Nassau County, N.Y., had let go 71-year-old veteran lifeguard Jay Lieberfarb after he failed a swim test. Charging that the county had not always dismissed younger guards who had failed the same test, the EEOC proceeded to negotiate a $65,000 back pay settlement, a three-year consent decree and other relief. [EEOC press release; h/t Roger Clegg] Earlier on superannuated lifeguards [Ocean City, N.J.] (& welcome Chris Fountain readers; he recommends this blog as a cure for low blood pressure)
- Housekeeping service in Florida proclaims, “We Speak English”. So will they get sued? [Smerconish/Phila. Daily News]
- Update: Dad who long ago walked out on his family won’t get chunk of estranged son’s $2.9 million 9/11 fund benefit [NY Post (link fixed now); earlier]
- Did Illinois state’s attorneys advise Marine sergeant complaining of car vandalism that there wasn’t much point trying to recover from the suspected offender since he was a lawyer? [Blackfive via Zincavage and many readers; Kass/Tribune] And what kind of trouble might the lawyer be in if he suggested slipping the repair costs along to an insurer? [Patterico commenters, Goldberg/NRO Corner correspondent] More: Bainbridge.
- Not long after American Lawyer pronounces the demise of securities class actions, we learn they may be back on a cyclical upswing [August TAL; new Stanford Clearinghouse]
- If rising tide of outrage leads to abolition of peremptory challenges, many lawyers won’t have anyone to blame but themselves [Reed]
- Brooklyn judge’s presenting of box of candy to plaintiff among grounds for reversal of $14 million brain-damaged infant verdict [NYLJ]
- Yet more health privacy madness: “HIPAA is adversely affecting our ability to conduct biomedical research” [Reuters on JAMA study via Kevin MD; relatedly, Karvounis/HealthBeat]
- People kept tearing down no-swimming signs at much-used park in Bellingham, Wash., and you know what’s going to happen next without our having to tell you [AP/Seattle Times]
- Two Illinois judges in drunk-driving accident that broke other driver’s leg draw mere reprimand with “no consequences other than public embarrassment” [Post-Dispatch]
- Suit against Avvo lawyer-rating suit dismissed on First Amendment grounds [Seattle Times, Post-Intelligencer; earlier]
- Saves her friend’s life, then sues her [seven years ago on Overlawyered]
- Chief exec of 1-800-ATTORNEY ended up needing one himself, pleading guilty to securities fraud charge [NYLJ, Lattman]
- Cost of providing liability insurance for Pennsylvania prison doctor greatly exceeds his pay [Shamokin, Pa. News-Item, Dr. Robert Hynick, Northumberland County Prison]
- “Scottish sociopaths sipping their single malt Glenlivet” — yep, Jack Thompson is suing Grand Theft Auto developers again [GameSpot]
- Anna Nicole Smith fee-ing frenzy: $4,265 for Bahamas cellphone roaming part of “fair and reasonable” lawyer’s bill [TMZ]
- Working in a prosecutors’ office? More about nailing ‘em than making sure justice was done [Dean Barnett via MedPundit]
- Don’t forget imprisoned Egyptian blogger Abdelkareem Nabil Soliman [Palmer @ NRO, Doherty @ Reason]
- “Pretexting” to fish out adversaries’ secrets: yes, lawyers do it too, now that you mention it [Elefant]
- Which is more dangerous to kids, a house with a swimming pool or a house with a gun? Think carefully before answering [Stossel]
- For shame: Supreme Court of Canada gives go-ahead for British Columbia’s retroactive tobacco recoupment suit [Ottawa Citizen, CBC, Bader; earlier]
- Anti-biotech activists score, farmers squirm as judge halts sale of Roundup Ready alfalfa [Farmer-Stockman, Feedstuffs, Truth about Trade & Technology](more: Coyote)
- Soap opera actor sues after ABC writes his character out of the script [five years ago on Overlawyered]
Guestblogger Peter Morin earlier this month took note of a bracing decision by Judge David Sills, presiding justice for a California court of appeal, overturning a $540,000 settlement in a Proposition 65 toxic-warning case filed by what he called “bounty hunters”. The National Law Journal has followed on with more details of the case, Consumer Defense Group v. Rental Housing Industry Members, in which a law firm, acting on behalf of a supposed consumer group and complainant, “sued 170 apartment building owners around California and the Rental Housing Industry trade association for failure to warn of the danger of cigarette smoking by tenants anywhere in the building and parking lots where auto exhaust might expose tenants to carcinogens. … the ultimate global settlement included a promise to post a generic warning on buildings and a laundry list of potential sources of cancer provided on a Web site, including furniture, paint, construction materials, cleaning supplies, swimming pool chemicals, pest control and landscaping.” It gets better:
“Trade group wanted to buy its peace and was willing to pay off the law firm to obtain it, in return for which the owners would also get a favorable deal with regard to any future litigation concerning Proposition 65 violations,” Sills wrote. But he saved his wrath for Graham & Martin. “Consumer Defense Group and McKenzie are simply straw plaintiffs set up to enable the law firm of Graham & Martin to obtain legal fees in Proposition 65 litigation. We will therefore refer to the ‘plaintiffs’ by the title most substantively accurate: Graham & Martin,” said Sills.
