- Eugene Volokh on civil liberties problems with the Violence Against Women Act reauthorization [first, second posts]
- More coverage of the “N.C. vs. diet advice blogger” story we noted in February [Sara Burrows/Carolina Journal, Brian Doherty/Reason]
- A case for an administrative alternative to asbestos litigation [Michael Hiltzik, L.A. Times] More on administered compensation funds [Adam Zimmerman, Prawfs]
- Scuttle-the-boat insurance fraud scheme goes amusingly wrong [Lowering the Bar]
- “To lower prices at the pump, abolish the boutique fuel regime” [Steven Hayward, Weekly Standard]
- Supreme Court denies certiorari in NYC rent control case [Trevor Burrus, Cato; earlier here and here] But it does grant cert in Cato-backed property rights action [Ark. Fish & Game v. U.S.; Shapiro]
- New Zealand’s innovative public policies: left, right or something else? [Eric Crampton] Let’s be more like the Scandinavian countries [Tim Worstall, UK] Don’t forget loser-pays…
In the wake of the September 11 bombings, Congress established a Victims Compensation Fund and limited liability for a number of deep-pockets who were also victimized by the attacks. A number of academics questioned that it was even conceivable that innocent third parties could be held liable for a terrorist attack. Anthony J. Sebok, What’s Law Got to Do With It? Designing Compensation Schemes in the Shadow of the Tort System, 53 DEPAUL L. REV. 901, 917 (2003); RICHARD A. NAGAREDA, MASS TORTS IN A WORLD OF SETTLEMENT 104 (2007); Peter Schuck, Special Dispensation, AM. LAWYER (June 2004); see also LLOYD DIXON AND RACHEL KAGANOFF STERN, COMPENSATION FOR LOSSES FROM THE 9/11 ATTACKS (RAND Institute for Civil Justice 2004).
Overlawyered readers knew better, because they had seen the Port Authority get socked with a $1.8 billion verdict (Oct. 27, 2005; Oct. 29, 2005; Nov. 2, 2005) after being held 68% responsible for the deliberate bombing of the World Trade Center by terrorists in 1993. The Port Authority appealed the absurd ruling, but the Appellate Division has affirmed unanimously (via) since, after all, such absurdities are central to the modern tort regime and thus not “legal error” to abandon the centuries-old concept of intervening causation. As I noted in a related Wall Street Journal editorial, contingent-fee attorneys’ incentives are not to seek out the truth behind wrongdoing, but to construct a narrative that will hold the deepest pocket the most responsible, regardless of the effect on justice. This distortion has worked its way into popular culture; a survey of family members of September 11 decedents found that the median respondent held the terrorists only 30% responsible for losses. Gillian Hadfield, Framing the Choice between Cash and the Courthouse: Experiences with the 9/11 Victim Compensation Fund, 42 L. & SOC. R. __ (forthcoming 2008). See also my House testimony on the expansion of the 9/11 Fund.
Things I should’ve said: that a dictator did a good job in the past hardly means that a dictatorship is a good idea, even if you can reappoint the same dictator. But one can be dumbfounded by the stupidity of some questions.
“Laura Balemian, whose husband Edward J. Mardovich died in the World Trade Center, received one of the largest awards paid out by the September 11th Victim Compensation Fund: $6.7 million. But she in turn paid out what is almost certainly the highest legal fee. While the vast majority of victims were represented before the fund pro bono or for a nominal fee, Balemian paid her lawyer, Thomas J. Troiano, a one-third contingent fee, or over $2 million.” In an affidavit, 9/11 fund special master Kenneth Feinberg calls Troiano’s fee “shocking and unconscionable”, and says that fund guidelines recommend that attorney fees be kept under 5 percent of family recoveries; Troiano, however, says Mrs. Balemian knew what she was getting into and that his efforts produced outstanding results. (Anthony Lin, “Attorney’s $2 Million 9/11 Fee Called ‘Shocking, Unconscionable'”, New York Law Journal, Aug. 29; Alfonso A. Castillo, “9/11 widow battles over attorney’s fee”, Newsday, Sept. 1; MyShingle, Aug. 28).
Update: Story also covered in this American Justice Partnership publication (PDF).
Next Thursday, Jan. 13, the Manhattan Institute’s Center for Legal Policy is giving a half-day symposium in Washington, D.C. on “The 9/11 Victim Compensation Fund: Successes, Failures, and Lessons for Tort Reform”. The event is at the Hyatt Regency on Capitol Hill and runs from 8:30 a.m. to 2 p.m. (agenda and registration). I’ll be on the second of the day’s two panels with very brief remarks responding to the primary paper(s). Among notable panelists are Yale Law’s Peter Schuck and Robert Reville, director of the Rand Institute for Civil Justice; Kenneth Feinberg, Special Master of the 9/11 Fund, will deliver the luncheon address.
Despite much hue and cry about the September 11 Victim Compensation Fund (see Dec. 29, 2003, almost immediately below, and Apr. 2-3, 2003, Sept. 9-10, 2002, Oct. 26-28, 2001), more than 95 percent of eligible families ultimately opted to file claims with the fund rather than going to court. (Jennifer Barrett, “A Dramatic Success,” Newsweek, Dec. 23 (via msnbc.com)).
More than 6,450 claims were received by the December 22nd midnight deadline, with about 70 of the remaining 150 eligible families having decided to pursue a lawsuit instead of filing with the fund. Other families have chosen to forego both a lawsuit and the administrative fund, saying others need the money more than they do. “None of us were dependent on” our sister, one such family member explained, “and none of us wanted to gain from her death.” (Stephanie Saul, “Foregoing the WTC Victims’ Fund,” NYNewsday, Dec. 23).
September 9-10 — Mississippi doctors win a round. “[L]egislators passed new restrictions today [Friday] on lawsuits against doctors in Mississippi, the latest spasm in a national convulsion over sharply increasing medical malpractice insurance rates.” (Adam Nossiter, “Miss. Lawmakers Set Limits on Medical Lawsuits”, Washington Post, Sept. 7). “Mississippi’s legislature is the third in less than a year to be called into special session over the issue, an ‘extraordinary trend,’ said Cheye Calvo, an insurance specialist at the National Conference of State Legislatures.” The fate of the legislation remains uncertain, however. (Patrice Sawyer, “Plenty of talk, but no action”, Jackson Clarion-Ledger, Sept. 8).
