Posts tagged as:

wrongful birth and wrongful life

“A disabled woman who unsuccessfully sued her mother’s doctor for wrongful life has won the right to take her case to the High Court.” Alexia Harriton, 24, born with multiple handicaps, says a doctor was negligent for not diagnosing her mother’s rubella infection during pregnancy; had the infection been diagnosed, mom would have had an abortion. (AAP/News.com.au, Apr. 29). More on wrongful life/wrongful birth cases: Sept. 16, 2004 and links from there. Update May 27, 2006: court rules against wrongful life concept.

Wrongful birth (cont’d)

by Walter Olson on September 16, 2004

Yorba Linda, Calif.: The basic fact pattern underlying this wrongful-birth suit will be familiar to longtime readers of this site (Aug. 22-23, 2001, Jul. 1, 2003, etc.): little Leilani Duff’s parents say they love her, but also say they’d have aborted her if they’d realized she was at risk of spina bifida, so they’re suing their obstetrician, Dr. William Dieterich, for unspecified damages. (Claire Luna, “If Only We’d Known, Parents Say”, Los Angeles Times, Sept. 9). The L.A. Times’s account includes the following comment about the incentives this burgeoning field of litigation may be sending to doctors practicing in the field:

The rise in wrongful-life suits and the threat of legal responsibility for a child’s defects puts obstetricians in the uncomfortable position of recommending, if not insisting on, abortion when there is the slightest doubt, said one physician.

“On one side you have a liability mess that puts you on the hook for the rest of the child’s life,” said Dr. T. Murphy Goodwin, chief of maternal-fetal medicine at USC’s Keck School of Medicine [and also, as the article notes, a member of the American Assn. of Pro-Life Obstetricians and Gynecologists].

“The other side, you have carte blanche to avoid the potential for these kinds of problems by shading the discussion to advocate abortion. There’s almost no adverse reaction if a doctor tells someone to terminate a pregnancy based on faulty information.”

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The CBS show takes a look at the Jade Fields case from New Jersey, which we covered last July (Jul. 1-2, 2002; Aug. 22-23, 2001 and links from there). The show interviews an ultrasound specialist who “has testified as an expert witness in many wrongful birth cases for both doctors and patients” and who appears to doubt that the doctors’ supposed inattention to danger signs was in fact malpractice. Also on camera is the girl’s mother who insists that “Jade is the best thing that could have ever happened to us” but also says in the lawsuit that she would have aborted the girl in a moment had the extent of her disabilities been clear. The show gives the plaintiff’s lawyer the last word (CBS News, “Is ‘Wrongful Birth’ Malpractice?”, Jun. 23).

[probate and estate law cases]

Decorating for reconciliation“, May 29, 2003.

Pet custody as legal practice area“, Feb. 17, 2003; “Officious intermeddlers, pet division” (lawyers intervene on behalf of couple’s cats and dogs), May 14-15, 2002.

Custody and visitation, 2003:‘The Politics of Family Destruction’” (Stephen Baskerville), Jan. 7-8. 2002:Rethinking grandparent visitation“, Oct. 21; “‘Avoiding court is best defence’“, Jan. 14-15. 2001:Columnist-fest” (John Tierney), May 25-27; “Solomon’s child“, Jan. 26-28.  1999:Spreading to Australia?” (smoking and child custody), Dec. 29-30; “Chicago’s $4 million kid” (custody battle royal), Sept. 17-19.

Child support, 2003:‘The Politics of Family Destruction’” (bans on fathering more children), Jan. 7-8 (& Nov. 28, 2001). 2001:Wrong guy?  Doesn’t seem to matter“, Aug. 7-8; “‘Judge orders parents to support 50-year-old son’“, Aug. 7-8. 2000:State errors unfairly cast some dads as deadbeats“, Sept. 8-10; “Not child’s father, must pay anyway” (plus: “throwaway dads”), May 22; “Pilloried, broke, alone” (Donna LaFramboise on “deadbeat dads”), Apr. 10. 1999:Beating up on ‘deadbeat dads’“, Aug. 23.

Lawyers fret about bad image“, Oct. 3, 2002.

Hizzoner’s divorce, settled at last“, Jul. 16-17, 2002.

Lawyer’s 44-hour workday” (social service agency, uncontested adoptions), Jun. 28-30, 2002. 

Anti-circumcision suit advances“, Aug. 19, 2002; “By reader acclaim: suing over circumcision“, Feb. 28-March 1, 2001; “Folk medicine meets child abuse reporting” (“coining” of skin), May 31-Jun. 2, 2002. 

Restraining orders:‘The Politics of Family Destruction’“, Jan. 7-8, 2003; “A menace in principle“, Mar. 4, 2002; “Fateful carpool“, Aug. 23-24, 2000; “Stay away, I’ve got a court order“, Aug. 11-13; “Recommended reading” (Dan Lynch in Albany Times-Union), Jan. 25, 2000; “Hitting below the belt“, Oct. 26, 1999; “Injunctive injustice“, Oct. 14; “Weekend reading” (“Why is Daddy in jail?…For the crime of wanting to see his child”), Sept. 25-26, 1999; “Hitting below the belt” (Cathy Young, Salon). 

Mom wants to be sued” (for negligent injury to fetus), Jan. 4-6, 2002.

‘Wrongful life’ comes to France“, Dec. 11, 2001; “Meet the ‘wrongful-birth’ bar“, Aug. 22-23 (& letter to the editor, Sept. 3; more on wrongful birth/life: Jan. 9-10, May 20-21, Jul. 1-2, 2002; Nov. 22-23, Sept. 8-10, June 8, May 9, Jan. 8-9, 2000).

Women’s rights: British law, or Islamic?“, Nov. 13, 2001.

Rush to reconcile“, Sept. 27, 2001. 

Why she’s quitting law practice” (Canadian lawyer Karen Selick), Aug. 13-14, 2001. 

Canadian court: divorce settlements never final“, May 15, 2001; “Down repressed-memory lane II: distracted when she signed” (separation agreement), Dec. 29-30, 1999. 

‘Halt cohabiting or no bail, judge tells defendants’” (1805 N.C. law), May 8, 2001; “Dusting ‘em off” (old laws against “alienation of affection”, cohabitation), May 18-21, 2000. 

‘State running background checks on new parents’” (Michigan), Apr. 3-4, 2001; “Expanding definitions of child abuse“, Feb. 16-19, 2001; “Battered?  Hand over your kids“, July 13, 2000. 

‘Victim is sued for support’” (Canada: husband shot by wife may have to pay her), Feb. 9-11, 2001; “Pay us for this service” (husband dunned for cost of defending wife charged with murdering their kids), Dec. 22, 1999. 

Do as the Douglases do” (pre-nuptial agreements), Jan. 10, 2001. 

Behind the subway ads” (1-800-DIVORCE, etc.), Dec. 18-19, 2000; “State of legal ethics” (ad for will-contest litigation), Oct. 5-6; “Honey, you’ve got mail” (solicitations from divorce lawyers arrive before unsuspecting spouses know they’re being divorced), July 15, 1999. 

Family law roundup” (English couple’s divorce costs ?840,000; frequent flier miles argued over; charges of clubby Marin County, Calif. courts), Nov. 7, 2000. 

Dangerous divorce opponents” (when spouse is lawyer), Sept. 21, 2000. 

The asset hider“, May 16, 2000; “No, honey, nothing special happened today” (woman seeking divorce fails to tell husband she just won California lottery), Nov. 20-21, 1999. 

Columnist-fest: liberal aims, illiberal means” (Stuart Taylor on same-sex marriage, William Raspberry on grandparents’ rights), Feb. 24, 2000. 

Scorched-earth divorce tactics?  Pay up” (Massachusetts decisions adopt loser-pays as sanction), Jan. 31, 2000. 

Dear Abby: Please help…” (sue married man for breach of promise to follow through on divorce?), Jan. 11, 2000. 

Christmas lawyer humor” (Richard Crouch, “Joys of the season for divorce lawyers”), Dec. 23-26, 1999. 

Splitsville, N.Y.” (New York magazine cover story), Dec. 17-18, 1999. 

Weekend reading” (some celebrities tuck nondisclosure contracts into the envelope with wedding invitations), Aug. 7-8, 1999.



Articles by Overlawyered.com editor Walter Olson:

Free To Commit” (Louisiana covenant marriage law), Reason, October 1997. 

At Law: Divorce Court New York Style“, City Journal, Spring 1993. 

Kidlib and Mrs. Clinton: The Hand that Rocks the Cradle” (children’s rights), National Review, May 11, 1992. 

Suing Ourselves to Death“, (vagueness of custody standards; excerpt, The Litigation Explosion), Washington Post, April 28, 1991.


Countless websites deal with divorce, custody and other family-law topics. A great many of these are put up by persons outraged at what they’ve gone through in their own experiences in court.  Among sites with a reformist focus, many align themselves with one or another camp among family roles: thus there are sites that focus on husbands’ legal woes and those that focus on wives’; sites for custodial and for non-custodial parents, for birth parents, for adoptive parents and for adoptees; and so forth.  Yet dissatisfaction with the legal system’s handling of family breakup, and outrage at exorbitant costs, tactical gamesmanship, judges with too much arbitrary power, unreliable expert opinion, and outright perjury and invention, are themes that weave through sites from all sides.  Indeed, one lesson from comparing a variety of sites is that innocent parties of every sex, age and condition are victimized by legal hardball — and that the process produces many more losers than winners. 

Books of interest:

Karen Winner, “Divorced from Justice : The Abuse of Women and Children by Divorce Lawyers and Judges
Cathy Young, “Ceasefire! Why Women and Men Must Join Forces to Achieve True Equality“. 
Richard Ofshe and Ethan Watters, “Making Monsters: False Memories, Psychotherapy, and Sexual Hysteria“ 
Margaret Hagen, “Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice” (currently unavailable)


Multiple complaints and filing mills, 2003:Disabled-access suit could stop Super Bowl“, Jan. 7-8.  2002:‘Disability rights attorney accused of having inaccessible office’” (the one who sued Eastwood), Apr. 25; “Florida’s ADA filing mills grind away“, Mar. 29-31.  2001:ADA’s busiest complaint-filer“, July 20-22.  2000:Eastwood trial begins“, Sept. 21 (& Oct. 2: jury declines to award damages); “On the Hill: Clint Eastwood vs. ADA filing mills“, May 18-21; “Mass ADA complaints“, Mar. 7; “Bill introduced to curb opportunistic ADA filings“, Feb. 15 (& Sept. 5, 2001: Sen. Inouye co-sponsors); “Florida ADA complaint binge“, Jan. 26-27. 

Maybe crime pays dept.” (hemorrhoids not a protected disability), Apr. 1, 2003.


Sports, 2003:Disabled-access suit could stop Super Bowl“, Jan. 7-8.  2001:By reader acclaim: football’s substance-abuse policy challenged“, Nov. 19-20; “‘A disabling verdict for organized sports’“, June 1-3 (Casey Martin case; & see June 22-24, May 30, 2001; Sept. 29-Oct. 1, April 10, 2000). 2000:‘NCAA Can Be Sued Under ADA, Federal District Judge Rules’“, Nov. 28; “Wheelchair marathon suit“, Oct. 23.  1999: Update: ADA youth soccer case“, Nov. 13-14; “After Casey Martin, the deluge“, Nov. 5-7; “ADA protection for boozing student athletes“, Sept. 29. 

‘Court waives deadline as ‘reasonable accommodation’ for disabled litigator’“, Dec. 24-26, 2002.

Website accessibility:‘Judge: Disabilities act doesn’t cover Web“, Oct. 22, 2002; “Website accessibility law hits the U.K.” (Scotland), May 7, 2001; “Olympics website’s accessibility complaint“, Aug. 16-17, 2000; “Disabled accessibility for campaign websites: the gotcha game“, July 19-20; “Welcome readers” (Intellectual Capital), June 19; “ADA & the web: sounding the alarm“, May 24; “Access excess“, May 2; “ADA & freedom of expression on the Web“, Feb. 10-11; editor’s testimony before House Judiciary Committee, Feb. 9, 2000; “Accessible websites no snap“, Dec. 21, 1999; “AOL sued for failure to accommodate blind users“, Nov. 5, 1999. 

A belt too far“, Oct. 29, 2001; “‘Sorry, Slimbo, you’re in my seats’“, June 7, 2001 (& updates Dec. 15-16, 2001, Oct. 25-27, 2002); “Obese fliers“, Dec. 20, 2000. 

Safety, 2002:Australia: ‘Blind, disabled should be able to fly’“, Sept. 30; “‘St- st – st- st- stop’“, Apr. 22; “Right to yell ‘fire’“, Apr. 5-7; “Entitled to jobs that kill?” (Echabazal v. Chevron), March 1-3 (&  Jun. 19-20, 2002, Apr. 22, 2002, Nov. 5, 2001). 2001:EEOC approves evacuation questions for disabled“, Nov. 16-18; “A belt too far“, Oct. 29; “‘Colorblind Traffic-Light Installer Gets Fired, Sues County’“, June 28.  2000:Coffee-spill suits meet ADA“, Aug. 10; “Prospect of injury no reason not to hire“, Jul. 5; “Disabled vs. disabled” (strobe alarms pit deaf against epileptic), May 17; “Ability to remain conscious not obligatory for train dispatcher, EEOC says“, March 21; “Warn and be sued“, Jan. 12. 1999:Indications of turbulence” (pilot’s mental state), Dec. 1; “Death by mainstreaming” (retarded boy’s fatal fall from amusement park ride), Aug. 31 (& Oct. 29, 2001); & seeKingdom of the One-Eyed,” Reason, Jul. 1998. 

Right to break workplace rules and then return“, Sept. 16-17, 2002; “Soap star: ABC wrote my character out of the show” (“medical leave” for drug rehab), Apr. 10; “Parole board’s consideration of drug history could violate ADA“, Mar. 11, 2002; “ADA requires renting to addiction facility“, Dec. 21, 2000. 

Structures:‘ADA Goes to the Movies’“, Jan. 30, 2003; “‘Disabled entitled to same sight lines in theaters’“, Sept. 5, 2002; “There’ll always be a California” (Santa Monica accessibility law for private homes), Dec. 4, 2001 (& similar ordinances in Ill. and Ariz.: Feb. 6-7, Mar. 6, 2002)(& letter to the editor, Apr. 11); “Crowded drugstores illegal?“, Jun. 29-Jul. 1, 2001 (& letter to the editor, July 6); “Do as we say, cont’d” (Mass.), Mar. 20, 2000; “‘Dune’ as we say” (ADA on Nantucket), Jul. 17-18, 1999.

Testing under siege, 2002:Hence, loath?asterisk“, Jul. 22-23. 2001:Update“, Aug. 20-21 (bar exam) (& letters, Oct. 22); “Litigators vs. standardized tests, I: the right to conceal“, Feb. 9-11.  2000:Court okays suit against ‘flagging’ of test conditions“, May 10; “Disabled test-accommodation roundup“, Feb. 16; “Disabled accommodation in testing“, Jan. 12; “Lawsuits over failing grades” (“exam phobia” claim), Jan. 4. 1999:Disabled accommodation vs. testing fairness“, Sept. 21, 1999; and see special education

Disabled lap dancing just the start“, Jul. 19-21, 2002; “By reader acclaim: quadriplegic sues strip club over wheelchair access“, Jul. 16-17, 2002; “Blind customers want to touch club lapdancers“, Sept. 27-28, 2000. 

Paper currency should accommodate blind, suit argues“, Jul. 15, 2002.

Supreme Court clarifies ADA“, Jun. 19-20, 2002.

Media, performance accessibility, 2002:11th Circuit reinstates ‘Millionaire’ lawsuit” (suit against “Millionaire” TV show over telephone-based screening), Jun. 21-23 (& Mar. 24-26, June 12, June 19, Nov. 7, 2000; Nov. 5, 2001).  2001:‘Panel backs deaf patron’s claim against club’” (interpreter demand at comedy club), Mar. 9-11. 2000:Seats in all parts” (theaters), Dec. 29, 2000-Jan. 2, 2001; “Movie caption trial begins” (assistive devices aid concert bootleggers), Aug. 1; “Complaint: recreated slave ship not handicap accessible“, Jul. 21-23; “Preferred seating” (theaters), Apr. 25-26; “Newest disabled right: audio TV captioning“, Mar. 22; “‘Deaf group files suit against movie theaters’” (closed captioning demand), Feb. 19-21; “The fine print” (sue Boston Globe for reducing type size?), Feb. 17; and see website accessibility

Flowers, perfume in airline cabins not OK?” (Canada), May 17-19, 2002.

Right to yell ‘fire’“, Apr. 5-7, 2002; “Compulsive grooming as protected disability“, March 16-18, 2001; “More Tourette’s discrimination suits“, March 12, 2001; “A thin-wall problem” (condo owner with Tourette’s vs. association), Aug. 21-22, 2000; “Update: Tourette’s bagger case“, Jul. 26-27, 2000; “Customer offense” (supermarket bagger with Tourette’s), Jun. 9-11, 2000.

‘O’Connor Criticizes Disabilities Law As Too Vague’“, Mar. 22-24, 2002.

Inability to get along with co-workers“, Mar. 8-10, 2002. 

Minimum GPA for study abroad said unfair to disabled“, Jan. 9-10, 2002.

Mass., Ill., NYC tobacco fees” (law firm sued by attorney with cancer), Jan. 2-3, 2002.

