Peter Jose Smith of Provo, Utah, is suing the Mercado Latino market, saying it violated his accommodation rights under the Americans with Disabilities Act because it wouldn’t let him wear inline skates in the store behind his wheelchair. Store owner Hugo Martinez said Smith, who has sued other local businesses, was asked to comply with the store’s policy against skates after he “was riding quickly in the store and bumped into another customer”. (Ace Stryker, “Disabled Provo man suing Latin market”, Provo Daily Herald, Jul. 18).

A Utah federal court will consider the Pace family’s lawsuit against California anesthesiologist Barry Swerdlow, whom they had earlier hired as an expert witness as part of their medical liability suit against another anesthesiologist, Stephen Shuput, whom they blamed for their late daughter’s death. After agreeing to come on board as an expert for the Paces, Swerdlow examined Shuput’s deposition and concluded that Shuput had met the standard of care; he proceeded to inform Shuput’s lawyers of this, and they quickly got the case dismissed. The Paces then sued Swerdlow for “malpractice, fraud, negligent misrepresentation, breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent infliction of emotional distress,” to quote AMNews’s catalogue. Swerdlow conceded that he was new at the expert witness game and that it would probably have been a good idea for him to have read Shuput’s deposition earlier. The EleventhTenth Circuit ruled that a lower court should consider the Paces’s contention that they had suffered legally actionable damages from Swerdlow’s actions. (Bonnie Booth, “Expert who changed mind claims immunity, but plaintiffs still sue”, American Medical News, Apr. 14).

Judge Gorsuch, dissenting from the EleventhTenth Circuit’s ruling, wrote:

Parties already exert substantial influence over expert witnesses, often paying them handsomely for their time, and expert witnesses are, unfortunately and all too frequently, already regarded in some quarters as little more than hired guns. When expert witnesses can be forced to defend themselves in federal court beyond the pleading stage simply for changing their opinions - with no factual allegation to suggest anything other than an honest change in view based on a review of new information - we add fuel to this fire. We make candor an expensive option and risk incenting experts to dissemble rather than change their views in the face of compelling new information. The loser in all this is, of course, the truth-finding function and cause of justice our legal system is designed to serve.

(Decision of the Day, Mar. 5; Karen Franklin, Forensic Psychologist, Mar. 7; The Briefcase, Mar. 7).

In a 3-2 decision, the Utah Supreme Court has held a liability waiver unenforceable, and permitted a skier to sue a resort for his injuries in a skiing accident, notwithstanding his agreement to the contrary by disingenuously expanding a state assumption-of-the-risk statute for ski resorts to forbid any contractual modification of liability. When even Utah refuses to honor contracts, you know we’re in trouble.

Edited to add: For some reason, multiple commenters who haven’t read the opinion are claiming that the only thing the opinion does is require a signature. Not so: Rothstein explicitly signed a release, and the release only covered negligence (permitting Rothstein to sue for intentional torts). Rothstein realized the benefit of the bargain, by getting season tickets for a considerably cheaper price than he would have been able to if the resort knew he wasn’t going to honor his end of the bargain. The Utah Supreme Court (not an intermediate appellate court) rewrote the agreement retroactively. Consumers are hurt.

• The DC Examiner quotes both Walter and me in their series on corruption in the trial bar.
• Damned if you do, damned if you don’t: privacy laws interfere with college mental-health treatment, which of course doesn’t keep them from being sued when the treatment doesn’t work. [LA Times; earlier in April; and May 2006]

• Charlie Weis didn’t just lose his first several games of the season at Notre Dame; he also lost his silly medical malpractice case retrial. [Childs; February in Overlawyered]
• Ninth Circuit revives one claim in deep-vein thrombosis litigation against airlines. [Montalvo v. Spirit Airlines; San Francisco Chronicle; earlier on Overlawyered]
• Hugh Hewitt discusses tort reform with Overlawyered bloggers. [Ted on Hugh Hewitt; Walter on Hugh Hewitt]
• Overlawyered and Public Citizen agree: it’s silly for law firms to try to copyright their nastygrams. [CL&P Blog]
• More on the Target website disability suit. [Open Market; Oct. 3 and links therein]
• Utah Supreme Court adopts common-sense product liability rule. [Products Liability Law Prof]
• DC City Council objects to recovering millions spent by city on medical care of patient who sued city after gouging out his own eyes. [DC Examiner; Washington Post; BLT]

