Matthew Walls, a 13-year-old in the 7th grade at Robert Smalls Middle School in Beaufort, S.C., engaged with a classmate in a rather alarming-sounding pastime, namely “the ‘Open Chest Game’ in which two people punch each other in the chest.” You wouldn’t think a kid could get hurt doing that, but Walls did: he struck his head on the way down and ended up in the hospital in critical condition, though he’s back attending school (a different one) now. Donna Walls, Matthew’s mother, has now sued the Beaufort County School District, the state of South Carolina, and three former superintendents personally, and seeks punitive damages. (Jonathan Cribbs, “Mother sues school district over child’s punching injury”, Beaufort Gazette/Island Packet, Jul. 25; more).

The federal judges in the Northern District of Georgia decided to place curbs on the famously litigious inmate who’s filed more than 1,000 lawsuits nationwide naming celebrities and politicians as members of hallucinatory cabals against him. In March the judges enjoined him from filing more suits without permission in the district, which he can do only if he agrees to be prosecuted for false statements. (Miami Daily Business Review, Jun. 12, also with some discussion of Jack Thompson and of a few other Florida litigants who’ve had their acts shut down after filing (e.g.) 18, 20 and 60+ meritless or inappropriate actions.)

The order in the Northern District of Georgia has not prevented Riches from continuing to file lawsuits against celebrities and public figures elsewhere, as in the federal District of South Carolina. (Rachel Barron, “Vinod Khosla Slapped With $43M Lawsuit”, Greentech Media, Jun. 20).

Asbestos litigation has been around a long time. Early on, nothing like modern product liability law existed (see Richard Epstein’s discussion here); lawsuits resided in workplace injury law when filed in the 1920s and 30s, and were soon subsumed in workers compensation reforms.

Modern asbestos litigation began after the Selikoff study was published in 1964. In December 1965, Texas attorney Ward Stephenson filed a case on behalf of Claude Tomplait, who had worked as an asbestos insulator. Four years later, Stephenson extracted a settlement for $75,000 from seven defendants.

Notwithstanding this meager beginning, Stephenson persisted in asbestos litigation and won a major victory in Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (1973), in which the Fifth Circuit Court of Appeals found asbestos manufacturers strictly liable for their workers’ injuries. The Borel court rejected statute of limitations, contributory negligence, and assumption of risk defenses; and modern asbestos product liability litigation was born.

The litigation got another shot in the arm when New Jersey attorney Karl Asch uncovered the “Sumner-Simpson papers,” which “described in great detail the efforts of Raybestos, Johns-Manville, and other manufacturers to find out about the hazards of asbestos, develop strategies to deal with them, and–most important–to keep that knowledge from the public and workers.” These documents were put to great effect by South Carolina lawyer Ron Motley, who actually used the papers to convince a South Carolina circuit judge to grant a new trial after a jury had ruled in favor of asbestos defendants. Motley of course went on to become an asbestos super-lawyer and an architect of the multibillion-dollar multistate tobacco settlement; his antics are well-known to long-time readers of this site.

Two more foundational cases are worthy of mention. In 1981, the D.C. Circuit ruled that insurers who had written asbestos policies were liable for the maximum insured between exposure and diagnosis, rather than only in the year of diagnosis. See Keene Corp. v Insurance Co. of North America, 667 F.2d 1034 (D.C. Cir. 1981). Given the long latency between asbestos exposure and ultimate illness, the level of insurance exposure was suddenly massive. Circuit Judge Patricia Wald warned that the court’s decision “requires a leap of logic from existing precedent, for it concerns diseases about which there is no medical certainty as to precisely how or when they occur.”

