Bad ideas from the U.S. hit Canada ten years later dept.: two Canadian provinces are seeking to replicate the success of state attorneys general in the U.S. and scoop up large amounts of money from tobacco companies through lawsuits without the bother of raising taxes. British Columbia’s legislature followed the lead of several U.S. states (Florida, Maryland and Vermont) and enacted an explicitly retroactive “we win, you lose” statute undercutting tobacco companies’ defenses against cost recoupment. Now Manitoba has joined in, its decision announced by Theresa Oswald, who bears the scary title of Healthy Living Minister. (“Manitoba to back B.C. in tobacco case”, CBC, Feb. 25)(B.C. law).
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David Frum at National Review Online, in the course of his latest piece (Dec. 9) arguing for a constitutional ban on same-sex marriage, invokes — and badly misdescribes the facts of — the Miller-Jenkins custody case, discussed in this space Aug. 15.
Writes Frum:
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On Monday I was again a guest on Laurie Morrow’s True North Radio show reaching listeners around Vermont and nearby states. And yesterday I was a guest on QR77 in Calgary, Alberta, on the afternoons with Dave Taylor, with guest host Rob Breakenridge substituting for Taylor. To book a broadcast interview on my book The Rule of Lawyers, email me directly or contact Jamie Stockton at the St. Martin’s/Griffin publicity department: 212-674-5151, ext. 502.
Those who follow the activities of state attorneys general know of their interest in the pharmaceutical industry. Last week, Vermont AG William Sorrell was named president of the National Association of Attorneys General (NAAG) for 2004-05. In his presidential address, Sorell announced that “the issue of drug pricing” would be NAAG’s “particular focus” during his tenure. Sorrell raised the following questions:
“What drives our high drug prices? Is it true that the pharmaceutical industry is the most profitable industry in this country? Is it true that our national spending on prescription drugs more than tripled from 1990 to 2001? Do research and development costs explain the prices we pay? What are the effects of advertising and other forms of marketing on demand for prescription drugs and the amounts we pay for them? If it is true that industry direct-to-consumer advertising expenditures increased seven times between 1995 and 2001, why has this been so and how are prices affected by these increases?
“What about conduct by companies that have violated state and federal antitrust, consumer protection and other laws? Is this another cost driver? And how transparent is the prescription drug marketing and distribution system? Why are cheaper generic equivalents neither prescribed by more doctors nor desired by more patients?”
There is a NAAG meeting scheduled for Chicago in January on this subject.
For more on this subject, go to this post on Point of Law.
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I’m scheduled to be a guest tomorrow morning (Tues.) at 8 a.m. EDT on Jim Blasingame’s “Small Business Advocate” nationwide radio show (more), and then at 10 a.m. EDT on Cincinnati’s WLW. And then on Wednesday from 11 to 12 a.m. EDT I’ll be the guest of Laurie Morrow on Vermont’s “True North Radio“. In each case I’ll be discussing my book “The Rule of Lawyers”, just out in paperback from St. Martin’s/Griffin (more).
If you’re a booker for a broadcast show or other news outlet, you’re aware that it’s at times like this, with books just reaching the stores, that authors and publishers are most eager to cooperate. To ask about appearances, contact Jamie Stockton at the St. Martin’s publicity department: 212-674-5151, ext. 502, or email me directly.
While we’re at it, you just know that The Rule of Lawyers would make an ideal Father’s Day gift, and Amazon (although its stocks are low) offers special shipping guaranteed to arrive by the weekend. It’s also available from Barnes & Noble, Powell’s, and (hardcover) Laissez Faire Books.
Ramesh Ponnuru of National Review Online (“The Corner”, May 18) has written in defense of the new Virginia statute, much criticized in this space, which declares null and void within the state not only civil unions but also any “partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage” (Mar. 19, Apr. 18, Apr. 23, May 12). As I noted two weeks ago, given the unclarity of the law’s drafting, a prolonged guessing game about its meaning may be inevitable; but some guesses are more plausible than others.
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Not that this exactly qualifies as news, but Sen. Tom Daschle says things to pro-tort-reform constituents back home that are rather different from what he says in Washington, notices the South Dakota Politics blog (Apr. 4, Apr. 7). And the departure of a surgeon in MedPundit Sydney Smith’s home town, coinciding with a particularly obdurate sound bite from ATLA-admired Sen. Patrick Leahy, prompts her (Apr. 10) to give the Vermont Democrat an Open Secrets look-up (see also MedRants, Apr. 8, with comments section). Dr. Smith also notes (Apr. 6) that the med-mal crisis in famed Madison County, Ill., may play a role in the contemplated closure of Scott Air Force Base in Belleville.
An eagle-eyed reader draws our attention to the June 29, 1988 New York Times, where the then-Lieutenant Governor of Vermont writes to the editor about a Times story on large damages awards in a libel case.
To the Editor:Randall Bezanson and Gilbert Cranberg detailed a situation that I hope will get far worse. As a physician, I have been frustrated for years by the reluctance of state legislatures and the United States Congress to deal with liability problems of all kinds.
I have long maintained that until the legal profession and the news media are also afflicted with the increasingly severe consequences of a tort system that benefits few people outside the legal profession, there will be no return to a fair and reasonable system of justice.
The trends toward lawyers suing one another for malpractice and toward outrageous-size punitive damages in libel cases give me hope that the crisis in our tort system may finally come to the attention of those who can make this a public issue and improve the situation for all of us who require liability insurance to do business.
HOWARD DEAN, M.D.
Montpelier, Vt., June 17, 1988
The events of the past fifteen years should make Dr. Dean an even more enthusiastic proponent of tort reform; his Dean for America web site is somewhat more neutral.
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January 20 – U.K.: coercive campaign to constrain Cadbury… In Britain, a “leading public health expert” is proposing a legal ban on extra-large chocolate bars and a code of conduct for snack food companies which “would include promises to cut the size of their portions by 20 per cent and to stop selling ‘over-sized’ sweets”. Particularly offensive to coercive nutritionists is some food companies’ practice of offering an extra-large package at a price only slightly higher than that of the smaller size. (Severin Carrell, “Why that big, fat KitKat could be the death of you”, The Independent, Jan. 19) (& welcome TongueTied readers). (DURABLE LINK)
January 20 – … and climbing cost of “compensation culture”. “The compensation culture, in which ‘every mishap leads to a complaint’ and often to legal action, is changing the face of Britain and costing about £10 billion a year, a report says today. … Compensation paid by insurance companies and public authorities amounts to one per cent of GDP, actuaries estimate. The figure is growing by 15 per cent a year. … However, the 35 per cent spent on administration in Britain compares well with the 58 per cent in America.” Schools, police forces and the ministry of defense are all being sued more frequently. (Joshua Rozenberg, “Price of ‘suing for every mishap’ is £10bn”, Daily Telegraph, Dec. 17; “Compensation claims ‘costing UK £10bn a year’”, Ananova/Guardian, Dec. 17; Robert Verkaik, “Lawyers earn £3bn yearly from injuries culture”, Independent, Dec. 17; London Institute of Actuaries/Edinburgh Faculty of Actuaries, press release; “The Cost of Compensation Culture”, Dec. 2002 (PDF)). (DURABLE LINK)
January 17-19 – Vt. high court: ALL-CAPS DISCLAIMER on front page of employee handbook not unambiguous enough. “Sidestepping an all-capitals disclaimer on page one of an employee handbook, Vermont’s Supreme Court has revived a woman’s right to sue her ex-employer for breaching an implied contract when it fired her.” Although the disclaimer said: “THE POLICIES AND PROCEDURES CONTAINED IN THIS MANUAL CONSTITUTE GUIDELINES ONLY. THEY DO NOT CONSTITUTE PART OF AN EMPLOYMENT CONTRACT, NOR ARE THEY INTENDED TO MAKE ANY COMMITMENT TO ANY EMPLOYEE,” the court ruled that the woman could nonetheless ask a jury to construe the manual’s contents as generating a legally enforceable promise. (Andrew Harris, “Big Disclaimer No Bar to Employee Suit”, National Law Journal, Jan. 15). (DURABLE LINK)
January 17-19 – “Ich Bin Ein Tort Lawyer”. Train disasters in the Austrian Alps and in Germany in recent years, which killed 155 and 101 people respectively, have resulted in the filing of massive personal-injury lawsuits in New York City, although very few Americans numbered among the victims and most of the defendants being sued are European companies. American lawyers (including Edward Fagan, who also drew critical attention in the Holocaust-assets litigation — see Jun. 24, 2002) argue that so long as they designate at least one American as lead plaintiff, they should be able to bring any number of other nonresident plaintiffs in on the same action. Such forum-shopping enables the lawyers to sidestep rules in German and Austrian courts that ban contingency fees, cap damages, require the losing side to compensate the winners, and restrict discovery and the use of class actions. (Michael Freedman, Forbes, Jan. 6). (DURABLE LINK)
January 17-19 – Blog-appreciated. Yesterday (Jan. 16) we got Slashdotted, with a reader’s suggestion that we cover a lawyer’s cease-and-desist letter sent to the maintainer of a “free PCI device table” (we readily admit we don’t know what those devices are). AngryRobot describes an indecorous canine-generated outdoor hazard which seems only too likely to eventuate in the sort of personal injury case “destined to be on Overlawyered” (Jan. 16). Our return from hiatus last month was generously hailed by Susanna Cornett in Cut on the Bias (Dec. 13), and by the web’s premier chronicler of appellate law, Howard Bashman’s How Appealing (Dec. 15 and Dec. 30). Dean Esmay (Dean’s World, Jan. 10) calls us “one of the best sites on the web”. We’ve also been mentioned lately on Employers’ Lawyer (Jan. 12), MedRants (Jan. 11), Larry Sullivan’s Delaware Law Office (Nov. 12)(on loser-pays, which Sullivan dubs “winner wins”), Nikita Demosthenes (Oct. 19), and on many link lists including those of Rick Henderson, Nikki, Esq., Carey Gage, Professor Bunyip, John Ray, and Skunk by the Ocean. All this incoming link activity leaves us at #155 in the BlogStreet Top 200 blogs (ranked by number of those who link to us). A special tip of the hat to Scott Norvell’s recently launched TongueTied site, cataloguing excesses of political correctness, which generates an impressive amount of traffic for us. And we turn up in a sidebar in Germany’s Der Spiegel Online (Frank Patalong, “Wahre Lügen”, on the “Stella Awards” list of spurious cases, Nov. 29). (DURABLE LINK)
January 15-16 – Furor over California complaint mills. Beverly Hills, Calif. law firm Trevor Law Group has used the state’s bounty-hunting consumer-protection laws to file complaints en masse against auto repair shops, nail salons, and hotels, from which it then demands settlements. Even Calif. attorney general Bill Lockyer, no foe of the plaintiff’s bar, says he is “disgusted and appalled” by Trevor’s most recent mass litigation campaign, against more than 1,000 restaurants and food stores, many small and immigrant-owned. Business owners are organizing in response and many news outlets have run indignant editorials (Cindy Chang, “Backlash against lawsuit gains steam”, Pasadena Star-News, Jan. 2; Traci Jai Isaacs, “Business owners claiming old law used in ‘shakedowns’”, South Bay Daily Breeze, Jan. 14; California Restaurant Association “Call to Action”, Jan.; KABC-TV 7, “Auto Lawsuits”, Dec. 3; Civil Justice Association of California, “Legal Shakedowns Hitting Thousands of California Businesses”, Dec. 6; “Mass Produced Claims Against Nail Salons”, Dec. 6 (PDF)). Radio’s “John and Ken Show” has also been covering the controversy and its online audio segments (three December dates) are described by one reader as quite lively in tone, although we haven’t had the chance to listen to them. (& see Mar. 3) (DURABLE LINK)
January 15-16 – Sis-Boom-Sue. Jenny Lawson is suing the Des Moines school district, alleging she broke her leg when she collided with another cheerleader while cheering for the wrestling team at Roosevelt High School. “The suit claims the district was negligent for — among other things — failing to have cheerleaders perform on an absorbent mat and encouraging more than one cheerleader to jump at once. Drew Bracken, an attorney for the Des Moines district, said he knew of no schools with such rules. ‘I’m not aware of a requirement that cheerleaders perform on an absorbent mat. I’ve never heard of it before,’ Bracken said.” (Mark Siebert, Des Moines Register, Jan. 2). (DURABLE LINK)
January 13-14 – “Wacky Warning Label” winners. This year’s winner in Michigan Lawsuit Abuse Watch’s Wacky Warning Label contest is a label on a robotic massage chair that warns, “Do not use massage chair without clothing” along with “Never force any body part into the backrest area while the rollers are moving”. “Second place goes to a snowblower label that says ‘Do not use snowthrower on roof.’ Third is a kitchen label that says, ‘Do not allow children to play in the dishwasher.’” (multiple outlets; Business Wire, Jan. 8) (earlier winners: Jan. 25-27, 2002; Jan. 19-21, 2001; Jan. 18, 2000) (DURABLE LINK)
January 13-14 – Cochran: City Hall to blame for arson/murder by drug dealer. “In a legal memo expected to land at City Hall in a matter of days, attorney Johnnie L. Cochran Jr. will claim the city bears responsibility for the October arson murder of an East Baltimore family — in part because the anti-drug ‘Baltimore Believe’ campaign encouraged residents to speak out against dealers, a lawyer working with Cochran said yesterday. Cochran is representing relatives of the Dawson family, who prosecutors say were killed in retaliation for reporting neighborhood dealers to police.” (Laura Vozzella and Del Quentin Wilber, “Anti-drug campaign blamed in Dawson arson deaths”, Baltimore Sun, Jan. 8)(via WSJ Best of the Web) (DURABLE LINK)
January 13-14 – Anti-diet activist hopes to sue Weight Watchers. “U.K.-based psychotherapist Susie Orbach, author of Fat Is A Feminist Issue, is planning a lawsuit against Weight Watchers on behalf of what she says are thousands of women and men who have paid out many hundreds of British pounds to the company, only to end up fatter than before they started the program. … Orbach’s suit would be the first to hold a weight-loss company responsible for clients’ gaining the weight back.” (“Diet Dispute”, ABC News, Jan. 9). “‘Now that the general public is taking absolutely no responsibility, we retailers are starting to get anxious,’ says Simon Doonan, creative director of the Manhattan clothier Barney’s. ‘If people are suing McDonald’s for making them fat, one does wonder how far we are from an era where individuals will attempt to sue us when they buy clothes that make them look fat.’” (Joanne Kaufman, “Seasonal Pain and Suffering”, Wall Street Journal, Nov. 29) (DURABLE LINK)
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June 29-July 1 – Crowded drugstores illegal? For years lawyers have warned that cramped retail store layouts may violate the Americans with Disabilities Act because of the way they impede “access” by customers with wheelchairs and other mobility impairments. Now an advocacy group for the disabled has sued the Duane Reade drugstore chain, charging that many of its outlets in Manhattan are in violation, especially those with multiple levels and obstructed aisles. One plaintiff says some nonprescription medicines are placed on shelves too high for her to reach; another says she feels her privacy is compromised when a store employee assists her to the pharmacy area. In crowded locations such as midtown Manhattan, mandates for uncrowded drugstores will probably lead to the closure of some locations — thus making everyone go farther to get their prescriptions filled — and higher prices at the rest, given that rent per square foot is a major element of overhead cost. The law firm Fish & Neave is representing the disabled group, in conjunction with the not unironically named New York Lawyers for the Public Interest. (David W. Dunlap, “Tight Retail Spaces Prompt Suit by the Disabled”, New York Times, June 27; “Duane Reade Stores: Disability-Impaired”, VisualStore.com, June 27) (& letter to the editor, July 6).
June 29-July 1 – Ohio auto insurance wreck. The trial-lawyer-backed 4-3 majority on the Ohio Supreme Court has been doing creative things to expand the scope of coverage of auto insurance in the Buckeye State, with the unfortunate consequence that the price of it is soaring. “The court says that the insurance policies a business buys on its fleet of automobiles covers its employees and their families when driving their personal cars on vacation or on any other personal matter — from taking the kids to school to driving out for groceries.” (“Liability unlimited? This is not your father’s car insurance”, (editorial), Columbus Dispatch, June 3; “Court extends uninsured coverage beyond belief” (letter to the editor), Columbus Dispatch, June 2)(& letter to the editor, July 6). Update Nov. 2-4: bill to reverse court decision goes into effect after being signed by governor.
June 29-July 1 – Domain-name disputes are busting out all over. A site called BaseballProspectus.com thinks a site called BaseballPrimer.com is infringing on its intellectual property, right down to its initials “BP”, which we regret to inform them British Petroleum got to first (Sean Forman and Jim Furtado, “Unexpected Reader Mail”, BaseballPrimer.com, April 4 — includes lots of reader reaction). The Fox television network this spring sicced its lawyers on a science-education web site created by the University of Wisconsin-Madison, “The Why Files“, whose title it says infringes on the trademark of its series “The X-Files.” “I’m not sure if Fox is trying to get a legal hammerlock on the alphabet or what their motives are, but that’s what it seems,” said the “Why” site’s editor. (“Fox aims to shut down acclaimed science web site”, ESchoolNews, March 1). And the Tata Group, a diversified industrial group on the Indian subcontinent, has obtained a ruling from the World Intellectual Property Organization closing down a sixually* oriented website by the name of bodacious-tatas.com; Marc Schneiders, a commentator from the Netherlands who says he is not connected with either party in the controversy, has put up a (clean) site called bodacious-tatas.org explaining why he thinks this ruling is madness. (Tata Group’s view: “Tata Sons evicts porbographic* cyber squatter”, Aug. 28, 2000).
* Misspelled deliberately, to dodge filters.
June 29-July 1 – Cell phone follies. “The New York assemblyman who drafted a bill that bans the use of cell phones while driving is pushing a bill that would punish offenders of the law as if they’d been driving drunk.” In Connecticut, a bill introduced in the state senate “also makes eating, tuning the radio and reading in the car an offense.” (Elisa Batista, “Car Phone Ban Author Wants More”, Wired News, June 28).
June 29-July 1 – Now we are 2. Overlawyered.com began publishing July 1, 1999, which makes us two years old. Drop us a line with testimonials about how you first learned of the page, what your favorite feature is, stories that got picked up by the wider press after running here first, unlikely people who read us — all that sort of thing. We’ll publish some highlights and keep the rest as souvenirs.
June 28 – “Colorblind Traffic-Light Installer Gets Fired, Sues County”. Former traffic-light installer Cleveland Merritt is suing Palm Beach County, Fla., “for firing him because he is colorblind and couldn’t distinguish between red and green wires.” The Equal Employment Opportunity Commission has already ruled in his favor on his Americans with Disabilities Act claim, agreeing with his lawyer that “the county could have kept him on the job by assigning him to other duties not affected by his colorblindness.” There are “19 differently colored wires in a traffic light”. (AP/FoxNews.com, June 27).
June 28 – Chapman, Broder, Kinsley on patients’ rights. The American Medical Association recognizes that medical malpractice litigation operates with amazing randomness and is actually “a barrier to quality improvement” — so why exactly do they wish to expand it? (Steve Chapman, “Seeing your HMO in court”, Chicago Tribune, June 21). Backers of the Kennedy- McCain- Edwards bill rely to an extraordinary degree on anecdotes — keep that in mind the next time the trial lawyers start dismissing critics like us as anecdotal (David Broder, “Battle of Anecdotes”, Washington Post, June 26). And Slate editor Michael Kinsley calls the bill the perfect piece of legislation for our era, not meaning that in a complimentary way. “Republicans charge that Democrats are in the pocket of the Trial Lawyers Association, and it’s pretty true. But there are also strategic and even philosophical reasons why proposals like the patients’ bill of rights rely on lawsuits to do their dirty work.” They are a “way to impose rules on the private economy while avoiding the big-government stigma.” Unfortunately, the “downside of this approach includes the enormous, though hidden, cost of litigation (the lawyers, the punitive damages, etc.), the inconsistent standards of judge-made law as opposed to uniform rules,” and so on. Kinsley concludes that liberalism of this sort is “flawed … [but] better than nothing.” (“Liberalism a la Mode”, Slate, June 21). See also “Patients’ Right to Sue” (WSJ editorial), OpinionJournal.com, June 24).
June 28 – More things you can’t have: glowsticks. Some federal drug enforcement officials consider glowsticks, the neonlike tubes of light waved by concertgoers, to be “drug paraphernalia”, and a group of New Orleans “rave” promoters, attempting to comply with a court order, have barred the novelty items from their clubs. (Janelle Brown, “Sell a glowstick, go to prison”, Salon, June 20). Update Feb. 20, 2002: court strikes down.
June 28 – “Lawyers put profits above lives”. Why did Texas lawyers suing Firestone (see June 25) refrain for years from reporting the tire failures to the federal government’s safety agency, NHTSA, thus ensuring the danger would continue? They’ve claimed it was because they were afraid NHTSA would undercut their cases by investigating and wrongly clearing the tires, but Prof. Lester Brickman, a legal ethics specialist at Yeshiva University’s Cardozo Law School, holds out an alternative theory: “they didn’t want to alert other lawyers to the chance for profit”. (New York Post (op-ed), June 27).
June 27 – By reader acclaim: student sues law prof over class demonstration. Talk about learning by doing: a student is suing her law professor “for pulling a chair out from under her as a demonstration in a class on personal injury lawsuits. Denise DiFede, 30, charges Pace University Law prof Gary Munneke caused her ‘severe pain and mental anguish’ when he pulled the stunt.” She’s demanding $5 million and is also suing Pace University School of Law, in White Plains, N.Y., where the incident took place. “Munneke was teaching a ‘torts’ class, discussing Garrett vs. Daley — a case about a child who injured another kid when he pulled out a chair from under him.” DiFede’s lawyer said she “was badly injured because she has an ‘eggshell’ body and had undergone a back operation shortly before her fall.” (Dareh Gregorian, “Class Action”, New York Post, June 26; “Student Sues Professor Over Class Demonstration”, Reuters, June 26; Jim Knipfel, “Billboard: The Three Stooges Go To Law School”, New York Press, June 27).
June 27 – Educational privacy gone to extremes. The Family Education Rights and Privacy Act is another of those feel-good enactments whose cumulative effect on our national life has been so harshly punitive: it prohibits public schools from releasing any “education records of students … without the written consent of their parents.” Since that includes grades, it may now violate federal law for a teacher to disclose how a student scored in any class or project — even posting a child’s artwork on a wall with a gold star may be legally dubious, according to one school attorney. The U.S. Supreme Court has agreed to help clarify the law in a case where a teacher allowed students to “grade” each other’s work aloud, which meant the grades were necessarily “disclosed” as they were given. (“High court to hear school grade, honor roll case”, AP/CNN, June 26; “Why Is This In Court?” (editorial), Washington Post, June 27).
June 27 – Warren Buffett was wrong. Not long ago the famed investor, through his Berkshire Hathaway, bought a substantial stake in USG (Yahoo page), the big maker of drywall, joint compound, ceiling tiles and other familiar construction-site products. In doing so Buffett was widely reported to have placed a bet that the company’s legacy of asbestos litigation would soon be resolved through some agreed-on scheme of compensation for injured workers, despite the opposition of organized trial lawyers to any legislation that would remove claims from the tort system. No such reforms have been forthcoming, however, and on Monday USG joined Owens Corning, Armstrong World Industries, GAF, W.R. Grace and other major industrial companies that have lately sought protection from asbestos suits in the bankruptcy courts (“USG files for Chapter 11″, CNNfn, June 25; “USG Files for Bankruptcy, Blames Lawsuits”, Yahoo/Reuters, June 25; company site). As each company folds its hand, lawyers demand higher payouts from those remaining, in a joint-and- several-liability “last-man club”. While USG reported $3.78 billion in revenue last year, its asbestos-related payouts this year are expected to surpass $275 million, a large portion of which will likely go toward claims on behalf of persons never injured by its products, with more claims flooding in by the tens of thousands, the “vast majority”, it says, for workers who are not in fact ill (background). “We have said repeatedly that U.S. Gypsum can afford to pay for its own liability, but it cannot pay for the liability of other companies or pay everyone who was exposed to asbestos-containing products — yet that is exactly what is happening because of the high volume of new cases and other asbestos-related bankruptcies,” said chairman William C. Foote. The company’s management cites the party switch of Vermont Sen. James Jeffords as a reason for throwing in the towel, since a Senate organized by Democrats is unlikely to give the nod to any legislative fix for the litigation morass. (“USG Says It May Seek Bankruptcy Protection After Jeffords Decision”, Wall Street Journal, June 5).
