, the insight-window appears to have snapped shut with great rapidity: “one day after Slater & Gordon was informed The Australian had obtained the court documents, the matter was settled with neither side commenting on the sudden resolution of their dispute.” (Katherine Towers and Dan Box, The Australian, Sept. 15). P.S. Not all will agree with the opinion of the contestants in the brawl that the silicone implants at issue were “faulty”.

Houston plaintiff’s lawyer John O’Quinn, famed for his huge fee hauls in asbestos, tobacco and silicone breast implant cases, was the winning bidder at $500,000 at a Labor Day auction of a Lamborghini race car signed by celebrities. O’Quinn “also spent $335,000 on a Batmobile used in the film ‘Batman Forever.’ His other purchases at the auction included $250,000 for a 1938 Cadillac Town Car used by Pope Pius XII and $290,000 for a 1941 Packard limousine used by President Franklin D. Roosevelt.” (AP/Houston Chronicle, Sept. 5; Houstonist, Sept. 5)(title allusion).

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Many Houston doctors are outraged that St. Luke’s Episcopal Hospital is preparing to rename its medical tower, a local landmark, after controversial plaintiff’s attorney John O’Quinn (Apr. 28, 2004, etc.) in exchange for a $25 million gift. O’Quinn was the chief driver of the silicone breast implant litigation, which though decisively refuted in its major scientific contentions inflicted billions of dollars in costs on medical device providers and, not incidentally, plastic surgeons. And just this year O’Quinn’s law firm was singled out for condemnation by federal judge Janis Graham Jack in her scathing ruling on the shoddy business of mass silicosis-screening — “diagnosing for dollars”. Doctors “last week began circulating a petition against [the renaming proposal] and Monday night convened an emergency meeting of the medical executive committee….By late Monday, about 80 had signed the petition. ‘It offends us to have money we earned — and which he took by suing us — going to name after him a medical building in which we work each day,’ says the petition.” The University of Houston law school has already renamed its law library after O’Quinn, a full-length oil painting of whom looms over the students. (Todd Ackerman, “Doctors push St. Luke’s to forgo $25 million gift”, Houston Chronicle, Aug. 9). More: Kirkendall and MedPundit comment; so do GruntDoc and Michigan Medical Malpractice.

“Another measure of the magnitude of the high cost of lawsuit abuse is the number of products and services that have been withdrawn from the U.S. market due to fear of liability, irrationally applied. Volvo, for example, makes an integrated child booster seat that is not sold in the U.S. because of product liability concerns….

“Similarly, fears of silicone implant lawsuits in America caused Japanese silicone makers to quit production of silicone coating for hypodermic needles, which reduces the pain of an injection. The director of one of these firms stated, ‘We’re sure our product is safe, but we don?t want to risk a lawsuit.’…

? Monsanto Company abandoned the planned production of a safe, biodegradable, and effective reinforcing phosphate fiber that would have been a substitute for asbestos.

? Union Carbide decided to forego developing a suitcase-sized kidney dialysis unit and offering intravenous equipment.

? Sunstar, a health-spa manufacturer, decided not to market a safety device due to a liability-related increase in its insurance costs. The product would have set off an alarm every time the cover of a spa was opened. Because the product was a safety device, only one insurance company was willing to write a policy.

– Excerpted from Steven B. Hantler (DaimlerChrysler Corporation), “The Seven Myths of Highly Effective Plaintiff’s Lawyers”, Manhattan Institute Civil Justice Memo #42, Apr. (PDF) (more on paper)

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The Houston-based mass tort specialist, who has long played a prominent role in these columns for his exploits in asbestos, tobacco, silicone implants and most recently fen-phen (Apr. 28, Feb. 26 and many more), is now being talked of by activists as a potential Democratic candidate for governor of the Lone Star State. (W. Gardner Selby, “Democrats appear to be in no rush to challenge Perry for governorship”, San Antonio Express-News, Jun. 15). One factor helpful to him: last fall (see GregsOpinion.com, Oct. 25) Texas Democrats elected as their chairman San Marcos attorney Charles Soechting, who happens to practice at none other than the law firm of O’Quinn, Laminack & Pirtle.