In 1982, the New Jersey Supreme Court threw out the “state of the art” defense for asbestos manufacturers, in essence holding that it mattered not whether business practice was the best available to the industry at the time the injury occurred. See Beshada v. Johns-Manville Products Corp., 442 A.2d 539 (N.J. 1982). The court opined, “The burden of illness from dangerous products such as asbestos should be placed upon those who profit from its production and, more generally, upon society at large which reaps the benefits of the various products our economy manufactures. ”

Thus, in less than a decade, the law was radically shifted, and asbestos litigation was born: “The decade after Borel saw 25,000 asbestos cases filed. By 1981, more than 200 companies and insurers had been sued; by 1982, defendants’ costs had topped $1 billion.” But these early years were just the beginning…

There’s been a lot of news lately involving child psychiatry. As noted by others, the Supreme Court may grant cert in the case of Pittman v. South Carolina which has the interesting twist that the defendant, age 12 at the time of the crime, was taking antidepressants when he killed his grandparents. Yet, as I mentioned the link between antidepressants and violence is tenuous at best.

On the heels of the Pittman case, comes this weeks Frontline program which explored the explosive growth of children being diagnosed with bipolar disorder. Unlike ADHD, bipolar disorder is generally treated with antipsychotic medications which can have profound and lasting side-effects. Yet, the desire to place the blame at the foot of the pharmaceutical industry is misplaced; the psychiatric community has a long tradition of capturing behaviors within their diagnostic net and transforming them into pathologies. All of the pharmaceuticals in the world do nothing to our children without a mental health culture which favors medicine as the first line of treatment for troubled children. And that mental health culture is not just a product of myopic physicians or Big Pharma, but very much one of our own creation.

A guestblogger will be joining us momentarily, and I’ll be posting less over the holidays. Meanwhile, my pipeline is still backed up with items from the past year that deserve a more serious treatment than a hurried roundup mention permits. Here are four of them:

• More docs moving to Texas? Watch out, they must be quacks! After the New York Times reported that doctors seemed to be showing fresh interest in practicing in Texas since its enactment of litigation reforms, our frequent sparring partner Eric Turkewitz of New York Personal Injury Law Blog quickly countered by noting that disciplinary actions in the state are way up, and — quite a jump here — concluded with a suggestion that the newly arriving docs must be causing quality problems. Among bloggers who took this idea and ran with it: Phillip Martin of Burnt Orange Report. Then Prof. Childs had to spoil the fun by asking whether the doctors being disciplined were in fact newcomers to the state and found that, to judge by an initial sampling, no, they’re not. And the medical blogs then knocked the remaining props out from under the reform-made-care-worse theory by linking to coverage documenting how the increase in disciplinary actions reflected the Texas medical board’s concerted recent effort to get tough on doctors — too tough, said many critics. In other words, the Texas medical profession was doing exactly what many skeptics demanded it do — submit to stricter oversight in exchange for liability reform — and now that very submission was being cited as if it proved that standards of care were slipping.
• Uninjured car owners can sue GM over seatbacks. No class members claim to have been injured, but Maryland appeals court allows class action over cost of replacing allegedly weak seatbacks in GM cars. [DLA Piper; opinion, PDF; Maryland Courts Watcher]
• The litigious stylings of Jonathan Lee Riches. We mostly ignore litigants who file handwritten pleadings from prison cells complaining of obviously hallucinated events, but there’s no getting around it: the South Carolina convict has become a pop culture phenomenon with his scores of lawsuits against sports figures, President Bush, Perez Hilton, William Lerach and Elvis Presley over a host of imagined legal injuries. Some of the coverage: The Smoking Gun, Dreadnaught, Deadspin, Justia, Above the Law. He even has several Facebook fan groups.
• Taxpayers and vaccine-compensation lawyers. Under the federally enacted vaccine-compensation program, notes Kathleen Seidel, “a petitioner who brings a claim in good faith is entitled to reimbursement for reasonable attorneys’ fees and costs, regardless of whether the claim is successful.” (Forget about loser-pays; this ensures that taxpayer-defendants can win but pay the other side’s fees anyway.) What sorts of bills do you think attorneys file for reimbursement under those circumstances? Yep, very optimistic bills, in which they expect taxpayers to shell out for their attendance at “advocacy group meetings, and attendance at a conference of trial lawyers representing autism plaintiffs”. In this case, HHS successfully appealed (PDF) an order that it pay the fees. Seidel’s Neurodiversity blog offers a remarkable trove of insight into litigation relating to autism causation theories, vaccines and thimerosal, and this post is no exception. (Updated to include links.)

