No games that involve chasing each other, kids. And whatever you do, don’t push each other on the swing, whether you’re just trying to be friendly or not. (Sandy Louey, “Recess gets regulated”, Sacramento Bee, Aug. 22). More on forbidden fun: Jul. 6, Apr. 15, 2004; Dec. 30, Dec. 26, Oct. 3, 2003; earlier items.
Archive for August, 2004
Prescod: We get mail
Update: Indian sovereignty advances
“In an extraordinarily broad declaration of Indian land rights, a Northern District judge has held that the Cayuga Nation can buy up property in its former Central New York homeland, declare it ‘Indian country’ and operate a gambling hall immune from local building, zoning and tax laws.” “John Caher, “Indian Tribe Wins Broad Right to Add, Control Land”, New York Law Journal, Apr. 29). In related news, New York State “has broken off negotiations to settle the Cayuga Indian land claim and will let the courts decide the 24-year-old lawsuit, officials on both sides of the dispute said”. (Scott Rapp, “State stops settlement talks with Cayugas”, Syracuse Post-Standard, Aug. 4). For more on Indian land claim litigation in upstate New York and elsewhere, see my City Journal Autumn 2002 piece; Nov. 3-5, 2001 and links from there; Jun. 24-25, 2002; Jun. 4, Apr. 16, Feb. 9, 2004 and links from there. See also Jan Golab, “The Festering Problem of Indian ‘Sovereignty'”, The American Enterprise, Sept.. Update 2005: U.S. Supreme Court, in City of Sherrill v. Oneida, disallows “creeping expansion” of tribal sovereignty through piecemeal land purchases.
Update: smog fee lawyers snag $23.7 million
Latest development in the affair that brought unwelcome scrutiny to former Calif. governor Gray Davis and his ties to the Litigation Lobby (see Dec. 5, 2000 and Jun. 22-24, 2001): “Court-ordered arbitration secretly delivered a $23.7 million payday to attorneys who successfully battled the state over smog fees wrongfully charged to 1.7 million motorists. The award,” down from an original $88.5 million, “represents as much as arbiters could give the team of attorneys led by a high-powered San Diego law firm, under limits imposed by a Court of Appeal ruling in 2002.” State officials had unsuccessfully sought to keep the earlier award under wraps, and attorney General Bill Lockyer was not exactly at pains to publicize this one: “The California Attorney General’s office, after rebuffing repeated inquiries into the status of the arbitration, this week confirmed that a ruling had been issued but refused to release any more information, citing attorney-client privilege.” The Schwarzenegger administration, however, responded promptly to an open-records request. (Michael Gardner, “Lawyers get $23.7 million in smog-fee fight”, San Diego Union-Tribune, Aug. 20).
Birthday spanking remedies limited
“It had been a long-standing tradition at Loram Maintenance of Way Inc. for employees to be wrestled to the ground and spanked on their birthday. But a 2001 spanking with a two-by-four sent Jeremy Meintsma to the emergency room with cuts, abrasions and muscle spasms.” On Jul. 29 the Minnesota Supreme Court ruled that Meintsma’s legal remedies were confined to the combination of workers’ compensation and personal suits directed against his co-workers; his employer had no intent to injure him even if it was aware of the horseplay. (National Law Journal “Court Decisions”, Aug. 9, not online; opinion in PDF form courtesy Cousineau McGuire Anderson).
Tangled Vines
Prominent Alabama trial lawyer Lanny Vines, last seen in these columns (Jan. 7-8, 2003) having apparently used a straw purchaser to buy then-Gov. Don Siegelman’s Montgomery home for twice its appraised value, is now having a bit of trouble with the Internal Revenue Service. Vines “temporarily quit his law practice to become a day trader” but ran into trouble when the tech bubble burst. Vines sued his former accountant, J. Wray Pearce, the straw buyer in the Siegelman case, over allegedly bad tax advice on the stock trading, and reached a confidential settlement. An attorney for Vines says the $13.1 million IRS matter is “highly technical” in nature and in no way a reflection on his client: “If you don’t like Lanny Vines, you don’t like ice cream.” (Jerry Moskal, “Vines files petition to overturn tax bill”, Birmingham News, Aug. 18). Update: May 27, 2006.