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Commentary-fest

by Walter Olson on October 29, 2003

More good opinionated reads:

* Author Philip K. Howard, writing last week in the Wall Street Journal on the celebrated decision by the Appellate Committee of Britain’s House of Lords in Tomlinson v. Congleton Borough Council, discussed earlier in this space Aug. 11 and Oct. 3 (“When Judges Won’t Judge”, Oct. 22, reprinted at Common Good);

* Also in the Wall Street Journal (OpinionJournal, Oct. 27), editor Robert Bartley on the vindication of his editorial page in its criticism of hysterical media fads over supposed epidemics of sex abuse at nursery schools (see May 8, 2003, Sept. 4-6, 1999) and autoimmune disease from silicone breast implants;

* Clint Bolick, vice president of the Institute for Justice, strongly supports the nomination of the “strikingly libertarian” California Supreme Court Justice Janice Brown to the D.C. Circuit (“Good judge”, Reason Online, Oct. 27; more on the nomination from David Bernstein, Lawrence Solum).

Archived entries before July 2003 can also be found here (pharmaceuticals) and here (vaccines).

Pharmaceuticals, 2003:‘Diet drug litigation leads to fat fees’” (fen-phen, ephedra), May 30-Jun. 1; “Courtroom assault on drugmakers“, May 27; “Mississippi investigation heats up“, May 7; “Jury clears Bayer in cholesterol-drug case“, Mar. 19; “New Medicare drug benefit?  Link it to product liability reform“, Mar. 10-11. 2002:Fen-phen settlement abuses: the plot thickens“, Sept. 27-29 (& Dec. 16-17, 2002Feb. 25-26, 2002, Dec. 28, 2001, Aug. 18, 1999); “Ignominious wind-down to Norplant campaign“, Sept. 9-10 (& Aug. 11 & Aug. 27, 1999); “You mean I’m suing that nice doctor?” (Propulsid), Aug. 1 (& see Sept. 6-8); “‘Tampa Taliban’ mom blames acne drug“, Apr. 18 (& Feb. 1-3); “Pharmaceutical roundup” (fen-phen, contraceptive Pill, Viagra, psychiatric drugs), Apr. 16-17;  “‘Can pain treatment survive our addiction to law?’” (OxyContin), Apr. 10 (& Aug. 27, May 30, Jan. 23-24, 2002, Aug. 7-8, July 25, 2001)(& letter to the editor, Apr. 11); “Omit a peripheral defendant, get sued for legal malpractice” (tetracycline), Feb. 15-17; “‘Companies may be liable for drugs used in rapes’“, Jan. 25-27.  2001:Texas jury clears drugmaker in first Rezulin case“, Dec. 19 (& update Jan. 9-10, 2002: it loses second trial); “For client-chasers, daytime TV gets results“, Dec. 18; “Bioterror unpreparedness“, Nov. 28; “Cipro side effects?  Sue!“, Nov. 1; “Suit blames drugmaker for Columbine“, Oct. 24-25; “‘Plaintiff’s lawyers going on defense’” (Scruggs represents Sulzer Orthopedics), Oct. 9; “Propulsid verdict; ‘Robbery on Highway 61′“, Oct. 1; “Antidepressant blamed for killing spree” (Paxil), June 13; “Mississippi’s forum-shopping capital” (Fayette), May 4-6 (& see June 22-24 (Amity Shlaes)); “Anti-Ritalin lawyers still acting out“, Apr. 13-15 (& Sept. 18, Sept. 22-24, 2000); “Target: Alka-Seltzer” (PPA), Apr. 6-8 (& see Sept. 10); “The malaria drug made him do it“, Mar. 28.  2000: Turn of the screw” (pedicle screw lawsuits), Oct. 24 (& see “Fee fights“, Aug. 2, 2001); “‘Controversial drug makes a comeback’” (Bendectin may be reintroduced in U.S.), Sept. 27-28 (& July 21, 1999); “Australian roundup” (Copper-7 IUD), Sept. 6-7; “‘Lilly’s legal strategy disarmed Prozac lawyers’“, May 8.  1999:World according to Ron Motley” (drugmakers among next targets of earth’s richest lawyer), Nov. 1; “Rhode Island A.G.: let’s do latex gloves next“, Oct. 26.

Breast implants, 2002:Pharmaceutical roundup” (silicone implants popular in Canada), Apr. 16-17.  2001:Fee fights“, Aug. 2. 2000:O’Quinn a top Gore recount angel“, Dec. 15-17; “‘Hush — good news on silicone’“, Nov. 29; “No breast cancer link“, Oct. 23; “From our mail sack: hyperactive lawyers“, Sept. 22-24; Feds file Medicare recoupment lawsuit over silicone implants“, April 6; “Study shows breast implants pose little risk“, March 20. 1999:No spotlight on me, thanks” (John O’Quinn obtains gag order against lawyers for dissatisfied clients), August 4; “Never saying you’re sorry”, July 2.

