Last week twenty-eight Democratic senators sent a letter (PDF) to Acting CPSC Chair Nancy Nord the gist of which can be summed up as, “Never mind the law we passed, start enforcing the more reasonable law we wish we’d passed”. Neat move, if somewhat at odds with the concept of the “rule of law”.
Rick Woldenberg scrutinizes the politics (with particular attention to ATVs/minibikes) and also points out something seldom brought out in press accounts: the last 23 commission votes on CPSIA have been settled by 2-0 votes, with reputedly “good” CPSC commissioner Thomas Moore (cozy with Congress, vocally pro-CPSIA, a Democrat) voting exactly the same way as Nord, the reputedly “bad” commissioner (at odds with Congress, unenthusiastic about much of CPSIA, known to be a Republican, etc.) Which particular decisions, one wonders, would have turned out differently had some new appointee been installed in the vacant third seat, as Rep. Henry Waxman is reputedly demanding as a precondition for even considering hearings on the law? Woldenberg makes the same point today in a Chicago Tribune letter to the editor, responding to an exceptionally lame April 4 editorial in that paper. More on CPSC politics: news-side WSJ; Nord responds to attack from Sen. Durbin, and requests that President Obama name permanent chair to replace her (more). (Update: the National Law Journal is out with coverage of the “furor” CPSIA has set off in Washington).
On a brighter note, AmendTheCPSIA has posted videos (slow loading) of the Capitol Hill rally two weeks ago to demand action on the law. Here’s the video of dirtbike racing dad Rod Yentzer and 6-year-old (!) son Chase:
And here’s bike dealer Steve Burnside of DSD Kawasaki in Parkersburg, West Virginia:
[Broken link on CPSC surveillance program fixed now.]
The internet is a-humwithreactionsto a proposal by West Virginia state representative Jeff Eldridge (D-Big Ugly) to ban Barbie dolls “and other similar dolls that promote or influence girls to place an undue importance on physical beauty to the detriment of their intellectual and emotional development.” That idea is predictably going nowhere (at least in West Virginia: Montpelier, Vt. is said to have voted a Barbie ban*), but Eldridge can perhaps take consolation in that CPSIA has already (with virtually no media taking note of the fact) banned the sale of vast numbers of vintage Barbies that pose equal dangers of symbolic or psychological impairment, if not of actual physical dangers. This 1999 New York Times piece describes how Mattel was “beginning an effort to eliminate” the use of polyvinyl chloride (PVC) compounds in the dolls, and that environmental activist groups contended that PVC often included lead as well as (less surprisingly) the plastic softeners phthalates, some but not all of which are banned by the law. As Denise Van Patten noted in an About.com write-up in January, it is not clear what old dolls are still going to be lawful to sell, distribute or give away under CPSIA, if they cannot be fit into the “adult collectible” exception that covers items so expensive they will be kept out of children’s hands. Soft plastic is only the beginning of the problem. Most older dolls have paint as a component — often only in the rendering of the eyes, but that’s enough to count as a resale red flag under the CPSC’s Feb. 9 guidelines. Hair and dyed fabric, both of unknown composition? Buttons or snaps in the garment, or worse yet, rhinestones? About the only such plaything a thrift shop would not advised to discard under the guidelines would be an unpainted and unvarnished rigid humanoid figurine of raw wood or cast aluminum. If your child does find one of those on a thrift store shelf, she’s welcome to cuddle it all she pleases.
Carol Baicker McKee is a children’s book author and illustrator who commented eloquently (more) on one of our earlier posts about books. Now she has a great post explaining why, although she “never used to think of myself as an activist,” she’s thrown herself into the fight to change this law. As she points out, some things changed, but other things didn’t change, when the CPSC announced a short safe list of presumptively lawful material for children’s products along with a one-year stay on many testing requirements (but not on the banning of goods that flunk the thresholds). She explains why “the stays provide only the illusion of relief,” and that “when the stay ends a year from now, the destructive testing provisions will still go into effect for all children’s products except the small percentage that have been given a reprieve – the costs of that testing will force the remaining small businesses that have limped along this year into oblivion (and the [requirement for] destructive testing will obviously signal the end of one of a kind products).” Read the whole thing.
In a classic 1850 pamphlet, Frederic Bastiat writes of “what is seen, and what is not seen” when people recommend government solution to a problem. Deputy Headmistress writes of “what Congress didn’t see“. More: Patrick Stephens on a similar theme last month.