After Hurricane Charley
Watch for litigation filed by insurers against builders, trying to recoup losses in subrogation by arguing that structures were defectively built. Another likely target of litigation, possibly including personal injury claims, will be mobile home manufacturers: who knew their product wouldn’t stand up to 145 mph winds? (Steve Ellman, “Builders, Insurers Brace for Hurricane Charley’s Legal Impact”, Miami Daily Business Review, Aug. 17). More: Brian Noggle is organizing a betting pool on who gets sued.
Lost luggage lawsuit
What do you think of when you hear someone has been killed in an airplane accident? Earlier this year, in Olympic Airways v. Husain, the Supreme Court (in a Justice Thomas opinion over a Justice Scalia dissent) expanded the definition of “accident” in the Warsaw Convention (which allows damages recovery for international air travelers) to include an “event” where a flight attendant refused to reseat someone having an allergic reaction to cigarette smoke (though permitting the person to move himself). Olympic Airways is perhaps best understood as the epitome of the cliche “hard cases make bad law.” It is already bearing fruit for plaintiffs with even more remote claims.
On December 14, 1997, 75-year-old Caroline Neischer, a trained nurse and former smoker with chronic respiratory problems (including, claims the defense and some medical reports, emphysema), flew from Los Angeles to Guyana. At her connecting flight, she permitted an airline employee to check her carry-on suitcase, which contained a nebulizer and medication. When the flight arrived on December 15, the suitcase (along with four other checked bags) didn’t; they didn’t arrive until 6 a.m. on December 17. Though medicine and a substitute nebulizer was available in Guyana (apparently for $2), Neischer and her family waited for the luggage to arrive, and didn’t take Neischer to a doctor. On December 18, Neischer went to the hospital with breathing problems, and died on December 23, with the plaintiffs claiming she made a deathbed declaration blaming her death on the airline. Though the Guyana hospital lost some of the medical records, the plaintiffs won the battle of the experts, even though their theory had to account for the fact that it was inconsistent with the cause of death listed on Neischer’s death certificate. (Interestingly, though this was a federal case involving an international treaty, the Ninth Circuit referred to state law standards of “competent medical testimony” in dismissing the defense’s challenge to the expert.)
This, according to the plaintiffs, district court, and Ninth Circuit, qualifies as “wilful misconduct” by the airline. Under the Warsaw Convention, the airline cannot defend itself by pointing to the substandard care provided by the Guyanese hospital. The district court simply awarded damages; the Ninth Circuit asked the lower court to consider what degree Neischer was responsible for her own death for not spending $2 on another nebulizer. (“Court Finds Airline at Fault in Woman’s Death”, Reuters, Aug. 19; Prescod v. AMR, Inc.).
Welcome KION-AM Salinas listeners
I was a guest on Mark Carbonaro’s a.m. show this morning on KION-AM in Salinas, Calif. to discuss The Rule of Lawyers. To book a broadcast interview on the book, email me directly or contact Jamie Stockton at the St. Martin’s/Griffin publicity department: 212-674-5151, ext. 502.
Some other recently noted publicity on The Rule of Lawyers: reviewer Art Taylor of Metro Magazine in North Carolina’s Research Triangle named it as one of the top ten nonfiction books of 2003 (Jan.). Writing in Salt Lake City’s Deseret News, Hal Heaton of the Brigham Young University Center for Entrepreneurship devoted much of a column to discussing the book’s contents (“Litigation hinders new ideas, growth”, Jul. 11, not online). And Maurice Neligan, a distinguished cardiac surgeon in Ireland, recommends the book as “most revealing” in a piece published in Irish Times (“Common sense, fat chance”, May 11, not online).
“Deadbeat” dads: how many in jail?
The Department of Justice “states that 2,078,570 people were incarcerated ‘in Federal or State prisons or in local jails’ as of June 30, 2003.” How many of them were fathers behind on their child support payments? It seems impossible to get a firm answer to that question, or even a decent estimate. Some such fathers are genuinely able to pay but are expressing contumely toward the court; others, however, appear to have landed in a latter-day equivalent of debtor’s prison. “Their employment prospects sink with each imprisonment, even as their child support debt rises.” (Wendy McElroy, “In Defense of ‘Deadbeat’ Dads”, FoxNews, Aug. 4).
And, of course, parents wind up in jail for nonfinancial offenses too. A “Virginia mother was sentenced [Aug. 12] to 10 days in jail for defying a court order not to smoke in front of her children.” After spending four hours behind bars Tamara Silvius was released on bond for purposes of appealing the order. (Sue Anne Pressley, “Mother Who Smoked Near Family Gets Jail”, Washington Post, Aug. 13).