Once again the inevitable worldwide triumph of tobacco litigation turns out to be not so inevitable after all: “In the first case of its kind in Britain, a judge rejected Margaret McTear’s attempt to sue Imperial Tobacco over the death of her husband Alf 12 years ago. … Lord Nimmo Smith, at the Court of Session in Edinburgh, said the test case failed on every count. He ruled that Mr McTear knew what he was doing and there was no proof that his cancer was caused by a particular cigarette brand.” (Auslan Cramb, “Widow fails to pin blame on tobacco company”, Daily Telegraph, Jun. 1). Ever the gracious loser, Northeastern University lawprof-advocate and interest-nondiscloser Richard Daynard called the ruling “an extraordinarily ignorant opinion”: “The UK suffers from a conservative, narrow-minded judiciary who don’t know or don’t want to know the relevant medical and social facts,” he said. (Stephen Davis, “Smokescreen”, New Statesman, Jun. 27)($).
Archive for June, 2005
Update: DVT claim fails in Australia
The High Court of Australia has dismissed a claim against British Airways and Qantas by a businessman who suffered a stroke arising from deep-vein thrombosis (DVT), sometimes known as “economy-class syndrome”, after a long-distance flight (see Sept. 12, 2004). “If his case had succeeded, it could have opened the floodgates to dozens of DVT cases which had been prepared to go before Australian courts.” (Chris Herde, “Court throws out DVT-related case”, The Australian, Jun. 23). More: Oct. 3, 2004 and links from there.
Odium toward sodium
Estee Lauder class action
Retiree Diane Hutto of Fort Walton Beach, Fla. bought the giant cosmetics company’s “anti-aging” products, but aged anyway. A refund of what she paid wouldn’t do the trick, it seems; her lawyer’s asking for class action damages that could exceed $5 million depending on the size of the class. (Patrick Danner, “Retiree sues Estee Lauder over anti-aging claim”, Knight Ridder/Salt Lake Tribune, Jun. 18).
Over at Point of Law
The mystery guestblogger over at Point of Law has now been revealed: it’s Prof. Martin Grace of the highly recommended site RiskProf. He’s an insurance and liability expert and will be contributing comments this week and next. We originally announced that there would be a second guestblogger at Point of Law this week as well, but that personage is being held at an undisclosed location and is expected to stop by next month instead.
Also at Point of Law, check out Ted’s posts on Kelo v. New London, the eminent domain case decided today by the Supreme Court, and on anesthesiologists and malpractice; Jonathan B. Wilson’s posts on recent California Supreme Court rulings on punitive damage limits, a $300 million fee for Bill Lerach, and scary scam suits by prison inmates; and my contributions on such topics as how some securities lawyers get clients and the politics of loser-pays.
Questions not to ask
Advice for employers, at job interviews (“Interview questions you shouldn’t ask”, HRHero.com, Jun. 17, adapted from Louisiana Employment Law Letter)(via Michael at George Lenard’s).
More: reader Mark Moss comments:
The first item on the list of questions you can’t ask prospective employees is, “What is your age?” But sitting on my desk right now is a memo from HR about “I-9 Compliance Update”. The DHS requires me to show my employer documents showing citizenship or right to work in this country — either 1 from list A (e.g., a passport), or one each from list B and C (e.g., driver’s license and Social Security card).
Apparently, HR is on their honor to skip over the date of birth listed on these documents.
And: George Lenard writes in to say:
Regarding the above observation, as I noted in our comments section, there is a distinction between illegal and unwise questions.
ASKING about age when it’s irrelevant is a red flag, smoking gun or whatever, not to mention divisive. (Response: “What’s it to you, youngster? How old are YOU, son?”).
KNOWING about age incidentally, whether from passport, birth certificate, drivers license, or gray hair, wrinkles, and baldspot, is inevitable at some point. I’d look to keeping such information out of the early screening process at least, so the early rejects can’t claim age discrim (OK, you and I both know they can CLAIM and SUE for anything whatsoever; I’m talking about doing so without confronting a strong defense — employer’s ignorance.)
“The Worst Bill You’ve Never Heard Of”
Update: Joshua Flax v. Chrysler seat back case
We covered this case in detail Nov. 24 and Dec. 21. The court reduced punitive damages from $98 million to $20 million, which means that the total injustice is $23.75 million instead of $101.75 million. The AP version of the story doesn’t even acknowledge the auto company’s defense. (Randy McClain, “Judge slashes damages against carmaker”, The Tennessean, Jun. 21; AP, Jun. 21).
Lawyers Weekly USA has more details about the trial, including the fact that the jury wasn’t allowed to hear that, with 7.1 million vehicles on the road, there were only three deaths from collapsing seatbacks. Moreover, the judge permitted plaintiffs to argue liability based on a post-sale duty to warn of (allegedly) improved technology, unprecedented in Tennessee and most other states: thus, according to plaintiffs, when Chrysler merged with Mercedes, Chrysler had a legal duty to inform every single one of its car owners of any safety features on Mercedes vehicles that weren’t on Chrysler vehicles (and, one would imagine, vice versa). How this would have prevented a pick-up truck from slamming into the rear of a minivan at twice the speed limit, one wonders, but too many judges have stopped requiring causation to be an element of a tort. (Reni Gertner, “Parents Of Baby Killed In Seatback Collapse Win $105.5M”, Lawyers Weekly USA, Jan. 2005).
Opinionistas blog
“I like employment law because it revolves entirely around crazy people,” explains the anonymous “Opinionistas,” who claims to be a junior associate at a prominent New York firm, at least until senior partners discover her cynical blog:
“Honey, how was your day?” “Um, well, actually I got pissed off and peed all over the floor of the ER, in front of 2 potential cardiac arrests and a trauma victim, so I’m kinda fired. But it was discrimination! They actually fired me because I’m one-fifteenth Native American on my mother’s side!” So the guy gets a scummy lawyer to take his case, he sues the hospital, and the hospital calls us for help. Then we demand to see the Urinator’s (I come up with little nicknames for all of them) personal email account. Then the real fun begins. Hours spent reading about his extramarital flirtation with Marta, the 3rd floor nurse anesthetist, his anger with his boss for not permitting 3 20-minute coffee breaks each morning, his wife’s current interest (or lack thereof) in sex.
She also has summer associate gossip (via Legal Reader).
In Alabama, the tusks are looser
Auburn, Washington dentist Robert Woo mysteriously thought it would be funny to photograph a staff assistant who was under anesthesia with a pair of fake boar tusks in her mouth. When confronted with the photos, she quit and sued for “post-traumatic stress disorder” allegedly triggered by the battery, eventually settling for a quarter-million dollars. Any argument Woo has to victimhood for the ridiculous damages claimed is obliterated, however, because he himself turned around and sued his insurance company for emotional distress for failing “in bad faith” to cover the incident as “dental services.” A judge let the matter get to trial, and a jury hit Fireman’s Fund Insurance for three times the amount of the original law suit, $750,000, plus another $600,000 in attorneys’ fees, before the Washington Court of Appeals threw the case out last week. (Maureen O’Hagan, “Appeals court rules against dentist”, Seattle Times, Jun. 16; Woo v. Fireman’s Fund Insurance Co. (Wash. App. Jun. 13, 2005); Romensko blog, Jun. 20). Other stories of bad-faith-insurance litigation: Sep. 7 and May 5, 2004.