“A 68-year-old grandmother in Aylmer, Que., is furious with Sears Canada after the company refused to ship her an inflatable talking toy meant as a Christmas present for her grandson because the doll does not speak French.” Shirley Hammond’s six-year-old grandson had been pleading for the Super Sound Socker Bopper Bop Buddy, which rocks back and forth and says, “Come on, I dare you!” and “Is that all you’ve got?” when hit. However, a salesperson for the retailer, which features the doll in its Christmas catalogue, declined her request. (Stefanie Arduini, “Unilingual doll can’t be bought in Quebec”, CanWest/National Post, Dec. 11; “Punch drunk pettiness” (editorial), Ottawa Citzen/Vancouver Province, Dec. 12). Four years ago (see Dec. 16, 1999), Quebec’s provincial language minister threatened legal action against the makers of Pokemon children’s collectible cards for allowing them to be sold in the province without French-language packaging and instructions.
Archive for December, 2003
New batch of reader letters
We’ve posted another batch of letters from readers. Among topics: a Pennsylvania case in which a doctor was ordered to pay for a mistake by nurses in the operating room; an outcry by consumers over the results of a class action (Schwartz v. Citibank) over late fees which is resulting in a $9 million payout in lawyers’ fees and refunds in the range of 18 cents for many credit card holders; a report from a reader that Norton Internet Security is blocking access to our site because we have too much talk about “weapons”, presumably meaning too much discussion of firearms litigation; and a letter on the prospect of lawyers’ going after the personal assets of Connecticut doctors in negligence cases after exhausting their insurance coverage.
Welcome FoxNews.com readers
We’re quoted and this website is mentioned in a Fox News feature about “lawyers of the moment” who find themselves in demand for multiple celebrity cases, such as Mark Geragos, who has represented Michael Jackson, Scott Peterson and Winona Ryder. (Amy C. Sims, “Trendy Lawyers Share Stage With Celeb Clients”, Dec. 16).
Yet another R (Trial Lawyers)?
Housing Secretary Mel Martinez recently quit to run for a Florida Senate seat, but if elected he might not compile the kind of legislative record expected of Florida Republicans. “Martinez was president of the Academy of Florida Trial Lawyers in the late 1980s and was registered to lobby for the group in Tallahassee. It was a time when that powerful interest group had just defeated the medical lobby in a costly and high-profile initiative campaign aimed at capping fees in personal injury cases, known as Amendment 10. … In addition, Martinez has personally donated money to a variety of Democratic candidates over the years, including Delaware Sen. Joe Biden and former Florida insurance commissioner Bill Gunter.” Resistance to Martinez in the GOP primary is likely to be spirited, especially since one of his leading rivals, former U.S. Rep. Bill McCollum, is already raising the trial lawyer connection as an issue. (Bill Adair and Steve Bousquet, “Martinez quits Cabinet, is poised for Senate run”, St. Petersburg Times, Dec. 10; Steve Bousquet, “Storm brews over GOP Senate primary”, Dec. 15). Update Sept. 3: Martinez wins primary.
NYC lead paint bill
A bill now poised for passage in New York’s city council would make it easier to file lawsuits against landlords claiming tort damages for lead exposure in children. The Bloomberg administration has declined to endorse the bill, saying it could generate “huge” liability costs. However, the bill (which has been avidly sought by the litigation lobby) is likely to be passed by the Council today anyway and has more sponsors than are necessary to override a mayoral veto (“Mike brushes off paint bill”, New York Daily News, Dec. 6; Winnie Hu, “City Council Moves Forward With Lead-Paint Legislation”, New York Times, Dec. 13). “The Council’s liability standards will make it very hard for even the most responsible owners to defend themselves,” says Michael Lappin, president of the Community Preservation Corp., which finances housing rehabilitation in older neighborhoods, “and high liability will choke off insurance.” (Julia Vitullo-Martin (Manhattan Institute), “Council is lead-painting city into a corner”, Dec. 10; “Doing the Giffie Shuffle” (critical editorial), New York Post, Nov. 21; “A Lead-Paint Law We Can Live With” (supportive editorial), New York Times, Nov. 29 (fee-based archive)).
Of city children diagnosed with high levels of lead in their blood, a substantial share have ingested the element through other routes (in fact, a substantial share do not live in apartments with lead paint at all). The bill, however, contains a “presumption” clause aimed at making it hard for property owners to dispute hazard findings. Among other clues to the bill’s redistributive objectives: it “makes owners liable even if they are unaware that a child is living in an apartment. Why not require (as did the prior law) parents to inform property owners that they have young children living with them?” (Joseph Strasburg (Rent Stabilization Association, property owners), “Lead Paint Legal Scam”, New York Post, Nov. 24). See Oct. 13; Apr. 24 and Nov. 30, 2000. Update: Council passes bill by 44-5 margin (N.Y. Times, Dec. 16). Further update Feb. 13: Mayor’s veto overridden; Jun. 2: housing market thrown into turmoil.
Forum shopping
Two Germans had a contract dispute with their former employer, German media giant Bertelsmann AG, regarding a European joint venture. The contract, written in German, required the application of German law, and (according to the defense) the major dispute was over the meaning of a German term in the contract. So where to sue? California, of course! The jury came through with a verdict of over a quarter-billion dollars, and their verdict form was apparently sufficiently muddled that the plaintiffs are going to argue that they were meant to receive over a billion dollars. The defense argues that part of the problem is a mistranslation of “participation” into “equity.” (Greg Risling, “Calif. Jury Rules Against Bertelsmann”, AP, Dec. 12; Gina Keating, “Jury Faults Bertelsmann in AOL Europe Suit”, Reuters, Dec. 11).
