“A federal judge ruled Friday that the manufacturer of an ankle monitor should pay $191,400 to the family of an Arlington woman killed in 1997 by an ex-boyfriend who cut off the transmitter 400 feet from her home without triggering an alarm. U.S. District Judge Terry Means held the manufacturer, Boulder, Colo.,-based B.I. Inc., 20 percent liable in Karen Sawyers’ death, but assigned 70 percent of the responsibility to gunman Joseph Whitlow, who committed suicide after killing Sawyers.” The judge, presiding over a bench trial, assigned 10 percent liability to the murder victim herself for her killing because she was drunk and had methampetamine in her system at the time of her death. A plaintiff’s attorney expressed disappointment that the manufacturer had not been held liable for a greater share of the blame. (“Ankle monitor’s maker held 20% responsible in killing” Fort Worth Star-Telegram, Sept. 26).
Archive for 2003
Ordeal continues for 12 held captive in Oakland
“A criminal trial of three dismissed Oakland police officers accused of falsely arresting and beating suspects has become a marathon unusual even by the often plodding standards of American criminal justice. The trial began more than a year ago, and on Thursday the jury deliberated for a 55th day without reaching a verdict.” According to criminal justice historian Charles Weisselberg at the University of California’s Boalt Hall School of Law in Berkeley, the case’s extreme prolongation is not typical: “Weisselberg said, for example, that of 12,817 trials held in federal courts in the year ended September 2002, only 97 lasted more than 20 days and just one exceeded the 165 trial days this case has logged so far.” (Barbara Grady, “A Year Later, Judge Won’t Let Jury Go Home”, Reuters/Lycos, Sept. 29)
Update: s. 17200
It looks like there may be competing voter initiatives relating to California’s Unfair Competition Law (see Aug. 27, Jul. 22). While bipartisan legislative attempts to reform the notoriously overbroad Section 17200 have failed, the Civil Justice Association of California is looking into a possible voter initiative for reform. In response, a trial lawyers’ organization is threatening a voter initiative to expand ? 17200 liability to individual executives. The lengthy San Francisco Chronicle story includes extensive discussion of the Trevor Law Group scandal, where a law firm used ? 17200 to shake down thousands of businesses for $20 million with frivolous lawsuits (see Aug. 4, Jul. 28). (Bernadette Tansey, “Battle brews over consumer protection in state”, Sep. 28). Update Oct. 26: initiative campaign launched.
St. Paul police sued
On September 27, 2002, Ki Yang ignored orders to drop a BB gun that resembled a rifle and a sickle-like blade 20 inches long. “Instead, he charged at [officer Michael] Tharalson, who fired six shots as Yang kept advancing.” Now, Yang’s family is suing the city and the police in federal court, arguing that Yang should have been treated differently because the officers knew he was mentally ill. (Her?n M?rquez Estrada, “St. Paul police, city sued in case of mentally ill man shot dead by cops”, Minneapolis Star-Tribune, Sep. 26).
Class Action Fairness Act: more editorials
Last month the Hartford Courant editorially endorsed the Class Action Fairness Act: “No one in Congress is proposing doing away with class-action lawsuits. Rather, this overdue legislation would curtail some of the worst abuses. Legislators have debated the issue long enough. There’s no good reason to wait another year to adopt this important reform.” (“Stop Class Action Abuses”, Aug. 22, no longer online). This weekend the New York Daily News takes a sharper tone: “Who could be against this rational reform? The trial lawyers’ lobby, that’s who. The sharks are not about to surrender their feeding grounds. Sens. Chuck Schumer and Hillary Clinton could have a huge impact on the matter, but so far both appear happy in the role of remora.” (“End lawyers’ shopping spree” (editorial), New York Daily News, Sept. 28).
Notwithstanding Schumer’s and Clinton’s stance, Business Week notes that the bill has won significant support among moderate-to-liberal Democrats (Lorraine Woellert, “Tort Reform Even a Democrat Could Love”, Jun. 2). A study from the Illinois Civil Justice League finds that, contrary to widely repeated reports, it is untrue that the state courts will lose jurisdiction over the great majority of the class actions they now hear. Meanwhile, Sen. John Breaux (D-La.) has been promoting a watered-down alternative to the legislation, but last week Sen. Chuck Grassley (R-Ia.) blasted the Breaux alternative as a “poison pill” which would doom class action reform efforts (Mark A. Hofmann, “Grassley blasts competing class-action reform plan”, Business Insurance, Sept. 23). (Earlier editorial (Washington Post, Christian Science Monitor, etc.): see our Jun. 25 report.)
Welcome InstaPundit readers
Leftist filmmaker Michael Moore is again drawing fire for not being willing to submit himself to the sorts of borderline-harassment journalistic investigation to which he has long subjected others. Thanks to reader Robert Racansky, our Sept. 16, 1999 coverage of Moore’s hypocrisy has now become the subject of a Glenn Reynolds Instalanche (Sept. 27). Also, welcome readers from Law.com which linked to our recent Wilbur Wright item.
Passenger hurt in drunk driving accident collects from automaker
As if to respond to our post on joint and several liability on Friday, a Nebraska jury found for a woman paralyzed in an accident when the driver drove off the road and rolled over their Chevy Blazer. Both GM and the driver (who was later charged with DUI) are held liable, but only one is actually going to pay the bulk of the award, if it is upheld. GM will effectively be paying insurance for the consequences of drunk driving–and of getting into a car with a drunk driver.