Vaccines:Trial lawyers vs. thimerosal“, Dec. 20-22, 2002 (& Jun. 18-19, 2003); “Vaccine industry perennially in court“, Nov. 7-8, 2001; “Lawsuit fears slow bioterror vaccines“, Oct. 22; “Study: DPT and MMR vaccines not linked to brain injury“, Aug. 31-Sept. 2, 2001; “Vaccine compensation and its discontents“, Nov. 13, 2000.

Other links: Breast implants:

Gina Kolata, “Panel Confirms No Major Illness Tied To Breast Implants”, New York Times, June 21, 1999.

National Institute of Medicine 1999 study

Reason magazine “Breaking Issues“ 

Food and Drug Administration update

Breast Implant Litigation Page (Prof. David Bernstein, George Mason U.)

Marcia Angell, “Science on Trial: Medical Evidence and the Law in the Breast Implant Case“, Manhattan Institute Civil Justice Memo, August 1996.

Walter Olson, review of Marcia Angell, “Science on Trial” (National Review, November 11, 1996) 

Other links: Contraceptives:

Marc Arkin, “Products Liability and the Threat to Contraception” (Manhattan Institute Civil Justice Memo, February 1999).

‘Father files suit after son fails to make MVP award’” (hockey, New Brunswick), Nov. 8-10, 2002.

‘Sorry, Slimbo, you’re in my seats’“, June 7, 2001 (& updates Dec. 15-16, 2001, Oct. 25-27, 2002); “Obese fliers“, Dec. 20, 2000; “Welcome Toronto Star readers” (Jason Brooks column, disabled rights), Sept. 27-28, 2000. 

Personal responsibility, 2002:Skating first, instructions later” (Edmonton), Sept. 25-26; “‘Woman freezes; sues city, cabbie’” (Winnipeg), Sept. 18-19; Personal responsibility roundup” (social host alcohol liability), Sept. 12; “Paroled prisoner: pay for not supervising me“, Jan. 4-6.  2001:Don’t rock the Coke machine“, July 20-22; “‘Gambling addiction’ class action” (Loto-Quebec), June 20 (& update May 20-21, 2002; “‘Woman who drove drunk gets $300,000′” (Barrie, Ont.), Feb. 7-8; “By reader acclaim” (sues alleged crack dealers over own addiction), Jan. 11.  2000:Not my fault, I” (woman who murdered daughter sues psychiatrists), May 17; “Blue-ribbon excuse syndromes” (Metis Indian defendant allowed to cite cultural oppression as defense to stabbing charge), Feb. 12-13. 

Cash demanded for drug users and panhandlers inconvenienced by film crews” (Vancouver), Aug. 23-25, 2002. 

Activist judges north of the border“, May 31-Jun. 2, 2002 (& letter to the editor, Jun. 14). 

Flowers, perfume in airline cabins not OK?“, May 17-19, 2002; “Scented hair gel, deodorant could mean jail time for Canadian youth“, Apr. 24, 2000. 

‘Unharmed woman awarded $104,000′” (Manitoba chemical exposure), May 6, 2002. 

‘Targeting “big food”‘” (Lemieux, National Post), Apr. 29-30, 2002. 

Pharmaceutical roundup” (silicone implants popular), Apr. 16-17, 2002. 

Web speech roundup” (flag logo on website), Mar. 25-26, 2002. 

Tribulations of the light prison sleeper“, Mar. 25-26, 2002; “Prison litigation: ‘Kittens and Rainbows Suites’” (cellmate’s smoking violates rights), Jan. 11-13; “Paroled prisoner: pay for not supervising me“, Jan. 4-6, 2002. 

Couldn’t order 7-Up in French” (suing Air Canada for $525,000), Mar. 18, 2002; “Gotta regulate ‘em all” (Quebec official upset that Pok?n cards not in French), Dec. 16, 1999. 

Stop, they said” (Manitoba: stop sign too vague?), Feb. 4-5, 2002. 

Planners tie up land for twenty years” (plus B.C. land use story), Jan. 18-20, 2002. 

