New York City, settling a controversy discussed in this space Jul. 12, 2000 and Oct. 31, 2004, has “essentially conced[ed] that children could not be placed in foster care just because their mothers had been abused.” (Leslie Kaufman, “City Settles Suit Over Separating Abused Mothers From Children”, New York Times, Dec. 18).
Archive for December, 2004
Divined intent?
The Australian state of Victoria, home to its second-largest city Melbourne, has a “religious vilification” law, which has now been tested and resulted in a conviction. The new criminals — pastors from the Catch the Fire Ministries. The crime, derogatory statements about Muslims and Islam (and very much so judging from this story).
Here is an excerpt from the judge’s ruling against pastors Daniel Nalliah and Daniel Scot:
Apartment complex liable for $15.7 million for shooting
College student Lai Chau told a Florida jury that she was rented at the Remington Apartment Homes because of its security gate and alarms. The security gate was slow-moving (perhaps because of fear of liability for damage caused by the alternative), and cars would sometimes “piggyback” through the open gate. Nevertheless, despite this, and despite hundreds of police calls to the neighborhood, poor lighting in the complex, and the fact that the complex’s security patrol was cancelled in January 2001 to save money, Chau renewed her lease in the summer of 2001, perhaps because apartments rent for only a few hundred dollars a month. In the lease, which the jury was not allowed to see, Chau agreed that the complex was not responsible for security. Chau also complained to the jury that the complex never told her about violent crime in the area; the jury was apparently infuriated by executive testimony acknowledging this with the statement that the owners and managers didn’t feel it was their obligation to do so.
In December 2001, Jabari Armstrong, high on cocaine and fresh off a 44-month sentence for carjacking and armed robbery, his stepbrother, and another accomplice previously convicted of carjacking, snuck into the complex and carjacked and kidnapped Chau. Armstrong shot Chau three times in the head; miraculously, she survived, with only hearing loss and some scars. The three criminals have been convicted, the shooter sentenced to life.
Australian med-mal crisis
It’s now abated, following states’ enactment of laws limiting recovery, and “the country’s biggest medical indemnity company has emerged from near collapse to reveal it will be able to cut premiums by an average 20 per cent”. (Mark Metherell, “Indemnity crisis heads for recovery” Sydney Morning Herald, Nov. 5). The government also threw some subsidies at the problem. For more on medical liability and legislated reform Down Under, see Jul. 16, 2003 and May 30, 2004.
Grist for the lawsuit mill?
Pfizer makes Celebrex, a cox-2 inhibitor pain medication, similar to Merck’s Vioxx. Merck voluntarily pulled Vioxx off the market when product tests revealed increased incidence of heart problems for patients who took Vioxx.
Today, Pfizer announced that a National Cancer Institute cancer prevention study found that Celebrex caused double the incidence of heart problems in patients who took 400-800 mg/day compared to non-Celebrex taking subjects. But another Pfizer study run by the NCI showed no increased risk. The 400-800 mg doses are four times the recommended dosages.
And it gets worse for Pfizer:
New York Death Penalty Controversy
Ten years ago a mildly successful Republican state senator in New York won a huge upset — defeating the three-term incumbent governor of New York and Bill Clinton ally, Mario Cuomo. Part of the reason was probably Cuomo fatigue — he had been governor since succeeding Hugh Carey in 1983 and had been Carey’s lieutenant governor before that. But the biggest part of Gov. George Pataki’s victory was his promise to sign into law a statute reinstating the death penalty in New York.
Cuomo had vetoed numerous death penalty statutes. In 1994, New York had terrible crime, especially in New York City (which later dropped precipitously under Mayor Giuliani and Police Commissioner Ray Kelly) and New Yorkers wanted to send the message that the state needed to get tough on crime and, especially, ensure that cop-killers would not walk free after 20-25 years (this was a big issue for supporters of the bills).
True to his word, Pataki signed a death penalty bill. By most measures, it was about as progressive a bill as death penalty provisions could get: requiring instructing jurors of the consequences of their sentencing decisions, setting up an administrative group of lawyers that would set fee rates for defense attorneys in capital cases (to ensure better quality representation), and mandating direct appeals of capital convictions to the New York Court of Appeals (the state’s highest court). Ultimately, the statute seemed designed to insure the rights of the accused, be used only in extreme cases and be constitutional.
Madison County update: James Blair Down
Elsewhere in Madison County, there was another hearing in the James Blair Down (Sep. 11 and links therein) settlement. The Belleville News-Democrat covers the hearing seriously (albeit focusing on a collateral procedural question, rather than the hearing’s debate over the fairness of the settlement), while a columnist for the St. Louis Post-Dispatch decides to settle for ridicule. (Brian Brueggeman, Belleville News-Democrat, “N.Y. attorney denied access to local suit”, Dec. 16; Bill McClellan, St. Louis Post-Dispatch, “Madison County has a court system made for a TV sitcom”, Dec. 17). Previous columns poking fun at Madison County class action attorneys had resulted in McClellan being sued (Feb. 29, 2000).
Madison County suit: pharmacy’s fault plaintiff overdosed from stolen drugs
Jode L. Sandbach recently pleaded guilty to a February theft of Oxycontin and Xanax from pharmacist Michael J. Cleary and his pharmacy, The Medicine Shoppe in Wood River, Illinois. She (again illegally, of course) gave the drugs to her boyfriend, Justin Stalcup, who promptly overdosed and died. The death was ruled an accident. Stalcup’s estate isn’t just suing Sandbach, but also Cleary and the pharmacy–notwithstanding the three intervening criminal acts, and the decedent’s own negligence (if not intentional suicide). (Brian Brueggemann, “Man’s estate sues pharmacy where drugs stolen”, Belleville News-Democrat, Dec. 17; Brian Brueggemann, “Woman charged after pal dies from drug overdose”, Belleville News-Democrat, Mar. 20).
Defamation or reputation protection?
Winning a defamation case in the United States as a private person is thankfully and notably difficult. Winning a defamation case as a public person (someone well known in the relevant community or a public official) is extremely difficult unless there is an unmitigated lie, and nearly impossible if the case comes down to one person’s word against another’s.
Often defamation actions are covers — one person who may have done something wrong will protest his or her innocence, sue and accuser and use the pressure of a lawsuit to obtain a retraction of some sort. Those lawsuits are discouraged in California by the SLAPP (Strategic Lawsuit Against Public Participation) statute, which penalizes plaintiffs for using defamation actions as swords to prevent defendants from exercising First Amendment rights.
The Monk won’t hazard a guess here about the merits of this lawsuit that former US track superstar Marion Jones filed against Vincent Conte, the founder of the Bay Area Laboratory Co-Operative. That company is better known as BALCO, [alleged] steroid supplier to the superstars. Conte stated in interviews and in ESPN The Magazine that he personally witnessed Marion Jones inject steroids into herself and that he cut ties to her because she kept losing steroid paraphenalia on the road.
Jones has passed a lie detector test and testified to her innocence under oath before various athletic committees and in affidavits. But her ex-husband was thrown out of the 2000 Olympics for steroid use and her boyfriend is reputedly similarly dirty. On the other hand, Conte has never subjected his statements to the penalty of perjury.
40,000 emails, and counting
The next frontier in discovery in civil litigation is electronic discovery. Plaintiffs’ attorneys want more of it, big businesses want less. [Disclosure: my law firm works for individual plaintiffs, corporate plaintiffs, individual defendants (albeit rarely) and corporate defendants]. What is electronic discovery? For a starting point, take this definition from a Business Week article describing a potential rule change in Federal lawsuits on a party’s duty to preserve electronic records: