• More fen-phen scandals: Possible smoking-gun email in Kentucky case (see Walter’s post today) came from Chesley firm computer; Vicksburg lawyer first attorney convicted in Mississippi fen-phen scam. [Courier-Journal via Lattman; Clarion-Ledger (h/t S.B.)] (Updated with correct Courier-Journal link.)
• Allegheny College found not liable by jury for student’s suicide; school raised issue of student privacy concerns. Earlier on OL: May 30; Dec. 7, 2004. [WSJ]
• Update on the tempered glass versus laminated issue earlier discussed in Overlawyered (Feb. 15, 2006; May 16, 2005; May 13, 2005, etc.) [LA Times]
• Massachusetts court rejects quack sudden acceleration theory. (See also Dec. 20, Aug. 7, etc.) [Prince]
• California bill would bar carpenters from school campuses. [Overcriminalized]
• New book: Antitrust Consent Decrees in Theory and Practice [Richard Epstein @ AEI]
• To be fair, I went to school with “young Mr Sussman, the boyish charmer”, and I don’t know how to pronounce “calumnies” either—it’s one of those words I’ve only seen written, and never heard spoken [Steyn; MSNBC]

If you ever want to see a trial lawyer manipulate the press, and the press unskeptically eat it up, you could do worse than to watch the recent performance of Steve Yerrid (Oct. 5-6) in a recent Tampa trial.

The facts convey an undeniably terrible accident. Fifty-year-old high-school-dropout Denzil Blake was cleaning an Isuzu Rodeo at Town ‘N Country Car Wash when he accidentally hit the gearshift, sending the car (which should not have been running) out of neutral. Blake didn’t know how to drive (Florida law allows a person without a driver’s license to operate a vehicle on private property, so there was nothing illegal about allowing unlicensed drivers to move cars in a carwash), panicked, and accidentally hit the accelerator instead of the brake, sending the car speeding into 43-year-old Brenda Lee Brown, striking her just after she pushed her young son’s stroller to safety; she died of her injuries two days later. Blake was not criminally charged.

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Stephanie Mencimer, in a trolling post I really should just ignore, suggests that reformers are just “overprivileged white guys” who have “never flipped a burger” or driven an American car and whose “private schooling and Ivy League bona fides” mean we just want to stick it to the little guy.

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In 1995, 70-year old Marlene Fett pressed the wrong pedal on her Lincoln Town Car, and smashed into a carousel in front of an Arkansas Wal-Mart, killing one boy and severely injuring his brother. The Chapman family settled with Fett, and blamed Wal-Mart and Ford, Wal-Mart on a theory that it should have anticipated the possibility of a car hitting a merry-go-round at 30 mph, and Ford on that old plaintiffs’ lawyer claim of “sudden acceleration,” a “defect” that somehow is six times more likely to strike elderly drivers. The case made the front page of USA Today in 2004 (resulting in an Apr. 19, 2004 Overlawyered story), though the newspaper kindly noted the lack of science behind the claim:

Little Rock attorney Sandy McMath, who is representing the Chapmans, says the Town Car’s cruise control put Fett on a “rocket ship to Mars” after she pulled out of her parking place. He petitioned NHTSA to investigate what he says is a defect in Ford and Lincoln models’ cruise control that causes the accelerator to stick.

In a lengthy 1999 [sic] report denying McMath’s petition, NHTSA investigator Bob Young wrote that even if such an occurrence took place and didn’t leave evidence of a mechanical malfunction, the situation should be reproducible through in-vehicle and laboratory tests. None of NHTSA’s testing could do so.

The Wal-Mart theory was similarly bogus, and refuted when an expert demonstrated that the plaintiffs’ proposed safety measure wouldn’t have stopped the speeding car. (For Illinois’ take on premises liability for auto accidents: Jun. 23.) An Arkansas jury also rejected the claims, and, after years of litigation, now the Arkansas Supreme Court has affirmed that decision in a not-especially-interesting Dec. 14 opinion, Chapman v. Ford Motor Co. Wal-Mart and Ford are still out the hundreds of thousands of dollars they spent defending themselves in the lottery litigation, not to mention the cost of bad publicity from sudden acceleration claims and quacks like the Center for Auto Safety trumpeting a non-existent problem. Arkansas acquits itself better than a South Carolina federal court did in a story we covered Aug. 7.

Orac, whose blog has done much to rebut vaccine conspiracy theories published in the mainstream media, expresses hope (via Childs) that a new study showing the likelihood of autism increases with the age of the father will add to the weight of evidence showing that autism is genetic, rather than caused by vaccines.

Of course, Orac is presuming that litigation-driven theories and for-hire-expert testimony have any basis in rationality or science. We have known for nearly twenty years that “sudden acceleration” is much more likely to occur to elderly, new, or very short drivers, and demonstrating conclusively that it is purely a function of pedal misapplication, yet we still see lawsuits (and verdicts!) today alleging that (apparently age-discriminating) magnetic interference with defective cruise control causes accidents (e.g., Aug. 7).

It’s been nearly two decades since NHTSA refuted the concept of sudden acceleration, yet state courts are still permitting junk science experts to put forward irreproducable theories of electromagnetic interference taking over cruise control. Seventeen-year-old Sonya Thomas claims EMI caused her automobile to take off, causing her to lose control and kill a passenger and paralyze herself. Of course, rather than turn the cruise control off or hit the brakes, Thomas unbuckled her seatbelt and reached under the seat to unstick a gas pedal, which is more consistent with her jamming the gas pedal under an upside-down floormat than anything else. Never mind: though belted passengers were uninjured in the 70-80 mph crash, the South Carolina state jury awarded $18 million to the plaintiffs, and the American automobile industry died a little bit more. (Paul Alongi and Jess Davis, “Cruise control led to crash, jury says”, Greenville News, Aug. 7; Julie Howle, “Jury begins deliberations in crash trial”, Greenville News, Aug. 6; Julie Howle, “Witness disputes seat-belt usage in crash”, Greenville News, Aug. 5; Julie Howle, “Jurors in lawsuit see hard evidence in 1999 rollover”, Greenville News, Jul. 25; “Jury Hears Claims Of Ford Explorer Problems”, WYFF4, Jul. 20).

Elderly driver Constance Peters sped in reverse out of her driveway in her Oldsmobile Cutlass and severely injured herself. Plaintiffs’ attorneys blamed General Motors, alleging sudden acceleration (Apr. 19, 2004, Jun. 6, 2000) through a defective cruise control (that magically ceased running the engine when the driver was knocked unconscious). More sophisticated plaintiffs’ attorneys have long since recognized that defective cruise control theories are so much nonsense (there is no reason for a “defect” to be six times more likely to affect elderly drivers) and try to sue for failure to warn of pedal misapplication or failure to recall and install shift-interlock safety protection in older cars, but some cases proceed on the older theory; this one resulted in an $80 million verdict. The plaintiffs went too far, however, and shoveled into evidence 139 cases of previous “sudden acceleration” that they attempted to use to show that the cruise control was defectively accelerating out of control—even though the cars in those incidents did not have cruise control! The Missouri Court of Appeals reversed and granted a new trial, though plaintiffs will get to present their bogus case again. (Randall Peters v. General Motors Corp. (Mo. App. W.D. Jan. 17, 2006); Tresa Baldas, “Acceleration Case Draws $80M Jury Verdict”, National law Journal, Jan. 7, 2003).

Gerardo N. Lara was convicted by a jury of first-degree murder in the stabbing of his wife, Marissa Lara. But the defense attorney saw one of the jurors buying a newspaper during the trial; at a mistrial hearing, the juror, Lindy L. Heaster, denied the purchase, but a videotape from the 7-11 proved otherwise, and the judge threw out the verdict. Heaster’s been held in contempt for violating the court’s orders to disregard press coverage and lying to the court, and could be socked with the costs of the trial.

While the juror certainly committed contempt and (from the news reports) seems to have committed perjury, I wonder if the mistrial remedy for the defendant is a bit extreme. The April 15 Washington Post Heaster bought had no coverage of the trial. And if Heaster read the April 15 Potomac News coverage of the trial, the only thing she learned was that an argument the defense wanted to make that the judge refused to tell the jury. Should the law recognize the potential for harmless error here? I’ve turned on comments; please keep discussion civil and limited to this topic. (Tara Young, “Indiscretion Gets Juror In Trouble”, Washington Post, Apr. 22; Maria Hegstad, “Judge declares mistrial in Lara case”, Potomac News, Apr. 21; Tara Young, “N.Va. Murder Conviction Erased by Juror Buying Newspaper”, Potomac News, Apr. 21; Rob Seal, “Lara found guilty”, Potomac News, Apr. 16). More discussion: Apr. 25 post.