Two noteworthy stories in the Mississippi press: Anita Lee of the Biloxi Sun-Herald takes a look at “Dickie Scruggs’ $50 million man: What did P.L. Blake do to earn all that money?” (Dec. 16; some earlier Blake discussion).

Blake will earn $50 million, court records show, for clipping newspaper articles and alerting Scruggs to maneuvering in political “cloakrooms,” as Scruggs put it, from Mississippi to Washington. …

Accounts of how Blake earned the money are vague and contradictory.

Even more surprising, Blake and Scruggs were unable to say whether they sealed their business agreement with a handshake or in writing.

A few points brought out in the article: “Scruggs said Tom Anderson, who then worked in Lott’s office, referred Blake to Scruggs.” Attorney General Mike Moore, nominally Scruggs’s public client after hiring him to advance the state’s interests in the tobacco litigation, was aware that Blake was being paid, though he professes surprise at how much. And Scruggs routed the $10 million in initial tobacco payments to Blake through attorney Joey Langston as intermediary. (more discussion)

The assignment of steady continuing payments to Blake over the life of the tobacco settlement distinctly resembles a gesture toward diverting a share of the tobacco proceeds (a contingency share, as it were) to reward and incentivize Blake, or perhaps Blake-and-others-too, to work for the success of the deal. [corrected 12:24 on proofreading after posting; I mistakenly used a wrong surname in place of "Blake" here and below.]

If reporters or others at some point succeed in reaching and questioning Blake, who is said to have moved to Alabama, presumably one of the questions worth asking him will be: is he really the final recipient and ultimate beneficiary of all that impressive cash flow — declaring it on his income tax, having all the funds available for his personal use, and so forth — or does he pass/has he passed some of the money along to anyone else? If he keeps it all, it’s no wonder the questions will keep re-echoing about whether his services could really have been worth that much. If it turns out he is passing/has passed some of it along to another actor or actors, why would things have been arranged that way? One possibility — though not the only one, of course — is that such further beneficiary or beneficiaries might not wish to be known publicly as holding a share in the payouts of the great tobacco project. (Update: a Monday article by Anita Lee in the Sun-Herald (”Blake’s information ‘right-on’”, Dec. 17) quotes Moore saying that Blake seemed to have accurate intelligence in what was going on in tobacco-industry and Republican circles.)

The other noteworthy story is by Jerry Mitchell in the Jackson Clarion-Ledger (”Feds probe Hinds case under scrutiny”, Dec. 16). It confirms that one of the “bodies buried” that Balducci told federal agents about relates to the Luckey/Wilson asbestos fee matter, which was eventually split into two legal proceedings, both hard-fought, with Luckey faring better than Wilson in the legal battle against Scruggs. In addition, the search warrant for the Langston law firm sought documents relating to the Wilson case “as well as documents regarding payments to Jackson lawyer Ed Peters, who played no known role in the case. In 2001, Peters retired as Hinds County district attorney.”

An active comment thread at Lotus/folo includes additional information about Peters, among other topics, and also passes along details about some of non-wannabe Timothy Balducci’s past involvements in high-stakes litigation, from his own promotional material. A sampling:

In 2006, Tim was Lead Counsel in Mississippi’s successful prosecution of securities fraud claims against Citigroup in Federal District Court in New York. His success in representing the state in so many complex litigations was a major factor which contributed to his selection by the Commonwealth of Kentucky to prosecute an action on its behalf to recover over $1 Billion dollars in government funds from a major chemical manufacturer. Also, the United States District Court in Charleston, South Carolina, selected Tim to serve on the National Leadership Committee for the ReNu contact lens solution litigation against Bausch & Lomb.

Notes a commenter: “it’s amazing how much lawyering these tiny law firms seem to get done. It’s just as amazing that he gets it done with *no reported decisions.* Pretty strange.”