Family law, 2002:‘Avoiding court is best defence’” (Dave Brown), Jan. 14-15.  2001:‘Crying wolf’” (Christie Blatchford on sexual abuse charges), Oct. 30; “Why she’s quitting law practice” (Karen Selick), Aug. 13-14; “Canadian court: divorce settlements never final“, May 15; “‘Victim is sued for support’“, Feb. 9-11; “Solomon’s child” (Donna LaFramboise), Jan. 26-28.  2000:Pilloried, broke, alone” (LaFramboise on “deadbeat dads”), April 10.  1999:Down repressed-memory lane: distracted when she signed” (Ont. judge voids separation agreement), Dec. 29-30. 

Front-row spectator sues ‘reckless’ exotic dancer” (B.C.), Jan. 7-8, 2002; “Embarrassing Lawsuit Hall of Fame” (injured by exotic dancer in Ottawa), Aug. 14, 2000; “‘Toronto Torch’ age-bias suit” (stripper in Brantford), May 23, 2000. 

Overlawyered schools roundup” (challenge to Ontario standards), Dec. 7-9, 2001. 

Columnist-fest” (asylum policies), Nov. 27, 2001; “Opponents of profiling, still in the driver’s seat” (Air Canada), Nov. 2-4; “Security holes: to the North…” (anti-terrorism security), Sept. 14-16, 2001. 

‘Hate speech’ law invoked against anti-American diatribe“, Oct. 17-18, 2001; “Most unsettling thing we’ve heard about Canada in a while” (hate speech laws), Dec. 17-19, 1999. 

‘Hama to sue bridge owners over her daughter’s fall’” (Capilano Suspension Bridge, Vancouver), Oct. 8, 2001. 

Fear of losing welfare benefits deemed coercive” (N.S.), Oct. 3-4, 2001. 

Zero tolerance, etc.:John Leo on Overlawyered.com” (Halifax: snowball-like gestures banned), Aug. 15, 2001; “Fateful fiction” (Cornwall, Ont.), Jan. 30, 2001; “Hug protest in Halifax” (school’s no-physical-contact policy), March 2, 2000; “Zero tolerance roundup” (Windsor: 11-year-old’s fictional school essay), Dec. 27-28, 1999. 

Why she’s quitting law practice” (Karen Selick), Aug. 13-14, 2001. 

Welcome Bourque.org readers“, June 26, 2001. 

‘Dead teen’s family sues Take Our Kids To Work’“, May 31, 2001. 

Holiday special” (misconduct by N.B. lawyer), May 28, 2001. 

‘Insect lawyer ad creates buzz’” (Torys, Toronto), May 23, 2001; “‘Not-a-Lawyer’” (Vancouverite’s business card), Feb. 10-11, 2000. 

Columnist-fest” (Mark Steyn on Indian residential schools), May 1, 2001; “Bankrupting Canadian churches?“, Aug. 23-24, 2000. 

Canada’s secret legal aid“, April 10, 2001. 

Putting the ‘special’ in special sauce” (alleged rat in Big Mac”, March 29, 2001. 

Saves her friend’s life, then sues her“, Jan. 3, 2001. 

Canada reins in expert witnesses“, Nov. 22-23, 2000. 

Malpractice outlays on rise in Canada“, Oct. 2, 2000. 

‘Mother sues over lack of ice time for goalie son’” (Quebec), Sept. 11, 2000. 

‘Mugging victim “stupid”, judge says’” (Winnipeg case), Aug. 2, 2000. 

‘Skydivers don’t sue’“, May 26, 2000 (update July 6: Canadian diver prevails in suit against teammate). 

Cash for trash, and worse” (“Vancouver solution” for Microsoft?), June 26, 2000. 

Welcome Montreal Gazette readers” (columnist Doug Camilli cites this website), June 7, 2000; “Trop d’avocats.com” (we are recommended by the Gazette), Oct. 18, 1999. 

‘More lawyers than we really need?’” (aftermath of Walkerton, Ont. E. Coli outbreak: columnist cites this website), June 2-4, 2000. 

Less suing = less suffering” (Sasketchewan no-fault auto study), April 24, 2000 (& update June 26). 

Swissair crash aftermath” (Peggy’s Cove disaster in U.S. courts), March 14, 2000; “Montreal Gazette ‘Lawsuit of the Year’” (bagpipers sue Swissair for lost income), Jan. 17, 2000. 

‘Girl puts head under guillotine; sues when hurt’“, March 8, 2000. 

