Archive for December, 2003

Update: picking at the salmon bones

Updating our Jul. 30 item from Alaska: “A Superior Court judge has given preliminary approval to a plan to divide $40 million in settlements created by the Bristol Bay salmon price-fixing lawsuit. … Under the plan to divide it, the fishermen would share $9.7 million, receiving an average of $2,145 apiece. The fishermen’s lawyers would get $16.5 million, and the seafood companies and their lawyers would get $13.8 million.” (“Alaska Digest”, Juneau Empire, Dec. 7) Further update Feb. 22: judge approves plan.

Celebration educational malpractice lawsuit

A Florida appeals court has ruled that a family may sue a school district and a Disney subsidiary that developed the community of Celebration for allegedly false representation in marketing materials that the public school in the area was “cutting-edge.” The family decided that the schools weren’t up to their particular standards, and has chosen a private school. (Kelly Cramer, Miami Daily Business Review, “Parents Can Sue Disney [sic] Over School Sales Pitch”, Dec. 12; Simon v. The Celebration Co. opinion) (via Jacobs).

Read On…

Update: disabled-rights rulings

On Dec. 2 the U.S. Supreme Court handed down a unanimous (7-0, two members not voting) decision in the much-watched Americans with Disabilities Act case of Hernandez v. Hughes Missile Systems (see Oct. 14, Oct. 7, Sept. 16-17, 2002. It held that notwithstanding the ADA’s protection of rehabilitated drug users, an employer is not obliged to rehire such drug users when it is following an otherwise neutral rule prohibiting the rehiring of former employees terminated for misconduct, provided it is not invoking such a rule as a mere pretext. The decision was widely reported as a straight-out victory for employers (see, for example, “US court rules for company on drug-use disability”, Reuters/Forbes, Dec. 2) but a closer look suggests a more complicated picture, with the door still open for legal attacks on many seemingly neutral employment rules (“Supreme Court Says No-Rehire Policy Is Not Discriminatory Practice Under ADA”, BNA, Dec. 8; “Supreme Court Dodges Question Whether Rehire Policy Barring Former Drug User Violates Disability Law”, Jackson Lewis, Dec. 3).

On the other coast, disabled-rights litigators suffered a significant setback last month that has been little noted in the national press, when a Bay Area judge rejected an suit attempting to hold the clothing discounter Mervyn’s liable for maintaining merchandise displays too crowded for wheelchair users to navigate. In his decision, Alameda Superior Court Judge Henry Needham “wrote that fixing Mervyn’s California stores to make all aisles conform with a 32-inch clearance for wheelchairs would cost the company $70 million in lost annual sales and $30 million in lost profits, according to the company’s estimates.” This exceeds the scope of “reasonable” accommodation, the judge ruled (Melanie Payne, “Judge backs Mervyn’s in disability suit”, Sacramento Bee, Nov. 5). Disabled-rights litigators had made wide-aisle mandates an important priority in lawsuits and protests: see Aug. 23 and links from there.

UK: prolific race litigant restrained

Following up on an item from Jun. 12-15: “The reign of Britain’s most prolific race discrimination litigant could be over. After 82 employment tribunal cases, more than ?74,000 of public money and ?500,000 spent by companies defending themselves against him, Omorotu Francis Ayovuare has been stopped in his tracks by Lord Goldsmith, the Attorney General. Lawyers for the Attorney General persuaded a High Court judge to issue a ‘restriction of proceedings order’ against Mr Ayovuare, whose litigiousness was revealed by the Telegraph in June. He must now get permission from a judge each time he wants to bring a new tribunal or continue an existing case.” American courts also have similar (though infrequently used) procedures by which judges can restrain inveterate litigants. (Adam Lusher, “Attorney General bans race litigant after 82 cases”, Daily Telegraph, Nov. 23).

One doc’s memoir: litigation crisis as morality crisis

Last year it was reported that Dr. Kirk Kooyer, who had come to Mississippi to serve the poor, was leaving the state after being sued by a patient who later said she didn’t want to file charges against him but was talked into doing so by her lawyers (see Aug. 1, 2002; Dorothy L. Pennachio, “Why Dr. Kooyer Had To Move”, Medical Economics, Dec. 23, 2002). Now Kooyer has published a memoir/essay on the tort mess which really shouldn’t be missed, at this link. Brief excerpts follow:

“I watched as a litigation mentality crept into the Mississippi Delta, fueled by a favorable judicial environment. I have had to personally deal with the harassment of unmerited litigation along with its consequences to my family, my practice and, ultimately, my idealism. …

“[A] jury in Sharkey County, where I lived and practiced for eight years, awarded $10 million to the family of a man who had electrocuted himself by touching a pipe to a power line. As the treating physician in that case, as well as a resident of the county, I was interested in knowing what culpability the jury felt the defendant electric company had in the electrocution. One of the jurors told me, ‘Oh, we didn?t think the electrical company did anything wrong, but this way the children will be taken care of.’ …