• The most embarrassing thing Joe Stiglitz ever wrote? [Manne via Boudreaux; Cowen; Frum]
• Are Overlawyered readers “fringe element” “sycophants”? From the same blogger who says no one can criticize Lynne Stewart unless they personally know her, but I presume that’s “For thee, but not for me”-style hypocrisy. [Scott Greenfield]

Following breathless press exposes of the “payday lending” business near military bases (they charge high interest rates! It’s a bad deal if you’ve got access to conventional credit!) a new federal law sharply restricts the interest that can be charged to military borrowers. This report from Utah finds lenders responding by simply refusing to make loans to members of the military. A critic of the industry, Linda Hilton of the Coalition of Religious Communities, says she’s glad the option is disappearing and recommends that if service personnel find themselves in financial straits “then they ask their church, military relief groups, family or others for help”. More great moments in predatory lending law: Oct. 17, 2006 (cross-posted from Point of Law; & welcome Marginal Revolution readers).

• Judge Bartnoff declines to reconsider decision against Roy Pearson in dry cleaner pants case [AP/WUSA]
• Turnabout fair play? Louisville hospital sues trial lawyers, saying they injured its reputation and tried to extort settlement [Courier-Journal]
• Employer sued for “post-traumatic stress disorder” after pranksters post co-worker’s profile on gay section of HotOrNot.com [McCullagh, CNet]
• Former Belleville, Ill. cop sues over prosecutor’s letter suggesting his testimony not to be relied on [M.C. Record]
• British race relations agency demands removal from shelves of Tintin comic book [Telegraph]; 22-year-old in Scotland sentenced for “racially aggravated breach of the peace” after website commentaries that went “beyond the realms of bad taste” [also Telegraph]
• Farewell to that little patch of floating liberty, the South Carolina river shack [Zincavage]
• Hey docs: if a plaintiff’s law firm calls your office to talk about a former patient, don’t call back [Medical Economics via KevinMD]
• Yale Club replies to Judge Bork’s lawsuit [Turkewitz]
• Arizona businesses aghast at hiring-sanctions law that suspends their license to operate should supervisor be found to have hired an illegal [Arizona Republic]
• Grants from Bob Barker foundation (Jul. 5, 2001) help fuel animal rights boom in law schools [NLJ]
• University of Utah settles lawsuit brought by devout Mormon student actress who refused to recite dramatic lines that were blasphemous or obscene [three years ago on Overlawyered]

Arthur Friedman announced to his wife, Natalie, after ten years of marriage, that he wanted the couple to engage in group sex and swinging, so he could gratify himself watching his wife have sex with other men. Natalie, however, fell for one of her partners, German Blinov. The two left their spouses and ran off with one another. Arthur sued Blinov under the Illinois alienation of affection laws, and, amazingly enough, won $4802 from a jury that thought the case was stupid. (Steve Patterson, “Putting a price on love”, Chicago Sun-Times, Jul. 1). The former Mrs. Friedman expresses dismay about the award, but it’s not clear whether it’s the fact of the award or the trivial amount that offends her. Chicagoist and Alex Tabarrok are appropriately appalled.

Most states have passed the tort reform of abolishing the alienation of affection cause of action. Earlier on Overlawyered: Nov. 2006 and May 2005 (North Carolina); Nov. 2004 (Illinois); May 2000 (Utah).

Update: Of course, one doesn’t necessarily need that 19th-century cause of action when entrepreneurial lawyers are in play. Recently fired WellPoint CFO David Colby allegedly rotated among several girlfriends he met on a dating website, several of whom he allegedly promised to marry, even as he was married to someone else (albeit separated). One of the ex-girlfriends is suing WellPoint for “facilitat[ing] Colby’s lifestyle”; it seems Colby pointed to his webpage on the WellPoint site to seduce some of his targets. (Lisa Girion, “WellPoint named a defendant in sexual-battery suit”, LA Times, Jun. 29; see also “Women claim lives with WellPoint exec”, LA Times, Jun. 13 (no longer on web)).