Segway, the super-wheelchair and the FDA“, Dec. 12, 2001.

Special ed: see schools page.

U.K.:European workplace notes” (harassment of dyslexic), Feb. 25-26, 2002; “Website accessibility law hits the U.K.” (Scotland), May 7, 2001; “Britain’s delicate soldiery” (UK military pressed to put disabled recruits on front lines), Dec. 22-25, 2000 (& Sept. 29-Oct. 1); “European roundup” (British hiring of disabled police), Oct. 16-17; “Blind customers want to touch club lapdancers“, Sept. 27-28; From the U.K.: watch your language” (job bureau restricts use of words like “hardworking”, “enthusiastic”), June 13, 2000. 

Meet the ‘wrongful-birth’ bar“, Aug. 22-23, 2001 (more on wrongful birth/life: Dec. 11, 2001; Nov. 22-23, Sept. 8-10; June 8, May 9, Jan. 8-9, 2000).

‘Businesses bracing for flood of lawsuits after state court ruling’” (Calif. law may apply retroactively), Aug. 1, 2001. 

N.J. court declares transsexuals protected class“, July 30, 2001. 

Six-hour police standoff no grounds for loss of job, says employee“, May 21, 2001; “‘Killer’s suit alleges job discrimination’“, Jan. 15, 2001; “‘Belligerent’ Worker Is Covered by ADA, Says Federal Court“, Dec. 18-19, 2000; “Accommodating theft” (N.J. lawyer discipline), Nov. 11, 1999; “‘Judge who slept on job faces new allegations’“, Oct. 4, 1999. 

’2000′s Ten Wackiest Employment Lawsuits’” (reverse-bias claim by worker with no mental disability), April 13-15, 2001. 

Put out that match” (ADA invoked against agricultural burning), Feb. 28-March 1, 2001. 

Anorexia as disability“, Jan. 26-28, 2001. 

Sidewalk toilets nixed again” (Boston), Oct. 5, 2000. 

Disabled rights roundup” (sign interpreters at doctor’s offices), Sept. 29-Oct. 1; 

Welcome Toronto Star readers” (Ontario considers ADA-like law), Sept. 27-28, 2000.

Movie caption trial begins” (Steve Chapman on ADA anniversary), Aug. 1, 2000; “‘How the ADA handicaps me’” (backfire effect in job interviews; ten year anniversary of ADA), Jul. 28-30; “ADA’s unintended consequences” (workplace losses for disabled), July 11, 2000. 

Penalty for co.’s schedule inflexibility: 30 years’ front pay” (ADA case), June 16-18, 2000; “What ADA was written for“, March 15, 2000. 

From our mail sack: ADA enforcement vignettes“, May 31, 2000.  See also letter to editor, December 1, 2000

‘ADA’s good intentions have unintended consequences’” (John Elvin, Insight), March 3-5, 2000. 

Latest excuse syndromes“, Jan. 13-14, 2000; “Down repressed-memory lane II: distracted when she signed“, Dec. 29-30, 1999; “Mow’ better ADA claims” (disability exemption from cutting one’s lawn?), July 26, 1999. 

Blind newsdealer charged with selling cigarettes to underage buyer“, Sept. 16, 1999. 

Weekend reading” (“disability studies” in academia), Aug. 21-22, 1999. 

Be sensitive to Fluffy, or else” (obligation to accept emotional-support dog into store), July 9, 1999.


Articles by Overlawyered.com editor Walter Olson:

Supreme Court Rescues ADA From Its Zealots,” Wall Street Journal, Jun. 18 (online subscribers only).

Access Excess“, Reason, May 2000.

?Under the ADA, We May All Be Disabled?, ?Rule of Law?, Wall Street Journal, May 17, 1999. 

Standard Accommodations” (rise of universal disability), Reason, Feb. 1999. 

Kingdom of the One-Eyed,” Reason, July 1998. 

Still Crazy” (Casey Martin case; ADA in the courts), Reason, May 1998. 

Disabilities Law Protects Bad Doctors,” New York Times, November 28, 1997.

Life, liberty, and the pursuit of a good beer,” excerpt from The Excuse Factory, Washington Monthly, September, 1997. 

“Time to Get Off the Tenure Track”, New York Times, July 8, 1997. 

Disabling America“, National Review, May 5, 1997.


Other resources:

U.S. Department of Justice ADA home page
U.S. Access Board home page
Equal Employment Opportunity Commission regulations (1630: ADA implementation; 1640: coordination of ADA with Section 504; 1641 government contractors). 
Text of ADA (Cornell LII) 

Online ADA Handbook
NBER: ADA employment effects study (Daron Acemoglu, Joshua Angrist) 
Boston Univ.: Pike Institute on Law & Disability
ABA Commission on Mental and Physical Disability Law

Disability Debate” (Reason Online, “Breaking Issues”) 
A good law gone bad” (Trevor Armbrister, Reader’s Digest) 
Handicapping Freedom” (Ed Hudgins, Regulation mag/Cato Institute) 
ADA: Time for Amendments” (Robert O’Quinn, Cato Institute, Aug. 9, 1991)

Texas’s giant legal reform“, Jun. 18-19, 2003.

Malpractice suit crisis, 2003:Letter to the editor“, Jun. 20-22; “Docs leaving their hometowns“, Jun. 12-15; “Juggling the stats“, Jun. 4-5; “Malpractice studies“, May 12; “Public Citizen’s bogus numbers“, Apr. 10-13; “Malpractice crisis hits sports-team docs” (& general roundup), Apr. 7-8; “Would you go into medicine again?“, Mar. 18; “‘Public deceit protects lawsuit abuse’“, Mar. 15-16; “One solution to the malpractice crunch“, Feb. 19; “Feinstein set to back Bush malpractice plan“, Feb. 12; “State of the Union“, Jan. 29; “Malpractice-cost trends“, Jan. 24-26; “ATLA’s hidden influence“, Jan. 21-22; “Playing chicken on malpractice reform“, Jan. 9; “‘Doctors strike over malpractice costs’” (W.Va., Pa.), Jan. 3-6.  2002:Campaign roundup“, Nov. 4-5; “Pennsylvania House votes to curb venue-shopping“, Oct. 11-13; “Rumblings in Mississippi“, Oct. 9-10 (& Sept. 9-10); “Let ‘em become CPAs“, Oct. 7-8; “Tour of the blogs“, Sept. 24; “You mean I’m suing that nice doctor?“, Aug. 1; “‘Bush urges malpractice damage limits’“, Jul. 29; “‘Trauma center reopens doors’“, Jul. 18; “Malpractice crisis latest” (Pa., Tex.), Jun. 11-12; “Sick in Mississippi?  Keep driving“, Jun. 3-4 (& Apr. 5-7); “‘Rocketing liability rates squeeze medical schools’“, May 28-29; “‘The trials of John Edwards’“, May 20-21; “Ob/gyns warn of withdrawal“, May 17-19; “‘The Tort Mess’” (Forbes, etc.), May 13; “Texas doctors’ work stoppage“, Apr. 11 (& Mar. 15-17); “No more ANZAC Day marches?” (Australia), Apr. 1-2; “Scenes from a malpractice crisis“, Mar. 5; “Med-mal: should doctors strike?“, Jan. 21-22.  2001:  “Soaring medical malpractice awards: now they tell us“, Sept. 11; “‘Valley doctors caught in “lawsuit war zone”‘“, May 3; “Pennsylvania MDs drop work today“, Apr. 24; “Philadelphia juries pummel doctors“, Jan. 24-25.  2000:Trial lawyers’ clout in Albany“, Oct. 4; “Malpractice outlays on rise in Canada“, Oct. 2. 

Ob/gyn, 2003:Juggling the stats“, Jun. 4-5; “Malpractice studies“, May 12; “‘Edwards doesn’t tell whole story’“, Mar. 4 (& letter to the editor, Mar. 31); “‘Delivering Justice’“, Feb. 27.  2002:Ob/gyns warn of withdrawal“, May 17-19 (& see Jun. 11-12); “‘Support case hinges on failed sterilization’” (Ind.), Apr. 26-28; “Med-mal: should doctors strike?“, Jan. 21-22.  2001:Fleeing obstetrics, again“, Dec. 21-23; “‘Wrongful life’ comes to France“, Dec. 11 (& updates Jan. 9-10, May 20-21, Jul. 1-2, 2002); “Meet the ‘wrongful-birth’ bar“, Aug. 22-23 (& letter to the editor, Sept. 3; more on wrongful birth/life: Nov. 22-23, Sept. 8-10, June 8, May 9, Jan. 8-9, 2000); “Pennsylvania MDs drop work today“, April 24; “Caesarean rate headed back up“, Feb. 5.  2000:Birth cameras not wanted“, Oct. 18; “Plastic surgeons must weigh patients’ state of mind, court says” (roundup: anti-abortion suits), Aug. 15.  1999:‘Trial lawyers on trial’” (Norplant, etc.), Dec. 23-26; “‘Your perfect birth control…blocked?’“, Aug. 11 (Norplant) (& update Aug. 27; company to settle 36,000 suits); “Yes, this drug is missed” (hospital admissions for hyperemesis tripled after lawyers drove Bendectin off market), Jul. 21. 

Malpractice studies“, May 12, 2003; “Radiologists: sue them enough and they’ll go away“, Nov. 2, 2000 (& see Sept. 24, 2002).

Nursing homes, geriatrics, 2003:Florida: ‘New clout of trial lawyers unnerves legislators’“, Mar. 20; “$12,000 a bed“, Mar. 19.  2001:Soaring medical malpractice awards: now they tell us“, Sept. 11; “‘Doctor liable for not giving enough pain medicine’“, Jun. 15-17; “‘Nursing homes a gold mine for lawyers’“, Mar. 13-14.  2000:‘Litigation grows in ailing nursing home industry’“, Jun. 20 (& see Mar. 2-4, 2001). 

Incoming link of the day“, Mar. 5-7, 2003.

Emergency medicine:‘Trauma centers warn lives could be at risk’” (Orlando), Feb. 28-Mar. 2, 2003; “Ambulances, paramedics sued more“, Oct. 28-29, 2002; “Let ‘em become CPAs“, Oct. 7-8; “Avoid having a medical emergency in Mississippi“, Apr. 5-7; “Scenes from a malpractice crisis” (closure of trauma centers), Mar. 5, 2002  (& see Jun. 11-12); “That’ll teach ‘em” (Chicago EMS), Dec. 26-28, 2000; “Highway responsibility” (ambulance, hospital sued in Derrick Thomas crash), Nov. 28, 2000. 

The jury pool he faced“, Feb. 25, 2003.

Take care of myself?  That’s the doc’s job“, Feb. 14-16, 2003; “Claim: docs should have done more to help woman quit smoking and lose weight” (Pa.), Sept. 18-19, 2002.

“Medical mistakes” estimates, 2001:  “Report: ‘medical errors’ study overblown“, July 27-29.  2000:‘Report on medical errors called erroneous’“, July 11; “Medical mistakes, continued“, March 7; “‘Medical errors’ study“, Feb. 28; “Against medical advice” (Clinton proposals), Feb. 22 (& see malpractice law section below). 

Mercury in dental fillings“, Jul. 16-17, 2002 (& Nov. 4-5, 2002). 

Psychiatry and allied fields, 2002:‘Mom who drugged kids’ ice cream sues’“, Nov. 1-3; “‘Patient sues hospital for letting him out on night he killed’” (Australia, psychiatric case), Oct. 16-17; “‘After stabbing son, mom sues doctors’“, May 31-June 2; “Counseling center may face closure” (Okla.), May 24-26.  2000:Killed his mother, now suing his psychiatrists“, Oct. 2; “Not my fault, I” (woman who murdered daughter sues psychiatrists), May 17; “Legal ethics meet medical ethics” (lawyers advise schizophrenic murder defendant to go off his medication for trial), Feb. 26-27 (update, Mar. 2: he’s reported to have punched a social worker twice since going off medication; Mar. 29: jury convicts him anyway); “Latest excuse syndromes” (“Internet intoxication”, etc.), Jan. 13-14; “Warn and be sued” (clinical psychologist loses confidentiality suit after warning of patient’s dangerousness), Jan. 12.  1999:Doctor sues insurer, claims sex addiction“, Oct. 13; see also personal responsibility

Artificial hearts experimental? Who knew?“, Oct. 23, 2002.

U.K.: ‘Dr. Botch’ sues hospital for wrongful dismissal“, Oct. 18-20, 2002; “Let them sue us!” (hospitals get sued if they withdraw privileges from questionable doctors), Mar. 23, 2000. 

Lawyers fret about bad image” (lawyers’ own poll finds public has much more confidence in doctors than in lawyers), Oct. 3, 2002.

‘Patient pays price for suing over cold’” (U.K.), Sept. 20-22, 2002.

‘Doctors hope fines will curb frivolous lawsuits’“, Sept. 6-8, 2002; “The doctor strikes back” (neurosurgeon countersues), June 14-15, 2000; “‘Truly egregious’ conduct” (court cites misconduct by attorney Geoffrey Fieger in suit against cardiologist), Sept. 14, 1999. 

“Accident medicine”, 2002:‘How to spot a personal injury mill’“, Aug. 19.  2001:Lawyers (and docs) block cleanup of Gotham crash fraud“, April 2.  2000:‘How do you fit 12 people in a 1983 Honda?’“, Aug. 23-25; “His wayward clients“, May 25; “Less suing = less suffering” (NEJM whiplash study), Apr. 24 (& update Jun. 26). 

‘The NFL vs. Everyone’” (medical privacy laws could restrict sports teams from commenting on players’ injuries), Jun. 13, 2002; “Promising areas for suits” (sports medicine), Dec. 7, 2000; “Doctor cleared in Lewis cardiac case“, May 15, 2000. 

‘Remove child before folding’” (AEI-Brookings study on defensive medicine), Jun. 5, 2002. 

Managed care/HMOs, 2002:‘Bad movie, bad public policy’” (John Q), Mar. 19; “Washington Post blasts HMO class actions“, Jan. 30-31.  2001:Managed care bill: Do as we say…“, Sept. 7-9 (& Dec. 6, 1999); “Contrarian view on PBR“, Aug. 17-19; “Chapman, Broder, Kinsley on patients’ rights“, June 28; “Managed care debate“, June 26; “Columnist-fest” (Morton Kondracke), June 22-24; “Docs and Dems“, June 19; “Roundup“, May 21.  2000:Patients’ Bill of Wrongs” (Richard Epstein), Oct. 27-29; “Fortune on Lerach“, Aug. 16-17; “Arm yourself for managed care debate“, April 20; “Employer-based health coverage in retreat?“, March 31-April 2.  1999: Weekend reading: columnist-fest” (John McCarron), Dec. 11-12; “Actions without class” (Wash. Post editorial: “extortion racket”), Dec. 2; “Who’s afraid of Dickie Scruggs?“, Dec. 2; “Aetna chairman disrespects Scruggs“, Nov. 18-19; “World according to Ron Motley” (world’s richest lawyer plans to sue HMOs, nursing homes, drugmakers), Nov. 1; “Deal with us or we’ll tank your stock” (managed care stock prices plunge), Oct. 21; “‘Health care horror stories are compelling but one-sided’“, Oct. 16-17; “After the HMO barbecue“, Oct. 12; “Power attracts power” (Boies joins anti-HMO effort), Sept. 30; “Impending assault on HMOs“,  Sept. 30; “Rude questions to ask your doctor” (why are you helping trial lawyers make it easier to sue health plans?), Sept. 4-6; From the fourth branch, an ultimatum” (leading trial lawyer vows to “dismantle” managed care), July 16

Hospital rapist sues hospital“, May 22-23, 2002 (& Mar. 5-7, 2003: court dismisses case). 

Bush’s big mistake on mental health coverage“, May 13, 2002. 

‘Big government ruined my long weekend’” (tide-over weekend prescribing), May 7, 2002. 

Lawyers stage sham trial aimed at inculpating third party“, Mar. 22-24, 2002. 

All things sentimental and recoverable” (veterinarians), Jan. 30-31, 2002. 

Public health follies:Infectious disease conquered, CDC now chases sprawl“, Nov. 9-11, 2001; “Letter to the editor” (activist doctors vs. gun ownership), May 18, 2001; “‘P.C., M.D.’“, Feb. 23-25, 2001. 

Bioterrorism preparedness” (laws hobble hospitals), Oct. 30, 2001. 

Letter to the editor“, Sept. 3, 2001 (can/should doctors avoid lawyers as patients?) (responses, Oct. 22). 

Clinical trials besieged“, Aug. 27-28, 2001; “Bioethicist as defendant” (Arthur Caplan, Jesse Gelsinger case), Oct. 6-9, 2000. 

‘Doctor liable for not giving enough pain medicine’“, Jun. 15-17, 2001. 

The unconflicted Prof. Daynard” (British Medical Journal and tobacco lawyer), April 21-23, 2000 (& update: letters, Jan. 2001, June 2001). 

To destroy a doctor” (lawyer’s campaign against laparoscopic surgeons), June 6, 2001. 

Mommy, can I grow up to be an informant?“, July 30, 2001; “A case of meta-False Claims” (overzealous prosecution of hospitals), Sept. 9, 1999. 

Updates” (Lawyers’ cameras in trauma ward), Dec. 26-28, 2000 (& Oct. 18). 

Promising areas for suits” (laser eye surgery), Dec. 7, 2000. 