Still not bankrupt is Crown Cork & Seal (Yahoo page), the big Philadelphia-based packaging company, which in 1963 “bought Mundet, a North Bergen, N.J. firm that made cork bottle caps and insulation that contained asbestos. Only interested in the bottle-cap business, Crown sold off the insulation part of Mundet just 93 days later. It neither operated the insulation business nor ever intended to. Crown has paid dearly for those 93 days, paying out millions of dollars to settle some 70,000 asbestos-related claims, and bringing the company to the edge of bankruptcy” with its aggregate payouts mounting into many hundreds of millions (Monte Burke, “An Affair to Remember”, Forbes, June 11 (reg)). Update Jun. 26-27, 2002: judge upholds bill passed by Pa. legislature limiting Crown’s asbestos liability (DURABLE LINK)
June 26 – Managed care debate. “The ‘patients bill of rights’ is the issue du jour, but the problems it was designed to address have largely passed,” writes Virginia Postrel. “Managed care operates in a market, imperfect though it may be. When patients are unhappy enough to complain to Congress, they’re also unhappy enough to complain to their insurance-buying employers — who are a lot more nimble than the political process.” As employers shop for plans that will not tick off their workforces too badly, many of the things people hated about managed care a couple of years ago are already being changed (VPostrel.com, “The Scene“, scroll to “Obsolete Reform”; and see Michael Lynch, “Timing Error”, Reason, July 1998). Those without health insurance currently constitute 17 percent of the U.S. population, and the Employment Policy Foundation estimates that the figure would increase to 23 percent by 2010 if Congress enacts the cost-inflating new bill, with 9 million more persons off the insured rolls (“Patients’ Rights Legislation: The Triangle of Health Insurance: Quality, Cost and Access”, June 20 (PDF). Not all the increase is attributable to the PBR, however, since the EPF’s paper says that the number would increase to 19 percent even without the change. Although Sen. McCain has described organized medicine’s support for the PBR as unanimous, the American Association of Physicians and Surgeons begs to differ (letter from Jane Orient, M.D., June 21). And employers are not inclined to credit assurances from trial lawyer-Sen. John Edwards (D.-N.C.) and other Kennedy-McCain sponsors that tagging them with liability for managed-care practices is the furthest thing from their minds (“Senate Patients’ Rights Debate Focuses on Employers”, Fox News, June 25).
June 26 – Spoof memo draws EEOC probe. Dateline Columbia, S.C.: the federal Equal Employment Opportunity Commission “has opened a preliminary inquiry into a tongue-in-cheek memo that urged female pages at the state House to dress more provocatively. The memo was written as a spoof reply to a dress code banning the pages, mostly University of South Carolina students, from wearing low-cut blouses or short skirts.” The memo’s anonymous authors also exhibited disrespect toward the Women’s Caucus, urging female pages to ignore future memos from the caucus. (Jim Davenport, AP/Nando, June 13).
June 26 – “Burn Victim Files Suit Over Yellowstone Scalding”. “A man is suing the federal government for negligence after he was badly scalded in a Yellowstone National Park thermal pool last year. Lance Buchi, 19, of Holladay, Utah, and two friends jumped into the 178-degree water at night on Aug. 21, apparently mistaking the pool for a narrow stream. … The three worked for Amfac Parks and Resorts, the park’s management company.” (“Burn Victim Files Suit Over Yellowstone Scalding”, AP/FoxNews.com, June 21). Update Sept. 6-8, 2002: judge lets case go forward.
June 26 – Welcome Bourque.org readers. Pierre Bourque’s page has been called the “Drudge Report of Canada” and we were stampeded by Canadian readers yesterday after he linked our piece on trial lawyers and tire defects. Also sending us visitors: John Armor’s American Civil Rights Union, conceived as a counterweight to the ACLU; WCSI Radio, Columbus, Ind. (among “sites of the week”, June 9); Green Party volunteer Paul Franklin in Santa Cruz, Calif.; “Libertarianistaj Organizoj kaj Aliaj Subtenantoj de Libereco“, a page for libertarian-minded speakers of Esperanto; Max Utens Press, publisher of “Informed Consent in Otolaryngology” and other medico-legal treatises; DomeLights.com “Cop’s Lounge” (“Links and other features of interest to cops and their friends”); CapitolGate, among the favorite sites of Ohio political consultant Mark R. Weaver (June 25); and Burton Randall Hanson’s “Law and Everything Else” page (featured site this week), among hundreds of others. Ask your favorite webmaster to give us a link as well!
June 25 – Trial lawyers knew of tire failures, didn’t inform safety regulators. “A group of personal-injury lawyers and one of the nation’s top traffic-safety consultants identified a pattern of failures of Firestone ATX tires on Ford Explorer sport utility vehicles in 1996,” reported Keith Bradsher in yesterday’s New York Times lead story. “But they did not disclose the pattern to government safety regulators for four years, out of concern that private lawsuits would be compromised.” By 1996 trial lawyers suing Bridgestone/Firestone, through the work of a consultant named Sean Kane, had identified 30 cases of tire failure, “a few” involving deaths. For the next four years, however, they chose not to file the safety complaints that would have called the pattern to the attention of the National Highway Traffic Safety Administration. They were afraid doing so might prejudice their chances of winning their cases because the agency might investigate and find no proof of a defect. Of the 203 reported U.S. deaths linked to failure of the tires, 190 occurred after 1996 and thus might in principle have been averted had the lawyers chosen to speak up.
“Dr. Ricardo Martinez, the administrator of the traffic safety agency from 1994 to 1999, said he was appalled to learn that information had been kept from his staff for years. He said he would have ordered an immediate investigation if anyone had told him of the tire problems. …Mr. Kane said that the lawyers’ first duty was to win as much money as possible for the crash victims whom they represented. The lawyers typically work on contingency and collect up to a third of any settlement or court verdict.”
Prominent legal ethicist Geoffrey Hazard Jr. of the University of Pennsylvania Law School agrees that current ethical codes leave lawyers with only a “civic responsibility”, not a legal duty, to report safety problems of which they become aware. “Ford engineers were falsely reassured in 1999 when they checked the federal complaint database and found it virtually empty — because lawyers had not filed complaints.” Even after a February 2000 Houston TV report on the tires triggered a NHTSA investigation, the lawyers withheld from the agency some information on problems with the tires: “You don’t want to be tipping your hand to the defendants,” said Mr. Kane, who since 1997 has been the partner for tire issues at a litigation consultancy called Strategic Safety. (Keith Bradsher, “S.U.V. Tire Defects Were Known in ’96 but Not Reported”, New York Times, June 24 (reg); see Sept. 15, 2000) (& letter to the editor, July 6). (DURABLE LINK)
June 25 – “Lawyers’ client bashed for due fees”. Dateline Australia: “Two Melbourne lawyers, one of them a QC, stood outside a conference room while a client who owed them money was bashed inside, a court was told yesterday.” Solicitor Alan Shnider is now facing criminal charges over the incident, as are two men who summoned property developer George Kallis to the rendezvous and then allegedly beat him while Shnider waited outside. (Melbourne Age, June 23). In other news, while public concern is on the rise in Australia about mounting litigiousness, some members of the Down Under bar are dismissing it all as a “myth” and “smokescreen” cooked up by their opponents — taking a leaf from their American counterparts, who’ve been sticking to that line for years (Larissa Dubecki, “Come up and sue me some time”, Melbourne Age, June 23).
June 25 – Barney’s bluster. After online joke site Cybercheeze ran an item proposing a variety of demises for the cartoon character Barney (“150 Ways to Kill the Purple Dinosaur“), it got this letter (June 6) from Barney’s owners, Lyons Partnership, L.P., advising: “We have reviewed your website and have concluded that it incorporates the use and threat of violence towards the children’s character Barney without permission from Lyons Partnership” and demanding that the item be pulled, to which the site owners fired off this massively rude reply (June 14).
June 22-24 – Columnist-fest. To read at the beach, or even inland:
* Christopher Caldwell on the Jenna Bush case and our absurdly puritanical youth-drinking laws (thanks so much, Liddy Dole) (“Pour, Little Rich Girl”, New York Press, June 6).
* Wendy McElroy on the EEOC’s finding that librarians suffered “second-hand harassment” when patrons were permitted to visit dirty websites (“The Next Wave of Office Politics: ‘Second-Hand Harassment’”, Fox News, June 6; see June 4).
* Amity Shlaes on the traveling circus of product-liability forum-shopping that has currently pitched its tent in Jefferson County, Mississippi (“Will Grisham soon be unemployed?”, Financial Times/Jewish World Review, May 30; see May 4-6).
* “Kennedy-McCain is the medical profession’s effort to counterattack its enemy, the insurance industry, using expensive lawsuits as a weapon. … the ultimate victims will be lower-income employees who will lose insurance coverage,” writes Morton Kondracke (“Patients Rights’ Bill Is Doctors’ Overkill In War With HMOs”, Roll Call, June 21).
* Jacob Sullum on the welcome dismissal of several municipal suits against the gunmaking industry (“Shot down”, Creator’s Syndicate/Reason.com, May 15) and on the reasons the Bush Justice Department should simply drop, rather than try to settle through negotiation, the lawsuit it inherited against tobacco companies (“A Real Racket”, National Review Online, June 21).
* Wrap-ups on the Court’s lamentable Casey Martin decision: Stuart Taylor, Jr., “Nice Guy Wins, Dumb Lawsuits to Follow”, National Journal/The Atlantic Online, June 5 (quotes our editor); John Leo, “Duffers in the Court”, Jewish World Review, June 6; David E. Bernstein (George Mason U.), “Casey Martin Ruling Is Par for the Course”, Wall Street Journal, May 30.
June 22-24 – Updates. Further developments in stories we’ve written about:
* In as belated and ungracious an apology as he could muster without sustaining further political damage, California AG Bill Lockyer now says he regrets his remark about locking Enron exec Ken Lay in a cell with tattooed “Spike” (June 1-3, 8-10) and doesn’t after all think “that prison rape is proper punishment for criminals” (“Lockyer Regrets ‘Crude Remark’”, L.A. Times, June 20).
* New York’s Rev. Al Sharpton, widely seen as wanting to clean up his affairs in preparation for running for office, has at last paid Steven Pagones the money he owes for defaming him in the Tawana Brawley case, thus ending a prolonged charade in which Sharpton claimed that the many tailored suits and other accouterments of his expensive lifestyle didn’t really belong to him and therefore couldn’t be seized to satisfy the debt (Dave Goldiner, “Rev. Al Pays Off Pagones in Brawley Slander Case”, New York Daily News, June 14; see Dec. 29, 2000).
* A California judge last month vacated an $88.5 million arbitration award of legal fees that would have been paid to Milberg Weiss and other politically connected law firms that successfully litigated a challenge to the state’s “smog impact fee” (see Dec. 5, 2000). The fee was supposed to remain “confidential” but leaked out anyway, resulting in a huge public outcry. (Statement, Dean Andal, member, Calif. Board of Equalization; Michael A. Glueck, “Sweetheart Deal Enriches Law Firm”, Orange County Register, Jan. 21, reprinted at Orange County CALA; Greg Turner, “State Gambles, Taxpayers Lose”, Cal-Tax Digest, February; “Taxpayers fleeced again: Lawyers’ bill for smog-fee suit should be challenged”, editorial, Sacramento Bee, Jan. 12; Kevin Livingston, “California Ups the Ante in Smog Fee Award Fracas”, Law.com, Dec. 15).
June 21 – “Catherine Crier Live” today. Our editor is scheduled to be a guest today on the Emmy award-winning journalist’s “Court TV” program, to discuss this website. (5 p.m. Eastern/Pacific).
June 21 – Annals of zero tolerance: bagpiper prom garb. In Holt, Mich., 17-year-old Jeremy Hix went to his school’s May senior prom “in his authentic bagpiper’s uniform, including a skandubh [skean dubh], a knife with a 3-inch blade. In keeping with Scottish tradition, Hix carried the knife in a sheath tucked into his sock.” Although he did not remove the knife from its sheath, a chaperone noticed it and reported him for weapons possession. Now Hix, “one year shy of graduation, is facing an expulsion that would effectively ban him from all Michigan public schools for the rest of his high school career.” Veteran teacher Bill Savage said the authorities are scared of not being punitive enough: “The school’s legal counsel is saying, ‘If we make an exception in this case, it will explode the litigation box wide open.’” (John Schneider, “Schneider: Legal Ploy”, Lansing State Journal, June 14) (& letter to the editor, July 6).
June 21 – Pregnant actress complains at being denied virgin role. In Great Britain, actress Bethany Halliday is filing a complaint with an employment tribunal against the famed D’Oyly Carte opera company, which taking note of her state of pregnancy declined to cast her in the role of a virginal teenager. In Gilbert & Sullivan’s “Pirates of Penzance“, the daughters of Major-General Stanley 
are supposed to have been raised in such delicacy and seclusion that they scream every time they see a man. The D’Oyly Carte producers noted that Ms. Halliday “would be at least six months pregnant at the time the show was due to open”, beyond which the show’s costumes call for tight Victorian corseting. Actors’ Equity is backing Ms. Halliday’s complaint, which may test the bounds of the widely noted “authenticity” exception to discrimination law, which allows an employer to take into account otherwise protected characteristics when they affect the believability of character portrayals. (“Pregnant singer ‘refused’ virgin role”, BBC, May 18; Art: Bab collection).
June 21 – Tobacco-fee tensions. A newly organized group in Maryland is calling for a boycott of baseball’s Baltimore Orioles until owner Peter Angelos retreats from his demand to be paid $1.1 billion for representing the state in the tobacco litigation. “‘We believe Mr. Angelos should be fairly compensated for his effort. However, as a matter of law, the $1.1 billion fee is totally outrageous,’ said Jeffrey C. Hooke, a Chevy Chase investment banker and co-founder of the organization called Project $1.1 Billion Recovery”. Earlier this month, “Maryland’s highest court found the lawyer’s argument that he [Angelos] is entitled to the full 25 percent [of the state's $4.4-billion recovery] to be ‘completely without merit.’” (Lori Montgomery, “Taxpayers Call for Boycott Against Angelos, Orioles”, Washington Post, June 10). (Update Apr. 10, 2002: Angelos settles for $150 million). Wrangling continues over Texas tobacco fees as new AG John Cornyn seeks to escape the Texarkana court of federal judge David Folsom, who appears less than well disposed to Cornyn’s efforts to investigate the circumstances under which the politically connected Big Five trial lawyers hauled home a $3.3 billion fee (Brenda Sapino Jeffreys, “5th Circuit Weighs Dispute Between Texas AG and Plaintiffs’ Lawyers Over Big Tobacco Litigation”, Texas Lawyer, June 12; see Sept. 1, 2000). And the state of Florida, which has helped lead the way in escalating the level of rhetoric against tobacco companies, has quietly decided to resume investing state pension fund money in those very same companies (“Florida approves pension fund investments in tobacco stocks”, AP/FindLaw, June 20) (& letter to the editor, July 6).
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April 20-22 – Quite an ankle sprain. Michele Nations, 26, who sprained her ankle five years ago when she tripped into a hole at a municipal park in Tucson, has now been awarded $450,000 by a local jury. Nations’ attorney “says the case hinged on the city’s responsibility to post adequate warning about burrowing animals [such as squirrels and gophers] and to provide a safe alternative to dodging holes and caved-in tunnels.” An attorney for the city differs, and calls the outcome astonishing: “You would think in a park — in a natural space — people should have to watch where they’re going.” (April 19: Maureen O’Connell, “Gopher hole may cost city $450K”, Arizona Daily Star; “Jury awards Tucson woman who stepped into hole at a park”, AP/Arizona Republic). (DURABLE LINK)
April 20-22 – Thank you, Your Honor. The May Brill’s Content has a cover story (teaser only online) entitled “Human Portals: How people with an obsession — and a website — are upstaging big media”. It tells how weblogs, link-rich sites regularly updated and often zeroing in on a specialized theme, are the new Big Thing in online media; typically “curated by one person”, according to editor in chief David Kuhn, they “could teach big media portals a lot about engaging their audience”. Happy to read all this, we were particularly pleased to turn to the sidebar feature in which the magazine surveys a group of public luminaries about their favorite websites, which range from eBay (Nora Ephron) to 10KWizard.com (Gretchen Morgenson). And here’s Alex Kozinski, distinguished federal judge on the Ninth Circuit U.S. Court of Appeals, on his favorite: “Overlawyered (overlawyered.com) provides pointers to legal-system horror stories: the accused rapist who pockets disability checks for his ‘sexual compulsion’; the drunk who climbs a voltage tower and sues the utility company when he gets injured; the guy who murders his mom and sues his shrinks for not stopping him. The site is run by Walter Olson, who likes nothing better than reporting on legal overkill, and he’s compiled serious research tools for anyone interested in trends and abuses within the civil litigation system.” Thank you, Your Honor! (DURABLE LINK)
April 20-22 – Comparable worth in Maine. Despite widespread criticism of the idea from economists and others, Maine has enacted new rules opening private employers to a serious threat of legal action if they pay less to a worker of one gender than to a worker of the opposite gender “for comparable work on jobs with comparable requirements related to skill, effort and responsibility”. Some other states have had “comparable worth” or “pay equity” laws on the books, but Maine is the first to enact regulations giving such laws serious teeth. “We won”, said an official with the state AFL-CIO. “The business community has not awakened to the fact that this is going to cost them.” Disagreements are all but inevitable as to whether (say) secretaries’ work should be regarded as just as valuable as that of (say) truck drivers, and the Maine law will allow lawyers to march into such controversies with class action suits for unlimited damages — won’t that be fun? The state chamber of commerce did not oppose the enactment. (“Equal pay advocates tout new state rules”, AP/Bangor Daily News, April 4; “Maine Becomes First State Requiring Pay Equity”, Women’s ENews, April 3 (via Freedom News Daily); Maine Equal Justice Partners, 2000 Docket Report (scroll down to “Pay Equity”)).
SEE ALSO May 17, 2000; Diana Furchtgott-Roth, “Suicide Mission: The Union Push for Comporable Worth”, Capital Research Center Labor Watch, Dec. 1999; Lawrence W. Reed, “Comparable Worth or Incomparably Worthless?”, Mackinac Center, Sept. 6, 1994. The late Clarence Pendleton Jr., chairman of the U.S. Civil Rights Commission, called comparable worth “the looniest idea since Looney Tunes came on the screen” (Simpson’s Contemporary Quotations #519). (DURABLE LINK)
April 20-22 – “Lie-tery winners”. All sorts of basically decent people, from cops to grandmothers, would never think of shoplifting or forging checks but do seem to think it’s okay to lie in lawsuits. “Just ask anyone who has taken more than a handful of depositions or cross-examined witnesses at trial — especially witnesses in tort cases. … the oath has become virtually meaningless,” writes Kirkland & Ellis partner Michael Jones (“Lie-tery Winners”, National Law Journal, March 22).
April 18-19 – Mistletoe dangerous even when absent. LeRoy Crawford says his female boss at the New York Stock Exchange behaved seductively and made remarks such as “if there were mistletoe, I would give you a kiss,” when giving him a Christmas bottle of cologne. Things went from bad to worse, and he now wants $1 million in compensatory damages and $1 million for “special damages as a result of physical and mental injury”. (Peter Noel, “Sex on the floor”, Village Voice, April 11-17).
April 18-19 – Randomness of case assignments questioned. San Francisco assigns cases for pre-trial motions to one of two judges, and it seemed that the plaintiff’s firm of Wartnick, Chaber, Harowitz & Tigerman kept getting lucky by drawing the more favorable judge to hear its asbestos cases. Lucky, indeed: over the past two years, 94 percent of the firm’s cases were assigned even numbers, instead of the odd numbers that would have sent the cases to the other judge. (Dennis J. Opatrny, “Playing the Numbers”, The Recorder, April 9).
April 18-19 – “Guests sue inn for overbooking”. When five Massachusetts couples arrived at Vermont’s romantic Woodstock Inn for an investment club weekend last April, they found the inn had inadvertently overbooked its rooms, and three of the couples had to stay at a local B&B. The inn proprietors were terribly apologetic and treated all five couples to the weekend’s lodging for free, as well as giving them a free dinner. Nonetheless, four of the couples are suing for a sum “substantially in excess of $25,000″ in a Boston court. (AP/Boston Globe, April 17).
April 18-19 – Tempest in an arsenic-laced teacup? President Bush deserves credit for standing up to demagogues by pulling back this bad regulation: Steve Chapman, “Who’s really poisoning our drinking water?”, Chicago Tribune, April 12; George Will, “The costs of moral exhibitionism”, Washington Post, April 15; Jason K. Burnett and Robert W. Hahn, Brookings/AEI Joint Center study, “EPA’s Arsenic Rule: The Benefits of the Standard Do Not Justify the Costs”, abstract, Jan. 2001; Mercatus Center (George Mason U.) Public Interest Comment series, Sept. 19, 2000; Michael Kinsley, “Bush is right on arsenic. Darn!”, Washington Post, April 13; Michael Y. Park, “Study: Arsenic Rule Would Have Increased Deaths”, FoxNews.com, April 17; Nick Schulz, “Poisoner-in-Chief Is Saving Lives”, American Spectator Online, April 17; Diane Rehm show transcript (National Public Radio), March 28.
April 17 – Reparations: take a number. National Journal columnist Stuart Taylor Jr. traces the link between demands for compensation for century-old evils such as slavery and colonization and legal battles over liability for decades-ago sales of products like lead paint and asbestos (“Paying Reparations for Ancient Wrongs Is Not Right”, The Atlantic/National Journal, April 11; our take, Reason, Nov. 2000). The group of lawyers mapping out slavery-reparations suits are scheduled to huddle on strategy today in Washington, and say they plan to name businesses as well as the U.S. government as defendants (Jamal E. Watson, “Lawyers plan suit for slavery reparations”, Boston Globe, April 13). The conservative magazine Insight has given uncritically positive coverage to demands for compensation over Japan’s World War II mistreatment of American servicemen, despite the clear laying to rest of such claims by postwar treaty. You’d think victims of the crimes of communism over its long reign would be even better placed to score positive ink in the conservative press, but we seem to hear little about them — not that we would want to load up the reparations bandwagon even further, you understand (Stephen Goode, “New book documents Japanese exploitation”, Insight, undated).
April 17 – A Pulitzer for Dorothy Rabinowitz. The Wall Street Journal editorialist, whose searing commentaries on dubious child-abuse prosecutions have helped expose some of the most glaring injustices to flow from sentimentalism and credulity in our legal system, snags one of this year’s Pulitzer Prizes for her commentaries on American society and culture (Yahoo Full Coverage — Pulitzers). OpinionJournal.com keeps an archive of her media criticism; her articles on abusive prosecution, when online at all, are found at far-flung corners of the web (“A Darkness in Massachusetts” -I-, -II-, -III- (RickRoss.com); more columns on Amirault case; “Through the Darkness” (the Grant Snowden case, forever linked with the name of Janet Reno) (DennisPrager.net); Wenatchee case -I-, -II-).
April 16 – “Woman settles hot pickle lawsuit with McDonald’s”. Or at least its local franchisee: “A woman who claimed she was permanently scarred by a hot McDonald’s hamburger pickle has settled her lawsuit against the restaurant chain. MAR Inc., which does business as McDonald’s in Knoxville, admitted no wrongdoing in the agreement signed by a judge Thursday. Other details of the settlement are to remain confidential. ” (see Oct. 10, 2000) (AP/CNN, April 13).
April 16 – New batch of reader letters. Our correspondents tell why the law makes it perilous to hire a home renovation contractor in New York, ask about buying T-shirts from us, wonder whether Indian-derived place names such as Wichita and Massachusetts are next up for abolition, lament American law’s resistance to the obvious fairness of the loser-pays principle, and hail a Supreme Court decision upholding employment arbitration.
April 16 – Big numbers. It is a truth universally acknowledged that if the injuries resulting from a transportation accident are sufficiently severe, a wealthy business must have been at fault. Teledyne Continental Motors of Mobile, Ala. has agreed to pay $27 million to settle a suit on behalf of survivors of five skydivers killed in the crash of a Cessna, though its attorney said the company’s oil tube design does not cause engine failure as the plaintiffs alleged (Joe Lambe, “$27 Million Settlement in Skydiving Plane Crash”, DropZone.com, March 16; “Poor Preflight Probably Killed Skydivers: NTSB”, Aero-News.Net, June 29, 2000). An Indiana appellate court has upheld a $55 million jury verdict against the Kroger Co. over a truck accident at a company terminal, rejecting the company’s contention that the award was excessive and in conflict with workers’ compensation laws (the injured man, a truck driver, worked for a wholly owned subsidiary of the large grocery chain). (Margaret Cronin Fisk, “Finding No Direct Employment Relationship, Indiana Appellate Court Upholds PI Award”, National Law Journal, March 28). A Los Angeles jury has just voted $55 million against General Tire, a unit of Germany’s Continental Gummi-Werke, over a “tread separation” accident (if you thought those were unique to Firestone, think again). (Myron Levin, Los Angeles Times, April 14; “Jury orders tire maker to pay $55 million”, AP/CNN, April 14). Among the plaintiff’s lawyers in the case was Brian Panish, famed for his 1999 feat in getting another L. A. jury to award $4.9 billion against GM, later reduced to $1.2 billion. And another well-known maker of replacement tires, Cooper Tire, got hammered the same week for $10 million in El Paso (“Jury OKs $10M Award Vs. Cooper Tire”, AP/FindLaw, April 13). Also see Margaret Cronin Fisk, “Two Tire Companies Punctured by Juries”, National Law Journal, April 24, with more details about both tire cases.