It’s far too early for doctors to jubilate, anyway: if the measure makes it to into law, the trial lawyers will predictably commence efforts to convince the Mississippi Supreme Court to strike it down as unconstitutional, as they have gotten other state courts to do with many liability reforms of the past. (e.g. Ohio: Aug. 18, 1999). Some expect the re-election bid this fall of state supreme court justice Charles McRae, to serve as a kind of referendum on whether the court’s pro-plaintiff tilt has gone too far. McRae, a past president of the Mississippi Trial Lawyers Association, is the author of some of the court’s decisions most hostile to defendants. (Bobby Harrison, “McRae a lightning rod for business groups”, Daily Journal, Jul. 23; Jimmie E. Gates, Clarion-Ledger, Jul.29, Ben Bryant, Biloxi Sun-Herald, Aug. 15). (DURABLE LINK)
September 9-10 — Hiring apple pickers = racketeering. “A federal appellate court has revived a racketeering lawsuit filed by Washington state farm workers who claim apple growers and packers intentionally hired undocumented workers to depress wages. The suit says that Zirkle Fruit Co. and Matson Fruit Co., both based in Washington state, created an employment agency to recruit illegal immigrants, mainly from Mexico, knowing that many of the workers were providing false documentation. At the same time, the suit says, the companies rejected job candidates known to be legal aliens or U.S. residents.” Which naturally leads to the question: should those who knowingly hire undocumented gardeners, nannies and house painters be deemed racketeers as well? The pending suit demands monetary damages from the apple growers and packers, and is being pressed by superrich Seattle attorney Steve Berman, well known to readers of this column (Aug. 21, 1999; Oct. 16, 1999; Jan. 19, 2000; May 11, 2001). (“Racketeering suit vs. apple growers, packers is revived”, Seattle Post-Intelligencer, Sept. 6). (DURABLE LINK)
September 9-10 — Free legal services! (except when they aren’t). The Association of Trial Lawyers of America has derived great publicity mileage by saying it will help victims of last year’s terrorist attacks obtain legal representation for free, but it and its members have also worked quietly behind the scenes to defeat legislation that would in any way curb the amounts that lawyers could keep for themselves from 9/11 awards. “Senator [Charles] Schumer [D-N.Y.] is drafting legislation that would let attorneys collect between 8 and 12% of a family’s payout from the September 11th Victim Compensation Fund, a victims’ advocate said. The Schumer plan is a compromise between Senator [Don] Nickles [R-Okla.], who did not want lawyers to take any money from the fund, and the trial lawyers themselves, who want no limit on their contingency fees.” (Timothy Starks, “Schumer Pushes Fees”, New York Sun, Aug. 5). (DURABLE LINK)
September 9-10 — Ignominious wind-down to Norplant campaign. At one time, trial lawyers must have had high hopes that their campaign against the contraceptive Norplant, which is administered in the form of under-the-skin silicone arm implants, would bring down drugmaker Wyeth the way their breast implant campaign bankrupted silicone maker Dow Corning. The litigation dragged on for years and cannot have been encouraging to firms pursuing contraceptive research, but it now appears to be winding down with a whimper, reports Texas Lawyer. In an August 14 ruling, “a federal judge in Texas granted partial summary judgment to the makers of Norplant and dismissed the claims of most of the remaining 3,000 women, leaving only 10 plaintiffs to pursue their cases.” Earlier, a large class of plaintiffs “settled out of court for a payment of $1,500 each”, a paltry sum by the standards of what must originally have been expected. “Notably,” wrote U.S. District Judge Richard Schell, “in the three years since Defendants filed this motion for partial summary judgment, Plaintiffs have not produced a shred of evidence or expert testimony that supports an association between Norplant and” such conditions as polyarthralgia, fibromyalgia and rheumatoid arthritis. (Pamela Manson, “Federal Judge Dismisses Norplant Damage Claims”, Texas Lawyer, Aug. 27)(see Aug. 11 and Aug. 27, 1999). (DURABLE LINK)
September 6-8 — “Doctors hope fines will curb frivolous lawsuits”. Lawyers are seldom made to pay any tangible price when they wrongly accuse a doctor, but South Texas doctors are hoping District Judge Ronald M. Yeager of Corpus Christi will set a precedent by granting a motion for $50,000 sanctions against local attorney Thomas J. Henry for filing false claims against Dr. Steven Smith and Dr. Robert Low. “The case Henry originally brought to court alleged that the doctors had prescribed the drug Propulsid to Henry White, a patient at Northbay who eventually died of complications from a stroke. Propulsid is an acid reflux medicine that has been taken off the market. According to court documents, neither of the doctors had issued the prescription. Henry, who declined comment on the fines, filed a notice of appeal Friday. … Low said he will never forget the embarrassment the case caused and hopes the fines will deter similar suits in the future. … ‘It takes time away from your practice and these things can be emotionally devastating to a physician,” Low said. Attorney Henry is a high-profile local advertiser: “Many in the community know him by the prominent ad on the back of the local phonebook”. (Jesse Bogan, San Antonio Express-News, Aug. 5). (DURABLE LINK)
September 6-8 — Slippery slope on terrorism compensation. Just as skeptics predicted would happen, survivors of earlier terrorist attacks and outrages are looking at the generous payments forthcoming from the taxpayer-staked 9/11 compensation fund and asking: why shouldn’t we get retroactive compensation for our losses too? And so legislators are busily introducing bills to compensate victims of the Oklahoma City bombing, the first World Trade Center bombing, Pan Am Flight 103, the sailors on the U.S.S. Cole, and others. (Michael Freedman, “Compensatory Damages”, Forbes.com, Sept. 16)(reg). (DURABLE LINK)
September 6-8 — Update: government can be sued for not warning of Yellowstone thermal-pool dangers. “A Wyoming federal judge has refused to dismiss a lawsuit brought by a Utah teenager who was severely burned when he and two others jumped into a thermal pool in Yellowstone National Park. Assistant U.S. Attorney Thomas Roberts had asked the U.S. District Court in Cheyenne to reject Lance Buchi’s complaint, which alleges the federal government failed to adequately warn of dangers posed by thermal pools in the park.” (see Jun. 26, 2001) (“Judge won’t dismiss Yellowstone burn victim’s lawsuit”, AP/Billings Gazette, Aug. 30)
September 5 — “Disabled Entitled to Same Sight Line in Theaters”. Departing from decisions handed down by other courts, a federal judge in Albany, N.Y. “has held that a movie theater providing handicapped patrons with an unobstructed sight line to the screen has not necessarily complied with the Americans with Disabilities Act. Rather, U.S. District Judge David N. Hurd found, the law implicitly requires a qualitative element demanding an analysis into whether the lines of sight available to ambulatory and wheelchair customers are comparable.” Although Judge Hurd held that it might constitute an ADA violation for wheelchair-using patrons to be given less desirable viewing angles, he found that Hoyts Theaters had sufficiently complied with the mandate in the case at hand. (John Caher, New York Law Journal, Aug. 28). (DURABLE LINK)
September 5 — Missouri: a judge speaks out. Ralph Voss, recently retired from the Missouri bench, has launched a website that minces no words about what he sees as wrong with the local civil courts. “My story begins around 1985. By that time it was possible to see major inroads the plaintiffs’ lawyers were making in asserting control over the civil justice system. They exercised tremendous influence in the Missouri legislature, but also in the judiciary. Their influence came from their money and their money came in large part from huge and relatively easily-obtained victories in the courts of St. Louis and Kansas City. … The contingent fee has gotten so out of hand something needs to be done. I am told by one judge that 50 and 60 percent contingent fees in Kansas City are not uncommon. This same judge reports that the fee comes on top of charging the client for the expenses of depositions taken at 5-star resorts.” There’s much more, including critiques of forum-shopping, of lawyers who pocket big contingent fees on sure-thing insurance settlements, and of some fellow judges whom he names elsewhere on the site as (in his view) undeserving of re-election this November. (RalphVoss.com, “Opening Statement”, Aug. 16). (DURABLE LINK)
September 5 — A Gotham lawyer’s complaint. Outside the courthouse in Brooklyn, the New York Press‘s Johnny Dwyer transcribes the gripes of a local personal injury attorney who “only wants his first name used — Dan”. Not only are verdicts down and settlements harder to get in the formerly bounteous borough, but clients aren’t willing to accept the bad news. “Plaintiffs have a skewed view on what a case is worth. I’ve never seen a more obsessional group of people. The case becomes their whole life. And it’s the newer immigrants that are suing the most — at least in Brooklyn. …That’s become the new American dream.” (“Lawsuits: A Lawyer’s Dilemma”, New York Press, vol. 15, #36 (recent)). More: “Jane Galt” and her readers weigh in. (DURABLE LINK)
September 3-4 — By reader acclaim: “Airline sued for $5 million over lost cat”. “A couple sued Air Canada for $5 million, claiming the airline lost their tabby cat during a flight from Canada to California. … ‘It’s not about the money,’ [Andrew] Wysotski said.” (AP/CNN, Aug. 29). (DURABLE LINK)
September 3-4 — “Federal authorities say judge offered illegal payoff”. Pittsburgh: “In a meeting secretly taped by federal authorities, Allegheny County Common Pleas Judge Joseph A. Jaffe told a lawyer how he could use his judicial powers to pay back $13,000 in cash that the lawyer had given him in an envelope.” Judge Jaffe, who is presiding over thousands of asbestos cases, “said the attorney could file 26 motions in settled asbestos cases, and he would order insurance companies to pay the lawyer’s firm $500 per motion in legal fees, or $13,000.” He also said that by holding a mass settlement conference he could “put pressure on defendants to favorably settle the claims. …Jaffe evidently did not know that the lawyer, Joel Persky, was cooperating with federal investigators after receiving what he considered an improper request for money from the judge.” Persky’s firm, Goldberg, Persky, Jennings & White, represents thousands of asbestos complainants. Who says plaintiff’s attorneys don’t sometimes figure as heroes in these chronicles? (Marylynne Pitz, Pittsburgh Post-Gazette, Aug. 29). Update: Mar. 25-30, 2003. (DURABLE LINK)
September 3-4 — “Crime pays for teenage lout”. Australia: In a decision that “stunned the legal community and victim’s groups”, a “teenager who broke into a nightclub was yesterday awarded nearly $50,000 damages for injuries he received in an attack by the publican. Joshua Fox was a ‘grossly stupid, totally irresponsible drunken lout’, according to a court assessment. But a [New South Wales] judge said the force used against him was excessive. Mr. Fox’s mother was awarded $18,000 for nervous shock upon seeing her son’s injuries.” (Steve Gee and Patrick O’Neil, Melbourne Herald-Sun, Aug. 30). (DURABLE LINK)
September 3-4 — 2002’s least surprising headline. [Sen. John] “Edwards has been on a fundraising frenzy over the last three months, raising nearly $2 million in ‘soft money’ — the type of donation soon to be banned, with three-quarters of it coming from trial lawyers.” (Jim VandeHei, “Trial Lawyers Fund Edwards”, Washington Post, Sept. 3). (DURABLE LINK)
September 3-4 — A breast-cancer myth. For years many have held it as an article of faith that synthetic chemicals in the environment are an important contributor to American cancer rates, the best-known example being the supposedly inexplicably high rates of breast cancer occurring on New York’s Long Island. But as a new $8 million study from National Cancer Institute researchers concludes, science has not found evidence to document the thesis. (“Federal study shows no link between pollution and breast cancer”, AP/MedLine, Aug. 6; Gina Kolata, “Looking for the Link”, New York Times, Aug. 11; “Epidemic That Wasn’t”, Aug. 29)(both reg)). See Ronald Bailey, “Cluster Bomb”, Reason Online, Aug. 14. This weekend, in a perhaps surprising development, the New York Times‘s editorialists joined the chorus (“Breast Cancer Mythology on Long Island”, Aug. 31)(reg).
