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sued if you do

Altria v Good affirmed 5-4

by Ted Frank on December 15, 2008

The Supreme Court rejected (h/t Beck/Herrmann) tobacco companies’ argument that the FTC’s use of the Cambridge Filter Method standard of measuring tar and nicotine impliedly preempted lawsuits against the tobacco companies for advertising their cigarettes using data from the Cambridge Filter Method standard of measuring tar and nicotine.  The fact that the federal government disavowed preemption lends another data point in support of Professor Catherine Sharkey’s argument that the Court tends to defer to the Solicitor General’s position on preemption disputes.  Justice Thomas’s dissent, which would undo the unworkable Cipollone plurality, appears to me to be the stronger argument, but it didn’t carry the Kennedy Five.

The fact pattern is the subject of numerous multi-billion dollar lawsuits against tobacco companies alleging that their sales of light cigarettes are fraudulent.  The light-cigarette consumer fraud litigation still suffers from constitutional flaws relating to due process in aggregate litigation, but these remain to be resolved.

Perhaps a candidate for the “Damned if you do, damned if you don’t” files? From Gov. Sarah Palin’s ethics disclosure form to the Attorney General of Alaska concerning allegations that she improperly sought the removal of Alaska state trooper Mike Wooten, an estranged brother-in-law who’d made threats against her family:

It was a matter of public importance that some Alaska State Troopers seemed to feel themselves above the law. Beyond the governor’s own personal experience, the state was sued for troopers’ violations of constitutional rights, occasionally losing jury trials that would cost the taxpayers substantial money. And, of course, such abuses of power by troopers are exactly the kind of corruption that the governor has long opposed. On occasion, Governor Palin would let Monegan know that she felt this was a problem within the Department of Public Safety; Monegan has told the press that at least once the Governor included mention of Wooten as a prime example of someone who was a problem within the department. Monegan himself told the Washington Post about an e-mail Governor Palin sent him after he informed the governor about one such jury trial loss.

(courtesy Anchorage Daily News, PDF — see p. 9, paragraph 45)(background: WaPo, CNN). More: Beldar.

This is the silliest claim I’ve seen in a long while.  The shooting victim’s family filed a claim against the school their son attended because it allegedly failed to enforce the dress code.  The “feminine-dressing” boy was thusly singled out for abuse.  (“Family of shooting victim files claim against Huenume School District”, VenturaCountyStar, Aug. 14).

Update: I revised the title for accuracy.


We hear frequently that the medical profession doesn’t do enough to police its own. Cases like that of Lawrence Poliner might explain why. In 1997, in response to complaints by nurses at Presbyterian Hospital of Dallas, and the allegation by a doctor that Poliner had performed an angioplasty on the wrong artery, the hospital asked Poliner to stop work while they investigated. These limited privileges lasted 29 days, followed by a unanimous decision to suspend, a five-month suspension from echocardiography privileges, and then reinstated Poliner five months later subject to conditions that he consult with other cardiologists.

For this, Poliner sued for defamation and under federal antitrust law, alleging that other cardiologists were trying to dominate the market and prevent his competition. The five-month suspension had federal immunity under the Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq. (just one of many federal tort reforms that promote safety), but the trial court held that the 29-day limited-privileges created a cause of action that should go to a jury. Poliner lost $10,000 in income over that time “but was awarded more than $90 million in defamation damages, nearly all for mental anguish and injury to career. The jury also awarded $110 million in punitive damages”–despite the fact that Poliner would have to prove damages were caused by the allegedly unprivileged temporary limitation rather than by the five-month suspension. We covered the initial $366 million verdict in 2004, the outraged medical blogosphere reaction, and the remittitur to a still ludicrous $22.5 million in 2006.

