Daniel Gross reports on a doughty band of tax protesters who insist that they are not actually obliged by law to engage in payroll tax withholding, and quotes our editor as describing this position as arising from “folk law”, in the form of legal claims that “bubbled up without any encouragement from the legal profession.” (“America’s Oddest Tax Dodge – Can Section 861 of the Internal Revenue Code save you from income taxes?”, Slate/MSNBC, Jul. 30).
Archive for 2003
Tom Brokaw on gun lawsuits
On Monday NBC News ran a supposed “in-depth report” on the gun-suit preemption bill now pending in Congress (no transcript online), essentially parroting the arguments of the bill’s critics. Blogger Alphecca provides a concise critique (Jul. 28). See Apr. 4-6, Apr. 25-27. J.R. Labbe of the Fort Worth Star-Telegram scoffs at the rather desperate efforts of some gun-litigation backers to spin Judge Weinstein’s dismissal of the NAACP lawsuit as somehow a victory for them (“Gun debate lacks common sense”, Tallahassee Democrat, Jul. 30). The National Association of Manufacturers warned this March that the precedents being sought by anti-gun litigators, “if widely applied, could result in bankruptcies for countless manufacturers of lawful products … ‘Today it?s handguns, but tomorrow it could be power tools, golf clubs or automobiles,’ said NAM Vice President for Litigation Quentin Riegel.” (NAM press release, Mar. 26). See also Dave Kopel, “Ban lawsuits that hurt legal gun industry”, Philadelphia Inquirer, May 19 (“At an American Bar Association symposium in 1999, one of the plaintiffs’ attorneys for the antigun lawsuits explained that the attorneys had read the Dun & Bradstreet reports on the firearms companies, estimated how much the companies could spend defending themselves against litigation, and then filed so many cases in so many jurisdictions that the gun companies would not be able to spend the money to see the cases through to a verdict.”)
Alaskan salmon suit: picking at the bones
On May 23 a 12-person jury unanimously rejected a price-fixing suit brought against ten American and Japanese seafood companies over prices paid to fisherman in Alaska’s Bristol Bay. By that point, however, other defendants had paid $40 million to settle out of the case. But fishermen shouldn’t expect to see much of that $40 million: their lawyers want $16.5 million as their contingency share, while the defendants who prevailed at trial want at least $11 million to pay their lawyers (Alaska, unlike the 49 other American states, follows a modified loser-pays system, though it seems the state legislature passed a special bill to clarify its application in this case). “Jack Keane, a veteran Bristol Bay fisherman who lives in Anchorage, said he’s not surprised the lawyers might take much of the money. ‘The cynics kind of said, “Well, that’s the way it would go anyways,”‘ he said. ‘God, it’s a messy legal thing.’ … The leading commercial fishing trade group, United Fishermen of Alaska, has said it doesn’t support an appeal and hopes the seafood companies recoup their legal expenses to plow back into an industry they say suffered major damage from the lawsuit in the key salmon market of Japan.” (Wesley Loy, “Lawyers on both sides of salmon case want to get paid”, Anchorage Daily News, Jul. 30).(& see updates Dec. 14, Feb. 22).
Another New York gun lawsuit dismissed
Upholding an advisory jury’s verdict in favor of the firearms industry, federal judge Jack Weinstein has dismissed the NAACP’s public nuisance lawsuit against 68 gun manufacturers and distributors, discussed earlier in this space. The National Association for the Advancement of Colored People had asked the court to declare the manufacturers and distributors liable for creating a public nuisance under New York law. Rather than monetary damages, the NAACP sought “sweeping restrictions on buyers and sellers of handguns.” (Tom Hays, “Judge Dismisses NAACP Gun Lawsuit,” Assoc. Press, July 21, 2003). Judge Weinstein said that “while the NAACP’s evidence showed some gun retailers were careless in allowing a large number of handguns to enter the illegal market, the group did not prove its members suffered unique harm.” (“Court dismisses NAACP gun suit,” Reuters, July 21, 2003). His 175-page opinion is available here.
Judge Weinstein’s ruling follows by a month a Manhattan appellate court’s decision affirming the dismissal of state Attorney General Eliot Spitzer’s lawsuit against gun manufacturers, also brought on public nuisance grounds.
Push for veterinary malpractice continues
More on the legal push across the country to reclassify humans as “guardians” rather than mere owners of pets, and the related-but-different push to expose veterinarians to sky’s-the-limit liability for the emotional significance of Fluffy and Snowball, rather than just the token damages that would be agreed to in virtually any imaginable contractual agreement they might reach with their paying human customers. (For earlier items, see Jan. 30-31, 2002, Feb. 12, 2003, and our animal-rights coverage generally (pre-6/03)). (“Malpractice Cases Spike … for Pets”, Christian Science Monitor/ABCNews.com, Jul. 29). Reader Sam Gaines comments: “I am deeply involved in the animal welfare/rescue movement here locally, but I see grave danger in this move — the potential for worse, not better, conditions for abandoned animals based on such initiatives is tremendous. Just as laws requiring fees for unneutered pets generally backfire into even more homeless animals than before, this feel-good meddling will simply drive vet costs further off the scale, and the animals will ultimately suffer.”
