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Wyoming

July 5 roundup

by Walter Olson on July 5, 2012

  • “After drunken driver kills son, mother billed for cleanup” [Greenville News, S.C.]
  • Cities, states and school districts in California will be among losers if Sacramento lawmakers pass bill authorizing phantom damages [Capitol Weekly; more on phantom damages]
  • New from Treasury Dept.: steep exit fees for many corporations departing U.S. domicile [Future of Capitalism, TaxProf]
  • Jonathan Lee Riches is back filing his hallucinatory lawsuits again, and courts don’t care to stop him [Above the Law] More: Lowering the Bar.
  • Funny 1988 letter from Wyoming lawyer to California lawyer about fees [Letters of Note via Abnormal Use]
  • L.A. family is considering adding another valedictorian lawsuit to our annals [L.A. Times, earlier]
  • Effort to compensate Japanese nuclear accident victims is proceeding without much litigation [WaPo]

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[cross-posted from Cato at Liberty]

The first copies of my new book Schools for Misrule: Legal Academia and an Overlawyered America are here from the printer, and I’ll be touring the country to promote it in coming weeks. Some highlights:

  • February 21. Bloomington, Ind. Indiana University Law School, sponsored by Federalist Society chapter.
  • February 22. Urbana-Champaign, Ill. University of Illinois School of Law, sponsored by Federalist Society chapter. Commenting will be Prof. Larry Ribstein.
  • March 3. Washington, D.C. Cato Institute Policy Forum. Commenting on the book will be the Hon. Douglas Ginsburg, U.S. Court of Appeals, and moderating will be Cato legal director Roger Pilon.
  • March 10. University of Minnesota, sponsored by Federalist Society chapter. Commenting will be Profs. Brad Clary and Oren Gross, and moderating will be Prof. Dale Carpenter.
  • March 16. New York, N.Y. Manhattan Institute luncheon (invitation). Commenting will be James Copland, Manhattan Institute.
  • March 22. Washington, D.C. Heritage Foundation forum. Commenting/moderating: Todd Gaziano, Heritage Foundation.
  • March 28. Boulder, Colo. University of Colorado School of Law, sponsored by Federalist Society chapter.
  • March 29. Laramie, Wyo. University of Wyoming School of Law, sponsored by Federalist Society chapter.
  • March 30. Sacramento, Calif. McGeorge School of Law, sponsored by Federalist Society chapter.
  • April 6. New York, N.Y. Manhattan Institute Young Leaders evening event (private).
  • April 7. Washington, D.C. American University Law School, sponsored by Federalist Society chapter.
  • April 13. Washington, D.C. Book club appearance (private).
  • April 27-29. Dallas, Tex. Heritage Foundation Resource Bank meeting (private).

Always check in advance with the hosting group for venues and exact times; some events open to the public require advance registration. The book’s official publication date is March 1, and copies should be arriving in the bookstores soon.

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The Wyoming-based legal gunslinger spoke at the annual conference of the Consumer Attorneys of California, and (U.S. Chamber-backed) Legal NewsLine took down some audience-rousing quotes that went pretty far even by grandiose Spence standards: “We are the most important people in America… I want to ask you which would be more important: If all of the doctors in the country somehow disappeared or all the trial lawyers in America somehow disappeared?” he asked. “We can live without medical care, but we cannot live without justice.” (Chris Rizo, “Spence: Trial lawyers more important than doctors”, Nov. 12).

More from Dan Pero: “Was it just bad timing or some sort of cosmic justice that Mr. Spence made this preposterous claim on Veterans Day?”

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March 1 roundup

by Ted Frank on March 1, 2008

  • Oregon Supreme Court plays chicken with SCOTUS over $79.5 million punitive damages award in Williams v. Philip Morris case. [Sebok @ Findlaw; Krauss @ IBD; POL Feb. 1]
  • Speaking of punitive damages, I did a podcast on Exxon Shipping v. Baker. I can’t bear to listen to it, so let me know how I did. [Frank @ Fed Soc]
  • Arkansas case alleged legal sale of pseudoephedrine was “nuisance” because meth-makers would buy it; case dismissed. [Beck/Herrmann]. This is why I’ve stockpiled Sudafed.
  • Lawyers advertise for refinery explosion victims before fire goes out. [Hou Chron/TLR]
  • Connecticut Supreme Court: cat-attack victim can sue without showing past history of violence by animal. [On Point] Looking forward to comments from all the anti-reformers who claim to oppose reform because they’re against the abrogation of the common law.
  • Op-ed on the Great White fire deep pockets phenomenon. [SE Texas Record; earlier: Feb. 2]
  • “FISA lawsuits come from Twilight Zone.” [Hillyer @ Examiner]
  • Legislative action on various medical malpractice tweaking in Colorado, Hawaii, and Wyoming. [TortsProf]
  • Request for unemployment benefits: why fire me just because I asked staffers for a prostitute? [Des Moines Register]
  • “So much for seduction and romance; bring in the MBAs and lawyers.” [Mac Donald @ City Journal; contra Belle Lettre; contra contra Dank]
  • Where is the Canadian Brandeis standing up for free speech? [Kay @ National Post]
  • In defense of lobbying. [Krauthammer @ WaPo]

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September 25 roundup

by Walter Olson on September 25, 2007

  • Picture of farmer with goose appears on greeting card, he wants $7.5 million [Roanoke Times; earlier]

  • More class actions filed over Apple iPhone [Ars Technica on roaming and battery claims, O'Grady's PowerPage, iPhoneWorld; earlier]

  • L.A. Times quotes attorney Stephen Yagman on prison overcrowding, but forgets to mention that he was lately convicted of thirteen felonies [Patterico]

  • Bad idea watch: compulsory national service [Somin @ Volokh]

  • Doing well representing the little guy: Gerry Spence lists his Wyoming residence for sale at $35 million [WSJ/Chicago Daily Herald]

  • “Appropriate”, not “perfect”, justice needed: “We simply have to stop killing litigants with kindness,” says chief judge of Australia’s largest state [The Australian]

  • Toddler killed after wandering into heavy traffic, trucker should have been more on guard against such a thing happening [Salt Lake Tribune]

  • Pennsylvania pro se litigant sues Google, says it spells his social security number upside down [Ambrogi] More: Coyote says “Up next, the owner of Social Security number 71077345 sues Shell Oil for the same reason.”

  • Once billed as “King of Torts”, Miami asbestos lawyer faces fifteen years behind bars for stealing $13 million from clients [Sun-Sentinel]

  • Groom sues bride, saying she took the ring and presents and never got the wedding paperwork straightened out leaving them legally unmarried [ClickOnDetroit]

  • Surgical resident on the hook for $23 million in Wisconsin case; she was the only one of the docs involved not covered by damage limits [Journal Sentinel via KevinMD]

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Hospital X was grossly — if not criminally — negligent, and you ought to award zillions of dollars in punitive damages for their misconduct! Consider this list of sins: this hospital knew that its surgeon was mentally ill. He had been diagnosed with bipolar disorder, and they knew it. He had been locked up in mental institutions at least twice before. The danger here was very real. Don’t let them try to claim they didn’t foresee danger. Why, once when that surgeon was operating on a patient, multiple witnesses will tell you that he “became disoriented during the surgery, forgot the names of certain instruments and at one point appeared to be talking to the wall!” Even after he was treated, two different psychiatrists who evaluated him refused to unequivocally state that he was competent. And they let him continue to operate on vulnerable patients. Without any supervision. Even though they knew he had a history of failing to take his medication.

Well, that would be the summary of my argument to the jury if the surgeon in question botched my poor client’s operation and left him permanently injured. So a hospital would have to be crazy to let this state of affairs go on, right?

Right. Except that when Wyoming Valley Health Care System decided not to take any chances, and refused to let mentally ill surgeon Jonathan Haas operate without supervision, he sued the hospital in federal court for violating the Americans with Disabilities Act. And this week, a Pennsylvania jury awarded $250,000 to Haas for this violation of his rights. That’s the case, even though the Americans with Disabilities Act ostensibly has an exception for situations where employing the disabled person would be a threat to the health or safety of other people.

Haas’s complaint was that since he couldn’t find anybody to supervise him, the hospital’s condition effectively prevented him from acting as a surgeon. (Oddly, once this happened, Haas moved on to a hospital in Minnesota which imposed exactly the same supervisory requirement on him, which he accepted. But neither the judge nor jury found that relevant to the question of whether the requirement was reasonable.)

In short, the hospital had the choice of risking a patient’s life and being sued for malpractice, or restricting the privileges of the surgeon and being sued for discrimination. (And we know that had a patient sued for malpractice, the hospital couldn’t possibly have defended itself by pointing to the requirements of the ADA and saying that it was forced to employ the surgeon.)

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The Wyoming injury lawyer is known for his extended rants on the theme of the People versus the Interests, which makes it piquant to see his name turn up so prominently among exploiters of a federal tax provision intended to benefit the needy, in this case — through his Trial Lawyers College — allowing him to maintain his control over a spectacular 220-acre ranch while dodging the taxman. ABC News has the details (Jake Tapper and Avery Miller, “Wealthy Cash In on Charity Tax Loophole”, Mar. 24). Trial lawyer/blogger Mike Cernovich, a satisfied customer of Spence’s seminar operation, praised it here, while his co-blogger Norm Pattis more recently noted the tax-avoidance story.

Many farmers use anhydrous ammonia as fertilizer, because it provides vital nitrogen nutrients to the soil. The combustible material is produced in Louisiana, and then shipped to the Midwest on barges or through pipelines, and then stored on tanks on farms. However, ammonia is also useful for making illegal methamphetamines, and thefts are a regular problem. (KOMU-TV, “Law Officers Fight Ammonia Thefts”, May 19). If a thief injures himself tampering with an ammonia tank, should he be able to sue the farmer for the injury? Three states, Kansas, Missouri, and Wyoming, say no, and provide immunity for those who store, handle, or own ammonia equipment from suit by thieves. Legislatures are considering the issue in other midwestern states.

The misnamed anti-tort reform Center for Justice & Democracy has noticed the success of the ATRA’s judicial hellhole campaign (Dec. 15; Dec. 3, 2003), and decided to respond with its own report, the “Zany Immunity Law Awards”, intended to single out “special interests” who opportunistically subvert the legislative system to get improper immunity from liability. The cover shows a legislator receiving a statuette, cash in his pocket, and roses with a ribbon labeled “Sleaziest Legislation.”

Exposing sleazy special-interest immunity laws is a noble sentiment–but it’s a sure sign of how few and far between such laws are that CJD singles out the sensible anhydrous ammonia immunity laws for its top ten list. The CJD incorrectly blames the law on a supposed “anhydrous ammonia business lobby”; in fact, it’s groups like the Michigan Farm Bureau that push for laws like Michigan S.B. 786. Indeed, the only group to oppose such laws? Trial lawyers’ lobbying groups. See also Kelly Lenz, “Fertilizer law to help farmers”, Farm and Auction, Jun. 12, 2002.

