Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for June, 2003

Archived personal responsibility items, pre-July 2003

Tipple your way to court, 2003: “Shouldn’t have let him get so drunk” (Australia), May 12.  2002: “‘Woman freezes; sues city, cabbie’“, Sept. 18-19; “Wasn’t his fault for lying drunk under truck“, Aug. 16-18; “Hey, no fair talking about the pot” (highway rollover), Apr. 12-14; “European workplace notes” (employer responsible for vodka overdose), Feb. 25-26; “‘Drunken Driver’s Widow Wins Court’s OK To Sue Carmaker’“, Feb. 25-26. 2001: “‘Teen hit by train while asleep on tracks sues railroad’“, Dec. 12; “‘Man suing after drunken driving crash’“, Aug. 20-21; “Don’t rock the Coke machine“, Jul. 20-22; “Court says tipsy topless dancer can sue club“, Jul. 3-4; “Jury: drunk driver hardly responsible at all for fatal crash“, Jun. 15-17; “It was the bar’s fault“, Apr. 13-15; “‘Court upholds workers compensation for drunk, injured worker’“, Apr. 6-8; “‘Woman who drove drunk gets $300,000’” (Ontario), Feb. 7-8 (& see Sept. 24, second case: $18 million); “‘All you can drink’ winner sues over fall“, Jan. 31-Feb. 1.  2000: “Zapped pylon-climber sues liquor-servers, utility“, March 6.  1999: “Personal responsibility wins a round” (judge rejects case from Pa. man who got drunk and climbed high voltage catenary), Sept. 17-19. 

Maybe crime does pay, 2003: “‘Robber sues clerk who shot him during holdup’“, May 6; “Not an April Fool’s joke“, Apr. 1; “‘Burglars to be banned from suing victims’” (U.K.), Mar. 10-11; “‘Family of electrocuted thief gets $75,000’“, Feb. 26; “Tried to outrun Coast Guard in chase“, Feb. 14-16; “‘No suits by lawbreakers, please’“, Jan. 27-28 (& Jan. 31-Feb. 2).  2002: “‘Mom who drugged kids’ ice cream sues’“, Nov. 1-3; “‘Patient sues hospital for letting him out on night he killed’” (Australia, psychiatric case), Oct. 16-17; “‘Crime pays for teenage lout’” (Australia), Sept. 3-4; “‘After stabbing son, mom sues doctors’“, May 31-Jun. 2; “‘Barbed wire might hurt burglars, pensioner warned’“, May 28-29; “Hospital rapist sues hospital“, May 22-23 (& Mar. 5-7, 2003: court dismisses case); “Lawyers say taxpayers owe $41 million to smuggled illegals’ survivors“, May 10-12; “L.A. police sued, and sued” (by family of gunman killed in shootout), Apr. 12-14; “Should have arrested him faster” (frostbite in the open), Mar. 1-3; “Vandal’s dad sues store over blaze“, Feb. 6-7; “Paroled prisoner: pay for not supervising me“, Jan. 4-6.  2001: “Firefighter’s demand: back pay for time facing criminal rap“, Aug. 29-30; “‘Man suing after drunken driving crash’“, Aug. 20-21; “‘Criminals could sue their victims’” (U.K.), July 26; “‘Woman who drove drunk gets $300,000’” (Ontario), Feb. 7-8; “Crime does pay” (Denver burglar shot by police gets $1.2 million), Feb. 2. 2000: “‘Burglar sues for compensation’” (Australia), Nov. 21 (& see Apr. 1-2, 2002); “‘Fla. DUI Teen Sues Police’” (should have arrested him, he argues), Nov. 14; “Killed his mother, now suing his psychiatrists“, Oct. 2; “Not my fault, I” (woman who murdered daughter sues psychiatrists), May 17; “$65 million Texas verdict: driver at twice the legal blood limit” (drunk driver’s estate sues automaker), March 28; “From the labor arbitration front” (disallowed firing of employee who pleaded no contest to larceny), March 28; “Crime does pay, cont’d” (North Hollywood, Calif. bank robber killed in police shootout), Feb. 23 (& update March 23: mistrial declared after jury deadlock in suit by robber’s family); “County to pay ‘mountain man’ burglar $412,500“, Feb. 15. 1999: “‘Two men shot in suspected drug deal win $1.7 million’“, Dec. 15 (& update June 6, 2001: appeals court overturns); “California’s worst?” (bank robber sues after hidden tear-gas device goes off in loot), Dec. 14; “Drunks have rights, too“, Dec. 1 (& update Jul. 24-25, 2000: appeals court throws out award).  See also our editor’s article on New York’s “mugger millionaire” case. 

Pools & swimming, 2003: “‘Lawyers spoil fun’” (Ga. water park), May 19; “‘Florida jury awards $100M for pool accident’“, Feb. 13.  2002: “Australia’s litigation debate“, May 24-26.  2001: “Australian roundup” (bodysurfer), Nov. 23-25; “Needed: assumption of risk“, Jul. 27-29.  2000: “‘How’s the pool?’” (Las Vegas Strip’s Frontier Hotel recommended for its pre-big-lawsuits deep end), Feb. 23; “Latest shallow-end pool dive case“, Jan. 24.  1999: “Razor wire on the pool fence” (homeowner finds it too big a legal risk to let local kids swim), Jul. 27. 

“Should have watched his step answering call of nature“, Mar. 8-9, 2003.

Couldn’t help eating it, 2003: “Give me my million“, Jun. 20-22; “Judge tosses McDonald’s obesity case“, Jan. 23 (& Jan. 27-28); “Anti-diet activist hopes to sue Weight Watchers“, Jan. 13-14.  2002: Letter to the editor, Oct. 23; “Claim: docs should have done more to help woman quit smoking and lose weight“, Sept. 18-19; “Personal responsibility roundup“, Sept. 12; “Fat suits, cont’d“, Jul. 26-28; “‘Ailing man sues fast-food firms’“, Jul. 25; “Sin-suit city“, Jun. 10; “McArdle on food as next-tobacco“, May 27; “‘Targeting “big food”‘“, Apr. 29-30; “Life imitates parody: ‘Whose Fault Is Fat?‘”, Jan. 23-24.  2001: “‘Diabetic German judge sues Coca-Cola for his health condition’“, Nov. 18.  2000: “‘Caffeine added to sodas aims to addict — study’“, Aug. 18-20.  1999: “Toffee maker sued for tooth irritation“, Nov. 5-7; “Not just our imagination” (calls for class-action suits against fast-food, meat purveyors), Sept. 25-26.