In 1981, Curtis Campbell (Campbell) was driving with his wife, Inez Preece Campbell, in Cache County, Utah. He decided to pass six vans traveling ahead of them on a two-lane highway. Todd Ospital was driving a small car approaching from the opposite direction. To avoid a head-on collision with Campbell, who by then was driving on the wrong side of the highway and toward oncoming traffic, Ospital swerved onto the shoulder, lost control of his automobile, and collided with a vehicle driven by Robert G. Slusher. Ospital was killed, and Slusher was rendered permanently disabled. The Campbells escaped unscathed.

Guess quickly: which plaintiff in the resulting twenty years of litigation won the biggest jury verdict?

How many of you say Ospital?

How many of you say Slusher?

You’re both wrong. The plaintiff with the biggest jury verdict was Curtis Campbell, whom a jury awarded an incredible $147.6 million.

Continue Reading »

• Both sides agree to drop litigation in Islamic Society of Boston mosque-building controversy (Herald, Globe; earlier here, etc.)


• Australia’s Slater & Gordon becomes world’s first law firm to list itself on stock exchange (SMH, Ribstein; Regan/MacEwen/Ribstein; more)


• Colo. bar-restitution fund strained after lawyer who “hoped to save the world” plunders $5 million from clients to fuel strip-club-enhanced lifestyle (Rocky Mountain News)


• A trend? Another restaurant sues over negative review (Delmonico Grill in Port St. Lucie, Fla. against Scripps Treasure Coast Newspapers and reviewer Patricia Smith; Hometown News)(earlier)


• Ontario appeals court deems bite of West Nile-infected mosquito to be “accident” triggering insurance coverage [Harikari]


• Nanny may I? Chicago bans actors on stage from smoking as part of theatrical performance (Lambert); Vancouver condo owner faces suit for smoking on her own patio (AHN, Vancouver Sun); Montgomery County, Md. becomes first county to vote to ban trans fats (Gillespie)


• Nevada bench colleagues intervene with Judge Elizabeth Halverson: it’s just not done to call your clerk “The Antichrist” or ask court staff to give you foot rubs (Morrison, LVRJ). More: Above the Law;


• Midwifery in crisis: one D.C. birthing center’s struggle to keep its doors open (WaPo)


• Some advice: if you’re claiming disability benefit, you might not want to enter and win a strongman competition in which you lift the front end of a car (Telegraph, U.K.)


• Judge rejects Utah lawyer’s claim that CBS should pay him $5,000 for exposing him to Janet Jackson’s Super Bowl wardrobe malfunction (three years ago on Overlawyered)

• Illinois Justice Robert R. Thomas libel ruling award reduced to $4 million, but otherwise upheld by trial judge. “Essentially, the chief justice is still taking advantage of the system he dominates by trying to grab a personal windfall just because an opinion column in a newspaper speculated about politics on the bench.” (earlier) [Chicago Tribune; update from Lattman with opinion]
• Alabama woman claims Starbucks coffee caused burns when she spilled on herself, sues. But I thought only Albuquerque McDonald’s coffee could cause burns? [Birmingham News (h/t P.E.)]
• Update: Amway claims jurors in Utah case based $19.25 million award (Mar. 21) on number of P&G lawyers sitting at the table and engaged in improper averaging to reach nonunanimous result. [Salt Lake Tribune]

• Copyright claimed in hedge-fund advertising brochure posted by blog [DealBreaker; Reuters]
• N.D. Cal. federal judge: National Environmental Policy Act can be used to make speculative global-warming arguments against overseas government investment. [AP/Forbes]
• Honor among thieves? Law firms turn on Milberg Weiss [press release]
• Lawyer-to-the-stars Marty Singer (Dec. 9, Jan. 27, 2006) was also paid $25k from Senator Harry Reid’s campaign fund in failed attempt to squash AP coverage of fishy land deal. [WaPo]
• Consumer World head has an idea that is so good, it must be mandated. [Kazman @ CEI Open Market]
• This date in Overlawyered. 2001: NY legislature refuses to act on accident fraud. 2002: Roger Parloff on 9/11 Victims Compensation Fund. 2004: Reparations claims against the British over 19th century actions. 2006: $1M for the first fifteen minutes of unlawful detention, $1M/year thereafter.

