Overlawyered » state high courts

October 25 roundup

Walter Olson — Mon, 25 Oct 2010 12:48:07 +0000

And she’s a psychology professor too: “Pro se litigant of the day” [ATL]
“Access to justice” makes handy slogan, but has its limits re: appeal bonds [Ted at PoL]
New Federalist Society white papers on Michigan, Illinois, California and Alabama supreme courts;
Per her opponent this year, CPSIA proponent and perennial Overlawyered bete noire Jan Schakowsky ranks as most left-wing member of Congress [ExtremeJan.com]
Naming opportunity at Faulkner U.’s Jones School of Law falls to Greg Jones of Beasley Allen [BA press release]
Lockyer pushes divestment of firms for taking wrong stance on ballot controversy [Coyote]
“Patent marking” suits continue to proliferate as Reps. Latta, Issa propose measures to curb opportunistic filings [Gray on Claims]
“South Carolina tobacco fees: how to farm money” [ten years ago on Overlawyered]

Tags: access to justice, Alabama, Bill Lockyer, California, Federalist Society, Illinois, Jan Schakowsky, Michigan, patent marking, pro se, South Carolina, state high courts

Breaking: Tennessee Supreme Court reinstates punitive damages in Flax v. DaimlerChrysler

Ted Frank — Thu, 24 Jul 2008 19:22:32 +0000

Perhaps we spoke too soon when we commended the Tennessee appellate court for getting it partially right. As we stated in November 2004:

In 2001, Louis Stockell, driving his pickup at 70 mph, twice the speed limit, rear-ended a Chrysler minivan. Physics being what they are, the front passenger seat in the van collapsed backwards and the passenger’s head struck and fatally injured 8-month old Joshua Flax. The rest of the family walked away from the horrific accident. Plaintiffs’ attorney Jim Butler argued that Chrysler, which already designed its seats above federal standards, should be punished for not making the seats stronger — never mind that a stronger and stiffer seat would result in more injuries from other kinds of crashes because it wouldn’t absorb any energy from the crash. (Rear-end collisions are responsible for only 3% of auto fatalities.) Apparently car companies are expected to anticipate which type of crash a particular vehicle will encounter, and design accordingly. The $105M verdict includes $98M in punitives.

We had more details of trial shenanigans in December 2004 and noted the reduction of the punitives by the trial court to a still unreasonable $20 million in June 2005. In December 2006, the intermediate appellate court threw out the punitive damages and the negligent infliction of emotional distress claim, leaving a $5 million compensatory damages verdict to be split between Chrysler and the driver responsible for the accident. An injustice, but at least a smaller injustice.

However, today, a 3-2 vote of the Tennessee Supreme Court made it a larger injustice again, reinstating $13,367,345 of punitive damages over a good-faith dispute over appropriate seatback design, giving no credit to evidence that the design in the Caravan was safer than the plaintiffs’ proposed design, and effectively disregarding Tennessee statutory law that compliance with federal standards creates a presumption against punitive damages. The Court did not mention Exxon Shipping’s suggestion that punitive damages greater than a 1:1 ratio were possibly constitutionally inappropriate where compensatory damages were substantial and the defendant’s actions were not intentional or done for profit. The Court unanimously affirmed the elimination of the NIED claim; one justice would have thrown out the compensatory damages, as well, because of the volume of inadmissible and improperly prejudicial evidence admitted. (Flax v. Daimler Chrysler (Tenn. Jul. 24, 2008); id. (Wade, J., concurring); id. (Clark, J., partially dissenting); id. (Koch, J., partially dissenting); E. Thomas Wood, “High court upholds $18.4M damage award in DaimlerChrysler case”, Nashville Post, Jul. 24; Kristin M. Hall, AP/Chicago Tribune, Jul. 24). The majority decision relied heavily on the expert testimony of Paul Sheridan, an MBA non-engineer and professional anti-Chrysler witness whom a federal court called “wholly unqualified” to testify on seat back design.