Warning labels and disclaimers, 2003: “‘Wacky Warning Label’ winners“, Jan. 13-14.  2002: “Satirical-disclaimer Hall of Fame” (Australian humor magazine), Oct. 28-29; “‘Warning …’” (Dave Barry humor column), Aug. 16-18; “Read the label, then ignore it if you like” (flammable carpet adhesive), Jul. 12-14; “Pitcher, hit by line drive, sues maker of baseball bat“, Apr. 19-21; “Injured in ‘human hockey puck’ stunt“, Mar. 18; “‘Before you cheer … “Sign here”‘“, Mar. 15-17; “Didn’t know cinema seats retracted“, Feb. 13-14; “Warning on fireplace log: ‘risk of fire’“, Jan. 25-27.  2001: “Et tu, UT?” (Utah will not enforce parent-signed release forms for children), Nov. 16-18; “Disclaimer rage?“, Oct. 15; “Needed: assumption of risk“, Jul. 27-29; “Quite an ankle sprain” (failure to warn of gopher holes in parks), Apr. 20-22; “‘Wacky Warning Label’ winners“, Jan. 19-21.  2000: “Columnist-fest” (Girl Scout horseback riding disclaimer), Apr. 6; “Rise of the high school sleepover disclaimer“, Mar. 22; “From our mail sack: skin art disclaimers” (tattoo consent form), Mar. 1; “Weekend reading: columnist-fest” (Laura Pulfer on warning labels), Feb. 5-6; “Never iron clothes while they’re being worn” (Wacky Warning Label contest winners), Jan. 18 (& letter to editor, Jan. 21-23).  1999: “Christmas lawyer humor” (Yuletide greetings consisting entirely of disclaimers), Dec. 23-26; “Weekend reading” (disclaimers “creeping into nearly every aspect of American life”), Jul. 31-Aug. 1. 

Blamed for suicides, 2003: “‘No suits by lawbreakers, please’“, Jan. 27-28 (& Jan. 31-Feb. 2).  2002: “The blame for suicide“, Sept. 25-26; “‘Addictive’ computer game blamed for suicide“, Apr. 3-4. 2001: “Utah: rescue searchers sued“, Nov. 26, 2001; “‘Shooting range sued over suicide’“, Sept. 27; “$3 million verdict for selling gun used in suicide“, Sept. 17; “‘Suicide- Attempt Survivor Sues’” (department that issued cop his gun), Jan. 24-25. 

Excuse syndromes, 2002: “Blue-ribbon excuses” (sex on train), Oct. 7-8; “So depressed he stole $300K“, Mar. 19; “Rough divorce predisposed him to hire hitman“, Feb. 13-14. 2001: “Stories that got away” (multiple-personality defense), Jul. 23; “‘Pseudologica fantastica’ won’t fly” (judge’s fibs on resume), Jun. 7 (& Aug. 20-21); “Judge buys shopaholic defense in embezzling“, May 25-27; “The malaria drug made him do it“, Mar. 28.  2000: “Blue-ribbon excuses” (baked goods mutilator, lawyer pleading incompetent self-representation), Oct. 6-9; “Predestination made him do it” (Pope’s assassin and Fatima prophecy), June 6; “Victim of the century?” (misbehaving school principal collects disability benefits for sexual compulsion), Jun. 2-4; “Prozac made him rob banks“, Mar. 1; “Blue-ribbon excuse syndromes“, Feb. 12-13; “Latest excuse syndromes“, Jan. 13-14.  1999: “Doctor sues insurer, claims sex addiction“, Oct. 13. 

“Lightning bolt in amusement park’s parking lot“, Jun. 23, 2003; “‘Woman attacked by goose sues county’“, Jan. 27-28, 2003; “Quite an ankle sprain” (watch where you’re going in parks), Apr. 20-22, 2001. 

“MIT sued over student’s nitrous-oxide death“, Feb. 25, 2003; “By reader acclaim: ‘Parents file suit over student’s drug death’” (abuse of Oxycontin), Jul. 25, 2001. 

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

“Satirical-disclaimer Hall of Fame” (Australian humor magazine), Oct. 28-29, 2002; “Tobacco: Boeken record” (The Onion parody), June 19, 2001; “Jury orders ‘Big Chocolate’ to pay $135 billion to obese consumers” (parody), Aug. 3, 2000; “This side of parodies” (fictional account of self-inflicted icepick injury), Oct. 5-6, 1999. 

Sports risks: “Sis-Boom-Sue” (cheerleading), Jan. 15-16, 2003; “Skating first, instructions later“, Sept. 25-26, 2002; “Pitcher hit by line drive sues maker of baseball bat“, Apr. 19-21, 2002; “Australian roundup” (Perth bodysurfer), Nov. 23-25, 2001; “Needed: assumption of risk” (baseball thrown into stands, skydiving), July 27-29; “‘Lawsuits could tame ski slopes’“, Feb. 6, 2001; “Promising areas for suits” (foul-ball cases and other stadium injuries), Dec. 7, 2000; “Teams liable for fans’ safety” (Colorado: hockey puck hit into stands), Aug. 15; “‘Skydivers don’t sue’“, May 26-29; “Trips on shoelace, demands $10 million from Nike“, April 7-9, 2000. 

Gambling: Letter to the editor, Oct. 23; “Personal responsibility roundup“, Sept. 12, 2002; “Sin-suit city“, Jun. 10; “‘Next tobacco’ watch: gambling“, May 20-21, 2002 (& May 31); “‘Gambling addiction’ class action” (Quebec), June 20, 2001.