“In a decision that could have ripple effects across Long Island’s East End summer playground, a Suffolk Supreme Court justice hearing a swimming pool accident case has ruled that a sharehouse owner may be held to the same liability standards as the owner of a hotel, motel or inn.” After Flavio Fornaro injured himself diving, his lawyers argued that the owner of the house in Quogue should have mounted decals on the swimming pool to indicate relative depths, a step that might be standard for a hotel or motel pool but which is not expected of homeowners. A judge ruled that the claim could go to trial. “The decision could create a whole host of new and previously unanticipated duties for both rental property owners and others who have pay-to-attend events at their homes.” One Riverhead attorney wondered whether the hiring of lifeguards might be required, and a realtor called the decision “quite disturbing”, with its implication that prudent private owners might need to mimic the safety precautions of commercial establishments: “You can’t take a person’s residence and make it a Starbucks.” (Andrew Harris, “Sharehouse Owners Held to Public Accommodations Standards in Pool Accident Case”, New York Law Journal, Nov. 2).
Five-year-old Valerie Lakey suffered devastating injuries when she was literally disemboweled when she sat on an open pool drain in 1993. Throughout the 2004 presidential campaign, John Edwards made much of his trial victory in this case against the manufacturer of the pool drain cover, Sta-Rite, and it immunized him from much criticism, with the media regularly making encomiums to his dramatic closing argument invoking his own dead son.
But it turns out the facts of the case are much more complicated than John Edwards and the media made out.
Valerie Lakey suffered horrendous injuries because other children at her municipal swimming pool vandalized the safety equipment protecting the pool drain and the city didn’t fix the problem. “‘I don’t believe this has anything to do with product design—it’s an issue of maintenance, an issue of a missing cover and the child sitting down on it,’ said Ken Giles, a spokesman for the U.S. Consumer Product Safety Commission.” (“Drain that injured girl lacked cover”, Raleigh News & Observer, Jun. 24, 1993). According to the same article, “The National Spa and Pool Institute, along with the Consumer Product Safety Commission, issued a list of precautions for pool owners and managers in 1982. It states that covers must be checked daily to see whether they are in good repair and to make sure they cannot be removed without tools.”
The powerful circulation pump, manufactured by another defendant, didn’t have a readily-accessible emergency shut-off switch. After John Edwards settled with the municipality and pump manufacturer for $5.9 million, guaranteeing him a hefty profit on the case, he was able to focus on the lottery-litigation against the manufacturer of the pool drain cover at trial, blaming them for not doing more to protect the pool drain from vandalism—including the standard second-guessing of the “failure to warn” the municipality of the obvious problems of letting the pool drain be vandalized. There was no evidence that the additional warning to screw in the drain cover would’ve made a difference: county regulations already required the pool drain cover to be screwed in, and the pool managers testified that they had done so several times in the year before Lakey’s accident. (“Defense argues pool staff knew to screw down drain covers”, Raleigh News & Observer, Jan. 10, 1997.)
The defense decided not to settle after it tried the case in front of four focus groups that agreed that it acted reasonably. But the jury in the Lakey case wasn’t allowed to make that decision: the judge erroneously instructed the jury that Sta-Rite acted unreasonably as a matter of law, apparently overreacting to a discovery dispute. Edwards had asked Sta-Rite to provide documents relating to the specific model of pool cover, and then thought to modify his request to include documents relating to all covers a week before trial—and when Sta-Rite provided the newly requested documents (which related mostly to hot tubs), Edwards accused them of having deliberately hidden the documents. (“Final stages of pool drain trial to begin”, Raleigh News & Observer, Jan. 6, 1997.)