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July 13 roundup

by Walter Olson on July 13, 2008

  • Nothing new about lawyers stealing money from estates, but embarrassing when they used to head the bar association [Eagle-Tribune; Lawrence, Mass., Arthur Khoury]
  • Unusual “reverse quota” case: black job applicant wins $30K after showing beauty supply company turned her down because it had a quota of whites to hire [SE Texas Record]
  • Who knew? Per class action allegations, pet food contains ingredients “unfit for human consumption” [Daily Business Review]
  • U.K.: “A divorcee who won a £1.4million payout from her multi-millionaire husband is suing her lawyers because she claims she should have got twice that amount.” [Telegraph]
  • UW freshman falls from fourth-floor dorm window after drinking at “Trashed Tuesday”, now wants $ from Delta Upsilon International as well as construction firm that put in windows [Seattle P-I, KOMO]
  • After giant $103 million payday, current and former partners at Minneapolis law firm are torn by feuds and dissension — wasn’t there a John Steinbeck novella about that? [ABA Journal and again, Heins Mills]
  • Small firm that used to make Wal-Mart in-house videos sets up shop at AAJ/ATLA convention hawking those videos for use in suits against the retailer [Arkansas Democrat Gazette, earlier]
  • When the judge’s kid gets busted [Eric Berlin; Alabama]

Yesterday the New York Times reported on the longstanding problem of patient assaults on medical personnel, particularly in psychiatric care: citing Bureau of Labor Statistics numbers, it said “half of all nonfatal injuries resulting from workplace assaults occur in health care and social service settings”. (David Tuller, “Nurses Step Up Efforts to Protect Against Attacks”, Jul. 8). So it’s worth noting what happened to Northfield City Hospital in Northfield, Minnesota when a man showed up at the emergency room at 2 a.m., ranting and yelling in an increasingly agitated manner. Hospital staff finally called the police, who arrived on the scene at 7 a.m., assessed the situation and tasered the man. (He was uninjured otherwise and was subdued without losing consciousness.) “Now federal and state health officials have cited the Northfield hospital for violating the patient’s rights,” a development that has outraged hospital officials in the state. The state health department says it believes that staff at the facility, a small one with fewer than 100 beds, “needs more training in deescalation techniques”. The hospital has hired two security guards and is negotiating other steps with the state (Maura Lerner, “Hospital calls cops and feels the sting”, Minneapolis Star-Tribune, Jun. 15). A commenter at KevinMD asserts:

A few years ago, Medicare tried to prohibit physicians from discharging a patient for any reason, up to and including physical attacks on physicians and staff.

Just as the doctors were required to hire translators at the doctor’s expense, they would be required to hire security at the doctor’s expense.

They backed off then, when they physicians called them on it. Not surprised they would try again.


June 29 roundup

by Ted Frank on June 29, 2008

  • New FASB regulation may provide fodder for trial lawyers: publicly disclose your internal analysis of liability (thus giving away crucial settlement information and attracting more lawsuits), and/or face lawsuits when your disclosure turns out to be incorrect. [;; NLJ/ ($); FASB RFC]
  • NBC settles a “You-made-me-commit-suicide-by-exposing-my-pedophilia” lawsuit. [LA Times; WSJ Law Blog; Conradt v. NBC Universal]
  • A victim of overwarning? 17-year-old loses hat on Six Flags Batman roller-coaster ride, ignores multiple warning signs to jump multiple fences into unauthorized area, retrieves hat, loses head. [FoxNews/AP; Atlanta Journal-Constitution; TortsProf]
  • Lots of Ninth Circuit reversals this term, as per usual. [The Recorder/]
  • A no-Twinkie defense doesn’t fly in a maid-beating case. [CNN/AP via ATL]
  • The Chinese government demonstrates that it can enforce laws against IP piracy when it wants to [Marginal Revolution]
  • “Justice Scalia said he thought that the United States was ‘over-lawed,’ leading to too many lawyers in the country. ‘I don’t think our legal system should be that complex. I think that any system that requires that many of the country’s best minds, and they are the best minds, is too complex. If you look at the figures, where does the top of the class in college go to? It goes into law. They don’t go into teaching. Now I love the law, there is nothing I would rather do but it doesn’t produce anything.'” [Telegraph]
  • Above the Law commenters decidedly unimpressed by my looks. Looking forward to feminists rushing to my defense against “silencing insults.” [Above the Law]