April 13-15 – It was the bar’s fault. “A 20-year-old Jamison man, who was shot last summer, says a Warminster bar is partially to blame for the incident. Had he not become drunk from alcohol consumption that night, Martin Joyce’s judgment would not have been impaired, he would not have approached an unknown man for change and he would not have been shot, alleges a suit filed in Montgomery County Court.” (John Corcoran, “Intoxication caused judgment error, suit claims”, Doylestown, Pa. Intelligencer-Record, April 11).
April 13-15 – Anti-Ritalin lawyers still acting out. Despite some early setbacks, tobacco-veteran lawyers including Richard Scruggs, John Coale and Marc Saperstein continue to seek megabucks damages against drugmaker Novartis (formerly Ciba-Geigy) over the widespread prescribing in schools of Ritalin, the drug meant to combat attention deficit disorder, hyperactivity, and related conditions. There’s a strong case to be made against the thoughtless overuse of this drug, but how characteristic of our litigation system that it proposes to take decisions about its use out of the hands of both medical professionals and parents, instead inviting the lawyers to shop around until they find a few sympathetic courts and a jury or two willing (effectively) to ban the drug through punitive damages. PBS “Frontline” covered the issue recently (“Medicating Kids“) and its website includes a section on the litigation (“ADHD Lawsuits“) which points out a noteworthy recent development: on March 8 of this year federal judge Rudi Brewster threw out a suit seeking class-action status on behalf of everyone in California who had used or bought Ritalin, and also “ruled that activities by defendants intended to advance the medical understanding, diagnosis and treatment of ADHD were free speech protected under California’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute.” This latter is significant because efforts by businesses to engage in medical promotion or policy defense of products, trade association activity etc. are now routinely sued over by trial lawyers in themselves (conspiracy! public brainwashing! tobacco all over again!) and anti-SLAPP statutes might prove useful in rebuffing such causes of action.
MORE: Sept. 18 & Sept. 22, 2000; Nancy Shute, “Pushing Pills on Kids?”, U.S. News, Oct. 2, 2000; Shankar Vedantam, “A symptom of the times? ADD, Ritalin focus of suits”, Philadelphia Inquirer, Dec. 11, 2000; Bob Seay, “Ten Questions for the Lawyers”, About.com ADD site, Sept. 16, 2000.
April 13-15 – “2000′s Ten Wackiest Employment Lawsuits”. Gerald Skoning of Chicago’s Seyfarth Shaw compiles an annual roundup of the most bizarre cases in employment law. Among this year’s highlights: a Minneapolis woman took a job in a sex-toy store and then filed a hostile-environment harassment lawsuit because of all the dirty talk she had to listen to; an Ohio court allowed a worker at a mental health facility to proceed with his reverse disability-discrimination claim that he had been singled out for mistreatment as the only employee at the facility without a mental disability; and a Boeing employee claimed that the company’s objection to his working in the nude was a failure to accommodate his religion, shamanism (“2000′s 10 Wackiest Employment Lawsuits”, National Law Journal, March 29).
April 12 – Zero-tolerance spiral. The WSJ‘s OpinionJournal.com “Best of the Web” feature has lately made it a special project to collect reports of zero tolerance excesses, which are fast mounting beyond our ability to record them. F’rinstance, there are the school officials in West Annapolis, Md., who have banned kids from playing tag during recess, citing the school’s “no-touching” policy (Kimberly Marselas, “City school bans students from playing tag”, Annapolis Capital, March 26); and the honor student given an in-school suspension in West Monroe, La., for drawing a GI Joe-style commando with canteen, knife and grenades (Emeri O’Brien, “3rd-grader suspended for drawing”, Monroe, La. News-Star, March 24; “Soldier drawing gets wide attention”, March 27). A 16-year-old student at Legacy High School in Broomfield, Colo. “may be charged with a felony after school officials found an unloaded BB gun in his car.” (Christine Reid, “Student may face felony charge over unloaded BB gun”, Scripps-Howard, April 8). And in the continuing search for ways to build character in the leaders of tomorrow, some favor snitchlines: “Cedar Rapids police are believed to be the first in Iowa to create a student hot line to take tips on illegal activity. Teens who call about classmates they believe to have alcohol, drugs or weapons on school property get $50 if the police recover anything.” (Kate Kompas, “Teen crime hot line offers cash”, Des Moines Register, April 5).
April 12 – “The Last Tycoon”. This Baltimore City Paper profile from last August, which we missed at the time, says contingency fees to Peter Angelos’s law firm topped $100 million for asbestos work on behalf of Bethlehem Steel workers alone, with more riches expected to flow in from fen-phen, lead paint and those supposedly deadly cellular phones. “When it comes to Baltimore’s politics and finances, it seems, almost nothing happens without Peter Angelos. … in 1999, 10 lawyers and lobbyists were registered with the State Ethics Commission on his behalf.” The minority leader of the state house describes the Orioles owner’s power in Annapolis as “absolutely magical” and “amazing … It’s all based on huge amounts of money flowing [from] Peter Angelos’ pocket and into the coffers of the Democratic Party.’” (Molly Rath, Baltimore City Paper, Aug. 16, 2000)(more).
April 11 – Lost his live client, had to substitute dead one instead. In St. Louis, where lots of dead people are registered to vote, “a dead man was listed as the chief plaintiff in a lawsuit filed on Election Day in November,” according to the L.A. Times. “He was having trouble voting, the suit said, due to long lines at his polling station. So he petitioned a judge — successfully — to keep city ballot boxes open late. … The lawyer who filed the suit explained the mix-up by saying he had intended the plaintiff to be Robert ‘Mark’ Odom, an aide to a Democratic candidate for Congress.” However, “Odom had voted, without a wait, by the time the suit was filed,” and the papers had been prepared with his name on them. But as California judge William W. Bedsworth suggests, this supposed explanation if anything makes the case more egregious: the lawyer “‘explained’ how he filed a suit on behalf of a dead person by saying that the plaintiff turned out not to have had his rights violated, and the only available person with the same name happened to be dead. And this caused not the batting of an eyelash in St. Louis. No immediate suspension, no call for disbarment, no investigation into how he got a judge to sign this thing”. (“Meet Me in St. Louis”, The Recorder, April 9).
April 11 – Update: “metric martyr” convicted. In the first such prosecution in Britain, greengrocer Steven Thoburn of Sunderland has been convicted of violating a 1985 compulsory metric system laws by selling bananas in pounds and ounces (see Jan. 22) (“‘Metric martyr’ convicted”, The Guardian, April 9; “Bananas” (editorial), Daily Telegraph (editorial), April 10; footrule.org, of which the late Jennifer Paterson (TV’s “Two Fat Ladies”) was an honorary member).
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January 10 – Dangers of tax farming. Attorney Nicholas Panarella, billed as the “tax commando”, was hailed as a savior of big-city finances in the early 1990s: cities like Philadelphia would let him collect their delinquent taxes, he would keep a contingency fee for his “Municipal Tax Bureau” firm of between 15 and 33 percent, and everyone (except the people he dunned) would be happy. He also made himself into a huge source of donations and consulting fees for public officials, Democratic and Republican alike, and eventually sold his firm to municipal bond insurer MBIA. But last month the Philadelphia Inquirer reported that Panarella was expected to plead guilty to a felony charge of aiding and abetting a scheme to defraud the constituents of former Pennsylvania Senate Majority Leader F. Joseph Loeper, who resigned his seat after pleading guilty in October to obstructing a tax investigation. (Ken Dilanian, “Lawyer will admit playing felony role in Loeper case”, Philadelphia Inquirer, Dec. 13; U.S. Attorney’s office, E.D. Pa., news release, Oct. 24).
One of the reasons Panarella’s work proved controversial, per AP, was that (in good contingency-fee fashion) he tended to take extremely aggressive positions as to who owed his clients money and how much: “The company sent out 78,500 letters on behalf of New Jersey in 1995; at least half of the recipients owed the state no taxes.” Jurisdictions that signed up for his services included Detroit, Kansas City, Pittsburgh, Oklahoma and at least 35 others. (David Kinney, “Computers and can-do creativity: The new face of tax enforcement”, AP/Detroit News, Sept. 1, 1997; complaint by taxpayer Samuel Lonky raising the due process implications of letting a law enforcement official’s income depend on the severity of his enforcement efforts). Didn’t we learn from the Roman Empire about the dangers of contingency-fee tax collection, otherwise known as tax farming? (more on bounty hunting) (& letter to the editor, Jan. 16).
January 10 – Do as the Douglases do. Western Australia “couples are signing legally binding pre-nuptial agreements with ‘no-cheating’ clauses. Family lawyers refer to it as the Michael Douglas clause, after the film star’s pre-nuptial agreement, which promised wife Catherine Zeta Jones millions if he cheated on her.” Last month a newly passed law made pre-nuptial agreements legally enforceable in Australia. (Bruce Butler, “No-cheating clauses in pre-nuptials”, Sunday Times (Australia), Dec. 31; “Zeta-Jones ‘backs down over pre-nuptial terms’”, The Age (Melbourne), Oct. 9).
January 9 – Drive 60K miles, collect $273K. A jury has ordered DaimlerChrysler and one of its dealerships to pay $273,000 for not adequately bringing to a customer’s attention that the used car she was buying had had prior mechanical problems. “‘I am so happy. Now people will know that not all car dealers are honest,’ said Angela L. Pearn, 30, of Akron.” The dealership said Pearn had signed a document disclosing the prior repairs, but she testified that she just breezed through the stack of papers without paying attention to what she was signing, and the dealership had apparently held onto the lemon-disclosure form she had signed without providing her with a copy. Pearn’s attorney pulled the German-owned automaker into the case on the theory that it should have supervised its dealers more closely; he unsuccessfully asked for $50 million to teach the company a lesson. The car never actually broke down during its 60,000 miles under her ownership, but Pearn said there were times when she thought the brakes weren’t working properly. (Christopher Jensen, “Jury lets car buyer squeeze $273,000 from a lemon”, Cleveland Plain Dealer, Dec. 21).
January 9 – Dot-bomb blame. Following the NASDAQ rout of the past year, lawyers representing individual investors are going to be casting about for ways to shift their clients’ losses onto someone whose name ends with an Inc. Some may pursue claims against Wall Street firms whose analysts touted tech stocks, pointing out the conflict of interest to which many such firms are subject, when they receive investment banking and other fees from the same companies whose stock they recommend. (Gretchen Morgenson, “How Did So Many Get It So Wrong?”, New York Times, Dec. 31 (reg); “Sue to reverse your loss?”, CNNfn video, Jan. 5).
January 8 – Sen. Kennedy flies the trial-lawyer skies. Sen. Edward Kennedy (D-Mass.) has accepted private-jet rides from, among others, “a powerful Texas trial lawyer with a huge stake in bills limiting liability lawsuits. … Under a well-known campaign law loophole, Kennedy was able to use the luxury jets for a fraction of their actual cost … During a western fund-raising swing last year, Kennedy hitched a ride aboard a jet provided by prominent trial lawyer John Eddie Williams Jr. (Sept. 1, May 22, Oct. 12, 2000), whose successful Houston firm has been a leader in the high-stakes tort reform fight on Capitol Hill. … Kennedy in recent years used jets from Ness Motley Loadholt Richardson and Poole (Nov. 1, 1999, Oct. 6, 2000, July 17, 2000) whose partners have been active in the liability lawsuit battle, reimbursing the firm $4,856.” (Andrew Miga, “Ted K flies on wings of high rollers”, Boston Herald, Dec. 26).
January 8 – Postrel online. Reason editor-at-large Virginia Postrel, whose commentaries are often cited in this space, has launched a weblog commentary at her “Dynamist” site. Among recent items she’s added are links that help explain why it’s too facile simply to blame “deregulation” for California’s electricity crisis (USA Today, “Prices spike as Calif. bungles deregulation”, Jan. 3; Michael Lynch, “California Scheming”, Reason Online, Jan. 4). Postrel follows a number of well-known commentators who have who have embraced the weblog format, including Mickey Kaus and Andrew Sullivan.
January 5-7 – A judge speaks his mind. Following a one-car crash on the service road of the Grand Central Parkway in New York City’s borough of Queens, an injured passenger in the car sued Shu Cheuk Ng, a homeowner whose property abutted the parkway, arguing that leaves from trees on her property fell onto the roadway and that she had a duty to clean away those leaves before they became wet and developed into an accident hazard. Dismissing the case on a summary judgment motion as “wholly without merit”, Justice Arthur Lonschein described as “astonishing” the plaintiff’s contention that “liability may be placed on [Ms. Ng] on the grounds that she was observed and videotaped, one year after the accident, cleaning up leaves from the roadway in front of her property. ” The judge began his opinion as follows: “The nature of the plaintiff’s claim and the facts of the accident giving rise to the claim rests on the theory held by some cognoscenti at the bar (a theory not entirely without some foundation) that if an injury is severe enough, a case of liability can be made with creative lawyering to fit the facts of the accident whereby a generous jury will be given the opportunity to award substantial damages or that some insurance company for some unfathomable reason may offer to settle the case. The theory also rests on the proposition that the ‘unfortunate but unavoidable fact of life in the courts that cases are sometimes decided wrongly by both judges and juries’ and based upon that reality, insurance companies will sometimes settle a worthless liability case in order to avoid the possibility of a large verdict against its insured. (Orion Insurance Co. v. General Electric Co., 129 Misc. 2d 466, aff’d sub nom. US Aviation Underwriters, Inc. v. General Electric, 125 AD 2d 567 ‘for reasons stated by Justice Lonschein at Special Term’ app. dismissed 69 NY 2d 1037, lv. to app. den. 70 NY 2d 612.)” (Celestin v. City of New York, New York Law Journal, Dec. 12).
January 5-7 – “Boy faces jail for slapping girl’s bottom”. “A schoolboy who slapped a girl on the bottom for a joke is facing two years in a juvenile prison for sexual harassment. The 13-year-old girl, a classmate, did not complain but a teacher who saw the incident at Espanola Middle School in northern New Mexico reported it to the police. ” (Simon Davis, Daily Telegraph (London), Jan. 3).
January 5-7 – Ecology and economy. Notwithstanding an insta-campaign by the Sierra Club and some other groups to demonize Interior Secretary-designate Gale Norton as a “property rights advocate” (no! anything but that!) a growing school of thought is exploring the chances for compatibility between property rights and the interests of conservation. “Or as Aldo Leopold, conservationist and author of ‘A Sand County Almanac,’ once wrote: ‘Conservation will ultimately boil down to rewarding the private landowner who conserves the public interest.’” (Brad Knickerbocker, “Natural capitalism”, Christian Science Monitor, Jan. 4; “Environmental balance” (editorial), Jan. 4).
January 4 – Cribbage menace averted. Authorities have busted the cribbage-playing club that met regularly in Anchorage, Alaska’s American Legion hall. It seems they were gambling, which you mustn’t do in an establishment where liquor is served (if you do it at all). (Sheila Toomey, “Cribbage club on the street”, Anchorage Daily News, Dec. 21)
January 4 – “The Rise of Antisocial Law”. America has replaced the Hidden Law of custom, convention and ritualized conflict avoidance with today’s madly excessive legalism, argues Jonathan Rauch of the Brookings Institution in this Bradley Lecture before the American Enterprise Institute. The speech describes this website as “marvelous”. (Jonathan Rauch, “Courting Danger: The Rise of Antisocial Law”, AEI Bradley Lecture Series, Dec. 11; see George Will, “When Laws Replace Common Sense”, Washington Post, Dec. 22)
January 4 – Stressed out in New Hampshire. The state of New Hampshire’s Compensation Appeals Board has ruled that an employee of the state Department of Health and Human Services is entitled to workers’ comp benefits to cover job-related disability “caused by employment-related stress arising from her supervisor’s legitimate criticism of her work performance,” to quote the state’s high court, which upheld the award of the benefits. (Appeal of N.H. DHHS, Compensation Appeals Board No. 97-712, Aug. 23).
January 3 – OK to apologize in California. “Living in California means never having to admit guilt when you say you’re sorry. As of Jan. 1, a new state law will allow residents to apologize after an accident and avoid having their statements used against them in civil court. So-called benevolent gestures of sympathy will be considered simple acts of charity, not admissions of guilt.” In California, as elsewhere, some insurance companies advise their insureds not to say they’re sorry after a road mishap for fear of having the statement interpreted as an admission of guilt. The law is modeled after similar statutes in Massachusetts and Vermont. (“Saying ‘Sorry’ Now OK in California”, APBNews/FindLaw, Dec. 29).
January 3 – Saves her friend’s life, then sues her. Six years ago Kerry-Jo Klingbeil, then 11, pushed her seven-year-old friend Amanda Horne out of the path of a truck in Ontario, sustaining injuries from the truck in doing so; she subsequently received one of Canada’s highest bravery awards. Now she and her family are suing Amanda for $5-million (Canadian), saying she sustained lasting injuries after being “compelled” to rescue her friend. (“Girl sues friend for $5M after saving her life”, Canadian Press/National Post, Dec. 29).
January 3 – Apartment smoking targeted. In the Los Angeles suburb of West Hollywood, “the City Council in November passed an ordinance allowing nonsmoking apartment dwellers to file complaints when tobacco smoke drifts into their windows or doors from a neighbor’s unit. Tenants who refuse city arbitration will face fines and eviction.” (Thomas D. Elias, “Apartment smoking may be banned”, Washington Times, Jan. 2) (via FindLaw Legal Grounds).
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June 20 – The judge chips in. From suburban Washington, a story that ends with not your usual kind of wealth redistribution: moved by the plight of a couple facing eviction for falling $250 behind on their rent, Fairfax, Va. judge Donald P. McDonough simply handed his own money to the landlord’s stunned attorney and said, “Consider it paid.” “Not something you see much,” said bailiff Erin Cox, who was present. “Not something you see ever.” Odder and odder: four attorneys on hand for other cases, seeing the judge’s example, pulled out their own checkbooks and offered donations to the couple. (Michael Leahy and Leef Smith, “A Beneficent Bench”, Washington Post, June 10).
June 20 – “New York City moves to slash Cendant fees.” “New York City [recently] submitted legal papers challenging as “astronomical” the $262 million fee request — set under a court auction procedure — that was submitted by the law firms that negotiated the record breaking $3.1 billion settlement in the Cendant case.” The class action firms of Bernstein Litowitz Berger & Grossman in New York and Barrack, Rodos & Bacine in Philadelphia had been named by the court to represent investors seeking to recoup losses suffered in 1998 when the parent company of the Avis and Ramada Inn franchises conceded that its books showed massive accounting irregularities. (Daniel Wise, New York Law Journal, June 1) (update Sept. 4: judge approves fee).
June 20 – “A Civil Action” and Hollywood views of lawyers. In Boston this spring, the Federalist Society convened a panel discussion on Hollywood’s portrayal of lawyers and litigation, specifically the movie “A Civil Action”(our take on it) as well as clips from several other films. Featured on the panel were several of the attorneys involved in Anderson v. W.R. Grace, the case highlighted in “A Civil Action”, including Jerome Facher of Hale and Dorr (Beatrice Foods), Kevin Conway (plaintiffs), and Michael Keating and Marc Temin of Foley, Hoag & Eliot (W.R. Grace). The moderator was Evan Slavitt of Gadsby Hannah LLP (1 hour, 50 minutes — NetRoadShow).
June 20 – “Litigation grows in ailing nursing home industry”. Lawyers say rising rates of court action are understandable since there’s so much neglect and abuse in long-term care (a spokeswoman from “the Coalition to Protect America’s Elders, a group funded by trial lawyers,” agrees) while administrator Marty Goetz at the River Garden Hebrew Home in Jacksonville says good and bad home operators alike are being “sued to death”. After making nursing home suits a big business in Florida, lawyers have fanned out to nearby states such as Alabama and Tennessee. (Julie Appleby, USA Today, June 19). Three long-term-care operators have filed for bankruptcy recently: Louisville-based Vencor, the largest such chain; Albuquerque-based Sun Healthcare Group, and Atlanta-based Mariner Post-Acute Network, the second-biggest operator with more than 400 homes nationwide. Medicare reimbursement cutbacks are generally cited as the main reason, but Mariner chairman Francis Cash said “explosive litigation costs” were also a factor.
SOURCES: Healthcare Management Advisors HMA Strategy Advisor, Jan. 28; “Nursing Home Files For Chapter 11″, Jan. 18; Debra Sparks, “Nursing Homes: On the Sick List”, Business Week, July 5, 1999; Lindsay Peterson, “Industry Tries Another Battle Tactic,”, Tampa Tribune, March 22, link now dead; Coalition to Protect America’s Elders (pro-liability); ProtectOurParents.com (pro-legal reform, Florida Health Care Association).
June 19 – Welcome CNNfn, Intellectual Capital, CEI readers. Reed Karaim’s advice article for workers thinking of suing their bosses mentions this site and quotes our editor; we like the piece, but who gave it that headline? (Reed Karaim, “Work issues? Go to court”, CNNfn/WomenConnect, June 16). Intellectual Capital bestows on us a mention/ quote/ link in an article on disabled access and web design, and IC‘s readers have joined in a discussion of the subject (K. Daniel Glover, “The Disability Divide”, June 15). And Max Schulz mentions this site in the Competitive Enterprise Institute’s latest Update (June).
June 19 – “‘Legislative Subpoenas’ Give Cities An Unfair Head-Start in Lawsuits”. “Should a city council be able to demand private books and records from a company it is considering suing simply to evaluate the city’s likelihood of succeeding in a lawsuit and how much it may be able to recover? The California Supreme Court is currently being urged to give carte blanche to any city, no matter how small, to demand financial and other information from its potential litigation opponents.” The asserted power “threatens every potentially unpopular business in the country.” (Daniel E. Troy (Wiley, Rein & Fielding and American Enterprise Institute), San Francisco Chronicle, June 13).
June 19 – Oh, to be in England. On ABC’s Politically Incorrect last Monday, host Bill Maher brought up the case (see June 12) of the deaf man who’s suing “Who Wants To Be a Millionaire?” because he can’t participate in its telephone screening process (“it seems like in this country you are not alive unless you are suing someone.”) Comedian Dennis Miller, star of HBO’s “Dennis Miller Live” said the case showed the need to make it easier to collect legal fees from those who file weak cases. Simon LeBon of Duran Duran: “That’s how it is in the U.K. If you’re wasting people’s time, you pay the cost, simple as that.” Miller: “Well, that makes sense. We have come over here … to get away from England because we found the laws repressive. I get over here and I find out their laws are better than ours.” (June 12 transcript; other show transcripts).
June 19 – Shoot-’em-ups: hand over your files. Per the Hollywood Reporter, federal investigators have asked the major studios “to turn over media and marketing plans for certain movies to determine whether the entertainment industry is peddling violent fare to young audiences,” citing sources “familiar with” the Federal Trade Commission probe of popular entertainment ordered by President Clinton after Columbine. “Sources said stacks of boxes of evidence” had been handed over to the federal agency, though with contents heavily redacted to remove proprietary data. The Commission is currently pursuing the probe under its Section 6 informal authority, under which it does not exercise formal subpoena power, but it could turn the proceedings into a probe under Section 5 authority, in which it would have such power. “While tobacco is federally regulated and movies, music and videogames are not, a veteran of the long court fights with the tobacco industry sees parallels between how the FTC probed cigarette marketing and how the FTC now seeks an education in entertainment marketing, especially to children.” (David Finnegan and Brooks Boliek, “Studios asked to show media (sic) their plans for violent films”, Hollywood Reporter/Norwalk (Ct.) Hour, May 8, not online).
Plus: the attorney general of Illinois has seen fit to conduct a “sting” operation on store owners’ sale of violent videogames to minors, though in general it’s not unlawful for them to sell minors those games. “Members of my staff also are researching alternative enforcement strategies if voluntary compliance is not forthcoming,” quoth the AG, Jim Ryan, whose website is emblazoned with the slogan, “For Children, For Families, For Illinois”. (David Hudson, “Illinois attorney general urges end to sales of violent video games to minors”, Freedom Forum, April 20). See also “No basis for liability” (editorial), Boston Herald, April 9 (expressing relief at court’s dismissal of Paducah lawsuit, see April 13); Damon Root, “The blame game”, Liberzine, April 11; Paul McMasters, “Target practice on the First Amendment”, Freedom Forum, Feb. 28).