A Georgia newspaper quotes CPSC spokeswoman Arlene Flecha as saying that “her agency will have inspectors make unannounced visits to stores throughout the country and will randomly conduct tests on products.” And if you’re wondering about the CPSC “Internet surveillance project”, in which agents of the commission pose as consumers in order to trap detect persons selling forbidden goods on eBay or Craigslist, you can find out more about that here (link fixed now).
At the Heritage Foundation’s InsiderOnline blog, Alex Adrianson has a detail-filled though not lengthy post that would make a good short introduction to the subject to send to (say) a lawmaker.
Allison Loudermilk at the How Stuff Works blogs takes a look at the law’s heavy impact on thrift stores (”the selection at your local thrift store just got a whole lot slimmer”), while the PTA Thrift Shop of Carrboro, N.C. regrets to inform its customers that it’s out of kids’ resale entirely due to the law; things are only a little better in Salem, Ore. Manager Lisa Sonnek of the York, Nebraska Goodwill has pulled all the children’s clothing, toys, furniture, and pre-1985 books, in accord with policy from above, but has put aside “some clean children’s clothing, in anticipation of the policy being modified in the near future”. Dunno – that might depend on Henry Waxman’s heart melting or something.
*Although numerous online sources report as fact a Montpelier Barbie “ban”, commenter Barb says it’s far from clear that the reports have much of a factual basis.
Yes, he’s back in court: Dr. John A. King is now suing, for $50 million, the lawyer he hired to sue the three law firms that represented him previously. “King has an extensive history of suing hospitals who terminated his privileges, medical boards who took away his licenses and lawyers he hired to represent him.” Putnam General Hospital, where he previously practiced, and HCA have paid out around $100 million to settle claims against King. [Charleston Sunday Gazette-Mail].
The American Tort Reform Association is out with its annual ranking of the jurisdictions where it thinks civil defendants are farthest from being assured a fair trial, and they are:
West Virginia
South Florida
Cook County, Ill.
Atlantic County, NJ
Montgomery and Macon Counties, Ala.
Los Angeles County, CA
Clark County (Las Vegas), Nev.
The list reflects the views of big-company managers and lawyers as to tort lawsuits; a poll of, say, doctors might result in different nominations (Brooklyn, Bronx, Long Island*, Philadelphia) and one of class-action or patent-infringement defendants would likely produce yet other lists.
ATRA has a supplementary “Watch List”, nicknamed by some of us “Heckholes”, of toasty but not quite infernal jurisdictions, on which it places the Rio Grande Valley and Gulf Coast of Texas, Madison County, Ill., Baltimore, Md., and St. Louis city and county and Jackson County, Mo. It also offers side essays on notable scandals among high-rolling lawyers, trial lawyer-AG alliances, and pro-plaintiff’s-bar lobbying efforts.
You are cordially invited to a fishing expedition for lawsuits over energy drink/alcohol mixes. RSVP: Center for Science in the Public Interest [Balko, Reason "Hit and Run"]
Recent Overlawyered guestblogger Victoria Pynchon mediates an ADA claim against a Long Beach motel owner. Extortion? Fair compromise? Both? Neither? [Settle It Now, scroll]
19-year-old Ciara Sauro of Pittsburgh is disabled, in medical debt, and waiting for transplant, crowning touch is the $8,000 default judgment RIAA got against her for downloading 10 songs [Ambrogi]
“It does not take a graduate degree to understand that it is unacceptable to hide evidence and lie in a deposition” — Seventh Circuit sanctions Amtrak worker for dodgery in workplace-injury suit [Ohio Employers' Law; Negrete v. Nat’l Railroad Pass, PDF]
New Richard Nixon tapes: “I can’t have a high-minded lawyer … I want a son-of-a-b—-.” [Althouse]
Aramark suit documents unsealed: girl paralyzed by drunk driver got $25 million in suit against New York Giants stadium beer vendor [AP/Vineland, N.J. Daily Journal, earlier]
New York high court bounces Alice Lawrence/Graubard Miller fee suit back to lower courts, says more info needed [NYLJ, earlier]
Couple claims retention of $1,075 rental security deposit was racially motivated, seeks $20 million [WV Record; Martinsburg, W.Va.]
Wheeling, W.V.: the West Virginia Supreme Court has annulled the law license of Mark Blevins, an attorney and candidate for county prosecutor who was accused in disciplinary complants of having solicited a convicted felon to procure a “throwaway” gun and to help him collect money from clients. (AP/Law.com; Wheeling News-Register). Our earlier post drew protests from readers who didn’t think it relevant whether the other party to the discussion was a felon or not.