Industrial safety specialists have long warned of the hazards of letting employees wear baggy garments around assembly-line machinery, hence the snug uniform, including pants, prescribed for both sexes by Mission Foods at its tortilla-making plant in New Brighton, Minn. Fatuma Hassan, an employee of Somali descent, claims it’s religious discrimination not to let her wear traditional garb. Thanks in part to activist groups eager to provide backup, Minnesota has become a flashpoint for Muslim employees’ demands for religious accommodation on the job: the cab drivers who refused to transport arriving airline passengers carrying duty-free alcohol and the Target cashiers who declined to scan pork apparently never made it to court, but complainants in the state filed 45 other cases with the EEOC last year. A class action is in progress against circuit-board maker Celestica on behalf of 22 employees, many of whom “were fired or suspended for taking unauthorized breaks at sunset. The changing Islamic prayer schedule was a key reason.” (“Cultural traditions can lead to conflict on the job”, AP/Rochester (Minn.) Post-Bulletin, Jun. 17)(via Michelle Malkin).


The facade of the Old Morris tobacco shop in Victoria, British Columbia, which has operated at its location for 120 years, “has been preserved in it’s [sic] original design, including signs noting the tobacco, house blends and Havana cigars within.” New provincial legislation prohibits tobacco-promoting signage where visible to youths; “Businesses who violate the act face a $575 fine for a first offense, with penalties rising up to $5,000 for repeat offences.” At the same time:

In a letter sent to [store owner Rick] Arora, Steve Barber, senior heritage planner with the City of Victoria, called the store’s signs “an integral part of the history of this building and part of it’s heritage character,” meaning Arora cannot remove or cover the signs.

“They’ve made it clear I can’t touch them,” Arora said. “I could be fined $1 million and go to jail for two years.”

Neither government agency “is budging” on its demands. (Tom Mcmillan, “Tobacco store owner caught between policies”, Canwest/Vancouver Sun, May 27). Update: compromise struck (thanks to reader ras in comments).


A customer complained to the staff that a man was in the women’s restroom in the Greenwich Village restaurant Caliente Cab Co. Given the risk of multi-million dollar liability of failing to act in the face of a warning if a customer were assaulted by a man in the women’s restroom, a restaurant bouncer ejected Khadijah Farmer, Khadijah’s girlfriend, and a third in their dinner party.

Unfortunately for the restaurant, Khadijah Farmer was not a man, but an extraordinarily masculine-looking lesbian (who says she is mistaken for a man on a “daily basis”).

Further unfortunately for the restaurant, New York City has an unusual law prohibiting discrimination on the basis of “sexual stereotyping.” Further further unfortunately, Ms. Farmer wasn’t satisfied when the restaurant offered her a free meal in response to her complaint, and went straight for the lawyers. Further further further unfortunately, a top-tier law firm agreed to work the case “pro bono,” assigned three attorneys to it, and ran to the courthouse, even after the restaurant agreed to sensitivity training for its employees.

Let’s agree: the bouncer made a mistake and should have taken the opportunity to look at Farmer’s ID. Women shouldn’t be thrown out of women’s restrooms for looking like men, though one who looks as masculine as Farmer has to reasonably expect questioning unless we’re going to go the unisex bathroom route.