Update, Jan. 6, 2004: The plaintiffs’ attorney confirms that the main dispute was over interpretation of a clause in the German-language contract, but argues that it would have been “prohibitively costly” for the plaintiffs to bring the case in Germany–which, based on my experience in a number of cases where critical documents are not in English, and require expensive translation, strikes me as extraordinarily unlikely that the case would have been more expensive in Germany, much less prohibitively so if plaintiffs had a sincere belief that their case was worth in the billions. But the reporter does not challenge the assertion. (Nora Lockwood Tooher, “Two German Entrepreneurs Win $255 Million”, Lawyers Weekly USA, 2004).
$82M verdict reversed
The Alabama Supreme Court reversed an $82 million verdict against General Motors–not because it was ludicrous to hold GM responsible (much less responsible for $60 million in punitive damages) because a passenger was injured while riding in an Oldsmobile that hit another automobile head on at 50 miles per hour and a combined speed of almost 100 mph, but because the trial judge had refused to strike five jurors who were related to an attorney at the law firm for the plaintiff. The case will be retried. (Philip Rawls, AP, Dec. 12; “Brain injury in crash costs General Motors”, OnWheels, May 20, 2002) (via Bashman).
Newsweek: ATLA’s Turn
Newsweek policy states that the “My Turn” reader-submitted essays should not be “framed as a response to a Newsweek story”, but the December 22 issue features precisely such a piece from Linda McDougal. The article includes almost verbatim the half-facts from ATLA’s press packet that we refuted earlier (see Dec. 12).
A final irony: McDougal concludes her essay with “I also know that if all those who want to restrict the legal rights of ordinary citizens have their way, I wouldn’t have waited seven months for an apology from the doctors, which I got only after my story became public. I would have waited forever.” I’ll leave aside the fact that many ordinary citizens are victims of societally harmful tort lawsuits (see, e.g., Feb. 7, 2000). Has McDougal considered that perhaps the reason that the doctors waited to apologize for a mistaken mastectomy until after she went public was because they were afraid that the apology would be used against them in a lawsuit? (Linda McDougal, “My Turn: I Trust Juries?and Americans Like You”, Newsweek, Dec. 22).
The “Civil Wars” author, Stuart Taylor, was confronted with a series of questions pulled from the same ATLA press release McDougal used, and responded to them in an on-line chat. (Stuart S. Taylor, MSNBC on-line chat, Dec. 11).
Sidenote: we covered a lawsuit of a Pennsylvania parents who sued their school board because their 13-year-old daughter was suspended for a consensual sex act on a school bus (see Sep. 19). Newsweek, in its story, mentioned a superficially similar Kentucky case that involved an alleged sexual assault of a 14-year-old on a school bus, resulting in criticism from McDougal and ATLA, but also going to show that Newsweek only scratched the surface of the problem by dint of its space-limited selections for the story.
Pet store sued
As anyone who goes to a pet store knows, customers frequently bring their pets with them. Unfortunately for Uncle Bill’s Pet Center in Indianapolis, ten-year-old Travis Post had been petting rabbits, and thus “smelled like food” when pet store regular Christopher Simms allowed Travis to hold Simms’s ten-foot python while Simms talked to Travis’s mother. The family has sued Uncle Bill’s (as well as Simms), claiming they should have done more to protect Travis from the resulting attack. “‘Uncle Bill’s had a duty to keep their premises in a way that is safe for invitees,’ [family attorney E. Ralph] Hoover said. ‘Obviously, it’s not safe when you allow people to bring wild animals in and allow them to be around children.'” (Vic Ryckaert, “Uncle Bill’s faces suit after python bit a boy”, Indianapolis Star, Dec. 10) (via Obscure Store).
Hoover is essentially asking a jury to find that pet stores have a legal duty to either (a) bar children or (b) use employee time to screen customers, anticipating in advance which combination of customer and pet will be dangerous to other customers when their mothers leave them unattended. The likely real-world result, if damages are assessed, will be that insurers will require pet stores to bar outside animals. (Dog bites are, after all, much more common than snake bites.)
Now, perhaps we as a society want to create rules that bar animals from pet stores so that people like Christopher Simms and Travis Post’s mother only let small children handle gigantic snakes outside the confines of Uncle Bill’s Pet Center. But isn’t that a decision better made by a legislature considering the totality of the situation rather than a jury considering an individual case?
AEI: Lawsuits without Injuries?
Wednesday, December 17, the American Enterprise Institute Liability Project is holding a panel moderated by Chicago Law Professor Richard Epstein on a new trend in the expansion of tort liability.
While plaintiffs have traditionally been required to demonstrate some form of harm or damage to file a lawsuit, recently proposed definitions of harm appear to be broadening substantially the scope of tort litigation. At the forefront of this legal innovation is the “benefit-of-the-bargain” theory of damages: if a product is shown to have harmed some consumers, unharmed consumers have a claim against the manufacturer on the basis that they would have not paid as much for the product had these risks been known beforehand. Panelists at this event will address the merits and disadvantages of “benefit-of-the-bargain” lawsuits.