June 16-18 – New subpage on Overlawyered.com: Overlawyered skies. Our newest subpage collects tidbits of every sort on what happens when law becomes airborne, including material on sport aviation, aerospace product liability, airline labor wrangles, and even UFO suits, along with of course crashes and their aftermath.
June 16-18 – No right to kick him out. Delaware real estate developer Louis J. Capano Jr. is suing the Wilmington Country Club after it expelled him for having made false statements to a grand jury. Last year, in a sensational case reported nationwide, a jury convicted Capano’s brother, former Wilmington attorney Thomas Capano, of murder in the 1996 disappearance and death of 30-year-old Anne Marie Fahey, who had been a secretary to the state’s governor. A judge later sentenced Thomas Capano to death. “During his brother’s trial, Louis Capano acknowledged that he lied to a federal grand jury in an effort to help his brother establish an alibi in connection with Fahey’s disappearance. He also admitted to helping dispose of some evidence connected to the slaying.” The country club subsequently voted out Louis Capano after learning of his admissions; its bylaws allow dismissal of members for conduct that is “disorderly or injurious to the club’s interest or reputation.” Last month he sued in the Court of Chancery seeking reinstatement and damages. (“Louis Capano Sues Wilmington Country Club for Reinstatement”, Delaware Law Weekly, May 11).
June 16-18 – Penalty for co.’s schedule inflexibility: 30 years’ front pay. “A federal jury in Pennsylvania awarded $1.5 million in a suit brought under the Americans with Disabilities Act by a woman who said her bosses at first accommodated her Crohn’s disease by letting her work from home on a flexible schedule but later reneged on that promise by insisting that she work specific days in the office.” Denise Davis, an insurance underwriter, said it was impossible for her to commit to being in the office any particular days because she never knew when her condition might flare up. “The eight-member jury awarded Davis the highest estimate of economic damages presented by the plaintiffs — $1.3 million — and $200,000 in compensatory damages. An economist testified at trial that Davis, who is currently 37, has already suffered losses of more than $40,000 in wages. And since no employer is likely to hire her while needing an accommodation, he said that a present-value estimate of her future lost wages up to age 67 is more than $1.2 million.” (Shannon P. Duffy, “Jury Awards Woman With Crohn’s Disease $1.5 Million in ADA Case”, The Legal Intelligencer (Philadelphia), June 1).
June 16-18 – Animated advocacy. Cross Circuit, a site decidedly in favor of the Second Amendment, carries a number of cartoon animations that may raise a smile, including an interactive game you can play (“Smith & Wesson Clinton Pacifier“) to get a feel for why so many firearms owners grow nervous when they hear about lawsuits intended to prevent the legal sale of any but “smart guns”. We also admit to having laughed at the London-nanny tale “Janet Poppins“, though we warn in advance that it is disrespectful to the presently serving Attorney General (requires Shockwave plug-in).
June 14-15 – The doctor strikes back. The courts make it next to impossible for a vindicated physician to turn the tables and sue the lawyer who filed a losing malpractice case, but Dr. John Guarnaschelli, a Louisville neurosurgeon, has managed to beat the odds. “Guarnaschelli charged that lawyer Fred Radolovich had sued him without any evidence that he was negligent, without consulting an expert, and without doing much of anything to determine whether he had a case. Radolovich later conceded in a deposition that the only doctor he consulted before filing the lawsuit [which was summarily dismissed] was one of his own clients — a family practitioner accused of fondling patients during gynecological exams. That doctor told Radolovich to go to a medical library instead….After a six-day trial, a Jefferson Circuit Court jury concluded on April 25 that Radolovich had maliciously prosecuted Guarnaschelli and ordered him to pay $72,000 in damages, including $60,000 in punitive damages.” Too many other good details to summarize here — don’t miss it (Andrew Wolfson, “Doctor strikes back at lawyer who sued him”, Louisville Courier-Journal, June 7; “Doctor sues lawyer for alleging malpractice”, AP/Lexington Herald-Leader, June 8).
June 14-15 – One gunmaker’s story. Freedom Arms is a small company in the town of Freedom, Wyoming, run by Bob Baker after being started by his father. It “makes collector guns, precise, modernized versions of the old western six-shooter that are sold to a small but multinational market.” “Freedom Arms customers must wait up to eight months for a handgun — far beyond the 24 to 72 hour waiting period debated by politicians — because the company only produces about 2,000 a year.” It has not, however, been spared the same litigation that has engulfed mass-market gun producers. In the much-discussed 1999 case of Hamilton v. Accu-Tek, it was one of 15 gunmakers a Brooklyn jury deemed negligent in their marketing practices, but not among those ordered to pay $500,000. “So far, Baker says he has spent more than $200,000 on legal bills and laid off 12 of his 35 employees to fight the lawsuits.” (“Gun Debate Hits Home for Opponents in Lawsuit”, AP/Salt Lake Tribune, April 20; Firearms Litigation Clearinghouse account of Hamilton v. Accu-Tek).
June 14-15 – “Trial lawyers give $500,000 as legislation heads to Senate floor”. With two major liability-curbing bills pending in the Senate, “trial lawyers in April contributed $508,000 to Democratic Senate campaigns,” reports AP. “The Houston law firm of Williams Bailey [a beneficiary of Texas tobacco fees] donated $250,000 of the total raised from trial lawyers in unregulated soft money during April by the Democratic Senatorial Campaign Committee.” A fund-raiser in Savannah during an Association of Trial Lawyers of America conference brought in $300,000: “Trial lawyers could chat with Democratic Sens. Tom Daschle of South Dakota, the Senate minority leader; John Edwards of North Carolina, a former trial lawyer himself; Charles Robb of Virginia and John D. Rockefeller IV of West Virginia.” Democratic Senatorial Campaign Committee spokesman David DiMartino “said there was no connection between the legislation and fund-raiser.” Trial lawyers have lobbied against both bills currently before the Senate: H.R. 2366 would limit punitive damages and the application of joint and several liability (paying an entire award when others were also responsible) for businesses with fewer than 25 employees, while H.R. 1875 would give defendants a right to have some class action lawsuits heard in federal rather than state court. Both bills are priorities of the U.S. Chamber of Commerce: “The trial lawyers have a lot of money, but the small-business community has a lot of votes,” said James Wootton, who directs the Chamber’s Institute for Legal Reform. (AP/FindLaw, June 2).
June 14-15 – The judge wasn’t asleep. A unanimous Second Circuit appeals panel has upheld a judge’s ruling that two lawyers and their clients should pay sanctions for the submission of dubious affidavits in an authorship dispute over the song “The Lion Sleeps Tonight“. In the lawsuit, four members of the 1950s musical group The Tokens said they had been fraudulently deprived of ownership rights for the 1961 hit (adapted from an earlier song on the Folkways label under the title “Wimoweh”, itself an adaptation of a traditional African song). The members testified in pretrial depositions that they first learned about the fraud in late 1992, but it developed that their 1996 lawsuit would therefore be barred by a three-year statute of limitations on this type of action. Attorneys Mitchell A. Stein and Stephen J. King then sought to present evidence that their clients had been mistaken in the depositions and had actually learned about the denial of authorship rights considerably later, which would salvage a chance to proceed. Judge Michael Mukasey of the federal court in Manhattan said that to credit the new version “would be to affect a level of naivete about human affairs that is not required even of judges,” and ordered Stein and King to pay $15,000, and their clients $7,680, to help “defray fees generated by their unreasonable conduct”. (Mark Hamblett, “Time-Barred Claim Leads to Sanction”, New York Law Journal, May 25) (versions of song, from Huga’s Pad) (Tokens fan site, Tom Simon).
June 13 – Can’t sue over affair with doctor. “A Grand Island woman who had sex with her gynecologist can’t sue him for negligence and emotional distress, the Nebraska Supreme Court said Friday.” Affirming a lower court opinion, the state high court “said the woman’s lawsuit failed partly because the relationship apparently was consensual.” The affair lasted for nearly six years, but the woman grew despondent after the doctor ended it. (Butch Mabin, “Court: Woman can’t sue doctor for negligence”, Lincoln Journal-Star, June 12).
June 13 – From the U.K.: watch your language. Stockport College in Manchester, England, has banned the use of more than forty “offensive” words and phrases, including “postman”, “chairman” and even “history” (sexist), “mad”, “manic”, “crazy” (demeaning to mentally impaired), “the deaf”, “the blind”, “slaving over a hot stove” (“minimizes the horror and oppression of the slave trade”), “normal family”, “ladies and gentlemen” (said to have “class implications”), The 15,000-student college says it “will make it a condition of service and admission that employees and students adhere to this policy”. (Martin Bentham, “College guide bans ‘lady’ and ‘history’ as offensive words”, Sunday Telegraph (London), June 11). And a public employment bureau in Staffordshire, England, recently told an employer that it could not place a recruitment advertisement that included the words “hardworking” and “enthusiastic”, which it deemed discriminatory. The bureau’s parent agency explained that in its opinion such terms, as well as terms like “reliable” and “smart”, are overly subjective and could foster discrimination against the disabled. However, the education and employment minister in the Blair government, David Blunkett, who is himself blind, ordered the policy reversed and the words permitted; his office issued a statement declaring that he “regards it as an insult to him personally to suggest that a disabled person cannot be reliable, hardworking and enthusiastic.” (Maurice Weaver, “Hardworking job seeker? Do not apply within”, Daily Telegraph (London), June 7; Andrew Mullins, “Over-enthusiastic jobcentre boss champions the cause of the lazy”, The Independent (London), June 7).
June 13 – Nader, controversial at last. As a presidential candidate scoring high enough poll numbers to affect the potential outcome in some close states, Ralph Nader seems on the verge of securing the thoroughgoing unpopularity in moderate liberal circles that has so long eluded him. Although the Associated Press still accepts his self-characterization as a “longtime advocate for the ‘little guy’”, the New Republic has been blasting away at the close ties Nader has formed with some not-so-little guys who share his antipathy to free trade, such as conservative textile magnate Roger Milliken: “Says Chip Berlet, an analyst at Political Research Associates who charts right-wing influence on lefty groups: ‘It’s a little strange — you come down to visit Nader and Milliken’s lobbyist picks you up.” (Ryan Lizza, “Silent Partner”, The New Republic, January 10; letters exchange between Joan Claybrook and Lizza, May 1, is not yet online). Still largely unaired in campaign coverage — but explored in pathbreaking articles by Forbes’s Peter Brimelow and Leslie Spencer a decade ago — are Nader’s much more longstanding ties to a far bigger set of big guys, the plaintiff’s trial bar, for which see links and quotes below.
SOURCES: On trade controversy, and general background: “Daily Notebook: Breaking the Silence” (third item), New Republic, May 22; John Judis, “Seeing Green”, May 29 (Nader “elevates the struggle with corporations into an apocalyptic conflict between good and evil” and turns business into a “bogeyman”); “Nader: Big Guys Invigorate Me”, AP/CBS News, undated, April (noting that Nader faces a handful of challengers for the Green Party nomination, including “Jello Biafra, former lead singer of the punk rock band the Dead Kennedys”); James Dao, “Nader Runs Again, This Time With Feeling”, New York Times, April 15 (reg) (critics charge “that despite his seemingly penurious way of living, he is actually quite wealthy, that he purposely spent almost nothing on his 1996 campaign to skirt federal election laws, which require candidates who spend more than $5,000 to file reports disclosing their assets”); Karen Croft, “Citizen Nader”, Salon, Jan. 26, 1999 (uncritical appreciation by former Nader employee); VoteNader.com (website for his candidacy).
On RN & trial lawyers, not online unless link given: Peter Brimelow and Leslie Spencer, “The plaintiff attorneys’ great honey rush”, Forbes, Oct. 16, 1989 (includes interview quotes from prominent trial lawyers: “‘We are what supports Nader. We all belong to his group. We contribute to him, and he fundraises through us,” says Fred Levin [Pensacola, Fla.] ([then-annual income from practice] $ 7.5 million). ‘I can get on the phone and raise $100,000 for Nader in one day,’ says Herb Hafif [Claremont, Calif.]. ‘We support him overtly, covertly, in every way possible,’ says Pat Maloney [San Antonio, Texas]. ‘He is our hero. We have supported him for decades. I don’t know what the dollar amounts would be, but I would think it would be very large, because we have the money and he has our unabridged affection. I would think we give him a huge percentage of what he raises. What monied groups could he turn to other than trial lawyers?’”); Peter Brimelow and Leslie Spencer, “Ralph Nader, Inc.”, Forbes, Sept. 17, 1990; Associated Press, Sept. 10, 1990 (quoting RN: “If they don’t retract I will take them to court”, an empty threat as it would seem); “Ralph Nader, pro and con”, Forbes, Oct. 29, 1990 (includes RN’s response); Leslie Spencer, “America’s third political party?”, Forbes, Oct. 24, 1994; Andrew Tobias, “Ralph Nader Is a Big Fat Idiot”, Worth, Oct. 1996; “Ralph Nader’s Dirty Little Secret”, New York Post (editorial), Mar. 19, 2000; Andrew Tobias, “Ralph Nader Really IS a Big Fat Idiot”, AndrewTobias.com, June 12, 2000.
June 12 – Rewarded with the bench. Probably no state official in the country has done more to organize mass litigation than Connecticut attorney general Richard Blumenthal, a key backer of gun, tobacco and Microsoft cases, among many others (see Dec. 2, March 31, Feb. 3, Feb. 16, April 11). Confirming (in case we didn’t already know) that marshaling such courtroom assaults is a good way to get ahead in American law, Blumenthal is now reported to be in line for a nomination by President Clinton to the powerful Second Circuit Court of Appeals, which handles cases from New York and Vermont as well as Connecticut. According to the Hartford Courant, compliant Senate Republicans are expected to confirm him quickly and without a fight. (Jon Lender and Michael Remez, “White House Eyes Blumenthal”, May 9; Michael Remez, “Blumenthal On Verge Of Court Nomination”, May 17; Michele Jacklin, “For The Last Time: Blumenthal Doesn’t Want To Be Governor”, May 17). Update Oct. 10: judgeship didn’t go through, now angling for Senate seat.
June 12 – Who wants to sue for a million?, part II. In March, four disabled Miami residents announced they were suing the hit game show “Who Wants To Be A Millionaire?”, saying the show hadn’t accommodated their efforts to become contestants, and “seeking class-action status for themselves and others who are deaf, blind or paralyzed and have problems using the phone or hearing the instructions.” (see March 24-26) Now Peter F. Liberti Jr., who is deaf and a resident of Tonawanda, N.Y., has filed a similar complaint. (Dan Herbeck, “Wanted: a fair hearing”, Buffalo News, June 8).
June 12 – Bestiary of the bar. In Cincinnati, Common Pleas Judge Fred Cartolano recently complained from the bench “that there are too many lawyers, too many law schools and too many opportunities for dishonest behavior. ‘There are only so many fleas that can feed on a dog,’ the judge said. ‘We have lawyers coming out of the woodwork. There’s not enough business for all the lawyers out there.’ Judge Cartolano spoke before sentencing Kenneth Schachleiter to six months in jail for stealing about $91,000 from the estate of an elderly client.” (Dan Horn, “Judge decries lawyers as ‘fleas’”, Cincinnati Enquirer, April 13). Fullerton, Calif. attorney Linda K. Ross, who practices family and probate law, has filed a lawsuit against GTE Directories Sales Corp. for mistakenly listing her name and phone number in a yellow pages directory under the heading “Reptiles”. “She is subject to a great many joke and hostile phone calls, hissing sounds as she walks by and other forms of ridicule,” according to the lawsuit, although Ross does concede that her own mother “laughed for 10 minutes.” (Citizens Against Lawsuit Abuse Houston website, “Briefs”, citing May 1 issue, Liability & Insurance Week; Cathy Martindale, “Bulletin Board”, Amarillo, Tex. Globe-News, Jan. 17). A new legal referral website bills itself as “SharkTank.com — Attorneys Ready To Attack Your Case”. And New York Observer columnist Chris Byron has penned this lyrical description of what happened to a company whose business went from bad to worse trying to lend to borrowers with bad credit records: “class action lawyers have now descended on the company as if drawn by fish guts and other chum to a feeding frenzy of great whales”. (“Shoddy Contifinancial collapses by lending to risky deadbeats”, March 27).
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April 10 – “Pilloried, broke, alone”. Canadian journalist’s probe of “deadbeat dad” issue finds some bad guys but also many who “are too impoverished to pay, have been ordered to pay unreasonable amounts, have been paying for unreasonable lengths of time, or are the victims of bureaucratic foul-ups.” (Donna LaFramboise, “Pilloried, broke, alone”, National Post, March 25, link now dead).
April 10 – Verdict on Consumer Reports: false, but not damaging. After a two-month trial, a federal jury found Thursday that the magazine had made numerous false statements in its October 1996 cover story assailing the 1995-96 Isuzu Trooper sport utility vehicle as dangerously prone to roll over, 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 behaved arrogantly, and that eight of ten jurors wanted to award Isuzu as much as $25 million, but didn’t because “we couldn’t find clear and convincing evidence that Consumers Union intentionally set out to trash the Trooper”. The jury found eight statements false but in only one of the eight 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. The magazine sees fit to interpret these findings as “a complete and total victory for Consumer’s Union” (attorney Barry West) and “a complete vindication” (CU vice president David Pittle). (DURABLE LINK)
SOURCES: Consumers Union; its reaction (link now dead); Isuzu; its reaction; Dan Whitcomb, Reuters/Yahoo, April 6, link now dead; “Jury clears Consumer Reports magazine of liability in Isuzu case”, AP/CourtTV, Apr. 7; David Rosenzweig, “Jury Finds Magazine Erred in Isuzu Critique”, Los Angeles Times, April 7, link now dead. More background: Max Boot, “Guardian of the Lawyers’ Honey Pot”, Wall Street Journal, Sept. 19, 1996, reprinted at JunkScience.com site, link now dead; Walter Olson, “It Didn’t Start with Dateline NBC”, National Review, June 21, 1993.
April 10 – Lawyers charged with $4.7 million theft from clients. “Two Manhattan lawyers were arrested and charged Friday with stealing $4.7 million from clients, including a widower with two children and a college professor who fractured her skull in an accident.” Jay Wallman and Alan Wechsler, both 60 years of age, “used the money to keep their Madison Avenue law firm afloat and to pay personal expenses, said Assistant District Attorney Doreen Klein”; in Wechsler’s case, that included paying some of his dues at the Willow Ridge Country Club in Harrison, N.Y., where he was president. The two have pleaded not guilty; “Wallman has resigned from practicing law and Wechsler has been suspended, the prosecutor said.” About $2.7 million of the alleged theft was carried out in the handling of an estate, and the rest in the course of representing medical malpractice and other personal injury plaintiffs, some of whom never were given any of the settlements collected on their behalf, prosecutors say. (“Two NYC lawyers arrested”, AP/CNNfn, April 7, link now dead).
April 10 – Diapered wildlife? Large-scale agriculture has come under criticism for its effects on the environment, but researchers are discovering that naturally occurring fauna can be destructive in similar ways. Colonies of seabirds, for example, “are releasing large amounts of ammonia into the atmosphere through their droppings. … Very large emissions of ammonia could have a detrimental impact on the local ecology, and may be just as problematic as intensive farming. Scientists studying a seabird colony on Bass Rock off the east coast of Scotland have already measured ammonia concentrations 20 times higher than those on chicken farms.” Global warming researchers have noted that among the more important contributors to the level of “greenhouse gas” emissions is cows’ natural tendency to emit methane, and controls on bovine flatulence may be necessary in the future if countries like Ireland are to contribute proportionally to world reductions in such emissions. (“The ‘innocent’ polluters”, BBC News (Scotland), March 8; “Don’t forget methane, climate experts say”, CNN/ENN, Nov. 10, 1999; Google search on “bovine flatulence“). (DURABLE LINK)
April 10 – Courts split on disabled golfer issue. “In a 24-hour span [last month], two federal appeals courts gave opposing decisions on whether handicapped golf pros can use motorized carts during tournament play” — that is to say, whether they can do so against the wishes of tournament organizers. In the more publicized of the two cases, the 9th Circuit agreed with Casey Martin’s demand that he be allowed to use a cart in the PGA Tour; but a day later “a three-judge panel with the 7th U.S. Circuit Court of Appeals in Chicago amid much less fanfare affirmed a lower court decision denying Ford Olinger similar mechanical assistance.” Circuit splits make it more likely that an issue will eventually be heard by the U.S. Supreme Court. (Mark R. Madler, “Fed Circuits Suddenly Split on Handicapped Golfers”, American Lawyer Media, March 9). “Olinger himself may have made the most penetrating observation, bemoaning that his appeal was heard by a panel of golfers, while Martin’s was not.” (Robert S. Shwarts, “A Good Walk Spoiled”, American Lawyer Media, March 23).
April 10 – 300,000 pages served on Overlawyered.com. Thanks for your support!
April 7-9 – Silicon siege. With Bill Gates down for the count, who’s next? Antitrust officials, having recently nailed old-line auction houses (“dowagers in the paddy wagon”) Sotheby’s and Christie’s, have now begun an investigation of eBay (“eBay Is Subject of Antitrust Probe, Congress Considers Underlying Issue”, E-Commerce Law Weekly, Feb. 9). Trial lawyers are pressing hard against laptop makers, hoping to repeat their nine-digit take from the Toshiba-glitch class action. (Joe Wilcox, “Data-storage suit sends shockwaves through PC industry”, CNet News, March 1). The many pending claims against AOL include those seeking to reclassify volunteers as workers entitled to back wages and those over the tendency of the 5.0 upgrade to interfere with alternative Internet access (“AOL Sued in Federal and State Court”, E-Commerce Law Weekly, Feb. 9). And privacy suits are being launched against all sorts of Internet leaders, from Yahoo on down (Susan Borreson, “Do You Yahoo?”, Texas Lawyer, Feb. 14). Cypress Semiconductor CEO T.J. Rodgers, in a piece written before the Microsoft ruling, says high-tech firms will just be asking for trouble if they cuddle up to Washington in search of official favors, and would do better to unite in resistance: “Silicon Valley is an island of capitalism in a sea of collectivism …. an island of meritocracy in a sea of power struggles.” (“Why Silicon Valley Should Not Normalize Relations With Washington, D.C.”, Cato Institute monograph (PDF format); Declan McCullagh, “Schmoozing: A Capitol Offense”, Wired News, March 20; “It’s All About Capitalism”, March 20).
April 7-9 – Trips on shoelace, demands $10 million from Nike. “A Manhattan orthopedic surgeon sued Nike Inc. on Wednesday for $10 million, saying shoes made by the athletic footwear giant tripped her and caused permanent injury.” Dr. Deborah A. Faryniarz says that while she was jogging last April “the right shoelace hooked around the back tab of the left sneaker, spilling her onto her wrists and knees” and causing a wrist injury that imperils her future career as a surgeon. Nike spokeswoman Cheryl McCants in Beaverton, Ore., said the company hadn’t yet seen the complaint but that people “sometimes don’t tie their shoes properly.” (“Nike Sued Over Shoelace”, AP/FindLaw, April 5, link now dead).
April 7-9 – School safety hysteria, institutionalized. “North Carolina has quietly launched a program that allows students to call in anonymously or fill out a Web-based form to report on classmates who might appear depressed or angry — or who just scare them,” reports Wired News. The Wave America program and website are run by the Pinkerton Corp., of security fame. On Slashdot, Jon Katz says that the site’s criteria for evaluating whether a fellow student is disturbed or depressed are alarmingly vague. The site also invites students to report anonymously about “intensely prejudiced or intolerant attitudes”, possession of weapons or alcohol on campus, or “anything else harmful to you or your school”. (Lynn Burke, “A Chilling Wave Hits Schools”, April 5; “Why call the WAVE line?“; “Early signs of violence“; Slashdot April 4 thread; our “Annals of Zero Tolerance“).
April 7-9 – L.A.’s mystifying jury summons. Think the long-form census is overkill? “The Los Angeles County court system has come up with a new jury summons form so dense that even some judges can’t make sense of it. The form, resembling a cross between a mortgage application and a deli menu, has generated a flood of complaints — including one from a Pasadena resident called to jury duty: Judge Lance Ito. He filled it out incorrectly.” (David Colker, “Jury Summons Is Guilty of Confusion”, Los Angeles Times, April 3).