How ridiculous are the CJD awards? One of the top ten “zany immunity laws” refers to “immunity” granted to placebo manufacturers and distributors. Except the immunity in question isn’t immunity–it’s an exception to a criminal statute prohibiting the sale of fake drugs! E.g., Fla. Stat. 817.564(6)(a). (This is the only appearance of the word “placebo” in the Florida Code. It’s telling that CJD omits the statutory cite in its footnotes.) Perhaps this law is zany, but it’s hardly an example of a special interest group buying sleazy legislation that damages consumers. A subject of a research test who is injured by adulterated placebos (has this ever happened?) will still have a cause of action.

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Ballot measure results

by Walter Olson on November 3, 2004

As I documented through the night at PointOfLaw.com, voters gave doctors and the business community some major victories in yesterday’s ballot measures. Limits on malpractice lawyers’ fees passed resoundingly in Florida, in a stinging rebuke to the trial bar. Among three other states considering med-mal ballot measures, doctors won decisively in Nevada and lost in Wyoming, while Oregon’s measure was slightly trailing but too close to call. (Update Nov. 9: late returns show one of the two Wyoming measures apparently passing after all.)

In California, in a convincing victory for the business community and good sense, voters approved Proposition 64 by a wide margin, requiring lawyers to demonstrate actual injury before invoking the state’s broad unfair-practices statute in private cases. (Thank you, Arnold.) Colorado voters lopsidedly defeated a trial-lawyer-sponsored measure to expand litigation over alleged construction defects. And in the two hot judicial contests, for seats on the Illinois and West Virginia Supreme Courts, trial-lawyer-backed candidates lost in both. Details on all these races can be found on PointOfLaw.com. Also, voters ignored this site’s advice and passed all eleven state marriage amendments on the ballot.

Finally, some politicians whose ambitions this website has followed were locked in too-close-to-call races: Washington state AG Christine Gregoire (see Oct. 28) was slightly trailing a GOP opponent in her bid for governor, while former trial lawyer lobbyist and Bush HUD secretary Mel Martinez (see Sept. 3) was leading by 80,000 votes in his Florida Senate race against Democrat Betty Castor. (Update: Martinez wins). John Edwards’s vice-presidential ambitions seem at the moment to depend on an unlikely reversal of Ohio results in late vote counting, while his home state of North Carolina went Republican both in the presidential race and in filling Edwards’s old seat. (Update: Kerry and Edwards concede).

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As readers of this site know, voters in six states are considering legal-reform initiatives on today’s ballot. At my other website, the Manhattan Institute’s PointOfLaw.com, I’m planning to post regularly updated live coverage tonight of election returns on the measures, with special attention to any instances where the vote totals prove to be close. (I might also post the odd comment on other races of interest.)

The ballot measures are: Florida’s Amendment 3 (limiting lawyers’ med-mal fees), lawyer-sponsored Amendment 7 (removes confidentiality of medical peer review) and Amendment 8 (strips licenses of doctors who lose three malpractice verdicts); Wyoming’s Amendments C and D (authorizes legislative limits on med-mal awards); Oregon’s Measure 35 (limits med-mal awards); Nevada’s Question Three (limits med-mal awards) and lawyer-sponsored Questions Four (undercuts med-mal reform) and Five (forbids legislative reductions of liability); Colorado’s lawyer-sponsored Amendment 34 (expands right to sue over alleged construction defects), and California’s Proposition 64 (narrows scope of s. 17200 “unfair competition” law).

The timing: Florida polls close at 8 pm EST, Colorado and Wyoming at 9 pm, Nevada at 10 pm, and California and Oregon at 11 pm. I’m in the Eastern time zone, and intend to stay up until 2 am (11 pm Pacific) if that’s needed to follow any still-unresolved contests.

How readers can help: I’ll have access to standard online sources that cover these sorts of votes (big-city papers, Secretary of State websites) but in the past those sources have sometimes been slow to post totals, especially on “down-ballot” issues. I won’t have much access to local broadcast sources, for the most part. If you’ve got fresh news on your state to report, such as a local news organization’s calling a ballot contest one way or the other, email me at editor (at) pointoflaw – dotcom.

Once again, the liveblogging tonight will be going on at Point of Law, not here. [cross-posted from Point of Law, with slight changes][bumped 2:30 pm]

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Won’t we all be glad when it’s over:

* At Point of Law, I’ve got a post up tracking the current status of the propositions on four states’ ballots that would limit medical malpractice litigation or fees. The situation in Florida looks grim for doctors who’ve pushed such curbs (they’ve been outspent by their lawyer opponents, $22 million to $7 million). Voters in Nevada, Oregon and Wyoming may be better disposed toward their states’ ballot measures.

* On Friday, Ted posted about how critics of trial lawyers are getting sued for running an ad commenting on the Illinois Supreme Court race. Unfortunately, that’s just one of numerous instances in which criticizing the Litigation Lobby in paid advertisements is itself getting to be legally hazardous. In a new post at Point of Law, I list two other recent instances.

* Both the New York Times and the National Law Journal are out with stories on the very nasty and expensive battles between business interests and trial lawyers in state supreme court races, especially those in West Virginia (see May 13, etc.) and Illinois (Adam Liptak, “Judicial Races in Several States Become Partisan Battlegrounds”, Oct. 24; Emily Heller, “Judicial Races Get Meaner”, National Law Journal, Oct. 25).

* “Voters may run a gantlet of lawyers before reaching the ballot box on Nov. 2.” The two major parties are deploying lawyers by the thousand to challenge state procedures and individual votes (Miles Benson, “Voting in a Battleground State? Prepare to Meet a Lawyer at the Polls”, syndicated/Newhouse, Oct. 23).

In West Virginia, insurer NCRIC was paying out $1.07 in claims for every $1 in premiums collected; it almost left the state until regulators allowed them to raise rates to make up the difference. Of course, some doctors can’t afford the new rates, and have had to stop practicing at hospitals and nursing homes that require insurance. ATLA once again blames the insurance companies for failing to invest premiums in such a way to pay the rising claims. The insurer’s problems were exacerbated when a D.C. jury levied a $18 million countersuit verdict against NCRIC when it tried to collect $3 million in unpaid premiums from the defunct Columbia Hospital for Women Medical Center. (Dina ElBoghdady, “D.C. Malpractice Insurer Feels Squeeze”, Washington Post, Sep. 6).

In Illinois, the political debate continues over the need for tort reform, as doctors continue to flee the state. Ed Murnane, of the Illinois Civil Justice League, notes that 40% of the doctors in St. Clair and Madison Counties have been named as defendants in lawsuits between 2000 and 2003; even though the overwhelming majority of plaintiffs collect nothing from such cases, the costs of defense are high. (Mark Samuels, “Group: Tort Reform Can Stop Malpractice Crisis”, The Southern, Sep. 3; Rob Stroud and Herb Meeker, “Illinois physicians say insurance rates are driving them out of state”, Journal Gazette/Times-Courier, Sep. 3).

An editorial signed by 25 Washington County, Maryland doctors protests the legislature’s failure to reform the medical malpractice system. (“Lawsuits will drive doctors away”, The Herald-Mail, Sep. 5).

In Nevada, the trial lawyers groups are trying to obstruct reform by putting forward faux reform measures on the initiative ballot that would wipe out the real reform measure, Question 3. For example, Question 5, proposes penalties for filing or defending “frivolous” lawsuits–but redefines “frivolous” to narrow the classification as to be meaningless. At the same time, it bars the legislature from ever implementing caps. An earlier attempt to stop Question 3 with a last-minute lawsuit failed. (Tanya Albert, “Nevada tort reform ballot fight now brewing”, American Medical News, Sep. 13; AP, Aug. 25; No on 4 and 5 website).

Washington state doctors are traditionally politics-free, but the medical malpractice crisis could change that and force them to lobby for the reform Initiative 330. “‘Physicians in the main have an aversion to mixing politics with their professional medical practice,’ said Dr. Kevin Ware, president of the county medical society. ‘But under the current circumstances, the need for malpractice insurance reform is so desperate that physicians are having to look seriously at departing from that custom.’” (Sharon Salyer, “Doctors may lift ban on politics”, The Herald, Sep. 6; Wallace blog, Aug. 31).

Wyoming has lost 10 percent of its doctors in the last eighteen months, and the state’s largest malpractice carrier will stop renewing policies October 1. A constitutional amendment is necessary for reform there. (Lee Lockhart, “Lawmaker predicts heated debate over damage caps”, Casper Star Tribune, Aug. 27).

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Marshmallow roust

by Ted Frank on June 22, 2004

Good news! Florida federal agents have apparently done such a good job clearing the shores of criminals and terrorists that they’ve moved to tackling the perversely trivial.

Wyoming teacher’s aide Hope Clarke stayed in Yellowstone last year, and was fined $50 for failing to put away her marshmallows in violation of the park’s food storage requirements, a fine she was required to pay before leaving the park. But, somehow, she ended up on a bench warrant list; when her cruise ship returned from Mexico, she was rousted and handcuffed by federal agents at 6:30 am, and haled before a court in “shackles and short shorts” hours later–even though the copy of the citation showed the fine had been paid. Magistrate Judge John O’Sullivan apologized, and ordered her released over the prosecutor’s suggestion that the case be transferred to Wyoming. (Catherine Wilson, AP, Jun. 19) (via Weinstein)(& letter to the editor, Sept. 10).

“After six years of regulations and restrictions that have cost builders, local governments and landowners an estimated $100 million, new research suggests the ‘threatened’ Preble’s mouse in fact never existed. It instead seems to be genetically identical to the Bear Lodge meadow jumping mouse, which is considered common enough not to need protection.” (Mead Gruver, “Research: Endangered Mouse Never Existed”, AP/Las Vegas Sun, Jun. 11; “More mice could muddy waters in Preble’s mouse fight”, AP/Casper Star Tribune, May 14)(more on endangered species).


October 9-10 – Rumblings in Mississippi. Two big stories out of the Magnolia State: the legislature on Monday passed, and Gov. Ronnie Musgrove indicates that he will sign, a compromise malpractice reform bill intended to relieve the state’s worst-in-the-nation medical liability crisis. Among its terms: capping non-economic damages at $500,000, restricting venue to the county where alleged wrongdoing occurred, and requiring that plaintiffs line up an expert before a suit can proceed. (Patrice Sawyer and Julie Goodman, “Legislature passes civil justice reform”, Jackson Clarion-Ledger, Oct. 8). It also curtails but does not eliminate joint and several liability in medical cases and shortens some time limits for suing. (“Other provisions”, sidebar; Jackson Clarion-Ledger editorial, Oct. 8).