“Perhaps no individual has suffered more [from the state’s medical liability crisis] than Dr. John Lucas III from Greenwood, Miss. Dr. Lucas, a fourth-generation Mississippi physician, is a trauma surgeon who was instrumental in setting up Mississippi?s statewide trauma network to speed victims of trauma from rural areas to appropriate medical care. In the past year, Lucas has been forced to witness the dismantling of the trauma network because of declining numbers of trauma surgeons in Mississippi. Additionally, he has had to personally deal with three distracting medical malpractice lawsuits, which he considers frivolous. And this past spring, his oldest son sustained a critical head injury in an automobile accident near Greenville, Miss. Last year, Greenville had well-established neurosurgical services. This year the last neurosurgeon providing emergency services in Greenville left the state. After his accident, vital neurosurgical care was delayed while Dr. Lucas’ son was transported 100 miles to the University Medical Center in Jackson. Dr. Lucas, a well-respected surgeon who worked diligently to improve trauma care in his state, who was personally dragged into Mississippi?s lawsuit frenzy, helplessly watched his precious son linger in a coma for several weeks and die for lack of expedient medical care. …

“I don?t think we should be distracted from what is at the heart of our nation?s tort crisis: a crisis in personal morality. We were taught from an early age not to accuse falsely and not to take something that doesn?t belong to us. When litigation is pursued in cases where there has been no negligence and where there has been no injury, not only is tort law not fulfilled, but an important moral teaching is also forgotten.” (Kurt Kooyer, “New Crisis in the Mississippi Delta”, The Spark (Calvin College), Fall). In its next issue, the Calvin College magazine runs a response from an Emory law prof who finds it just fine and completely understandable that people should file lawsuits demanding large sums as a way of “seek[ing] answers” after sudden and unexplained medical catastrophes — which tends to confirm Kooyer’s last point, so far as we can see. (Paul J. Zwier II, “Another Look at a ‘New Crisis in the Mississippi Delta'”, Winter) (& see Dec. 17).

Abuses “laughing gas”, sues over crash

Florida: “A teenage girl who got into a serious car crash [after she and a] friend inhaled nitrous oxide has sued the video store that allegedly sold cartridges. … Palm Beach County Sheriff’s investigations have not linked the crash to nitrous use.” A manager at the video store said the teen’s “parents are looking for a scapegoat, they don’t want to take responsibility for their own children’s actions.” (“Brain-damaged Boca Raton girl sues alleged nitrous seller”, AP/Sarasota Herald Tribune, Dec. 11).

ATLA and Newsweek

The American Trial Lawyers Association is engaging in a campaign to discredit the recent Newsweek cover story (see Dec. 8) on litigation abuses. Their “fact sheet” is riddled with half-truths, however.

For example, ATLA’s response to Newsweek’s anecdote about the Reverend Singleton is “no cause of action for clergy malpractice (ie: negligent counseling) exists in South Carolina.” The response is disingenuous: first, plaintiffs’ attorneys regularly bring lawsuits to try to create a cause of action for clergy malpractice (see, e.g., this ATLA member law firm that advertises that it has “recover[ed] large verdicts and substantial settlements” in clergy malpractice cases; perhaps your Yellow Pages has a similar ad?); while courts have generally rejected “clergy malpractice”, they frequently let identical causes of action go forward under a “breach of fiduciary trust” theory. (Gerald J. Russello, “New Jersey Supreme Court Recognizes Tort Action Against Clergy”, Federalist Society, Spring 1998). Second, Rev. Singleton spoke of the fear of being sued for inappropriate contact, not clergy malpractice.

ATLA also repeatedly pooh-poohs other pieces of the Newsweek story with variations of the following statement: “Under the Volunteer Protection Act of 1997, volunteers for non-profit organizations or government programs around the country — even those dealing with children – cannot be held responsible for their negligence.” Notice the precise language “cannot be held responsible for their negligence.” What ATLA doesn’t say is that, to get around the Volunteer Protection Act of 1997, all a trial lawyer needs to do is add a single word to the complaint: the Act provides no immunity for allegations of “gross negligence.” While the legal standard is technically different for “gross negligence” than for “negligence”, few defendants are willing to bear the risk of a jury making that distinction, especially given the potentially bankrupting effect of punitive damages. This site has identified numerous lawsuits (e.g., Nov. 16 and Sep. 15) where volunteers or sponsors of non-profit activities continue to be sued.

ATLA also defends itself by noting “The McDonald’s obesity cases were dismissed.” Will ATLA take a public stance against future fast food obesity suits? Not likely: a September 16, 2002 column by ATLA President David S. Casey asked the public to withhold judgment on the McDonald’s lawsuit until we “have all the facts”; the later (but undated) official statement of ATLA President Mary E. Alexander was similarly neutral.