April 7-9 – OSHA & telecommuters: the long view. Our editor’s April Reason column finds that this winter’s failed OSHA effort to regulate home offices was no fluke, being in many ways the logical culmination of an animus against home-based work that can be traced through decades of federal labor law (Walter Olson, “Office Managers”, Reason, April). The whole episode reminded columnist Joanne Jacobs of the manner of governance of the Emerald City: “I am OSHA, the Great and Powerful. Pay no attention to that clerk behind the curtain. The Great and Powerful OSHA has spoken. … Sorry. Never mind.” (“Work-at-home employees don’t need this kind of help from Washington”, San Jose Mercury News, Jan. 12, no longer online)
April 6 – Feds file Medicare recoupment suit over silicone implants. “The federal government wants to recover millions of dollars it spent treating thousands of women allegedly injured by silicone breast implants, and it’s trying to get in line ahead of the women for its money,” reports AP. The operative phrase above is “allegedly”, since by now it’s widely conceded that science didn’t bear out the original implant panic stoked by federal regulators and trial lawyers. But the feds undoubtedly did lay out health care moneys to treat immune disorders and other ailments “allegedly” (if not necessarily in reality) caused by the implants, so now the feds are going to demand compensation from the manufacturers. You didn’t think medical-recoupment lawsuit theories were really going to remain confined to tobacco, just because they kept saying that at the time, did you? (Michael J. Sniffen, “US Sues Over Implant Fund Recovery”, AP/Excite, April 1, link now dead; Yahoo Full Coverage; Professor David Bernstein’s breast implant litigation page; Doug Bandow, “Breast Implant Myths”, Cato Daily Commentary, Feb. 24).
April 6 – Columnist-fest. They keep writing them, and we keep linking them:
* Microsoft‘s $80 billion plunge in market valuation in recent days has directly or indirectly dealt a blow to the retirement security of as many as 80 million investors, and Schroder & Co. chief economist Larry Kudlow predicts a public reaction against the kind of anti-business grandstanding exemplified by attorneys general Richard Blumenthal (Connecticut) and Eliot Spitzer (New York), whose ubiquitous appearances on cable news have been “limited only by the available volume of airtime.” Also includes some choice quotes from Gov. George W. Bush (“I’m unsympathetic to lawsuits, basically; write that down. …I have been a tort-reform governor. I’ll be a tort-reform president.”) (“Americans Vote Microsoft”, National Review, April 4; “Microsoft’s Market Value Drops $80B”, AP/Washington Post, April 3, link now dead).
* “No aspect of life is untouched by lawyers,” observes Mona Charen, citing recent cases on employer liability (Hawaiian car dealership case, see March 10-12) and personal responsibility (drunk Honda driver’s drowning, see March 28) and mentioning this website. Also quotes from an elaborate disclaimer presented to Girl Scouts before they go horseback riding (“Society is Oppressed by Litigation”, Omaha World Herald, April 5).
* Cathy Young is troubled by the recent decision of Philadelphia’s police commissioner to give outside feminist groups a big role in deciding which ambiguous incidents should be categorized as rape (“Let’s not forget the rights of accused in rape cases”, Detroit News, April 5; see March 27 commentary).
April 6 – High fee dosage. “Twenty law firms are set to share a staggering $175 million fee award for winning the settlement of a class action against drug manufacturers and wholesalers over their pricing practices.” Much of the booty will go to four veteran class action firms that filed the antitrust charges: San Francisco’s Saveri & Saveri, Chicago’s Much Shelist Freed Denenberg Ament & Rubenstein, Chicago’s Specks & Goldberg, and Philadelphia’s Berger & Montague. (Brenda Sandburg, “They’re in the Money”, The Recorder/CalLaw, Feb. 16).
April 6 – For the legal-definition file. Varying standards of proof, as defined by Slate Supreme Court correspondent Dahlia Lithwick: “The Due Process Clause of the 14th Amendment requires that each element of a crime be proved ‘beyond a reasonable doubt.’ This means that jurors must be pretty darn certain before they vote for a conviction. In contrast, the ‘preponderance of the evidence’ standard required under the New Jersey hate-crimes statute [now being reviewed by the U.S. Supreme Court] is a standard used in civil trials to mean that the facts in question are more likely true than not. This is the standard used by parents when they smell beer on your breath.” (Dahlia Lithwick, “Clarence Thomas Speaks!”, Slate, March 28).
April 5 – New Hampshire high court blowup. Yes, scandals happen even up there. Associate Justice Stephen Thayer of the New Hampshire Supreme Court resigned last Friday “after prosecutors concluded he broke the law by trying to improperly influence the assignment of judges hearing his divorce case.” Thayer maintains his innocence, but struck a deal with state Attorney General Philip McLaughlin to resign on a promise that he would not face criminal ethics charges. McLaughlin then released a report saying it was an “institutional practice” at the court for judges who’d excused themselves from cases to review and discuss draft decisions in those cases. Calls for the impeachment or resignation of other justices followed, and are being taken seriously in the state legislature.
However, Chief Justice David Brock says that, Thayer aside, judges have never been permitted to comment on draft opinions in cases where they’d recused themselves because of conflict of interest; and Justice Sherman Horton told a reporter that the sorts of occasions when judges would comment had been when they’d excused themselves for other reasons, such as illness or temporary absence. Accusing the attorney general of grandstanding, Brock said the practice went back decades and that the AG had not given the court a chance to answer the charges before taking them to the press and legislature.
SOURCES: court home page; Holly Ramer, “N.H. Supreme Court Justice Resigns”, AP/Excite, March 31, link now dead; Katharine Webster, “Three N.H. Justices May Be Removed”, AP/Excite, April 1, link now dead; “Whistleblower called hero”, Boston Globe, April 1, link now dead; Norma Love, “Legislators reeling from allegations against justices”, AP/Boston Globe, April 3, link now dead; Brock statement; Kevin Landrigan, “Judge strikes back”, Nashua Telegraph, April 4; Alec MacGillis, “He won’t resign; calls accusations ‘unfounded attack’”, Concord Monitor, April 4; Manchester Union Leader; Foster’s Daily Democrat (Dover). Updates: Brock acquitted at impeachment trial before New Hampshire Senate (Oct. 11); state disciplinary panel gives him admonishment only (May 3, 2001).
April 5 – Update: judge okays “deep linking”. In a much-watched case, Los Angeles federal judge Harry Hupp has ruled that the practice of linking to interior pages of a competitor’s web site does not by itself violate the competitor’s copyright (see our Aug. 13 commentary). The Ticketmaster Corporation had sued California-based Tickets.com, an online tickets service which provides links to the Ticketmaster site for tickets that it does not itself have available. The judge allowed Ticketmaster to proceed with claims that its competitor had breached its copyright in other ways, as by improperly compiling and repackaging information obtained from the Ticketmaster site. (Michelle Finley, “Attention Editors: Deep Link Away”, Wired News, March 30; Brenda Sandburg, “Copyright Not Violated by Hypertext Link”, The Recorder/CalLaw, March 31).
April 5 – Seemed a little excessive. The Pennsylvania Supreme Court has agreed to decide whether it was appropriate for a Chester County court to award $46,000 in legal fees stemming from a dispute over an original $500 legal bill. The case arose in 1988 after Maria P. Bomersbach withheld her monthly owner’s assessment at the Mountainview Condominium Owners Association because of a dispute with the association’s management over her request to inspect its budget documents. The condo association took her to court and the two sides almost settled, but were $300 apart in their offers. Ten years of intensive litigation followed, during which Mrs. Bomersbach, according to judges’ opinions, “engaged in legal ‘trench warfare’ and subjected the association to a ‘pleadings onslaught’ that would render even a competent attorney ‘shell-shocked.’” A dissenting appellate judge called the $46,548 fee “totally unreasonable, and perhaps unconscionable,” and said the condo association shared responsibility for protracting the litigation. (Lori Litchman, “Pa. Supreme Court to Decide Dispute Over $46,000 Fee to Collect $500 Legal Bill”, The Legal Intelligencer, Feb. 28).
April 5 – The booths have ears. In Canada’s National Post, John O’Sullivan writes that his “attention was caught by a small item in the British press: Police in Gloucester are cracking down on local racism by entering restaurants in disguise and listening for racist conversation. In the first week of ‘Operation Napkin,’ one man was arrested for racially aggravated harassment. Another was overheard mimicking an Indian waiter, but the police decided that his behavior did not warrant prosecution.” (John O’Sullivan, “Operation Napkin to the Rescue”, National Post, March 28, link now dead).
April 4 – Microsoft violated antitrust law, judge rules. Competitors gloat: “I think it’s fair to say that the logical conclusion is that the degree to which Microsoft is restrained, that ought to be good for everybody else in tech,” says Sun Microsystems general counsel Michael Morris, henceforth to be known as “Zero-Sum” Morris. NASDAQ investors evidently don’t agree with him, sending the index skidding 349.15 points, or 7.6 percent. “Microsoft has been kept in check by all these antitrust proceedings from doing anything too bold,” says Kevin Fong with Mayfield Fund in Menlo Park; non-boldness has its costs, Microsoft now having slipped behind Cisco in market value for the first time. And Brookings’ Robert Litan calls the ruling “manna from heaven for the private plaintiffs because it basically should eliminate a lot of their need for proof”. (Eun-Kyung Kim, “Judge Rules Against Microsoft”, AP/Yahoo, April 3, link now dead; Dick Satran, “Tech Industry Remains Guarded on Microsoft”, Reuters/Yahoo, April 3, link now dead; Yahoo Full Coverage).
April 4 – Emerging campaign issue: “brownfields” vs. Superfund lawyers. A few weeks ago (see February 26-27 commentary) a report from the U.S. Conference of Mayors found that Superfund liability fears are among major factors stalling redevelopment of “brownfields” (abandoned or underused industrial sites) in American cities. Now the issue has reached the presidential campaign, with Texas Gov. George Bush yesterday calling for reforms aimed at encouraging brownfield redevelopment, including liability protections for new developers that perform responsible cleanups, an initiative that is anathema to the Superfund bar. “The old system of mandate, regulate and litigate only sends potential developers off in search of greener pastures — literally,” Bush told workers at a plant in Pennsylvania. Vice President Gore has cited the Superfund law as among his proudest legislative achievements, though others have much criticized it as a boondoggle for litigators that slows down actual cleanups. (Patricia Wilson, “Bush on Gore Turf Proposes Environmental Agenda”, Reuters/Yahoo, April 3, link now dead; Bush campaign statement).
April 4 – Progressives’ betrayal. Jonathan Rauch’s new National Journal column argues that the American Left betrayed its principles when it got into bed (much of it, at least) with trial lawyers who have lately pitched their services as ways to bypass the tiresome need for legislation. “Suddenly the American Left is on the side of fantastically wealthy private actors who are accountable to no one.”
“Who elected these lawyers to help legislatures? What will they do next, helpfully, with their billions? If lawyers file and finance lawsuits against an unpopular industry and then channel billions of dollars of booty back into government treasuries, while also channeling millions more into soft-money donations to political parties, how is that any less corrupting than when chemical companies make PAC contributions in exchange for tax breaks? … If the Left ceases to be a counterweight to huge concentrations of unaccountable private wealth and power, of what earthly use is it?” Also, don’t miss the old quote that Rauch unearths from Ralph Nader, about how undemocratic it is for governance to go on in back rooms without informed public consent and participation — this before Ralph’s friends in the trial bar realized they could govern that way. (“Triumphantly, America’s Left Betrays Itself (Again)”, National Journal, March 31).
April 4 – Now it’s hot chocolate. As if the menace of hot take-out coffee were not bad enough, Dunkin Donuts is now being sued over the temperature of the hot chocolate served at one of its outlets in Barre, Vermont. “The suit was filed in Washington County Superior Court by Diane Bradeen who claims her daughter Katrina suffered burns on her lap when the hot drink was spilled.” (“Suit filed over temperature of Dunkin Donuts’ hot chocolate”, AP/Boston Globe, April 3, link now dead).
April 3 – Book feature: “The Kinder, Gentler Military”. “So how did we get from the blood, sweat, and tears version of boot camp, to ‘Bootcamp Lite,’ … ‘battle buddies,’ ‘training time-outs,’ ‘confidence course facilitators,’ and the ‘gender-normed’ grenade throw?…
“Government nineties-style was obsessed with the self-esteem of its citizens and with avoiding injury — psychic and physical. … A doddering kind of hypochondria filled the land. Since so many new kinds of injuries were now validated by the courts and by the culture at large, new classes of victims proliferated, and activities that used to be considered a bit risky (but generally worth it) were treated like virtual minefields of danger …
“It was [also] inevitable that the personal-is-political crowd would get around to the military. They had spent much of the seventies and eighties focusing on the workplace, the home, and schools, but it had been harder to find a way into that monastery standing outside the gates, the preserve of all that was imperialistic, aggressive, violent, hierarchical, uncompromising, authoritarian. … And the military made such an exciting end-of-the-century project. In an era devoted to examining, criticizing, and rebuking masculinity, the armed forces were the last preserve where the species ran free. …
“The new broadly written and subjectively defined infraction [of "hostile environment" sexual harassment] opened up a new frontier for litigation and created a new legal language. A hostile and offensive environment is very difficult to define. … A vague definition combined with lawyers smelling money is a dangerous combination. Wherever there is a possibility for confusion (as between men and women most of the time) there is a possibility for injury, and the law gave us a crude template of victim and victimizer, hurtful act and injury, perpetrator and receiver, to fit over the most complex, the most ambivalent, the most highly charged, of our relationships: between men and women, employer and employee, teacher and student. …
“Nobody really knew where ‘sexual harassment’ began and ended and we were still struggling in the early nineties: Society and the military [are] just beginning to understand that certain behaviors constituted harassment,’ one congressman explained with great earnestness at the time. But while we tried to figure out what sexual harassment was and what it was not, the new law seemed to take on a life of its own. Our half-finished creation began to toddle around the countryside scooping up victims in its large bumbling hands. Even the president could not escape….
“[Quoting military sociologist Charles Moskos:] ‘The Tailhook convention of ’91 was the worst event for the [U.S.] Navy since Pearl Harbor.’”
– from The Kinder, Gentler Military: Can America’s Gender-Neutral Fighting Force Still Win Wars? by Stephanie Gutmann, newly published by Scribner (Review: Richard Bernstein, New York Times, March 24; Yahoo full coverage).
April 3 – Update: junk-fax lawsuit rebuffed. In Houston, Judge Harvey Brown has dismissed the lawsuit discussed in this space October 22, which demanded $7 billion from 80 area businesses that had patronized ad services that faxed coupons and other circulars to what the lawyers said were unwilling recipients. Since the suit was filed in 1995, Texas has passed a law prohibiting unsolicited commercial faxing, but the lawyers had come up with the idea of suing in state court under an earlier federal statute providing for penalties of $500 to $1500 per fax sent, which given the class action format added up to billions: one defense lawyer called it “Powerball for the clever”. (Citizens Against Lawsuit Abuse-Houston, undated; judge’s order made public March 22).
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March 31-April 2 – Punished for resistance. Gun-suit organizers were hoping Smith & Wesson’s capitulation would bring about a race among other firearms makers to settle; instead, manufacturers, dealers and buyers are racing to dissociate themselves from the hapless company, formerly the market leader. Now — in a move that counts as heavy-handed even by the standards of activist attorneys general — Connecticut AG Richard Blumenthal and New York’s Eliot Spitzer are readying antitrust action against companies in the gun industry for the offense of shunning S&W. Connecticut reportedly issued subpoenas yesterday; among possible grievances bruited in the New York Times‘ account are that some organizers of shooting matches have told S&W that it is no longer welcome, that dealers are dropping its wares, and that other gun companies are unwilling to go on coordinating their legal defense efforts with S&W, which means it will have to find a new law firm. Blumenthal’s and Spitzer’s message to those in the gun business could hardly be clearer: better go quietly, because we’ll crush you if you resist in any organized way. (Fox Butterfield and Raymond Hernandez, “Gun Maker’s Accord on Curbs Brings Industry Pressure”, New York Times, March 30; Peter Slevin and Sharon Walsh, “Conn. Subpoenas Firms in Gun Antitrust Probe”, Washington Post, March 31).
March 31-April 2 – Terminix vs. consumer critic’s website. Pest control company Terminix retreats from courtroom efforts to swat dissatisfied consumer Carla Virga, who put up a website to publicize her unhappiness with its services. After its defamation suit was dismissed, the company tried again on the theory that Ms. Virga was infringing its rights by using the word Terminix itself in “metatags” directed at search engine listings. This succeeded in infuriating many in the Web community, and now the company has backed off that second action as well. Other companies that have gone to court against angry-consumer websites include Bally Total Fitness, Circuit City, and U-Haul. (Craig Bicknell, “Site No Longer Bugs Terminix”, Wired News, Mar. 11; Robyn Blumner, “Welcome to the world of free-speech exterminators”, St. Petersburg Times, Mar. 19).
March 31-April 2 – Employer-based health coverage in retreat? Report in the news-side Wall Street Journal last month suggests more big employers are beginning to “look for an exit strategy from the health-benefits business”, especially since “it’s possible that Congress or a court ruling will expose employers to legal liability in malpractice cases“. Under “defined contribution” models pioneered at Xerox Corp. and elsewhere, employees are given lump-sum health vouchers and told to find the plan that’s best for them. Sanford C. Bernstein analyst Kenneth Abramowitz sees the benefits of giving workers choice, but points out the danger that employees will be cut loose with a “Yellow Pages” outcome: “Here’s $5,000 and the Yellow Pages. You figure it out.” “Adding new liability for companies could prompt some to scuttle their health-benefits programs and send employees into the market to fend for themselves. Says Margaret O’Kane, head of a managed-care accrediting organization called the National Committee for Quality Assurance: ‘If employers find themselves in the path of the trial lawyers, I think you can expect a massive bailout’”. (Ron Winslow and Carol Gentry, “Health-Benefits Trend: Give Workers Money, Let Them Buy a Plan”, Wall Street Journal, Feb. 8, fee-based library).
March 31-April 2 – Welcome Milwaukee Journal Sentinel readers. Overlawyered.com was a featured website earlier this month in Bob Schwabach’s “On Computers” column, which runs in Wisconsin’s leading paper and many others nationwide (March 9).
March 30 – Hollywood special: “Erin Brockovich”. The words “babelicious” and “toxic tort” had probably never been used in the same sentence before, but Julia Roberts’ new flick is finally showing that with the right costume design a litigation movie can ace the box office. Now the Hudson Institute’s Mike Fumento, in an op-ed in Tuesday’s Wall Street Journal expanded considerably into a piece in yesterday’s National Post (Canada), challenges the premise, taken for granted among most reviewers of the film, that Pacific Gas & Electric was guilty as charged of poisoning the populace of a small California desert town with chromium-6 in the water. Fumento says the levels of contamination found were orders of magnitude lower than those needed to induce health effects in experimental animals; that the lawyers sought to blame on the water a wide assortment of ailments among local residents that science has not linked to chromium exposure; and that health studies found that the plant’s own workers, who were likely exposed to at least as much pollution as neighbors, had a life expectancy comfortably exceeding the California average. (Michael Fumento, “The dark side of Erin Brockovich”, National Post, March 29; Michael Fumento, “‘Erin Brockovich’, exposed”, Wall Street Journal, March 28; official film site; Mr. Showbiz review; Christine Hanley, “Brockovich’s Work Is Just Beginning”, AP/ABC News, March 27).
March 30 – Hollywood special: “The Insider”. Though nominated for numerous Oscars, last season’s portentous litigation epic The Insider got shut out in the actual naming of awards. Were Academy voters bothered by the film’s unacknowledged fictionalizations, or did they just share the views of Adam Heimlich of the New York Press, who last week called the film “preposterously overheated … The title character’s big revelation in this interminable movie — which treats the looting of tobacco companies by trial lawyers with enough gravitas to make Judgment at Nuremberg feel like Oklahoma! by comparison — is that ‘cigarettes are nothing but a delivery system for nicotine.’ … God forbid someone in Hollywood or on the Upper West Side speaks out against the selective demonization, for purposes of state and oligarchic power, of the drugs they don’t happen to use. Philip Morris should fight back with a drama exposing that Starbucks lattes are nothing but a delivery system for caffeine and martinis are nothing but a delivery system for alcohol. If Insider wins Best Picture … it’ll prove that Hollywood is nothing but a delivery system for the propagandistic justification of top-down class warfare.” But it didn’t win. (Adam Heimlich, “Heimytown”, New York Press, Mar. 22).
March 30 – Al Gore among friendly crowd. Last Thursday Vice President Gore attended a $500,000 luncheon fund-raiser at the Cincinnati home of Stanley Chesley, sometimes nicknamed the “Master of Disaster”, one of the country’s most prominent plaintiff’s trial lawyers. The Cincinnati Post says that Chesley, known for air-crash, tobacco and Microsoft suits, “has been a dependable fund-raiser for the vice president and President Clinton.” (Bill Straub, “Gore next to visit Cincinnati to raise funds”, Cincinnati Post, March 22; Sharon Moloney, “Gore bashes Bush tax plan”, Cincinnati Post, March 24); Christopher Palmeri and James Samuelson, “The Golden Leaf”, Forbes, July 7, 1997). For recent fund-raising by Bill Clinton among trial lawyers, see our Feb. 14 commentary.
Forbes Online columnist James Freeman recently took a hard look at Gore’s in-depth support from trial lawyers (“Who’s funding Gore?”, Feb. 28). Gore’s financial backers over the years have included most of the biggest names in the litigation business, including Wayne Reaud (asbestos, Toshiba laptops), John O’Quinn (breast implants, many others), Joe Rice (asbestos, tobacco), Bill Lerach (shareholder lawsuits), etc. Gore hosted Lerach at the White House for coffee in February 1995, Freeman writes, and Chesley was there for coffee that same day.
March 29 — Litigator’s bliss: finding opponent’s disgruntled former employee. “Assume the legal lotus position and imagine a happy place. What greater nirvana could there be than [finding] the disgruntled former employee of an opposing party? Gruntled or not, a high priority of any good discovery plan should be to identify and interview former employees as quickly as possible, before the other side can neutralize or co-opt them.” (Jerold S. Solovy and Robert L. Byman, “Discovery: Ex parte, Brutus?” (practitioners’ advice column), National Law Journal, March 27, not online).
March 29 – Why rush that software project, anyway? California adds to its reputation as a high-hassle state for tech employers with a law taking effect this year, backed by unions and plaintiff’s employment lawyers, requiring that many computer consultants be paid overtime rates if they put in more than eight hours in a day. Many such consultants bill at rates that exceed $50, $100 or even $200 an hour, before the overtime premium is added in. One Bay Area staffing exec says most of his employer clients are unwilling to trigger the overtime entitlement and are instead sending home specialists after eight hours who would previously have worked longer (Margaret Steen, “New overtime law spurs change in tech firms”, San Jose Mercury News, March 22, link now dead; “Hi, OT Law; Bye, Tech Boom?”, Reuters/Wired News, March 2; Margaret Steen, “New law means overtime pay for computer consultants”, San Jose Mercury News, Feb. 29; Kirby C. Wilcox, Leslie L. Abbott and Caroline A. Zuk, “The 8-Hour Day Returns”, CalLaw, Jan. 24).
March 29 – The bold cosmetologists of law enforcement. The New York Times took note this Sunday of efforts in Nevada and Connecticut to enlist beauty-parlor personnel in the task of identifying possible victims of domestic violence for referral to battered women’s shelters and other social service agencies (see our March 16 commentary). Its report adds a remarkable new detail regarding the sorts of indicators that Nevada cosmetologists are being officially encouraged to watch for as signs of household violence (being licensed by the state, they have reason to listen with care to what’s expected of them). “Torn-out hair or a bruised eye may signal abuse, but more subtle warning signs may come out in conversation. One Nevada hairdresser, [state official Veronica] Boyd-Frenkel said, told of a client who said: ‘My husband doesn’t want me to see my friend anymore. He says she is putting bad ideas in my head.’
“‘Emotional abuse, intimidation, control, jealousy, overpossessiveness and constant monitoring,’ she said, can be as sure signs of domestic violence as physical injuries.” Does Ms. Boyd-Frenkel, who holds the title of “domestic violence ombudsman” for the attorney general of Nevada, really deem it “emotional abuse” and potential domestic violence when a husband seeks to warn a wife (or vice versa) away from a friend who’s considered a bad influence? Is such spousal behavior really to trigger the notice of the official social-service apparatus, and its new deputies in the hair and nail salons of Nevada? (Jeff Stryker, “Those Who Stand and Coif Might Also Protect”, New York Times, March 26).
March 29 – Update: advice to drop medication unavailing. As reported earlier, subway-push defendant Andrew Goldstein went off his antipsychotic medication before his recent murder trial on advice of his lawyers, in order to demonstrate to the jury how deranged he was (see Feb. 26-27 and March 2 commentaries). Whatever the ethical status of this tactic, it was apparently unavailing in practice: a New York City jury convicted Goldstein of murder last week. He will probably serve his sentence in a state prison outfitted to give him psychiatric care. (Samuel Maull, “Man Convicted in Subway Shove Case”, AP/Excite, Mar. 22).
March 28 – $65 million Texas verdict: driver at twice the legal blood limit. “A Galveston, Texas, jury has awarded $65 million to the parents and estate of a woman who drowned after her car plunged off a boat ramp and she couldn’t disengage her seat belt.