Who should be embarrassed by these developments? Well, for starters, Sen. Hillary Rodham Clinton (Margaret Costello, “Elmirans to testify about cancer”, Elmira (N.Y.) Star-Gazette, June 11, 2001); Ms. magazine (Sabrina McCormick, “Breast Cancer Activism”, Summer); activist groups like the Breast Cancer Fund and the Nader-orbit New York Public Interest Research Group (Stony Brook chapter). And perhaps more than any other well-known group, the Sierra Club, which notwithstanding its sometimes warm-huggy image has published spectacularly wrongheaded and irresponsible coverage of the issue (Sharon Batt & Liza Gross, “Cancer, Inc.”, Sierra Magazine, Sept./Oct. 1999). For similar myths about “cancer alley” in Louisiana, see Nov. 8, 2000. (DURABLE LINK)
September 20-22 — How sharper than a serpent’s tooth it is/To have a precociously musical child. “James Brown’s daughters have filed a federal lawsuit against the Godfather of Soul, seeking more than $1 million in back royalties and damages for 25 songs they say they co-wrote…. Even though they were children when the songs were written – 3 and 6 when ‘Get Up Offa That Thing’ was a hit in 1976 – Brown’s daughters helped write them, said their attorney, Gregory Reed.” (“Singer James Brown Sued by Daughters”, AP/Milwaukee Journal Sentinel, Sept. 18). (DURABLE LINK)
September 20-22 — “Patient pays price of suing over cold”. Salutary effects of loser-pays, cont’d: “A patient who claimed £227 damages from his doctor, insisting that she had given him her cold during an examination, was ordered to pay almost £1,000 in costs yesterday after his case was thrown out by a court. Trevor Perry, 47, sued Dr Helen Young for personal injury, stating that he went down with a sore throat, runny nose and a headache after a consultation with her when she had a cold.” (Stewart Payne, “Patient pays price of suing over cold”, Daily Telegraph (U.K.), Sept. 19). And don’t miss the very curious addendum to the case on the question of why Mr. Perry was observed running from the court with a jacket over his head (“The Broadsheets: Cold comfort”, Anorak, Sept. 19). (DURABLE LINK)
September 20-22 —Times on 9/11 fund. The New York Times editorially defends the federal 9/11 compensation fund from charges that its awards are inadequate in a way “especially prejudicial to high-income families”, who may be offered only a few million dollars of taxpayers’ money each. It is entirely legitimate, the paper believes, to seek to avoid “extravagant awards at the top”. We might add that if top-earning families want to feel secure in their living standards in case of disaster, the logical (and socially desirable) course is for them to make provision in advance through privately purchased insurance — which we suspect most of the higher-ups at places like Cantor Fitzgerald did in fact have in place. (“The Perils of Valuing Lives” (editorial), New York Times, Sept. 19). (DURABLE LINK)
September 18-19 — Claim: docs should have done more to help woman quit smoking and lose weight. “A Wilkes-Barre woman is suing several doctors at the Department of Veterans Affairs Medical Center, saying the physicians did not do enough to assist her in making life changes — including quitting smoking and losing weight — that might have prevented a debilitating heart attack she suffered.” Kathleen Ann McCormick’s suit “says the physicians knew she had multiple risk factors to develop heart disease” but dismissed her symptoms as “basically normal and non-life threatening” and failed to put her on aggressive anti-cholesterol medication, as well as failing to help her with the smoking and weight issues. (Terrie Morgan-Besecker, “Woman suing VA doctors”, Wilkes-Barre (Pa.) Times-Leader, Sept. 11). (DURABLE LINK)
September 18-19 — Voltaire spinning in grave. If you disagree with what someone says, but would defend to the death his right to say it, chances are you aren’t running things in today’s France. Prominent French author Michel Houllebecq (pronounced “Wellbeck”) went on trial this week for “inciting racial hatred” on the grounds that he had aimed contemptuous comments at Islam. The case, which evokes parallels with that of author Salman Rushdie, is “being brought by the largest mosques in Paris and Lyon, the National Federation of French Muslims (FNMN) and the World Islamic League. France’s Human Rights League has also joined them, saying that Mr Houellebecq’s comments amount to ‘Islamophobia'” (see Aug. 23-25) (Charles Bremner, “I attack … I insult”, The Times (London), Sept. 18; “French author denies racial hatred”, BBC, Sept. 17). More: Christopher Hitchens on the case (“The stupidest religion”, Free Inquiry, v. 21, #4). Update Oct. 25-27: Houellebecq acquitted. (DURABLE LINK)
September 18-19 — Canada: “Woman freezes, sues city, cabbie”. “A Winnipeg woman who nearly froze to death after a night of drinking is suing the city, emergency personnel and the taxi driver who dropped her at home.” Emergency workers left Kim Simon at her residence but “she was later found outside with her pants pulled down, her winter jacket open and a cut on her lip. The woman claims that emergency personnel and the taxi driver should have made sure Simon was safely inside her house before leaving.” (Canadian Press/Canada.com, Sept. 16). (DURABLE LINK)
September 18-19 — Mississippi: eyeing the exits. Washington Mutual, the giant lender and the nation’s largest thrift institution, “is in the process of suspending all its lending channels in the state of Mississippi due to litigation risk and other factors. ‘We are evaluating the litigation environment and business climate in the state,’ WaMu senior vice president and associate general counsel Jim Garner told MortgageWire. ‘That is why we are suspending loan originations.'” Last year a Mississippi jury hit one of the company’s subsidiaries with a $71 million verdict. (Origination News — will scroll off site’s front page soon). (DURABLE LINK)
September 18-19 — AVweb case and chatroom liability. Eugene Volokh (his site) comments regarding the litigation referenced below: “Incidentally, not supervising one’s chat room is *not* actionable, even if the chatters make libelous statements and you could have stepped in to stop them; that’s what 47 U.S.C. sec. 230 says, see also Zeran v. America Online (4th Cir.) (both available on Findlaw).” See also ChillingEffects.org, Mar. 8; summary of Zeran case, TechLawJournal. (DURABLE LINK)
September 16-17 — Free speech & web litigation: the theory…. Los Angeles Times columnist Norah Vincent, the target of a remarkably silly recent smear (summarized and refuted by, among others, Stuart Buck, Juan Non-Volokh and Megan McArdle) got so angry at her online attackers that she wondered aloud whether she should think of suing them for defamation. Our editor wrote in at her suggestion (Sept. 13) to offer some reasons why, no, she shouldn’t. (DURABLE LINK)
September 16-17 — Right to break workplace rules and then return. This summer the Ninth Circuit ruled that it was an unlawful violation of the Americans with Disabilities Act for a company to follow an otherwise neutral policy barring the rehire of employees who had been terminated (or resigned in lieu of termination) over violations of company rules. In the case at hand, an employee had resigned after testing positive for cocaine, had completed a rehabilitation program, and now wanted to return to the company. Although Hughes Missiles Systems’ rule did not bar the hiring of rehabilitated drug users as such, the court nonetheless ruled that “Hughes’ unwritten policy against rehiring former employees who were terminated for any violation of its misconduct rules, although not unlawful on its face, violates the ADA as applied to former drug addicts whose only work-related offense was testing positive because of their addiction. If Hernandez is in fact no longer using drugs and has been successfully rehabilitated, he may not be denied re-employment simply because of his past record of drug addiction.” (Hernandez v. Hughes Missiles Systems, No. 01-15512, June 11, 2002, write-up at Jackson Lewis site). Update Dec. 13, 2003: Supreme Court rules in favor of employer. (DURABLE LINK)