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We’ve posted another four letters from our backed-up pipeline on our letters page. Among the topics this time: what skillful malpractice defense lawyers talk about at trial, and what they don’t; sudden acceleration litigation; what should you do with a class action settlement check, if you don’t approve of the lawsuit?; and the curiously uncontroversial powers of Eliot Spitzer.

Fifteen years after the National Highway Traffic Safety Administration concluded that the explanation for supposed “sudden acceleration” in cars was that the drivers were mistakenly pressing the accelerator rather than the brake, trial lawyers continue to sue automakers, and now NHTSA has agreed to open an investigation into claims of unintended acceleration in Toyota and Lexus models. While an earlier wave of suits tended to blame cruise control malfunctions, the new favorite culprit is electronic throttle control systems. In lawsuits over the accidents, the car’s brakes, which can ordinarily bring a car to a stop even when its throttle is fully open, will typically be said to have mysteriously failed as the same time as the acceleration defect was manifesting itself, although nothing will be found physically wrong with the brakes afterward.

“For more than a decade, decisions usually favored car companies and blamed drivers in unintended acceleration cases, but some recent trials and court decisions reversed that. Ford Motor and General Motors each recently lost a high-profile case. … A Missouri jury last year ordered GM to pay Constance Peters and her husband $80 million for the crash of her 1993 Oldsmobile Cutlass, which accelerated 120 feet in reverse and into a tree while she was backing up. They blamed faulty cruise control. GM is appealing.” And: “The U.S. Circuit Court of Appeals in New York in 2002 reinstated a $1.1 million judgment against Ford in the crash of a 1991 Ford Aerostar. Jurors had found that the crash was caused partly by a ‘negligently designed’ cruise control system.” (Jayne O’Donnell and David Kiley, “Technology puts unintended acceleration back in spotlight”, USA Today/Detroit News, Apr. 13)(via Reason Hit and Run). For more on the issue, see Jun. 6, 2000.

Archived entries before July 2003 can be found here, where the following brief essay originally appeared:

The finest achievement of American trial lawyers, to hear many of them tell it, has been their success in identifying unsafe models of automobile and forcing them off the road. The Ford Pinto case is invariably put forth as an example of how a big company knowingly designed and sold an obviously defective vehicle for which it was properly chastised by means of large jury awards. (Ralph Nader has promised to put a Pinto exhibit in his proposed Museum of American Tort Law.) Almost as well known has been litigation over claims of “sudden acceleration” in Audi 5000s, in which the German-made sedans were said to dart inexplicably out of control even though their owners were pressing the brake pedal with all their might.

To be sure, the Audi case presents an inconvenient complication, namely that the cars weren’t inexplicably accelerating — a series of conclusive government investigations found that the drivers were in fact mistakenly pressing the accelerator thinking they were on the brake. Likewise with the controversy over “sidesaddle” gas tanks on some GM full-size pickup trucks, said to be inexcusably unsafe in side-impact collisions but revealed in real-world crash statistics to be considerably safer than the average vehicle on the road (which did not keep lawyers from winning at least one huge verdict against them).

Trial lawyers offer up the auto safety issue to public audiences and juries as a simple, satisfying morality play of wicked automakers versus helpless victims. It is seldom clear, however, what they would consider to be adequate safety performance. Every mass maker of vehicles for the U.S. market — even Volvo, even Lexus, even BMW — has faced lawsuits in American courts alleging that its designs are impermissibly unsafe. The explanation is not that all models are defectively designed, but that drivers of all models get into accidents — and when crash victims’ injuries are serious and the other driver underinsured, lawyers will often stretch quite a ways to find some theory or other that allows them to pull in the maker of the car as a defendant. Many such theories are available because auto design is a complex subject, because the circumstances in which accidents take place are often factually muddled and open to dispute, and because the design of all vehicles, even the full-size Mercedes, involves trade-offs between safety vs. expense, safety vs. convenience/enjoyment, and safety vs. safety (protecting passengers from front impacts versus protecting them from side impacts, for instance). But some trial lawyers seem to be willing to get up in front of a jury and downplay even well-known, longstanding safety trade-offs in vehicle design — such as the greater rollover hazard that drivers face in convertibles and in off-road vehicles with high ground clearance — in favor of the theory of a sinister conspiracy in executive suites to kill customers.

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The Audi case is written up at length in Chapter 4 of Peter Huber’s magisterial Galileo’s Revenge: Junk Science in the Courtroom (Basic Books, 1991), which is not online but is available through the Overlawyered.com bookstore. It is also discussed more briefly in his article “Junk Science in the Courtroom“. A short but vivid account appears in P. J. O’Rourke’s humorous account of the workings of government, Parliament of Whores (Atlantic Monthly Press, 1991, pp. 86-87). The notorious “60 Minutes” show attacking the Audi comes in for a drubbing in our editor’s 1993 National Review expose of dubious crash journalism, “It Didn’t Start With Dateline NBC“, adapted and reprinted in The Rule of Lawyers, and is the subject of a valuable retrospective in the August 1998 Brill’s Content by Greg Farrell (”Lynched: Lurching Into Reverse”), which in turn provoked a fairly hysterical response from CBS executives.

In 1993, “Dateline NBC” was caught in one of the great television scandals of all time: filming a supposed “crash test” of a GM full-size pickup being hit and bursting into flames without telling viewers that the truck had been rigged with hidden incendiary devices and tampered with in various other ways to make a fire more likely. But in fact TV newsmagazines had been running highly dubious “crash test” footage for many years; the main difference was that in this case NBC happened to get caught. In the Dateline case, as in many previous instances of fakery, the network was guided and advised by crash “experts” who happened simultaneously to be working for the plaintiff’s lawyers in suits over the defects being alleged in the TV coverage. Not by coincidence, NBC aired its bogus report not long before an Atlanta jury was to hear a major liability suit against GM, the target of the show; they proceeded to vote an award of $105 million.

Overlawyered.com’s editor weighed into the controversy with pieces on the truck’s safety record (”‘The Most Dangerous Vehicle on the Road’“, Wall Street Journal, February 9, 1993), on the media’s reliance on plaintiff’s experts (”Exposing the ‘Experts’ Behind the Sexy Exposes“, Washington Post, February 28, 1993), and on the earlier history of questionable crash-test journalism at American networks (”It Didn’t Start With Dateline NBC“, National Review, June 21, 1993).

On the Ford Pinto case, the best resource is unfortunately not online, but is well worth a trip to the local law library now online: the late Gary Schwartz’s 1991 Rutgers Law Review article “The Myth of the Ford Pinto Case” (43 Rutgers L. Rev. 1013-1068). Schwartz, a law professor at UCLA and prominent expert on product liability, showed that (as our editor summed up his findings in 1993): “everyone’s received ideas about the fabled ’smoking gun’ memo are false. The actual memo did not pertain to Pintos, or even Ford products, but to American cars in general; it dealt with rollovers, not rear-end collisions; it did not contemplate the matter of tort liability at all, let alone accept it as cheaper than a design change; it assigned a value to human life because federal regulators, for whose eyes it was meant, themselves employed that concept in their deliberations; and the value it used was one that they, the regulators, had set forth in documents. In retrospect, Schwartz writes, the Pinto’s safety record appears to have been very typical of its time and class.”

In July 1999, rekindling a public debate about the irrationality of jury decisions in product liability cases, two California juries returned enormous verdicts within three days of each other: a Los Angeles jury voted $5 billion against GM for the allegedly defective design of its 1979 Chevrolet Malibu, and a jury in rural Ceres, Cal. returned a $290 million verdict against Ford in a case against its Bronco truck. The cases are discussed on Overlawyered.com in the entries for July 10, August 27 and September 10 (GM) and August 24 (Ford). In the General Motors case, plaintiffs successfully prevented GM from telling the jury that the accident had been caused by a drunk driver who had been convicted of a felony and imprisoned over the accident; or that the Malibu’s real-life crash statistics showed it to be safer than the average car of its era; or that the alternative crash design proffered by plaintiffs raised safety concerns of its own and was not widely used by other makers. In the Ford case, a long series of emotionally manipulative trial tactics by the plaintiff’s lawyers paid off when one juror told her colleagues that the reason they had to vote for liability had come to her in a dream.

In April 2000, after a two-month trial, the tables were turned when a federal jury found that the magazine Consumer Reports, frequently aligned with the trial-lawyer side in legislative fights, had made numerous false statements in its October 1996 cover story alleging a dangerous propensity to roll over in the 1995-96 Isuzu Trooper sport utility vehicle, but declined to award the Japanese carmaker any cash damages. The jury found that CR’s “testing” had put the vehicle through unnatural steering maneuvers which, contrary to the magazine’s claims, were not the same as those to which competitors’ vehicles had been subjected. Jury foreman Don Sylvia said the trial had left many jurors feeling that the magazine had conducted itself arrogantly, and that eight of ten jurors wanted to award Isuzu as much as $25 million, but couldn’t see their way to overcoming the high threshold to proving “malice”. The jury found eight statements in the article false, but in only one of these did it determine CR to be knowingly or recklessly in error, which was when it said: “Isuzu … should never have allowed these vehicles on the road.” However, it ruled that statement not to have damaged the company, despite a sharp drop in Trooper sales from which the vehicle later recovered.