Hot beverages: “Litigation good for the country?” (Carl T. Bogus), Aug. 19, 2002; “British judge rejects hot-drink suits“, Mar. 29-31, 2002 (& Aug. 10, 2000); “By reader acclaim” (Illinois case; complainant sues mother), Jan. 11, 2001; “‘Court says warning about hot coffee unnecessary’” (Nevada Supreme Court), Jul. 18, 2000; “Now it’s hot chocolate“, Apr. 4, 2000. 

“‘Family of boy injured by leopard may sue’“, Jul. 18, 2002; “Skinny-dipping with killer whale: ‘incredibly bad judgment’“, Sept. 21, 1999 (Oct. 7 update: case dropped). 

“Wasn’t his fault for lying drunk under truck“, Aug. 16-18, 2002; “‘Win Big! Lie in Front of a Train!’“, Jun. 26-27, 2002 (& Jul. 12-14); “Australian roundup” (graffiti artist on train), Nov. 23-25, 2001; “Hit after laying on RR tracks; sues railroad“, Oct. 23, 2001. 

“‘Man awarded $60,000 for falling over barrier’“, Mar. 5, 2002. 

“Utah: rescue searchers sued“, Nov. 26, 2001. 

“Suit blames drugmaker for Columbine“, Oct. 24-25, 2001. 

“Mosh pit mayhem“, Sept. 7-9, 2001. 

“Urban legend alert: six ‘irresponsibility’ lawsuits“, Aug. 27-28, 2001.

“Don’t rock the Coke machine“, Jul. 20-22, 2001. 

“Tobacco: Boeken record“, June 19, 2001. 

Scary!: “From dinner party to court” (U.K. hypnotist), May 22, 2001; “Hypnotist sued by entranced spectator“, March 3-14, 2001; “Girl puts head under guillotine; sues when hurt“, March 8, 2000; “Haunted house too scary“, Jan. 6, 2000; “‘Scared out of business’” (decline of community Halloween haunted houses), Nov. 5-7, 1999. 

Stop having fun (children’s recreation): see schools page. 

“Tendency of elastic items to recoil well known“, Mar. 6, 2001.

“By reader acclaim” (sues alleged crack dealers over own addiction), Jan. 11, 2001.

“Smoker’s suit nixed in Norway“, Dec. 18-19, 2000; “Personal responsibility takes a vacation in Miami” (Engle tobacco verdict), July 8, 1999.

“Highway responsibility” (Derrick Thomas suit), Nov. 28, 2000.

“Fat tax proposed in New Zealand“, Oct. 31, 2000. 

“More things you can’t have: raw-milk cheeses“, Oct. 3, 2000; “More things you can’t have” (unpasteurized cider, New England square dances), Sept. 27, 1999; “More things you can’t have” (rare hamburgers, food sent to summer camp), August 9, 1999.

“Smoking and responsibility: columnists weigh in” (after Florida verdict), Jul. 28-30, 2000. 

“‘”Whiplash!” America’s most frivolous lawsuits’” (book collects cases), Jul. 14-16, 2000. 

“Inmate: you didn’t supervise me” (horseplay alone in cell), Jul. 7, 2000. 

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

“Risky?  Who’da thunk it?” (currency speculator sues over losses), Jun. 9-11, 2000. 

“‘Jury awards apparent record $220,000 for broken finger’” (hurt while dancing), May 22, 2000. 

“Videogame maker agrees to furnish safety gloves“, Mar. 13, 2000. 

“Letourneau scandal: now where’s my million?” (boy sues), Apr. 20, 2000.

“All dressed up“, Apr. 19, 2000. 

“Down repressed-memory lane I: costly fender-bender” (eggshell-psyche plaintiff), Dec. 29-30, 1999. 

“Down repressed-memory lane II: distracted when she signed” (separation agreement), Dec. 29-30, 1999.

“GM verdict roundup” (lawyers shift drunk drivers’ responsibility to automakers), Dec. 16, 1999; “Drunks have rights, too“, Dec. 1, 1999. 

“Rolling the dice (cont’d)” (Internet gambler sues credit card companies that advanced him money), Dec. 7, 1999; “Rolling the dice” (same), Aug. 26, 1999.

“Responsibility, RIP” (columnist Mona Charen), Nov. 2, 1999. 

“The art of blame” (death of child left in hot van), Oct. 20, 1999. 

“Nominated by reader acclamation” (killer’s parents sue school district, lawmen for failing to prevent Columbine massacre), Oct. 18, 1999. 

“Block PATH to lawsuits” (fall out of tree in yard, sue your employer), Sept. 1, 1999. 

“To restore individual responsibility, bring back contract principles” (Cato Institute paper by Prof. Michael Krauss), Aug. 16, 1999.

“Somebody might trip” (NYC condemns prints-of-the- Hollywood-stars sidewalk as slip hazard), Aug. 13, 1999. 

“All have lost, and all must have damages” (huge award to salesman who hawked bad insurance policies since he’s a victim too), Aug. 3, 1999.

Through much of American history, courts discouraged lawsuits arising from risks that individuals were deemed to have assumed in the course of going about familiar activities, such as the risk of being thrown while horseback riding, of slipping on toys underfoot while visiting a house with children, or of being hit with a foul ball while attending a ball game.  (Stored search on “assumption of risk”: Google, Alta Vista). Under the doctrine of “contributory negligence”, they often dismissed, as a matter of law, cases where a complainant’s own negligence had helped cause an accident.  They were even less likely to entertain cases in which someone’s knowing or deliberate dereliction had placed him in physical peril, such as cases in which people sue over injuries sustained in the course of committing crimes or attempting suicide.  And finally, they gave broad respect to express contractual disclaimers or waivers of liability: if a party was on notice that the other side in a transaction wasn’t willing to assume a responsibility, it wouldn’t be easy to tag them later with that responsibility in court. 