Ontario judge okays hockey-fan lawsuit“, Jan. 12, 2000; “Spreading to Canada?” (hockey fan sues Alexei Yashin), Oct. 20, 1999. 

Update: toilet of terror” (Canadian tourist visits Starbucks in NYC, sues), Dec. 8, 1999; “Starbucks toilet lawsuit“, Dec. 1, 1999. 

Mounties vs. your dish” (satellite regulations), Nov. 1, 1999. 

Sensitivity in cow-naming“, Oct. 21, 1999; “Weekend reading” (Bugs Bunny television complaint), Aug. 21-22, 1999. “You may already not be a winner” (prisoner suit over sweepstakes entry), Aug. 23, 1999.


For a discussion of the loser-pays principle, which Canada has retained to a considerable extent in its courts, see our loser-pays page


November 11-December 12 – Month-long hiatus/editor’s forthcoming book. Overlawyered.com will be on hiatus for about a month to allow our editor to attend to some personal business that requires his full attention. There are a lot of great items in our pipeline, but they’ll have to wait. We’ll probably have some access to email, though.

In the mean time, we’re very happy to announce that our editor’s third, newest book, The Rule of Lawyers: How the New Litigation Elite Threatens America’s Rule of Law, The Rule of Lawyersis not only completed but at the printers (St. Martin’s Press) It’s due out in January, just in time for what is widely expected to shape up as a big debate over civil justice reform in the new (and relatively reform-friendly) U.S. Congress. Its subject is the rise of mass litigation, from asbestos and silicone breast implants to the tobacco and gun crusades. It’s got chapters on how the litigation industry successfully manipulates juries, the political process and the press, and it concludes with what we think are some new reform ideas. Although many of the book’s themes will be familiar to our readers, most of the material in the book has never appeared on this site.

Okay, here’s the sales pitch: even though the book won’t appear in stores for a few more weeks, you can pre-order it now at (as of this writing) a handsome 30% discount. Placing a pre-order not only gets you a copy of the book in extra-timely fashion, but also helps stir up interest, alerting the publisher and the wider bookselling community to the presence of reader demand. If you buy through our online Amazon bookstore, a portion of your purchase price will also go to support the work of Overlawyered.com. Editors interested in excerpting chapters or assigning the book for review, incidentally, should contact St. Martin’s Press directly at (212) 674-5151 and ask for Joe Rinaldi of the Promotion Department. The book also has its own fledgling website.

How timely is our subject? In her new book The Case Against Lawyers (see our Oct. 3 commentary), TV host Catherine Crier not only pulls together countless funny/outrageous case stories from the legal system, but concludes with a ringing call for reforms that include loser-pays and restrictions on lawyers’ contingency fees. Crier generously credits this site and its editor as a major source of material, observing in an “Author’s Note”: “The Internet is a truly extraordinary tool. One particular site has proved absolutely invaluable (and infuriating): Walter Olson’s overlawyered.com is the definitive source for daily updates on the struggle against legal insanity.” We’re delighted to see that The Case Against Lawyers has just made this week’s New York Times best-seller list, and we encourage you to buy it as well as buying The Rule of Lawyers.

Finally, this would make a good time to join our mailing list, since we’ll be sending out an email to list members alerting them when the site resumes regular posting in mid-December. List members receive updates, typically every couple of weeks, which contain snappy summaries of what’s new on the site.

See you sometime in mid-December, by which time we hope our personal business will have been brought to a happy conclusion. Fly swiftly round, ye wheels of time, and bring the promised day!

P.S. Our readers are great. The Amazon sales ranking for The Rule of Lawyers started at #1,483,699 at 7 a.m. on Nov. 11, when the above was posted. By 11:30 a.m. it had climbed to #2,356 and by 9 p.m. to #979. (DURABLE LINK)

November 11-12 –Oops. In our Oct. 30-31 item on traffic counts for this site, our unfamiliarity with our new statistics program led us to overcount pages served by about 20 percent. See update to earlier post. Sorry! (DURABLE LINK)


September 9-10 – Mississippi doctors win a round. “[L]egislators passed new restrictions today [Friday] on lawsuits against doctors in Mississippi, the latest spasm in a national convulsion over sharply increasing medical malpractice insurance rates.” (Adam Nossiter, “Miss. Lawmakers Set Limits on Medical Lawsuits”, Washington Post, Sept. 7). “Mississippi’s legislature is the third in less than a year to be called into special session over the issue, an ‘extraordinary trend,’ said Cheye Calvo, an insurance specialist at the National Conference of State Legislatures.” The fate of the legislation remains uncertain, however. (Patrice Sawyer, “Plenty of talk, but no action”, Jackson Clarion-Ledger, Sept. 8).