Plastic surgery:Plastic surgeons must weigh patients’ state of mind, court says“, Aug. 15, 2000 (& June 11, 2001: she loses); “Strippers in court“, Jan. 28, 2000; “No spotlight on me, thanks” (leading breast-implant lawyer obtains gag order against lawyers for dissatisfied clients), August 4, 1999; “Never saying you’re sorry” (implants), July 2, 1999. 

Turn of the screw” (pedicle screw lawsuits), Oct. 24, 2000. 

Disabled rights roundup” (obligatory sign interpreters at doctor’s offices), Sept. 29-Oct. 1, 2000; “From our mail sack: ADA enforcement vignettes” (interpreters, guide dog allergy case), May 31, 2000. 

Embarrassing Lawsuit Hall of Fame” (intimate injury; misdiagnosis charge), Aug. 14, 2000. 

Senator Lieberman: a sampler” (cost of defensive medicine), Aug. 8-9, 2000. 

And don’t say ‘I’m sorry’” (nurse’s first-person account), June 21, 2000. 

Can’t sue over affair with doctor” (court rules it was consensual), June 13, 2000. 

Jumped ahead, by court order” (residency), May 31, 2000.

‘Case’s outcome may spur more lawsuits’” (Mississippi fen-phen trial), Dec. 10, 1999; “‘Dieters still want fen-phen’“, August 18, 1999. 

Rhode Island A.G.: let’s do latex gloves next“, Oct. 26, 1999. 

Michigan high court upholds malpractice reform“, August 6, 1999. 


Other resources on medicine and litigation:

Good general links pages on health law are provided by the St. Louis University Center for Health Law Studies and by the whimsically named but highly useful Health Hippo

The Litigation Explosion, the 1991 book by Overlawyered.com editor Walter Olson, was excerpted in two parts by Medical Economics [part one] [part two

Marc Arkin, “Products Liability and the Threat to Contraception” (Manhattan Institute Civil Justice Memo, February 1999). 

L. William Luria, M.D., and Dennis G. Agliano, M.D., “Abusive Medical Testimony: Toward Peer Review“, describes efforts under way in Hillsborough County, Florida, to apply principles of peer review to the control of irresponsible or unqualified forensic testimony by medical professionals. 

Walter Olson, “Lawyers with Stethoscopes: Clients Beware” (Manhattan Institute Civil Justice Memo, 1996) (abusive litigation is also bad for the medical prognosis of claimants) 

Breast implants: see separate page

Vaccines: 

Health Hippo vaccines section. 

Peter Huber, “Dan Quayle, the Lawyers and the AIDS Babies“, Forbes, October 28, 1991 (liability and an AIDS vaccine). 

Peter Huber, “Health, Death, and Economics“, Forbes, May 10, 1993 (“investment in vaccines remains far lower than it should be, given the huge benefits that vaccines provide”) 

Walter Olson, “California Counts the Costs of Lawsuit Mania“, Wall Street Journal, June 3, 1992 (liability slowing research on AIDS vaccine). 

Malpractice law:

Daniel Kessler and Mark McClellan of Stanford won the Kenneth Arrow Award in Health Economics in 1997 for their article “Do Doctors Practice Defensive Medicine?”, which “found that when states reformed malpractice laws to put caps on damages for pain and suffering, or to eliminate punitive damages, hospital expenditures for heart disease patients were reduced by about 5 percent, yet did not leave the patients with worse health outcomes.” 

Richard Anderson, M.D., “An ‘Epidemic’ of Medical Malpractice?  A Commentary on the Harvard Medical Practice Study“, Manhattan Institute Civil Justice Memo, July 1996 (shortcomings of famous study of medical care in New York hospitals). 

Forbes columns by Peter Huber on the issue include “Malpractice Law: A Defective Product” (1990) and “Rx: Radical Lawyerectomy” and “Easy Lawsuits Make Bad Medicine” (1997). 

Walter Olson, “A Story That Doesn?t Have a Leg To Stand On,” Wall Street Journal, March 27, 1995 (the famous “wrong-leg amputation” case). 

In 1993, in a paper given at the annual meeting of the Association for Health Services Research, Daniel Mendelson and Robert Rubin estimated that defensive medicine practices in three areas alone — pre-surgical testing, fetal monitoring and skull x-rays — probably exceeded $2 billion a year, and estimated likely savings from “aggressive malpractice reform” at more than twice that amount.  Perhaps in contrast (or perhaps not), a 1995 study of obstetrics in Washington state by L. Baldwin et al found no differences in practice between doctors who had been named in suits and those who had not. And Mark Hauser et al, “Fear of Malpractice Liability and its Role in Clinical Decision-Making” studied doctors’ reaction to hypothetical cases in which a patient’s file did or did not reveal a history of having sued physicians.  They found that in cases where an earlier suit had been reported the doctors were modestly more likely to call in other doctors, to recommend hospital admission, to document a case “by the book” rather than rely on judgment, and to predict a bad outcome.  Surprisingly, they did not order more tests or withdraw from cases more often when informed that a patient had a record of suing.  The Hauser paper notes one possible cost of an over-hasty resort to hospitalization: “In psychiatry a defensive response might include a needlessly low threshold for involuntary hospitalization, where the patient’s liberty and autonomy are, in essence, sacrificed in favor of conservative practice for the sake of self-protection.” 

The Michigan law firm of Garan, Lucow, Miller & Seward, P.C., which has a specialty in medical malpractice defense, maintains a comprehensive links page of resources in the field. 

Among reform groups, the Health Care Liability Alliance is a nationwide advocacy group whose website offers a variety of useful materials on the case for lawsuit reform. Californians Allied for Patient Protection defends the Golden State’s MICRA limits on malpractice liability.  CLYSIS is a Minnesota group working for medical liability reform.  State medical societies, such as the Medical Society of the State of New York, often maintain law-related information at their websites.


July 10-11 – Convicted, but still on their teaching jobs. How hard is it to fire a bad teacher in New York City? “Daniel LaBianca, chief of outside funding for School District 14 in Brooklyn, pleaded guilty in 1999 to helping private school officials embezzle millions in federal aid for poor children. Three years later, he still holds his New York public school job — and has a $10,000 raise to boot. A Daily News review of the seven cases since 1999 in which the Board of Education filed to terminate tenured school teachers or administrators with criminal convictions found that in every case, the crooks stayed in the school system.” The state education probe requires that attempts to oust educators be sent to arbitration, where the teacher’s union has an impressive record of defending its members against ouster. (Alison Gendar and Bob Port, “Cons in Classroom: Crooked teachers, officials cling to jobs”, New York Daily News, Jun. 26) (& welcome Joanne Jacobs readers; she describes three appalling teacher-ouster cases that she covered years ago). (DURABLE LINK)

July 10-11 – Memo to bar associations: save your P.R. bucks. The new president of the Florida Bar “is asking Florida lawyers to chip in as part of a $750,000 campaign to improve the image of lawyers. He’s even hired a public-relations firm.” Back in 1993 “the American Bar Association tried this same sort of thing …. The ABA paid a consultant $170,000 to improve the image of lawyers. It didn’t do any good then, either.” The way to salvage the profession’s reputation is precisely what the bar associations are not about to do, namely to police the profession’s excesses, writes columnist Howard Troxler. (“Mere PR campaign won’t change public’s low view of lawyers”, St. Petersburg Times, Jul. 8). Read the whole thing, which is full of observations like: “People tell lawyer jokes as a defense mechanism, because a certain percentage of lawyers exist for the sole purpose of finding a new victim from whom to extract money. Every small business owner dreads the lawsuit that will destroy all their efforts.” And see fuller report, Oct. 3. (DURABLE LINK)

July 10-11 – The legal price for roommate discrimination. “Do you have the right to say whom you want for a roommate? In California, you apparently don’t”, notes Eugene Volokh. “On May 7, the California Fair Employment & Housing Commission penalized Melissa DeSantis $500 for inflicting ‘emotional distress’ on a would-be roommate by allegedly telling him that ‘I don’t really like black guys. I try to be fair and all, but they scare me.’ It also required her to pay him $240 in expenses — and take ‘four hours of training on housing discrimination.’” The case is Department of Fair Employment & Housing v. DeSantis (Cal. FEHC May 7, 2002).) Volokh thinks that if the issue were litigated far enough the courts would probably wind up finding there to be a constitutional right to “intimate association” that would protect people like DeSantis from being forced to room with people they didn’t want to room with, but writes, “To my knowledge there’s no caselaw on the matter.” (Volokh brothers blog, Jul. 8). In the reasonably well-publicized “lesbian roommate” case of 1996, however, Ann Hacklander-Ready and another respondent were made to pay several hundred dollars plus thousands of dollars in plaintiff’s attorney fees after deciding that they didn’t want to be co-tenants with a lesbian applicant, in violation of the fair housing laws of Madison, Wisconsin. The case reached the state’s appellate courts (Court of Appeals, Sept. 26, 1996) and the U.S. Supreme Court eventually denied certiorari (Hacklander-Ready v. Wisconsin, 117 S.Ct. 1696 (May 12, 1997)). So it would be natural for the California authorities to assume that, no, there is no remaining individual liberty left in this country to decide with whom one wants to live in a shared tenancy (& see Volokh updates, Jul. 12 -1-, -2-). More: Aug. 10, 2005 and Feb. 9, 2006 (Craigslist) (DURABLE LINK)

July 10-11 – They thought we’d just sue. “The fifth element that made Bin Ladenism possible was the West’s, especially America’s, perceived weakness if not actual cowardice. A joke going round the militant Islamist circles until last year was that the only thing the Americans would do if attacked was to sue the attackers in court. That element no longer exists. The Americans, supported by the largest coalition in history, have shown that they are prepared to use force against their enemies even if that means a long war with no easy victory in sight.” (Amir Taheri, “Bin Laden no longer exists: Here is why”, Arab News, Jul. 9) (via Instapundit, Jul. 7). (DURABLE LINK)

July 3-9 – Now we are three. We launched Overlawyered.com on July 1, 1999, which means we’re now beginning the site’s fourth year of commentary. Tell your friends! (DURABLE LINK)

July 3-9 – Law blogs. While we’re on a week-long hiatus, check out some of these weblogs on law and law-related topics, a category that barely existed a year ago. Aside from InstaPundit and the Volokhii, which if you’re like us you already visit daily or more often, there are the pseudonymous “Max Power” and pioneering Breaching the Web; Rick Klau; Bag and Baggage; Ernie the Attorney; zem; and Held in Contempt. (All the above-mentioned also display an excellent sense of taste by linking to this site). Most have link lists that will lead you to other law blogs and sites. Two others that are deservedly popular: Howard Bashman’s How Appealing and the pseudonymous “Robert Musil“. Not surprisingly, blogs are especially well established in the world of IP law and copyright, with such entries as Yale Law’s LawMeme; Donna Wentworth‘s blog at Corante, and EFF’s wonderfully named Consensus at LawyerPoint. (DURABLE LINK)

July 3-9 – “Tampa Judge Tosses Out Class-Action Suit Against Hog Company”. “A judge dismissed a federal class-action lawsuit against the nation’s largest hog producer, ordering the plaintiffs’ attorneys, including Robert Kennedy Jr., to pay the company’s legal expenses.” (We’ve been covering this case since it was farrowed in late 2000, not excluding Kennedy’s embarrassing public forays into the controversy). Chief U.S. District Judge Elizabeth A. Kovachevich granted Smithfield Foods’ motions to dismiss the case, “saying the plaintiffs did not succeed in establishing how the company’s actions damaged their property. The judge also said the plaintiffs’ attorneys filed ‘frivolous motions,’ and ordered the dozen or so law firms representing the plaintiffs, including Kennedy’s, to pay Smithfield’s legal costs.” Sometimes the system does work as it ought to — happy Fourth of July! (AP/Tampa Bay Online, Jul. 2). (DURABLE LINK)

July 3-9 – Drunk pilots. It’s apparently happened again, this time with an America West flight stopped before taking off at Miami. We covered the legal aftermath the last time around. (DURABLE LINK)

July 1-2 – Going to blazes. Raging wildfires are what you get if you suppress smaller burns and forbid deliberate thinning of forests through logging, but both logging and “controlled burns” out West have run into community opposition and litigation. “The uncertainty caused by [anti-logging] lawsuits has decimated the logging industry in Arizona, and that has contributed heavily to the situation we find ourselves in today,” writes Republican Rep. Jeff Flake of Arizona. “… If we want to save what remains of our forests in Arizona, we’ve got to get a handle on the frivolous lawsuits that prevent us from doing so.” (Rep. Jeff Flake, “Costly lawsuits provide kindling for forest blazes”, Arizona Republic, Jun. 25). In an article promoting the use of controlled burns, the New York Times cites prominent Westerners who seem to feel much as Flake does (“Gov. Jane Dee Hull of Arizona said it was ‘policies from the East Coast’ that kept the Forest Service from pruning overgrown forests. Gov. Judy Martz of Montana said environmental groups ‘played a great role in the fires,’ by blocking some efforts to log trees.”) while also quoting environmentalists who point to a General Accounting Office study which they say proves that they have seldom challenged fuel-reduction projects (Timothy Egan, “Idea of Fighting Fire With Fire Wins Converts”, New York Times, Jun. 30). Update: “Plans to cut fire danger by thinning trees in an Arizona forest now being destroyed by the nation’s largest active wildfire were blocked for three years by a Tucson environmental group, a Tribune investigation has found. The U.S. Forest Service approved a plan to thin trees and remove volatile debris in parts of the Apache-Sitgreaves National Forest on the Mogollon Rim in September 1999, according to court records. The plan was halted after the Center for Biological Diversity appealed the decision, then sued in May 2000, claiming the Forest Service had not followed regulations. The matter is still pending in federal court.” Mark Flatten and Dan Nowicki, “Green group lawsuit blocked forest thinning”, East Valley Tribune, Jul. 1). Further update Jul. 12-14: new Forest Service report indicates that fire-prevention projects have been frequently litigated, throwing doubt on the environmentalists’ case. (DURABLE LINK)

July 1-2 – Updates. The other shoe drops on various stories:

* Well, that didn’t last long: “Home Depot Changes Mind, Will Sell to Uncle Sam” reads the headline (AP/Tampa Bay Online, Jun. 28)(see Jun. 17-18).

* Former Minnesota court of appeals judge Roland Amundson has been sentenced to 69 months in prison for stealing more than $300,000 from the trust fund of a mentally retarded client (see Mar. 19) (Minneapolis Star-Tribune, Jun. 8) (via Burt Hanson’s Law and Everything Else, Jun. 8; Hanson argues that the sentence is too stiff).

* Another wrongful birth case for your list: “The family of a child born with a disabling chromosomal defect that went undetected during pregnancy has settled a wrongful-birth lawsuit against the mother’s obstetrician for $1.65 million, according to court papers and attorneys.” Cynthia Fields argued that she would have had an abortion “in the blink of an eye” had she been given an amniocentesis that revealed that her daughter Jade, now 7, would be born severely disabled, requiring round the clock care (Lindy Washburn, “Family of disabled child settles for $1.65M”, NorthJersey.com, May 23). On the crisis in obstetrics law generally, see Rita Rubin, “Fed-up obstetricians look for a way out”, USA Today, Jun. 30. (DURABLE LINK)

July 1-2 – Mississippi’s other disaster. As if the collapse of locally based WorldCom weren’t bad enough, state lawmakers still haven’t done anything about the litigation climate (Tim Lemke, “Best place to sue?”, Washington Times, Jun. 30). But at least Judge Lamar Pickard says his court in Jefferson County has enough out-of-town litigants for now and has told plaintiffs with no local connection to start taking their business elsewhere. (DURABLE LINK)

July 1-2 – Moving to new host. We’re in the process of moving this site to a new host (Verio); we moved our editor’s home site there a couple of weeks ago, as a trial run. It’ll be a little more expensive, but we can afford it thanks to our generous readers whose Amazon Honor System donations (more than $1,000 in all) put the site in the black last year. We expect the new service to be more reliable, especially on email, which had been a chronic problem with our previous service (we had a miserable time trying to get email to AOL users, for example). Thanks for your support! (DURABLE LINK)


March 20-21 – No more restaurant doggie bags. In Australia, the restaurant doggie bag is in decline because of fears that patrons will store food at improper temperatures, allowing the growth of food-poisoning bacteria. “The Australian Leisure and Hospitality Group, which has 142 hotel restaurants across the country, has banned patrons from taking home leftovers. Victoria has already brought in anti-doggie-bag legislation, with other states tipped to follow before the end of the year, Mr Deakin said. ‘If we are the cooker of the food we are liable,’ he said.” (“Restaurants ban doggie bags”, The Advertiser (Adelaide), Mar. 18). Meanwhile, in the U.K.: “Some restaurants in Britain are forcing customers who like their meat rare to sign a disclaimer form before eating due to fears of the risk of E. coli and salmonella poisoning, the Sunday Times newspaper reported.” (“British Eaters Who Like Rare Meat Sign Disclaimers”, Reuters/Yahoo, Mar. 18).

March 20-21 – “School told to rehire cocaine abuser”. Florida: “Escambia County Schools must rehire a school employee who reported to work with cocaine in his system – 50 times above the cutoff level for a positive drug test. Robert K. Sites III, 37, initially was terminated after arriving at Brentwood Middle School on Aug. 10 in an agitated and nervous state. A ‘reasonable suspicion’ drug test revealed cocaine metabolites in his system. An independent arbitrator ruled this month that a penalty less severe than termination was warranted and wants Sites rehired with full pay and benefits.” (Lisa Osburn, Pensacola News Journal, Mar. 15). Under zero tolerance rules, of course, schools can suspend or even expel a student for possessing aspirin or other ordinary over-the-counter drugs.