December 30, 2002-January 2, 2003 – Happy New Year. We’ll be back Friday.

December 30, 2002-January 2, 2003 – Updates. Among cases that continued to develop while our attention was elsewhere:

* A panel of the Fourth Circuit threw out (PDF) the $2 million punitive damage award against Duke University under federal sex discrimination law to Heather Sue Mercer, “who was allowed a walk-on spot as a kicker on the school’s football team but [was] treated differently than other players.” (see Oct. 13, 2000) (Leslie Brown, “Court voids kicker’s award”, Raleigh News & Observer, undated circa Nov. 16) (The Mat forums)

* The Ohio Supreme Court’s pro-litigation majority, shortly before voters turned it into a minority, dealt Ford Motor Co. a setback by ordering a new trial in a case where the automaker had rebuffed charges of “sudden acceleration” in its Crown Victoria model (see Jun. 6, 2000) (Alan Fisk, “Videotape Revives Lawsuit Against Ford Motor Co.”, National Law Journal, Oct. 21).

* An Alaska federal judge cut the punitive damage award against Exxon Mobil in the Valdez spill case from $5 billion to $4 billion; the litigation could still drag on for years more (see Nov. 15, 2001) (Jason Hoppin, “Exxon Valdez Award Reduced — but Only to $4B”, The Recorder, Dec. 10).

* In the controversy over baseball bats that are allegedly too powerful (see Apr. 19, 2002), a California state appeals court has rejected assumption-of-risk defenses and ruled that a college baseball player can sue the University of Southern California, “the Pacific-10 Conference, the National Collegiate Athletic Association and the makers of the Louisville Slugger bat on the ground that the company’s Air Attack 2 bat substantially increases the dangers of America’s pastime by letting the ball be smacked at hair-raising speeds.” (Mike McKee, “Bat Ups Chance of Baseball Injuries, Appeals Court Rules”, The Recorder, Dec. 24). (DURABLE LINK)

December 27-29 – Receivers in bankruptcy. “In the bizarre yet lucrative world of Enron’s bankruptcy, everyone seems to have a complaint these days. The $300-an-hour lawyers complain that the $500-an-hour lawyers are charging exorbitant fees. … Already, lawyers and other professionals have billed Enron close to $300 million in what some critics say is an unparalleled fee bonanza,” some of it going to the same high-priced professionals who advised the company before its fall. (David Barboza, “The Meter Runs in Enron Case, as the Lawyers Retain Lawyers”, New York Times, Dec. 25). Some of the lawyers have submitted expense requests that included liquor purchases; other practices include “marking up the costs of photocopies and faxes, and charging for clerical work at lawyers’ steep hourly rates”. (Otis Bilodeau, “Enron Lawyers Face Fee Cuts”, Legal Times, Dec. 10). (DURABLE LINK)

December 27-29 – California’s hazardous holiday. Chestnuts-roasting menace averted, cont’d: taking a cue from Berkeley and other Bay Area cities, air quality regulators in California’s Central Valley are proposing a ban on traditional wood-burning fireplaces in homes, as well as regulations on how existing ones can be used. “Under proposed rules that would take effect next year, most wood-burning fireplaces and stoves would be banned in new homes. Masonry fireplaces would have to be permanently disabled, converted to natural gas or upgraded to expensive soot-containing models before homes could be sold. Also, on bad air days during the winter, many Central Californians would be prohibited from lighting up their existing wood-burning stoves and fireplaces in a concerted effort to get the smoggy valley to comply with the Clean Air Act.” (Kim Baca, “California air regulators propose fireplace ban”, Sacramento Bee, Dec. 6)(see Dec. 24-27, 2001). Also in California, environmentalist lawyers using a bounty-hunting statute recently sued restaurants serving French fries on the grounds that the fries contain measurable amounts of acrylamide, a potentially hazardous substance generated when starch is subjected to heat. A complicating factor, however, according to the food-industry-defense Center for Consumer Freedom, is that “A nationwide study carried out in Germany has found that gingerbread contains seven times the amount of acrylamide found in French fries.” Better enjoy that holiday baking binge while it’s still legal. (”Just when you thought the holidays were safe”, Center for Consumer Freedom, Dec. 9; “French fry lawsuit-mongers unmasked“, Sept. 9). (DURABLE LINK)

December 24-26 – Merry Christmas. We’ll take a couple of days off to celebrate the holiday, and see you Friday. (DURABLE LINK)

December 24-26 – “Court Waives Deadline as ‘Reasonable Accommodation’ for Disabled Litigator”. We figured this would happen, and now it has: “An upstate New York judge has held for the first time that the courts must reasonably accommodate a visually impaired attorney who breached the time restrictions for submitting a judgment. … Finding that the ‘courtroom and court system constitute the trial lawyer’s workplace,’ and that the workplace ‘logically extends to the preparation of documents associated with litigation,’ [New York State Supreme Court Justice Robert] Julian held that [attorney Norman] Deep is owed an accommodation.” (John Caher, “Court Waives Deadline as ‘Reasonable Accommodation’ for Disabled Litigator”, New York Law Journal, Dec. 2). (DURABLE LINK)

December 24-26 – “Britain sued for millions by Mau Mau terrorists”. “The families of soldiers who fought the Mau Mau uprising in Kenya reacted with fury last night to news that former terrorists are planning to sue the British Government over their treatment after being taken captive.” (Daniel Foggo and Christian Steenberg, Daily Telegraph, Nov. 10). (DURABLE LINK)

December 23 – Lawyers’ advertising, 25 years later. In 1977, by a 5 to 4 majority, the U.S. Supreme Court ruled that lawyers have a constitutional right to advertise for clients. A retrospective by the National Law Journal’s Mark Ballard mentions some of the resulting low-water marks of taste, including “the one where 300 pounds of lawyer emerges from the water to the strains of ‘Swan Lake’ bedecked in gold chains and carrying a chest of cash with the message that he’ll bring the treasure home to you,” the one featuring “Robert Vaughn, former ‘Man from U.N.C.L.E.,’ in suspenders, sternly promising that whichever attorney was hired in that particular market was so fearsome that otherwise recalcitrant insurance companies will roll over and pay up big bucks,” and — no specifics given, alas, but deplored by a former Florida bar president — episodes in which lawyers have “drive[n] hearses to shill no-frill wills” and sponsored cars in demolition derbies to promote personal-injury practices. (Mark Ballard, “Coming to Terms With the $20,000 Ad”, National Law Journal, Sept. 25; “The Ad-Made Man and the Old-Line Firm”, National Law Journal, Oct. 3; “The Little Ad That Changed Everything”, National Law Journal, Oct. 10). (DURABLE LINK)

June 9-11 – “Look for the Kiwi label”. Our editor’s newest Reason column takes a skeptical look at the “anti-sweatshop” movement, which is quickly acquiring a large litigation component along with its substantial campus-activist presence. Also takes up the curious question of why Notre Dame, at the behest of its anti-sweatshop working group, banned the manufacture of its licensed products in New Zealand, not exactly known as a hellhole of oppressive industrial employment. (July).

June 9-11 – Risky? Who’da thunk it? A jury last month awarded $111.5 million, which will reach $164 million with interest, to a wealthy horse breeder and Bahamas resident who bought on margin $6.5 billion in foreign currency futures through Bear Stearns and sued the investment firm after sustaining severe losses. The jury found Bear Stearns negligent in not keeping client Henryk de Kwiatkowski, 76, on a shorter leash and not warning him more carefully about the risks. Bear argued that de Kwiatkowski was a sophisticated client eager to gamble who’d sustained $100 million currency speculation losses on two previous occasions. The judgment would amount to almost a quarter of the firm’s profits last year. (Colleen DeBaise, “Investor Awarded $111.5 Million In Trading Case Against Bear Stearns”, DowJones.com, May 16; “Bear Stearns Must Pay Added $52.5 Million To Investor Who Sued”, DowJones.com, Jun. 7). de Kwiatkowski said he’d been led astray by relying on the expressed bullishness about the dollar’s prospects of Bear economist Wayne Angell, a former federal reserve governor; instead the dollar sank. According to Bloomberg News, Bear chief executive James Cayne, on the stand, countered that economists are right only 35 percent to 40 percent of the time — “They don’t really have a good record as far as predicting the future” — and that the role of the firm’s economist was in his view “entertainment”. (”Bear Stearns economist painted as entertainer; judge doesn’t buy it”, Bloomberg/St. Paul Pioneer Planet, June 3) (see also Dec. 6).