In a separate story that will bear close watching as it unfolds, “Federal authorities are investigating whether state court judges took out loans that were repaid by nationally prominent trial lawyers from South Mississippi whose cases the judges handle. Investigators believe the judges, including state Supreme Court Justice Oliver Diaz Jr. of Biloxi, borrowed thousands of dollars from The Peoples Bank, which has headquarters in Biloxi, and Merchants & Marine Bank in Jackson County. Plaintiffs’ attorneys who try multimillion-dollar cases before the judges subsequently repaid the loans, investigators believe. Paul Minor of Ocean Springs and Richard ‘Dickie’ Scruggs of Pascagoula are being investigated by the FBI and U.S. Attorney’s Office in Jackson, according to a source close to the investigation.” Scruggs, of course, is among the most powerful lawyers in the country and did more than any other figure to engineer the $200-billion-plus settlement between the tobacco industry and state governments; he is also the brother-in-law of Sen. Minority Leader Trent Lott (R-Miss.) Scruggs “has said that he expects to earn about $844 million from tobacco settlements” while Minor expects to receive something like $70 million from tobacco settlements. (Anita Lee, Tom Wilemon and Beth Musgrave, “Loans to Judges Probed”, Biloxi Sun-Herald, Oct. 7; Jerry Mitchell, “Judges’ loans focus of probe”, Jackson Clarion-Ledger, Oct. 8; “Coast newspaper reports lawyer-judge link to loans being checked”, AP/Alabama Live, Oct. 7). Scruggs “denies that he repaid loans for Diaz or any other judge.” (“Investigation Targets Lawyers, Judges & Loans”, WLOX, Oct. 7). Update Oct. 11-13 more allegations; May 7, 2003 investigation widens. (DURABLE LINK)

October 9-10 – Trial lawyers and politics: Michigan, Texas. Two legal reform groups have released studies documenting the flow of trial lawyer money into their states’ politics. Michigan Lawsuit Abuse Watch reveals that the state’s personal injury lawyers “have contributed a total of $426,280 to [Democratic gubernatorial nominee Jennifer] Granholm’s campaign. This is more than the $394,209 she has received from the PACs of all other Michigan special interest groups backing her. Personal injury lawyers have given just $2,900 to Granholm’s opponent, Dick Posthumus.” And Texas Trial Lawyer Watch has a new report out on the gargantuan sums spent by lawyers in that state, with special emphasis on the lengths to which the attorneys are willing to go to conceal their generosity (“Hiding Their Influence“, PDF format) (DURABLE LINK)

October 9-10 – Latest sacked-Santa suit. In Edinburgh, Scotland an actor “hired to play Santa Claus at a shopping centre who was sacked for his allegedly lugubrious manner is suing his former employers for more than £1,500.” Television actor Colin Brown, 50, says he had fulfilled the role for many years past with no complaints of insufficient jolliness. “He is also seeking £10 compensation for a 12-inch square cushion he supplied for the padding and £30 for his size nine wellington boots.” (Edward Black, “Sacked Santa sues ex-employers”, The Scotsman, Oct. 8). For further annals of Santa employment litigation, see Oct. 12 and Dec. 13-14, 2000. (DURABLE LINK)

October 7-8 – Malpractice-crisis latest: let ‘em become CPAs. Detailed report in the St. Louis Post-Dispatch of malpractice woes in Missouri and (especially) in adjoining counties of Illinois known for litigiousness, Madison and St. Clair, where “doctors are handing off more patients needing risky procedures to St. Louis medical centers. Doctors in the two counties pay double the premiums of most surrounding Illinois counties because of the flurry of claims filed there,” according to the head of underwriting at the doctors’-mutual insurer that writes more than half of Illinois policies. Insurance is becoming unaffordable for many doctors with records considered less than pristine, such as those with past claims that were resolved for token payments or even for no payment at all.

In litigious Belleville, Ill., patients can obtain a long list of medical services only by heading over to St. Louis. “Several years ago, Belleville physicians decided to transfer all critically ill children to St. Louis Children’s Hospital or Cardinal Glennon Children’s Hospital. Anne Thomure, public relations director for Memorial Hospital in Belleville, said many of these young patients could have gotten comparable care in the community, but liability risks were deemed too great”. “Trauma is routinely sent to St. Louis because of the medical-legal climate,” said one doctor. Other Belleville doctors have stopped handling high-risk pregnancies, administering clot-busting TPA to stroke patients, and performing surgery on complex elbow fractures, which often lead to complications. Many neurosurgeons are shunning brain surgery in favor of relatively safe spinal procedures. Dr. Kathy Maupin “said almost every doctor involved in trauma care gets sued, because outcomes are unpredictable and patients do not have a pre-existing relationship with the doctors.” Don’t miss this priceless quote from the other side, from “Bruce Cook, a personal injury lawyer in Belleville” who “has little sympathy for doctors lamenting liability coverage costs.” “Perhaps the doctors retiring early are the doctors who are sued too much,” he said. “Perhaps they should have been accountants.” (Judith VandeWater, “Insurance rates pinch doctors, care”, St. Louis Post-Dispatch, Oct. 6).

The Bloviator (Sept. 27) summarizes the terms of the federal malpractice-reform bill, H.R. 4600 Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2002″, which passed the House Sept. 26 but is considered unlikely to make it past the litigation lobby’s grip on the U.S. Senate. Last Thursday, Pennsylvania doctors held rallies in Philadelphia and Scranton to protest the state legislature’s inaction on malpractice reform (AP/New York Times, undated; MedRants, Oct. 4; Politically Active Physicians Association, organization of Pa. doctors). New York doctors may not be holding demonstrations yet, but according to William Tucker in the New York Post, they pay the highest malpractice premiums in the country. From “1994 to 1999, the average New York jury verdict tripled, from $1.7 million to $6 million. Empire State physicians settled $633 million in malpractice claims in 2000, 80 percent more than second-place Pennsylvania ($352 million) and triple third-place California ($200 million, for twice the population)”. California, unlike New York and Pennsylvania, has a strong cap on noneconomic damages. (New York Post, Sept. 26).

The disarray in Mississippi’s malpractice system “extends to the state’s ambulance companies and their workers”, reports AP. (Matthew Volz, “Paramedics face malpractice suits, too”, AP/Jackson Clarion-Ledger, Sept. 19). A past president of the Mississippi Trial Lawyers Association pooh-poohs the concerns, saying he “cannot recall off the top of my head a single substantial or even moderate verdict against an ambulance company in the state of Mississippi” — note how by framing the issue as one of verdicts only, he gets to sidestep the question of how often ambulance operators are named in complaints resolved before that point. On the Mississippi legislature’s lack of seriousness in pursuing tort reform, see the Clarion-Ledger‘s editorial, Sept. 25.

A study from the American Association of Neurological Surgeons and other neurosurgery groups finds that liability woes have plunged that specialty into a state of emergency across the country. (Sept. 25 study in PDF format, press release, resource page). And while litigation lobby stalwarts such as the misnamed “Center for Justice and Democracy” have tried to scapegoat malpractice insurance providers as the source of the crisis (Sept. 25), a report last month from the U.S. Department of Health and Human Services thoroughly refutes that contention, pointing out that: 1) states that have enacted serious liability limits are not undergoing a crisis; 2) actuarial data show a sharp upturn in the past few years in large medical claims in unreformed states, as well as in the high verdicts which influence the magnitude of settlements; 3) medical malpractice insurers have not generally suffered major losses due to speculative or volative investments, and a relatively small share of their investment is in the stock market; 4) the decreasing competitiveness of the insurance market is itself a reflection of the liability-driven increase in claims expense; and 5) liability reforms in states like California have not made it impossible to sue — the number of claims has not been declining there lately — but have kept medical care affordable, notwithstanding the influence of the much-cited “insurance cycle”. (“Update on the Medical Litigation Crisis: Not the Result of the ‘Insurance Cycle’”, HHS, Sept. 25). (DURABLE LINK)

October 7-8 – “Judge Throws Out ‘Harry Potter’ Copyright Suit”. “”A federal judge has sanctioned an author $50,000 for submitting false evidence in an unsuccessful copyright lawsuit against the publisher of the blockbuster ‘Harry Potter’ series of children’s books. Southern District of New York Judge Allen G. Schwartz found that Nancy Stouffer had knowingly submitted fraudulent documents to the court in an attempt to bolster claims that the author of the ‘Harry Potter’ series, J.K. Rowling, copied several ideas from Stouffer’s unsuccessful children’s stories.” In addition to the $50,000 sanctions, Judge Schwartz ordered Stouffer to pay Rowling’s and her publisher’s attorneys’ fees and costs. Stouffer’s lawyer says he is considering appellate options. (Tom Perrotta, “Judge Throws Out ‘Harry Potter’ Copyright Suit”, New York Law Journal, Sept. 19). (DURABLE LINK)

October 7-8 – Cutting edge of discrimination law. Near Seattle, the Puyallup School District has agreed to settle a two-year-old civil rights suit by paying $7.5 million and instituting diversity training, administrative and curriculum changes to encourage racial diversity. Four black families had sued the school district in 1999 saying it “tolerated and encouraged a racially hostile environment. ‘One specific complaint was against the use of racial slurs in exams and class discussion of books like ‘Huckleberry Finn’ and ‘The Grapes of Wrath.”” (Mike Roarke and Candace Heckman, “Civil rights suit settled in Puyallup schools”, Seattle Post-Intelligencer, Sept. 18 (via Scott Norvell, FoxNews.com, Sept. 23). And the Denny’s restaurant chain says it is looking into contentions that one of its outlets in Springfield, Ill. is behaving in a racially discriminatory manner by not staying open all night. The restaurant in question “recently started locking its doors between 3 and 5 a.m. Sundays, reportedly because a large number of patrons, many of whom have been at nearby clubs that close at 3 a.m., were descending on the restaurant and causing problems, including not paying for food.” The president of the local NAACP branch is hinting at a lawsuit: “Denny’s [on the East Side] will stay open, or other Denny’s worldwide will close from 3 a.m. to 5 a.m.,’ he said. ‘If there’s one Denny’s out there that is closing from 3 a.m. to 5 a.m., then either they’re going to do it worldwide, or they’ll remain open 24 hours.” (Jayette Bolinski, “Denny’s accused of discrimination”, State Journal-Register (Springfield, Ill.), Sept. 12). (DURABLE LINK)

October 7-8 – Blue-ribbon excuses. New York City: “A lawyer representing a couple accused of taking part in three-way sex on a train says they were helping road safety.” Vincent Siccardi says his clients “should be praised for taking the train instead of driving while drunk. Mr Siccardi told the New York Post: ‘Here are two responsible people. They were at a party. They were drinking. It shows that they are responsible. If more people did that, we’d have fewer problems on the road.’” (“Lawyer says couple accused of sex on train were helping road safety”, Ananova.com, Oct. 1). (DURABLE LINK)

October 4-6 – Breaking: L.A. jury docks Philip Morris $28 billion. The plaintiff had been smoking since age 17 and developed lung cancer; the sum awarded by the jury approximately equals the annual gross domestic product of Lithuania. The smooth lawyer who represented Mrs. Bullock, named Michael Piuze, has coaxed a whole series of bizarrely high verdicts out of West Coast juries. (Fox News, Oct. 4). (DURABLE LINK)

October 4-6 – Pets Warehouse owner sues Google. Robert Novak, owner of PetsWarehouse.com, has filed two earlier rounds of pro se lawsuits arising from his claim that his business was defamed in online discussion forums (see May 22 and May 27, 2002 and links from there). Now, in a third round, he is suing search engine Google and several other defendants. His complaint (PDF format) charges that Google failed to remove Usenet archive postings even after being informed that they were defamatory. It also demands damages for Google’s and other search engines’ use of keyword-based “sponsored links”, by which a user’s search on the phrase “pets warehouse” calls up advertising for another online pet store that has paid for the privilege. (Slashdot thread) (overview of case by defense attorney) Further update: Oct. 5, 2003. (DURABLE LINK)