As a condition of granting pain-management services, Family Care Health Center in Putnam County, West Virginia required patient Ronald Sprouse to sign an agreement stipulating that he would cooperate with unannounced urine and bodily fluid testing and that the presence of “unauthorized substances (legal or illegal) will result in discharge from the practice.” Kicked out of the program after testing positive for cannabinoids, Sprouse admits using them but is suing the health center and doctor anyway: “When he does not smoke marijuana, Sprouse claims he becomes violent toward his family and does not leave his house in fear of how he will react toward others in society.” He is representing himself. It’s too bad for his case that he doesn’t live in California, where lawmakers seem to be headed toward making medical marijuana smokers a legally protected class. (Kelly Holleran, “Pot smoker sues for getting dismissed from pain management center”, W.V. Record, Sept. 8)(&KevinMD, ER blog Crass-Pollination).
Unlike Roy Pearson in the celebrated D.C. case, Charleston, W.V. lawyer Richard D. Jones isn’t demanding $67 million from the dry cleaner, nor is he a sitting judge (his practice is in civil defense). About the only visible angle that distinguishes the case from the entirely ordinary: Jones wants punitive damages from defendants Pressed For Time and Lisa Williams. (W.V. Record, more).
They shouldn’t include hiring a felon to put the strong arm on deadbeat clients. Attorney Mark Blevins of Wheeling, W.Va., a Republican candidate for county prosecutor, denies the charges. [Lawrence Smith, “Wheeling attorney faces suspension for using felon to collect debts”, West Virginia Record, Aug. 22; Joselyn King, “Lawyer faces license suspension”, Wheeling Intelligencer, Aug. 26) (via ABA Journal).
In response to his request for handicap accommodation, the West Virginia Board of Bar Examiners gave Shannon Kelly three instead of two days to complete the bar exam, “printed its examination in big type … gave him a room to himself and allowed him an extra day to complete the test”. He flunked anyway, so it’s off to federal court to demand further accommodations for what his lawyer Edward McDevitt describes as Kelly’s “severe deficits in processing speed, cognitive fluency and rapid naming”. (Above the Law, Aug. 4; WV Record, Jul. 25). We covered similar issues in the famous Marilyn Bartlett case (before federal judge Sonia Sotomayor in New York) Aug. 20-21, 2001. More: Coppelman, Workers Comp Insider.
Analyzing the upcoming race between the incumbent, Darrell McGraw, and his clean-government opponent, Dan Greear, the West Virginia Record has an extensive story on the West Virginia attorney general’s habit of giving lucrative no-bid contingency-fee contracts to his campaign contributors, as well as holding on to settlement money for his own personal slush fund. I am quoted at length and described as “widely regarded as one of the country’s leading voices in tort reform.” Also notable are quotes from another “Washington, D.C.-based lawyer who has written articles about the need for reform.” Kim Strassel also has a good piece on the subject in Friday’s Wall Street Journal:
To Mr. Greear’s advantage, his opponent is a case study of abuse in office. Mr. McGraw, in more than 14 years as West Virginia’s attorney general, has been a pioneer in the practice of filing questionable lawsuits against big companies, secretly doling out the legal work to outside trial lawyer friends who reap millions in fees. Those lawyers then turn around and donate heavily to Mr. McGraw’s re-election.
Polls show the public, in theory, disapproves. In a Tarrance Group survey last year, 75% of West Virginians think an attorney general should publicly disclose outside contracts with lawyers. Nearly 60% think attorneys should have to competitively bid for those jobs.
It’s this that motivates Mr. Greear. “I’ve watched what’s going on and thought: ‘If I were doing this to a client, I’d lose my law license.’ I don’t think any fair-thinking person can think this is good government, or good solid legal representation for West Virginia,” he tells me.
Also helping is that Mr. McGraw’s own sense of political immortality has recently landed him, and his state, in hot water. In 2001, he appointed four private law firms to sue drug companies for alleged deceptive advertising of OxyContin. Having forced a settlement in 2004, he handed his tort allies $3.3 million of the $10 million haul. Mr. McGraw had sued on behalf of state agencies (including the state’s Medicaid program) — yet his office kept the rest of the settlement money.
