And according to Beldar (Feb. 20) the complainant’s lawyers (who naturally are planning to sue the comedian) have been reduced to blowing smoke about a purported prosecutorial conflict of interest that’s nothing of the kind.
Archive for February, 2005
Demand for shaker abstinence
A prominent busybody group filed suit yesterday demanding that food preparers be made to obtain permission from federal regulators before adding salt to food. In its lawsuit against the Food and Drug Administration, the nosy, hectoring Center for Science in the Public Interest (CSPI) says the savory crystals should be categorized as a regulated food additive; salt is currently, like many other long-used substances, grandfathered into the unregulated “Generally Recognized As Safe” (GRAS) category. (Maggie Fox, “Salt Should Be Regulated Food Additive, Group Says”, Reuters, Feb. 24). For more on CSPI, see Sept. 19, 2003.
Osbourne album remix prompts class action
After bassist Bob Daisley and drummer Lee Kerslake filed lawsuits demanding royalties over their performances in two Ozzy Osbourne albums, “Blizzard of Ozz” and “Diary of a Madman”, recording executives remastered the albums to strip out their performances and replace them with performances by Robert Trujillo and Mike Bordin for the 2002 reissue. Now Illinois fan Anthony Wester has sued Sony Entertainment and Epic Records, saying he felt misled and cheated to learn of the substitution, and his lawyer wants class-action status for the suit. (Steve Patterson, “‘Remastered’ Osbourne albums a snow job, fan’s suit charges”, Chicago Sun-Times, Feb. 21; “Bassist, drummer cut from Ozzy album remixes, fan sues”, AP/AZCentral.com, Feb. 23).
The Times’s errors on malpractice, cont’d
I’ve just posted at Point of Law the second and I assume final installment of my long critique of Tuesday’s New York Times article on medical malpractice insurance. The Times coverage contended — in assertions picked up and repeated by many a credulous blogger — that the premium levels charged to doctors bear no relationship to payouts or to legal limits on damage recoveries. Part I of the critique, again, is here.
While you’re at it, you really should be reading Point of Law every day if you have any interest in the more serious side of litigation and its reform, or just want to follow Ted’s or my writing (we both post regularly there). Among the topics you would have learned about recently: the difference, among civil litigators, between “chicken catchers and chicken pluckers“; Colorado lawmakers may restore to homeowners the right not to be sued over “open and obvious dangers” on their property; FDA panel recommends letting Vioxx back on market; a new study of class actions by Yale’s George Priest; medical malpractice law in the U.K.; Sen. Biden praises “bottom-feeders”; silicosis diagnosis scandal; a new legal ethics blog; tons more stuff on the Class Action Fairness Act, including this, this and this; problems with that much-ballyhooed report on medical costs supposedly causing half of consumer bankruptcies; and the Wall Street Journal on loser-pays.
“Veteran-status” harassment
Just as legal rules aimed at sparing female and minority workers the risk of a “hostile environment” can lead to the suppression of workplace jokes, banter and expressions of political or religious opinion deemed potentially hurtful to feelings, so the inclusion of “veteran’s status” as a protected category can encourage the elimination of workplace speech that might offend the group in question — which in this case could lead to restricting speech critical of war or the military. Eugene Volokh explains (Feb. 8) and Beldar comments as well (Feb. 8).
Tulsa World v. bloggers
The Tulsa, Okla. newspaper has sent a cease-and-desist letter to blogger Michael D. Bates of Batesline for “inappropriately link[ing his] website to Tulsa World content” and insisted that he at once remove “unauthorized links to our content” (his posts on the subject). (It also complains about Bates’s having reprinting editorial items or portions thereof; he believes the reprinting was defensible under “fair use”). Blogger-lawyer Ronald Coleman, who recently launched the Likelihood of Confusion blog covering trademark, copyright and trade secret law, is assisting Bates and comments on the story (Feb. 18 and other entries). TechLawAdvisor also adds an observation. More on “deep linking”: Jan. 25, 2004 and links from there.
New York Times on medical malpractice
Yesterday the Times published an article on medical malpractice insurance that’s has been getting a fair bit of attention. I thought the article had serious shortcomings and just posted a lengthy explanation of why on Point of Law, with more posting probably to come. (Feb. 23; see also Feb. 22). More: And Ted has a semi-satirical treatment of the issue just up at Point of Law, inaugurating a new “Column” section there.