“The jury found defendants Honda of America Manufacturing Co. Inc. and Honda R & D Co. Ltd. 75 percent responsible for the death of Karen Norman — even though after her death, Norman’s blood-alcohol level measured at nearly twice the Texas legal limit. …
“After the accident, [Honda attorney Brad] Safon noted, Norman’s blood-alcohol level was measured at 0.17. The Texas drunk driving limit at the time of the accident was 0.10; it is now 0.08.” Plaintiff’s lawyers said the salt water in which Norman drowned might have thrown off the blood level reading. (Margaret Cronin Fisk, “Fatal Grip of Seat Belt Results in $65M Verdict”, National Law Journal, Mar. 27)(& update Oct. 13, 2003: appeals court throws out award, which trial judge has previously reduced to $43 million).
March 28 – Call me a fraud, will you? Why, I’ll…I’ll hire you! Last year Big Five accountants Ernst & Young paid $185 million to settle a bankruptcy trustee’s charges that it had mishandled the affairs of the now-defunct Merry-Go-Round apparel chain. Now Ernst has sued its former law firm, D.C.-based Swidler Berlin Shereff Friedman, which it says should share the blame. And to prosecute the new suit Ernst has hired none other than the law firm that sued it in the first round, Snyder, Weiner, Weltchek & Vogelstein of Pikesville, Md. “Swidler noted that Snyder Weiner in the earlier suit had accused Ernst of fraud, and now Snyder Weiner in ‘this complaint asserts “E&Y’s innocence of the fraud”‘”. An Ernst executive shrugs off criticism: “Who knows about the case more than the firm that argued the other side?” (Elizabeth MacDonald, “Ernst & Young Sues Law Firm Over Settlement”, Wall Street Journal, March 14 (online subscribers only); James V. Grimaldi, “Accounting Firm Sues Lawyers”, Washington Post, March 14).
March 28 – Annals of zero tolerance: don’t play James Bond. A fifth-grade “model student” at Sutton Elementary School in Tecumseh, Michigan faces expulsion for up to a half year for bringing a plastic toy gun to school because he wanted to “play James Bond”. “You could see it was plastic,” said school superintendent Rich Fauble. “If you looked at it, you could tell it wasn’t a gun.” “I just wanted to play with it at recess,” said the boy, in Fauble’s account. “I didn’t want to hurt anybody. I play with it at home.” Sutton principal Debra Langmeyer said the board’s recommendation of expulsion “might seem extreme” but is intended to “send a message” about guns. (“Toy gun may cause student’s expulsion”, Toledo Blade, Mar. 16).
March 28 – From the labor arbitration front. The Connecticut Supreme Court, over dissents from two of its members, has upheld an arbitrator’s order that David Warren be reinstated to his municipal job in the town of Groton, from which he was dismissed in 1997 after pleading no contest to charges of larceny. Warren was accused of stealing money from the town by selling dumping permits and pocketing the proceeds himself, but the court saw no reason to disturb an arbitrator’s reasoning that his no contest plea might have reflected a wish to avoid the cost and inconvenience of trial, rather than actual guilt. (“‘No-contest’ not guilty, Supreme Court says”, New Haven Register, March 21). And the U.S. Supreme Court has agreed to review an arbitrator’s order that a West Virginia mining company rehire a heavy machinery operator fired after he twice tested positive for marijuana use. The Fourth Circuit upheld the reinstatement, noting that courts “overwhelmingly” defer to the results of arbitration in the unionized workplace. (AP/FindLaw, “Supreme Court to clarify when lower courts can overrule arbitrators”, Mar. 20; Eastern Associated Coal Corp. vs. United Mine Workers, 99-1038).
March 28 – Another visitor record set. Last week was the busiest yet for visitors since Overlawyered.com was launched nine months ago … thanks for your support!
March 27 – Welcome Arts & Letters Daily readers. The best weblog in the world for coverage of essays and history, biography and belles-lettres, is put out for a worldwide audience by philosophy professor Denis Dutton of the University of Christchurch in New Zealand. We get a featured link today (see right-hand column after link to Sullivan piece, for which itself see below).
March 27 – Another S&W thing. “We want to do a Smith & Wesson-like thing with DoubleClick,” Michigan attorney general Jennifer Granholm said Thursday, referring to restrictions on Web data collection that she and attorneys general from New York, Connecticut, and Vermont have been negotiating with the biggest online ad-placement company. We suppose this means that she and her colleagues want to invent far-fetched legal theories to attack business practices that have long been regarded as lawful; file a great flurry of suits in multiple courts so as to overwhelm the designated opponent; use the threat of bankrupting legal expense to muscle it into submission with no need to reach a decision on the merits; and instill fear into other businesses that the same thing could happen to them unless they cooperate with the dictates of ambitious AGs. After all, that’s what was done to S&W. (“AGs Eye Privacy”, Reuters/Wired News, March 23; “DoubleClick in settlement discussions”, Bloomberg News/CNet, March 23).
March 27 – Philadelphia: feminist groups to be consulted on whether to classify incidents as rape. As several high-profile cases in recent years demonstrate, authorities sometimes charge men with rape or sexual abuse in cases where there’s conflicting or ambiguous evidence as to whether there was nonconsensual sexual contact (see, for example, the case of Columbia University grad student Oliver Jovanovic, whose conviction was overturned by a New York appeals court in December). Now Philadelphia police commissioner John Timoney has announced that “he will let women’s organizations help police decide when to believe sexual-assault complaints and how to classify them.” Barbara DiTullio, who heads the Pennsylvania chapter of the National Organization for Women, called the plan “wonderful” and said it could become a model for police departments across the country. “We’re putting together a committee of women . . . and [will] actually, quite literally, let this women’s group be the final say on our classification [of cases]” said Timoney in an interview, though the women’s groups themselves expressed doubt as to whether their say would be final. (Mark Fazlollah, Craig McCoy, and Robert Moran, “Timoney to allow sex-case oversight”, Philadelphia Inquirer, Mar. 21) (via Freedom News).
March 27 – Microsoft Windows downgrade. Be prepared for the Justice Department’s anticipated “remedies” in Reno v. Gates by visiting this parody site (Bob Rivers, KISW, Seattle).
March 27 – Social engineering by lawsuit. Yale law professor Peter Schuck “doubts [that Smith & Wesson] would have lost a court case,” according to this New York Times “Week in Review” piece, which also quotes the editor of this website concerning the evils of litigation as an end run around democratic process (Barry Meier, “Bringing Lawsuits to Do What Congress Won’t”, New York Times, March 26). Cato Institute fellow Doug Bandow wonders why undemocratic lawmaking-by-lawsuit hasn’t become a bigger election issue: “Politics is a bad way to make policy. Litigation is worse.” (“Litigative vs. Legislative Democracy”, Cato Daily Commentary, March 20). And Andrew Sullivan warns Britons that unless they watch out, their country’s trend toward “empowerment of lawyers” will lead them to the state of “hyper-litigation” typified by the U.S. (“A brief warning: soon lawyers will have Britain by the throat”, Sunday Times (London), March 26).
Also: we’ve now put online our editor’s op-ed from last Tuesday on the Smith & Wesson settlement, which expanded on the arguments made earlier in this space (Walter Olson, “Plaintiff’s lawyers take aim at democracy”, Wall Street Journal, March 21).
March 27 – Kessler rebuked. Last week the Supreme Court ruled that former Food and Drug Administration chief David Kessler had made an improper power grab when he claimed for his agency “broad powers that had somehow gone unnoticed for more than half a century” to regulate tobacco, writes Chicago Tribune columnist Steve Chapman: “This was a startling revelation indeed. In 1964, the FDA said it had no authority to regulate tobacco. In 1965, it said it had no authority to regulate tobacco. In 1972, it said it had no authority to regulate tobacco. Ditto in 1977, 1980, 1988, and so on — until four years ago, when Kessler checked the attic and was pleasantly surprised to find this prerogative stashed in a box crammed with eight-track tapes and copies of Look.” (“On Target: A Setback for the Anti-Tobacco Jihad”, March 23; Tony Mauro, “For ‘Better or Worse’ FDA Can’t Regulate Tobacco”, American Lawyer Media, March 22).
March 24-26 – “Trial Lawyers Pour Money Into Democrats’ Chests”. The article everyone’s talking about: yesterday’s New York Times shines some overdue light on the trial lawyers’ frantic shoveling of vast sums into this year’s federal election races. “‘It would be very, very horrifying to trial lawyers if Bush were elected,’ said John P. Coale, a Washington lawyer involved in the tobacco litigation, who has given over $70,000 to the Democrats. ‘To combat that, we want to make sure we have a Democratic president, House and Senate. There is some serious tobacco money being spread around.’” “What’s different this time around,” said Michael Hotra, vice president of the American Tort Reform Foundation, “is that everyone recognizes that the stakes are higher. We have a candidate who is making legal reform a core issue and we certainly applaud Bush for that.” Also discusses the website ATRF has set up to monitor trial lawyer campaign spending (Leslie Wayne, “Trial Lawyers Pour Money Into Democrats’ Chests”, New York Times, March 23).
March 24-26 – Who wants to sue for a million? A group of disabled Miami residents has filed a federal lawsuit against Disney and ABC under the Americans with Disabilities Act, claiming that the screening process for the hit TV show “Who Wants To Be a Millionaire” requires the use of a touch-tone telephone and does not make alternative provision for deaf applicants. “The group is seeking class-action status for themselves and others who are deaf, blind or paralyzed and have problems using the phone or hearing the instructions.” (Jay Weaver, “Disabled 4 sue to try for TV million”, Miami Herald, March 17). Update Nov. 7: federal judge dismisses case.
March 24-26 – Next: gender-blind stage casting? A federal jury in Nashville has returned a sex discrimination verdict against a pair of historical theme restaurants that hired only male food servers as a part of attempting to convey the atmosphere of 1800s-era riverboats. The Equal Employment Opportunity Commission sued Cock of the Walk restaurants in 1996 after a woman named Susan Mathis carried a secret tape recorder in her purse while applying for a server’s job (more on the curious lack of outrage over this practice). “The servers had to represent the legendary fighters who brawled for the privilege of steering the riverboats, which netted them the best-of-the-best title: ‘Cock of the Walk’,” a group that historically did not include women.
In 1997 the EEOC came under criticism for its crusade against the “Hooters” sexy-waitress chain, which paid $3.75 million in a settlement in hopes of not having to hire “Hooters Boys”. However, the agency’s contention that entertainment value is an improper basis for sex-casting in the hiring of food servers “has never been applied [by a court] to a more mainstream restaurant such as this, which does not have sexual titillation as part of its theme,” said a lawyer for the restaurants. (Stacey Hartmann, “Restaurants’ male-server policy loses in court”, The Tennessean (Nashville), March 16).
March 24-26 – Slip, fall, head for court. Roundup of recent Chicago gravity mishaps, as reported in the Sun-Times and relayed in Jim Romenesko’s irresistible Obscure Store: “Debbie Jacques was forced to wear paper booties when she tumbled. Monica Beeks walked in deep, loose grass, and fell. John Incisi tripped on a Kleenex box left on the stairs. They’re all hanging out in civil court, hoping to get some cash.” (Tim Novak, “Health worker blames paper booties for slip”, Chicago Sun-Times, Mar. 21).
March 24-26 – Welcome visitors. A sampling of the websites that have linked to Overlawyered.com recently: the distinguished literary and arts monthly, the New Criterion; ABC News correspondent John Stossel‘s site; the Capital Research Center, which keeps an eye on politicized philanthopy; Pat Fish’s Luckyfish.com; the Nebraska Taxpayers for Freedom; Pickaway County (Ohio) Sportsmen, known for their shooting competitions; and Turkey’s Association for Liberal Thinking (Liberal Düsünce Toplulugu).
March 23 – Baron’s judge grudge. Dallas asbestos-suit czar Fred Baron may or may not have added another notch to his belt with the GOP primary defeat this month of Texas 14th District Court judge John Marshall. In 1998 Judge Marshall was presiding over asbestos litigation filed by Baron & Budd when evidence surfaced that the firm had engaged in extensive witness-coaching (see “Thanks for the Memories“); Judge Marshall referred the matter to a grand jury for possible prosecution, but the charges were eventually quietly buried without indictments. Baron, who now claims vindication, “made no secret of the fact he wants Marshall’s head,” according to alt-weekly Dallas Observer in a report just before the primary. “As early as last spring, Baron was casting about, looking for a candidate to back. ‘I talked to half a dozen people. We were looking for any candidate we could get who would be qualified to run against John Marshall’”. It had to be in the Republican primary, though, which is nowadays tantamount to election in Dallas County. First-time candidate Mary Murphy of Jenkins & Gilchrest, the one who eventually stepped forward to challenge Marshall, “insists she’ll be a fine Republican judge even though she wrote a $1,000 check to the Democratic party four years ago” among other past Democratic ties. “I had nothing to do with getting Mary Murphy to run. That’s a lie, a complete and absolute lie,” Baron told the Observer. Murphy says Baron did try to talk her into running but that it was others who convinced her. Promptly assembling an ample campaign chest, she went on to defeat the incumbent Marshall, obtaining 52 percent of the vote. (Thomas Korosec, “Bench Press”, Dallas Observer, March 9; Todd J. Gillman, “Republican judge questions challenger’s party loyalty”, Dallas Morning News, Feb. 19; Holly Becka, “Voters sent message by ousting three judges, experts say”, Dallas Morning News, March 16 (links now dead)).
Baron, whom we believe holds the title of president-elect of the Association of Trial Lawyers of America (we apparently jumped the gun recently in awarding him the title of president), has in the past been touchy about criticism. In 1998, when the Dallas Observer ran a cover-story exposé on his firm, columnist Julie Lyons said Baron had “bullie[d] the Observer’s every effort to investigate his firm’s practices, even taking the newspaper to court to discover sources, in a pattern of intimidation and paranoia such as the Observer has never experienced before.” (Patrick Williams, Christine Biederman, Thomas Korosec, Julie Lyons, “Toxic Justice”, August 18, 1998; Julie Lyons, “The Control Freak”, August 12, 1998. See also earlier Baron coverage on this website: Feb. 14, Jan. 8).
March 23 – Update: mistrial in bank robber’s suit, more litigation expected. By a vote of 9 to 3, jurors in their deliberations were of the view “that the civil rights of Emil Matasareanu, armed criminal, shooter of cops, were not violated on Feb. 27, 1998, by officers who didn’t get an ambulance to poor Emil quickly enough” after his bloody shootout with police following a North Hollywood bank robbery (see Feb. 23 commentary). A federal judge declared a mistrial, and an L.A. Times columnist writes that “the attorney for Matasareanu’s survivors is expected to bring the case against the city and two retired LAPD officers to court again. By survivors, I mean the dead man’s family, not the people he didn’t kill.” (Mike Downey, “A World With No Bad Guys, Just Topsy-Turvy Juries”, Los Angeles Times, March 17, link now dead).
March 23 – Let them sue us! In the recent media boomlet over “medical mistakes”, it’s been easy to forget that hospitals currently must anticipate years of expensive litigation if they move aggressively to withdraw practice privileges from perceived “problem doctors”. Consider the now-celebrated “Dr. Zorro” case, in which Dr. Allan Zarkin is alleged to have carved his initials into a patient’s body at New York’s Beth Israel Hospital. The hospital’s chairman, Morton P. Hyman, “vowed he would make it harder for doctors to maintain their privileges at Beth Israel and would see that hospital procedures were tightened further. … Doctors disciplined by the state will be automatically dismissed from the hospital, he announced, even if their firings leave the hospital liable. ‘Let them sue us,’ he said, pounding the table.” (Jennifer Steinhauer, “At Beth Israel, Lapses in Care Mar Gains in Technology”, New York Times, Feb. 15, not online).
March 22 – Next on the class-action agenda: liquor? Public Citizen, whose campaigns against American business often closely parallel those of the organized plaintiff’s bar, has for a while been grouping alcohol and gambling companies with tobacco and gun makers as “killer industries” in its distinctively shrill propaganda. (“Killer Industries Fund Congressional Champions of “Family Values’”, press release, Dec. 28, 1998, “Family Values, Killer Industries”, undated; both on Public Citizen website). And the pro-hospitality-business Guest Choice Network thinks it has evidence that the previously long-shot idea of mass litigation against alcoholic beverage makers may be getting to be less of a long shot:
“* The Minnesota DWI Task Force called upon their state’s criminal justice system to initiate class action litigation against makers of adult beverages.
“* MADD’s [Mothers Against Drunk Driving's] year-end press conference closed with a comment from president Karolyn Nunnallee that initiating litigation against alcohol and hospitality companies ‘will be an issue of discussion’ at an upcoming meeting. Although MADD did not have plans to sue ‘at this time,’ she added, ‘but never say never!’” (“They’re Bellying Up to the Bar!”, Guest Choice Network, undated). Martin Morse Wooster examines the evolution of MADD’s views in a new paper for Capital Research Center (“Mothers Against Drunk Driving: Has Its Vision Become Blurred?”, Feb. 2000).
March 22 – Rise of the high school sleepover disclaimer. Before having some of his daughter’s tenth-grade classmates out for the weekend to the family home in East Hampton, a parent at Manhattan’s tony Brearley School had his attorney draft a 765-word “liability waiver and indemnification agreement” for the other parents to sign and return. It describes the students’ impending visit to the “house and surrounding property at the above address (the ‘premises’) without charge on or about Saturday, November 20, 1999 and Sunday, November 21, 1999 during their weekend trip to East Hampton, NY (such use of the premises, the ‘visit’).” Several dense sentences later, it gets to the point: “Student and parent hereby waive any and all present and future claims related to or arising out of or in connection with the visit or any losses they, any other family member or any third party may suffer in connection therewith…” Apparently enough parents signed and the trip came off with no problem. (“Gotham: In Loco Parentis”, New York, Dec. 6; portions of disclaimer appear in printed magazine but not online).
March 22 – Newest disabled right: audio TV captioning. Decision expected this summer on Federal Communications Commission proposal that TV networks be compelled to provide at least four hours of programming a week with “secondary audio” descriptions of filmed action (“…Rhett takes Melanie in his arms and carries her to safety as Atlanta burns around them”) in hopes of giving blind viewers an “equivalent experience” to what sighted viewers are getting. Hollywood types “say descriptions will stifle creativity and jack up programming costs by about $4,000 for an hour of airtime”; audio captioning is considerably more expensive than closed-captioning for the deaf, mandated since 1998, because descriptions of filmed action call for a modicum of editorial judgment as opposed to mere transcription. And the National Federation of the Blind reports that many of its constituents have mixed feelings about the technique, finding it “irritating, overdone, and full of irrelevant information” and switching it off after a trial. (FCC captioning page; Nat’l Fed. Blind comments; Jonathan Aiken, “FCC proposes descriptive audio to help blind enjoy TV”, CNN, Feb. 24). See also our Feb. 19-21 commentary, on the ADA suit filed by deaf moviegoers in Oregon seeking to compel theaters to install closed captioning for films.
March 21 – Smith & Wesson’s “voluntary” capitulation. Today’s Wall Street Journal carries our editor’s op-ed on the Smith & Wesson settlement, adapted and expanded from yesterday’s commentary on this site. The piece asks: why aren’t Republican members of Congress and business people expressing more outrage? “It would surely make a symbolic difference if a few CEOs of companies outside the gun industry chipped in personal checks to start a legal defense fund for small gun makers being bulldozed by the cost of litigation, to give them at least a hope of surviving to fight the suits on the merits. Or if they let it be known that mayors who’ve signed on to the gun-suit jihad should stop passing themselves off as ‘pro-business.’ Not long ago the mayor of Bridgeport, Conn., Joseph Ganim, a gun-suit mastermind who’s considered ambitious for statewide office, was feted by a Chamber of Commerce in his local Fairfield County. Hey — it’s someone else’s industry he’s working to destroy, right?” (Walter Olson, “Plaintiffs Lawyers Take Aim at Democracy”, Wall Street Journal, March 21 (requires online subscription)).
March 21 – Ability to remain conscious not obligatory for train dispatcher, EEOC argues. “In the case of a former Consolidated Rail Corp. employee with a heart condition that can cause him to lose consciousness, the Equal Employment Opportunity Commission told a federal appeals court in Philadelphia that ‘while consciousness is obviously necessary to perform’ train-dispatcher tasks, ‘it is not itself a job function.’” The worker had sued Conrail under the Americans with Disabilities Act and lost in federal court; on appeal, the EEOC argued that the railroad could have accommodated his condition and that he was not a ‘direct threat’ to others, which is the standard employers must meet under the ADA if they wish to exclude disabled employees from jobs on safety grounds. “The employee was denied a dispatcher’s job that involves directing trains and taking emergency action to prevent crashes.” (“Employment Briefs: Worker denied promotion sues”, Detroit News, March 18).
March 21 – Furor just one click away. Outcry over Amazon.com’s patent of “one-click” shopping method rumbles on. Founder/CEO Jeff Bezos says the company did it in self-defense; he’s now proposed an across-the-board reduction in the length of patent protection for software and business-method patents. Some veteran intellectual-property lawyers take issue with that scheme and are also upset at a New York Times Magazine article by science writer James Gleick questioning some of the patent system’s fundamental assumptions. Until recently it was widely assumed that business methods — the discovery of a superior method for laying out the aisles of a supermarket, for example — couldn’t be patented at all. What would stores be like today if the idea of a “checkout counter” had been locked up for twenty years by the first company to file for it?
SOURCES: Victoria Slind-Flor, “The Biz-Method Patent Rush”, National Law Journal, Feb. 28; Chris Oakes, “Another Amazon Patent Furor”, Wired News, March 2; Boycott Amazon site (Free Software Foundation); Chris Oakes, “Bezos: Patents Were Self-Defense”, Wired News, Mar. 3; Chris Oakes, “Patently Absurd”, Wired News, Mar. 3; Bezos open letter, Amazon site; Dugie Standeford, “Book Publisher Launches Cybercampaign Against Amazon.com”, E-Commerce Law Weekly, March 8; James Gleick, “Patently Absurd,” New York Times Magazine, March 12; “The Harm of Patents”, O’Reilly Network, March 13; Omar Perez, “Amazon.com Patents Cast Giant Shadow Over Affiliates”, March 20; Miami Daily Business Review, March Victoria Slind-Flor, “Bar Reacts To Bezos Patent Reform Plan”, National Law Journal, March 20.
March 21 – Whether they meant to hurt anyone or not. How harsh can the legal environment become for drunk drivers? North Carolina seems to have pushed things to the ultimate extreme: its prosecutors seek to execute them when they cause fatal accidents. (Paula Christian, “Supreme Court to decide if drunk drivers get death penalty”, Greensboro News & Record, Mar. 12).
March 21 – New subpage on Overlawyered.com: Canadian corner. Finally! A page for our many readers north of the border who’ve noticed the nuggets of Canadian content we periodically slip in and would like them gathered in one spot for convenience. As befits the differences between the two legal systems, there isn’t so much “overlawyering” apparent in most of the stories we relay from Canada; but with regard to most other types and varieties of human folly, the two nations seem to be are in a neck-and-neck race.
March 20 – Liberty no longer insured by Smith & Wesson. In an ominous triumph for brute litigation force — and a setback for both democratic governance and Second Amendment liberties — the Clinton Administration and lawyers representing city governments on Friday bullied the nation’s largest gun maker into agreeing to a variety of controls on the distribution of its products, controls that the Administration had not been able to obtain through the normal legislative process. The company said its capitulation would preserve the “viability of Smith & Wesson as an ongoing business entity in the face of the crippling cost of litigation.” As the New York Times reports, the deal has “opened a new avenue for regulating the firearms industry without action from Congress, where partisan gridlock has stalled even modest gun-control legislation in recent months” — “partisan gridlock” being here employed by the Times as a pejorative synonym for the normal democratic process, which when working properly does not result in the speedy enactment of measures passionately opposed by a large constituency within the majority legislative party.
At this point it would make sense for the Republican Congressional leadership to rise up in unmistakable disapproval of the Clintonites’ invasion of their legislative prerogatives, and announce that –whatever one’s personal position on the details of gun control proposals — the use of litigation as an undemocratic end run around the legislative process is categorically wrong and must be fought with appropriate means at Congress’s disposal, such as funding cutoffs. And yet the first round of wire service stories quotes only one GOP Congressional leader, J.C. Watts of Oklahoma, as reacting to the news, and his quoted words, incredibly, are favorable: “we hail Smith & Wesson for taking a pro-active approach to the problem of violence”.
Advocates of gun-control-through-litigation — not to mention trial lawyers looking for an eventual payday from gun suits — view Smith & Wesson’s surrender as a harbinger of more victories ahead. “The legal fees alone are enough to bankrupt the industry,” boasts John Coale, one of the lawyers masterminding the city suits. “The pressure is going to be on”. Why are so few elected officials standing up to say that what’s going on is wrong?