March 20-21 – Lawyer: deep-pocket defendants are real culprits in identity theft. Perpetrators of the fast-growing crime of “identity theft” sometimes use fraud, stealth or dumpster-diving to obtain data on potential victims from businesses in the form of credit card or employment data. “Companies that contribute to identity theft by failing to protect their customers’ and employees’ Social Security numbers and other personal information could be held liable, some observers warn. Although relatively few cases of this type have been filed so far, some observers predict that with the incidence of identity theft rising, more frustrated victims will successfully sue companies that fail to protect this information … Sean B. Hoar, Eugene, Ore.-based assistant U.S. attorney for the District of Oregon, said he has spoken to groups of plaintiffs attorneys on the topic and the reaction has been ‘My gosh, this is a huge new area for civil litigation because of the likely liability that will be incurred.’ ‘I think that victims of identity theft are becoming much more cognizant of the fact that they have been hurt more by the negligent or careless acts of the companies than they are by the criminals,’ said Mari Frank, a Laguna Niguel, Calif.-based attorney who has specialized in the area of identity theft since she became a victim herself in 1996.” (Judy Greenwald, “ID theft suits in the cards”, Business Insurance, Mar. 4, subscriber-based site).

March 20-21 – McElroy on wrongful life suits. FoxNews.com columnist Wendy McElroy surveys the burgeoning field of “wrongful life” and “wrongful birth” suits following “the birth of a disabled child whom the mother would have aborted had she received adequate medical information.” The concept has been familiar in American courts for years and has cropped up in France and Australia recently as well. “The human cost of this new litigation is terrible. Parents publicly tell a child that they wish he or she had never been born.” (Wendy McElroy, “Parents Sue Doctors for ‘Wrongful Birth’ of Disabled Child”, FoxNews.com, Mar. 19)(see Aug. 22, 2001).

March 19 – Teen beauty pageant lands in court. In suburban Detroit, the outcome of this year’s Miss Teen St. Clair Shores beauty pageant was tainted, according to parent Barbara Scheurman’s legal complaint on behalf of her 15-year-old daughter Jennifer, which is expected to reach a local court next month. The controversy concerns whether the winning contestant should have been allowed to redo her talent presentation; a $200 savings bond and crown was the prize. (Tony Scotta, “Shores pageant judge defends her ruling”, Macomb Daily, Mar. 13).

March 19 – So depressed he stole $300K. Minnesota prosecutors are charging appeals court judge Roland Amundson, 52, who has resigned from the bench, with stealing more than $300,000 from a trust fund that a father had left for his developmentally disabled daughter. The judge’s attorney, Ron Meshbesher, said his client plans to plead guilty and “attributed Amundson’s actions to depression that followed his mother’s death”. According to prosecutors, however, his honor was not too depressed to put part of the money to use “to buy bronze statues, marble flooring, antique chairs and other items for himself.” (Pam Louwagie and Randy Furst, “Judge charged with stealing $300,000 from woman’s trust”, Minneapolis Star Tribune, Feb. 27; Elizabeth Stawicki, “Court’s credibility damaged by Amundson, judges say”, Minnesota Public Radio, Mar. 11). Update July 1-2: sentenced to 69 months. (DURABLE LINK)

March 19 – “Bad movie, bad public policy”. Among reasons to skip the Denzel Washington vehicle John Q: “at the end of the movie, we see real footage of Hillary Clinton and Jesse Jackson advocating for expanded federal health insurance. Last time I checked, though, countries with government-run health plans were less likely to give dying kids organ transplants, or the powerful drugs needed to keep their bodies from rejecting the new organs after the operation.” (Robert Goldberg (Manhattan Institute), “Painful John Q“, National Review Online, Mar. 8).

March 18 – Injured in “human hockey puck” stunt. “An Avon man has sued the Colorado Avalanche hockey team for negligence, claiming he was seriously injured during a ‘human hockey puck’ event Dec. 13, 2000, at the Pepsi Center. Ryan Netzer claims that during one of the intermissions, he was selected to take part in the event, in which he was slung by a bungee cord across the ice rink on a metal sled, according to the lawsuit filed Wednesday in Denver District Court.” Joseph Bloch, Netzer’s lawyer, says the organizers omitted protective padding that was supposed to be on boards into which his client slammed, suffering two leg fractures. “Prior to the event, Netzer signed a waiver.” (Howard Pankratz, “Fan sues Avalanche over stunt injuries”, Denver Post, Mar. 15).

March 18 – Couldn’t order 7-Up in French. “A federal government employee is suing Air Canada for more than $500,000 because he could not order a 7-Up in French.” Michel Thibodeau, 34, has already won a favorable determination from the Commissioner of Official Languages over the incident on an Aug. 14, 2000 flight from Montreal to Ottawa which resulted in an altercation after Mr. Thibodeau, “who is fluently bilingual, was unable to use French to order a 7-Up”. He wants $525,000 and an apology. “‘I am not asking for a right here, I am exercising a right I already have,’ Mr. Thibodeau said shortly after filing his lawsuit.” (Ron Corbett, “Air Canada sued over language dispute”, Ottawa Citizen/National Post, Mar. 2).

March 18 – Columnist-fest. Perennial-favorite scribes come through for readers again:

* Those consumer-battering steel import quotas are just temporary, says President Bush, and if you believe that … (Steve Chapman, “Relief from imports, for as long as it takes”, Chicago Tribune, Mar. 14);

* Airport security checking is a “ridiculous charade” because of officialdom’s continued pretense that “the 80-year-old Irish nun, the Hispanic mother of two, the Japanese-American businessman, the House committee chairman with the titanium hip” are all just as likely hijacker candidates as the young Middle Eastern man (Charles Krauthammer, “The Case for Profiling”, Time, Mar. 18; see also “Profiles in Timidity” (editorial), Wall Street Journal, OpinionJournal.com, Jan. 25);

* Dave Kopel says the abusive municipal gun lawsuits have served to galvanize a firearms industry that has historically shied away from politics: “Pearl Harbor day for the gun industry was the day that [New Orleans mayor] Marc Morial filed his lawsuit”. (“Unintended Consequences”, National Review Online, Mar. 6). See also Jacob Sullum, “Too many guns?”, Reason Online, Jan. 4 (on “oversupply” gun-suit theories).

March 15-17 – Texas docs plan walkout. More than 600 physicians in the Rio Grande Valley of Texas are planning to walk off the job April 8 to protest the state’s malpractice climate (Juan Ozuna, “‘Walkout’ Planned by Physicians”, McAllen Monitor, Feb. 16; Mel Huff, “Doctors discuss fallout from lawsuit abuse”, Brownsville Herald, Feb. 21; “The Doctor is Out”, McAllen Monitor, Feb. 19; “Sick system”(editorial), Brownsville Herald, Feb. 22). In famously litigious Beaumont, only one neurosurgeon is left practicing, which Texas Medical Association vice president Kim Ross calls “a scary thing … What if a patient has a car wreck, needs a neurosurgeon, and there’s none available? It’s an hour to Houston. That ‘golden hour’ [when treatment is most beneficial] is lost.” (Vicki Lankarge, “Soaring malpractice premiums bleed doctors, rob consumers”, reprinted by Heartland Institute, Jan.) “Channel-surf wherever you will; sooner or later (probably sooner) you’ll encounter an attorney urging you to bring your problems to him or her. Some are shameless in their opportunism: Have you suffered from respiratory problems? Throat inflammation? Sinus woes? Come see me; let’s find somebody to sue.” More than half of Texas physicians had claims filed against them in 2000, the Dallas Morning News has found. (“Litigation explosion plagues physicians” (editorial), Corpus Christi Caller-Times, Jan. 24 (via CALA Houston)).

March 15-17 – “Before you cheer … ‘Sign here’”. There are few things that trial lawyers loathe with more passion than the liability waivers that schools have parents and students sign before going out for extracurricular activities such as field trips or cheerleading. They’re carrying on a state-by-state campaign to get courts to strike down such waivers, voluntarily entered or not. (Mark Clayton, Christian Science Monitor, Mar. 12).

March 15-17 – “Politicians’ Syllogism”.

“Step One: We must do something;

“Step Two: This is something;

“Step Three: Therefore we must do it.”

– Jonathan Lynn & Antony Jay in the British television series “Yes, Minister” (via Prog Review; site on show; Hugh Davies, “Celebrities and friends say fond farewell to Sir Nigel”, Daily Telegraph, Jan. 10 (memorial for show star Sir Nigel Hawthorne, who died Dec. 26)).

March 13-14 – “Greedy or Just Green?”. “In the last few days of December, Kamran Ghalchi sent more than 3,000 California businesses an unwelcome holiday greeting — legal notices claiming they were in violation of Proposition 65, a one-of-a-kind California law requiring warnings on products that contain potentially dangerous chemicals. More than half of Ghalchi’s December notices were filed against car dealers and other automotive businesses throughout the state. Warnings at gas stations are a familiar sight to Californians, but car dealers do not warn customers that buying a car could expose them to oil, gasoline and car exhaust. In a letter offering to settle with one dealer, Ghalchi demands $7,500 to settle right away: $750 of it in fines to the attorney general, the rest split evenly between Ghalchi and Citizens for Responsible Business, a new Proposition 65 enforcement group that is the plaintiff in all of Ghalchi’s December filings.”

Recent figures from Sacramento indicate that of “citizen suit” settlements by companies for failing to post Prop 65 warnings, less than eight percent of payouts go to the state, while two-thirds go to plaintiff’s attorneys’ fees and costs, and much of the remainder to freelance enforcement groups that work with the lawyers. Even California attorney general Bill Lockyer, no friend of business, detects “an odor of extortion around many of these notices that concerns me’”. (Bob Van Voris, National Law Journal, Feb. 26).

March 13-14 – U.K. soldiers’ claim: brass didn’t warn of war trauma. In Great Britain, a high court lawsuit accuses the Ministry of Defence of “failing to adequately prepare service personnel for their inevitable exposure to the horrors of war”. Nearly 2,000 potential claimants have registered an interest in the action, which seeks to recover for post-traumatic stress disorder, according to Queen’s Counsel Stephen Irwin, arguing on their behalf. “Mr. Irwin said that the case was ‘enormous’, would take a very long time and would cost a ‘great deal of money’”. (“MoD sued over trauma from ‘horrors of war’”, London Times, Mar. 4; Joshua Rozenberg, “2,000 sue MoD over psychiatric injuries of war”, Daily Telegraph, Mar. 5)(see also “Britain’s delicate soldiery”, Dec. 22, 2000).

March 13-14 – Education reforms could serve as basis for new suits. “Robin Hood” lawsuits prevailing on courts to order equalization of spending between rich and poor public school districts have been a dismal failure even on their own terms, undermining local taxpayers’ willingness to shoulder property tax burdens. But undaunted by previous fiascos, activist education lawyers figure the answer is yet more litigation: they’re hoping to latch onto new federal mandates for uniform test scores as the basis for a renewed round of lawsuits arguing that underperforming schools have a constitutional right to more money. (Siobhan Gorman, “Can’t Beat ‘Em? Sue ‘Em!”, Washington Monthly, Dec. 2001).

March 13-14 – I’ve got a legally protected bunch of coconuts. “A Slidell businessman who painted 150 green-and-white coconuts to pass out at the city’s St. Patrick’s Day parade got a visit Thursday from a business partner of the Zulu Social Aid and Pleasure Club, which has been tossing gilded and glittery coconuts on Mardi Gras for decades. ‘The guy told me that as soon as I put paint on a coconut, I was infringing on their copyright,’ said Ronnie Dunaway, who owns Dunaway’s Olde Towne Market. ‘I was absolutely dumbfounded that there were laws about what you can and can’t do with a coconut.’” (Paul Rioux, “Zulu partners clamp down on copy-cat coconuts “, New Orleans Times-Picayune, Mar. 8).

March 12 – Texas trial lawyers back GOP PAC. Sneaky? In Houston, plaintiff’s lawyers traditionally aligned with the Democratic Party are funding a “Harris County GOP PAC” which has endorsed candidates in today’s Republican primary for Supreme Court, Congress, the state legislature, and county attorney. Though unaffiliated with the official Republican organization, the PAC has sent voters a slickly produced brochure whose “logo even mimics the official logo of the Harris County Republican Party, which features an elephant inside of a star”. (“Harris County GOP PAC funded by plaintiff’s lawyers”, Citizens Against Lawsuit Abuse Houston, undated March; John Williams, “Republicans want distance from PAC”, Houston Chronicle, Mar. 7).

March 12 – Liability concerns fell giant sequoia. “The Sonora Union High School District, owner of the property, had been concerned about liability if the 85-foot-tall tree fell on its own.” (Melanie Turner, “Giant sequoia felled despite legal wrangling”, Modesto Bee, Feb. 23) (via MaxPower blog, Feb. 17).

March 12 – A “Jenny Jones Show” question. Why do ads for injury lawyers so often air on the same TV shows as debt-restructuring ads aimed at viewers desperate for financial relief? — wonders blogger Patrick Ruffini (March 8).

March 11 – Fast-food roundup. The Chicago Tribune is reporting that McDonald’s Corp. is on the verge of settling lawsuits brought on behalf of vegetarians over its use of beef extract as a flavoring agent for French fries; the terms include “$10 million to charities that support vegetarianism and $2.4 million to plaintiffs’ attorneys.” Yum! (Ameet Sachdev, “McDonald’s nears deal on fries suit”, Chicago Tribune, March 7; AP/Fox News, Mar. 9; see May 4, 2001, and Rediff.com coverage: May 4, May 8, July 3, 2001). Public health activists are taking aim at the food industry’s sinister ploy of providing customers with big portions, in a contrast with the inflationary 1970s when activists denounced the same companies’ shock-horror practice of shrinking the size of the candy bar or taco (Randy Dotinga, “Super-Size Portion Causing U.S. Distortion”, HealthScoutNews/ Yahoo, Feb. 19). Whatever happened to the old notion of “leave some on the plate for Miss Manners”, anyway? On EnterStageRight.com, Steven Martinovich analyzes the next-tobacco-izing of snack food, quoting our editor on the subject (“The next moral crusade”, Feb. 25). Also see accounts on ConsumerFreedom.com: Jan. 24, Jan. 30, Feb. 5. And a lefty commentator for a British newspaper has concluded that our battle with the waistline is really all capitalism’s fault: Will Hutton, “Fat is a capitalist issue”, The Observer, Jan. 27.

March 11 – Parole board’s consideration of drug history could violate ADA. In a case filed by inmates at the state prison in Vacaville, Calif., a Ninth Circuit panel has ruled that parole boards may violate the Americans with Disabilities Act if they regard a prisoner’s history of drug addiction as a reason to accord any less favorable disposition to his request to be turned loose early, such history counting as a disability protected under the law. Sara Norman, a lawyer for the inmates, said the ruling “might also apply to those suffering mental disabilities covered by the ADA. … The panel also suggested that the ADA covers a panoply of law enforcement decision making, including arrests.” The case “could lead to a swell of court challenges”. (Jason Hoppin, “ADA Applies to Decisions About Parole, Says 9th Circuit”, The Recorder, Mar. 11).

March 11 – Editorial-fest. Sense is breaking out all over: “The government’s impulsive entrance into the victim-compensation business was born of a one-time mix of compassion and political expediency, but it sets an unaffordable precedent at a time when the nation faces the likelihood of more terrorist acts.” (“Why Is One Terrorism Victim Different from Another?” (editorial) USA Today, Mar. 8). The Washington Post, which has helped lead the case for reform of nationwide class action procedures, is back with another strong editorial on the subject (“Restoring class to class actions”, Mar. 9). And following the lead of its sister Fortune (see Feb. 18-19), Time is out with a piece asking why workers themselves should put up with the widespread abuse of asbestos litigation (“The Asbestos Pit”, Mar. 11).


January 9-10 – Minimum GPA for study abroad said unfair to disabled. “A 19-year-old sophomore is suing Macalester College in St. Paul for discrimination and mental anguish because the school denied his application for a German study abroad program set to begin this month. Macalester officials told Colin Kennedy he was turned down for the program because he did not maintain a 2.5 grade-point average his first two semesters. … Kennedy claims depression prevented him from excelling at his studies during his first two semesters and that the school failed to make reasonable accommodations for his illness.” (Hannah Allam, “Macalester sued over denial of study abroad”, St. Paul Pioneer Press, Jan. 3). However, the U.S. Supreme Court has just dealt a blow to liberal interpretation of the ADA in the workplace, ruling unanimously that it does not entitle an employee to accommodation of a physical ailment that impairs her ability to do the job, unless the ailment also interferes with major life activities more generally (“Supreme Court limits disabilities law in unanimous decision”, CNN, Jan. 8; Warren Richey, “In workplace, tougher standard on job-related injuries”, Christian Science Monitor, Jan. 9; Charles Wolfe, “Toyota Suit Before High Court Raises ADA Issues for Business”, AP/Law.com, Nov. 7). “The justices are right,” says a Washington Post editorial (“Injuries and Disabilities”, Jan. 9). (DURABLE LINK)

January 9-10 – Updates. Further developments in possibly familiar controversies:

* In the litigation over Atlanta day-trader Mark Barton’s murderous 1999 rampage (see Dec. 5), a judge has dismissed the building owner, manager and security company as defendants, but let suits proceed for now at least against the two day-trading companies where Barton committed killings. (Trisha Renaud, “Suits Against Day-Trading Firms Survive Summary Judgment in Rampage Case”, Fulton County Daily Report, Dec. 10) (see update Dec. 19, 2003)

* On November 1 a court in New York City dismissed all remaining charges in the “cybersex” case against Columbia University student Oliver Jovanovic, bringing to a close one of the most controversial sexual-abuse prosecutions in recent years (see Dec. 23, 1999) and casting a shadow over the departure from the Manhattan D.A.’s office of celebrated prosecutor Linda Fairstein. The case is the latest to call in question the application of “rape shield” laws, which sometimes operate to exclude evidence highly probative of defendants’ innocence in cases of claimed sexual coercion (Cathy Young, “Excluded Evidence”, Reason, Feb.; Nat Hentoff, “Rashomon in the Bedroom”, Village Voice, Nov. 2 (mature content); defense site Cybercase.org).

