- “Copyright troll Righthaven in its death throes, domain going up for auction” [Cory Doctorow, BoingBoing]
- Controversy over litigation finance continues [WaPo, NYPost]
- Presumably unrelated to above: “Unpaid Bills Land Some Debtors Behind Bars” [NPR]
- “Rent Control Violates Property Rights and Due Process” [Ilya Shapiro and Trevor Burrus, Cato, on Harmon v. Kimmel cert petition]
- Child abuse horrors result in dubious policy proposals including moves to abolish statutes of limitation, cast wider mandatory-reporting net [Howard Wasserman/PrawfsBlawg, Kyle Graham/Concurring Opinions]
- Schwab IRA class action settlement: lawyers get $500K while benefit to class is unclear [Lawrence Schonbron, Washington Times]
- “State Court Challenges to Legislatively Enacted Tort Reforms” [Andrew Cook and Emily Kelchen, Federalist Society "State Court Docket Watch"]
Posts tagged as:
statutes of limitations
After we passed along a recent report that Beaumont, Texas lawyers had filed 59 lawsuits the day before the state’s new “loser-pays” package of litigation reforms was to take effect, Texas attorney Brooks Schuelke responded on Twitter as follows (re-formatted and edited for clarity), saying that the issue wasn’t the loser-pays provision, but a separate “responsible third party” provision that set a malpractice trap for lawyers that delayed: “The responsible third party provisions allowed a defendant to name a party, and then plaintiff could join them even if the statute of limitations had expired. The law was changed to remove the ability to sue regardless of the statute of limitations. But defendant can’t name a party not disclosed in discovery. The amendment means we have to file suit long before the statute of limitations expires to send discovery asking defendant to name who it might name. So many cases nearing the statute of limitations had to be filed before the effective date of the change or else they could be victim to the amendment.”
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White Coat sums up a recent jury verdict: “Obstetrician ordered to pay $3 million to patient born with cerebral palsy … 18 years ago.” The doctor, from Glens Falls, N.Y., “has $2 million in insurance coverage and may have to cover $1 million of the verdict himself,” according to the story. Statutes of limitations in medical malpractice actions are often “tolled” (suspended) until a child reaches the age of majority, so that it is by no means unheard-of for families to file suit a decade and a half after a medical occurrence.
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There’s no statute of limitations on child support, and Rosemary Douglas says she’s still owed the money for the birth of a son during the Truman Administration. [Houston Chronicle]
Correction/update: Commenter Patrick points out that this is an enforcement-of-judgment matter rather than a suit, and offers a reading of Texas law likely to be of interest to the alleged dad in the case.
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- Historic preservation and habitat preservation laws can backfire in similar ways [Dubner, Freakonomics]
- Serious points about wacky warnings [Bob Dorigo Jones, Detroit News]
- Texas solons consider lengthening statute of limitations to save Yearning for Zion prosecutions [The Common Room]
- A call for law bloggers to unite against content-swiping site [Scott Greenfield]
- Drawbacks of CFC-free pulmonary inhalers leave asthma sufferers gasping [McArdle, Atlantic]
- Try, try again: yet another academic proposal for charging gunmakers with costs of crime [Eggen/Culhane, SSRN, via Robinette/TortsProf] More/correction: not a new paper, just new to SSRN; see comments.
- California businesses paid $17 million last year in bounty-hunting suits under Prop 65 [Cal Biz Lit]
- Trial lawyer lobby AAJ puts out all-points bulletin to members: send us your horror stories so we can parade ‘em in the media! [ShopFloor]
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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…
A new book contends that subpar rivets and riveting might have materially contributed to the disaster. Given the erosion of statutes of limitations, might that give rise to lawsuits, even after all this time? (Childs, Apr. 15).
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I have an op-ed in today’s National Review Online:
Pope Benedict XVI’s visit to the United States this week will be the first papal visit since the Roman Catholic Church abuse scandal broke in 2002. Archbishop Pietro Sambi, the Vatican’s top diplomat in the United States, expresses confidence that the pope will address the scandal while here. Trial lawyers, however, having been asking legislatures for years to address the problem in their own particular way: more lawsuits. That proposed solution, through undoing statutes of limitations and permitting new lawsuits over long-ago crimes, creates more problems than it solves, and hurts more than just the actors responsible for those crimes.
Reviver legislation is pending in six states, and has been proposed in many more.