September 16-17 — Dave Barry on tobacco settlement, round III. Okay, maybe it’s easy to satirize (rounds I and II), but he still does it so well. “The underlying moral principle of these lawsuits was: ‘You are knowingly selling a product that kills tens of thousands of our citizens each year. We want a piece of that action!'” (“In War On Tobacco, money goes up in smoke”, Miami Herald, Sept. 15) (DURABLE LINK)
September 13-15 — Patriotic, or promotional? Mickey Kaus nominates this “Patriot Troll” and this “Twin Towers handbag” (appears as popup ad when link is clicked) as among the tackiest commercial tie-ins to arise from 9/11. We might also call to his attention this billboard from a personal injury law firm in Schenectady, New York (photographed by reader Steve Furlong) which isn’t going to win prizes for either taste or subtlety. (DURABLE LINK)
September 13-15 — “Epileptic ordered to pay £3,500 for contorted face”. “A man who suffers from epilepsy has been ordered to pay compensation to a student who was upset by his contorted face during a seizure. In a case described by an epilepsy charity as ‘like something you would see on the Ally McBeal show’, Edwin Young has been told to pay £3,500 to Yvonne Rennie for the mild post-traumatic stress that she suffered. Mrs Rennie sued after Mr Young suffered an epileptic fit while driving four years ago and crashed into her car at traffic lights in Perth.” In addition to awarding Mrs. Rennie £1,500 for slight personal injuries and £1,000 for a fear of driving that she had developed, the magistrate accepted that she had suffered emotional injuries from observing the contorted look on Mr. Young’s face during his fit, which made her think he was going to die. “Epilepsy Action Scotland described the case as ‘bizarre’.” (Auslan Cramb, Daily Telegraph (U.K.), Sept. 9).
Addendum: one of our less sympathetic readers calls to our attention this Sept. 13-dated press release and article from Epilepsy Action Scotland (EAS), describes it as proving that the above report is “not true”, and chides us for not referencing it in our original post. To begin with a minor housekeeping point, this reader is apparently unaware that items on this site dated “Sept. 13-15” will in most instances have been posted in the final hours of Sept. 12, so that a fair bit of clairvoyance would be required to anticipate the contents of a press release issued the next day (even in Scotland, which is a few time zones ahead).
More substantively, although it may well be that other press reports did misstate the Rennie/Young case, it is by no means clear that EAS is questioning the accuracy of the Daily Telegraph report linked above. Both EAS and the Telegraph (and our excerpt) make clear that the overall award arose in the context of a car crash and drew on a number of factors. EAS is at pains to emphasize that the court did not rule that “watching a seizure in itself [emphasis added] provides grounds to sue for compensation” absent some other entitlement to compensation such as a physical injury — and of course it’s a familiar practice in compensation systems to let mental injury piggyback on physical injury but not stand alone as a claim. The one interviewee quoted in the Telegraph piece as wondering aloud whether a bystander’s distress at watching a person collapse might stand alone as a damage claim was the spokesman for EAS itself (“Does this mean…?”). This makes it less surprising that the organization would four days later make a point of reassuring the public that, no, it probably doesn’t mean that.
Does Epilepsy Action Scotland, as our reader seems to think, now therefore regard the Rennie/Young case as some kind of overblown urban legend that should never have gotten play in the papers, and regret that its spokesman had been so critical of the ruling before? Quite the contrary: it makes clear the extent to which it continues to be alarmed and upset at the case (“we have forcefully put across the points that this is a shocking case”), it has called for investigations and organized protests, and it “has offered its full support if [Mr. Young] decides to pursue the matter” on appeal. Nothing inaccurate in our post that we can see. (DURABLE LINK)
September 13-15 — We have competition! Or at least sorta-kinda competition, from Colorado humorist Randy Cassingham. But the more the merrier, say we. (DURABLE LINK)
September 12 — Personal responsibility roundup. New York attorney Samuel Hirsch, who made big headlines a few weeks ago by filing a lawsuit on behalf of an overweight man against fast-food chains, has now added another car to the train in the form of a suit on behalf of several obese teens who “say the restaurant chain used marketing practices such as toy and value meal promotions to entice its patrons to eat the food.” (No! Not value meals!) “Mr. Hirsch said his clients ate at McDonald’s almost every day for at least five years. One teenager, who is 5-foot-9-inches tall, now weighs 270 pounds; another, who is 5-foot-3-inches tall, now weighs 200. The parents of the teenagers, either unemployed or on disability, filed the lawsuit on behalf of their children.” Note to parents: those benefit checks will stretch further if you teach kids how to make sandwiches at home (Ellen Sorokin, “McDonald’s marketing cited for teens’ obesity”, Washington Times, Sept. 10). Director Tom Grey of the National Coalition Against Legalized Gambling, who has been beating the drums for years in hopes of making the wagering business the next tobacco, hopes governors and attorneys general will pile on in support of the latest lawsuit by a compulsive bettor claiming his losses were the casino’s fault for luring him in (Rod Smith, “Gambling foes hope federal lawsuit will lead casinos into tobacco industry’s fate”, Gaming Wire/Las Vegas Review-Journal, Sept. 10). The Wyoming Supreme Court has ruled that an employee who tried to commit suicide after being depressed over a work-related injury can collect workers’ compensation from his employer for the injuries inflicted by his attempt (Brierley v. Wyoming, Aug. 14). And the editorialists of Canada‘s National Post applaud Ontario judges’ refusal to follow the lead of many American courts in making party hosts legally responsible if their guests drive away drunk (“Blame drunks, not hosts” (editorial), Sept. 5). (DURABLE LINK)
September 12 — “9/11 aid bill contains giant bonus for trial lawyers”. “Sacramento — Saying that it was primarily a bill to help families of Sept. 11 victims, Gov. Gray Davis on Tuesday signed a sweeping change in California tort law backed by trial lawyers, some of his biggest contributors. In a bill signing ceremony, the Democratic governor focused on only four paragraphs of the seven-page bill that allows relatives of the terrorist attacks more time to file civil lawsuits. Davis did not mention that the bulk of the bill — which extends from one year to two the filing period for all personal injury or wrongful death lawsuits in California — is opposed by more than 80 companies and business groups. They say the measure will sharply increase their insurance and litigation costs.” (Greg Lucas and Lynda Gledhill, San Francisco Chronicle, Sept. 11). (DURABLE LINK)