* No sooner had the Pfizer company heaved a sigh of relief over a defense verdict in its first jury trial over recalled diabetic drug Rezulin (see Dec. 19) than it lost big in a second case: a Corpus Christi, Texas jury awarded $43 million in actual damages and the company quickly agreed to an undisclosed but presumably substantial settlement (Miriam Rozen, “Parties Settle Rezulin Case After Jury Awards $43 Million in Actuals”, Texas Lawyer, Jan. 2).

* In France, following a U.S.-imitative court decision allowing families to file “wrongful birth” damage suits on behalf of disabled children for violation of their “right not to have been born” (see Dec. 11), ob/gyns have responded by “refusing to carry out ultrasound scans on pregnant women … The protest action could have an impact on thousands of women.” (“Scan strike by French doctors”, BBC, Dec. 3).

January 9-10 – Fair is foul, and foul is fair. In a case where Philadelphia cops failed to prevent a schizophrenic from hurting himself, a few whispered lawyer incantations magically transmute a case of possible negligence into an “extreme and outrageous” instance of “intentional infliction of emotional distress”. (Lori Litchman, “Intentional Infliction of Emotional Distress Claim Against Police Goes Forward”, Legal Intelligencer, Nov. 14). And the Supreme Court of Pennsylvania has ruled that “sudden” might actually mean “gradual”, in another of those pollution-insurance cases where that kind of stretch occurs so often. (Lori Litchman, “Supreme Court Ruling Deals Blow to Insurers Over Pollution Clause”, Oct. 22).

January 7-8 – Like father, like daughter? Illinois House Speaker Michael Madigan has for years been the chief guardian of trial lawyer interests in the state legislature. Now his daughter Lisa is running for attorney general of the state, and gathering in endorsements from such potentates as Chicago mayor Daley. (Fran Spielman, “Daley backs Madigan for attorney general”, Chicago Sun-Times, Jan. 4).

January 7-8 – “Slipping straight to the jury”. “Grocery stores around the country spend $450 million annually to defend slip-and-fall claims, according to the Bedford, Texas-based National Floor Safety Institute. … The average slip-and-fall claim nationwide is for $3,900, while the cost to litigate a lawsuit has reached $100,000, says Russ Kendzior, executive director of the institute. … Last month, however, the Florida Supreme Court dramatically changed the rules in ways that delighted the plaintiffs’ bar and infuriated the defense bar and business groups. In a unanimous ruling, the state’s high court rewrote the rules, dramatically shifting the burden of proof away from the plaintiff and onto the shoulders of the defendant. Now, if a customer takes a tumble, it’s up to the store to prove that it exercised reasonable care to keep its floors clean.” (Susan R. Miller, Miami Daily Business Review, Dec. 13). (Update Apr. 15, 2002: legislature partially undoes ruling.

January 7-8 – Defoliant litigation proves evergreen. “Seventeen years after a class action settlement intended to end lawsuits over Agent Orange, the 2nd U.S. Circuit Court of Appeals has ruled that two Vietnam veterans may sue companies that made the product.” (Bob Van Voris, “Agent Orange Suits Still Viable, 2nd Circuit Says”, National Law Journal, Dec. 12; Michael Fumento on Agent Orange).

January 7-8 – Canada: front-row spectator sues “reckless” exotic dancer. “A stripper and the bar where she worked are being sued by a man who claims the dancer kicked him in the face while he watched the show. Greg Bonnett of suburban Coquitlam, B.C., alleges he was enjoying the performance from a front-row seat at the Barnet Hotel in nearby Port Moody when the stripper swinging around a pole put her foot in his face.” Bonnett says he suffered a broken nose, blurred vision, headaches and difficulty breathing. (“Man says stripper kicked face, broke nose”, Canadian Press/azcentral.com, Nov. 28; Jay Nordlinger, “Impromptus”, National Review Online, Dec. 11 (next to last item)). More Canadian exotic dancer litigation: Aug. 14 and May 23, 2000.

January 4-6 – Welcome InstaPundit.com, AndrewSullivan.com readers. Two of the hottest webloggers around have included this site on their ongoing recommend lists: “all-powerful hit-king” Glenn Reynolds did it a week or two ago (see left column) and now we’re on Andrew Sullivan’s just-redesigned site (he says we offer “Peerless scrutiny of legal insanity.”). We’ll never be hungry for traffic again!

January 4-6 – Paroled prisoner: pay for not supervising me. From Canada: “The National Parole Board is facing a unique lawsuit over a crime committed by a paroled prisoner: a $1.6-million negligence claim from the criminal himself, who says he should never have been let go unsupervised. …’I feel the CSC and CSC parole are responsible for my every move while under their supervision,’ [Mark] Turner says in an affidavit filed in the Federal Court of Canada.” (Colin Freeze, “Paroled convict sues board over release”, Globe and Mail, Jan. 2) (via Damian Penny’s blog, which sports the motto: “You report. I decide.”)

January 4-6 – Memo to welfare commissioner: defy suit-happy activists. Mayor Mike Bloomberg’s new welfare chief, Verna Eggleston, faces a tall order trying to build on the successes of her Giuliani-era predecessor Jason Turner, writes Mickey Kaus. “She has to aggressively resist the demands of the city’s highly litigious ‘advocate’ community, which will pressure her to sign crippling consent decrees that effectively transfer power over the city to the ‘advocates.’ … ” (Kausfiles.com, Jan. 2 — see “Hit Parade”, left column)

January 4-6 – “Woman Wins Verdict, but no Money, Against Seagal”. Notable quote from action star Steven Seagal’s attorney after the case was over: “Just because you curse in the workplace doesn’t mean you should have to write a check.” (Reuters, Dec. 21).

January 4-6 – Mom wants to be sued. “Children have the right to sue their mothers over injuries caused by bad driving during pregnancy,” a Florida appellate court ruled. Talk about lawsuits that are collusive rather than genuinely adversarial: the mother herself is the one who’s been pushing for her daughter’s right to sue her, so that the family can get at the insurance money. (Catherine Wilson, “Judge: Miami girl can sue mom for injuries suffered as a fetus”, AP/Fort Lauderdale Sun-Sentinel, Dec. 19).

January 2-3 – Environmental lawsuits vs. military readiness. The high accuracy of American air and ground military targeting in Afghanistan is the result of “practice, practice, practice” over years of peacetime exercises at proving grounds and bombing ranges at home. But environmentalist lawsuits are increasingly tying up the armed services’ use of training grounds across the country, with the Vieques controversy just the most visible of many. Marine Corps Maj. Gen. Edward Hanlon Jr., commander at Camp Pendleton, warned Congress earlier this spring: “Our ability to train is being slowly eroded by encroachment on many fronts.” (Michelle Malkin, “Hostile Fire from Eco-’Extremists’”, syndicated/Capitalism Magazine, Dec. 11).

January 2-3 – “Hot-dog choking prompts lawsuit”. “The family of Kevin Rodriguez, a Coral Springs sixth-grader who choked to death on a hot dog, has filed a wrongful death lawsuit alleging the county School Board failed to serve him food that is safe to eat.” (Wanda J. DeMarzo & Daniel de Vise, Miami Herald, Dec. 28).

January 2-3 – Mass., Ill., NYC tobacco fees. “Despite having already received a record $178 million fee, a Boston law firm yesterday asked Suffolk Superior Court to force Massachusetts to pay it an additional $282 million for its work on the state’s suit against the tobacco companies.” Brown Rudnick Freed & Gesmer says it is entitled to collect on a 25 percent contingency deal, and points out that the suit when first dreamed up was considered virtually untenable, which they seem to think is something worth rewarding about it. (Frank Phillips, “Law firm asks court for more tobacco money”, Boston Globe, Dec. 28)(see Dec. 22, 1999). Illinois tobacco lawyers, who think their $121 million fee award isn’t enough and want another $800 million, have won a ruling from the state supreme court allowing their suit to proceed in a Cook County court and not in the state Court of Claims. (Chicago Sun-Times, “Judge will decide lawyers’ fees”, Dec. 4, no longer online) (see Oct. 16-17, 1999). And “a lawyer who is suffering from breast cancer sued her former firm, claiming the firm failed to pay her $1.7 million she earned representing New York City in its litigation against the tobacco industry. Janis L. Ettinger says New York’s Storch Amini & Munves told her she would not be paid further for her work because ‘she could not realistically be a part of the future of Storch Amini by virtue of her illness.’” Private businesses have paid large sums under the Americans with Disabilities Act to settle claims that they have discriminated against employees suffering from grave illnesses. (Daniel Wise, “New York Lawyer Sues Firm Over Share of Tobacco Fees”, New York Law Journal, Nov. 6).

January 2-3 – The talk of Laconia. Un-neighborly doings in central New Hampshire, where local political activist Harriet E. Cady is suing store owner Bernard J. Salvador over his appearance at an August board of selectmen meeting of the town of Sanbornton. “Cady alleges Salvador made a statement in which he referred to her as a ‘lunatic,’ then read a letter against her. She said in his letter, which was published in some area newspapers, that he referred to her as ‘Little Hitler from Deerfield.’” So now she’s suing him for $1 million, saying the epithet had caused her emotional distress and damage to her reputation that “could have a cataclysmic effect on her ability to champion her political causes.” Cady has been involved in lawsuits against the town of Sanbornton in the past. (Gordon D. King, “Woman files $1m slander and libel suit”, Laconia Citizen, Dec. 12).

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December 20 – New York guardianship scandals. “Cronyism, politics, and nepotism” run rife in New York’s notorious system of court-appointed guardianships, a report released by the state’s chief judge, Judith Kaye, has found after a two-year investigation (see Jan. 12, 2000). “In one case, a lawyer appointed to be a guardian for a woman who could not handle her own affairs billed her estate $850 after he and an assistant took a cake and flowers to her nursing home on her birthday. On another day, the lawyer and an employee took her out for a walk and bought her an ice cream cone. Their bill was $1,275.” And much, much more (Jane Fritsch, “Guardianship Abuses Noted, Including a $1,275 Ice Cream”, New York Times, Dec. 4; Daniel Wise, “Investigation Finds ‘Cronyism’ Abounds in New York Court Appointments”, New York Law Journal, Dec. 5; “Report of the Commission on Fiduciary Appointments”, December; “Fiduciary Appointments in New York“).

December 20 – “Firms Hit Hard as Asbestos Claims Rise”. L.A. Times looks at asbestos litigation and finds abuses and overreaching have gone so far that even some prominent plaintiff’s lawyers agree on the need for action. “An Oakland-based attorney who has represented asbestos victims for 27 years is leading a renegade faction of the plaintiffs’ bar that has joined with many of the corporations they sue in calling for limits on claims from people without serious illnesses. ‘It’s too far gone to do anything else,’ Steve Kazan said. ‘The asbestos companies are really cash cows that we should care for and cultivate so we can milk them for years as we need to. But I have colleagues who’d rather kill them, cut them up and put them on the grill now. We’d all have a great time, but there are people who will be hungry in five years.’” Over 15 years, now-bankrupt boilermaker Babcock & Wilcox “spent $1.6 billion on 317,000 claims that took paralegals five to 10 minutes each to prepare.” (Lisa Girion, “Firms Hit Hard as Asbestos Claims Rise”, L.A. Times, Dec. 17). According to a letter sent by the Manville Trust to federal judge Jack Weinstein on Dec. 2, asbestos claimants with cancer or other grave illness are receiving reduced payments because “disproportionate amount of Trust settlement dollars have gone to the least injured claimants — many with no discernible asbestos-related physical impairment whatsoever.” As usual, a key problem is the submission of questionable x-rays. (Queena Sook Kim, “Asbestos Trust Says Assets Are Reduced As the Medically Unimpaired File Claims”, Wall Street Journal, Dec. 14)(online subscribers only).

December 20 – Accused WTC bombing participant won’t get $110K. “In a decision that comments extensively on the war on terrorism, the 3rd U.S. Circuit Court of Appeals overturned an award of more than $110,000 in attorney fees to a Palestinian man who successfully avoided deportation after the government accused him of involvement in the 1993 bombing of the World Trade Center … the court found that the government’s efforts to deport Hany Mahmoud Kiareldeen were ‘substantially justified’ even though it was ultimately unable to prove its case against him to the satisfaction of the trial judge” by clear, convincing and unequivocal evidence. (Shannon P. Duffy, “3rd Circuit Takes Away Attorney Fee Award in ’93 WTC Bombing Case”, The Legal Intelligencer, Dec. 7).

December 19 – Texas jury clears drugmaker in first Rezulin case. Back to the drawing board for plaintiff’s lawyers trying to take down the Warner-Lambert division of Pfizer over side effects from its diabetes drug Rezulin. “‘It was a good drug. It helped a lot of people,’ said one juror, who asked not to be identified. ‘There just wasn’t enough evidence to show the drug was defective.’” Attorney George Fleming had demanded $25 million in damages and “emphasized Warner-Lambert’s interest in profits, flashing excerpts from internal memos before the jury.” Lawyers have many more Rezulin cases in the pipeline, so they’ll be able to try again and again before other juries. (Leigh Hopper, “Firm wins 1st Rezulin suit in court”, Houston Chronicle, Dec. 17). UpdateJan. 9-10, 2002: second trial goes against drugmaker with $43 million actual damages.

December 19 – “$3 million awarded in harassment”. “A federal jury Wednesday awarded a woman patrol officer for the Cook County Forest Preserve District $3 million in damages — $1 million more than her lawyer sought from the district–for years of sexual harassment and retaliation on the job … One member of the five-woman, three-man jury said he didn’t find the harassment egregious but felt a need to send the Forest Preserve District a message for its inaction regarding Spina’s complaints. ‘The county didn’t respond,’ juror Christopher Calgaro, an insurance claims supervisor from Homewood, said after the verdict. ‘They need to change, I mean catch up to the times.’” (Matt O’Connor and Robert Becker, Chicago Tribune, Dec. 13).

December 19 – Sued if you do dept.: language in the workplace. “Any worker offended by the words of a single employee can sue his employer for damages. Accordingly, many employers have adopted ‘English-only’ rules for their employees, in order to better supervise employee comments. Yet the EEOC also insists that employers can be sued by any employee who takes offense to an ‘English-only’ policy.” (Jim Boulet Jr., , “Catch-22 on Language”, National Review Online, Nov. 14) (see Nov. 17, 1999).

December 18 – False trail of missing lynx. “Federal and state wildlife biologists planted false evidence of a rare cat species in two national forests, officials told The Washington Times. Had the deception not been discovered, the government likely would have banned many forms of recreation and use of natural resources in the Gifford Pinchot National Forest and Wenatchee National Forest in Washington state.” After a Forest Service employee blew the whistle on colleagues, officials discovered that seven government employees, five from federal agencies and two from Washington state, “planted three separate samples of Canadian lynx hair on rubbing posts used to identify existence of the creatures in the two national forests.” The employees were given no serious discipline, merely counseling and being taken off the lynx survey project, and federal officials would not even release their names, “citing privacy concerns.” (Audrey Hudson, “Rare lynx hairs found in forests exposed as hoax”, Washington Times, Dec. 17; InstaPundit, Dec. 17).

December 18 – For client-chasers, daytime TV gets results. “Princeton, N.J. lawyer John Sakson … spends up to $80,000 a month soliciting potential plaintiffs. Some of his advertising is aimed at slip-and-fall and medical-malpractice victims. But these days he’s also trawling for much bigger fish — plaintiffs for deep-pocket attacks on big corporations, especially pharmaceutical companies. … the nation’s largest legal- advertising agency … says one-third of its $20 million in legal billings comes from pharmaceutical litigation ads, compared with maybe 1% a decade ago.” Poor, unemployed and disabled people disproportionately watch daytime TV: “Real-life judge shows like Judge Mills Lane and Judge Judy are jackpots.” (Michael Freedman, “New Techniques in Ambulance Chasing”, Forbes, Nov. 11).

December 18 – Compulsory chapel for Minn. lawyers. “Since 1996, the Minnesota Supreme Court has required attorneys to participate in its version of diversity training — called ‘elimination of bias’ education — as a condition of holding a license to practice law.” The point is less to regulate attorneys’ conduct than to instill in them opinions that the authorities consider correct about complex political and moral questions, and many of the resulting seminars have had a tendentious, preachy anti- white- male tone. (Katherine Kersten, “Court-ordered ‘elimination of bias’ seminars threaten freedom of thought”, Minneapolis Star-Tribune, Dec. 12). See update Nov. 21, 2003 (lawyer challenges requirement).