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My latest Liability Outlook examines the problems of retroactive lawmaking and litigation, especially reviver statutes, and even Obama fans will find something to like:
The controversy over whether and how to seat the Michigan and Florida delegations at the Democratic National Convention shows the danger of changing rules midstream and upsetting settled expectations. Reviver statutes not only obviate statutes of limitations, which are a critical aid to justice, by “reviving” claims that have expired or never existed, but they can also pose the danger of undoing the benefits of future prospective legislation. In evaluating laws, the issue is not merely one of retroactivity, but of the importance of promoting legal certainty. For example, the FISA Amendments Act, S. 2248, while ostensibly acting retroactively to grant immunity to telecommunications companies that cooperated with the Bush administration’s antiterror surveillance program, works to protect settled expectations.
Among matters discussed: litigation against the Catholic church over child abuse by priests and the Michigan legislature’s proposed retroactive repeal of pharmaceutical tort reform in H.R. 4045. Walter has previously discussed the subject.
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The WSJ and Mississippi’s WLOX have the news up on Dickie Scruggs’ plea of guilty to conspiracy in the attempted bribe of Judge Henry Lackey. Earlier today, the Journal had an illuminating page-one feature on Dickie Scruggs’s history of fee disputes with other lawyers. YallPolitics‘ server seems to be down at the moment from traffic, but is back up now; in an email alert, YP’s Alan Lange said the surprise plea came three days before the deadline for Scruggs to plead before his approaching trial. Our past coverage is here, or check our Scandals page.
Update 12:18 EST: AP coverage is here (via Rossmiller). Sid Backstrom also pleaded and, per Folo rapid updates, is cooperating with prosecutors. No deal for Zach Scruggs yet. Also per Folo, Scruggs pleaded to conspiracy in the Lackey bribe attempt but did not resolve possible charges in the DeLaughter case, per the government side.
12:44: Now Folo’s server has crashed. Temporary replacement site up here.
1:16: Per Patsy Brumfield at the NEMDJ:
…The government recommended a sentence of five years in prison for Scruggs and 2 1/2 years for Backstrom. They also will pay a maximum fine of $250,000 each and a court fee. …
Before Biggers accepted their pleas, Scruggs and Backstrom admitted in open court that they had done what the government said they had done in Count One – they had conspired to bribe Circuit Judge Henry Lackey of Calhoun City for a favorable order in a Katrina-related legal fees case….
Dickie Scruggs, arguably the most famous plaintiffs’ attorney in the U.S., looked pale and thin but carried himself with a bit more control than his younger colleague at The Scruggs Law Firm, headquartered on the storied Square in Oxford.
The 61-year-old Ole Miss Law School grad and legal giant-killer, as well as Backstrom, likely will voluntarily surrender their law licenses, as has co-defendant Timothy Balducci of New Albany, who pleaded guilty in December although he was wired and cooperating with the government at least a month earlier.
“Do you fully understand what is happening here today,” Biggers asked him.
“Yes, I do,” Scruggs responded.
Questioned about whether he had discussed his decision to plead guilty with his attorney, Scruggs responded, “With my attorney, my wife and my family.”
1:25 p.m.: Rossmiller has an update from a correspondent at the scene. And Folo is up at a temporary site until its server gets back online. Excerpts from Folo’s on-the-scene report:
…* Richard Scruggs is pleading to conspiracy to bribe a state court judge, count 1 of the indictment, with other counts to be dismissed. This was an open plea, that is, no recommended sentence.
* The government expects that he will get the full five year sentence on that count. …
* There was no mention of cooperation by Scruggs. …
* There was an interesting and unusual disagreement with the government’s statement of facts in the plea colloquy. The government stated in its facts for both Backstrom and Scruggs that a conspiracy began in March to corruptly influence the state court judge, and Scruggs spoke to say that he had agreed to earwig the judge but not corruptly influence him in March, and that he later agreed to join a conspiracy to corruptly influence the judge. Sid Backstrom took a similar stance….
[See also WSJ law blog and later NMC post, as well as WikiScruggs on "earwigging" as a Mississippi tradition.]
1:56: Welcome Glenn Reynolds/Instapundit and David Rossmiller/Insurance Coverage Blog readers.
3:18: The Jackson Clarion-Ledger reports: “As part of the plea deal, federal prosecutors agreed to defer prosecution of Scruggs’ son, Zach Scruggs, who agreed to give up his license to practice law.” [N.B.: NMC @ Folo has a very different take, and other sites are also questioning the C-L's reporting on this point.] Folo at its temporary bivouac has PDFs of the Scruggs and Backstrom pleas and underlying facts, as does David Rossmiller. ABA Journal coverage includes the text of a forthcoming article by Terry Carter on the affair, written pre-plea. Other reactions: Above the Law (”has Scruggs employed bribery as a tactic in other matters — e.g., the tobacco cases that made him famous …?”), Beck and Herrmann (”What a week. First Spitzer, and now Scruggs. What goes around, comes around.”), TalkLeft, Michelle Malkin, NAM Shop Floor (”So what are the odds that this was Dickie Scruggs’ first and only crime during his decades-long career as a trial lawyer?”).