Another Aussie drunk driver sues
“Francine Parrington lost her arm when she crashed into a tree while driving with a blood alcohol level of 0.118 but says it wasn’t her fault and is suing the hotel for serving her too many drinks. … She crashed into exactly the same tree a year before and claims her drinking habits were caused by her marital difficulties with a straying husband.” (Angela Kamper, “Drink-driver sues the hotel”, Jul. 30)). They do seem to get a lot of these cases down in Oz, don’t they? See, for example, the cases described in this space May 12. (Update Dec. 21: she loses case)
P.S. In Oslo, Norway, a court has just thrown out a man’s conviction on charges of drunken driving on the grounds that he had been much too drunk at the time to give proper consent for the police to interrogate him; the resulting confession had provided the basis for the conviction (“Drunk driver acquitted for drunkenness”, Aftenposten, Jul. 30)(via James Taranto’s Best of the Web, OpinionJournal, Jul. 30).
GAO: legal costs drive med-mal rates
Congress’s General Accounting Office confirms what the Department of Health and Human Services and Joint Economic Committee (PDF) have found before it: “Increases in medical malpractice insurance rates in some states, including Pennsylvania, were due largely to high payoffs on legal claims, according to a congressional survey released yesterday. …’Losses on medical malpractice claims appear to be the primary driver of increased premium rates in the long term,’ the report states. ‘Such losses are by far the largest component of insurer costs.'” (Lara Jakes Jordan, “Malpractice insurance rise tied to legal claims”, AP/Pittsburgh Post-Gazette, Jul. 29). Study: “Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates”, Jun. (PDF format).
P.S. In August 2003 the GAO released a further look at medical malpractice problems, “Medical Malpractice: Implications of Rising Premiums on Access To Health Care“. Congress’s Joint Economic Committee later (Dec.) published a policy brief offering perspective on the GAO findings.
Jury: healthy smokers get stop-smoking program, no medical monitoring
In the latest example of “regulation through litigation,” a New Orleans jury decided Monday in a class action case that tobacco companies should pay for stop-smoking programs for healthy Louisiana smokers — even though the jury also decided that cigarettes are not a defective product. The jury did, however, “reject[] a claim that the companies should finance medical tests for up to 1.5 million current and former smokers, saying free checkups for smokers who show no signs of disease aren’t necessary.” (“Jurors give split tobacco verdict,” The (N.O.) Times-Picayune, July 29; “Medical Monitoring,” National Public Radio, July 29).
Guest blogger – take three
Hi. I’m Leah Lorber, and I’ll be your guest blogger for the next week. I’m a lawyer working on civil justice policy at a Washington, D.C. law firm, where I’m also co-counsel to the American Tort Reform Association. (Obligatory disclaimer: any opinions I post are my own and may or may not be shared by ATRA, although I’d be really surprised if there are any major discrepancies.) I’m also a former newspaper reporter, and I’m looking forward to seeing if writing legal briefs has forever ruined my ability to write sentences of 25 words or less. That said, I’ll begin. Thanks to Walter Olson for having me here.
Australia: estate lawyers warned on fees
Justice Peter Young, the Chief Judge in Equity of New South Wales, has warned estate lawyers “that if they continue to ravage estates by charging high legal costs, judges will step in and cap costs” and “that their fees may be in doubt if they allow big bills to be run up by ‘claimants [who] are not particularly concerned about how much they get out of the estate as long as they ruin it for everybody else’.” In his warning, published in the latest Law Society Journal, Justice Young cited “a case in April where a son had claimed against his father’s $240,000 estate. The estate paid the son’s legal costs – $40,000 – as well as its own $16,000 bill. The son ended up receiving a $60,000 legacy from the estate.” Also arousing public ire of late have been a case last week in which “a woman was awarded a $60,000 legacy from her father’s $1.5 million estate, with Supreme Court Master John McLaughlin commenting that the costs were ‘excessive’: $74,500 for the woman and $130,000 for the estate”, as well as the case reported in this space Feb. 18-19, 2002, in which lawyers’ fees ate up $112,000 of a $154,000 estate, leaving only around $30,000 for the contending parties. (Leonie Lamont, “‘Sloppy’ lawyers warned their costs may be capped”, Sydney Morning Herald, Jul. 28).