The federal government, which pays a significant portion of the state’s Medicaid bills, remains furious the program received none of the settlement, and is now threatening to withhold millions in Medicaid money. Mr. Greear is hitting hard on the uproar, using it to suggest Mr. McGraw has lost sight of why he’s suing companies, other than for the headlines.
[A] large deal of the gleeful Spitzerfreude on Wall Street arose from of the poetic justice of Spitzer’s undoing at the hands of the same extra-judicial tactics he regularly used against Wall Street firms and corporate executives when he was attorney general of New York. The real scandal of Spitzer’s career was not so much the former Girls Gone Wild model as the prosecutors gone wild.
My retrospective of Eliot Spitzer as both archetype and victim of overaggressive prosecutors in the July/August American Spectator is now on line at the AEI website.
The Humphreys – Bagent – Aguilar family of Charles Town, W.Va. and Fort Wayne, Ind. says professional photographer Sheri Grippo-Titus, who formerly practiced in Charles Town, used at least 74 photos of the family on her web site without obtaining a requisite model release, so they’d appreciate getting a million and a half. Possibly relevant: one member of the family formerly worked for Grippo-Titus but parted on unhappy, still-disputed terms. (Cara Bailey, West Virginia Record, Jul. 18). More on photo permissions here, here, and at other points in our art and artists category.
As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else’s money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me.
Frank Haas is suing for damages and reinstatement after his expulsion from Most Worshipful Grand Lodge of West Virginia, Wellsburg Lodge #2. Per Above the Law, “Discovery should be fun in this one.” (Jun. 16; Dan Barry, “From Would-Be Reformer, to Former Mason, to Plaintiff”, New York Times, Jun. 16).
“As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else’s money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me. ”
Florida trial lawyers have funneled millions to Gov. Charlie Crist and GOP state legislators; now guess why Orlando isn’t going to get commuter rail [Bousquet/St. Petersburg Times; Sentinel]
What his ex-law firm told the world was “extremely inappropriate personal conduct” was in reality no more than a “brief, consensual kiss” with co-worker, charges attorney in $90 million defamation suit; Kasowitz Benson says it was following zero tolerance policy [American Lawyer]
SCOTUS, 9-0, Thomas writing, narrows scope for money-laundering charges over hiding unexplained cash — but will that curb forfeiture abuse? [Grits for Breakfast, Greenfield]
After West Virginia high court refuses to review $405 million royalty dispute jury verdict against Chesapeake Energy and another defendant, company scraps plans to build $30 million headquarters in the state [PoL]
Even after discounting anti-corporate rhetoric, there does seem to be a story here about aggressive seed patent litigation tactics used by agri-giant Monsanto, a firm known to our readers [Barlett & Steele, Vanity Fair; earlier]
Cellphone rage update: Judge Robert Restaino ousted for jailing 46 people after one of the annoying devices rang out in his Niagara Falls, N.Y. courtroom [Buffalo News, earlier]
There are lots of them, and they're bound to encourage more unionization among health care workers and others, according to this op-ed by A. Kevin Troutman of Fisher & Phillips for the Houston Chronicle.... […]
I recently discovered the “Night Lights” Classic Jazz Radio Program, an hour-long weekly jazz program produced by Indiana University’s public radio station. It’s marvelous, and there are five years’ worth of archives available on the web that you can listen to at any time. Each program focuses on a particular artist, particular period, and/or part […]
I am a fan of Goldman Sachs. It is one of the few individual stocks I own, running against all my standard corporate finance professor ‘buy index funds!!’ instincts. Although we have had a surfeit of bankers and a surfeit of talent in financial engineering rather than, say, robotics, it is very scary to see [...] […]
From a Magistrate Judge’s Report and Recommendation in Griffin v. N.H. Dep’t of Employment Security (handed down Nov. 16): For six years prior to May 19, 2009, Griffin worked for the Hospital as a radiology technician. Prior to May 19, Griffin had a conversation with a patient in which he recounted a news story regarding the [...] […]
Which particular decisions, one wonders, would have turned out differently had some new appointee been installed in the vacant third seat, as Rep. Henry Waxman is reputedly demanding as a precondition for even considering hearings on the law? Woldenberg makes the same point today in a Chicago Tribune letter to the editor, responding to an exceptionally lame April 4 editorial in that paper. More on CPSC politics: news-side WSJ; Nord responds to attack from Sen. Durbin, and requests that President Obama name permanent chair to replace her (more). (Update: the National Law Journal is out with coverage of the “furor” CPSIA has set off in Washington).
As Denise Van Patten noted in an 