By the 1950s all these old barriers to liability had come under sustained attack in the law schools, where they were viewed as insulating defendants’ misconduct from legal scrutiny and impeding the forward march of liability law as a (high-overhead) variety of social insurance.  Most states moved from contributory negligence to comparative negligence, which allows a plaintiff whose negligence helped cause an accident to sue over it anyway, though for a reduced recovery.  Waivers and disclaimers began to be struck down as unconscionable, against public policy, not spelled out with sufficient clarity, etc.  And assumption of risk was whittled down by way of a dozen techniques: the most influential torts scholar of the postwar period, William Prosser, took the view that “that implied reasonable assumption of risk should not be allowed to reduce a plaintiff’s damage in any way” (Chase Van Gorder, “Assumption of Risk Under Washington Law“). 

The result is today’s American legal environment in which plaintiffs routinely try their luck at suits after being injured climbing high-voltage utility structures while drunk, skinny-dipping in icy pools with captive killer whales, trying “wheelies” and other stunts on industrial forklifts, and smoking for decades.  Some of these suits succeed at obtaining settlements while others fail, and it’s important to bear in mind that assumption of risk and related doctrines have not disappeared entirely.  Their general decay, however, has been important in bringing us today’s hypertrophy of such areas of law as premises liability, product liability and recreational liability. 

The website of attorney D. Pamela Gaines has useful resources on assumption of risk as it applies to such areas as premises liability, recreation and amusement parks. At the International Mountain Bicycling Association site, Tina Burckhardt explains “recreational use statutes” which grant some protection from liability lawsuits to landowners who allow free recreational use of their property.

Filed under: , , , , , , , , , , , , , , , , , , , , ,

Archived mold items, pre-July 2003

Archived entries before July 2003 can also be found here.

2003: “Mold — to the highest bidder!“, Jun. 23.

2002: “‘Doctors find no evidence of mold as a toxic disease’“, Sept. 23; “Judge questions ‘shotgun’ naming of 282 defendants in trailer-mold case“, Aug. 21; “The rewards of growing mold together“, May 9; “Mold sweepstakes: You May Already Be a Winner“, Apr. 25 (& update May 21, 2003).

2001: “Plastic cup blamed for child’s autism“, Apr. 9; “Mold wars, cont’d“, Mar. 2-4.

2000: “Spread of mold law“, Oct. 10.

Filed under: ,

Archived intellectual property items, pre-July 2003

Archived entries before July 2003 can also be found here.

“Next: Mercedes sues Merced, Calif.” (Volvo v. Volo Car Museum), Jun. 24; “‘Illegal art’“, Feb. 13; “We own e-commerce“, Feb. 4-5. 2002: “Using his own name a legal risk” (Bill Wyman), Dec. 13-15; “Macaulay on copyright law“, Oct. 14; “Skittish at Kinko’s” (won’t make copies of customer’s own published writing), Jul. 26-28; “Stolen silence?” (John Cage composition), Jul. 19-21; “Law blogs“, Jul. 3-9; “‘Top ten new copyright crimes’” (satire), Jun. 3-4; “‘A fence too far’” (Hollings bill), May 20-21; “ReplayTV copyright fight“, May 6; “A DMCA run-in” (linking to copyright violation), Apr. 16-17; “Intel Corp. versus yoga foundation“, Apr. 1-2; “Web speech roundup“, Mar. 25-26; “I’ve got a legally protected bunch of coconuts“, Mar. 13-14; “British Telecom claims to own hyperlinks“, Feb. 13-14 (& Oct. 1-2); “Overlawyered film sets“, Feb. 8-10; “‘”Let’s Roll” Trademark Battle Is On’“, Feb. 4-5 (& Feb. 11-12);  “‘Aborigines claim kangaroo copyright’“, Feb. 1-3.  2001: “Bioterror unpreparedness” (antibiotic Cipro), Nov. 28; “Byways of IP law” (cat-walker patent), Nov. 7-8; “‘Mother of all copyright battles’” (Sesame Street v. Osama bin Laden?), Oct. 15; “Radio daze” (service mark), Aug. 31-Sept. 2; “‘Trolling for dollars’” (patent enforcement), Aug. 29-30; “‘Jailed under a bad law’” (DMCA, Sklyarov case), Aug. 27-28; “‘Girl from Ipanema is sued over the song she inspired’“, Aug. 15; “‘Melbourne man patents the wheel’“, Jul. 24; “Stories that got away” (DMCA), July 23; “Domain- name disputes are busting out all over“, June 29-July 1; “Barney’s bluster“, Jun. 25 (& “Welcome Slashdot readers“, July 5); “Mich. lawyer’s demand: get my case off your website” (“Love Your Neighbor”), Jun. 20 (& letter to the editor, July 6); “Intellectual- property dispute Hall of Fame” (dueling bra balls), June 6; Maori tribes v. Lego“, June 4; “‘Gone with the Wind’ parody case“, May 25-27; “Fortune on Lemelson patents“, May 10 (& see Feb. 11-12, 2002;  Jan. 19-21, 2001 (checkout scanners); Aug. 28-29, 1999); “Value of being able to endure parody without calling in lawyers: priceless” (MasterCard), April 25; “Patenting the Web?“, April 3-4; “Trademark litigation hall of fame” (“Love Your Neighbor” vs. “Love Thy Neighbor”), April 3-4; “Scientologists vs. Slashdot“, March 19-20; “Can you own common words?“, Mar. 7-8; “‘Top jury awards soar in 2000’” (IP leads trend), Feb. 23-25; “By reader acclaim: patented PB&J“, Jan. 30 (& letter to the editor, Feb. 12, discussion in columns, May 1); “Someone might get confused” (Pillsbury claims infringement from tech engineers’ use of “bake-off”), Jan. 22-23; “In the gall department” (Napster sues alleged trademark infringer), Jan. 11. 2000: “Judge shopping, cont’d” (Rambus vs. Hyundai), Nov. 16; “CueCat’s legal claws“, Oct. 20-22; “Web-copyright update: ‘Dialectizer’ back up, ‘MS-Monopoly’ down“, Aug. 16-17; “eBay yanks e-meter auctions” (copyright claim), May 3; “Furor just one click away” (Amazon patent), March 21.  1999: “More assertions of link liability” (DVD hack), Dec. 31; “For this we gave up three months of our lives?” (jury hears abstruse patent dispute), Oct. 20; “Copyright and conscience” (goodbye to “Dysfunctional Family Circus”), Oct. 7. 