September 12 — No joy in Mudville. “Saying America’s favorite pastime had become a ‘nuisance’ to a northwest Houston man, a Harris County jury awarded him more than $75,000 Tuesday. ‘I’m happy that 12 people were in full agreement,’ said plaintiff E.S. Armstrong after the verdict was read. Armstrong filed a lawsuit in December 2000 in state district court against Baseball U.S.A., claiming games played on the group’s fields adjacent to his home in the Spring Shadows subdivision are too noisy and the field lights too bright. The lawsuit also claimed that baseballs from the fields, near Sam Houston Tollway and Gessner, twice crashed through Armstrong’s bedroom window.” Baseball U.S.A., a nonprofit group, may appeal. (Dale Lezon, Houston Chronicle, Sept. 11). (DURABLE LINK)
September 11 — Never forgotten. For this site’s commentaries from a year ago, begin here with Sept. 12 items and then scroll upwards. (DURABLE LINK)
September 30 — Australia: “Blind, disabled should be able to fly”. “The physically and mentally disabled may no longer be barred from becoming pilots or air traffic controllers. Eyesight and other medical tests imposed on flight crew have been found to be in breach of anti-discrimination laws.” In the wake of the finding by the federal Attorney General’s department, lawyers for Australia’s Civil Aviation Safety Authority have urgently applied to the Human Rights and Equal Opportunity Commission to allow an exemption to the federal Sex and Disability Discrimination Acts to permit medical tests and standards for pilots, flight navigators and engineers and air traffic controllers. (Matthew Denholm, News Corp./Daily Telegraph (Australia), Sept. 27). Yes, this reads like parody, but we have a sinking feeling that it is not, since the same general issue has given rise to considerable litigation in the U.S.: see our July 1998 column and later articles on safety and disabled-rights law. (DURABLE LINK)
September 30 — “Black eye for zero tolerance”. A hearing officer has ruled in favor of Teresa Elenz, a Pensacola, Fla. honor student who says she found a bag of pills on school grounds, in the latest Pensacola-area incident to draw media attention to the harshness of zero tolerance policies. Besides nail clipper and paring knife cases, there was this: “In 1998, a 12-year-old student at Sims Middle School in Pace was expelled for possession of drugs because he briefly held a Ritalin pill. Robert Starkie held out his hand when a student on his bus asked him to take something. When he saw it was a pill, he threw it out the window.” Nationwide, about 80 percent of school districts are estimated to have zero tolerance policies. (Jenny LaCoste, Pensacola News Journal, Sept. 29; Bill Kaczor, “Pensacola honor students win zero tolerance drug ruling”, AP/Bradenton Herald, Sept. 27). (DURABLE LINK)
September 30 — George Will on litigation reform. He uses Mississippi as his jumping-off point, but his overall message is broader: “nowadays punitive damages are, as Justice Sandra Day O’Connor says, quoting a 9th U.S. Circuit opinion, ‘limited only by the ability of lawyers to string zeros together in drafting a complaint.’ … So remember the candidates who support tort reform when you vote on Nov. 5.” (Washington Post, Sept. 29) (DURABLE LINK)
September 27-29 — Judge overturns $1.3 billion tobacco fee award. Big development on the tobacco-fee front: “A New York judge threw out a $1.25 billion legal fee award to attorneys who represented California in a $206 billion settlement between 46 states and the tobacco industry, saying the amount was ‘irrational'”. The award was to the so-called Castano Group of lawyers, who didn’t actually represent California — the state’s own lawyers did that — and were in fact rivals, rather than allies, of the Scruggs-Moore team of lawyers who did manage to pull off the settlement. The Castano lawyers, however, repositioned themselves as somehow a catalyst for the national settlement and thus entitled to fees — the high point of this effort coming when they managed to obtain what was effectively a commercial endorsement from then-sitting President Bill Clinton (see Mar. 9, 2001).
Note that this was a different proceeding from the case involving the tobacco lawyers representing New York itself, discussed recently in this space, who are also finding their fees subject to unwelcome review (see Jul. 30-31). This time the courageous judge was Nicholas Figueroa of New York State Supreme Court. (Daniel Wise, “$1.3 Billion Tobacco Attorney Fee Overturned”, New York Law Journal, Sept. 27; William McQuillen, “Court Throws Out $1.25 Bln Award to California Tobacco Lawyers”, Bloomberg.com, Sept. 26). Update May 25, 2004: appeals court reverses Judge Figueroa and reinstates award. (DURABLE LINK)
September 27-29 — After our own heart. Regarding Kansas City Royals coach Tom Gamboa, who was set upon and beaten by two fans last week during a baseball game at Chicago’s Comiskey Park: “Gamboa has been contacted by several lawyers who told him he could get money from the White Sox, but the coach doesn’t plan legal action. ‘The fault is with the two people who did it,’ he said. ‘I’m not one who looks to place blame. It’s nobody’s fault but the two idiots who did it.'” (“Gamboa’s hearing impaired since attack”, AP/Sports Illustrated, Sept. 24). Update Sept. 21, 2003: not quite so much after our own heart, it turns out, AP reports that Gamboa has filed suit not only against attacker but also stadium security and drinks concessionaire. (DURABLE LINK)
September 27-29 — Fen-phen settlement abuses: the plot thickens. Lawyers for all three lead parties in the $3.75 billion fen-phen diet drug settlement — the settlement trust, the class action lead plaintiffs’ lawyers, and defendant American Home Products — are asking the federal judge in charge of the case to “order an ’emergency suspension’ of all claims processing, and to reconfigure the entire process so that all future claims of actual heart valve damage will be audited.” They say a group of plaintiffs’ lawyers, with assistance from hired doctor-experts, are engaged in “systematic abuse” of the settlement claims process and have set up what is effectively a “production line” that has resulted in gross overdiagnoses of highly compensable heart conditions in claimants. One of the hired doctors, they say, “has earned some $2.5 million during the past year reviewing 10,000 echocardiograms for a consortium of firms led by Petroff & Associates. She did all this while continuing to see up to 80 patients a week and still participating in some, if not all, of her extracurricular activities.” Money drained from the fund for exaggerated or nonexistent ailments, they note, is not available to compensate genuinely injured users of the compound. (Shannon P. Duffy, “Fen-Phen: Are Claims Exaggerated?”, The Legal Intelligencer, Sept. 26)(see Dec. 28, 2001 and Feb. 25, 2002). More: lawyes respond to allegations (“Plaintiffs’ Lawyers Strike Back in Fen-Phen Settlement Case”, Oct. 3). (DURABLE LINK)
September 27-29 — Sued over 18 cents. A collection agency went after Wendy Ehringer of Seattle with a lawsuit demanding the grand total of 18 cents — plus $311.26 in attorney’s fees and other charges. The court recognized litigation abuse when it saw it and applied the equivalent of sanctions — but now Ehringer’s lawyer is claiming to have put $7,600 worth of time into fighting the case, which is itself rather curious. (Maureen O’Hagan, “Suit over 18 cents redefines ‘small-claims’ court”, Seattle Times, Sept. 26). (DURABLE LINK)
September 25-26 — Skating first, instructions later. Edmonton, Canada: “An Alberta man who crashed on in-line skates before his instructor could teach him how to use them has won damages from the store that arranged the lessons and rented him the wheels. In a decision that expands the controversial concept of ‘duty of care,’ Justice Donald Lee of the Court of Queen’s Bench held Skier’s Sportshop of Edmonton partly liable for Robert Rozenhart’s injuries — even though Mr. Rozenhart was told to wait for his instructor before setting out.
