Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for July, 2005

$65.1 million verdict in Florida

Twelve-year-old Jorge Luis Cabrera Jr. was found dead next to a Miami bus shelter in October 1998 after he took shelter there during a rainstorm. Weather data shows a lightning strike near the bus shelter at the time the boy would have been there; the defense claims there were several signs of an indirect lightning hit on the Cabrera’s body and clothing. Accusations were made that faulty wiring in the bus shelter electrocuted the boy, but employees of Eller Media, which owned the bus shelter, were acquitted of manslaughter charges.

Civil lawyers resuscitated the argument on behalf of Cabrera’s father, noting that Victor Garcia, who wired the shelter, was unlicensed. A jury agreed, and awarded $4.1 million in compensatory and $61 million in punitive damages; Cabrera’s mother settled separately. “Jose Irizarry, the jury foreman, told The Herald on Friday that he and his fellow jurors did not believe lightning could have killed the boy.” (David Ovalle, “Firm to pay millions in boy’s death”, Miami Herald, Jun. 25; “Jury: Eller Media should pay $65.1M”, South Florida Business Journal, Jun. 27; Chrystian Tejedor, “Jury awards $65.1 million”, South Florida Sun-Sentinel, Jun. 25; “Company Found Negligent In Boy’s Electrocution Death”, WTVJ-TV; “Unlicensed Electrician Admits ‘Regret’ In Boy’s Electrocution Trial”, Local 10 News, May 3; Colson Hicks Eidson press release; verdict form for Serrano v. Eller Media Co., Case No. 13-1998-CA-023808-0000-01 (Dade Cty. Fla. Cir. Ct.)).

Risibly unclear on the concept: the Miami Herald reports that “Today, more than 850 Miami-Dade Transit Authority bus shelters are lit by roof-mounted solar panels instead of electricity.” (I think they mean to say that the new bus shelters are lower voltage.)

Read On…

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“Malpractice Fears Color Mammogram Readings”

Radiologists order more repeat mammographies and more biopsies because of fears of malpractice claims, according to a study in the July issue of Radiology. “The recall rate in the U.S. is much higher than in other countries,” said study co-author Dr. Joann G. Elmore, an associate professor of medicine at the University of Washington. (Kathleen Doheny, HealthDay/Forbes, Jun. 28). See Jun. 14, 2004.

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Heather Mac Donald on Dahlia Lithwick

Dahlia Lithwick got her start in Slate with the innovation of covering the Supreme Court almost entirely in terms of what jokes were told at the oral argument. Now, gossipy legal humor has entertainment value, and Lithwick’s essays had a legitimate role in the context of providing added value for an Internet magazine whose main advantage over competing media sources was the ability to put writing out there in a breezier and quicker fashion than a newspaper. But the legal analysis was often slipshod, and Lithwick would freely admit her ignorance and instead focus on which Supreme Court Justice she’d most like to hug or the build of the lawyers. Yet Lithwick has parlayed being the Slate “Supreme Court correspondent” into a regular gig doing serious analysis and op-eds in purportedly more serious media outlets. The results often aren’t pretty. Heather Mac Donald puts her thumb precisely on the problem and points out how vapid Lithwick’s analysis of Justice O’Connor’s career is (via Point of Law). Lithwick makes the mistake of criticizing O’Connor’s decisions as lacking sufficient empathy for the sympathetic losing party (though, as Mac Donald points out, Lithwick’s sympathy is inconsistent within the same paragraph in the op-ed). Legal reporting all too often has the flaw of describing cases as a question of picking the most deserving winner, divorcing this question from the real issue of the neutral application of legal rules; this is a problem that all too often trickles down to some judges and jury decisions. And it’s a sad commentary on the state of legal education when a Stanford Law graduate doesn’t give any signs of knowing better.

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Hospital sued for fainting dad

While his wife, Jeanette Passalaqua, was giving birth, Steven fainted in the delivery room, fracturing his skull and dying two days later. This is, says the family, the fault of Kaiser Foundation Hospitals and Southern California Permanente Medical Group Inc. “‘This avoidable tragedy was a direct result of Kaiser’s ordinary negligence in failing to exercise reasonable care to prevent foreseeable injuries to Steven,’ according to the suit, which was filed last week in San Bernardino County Superior Court.” So if your maternity ward is rubber-padded next time you go there, you know why. (AP, Jul. 8).

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Food, served tendentiously

From time to time it’s suggested (see Apr. 20) that folks like us are overreacting when we keep commenting on lawsuits that seek to blame food purveyors for obesity: obviously (it’s claimed) these legal actions are going nowhere, and to report on them as if they were going ventures merely casts the whole legal system into disrepute. The thing is, a presumably serious paper like the New York Times regularly publishes articles favorably showcasing obesity litigation and presenting long, uncontradicted quotes from its advocates — as it did once again in a business-section article yesterday (Melanie Warner, “Obesity Inc.: The Food Industry Empire Strikes Back”, Jul. 7). A sample quote, from Michael Jacobson of the Center for Science in the Public Interest: “If someone is saying that a 64-ounce soda at 7-Eleven contributed to obesity, that person should have his day in court”. Just three days before that, Times columnist Paul Krugman, with his customary lightness of touch and respect for the good faith of his opponents, delivered a similar screed against business’s alleged responsibility for obesity; he promises it will be the first in a series on the subject. (“Girth of a Nation”, Jul. 4). By the way, if you want to know why the food-industry-defense Center for Consumer Freedom manages to send Krugman and his co-thinkers into such fits of anger, go check out its website, whose assemblage of material on the “Food Police“, to take one example, is nothing if not informative (and refutes Krugman’s naive assertion that “nobody is proposing that adult Americans be prevented from eating whatever they want”).

On a brighter note, Cato’s indispensable Radley Balko (The Agitator) has started a special blog (description of its mission, Jul. 5) devoted to fact-checking the assertions of filmmaker Morgan Spurlock, of Super-Size Me fame. And from Britain comes a welcome new blog entitled Nanny Knows Best, a “site dedicated to exposing, and resisting, the all pervasive nanny state”.

More: Krugman is back today (Jul. 8) with his second installment, and as AtlanticBlog notes, he’s already changed his tune on the issue of whether adults’ food consumption should be left to the realm of free choice. And Radley Balko (Jul. 8) pokes a hole in Krugman’s risible assertion that coercive government policies rationalized on public health grounds have had a record of “consistent, life-enhancing success” — you know, the way alcohol prohibition did.

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One sexual harassment charge leads to another

The Einsteins in Washington, D.C.’s police department decided to investigate a sexual harassment claim by making anatomical comparisons of the accused with the description given by the accuser. Lawrence Bailey was exonerated, but not before he was required to submit to a series of embarrassing tests involving a tape measure. He plans to file a civil lawsuit; the accuser, meanwhile, says the department botched the investigation and stands by her story, so we may see a second lawsuit. (Dave Jamieson, “How’s It Hanging?”, Washington City Paper, Jul. 1).

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