Archive for July, 2005

Talk Show Host Don Imus sued for Slander by Doctor

Dr. Howard Allen Pearson has sued talk show host Don Imus, NBC, MSNBC and Westwood One Inc. for slander. The lawsuit stems from Imus’ on-air comments about the quality of services rendered by Dr. Pearson in July 2004 for a child staying at Imus’ ranch. Imus reportedly said that Dr. Pearson: “was one of the worst doctors in the world and did not care if children suffered.” (Fox News, “Doctor Sues Don Imus for Slander,” Jul. 11.)

Judge OK’s False Claims Act against Contractor Providing Security in Iraq

Two ex-Army Rangers formed a security firm — Custer Battles — and contracted with the U.S. government to supply security for the Baghdad airport. Two former employees of Custer Battles are now blowing the whistle, filing suit utilizing the False Claims Act and hoping to claim a share of the lawsuit proceeds which is nominally brought in the name of the U.S. government. An interesting legal issue was presented when Custer Battles argued in court papers that the False Claims Act only protects the government of the United States from fraud — not the Coalition Povisional Government. U.S. District Judge T.S. Ellis III rejected that argument last week by holding that money paid for Custer Battles’ services was, in part, seized by the Coalition from the old Iraq regime. Such funds are — under principles of international law — the property of the United States. (Richmond Times Dispatch “Whistleblowers can press lawsuit, Two allege (sic) security firm committed fraud on Iraqi contracts,” Jul. 11.)

Landlords liable for permitting smoking?

Anti-smoking activists are crowing over a ruling upholding a Boston landlord’s eviction of tenants for smoking within a rented condominium unit. The court’s ruling itself was not necessarily unreasonable, since other residents had complained about the tenants’ habit and the landlord said he was facing condominium association fines of $75/day if he let it persist. Note, however, the following passage:

In the face of an increasing number of nonsmoking tenants who are willing to assert their rights in multiple-unit dwellings, a growing number of property owners will choose to make their apartments and condos smoke-free, said [landlord Neil] Harwood’s attorney, Peter Brooks, a partner in the Boston office of Chicago’s Seyfarth Shaw.

A new issue is the liability of landlords for allowing smoking in their building and the additional risks they face, Brooks said.

“Those who want to avoid it will turn nonsmoking, not just in an eviction case, but a case against a landlord brought by a nonsmoking tenant.”

And of course GWU lawprof and perennial antipode of this site John Banzhaf gets his say:

“Ten years ago, most people would assume that smoking in one’s own abode — their apartment or condo — would be protected and nothing could be done about it, like the ‘old man in his castle’ idea,” Banzhaf said.

But that concept has been eroded by several cases, Banzhaf noted, including orders prohibiting parents from smoking around their children or foster children, and court rulings that secondhand smoke entering one’s home is actionable if it adversely affects others.

(Stefanie Shaffer, “Mass. Court Upholds Eviction of Condo Tenants for Smoking”, National Law Journal, Jul. 8).

The myth of the Pinto case

No discussion of the modern litigation system seems to be complete without a reference to the Ford Pinto and the supposed “smoking-gun” memo found in the automaker’s files. As Newmark’s Door observes (Jul. 11), the myth was long ago refuted, but it lives on endlessly in public discussion anyway, perhaps because many fans of expansive product liability find it too good to check. We’ve commented on it a number of times in the past — here, for instance (see final paragraphs).

Ernst v. Merck Vioxx trial to begin in Texas

Merck withdrew the painkiller Vioxx from the market when a study showed that it increased the risk of heart attack and stroke after eighteen months of use. 59-year-old Robert Ernst died suddenly of arrhythmia after taking Vioxx for seven months. No studies connect Vioxx to arrhythmia, but press coverage of the Brazoria County case, the first Vioxx products liability case to go to trial, has focused on the widow’s love for her husband rather than the lack of scientific controversy or asking why this case is going to trial at all. (Most press accounts repeat Carole Ernst’s claim that her husband was perfectly healthy; only the AP and USA Today mention in passing that Ernst’s autopsy showed atherosclerosis: two arteries partially blocked with plaque.)

Attorney Mark Lanier’s jaw-dropping theory, noted without rebuttal by the AP: “Mr. Lanier’s team says sudden death doesn’t leave enough time for the heart muscle to show whether Vioxx caused any damage.” The lack of evidence of damage is just proof of how insidious the drug is! As we noted on July 1, Lanier (Dec. 23, 2003) doesn’t seem interested in proving causation beyond innuendo. If you look through the press accounts, note especially the AP’s dramatically staged photo of Lanier in the New York Times: the case must be scientific because of all the pathology textbooks in the foreground of the shot! (Alex Berenson, “First Vioxx Suit: Entryway Into a Legal Labyrinth?”, NY Times, Jul. 11; Kristen Hays, “Jury selection to begin in Vioxx case”, AP, Jul. 10; Dana Calvo, “Vioxx Trial Could Set Precedent for Merck”, LA Times, Jul. 11; Richard Stewart, “Motion challenges plaintiff’s experts”, Houston Chronicle, Jul. 11; Kevin McCoy, “Merck to face first Vioxx trial before Texas jury next month”, USA Today, Jun. 30; Kristen Hays, “Lawyers gear up for first Vioxx suit against Merck”, AP/St. Louis Post-Dispatch, Jun. 28).

Read On…

Judge: radio hosts’ talk must be reported as campaign contribution

In a decision some critics said could threaten press rights, a Washington state judge ruled last week that two radio hosts’ on-air comments promoting an anti-gas-tax initiative should be considered in-kind campaign contributions.

Thurston County Superior Judge Christopher Wickham on July 1 ordered sponsors of Initiative 912 to report the value of comments by KVI Radio talk-show hosts John Carlson and Kirby Wilbur.

Lawyers for NoNewGasTax.com, which is sponsoring the initiative, said the ruling would have a chilling effect on political commentary and editorials in the news media. They said an appeal was possible.

(“Radio hosts’ on-air backing must be reported as campaign donation”, AP/First Amendment Center, Jul. 7; Brad Shannon, “Ruling throws media for a curve”, Jul. 10). The Seattle Times expressed alarm at the decision (“In support of free speech, and KVI” (editorial), Jul. 8) while the Post-Intelligencer, incredibly, applauded it (“Gas-tax Talk: Jabber over journalism” (editorial), Jul. 6). For more on campaign finance law vs. free speech, see Jun. 14 and links from there. More: Michelle Malkin, Jul. 9 and Jul. 12; Ryan Sager, “The ‘Shut-’em-up’ Reform”, New York Post, Jul. 12.

Unsuccessfully sues fellow skier

“A federal jury found yesterday that Sarah Walker, an aspiring model and ski instructor, was mostly to blame for a skiing accident at Loon Mountain in Lincoln, N.H., and refused to award her any money for injuries she said had derailed her modeling career.” Walker had sued 16-year-old Megan Lowry of Boxford, Mass. for alleged negligence in a collision of the two on the slopes; she also named Lowry’s parents as defendants, but a judge threw out that part of the claim before trial. (Shelley Murphy, “Ski crash model’s own fault, jury finds”, Boston Globe, Jun. 30). Wave Maker comments.

Convicted Arsonist Sues Over Denial of College Football Privileges

Sione Havili was convicted of felony arson. He pled guilty to tossing two plastic jugs filled with gasoline into a home. After serving his time, he wanted to play college football, like any average kid. Utah school officials denied him his right to play football and have now been sued. (“Former running back sues Utah AD, former president,” MSNBC Jul. 10.) [Cross-posted at SoCalLawBlog]. Good for Utah. Torching someone’s house is just plain wrong.