June 9-11 – Don’t cooperate. In Fairfield Center, Maine, attorneys representing 19 people claiming injury from the toxic effects of papermaking wastes are advising their clients not to cooperate with a public health survey intended to assess residents’ health concerns, because the results might be used against their cause. The 19 are suing Kimberly-Clark Corp. and Sappi Fine Paper North America. (Doug Harlow, “Attorneys fight local health poll”, CentralMaine.com (Kennebec Journal/Waterville Morning Sentinel), May 10).

June 9-11 – Have some coffee. “Attorney Arnold Levine — known for his in-your-face style that clearly some take literally — has sued opposing counsel Jonathan Alpert, charging Alpert threw a [lukewarm] cup of coffee at Levine” during a recent mediation session. “Alpert said the allegation is not accurate, and called Levine’s lawsuit ‘a stunt.’” Levine is representing the Tampa Bay Buccaneers in the lawsuit, in which Alpert is suing “on behalf of season ticket holders who believe they were shortchanged by the football team”. (AP/Miami Herald, “Lawyer drenches foe with coffee; grounds for another suit”, Jun. 7).

June 9-11 – Jeff MacNelly, RIP. The nation’s finest political cartoonist has succumbed to lymphoma at age 52. He continued to turn out terrific work until very nearly the end, as with the Microsoft-themed entries of April 4, April 27, and May 5. (Richmond Times-Dispatch, Chicago Tribune obits; MacNelly.com).

June 9-11 – Customer offense. The Michigan Court of Appeals is considering a disability-rights claim by supermarket bagger Karl Petzold, who has Tourette’s Syndrome and was dismissed by the Farmer Jack chain after his coprolalia (involuntary utterance of obscenities and racial slurs) offended blacks and women who were present. The store believes Petzold’s utterances might subject it to liability under fast-spreading “customer hostile environment” doctrines. (”Court to decide if bagger is disabled”, Detroit News, May 1).

June 8 – Judge cracks wish bone. Microsoft’s refusal to agree that it had done anything wrong helped seal its fate. (Final Judgment, at DoJ site; Lisa M. Bowman, “Judge: Break Microsoft in two”, ZDNet News, June 7; ZDNet roundup; Reason “Breaking Issues“).

June 8 – Latest wrongful-birth case. Last month (May 9) we reported on a Phoenix trial where Mom was suing doctors for the cost of raising her unwanted son because they hadn’t identified her pregnancy fast enough for her to have a convenient abortion. Yesterday’s Boston Globe reports on a case from suburban Revere in which Jennifer Mosher is suing her obstetrician over a sterilization effort that fell short, leaving her with a healthy but unwanted toddler named Samantha; she’s now suing for the cost of raising the child, including tuition at a private college. (Raja Mishra, “Malpractice suit weighs Revere girl’s worth”, June 7).

June 8 – From our mail sack: poetry corner. Reader Paul W. Green of the East Valley Tribune in Mesa, Arizona writes to say that Smith & Wesson’s recent “settlement of” (capitulation to) the siege of its business by lawyers sent him back to reread Rudyard Kipling’s poem “Dane-geld“, inspiring him to pen this updated version which he entitles “Lawyer-loot”.

It is currently a temptation for those skilled in litigation
To address a certain industry and shout:
“Your products are much hated and have been at length berated;
Unless you settle, we shall clean you out!”

And that is called demanding lawyer-loot,
And the creatures that seek it will swear,
That you’ve only to pay ‘em the lawyer-loot,
And from suits they will henceforth forbear.

It is currently a temptation for those slapped with litigation
To back off and decline to take a stand:
“Though you are not in the right, it would cost too much to fight.
We will therefore settle for what you demand.”

And that is called paying the lawyer-loot,
But the unvarnished fact must be faced,
That once you agree to pay lawyer-loot,
You won’t see the end of the case.

For litigious devolution is a covert revolution,
To make supreme the power of the bar.
So when they file a suit and seek obscene amounts of loot,
To respond thus is the better course by far:

“We reject your extortion of lawyer-loot,
You dapper-clad robbers of cash,
We’ll deny you your stake as the people awake,
And they soon will settle — your hash!”

June 8 – Bulletin board discussions. Participants on the Anandtech Forums are currently discussing the Massachusetts golf club case mentioned here yesterday. A few of the other bulletin board mentions this site has had lately: Motley Fool, Professional Pilots Rumour Network, Free Republic, BladeForums.

June 8 – “Dear Dr. Laura…” “Dr. Laura is a talk show host. She knows a great deal about God’s will, so one listener wrote in for some advice: …’I have a neighbor who insists on working on the Sabbath. Exodus 35:2 clearly states he should be put to death. Am I morally obligated to kill him myself?’” (author unknown, reprinted at AndrewTobias.com).

June 7 – Update: Massachusetts golf club case. Last fall a Boston jury returned a whopping $1.9 million judgment in a sex discrimination case brought by discontented women who said the Haverhill Golf and Country Club wasn’t allowing them prime tee times, full memberships, and other privileges (see October 30-31). Presiding judge John C. Cratsley, among other dictates, mandated that the members of the club’s board enroll in six hours of gender-sensitivity training. Now the atmosphere at the club is icy in the extreme, with both the litigants and their husbands shunned as fairway partners. “We thought [the lawsuit] would make it better,” says one of the women who sued. “But it made the atmosphere worse.” Was this really supposed to have come as a surprise? (Lynn Rosellini, “‘Those women’ vs. the ‘Neanderthals’”, U.S. News & World Report, June 12).

June 7 – Dangers of linking. “Linking is getting dangerous, as I’ve learned firsthand. In March, I wrote an article called ‘What Cyber Patrol doesn’t want you to see’ about a program that reveals the zany secret blacklist of off-limits websites maintained by Cyber Patrol, a blocking program sold by toy-maker Mattel. Cyber Patrol doesn’t just block porn: student organizations at Carnegie Mellon University and Usenet discussions such as alt.journalism, soc.feminism, and, inexplicably, fj.rec.food, were also verboten. In my article, I linked to the blacklist-viewing program, and quickly found out that Mattel didn’t like being criticized. In response I received a copy of a temporary restraining order and a subpoena from Mattel telling me I had violated U.S. copyright laws.” (Declan McCullagh, “Who’s Next?”, The New Republic Online, May 23; and see Eric J. Sinrod, Jeffery W. Reyna and Barak D. Jolish, “Linking Down the Wrong Path”, Upside, Jan. 18). Plus: commentary on Dialectizer case (see May 18-21) (Julia Lipman, “The big price of having a little fun on the Web”, Boston.com digitalMass, May 24).

June 7 – “Foreman Who Slept on Job Wins Reinstatement”. “Douglas County District Judge Gerald Moran has ruled that John Hauschild should get his job back because the city did not properly disclose the evidence against him before a pre-termination hearing. Hauschild was fired last June [from his job as foreman at the city of Omaha's wastewater treatment plant] after being caught taking naps at work by a tiny camera that was secretly installed in his computer. In 15 days, the city alleged, the camera caught him sleeping during part of every day.” Hauschild appealed the firing to the city’s personnel board, saying he had a sleeping disorder, and then to court when he lost before the board. (Angie Brunkow, Omaha World-Herald, June 6).

June 7 – Sooner get rich. Oklahoma isn’t an especially big state, but lawyers who represented it in the multistate tobacco litigation are set to waltz off with a remarkable $250 million fee award, not an unsubstantial sum alongside the estimated $2 billion that the state itself expects eventually to receive under the national settlement. The lawyers argued to the arbitration panel that their efforts on behalf of the Sooner State were really distinctive, really unusual, really productive, and so forth. Six national law firms, including the much-fee’d Mississippi firm of Richard Scruggs which also represented many other states, will share the bounty with four local firms: Riggs, Abbey, Neal, Turpen, Orbison & Lewis of Tulsa and Oklahoma City; John Norman and Associates of Oklahoma City; Pray Walker Jackson Williamson & Marlar of Tulsa; and Preston Trimble of Norman. (”Tobacco Settlement: Four state-based law firms share in $250 million award”, Tulsa World, May 18; Aileen Gallagher, “Oklahoma Tobacco Lawyers Earn $250 Million”, American Lawyer Media, May 18).

June 7 – Welcome Montreal Gazette readers. Doug Camilli’s column, June 5, mentioned our recent deer item from Texas.