“The judge agreed Mr. Rozenhart’s foray was ill-advised, but he found fault with a general reassurance store staff gave him that morning that in-line skating is ‘very similar’ to ice-skating. Mr. Rozenhart … and his daughter … were scheduled to meet the instructor at 10 a.m. in a nearby park, but store workers told him that his instructor was running 15 minutes late and asked him to wait. But Mr. Rozenhart struck out on his own, clad in a cycling helmet, knee-pads and wrist protectors. Only after he was coasting down a paved trail did he realize he did not know how to stop.” As he soon learned to his cost, in-line skates do not brake the same way ice skates do. Lawyers for the family-owned store plan to appeal. (Charlie Gillis, “In-line skates rental store blamed for injuries suffered by novice”, National Post, Sept. 20). On Sunday our editor discussed this and other personal responsibility cases on Peter Warren’s radio show, based at Vancouver’s CKNW and broadcast in many Canadian cities. (DURABLE LINK)
September 25-26 — Investigate, but gently. Sued if you do dept.: “For the first time since the state supreme court told corporate New Jersey to root out sexual harassers or risk huge damages, a company is to be tried on a charge that it ensnared and fired an innocent employee without a fair and thorough investigation. A Middlesex County judge ruled Aug. 30 that a supervisor who had a consensual sexual relationship with a co-worker can pursue a claim that the company violated a public-policy mandate by discharging him for harassment he never committed.” (Henry Gottlieb, “Too Good At Purging the Workplace?”, New Jersey Law Journal, Sept. 13). (DURABLE LINK)
September 25-26 — How much did you say that Indian legend was worth? Flexing their political muscle with casino revenues and major campaign contributions, “Native Americans are pushing for new laws that would give them what could amount to veto power over certain development projects (mining, housing, shopping malls, etc.) impacting what are considered historically sacred sites.” Such a bill has sailed through the California legislature and onto the desk of Gov. Gray Davis. A mining exec grouses that the Quechan Tribe “considers everything from Los Angeles to the Arizona border and up to Las Vegas sacred.” (Brad Knickerbocker, “More rights for sacred sites?”, Christian Science Monitor/Arizona Daily Sun, Sept. 4; “California Native Americans Want Law Preserving Some Land as Sacred”, FoxNews.com, Sept. 21). (DURABLE LINK)
September 25-26 —The blame for suicide. Two Connecticut teenagers commit suicide in separate incidents sixteen years apart, and in both cases parents sue police departments for failing to protect the youths from themselves. Showing that the cops messed up, however, is not enough; if the jury lacks sympathy for the parents, the case is still in trouble. (Colleen Van Tassell, “When teen suicide doesn’t pay”, New Haven Advocate, Aug. 8). (DURABLE LINK)
September 24 — Tour of the blogs. The medical weblogs have been abuzz with discussion of the malpractice crisis in recent days; see MedPundit for interesting items on whether any doctor in his or her right legal mind should be reading mammograms these days (Sept. 21); on the shamelessness with which trial lawyer apologists deny that there’s any connection between the sums paid out on malpractice claims and the insurance rates charged to doctors (Sept. 20); and on whether penicillin would have been adopted as quickly in today’s liability climate (Sept. 17). Plus much more from RangelMD (Sept. 18 and Sept. 19); MedRants (whole category); and The Bloviator (Sept. 20). Also see Sydney Smith (MedPundit), “Law and Orderlies”, TechCentralStation, Sept. 24.
Meanwhile, newly launched blog The Staffer comments on a lawsuit on behalf of four minority seniors in Massachusetts high schools challenging statewide achievement tests. (Sept. 19; see Ed Hayward, “MCAS mess: Students’ lawyers to sue state over controversial test”, Boston Herald, Sept. 19). And “Robert Musil”, normally a calm and collected sort, gets downright angry at the way some supporters of the federal Title IX sports gender-quota scheme airily dismiss the plight of male “walk-ons”, students who would like to participate in sports though they aren’t of starting-team caliber. (Sept. 22). (DURABLE LINK)
September 23 — “Greek net cafes face ruin”. Police acting under a controversial law banning all forms of computer games have closed down internet cafes around Greece, confiscating computers as evidence. “A judge in the city of Thessaloniki had earlier thrown out the first case brought under the gaming law but prosecutors have appealed against the decision and launched a new crackdown. … The Greek Government passed legislation in July outlawing all electronic or mechanical games in a bid to stamp out an illegal gambling epidemic … The bill has been widely criticised for failing to distinguish between [electronic slot machines, known in British English as “fruit machines”] and mainstream computer games such as Counter-Strike and Age of Empires.” (Daniel Howden, BBC, Sept. 20). The bill bans the playing of computer games in private as well as public places, and on electronic devices of any sort, such as personal organizers and cell phones.
MORE: Rupert Goodwins and Matt Loney, “In Greece, use a Game Boy, go to jail”, ZDNet (UK), Sept. 3; unverified English translation of the law; Nikos Kakayanis, Overclockers.com forum, Sept. 4; “Greeks fight computer game ban”, BBC, Sept. 5; Dan Farber, “Who’s gunning for Game Boy and Google?”, ZDNet, Sept. 5. (DURABLE LINK)
September 23 — “Doctors find no evidence of mold as a toxic disease”. Burgeoning litigation on stachybotris in homes has far outrun the available science, according to the Texas Medical Association’s Council on Scientific Affairs. “Mold can cause reactions in people with allergies and asthma [said allergist/immunologist Wes Stafford]. But there’s no evidence that it causes other health problems or aggravates other existing health conditions, the report said.” Some families have won multi-million-dollar lawsuits over alleged mold-related health problems, and mold claims are considered a key factor in skyrocketing homeowners’ insurance rates in Texas and other states. (Janet Elliott, Houston Chronicle, Sept. 21). And see Christopher Wanjek, “It’s Everywhere”, Washington Post, Sept. 17; RangelMD, Sept. 17 and earlier posts. (DURABLE LINK)
September 23 — Annals of zero tolerance: “No scissors allowed at ribbon-cutting ceremony at Pittsburgh airport”. After all, they’re weapons, right? Officials were reduced to tearing the ribbon. (AP/Canada.com, Sept. 20). (DURABLE LINK)
October 31 — Quote of the day. Or maybe the year: “If we sue each other, the terrorists win. We need to be united.” — Personal injury and class action lawyer Elizabeth Cabraser, regarding potential Sept. 11 lawsuits. (Quoted in Gail Diane Cox, “Voir Dire”, National Law Journal, Oct. 8, not online)
October 31 — The deportation sieve. “For starters, there is the case of Gazi Ibrahim Abu Mezer and Lafi Khalil, the two Palestinians who were arrested in July 1997 in a Brooklyn, N.Y., apartment right before they planned to blow up a subway station. Because both men were in this country illegally, the inspector general at the Justice Department issued a report relating solely to their immigration status. I won’t bore you with the whole thing, but it contains such sentences as: ‘After Mezer’s third detention in January 1997, the INS had begun formal deportation proceedings against him, but Mezer had been freed on bond, while the deportation proceedings were pending…’ Yes, ladies and gentlemen, that is how deportation works: If you are due for a hearing that may kick you out of this country, you very often are on your honor to show up for the hearing that makes it official. Shockingly, many do not. (And they sometimes just out and out lie: Mezer got out of his hearing by phoning his attorney and telling her that he was in Canada.” (Tish Durkin, “Let’s Not Bypass the Obvious in Our Quest for the Profound”, National Journal, Sept. 29). The magazine National Journal, a treasure trove of policy journalism and the home base of such columnists as Stuart Taylor, Jr. and Jonathan Rauch, is normally available to online subscribers only, but has temporarily lifted password procedures during the partial Capitol Hill shutdown to offer full web access to the public.
October 31 — Santa Claus sexist? “Shops are stocking ‘Mother Christmas’ outfits to avoid being taken to court over sex discrimination. Woolworths says it’s stocking the outfits in 800 stores to avoid problems with European gender legislation.” A spokeswoman for the European Union, however, describes as “total bunkum” the idea that selling “Father Christmas” (St. Nicholas) costumes alone might subject retailers to complaint under regulations against products reinforcing gender stereotypes. (“Shops stock Mother Christmas outfits to avoid accusations of sexism”, Ananova, Oct. 26).
October 30 — Bioterrorism preparedness. A bioterrorist incident could flood hospitals in one locality with thousands of persons in need of medical care, but an official with the American Hospital Association says that the group’s member hospitals “could be hindered in their response by federal laws, says Tom Nickels, the association’s senior vice president for federal relations. Antidumping statutes, which prohibit hospitals from transferring patients to other facilities unless the patients have been evaluated and stabilized, could undermine plans to direct patients with specific exposures to specified treatment centers. Patient-privacy regulations that will go into effect soon could complicate surveillance programs to detect an outbreak early and to notify relatives of the status of victims of an attack, he says.” (Ron Winslow, “U.S. Hospitals May Need $10 Billion to Be Prepared for Bioterror Attack,” Wall Street Journal, Oct. 29) (online subscribers only) (via NCPA Policy Digest).
October 30 — University official vs. web anonymity. “A lawyer for the authors of an anonymous Web site criticizing the University of Louisiana-Monroe is seeking to block a federal magistrate’s order to reveal his clients’ identities. … Richard Baxter, the university’s vice president for external affairs, wants the names of those behind the site Truth at ULM so he can file a defamation lawsuit. U.S. Magistrate James Kirk also ordered Homestead Technologies Inc. to provide computer logs of all people who have posted, published or provided any content to the site. The Internet site has called the university administration incompetent and accused top officials of lying.” (“Lawyer fights order to reveal identities of university critics”, AP/Freedom Forum, Oct. 24).