Filed under: , , , ,

Archived animal rights items, 1999-June 2003

Archived entries before July 2003 can also be found here.

2003: “‘Suit seeks to keep elephant at L.A. zoo’“, May 16-18 (& update Jun. 2); “Pigs’ right not to be bored” (EU), Feb. 26; “Pet custody as legal practice area“, Feb. 17; “‘Grieve for Fido, but don’t litigate’“, Feb. 12.

2002: “Suit: schoolkids shouldn’t attend rodeo“, Oct. 24; “Officious intermeddlers, pet division” (chimps; lawyers intervene in divorces on behalf of couple’s cats and dogs), May 14-15; “Zoo asserts animals’ ‘medical privacy’“, May 8; “Lawyers for chimps?“, Apr. 29-30; “‘PETA Says It Will Sue New Jersey Over Deer/Car Accident’“, Feb. 25-26; “All things sentimental and recoverable“, Jan. 30-31.

2001: “‘North America’s most dangerous mammal’” (deer), Nov. 29; “Fight over dog’s disposition said to cost taxpayers $200K“, Nov. 21-22; “Harvard Law’s new Bob Barker program in animal rights“, Jul. 5.

2000: “Lab mice paperwork“, Oct. 26; “European roundup” (Swiss animal-rights initiative), Oct. 16-17; “‘Parody of animal rights site told to close’“, Jul. 3-4; “Compare and contrast: puppy’s life and human’s“, Jun. 22-25; “Suits by household pets?“, May 26-29; “From the dog’s point of view“, Feb. 8-9; “Down, attorney! Down!“, Feb. 1; “Weekend reading: columnist-fest” (Laura Pulfer on animal rights), Feb. 5-6.

1999: “Got milk? Get sued” (veggie lawsuit against milk in schools), Dec. 16; “Wide world of federal law enforcement” (“crush video” ban), Oct. 16-17; “Not just our imagination” (class action against “Big Meat”?), Sept. 25-26; “Polly in Margaritaville” (felony defendant charged with getting parrot tipsy), Aug. 2.

Filed under: , , , , , , , ,

Archived auto items, pre-July 2003

Leasing liability: “‘Silver’s wreck’“, Jun. 9, 2003; “Auto-lease liability: deeper into crisis“, May 21; “‘Automakers may stop leasing vehicles in N.Y.’“, Mar. 12-14, 2003; “R.I.: No more cheap car leases?“, Aug. 26, 2002. 

Romo v. Ford Motor Co.: “Update“, Jun. 2, 2003; “‘California Court Upholds $290 Million Injury Jury Award Against Ford’“, Oct. 24, 2002; “You read it here first“, Aug. 27, 2002; “Tainted by ’60 Minutes’“, Sept. 17-19, 1999; “The dream verdict” (California Bronco award), Aug. 24, 1999. 

“Steering the evidence” (DaimlerChrysler gets sanctions against lawyers for evidence and witness tampering), May 23, 2000 (& updates Jun. 26, 2000, Mar. 17, 2003). 

“‘The Lawyers Are Lurking Over S.U.V.’s’“, Jan. 9, 2003.

Tires: “Blaming murder on flat tire“, Jun. 4-5, 2003; “Hey, no fair talking about the pot” (rollover), Apr. 12-14, 2002; “‘Plaintiff’s lawyers going on defense’” (Reaud represents Bridgestone Firestone), Oct. 9, 2001; “‘Lawyers put profit before lives’“, June 28; “Trial lawyers knew of tire failures, didn’t inform safety regulators“, June 25 (& letter to the editor, July 6); “Big numbers” (Continental General Tire, Cooper Tire), April 16, 2001; “Product liability criminalized?“, Oct. 20-22, 2000; “Hasty tire judgments“, Oct. 16-17; “Who caught the tire problem?“, Sept. 15-17; “‘Feeding frenzy over Firestone’“, Sept. 11, 2000.

“Ford didn’t push pedal extenders, suit says“, Feb. 27-28, 2002 (& letter to the editor, Apr. 11). 

“‘Drunken Driver’s Widow Wins Court’s OK To Sue Carmaker’” (VW), Feb. 25-26, 2002. 

“Chrysler dodges a $250 million dart“, Dec. 7-9, 2001; “Miami jury to Ford: pay $15 million after beltless crash“, Sept. 24, 2001. 

“Disclaimer rage?” (GPS software), Oct. 15, 2001. 

“When trial lawyers help redesign cars” (Thornburgh on GM trucks), Aug. 6, 2001. 

Airbags: “‘Airbag chemical on trial’“, Aug. 14, 2000; “Deflated“, May 16, 2000; and see Oct. 20-22, 2000 (Henry Payne cartoon). 

“Drive 60K miles, collect $273K“, Jan. 9, 2001; “Tales from the tow zone” (verdict against Chrysler), Oct. 31, 2000. 

“Highway responsibility” (GM sued in Derrick Thomas speeding-on-ice crash), Nov. 28, 2000. 

“Product liability criminalized?“, Oct. 20-22, 2000. 

“Target Detroit” (mass litigation; S.U.V.’s; class action firm countersues DaimlerChrysler and exec personally), Jul. 19-20, 2000; “Turning the tables” (DaimlerChrysler sues class action lawyers), Nov. 12, 1999. 

“Nader on the Corvair“, July 13, 2000; “Nader, controversial at last“, June 13, 2000; “Deflated“, May 16, 2000. 

“Sudden deceleration” (NHTSA rejects petition for sudden-acceleration probe), Jun. 6, 2000. 

“‘Saints, sinners and the Isuzu Trooper’“, April 14-16, 2000; “Verdict on Consumer Reports: false, but not damaging” (Isuzu v. Consumers Union), Apr. 10, 2000. 