June 6 – Sudden deceleration. Score another sharp setback for the notion, still dear to some trial lawyers and TV newsmagazines, that cars experience “sudden acceleration”, taking off on their own though their owners are pressing hard on the brakes. The National Highway Traffic Safety Administration has flatly denied a request that it reopen a probe of such reports, and the stinging language of its recent 34-page memo to that effect, prepared by its Office of Defects Investigation, raises the question of why the American legal system continues to generate unending litigation against carmakers on a theory that by now evokes barely concealed derision from the government’s own safety experts.

In 1986, sales of the Audi 5000 collapsed after CBS “60 Minutes” aired a sensational show charging the German-made car with sudden acceleration. In that case, as in those that came later, studies by NHTSA and by safety agencies in other countries found no defect in the car and instead assigned the blame to “pedal misapplication” — put more plainly, drivers’ tendency to hit the gas pedal when they think they’re hitting the brake. Theories that seek to blame mechanical defects for sudden acceleration face the difficulty of positing that something has gone wrong simultaneously with a car’s brake system as well as its power (since regular foot pressure on the brake can readily overpower a gas pedal stuck at full throttle) while in both cases leaving no trace behind of a distinctive “failure state” for later investigators to discover.

But alarmism over the issue simply will not die — not so long as expert witnesses hired by trial lawyers keep developing new theories to take to juries. In February of last year a segment on NBC’s “Dateline” gave extensive, highly sympathetic coverage to the contentions of a plaintiff’s expert named Sam Sero, who blames sudden acceleration on malfunctions in the electronics in cars’ cruise control systems. A few months later Little Rock, Ark. attorney Sandy S. McMath, representing plaintiffs in a sudden acceleration case against Ford, filed the petition with NHTSA asking that it take another look at the phenomenon in light of Sero’s theories.

Bad move. In its response to the petition, NHTSA could hardly have been more scathing. The proponents of the theory, it said, “have never produced credible evidence” that it has led to a single incident of sudden acceleration. “The theory propounded by Mr. Sero, and others, has never been published nor is there any literature in the automotive engineering field supporting it”. The evidence for the pedal misapplication finding remains “compelling”. In an unusual swipe at Mr. Sero, a licensed electrical engineer formerly with the Allegheny Power Company, the agency said he “has no professional experience in the auto industry and no human factors training”. McMath, the lawyer who petitioned for the probe, admits being stunned by the vigor of the agency’s response.

You’d think “Dateline”, of all programs, would tread gingerly in cases where there’s a danger it might get sold a bill of goods on issues of auto safety (our take on the “exploding GM truck” scandal: Washington Post, National Review). But aside from the embarrassment of having lent its credibility to sudden acceleration alarmism, the network perpetrated a specific additional unfairness that deserves to be noted for the record. At the time “Dateline” produced its segment, a sudden-acceleration case called Manigault v. Ford Motor Co. was working its way through the Ohio courts, and going very badly indeed for Ford: Cuyahoga County Common Pleas Judge Anthony O. Calabrese Jr. had just issued — as “Dateline” described it — “a blistering ruling, saying Ford had ‘perpetrated a fraud upon the court’ and may have ‘misled the government.’ ‘In ordering a new trial,’ he wrote: ‘it seems certain, that further death and injury is likely to occur unless and until the truth about the causes of sudden acceleration events becomes public knowledge.’”

Strong stuff, and hugely damaging to Ford’s public image, which is why the automaker must have cast a sigh of relief when in June, four months after NBC aired its show, an appeals court in a 24-page opinion completely reversed Judge Calabrese, ruling that Ford had adequately informed the court of what it knew on sudden acceleration. No “fraud on the court”, no “certain[ty] that further death and injury is likely to occur”, no new trial, no nothing.

At this point NBC could still argue plausibly that it hadn’t erred by giving such dramatic play to Judge Calabrese’s findings against the carmaker; a ruling may later be overturned on appeal, but that doesn’t mean it wasn’t newsworthy when it happened. But the least a network could do in those circumstances would be to let its viewers know that the ruling was overturned — right? Since Ford’s victory on appeal in Manigault, company spokesman Jim Cain says the automaker has repeatedly asked “Dateline” to run an update informing viewers of the appeals court’s having thrown out the earlier, “blistering” ruling charging it with fraudulent concealment of safety hazards. Nearly a year later, Cain says the show has run not one word to correct or update viewers’ misimpressions. Meanwhile, MSNBC’s website continues to run the original “Dateline” story, again with nary a hint of a correction or update. (Harry Stoffer, “NHTSA: No sudden-acceleration probe”, Automotive News, May 15; “Vehicles that take off on their own?”, NBC News/MSNBC, Feb. 10, 1999; “Appeals court rules in favor of Ford in cruise control suit”, AP/Auto.com, Jun. 21, 1999; Ford protest letter to NBC before broadcast of its show, reprinted at Brill’s Content site; NHTSA report, issued April 6 under File # DP99-004 and published in Federal Register Apr. 28). Update Dec. 30, 2002: Ohio Supreme Court orders new trial. (DURABLE LINK)

June 6 – Predestination made him do it. “The man who is serving a life sentence for the shooting of Pope John Paul II is requesting clemency, following the Pope’s revelation that the third secret of Fatima was a prophetic vision of his assassination attempt. Mehmet Ali Agca argues that since his crime was “preordained,” he should be absolved of all responsibility.” Experts in both canon law and Italian criminal law are skeptical about the 43-year-old Turk’s claim. (Marina Jimenez, “Assailant asks Pope’s clemency, cites Fatima”, National Post (Canada)/Reuters, May 30).

June 5 – Sunday’s Times on Fred Baron. New York Times reporter Barry Meier profiles the Association of Trial Lawyers of America’s incoming president, whose career “has mirrored the transition of many trial lawyers from scrappy advocates for workers and consumers to wealthy businessmen eager to influence policies and politics.” A leading Gore fundraiser, “Mr. Baron, who was also a major contributor to President Clinton, plays golf with the president and dines several times a year at the White House,” as well as hosting a big annual bash for the Democratic National Committee at his second home in Aspen, Colo. But he “remains haunted” by the disclosure of the now-celebrated secret memo advising Baron & Budd clients what to remember and what not to about their exposure to asbestos; the piece quotes this site’s editor who says that for ATLA to elect Mr. Baron president given the ethical questions raised by the coaching memo “suggests a boldness on their part or an imperviousness to public criticism” (but the Times misspells our editor’s name– ouch). Mr. Baron has “struck back at his accusers with zeal,” using legal charges and the threat thereof as part of his armory. “To defend himself he has hired legal troubleshooters like Abbe Lowell, the chief investigative counsel for the Democrats on the House Judiciary Committee during the impeachment proceedings against President Clinton.” (Barry Meier, “Fund-Raiser May Be Achilles’ Heel for Gore”, June 4 (online version bears the date June 3)). For our account of the memo episode, see “Thanks for the Memories”, Reason, June 1998; also see August 1998 coverage in the alt-weekly Dallas Observer, “Toxic Justice” and “The Control Freak“, the sidebar, “Hey, No Coaching”, to another Baron profile, Alison Frankel, “Traitor to his Class”, American Lawyer, January 6; and our March 23 commentary and links there.

June 5 – Jarring discord. The Audubon String Quartet is in the throes of a messy public divorce that began in February when three members of the chamber music ensemble sought to oust the fourth for undisclosed reasons. A judge issued a temporary order that first violinist David Ehrlich be readmitted pending further consideration of his claim that the dismissal violated his rights; the other three say he was an employee at will and that it’s crucial that a string quartet be permitted freedom of association given the intimacy with which it must operate. The high point of unpleasantness so far came with a motion by Ehrlich’s attorney that cellist Tom Shaw, violist Doris Lederer and second violinist Akemi Takayama be “fined and imprisoned” for allegedly flouting a court order prohibiting them from playing previously scheduled engagements without him. As the dispute grinds on Virginia Tech in Blacksburg, Va., where the ensemble has been in residence for 15 years, has severed its ties to the group. (Roanoke Times coverage March 22 and other coverage (fee-based archive)). Updates June 14, 2001: new rounds of litigation in the case alarm musical community; Nov. 13, 2001: judge awards Ehrlich more than $600,000 in damages.

June 5 – Year’s most injudicious judges. National Law Journal’s third annual compendium of bad bench behavior includes 10 judges stripped of their robes after such doings as racial and ethnic slurs, emailing off-color material including a video clip of naked skydivers, reducing all fines to a token $1 in order to punish town officials for not picking up the judge’s health insurance, and switching price tags in a store. Also includes the sad sagas of the New Hampshire Supreme Court’s Stephen Thayer (see April 5) and Washington state’s Grant L. Anderson (see January 19). (Gail Diane Cox, “How Could They Do It?”, April 26).