Multi-billion dollar (and down) extortion edition:

• Merrill Lynch and CSFB appeal extortionate Enron class-action certification. [Point of Law; AEI (Feb. 9); WLF brief]
• More on the extortionate and lawless $500 billion Wal-Mart class certification. [Point of Law]
• Mississippi Supreme Court rejects extortionate medical monitoring class actions. [Behrens @ WLF]
• Lawyer Daniel Hynes tries to extort $2000 from New Hampshire bar holding Ladies’ Night. [Foster's Daily Democrat (h/t B.C.)]
• Colorado Civil Justice League stops legislative attempt at giveaway to local trial lawyers. [Point of Law]
• Wisconsin court: family can be sued for babysitter’s car accident when returning home from dropping off child. [AP/Insurance Journal]
• Fox seeks to dismiss Borat suit on anti-SLAPP grounds. [Hollywood Reporter Esq. via WSJ Law Blog]

• Passaic County jury: $28M for “wrongful birth.” [NorthJersey.com]
• Former AG (and Dem) Griffin Bell: “Judicial Leadership Emerging In Asbestos And Silica Mass Torts” [WLF]

• Utah legislature considering med-mal reform for ERs. “Neurosurgeons in this town have to pay over $90,000 a year just for the privilege of getting out of bed on a Friday night to drain the blood from the brain of a victim of a drunk driver crash. And they say, I’m not gonna do it. Because the patients are sicker. The procedures are sometimes more invasive and more risky with more complications. Why take that risk if they don’t have to?” [KCPW via Kevin MD; Provo Herald]

• A little-read blog promoting a soon-to-be-pulped fictional account of tort reform is really begging for a link from us, what with three out of the last five posts making amateurish (and often false) personal attacks on this site’s authors or soliciting others to also fling poo. No dice.

• “[P]rotect good doctors from junk lawsuits by passing medical liability reform.” This sounds much like what we heard four years ago in Overlawyered. [Bush SOTU]
• Update: Autopsies in Comair crash (Sep. 19) have lawyers salivating over noneconomic damages possibilities. Refreshing honesty: “It’s all about money.” [AP/Insurance Journal]
• Driver falls asleep at wheel, blames Ford for resulting accident; Indiana jury disagrees. [Bloomberg/NorthJersey.com] Florida juries have been more generous (Nov. 17, 2005; Nov. 21, 2005).
• Being a minor defendant in a mass tort [Mass Tort Lit Blog]
• Gary Condit’s lawyer asks to withdraw from his “frivolous” libel suit (and roundup of Condit’s legal actions). [Levine @ Patterico]
• More on Abigail Alliance v. FDA [Marginal Revolution]

• More on the new prohibition (Oct. 19 and links therein). [Kirkendall]
• A review of the OJ Simpson book. [Wolcott @ Vanity Fair]
• “This is Ronald Reagan’s party. Why is it proposing Jimmy Carter’s energy policy?” [Frum]
• Congressional Black Caucus: no whites allowed, even for a representative of a majority-minority district. [The Politico]
• Three years ago in Overlawyered: John Edwards’s bundle of secrets
• Seven years ago in Overlawyered: Mormon student actress sues over profanity in theater productions, settles in 2004 for over $250,000.
• I’m speaking at WLF tomorrow morning with Victor Schwartz and Sherman Joyce. [Point of Law]

Do as we say dept.: “The head of the Utah Highway Patrol’s anti-DUI squad has been arrested on suspicion of drunken driving after crashing his patrol car.” (Deseret News, Jun. 30; Stephen Hunt, “Ex-UHP lieutenant pleads not guilty to single DUI count”, Salt Lake Tribune, Jul. 6)(via Balko).