October 4-6 – Commentary-fest. Henry Mark Holzer believes he’s identified the appropriate social response to the campaign for slave-reparations lawsuits: it’s called “Rule 11 sanctions”. (“The Achilles’ Heel of the Reparations Lawsuits”, FrontPage, Oct. 3). The Onion reports that record companies are suing radio stations to stop them from infringing their intellectual property by playing music over the air for free — oh wait, it’s just a parody (we think)(“RIAA Sues Radio Stations for Giving Away Free Music”, Oct. 2). And: “With the assistance and backing of trial lawyers, small and extreme groups are finding it increasingly easy to bypass and subvert the democratic process and impose their agenda on the rest of society by abusing litigation and manipulating the courts,” writes former Wyoming Sen. Malcolm Wallop (“Litigation: The Death of Democracy”, TownHall, Sept. 25). (DURABLE LINK)

October 4-6 – Lawsuit threats vs. campaign speech. “Television station managers in small communities across the nation are being forced this fall to adjudicate a barrage of demands from Democratic and Republican Party lawyers pressuring them to pull political advertisements in closely fought Congressional races — or face the risk of a defamation suit.” (Adam Nagourney and Adam Clymer, “Local Television Stations Become the New Arbiter of Political Fair Play,” New York Times, Oct. 2) (reg). (DURABLE LINK)

October 3 – Lawyers fret about bad image. Bar associations are resorting to all sorts of measures to try to counter the profession’s perceived unpopularity: the Wisconsin Bar has hired consultants “to institute a branding campaign based on focus group response”, while the Florida Bar has budgeted a contemplated $750,000 for its new “Dignity in Law” program (see Jul. 10) which targets 1,000 journalists and government officials described by the group’s president as “influential decision-makers” who will be sent “blast e-mails describing the great work that lawyers and judges do for our clients, in our courtroom and in our communities.” (We hope those 1,000 journalists and influentials have all previously opted into those “blast e-mails” — spam doesn’t make friends, you know.) “Prior to launching the campaign, the Florida Bar surveyed 880 journalists about their attitudes toward the legal profession and rated their stories as positive or negative. As the campaign continues, it will monitor their changing attitudes toward lawyers to measure the campaign’s effectiveness.” If we were Florida journalists, we’re not sure we’d be thrilled to learn that a group of dissatisfied newsmakers who wield writs had decided to “rate” and then “monitor” the tone of our coverage of them.

Meanwhile, on a national level: “Disenchanted with the public outcry against attorneys and the legal profession, Robert Clifford, who heads the American Bar Association’s Litigation Section and is a founding partner of Clifford Law Offices, a personal injury firm in Chicago, personally financed a $250,000 national telephone survey for the ABA of 750 households.” The results could hardly have been welcome. “Only 19 percent of the respondents expressed confidence in lawyers’ work compared with a 50 percent confidence rating for doctors.” (Physician readers, take note, and heart.) The survey effort “also included 10 focus groups in five cities including Chicago and Los Angeles whose respondents repeatedly described attorneys as ‘greedy, manipulative and corrupt.’ … The public lambasted criminal defense, personal injury and divorce lawyers”, praising only real estate and civil rights attorneys. (& see letter to the editor, Oct. 23)

To its credit, the National Law Journal‘s roundup of the matter airs not only the legal establishment’s view — which is that the profession is merely misunderstood and suffering from bad public relations — but also the views of critics both inside and outside the profession who think the best way to improve lawyers’ image would be, well, to start cleaning up the bad things that go on in legal practice. Tallahassee Democrat columnist Bill Cotterell, a critic of the Florida bar program, notes: “People don’t like lawyers gaming the system for personal profit — enormous profit — and not caring who gets hurt.” Cotterell “recommended adopting ‘a loser pays‘ system under which the losing plaintiff in a meritless suit would pay the defendant’s legal expenses.” And Catherine Crier, the Court TV host and former judge whose book “The Case Against Lawyers” is forthcoming momentarily, says bar p.r. campaigns “don’t do anything to address the underlying areas. I’d rather see a campaign that introduces ethics classes.’ Crier would prefer to see the law ‘eliminate contingency fees except in cases aimed at the poor and institute loser pays in all categories. In that way, good lawyers can proceed with dignity and pursue cases that are meritorious, and those pressing frivolous actions corrupting our system will no longer have a forum.’” Hear, hear! (Gary M. Stern, “Polishing the Image”, National Law Journal, Sept. 16). (DURABLE LINK)

October 1-2 – FTC cracks down on excessive legal fees. Here’s an important story that’s flown mostly under the radar: the new leadership of the Federal Trade Commission is taking pioneering steps to protect consumers from exploitative legal fees, under the same mandate by which it cracks down on deceptive or unfair overcharging by businesses generally. “So far this year, the FTC has challenged attorney fees in three proposed class action settlements, winning in two cases. It also has urged the Judicial Conference, which oversees the federal court system, to amend its class action rules in a way that could limit attorney fees, particularly in cases that rely on information already uncovered by government agencies. And the agency recently published a guide for consumers, ‘Need a Lawyer? Judge for Yourself,’ giving advice on how to pick a lawyer — and seek a lower fee. … Trial lawyers and their allies aren’t happy about the FTC initiative.” (Caroline E. Mayer, “FTC Seeks to Limit Attorney Fees in Class Action Suits”, Washington Post, Sept. 30). (DURABLE LINK)

October 1-2 – Australia: seized by the Spirit, wants church to compensate her. Loraine [elsewhere reported Lorraine] Daly, 40, is suing an Assemblies of God-affiliated church in Sydney, saying she was injured one Sunday in 1996 when, gripped by religious enthusiasm, she fell over onto a carpeted floor and was not caught by anyone. “The court was told by Ms Daly’s lawyer that the Sydney Christian Life Centre had been negligent in failing to ensure there were enough ‘catchers’ — people appointed by the church to cushion the fall of those experiencing what is referred to within the Pentecostal movement as being ‘slain in the spirit’. It was also claimed that the church had failed to ensure that the catchers were in position before the Rev Tim Hall started the prayer service which usually brought on such fainting episodes. And the church had not provided falling members of the congregation with a sufficiently padded area to prevent injury.” Ms. Daly wants up to A$750,000 in damages, including future loss of earnings and compensation for “disabilities including headaches, nausea, memory loss, impaired concentration and a feeling of vagueness. …The court also heard, however, that Ms Daly had previously suffered similar ailments after two car accidents in 1986 and 1993.” (Kelly Burke, “Fallen Christian puts faith in the law”, Sydney Morning Herald, Sept. 27). Update Oct. 25-27: judge rules against Ms. Daly. (DURABLE LINK)

October 1-2 – Updates. Judges pull the plug on various bright ideas discussed previously in these pages:

* A judge has dismissed attorney Peter Angelos’s effort to bring the cellphone industry to trial on the theory that using its wares causes brain tumors, ruling that the proffered scientific evidence for that proposition is insufficient (see Apr. 23 and Jan. 11, 2001) (Gretchen Parker, “Judge Dismisses $800M Cell Phone-Brain Tumor Suit “, AP/Washington Post, Sept. 30) (opinion in PDF format)

* In a unanimous decision written by Judge Alex Kozinski, a three-judge panel of the Ninth Circuit has ruled that Judge Vaughn Walker should not have interpreted the 1995 Private Securities Litigation Reform Act as a mandate to take an active lead in selecting plaintiffs’ counsel to run lucrative securities fraud cases. The decision, which may put the kibosh on “auction” methods by which courts induce plaintiff’s counsel to accept work at lower fees, was a victory for Milberg Weiss Bershad Hynes & Lerach in its quest to represent security holders in a suit against Copper Mountain Networks Inc. (Jason Hoppin, “9th Circuit Strikes Down Class Action Fee Experiment”, The Recorder, Sept. 17) (opinion in PDF format)(see Sept. 25, 2001)

* Well, that’s a relief: “A British Telecommunications Inc. patent issued prior to the advent of the Internet does not cover hyperlinking, a New York federal judge ruled … Tossing out British Telecom’s infringement suit against Prodigy Communications Corp., U.S. District Judge Colleen McMahon of the Southern District of New York said no jury could find that Prodigy infringes the patent by providing hyperlinks, the coded, highlighted text that links one Web page to another.” (see Feb. 13) (Brenda Sandburg, “Closely Watched Hyperlink Patent Case Tossed”, The Recorder, Aug. 23). (DURABLE LINK)


September 20-22 – How sharper than a serpent’s tooth it is/To have a precociously musical child. “James Brown’s daughters have filed a federal lawsuit against the Godfather of Soul, seeking more than $1 million in back royalties and damages for 25 songs they say they co-wrote…. Even though they were children when the songs were written – 3 and 6 when ‘Get Up Offa That Thing’ was a hit in 1976 – Brown’s daughters helped write them, said their attorney, Gregory Reed.” (“Singer James Brown Sued by Daughters”, AP/Milwaukee Journal Sentinel, Sept. 18). (DURABLE LINK)

September 20-22 – “Patient pays price of suing over cold”. Salutary effects of loser-pays, cont’d: “A patient who claimed £227 damages from his doctor, insisting that she had given him her cold during an examination, was ordered to pay almost £1,000 in costs yesterday after his case was thrown out by a court. Trevor Perry, 47, sued Dr Helen Young for personal injury, stating that he went down with a sore throat, runny nose and a headache after a consultation with her when she had a cold.” (Stewart Payne, “Patient pays price of suing over cold”, Daily Telegraph (U.K.), Sept. 19). And don’t miss the very curious addendum to the case on the question of why Mr. Perry was observed running from the court with a jacket over his head (“The Broadsheets: Cold comfort”, Anorak, Sept. 19). (DURABLE LINK)

September 20-22 –Times on 9/11 fund. The New York Times editorially defends the federal 9/11 compensation fund from charges that its awards are inadequate in a way “especially prejudicial to high-income families”, who may be offered only a few million dollars of taxpayers’ money each. It is entirely legitimate, the paper believes, to seek to avoid “extravagant awards at the top”. We might add that if top-earning families want to feel secure in their living standards in case of disaster, the logical (and socially desirable) course is for them to make provision in advance through privately purchased insurance — which we suspect most of the higher-ups at places like Cantor Fitzgerald did in fact have in place. (“The Perils of Valuing Lives” (editorial), New York Times, Sept. 19). (DURABLE LINK)

September 18-19 – Claim: docs should have done more to help woman quit smoking and lose weight. “A Wilkes-Barre woman is suing several doctors at the Department of Veterans Affairs Medical Center, saying the physicians did not do enough to assist her in making life changes — including quitting smoking and losing weight — that might have prevented a debilitating heart attack she suffered.” Kathleen Ann McCormick’s suit “says the physicians knew she had multiple risk factors to develop heart disease” but dismissed her symptoms as “basically normal and non-life threatening” and failed to put her on aggressive anti-cholesterol medication, as well as failing to help her with the smoking and weight issues. (Terrie Morgan-Besecker, “Woman suing VA doctors”, Wilkes-Barre (Pa.) Times-Leader, Sept. 11). (DURABLE LINK)