June 5 – Unwanted medical duties. Teachers and school officials are upset that special-ed laws are being interpreted to require them to perform intimate nursing tasks such as tube-feeding, mucus-clearing and colostomy-bag-emptying as part of disabled students’ right to classroom accommodation. “More than 500 staff members and every bus driver in the 28,000-student Loudoun County, Va., district recently learned to administer glucose injections after [a diabetic] girl’s family won that right through the U.S. Department of Education’s Office for Civil Rights (OCR).” “The NEA and the American Federation of Teachers, the two largest teachers unions, strongly oppose teachers tending to student health needs. ‘They’re fearful they will hurt a child by doing something incorrectly or be held personally liable,’ [the NEA's Dennis] Friel says. ‘They feel they are being asked to do things they didn’t think would be part of their career selection.’” (Linda Temple, “Disputed duties: Teaching the disabled”, USA Today, Feb. 15).

June 2-4 – “More lawyers than we really need”? As lawyers descend on the town of Walkerton, Ontario, in anticipation of the chance to sue over a deadly E. coli outbreak, Ralph Pohlman in today’s (June 2) Toronto Sun gets a queasy feeling about the way things are headed with the profession, and recommends reading this website to “feel a whole lot better” (link likely to disappear soon).

June 2-4 – “Victim of the century”? The Washington Post reports that the state of Virginia lost a nearly 10-year battle over disability payments with Anthony M. Rizzo, Jr., a former high school principal in Fairfax, “who contends that he has a permanent ‘psychosexual disorder’ that makes him unable to supervise women without trying to coerce them into having sex with him. He sought disability benefits after he was fired in 1989 from his job as principal of Edison High School for sexually harassing female teachers.” Two juries have hung so far on rape allegations against Rizzo, who declines psychiatric evaluation related to the disability claim because of the ongoing criminal proceedings. State officials initially denied his application for benefits on the grounds that the disability program should not reward “reprehensible” behavior, but “lost on a technicality in 1998 when the state Supreme Court said they missed a deadline for making a decision on his claim.” More recently they cited his refusal to cooperate with psychiatric evaluation as reason to cut off his benefits, but he’s now sued to get the payments reinstated. (Patricia Davis, “DNA Tested in Sex Abuse Case Against Ex-Fairfax Principal”, Washington Post, May 31; Timothy Noah, “Victim of the Century”, Slate, May 31).

June 2-4 – Another Mr. Civility nominee. Wall Street Journal news side recently profiled husband-and-wife litigators Stanley and Susan Rosenblatt, currently angling for punitive damages in a much-publicized tobacco trial in which they purportedly represent the class of all sick Florida smokers (see July 8, 1999), and before that best-known for settling a class action against tobacco companies on behalf of flight attendants in a deal that “has yet to yield any tangible benefits for the Rosenblatts’ clients, while netting the Rosenblatts $49 million in fees and expenses” (see Sept. 28, 1999). “After the fee was received, one associate who had worked for the Rosenblatts for 13 years asked for a bonus. She was abruptly fired and has hired a lawyer to sue the Rosenblatts, who have been quietly negotiating a severance package while preparing for the punitive phase of their tobacco case.” A prominent figure in pro-litigation circles, Alan Morrison of Public Citizen Litigation Center, intervened trying to block the settlement of the flight attendant case. “‘You are scum. You are absolute scum. You are dreck,’ Mr. Rosenblatt told Mr. Morrison before the start of a court hearing over the deal’s fairness, according to Mr. Morrison.” Mr. Morrison now forgivingly calls Rosenblatt “a fabulous thorn in the side of the tobacco industry” and says “His methods are different from mine, but I probably wouldn’t have gotten anywhere near as [far as] he’s gotten”. (Milo Geyelin, “Suing Tobacco, Florida Firm Takes Own Path”, Wall Street Journal, May 15, fee-based archive).

June 2-4 – The forbidden cookout. In Flint, Mich., Whittier Middle School teacher Lamar Davis was suspended for two weeks and given a written reprimand for inviting students to a barbecue at his home without first clearing the action with administrators. (Matt Bach, “Teacher vows to hold barbecue after return from suspension”, Flint Journal, May 23) (via Reason Express, Progressive Review).

June 2-4 – Testimony “not credible”, gets $192K anyway. A New York Court of Claims judge has ordered the state to pay $192,464 to a construction worker injured in a 1991 roof fall even though she found his testimony to be not credible in significant respects. Bogdan Wielgosz was working as a roofing assistant for a construction company at the Manhattan Children’s Psychiatric Center when he fell and suffered back and wrist injuries. At trial, presiding judge Susan Phillips Read found Wielgosz’s testimony “dubious” regarding some of the long-term practical effects of his injuries as well as regarding his reported earnings before the incident, reports the New York Law Journal. For instance? “The claimant said he had not driven since 1994 because of injuries suffered in the accident, but was then confronted with an accident report in which he claimed back, neck and head injuries stemming from an incident in 1995.” Judge Read’s decision took pains to “emphasize” at the outset that she “did not consider claimant to be a credible witness: the frank inconsistencies and discrepancies in his testimony were too numerous to chalk up entirely to lapses in memory or nuances of language lost or misapprehended in translation.’” However, she ruled that objective evidence of Wielgosz’s injuries, combined with an earlier finding of liability on the part of the state, nonetheless warranted an award of $32,881 for past medical expenses, $9,583 for lost income and household services, and $150,000 for past pain and suffering, to which was added 9 percent interest. (John Caher, “State Must Pay Injured Construction Worker”, New York Law Journal, Feb. 16).

June 1 – Welcome CEO Express readers. The premier desktop portal for busy decisionmakers names us as today’s Great Site of the Day, as do its associated sites JournalistExpress and MDExpress.

June 1 – Somebody to sue. Four case studies in creative defendant selection, with apologies to Grace Slick and the Jefferson Airplane:

Don’t you want somebody to sue … After the 1996 crash near Dubrovnik, Croatia, that killed Commerce Secretary Ron Brown and 34 others, lawyers representing victim families faced an obstacle in the form of various laws sharply restricting the filing of actions against many of the more obvious candidate defendants: the U.S. government and its employees, military contractors such as planemaker Boeing, the government of Croatia, and so forth. But never despair: in a recently filed suit, lawyers for survivors announce they’ve found the real culprit in the crash, namely Denver-based Jeppesen Sanderson Inc., publisher of aeronautical charts which they say were confusing and understated the dangers of flying into the Dubrovnik airport. The map publisher “denies any wrongdoing and says it merely publishes approach data provided by civil aviation authorities around the world.” (”Suit Alleges Jeppesen Charts Contributed To Air Force Crash”, AVweb, March 2000 (”Briefs…”)).

Don’t you need somebody to sue… The Cincinnati Enquirer, in its retrospective on the catastrophic Beverly Hills Supper Club fire of 1977, reports that then-obscure injury lawyer Stanley Chesley, representing victim families, came up with the idea of suing not just the owners of the ill-fated nightclub but scores of companies that made such items as carpets and paneling, upholstery and plastic pipes within it, on the grounds that all their products, by burning, contributed to smoke and flame. “‘In all fires, they sue those people now, but it was novel then,’ said William O. Bertelsman, the victims’ co-counsel until becoming a federal judge. …Victims’ lawyers could not prove who made which aluminum wire or plastic furnishing, so they sued every manufacturer in each industry on the assumption anyone might have supplied the materials. …’The big innovation,’ complained attorney Jacob Stein, who opposed Mr. Chesley in Beverly Hills and since, ‘was that they sued a huge number of people who had no liability and were willing to pay you several hundred thousand dollars to make you go away.’” Chesley went on to become a wealthy political kingmaker (see March 30) and “Master of Disaster” (Ben L. Kaufman, “Litigation Bulldozed Traditional Legal Routes“; “The Master of Disaster“, part of Cincinnati Enquirer special series).

Wouldn’t you love somebody to sue… Having already bankrupted at least 22 companies that mined or sold asbestos or asbestos-containing products in past decades, lawyers are now suing a further estimated 2,400 companies that might in some way have exposed workers and others to the once ubiquitous insulation material, including Campbell Soup and Colgate-Palmolive (workers “handled or worked near equipment that contained asbestos”); Gallo Winery and Gerber Products; Ford and GM (brake linings); Alcoa (sued because its aluminum brake linings “allegedly cut into asbestos insulation, releasing fibers into the air”; and hospitals, colleges and other institutions that used ceiling tiles or insulation of which the naturally occurring mineral was an ingredient. “You have to look under every stone”, says New York plaintiff’s lawyer James Early. According to the Wall Street Journal’s news side, “[t]he bulk of new cases involve plaintiffs who aren’t ill but have some scarring that they fear will lead to future problems.” The Allwood Door Co. is named in half a dozen lawsuits filed by construction workers “because it sold fire-barrier doors made by another company in the 1960s and 1970s”. The doors in question were wood-sheathed, but contained asbestos in their mineral core; company president Bob Howell says he didn’t know the substance was even present within the doors. (Susan Warren, “Asbestos Suits Target Makers Of Wine, Cars, Soups, Soaps”, Wall Street Journal, April 12, fee-based subscriber archives).