“$65 million Texas verdict: driver at twice the legal blood limit” (drunk driver’s estate sues Honda over seat belt), Mar. 28, 2000. 

“‘Motorists speed more, but fewer die’“, Feb. 19-21, 2000. 

“GM verdict roundup” (Anderson v. General Motors fallout continues), Dec. 16, 1999; “L.A. judge cuts award against GM to $1.2 billion“, Aug. 27, 1999; “In L.A., redesigning the Chevy” ($5 billion Malibu gas tank verdict), Jul. 10, 1999 (& see update Aug. 3, 2003, case settled on undisclosed terms). 

“Toshiba and Ford, in the same boat“, Dec. 2, 1999. 

“‘Wretched excesses of liability lawsuits’” (David Boldt, Philadelphia Inquirer), Nov. 29, 1999. 

“Responsibility, RIP” (columnist Mona Charen), Nov. 2, 1999. 

“Zone of blame” (policeman shot in his cruiser, automaker sued), Oct. 27, 1999. 

“Rhode Island A.G.: let’s do latex gloves next” (speed governors on cars), Oct. 26, 1999. 

“The art of blame” (Ford sued after child left in parked van in sun dies of overheating), Oct. 20, 1999. 

“Demolition derby for consumer budgets” (class action against State Farm over generic crash parts), Oct. 8, 1999.

“Yes, it is personal” (automotive engineers take design-defect suits as personal accusations), Oct. 7, 1999.

“Too many games at GM?” (Atlanta ruling on Ivey memo controversy), September 10, 1999.

“Do as we say (II): gun-suit hypocrisy in Detroit” (gun- and automakers both sued after criminal misuse of their products), Aug. 30, 1999.
——————————————————————————–

[additional essay on auto design liability here]

Filed under: , , , , , , , , ,

Archived probate and estate law items through June 2003

Archived entries on probate/estate law before July 2003 can also be found here.

2003: “Probate’s misplaced trust” (Washington Post series), Jun. 16-17. 2002: “Lawyers swallow lion’s share in estate dispute” (Australia), Feb. 18-19. 2001: “New York guardianship scandals“, Dec. 20 (& Jan. 12, 2000); “‘Lawyers pay price for cruel hoaxes’” (phony heirs), Aug. 3-5 (& Nov. 29, 2000, Apr. 10, 2001); “Estate law temptations“, Jul. 6-8; “Write a very clear will” (Jerry Garcia, James Mason, H.J. Lutcher Stark), May 14. 2000: “$1.5 million estate bill included 900 hours spent on fees“, Sept. 8-10.  1999: “Weekend reading: evergreens” (St. Petersburg Times Pulitzer series), Dec. 3-5; “From the evergreen file: L.A. probate horror” (estate of art collector Fred Weisman), Nov. 20-21; “Weekend reading: evergreens” (Denver probate nightmare), Oct. 23-24; “State of legal ethics” (lawyers advertise to stir up will-contest litigation), Oct. 5-6.

Filed under: , ,

Archived advertising and solicitation posts through June 2003

“New Orleans cleanup continues“, Jun. 10-11, 2003.

“Mississippi investigation heats up“, May 7, 2003; “‘Oxy Morons’“, May 30, 2002; “Trial lawyers vs. OxyContin“, Aug. 7-8, 2001; “Target: Alka-Seltzer” (phenylpropanolamine, PPA), April 6-8, 2001 (& Dec. 18, 2001). 

“‘Streets strewn with glass, gold’“, May 4-5, 2003.

“Thrill of the chase“, Mar. 4, 2003.

“Client-chasing: we interrupt your grief“, Feb. 21-23, 2003.

“Client-chasing: tantrum-enablers“, Feb. 21-23, 2003.

“Politico’s law associate suspended over ‘runner’ use” (Louisiana), Feb. 14-16, 2003.

“Targeting Wall Street“, Jan. 30, 2003.

“Lawyers’ advertising, 25 years later“, Dec. 23, 2002.

Websites, 2003: “Slip, fall, learn who to blame“, Feb. 4-5. 2002: “Trial lawyers vs. Thimerosal“, Dec. 20-22; “Sic ’em on Segway“, Aug. 1; “Jury nails ‘The Hammer’” (MillionDollarLungs.com, CPalsy.com), Jun. 17-18.  2001:  “Trial lawyers vs. OxyContin“, Aug. 7-8; “Letter to the editor” (fallingmerchandise.com), May 18. 2000: “Down, attorney! Down!” (dogbitelaw.com), Feb. 1.  1999: “‘Some lawyers try to make nice’” (Egypt Air 990), Nov. 29; “Click here to sue!” (AOL volunteers), Sept. 7; “Click here to sue!” (“employee misclassification”), Aug. 19. 

“After our own heart” (coach attacked by fans solicited to sue baseball club), Sept. 27-29, 2002. 

“Patriotic, or promotional?” (billboard), Sept. 13-15, 2002.

“Jury nails ‘The Hammer’” (jury finds lawyer’s ads false and misleading in legal-malpractice case), Jun. 17-18, 2002.

“‘Friends don’t let friends plead guilty’” (lawyer’s slogan), May 13, 2002.

“The lawyers who invented spam“, Mar. 29-31, 2002.

“Texas docs plan walkout”, Mar. 15-17, 2002; “A ‘Jenny Jones Show’ question“, Mar. 12, 2002; “For client-chasers, daytime TV gets results“, Dec. 18, 2001. 

“‘Halliburton shares plunge on verdict’” (“million dollar lungs”), Dec. 10, 2001. 

“Profiling perfectly OK after all” (ACLU billboard solicits racial profiling plaintiffs), Nov. 16-18, 2001. 

“U.S. Muslims told: don’t talk to law enforcement” (by lawyer promoting his services), Oct. 29, 2001. 

“‘Company tried to capitalize on Sept. 11’“, Oct. 15, 2001. 

“Meet the ‘wrongful-birth’ bar“, Aug. 22-23, 2001. 