SOURCES: Agreement text at HUD website; Smith & Wesson statement; Clinton Administration press release; “U.S. Drops Legal Threat Against Smith & Wesson”, Reuters/Excite, Mar. 17; Knut Engelmann, “U.S. Drops Legal Action Against Gun Maker”, Reuters/Excite, Mar. 17; David Ho, “Officials Praise Smith & Wesson”, AP/Excite, Mar. 17; Amy Paulson, “Smith & Wesson agrees to landmark gun safety settlement”, CNN, Mar. 17; Brigitte Greenberg, “Smith & Wesson Gets Preference”, AP/Excite, Mar. 18; Edward Walsh and David A. Vise, “U.S., Gunmaker Strike a Deal”, Washington Post, March 18; James Dao, “Gun Maker Agrees to Curbs in Exchange for Ending Suits”, New York Times, March 18 (requires free registration).
March 20 – “Study Shows Breast Implants Pose Little Risk”. “An analysis appearing in Thursday’s New England Journal of Medicine suggests silicone breast implants are safe, despite widespread perception that the controversial devices cause health problems” — not to mention a trial-lawyer-led campaign that drove the devices off the market and reaped a settlement totaling billions of dollars from manufacturers. Researchers at the University of North Carolina, Chapel Hill, performed a combined analysis of 20 earlier studies and concluded that “‘the elimination of implants would not be likely to reduce the incidence of connective-tissue diseases’ such as rheumatoid arthritis, lupus, or other illnesses caused by the misfiring of the immune system”. (Reuters/ FindLaw, Mar. 15).
March 20 – Do as we say, cont’d. Disabled-rights laws are feared by many private business owners who face the prospect of heavy fines and lawsuit settlements for noncompliance. As for the judicial branch, charged with enforcing these selfsame laws? Well, they’re often a wee bit less mindful of ‘em. Howard County, Maryland Circuit Judge James B. Dudley, who isn’t disabled, concedes that his desire to stick close to the courthouse so he could answer jurors’ questions during a trial was “probably not a justification” for his having chosen to park in a clearly marked handicapped space, a practice also engaged in by local sheriff’s deputies. (Del Quentin Wilber, “Judge parks in hot water”, Baltimore Sun, Mar. 11). And in Massachusetts, following on the revelation that Boston’s opulent new courthouse lacks wheelchair access to its jury boxes and witness stands (see July 17-18, 1999 commentary), the Cape Organization for Rights of the Disabled sued over the disabled-unfriendly state of the Plymouth County courthouse; Barry Sumner couldn’t get over the threshold to divorce his wife and had to ask her to help lift his chair. (Paul Sullivan, “Suit seeks access for disabled at Plymouth court”, Boston Herald, Sept. 10, 1999). Aren’t these courts lucky they’re not private businesses?
March 20 – Costs of veggie-libel laws. Talk show hostess Oprah Winfrey keeps winning in round after round of litigation filed by cattlemen after a February 1998 show she did on mad-cow disease. “Ironically, the more she wins, the more she loses,” observes First Amendment specialist Paul McMasters. Aside from our lack of a loser-pays rule, the culprit is “agricultural-disparagement” laws enacted in 13 states, which menace media producers if they knowingly broadcast false and disparaging statements that harm the salability of perishable farm products. (“Shut up and eat everything on your plate”, Freedom Forum Online, Feb. 21; Ronald K.L. Collins and Paul McMasters, “Veggie Libel Laws Still Out to Muzzle Free Speech”, Texas Lawyer, March 30, 1998). Last year the Texas legislature turned back an attempt to repeal that state’s ag-disparagement law, though the Abilene Reporter-News pointed out that the law is hard to square with the state’s successful efforts under Governor Bush to curb excessive litigation. (“‘Veggie libel’ law Texas can live without” (editorial), April 13, 1999; “House lets ‘veggie libel’ law stand; Bill seeking repeal voted down 80-57″, AP/Dallas Morning News, May 8, 1999).
March 20 – 250,000 pages served on Overlawyered.com. Thanks for your support!
March 17-19 – Holiday literary selection: Irish squire’s litigious ways.“Then there was a bleach yard near us, and the tenant dare refuse my lady nothing, for fear of a law-suit Sir Murtagh kept hanging over him about the water course. With these ways of managing, ’tis surprising how cheap my lady got things done, and how proud she was of it. … [The tenants] 
knew her way, and what with fear of driving for rent and Sir Murtagh’s law-suits, they were kept in such good order, they never thought of coming near Castle Stopgap without a present of something or other nothing too much or too little for my lady eggs honey butter meal fish game, grouse, and herrings, fresh or salt all went for something. … [H]e made a good living of trespassing cattle there was always some tenant’s pig, or horse, or cow, or calf, or goose, trespassing, which was so great a gain to Sir Murtagh, that he did not like to hear me talk of repairing fences….
“As for law, I believe no man, dead or alive, ever loved it so well as Sir Murtagh. He had once sixteen suits pending at a time, and I never saw him so much himself roads lanes bogs wells ponds eel-wires orchards trees tythes vagrants gravel-pits sandpits dung-hills and nuisances every thing upon the face of the earth furnished him good matter for a suit. He used to boast that he had a law-suit for every letter in the alphabet. How I used to wonder to see Sir Murtagh in the midst of the papers in his office why he could hardly turn about for them. I made bold to shrug my shoulders once in his presence, and thanked my stars I was not born a gentleman to so much toil and trouble but Sir Murtagh took me up short with his old proverb, ‘learning is better than house or land.’ Out of forty-nine suits which he had, he never lost one but seventeen; the rest he gained with costs, double costs, treble costs sometimes but even that did not pay. He was a very learned man in the law, and had the character of it; but how it was I can’t tell, these suits that he carried cost him a power of money in the end he sold some hundreds a year of the family estate but he was a very learned man in the law, and I know nothing of the matter except having a great regard for the family. I could not help grieving when he sent me to post up notices of the sale of the fee simple of the lands and appurtenances of Timoleague. ‘I know, honest Thady,’ says he to comfort me, ‘what I’m about better than you do; I’m only selling to get the ready money wanting, to carry on my suit with spirit with the Nugents of Carrickashaughlin.’” — from Chapter 1, Castle Rackrent, subtitled An Hibernian Tale Taken from Facts, and from the Manners of the Irish Squires, Before the Year 1782, by Maria Edgeworth (1800) (biographies: Edgeworth family site, E-Search Ireland, WritePage, Morley’s) (e-text at Carnegie-Mellon; alternate e-text location, Creighton U.) (passage is from fourth long paragraph of text).
March 17-19 – Letterman sign suit. Anna Soares, 79, who lives near the Manhattan studio where David Letterman tapes his show, filed a lawsuit last month demanding $12 million from CBS because the network has declined to remove a giant illuminated sign of Letterman’s likeness which shines into her apartment’s window. Network officials say they believe they have the proper permits for the sign. Reader Gregory Kohs of American Cynic comments: “what I find preposterous is the $12 million sum the lady decided would be fair.” If the sign does not violate code, how about asking for the costs of relocating to a less-commercial neighborhood? “I think a wee bit less than $12 million would be sufficient to get her belongings into a moving truck.” (“People in the news: Woman files lawsuit over Letterman sign”, Boulder Daily Camera, Feb. 19) (second item).
March 17-19 – Go ahead and comment — if it’ll do much good. The Occupational Safety and Health Administration’s proposals on ergonomics “may be the single most costly employment policy regulation in U.S. history,” according to the Employment Policy Foundation. Now OSHA has thrown open a period for public comment on the rules, but the Clinton Administration has already signaled that the option favored by most organized employers — not proceeding with the rules at all — is unlikely to be considered, no matter what volume of critical comments may come in. (Alice Ann Love, “Public dialog opens on new workplace safety rules”, AP/Fox News, March 14; Michael D. Towle, “OSHA pushing for new regulations aimed at preventing repetitive motion injuries”, CNN, March 9).
SOURCES: OSHA proposed standard; Yahoo Full Coverage; Ron Bird and Jill Jenkins, “Ergonomics Regulation: Vague, Broad and Costly”, EPF Backgrounder, Jan. 12; National Coalition on Ergonomics (employer alliance); Matt Labash, “Hooked on Ergonomics”, Weekly Standard, Feb. 28; “OSHA Unveils Ergonomics Standard To Ire of Congress, Employer Groups”, Employment Law Weekly, Nov. 29; comments of Mercatus Center, George Mason U., National Association of Manufacturers; (via Junk Science 
Robert Hahn, “Bad Economics, Not Good Ergonomics,” Wall Street Journal, Nov. 24; David Saito-Chung, “What Price Workplace Safety? New Rules Spark Debate Over Science, Business Costs”, Investor’s Business Daily, Nov. 30; “New OSHA regs need rethinking” (editorial), Boston Herald, Nov. 26; “OSHAme on them!” (editorial), New York Post Nov. 24; “Repetitive Bureaucracy Syndrome” (editorial), Chicago Tribune, Nov. 24.
March 16 – Dave Barry on tobacco suits, round II. The humorist, who wrote a priceless column on the federal tobacco suit last fall (see Oct. 26) now offers an update reflecting on the news that “so far the states are spending more than 90 percent of the tobacco-settlement money on programs unrelated to smoking, such as building highways. … This is good, because we need quality highways to handle the sharp increase in the number of Mercedes automobiles purchased by lawyers enriched by the tobacco settlement.” Then there’s the new round of class-action suits contending that smokers themselves deserve money from the states, which if successful will establish the following cycle:
“1. SMOKERS would give money to THE TOBACCO COMPANIES in exchange for cigarettes.
“2. THE TOBACCO COMPANIES would then give the money to THE STATES (and their lawyers).
“3. THE STATES would then give the money to SMOKERS (and their lawyers).
“4. THE SMOKERS would then presumably give the money to THE TOBACCO COMPANIES in exchange for more cigarettes.”
But isn’t this inefficient, you may ask? Wouldn’t it be easier to order the tobacco companies to give smokers free cigarettes directly? “The trouble with that idea is that it would defeat the two main purposes of the War on Smoking, which are (1) to provide the states with money; and (2) to provide lawyers with, well, money.” Don’t miss this one (“War on Smoking always has room for another lawyer”, Miami Herald, Feb. 18).
March 16 – Judges can’t charge cost of corruption defense to insurer. “Three former San Diego Superior Court judges convicted of corruption charges can’t parlay judicial liability insurance into coverage for their criminal defense, the 9th U.S. Circuit Court of Appeals ruled.” In one of the biggest judicial scandals in California history (see our editor’s 1996 piece on the case), Michael Greer, James Malkus and G. Dennis Adams were found to have accepted gifts from prominent trial lawyer Patrick Frega in exchange for favorable rulings in cases. (Jason Hoppin, “No Coverage for Judges Convicted of Corruption”, The Recorder/ CalLaw, March 2).
March 16 – Your hairdresser — and informant? Hairdressers “are often confidantes for many people,” says Veronica Boyd-Frenkel, who holds the post of “domestic violence ombudsman” in the state of Nevada. All this is by way of explaining why her office, working with the state attorney general’s office, has launched a program to train cosmetologists to recognize signs of domestic abuse, the better to steer suspected victims to approved anti-domestic-violence groups. “They may hear things even someone’s best friend may not hear,” says Ms. Boyd-Frenkel, of the hair stylists. The Las Vegas Review-Journal, in an editorial, thinks it all rather smacks of the enlistment of ever wider circles of the citizenry as official informants (Angie Wagner, “State asks hairdressers to help domestic abuse victims”, AP/Las Vegas Review-Journal, Feb. 28; “Down the wrong path” (editorial), Feb. 29; Vin Suprynowicz, “The Libertarian: Watch what you tell your hairdresser” (expanded version of editorial), March 1; “Training would not make informants of cosmetologists” (letter to the editor from Ms. Boyd-Frenkel), March 5).
March 16 – Prof sues for right to flunk students. The University of Michigan describes as “utterly without merit” a lawsuit filed by Dental School associate professor Keith Yohn challenging the university’s refusal to fail two sophomore dental students. Yohn charges that the school bent its academic rules to allow the two to remain, and that an assistant dean sent him a belligerent email informing him that poor grades he and three other professors had given the students would be disregarded. Acting as his own attorney, Yohn went to federal court to charge the university with “deprivation of ‘freedom of speech’” and disregard of the ‘health care interest’ of the public and their children”; he also asks $125,000 for emotional distress. (David Shepardson, “U-M sued over dental grades”, Detroit News, Dec. 30; Hanna Lopatin, “Dental Prof. Sues U. Michigan for Refusing to Fail Students”, Michigan Daily/ StudentAdvantage.com, Jan. 5).
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February 29 – Update: Publishers Clearing House case. Turning aside objections from state attorneys general who viewed the deal as offering more prizes to lawyers than to magazine subscribers, federal judge G. Patrick Murphy approved a settlement of a class-action suit against Publishers Clearing House for allegedly misleading sweepstakes claims. He also approved as fair and reasonable the payment of $3 million in legal fees to the class lawyers, a sum criticized as excessive by objectors and by commentators such as the St. Louis Post-Dispatch‘s Bill McClellan. (“Publishers Clearing House Deal OKd”, AP/FindLaw, Feb. 22).
As readers of this space will recall (see Nov. 30, Nov. 4 commentaries) McClellan in his column on the suit jocularly compared class-action lawyers to bank robbers and then corrected himself, saying the comparison wasn’t fair to bank robbers, who don’t pretend they’re in business for our good. Class-action lawyers Judy Cates and Stephen Katz then proceeded to sue him for $1 million, charging that these sentiments had defamed them. Among the discovery demands they proceeded to make was that McClellan turn over everything he’d written in the past decade that was “in any way critical or mocking to lawyers or lawsuits.” In another of their discovery forays, McClellan advises readers in a recent column, “Cates and Katz were demanding all correspondence I have received relating to their lawsuit. In other words, if you sent me a letter or an e-mail concerning this case, they wanted it. They wanted to see who has written what about them.” Now an agreement has been reached to end the lawsuit — on what terms is not immediately apparent. (Bill McClellan, “This is a situation where even when you win, you lose”, St. Louis Post-Dispatch, Feb. 23).
February 29 – Feds’ mission: target Silicon Valley for race complaints. The federal Equal Employment Opportunity Commission has decided that Silicon Valley employers would make a suitably high-profile target for a series of race discrimination complaints, and now is “scouring” the Valley for likely defendants. A likely charge is that despite the strong representation in high-tech employment of ethnic groups from around the world, local blacks and Hispanics are underrepresented in professional and managerial slots. “We’ve been beefing up our staffing in every place that we see significant economic growth related to high technology,” says EEOC vice chairman Paul Igasaki, a long-time civil rights attorney: “this is an industry in which a message may need to be sent.” A source within the agency puts it more bluntly: “We’re busy looking under every rock we can, looking for a couple of high-profile companies we can hit with a suit.” (Gary Rivlin, “Busting the Myth of the Meritocracy”, The Industry Standard, Feb. 21).
February 29 – Tobacco lawyers’ lien leverage. While states are salivating at the vast new revenue banquet promised by the tobacco settlement — with no need to do anything unpopular, like raise taxes! — some are finding that the trial lawyers who seemed so helpful at first are now proving obstreperous, slapping the states with liens that may prevent the distribution of some or all settlement booty until the lawyers’ share is resolved. In New Jersey, Bergen County plaintiff’s attorneys Terry Bottinelli and Marc Saperstein blocked access to upwards of $92 million in funds, then relented when the state agreed to help document their case for sharing in the fee payday, though in the end it merely made short mention of their work in a press release. (Matt Ackermann, “New Jersey’s Tobacco-Suit Dividends Delayed by Hold-Out Attorneys”, New Jersey Law Journal, Jan. 11; “Holdout Tobacco Lawyers Will Relent If State Documents Their Case for Fees”, Jan. 18; “N.J. Tobacco Settlement Holdouts Drop Appeal”, Feb. 17) (more N.J. tobacco-fee coverage: Oct. 1). In Illinois, Seattle attorney Steve Berman’s Hagens & Berman, San Francisco’s Lieff, Cabraser, Heimann & Bernstein, and two other firms slapped a lien on the state’s $9.1 billion windfall; last fall a national arbitration panel ruled that while the Berman firm had been an important player in tobacco litigation on the national scene, “relatively little was done to advance the case to trial in Illinois”. Berman, quoted in the Chicago Tribune, conceded that not everyone sympathized with his position that he and the other lawyers are nonetheless entitled to as much as $910 million for their Illinois work: “Some people say lawyers have got a lot of money and are overpaid and are bad guys anyway”. (Rick Pearson, “Lawyers demand a bigger piece of tobacco cash pie”, Chicago Tribune, Nov. 23) (more Illinois tobacco-fee coverage: Oct. 16; more on Berman: Feb. 28, Aug. 21).
February 28 – “Medical errors” study. Malpractice lawyers have already seized on a recent federal study (see Feb. 22 commentary) which extrapolated from a study of hospitals in three states to the conclusion that between 44,000 and 98,000 patients die each year nationally because of mistakes in medical care. In a short paper for the Statistical Assessment Service, Iain Murray and Howard Fienberg point out a few of the study’s questionable premises. For example, the study’s definition of medication-related errors, a significant share of the total, “is based on errors that resulted ‘from acknowledged errors by patients and medical personnel’” (emphasis added). “In other words, if a patient takes an overdose or fails to inform their medical advisers of other conflicting medications they are taking, that is regarded as a medical error, rather than misadventure.” (Iain Murray and Howard Fienberg, “Doctoring the Data, Nursing the News?”, “STATS Spotlight”, Feb. 24) (via Junk Science). Plus: a Chicago Tribune editorial urges caution: “Don’t Compound Medical Errors”, Feb. 27.
February 28 – Fifteen years locked away. If you think the day-care-abuse mania of the 1980s has mostly run its course, consider the case of Bernard Baran, convicted of mass molestation in 1985 in Pittsfield, Mass. under the sorts of dubious circumstances that were later to become familiar in such cases. Katha Pollitt’s Nation account mentions in passing that the mother who initiated the accusations, a drug addict living in troubled circumstances, proceeded to file a suit against the center demanding $3.2 million (the case “was settled out of court, reputedly for a small sum”), and that one of the children, whose mother was a friend of the original accuser, “told a therapist after the trial that her mother had told her to say Baran had molested her so they could get toys and money”. Since Baran still insists on his innocence he’s ineligible for parole. (Katha Pollitt, “Subject to Debate: Justice for Bernard Baran”, The Nation, March 13) (via Arts & Letters Daily) (“The Appalling Case of Bernard Baran”, website about the case).
February 28 – Hiring talent from the opposing camp. Seattle plaintiff’s lawyer Steven Berman is among the most feared in the country; a class-action securities specialist, he went on to assume a prominent role in the tobacco litigation (see August 21; his fee from that has been estimated at $2 billion). But now the city’s best known corporate citizen, Microsoft, has quietly hired Berman to help it fend off the wave of class-action lawsuits it’s facing over its antitrust troubles. According to Forbes‘s “The Informer”, Berman and Microsoft chairman Bill Gates have become personal friends — notwithstanding a 1989 incident in which, following a sudden drop in the company’s stock price, Berman filed a lawsuit against the company and won $1.5 million. (Elizabeth Corcoran and Tomas Kellner, “The Informer”, Forbes, Feb. 7) (fourth item).
February 28 – Welcome Duke Law visitors. Overlawyered.com is the featured “site of the week” on the Duke Law School “Faculty and Staff Gateway” page.
February 26-27 – Legal ethics meet medical ethics. Two weeks ago, in preparation for his second murder trial on charges of pushing Kendra Webdale to her death on the New York subway last January, Andrew Goldstein went off his antipsychotic medication. Mr. Goldstein’s court-appointed lawyers “advised him to go off his drugs in an effort to demonstrate to the jury the debilitating effects of his mental illness”. Doctors treating the 30-year-old schizophrenic at Bellevue were strongly opposed to the tactic, and some outside observers were also skeptical, such as Columbia law professor Richard Uviller, who said “a lawyer’s first duty is to preserve his client’s health.” However, schizophrenia expert Dr. E. Fuller Torrey called the move legitimate and said he himself “had intentionally given homeless mentally ill patients less medication than they needed before court competency hearings to keep them from being released back onto the street.” Justice Carol Berkman of State Supreme Court in Manhattan “has said she would allow Mr. Goldstein to stop taking his medication for as long as he appeared competent to stand trial. If he appeared not to understand his surroundings, she ruled, he would be forcibly given his medication.” The new trial is expected to last at least a month; the first ended in a jury deadlock and mistrial. (David Rohde, “For Retrial, Subway Defendant Goes Off Medication”, New York Times, Feb. 23 — fee-based archive).
February 26-27 – “Judgment reversed in Seinfeld case”. “An appeals court on Tuesday reversed a $25 million judgment awarded to a man who was fired after a female co-worker complained that he harassed her by discussing a racy episode of ‘Seinfeld.’ … The ‘Seinfeld’ element of the case eventually became secondary and a Milwaukee County Circuit court dismissed a wrongful-firing claim.” Jerold Mackenzie had argued that his bosses at Miller Brewing Co. were already plotting to fire him from his $95,000-a-year management job at a time when they told him his position was safe. (Jenny Price, AP/Washington Post, Feb. 22, link now dead).
February 26-27 – Deep pockets blameable for denial of service attacks? PBS commentator Robert X. Cringely has posted a bunch of emails from his readers concerning the coordinated “distributed denial of service” attacks on major web sites earlier this month. Among them was the following from Jay Kangel: “At some point one of these hacking events is going to cost someone who can hire lots of lawyers with real money. At that point the victim, or the victim’s insurance company, will want to sue for damages. The actual hacker will likely have little or no money. Even if the victim wins such a suit the damages cannot be recovered. The deep pockets are the owners of the zombie machines. Is it negligence if a machine owner does not promptly install security patches and, as a result, hackers take over the machine? I don’t know….” (“The Cat is Out of the Bag”, I, Cringely: The Pulpit, Feb. 24).
February 26-27 – Mayors: liability fears stalling “brownfields” development. A report from the U.S. Conference of Mayors finds that liability fears are among major factors stalling redevelopment of “brownfields” (abandoned or underused industrial sites) in American cities. Environmentalists and urbanists consider brownfields an attractive alternative for new industrial development near the existing workforce, remedying eyesores and bolstering urban tax bases while avoiding development of peripheral vacant land around cities (“sprawl”). The open-ended liability inflicted by the Superfund program, however, menaces new developers, lenders, realtors and users with potential responsibility for the environmental sins of long-departed actors. (“Traci Watson, “Report finds more than 80,000 acres of polluted land in USA”, USA Today, Feb. 25, link now dead; report and news release).
February 25 – Music stores sue Sony. Candidate for the distinction of lamest business-vs.-business suit of the year? You be the judge. The National Association of Recording Merchandisers has filed suit against Sony for the purported offense of including hyperlinks and promotional inserts in or with its music products that enable/encourage consumers to use its online store, thus “diverting” them away from their destined role as future purchasers at the retail outlet. “Few retailers are happy about having to stock Ricky Martin CD’s with hyperlinks to Sonymusic.com [where customers can buy more CDs], but Sony hasn’t provided any alternative,” complains Pamela Horovitz of NARM. This practice amounts, says Horovitz, to “forcing retailers to steer their own customers to competitive sites”. “Forcing”? Well, it seems, the latest Ricky Martin album was just too darn popular for record stores to consider not stocking it by way of punishing Sony for its hyperlink policy.
The retailers insist that Sony has a legal obligation to make available to them CDs stripped of the capability to hyperlink to an online store, much as if newsstand distributors demanded that publishers supply magazines that were free of subscription cards (which of course tend to “divert” readers’ business from further newsstand purchases of the magazine). The complaint also charges Sony with “copyright misuse, illegal price discrimination by favoring its own record club and on-line music retailer (CDNow/ Columbia House) over other retailers, unfair competition, and false advertising.” (“Retailers Sue Sony”, Reuters/Wired News, Jan. 31; NARM press release, Jan. 31; Pamela Horovitz, commentary, Billboard, July 1999 (reprinted at NARM site, second item)).
February 25 – Not to be dismissed. Item from a recent (Jan. 27) edition of Chuck Shepherd’s News of the Weird, under the heading “Fireproof Workers“: “An arbitration panel ruled in July that Toronto Transit Commission janitor Winston Ruhle had been improperly fired and deserved about $115,000 (U.S.) in damages; he was fired in 1995 for padding his recuperation time after surgery, improperly missing 203 days during a 244-day period. And English chauffeur John Forbes, 55, won an employment tribunal ruling in September that it was unfair to fire him simply because he had twice dressed in women’s clothing on the job and flashed his underwear to passing motorists.”