…You better find somebody to sue. After Robert Longoria’s car collided with a deer along a semirural stretch of road in Brazoria County, Texas, his lawyer, Robert Kwok, sent a demand letter seeking money for his back injury and whiplash to a local subdivision association, alleging that some of its homeowners had taken to feeding the deer and could therefore be held legally responsible for their presence in the area. The residents resisted and Kwok’s firm has announced that it will not pursue the claim against them “at this time”. (Steven Long, “Buck Off”, Houston Press, April 27) (via Citizens Against Lawsuit Abuse Houston). (DURABLE LINK)

June 1 – 500,000 pages served on Overlawyered.com. Eleven months after we started, it’s clear someone’s reading us… why not pass the word to a friend and help us reach a million even faster? Thanks for your support!

August 31 — Death by mainstreaming. Had safety been the primary concern, Joshua Smurphat of Sunnyvale, Calif., 12 years old and mentally retarded, would probably not have been allowed onto the Drop Zone Stunt Tower ride from which he fell to his death August 22 at the Great America amusement park in Santa Clara. Mechanical failure has been ruled out, and ride designers say that once patrons have been strapped in, it’s physically impossible for them to fall out — provided they obey instructions to remain in their original posture. Even if Joshua’s harness was insecurely fastened, a possibility investigators are still checking into, an ordinary 12-year-old would be apt to notice the problem, but as Jeffrey Lewis, a director of the local United Cerebral Palsy organization, cautions: “in many cases, a consequence of mental retardation is the lack of danger awareness.”

However, both the federal Americans with Disabilities Act (ADA) and California disabled-rights law prohibit amusement parks from “discriminating” against persons with mental incapacities by turning them away from rides, or attaching special preconditions to their participation, so long as they meet otherwise applicable requirements such as height and chronological age. “Certainly they couldn’t say that somebody who had a cognitive disability couldn’t participate in a ride,” Sacramento disabled-rights attorney Eric Gelber told the San Jose Mercury-News, apparently well pleased with that result. “We take our obligation to accommodate all of our guests, regardless of disability, very seriously,” said a park spokesman, in what might serve as an epitaph for the unfortunate young man. (Aug. 26; related follow-up, Aug. 28; links now dead).

August 31 — New Overlawyered.com page: Unsafe on any docket. “Crashworthiness” cases have made big headlines this summer, with two California juries voting awards of $5 billion against GM (Chevy Malibu) and $290 million against Ford (Bronco) and the Massachusetts high court upholding a $19.2 million verdict against Chrysler for a Plymouth minivan accident that the plaintiffs blamed on brake locking. We’ve accordingly devoted the ninth in our series of topical surveys to the area, assembling some historical background and links about the Audi 5000 and its supposed penchant for sudden acceleration, the 1993 episode in which Dateline NBC producers got caught practicing what you might call sure-fire journalism, and similar controversies, not neglecting the case that litigation advocates would much prefer to talk about, that of the Ford Pinto.

August 31 — The “we sue Microsoft” business plan. A Bridgeport, Connecticut jury on July 17 returned a verdict in favor of Microsoft in a private antitrust suit brought by a small company named Bristol Technologies. Interviews afterward indicated that jurors had been angered by internal Bristol emails and memos revealing the smaller company’s not-exactly-reluctant attitude toward litigation. A May 1998 message from a company director to Bristol chief executive Keith Blackwell referred to the approaching lawsuit as “the ‘We sue Microsoft for money’ business plan.” Meanwhile, “[a] memo from a Manhattan public relations firm hired by Bristol described a $75,000-plus ‘David v. Goliath Strategic Communications Game Plan’ to attack Microsoft in the press,” reports Karen Donovan in the August 2 National Law Journal. “Then came an e-mail from Keith’s wife, Jean, days after the suit was filed in August. Its subject: ‘Extend the Story, Increase the Pain.’” “The whole scenario was kind of disgusting,” said juror Robert LaBella of Stamford (followup — Thomas Scheffey, “Microsoft, Bristol and Money”, Connecticut Law Tribune, Aug. 23). Update Nov. 30, 2000: judge increases verdict to $1 million, Bristol requests new trial.

August 30 — Do as we say (I). Latest employer to face a big class action under the antediluvian Fair Labor Standards Act for not paying overtime to some of its highly responsible employees (lawyers, in this case): the U.S. Department of Justice. (San Jose Mercury-News, Aug. 25; AP/Mpls. Star-Tribune, Aug. 26). Don’t miss the Detroit News editorial (Aug. 28). Update Jul. 18, 2004: court rejects case.

August 30 — Do as we say (II): gun-suit hypocrisy in Detroit. The Motor City’s police chief confirmed last week that just before suing private gun makers for allegedly not doing enough to curb distribution of their wares, the city itself sold an astounding 13-plus tons of used police weapons to a private dealer. That puts Detroit ahead of even New Orleans and Boston (see Aug. 25 entry, below), in the tonnage and perhaps also the hypocrisy competition when it comes to weapons distribution. Should the city be liable each time one of those surplus guns gets used for a criminal or suicidal purpose? (Detroit Free Press, Aug. 25).

Since its filing, letters to the editor from local residents have flayed Detroit’s gun suit for “holding an innocent party responsible for someone else’s criminal activity” and have suggested that, if the city is going to endorse that sort of logic, “victims of crime in the city of Detroit should file suit against the city for its failure to protect those in the city” (Free Press letters, Jan. 8, May 1). More than one letter-writer has suggested, by way of trying to come up with a reduction to absurdity, that the logical culmination would be to hold Detroit’s own hometown industry, the automakers, liable for the activities of drunk drivers. But as July’s Chevy Malibu verdict shows (see August 27, below, and July 10) that’s exactly what the trial lawyers are already doing with considerable success. It’s not easy to think up a reduction to absurdity of our litigation system that isn’t already well on its way to being implemented in all seriousness.

August 30 — “Tort reform spurs lawsuit filings”. Alabama courthouses work overtime as lawyers file suits in droves to beat the deadline for the application of legislated limits to punitive damages and forum-shopping (Huntsville Times, Aug. 24).

August 30 — Taco Bell not liable for Ganges purification pilgrimage. A judge in Lancaster County, Nebraska has declined to order the Taco Bell restaurant chain to pay for trips to India for Siva Rama Krishna Valluru and his wife, Sailaja. Devout vegetarians as part of their practice of Hinduism, the couple was dismayed to discover that a rice side dish they had been eating contained meat. They had argued that swallowing flesh constituted a sin the expiation of which required them to bathe in the Ganges River as part of a purification ritual, but Judge Jean Lovell said such expenses did not count as reasonably foreseeable (Lincoln, Neb. Journal-Star, Aug. 27; AP/Bergen County, N.J. Record, Aug. 28).

August 30 — “Scholar’s shift in thinking angers liberals”. Harvard’s Laurence Tribe upsets colleagues by concluding that the Constitution’s Second Amendment may not, after all, be a meaningless inkblot. Instead he “posits that it includes an individual right, ‘admittedly of uncertain scope,’ to ‘possess and use firearms in the defense of themselves and their homes.” Heresy! (Tony Mauro, USA Today, Aug. 27).

August 28-29 — Speech police go after opinion articles, editorial cartoons. Columnist Stephen Chapman writes that the faculty union at Daley College was recently hauled before the city of Chicago’s Commission on Human Relations, which has the power to levy fines and issue injunctions. Its sin? Publishing an article critical of affirmative action in its newsletter. The college’s Board of Trustees, which filed the complaint, accused the author of the offending piece, Prof. James Bell, of jeopardizing “the rights of students and staff at Daley to equal access” by “mak[ing] students uncomfortable in an institution where comfort is essential for learning.” In June, after two years, the commission finally dismissed the complaint on the grounds that Daley College was not a “public accommodation”. Also in June, however, Chapman reports, the Department of Human Rights in St. Paul, Minn., filed a complaint against the local newspaper accusing it of racial discrimination for having run an editorial cartoon on college athletics that offended many local blacks. After a public outcry, it backed off (St. Paul Pioneer Press, June 10; AP/Freedom Forum, Jun. 23). Chapman quotes UCLA law professor Eugene Volokh warning that such complaints are only too logical a consequence of today’s “hostile-environment” law, a topic on which Volokh maintains a highly informative website. (column link now dead)

August 28-29 — Weekend reading. Pixels to take out on the canoe or Airstream:

* What goes around comes around: the estate of the famously litigious inventor Jerome Lemelson gets hit with a suit from his former employer saying that it actually owns the rights to many of his patents. Critics accused the late Mr. Lemelson of specializing in “submarine” patents whose applications would lie dormant in the Patent Office for years, then suddenly surface when other companies had made progress on the technology in question. (Victoria Slind-Flor, National Law Journal, August 24; see also lemelsonpatents.com, a website put up by lawyers who’ve tangled with the Lemelson estate.)