“‘Lawyer says Yellow Book ad makes him look bad, sues for damages’“, July 3-4, 2001; “Let your fingers do the suing” (Michigan’s “AAAA Legal Center“), Feb. 17, 2000; “The Yellow Pages indicator“, Oct. 9-10, 1999. 

“‘Insect lawyer ad creates buzz’” (Canadian law firm’s recruitment ad), May 23, 2001. 

“From dinner party to court” (U.K.), May 22, 2001. 

“Letter to the editor” (law firm “consumer columns”), May 18, 2001. 

“Behind the subway ads” (1-800-DIVORCE, etc.), Dec. 18-19, 2000. 

“Scarier than they bargained for” (“grenades” sent as promotion), Oct. 5, 2000. 

“Press releases, or ‘strike suit’ ads?” (announcements of securities lawsuits), March 6, 2000. 

“‘Ambulance chaser’ label ruled defamatory” (appeals court says lawyer can sue), Jan. 24, 2000. 

“Free expression, with truth in advertising thrown in?” (injury lawyer flies Jolly Roger pirate flag), Dec. 31, 1999-Jan. 2, 2000. 

“Pack your toothbrush, son” (Alabama: charges of paying hospital, police employees for leads on cases), Dec. 20, 1999. 

“‘Some lawyers try to make nice’” (Ohio Bar ads), Nov. 29, 1999. 

“State of legal ethics” (ad stirring up will-contest litigation), Oct. 5-6, 1999.

“Mass. high court opens lawyer-ad floodgates“, Sept. 17-19, 1999. 

“Like calling the Orkin man to talk about bugs” (Johnnie Cochran 18-page promotional bio at A.B.A. convention), August 10, 1999. 

“Honey, you’ve got mail” (Florida divorce-lawyer solicitations arrive before clients know they’re being divorced), July 15, 1999. 

“What a recommendation” (O.J. Simpson to cut TV ads for 1-800 lawyer referral service), July 6, 1999; see also Dec. 8-10, 2000 (Fla. battle over lawyer TV ads).

“This time, bombing the taxpayer” (controversy over American attorney John Burris’ recruitment of embassy-bombing victims), Jul. 5, 1999. (More resources on same episode: Mike Kelly, Bergen Record, Apr. 18, 1999; Newsweek International, Apr. 12, 1999, links now dead.)

The annotated external links formerly present on this page are now here.

Filed under: , , , , , , , , , ,

About auto litigation (1999)

Archived entries before July 2003 can be found here, where the following brief essay originally appeared:

The finest achievement of American trial lawyers, to hear many of them tell it, has been their success in identifying unsafe models of automobile and forcing them off the road. The Ford Pinto case is invariably put forth as an example of how a big company knowingly designed and sold an obviously defective vehicle for which it was properly chastised by means of large jury awards. (Ralph Nader has promised to put a Pinto exhibit in his proposed Museum of American Tort Law.) Almost as well known has been litigation over claims of “sudden acceleration” in Audi 5000s, in which the German-made sedans were said to dart inexplicably out of control even though their owners were pressing the brake pedal with all their might.

To be sure, the Audi case presents an inconvenient complication, namely that the cars weren’t inexplicably accelerating — a series of conclusive government investigations found that the drivers were in fact mistakenly pressing the accelerator thinking they were on the brake. Likewise with the controversy over “sidesaddle” gas tanks on some GM full-size pickup trucks, said to be inexcusably unsafe in side-impact collisions but revealed in real-world crash statistics to be considerably safer than the average vehicle on the road (which did not keep lawyers from winning at least one huge verdict against them).

Trial lawyers offer up the auto safety issue to public audiences and juries as a simple, satisfying morality play of wicked automakers versus helpless victims. It is seldom clear, however, what they would consider to be adequate safety performance. Every mass maker of vehicles for the U.S. market — even Volvo, even Lexus, even BMW — has faced lawsuits in American courts alleging that its designs are impermissibly unsafe. The explanation is not that all models are defectively designed, but that drivers of all models get into accidents — and when crash victims’ injuries are serious and the other driver underinsured, lawyers will often stretch quite a ways to find some theory or other that allows them to pull in the maker of the car as a defendant. Many such theories are available because auto design is a complex subject, because the circumstances in which accidents take place are often factually muddled and open to dispute, and because the design of all vehicles, even the full-size Mercedes, involves trade-offs between safety vs. expense, safety vs. convenience/enjoyment, and safety vs. safety (protecting passengers from front impacts versus protecting them from side impacts, for instance). But some trial lawyers seem to be willing to get up in front of a jury and downplay even well-known, longstanding safety trade-offs in vehicle design — such as the greater rollover hazard that drivers face in convertibles and in off-road vehicles with high ground clearance — in favor of the theory of a sinister conspiracy in executive suites to kill customers.

——————————————————————————–

The Audi case is written up at length in Chapter 4 of Peter Huber’s magisterial Galileo’s Revenge: Junk Science in the Courtroom (Basic Books, 1991), which is not online but is available through the Overlawyered.com bookstore. It is also discussed more briefly in his article “Junk Science in the Courtroom“. A short but vivid account appears in P. J. O’Rourke’s humorous account of the workings of government, Parliament of Whores (Atlantic Monthly Press, 1991, pp. 86-87). The notorious “60 Minutes” show attacking the Audi comes in for a drubbing in our editor’s 1993 National Review expose of dubious crash journalism, “It Didn’t Start With Dateline NBC“, adapted and reprinted in The Rule of Lawyers, and is the subject of a valuable retrospective in the August 1998 Brill’s Content by Greg Farrell (“Lynched: Lurching Into Reverse”), which in turn provoked a fairly hysterical response from CBS executives.