September 18-19 – Voltaire spinning in grave. If you disagree with what someone says, but would defend to the death his right to say it, chances are you aren’t running things in today’s France. Prominent French author Michel Houllebecq (pronounced “Wellbeck”) went on trial this week for “inciting racial hatred” on the grounds that he had aimed contemptuous comments at Islam. The case, which evokes parallels with that of author Salman Rushdie, is “being brought by the largest mosques in Paris and Lyon, the National Federation of French Muslims (FNMN) and the World Islamic League. France’s Human Rights League has also joined them, saying that Mr Houellebecq’s comments amount to ‘Islamophobia’” (see Aug. 23-25) (Charles Bremner, “I attack … I insult”, The Times (London), Sept. 18; “French author denies racial hatred”, BBC, Sept. 17). More: Christopher Hitchens on the case (“The stupidest religion”, Free Inquiry, v. 21, #4). Update Oct. 25-27: Houellebecq acquitted. (DURABLE LINK)

September 18-19 – Canada: “Woman freezes, sues city, cabbie”. “A Winnipeg woman who nearly froze to death after a night of drinking is suing the city, emergency personnel and the taxi driver who dropped her at home.” Emergency workers left Kim Simon at her residence but “she was later found outside with her pants pulled down, her winter jacket open and a cut on her lip. The woman claims that emergency personnel and the taxi driver should have made sure Simon was safely inside her house before leaving.” (Canadian Press/Canada.com, Sept. 16). (DURABLE LINK)

September 18-19 – Mississippi: eyeing the exits. Washington Mutual, the giant lender and the nation’s largest thrift institution, “is in the process of suspending all its lending channels in the state of Mississippi due to litigation risk and other factors. ‘We are evaluating the litigation environment and business climate in the state,’ WaMu senior vice president and associate general counsel Jim Garner told MortgageWire. ‘That is why we are suspending loan originations.’” Last year a Mississippi jury hit one of the company’s subsidiaries with a $71 million verdict. (Origination Newswill scroll off site’s front page soon). (DURABLE LINK)

September 18-19 – AVweb case and chatroom liability. Eugene Volokh (his site) comments regarding the litigation referenced below: “Incidentally, not supervising one’s chat room is *not* actionable, even if the chatters make libelous statements and you could have stepped in to stop them; that’s what 47 U.S.C. sec. 230 says, see also Zeran v. America Online (4th Cir.) (both available on Findlaw).” See also ChillingEffects.org, Mar. 8; summary of Zeran case, TechLawJournal. (DURABLE LINK)

September 16-17 – Free speech & web litigation: the theory…. Los Angeles Times columnist Norah Vincent, the target of a remarkably silly recent smear (summarized and refuted by, among others, Stuart Buck, Juan Non-Volokh and Megan McArdle) got so angry at her online attackers that she wondered aloud whether she should think of suing them for defamation. Our editor wrote in at her suggestion (Sept. 13) to offer some reasons why, no, she shouldn’t. (DURABLE LINK)


September 16-17 – Right to break workplace rules and then return. This summer the Ninth Circuit ruled that it was an unlawful violation of the Americans with Disabilities Act for a company to follow an otherwise neutral policy barring the rehire of employees who had been terminated (or resigned in lieu of termination) over violations of company rules. In the case at hand, an employee had resigned after testing positive for cocaine, had completed a rehabilitation program, and now wanted to return to the company. Although Hughes Missiles Systems’ rule did not bar the hiring of rehabilitated drug users as such, the court nonetheless ruled that “Hughes’ unwritten policy against rehiring former employees who were terminated for any violation of its misconduct rules, although not unlawful on its face, violates the ADA as applied to former drug addicts whose only work-related offense was testing positive because of their addiction. If Hernandez is in fact no longer using drugs and has been successfully rehabilitated, he may not be denied re-employment simply because of his past record of drug addiction.” (Hernandez v. Hughes Missiles Systems, No. 01-15512, June 11, 2002, write-up at Jackson Lewis site). Update Dec. 13, 2003: Supreme Court rules in favor of employer. (DURABLE LINK)

September 16-17 – Dave Barry on tobacco settlement, round III. Okay, maybe it’s easy to satirize (rounds I and II), but he still does it so well. “The underlying moral principle of these lawsuits was: ‘You are knowingly selling a product that kills tens of thousands of our citizens each year. We want a piece of that action!’” (“In War On Tobacco, money goes up in smoke”, Miami Herald, Sept. 15) (DURABLE LINK)

September 13-15 – Patriotic, or promotional? Mickey Kaus nominates this “Patriot Troll” and this “Twin Towers handbag” (appears as popup ad when link is clicked) as among the tackiest commercial tie-ins to arise from 9/11. We might also call to his attention this billboard from a personal injury law firm in Schenectady, New York (photographed by reader Steve Furlong) which isn’t going to win prizes for either taste or subtlety. (DURABLE LINK)

September 13-15 – “Epileptic ordered to pay £3,500 for contorted face”. “A man who suffers from epilepsy has been ordered to pay compensation to a student who was upset by his contorted face during a seizure. In a case described by an epilepsy charity as ‘like something you would see on the Ally McBeal show’, Edwin Young has been told to pay £3,500 to Yvonne Rennie for the mild post-traumatic stress that she suffered. Mrs Rennie sued after Mr Young suffered an epileptic fit while driving four years ago and crashed into her car at traffic lights in Perth.” In addition to awarding Mrs. Rennie £1,500 for slight personal injuries and £1,000 for a fear of driving that she had developed, the magistrate accepted that she had suffered emotional injuries from observing the contorted look on Mr. Young’s face during his fit, which made her think he was going to die. “Epilepsy Action Scotland described the case as ‘bizarre’.” (Auslan Cramb, Daily Telegraph (U.K.), Sept. 9).

Addendum: one of our less sympathetic readers calls to our attention this Sept. 13-dated press release and article from Epilepsy Action Scotland (EAS), describes it as proving that the above report is “not true”, and chides us for not referencing it in our original post. To begin with a minor housekeeping point, this reader is apparently unaware that items on this site dated “Sept. 13-15″ will in most instances have been posted in the final hours of Sept. 12, so that a fair bit of clairvoyance would be required to anticipate the contents of a press release issued the next day (even in Scotland, which is a few time zones ahead).

More substantively, although it may well be that other press reports did misstate the Rennie/Young case, it is by no means clear that EAS is questioning the accuracy of the Daily Telegraph report linked above. Both EAS and the Telegraph (and our excerpt) make clear that the overall award arose in the context of a car crash and drew on a number of factors. EAS is at pains to emphasize that the court did not rule that “watching a seizure in itself [emphasis added] provides grounds to sue for compensation” absent some other entitlement to compensation such as a physical injury — and of course it’s a familiar practice in compensation systems to let mental injury piggyback on physical injury but not stand alone as a claim. The one interviewee quoted in the Telegraph piece as wondering aloud whether a bystander’s distress at watching a person collapse might stand alone as a damage claim was the spokesman for EAS itself (“Does this mean…?”). This makes it less surprising that the organization would four days later make a point of reassuring the public that, no, it probably doesn’t mean that.

Does Epilepsy Action Scotland, as our reader seems to think, now therefore regard the Rennie/Young case as some kind of overblown urban legend that should never have gotten play in the papers, and regret that its spokesman had been so critical of the ruling before? Quite the contrary: it makes clear the extent to which it continues to be alarmed and upset at the case (“we have forcefully put across the points that this is a shocking case”), it has called for investigations and organized protests, and it “has offered its full support if [Mr. Young] decides to pursue the matter” on appeal. Nothing inaccurate in our post that we can see. (DURABLE LINK)

September 13-15 – We have competition! Or at least sorta-kinda competition, from Colorado humorist Randy Cassingham. But the more the merrier, say we. (DURABLE LINK)

September 12 – Personal responsibility roundup. New York attorney Samuel Hirsch, who made big headlines a few weeks ago by filing a lawsuit on behalf of an overweight man against fast-food chains, has now added another car to the train in the form of a suit on behalf of several obese teens who “say the restaurant chain used marketing practices such as toy and value meal promotions to entice its patrons to eat the food.” (No! Not value meals!) “Mr. Hirsch said his clients ate at McDonald’s almost every day for at least five years. One teenager, who is 5-foot-9-inches tall, now weighs 270 pounds; another, who is 5-foot-3-inches tall, now weighs 200. The parents of the teenagers, either unemployed or on disability, filed the lawsuit on behalf of their children.” Note to parents: those benefit checks will stretch further if you teach kids how to make sandwiches at home (Ellen Sorokin, “McDonald’s marketing cited for teens’ obesity”, Washington Times, Sept. 10). Director Tom Grey of the National Coalition Against Legalized Gambling, who has been beating the drums for years in hopes of making the wagering business the next tobacco, hopes governors and attorneys general will pile on in support of the latest lawsuit by a compulsive bettor claiming his losses were the casino’s fault for luring him in (Rod Smith, “Gambling foes hope federal lawsuit will lead casinos into tobacco industry’s fate”, Gaming Wire/Las Vegas Review-Journal, Sept. 10). The Wyoming Supreme Court has ruled that an employee who tried to commit suicide after being depressed over a work-related injury can collect workers’ compensation from his employer for the injuries inflicted by his attempt (Brierley v. Wyoming, Aug. 14). And the editorialists of Canada‘s National Post applaud Ontario judges’ refusal to follow the lead of many American courts in making party hosts legally responsible if their guests drive away drunk (“Blame drunks, not hosts” (editorial), Sept. 5). (DURABLE LINK)

September 12 – “9/11 aid bill contains giant bonus for trial lawyers”. “Sacramento — Saying that it was primarily a bill to help families of Sept. 11 victims, Gov. Gray Davis on Tuesday signed a sweeping change in California tort law backed by trial lawyers, some of his biggest contributors. In a bill signing ceremony, the Democratic governor focused on only four paragraphs of the seven-page bill that allows relatives of the terrorist attacks more time to file civil lawsuits. Davis did not mention that the bulk of the bill — which extends from one year to two the filing period for all personal injury or wrongful death lawsuits in California — is opposed by more than 80 companies and business groups. They say the measure will sharply increase their insurance and litigation costs.” (Greg Lucas and Lynda Gledhill, San Francisco Chronicle, Sept. 11). (DURABLE LINK)

September 12 – No joy in Mudville. “Saying America’s favorite pastime had become a ‘nuisance’ to a northwest Houston man, a Harris County jury awarded him more than $75,000 Tuesday. ‘I’m happy that 12 people were in full agreement,’ said plaintiff E.S. Armstrong after the verdict was read. Armstrong filed a lawsuit in December 2000 in state district court against Baseball U.S.A., claiming games played on the group’s fields adjacent to his home in the Spring Shadows subdivision are too noisy and the field lights too bright. The lawsuit also claimed that baseballs from the fields, near Sam Houston Tollway and Gessner, twice crashed through Armstrong’s bedroom window.” Baseball U.S.A., a nonprofit group, may appeal. (Dale Lezon, Houston Chronicle, Sept. 11). (DURABLE LINK)

September 11 – Never forgotten. For this site’s commentaries from a year ago, begin here with Sept. 12 items and then scroll upwards. (DURABLE LINK)


September 9-10 – Mississippi doctors win a round. “[L]egislators passed new restrictions today [Friday] on lawsuits against doctors in Mississippi, the latest spasm in a national convulsion over sharply increasing medical malpractice insurance rates.” (Adam Nossiter, “Miss. Lawmakers Set Limits on Medical Lawsuits”, Washington Post, Sept. 7). “Mississippi’s legislature is the third in less than a year to be called into special session over the issue, an ‘extraordinary trend,’ said Cheye Calvo, an insurance specialist at the National Conference of State Legislatures.” The fate of the legislation remains uncertain, however. (Patrice Sawyer, “Plenty of talk, but no action”, Jackson Clarion-Ledger, Sept. 8).