Tags: autos, Chrysler, expert witnesses, Jim Butler, product liability, punitive damages, seat backs, state high courts, Tennessee

July 6 roundup

Ted Frank — Sun, 06 Jul 2008 08:29:00 +0000

Beck and Herrmann fisk a NEJM anti-preemption editorial. [Beck/Herrmann; NEJM]
Lessons of the Grasso case. [Hodak]
You think BigLaw has it bad? Plaintiffs’ attorney who invented the benefit-of-the-bargain theory for pharmaceutical class actions where no one has suffered any cognizable injury, has made his firm tens of millions, but still hasn’t made partner. “Zigler said he never meets most of the people he represents in these high-profile cases.” [St.L. Post-Dispatch; related analysis from Beck/Herrmann]
Speaking of harmless lawsuits, “an atrocity in Arkansas,” as Arkansas Supreme Court ignores basic principles of due process and civil procedure to certify an extortionate pre-CAFA class action from MIller County. [Hmm, that's Beck/Herrmann again; General Motors v. Bryant; related from Greve]
Speedo competitor: unfair competition to say your innovative swimsuit has an advantage just because 38 out of the last 42 world records (as of June 30) were broken in the suit. [Am Law Daily]
Background on bogus shower curtain scare story (earlier). [NYT; related AEI event]
EMTALA-orama: don’t discuss payment in the emergency room if you don’t want to get sued. [ER Stories]

Tags: Arkansas, class actions, competition through litigation, Eliot Spitzer, EMTALA, FDA, General Motors, harmless lawsuits, preemption, problem jurisdictions, state high courts

Richard Neely’s lack of irony (III)

Ted Frank — Thu, 03 Jul 2008 10:47:09 +0000

You may recall a manufactured dispute over the former West Virginia Justice Richard Neely’s quote in The Product Liability Mess:

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

Elizabeth Thornburg, Justinian Lane, and then Richard Neely himself all claimed that Neely was being “ironic” or “sarcastic.” Of course, as numerous other quotes from the book (not to mention Neely’s contemporaneous observations) show, no one who has actually read the book could possibly believe that Neely was being ironic.

So this is perhaps entirely redundant, but it is worth providing some cumulative evidence from a check of the public record. For example, Neely claims he was being “ironic” to “sell books” and didn’t really mean it. Then what’s his excuse when he explicitly used the same reasoning in an opinion he wrote as a West Virginia Supreme Court Justice as a rationale for unjustly treating a corporate defendant?

Indeed, in some world other than the one in which we live, where this Court were called upon to make national policy, we might very well take a meat ax to some current product liability rules. Therefore, we do not claim that our adoption of rules liberal to plaintiffs comports, necessarily, with some Platonic ideal of perfect justice. Rather, for a tiny state incapable of controlling the direction of national law in terms of appropriate trade-offs among employment, research, development, and compensation for the injured users of products, the adoption of rules liberal to plaintiffs is simple self-defense. [Blankenship v. General Motors Corp., 406 S.E.2d 781, 786 (W.Va. 1991).]

If Neely was being “ironic” here, someone should give General Motors back its money.

It’s also worth noting that Justice Neely said the exact same thing in testimony before Congress on September 12, 1991 (139 Cong. Rec. S2090-02):

If you ask the average state judge whether she would like to redistribute some wealth from, say, Colt firearms to a local resident who was severely injured in a shooting accident, the judge will probably answer “yes.” But if you ask the same judge to make a choice between high local employment in Colt’s plants on the one hand, and redistribution of Colt’s money on the other, she is likely to favor high employment over simple wealth redistribution. The problem is that except for the U.S. Supreme Court, no American judge can affect these trade-offs.

If, for example, as a West Virginia judge I insist that West Virginia have conservative product liability law, all I will do is reduce my friends’ and neighbors’ claims on the existing pool of product liability insurance paid for by consumers through “premiums” incorporated into the price of everything we buy. This is the explicit rationale of Blankenship versus General Motors, 406 S.E.2d 781 (W.Va. 1991). …

Thus, as a state judge I have admitted in a unanimous opinion written for the highest court of one of the fifty states that we, as a state court, cannot be rational in the crafting of product liability rules. [emphasis added]

If Neely was being “ironic” here, he forgot to tell Congress.

Of course, anyone who has read the book already knows that Neely was not being ironic. The only people who could suggest otherwise are either ignorant (because they have not read the book, as in the case of Justinian, who, as is his wont, made wild-eyed allegations without getting his facts straight) or, if they have read the book… well, judge for yourself why someone would falsely suggest that a straight statement was ironic. The question remains how a SMU law professor would make such a patently false claim in a law review article, or how such a claim survived fact-checking.

Separately: note that Neely’s argument remains unrebutted (even by the present-day plaintiffs’ lawyer Neely), and explains as well as anything else why federal preemption is absolutely necessary (and entirely consistent with Hamiltonian/Madisonian federalism) in the litigation over interstate commerce.