Alan Lange at Y’All Politics is back with a synopsis of Scruggs’s current troubles, and as always don’t miss the David Rossmiller updates (Dec. 15 and Dec. 16).

Eric Goldman calls the case of BidZirk v. Smith, filed by a South Carolina eBay reseller against the blogger who’d criticized its services, “a flagship example of how a pernicious and misguided plaintiff with a thin skin can ruin a blogger’s life.” Maybe “ruin” is no longer the operative term, since a federal court has just thrown out the case. Among the court’s determinations: calling a company’s founder a “yes man” is opinion and not actionable as defamation (Oct. 28 and, before that, Nov. 21, 2006; decision (PDF)). More: Ron Coleman fingers as a culprit the “American Rule” (no shifting of fees) under which “there is for all practical purposes no downside to suing someone on the most preposterous of grounds and losing — hence making the bringing of meritless litigation a part of every large company’s toolkit for silencing criticism and destroying smaller competitors.”

“Amber Dauge was by all accounts a good student at Goose Creek High School” in South Carolina, until the fateful toast-assistive implement got her busted under the school’s zero-tolerance-for-weapons policy. (Chris Francescani, “Expelled for Possession of a Butter Knife”, ABCNews.com, Oct. 22). See Oct. 23-24, 1999 (knife to cut cake), Aug. 25, 2003 (bread knife). Related: May 2, 2005.

Last year, New York City Mayor Bloomberg filed federal lawsuits against bunches of gun stores across the country; we’ve covered these suits extensively. (See, e.g. May 2006, Jun. 2006), Sep. 2006). NYC sent people to stores in places such as Georgia, Ohio, Virginia and South Carolina; these city agents then conducted “stings” in which they made supposedly illegal firearms purchases. Bloomberg then sued these stores, claiming that the guns were ending up in New York City and that the stores should for some reason be liable for this.

Somehow, despite the fact that whatever illegal sales took place did so in Georgia, Ohio, Virginia and South Carolina, the suit ended up in the Brooklyn courtroom of federal Judge Jack Weinstein, the man who has never seen a products liability case he couldn’t endorse. The gun stores moved to dismiss the suits on the grounds that New York courts have no jurisdiction.

Last week, Weinstein rejected the gun stores’ motion in a 99 page opinion (PDF) replete with anti-gun rhetoric (about criminals who “terrorize” the city and descriptions of guns as “Saturday Night Specials”) and citations to his own decisions in previous gun-litigation cases (Jul. 2003) So the suits will continue; a trial date has been set for January.

Republican presidential-non-candidate Fred Thompson doesn’t think much more of these suits than we do.

• Judge Bartnoff declines to reconsider decision against Roy Pearson in dry cleaner pants case [AP/WUSA]
• Turnabout fair play? Louisville hospital sues trial lawyers, saying they injured its reputation and tried to extort settlement [Courier-Journal]
• Employer sued for “post-traumatic stress disorder” after pranksters post co-worker’s profile on gay section of HotOrNot.com [McCullagh, CNet]
• Former Belleville, Ill. cop sues over prosecutor’s letter suggesting his testimony not to be relied on [M.C. Record]
• British race relations agency demands removal from shelves of Tintin comic book [Telegraph]; 22-year-old in Scotland sentenced for “racially aggravated breach of the peace” after website commentaries that went “beyond the realms of bad taste” [also Telegraph]
• Farewell to that little patch of floating liberty, the South Carolina river shack [Zincavage]
• Hey docs: if a plaintiff’s law firm calls your office to talk about a former patient, don’t call back [Medical Economics via KevinMD]
• Yale Club replies to Judge Bork’s lawsuit [Turkewitz]
• Arizona businesses aghast at hiring-sanctions law that suspends their license to operate should supervisor be found to have hired an illegal [Arizona Republic]
• Grants from Bob Barker foundation (Jul. 5, 2001) help fuel animal rights boom in law schools [NLJ]
• University of Utah settles lawsuit brought by devout Mormon student actress who refused to recite dramatic lines that were blasphemous or obscene [three years ago on Overlawyered]