December 17 – “Suing the City for Sept. 11? Oh, Why Not?”. Giuliani or Bloomberg, New York City’s tort crisis just keeps getting worse: “Settlements cost the city $459 million that year [fiscal 2000], the latest for which statistics are available. … You might expect the litigation to slow down as a hurt and financially damaged city looks to rebuild and weather a recession. You would be wrong. … Interviews with lawyers for the city and prospective plaintiffs indicate that the attack will generate substantially more than 1,000 notices of claim.” (Joyce Purnick, New York Times, Dec. 13).

December 17 – Slouching toward Marin? Every conservative commentator in the country, it seems, has by now told us where to pin the blame for Tali-boy John Walker’s descent into Islamic extremism: it’s all because of his permissive, religiously liberal suburban upbringing. Steve Chapman offers a corrective to all the Culture War axe-grinding (“Is John Walker a failure of liberalism?”, Chicago Tribune, Dec. 16).

December 17 – Daynard watch. It sure did take a long time, but the British Medical Journal has finally admitted to its readers that tobacco-baiting Northeastern University law prof Richard Daynard failed to disclose competing interests in litigation to BMJ readers as per the journal’s policy (see our earlier reports). The correction states that Daynard “has been involved as counsel in suing tobacco companies and has received grants for research into the use of litigation to control tobacco use”. Because this formulation is so terse and artfully worded, however, readers in the United Kingdom (where lawyers are generally not allowed to claim percentage stakes in litigation) may not realize that the competing interest Daynard concealed consisted not in routine hourly fees but a contingency stake that, per his claims, may top $100 million (“Correction: Tobacco litigation worldwide”, Oct. 6). Connecticut activist Martha Perske deserves the credit for getting the BMJ to semi-’fess up. Meanwhile, Daynard’s division- of- the- spoils suit against former anti-tobacco colleagues Ron Motley and Richard Scruggs “is providing an inside look at the way lawyers finagled fees in the tobacco litigation — and the lengths they’ll go to protect their hoard.” (Elizabeth Preis, “A Piece of the Action”, The American Lawyer, Sept. 7).

December 15-16 – Criminal defense attorneys, doing what they do best. “While it may seem like the ultimate smoking gun, defense lawyers said there would be ways to try to undercut the videotape of Osama bin Laden if he were to go on trial for the Sept. 11 terrorist attacks. … ‘I would argue as a defense lawyer that the tape is puffery, celebration and bragging,’ said Robert E. Precht, director of public interest law at the University of Michigan Law School who was a defense lawyer in the trial of the World Trade Center bombers in 1994′ … several defense lawyers suggested that a creative defense team might claim that the damning translation from Arabic was misleading or that the tape was doctored. ‘The reality is you can make a tampering argument with any tape,’ Barry I. Slotnick, a New York defense lawyer, said.” And: “with tapes that are transcribed from a different language, there are interpreters you can find who can come up with a different transcript,” offered New York’s Benjamin Brafman. Then there’d be attacks on the tape’s admissibility, since “it was not clear how the government obtained it”, which might in turn force the CIA to reveal sensitive information — great tactical leverage. (William Glaberson, “Defense Lawyers See Ways to Attack Tape, if Not Win”, New York Times, Dec. 15). On the role of the O.J. Simpson case in convincing much of the American public that our court system cannot be trusted to deliver even rough justice in a high-profile criminal trial, see, among many others, Glenn Reynolds, InstaPundit.com, Dec. 13.

December 15-16 – Updates. Further developments in cases that were bound to develop further:

* The Canadian Transportation Agency has ruled that obesity in itself is not a disability and that airlines are not therefore obliged by law to offer extra seats to severely overweight passengers, although it suggested they consider doing so voluntarily (see June 7, Dec. 20, 2000)(“Canadian tribunal rules obesity is not a disability”, Reuters/FindLaw, Dec. 13).

* In New South Wales, Australia, an appeals court has ordered a new trial after finding that an award of almost $3 million (Aust.) was “excessively high” in the case of a man who sued over having been subjected to strapping as punishment twice at a Catholic school seventeen years ago (see Feb. 20). (Ellen Connolly, “Compensation takes a caning as $3m payment revoked”, Sydney Morning Herald, Nov. 1).

* Sitting en banc, the Ninth Circuit has held that grabbing the interest on clients’ trust accounts at law firms to finance poverty law does not entail any “taking” for which the clients need be compensated; the 7-4 decision comes over a dissent by Judge Alex Kozinski, whose earlier opinion for a three-judge panel (see Jan. 31) the court reversed. The Ninth now officially disagrees with the Fifth Circuit (so what else is new?) on this issue, and the circuit split may attract the attention of the U.S. Supreme Court. The court did not resolve the question of whether such programs violate the First Amendment. (Jason Hoppin, “IOLTA: 9th Circuit Says IOLTA Programs OK”, The Recorder, Nov. 15) (opinion in PDF format courtesy FindLaw).

* “Five shopkeepers prosecuted for weighing food in British Imperial measurements instead of the metric system demanded by European law appealed to London’s High Court Tuesday to quash their convictions.” After greengrocer Steven Thoburn of Sunderland, the original “metric martyr”, was brought up on charges for weighing bananas in pounds (see Jan. 22, April 11), authorities collared four more shopkeepers who were using the forbidden measures to weigh such items as mackerel and pumpkins. Some 200 protesters demonstrated outside the court in support of the merchants. (“Shopkeepers Battle for Right to Use British Weight” , Reuters/Yahoo, Nov. 23). Update Feb. 20, 2002: they lose High Court appeal.

December 13-14 – “Father seeks $1.5 million after son misses varsity spot”. By reader acclaim: “The father of a high school sophomore seeks $1.5 million in damages and the dismissal of the school’s basketball coach after his son did not make the varsity. Lynn Rubin sued the New Haven Unified School District on Nov. 27 because his son, Jawaan Rubin, was told to return to the junior varsity after being asked to try out for varsity.” The youngster attends James Logan High School in Union City, Calif. (AP/SFGate.com, Dec. 11; Contra Costa Times, Dec. 12).

December 13-14 – SCTLA’s homegrown Chomsky. We’re familiar with the tendency of politically active injury lawyers to espouse opinions farther to the left than those of the communities they live in. Still, we’re a bit amazed at a commentary that appeared last month on CommonDreams.org, a left-leaning website that has vehemently opposed U.S. military action before and after September 11. The commentary, in headlong Noam Chomsky/Robert Fisk rant mode, claims that “the United States is making war on children” in its efforts against the Taliban and al Qaeda, declares that the American military is delivering a “message of greed and violence” to Afghanis, and even puts scare quotes around the word “evil-doers” in referring to those responsible for Sept. 11. The screed’s author? Columbia, S.C. plaintiff’s lawyer Tom Turnipseed, a well-known figure in his state’s Democratic politics (most recently as its 1998 attorney general candidate; he’s now mulling a run for U.S. Senate) who’s often described as a leader of the state party’s progressive wing. Can this sort of thing really play with the voting public and in the jury box in a conservative, pro-military state like S.C.?

The “message of greed” that Turnipseed claims the U.S. is conveying to Afghanis, incidentally, consists of our offer of $25 million for the apprehension of Osama bin Laden. Presumably this is quite different from the message conveyed by Turnipseed’s own web site, which assures prospective clients that he has resolved numerous cases for sums in excess of $1 million. (“Broadcasting and Bombing”, CommonDreams.org, Nov. 22; Turnipseed’s law firm website and “mission“; via Matt Welch). (DURABLE LINK)

December 13-14 – Competitor can file RICO suit over hiring of illegal aliens. A really odd one from the Second Circuit: the court says a commercial cleaning service in Hartford has standing to sue a competitor for racketeering under federal law over the second firm’s alleged hiring of undocumented workers. If the decision stands, expect all sorts of new business-on-business litigation, underscoring the need to roll back RICO’s many overexpansive provisions, or repeal the law entirely. (Elizabeth Amon, “New RICO Target: Hiring Illegal Aliens”, National Law Journal, Nov. 27). Update: see Point Of Law, Jul. 12, 2004.

December 13-14 – Segway, the super-wheelchair and the FDA. The much-publicized new mobility device, known variously as “It”, “Ginger” and the “Segway”, originated as a spinoff of a quest for a truly powerful and versatile wheelchair that would allow disabled users to climb and descend stairs and curbs, traverse rough terrain and surmount other kinds of barriers. The IBot wheelchair project is still considered extremely promising, but progress on it has been less rapid than hoped: genuine safety concerns are part of the problem, but they’re magnified by various legal worries including the arduous process of getting the Food and Drug Administration to approve a new “medical device”. Meanwhile some disabled persons, frustrated at seeing years of their lives slip by without the yearned-for mobility advance, are now considering hacking the “Segway” to meet their needs. (Michelle Delio, “What About Kamen’s Other Machine?”, Wired News, Dec. 7).

As for the Segway itself: “No matter how inherently safe Segways may be, someone, somewhere is going to kill himself on one. ‘It’s inevitable,’ says Gary Bridge, Segway’s marketing chief. ‘I dread that day.’ Never mind that people die every day on bicycles, in crosswalks, on skateboards, in cars. The Segway is the newest new thing, and nothing does more to set hearts afire on the contingency-fee bar. ‘There are some very deep pockets around this thing,’ remarks Andy Grove. ‘I fear this could be a litigation lightning rod.’” (John Heilemann, “Reinventing the wheel”, Time, Dec. 2 (see p. 4)). Update: see Aug. 1, 2002.

December 13-14 – Menace of office-park geese. We knew they were sinister: an Illinois panel has approved a $17,000 settlement for Aramark Corp. deliveryman Nolan Lett, who was attacked by Canada geese on his employer’s property in suburban Oak Brook, and filed a workers’ comp claim “under the theory that Aramark had a duty to warn employees of the dangers of the geese because the building was in an area that attracted them.” Lett broke his wrist trying to fend off the pesky creatures. (“Workers’ compensation: Victim of wild goose attack settles for $17,000″, National Law Journal, Oct. 22). (DURABLE LINK)

December 12 – By reader acclaim: “Teen hit by train while asleep on tracks sues railroad”. Cameron Clapp of Grover Beach, Calif. has sued the Union Pacific railroad and its conductor and engineer, saying that they should have sounded the train’s horn or bell as well as engaged the emergency brake when they saw him asleep on the tracks. Clapp’s blood alcohol level after the accident was measured at .229, nearly three times the permissible level for operating a motor vehicle. “According to Grover Beach police, the engineer and conductor did not sound the horn because they were focused on activating the train’s emergency brakes.” Notwithstanding his client’s having been passed out at the time, Clapp’s attorney, Jim Murphy, claims that ‘These horns are enormously powerful and can literally* wake the dead.’” (Leila Knox, San Luis Obispo Tribune, Dec. 8) (*usage note)

December 12 – A bargain at $700/hour. New York law firms Weil, Gotshal and Manges and Wachtell, Lipton, Rosen & Katz “have each asked for a $1 million bonus, on top of their regular rates and costs, as an ‘enhancement’” for advising United Companies Financial Corp. of Baton Rouge, La. and its creditors during its bankruptcy. Under bankruptcy law, judges must approve the payment of fees in such cases. “Ultimately, any such fees come out of the estate of the debtor, leaving less money to go around. … Weil, Gotshal’s [attorney Harvey] Miller says that while shareholders were wiped out, his firm, which represented the debtor, still deserves a bonus for ‘creating value.’ Weil is seeking $7.3 million in fees in the case. But he says that hourly rates do not always do justice to a lawyer’s contributions. He considers his $700 hourly rate, which he increased from $675 over the summer, ‘a bargain.’”

“In another case, a small firm, Dann Pecar Newman & Kleiman of Indianapolis, has requested $5 million in fees for representing consumers in a two-year-old Chapter 11 proceeding against a defunct satellite-dish financing unit of Houston-based American General Corp. The fee request includes a $3 million bonus, which would put the 22-lawyer firm’s effective rate in the case at roughly $650 an hour — on a par with top New York firms. The consumers ultimately collected about $28 million from the company. David Kleiman, a partner, says he considers the case more akin to a far-flung class-action suit, where courts have long rewarded lawyers a multiple of their hourly rates. The fees were ‘remarkably low,’ he says.” (Richard B. Schmitt, “Bankruptcy Lawyers Seek Big ‘Enhancement’ Bonuses”, Wall Street Journal, Nov. 1 (online subscribers only)).

December 12 – Ready, aim … consult counsel. It seems that situation described by Seymour Hersh in his New Yorker story a few weeks back (see Oct. 19) — of U.S. forces hesitating to destroy a hostile target until they could consult a Pentagon lawyer — is not as unusual as might be assumed. “To many outside of military life, the idea of a judge advocate whispering in the ear of a four-star general [during mission planning and in battlefield decisionmaking] is startling. But nowadays it is standard procedure,” writes Vanessa Blum in Legal Times. “Modern judge advocates literally sit at the side of commanders, drafting rules of engagement, weighing in on targeting decisions, and even helping to prepare special operations forces for risky missions.” (“JAG Goes to War”, Nov. 15).

December 11 – “Lawyers on trial”. In what was originally planned as a cover story, U.S. News in this week’s issue asks: “Are lawyers out of control? Or, more important: Has litigation become more of a burden to society than a safeguard?”. Our editor, who provided considerable assistance (readers of this site will recognize many stories), is quoted. (Pamela Sherrid, U.S. News, Dec. 17) (links to sidebars on class action recruitment, asbestos, forum-shopping, shareholder suits). Also, an account of a recusal controversy in a New York securities-law case quotes our editor to the effect that lawyers are taking a risk when they demand that judges recuse themselves, since such demands tend to annoy not only the target judge but also his colleagues on the bench. (Heidi Moore, “IPO Recusal Motion Backfires”, The Deal, Dec. 7).

December 11 – “Wrongful life” comes to France. A court in Paris has ruled that some disabled children can sue doctors for not having aborted them, a development that OpinionJournal.com‘s “Best of the Web” takes as evidence of specifically French barbarity, apparently unaware that American lawyers have been advancing such theories for years in our courts with some success (see Aug. 22). (Nanette van der Laan, “France debates right not to be born”, Christian Science Monitor, Dec. 7; James Taranto, “Best of the Web”, Dec. 10 (last item)). Update Jan. 9-10, 2002: French doctors stage job action in protest.

December 11 –KPMG. This international services firm (no longer affiliated with the consulting firm of the same name) seems to think it has a legal right to prevent people from linking to its website without its permission, so of course any number of websites are doing just that. Like this: KPMG. Actually, our advice is to skip the company’s tedious site and just check out the Wired News account of the controversy: Farhad Manjoo, “Big Stink Over a Simple Link”, Dec. 6. (& see Blogdex)

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August 31-September 2 – Study: DPT and MMR vaccines not linked to brain injury. Some children experience fever and febrile (fever-related) seizures after being given the diphtheria- tetanus- pertussis (DTP) vaccine and measles, mumps, and rubella (MMR) vaccine and it has long been feared, to quote the New York Times‘s summary of a massive new study, “that those rare fever-related seizures may be linked to later autism and developmental problems. The fears are unfounded, the [new] study concluded.” The study, which appears in the New England Journal of Medicine, was of medical data for 639,000 children and was conducted with the assistance of the Centers for Disease Control and Prevention. “There are significantly elevated risks of febrile seizures after receipt of DTP vaccine or MMR vaccine, but these risks do not appear to be associated with any long-term, adverse consequences,” concludes the abstract.

All of which comes too late to prevent the legal devastation of much of the childhood vaccine industry at the hands of trial lawyers, an episode that climaxed in 1986 when Congress stepped in and established a no-fault childhood vaccine compensation program (see Nov. 13, 2000). According to the Washington Post, one Milwaukee lawyer alone “has won million-dollar judgments or settlements in nearly a dozen DPT cases.” “The jury hated the drug companies so bad when we got through with them that they would have awarded money no matter what,” boasts the lawyer, Victor Harding. (Arthur Allen, “Exposed: Shots in the Dark”, Washington Post Magazine, Aug. 30, 1998). If the new study is correct, however, the vaccines may not have been responsible for the occurrences of permanent developmental disability that so often led to high awards. Worldwide alarm over the vaccines’ feared side effects, stoked in no small part by the litigation, contributed to a decline in immunization rates that resulted in a resurgence of the diseases in several countries, killing many children. (DURABLE LINK)

SOURCES: William E. Barlow, Robert L. Davis et al, “The Risk of Seizures after Receipt of Whole-Cell Pertussis or Measles, Mumps, and Rubella Vaccine”, New England Journal of Medicine, Aug. 30 (abstract); Philip J. Hilts, “Study Clears Two Vaccines of Any Long-Lasting Harm”, New York Times, Aug. 30 (reg); and dueling headlines: Daniel Q. Haney, “Two Vaccines Linked to Seizures”, AP/Yahoo, Aug. 29, and Gene Emery, “Researchers: Vaccines Carry Little Risk of Seizures”, Reuters/Yahoo, Aug. 29. Adds AP: “In April, an Institute of Medicine committee issued a report saying there is no evidence that MMR causes autism, as some have speculated.” (more)

August 31-September 2 – Radio daze. The nation’s largest radio chain, Clear Channel, is known for hardball lawyering — as when it sued Z104, a rival station in Washington, D.C., for having the temerity to hold a listener contest in which the prize was tickets to an outdoor concert in Los Angeles staged by a Clear Channel subsidiary. Violated their client’s “service mark”, the lawyers said (Frank Ahrens, “Making Radio Waves”, Washington Post, Aug. 22).