Tags: Justinian Lane, preemption, Richard Neely, state high courts, West Virginia

Rolando Montez’s fatal phone call: JCW Electronics, Inc. v. Garza

Ted Frank — Wed, 02 Jul 2008 00:51:24 +0000

On November 14, 1999, high-school dropout Rolando Domingo Montez, celebrating his 19th birthday, was arrested for public intoxication and trespass after the owner of the boat on which he and his friends were sitting complained. Police placed him in Cell No. 1 of the Port Isabel City Jail. The next morning, Montez was permitted to make some collect calls from his jail cell to seek bail money from his mother, Pearl Iris Garza. Mom, complaining that Montez was in jail again, refused. But she generously came to pick up Montez on the 16th when he was released on his own recognizance. Unfortunately, while Garza was waiting in the lobby, and while police were responding to a call for assistance regarding a suspicious vehicle, Montez hung himself with the 19-inch phone cord from the phone he had used to make the calls.

This was, said the lawsuit of Pearl Iris Garza, Montez’s mother, the fault of Port Isabel taxpayers. (Montez’s estranged girlfriend, Belinda Leigh Camacho, the unwed mother of his child, also sued.) An Overlawyered reader can expect that. What surprised even me was that the plaintiffs also sued the manufacturer of the phone. (Isn’t it nice that through five years of blogging on the subject, the plaintiffs’ bar still has the capacity to cause outrage? Or maybe I’d be a happier person if I were more cynical.)

Port Isabel is in the south part of South Texas, so you won’t be terribly surprised that a jury found that Montez was only 60% responsible for his death, with the city 25% responsible and JCW Electronics 15% responsible. (Or maybe you’ll be pleasantly surprised that the jury ascribed that much responsibility to Montez.)

Fortunately for Port Isabel taxpayers, the Texas legislature modified its joint and several liability and comparative fault rules to bar any recovery to plaintiffs who are more than 50% responsible for their mishap. Tex. Civ. Prac. & Rem. Code § 33.002(a)(1). Nevertheless, lower courts (including the notorious Corpus Christi appellate court, see 176 S.W.3d 618) bought Montez’s trial lawyers’ argument that JCW was still on the hook because Chapter 33 only applied to torts, and they were ostensibly suing under “implied warranty.” Final judgment was issued against JCW of $140,000 to Garza and $376,200 to Montez’s son. (Camacho got nothing.)

But the Texas Supreme Court sensibly noted (citing decades of precedent) that such lawsuit allegations sound in tort, correctly applied the law, and threw out the case. (JCW Electronics, Inc. v. Garza, No. 05-1042 (Tex. Jun. 27, 2008) (via Steenson); Jail Suicide/Mental Health Update, Winter 2003 (pdf)).

Note cases like this when you see leftist Texas groups count up “business victories” in the Texas Supreme Court and falsely argue that the Court is in the pockets of business interests when the real problem is lower courts making bogus rulings to favor the trial lawyers. And note that had the jury found Montez 49% responsible instead of 60% responsible, JCW and taxpayers would still be on the hook.

Tags: crime and punishment, joint and several liability, personal responsibility, prisoners, product liability, South Texas, state high courts, suicide, taxpayers, Texas

Breaking: Rhode Island lead paint decision overturned

Ted Frank — Tue, 01 Jul 2008 13:33:10 +0000

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.