Damned if it does, damned if it doesn’t; up against a law firm using a bazooka to kill a mosquito; and in a neighborhood where being on good terms with the gay community is important for business relations, the restaurant, facing weekly pickets from the Queer Justice League, rolled over and settled for $35,000 + $15,000 in attorney’s fees, which will eventually be extracted from the restaurant’s clientele in the form of higher prices. (Jennifer 8. Lee, “Sexual Stereotypes, Civil Rights and a Suit About Both”, NY Times, Oct. 10; Jennifer 8. Lee, “Woman Wins a Settlement Over Her Bathroom Ouster“, NY Times, May 14; Andy Humm, “Calls to Boycott Caliente Cab Company”, Gay City News, Jul. 19).

I ate at the Caliente Cab Co. on Bleecker in the summer of 1988 when I lived on 12th and University; next time I’m inclined to eat there, I’ll let them throw me out of the restaurant for a fraction of what they paid Ms. Farmer. (Similarly: Gothamist commenters.)

The good news is that the legal problems of New York’s poor and non-profits have been so thoroughly resolved that a law firm can devote substantial pro bono resources to punitively harassing a small business over a bouncer’s not especially unreasonable misunderstanding, and has successfully trained a couple of young associates that they can file a lawsuit to extract tens of thousands of dollars over a $50 dispute. Do Morrison & Foerster’s clients know that this is the kind of litigation they’re subsidizing?

Previously on pro not-so-bono: October 2004.


School districts have learned that they cannot discipline students for abusive Internet postings they make off-campus. Layshack v. Hermitage Area School District, No. 074465 (pending 3d Cir.); Dwyer v. OceanPort School District No. 03-6005 (D. N.J.) ($117,500 settlement to student suspended over web site). “Lawyers say school districts are in a legal quandary: If they punish a student for something they did off school grounds, they could get hit with a freedom of speech claim. If they do nothing, they could get hit with failure to act litigation.” (Tresa Baldas, “As ‘cyber-bullying’ grows, so do lawsuits”, National Law Journal, Dec. 10).


December 2 roundup

by Ted Frank on December 2, 2007

  • Remember that ludicrous case where the Florida driver fell asleep, crashed his Ford Explorer, his passenger was killed, and a jury blamed Ford to the tune of $61 million? (See also Sep. 10.) A Florida court got around to reversing it, though only to grant a new trial under a variety of erroneous evidentiary rulings that prejudiced Ford, rather than because the suit was too silly to ever conceivably win in a just society. The remand goes back to the same judge that let the suit go forward and committed multiple reversible errors in favor of the plaintiff. [Ford Motor v. Hall-Edwards (Fla. App. Nov. 7, 2007); Krauss @ Point of Law; Daily Business Review; Bloomberg/Boston Globe]
  • Not really a man-bites-dog story, but Geoffrey Fieger (Aug. 25 and rather often otherwise) speaks. [ABA Journal]
  • Uh-oh: Former litigator hired to invest $100m in court cases for UK hedge fund. [Times Online]
  • The real NatWest Three deal. [Kirkendall; July 2006 in Overlawyered]
  • Homeowners fined $347,000 for trimming trees without a permit—after the Glendale Fire Department sent them a notice telling them to trim their trees for being a fire hazard. (h/t Slim) [Consumerist]
  • Disclaimers at children’s birthday parties (h/t BC) [Publishers Weekly]
  • British Christmas parades handcuffed by litigation fears. (h/t F.R.) [Telegraph]
  • Underlawyered in Saudi Arabia: A “19-year-old Saudi gang-rape victim was recently sentenced to 200 lashes and six months in jail for being in a car with an unrelated male when the attack occurred. Last week, her lawyer was disbarred for objecting too vociferously.” [Weekly Standard]
  • Don’t forget to vote for us at the ABA Journal Blawg 100.

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November 7 roundup

by Walter Olson on November 7, 2007


In UAW v. Johnson Controls, 499 U.S. 187 (1991), the Supreme Court held that sex discrimination laws prohibited employers from making decisions about fetal safety that took the choice to work in dangerous conditions away from pregnant women. Still, even though the Supreme Court held that “Decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents,” and the Supreme Court rejected the idea that civil liability could be an issue for such employers, state courts are still holding employers liable when women claim their unborn children suffered injury while they were working. Michael Starr and Christine Wilson look at the issue in the October 29 National Law Journal.

