Prof. Jonathan Adler of Case Western attends a speech given at Case by celebrity environmentalist Robert F. Kennedy, Jr., and blogs the hothead scion’s frothy rant (Sept. 30). (Kennedy on the media, per Adler: “They should all drink poison Kool Aid and restore integrity to their profession.”) Kennedy was widely ridiculed two years ago for repeatedly asserting that large hog-raising operations are a greater threat to American democracy than Osama bin Laden (see Apr. 19-21, 2002) and if Adler’s account is accurate, the embarrassment has by no means abated.
Archive for October, 2004
Malpractice discussion wrap-up
Over at Point of Law, the featured discussion has now wrapped up between Dr. Ron Chusid of Doctors for Kerry and our own Ted Frank on the presidential race and medical malpractice reform. If you haven’t looked at the exchange yet, you’ll find that it conveys a wealth of information about the state of the medical liability debate. Not surprisingly, I found Ted persuasive in arguing that Bush has the sounder position on this issue (which still doesn’t mean I’m going to vote for him).
UK government not liable for soldier’s bar fight
Seven years ago Robert Moore got into a barroom brawl with British servicemen at a drinking establishment in Tacoma, Wash. He was injured and wanted to sue…. who? Why, the government of Great Britain, that’s who. He wasn’t going to win that one, not even in the Ninth Circuit, a panel of which pointed out that we have a NATO treaty intended to forestall litigation in exactly such situations. However, Moore’s attorney, J. Bryon Holcomb of Bainbridge Island, Wash., took umbrage. “The Ninth Circuit just ignored the facts,” Holcomb said. “If people in this country knew how little chance they had in our federal court system, there would be a revolution tomorrow. They would have the guillotines out storming the courthouse looking for candidates.” What is Mr. Holcomb trying to do talking that way, set himself up as the Geoffrey Fieger of the Pacific Northwest? (Justin M. Norton, “Man Involved in Bar Fight TKO’d by 9th Circuit”, The Recorder, Sept. 24). Martin Grace also comments (Oct. 2).
Touchy Colorado bar
Last month the Colorado Bar Association sent a letter to both major political parties in the state instructing them to have their candidates “focus on the issues, avoid name-calling, and not resort to stereotyping any groups of people as the scapegoats for society?s complex problems. This includes generalized attacks aimed at judges or lawyers.” According to a Denver Post editorial (“How many lawyers does it take…”, Sept. 20):
“It totally cracked us up,” said Chris Gates, chairman of the Colorado Democratic Party. “I’ve received a lot of letters advocating for this issue or that, but this was the first letter that said ‘could you please refrain from saying mean things.”‘
Ted Halaby, a prominent lawyer and chairman of the state Republican Party, said the letter “showed a certain ultra-sensitivity.”
Rapist can interfere with adoption
After being raped, an unmarried woman finds she is pregnant. She wishes to give the child up for adoption, but under current law she must first prevail on the birth father to give up his parental rights — and as a condition of doing so, he demands that she not testify against him. Does this sort of thing really happen? A lawmaker and a reporter in North Carolina investigate and find that, yes, it does seem to (Ruth Sheehan, “Rapists lose facet of power”, Raleigh News & Observer, Sept. 6). P.S.: I, Gadfly raises an important point, namely, how should the law deal with the fact that not all rape accusations are accurate and some are even made tactically? The Raleigh newspaper’s account indicates that the North Carolina legislation cuts off the parental rights of rapists only on conviction, which minimizes the damage done by false accusations, but also suggests that the law may be without effect in the type of case that caused outrage in the first place, in which avoiding conviction is the whole point of the abuse.
Franklin Mint v. Diana
In 1998, the Diana Princess of Wales Memorial Fund charity tried to assert California “right of publicity” law against the Franklin Mint to force them to stop selling tchotchkes and gewgaws with Diana’s image, and spent over one million pounds on attorneys to fight the case. California courts were not impressed, noting that Diana was a resident of a country that did not have such laws, but the litigation continued for years before appeals were resolved.
The Franklin Mint then turned around and sued the charity for malicious prosecution of the first lawsuit; the Diana Fund defends itself by arguing that, while its lawsuit was meritless in hindsight, it was not frivolous under the law. The legal distinction, aside from showing the general difficulties in the U.S. system that a defendant winner has in recovering its expenses from a meritless lawsuit, has resulted in another couple of years of litigation, and trial is now scheduled for November.