Tags: lead paint, Motley Rice, public nuisance, Rhode Island, state high courts

June 21 roundup

Ted Frank — Sat, 21 Jun 2008 13:10:50 +0000

Sure enough, former Milberg lawyers sue the convicted ex-Milberg lawyers for breach of fiduciary duty. I was wondering when that was going to happen. [WSJ Law Blog; NYLJ/law.com; earlier]
Why file grievance against a fellow attorney who’s only stolen $200,000 from clients? Colleagues wonder [Las Vegas Review-Journal via ABA]
Judge: No evidence of wrongdoing by Kenneth Pasternak. Too bad he can’t get his three years back. Meanwhile SEC keeps bringing enforcement cases on same repeatedly rejected theory of liability. [WSJ; Law Blog]
“What the AP and The New York Times’ Hansell don’t seem to realize is how hostile an act it is to send lawyer letters to individuals.” [Jarvis via Patterico]
“When judges act like politicians, the judicial selection process – elected or appointed – becomes increasingly political. Action and reaction. The politicization of the court led to the politicization of the elections for justices. … When justices arrogate political policymaking to themselves, they should not be surprised when they are held to the same standards as politicians.” [Wisconsin Policy Research Institute via American Courthouse; I said that, too]
Even Susan Estrich finds the Alex Kozinski web site mini-to-do as evidence of media bias. [Estrich; Patterico link roundup]
Senator McCaskill shows her ignorance on the Anheuser-Busch merger and corporate officer duties. [Hodak]
A clever attorney will already have a fill-in-the-blanks product liability complaint drafted against Lego. [Childs]
Hugo Chavez expropriates wealth to consolidate dictatorship. American lawyer helps. Somehow I don’t think we’ll see an Alien Tort Claims Act suit against his law firm. [AmLaw Daily]

Tags: Alex Kozinski, antitrust, bullying businesses, ethics, judicial elections, media, media bias, Milberg Weiss, Missouri, nastygrams, state high courts, Wisconsin

“Trial Lawyers Inc.: Michigan on trial”

Walter Olson — Wed, 18 Jun 2008 14:56:05 +0000

Few battlegrounds of legal reform have been harder-fought than that in the state of Michigan, where I grew up. On the plus side, the Wolverine State has seen three rounds of legislatively enacted litigation reform, along with the appointment by former Gov. John Engler of probably the most reform-minded state supreme court majority in the nation. On the minus side, trial lawyer interests have long been key players in state politics, often practicing a bare-knuckled brand of advocacy, and the career of colorful (and recently acquitted) Geoffrey Fieger of Southfield, arguably the Midwest’s most prominent trial attorney, is virtually a synonym for waywardness in the courtroom and out.

Now the Manhattan Institute’s Trial Lawyers Inc. series, under the able direction of Jim Copland, has published a new installment taking a look at the state’s tense legal politics. Trial lawyers are expected to work hard this year to knock off reformist Supreme Court Justice Clifford Taylor at the polls, and are also engaged in an all-out push to repeal the state’s one-of-a-kind law directing its courts in liability cases not to second-guess Food and Drug Administration determinations on pharmaceutical approval and marketing. To get up to speed on these issues and more, start here. (cross-posted from Point of Law).

Tags: Manhattan Institute, Michigan, product liability, state high courts

New Jersey high court: palimony without cohabitation OK

Walter Olson — Wed, 18 Jun 2008 14:33:22 +0000

Courts up to now have maintained a bright-line rule of not entertaining palimony claims unless a couple has cohabited, such a rule significantly improving people’s degree of certainty about which former romantic partners might suddenly emerge with a financial claim. But of course when you have bright-line rules of this sort, not as many people get to sue, so the New Jersey high court has now made itself the first state high court to overthrow the rule, inviting claims where the totality of the facts and circumstances “would cause one of the partners to believe a relationship existed, that it was similar to a marriage,” to quote Chatham, N.J. lawyer Alan Zegas (Tom Hester, “Palimony ruling sets precedent in Jersey”, Star-Ledger; NJLJ; AP/Cherry Hill Courier-Post*). Earlier here.

* Okay, there you go, AP, I didn’t quote even the five words from your story. But you also notice I gave the Star-Ledger first billing.

Tags: bright line, New Jersey, palimony, state high courts

Spitzer, Faso, and the New York high court

Walter Olson — Fri, 30 Jun 2006 10:08:53 +0000

I’ve got an op-ed today in the New York Post about one of the less obvious issues in the high-profile race for Governor of New York: whoever wins will get to reshape the state’s highest court, the Court of Appeals, with implications long into the future for the state’s legal well-being. Would a Gov. Spitzer appoint anti-business crusaders to the court? (Walter Olson, “N.Y. Judge Wars: Hidden ‘06 Issue”, New York Post, Jun. 30)(cross-posted at Point of Law) (& welcome readers of Prof. Bainbridge, who says kind things).

Tags: accolades, Eliot Spitzer, governors, New York state, state high courts, WO writings

Overlawyered » state high courts

October 25 roundup

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Breaking: Tennessee Supreme Court reinstates punitive damages in Flax v. DaimlerChrysler

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July 6 roundup

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Richard Neely’s lack of irony (III)

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Rolando Montez’s fatal phone call: JCW Electronics, Inc. v. Garza

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June 21 roundup

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