* “Why, why, would the American Bar Association honor a scandalous leader who has just been found in contempt of court, and whose disbarment is being considered even now?” Or Webster Hubbell, convicted of stealing from his clients? “What kind of advertisement for the profession of law is that?…[Y]ou can’t embarrass an honest profession. Seduced by the glitz of high office and maybe its own partisan prejudices, the bar got what it deserved” — Paul Greenberg, Arkansas Democrat-Gazette (full column). Meanwhile, Judge Richard Posner’s An Affair of State: The Investigation, Impeachment, and Trial of President Clinton sounds like the book to read in the coming month, to judge from reviews by Stuart Taylor Jr. (National Journal) and James Stewart (New York Observer).

* Time for social conservatives to get off their coercive, government-infatuated Culture War kick: “The problem with cultural conservatism is that it despairs not of culture, but humanity. Its votaries consider us all a bunch of suggestible imbeciles, and they view capitalism as a scam…As it turns out, though, people are pretty reasonable….We’re not in danger of ‘an accelerating descent into barbarism and the destruction, sooner or later, of free society itself.’ …Censorship merely would bollix things up by inviting censors to abuse power and everyone else to become dependent and lazy.” — columnist and Fox News host Tony Snow (link now dead).

August 27 — L.A. judge cuts award against GM to $1.2 billion. From the automaker’s motion for a new trial, we finally learn what the other driver’s name was (Moreno), how drunk he was (”.20 several hours later”), and what happened after the plaintiff’s lawyers succeeded in getting the judge to exclude from the trial any mention of Moreno’s intoxication or the fact that he’d been convicted and imprisoned for felony drunk driving over this crash (”Having moved to exclude it, plaintiffs told the jury, falsely, that his guilt consisted of ‘five seconds of bad judgment’,” whereupon the jury allocated to Moreno only 5 percent of the guilt for the injuries) (GM statement) (earlier Overlawyered.com commentary)(auto-safety litigation generally).

Plaintiffs also successfully fought to exclude evidence that the federal government’s real-world highway statistics show the Malibu among the safest cars of its time in crashes, and that testing had raised safety concerns about the alternate placement of the gas tank sought by the plaintiffs. Reuters now quotes GM as saying that 98 percent of American cars in the 1970s had their gas tanks in the same position as the Malibu’s. (”Judge Tells GM To Pay Record $1.2 Bln Liability”, link now dead). The company also says (Wall Street Journal news report today by Frederic Biddle, online subscribers only) that “there was absolutely no difference in cost” between the two designs.

While Reuters (link now dead) fairly summarizes many of the above facts, you’re in trouble if your local paper relies on the Associated Press. AP correspondent David Germain’s dispatches make it hard to figure out why GM thinks it has a case, merely depicting the automaker as trying to “be let off the hook” (link now dead) and quoting plaintiff’s attorney Brian Panish as saying, of the gas tanks, that “[t]he only people in the whole world who think they’re safe are General Motors and their lawyers” (link now dead), a temptingly checkable assertion left unchecked. Incidentally, Yahoo features Overlawyered.com’s July 10 commentary as a resource in its Full Coverage feature on the case.

August 27 — Best little forum-shopping in Texas. Two more stories illustrate why lawyers appreciate the Lone Star State for a kind of shopping not found at Neiman-Marcus. Mark Ballard in the National Law Journal relates how plaintiffs have brought a long succession of high-stakes cases to sleepy Texarkana, Texas “for only one reason: Judge David Folsom. The 52-year-old Clinton appointee is the only federal judge in Texarkana. Thus, every suit filed here goes before him.” Find a local resident or institution to stand in as your named plaintiff, and you’re home free: Folsom says he can’t recall ever granting a change of venue, though they’re often requested by defendants who wonder why they’ve been dragged to rural northeast Texas when neither they nor the subject matter of the litigation have any particular connection to that part of the world. An old pal of Bill Clinton’s from Arkansas days, Folsom presided over the $17.3 billion settlement of Texas’s Medicaid class action against the tobacco industry. That case certainly pepped up the local economy: the Texarkana Chamber of Commerce estimates that tobacco lawyers and their staffs spent $6.1 million during the proceedings. (Aug. 26).

Meanwhile, lawyers have obtained a $30 million settlement in a Mexican bus-crash case, much more than what such a case would have brought if filed in Mexico, because they were able to find a Texas judge willing to impose not only a Texas forum but also Texas law. (To get some idea of the asymmetries involved, imagine a Mexican court applying that country’s law to a Texas accident.) AP quotes the plaintiff’s lawyer as openly boasting of having foiled the Mexican legal system’s duly considered policy of not handing out money as readily as ours does. The presumption of those other countries, thinking they can apply their law to accidents on their roads! (AP/Washington Post, Aug. 16; Texas Lawyer, Aug. 23).

August 27 — Company to settle 36,000-plus Norplant suits. The Dallas Morning News reports that American Home Products has agreed to pay what could exceed $50 million to buy partial repose (some suits will remain) from lawyers suing it over the silicone-implant contraceptive. The per-claimant sums aren’t very large ($1,500), but nuisance value multiplied by 36,000 gets into substantial money. For more details, see our August 11 commentary and today’s lead editorial in the Wall Street Journal (online to subscribers only). (Dallas Morning News, Aug. 26; Yahoo/Reuters).

August 26 — Playing rough in Alabama. Last week a Mobile grand jury indicted former Alabama Trial Lawyers Association president Garve Ivey Jr., of Jasper, and a private investigator who has worked with Ivey, Wes Chappell, on charges of bribery, witness tampering and criminal defamation. The charges arise from an episode last year in which a former prostitute named Melissa Myers stepped forward to accuse Republican lieutenant governor candidate Steve Windom of raping her. Windom was elected anyway, Myers’s story soon fell apart, and she began cooperating with authorities looking into the question of whether she had been backed by others in making the allegations. Windom had come under heavy fire from organized trial lawyers for having taken a leading role in support of tort reform; in Alabama, as in other Southern states, the lieutenant governor’s position is a powerful one in blocking or approving legislation. Ivey and Chappell deny the charges and say they look forward to their day in court, and Ivey has sued Windom personally as well: “We are filing our lawsuit in Walker County, my home, not Mobile.” (”Ivey refuses to testify before grand jury”, AP/Daily Mountain Eagle (Jasper, Al.), Oct. 21, 1998; John M. Sandlin, “Ivey sues Windom, indictment reported in Mobile”, Daily Mountain Eagle, Aug. 17; AP/Washington Post, Aug. 19) (see update Sept. 1). Update: a jury in June 2000 acquitted Chappell, acquitted Ivey of the felony bribery charge, and convicted Ivey of the two misdemeanor counts of witness tampering and criminal defamation; appeal planned (see Aug. 31, 2000). Further update: in July 2001 the Alabama Supreme Court reversed these convictions and ordered Ivey acquitted of the charges (see July 7, 2001).

August 26 — Rolling the dice. With Ralph Nader on the warpath against the gambling industry, can the lawsuits be far behind? Wait a minute — here they are! David Rovella in the August 2 National Law Journal reports that class action lawyers in Alabama and Wisconsin have filed suit against credit card companies for allowing their customers to run up debts at offshore Internet casinos. David T. Maple of Birmingham, Ala. lost $49.95 at one such game site but stands to recover a lot more than that as “name plaintiff”, which might mean he is off to a profitable betting career after all. Lawyers say they are hoping to recover billions of dollars in refunds, interest “and even damages” (full story). In a policy analysis for the Cato Institute, Chapman University School of Law assistant professor Tom W. Bell calls Internet gambling “Popular, Inexorable, and (Eventually) Legal“.

August 26 — New feature debuts on Overlawyered.com site. Today marks the launch of our fledgling library of online articles, originally published elsewhere and now reprinted by permission of their authors, discussing some of the problems of the U.S. legal system. The opening line-up includes 28 articles by Michael Fumento, Peter Huber, Jonathan Rauch and Overlawyered.com editor Walter Olson on topics ranging from employment law to medical malpractice litigation, from toxic-tort scares to free speech. We expect to add more authors and articles in the weeks ahead.

August 25 — Gun-suit hypocrisy, Boston style. Last week officials admitted that they failed to follow their own procedures when they disposed of surplus police guns with no strings attached, which leaves the city resembling a Rum-denouncing cleric caught bootlegging on the side, given that it’s suing gun makers for not making an effort to control what happened after guns left their hands (see July 14). “Somebody dropped the ball,” acknow