Because aggregating headlines, first sentences of stories, and (sometimes) tiny little thumbnails of pictures constitutes an outrageous trampling on the French news service’s intellectual property, it wants at least $17.5 million in damages. (“AFP sues Google for news aggregation”, PhysOrg.com, Mar. 20). We covered the issue Nov. 9.
Archive for March, 2005
Ohio: let’s not license eBay sellers
Ohio lawmakers are scrambling to change a recently enacted law which starting in May would forbid state residents from selling items on eBay unless they possess an auctioneer’s license. “Under the original bill, anyone selling an item on eBay was required to use a licensed auctioneer or become an auctioneer. Becoming an auctioneer requires serving a one-year apprenticeship to an auctioneer, attending classes and other requirements.” Last Wednesday the Ohio Senate passed a bill exempting online-auction sellers from the requirements; the bill “now moves to the Ohio House, where swift approval is expected after the Easter recess.” The Ohio Auctioneers Association, however, is still pressing to get the state to regulate drop-off consignment shops which sell items on eBay for a fee. (Michael Sangiacomo, “Senate votes to exempt eBay sellers from auctioneer’s license rule”, Cleveland Plain Dealer, Mar. 17; “Ohio law would regulate eBay sellers”, CNN/Money, Mar. 7).
No way to spend your old age
Quotable: “Being involved in a lawsuit is a lousy way to spend your old age” — author Dominick Dunne, 79, commenting on his agreement to settle, on terms which include an apology and an undisclosed sum of money, a defamation suit filed by former Rep. Gary Condit. (Michael Doyle, “Condit, Dunne sidestep big battle”, Modesto (Calif.) Bee, Mar. 17).
Mikolajczyk v. Ford and Mazda: $27 million in Escort seat litigation
Drunk driver William Timberlake, speeding at 60 mph, rear-ended the Ford Escort in which 46-year-old James Mikolajczyk was stopped at an intersection. Only 3% of fatalities occur in rear-end collisions, so Ford, like most car companies, designs its seat-backs to meet federal safety standards and provide additional protection in other types of collisions–with the unfortunate and unavoidable trade-off that the seat will not perform as well in a rear-end collision. Mikolajczyk’s ten-year-old daughter survived, but Mikolajczyk’s seat collapsed, his head hit the rear of the passenger compartment, and he never regained consciousness before dying three days later. A Cook County jury deliberated all of three hours before finding Ford 40% responsible. And because Ford was found more than 25% responsible, it is on the hook for the entire $27 million award, including $25 million in non-economic damages. Timberlake is in prison. Only the specialty legal press raised the issue of joint and several liability; the mainstream press didn’t even mention the 40/60 split in comparative fault. (Bill Myers, “$27 million verdict in fatal accident”, Chicago Daily Law Bulletin, Mar. 16 (via ICJL); Steve Patterson, “Ford, Mazda ordered to pay $27 million in death”, Chicago Sun-Times, Mar. 17; Chris Hack, “Carmakers to pay in SE Side crash”, Daily Southtown News, Mar. 17; Rafael Romo, “Jury Awards Millions In Fatal Crash Caused By Deffective [sic] Seat”, WBBM-2, Mar. 17; Mikolajczyk v. Ford Motor Co., No. 00 L 3342 (Cook County, Ill.)). More seat-back litigation coverage on this site: Dec. 21; Nov. 24.
Bruce Pfaff, Mikolajczyk’s attorney, previously won a similar seat-back case from an Indiana accident where a cocaine-and-PCP-impaired driver, Kevin Gaczkowski, rear-ended and paralyzed the plaintiff, Lydia Carillo. Ford was found 30% liable (in part because the jury wasn’t told of Gaczkowski’s condition), and paid 100% of the $14.5 million verdict. Carillo v. Ford (Ill. App. 2001). In Carillo, a jury was told to decide whether a vehicle was unreasonably dangerous, but Ford wasn’t allowed to show the jury statistics on how the seatbacks performed in rear-impact collisions (even as the plaintff introduced anecdotal testimony from other paraplegics), or introduce testimony showing that the plaintiffs’ preferred seat-design would have also caused injury. It’s ludicrous enough to have a jury second-guess design decisions as part of a particular case without being forced to be consistent with other juries second-guessing how those same design decisions are operating in other circumstances. But it’s truly absurd to have a jury do this without access to the data of the costs and benefits, thus making the trial purely a game-show over the persuasiveness of hired experts.
Update: Schenectady BBS defamation
Following up on our entry of last Aug. 31: Acting Supreme Court Judge Felix Catena has dismissed attorney Romolo Versaci’s defamation suit against Diane Richie, who called Versaci a “so-called lawyer” on a local online message board, saying the expression was by its nature rhetorical opinion and not actionable. Versaci has said he plans appeal. David Giacalone (Mar. 15) has the details.