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Over at Point of Law, guest-blogger Deborah LaFetra discusses the case of Castaneda v. Olsher, where a owner of a mobile home park was sued by a victim of gang-warfare crossfire for permitting gang members to rent space on the lot. Of course, as Pacific Legal Foundation argued (and the court held), any alternative would run afoul of California anti-discrimination law, as well as the impossibility of obtaining information protected by California privacy law.

Pharmacist Cynthia Haddad, when she left the pharmacy unattended, allowed a technician to use her computer security code to issue prescriptions, including a fraudulent prescription for a painkiller, something that could have exposed Wal-Mart to enormous liability if someone had been injured by the illegally dispensed drugs. So Wal-Mart fired Haddad. Haddad sued, claiming that the real reason Wal-Mart fired her was because she had asked for a raise to a manager-level salary, though she did not perform manager-level duties such as budgeting, and that it was thus sex discrimination. (Haddad claims that Wal-Mart “never” fired a male manager for her infraction, which seems implausible at best; Wal-Mart says it did fire male pharmacists for this. Why is this even a factual dispute for decision for a jury? This seems like a matter that merits a partial summary disposition to prevent one side from out-and-out lying.) This somehow got to a jury, which awarded $2 million, including $1 million in punitive damages. Among the questionable procedures used to railroad Wal-Mart at trial was permitting Haddad to present an attorney to testify as an expert witness on human resources procedures. Wal-Mart indicated it disagrees with the jury’s decision and is studying whether an appeal is worthwhile. Massachusetts courts are not a friendly place for defendants. Wal-Mart’s attorney did not comment to the press, permitting the plaintiffs’ lawyer to generate rather one-sided press coverage. [Berkshire Eagle June 19; Berkshire Eagle June 20; Reuters/USA Today; Massachusetts Lawyers Weekly]


Perhaps not unrelated to the French Mohammed-cartoons trial mentioned yesterday, this is from Brussels Journal (Feb. 2):

If Turkey joins the EU then we will have the comedy situation that denial of the Armenian Holocaust is a criminal offence in France, whilst mentioning it is a criminal offence in Turkey. The happy result of this could be that the entire population of France could be lifted and placed, Midnight Express like in Turkish prisons. Of course the entire population of Turkey could then find itself extradited to France and imprisoned there.

Before anyone objects, yes, it’s of course true that the laws in question do not actually compel citizens to speak affirmatively on behalf of the official view, so it’s still possible (through silence) to avoid breaking anyone’s law. The concept remains funny, though.


Annals of public employee tenure, this time from Norwalk, Ct.: “The city will not appeal a state Labor Department ruling to reinstate police Officer Liam Callahan, a nine-year veteran fired last fall for taking a skull fragment from the scene of a May 2005 accident. ‘The laws in the state are such that it’s extremely difficult to overturn a ruling,’ Deputy Corporation Counsel Jeffry Spahr said yesterday after discussing the matter in executive session with the Norwalk Police Commission.” According to numerous press reports, co-workers of Callahan’s said he planned to use the skull fragment as an ashtray. An investigation concluded that Callahan’s statement after being confronted that he had intended to return the fragment was not credible. (Created Things (Jeff Hall), Jan. 16; Brian Lockhart, “City officer in skull-fragment case reinstated”, Stamford Advocate, Oct. 24). And on the sued-if-you-do, sued-if-you-don’t front, note well: “Callahan and the city still face a civil lawsuit from [victim Alfred] Caviola’s family.” Unless Callahan personally turns out to provide a deep pocket, it appears the longsuffering taxpayers of Norwalk may find themselves on the hook for who knows what sort of payout — juries in other cases have expressed outrage at mishandling of decedents’ remains — even as the city is unable to sever the actual perpetrator of the act from its payroll.