February 25 – Secrets of class action defense. “Some companies facing a multitude of class actions have been accused of shopping for the cheapest settlements by choosing to deal with lawyers willing to seek less for class members, sometimes in return for a hefty legal fee,” reports the Mobile Register in its investigative series (see Feb. 7 commentary). For example, Norwest Financial was accused of overcharging for credit life insurance in a class action filed in Birmingham; it offered a settlement, which was rejected. It then struck a similar deal with a Mobile lawyer to settle the case on behalf of the same class. “‘Defendants can to some degree get different plaintiffs’ lawyers to bid against each other,’ said John Coffee, a professor at Columbia University in New York and expert on class action law. … If one plaintiffs’ lawyer drives a hard bargain and seeks a truly beneficial settlement for a class, a company may seek another lawyer and ask him to file a suit for the purpose of settling, and on terms the company dictates.
“Coffee said it’s ‘a game’ by which a defendant arranges for a plaintiffs’ attorney to agree to a ‘modest settlement for the class but very lucrative attorney’s fees. The defendant might even write up the complaint to make sure it’s competent and covers everything,’ Coffee said.” (Eddie Curran, “Judge: Mobile deal a ‘cheap ticket out of trouble’”, Dec. 27 (full series).
February 24 – Columnist-fest: liberal aims, illiberal means. Three variations on a theme, namely how progressive social goals aren’t always well served by handing ever-greater authority to those who run the legal process:
* Wendy Kaminer understands why feminists would rally behind the Violence Against Women Act, currently up before the Supreme Court in Brzonkala v. Virginia Tech, but wonders whether liberals should really be comfortable arguing for an expansive view of federal police power. “We need to combat sexual violence without making a federal case of it.” (“Sexual Congress”, American Prospect, Feb. 14).
* Stuart Taylor welcomes the idea of extending legal recognition in Vermont to same-sex relationships, but asks: should this advance really be put over by way of a unilateral assertion of power by the state’s Supreme Court? (“A Vote For Gay Marriage — But Not By Judicial Fiat”, National Journal, Feb. 21).
* William Raspberry agrees that loving relatives should be a part of kids’ lives, but still is mystified by the law under review in the Supreme Court’s pending Troxel v. Granville: “If you stipulate the mother’s parental fitness (as both sides seemed to do in last week’s questioning by the justices) then how can you insist that she bow to the grandparents’ desires — or even that she has to explain why she chooses not to?” (“Grandparents’ visitation rights case misses boat”, Detroit News, Jan. 18).
February 24 – House passes liability reforms. President Clinton is going to huff and puff and use his veto to blow down anything that looks like a shelter from the incursions of his good friends in the trial bar, which hasn’t deterred the House from passing two bills this month aimed at extending modest degrees of such protection to small businesses and manufacturers of long-lived capital goods. (“GOP makes little headway in reining in lawsuits”, AP/CNN, Feb. 22, link now dead). The small business bill would restrict punitive damages levied against enterprises with fewer than 25 employees to $250,000 or three times actual damages, whichever is less, and would require plaintiffs seeking punitive damages to show that a defendant acted with “willful misconduct and was flagrantly indifferent to the rights and safety of others.” (“House Passes Bill Shielding Small Businesses From Liability Suits”, DowJones.com, Feb. 16.) The durable-goods bill would bar suits against makers of factory equipment that were filed more than 18 years after the delivery of the equipment to its original user; it would not apply to workers who are ineligible for workers’ compensation. (Paul Barton, “House passes cap on makers’ liability”, Cincinnati Enquirer, Feb. 3). The two bills passed by almost identical margins — 221-193 for the small business bill, and 222-194 for the statute of repose bill — with about two dozen Democrats crossing over to join the GOP majority in favor, and about one dozen Republicans crossing the other way.
February 24 – Blaming good pilots. One of the first lawsuits arising from the Jan. 31 Alaska Airlines crash over the Pacific claims that “the pilots should have ‘immediately … land(ed) the aircraft upon first notice of difficulty in operation.’ … But the second-guessing, and the widow’s lawsuit, are wrong. The pilots did what they were supposed to: Analyze the situation, take corrective action, land as soon as practicable. Hurtling through the skies in a pressurized metal tube has its risks. Slapping the airline with a lawsuit won’t make those risks magically disappear. … The pilots were heroes, keeping their crippled plane over the ocean instead of slamming it into suburban Los Angeles.” (Phaedra Hise, “Aerial ambulance chasing”, Salon, Feb. 18) (more on overlawyered skies: Oct. 8, July 19, Dec. 1, Dec. 9, “Kingdom of the One-Eyed“, “Life, Liberty, and the Pursuit of a Good Beer“)
February 23 – Crime does pay, cont’d. A federal judge last week refused to dismiss a civil rights lawsuit by family members of a bank robber killed in a spectacular televised shootout with police in North Hollywood, Calif. Emil Matasareanu and Larry Eugene Phillips Jr. “fired more than 1,200 rounds from automatic weapons during a 44-minute battle on Feb. 28, 1997. Both men died, and 11 officers and a half-dozen civilians were wounded.” Attorney Stephen Yagman, representing the family, alleges that police violated Matasareanu’s rights by deliberately “keeping paramedics away from him for an hour as he died on the street….The city has contended that paramedics were needed elsewhere and that authorities initially feared Matasareanu might be booby-trapped.” (“Judge allows lawsuit to go forward in North Hollywood shootout case”, AP/FindLaw, Feb. 16).
February 23 – “How’s the pool?” “It’s okay, but what’s amazing about it is that its construction predates massive lawsuits, so it actually has a deep end. Where most new Las Vegas pools are only three feet deep, this one goes to twelve feet. The diving board has been removed, however.” — from a review of the Frontier Hotel on the website CheapoVegas.com. Better hurry, though: the review advises that “The Frontier is scheduled to be demolished in the summer of 2000″.
February 23 – That Hager case. The Washington Post‘s David Segal, who covered the lawyer beat for three years and has now moved on to write about music, last month penned a valedictory column which mentioned one of his regrets: not having taken a harder look at the disciplinary process for D.C. lawyers and in particular “the tale of Mark Hager, the American University Law professor and sometime plaintiffs lawyer.
“He represented a pair of Virginia mothers who wanted to sue Warner Lambert, makers of a lice shampoo, for creating an environmental hazard and for failing to rid critters from their children’s heads. In an out-of-court deal, Warner Lambert offered refunds to the moms and some 90 other buyers of Nix shampoo, a sum that totaled less than $10,000. Hager and a partner, meanwhile, ended up splitting the $225,000 that Warner Lambert paid on condition that the lawyers not bring another, similar suit and — here’s the kicker — not tell their clients about the bargain. (Hager countered that the deal was legit, in part because it doesn’t prevent his clients from suing Warner Lambert in the future. He also said the moms’ demand for a toxic tort-style suit was unreasonable.)
“The moms filed an ethics grievance and a hearing before a committee of the D.C. Board of Professional Responsibility — which recommends disciplinary action — occurred in January. Not a peep has been heard from that committee since, even though it’s supposed to cough up a recommendation within 60 days.”
Concludes Segal: “That’s an outrage. If Washington lawyers want the trust of their clients and abiding respect from the rest of us, devising a more efficient policing mechanism might be a good start.” (Update May 3, 2001: disciplinary panel in Nov. 2000 called Hager’s conduct “shockingly outrageous” and recommended three-year suspension) (Update Jul. 19, 2003: Hager resigns AU post in April 2003).
SOURCES: David Segal, “Hearsay: Verdicts Rendered, a Beat Surrendered”, Washington Post, Jan. 17; David Segal, “Group Says Lawyer Made Secret Deal”, Washington Post, November 4, 1998, and Siobhan Roth, “American University Professor Faces Ethics Charges, Legal Times, Jan. 18, 1999, both reprinted at headlice.org site; “‘Settlement’ in lice shampoo case probed”, AP, Jan. 27, 1999, reprinted at “Safe 2 Use” commercial page; Goldie H. Gider, “Law Professor Faces Ethics Charges”, The Legal Reformer (HALT), Spring 1999 (second item); Deborah Kelly, “Lice infestations on the rise”, Richmond Times-Dispatch, May 29, 1997. In addition to publishing in such outlets as Monthly Review and Z Magazine, Prof. Hager has also distinguished himself for the vehemence of his attacks on liability reformers; see, for example, “Civil Compensation and Its Discontents: A Response to [Peter] Huber,” 42 Stanford Law Review 539 (1990) (not online).
February 23 – “Quadriplegic is given 7 years in prison for selling marijuana”. In another triumph for the drug war, a federal court has sentenced Louis E. Covar Jr., 51, to prison for seven years. Covar, a wheelchair user who cannot control his muscles beneath his shoulders, says he uses marijuana for medicinal purposes but police testified that he was selling it, in violation of probation terms for a conviction for marijuana possession last March. “According to the Department of Corrections, the special care Covar will need will cost $258.33 a day — or more than $660,000 if he serves his full seven years. A typical prisoner costs taxpayers $47.63 per day.” Federal judge J. Carlisle Overstreet said he was aware of the cost-of-custody problem but said Covar had showed “blatant disregard for the law”. (AP/Deseret News, Feb. 19).
February 23 –Overlawyered.com sets new visitor record. Yesterday was our busiest day ever, thanks in large part to the Wall Street Journal‘s generous editorial mention and the live link in its interactive edition.
February 22 – Welcome Wall Street Journal readers. In an editorial (“Virtual Sanity“) hailing the anti-food-scare Guest Choice Network, the Journal says that “overlawyered.com, a site run by Walter Olson to track the excesses of the lawsuit industry” is one of “a new breed of Websites… cropping up to keep tabs on the army of lawyers and activists”. (“Virtual Sanity”, Wall Street Journal, Feb. 22 (online subscription required)).
February 22 – Against medical advice. Ignoring the advice of both his own subordinates and the medical profession, President Clinton is expected today to unveil a package of measures aimed at combating “medical errors” among doctors, hospitals and other medical providers. The most controversial measure would subject providers to legal sanctions if they fail to report such errors. Since there’s often much doubt as to whether a particular incident constituted error and whether it contributed to a patient’s bad outcome, institutions could stay out of legal danger only by reporting as “error” many incidents that they might not be convinced are such. Despite supposed safeguards for privacy, the New York Times reports, it will often be possible for outsiders to identify the names of patients and doctors involved, and “public reports could be used to strengthen the hand of plaintiffs’ lawyers in malpractice lawsuits.”
The proposals follow a stampede set off by the release of a federally sponsored study which found high rates of avoidable injury to patients in the medical system. (For skeptical looks at the same Harvard-based researchers’ earlier allegations of an “epidemic” of medical malpractice, see Richard Anderson, 1996, and Peter Huber, 1990 and 1997). Both the American Medical Association and the American Hospital Association have warned that, to quote the Times, “if doctors and hospital employees fear being sued…they will be reluctant to discuss the lessons that could be learned from their mistakes.” Also conspicuous by its absence is any evidence that federally managed health care facilities, such as Veterans’ Administration hospitals, are presently achieving more success at avoiding errors than private hospitals, or any demonstration of why Washington should be imposing untried changes on private hospital management when it has as yet done nothing to demonstrate the workability of the proposed changes in its own facilities.
Indeed, “[e]ven Mr. Clinton’s own advisers had suggested that the administration move cautiously.” Instead, Clinton — fresh from a $500,000 trial-lawyer-hosted fund-raiser in Dallas two weeks ago — overrode their advice. He also insisted that an additional principle be part of the package: no matter how many rights doctors and hospitals are made to give up, no jot or tittle of the right to sue doctors or hospitals for malpractice may be interfered with. (Robert Pear, “Clinton to Propose a System to Reduce Medical Mistakes”, New York Times, Feb. 22 (requires registration)).
P.S.: For the past year, having abruptly reversed its earlier stance of resisting the expansion of litigation, organized American medicine has been cheerleading the trial lawyers’ assault on HMOs; the Connecticut State Medical Society, for example, recently sponsored trial lawyer bigwig Richard Scruggs to come to the state to talk up the subject. This could be seen as a kind of experiment: with the trial lawyers receiving such extraordinary and unexpected assistance from their old enemy, would they ease off on their litigation war against the doctors themselves? The Clinton initiative provides a definitive answer to that question: no, they won’t. (Edward J. Croder, “$300 million lawyer revs up to take on HMOs” (Scruggs speech at Quinnipiac College School of Law), New Haven Register, Feb. 11 — not online)
February 19-21 – “Deaf group files lawsuit against movie theaters.” Invoking the Americans with Disabilities Act, eight hearing-impaired persons in Portland, Oregon have filed what aspires to the status of a national class action seeking to force three large cinema chains, Regal, Century, and Carmike, to install closed captioning devices for films in their theaters. The technology, called MoPix, displays captions in a patron’s cupholder; the plaintiffs say it costs about $12,000 a screen to install. A spokesman for the suit, attorney Dennis Steinman, said the country’s biggest cinema chain, Cinemark, was likely to be added soon to the case as a defendant. (Ashbel Green, “Suit seeks to aid deaf moviegoers”, The Oregonian, Feb. 4).
February 19-21 – Bountiful NYC taxpayers come through again. It happened in 1989: Driver Jack Goldberg, under the influence of heroin, cocaine and methadone, lost control of his car and ran onto a Brooklyn sidewalk, gravely injuring Linda Davis, who’d been waiting with her daughter and grandson to catch a bus. Pleading guilty to assault, Goldberg was sent to prison for two years. But the blame could hardly be allowed to stop there, especially not when a far deeper pocket was on hand. Mr. Goldberg proceeded to aver that he’d swerved to avoid a city sanitation truck that was entering the intersection against the light. This theory outraged city officials, who according to the New York Law Journal “contended that Mr. Goldberg admitted at his deposition that he did not recall even seeing the truck in the area and that he had swerved to avoid striking a boy who had run into the street half a block away.” Nonetheless, on December 16 a Kings County jury proceeded to find the city 23 percent culpable for the incident and hand down a $16 million verdict in the suit brought by Ms. Davis and her relatives; joint and several liability should do the rest. (“Verdicts and Settlements”, New York Law Journal, Jan. 28, not online).
February 19-21 – Harassment-law roundup. A new product called Disappearing Email is set to launch next month which automatically “shreds” and destroys email after a certain length of time as determined by company policy; the target market is companies worried that internal emails will be used against them by lawyers in harassment or other types of litigation. (“Email’s Vanishing Act”, Wired News, Feb. 7). Meanwhile, the Industry Standard takes a look at the widely publicized sexual harassment lawsuits filed by two employees against Juno, the Internet start-up. (Susan Orenstein, “What happened at Juno”, The Standard, Feb. 7). And at Intellectual Capital, reader discussion is in progress about Joan Kennedy Taylor’s book What to Do When You Don’t Want to Call the Cops: A Non-Adversarial Approach to Sexual Harassment, excerpted briefly in this space in November. (Jaime Sneider, “Above the Law?”, Intellectual Capital, Feb. 17).
February 19-21 – Welcome Lucianne.com, Crikey.com.au readers. Readers of Lucianne.com, the popular news forum presided over by Zippergate stalwart Lucianne Goldberg, recently discussed our commentaries “Bill Clinton among friendly crowd” and “Thanks for the memories” (links now dead). And an influx of visitors from Australia over the last week or so owes much to our inclusion as a link on Crikey.com.au, an irreverent investigative site that covers media, government and business down under.
February 19-21 – “Motorists speed more, but fewer die”. When Congress did away with the national 55-mph highway speed limit, opponents called it a “killer bill”; Advocates for Highway and Auto Safety — a be-safe-or-else coalition backed by both insurance companies and the trial-lawyer-allied Ralph Nader complex — predicted that the move “will be the death knell for thousands of American men, women and children“. But in fact “the national crash fatality rate, determined by the number of fatalities for every 100 million vehicle miles driven, has fallen by 11 percent since the United States lifted the national 55 mph speed limit in 1995″. (Tom Greenwood, “Motorists speed more, but fewer die”, Detroit News, Jan. 4; Brock Yates, “Just when you thought bigger was better”, Car and Driver, Oct. 1999, reprinted at Steve Hartford site).
February 19-21 – Update: Cayuga land claim. A Syracuse, N.Y. jury has recommended an amount of $36.9 million as appropriate compensation to the Cayuga Indian tribe for its sale of 64,015 acres to the state of New York two centuries ago. The sum was far below the $335 million sought by the Cayugas and below even the $51 million recommended by appraisers for the state, which was the defendant in the suit. Cayuga attorney Martin Gold lashed out at the ruling as “ridiculous…Apparently nine people didn’t pay attention to the evidence.” The 1795 and 1807 sales were recently declared invalid because they were not approved by the federal government, as required by law (see Feb. 1 commentary). Jim Memmott, “Verdict saddens Cayugas”, Rochester Democrat & Chronicle, Feb. 18.)
February 18 – Bush unveils legal reform plan. On the campaign trail last week, Texas Gov. George W. Bush unveiled proposals for reforming the civil justice system if he’s elected President. (Disclosure: this site’s editor has served as an unpaid advisor to the Bush campaign on the issue.) The proposals include: tougher sanctions for meritless lawsuits and motions; a “Fair Settlement Rule” under which parties who reject a bona fide settlement offer and then do worse at trial will be liable for the reasonable legal fees their opponents expended after the offer; curbs on lawyers’ power to steer actions into courts they view as favorable (“forum-shopping”); a “Client’s Bill of Rights” prescribing more disclosure about fees to be charged and enhanced supervision by federal courts of fees charged in the cases they oversee; and controls on unreasonable fees charged by lawyers representing government bodies. (“Bush proposes higher standards for lawyers”, Reuters/FindLaw, Feb. 9; campaign news release, Feb. 9; fact sheets on tort reform and on Texas record (PDF format); Morton Kondracke, “Bush’s Trial with the Trial Lawyers”, June 28, 1999 (reprinted at Citizens Against Lawsuit Abuse Houston site)).
February 18 – I see riches in your future. ABC has confirmed that it has paid $933,992 to an employee of the Psychic Services Network who sued the network over its 1993 airing of a secretly made videotape on its newsmagazine “PrimeTime Live”. Mark Sanders charged that ABC had ruined his reputation by covertly videotaping him and his colleagues working the telephones in a show aimed at depicting the call-a-psychic business as “a scam and illegitimate”. In 1994 a jury awarded Sanders $335,000 in compensatory and $300,000 in punitive damages, and the total sum owing has mounted through the accumulation of interest as ABC has pursued unsuccessful appeals. (Yahoo/AP, “ABC Pays Damages to Psychic Network”, Feb. 15, link now dead).
February 18 – Lawsuit reform helps Michigan taxpayers. The state’s payout in judgments and settlements, which had been running around $25 to $35 million a year, declined to $12.7 million last year. Democratic state attorney general Jennifer Granholm credited skillful legal work and good economic times for the favorable trend but also, significantly, acknowledged the helpful role of 1995 reforms which bolstered sovereign immunity and curbed the application of joint and several liability, the deep-pocket doctrine by which a defendant one percent responsible for an accident can be made to pay all the damages. (“Tort reform pays off” (editorial), Detroit News, Feb. 2).
February 18 – The trouble with bounty-hunting. “Porcupines [in New England] have never enjoyed the popular status of, say, the armadillo in Texas. They were particularly unpopular earlier in this century, when they returned to reforested areas ahead of their natural predators and consequently boomed. John Barrows, a district forester with the state of Vermont, recalls that Vermont used to offer a bounty of fifty cents for a set of porcupine ears, and in 1952 paid out $90,000. Remarkably, it still had a porcupine problem in 1953 and for several decades thereafter. Barrows explains: ‘There was a time when we thought the state had a lot of money, and a trapper who knew how to use his knife could get ten or twelve sets of ears out of a single animal.’” — from Richard Conniff, Every Creeping Thing: True Tales of Faintly Repulsive Wildlife (Henry Holt & Co., 1998).
February 17 – And so now everybody’s happy. “Last month, the Supreme Court decided not to review an appeals court decision that temporary Microsoft workers must receive the same retirement benefits, including discounted stock, as regular employees…. Already, some companies have reacted to the original Microsoft decision by getting rid of temporary workers before they can be considered permanent, lawyers said.” (David Leonhardt, “Who’s the Boss? Who’s a Worker?”, New York Times, Feb. 16) (& see letters, Dec. 20).
February 17 – Barrel pointing backward. “President Clinton enthusiastically backs the current wave of municipal lawsuits against the gun industry”, yet he’s also proposed giving $10 million in taxpayer money to some of the same manufacturers for the sake of developing so-called smart guns. Some litigation advocates are upset about the inconsistency, including Kristen Rand of the Violence Policy Center, who says: “It makes the lawsuits seem like a charade.” Yes, now she’s getting the idea.
The litigation onslaught may in fact have retarded progress toward smart-gun technology. Colt’s Manufacturing Co. had been at work on a smart-gun venture but folded its effort late last year; the Wall Street Journal’s Paul Barrett quotes John Rigas, a partner in the company’s controlling owner, the New York investment group Zilkha & Co., as saying that “potential punitive damages scared away needed outside investors”. (Paul M. Barrett, “‘Smart’ Guns Trigger a Debate”, Wall Street Journal, Jan. 27 (requires online subscription).)
February 17 – Welcome Kausfiles.com readers. Mickey Kaus’s commentaries on politics, journalism and social policy, among the high points of Slate, are also collected on this freestanding website. He’s just added new features including a desktop-style assortment of columnist and policy links. Check out the ultrabrief descriptions (for this page: “Daily horror stories”.)
February 17 – The fine print. The Boston Globe has backed off at least temporarily from a short-lived effort to save money, trees and ink by reducing the type size of its articles, thus squeezing more onto a page. Readers had protested vociferously, and at least one threatened to sue under the Americans with Disabilities Act: “The Globe cannot simply refuse to serve readers with aging eyes and poor eyesight.” (Jack Thomas, “The incredible shrinking type irks Globe readers”, Boston Globe, Feb. 14, link now dead (via Romenesko, Media News)).
February 17 – Let your fingers do the suing. The Yellow Pages contain many entries for businesses like the A-ABC Locksmith Service and AAA Affordable Auto Glass, and now you can add to that list of eagerly promotional trade monickers the AAAA Legal Center, run by Detroit-area trial lawyer Robert D. Mouradian, though its website has not been updated since April 1999 and could use a spell-check.
February 16 – Welcome Fox News Channel visitors. Our editor was interviewed for a story on how the Americans with Disabilities Act may require the redesign of websites so as to provide “reasonable accommodation” to blind, deaf and other handicapped users. For more details, see his prepared statement presented to a House Judiciary Committee hearing last week; our Dec. 21 commentary, and our subpages on disabled-rights law and Internet law.
February 16 – Update: Connecticut tobacco-fee bonanza. Not long after Connecticut attorney general Richard Blumenthal said last winter he had “no idea” whether law firms were going to rake in excessive fees representing the state in the tobacco settlement (see Feb. 3 commentary), a total fee haul was announced: a handsome $65 million. As previously reported in this space, the three lucky firms selected to handle the in-state work included Blumenthal’s own former law firm of Silver, Golub & Teitell of Stamford. The other two firms? One was Carmody & Torrance of Waterbury, whose managing partner James K. Robertson is personal counsel and counselor to the state’s governor, John Rowland. And the third was Stamford’s Emmett & Glander, whose name partner, Kathryn Emmett, happens to be married to partner David S. Golub of Silver, Golub & Teitell. “I know how it [looks]“, concedes Golub.
A number of other firms that wanted to be considered for the work were cut out; Robert Reardon of New London, a former president of the Connecticut Trial Lawyers Association, couldn’t get even get in the door for a meeting. Though Attorney General Blumenthal was later to disclaim knowledge of the firms’ fee entitlements, the Connecticut Law Tribune reports that he “was extraordinarily active in the litigation and settlement — more so than any other attorney general”. (Thomas Scheffey, “Winning the $65 Million Gamble”, Connecticut Law Tribune, Dec. 8; “After the Lion’s Share”, Feb. 5).
February 16 – Disabled test-accommodation roundup. Salon is the latest to notice this issue. While the share of students getting extra time on the SAT — typically an extra hour and a half on a three-hour exam — is still only 1.9 percent nationwide, “the number jumps to nearly 10 percent in some New England prep schools and wealthy districts in California.” Michael Scott Moore, “Buying Time”, Salon, Feb. 9). AP reports that the percentage of college freshmen describing themselves as disabled more than tripled between 1978 and 1998, from less than 3 percent to 9.4 percent. Forty-one percent of the disabled freshmen in 1998 identified their impediment as a learning disability, up from 15 percent ten years earlier. More chances to attend college for kids who’d have been classified as disabled all along — or just more students being classified as disabled? (“Learning Disabled Advance in School”, AP/FindLaw, Feb. 10). In a case closely watched by college officials, a Boston College senior with attention deficit disorder and a 3.35 grade point average “has sued the Law School Admissions Council, charging the national testing giant violated her rights by denying her extra time to take the all-important exam.” (Andrea Estes, “BC student sues test firm: Wants more time for law school exam”, Boston Herald, Jan. 12).
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