6:27: Roger Parloff wonders whether Scruggs will cooperate, and whether the statute of limitations might have run already on tobacco skullduggery. NMC @ Folo wonders what prosecutors will make of a slew of fresh documents from the Scruggs Law Firm, or whether perhaps such documents have already had an effect. Not so surprising a plea, says Jane Genova at Law and More, but rather “widely expected“.
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The Rhode Island attorney general’s office has charged a man with rape based on a memory “repressed” by the complainant “until recently”. Harold Allen of Narragansett, 48, at the time of the alleged incident was sixteen years old, as was the complainant. Allen has pleaded not guilty, and through his attorney says he never had relations with the woman, though he was acquainted with her. There is no statute of limitations on the charge of first-degree sexual assault. (”Man charged with rape 32 years later”, AP/EyewitnessNews, Jun. 14; Volokh, Jul. 3).
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A couple of weeks ago, we reported on two teenagers who claimed to be traumatized by seeing a gay sex book at the library. But how traumatized could they be? After all, they sued for just $20,000. So, logically, they must have only been 1/20th as distressed by the thought of gay people as Jessica Turner of Chicago:
A suit was filed on behalf of a 12-year-old girl who claims she suffered psychological distress when a teacher showed in class the gay-themed movie “Brokeback Mountain.”The girl, Jessica Turner, and her grandparents Kenneth and LaVerne Richardson, are seeking more than $400,000 in damages under the suit filed Friday against the Chicago Board of Education and others.
[...]
The plaintiffs accuse Diaz, Buford and the Chicago Board of Education of negligence, false imprisonment and intentional infliction of emotional distress.
The suit claims Jessica continues to suffer from emotional distress caused by watching the film and is currently undergoing psychological treatment and counseling.
You know, as I recall, William Faulkner had that effect on me. I wonder what the statute of limitations is on psychological-assault-by-bad-literature.
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In 1921, there were massive race riots which led to the destruction of the black section of Tulsa, Oklahoma and the murder of dozens or hundreds of blacks. (See Wikipedia for one account.) At the time, the official story exonerated local whites, blaming the riot on blacks; eventually, the whole incident was forgotten. In 1997, the Oklahoma legislature set up a commission, which issued a report four years later which found that in fact white residents, aided and abetted by the local government, were at fault.
Enter the lawyers. Eighty-two years after the incident, Johnnie Cochran, Charles Ogletree and other prominent attorneys filed a federal civil rights suit against the city of Tulsa and the state of Oklahoma on behalf of the survivors, seeking monetary damages and injunctive relief. As you might expect, courts don’t look too kindly on eight-decade old lawsuits, and so the federal district and appellate courts dismissed the suit, on the grounds that the statute of limitations had long since passed. (The Supreme Court declined to hear an appeal.)
So now the lawyers (well, not Johnnie Cochran) are in Washington, trying to get Congress to retroactively extend the statute of limitations so they can sue. Ogletree is a driving force behind the slavery reparations movement, which so far has also foundered on statute of limitations issues; if he succeeds here, be assured that he won’t be resting on his laurels.
(To be clear, unlike many of the suits we chronicle on Overlawyered, the Tulsa suit is not inherently frivolous, and it may well be legitimate to assign blame to the city and state, for actions that (unlike slavery) were illegal even at the time. But, to reiterate: eighty years.)
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Remember the “Eenie Meenie Minie Mo” case? (Feb. 2003, Jan. 2004, Aug. 2005.) Here’s a variation which is almost as ridiculous, if less entertaining, from the Virgin Islands. Bad customer service as a cause of action:
During a layover in Puerto Rico, the passenger approached American’s ticket counter to verify her connecting flight to the Virgin Islands. The ticket agent supposedly refused to return the passenger’s ticket and told her “to shut up and take a seat” and that she might not be scheduled to travel on any flight that day.The passenger sued American, alleging claims under Virgin Island territorial law for negligence, breach of an implied contractual duty to ensure that employees “conduct themselves in a professional manner” and discrimination. The passenger’s claims seemed to focus solely on her alleged emotional distress from being treated rudely; the opinion does not indicate that the agent’s conduct caused the passenger to miss her flight or suffer any other more tangible injury.