Geoffrey Fieger (May 5, 2006; Mar. 24, 2005; Mar. 13, 2005; Aug. 31, 2004; etc.) got some favorable rulings in a South Carolina medical malpractice case. Fieger claims that the hospital fatally overdosed the plaintiff’s dead husband; the hospital argues that, as an autopsy showed, he died of a rare heart condition. Because the hospital only had copies of the original records, and not the original records themselves, Fieger persuaded the judge to instruct the jury that the defendant hospital had engaged in a cover-up and that the jury could draw an adverse inference; moreover, the jury wasn’t told about a side-deal Fieger cut with a co-defendant that apparently resulted in that defendant making only a token defense at trial in exchange for a limitation of damages, a sequence that a non-settling co-defendant doctor protested futilely as Fieger directed his closing argument at her, calling her a killer and a liar. Fieger asked for $55 million including punitives, the jury returned $30 million in “compensatory” damages but the judge threw the whole verdict out as obviously the product of passion or prejudice. Fieger says he looks forward to retrying the case. The case was brought before South Carolina capped malpractice awards. (John Monk, “$30 million verdict overturned”, The State, Mar. 9; John Monk, “$30 Million awarded in death of physician”, The State, Aug. 12).

• In “State of the Economy” speech, Bush says litigation and regulation harm U.S. financial competitiveness, praises enactment of Class Action Fairness Act [Reuters; his remarks]


• How many California legislators does it take to ban the conventional lightbulb in favor of those odd-looking compact fluorescents? [Reuters, Postrel, McArdle first and second posts]


• Levi’s, no longer a juggernaut in the jeans world, keeps lawyers busy suing competitors whose pocket design is allegedly too similar [NYTimes]


• Clinics in some parts of Sweden won’t let women request a female gynecologist, saying it discriminates against male GYNs [UPI, Salon]


• Is the new Congress open to litigation reform? Choose from among dueling headlines [Childs]


• Anti-SLAPP motion filed against Santa Barbara newspaper owner McCaw [SB Ind't via Romenesko]


• Uncritical look at Holocaust-reparations suits against French national railway [Phila. Inquirer]


• Deep pockets dept.: court rules mfr. had duty to warn about asbestos in other companies’ products, though its own product contained none [Ted at Point of Law]


• Lawyering up for expected business-bashing oversight hearings on Capitol Hill [Plumer, The New Republic]


• “King of vexatious litigants” in Ontario restrained after 73 filings in 10 years, though he says he did quite well at winning the actions [Globe and Mail, Giacalone's self-help law blog]


• Sen. Schumer can’t seem to catch a break from WSJ editorialists [me at PoL]


• South Carolina gynecological nurse misses case of Rocky Mountain spotted fever — that’ll be $2.45 million, please [Greenville News via KevinMD]


• Five years ago on Overlawyered: we passed the milestone of one million pages served. By now, though our primitive stats make it hard to know for sure, the cumulative figure probably exceeds ten million. Thanks for your support!

• DOJ subpoenas of online-gambling firms spark UK outrage (Times Online)


• “Don’ts” for lawyers: don’t supplement your criminal-defense practice by running escort service on the side [NY Law Journal]


• Maternity-clothing retailer tripped up on pregnancy discrimination claim [Lenard]


• Filling out a Quicken-software will for an elderly client deemed “unauthorized practice of law” in South Carolina [McCullagh, Giacalone]


• Champerty ‘n’ maintenance update: New York courts allow suspended lawyer Ross Cellino [Jul. 15, 2005] to resume practice [Business First of Buffalo]


• Worried about long-dormant restitution or repatriation claims that might arise to put a cloud on your art holdings? Buy art-title insurance [Forbes pay archive]


• Snatching whole milk from schoolkids not such a great idea, maybe [Musil]


• Yes, let’s stop slamming lawyers for representing unpopular clients — and let’s start being consistent about it [Ted "no relation" Olson, Katyal via Adler]


• Pfizer sued on theory its frisky Viagra ads encourage spread of sexually transmitted diseases [AP/WaPo](complaint courtesy Slate)


• After his experiment in splitting up his blogs, Steve Bainbridge has reunited them again [ProfessorBainbridge.com]


• Remove Child Before Folding author Bob Dorigo Jones interviewed about wacky warnings (see Jan. 6, Jan. 12, etc.) [Illinois Review].