It’s far too early for doctors to jubilate, anyway: if the measure makes it to into law, the trial lawyers will predictably commence efforts to convince the Mississippi Supreme Court to strike it down as unconstitutional, as they have gotten other state courts to do with many liability reforms of the past. (e.g. Ohio: Aug. 18, 1999). Some expect the re-election bid this fall of state supreme court justice Charles McRae, to serve as a kind of referendum on whether the court’s pro-plaintiff tilt has gone too far. McRae, a past president of the Mississippi Trial Lawyers Association, is the author of some of the court’s decisions most hostile to defendants. (Bobby Harrison, “McRae a lightning rod for business groups”, Daily Journal, Jul. 23; Jimmie E. Gates, Clarion-Ledger, Jul.29, Ben Bryant, Biloxi Sun-Herald, Aug. 15). (DURABLE LINK)

September 9-10 – Hiring apple pickers = racketeering. “A federal appellate court has revived a racketeering lawsuit filed by Washington state farm workers who claim apple growers and packers intentionally hired undocumented workers to depress wages. The suit says that Zirkle Fruit Co. and Matson Fruit Co., both based in Washington state, created an employment agency to recruit illegal immigrants, mainly from Mexico, knowing that many of the workers were providing false documentation. At the same time, the suit says, the companies rejected job candidates known to be legal aliens or U.S. residents.” Which naturally leads to the question: should those who knowingly hire undocumented gardeners, nannies and house painters be deemed racketeers as well? The pending suit demands monetary damages from the apple growers and packers, and is being pressed by superrich Seattle attorney Steve Berman, well known to readers of this column (Aug. 21, 1999; Oct. 16, 1999; Jan. 19, 2000; May 11, 2001). (“Racketeering suit vs. apple growers, packers is revived”, Seattle Post-Intelligencer, Sept. 6). (DURABLE LINK)

September 9-10 – Free legal services! (except when they aren’t). The Association of Trial Lawyers of America has derived great publicity mileage by saying it will help victims of last year’s terrorist attacks obtain legal representation for free, but it and its members have also worked quietly behind the scenes to defeat legislation that would in any way curb the amounts that lawyers could keep for themselves from 9/11 awards. “Senator [Charles] Schumer [D-N.Y.] is drafting legislation that would let attorneys collect between 8 and 12% of a family’s payout from the September 11th Victim Compensation Fund, a victims’ advocate said. The Schumer plan is a compromise between Senator [Don] Nickles [R-Okla.], who did not want lawyers to take any money from the fund, and the trial lawyers themselves, who want no limit on their contingency fees.” (Timothy Starks, “Schumer Pushes Fees”, New York Sun, Aug. 5). (DURABLE LINK)

September 9-10 – Ignominious wind-down to Norplant campaign. At one time, trial lawyers must have had high hopes that their campaign against the contraceptive Norplant, which is administered in the form of under-the-skin silicone arm implants, would bring down drugmaker Wyeth the way their breast implant campaign bankrupted silicone maker Dow Corning. The litigation dragged on for years and cannot have been encouraging to firms pursuing contraceptive research, but it now appears to be winding down with a whimper, reports Texas Lawyer. In an August 14 ruling, “a federal judge in Texas granted partial summary judgment to the makers of Norplant and dismissed the claims of most of the remaining 3,000 women, leaving only 10 plaintiffs to pursue their cases.” Earlier, a large class of plaintiffs “settled out of court for a payment of $1,500 each”, a paltry sum by the standards of what must originally have been expected. “Notably,” wrote U.S. District Judge Richard Schell, “in the three years since Defendants filed this motion for partial summary judgment, Plaintiffs have not produced a shred of evidence or expert testimony that supports an association between Norplant and” such conditions as polyarthralgia, fibromyalgia and rheumatoid arthritis. (Pamela Manson, “Federal Judge Dismisses Norplant Damage Claims”, Texas Lawyer, Aug. 27)(see Aug. 11 and Aug. 27, 1999). (DURABLE LINK)