In 1993, “Dateline NBC” was caught in one of the great television scandals of all time: filming a supposed “crash test” of a GM full-size pickup being hit and bursting into flames without telling viewers that the truck had been rigged with hidden incendiary devices and tampered with in various other ways to make a fire more likely. But in fact TV newsmagazines had been running highly dubious “crash test” footage for many years; the main difference was that in this case NBC happened to get caught. In the Dateline case, as in many previous instances of fakery, the network was guided and advised by crash “experts” who happened simultaneously to be working for the plaintiff’s lawyers in suits over the defects being alleged in the TV coverage. Not by coincidence, NBC aired its bogus report not long before an Atlanta jury was to hear a major liability suit against GM, the target of the show; they proceeded to vote an award of $105 million.

Overlawyered.com’s editor weighed into the controversy with pieces on the truck’s safety record (“‘The Most Dangerous Vehicle on the Road’“, Wall Street Journal, February 9, 1993), on the media’s reliance on plaintiff’s experts (“Exposing the ‘Experts’ Behind the Sexy Exposes“, Washington Post, February 28, 1993), and on the earlier history of questionable crash-test journalism at American networks (“It Didn’t Start With Dateline NBC“, National Review, June 21, 1993).

On the Ford Pinto case, the best resource is unfortunately not online, but is well worth a trip to the local law library now online: the late Gary Schwartz’s 1991 Rutgers Law Review article “The Myth of the Ford Pinto Case” (43 Rutgers L. Rev. 1013-1068). Schwartz, a law professor at UCLA and prominent expert on product liability, showed that (as our editor summed up his findings in 1993): “everyone’s received ideas about the fabled ‘smoking gun’ memo are false. The actual memo did not pertain to Pintos, or even Ford products, but to American cars in general; it dealt with rollovers, not rear-end collisions; it did not contemplate the matter of tort liability at all, let alone accept it as cheaper than a design change; it assigned a value to human life because federal regulators, for whose eyes it was meant, themselves employed that concept in their deliberations; and the value it used was one that they, the regulators, had set forth in documents. In retrospect, Schwartz writes, the Pinto’s safety record appears to have been very typical of its time and class.”

In July 1999, rekindling a public debate about the irrationality of jury decisions in product liability cases, two California juries returned enormous verdicts within three days of each other: a Los Angeles jury voted $5 billion against GM for the allegedly defective design of its 1979 Chevrolet Malibu, and a jury in rural Ceres, Cal. returned a $290 million verdict against Ford in a case against its Bronco truck. The cases are discussed on Overlawyered.com in the entries for July 10, August 27 and September 10 (GM) and August 24 (Ford). In the General Motors case, plaintiffs successfully prevented GM from telling the jury that the accident had been caused by a drunk driver who had been convicted of a felony and imprisoned over the accident; or that the Malibu’s real-life crash statistics showed it to be safer than the average car of its era; or that the alternative crash design proffered by plaintiffs raised safety concerns of its own and was not widely used by other makers. In the Ford case, a long series of emotionally manipulative trial tactics by the plaintiff’s lawyers paid off when one juror told her colleagues that the reason they had to vote for liability had come to her in a dream.

In April 2000, after a two-month trial, the tables were turned when a federal jury found that the magazine Consumer Reports, frequently aligned with the trial-lawyer side in legislative fights, had made numerous false statements in its October 1996 cover story alleging a dangerous propensity to roll over in the 1995-96 Isuzu Trooper sport utility vehicle, but declined to award the Japanese carmaker any cash damages. The jury found that CR’s “testing” had put the vehicle through unnatural steering maneuvers which, contrary to the magazine’s claims, were not the same as those to which competitors’ vehicles had been subjected. Jury foreman Don Sylvia said the trial had left many jurors feeling that the magazine had conducted itself arrogantly, and that eight of ten jurors wanted to award Isuzu as much as $25 million, but couldn’t see their way to overcoming the high threshold to proving “malice”. The jury found eight statements in the article false, but in only one of these did it determine CR to be knowingly or recklessly in error, which was when it said: “Isuzu … should never have allowed these vehicles on the road.” However, it ruled that statement not to have damaged the company, despite a sharp drop in Trooper sales from which the vehicle later recovered.

Filed under: , , , , , , , , , ,

About this site

Overlawyered.com explores an American legal system that too often turns litigation into a weapon against guilty and innocent alike, erodes individual responsibility, rewards sharp practice, enriches its participants at the public’s expense, and resists even modest efforts at reform and accountability.

– – – – –

Overlawyered is written by Walter Olson, a senior fellow at the Manhattan Institute and author of several books about the U.S. litigation system, Ted Frank, a resident fellow at the American Enterprise Institute who directs its Liability Project (and formerly a practicing lawyer with the large law firm O’Melveny & Myers), and David Nieporent, a practicing lawyer in New Jersey. The site is not affiliated with any of these organizations and reflects only its authors’ views.

Walter Olson: editor – at – [this domain name]
Ted Frank: tedfrank – at – gmail – dot – com
David Nieporent: conclusions -at – oobleck – dot – com

– – – – –

A (somewhat out-of-date) discussion of the site’s format, which may be useful for visitors interested in searching and linking our archives, is here.

_ _ _ _ _

The following is a version [updated to December 2006] of a statement explaining the site posted in its early days:

This site got its start in July 1999 after I decided that the Web had gone for too long without an attempt to collect, annotate and present in a (somewhat) systematic way the growing quantity of online material documenting the need for reform of the American civil justice system. For some time previously I’d built up a personal website housing a large collection of my own writings on litigation and other issues. At the same time, for my own research needs, I was building an ever-growing library of pointers to links and resources, authors and news sources on the state of the justice system. Why not put that library online to help others interested in the same issues?

The growing traffic on the site since then has made it evident that there is a wide audience in America and around the world for the site’s mix of serious and entertaining commentary on the frequently overreaching consequences of American law. For a sampling of the many nice things said about us, check our accolades page.

Overlawyered.com is not published by, and should not be seen as reflecting the views of, any wider organization (including the Manhattan Institute and American Enterprise Institute, with which I and Ted are respectively affiliated). The site’s modest hosting and operating expenses come out of my own pocket, the outflow occasionally stanched by the generosity of readers who shop at our Amazon bookstore or donate through the Amazon Honor System or, more recently, by ad revenue.

— Walter Olson, editor

Filed under: , , ,