It’s far too early for doctors to jubilate, anyway: if the measure makes it to into law, the trial lawyers will predictably commence efforts to convince the Mississippi Supreme Court to strike it down as unconstitutional, as they have gotten other state courts to do with many liability reforms of the past. (e.g. Ohio: Aug. 18, 1999). Some expect the re-election bid this fall of state supreme court justice Charles McRae, to serve as a kind of referendum on whether the court’s pro-plaintiff tilt has gone too far. McRae, a past president of the Mississippi Trial Lawyers Association, is the author of some of the court’s decisions most hostile to defendants. (Bobby Harrison, “McRae a lightning rod for business groups”, Daily Journal, Jul. 23; Jimmie E. Gates, Clarion-Ledger, Jul.29, Ben Bryant, Biloxi Sun-Herald, Aug. 15). (DURABLE LINK)

September 9-10 – Hiring apple pickers = racketeering. “A federal appellate court has revived a racketeering lawsuit filed by Washington state farm workers who claim apple growers and packers intentionally hired undocumented workers to depress wages. The suit says that Zirkle Fruit Co. and Matson Fruit Co., both based in Washington state, created an employment agency to recruit illegal immigrants, mainly from Mexico, knowing that many of the workers were providing false documentation. At the same time, the suit says, the companies rejected job candidates known to be legal aliens or U.S. residents.” Which naturally leads to the question: should those who knowingly hire undocumented gardeners, nannies and house painters be deemed racketeers as well? The pending suit demands monetary damages from the apple growers and packers, and is being pressed by superrich Seattle attorney Steve Berman, well known to readers of this column (Aug. 21, 1999; Oct. 16, 1999; Jan. 19, 2000; May 11, 2001). (“Racketeering suit vs. apple growers, packers is revived”, Seattle Post-Intelligencer, Sept. 6). (DURABLE LINK)

September 9-10 – Free legal services! (except when they aren’t). The Association of Trial Lawyers of America has derived great publicity mileage by saying it will help victims of last year’s terrorist attacks obtain legal representation for free, but it and its members have also worked quietly behind the scenes to defeat legislation that would in any way curb the amounts that lawyers could keep for themselves from 9/11 awards. “Senator [Charles] Schumer [D-N.Y.] is drafting legislation that would let attorneys collect between 8 and 12% of a family’s payout from the September 11th Victim Compensation Fund, a victims’ advocate said. The Schumer plan is a compromise between Senator [Don] Nickles [R-Okla.], who did not want lawyers to take any money from the fund, and the trial lawyers themselves, who want no limit on their contingency fees.” (Timothy Starks, “Schumer Pushes Fees”, New York Sun, Aug. 5). (DURABLE LINK)

September 9-10 – Ignominious wind-down to Norplant campaign. At one time, trial lawyers must have had high hopes that their campaign against the contraceptive Norplant, which is administered in the form of under-the-skin silicone arm implants, would bring down drugmaker Wyeth the way their breast implant campaign bankrupted silicone maker Dow Corning. The litigation dragged on for years and cannot have been encouraging to firms pursuing contraceptive research, but it now appears to be winding down with a whimper, reports Texas Lawyer. In an August 14 ruling, “a federal judge in Texas granted partial summary judgment to the makers of Norplant and dismissed the claims of most of the remaining 3,000 women, leaving only 10 plaintiffs to pursue their cases.” Earlier, a large class of plaintiffs “settled out of court for a payment of $1,500 each”, a paltry sum by the standards of what must originally have been expected. “Notably,” wrote U.S. District Judge Richard Schell, “in the three years since Defendants filed this motion for partial summary judgment, Plaintiffs have not produced a shred of evidence or expert testimony that supports an association between Norplant and” such conditions as polyarthralgia, fibromyalgia and rheumatoid arthritis. (Pamela Manson, “Federal Judge Dismisses Norplant Damage Claims”, Texas Lawyer, Aug. 27)(see Aug. 11 and Aug. 27, 1999). (DURABLE LINK)

September 6-8 – “Doctors hope fines will curb frivolous lawsuits”. Lawyers are seldom made to pay any tangible price when they wrongly accuse a doctor, but South Texas doctors are hoping District Judge Ronald M. Yeager of Corpus Christi will set a precedent by granting a motion for $50,000 sanctions against local attorney Thomas J. Henry for filing false claims against Dr. Steven Smith and Dr. Robert Low. “The case Henry originally brought to court alleged that the doctors had prescribed the drug Propulsid to Henry White, a patient at Northbay who eventually died of complications from a stroke. Propulsid is an acid reflux medicine that has been taken off the market. According to court documents, neither of the doctors had issued the prescription. Henry, who declined comment on the fines, filed a notice of appeal Friday. … Low said he will never forget the embarrassment the case caused and hopes the fines will deter similar suits in the future. … ‘It takes time away from your practice and these things can be emotionally devastating to a physician,” Low said. Attorney Henry is a high-profile local advertiser: “Many in the community know him by the prominent ad on the back of the local phonebook”. (Jesse Bogan, San Antonio Express-News, Aug. 5). (DURABLE LINK)

September 6-8 – Slippery slope on terrorism compensation. Just as skeptics predicted would happen, survivors of earlier terrorist attacks and outrages are looking at the generous payments forthcoming from the taxpayer-staked 9/11 compensation fund and asking: why shouldn’t we get retroactive compensation for our losses too? And so legislators are busily introducing bills to compensate victims of the Oklahoma City bombing, the first World Trade Center bombing, Pan Am Flight 103, the sailors on the U.S.S. Cole, and others. (Michael Freedman, “Compensatory Damages”, Forbes.com, Sept. 16)(reg). (DURABLE LINK)

September 6-8 — Update: government can be sued for not warning of Yellowstone thermal-pool dangers. “A Wyoming federal judge has refused to dismiss a lawsuit brought by a Utah teenager who was severely burned when he and two others jumped into a thermal pool in Yellowstone National Park. Assistant U.S. Attorney Thomas Roberts had asked the U.S. District Court in Cheyenne to reject Lance Buchi’s complaint, which alleges the federal government failed to adequately warn of dangers posed by thermal pools in the park.” (see Jun. 26, 2001) (“Judge won’t dismiss Yellowstone burn victim’s lawsuit”, AP/Billings Gazette, Aug. 30)
(DURABLE LINK)

September 5 – “Disabled Entitled to Same Sight Line in Theaters”. Departing from decisions handed down by other courts, a federal judge in Albany, N.Y. “has held that a movie theater providing handicapped patrons with an unobstructed sight line to the screen has not necessarily complied with the Americans with Disabilities Act. Rather, U.S. District Judge David N. Hurd found, the law implicitly requires a qualitative element demanding an analysis into whether the lines of sight available to ambulatory and wheelchair customers are comparable.” Although Judge Hurd held that it might constitute an ADA violation for wheelchair-using patrons to be given less desirable viewing angles, he found that Hoyts Theaters had sufficiently complied with the mandate in the case at hand. (John Caher, New York Law Journal, Aug. 28). (DURABLE LINK)

September 5 – Missouri: a judge speaks out. Ralph Voss, recently retired from the Missouri bench, has launched a website that minces no words about what he sees as wrong with the local civil courts. “My story begins around 1985. By that time it was possible to see major inroads the plaintiffs’ lawyers were making in asserting control over the civil justice system. They exercised tremendous influence in the Missouri legislature, but also in the judiciary. Their influence came from their money and their money came in large part from huge and relatively easily-obtained victories in the courts of St. Louis and Kansas City. … The contingent fee has gotten so out of hand something needs to be done. I am told by one judge that 50 and 60 percent contingent fees in Kansas City are not uncommon. This same judge reports that the fee comes on top of charging the client for the expenses of depositions taken at 5-star resorts.” There’s much more, including critiques of forum-shopping, of lawyers who pocket big contingent fees on sure-thing insurance settlements, and of some fellow judges whom he names elsewhere on the site as (in his view) undeserving of re-election this November. (RalphVoss.com, “Opening Statement”, Aug. 16). (DURABLE LINK)

September 5 – A Gotham lawyer’s complaint. Outside the courthouse in Brooklyn, the New York Press‘s Johnny Dwyer transcribes the gripes of a local personal injury attorney who “only wants his first name used — Dan”. Not only are verdicts down and settlements harder to get in the formerly bounteous borough, but clients aren’t willing to accept the bad news. “Plaintiffs have a skewed view on what a case is worth. I’ve never seen a more obsessional group of people. The case becomes their whole life. And it’s the newer immigrants that are suing the most — at least in Brooklyn. …That’s become the new American dream.” (“Lawsuits: A Lawyer’s Dilemma”, New York Press, vol. 15, #36 (recent)). More: “Jane Galt” and her readers weigh in. (DURABLE LINK)

September 3-4 – By reader acclaim: “Airline sued for $5 million over lost cat”. “A couple sued Air Canada for $5 million, claiming the airline lost their tabby cat during a flight from Canada to California. … ‘It’s not about the money,’ [Andrew] Wysotski said.” (AP/CNN, Aug. 29). (DURABLE LINK)

September 3-4 –Federal authorities say judge offered illegal payoff”. Pittsburgh: “In a meeting secretly taped by federal authorities, Allegheny County Common Pleas Judge Joseph A. Jaffe told a lawyer how he could use his judicial powers to pay back $13,000 in cash that the lawyer had given him in an envelope.” Judge Jaffe, who is presiding over thousands of asbestos cases, “said the attorney could file 26 motions in settled asbestos cases, and he would order insurance companies to pay the lawyer’s firm $500 per motion in legal fees, or $13,000.” He also said that by holding a mass settlement conference he could “put pressure on defendants to favorably settle the claims. …Jaffe evidently did not know that the lawyer, Joel Persky, was cooperating with federal investigators after receiving what he considered an improper request for money from the judge.” Persky’s firm, Goldberg, Persky, Jennings & White, represents thousands of asbestos complainants. Who says plaintiff’s attorneys don’t sometimes figure as heroes in these chronicles? (Marylynne Pitz, Pittsburgh Post-Gazette, Aug. 29). Update: Mar. 25-30, 2003. (DURABLE LINK)

September 3-4 – “Crime pays for teenage lout”. Australia: In a decision that “stunned the legal community and victim’s groups”, a “teenager who broke into a nightclub was yesterday awarded nearly $50,000 damages for injuries he received in an attack by the publican. Joshua Fox was a ‘grossly stupid, totally irresponsible drunken lout’, according to a court assessment. But a [New South Wales] judge said the force used against him was excessive. Mr. Fox’s mother was awarded $18,000 for nervous shock upon seeing her son’s injuries.” (Steve Gee and Patrick O’Neil, Melbourne Herald-Sun, Aug. 30). (DURABLE LINK)