August 31-September 2 – “Man Pleads Guilty to Use of Three Stooges’ Firm in Fraud Scheme”. In Lubbock, Texas, Patrick Michael Penker has admitted bilking banks and other institutions out of $1 million in a scheme in which he “used the name of the slapstick comedy trio’s fictional law firm Dewey, Cheatham and Howe to obtain cashier’s checks” (more on that illustrious firm: Google search). “It did seem just a bit unusual for a company name,” said a bank officer who alerted the FBI (AP/FoxNews, Aug. 27).

August 29-30 – Washington Post on class action reform. “No portion of the American civil justice system is more of a mess than the world of class actions. None is in more desperate need of policymakers’ attention.” Excellent Post editorial which should help fuel reform efforts (“Actions Without Class” (editorial), Washington Post, Aug. 27).

August 29-30 – Firefighter’s demand: back pay for time facing criminal rap. David Griffith, a Hispanic firefighter in Des Moines, Iowa, “has sued city officials, alleging racial bias in their refusal to give him back pay for a leave of absence after he was arrested.” Griffith went on a six-month unpaid leave after he “was arrested in December 1999 on three counts of third-degree sexual abuse involving a then-22-year-old woman. The charges were dropped in May 2000 after Griffith pleaded guilty of assault with intent to inflict injury and harassment. … In his lawsuit, Griffith said he ‘was treated less favorably than non-Hispanic employees and believed such treatment was based on race’. … City attorney Carol Moser said Des Moines officials never forced Griffith to take a leave of absence but simply granted his request.” (Jeff Eckhoff, “D.M. firefighter sues for back pay after arrest, alleges discrimination”, Des Moines Register, Aug. 24).

August 29-30 – “Trolling for Dollars”. Lawyers are turning aggressive patent enforcement into a billion-dollar business, and companies on the receiving end aren’t happy about it (Brenda Sandburg, “Trolling for Dollars”, The Recorder, July 31).

August 29-30 – Negligent to lack employee spouse-abuse policy? The husband of a Wal-Mart employee in Pottstown, Pa., came to the store and shot her, then killed himself. Now her lawyer is suing the retailer, arguing (among other theories) that it should have had a policy to protect its employees from spousal abuse. (Shannon P. Duffy, “Employee Sues Wal-Mart Because Store Didn’t Protect Her From Husband’s Attack”, The Legal Intelligencer, Aug. 24).

August 29-30 – Updates. Further developments in perhaps-familiar cases:

* Extremist animal-rights group PETA, which not long ago cybersquatted on the domain ringlingbrothers.com where it posted anti-circus material, has prevailed in its legal battle (see July 3, 2000) to wrest the domain peta.org away from a critic which had used it for his contrarian “People Eating Tasty Animals” site (more/yet more). (Declan McCullagh, “Ethical Treatment of PETA Domain”, Wired News, Aug. 25).

* The Big Five Texas tobacco lawyers have enjoyed an almost perfect record of success so far in dodging investigation of their $3.3 billion-fee deal to represent the Lone Star State in the national tobacco litigation, but Texas Attorney General John Cornyn should not be counted out yet (see Sept. 1, 2000, May 22, 2000, June 21, 2001): last month he scored an advance for his long-stymied ethics probe when the Fifth Circuit ruled he should be given a chance to pursue state court proceedings aimed at putting the Five under oath about the lucrative arrangements (Brenda Sapino Jeffreys, “Texas Attorney General May Depose Tobacco Lawyers in State Court”, Texas Lawyer, July 30).

* Conceding that one of its execs did indeed use a disrespectful nickname for its Denver stadium (“the Diaphragm”, referring to its shape), the Invesco financial group agreed to drop its threatened defamation lawsuit (see July 5) against the Denver Post for reporting the remark (“Invesco won’t sue Post”, Denver Post, July 6).

August 27-28 – Clinical trials besieged. Since the Jesse Gelsinger case, where survivors of an 18-year-old who died in a gene-therapy experiment brought a successful lawsuit against the University of Pennsylvania, lawsuits have been burgeoning against universities, private health-research foundations and other sponsors of clinical trials and experimental medical treatments; one recent high-profile case targets the Fred Hutchinson Cancer Research Center in Seattle. The “suits have sent shudders through the biomedical community. … Some experts in the biomedical field believe the litigation will have a chilling effect on research that benefits humankind through scientific advancement. They also worry that volunteers will dry up.” A lawyer who specializes in the new suits makes a practice of suing not only researchers and deep-pocket institutions but also “bioethicists as well as members of institutional review boards, the volunteers charged with reviewing and approving clinical trials.” (on bioethicists, see also Oct. 6, 2000) (Vida Fousbister, “Lawsuits over clinical trials have doctors wary, but not quitting research yet”, American Medical News, April 16; Maureen Milford, “Lawsuits Attack Medical Trials”, National Law Journal, Aug. 21; Kate Fodor, “Insurance Companies Get Stricter on Clinical Trials “, Reuters/CancerPage.com, June 27; Christy Oglesby, “Volunteers sustain clinical trials”, WebMD/CNN, July 23).

August 27-28 – Recommended new weblog. Launched a few weeks ago, Instapundit by U. of Tennessee law prof Glenn Reynolds has already made it onto our must-read list with frequently updated commentary on such topics as gun laws, patients’ bill of rights legislation, abusive prosecution, the tobacco settlement, and stem-cell research. Also new among our “dailies” links (left column of front page) are Joshua Micah Marshall’s and Marshall Wittmann’s weblogs, both oriented toward political matters.

August 27-28 – “Jailed under a bad law”. “The arrest by federal authorities of a Russian computer programmer named Dmitry Sklyarov is not the first time the so-called Digital Millennium Copyright Act has led to mischief. It is, however, one of the most oppressive uses of the law to date — one that shows the need to revisit the rules Congress created to prevent the theft of intellectual property using electronic media,” contends the Washington Post in an editorial. Sklyarov wrote a program, legal in Russia, that enables users to defeat the copy-protection on Adobe’s eBook Reader system; the DMCA bans such programs even though they have uses unrelated to unlawful copying, and it does not require the government to prove in prosecution that facilitating piracy was part of a defendant’s intent. (Washington Post, Aug. 21; Julie Hilden, “The First Amendment Issues Raised by the Troubling Prosecution of e-Book Hacker Dmitry Sklyarov”, FindLaw, Aug. 10; Declan McCullagh, “Hacker Arrest Stirs Protest”, Wired News, July 19; Glenn Reynolds (see also other items in his weblog). More ammunition for anti-DMCA sentiment: Amita Guha, “Fingered by the movie cops”, Salon, Aug. 23.

August 27-28 – Urban legend alert: six “irresponsibility” lawsuits. Much in our inbox recently: a fast-circulating email that lists six awful-sounding damage awards (to a hubcap thief injured when the car drives off, a burglar trapped in a house who had to eat dog food, etc.). Circumstantial details such as dates, names, and places make the cases sound more real, but all signs indicate that the list is fictitious from beginning to end, reports the urban-legends site Snopes.com (Barbara Mikkelson, “Inboxer rebellion: tortuous torts“). Snopes also has posted detailed discussions of two of the other urban legends we get sent often, the “contraceptive jelly” yarn, which originated with a tabloid (“A woman sued a pharmacy from which she bought contraceptive jelly because she became pregnant even after eating the jelly (with toast).” — “Jelly babied“) and the cigar-arson fable (“A cigar aficionado insures his stogies against fire, then tries to collect from his insurance company after he smokes them.” — “Cigarson“). What we wonder is, why would people want to compile lists of made-up legal bizarreries when they can find a vast stockpile of all-too-real ones just by visiting this website? (DURABLE LINK)

NAMES IN STORIES: The never-happened stories include tales about “Kathleen Robertson of Austin Texas” (trips on her toddler in furniture store); “Carl Truman of Los Angeles” (hubcap theft) “Terrence Dickson of Bristol Pennsylvania” (trapped in house), “Jerry Williams of Little Rock Arkansas” (bit by dog after shooting it with pellet gun), “Amber Carson of Lancaster, Pennsylvania” (slips on drink she threw), and “Kara Walton of Claymont, Delaware” (breaks teeth while sneaking through window into club). All these incidents, to repeat, appear to be completely fictitious and unrelated to any actual persons with these names.

August 27-28 – “Incense link to cancer”. Just when you thought it was safe to go back to the Sixties (BBC, Aug. 2). But not to worry, since it seems everything else in the world has also been linked to the dread disease: Brad Evenson, “Everything causes cancer — so relax”, National Post (Canada), Aug. 4.

August 24-26 – “Delta passenger wins $1.25 mln for landing trauma”. Outwardly uninjured after a terrifying emergency landing en route to Cincinnati in 1996, Kathy Weaver has nonetheless won $1.25 million from Delta Air Lines after her lawyer persuaded a Montana jury that the episode had caused her to suffer post-traumatic stress syndrome and an aggravation of her pre-existing depression. The judge ruled that “her terror during the landing led to physical changes within the brain that could be defined as injury”. (Reuters/Yahoo, Aug. 23; PPrune thread) (more on white-knuckle lotto: Oct. 19, 2000, Oct. 8, 1999).

August 24-26 – “Cessna pilots association does some research…”Last week’s decision by a Florida jury to ding Cessna to the tune of $480 million for allegedly faulty chair railings in a Cessna 185 has raised more than a few eyebrows,” reports AvWeb. “Cessna’s lawyers blamed the crash on pilot error — as did the NTSB final report — but the plaintiffs’ attorneys argued that the seat-latching mechanism was defective, and the seat slipped back suddenly as the pilot was trying to land. A plaintiff’s attorney was quoted in the Wall Street Journal last week as saying that Cessna ‘knew the seats could slip, but they never told the pilots that.’” On the contrary, says the Cessna pilots association: the company issued a service advisory in 1983, a Pilot Safety and Warning Supplement in 1985, and in 1989 offered all owners a free secondary seat-stop kit “that would provide positive retention of the seat in the event that the primary system failed. Owners had to pay for about three hours’ labor at a Cessna Service Center to install the free kit.” In 1987, the FAA issued its own Airworthiness Directive “with detailed instructions for inspecting the seat-latching system for wear, pin engagement and cracks”. (AvWeb, undated). More of what general aviation folks have to say about that jury award (much of it highly uncomplimentary): AvWeb reader mail; Pprune threads #1, #2.

August 24-26 – Can I supersize that class action for you? The FBI has charged eight persons in the conspiracy, allegedly dating back to 1995, to steal the winning pieces in McDonald’s promotional Monopoly game. Although the fast-food chain was among the victims of the scheme and has already promised a make-it-up sweepstakes promo, can we doubt that the class action lawyers will soon descend? “And never mind those gloomy folk who say the lawyers will win millions while the rest of us each gets a coupon for a packet of fries.” (“They Knew It” (editorial), Washington Post, Aug. 23); Yahoo Full Coverage).

August 24-26 – The document-shredding facility at Pooh Corner. “A family-owned company that receives royalties from the sale of Pooh merchandise says that Walt Disney Co. has cheated it out of $US 35 million … by failing to report at least $US 3 billion in Pooh-related revenue since 1983. … the case has been entangled in Los Angeles Superior Court for a decade …. Last year a Superior Court judge sanctioned Disney for deliberately destroying 40 boxes of documents that could have been relevant to the case, including a file marked ‘Winnie the Pooh-legal problems’”. (“Claimants call Pooh a bear of very little gain”, L.A. Times/Sydney Morning Herald, Aug. 17). Update Mar. 30, 2004: court dismisses suit after finding misconduct on plaintiffs’ side. (DURABLE LINK)

August 24-26 – More traffic records at Overlawyered.com. What summer slowdown? Last week set a new record for pages served, and so did last month … thanks for your support!

August 22-23 – Meet the “wrongful-birth” bar.BIRTH DEFECTS — When did your doctor know? … You may be entitled to monetary damages,” according to an advertisement by the law firm of Blume Goldfaden Berkowitz Donnelly Fried & Fortea of Chatham, N.J. The theory behind “wrongful-life” and “wrongful-birth” suits? “If the health team had done its job, the [parents] would have known of the defect — and could have chosen not to have the baby. … Lawyers file the cases if — and only if — the parents are prepared to testify that they would have aborted the pregnancy.” Many disabled persons, joined by others, are not exactly happy about the premise that it might be better for some of the physically imperfect among us never to have been born. Attorneys believe such cases “will become more common as prenatal sonograms, blood tests, and genetic counseling become routine, and the public learns of the potential for large financial awards when genetically defective babies are born.” “Any child born with a birth defect has a potential wrongful birth or wrongful life claim,” says one optimistic lawyer. (Lindy Washburn, “Families of disabled kids seek peace of mind in court”, Bergen Record, Aug. 19; “N.J. has taken lead in allowing parents, children to sue”, Aug. 19). Note the bizarre headline on the first of the two stories: just how likely is it that “peace of mind” will be found by having the parents swear out a permanent public record to the effect that they wish their child had never been born? (more on wrongful birth/life: Nov. 22-23, Sept. 8-10; June 8, May 9, Jan. 8-9, 2000). (DURABLE LINK)

August 22-23 – Pricing out the human species. According to Idaho governor Dirk Kempthorne, the federal government’s proposal to reintroduce grizzly bears into Idaho “assumed injury or death to people and even calculated the value of human life. A human killed by a grizzly bear in Idaho would cost the federal Treasury between $4 million and $10 million, and the plan even amortized the annual costs at $80,000-$200,000. As far as we know, this is the first time that death or injury to humans has been factored into a program proposed by the federal government under the [Endangered Species Act].” (“Risk to humans too great”, USA Today, Aug. 17). And did reluctance to draw water from a river containing threatened fish contribute to the deaths of four firefighters during a big wildfire in Okanogan County, Wash. last month? (Chris Solomon, “Why Thirty Mile Fire raged without water”, Seattle Times, Aug. 1; “Endangered Fish Policy May Have Cost Firefighters’ Lives”, FoxNews.com, Aug. 2).

MORE: “NWFP [Northwest Forest Plan] standards and guidelines and other agency policies such as PACFISH set streamside buffers with virtually zero risk to fish species, regardless of the effects of large buffers to other management objectives. Managing risks requires value-based decisions. We understand that the zero-risk [to fish -- ed.] approach is largely a result of lawsuits….” (James E. Brown of the Oregon Department of Forestry at a House Agriculture Committee oversight hearing, June 21, 1999 — scroll to near end of document). (DURABLE LINK)

August 22-23 – Slavery reparations suits: on your mark, get set… “By year-end, an all-star team of lawyers calling themselves the ‘Reparations Coordinating Committee’ plans to file a suit seeking reparations for slavery. … Multiple cases in multiple forums are likely. The defendants will come from both the public and private sectors”; among businesses likely to be named as defendants is J.P. Morgan Chase. (Paul Braverman, “Slavery Strategy: Inside The Reparations Suit”, American Lawyer, July 6). Harvard Law prof Charles Ogletree said “‘an amazing series of possible actions’ is slated for early next year.” (Emily Newburger, “Breaking the Chain”, Harvard Law Bulletin, Summer). Some of the reasons it’ll be a terrible idea: John McWhorter, “Against reparations”, The New Republic, July 23 (more on reparations: July 6-8, April 17, Dec. 22-25, 2000 and links from there). (DURABLE LINK)

August 22-23 – “New York State’s Gun Suit Must Be Dismissed”. No, bad lawsuits don’t always prosper: “The New York state attorney general’s novel lawsuit to find the gun industry liable under a nuisance theory must be dismissed,” Justice Louis B. York has ruled in Manhattan. New York was the only state to have joined 32 municipalities in suits against the gun industry that aim to extract money from gunmakers as well as arm-twist them into adopting various gun controls that legislatures have declined to enact. New York AG Eliot Spitzer is said to be “dismayed” by the decision. Good! (Daniel Wise, New York Law Journal, Aug. 15).

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September 8-10 – Netscape “Cool Sitings” of the day. Overlawyered.com was one of the picks on Thursday’s edition of Netscape’s much-surfed “Cool Sitings” feature. Their write-up: “Legal Shenanigans. If the joke: ‘What do you call 1000 lawyers at the bottom of the sea? A good start’ rings true for you, check out this site” (Sept. 7). And we’re also today’s (Friday’s) web pick of the day at the Memphis Commercial Appeal‘s “C.A. Eye“.

September 8-10 – …Than never to have been born at all. By a 4-3 margin, the Ohio Supreme Court has declined to let a 7-year-old with spina bifida sue her parents’ doctors on a claim of “wrongful life”. The little girl’s argument — at least, the argument put forth on her behalf in court — is that had the doctors told her parents about the availability of a prenatal test that would have disclosed her abnormality, they would have had an abortion, and that she suffered injury because they failed to do so. “Chief Justice Thomas J. Moyer, writing for the majority, said courts do not have the authority to decide if a person should or should not have been born.” Justices Paul Pfeifer, Andrew Douglas and Alice Robie Resnick dissented. (Spencer Hunt, “Girl has no right to sue”, Cincinnati Enquirer, Sept. 7; “Ohio Court Rules Against Parents”, AP/FindLaw, Sept. 7; decision, Hester v. Dwivedi) (see also May 9).