September 6-8 – “Doctors hope fines will curb frivolous lawsuits”. Lawyers are seldom made to pay any tangible price when they wrongly accuse a doctor, but South Texas doctors are hoping District Judge Ronald M. Yeager of Corpus Christi will set a precedent by granting a motion for $50,000 sanctions against local attorney Thomas J. Henry for filing false claims against Dr. Steven Smith and Dr. Robert Low. “The case Henry originally brought to court alleged that the doctors had prescribed the drug Propulsid to Henry White, a patient at Northbay who eventually died of complications from a stroke. Propulsid is an acid reflux medicine that has been taken off the market. According to court documents, neither of the doctors had issued the prescription. Henry, who declined comment on the fines, filed a notice of appeal Friday. … Low said he will never forget the embarrassment the case caused and hopes the fines will deter similar suits in the future. … ‘It takes time away from your practice and these things can be emotionally devastating to a physician,” Low said. Attorney Henry is a high-profile local advertiser: “Many in the community know him by the prominent ad on the back of the local phonebook”. (Jesse Bogan, San Antonio Express-News, Aug. 5). (DURABLE LINK)

September 6-8 – Slippery slope on terrorism compensation. Just as skeptics predicted would happen, survivors of earlier terrorist attacks and outrages are looking at the generous payments forthcoming from the taxpayer-staked 9/11 compensation fund and asking: why shouldn’t we get retroactive compensation for our losses too? And so legislators are busily introducing bills to compensate victims of the Oklahoma City bombing, the first World Trade Center bombing, Pan Am Flight 103, the sailors on the U.S.S. Cole, and others. (Michael Freedman, “Compensatory Damages”, Forbes.com, Sept. 16)(reg). (DURABLE LINK)

September 6-8 — Update: government can be sued for not warning of Yellowstone thermal-pool dangers. “A Wyoming federal judge has refused to dismiss a lawsuit brought by a Utah teenager who was severely burned when he and two others jumped into a thermal pool in Yellowstone National Park. Assistant U.S. Attorney Thomas Roberts had asked the U.S. District Court in Cheyenne to reject Lance Buchi’s complaint, which alleges the federal government failed to adequately warn of dangers posed by thermal pools in the park.” (see Jun. 26, 2001) (“Judge won’t dismiss Yellowstone burn victim’s lawsuit”, AP/Billings Gazette, Aug. 30)
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September 5 – “Disabled Entitled to Same Sight Line in Theaters”. Departing from decisions handed down by other courts, a federal judge in Albany, N.Y. “has held that a movie theater providing handicapped patrons with an unobstructed sight line to the screen has not necessarily complied with the Americans with Disabilities Act. Rather, U.S. District Judge David N. Hurd found, the law implicitly requires a qualitative element demanding an analysis into whether the lines of sight available to ambulatory and wheelchair customers are comparable.” Although Judge Hurd held that it might constitute an ADA violation for wheelchair-using patrons to be given less desirable viewing angles, he found that Hoyts Theaters had sufficiently complied with the mandate in the case at hand. (John Caher, New York Law Journal, Aug. 28). (DURABLE LINK)

September 5 – Missouri: a judge speaks out. Ralph Voss, recently retired from the Missouri bench, has launched a website that minces no words about what he sees as wrong with the local civil courts. “My story begins around 1985. By that time it was possible to see major inroads the plaintiffs’ lawyers were making in asserting control over the civil justice system. They exercised tremendous influence in the Missouri legislature, but also in the judiciary. Their influence came from their money and their money came in large part from huge and relatively easily-obtained victories in the courts of St. Louis and Kansas City. … The contingent fee has gotten so out of hand something needs to be done. I am told by one judge that 50 and 60 percent contingent fees in Kansas City are not uncommon. This same judge reports that the fee comes on top of charging the client for the expenses of depositions taken at 5-star resorts.” There’s much more, including critiques of forum-shopping, of lawyers who pocket big contingent fees on sure-thing insurance settlements, and of some fellow judges whom he names elsewhere on the site as (in his view) undeserving of re-election this November. (RalphVoss.com, “Opening Statement”, Aug. 16). (DURABLE LINK)

September 5 – A Gotham lawyer’s complaint. Outside the courthouse in Brooklyn, the New York Press‘s Johnny Dwyer transcribes the gripes of a local personal injury attorney who “only wants his first name used — Dan”. Not only are verdicts down and settlements harder to get in the formerly bounteous borough, but clients aren’t willing to accept the bad news. “Plaintiffs have a skewed view on what a case is worth. I’ve never seen a more obsessional group of people. The case becomes their whole life. And it’s the newer immigrants that are suing the most — at least in Brooklyn. …That’s become the new American dream.” (“Lawsuits: A Lawyer’s Dilemma”, New York Press, vol. 15, #36 (recent)). More: “Jane Galt” and her readers weigh in. (DURABLE LINK)