September 3-4 – 2002′s least surprising headline. [Sen. John] “Edwards has been on a fundraising frenzy over the last three months, raising nearly $2 million in ‘soft money’ — the type of donation soon to be banned, with three-quarters of it coming from trial lawyers.” (Jim VandeHei, “Trial Lawyers Fund Edwards”, Washington Post, Sept. 3). (DURABLE LINK)

September 3-4 – A breast-cancer myth. For years many have held it as an article of faith that synthetic chemicals in the environment are an important contributor to American cancer rates, the best-known example being the supposedly inexplicably high rates of breast cancer occurring on New York’s Long Island. But as a new $8 million study from National Cancer Institute researchers concludes, science has not found evidence to document the thesis. (“Federal study shows no link between pollution and breast cancer”, AP/MedLine, Aug. 6; Gina Kolata, “Looking for the Link”, New York Times, Aug. 11; “Epidemic That Wasn’t”, Aug. 29)(both reg)). See Ronald Bailey, “Cluster Bomb”, Reason Online, Aug. 14. This weekend, in a perhaps surprising development, the New York Times‘s editorialists joined the chorus (“Breast Cancer Mythology on Long Island”, Aug. 31)(reg).
Who should be embarrassed by these developments? Well, for starters, Sen. Hillary Rodham Clinton (Margaret Costello, “Elmirans to testify about cancer”, Elmira (N.Y.) Star-Gazette, June 11, 2001); Ms. magazine (Sabrina McCormick, “Breast Cancer Activism”, Summer); activist groups like the Breast Cancer Fund and the Nader-orbit New York Public Interest Research Group (Stony Brook chapter). And perhaps more than any other well-known group, the Sierra Club, which notwithstanding its sometimes warm-huggy image has published spectacularly wrongheaded and irresponsible coverage of the issue (Sharon Batt & Liza Gross, “Cancer, Inc.”, Sierra Magazine, Sept./Oct. 1999). For similar myths about “cancer alley” in Louisiana, see Nov. 8, 2000. (DURABLE LINK)


May 10 – “Barbecue group sued over contest”. Jim Woodsmall of Jumpin’ Jim’s BBQ in Johnston, Ia., has sued the Kansas City Barbeque Society, charging that his business has suffered because the society has failed to award his barbecue recipe the stellar ratings he feels it deserved. The enthusiast group fails to follow impartial and uniform rules in its cook-offs, Woodsmall claims, which he thinks amounts to fraud and negligence. (Lindsey A. Henry, Des Moines Register, May 8).

May 10 – Fortune on Lemelson patents. We’ve run a couple of items on the amazing Jerome Lemelson patent operation (see Jan. 19, 2001 and August 28, 1999) and now Fortune weighs in with the best overview we’ve seen. Lemelson, who died in 1997, filed patents for hundreds of ideas and industrial processes which he said he had invented, and which underlay such familiar modern technologies as VCRs, fax machines, bar-code scanners, camcorders and automated warehouses. A mechanical genius? Well, at least a genius in figuring out the angles that could be worked with American patent law: by filing vague patents and then arranging to delay their issuance while amending their claims to adjust to later technological developments, Lemelson steered them into the path of unfolding technology, eventually securing bonanzas for his tireless litigation machine. Foreign-owned companies folded first because they were afraid of American juries, which helped give Lemelson the war chest needed to break the resistance of most of the big U.S.-based industries as well. $1.5 billion in royalties later, his estate continues to sue some 400 companies, with many more likely to be added in years to come. (Nicholas Varchaver, “The Patent King”, May 14).

May 10 – Prospect of $3 gas. One reason refinery disruptions lead to big spikes in the price of gasoline at the pump: environmental rules end up mandating a different blend of gas for each state, hampering efforts to ship supplies to where they’re most needed. (Ron Scherer, “50 reasons gasoline isn’t cheaper”, Christian Science Monitor, May 4; Ben Lieberman (Competitive Enterprise Institute), “Skyrocketing Ga$: What the Feds Can Do”, New York Post, April 23, reprinted at CEI site).

May 10 – Welcome Norwegian readers. We get discussed, and several of our recent news items summarized, on the “humor” section of Norway’s Spray Internet service (Bjørn Tore Øren, “For mange advokater”, May 8). Among other non-U.S. links which have brought us visitors: Australia’s legal-beat webzine, Justinian (“A journal with glamour — yet no friends”; more); Baker & Ballantyne, in the U.K.; the Virtual Law Library pages on media law compiled by Rosemary Pattenden at the University of East Anglia; and Sweden’s libertarian- leaning Contra.nu (“Har advokatkåren i USA för stort inflytande?” they ask of us)(more).

May 9 – Oklahoma forensics scandal. After serving fifteen years in prison on a 1986 rape conviction, Jeffrey Pierce was released Monday after new DNA evidence refuted testimony against him by a forensic specialist whose work is the subject of a growing furor. “From 1980 to 1993, Joyce Gilchrist was involved in roughly 3,000 cases as an Oklahoma City police laboratory scientist, often helping prosecutors win convictions by identifying suspects with hair, blood or carpet fibers taken from crime scenes.” Although peers, courts and professional organizations repeatedly questioned the competence and ethical integrity of her work, prosecutors asked few questions, perhaps because she was getting them a steady stream of positive IDs and jury verdicts in their favor. Now Oklahoma Gov. Frank Keating has ordered an investigation of felony cases on which Gilchrist worked after an FBI report “found she had misidentified evidence or given improper courtroom testimony in at least five of eight cases the agency reviewed.” (Jim Yardley, “Flaws in Chemist’s Findings Free Man at Center of Inquiry”, New York Times, May 8; “Inquiry Focuses on Scientist Used by Prosecutors”, May 2)(reg)

May 9 – Not about the money. Foreign policy making on a contingency fee: “When attorneys agreed to champion the causes of American victims of terrorism in the Middle East, it wasn’t supposed to be about the money.” We’ve heard that one before, haven’t we? “But the prospect of multimillion-dollar fees in what once seemed to be long-shot litigation against Iran has left lawyers fighting over fees in federal court in Washington, D.C. High principles of international law and justice aren’t at stake. It’s simply a matter of who gets paid.” (Jonathan Groner, “Anti-Terrorism Verdicts Spur Big Fee Fights”, Legal Times, April 18).

May 9 – Update: cookie lawsuit crumbles. Half-baked all along, and now dunked: a federal court in March dismissed a would-be class action lawsuit against web ad agency DoubleClick over its placing of “cookies” on web users’ hard drives. Other such suits remain pending (see also Feb. 2, 2000); this one was brought by Milberg Weiss’s Melvyn Weiss and by Bernstein, Litowitz (Michael A. Riccardi, “DoubleClick Can Keep Hand in Cookie Jar, Federal Judge Rules”, New York Law Journal, March 30).

May 8 – “Lawyers to Get $4.7 Million in Suit Against Iomega”. “Lawyers in a class action suit alleging defects in portable computer Zip disk drives will get the only cash payout, up to $4.7 million, in a proposed settlement with manufacturer Iomega Corp., according to the company’s Web site.” Rebates of between $5 and $40 will be offered to past customers who buy new Iomega products, while Milberg Weiss and three other law firms expect to split their fees in crisp greenbacks, not coupons, if a Delaware judge approves the settlement in June. (Yahoo/Reuters, April 12) (Rinaldi class action settlement notice, Iomega website).

May 8 – A definition (via Sony’s Morita and IBM’s Opel). “Litigious (li-TIJ-uhs) adjective: 1. Pertaining to litigation; 2. Eager to engage in lawsuits; 3. Inclined to disputes and arguments. [From Middle English, from Latin litigiosus from litigium, dispute.]

“‘My friend John Opel of IBM wrote an article a few years ago titled ‘Our Litigious Society,’ so I knew I was not alone in my view that lawyers and litigation have become severe handicaps to business, and sometimes worse.” — Sony co-founder Akio Morita (Wordsmith.org “A Word a Day” service, scroll to Jan. 26).

May 8 – “Halt cohabiting or no bail, judge tells defendants”. “A federal judge in Charlotte is using a 19th-century N.C. law banning fornication and adultery, telling defendants they won’t be freed on bond until they agree to get married, move out of the house or have their partner leave. U.S. Magistrate Judge Carl Horn won’t release a criminal defendant on bond knowing that he or she will break the law. And that includes North Carolina’s law against unmarried couples cohabiting, placed on the books in 1805.” (Eric Frazier and Gary L. Wright, Charlotte Observer, April 4) (see also May 18, 2000).

May 7 – Says cat attacked his dog; wants $1.5 million. “A San Marcos man has filed a $1.5 million claim against the city because a cat who lives in the Escondido Public Library allegedly attacked his dog.” Richard Espinosa says he was visiting the library on November 16 with his assistance dog Kimba, a 50-pound Labrador mix, when the feline, named L.C. or Library Cat because it’s allowed to live in the building, attacked the dog inflicting scratches and punctures. As for Espinosa, wouldn’t you know, he “was emotionally traumatized and suffers from flashbacks, terror, nightmares and other problems.” Four lawyers declined to take his case and he finally filed it himself. “The cat was apparently uninjured.” (Jonathan Heller, “Escondido gets $1.5 million claim; library cat allegedly assaulted dog”, San Diego Union-Tribune, May 4) (see letter to the editor from Espinosa, June 13).

May 7 – Judge throws out hog farm suit. As was reported a few months ago, a number of environmental groups aim to take a lesson from the tobacco affair by using mass lawsuit campaigns to pursue various goals which they haven’t been able to secure through the legislative and electoral process. To do this they’ve teamed up with tobacco-fee-engorged trial lawyers; the nascent alliance got lots of publicity in December with one of its first projects, suing Smithfield Farms for billions over the nuisance posed by large-scale hog farming, a project apparently masterminded by Florida trial lawyer Mike Papantonio (tobacco, asbestos, fen-phen) and with suits against chicken and livestock operations promised in later phases of the effort (see Dec. 7, 2000). Far less publicity has been accorded to Judge Donald W. Stephens’s ruling in March which threw out the first two lawsuits as having failed to state a legal claim against the large hog packer and raiser. (Appeal is expected.) Power scion Robert F. Kennedy, Jr. is still on board with his headline-ready name to front for the lawyers in the press, but he doesn’t seem to have gone out of his way to call attention to the adverse ruling (“North Carolina judge dismisses lawsuits against hog producer”, AP/MSNBC, March 30; Scott Kilman, “Environmental groups target factory-style hog farm facilities”, Wall Street Journal/MSNBC, undated; Smithfield press release, March 29).