October 30 — “Crying wolf”. “In the approximately four and a half years since [Ontario] made record-keeping of violent crime mandatory,” writes the National Post‘s Christie Blatchford, 2,233 of 39,223 complaints of sexual assault have been shown to have been knowingly false. That amounts to more than one false accusation per day in Canada’s largest province; British Columbia reports similar rates as a share of population. The number is a “bare minimum”, since authorities have “adopted strict definitions of what comprises a false allegation.” “Unfounded complaints, where police determine there was no crime but also that the victim did not intend to mislead investigators, are not tracked at all.”
Why would someone lodge a false allegation? Reasons vary from the wish to avoid admitting to consensual sex to a craving for attention to post-breakup revenge to mental illness. Some charges begin on impulse, then spiral out of control since authorities are obliged to set an investigative process in motion. One serial “allegator” filed charges against numerous men, including a dark-skinned stranger who luckily was able to prove he was out of the country at the time; another of her targets, a veteran Ontario police officer, though eventually winning vindication, “was left in ruins, with legal bills, his long and respected career in tatters, and deserted by even life-long colleagues. … ‘There are two principles at work in the system right now,’ [his lawyer, Bill] Bain told the Post. ‘That children don’t lie, and that women are victims.'” Following pressure on the legal system by feminist and rape-crisis activists, Bain says, “police became afraid of not laying charges even in dubious cases, demurring that ‘the courts will decide,’ while Crown attorneys [prosecutors] grew ‘loathe to exercise their discretion and to live in fear of screwing up a sexual assault trial.'” And, importantly, complainants seldom face criminal penalties themselves even for knowingly filing false charges. (Christie Blatchford, “Crying wolf”, National Post, Sept. 8).
October 29 — U.S. Muslims told: don’t talk to law enforcement. Three of the Sept. 11 hijackers, Nawaf Alhazmi, Khalid Al-Midhar and Hani Hanjoor, lived in San Diego and had many contacts among persons active in a mosque in suburban La Mesa; others mingled with Muslim communities in Arizona and elsewhere in the U.S. However, if one American attorney has his way, law enforcement may not get the kind of free and spontaneous cooperation they might like from U.S. Muslims who may have information relating to the three’s activities in this country. Attorney Randall Hamud has left slips of paper for La Mesa mosque-goers which “instruct the reader, in both English and Arabic, that ‘in case of law enforcement questioning you,’ respond as follows: ‘I exercise my right to remain silent according to the 5th Amendment. I exercise my right to have my attorney, Randy Hamud, present.” (Maureen Tkacik and Rick Wartzman, “Muslim Lawyer Terms FBI Probe Discriminatory”, Wall Street Journal, Oct. 15 (online subscribers only); Ben Fox, “Three held in California as material witnesses to terror attack”, AP/Nando, Sept. 25; Kelly Thornton, “3 local men to be kept in jail indefinitely”, San Diego Union-Tribune, Sept. 26). Press coverage has depicted some other Muslim activists as discouraging their co-believers from cooperating with inquiries from the FBI and other agencies.
Persons charged with crimes in this country, of course, are entitled to have a lawyer and to not be convicted on the basis of self-incrimination, but it is a rather big jump from there to the premise that free and spontaneous cooperation by the residents of this country with police inquiries is in itself something to be discouraged. And it would seem odd to tell innocent people to invoke the Fifth Amendment privilege against self-incrimination, since they wouldn’t seem to come under that privilege — or are we missing something?
MORE: Four terror suspects apprehended under highly suspicious circumstances after the attacks have stonewalled police inquiries since then, to the deep frustration of investigators (Walter Pincus, “Silence of 4 Terror Probe Suspects Poses Dilemma”, Washington Post, Oct. 21; John Leo, “Muslims must shoulder responsibilities as citizens”, TownHall/syndicated, Sept. 25). (DURABLE LINK)
October 29 — A belt too far. The survivors of Lori Mason-Larez, who plunged more than 100 feet to her death from a ride at Knott’s Berry Farm in Orange County, Calif., are suing the amusement park and the ride’s manufacturer, Intamin Ltd., but Sandor Kernacs, president of Intamin, said the 292-pound woman was “too large to be belted in properly around her waist”. “If the company did try to limit riders according to weight or waist size, Kernacs said, advocates for the obese would be quick to challenge the restrictions. ‘Basically we cannot discriminate against anybody,’ he said.” (Michelle Dearmond, “Manufacturer says woman was too big for Knott’s ride safety restraint”, San Diego Union-Tribune, Oct. 23) (see also Aug. 31, 1999). (DURABLE LINK)
October 29 — Australian roundup. On Australian TV this summer, viewers heard about the “dentist and bartender” theories of how lawyers behave, which will be familiar to longtime followers of this site (“Law Matters with Susanna Lobez”, ABC (Australian Broadcasting Corporation)-TV, July 30; Walter Olson, “Lawyers, Gums, and Rummies”, Reason, July 1999). And we never got around to thanking Richard Ackland of the Sydney Morning Herald for this very kind reference a while back: “You only have to read of developments abroad in this area, which are religiously tracked by the marvellous online journal overlawyered.com, to see all the interesting new twists and plays that are possible in a properly evolved legal system.” (“Lawyers now free to sue the pants off everyone”, Feb. 16).
MORE: Justice Thomas of the high court of Queensland recently wrote: “The generous application of [negligence] rules is producing a litigious society and has already spawned an aggressive legal industry. I am concerned that the common law is being developed to a stage that already inflicts too great a cost upon the community both economic and social. In a compensation-conscious community citizens look for others to blame. The incentive to recover from injury is reduced. Self-reliance becomes a scarce commodity. These are destructive social forces. Also much community energy is wasted in divisive and non-productive work. A further consequence is the raising of costs of compulsory third party, employer’s liability, public risk and professional indemnity insurance premiums. These costs are foisted upon sectors of the public and in the end upon the public at large. I would prefer that these problems be rectified by the development of a more affordable common law system, but in recent times its development has been all in one direction - more liability and more damages.” (Thomas, J., in Lisle v Brice & Anor, QCA 271 Queensland Court of Appeal, July 20 — opinion in PDF format). (DURABLE LINK)
October 26-28 — “Lawyers see trouble over victims’ fund”. After last month’s attacks, Congress rushed to enact the Victim Compensation Fund. But many trial lawyers are now advising victim families to avoid the fund and prepare for all-out litigation of the sort the legislation was supposed to forestall. Meanwhile, some expect claims to roll in from such potentially large and open-ended categories of victim as “people who say they suffered respiratory distress from the dust cloud kicked up by the collapse of the World Trade Center” and “workers in nearby buildings so emotionally debilitated that they can no longer work in a high-rise”. The Association of Trial Lawyers of America “helped shape the law” and its president Leo Boyle now says that aggregate cost to the taxpayers is not a legitimate factor to take into account in deciding how much the fund should pay claimants (”That is not a relevant consideration”); individual families may ask for tens of millions because they lost high-earning executives. (Ralph Ranalli, Boston Globe, Oct. 22). If cases proceed to litigation, many lawyers concede that it will be difficult to prove the “foreseeability” of the outrages, as needed to prove negligence (Tom McGhee, “Lawyers: Federal plan may not stem WTC suits”, Denver Post, Oct. 16). Some observers also believe it will be difficult to prove that it was negligent not to order the immediate evacuation of the second tower after the first was attacked, not only because of a lack of foreseeability of the second attack, but because authorities could reasonably believe that a mass exodus from building two would interfere with the obviously critical evacuation of building one and expose evacuees to danger from falling debris if they emerged on the street. (Phil Hirschkorn, “Lawsuits likely after WTC attacks”, CNN, Oct. 10).