Because of the risk of bankrupting punitive damages, Sta-Rite settled for slightly above insurance limits rather than appeal. According to Raleigh News & Observer, after the trial, a number of jurors said they could have gone either way until the judge instructed them on the question. (Anne Saker, “Focus groups becoming vital tool for N.C. lawyers”, Jan. 18, 1997.)
Sta-Rite had been putting warnings on its pool-drain covers since 1987, so the case did nothing to change their product; if anything, the additional safety innovation hurt them at trial because it was used against them to argue that they should have acted earlier.
The Monkeytime site has some additional details, including Edwards’s invocation of his son’s death.
One of America’s least credible public figures, celebrity environmentalist Robert F. Kennedy Jr., wades into the mercury in vaccines/autism controversy (Dec. 29, 2003, earlier posts) with a “special investigation” for Salon and Rolling Stone rehearsing the contentions of anti-thimerosal activists (“Deadly Immunity”, Jun. 16). Orac at Respectful Insolence, who’s covered the controversy extensively, hits back hard here, here and here. Reactions from Salon’s readers are here, and the online magazine has already been obliged to post several corrections of Kennedy’s errors, including the following remarkably embarrassing one:
The article also misstated the level of ethylmercury received by infants injected with all their shots by the age of six months. It was 187 micrograms — an amount 40 percent, not 187 times, greater than the EPA’s limit for daily exposure to methylmercury.
The Lincolnshire town of Boston has canceled its annual flower and craft show, a major tourist draw, because it believes the risk of litigation is too high to proceed without hiring licensed stewards at prohibitive rates. (Nick Britten, “Flower show wilts in blame culture”, Daily Telegraph, Apr. 16). In Scotland, “Schools across Renfrewshire have banned pupils from taking part in after-school football [soccer] over fears they would be sued for injuries. … They were banned because volunteer coaches were not covered by the schools’ insurance schemes for after-class games.” (“Legal fears prompt football ban”, BBC, Mar. 12)(via Greg Skidmore, Mar. 14). At the secondary school in Chippenham, Wiltshire, students kick around a soda bottle (presumably of plastic rather than glass) after the school banned conventional footballs from the recess field; at other schools, tag and marbles are now against the rules, and don’t think of touch rugby. “Lots of people just play with bouncy balls, but I suspect that’ll be banned too before too long,” says a 15 year old boy at Abbeyfield (Tony Freinberg, “Can we have our ball back, please?”, Daily Telegraph, Mar. 20). And: “Children have been banned from collecting chickens’ eggs at the National Trust’s showpiece farm [Wimpole Hall in Cambridgeshire] because it is now deemed by health and safety advisers as too hazardous.” (David Sapsted, “Trust bans children from egg collecting”, Daily Telegraph, May 17).
However, in a widely noted case, a swimming club seeking the right to take winter swims in ponds north of London in the absence of lifeguards won a victory in the high court against the Corporation [i.e., city] of London, which “had claimed that it risked prosecution by the Health and Safety Executive if it allowed unsupervised dips.” Mr. Justice Stanley Burnton
ruled that the corporation had fallen into legal error and said club members should be able to swim at their own risk. He spoke out in favour of “individual freedom” and against the imposition of “a grey and dull safety regime”, adding that by granting permission to the club the corporation would not be liable to prosecution for breaches of health and safety.
Mary Cane, chair of the Hampstead Heath Winter Swimming Club, said:
“This was a test case with wide implications for all open swimming in England and represents another successful attack by ordinary citizens on the nanny state and the cult of health and safety.”
Ms Cane said that the club was proud to have played its part “in re-establishing an important principle of personal freedom in this country, taken for granted everywhere else, that responsible adults must be free to decide for themselves whether to pursue recreational activities involving an element of risk”.
(Clare Dyer, “Hardy bathers win right to swim unsupervised”, The Guardian, Apr. 27; Joshua Rozenberg, “Pond swimmers win right to take the plunge”, Daily Telegraph, Apr. 27; “Take the plunge” (editorial), Daily Telegraph, Apr. 27).
Common Good, the legal reform organization founded by author Philip K. Howard, has compiled a list of activities that have become less common because of liability fears. Among those deemed “rare”: “Sell Girl Scout Cookies at the local gas station” and “Stop and assist a person at the scene of an accident.” “Endangered”: “Play on a seesaw that requires two children to cooperate” and “Lend your car to a person in need.” Deemed “extinct,” perhaps with poetic exaggeration: “Fire a poorly performing teacher or government official” and “Keep a public lake open for swimming.” (“Save these activities … before it?s too late!”, Common Good, undated, announced Jun. 3)