MORE: National Public Radio, “Living on Earth” with Steve Curwood and reporter Leda Hartman, week of Feb. 16; Water Keeper Alliance (Kennedy’s group), hog campaign homepage with list of lawyers (J. Michael Papantonio, Steven Echsner and Neil Overholtz, Levin, Papantonio, Pensacola, Fla.; Thomas Sobol, Jan Schlichtmann, Steven Fineman and Erik Shawn of Lieff, Cabraser, New York and Boston; F. Kenneth Bailey, Jr. and Herbert Schwartz of Williams Bailey, Houston; Howard F. Twiggs and Douglas B. Abrams of Twiggs, Abrams, (Raleigh, N.C.), Ken Suggs and Richard H. Middleton, Jr. of Suggs, Kelly & Middleton (Columbia, S.C.), Joe Whatley, Jr., Birmingham, Ala.; Kevin Madonna, Chatham, N.Y.; Stephen Weiss and Chris Seeger, New York; Charles Speer, Overland Park, Kan.; Hiram Eastland, Greenwood, Miss.) Compare “Conoco Could Face $500 Million Lawsuit Over Bayou Water Pollution Problems”, Solid Waste Digest: Southern Edition, March 2001 (page now removed, but GoogleCached) (Papantonio campaign in Pensacola).

May 7 – Website accessibility law hits the U.K. “Scottish companies were warned yesterday that they could face prosecution if their websites are not accessible to the disabled. Poorly-designed websites are often incompatible with Braille software.” (more) (yet more) (Pauline McInnes, “Firms warned on websites access”, The Scotsman, April 19).

May 4-6 – By reader acclaim: “Vegetarian sues McDonald’s over meaty fries”. Seattle attorney Harish Bharti wants hundreds of millions of dollars from the burger chain for its acknowledged policy of adding small amounts of beef flavoring to its french fries, which he says is deceptive toward vegetarian customers (ABCNews.com/ Reuters, May 3). Notable detail that hasn’t made it into American accounts of the case we’ve seen, but does appear in the Times of India: “When he is not practising law in Seattle, Bharti says he teaches at Gerry Spence’s exclusive College for Trial Lawyers in Wyoming”. Does this mean you can be a predator without being a carnivore? (“US Hindus take on McDonald’s over French fries”, Times of India, May 3) (see also Aug. 30, 1999).

May 4-6 – Mississippi’s forum-shopping capital. The little town of Fayette, Miss., reports the National Law Journal, is “ground zero for the largest legal attack on the pharmaceutical industry” in memory. Tens of thousands of plaintiffs are suing in the Fayette courthouse over claimed side effects from such drugs as fen-phen, Rezulin, and Propulsid, not because they’re local residents (most aren’t) but because the state’s unusually lax courtroom rules allow lawyers to bring them in from elsewhere to profit from the town’s unique brand of justice. The townspeople, nearly half of whom are below the poverty level and only half of whom graduated from high school, “have shown that they are willing to render huge compensatory and punitive damages awards”. Among other big-dollar outcomes, Houston plaintiff’s lawyer Mike Gallagher of Gallagher, Lewis, Serfin, Downey & Kim “helped win a $150 million compensatory damages verdict for five fen-phen plaintiffs in Jefferson County on Dec. 21, 1999. The jury deliberated for about two hours…” There’s just one judge in Fayette County to hear civil cases, Judge Lamar Pickard, whose handling of trials is bitterly complained of by out-of-town defendants. As for appeal, that route became less promising for defendants last November when plaintiff’s lawyers solidified their hold on the Mississippi Supreme Court by knocking off moderate incumbent Chief Justice Lenore Prather.

Lots of good details here, including how the Bankston Drug Store, on Main Street in Fayette since 1902, has the bad fortune to get named in nearly every suit because that tactic allows the lawyers to keep the case from being removed to federal court. Plaintiff’s lawyer Gallagher, who also played a prominent role in the breast implant affair, says criticism of the county’s jurors as easily played on by lawyers “‘sounds racist’, since the jury pool is predominantly black”. He also brushes off defendants’ complaints about forum-shopping with all the wit and sensibility at his command: “They want to tell me where I can sue them for the damage they caused? They can kiss my a**.” (Mark Ballard, “Mississippi becomes a mecca for tort suits”, National Law Journal, April 30).

May 4-6 – Agenda item for Ashcroft. Attorney General Ashcroft could make a real difference for beleaguered upstate New York communities by backing off the Justice Department’s Reno-era policy of avid support for revival of centuries-dormant Indian land claims, which went so far as to include the brutalist tactic of naming as defendants individual landowners whose family titles had lain undisturbed since the early days of the Republic (see Oct. 27, 1999, Feb. 1, 2000) (John Woods, “Long-Running Indian Land Claims in New York May Hinge on Ashcroft’s Stance”, New York Law Journal, April 16).

May 3 – “Family of shooting victim sue owners of Jewish day-care center”. If the gunman doesn’t succeed in wiping out your institution, maybe the lawyers will: “The parents of a boy who was shot by a white supremacist at a Jewish day-care center have filed a lawsuit claiming the center’s owners failed to provide the necessary security to prevent hate crime attacks.” Buford O. Furrow fired more than 70 shots at the North Valley Jewish Community Center in Los Angeles on Aug. 10, 1999 (AP/CNN, May 1).

May 3 – Update: mills of legal discipline. They grind slow, that’s for sure, but does that mean they grind exceeding fine? A disciplinary panel has ended its investigation of New Hampshire chief justice David Brock, letting him off with an admonishment, in the protracted controversy over the conduct (see April 5 and Oct. 11, 2000) which also led to his impeachment and acquittal in the state senate; Brock’s lawyer had threatened to sue the disciplinary panel if it continued its probe, and a dissenting committee member called that lawsuit-threat “intended to intimidate” (“Threat of lawsuit ended Brock case”, Nashua Telegraph, April 23; Dan Tuohy, “Finding bolsters call for reform”, Foster’s Daily Democrat, April 26). A hearing committee of the District of Columbia Board on Professional Responsibility has recommended that Mark Hager be suspended for three years over the episode [see Feb. 23, 2000] in which he and attorney John Traficonte “began negotiations with [drugmaker] Warner-Lambert to make refunds to consumers, and to pay himself and Hager $225,000 in exchange for which they would abandon their representation, agree to hold the agreement and fee secret from the public and their clients, and promise not to sue Warner-Lambert in the future. Traficonte and Hager accepted the offer without first obtaining the approval of any class member.” The disciplinary committee “found that Hager’s conduct was shockingly outrageous, and that his status as a law professor was a factor in aggravation.” We’ve seen no indication that anyone in the administration of American University’s law school, where Hager continues to teach, has expressed the smallest misgivings about the example that students are supposed to take from his conduct (Denise Ryan, law.com D.C., Board on Professional Responsibility No. 31-98, In re Hager, issued Nov. 30, 2000). (Update Jul. 19, 2003: Hager resigns AU post in April 2003). And off-the-wall Michigan tort lawyer and politician Geoffrey Fieger faces charges before the state attorney grievance commission following reports that he used his radio show to unleash “an obscenity-laced tirade” against three state appeals judges (“Fieger Under Fire For Alleged Swearing Fit”, MSNBC, April 17).

May 3 – “Valley doctors caught in ‘lawsuit war zone’”. A report from the Texas Board of Medical Examiners finds medical malpractice cases approximately tripled in 1999 in Texas’s McAllen-Brownsville region compared with the previous year. Among short-cuts lawyers are accused of employing: suing doctors without an authorization from the client, and hiring as their medical expert a family doctor who charges $500 an hour and has reviewed 700 cases for lawyers, second-guessing the work of such specialists as cardiovascular surgeons, but has not herself (according to an opposing lawyer) had hospital privileges since 1997. (James Pinkerton, Houston Chronicle, March 2 — via Houston CALA). State representative Juan Hinojosa has introduced a bill that would allow doctors and hospitals to countersue lawyers and clients who file suits with reckless disregard as to whether reasonable grounds exist for their action. (“Doctors seek new remedy to fight frivolous lawsuits”, CALA Houston, undated).

May 2 – Suing the coach. “A teenager, who felt she was destined for greatness as a softball player, has filed a $700,000 lawsuit against her former coach, alleging his ‘incorrect’ teaching style ruined her chances for an athletic scholarship. Cheryl Reeves, 19, of Rambler Lane in Levittown, also alleges that her personal pitching coach, Roy Jenderko, of Warminster, not only taught her an illegal style of pitching but also used ‘favorite players’ which resulted in demoralizing the teen. ” (Dave Sommers, “Legal Pitch”, The Trentonian, May 1).

May 2 – Trustbusters sans frontieres. Truly awful idea that surfaced in the press a while back: a bipartisan group of senators led by Sen. Arlen Specter (R-Pa.) say they’re trying to pressure the Bush administration to file an antitrust suit against the Organization of Petroleum Exporting Countries, accusing it of restricting the output of oil in order to raise prices to consumers in countries like ours — which is, of course, OPEC’s reason for existence. “Most antitrust and foreign policy experts interviewed say they cannot imagine a scenario in which such legal action would succeed, or that any president would risk his foreign policy goals for such a lawsuit”, reports the National Law Journal. But even the gesture of inviting unelected judges and unpredictable juries to punish sovereign foreign powers would increase the chances of our landing in a series of confrontations and international incidents that would be at best imperfectly manageable by the nation’s executive branch and diplomatic corps (which cannot, for example, necessarily offer to reverse or suspend court decisions as a bargaining chip).

The United States’s relations with OPEC countries, it will be recalled, have on occasion embroiled us in actual shooting wars, which are bad enough when entered after deliberation on the initiative of those to whom such decisions are entrusted in our system of separation of powers, and would be all the less supportable if brought on us by the doings of some rambunctious judge or indignant jury. Wouldn’t it be simpler for Sen. Specter to just introduce a bill providing that the courts of the United States get to run the world from now on? (Matthew Morrissey, “Senators to Press for Suing OPEC Over Pricing”, National Law Journal, March 1).

May 1 – Columnist-fest. Scourings from our bookmark file:

* Mark Steyn on the Indian residential-school lawsuits that may soon bankrupt leading Canadian churches (see Aug. 23, 2000): (“I’ll give you ‘cultural genocide’”, National Post, April 9). Bonus: Steyn on protectionism, globalization and Quebec City (“Don’t fence me in”, April 19).

* Federalists under fire: there’s a press campaign under way to demonize the Federalist Society, the national organization for libertarian and conservative lawyers and law students. The Society has done a whole lot to advance national understanding of litigation abuses and overuse of the courts — could that be one reason it’s made so many powerful enemies? (Thomas Bray, “Life in the Vast Lane”, OpinionJournal.com, April 17; Marci Hamilton, “Opening Up the Law Schools: Why The Federalist Society Is Invaluable To Robust Debate”, FindLaw Writ, April 25; William Murchison, “In Defense of the Federalist Society”, Dallas Morning News, April 25).

* A Bush misstep: the White House has named drug-war advocate and Weekly Standard contributor John P. Walters as head of the Office of National Drug Control Policy. “Walters, almost alone among those who have spent serious professional time on drug abuse in America, harbors no misgivings over the fact that we’ve been crowding our prisons almost to the bursting point with nonviolent drug offenders.” (William Raspberry, “A Draco of Drugs”, Washington Post, April 30) (Lindesmith Center).

* “Overreaching IP legal teams kick the firm they supposedly represent”: Seth Shulman of Technology Review on the “patented peanut butter sandwich” case (see Jan. 30). (“Owning the Future: PB&J Patent Punch-up”, May). Also: California judge William W. Bedsworth (“Food Fight!”, The Recorder, March 16).

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