On a different note, my flu seems to have had a relapse, so I may skip posting for a while. (Update 4:20 p.m.: doing a lot better after resting for a few hours.)
An Ohio receiver
“Judges appoint Mark Dottore to stabilize troubled companies. Critics say he’s cleaning them out.” (Kevin Hoffman, “King Nothing”, Cleveland Scene, Feb. 9). For a glimpse at the world of court-appointed trusteeships in New York, see Nov. 11, 2003.
Oz: party hosts not liable for barbecue misuse
At approximately 2 a.m., long after the 18-year-old host’s parents had gone to bed, some guests at a backyard party decided they would relight the barbecue. Ignoring warnings, one of them poured in an entire bottle of lighting fluid and the resulting fireball injured a second guest, who sued the family for improper party supervision and won a A$210,000 damages award. In November, however, the high court of the state of New South Wales overturned that award, holding that the parents could not reasonably have foreseen the guests’ irresponsible behavior. According to attorney Julie Cameron of Corrs Chambers Westgarth (“Thank God It’s Friday: Appeal Judges extinguish BBQ claim”, Dec. 3), the plaintiffs also “argued that consideration should be given to North American case law, where a doctrine known as Social Host Liability has been adopted, attaching liability to hosts at parties where alcohol is served.” But the court did not find the North American law persuasive, finding that in Australia:
Barbecue parties with liquor attended by young adults occur in their hundreds all over Australia every evening; the perception that the activity, supervised or unsupervised by older adults, is one involving a foreseeable risk of personal injury is, in my opinion, an entirely wrong perception.
The appellants were not in any relationship with the guests which has been or should be established by judicial authority to impose any special duty or responsibility for the safety of the guests.
In a concurring opinion, Justice Tobias said Australian community opinion would reject any open-ended extension of liability to homeowners for the general misconduct of inebriated guests, “the burden of which would inevitably result in social functions where alcohol is served becoming a thing of the past”. (Parissis and Ors. v. Bourke). See The Third Branch (blog), Nov. 30. For more items from Down Under — including numerous hopeful developments in recent years as the country has pulled back from a previous swing toward litigiousness — see our Australia page.
Drypen v. Oakland County, Michigan
On June 22, 2003, the Drypen family asked their sixteen-year-old son, Christopher, to turn his rap music down; instead, he pulled a nine-inch serrated steak knife. They called 911, and asked for assistance subduing him. They told dispatchers that he had psychiatric problems and was not taking his medication, and told arriving police that he was “violent,” having a “psychotic episode,” and armed with a serrated steak knife. Moreover, the Drypens said, last time Christopher was like this, it took four people to subdue him.
For over an hour, several deputies tried to talk Christopher out of the basement, surrounding him at the stairs to the basement and at the outside walk-out doors. At one point, Drypen came towards deputies with the knife raised; they responded by retreating, and holding the door closed until the inside door-handle broke off in Christopher’s hand. Christopher was yelling “Die” with an obscenity. Deputies say (and the family disputes that) Drypen charged deputies up the stairs with the knife raised; he was shot from a mere twelve feet away in self-defense, and killed. Prosecutors called the killing justified self-defense and did not press charges after a three-month investigation, but the Drypen family sued–and now Oakland County taxpayers are out $4 million ($1.42 million to attorney Jules Olsman) because the County settled without admitting wrongdoing. (Mike Martindale, “$4 million won’t end grief for family”, Detroit News, Feb. 18; Marsha Low, “Family struggles to move on after son killed by deputies”, Detroit Free Press, Feb. 19; Korie Wilkins, “County to pay $4M in death of 16-year-old”, Daily Oakland Press, Feb. 18; Kate Phillips, “Drypen suit settled”, Milford Times, Feb. 17; Oakland County press release, Sep. 12, 2003; Marsha Low, “Grieving family blames police”, Detroit Free Press, Sep. 13, 2003; Bill Laitner, “Family sues over police shooting of ill teenager”, Detroit Free Press, Oct. 16, 2003; Drypen v. Oakland County, Case No. 2:03-cv-74151-AC (E.D. Mich.)).
Update, Feb. 27: The press finally gets around to reporting the defense side of the story. Often the press repeats the fact that officers fired many times as evidence that excessive force was used, when, in fact, officers are trained to keep firing until a threat is stopped. (Korie Wilkins, “Son’s death remains mystery”, Daily Oakland Press, Feb. 27; Kate Phillips, “Sides still dispute shooting details”, Milford Times, Feb. 24).