September 8-10 — “NZ kids get ‘license’ to play with toy guns”. “Children as young as four in New Zealand are being required to apply for ‘licenses’ for toy guns.” They must explain why they want one, and playing cops and robbers is not a good enough reason. (Sydney Morning Herald, Sept. 6). Also: an Australian radio talk show host, convicted of improperly soliciting information about the deliberations of a jury, was “given a 15-month suspended sentence … because the judge believed he was too wealthy to fine and too famous to jail.” (Stephen Gibbs, “Laws too famous to jail, says judge”, Sydney Morning Herald, Sept. 6).

September 8-10 – “A perverse use of antitrust law”. “The Justice Department could hardly have come up with a more harmful set of demands than those it now makes [on Microsoft],” writes Charles Munger, vice chairman of famed investor Warren Buffett’s Berkshire Hathaway. “If it wins, our country will end up hobbling its best-performing high-tech businesses. And this will be done in an attempt to get public benefits that no one can rationally predict.” (Charles Munger, Washington Post, Sept. 1). More: “Did Microsoft Harm Consumers? Two Opposing Views”, by David S. Evans, Franklin M. Fisher, Daniel L. Rubinfield, and Richard L. Schmalensee, AEI-Brookings Joint Center for Regulatory Studies (abstract, full text (PDF format), order form); David Boaz, “The theft of Microsoft”, Cato Daily, July 27; Jonathan Rauch, “The Microsoft Case: Fair, Necessary, and Totally Random”, National Journal, June 10.

September 8-10 – “State errors unfairly cast some dads as deadbeats”. A federal law has mandated toughening of state child support collection systems. Unfortunately, reports Marilyn Gardner of the Christian Science Monitor, the resulting overhauls have increased the rate of billing errors in some of the systems and led to parents mistakenly being labeled deadbeats (August 9).

September 8-10 – $1.5 million estate bill included 900 hours spent on fees. An Indiana appeals court has rebuked a law firm which billed heirs $1.5 million for handling an inheritance case, including 900 hours it says it spent calculating its fees. The Indianapolis law firm of Henderson, Daily, Withrow & DeVoe had worked on the estate of former Conseco Inc. executive Lawrence W. Inlow, who died without a will at age 46 in a helicopter accident leaving an estate of $185 million. “Requiring a client to pay an additional amount for being told what he owes in the first instance is neither good business nor good law,” wrote Judge Sanford M. Brook for the appeals court. (“Court Rejects Attorneys’ Charge”, AP/FindLaw, Sept. 7) (court opinion, Inlow children v. Estate of Inlow).

September 6-7 – Prosecution fears slow crash probes. Aviation accidents almost never used to result in the filing of criminal charges, but in recent years they’ve been the subject of several highly publicized prosecutions. A House Transportation Committee hearing in late July looked into evidence that fear of incarceration or fines is now discouraging witnesses from cooperating with crash investigators. “For decades, we had relied on individuals to tell us what happened in an accident — and they usually, sometimes reluctantly, do so,” said Daniel Campbell, managing director of the official National Transportation Safety Board. But “what has been reluctance to cooperate may become refusal to cooperate.” Campbell said prosecution fears had also made it hard to investigate a recent nonaviation accident, a fatal pipeline explosion in Bellingham, Wash., last year. As a result, “more than a year later, we still have not been able to talk to most of the key individuals who were operating the pipeline when it ruptured and may not be able to in the foreseeable future.” A federal grand jury subpoena also “resulted in a significant delay in the investigation,” Campbell said. “In our view, too much lawyering went on before we were able to test the physical evidence of that tragedy.”

“The recent trend towards the criminalization of aircraft accidents is extremely alarming in that it has the potential to cripple industry’s ability to learn from incidents and accidents, essentially guaranteeing that we will repeat them,” said Capt. Paul McCarthy of the Air Line Pilots Association. He cited the 1996 ValuJet crash in Florida, the USAir 1989 crash at LaGuardia, and the recent Alaska Air crash off the California coast as examples of cases where safety investigations had been slowed. (House Transportation Committee, Aviation Subcommittee, hearing summary, Campbell, McCarthy statements; thread on Professional Pilots bulletin board)

September 6-7 – Update: second chance for Wal-Mart. The giant retailer has won a rematch in the case of former employee Ricky Bourdouvales, who sued alleging discrimination based on transsexualism (male-to-female). Judge Douglas Hague issued a default judgment of $2.1 million when Wal-Mart failed to show up in his New Jersey court (see July 21), but has now agreed to grant a retrial. (“Judge Tosses Trans Bias Award”, PlanetOut, Aug. 28).

September 6-7 – Australian roundup. A now-retired New South Wales judge has come under criticism from the losing plaintiffs in a large case, who complain in their appeal that more than 200 pages of his 247-page opinion consist of material cut and pasted from the submissions made by the two sides. The judge had called the case, over the Copper-7 contraceptive IUD, the longest and most complex product liability case in Australian history. (“Judge ‘cut and paste’ in making his decision on IUDs”, AAP/The Age (Melbourne), Aug. 29). Five partners of a Sydney law firm that handles a large volume of immigration work are suing Immigration Minister Philip Ruddock for defamation, “claiming he implied they were unethical and overcharged clients.” (“Ruddock sued for defamation by lawyers”, AAP/The Age (Melbourne), Aug. 29). And a 1998 finding by a federal justice that a prominent Brisbane law firm engaged in abuse of legal process ignited a debate about the condition of the law in Australia; a national TV show explored widespread discontent over the gamelike aspects of adversary process, interviewing both leading insiders of bench and bar and two outspoken critics, former defense lawyer and prosecutor Brett Dawson and journalist Evan Whitton (“The justice system goes on trial”, Ross Coulthart, reporter, Sunday/NineMSN, Transcript #252, undated). One passage among many that caught our eye:

REPORTER: Do you think there’s a case to argue that some of the ethical rules that lawyers have actually almost encourage dishonesty among lawyers?

JUSTICE [GEOFFREY] DAVIES: Yes I do. One of the examples is that a lawyer can ethically deny an allegation in the opponent’s pleading knowing it to be true.

REPORTER: You’re kidding – so you can basically lie?

JUSTICE DAVIES: Well, what lawyers would say is that you are putting the other side to proof.

REPORTER: It’s a lie though isn’t it?

JUSTICE DAVIES: It is.

September 6-7 – Bill for pizza delivery: $1.25 million? A Cocoa Beach, Fla. jury voted, but a federal judge almost immediately threw out, an award of one and a quarter million dollars to a black family that ordered home delivery from Pizza Hut and found a racial slur included as part of the computer-generated receipt. Judge Patricia Fawsett ruled that responsibility lay with the unauthorized actions of a rogue employee and could not fairly be charged to the company. (“Judge throws out $1.25M verdict against Pizza Hut”, Orlando Sentinel, Sept. 1).

September 5 – EEOC: offbeat beliefs may be protected against workplace bias. “Belief in radically unconventional scientific notions, such as ‘cold fusion’ or cryptic messages from extraterrestrials, may merit the same workplace protections as freedom of religion, according to a ruling by the Equal Employment Opportunity Commission in a job-discrimination case.” The case arose from the April 1999 firing by the U.S. Patent and Trademark Office of patent examiner and astronomer Paul A. LaViolette, who claims the action was taken because he holds unconventional beliefs, including a belief in the highly controversial theory of energy generation through “cold fusion”. In the words of the Washington Post, LaViolette’s website, www.etheric.com, “details his ‘proof’ of the existence of alien radio communication, his theory that the zodiac is a ‘time capsule message’ warning of emanations from the galactic center and his views on the Sphinx, the Tarot and Atlantis, along with his considerable accomplishments in mainstream science.” (Curt Suplee, “EEOC Backs ‘Cold Fusion’ Devotee”, Washington Post, Aug. 23).

September 5 – Tax software verdict: pick a number. A Hinds County, Mississippi jury “awarded the state of Mississippi $474.5 million in its suit against a company that failed to deliver on a new tax processing system that was supposed to modernize the state’s collection efforts.” The verdict against Fairfax, Va.-based American Management Systems Inc. included $299.5 million in actual damages and $175 million in punitive damages. A few days later, the company settled the suit by agreeing to pay the state $185 million. The company has contracts with seven other states to operate similar computerized tax systems; no other lawsuits are pending. (“Company loses tax software suit”, AP/USA Today, Aug. 24; “Settlement cuts tax software verdict”, Aug. 29).

September 5 – Juries and cost-benefit analysis. W. Kip Viscusi, professor at Harvard Law, says businesses today get conflicting signals on the use of cost-benefit analysis in safety matters: a large academic literature encourages them to engage in such analysis as part of their responsibility to the public, but juries get furious when they think that sort of “cold-blooded calculation” has gone on. Moreover, there’s evidence to support the paradoxical finding that the higher a valuation of life and limb a company employs in such an analysis, the more stringently it will be punished by subsequent juries. (“The Trouble With Lawsuits”, TechCentralStation, May 29; Manhattan Institute, luncheon transcript).

September 4 – Emulex fraud: gotta find a defendant. “With the manhunt for the perpetrator of the Emulex fraud [false news report torpedoed company's stock] apparently over, investors burned by the company’s $2 billion post-fraud swing are now hunting for someone, anyone, to sue for legal damages. Two lawsuits have already been filed, one against Internet Wire, which originally distributed the bogus press release, and one against both Internet Wire and Bloomberg, the financial news service that sent out a story based on the press release.” (Craig Bicknell, “Emulex Victims: Who Can We Sue?”, Wired News, Sept. 1).

September 4 – Record-breaking securities class action fee: $262 million. A federal judge in New Jersey last month approved a fee of $262 million for plaintiffs’ lawyers in the securities fraud case stemming from the collapse in the stock price of Cendant Corporation (see June 20). Judge William Walls upheld the record-breaking fee against objections from New York City, a member of the investor class, reasoning that the two lead law firms, New York’s Bernstein Litowitz Berger & Grossman and Philadelphia’s Barrack, Rodos & Bacine, had taken part in a fairly run auction to determine who would get to represent the investors. (Daniel Wise, “Cendant Lawyers Get Record $262 Million in Securities Fraud Case”, New York Law Journal, Aug. 22).

September 4– “Just put the candy in the bag, lady.” “I’ve been watching the lawsuits over Columbine with interest bordering on disgust. It seems the argument is that someone (preferably a government agent not affiliated with the Postal Service, or failing that, any random person with deep pockets) should have foreseen the future and intervened,” writes Paul Kelly, a former vice chair of the Boulder, Colo. Democratic Party. “…If this new ‘everybody’s negligent all the time’ social philosophy seems silly to you, it’s probably because you’re not a lawyer. To a lawyer this is like Halloween to a 10-year-old. ‘Just put the candy in the bag, lady. And hurry. There are still five families on this block I haven’t sued yet.’” (“Doing nothing may be best option”, Denver Post, Aug. 13).

September 1-3 – Texas tobacco fees: Cornyn’s battle. In December 1998 an arbitration panel awarded a stupendous $3.3 billion in legal fees to five law firms selected by former Texas Attorney General Dan Morales to represent the state in the tobacco-Medicaid litigation, which had ended in a $17 billion settlement. The Big Five firms, all high rollers in Lone Star State personal-injury litigation and all major Democratic Party donors, include Beaumont, Texas’s Provost & Umphrey (Walter Umphrey), Houston’s Williams & Bailey (John Eddie Williams), Harold Nix’s law firm in Daingerfield; Beaumont’s Reaud, Morgan & Quinn (Wayne Reaud); and John O’Quinn’s firm in Houston.

Mr. Morales’s Republican successor as Texas Attorney General, former Texas Supreme Court Justice John Cornyn, ran for office in part on a pledge to investigate the circumstances surrounding the fees, and his probe soon led to some eye-opening revelations (see May 22). A Houston lawyer named Marc Murr, who’d earlier worked at the same law firm with Morales, had stepped forward after the settlement to claim a $520 million (later $260 million) share of the proceeds, a mystifying claim since participants could not remember Murr doing work on the case or being considered part of the state’s team. Murr pointed to a hitherto unsuspected contract with Morales entitling him to a piece of the action, but Cornyn hired forensic experts who concluded that the contract had been doctored and backdated. Rather than be put under oath about the matter, Murr withdrew his claim to the fees; a U.S. attorney’s office has the matter under investigation.

As for the circumstances by which the Big Five came by their fees, Cornyn’s investigation has met with a stone wall of resistance and non-cooperation from Umphrey, Williams, Nix, Reaud and O’Quinn. In particular, he would like to investigate what the Houston Chronicle describes as “longtime allegations that [Morales] solicited large sums of money from lawyers he considered hiring” for the suit. Two years ago famed Houston attorney Joe Jamail, who wasn’t among those picked to represent the state, “said Morales solicited $1 million from each of several lawyers he considered hiring”, in addition to the $2 million that each of the five agreed to front to finance the case. “The money, according to memos prepared by Jamail, purportedly was for a fund to help Morales defend himself against political or public relations attacks from cigarette companies during the litigation.” Last year in sworn testimony Dawn Nelson, ex-wife of Big Five lawyer John Eddie Williams, said “Williams had told her that Morales wanted $1 million from one or more of the lawyers that were hired for the tobacco case,” the Chronicle reported.

In an interview last November cited in the same Chronicle reportage, Morales said that the purpose of the money might have been misunderstood and that he didn’t intend it to be used for his personal or political benefit. In May, the Five filed statements in court saying they had not paid any consideration for the chance to participate in the litigation. But they’ve consistently refused to go under oath to answer Cornyn’s questions, and skillful legal maneuvering on their behalf has kept at bay that alarming prospect — first by their successful removal of his legal action away from state court and into the hands of the same federal judge in Texarkana whom they initially selected to hear the Medicaid-recoupment case (see “Best little forum-shopping in Texas”, Aug. 27, 1999), and now with their obtaining of a ruling by that judge last month that Cornyn has no independent right to question the lawyers except under such terms as he, the judge, may see fit to approve in future (Cornyn plans an appeal of that ruling to the Fifth Circuit). The Five have also sought a gag order to prevent the press or anyone else from getting a look at documents generated by the investigation, notwithstanding the usual publicly proclaimed stand of organized trial lawyers that “protective orders” of that sort are an affront to the public’s right to know and serve only to shroud wrongdoing in secrecy. And, like other lawyers who have represented the states in the tobacco recoupment litigation, they have argued that the fees are not an appropriate subject for review by representatives of the taxpayers because they are formally structured so as to be paid directly by the cigarette companies, rather than be routed through the state as part of its payment as is customary.

The Big Five also claimed $40 million in reimbursement for out-of-pocket expenses (as distinct from legal fees) but at the end of May they returned $6.9 million of this money, saying the earlier sum had been overstated. “Their misrepresentation of expenses just raises more questions and strongly reinforces the need to determine what happened in the tobacco case,” Cornyn said. “After 18 months of assuring the people of Texas that their expenses were justified in every way … [they] are now returning millions of dollars with no satisfactory explanation as to why.” Michael Tigar, attorney for the Five, said the earlier sum had been a good-faith estimate and that deviations from such estimates are common. (DURABLE LINK)

SOURCES: Kelley Shannon, “Cornyn, rebuffed in federal court, vows to appeal”, AP state and local wire, Aug. 16, not online, available on NEXIS; “Five attorneys say Morales not paid for contract in anti-tobacco lawsuit”, AP state and local wire, May 12, not online, available on NEXIS; Brenda Sapino Jeffreys, “As Tobacco Lawyers Return Money, Questions Return”, Texas Lawyer, June 9; “Tobacco trial lawyers admit misrepresentation”, Cornyn press release, June 1; Susan Borreson, “Tobacco Plaintiffs’ Lawyers Won’t Enforce Contract With State”, Texas Lawyer, December 2, 1999; Robert Bryce, “Nicotine Fit”, Texas Observer, November 26, 1999; Janet Elliott, “‘Tobacco Five’ Want Confidentiality Order”, Texas Lawyer, Sept. 9, 1999.; Clay Robison, “Cornyn moves in on anti-tobacco lawyers”, Houston Chronicle, April 27. Murr case: Miriam Rozen, “Smoke-filled room”, Dallas Observer, Sept. 17, 1998; “Pay up?”, April 22, 1999; Patrick Williams, “Buzz”, Dec. 17, 1998, May 20, 1999; Jim Brickman, “What Would I Ask Former Attorney General Dan Morales In the Grand Jury Investigation?“, Citizens for Lawsuit Abuse Houston; John R. Butler, Jr., “Dan Morales and Marc Murr Have Some Explaining To Do To All Texans“, CALA Houston.

September 1-3 – “Olympic trials”. At least ten athletes, after falling short in efforts to make the U.S. Olympic team in their sports, have insisted on going to arbitration or in one case to federal court, according to columnist Kimberly Strassel of the Wall Street Journal‘s online Opinion Journal (Aug. 31; see also Mark R. Madler, “Judges Wrestle With Epic Case of Olympic Athlete” (wrestlers), American Lawyer Media, Aug. 31.

September 1-3 – “Don’t talk to the humans”. Some years back the federal government issued regulations on universities’ use of human experimental subjects. How strictly are these rules being enforced? So strictly that a scholar can get in big trouble by not asking an official committee’s permission before visiting a retirement home and chatting with one of the elderly residents about his life. (Christopher Shea, Lingua Franca, Sept.) (via Arts & Letters Daily).