But here’s the kicker: Franklin Mint Co., perhaps because of the bad pr involved in attempting to recover from a charity that has loudly complained about the effect of the litigation on its work, has supposedly “said it will give any damages it receives from the case to charities supported by the fund.” So if the Diana Fund wins the lawsuit, its charities get to keep getting money; if Franklin Mint wins, it will give the money to the Diana Fund’s charities. So, if the report about the Franklin Mint’s claims is true, who benefits from this lawsuit other than the lawyers? (Reuters, “Franklin Mint Wins Right to Sue Lady Di Memorial Fund”, Oct. 2; CBS/AP, “Diana Fund Feud Foils Grant-Giving”, Jul. 11, 2003; Franklin Mint press release, Jun. 20, 2002; BBC, “Diana fund loses doll battle”, Jan. 6, 2000).
Update: “economy-class syndrome” suits
Suits over deep-vein thrombosis suffered by inactive passengers on long-distance flights looked not long ago as if they might become a major source of liability for airlines, but “appellate decisions in California and Texas have encouraged airlines to defend DVT cases in court, rather than begin a parade of potentially large settlements.” (Justin Scheck, “New Tort Encounters Turbulence”, The Recorder, Sept. 17). See Aug. 16, 2003; Sept. 12, 2004 (Australia).
Update: Boeken award chopped
Following guidance from the U.S. Supreme Court’s decision in State Farm v. Campbell, a California appeals court has ruled that the original $3 billion punitive award against Philip Morris, voted by a jury in 2001 in Richard Boeken’s lawsuit, cannot properly exceed $50 million. Plaintiff’s lawyer Michael Piuze expressed discontent at having to settle for such a measly sum. (Mike McKee, “Court Chops More off $3 Billion Award in Philip Morris Case”, The Recorder, Sept. 22; see Jun. 8-10, Jun. 11 and Jun. 19, 2001). Jim Copland has more at Point of Law (Sept. 22).
Sturm Ruger vindicated in Lemongello-McGuire case
Charleston, W.V.: “A judge has ruled that the country’s largest firearms maker is not liable for two police officers being shot by a felon using a gun made by the Connecticut company. Kanawha County Circuit Judge Irene Berger on Thursday ruled that former Orange, N.J., police officers Dave Lemongello and Kenneth McGuire are not entitled to damages from Fairfield, Conn.-based Sturm, Ruger & Co., Inc.” Gun-control activists had sought publicity for the case, which they argued exemplified the merits of litigation against the gun industry. In June Will’s Jewelry and Loan Co., the pawnshop where the gun was sold, agreed to pay $1 million to settle with the officers. (“Gun maker found not liable for police shooting”, AP/Stamford Advocate, Oct. 1). The Second Amendment Foundation applauded the judge’s ruling.
New at Point of Law
If you’re not reading our sister site PointOfLaw.com, you’re missing out on a lot. I’ve been doing about half my blog writing over there, on topics that include: a powerful new St. Louis Post-Dispatch investigation of asbestos litigation in Madison County, Ill. (here, here and here, with more to come, and note this too); the busy borrowings of Harvard’s Larry Tribe; when “not-for-profits” organize employment suits; Erin Brockovich’s respectability; crime without intent; experts and the CBS scandal; stay open through a hurricane, go to jail; suits over failure to put warnings on sand (yes, sand); West Virginia legal reform; Merrill Lynch/Enron trial; Hayek and the common law, reconsidered; getting creative about tapping homeowners’ policies; AdBusters sues to have its ads run; plaintiff’s lawyers represent criminal defendants to put drugmakers behind the eight ball; update on the law firm that competes on price; Spitzer and investors; Ohio med-mal crisis (and more); a welcome Schwarzenegger veto; dangers of firing your lawyer; ephedra retailer litigation; churchruptcies (if banks can do it…); and hardball in nonprofit hospital litigation.
Plus Ted Frank on tort reform in Mississippi and Jim Copland on California’s Proposition 64 (which would reform the notorious s. 17200 statute); the federal tobacco trial and Boeken; gender bias at work; and Rule 11 revival.
Better bookmark PointOfLaw.com now, before you forget.