It seems Wal-Mart was supposed to use 10-point type for its “While Supplies Last” disclaimer when advertising its Early Bird specials in Utah, but instead used 7-point type. So naturally Matthew Howell, an attorney with the Provo law firm of Fillmore Spencer, has filed a would-be class action lawsuit against the giant retailer, on behalf of named clients Brandon and Tonya Barker. (Grace Leong, “Couple files suit over Wal-Mart early-bird deals”, Provo Daily Herald, Apr. 21).

“Not getting any better,” in the opinion of HALT, the consumer-protection group that looks out for the interests of legal clients. The group has issued a report card rating each of the 50 state lawyer grievance systems, updating a similar effort four years ago. Worst state: Utah. Worst big state: California, ranked #46. Best state: Connecticut. Best big state: Pennsylvania (yes, really). (David Giacalone, Mar. 8).

By extending civil liability to acts of terrorism overseas, the Patriot Act has unleashed a new weapon of mass destruction at Al Qaida: The Plaintiff’s Bar. Last Friday, they achieved their first victory:

A Utah soldier blinded in one eye during a firefight in Afghanistan that killed his comrade has won a default judgment against a father accused of training his young son to be a terrorist.

Sgt. Layne Morris, of West Jordan, and the family of Army medic Christopher Speer, killed in the 2002 gunbattle, have been awarded triple damages of $102.6 million.

On Friday, U.S. District Judge Paul Cassell said in his ruling that the lawsuit may be the first filed by an American soldier under the anti-terrorism law known as the USA Patriot Act. While GIs serving abroad likely cannot identify their attackers, causing problems in future terrorist cases, that stumbling block “poses no barrier” in this case, said Cassell.

Morris, who served with the 19th Special Forces, cited news reports - including interviews with his attacker’s immediate family - indicating that Omar Khadr, then 15, had wounded him and killed Speer. Similar evidence also showed that the boy’s father, Ahmad Sa’id Khadr, was bagman to the terrorist organization al-Qaida and trained his son to attack American targets.

(Dawn House, “GI injured in Afghan war wins lawsuit”, Salt Lake Tribune, Feb 18)

A local columnist reminisces:

Salt Lake City attorney Brian Barnard used to sift through state and local statutes passed decades earlier and since declared unconstitutional, then find a plaintiff to fight them in court.

The laws were normally declared unconstitutional through agreement with government lawyers and the court. Barnard then would be paid attorney fees by the state.

But former Attorney General David Wilkinson disliked the idea of paying Barnard attorney fees, so for a time during his 1980s tenure, he would fight the claim of unconstitutionality. That would require Barnard to file more briefs, adding hours to his work and eventually giving him a fatter paycheck when the attorney’s fees came due.

One time, however, Wilkinson was so late in approving Barnard’s attorney fees that the civil rights attorney persuaded a judge to garnishee Wilkinson’s state salary to satisfy the payment. Wilkinson approved the payment right away.

(Paul Rolly, “Attorney steps on some toes”, Salt Lake Tribune, Dec. 9) (via State of the Beehive).

Not long after some 1,000 firefighters sat down for eight hours of training, the whispering began: “What are we doing here?”

As New Orleans Mayor Ray Nagin pleaded on national television for firefighters - his own are exhausted after working around the clock for a week - a battalion of highly trained men and women sat idle Sunday in a muggy Sheraton Hotel conference room in Atlanta. . . .

The firefighters, several of whom are from Utah, were told to bring backpacks, sleeping bags, first-aid kits and Meals Ready to Eat. They were told to prepare for “austere conditions.” Many of them came with awkward fire gear and expected to wade in floodwaters, sift through rubble and save lives.

“They’ve got people here who are search-and-rescue certified, paramedics, haz-mat certified,” said a Texas firefighter. “We’re sitting in here having a sexual-harassment class while there are still [victims] in Louisiana who haven’t been contacted yet.”

How much fear of litigation do you need to let a city burn to ensure no one accuses you of failing to protect against sexual harassment? We might be hearing more stories like this, except FEMA, again with its priorities straight, has told firefighters not to talk to reporters. (Lisa Rosetta, “Frustrated: Fire crews to hand out fliers for FEMA”, Salt Lake Tribune, Sep. 6 (via Instapundit)).