Fortunately (unlike in the Eenie Meenie case) the court did not let this case get to trial; he granted summary judgment in favor of the defendant Airlines. As a result, American Airlines probably “only” spent in the low five digits to “win” this case.
Incidentally, I’ve heard the pace of life is slower in the Caribbean, but this flight took place in July 1996. The suit was filed two years later — it looks like just before the statute of limitations expired — in July 1998. Inexplicably, American Airlines did not move for summary judgment until eight years later, in July 2006; it’s not clear what was going on in the interim.
(But judging from one of the plaintiff’s previous trips (PDF) through the legal system, it would not be beyond the realm of possibility that she might bear some responsibility for the long delay.)
In 2002, an 18-year old community college student named Joshua Endres signed up for a Wells Fargo credit card, allegedly based in part on the promise made by a sales representative that it could provide overdraft protection for his Wells Fargo checking account. He “does not recall” seeing any of the disclosures and disclaimers from the bank which explained to him that there’s no such thing as a free lunch — that he would be charged a fee if he overdrew his checking account.
A few months after signing up, he overdrew his account, and was charged this fee. He discovered this a few days later, when he received his credit card statement. He was so outraged by this unconscionable behavior by Wells Fargo that he immediately cancelled the card. No, not really; this isn’t April 1st. In fact, he immediately used the card for four more years, incurring at least fifty more overdraft charges. Then he filed a lawsuit demanding restitution, and compensatory and punitive damages, alleging that nobody told him that he would be charged a fee.
McCune admits Endres could have done a better job of tracking his charges. Endres once exceeded his limit 62 times in a year, causing him to pay $620 in finance charges so he could obtain $1,115 in cash.“It took a couple of years before he sat up and noticed,” McCune said. “The information was available to him.”
That’s his own lawyer admitting that.
There are other problems with the lawsuit, related to the statute of limitations and federal preemption of California laws, but the larger issue here is that someone would fail to read his credit card agreement, incur fees for four years based on the terms of the agreement, and then try to sue on the grounds that nobody told him what the agreement said about those fees. (Oh, did I mention that Endres’s lawyer seeks to turn this into a class action lawsuit?)
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Following urgings by prominent attorney and frequent Overlawyered mentionee Willie Gary, a jury in Pensacola, Fla. had awarded the sum to a road builder who said he was defamed by an investigative-journalism piece in the newspaper chain’s Pensacola News-Journal (Mar. 30-31, 2001; Dec. 23, 2003; Jan. 7, 2004). The Florida appeals court “ruled that Joe Anderson’s case should have been dismissed because he mischaracterized his lawsuit as a ‘false-light claim’ to get around a two-year statute of limitations that applies in libel cases. The court said that since its decision was based on the statute-of-limitations issue, it did not rule on several other arguments for reversal raised by the newspaper.” (Ginny Graybiel, “News Journal suit reversed”, Oct. 21).
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For some reason, we haven’t yet covered the Washingtonienne libel suit, where Little Rock law professor Robert Steinbuch revealed he was “R.S.” by filing suit against the infamous blogger, causing Judge Paul Friedman to comment, “I don’t know why this guy thought it was smart to file a lawsuit and lay out all of his private intimate details in an appendix to the complaint.”
Now Wonkette reports that Cutler’s third set of attorneys in the litigation Robert Steinbuch has filed against her, and has not yet retained new attorneys. Why might you care? Because Steinbuch, who waited until May 16, 2005 to complain about a May 4, 2004 blog post, is planning on arguing that every new blog post restarts the statute of limitations for a plaintiff wishing to complain about a blog. (T.R. Goldman, “A Man Scorned”, Legal Times, May 22). If Cutler defends against this argument pro se, Judge Friedman could be induced into an erroneous ruling that makes life difficult for bloggers everywhere. And there’s no reason that Steinbuch’s logic wouldn’t equally apply to computer databases like LEXIS that “republish” mainstream media articles upon request. One hopes Friedman will see through the Steinbuch argument.
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The Missouri Supreme Court has ruled that if plaintiffs claim to have repressed their memory of the bad things that happened to them, they may succeed in suspending for years and even decades the statute of limitations on the resulting tort actions. The court reinstated a suit by a man who said he had been sexually abused at Chaminade College Preparatory School 30 years ago, but had repressed the memory of the episode for 25-odd years. (Robert Patrick, “Repressed memory abuse suits supported”, St. Louis Post-Dispatch, Jun. 13). Reader Patrick R., who sent the item along, says: “This is an invitation to fleece churches and insurance companies through fraudulent claims and an invitation for claimants to sleep on their legal rights.”
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