• Note: one item originally posted here [on air-show crash] removed as duplicative of one of Ted’s earlier.

I’d like to thank Walter and Ted for letting my play in their sandbox this past week. Before I go, I’d like to highlight a few more antitrust cases and stories to watch in 2007:

Continue Reading »

For the past three years, Stan Cramer has been fighting to save his parking garage near the Harrisburg International Airport from eminent domain seizure by the airport’s municipal operating authority. The airport wants to eliminate competition with its own parking lots, and when Cramer refused to sell voluntarily, the authority used its powers under Pennsylvania law to take the property by force. Recently, a Pennsylvania judge allowed Cramer’s lawsuit to stop the seizure to proceed to trial.

In a related case, Pennsylvania AG Tom Corbett filed a federal lawsuit last year to stop the airport authority’s seizure on the grounds that it violates federal antitrust law. It’s a strange setup: The Commonwealth of Pennsylvania suing one of its own subdivisions in federal court over the use of power granted by state law. In March, U.S. District Judge Christopher Conner dismissed the AG’s complaint, citing the airport authority’s immunity from federal antitrust lawsuit as a state actor. Conner said the airport’s anti-competitive motives were irrelevant; its actions were clearly authorized by the Pennsylvania legislature.

Corbett appealed the judge’s dismissal to the Third Circuit Court of Appeals. Briefs were filed in October, and a decision on the appeal is expected next year. Meanwhile, new management has taken over at the airport, and they are trying to negotiate a settlement with Cramer.

Continue Reading »

Some follow-up observations about the Ford Bronco $31 million verdict post.

1. South Carolina is one of the few states that has the pure form of the doctrine of “joint and several liability”, under which any deep-pocket defendant is 100% liable even if they’re only found 1% at fault. Thirty-seven states have enacted some limits on this, but South Carolina has not. Such a legal system creates incentives to find the deepest pocket and attach a shred of fault to them so that they are held entirely responsible for the consequences of others.

2. I’ve read several plaintiffs’ briefs arguing for upholding similar verdicts, as well as submissions made to NHTSA arguing that certain vehicles are “too prone” to roll over. They essentially come down to requests to ban SUVs: every SUV faces accusations of being “too prone to roll over.”

SUVs are designed to have high clearance to traverse rugged terrain. This raises the center of gravity and affects the handling: it’s a known tradeoff of the laws of physics. There are a wide variety of tests of varying degrees of scientific merit one can use to suggest a vehicle is “too prone” to roll over, and plaintiffs have the benefit of cherry-picking which tests to apply to which vehicles. You’ll find lots of lawyers complaining that the Bronco II allegedly responded poorly in “J-turn tests”, where the steering wheel is turned 330 degrees in one third of a second and held there for another 4.67 seconds. Ford designed the Explorer to pass the J-turn test to take away this claim, and the trial lawyers started using different methodologies to claim that the Explorer was too prone to roll over.

Empirically, however, the Bronco doesn’t roll over more than several other SUVs on the market, which is why NHTSA, in both the Bush I and Clinton administrations, refused to recall the Bronco when the plaintiffs’ bar asked it to. When I say Ford was held liable for producing an SUV, I’m not spinning: it was because it was held liable for producing an SUV.

Moreover, a vehicle should be viewed in totality: an auto that is more likely to roll over may be safer in other particulars that more than compensate for that increased propensity. So I question the premise. One can’t change the rollover propensity without creating a different vehicle entirely. The vehicle should be viewed holistically, and holistically, the Bronco is a safe car when used as designed.