Plaintiff claimed that a $20 roof-strengthening would have prevented her injuries. GM denied this causation theory. (Butch Mabin, “Jury awards woman $19.5 million”, Lincoln Journal Star, Sep. 27) (via Bashman). But even if one accepts the plaintiff’s argument that the lack of an additional $20 is a sine qua non of her injuries, her lawsuit presents troubling public policy implications. GM isn’t faced with a single yes/no $20 safety decision when it designs a car–it faces hundreds, if not thousands, of them. And not all of them are binary. Twenty dollars of roof strengthening may have prevented these injuries, but once GM takes that step, there will still be other accidents where yet another twenty, or forty, or eighty dollars of metal in the roof would have prevented injuries. If too many $20 additions are made, some people will not buy the hypothetical Blazer and will instead buy a cheaper (and/or older) and less safe car. Adding $20 of roof-strengthening may decrease the likelihood that a particular accident will result in serious injury, but, by elevating the center of gravity, may increase the likelihood that the SUV is in a rollover accident in the first place and, by increasing the weight, increases the risk of an accident due to inadequate braking power. The SUV, as it is, may perform relatively poorly in rollovers as plaintiffs argue, but it performs much better (some would argue too well) in collisions with other vehicles. And we have not even begun to mention the societal cost that comes from reducing the gas mileage of the SUV by increasing its weight. (The one thing I have in common with Arianna Huffington is that I drive a Prius.)
A jury of laypeople seems to be poorly situated to make these holistic design decisions — especially when the rules of a product liability case often mean that a jury is considering a particular design question in isolation. Which is why plaintiffs’ attorneys are happy to characterize the scales as one of a quadriplegic against a heartless giant corporation that supposedly valued its $20 more than a mother’s ability to walk. It would take an exceptionally wise jury to accurately balance the visible and tangible costs of an after-the-fact gravely injured member of their community against the before-the-fact intangible benefits to society of the engineering design decision of different accidents prevented and of affordable new cars. The elites of the national media and our political and regulatory leaders have trouble articulating the subtleties of these issues. Why do we ask a jury of laypeople to grapple with them, often deliberately deprived by legal rules of a full complement of the tools they need to make a correct decision, when a decision on behalf of an automaker would require them to take the painful psychological step of looking in the eye a quadriplegic who has had her life irreversibly altered, and telling her she will recover nothing?
Disclaimer: I represented GM from 1995 to 1997.
“Fireworks incident leads to lawsuit”
The mother of two Mississippi boys injured in a fireworks accident has sued the company that manufactured the shell. Straightforward enough: if a company holds a fireworks display, one normally expects it not to leave behind undetonated fireworks. The newspaper account, however, hides some critical details in the back of the story:
A report filed by Pascagoula police Sgt. George Tillman stated that he was told that LaBarron’s father, Gregory Powe, told them, “See if it will light.” [Nine-year-old] Kaine Price lit the powder with a lighter.
Tillman’s report said he also spoke to Powe about the incident. “(Powe) advised that he had seen that the boys had poured the stuff on the sea wall. He advised that he said, I wonder if that stuff will light,” according to the report.
Powe told Tillman that he didn’t realize his statement might prompt the boys to light the explosive material.
(Brad Crocker, Pascagoula Mississippi Press, Sep. 26). It’s one thing to hold a fireworks company responsible because unsupervised children injured themselves with their explosives–though one would expect children of a certain age to be well aware that they shouldn’t be playing with lighters. But shouldn’t some societal culpability rest with a parent present who not only failed to intervene to stop children playing with explosives and a lighter, but egged on reckless behavior?
Mississippi recently adopted reforms that limit the damages of a defendant that is less than 30% responsible to 50% of economic damages and the defendant’s share of non-economic damages. But many other states allow a defendant who was only partially responsible to be required to bear the full share of damages if the other tortfeasors are judgment-proof under the principle of “joint and several liability.”
“Video games back in US dock”
“Claims by teenage boys in Tennessee that they were acting out the Grand Theft Auto game when they shot at vehicles are threatening to put the US entertainment industry back on trial.” (Rachel Clarke, BBC, Sept. 15; “Game blamed for murder, $100 million lawsuit likely”, Out-Law.com (UK), Sept. 26). Jeff Taylor at Reason Online has the full story (“You Do Know Jack”, Sept. 10) on Miami attorney Jack Thompson, impresario of this and other litigation against videogame makers (see Apr. 3-4, 2002). Thompson is the author of a fondly remembered letter to this site (“go to Afghanistan where your anarchist, pro-drug views will be greatly rewarded” — Apr. 11, 2002) and his website stopkill.com must be seen to be believed.
More: Will Baude points to a relevant opinion by Judge Richard Posner in American Amusement Machine Association v. Teri Kendrick, and Curmudgeonly Clerk also comments.
The Madison County scent
That was quite an editorial from the St. Louis Post-Dispatch: “The scent of fish in Madison County finally reached the noses of the Illinois Supreme Court judges. It’s about time. The court should crack down on venue rules that make Madison County a Mecca for plaintiff’s lawyers and a ‘judicial hellhole’ for corporations.” (“Plug the hellhole”, Sept. 19). See Kevin McDermott, “Penchant for attracting class-action suits is damaging business climate, petition says”, St. Louis Post-Dispatch, Sept. 9 (industry and legal experts petition for venue rules restricting plaintiffs from strategic selection of Madison County). A ruling last month has lawyers on both sides hopeful/fearful that venue reform may be coming in Illinois: “In a case involving a 1997 collision in Macoupin County between a truck of Union Pacific Railroad and a tractor of a private individual, the justices overturned lower court rulings that the case be heard in Madison County. The Supreme Court said a judge must consider more than just where a plaintiff would like the case heard. Judges must also weigh other factors, such as where the event that led to the suit occurred and where the parties live or work.” (Trisha L. Howard, “High court orders case moved from Madison County”, St. Louis Post-Dispatch, Aug. 21) (see recent John Stossel coverage, and our earlier coverage).