September 3-4 – By reader acclaim: “Airline sued for $5 million over lost cat”. “A couple sued Air Canada for $5 million, claiming the airline lost their tabby cat during a flight from Canada to California. … ‘It’s not about the money,’ [Andrew] Wysotski said.” (AP/CNN, Aug. 29). (DURABLE LINK)

September 3-4 –Federal authorities say judge offered illegal payoff”. Pittsburgh: “In a meeting secretly taped by federal authorities, Allegheny County Common Pleas Judge Joseph A. Jaffe told a lawyer how he could use his judicial powers to pay back $13,000 in cash that the lawyer had given him in an envelope.” Judge Jaffe, who is presiding over thousands of asbestos cases, “said the attorney could file 26 motions in settled asbestos cases, and he would order insurance companies to pay the lawyer’s firm $500 per motion in legal fees, or $13,000.” He also said that by holding a mass settlement conference he could “put pressure on defendants to favorably settle the claims. …Jaffe evidently did not know that the lawyer, Joel Persky, was cooperating with federal investigators after receiving what he considered an improper request for money from the judge.” Persky’s firm, Goldberg, Persky, Jennings & White, represents thousands of asbestos complainants. Who says plaintiff’s attorneys don’t sometimes figure as heroes in these chronicles? (Marylynne Pitz, Pittsburgh Post-Gazette, Aug. 29). Update: Mar. 25-30, 2003. (DURABLE LINK)

September 3-4 – “Crime pays for teenage lout”. Australia: In a decision that “stunned the legal community and victim’s groups”, a “teenager who broke into a nightclub was yesterday awarded nearly $50,000 damages for injuries he received in an attack by the publican. Joshua Fox was a ‘grossly stupid, totally irresponsible drunken lout’, according to a court assessment. But a [New South Wales] judge said the force used against him was excessive. Mr. Fox’s mother was awarded $18,000 for nervous shock upon seeing her son’s injuries.” (Steve Gee and Patrick O’Neil, Melbourne Herald-Sun, Aug. 30). (DURABLE LINK)

September 3-4 – 2002′s least surprising headline. [Sen. John] “Edwards has been on a fundraising frenzy over the last three months, raising nearly $2 million in ‘soft money’ — the type of donation soon to be banned, with three-quarters of it coming from trial lawyers.” (Jim VandeHei, “Trial Lawyers Fund Edwards”, Washington Post, Sept. 3). (DURABLE LINK)

September 3-4 – A breast-cancer myth. For years many have held it as an article of faith that synthetic chemicals in the environment are an important contributor to American cancer rates, the best-known example being the supposedly inexplicably high rates of breast cancer occurring on New York’s Long Island. But as a new $8 million study from National Cancer Institute researchers concludes, science has not found evidence to document the thesis. (“Federal study shows no link between pollution and breast cancer”, AP/MedLine, Aug. 6; Gina Kolata, “Looking for the Link”, New York Times, Aug. 11; “Epidemic That Wasn’t”, Aug. 29)(both reg)). See Ronald Bailey, “Cluster Bomb”, Reason Online, Aug. 14. This weekend, in a perhaps surprising development, the New York Times‘s editorialists joined the chorus (“Breast Cancer Mythology on Long Island”, Aug. 31)(reg).
Who should be embarrassed by these developments? Well, for starters, Sen. Hillary Rodham Clinton (Margaret Costello, “Elmirans to testify about cancer”, Elmira (N.Y.) Star-Gazette, June 11, 2001); Ms. magazine (Sabrina McCormick, “Breast Cancer Activism”, Summer); activist groups like the Breast Cancer Fund and the Nader-orbit New York Public Interest Research Group (Stony Brook chapter). And perhaps more than any other well-known group, the Sierra Club, which notwithstanding its sometimes warm-huggy image has published spectacularly wrongheaded and irresponsible coverage of the issue (Sharon Batt & Liza Gross, “Cancer, Inc.”, Sierra Magazine, Sept./Oct. 1999). For similar myths about “cancer alley” in Louisiana, see Nov. 8, 2000. (DURABLE LINK)