Update: Virginia not-so-primitive, and state mini-FMAs
The Virginia legislature has voted to repeal the state’s law, the only one of its kind in the nation, prohibiting insurance companies from offering coverage of domestic partners as part of employer-provided health plans (see May 31, 2004, next-to-last paragraph). Gov. Mark Warner (D) has announced his intent to sign the bill. The Virginia Chamber of Commerce backed the repeal, citing principles of economic liberty: “If you believe in a free market, then restrictions like this don’t make any sense,” said Chamber vice president for public policy Stephen D. Haner. The repeal was strenuously opposed, however, by Religious Right figures such as Del. Robert Marshall (R-Manassas), and passed the House of Delegates by only a 49-48 margin (Pamela Stallsmith, “House backs letting firms extend health benefits”, Richmond Times-Dispatch, Feb. 25; Lou Chibbaro, Jr., “Va. DP ban repealed by 1 vote”, Washington Blade, Mar. 4; Tim Hulsey, Feb. 25).
On a related topic, last November Michigan voters approved a constitutional amendment providing that “the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose” (see Nov. 2). At the time, opponents argued that the measure might well be interpreted to forbid cities, state universities and other public entities from offering domestic partnership benefits to their employees, but proponents of the measure dismissed that notion: a spokeswoman for Citizens for the Protection of Marriage, a group heavily backed by Michigan’s seven Catholic dioceses, told the Detroit News “nothing that’s on the books is going to change. We continue to confuse this issue by bringing in speculation.” However, with the amendment now in effect, the state’s attorney general — to cheers from most of the amendment’s organized backers — has issued an advisory opinion stating that it does indeed prohibit the city of Kalamazoo from providing DP benefits to its employees after the expiration of their current union contract. (Ed Finnerty, “City under fire over same-sex benefits plan”, Kalamazoo Gazette, Mar. 17; Claire Cummings and Melissa Domsic, “Cox: No future same-sex employee benefits”, State News (Michigan State U.), Mar. 17). Don Herzog of Left2Right, who has assembled plenty of links on the story, aptly labels the sequence of events “Bait and Switch” (Feb. 11 and Mar. 18). Update: Feb. 17, 2007 (Mich. appeals court rules benefits illegal under amendment).
Site outage
My apologies for a technical glitch that kept the site offline from yesterday morning through this morning. Looks like the problem is fixed now.
Latest newsletter
Our email newsletter summing up what’s new on the site went out this afternoon to its c. 2300 subscribers, covering the last month or so’s worth of postings in telegraphic, occasionally droll style. Isn’t it time you signed up for your free subscription? You can do so right here.
They mixed those children up/And not a creature knew it
At North Suburban Medical Center outside Denver, nurses mistakenly gave the wrong newborn to a mother to breast feed. The mistake was discovered after a few minutes, the infant having declined the proffered refreshment, but the woman’s family is now suing and the other family is considering suing too. (“Mom Sues Hospital Claiming She Nursed Wrong Baby”, KMGH-TV, Mar. 16)(title allusion).
ADA filing mills: “drive-by lawsuits”
AP reports on the thriving business of mass-complaint-filing under the Americans with Disabilities Act, citing examples from Nebraska and Oklahoma as well as more familiar filing-mill locales such as California and Florida. As in the recent California case, however (Jan. 8), some judges are not pleased at what they see:
U.S. District Judge Gregory Presnell of Orlando, Fla., noted in a ruling last year that Jorge Luis Rodriguez, a paraplegic, had filed some 200 ADA lawsuits in just a few years, most of them using the same attorney.
“The current ADA lawsuit binge is, therefore, essentially driven by economics — that is the economics of attorney’s fees,” Presnell wrote. He said Rodriguez’s testimony left the impression that he is a “professional pawn in a scheme to bilk attorney’s fees” from those being sued.
(Kevin O’Hanlon, “‘Drive-By Lawsuits’ Raise Business Concern”, AP/San Francisco Chronicle, Mar. 17).
Speaking of the California saga of Jarek Molski (Sept. 21, Nov. 27, Dec. 12, Jan. 8), last month U.S. District Judge Edward Rafeedie extended from Molski to his lawyer, Thomas Frankovich, a requirement to obtain court permission before filing more suits under the act, a sanction ordinarily reserved for the most vexatious and troublesome litigants. Reports the Los Angeles Daily Journal:
The Los Angeles judge accused Molski and Frankovich of seeking quick cash settlements by filing a suspicious number of lawsuits in short periods of time. Their suits alleged handicap-access violations such as steep ramps, heavy doors and narrow hallways.
Rafeedie noted that the complaints are identical, right “down to the typos.” He said he believed the injuries alleged by Molski “are often contrived.”…
Rafeedie criticized at length Frankovich’s practice of sending letters to defendant business owners at the outset of litigation, urging them to settle the cases before hiring defense lawyers.
According to Rafeedie, Frankovich told the defendants that they did not have good legal defenses to the disability claims and that their insurance carriers could cover any damages.
Rafeedie said the letters were unethical and misleading.
However, Molski and Frankovich’s side of the case has retained prominent civil-rights attorney Stephen Yagman, and Yagman says well-known Duke lawprof Erwin Chemerinsky is also joining the plaintiff’s team, so who knows where matters are headed next. (John Ryan, “Jurist Finds Lawyer’s Conduct ‘Plainly Unethical'”, Los Angeles Daily Journal, Feb. 8, not online). More: blogger Patterico is among Yagman’s non-admirers (Jun. 3, 2004).