Perhaps we as a society would be better off taking the nanny-state step of banning SUVs, forbidding people from wildnerness driving because too many drivers don’t know how to drive SUVs in highway conditions, but that’s a decision that not only would end the American auto industry, but should be made other than by a 12-person jury of laypeople. This vehicle rolled over because the driver drove off the road.

3. The ultimate cost is borne not by Ford, but by the rest of us: lawsuits like this add $500 to the price of every American car. You and I can’t go to the car manufacturer and get a cheaper car by promising not to be as stupid a driver as this one was. So careful drivers are subsidizing careless ones.

4. It’s unlikely that the $500 applies equally to expensive and cheap cars, but not in the manner you think: (1) the less expensive car is more likely to be driven longer and more often and with more carpooling passengers; (2) less likely to have expensive top-of-the-line safety features that haven’t yet become standard and thus more likely to be sued over the lack of those features; and (3) more likely to be sold in such a volume that trial lawyers have put together a cheap package targeting the vehicle for lawsuit in the hopes of achieving economies of scale by targeting a lot of potential plaintiffs. (There will never be a mass tort for a Rolls Royce, for example—not enough of them are sold.) Note that the plaintiffs’ bar puts profits before people: they look at the costs and benefits of bringing suit, and target the most profitable vehicles to sue over, rather than the most dangerous ones, which is why the Ford Pinto is notorious and the VW Beetle (whose designers were so inconsiderate to write their memos in German instead of cheap-to-analyze English), which killed people at a much higher rate, is remembered with fond nostalgia.

So average liability is, if anything, higher for cheap cars than expensive cars; the $500 figure (which comes directly from the president of Chrysler) is probably higher for cheap cars and lower for expensive cars, and perhaps close to zero for the Rolls.

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. (It’s unclear how injured Branham is: the story mentions that he’s given up athletic dreams and has memory problems, and his father said he worries Branham can’t hold a job, but Branham also has “average grades” in his high school. So either Branham’s injuries aren’t that severe and have been exaggerated for trial, or the average high school student in Hampton County exhibits signs of brain damage, or “average” is a euphemism for “below average,” a la Lake Wobegon.) Ford will appeal. Cases brought against Ford by Hale and the other three passengers are still pending, so Ford’s bill for Hale’s carelessness is only going to go up. (Warren Wise, “Ford, injured youth’s family fight on”, Charleston Post & Courier, Dec. 8).

Hampton County was named a judicial hellhole in 2004 when South Carolina law permitted plaintiffs in the state to pick any county they wanted to bring suit, and taken off the list in 2005 when South Carolina fixed its venue rules, but, of course, Hampton County residents still get the friendly juries there. (Schuyler Kropf, “Hampton County juries have reputation”, Charleston Post & Courier, Dec. 8).

Two of my least favorite things—misogynistic frat-boys and frivolous lawsuits—together at once. Three Chi Psi fraternity brothers from the University of South Carolina, after signing waivers and getting paid $200, got caught drunkenly wishing for slaves and making other obnoxious sexist and racist remarks on film to Sasha Baron Cohen in his character of Kazakh journalist Borat; those scenes appeared in the movie. They’re now suing, wanting takebacks. TMZ has the Los Angeles Superior Court complaint, which asks for an injunction, punitive damages, and attorneys’ fees. (I look forward to the discovery on the “false light” claims that suggest that the plaintiffs never would say such things as they were recorded being said.) Earlier, a friend of one of the frat boys asked Metafilter for advice. The complaint is filed by John Does, but Chi Psi David Corcoran has already bragged about the experience to FHM. Frat president Todd Bailey talks about the story to the local paper.

(Update: Upon further review, I see that the complaint alleges that the movie “falsely depicted them as insensitive to minorities.” There is no allegation that the movie falsely depicted them as insensitive to women. In the trade, that’s known as a negative pregnant.)

(Second update: Bashman with a roundup of links and Lat with sardonic commentary.)