October 26-28 — Abusive workplace language: banned, or federally protected? A question we’ve raised before: why is it that the National Labor Relations Board extends the formal protection of federal law to “abusive language, vulgar expletives, and racial epithets”, requiring employers to refrain from treating them as grounds for discipline, on the claim that they are “part and parcel of the vigorous exchange that often accompanies labor relations'”, while at the same time federal harassment law exposes employers to stiff financial penalties for allowing those same things? An NLRB decision last year in a case called Adtranz raises the question anew. Writing for a federal appeals court, Judge David Sentelle called the discrepancy “preposterous”. (Michael Barone, “The Evolution of Labor Law”, Oct. 11).
October 26-28 — Cartoonist’s suit over practical joke. We have never derived much pleasure or instruction from the work of the cartoonist Ted Rall, and now we also know that we never, ever, want to play a stupid practical joke on him like the one that has enmeshed a man named Danny Hellman in a long-running suit at his hands. “I don’t know if any of you have ever been on the receiving end of a lawsuit; those of you who have understand what an emotionally devastating situation it is,” writes Mr. Hellman. “We have gone through months of anxiety riding this out-of-control roller coaster; only the vengeful individual at the controls knows when it will end.” DannyHellman.com (via InstaPundit: Oct. 21, Oct. 20, Oct. 15) (see letter to the editor, Nov. 29).
October 24-25 — Suit blames drugmaker for Columbine. “Families of five Columbine High School shooting victims are suing the maker of an anti-depressant that one of the student gunmen was taking when he opened fire. A therapeutic amount of the drug Luvox was found in Eric Harris’ system after he died, the Jefferson County coroner’s office has said. Solvay Pharmaceuticals Inc. makes the drug to treat obsessive-compulsive disorder and depression.” (“Columbine victims’ families sue maker of anti-depressant”, AP/CNN, Oct. 21; Allison Sherry, “Drug firm sued over Columbine”, Denver Post, Oct. 21).
October 24-25 — Don’t try rating our judges, or else. Even by Philadelphia standards, it’s an unusually bare-knuckled tactic: three Democratic politicos, U.S. Reps. Robert Brady and Chaka Fattah and Pennsylvania State Sen. Christine Tartaglione, have sued a business-oriented advocacy group named Pennsylvania Law Watch, whom the plaintiffs claim are unlawfully trying to influence next month’s statewide judicial elections by distributing ratings of judges as pro- or anti-business. “Imagine,” writes one of our readers. “Someone other than lawyers rating judges. This must be stopped immediately!” Brady et al want a freeze on Law Watch’s assets, the right to go through its books, an injunction against its activities, and more. (Jeff Blumenthal, “Philly Politicians File Suit to Stop Pa. Law Watch From ‘Influencing Election'”, Legal Intelligencer, Oct. 22).
According to the Philadelphia Daily News, “State Sen. Vincent Fumo prompted some controversy last month when he told the Philadelphia Chamber of Commerce that anyone who helped [Republican judge/candidate Michael] Eakin by donating to Pennsylvania Law Watch ‘should expect to be arrested,’ according to a witness at the chamber meeting, who also said Fumo mentioned Richard Sprague as a member of a team of attorneys ready for action.” (Chris Brennan, “Dems sue non-profit group, calling it a PAC”, Philadelphia Daily News, Oct. 23). For more on what is considered perfectly acceptable campaigning when done on behalf of the city’s Democratic machine, see our Oct. 12 entry (millions of dollars in “street money” handed out to elect judges, including at least $500,000 not subject to any public accounting). Update: case already settled, with Law Watch agreeing with Pennsylvania Democrats that it would not “it would not attempt to influence the statewide judicial elections through advertising, ‘push polling’ or any other kind of communication with the public” (Jeff Blumenthal, “TV Ads Against Ford Elliott Barred”, Legal Intelligencer, Oct. 23 — with discussion of related case against a second group).
October 24-25 — Guarding the spires. “I feel that if a war came to threaten this, I would like to throw myself into space, over the city, and protect these buildings with my body.” — said of the Manhattan skyline by a character in Ayn Rand’s novel of New York architecture, The Fountainhead, 1943 (via David Kelley, “The Assault on Civilization”, Objectivist Center, Sept. 13).
October 23 — Guest commentary #1. Jay Nordlinger, National Review Online, on the idea of “trying” Al Qaeda: “The American love of the courts — bordering on religious worship — is pretty much comical in this instance, which is an instance of obvious and necessary war. Clarence Darrow, Atticus Finch, and Perry Mason simply have nothing to do with it, fellas. The attacks on our embassies, the attacks on the U.S.S. Cole, the attacks of 9/11? War, war, war, and to be treated as such, properly. That’s why the phrase ‘bring them to justice’ is an alarming one. No, bring them to defeat.” (“Impromptus”, Oct. 19). A contrary view: Molly Ivins, “There has to be a better way”, syndicated/Sacramento Bee, Oct. 11 (bring World Court case against bin Laden).
October 23 — Guest commentary #2. Andrew Sullivan, Sunday Times (London): “So far, this hasn’t happened in America. But the country is on a knife-edge. Americans aren’t like Brits. They have a long history of requiring almost risk-free living, which is why this is the land of the trial lawyer and the damages suit. A country that came up with a tort for the accidental spilling of hot coffee will no doubt have some difficulty acclimatizing to a world where the deliberate spilling of anthrax spores is a real and present danger.” (“Fear in the air as concern rises over biochemical attacks”, Oct. 14). Actually, we wouldn’t say it was “Americans” generally who demand that life be almost risk-free, so much as one sector of our opinion — but point taken.
October 23 — Hit after laying on RR tracks; sues railroad. “A homeless woman is suing Santa Fe Southern Railway over a 1998 accident in which a train in Santa Fe severed her feet as she was lying on the tracks at a crossing.” Dionne Fresch says the railway and its conductor and brakeman should have seen her and slowed or stopped in time; a police report found that the train was going at about 8 mph and that the engineer had honked before the crossing, as required. Railway general manager Bob Sarr called the lawsuit “disgusting” and said the “accident was not the railroad’s fault. He said Fresch was lying under a brown blanket and was indistinguishable from debris when the train hit her.” (“In brief: Woman sues over railroad accident”, Santa Fe New Mexican, Oct. 18) (& see Jun. 26-27, 2002). (DURABLE LINK)
October 22 — Lawsuit fears slow bioterror vaccines. “[T]he biotechnology industry plans to tell Congress that financial incentives and liability protection for companies would go a long way toward meeting increased demands for vaccines and medicines to treat bioterrorism agents” such as smallpox and anthrax. Many companies are eager to participate in emergency production plans, says Stephan Lawson of the Biotechnology Industry Organization, but are awaiting legislative assurances that it will not be self-defeating as a business decision to do so. “The issue of liability is particularly big since vaccine makers have a long history of being sued by patients.” (Marilyn Chase and Jill Carroll, “Trial Planned to Stretch Smallpox-Vaccine Supply”, Wall Street Journal, Oct. 15 (online subscribers only); Julie Appleby, “U.S. requesting 300M smallpox vaccines”, USA Today, Oct. 18). See also Scott Gottlieb, “Ammo for the War on Germs”, WSJ/ OpinionJournal.com, Oct. 19 (FDA obstacles); Michelle Malkin, “Who hates the drug industry now?”, syndicated/Jewish World Review, Oct. 17).
October 22 — Channeling Chomsky. Ralph Nader, the world’s most prominent litigation advocate, has long kept many of his views about foreign policy under discreet wraps but now hops from campus to campus to denounce U.S. policy ascribing our current woes to our government’s not siding with the “workers and peasants” around the globe. Matt Welch, who puts out a fine “warblog” (recent coinage: war + weblog), covered Nader’s campaign and even voted for him for president but now writes of his disillusionment: “I have discovered, in reading way too much Noam Chomsky lately, that whole phrases of Nader’s admittedly limited foreign policy utterings on the stump were cut and pasted directly from Chomsky”. (MattWelch.com, Oct. 7; Oct. 11; Sept. 20). More: Ronald Radosh, “Nader and the New ‘Peace’ Movement”, FrontPage, Oct. 18.
October 22 — Batch of reader letters. Latest batch (we still haven’t fully caught up with our backlog) deals with how employers react to workers who jubilate at terrorist acts, legal vetting of anti-Taliban strikes, disabled rights and the bar exam, a proposal for a class action over law firms’ incremental billing, and whether doctors should avoid taking on attorneys as patients.