Over at Point of Law, Ted looks into a supposed smoking gun in the case against Vioxx, and finds it nothing of the sort (Nov. 10).
Archive for November, 2005
Noise pollution
It can consist of kids’ playing, as in this British case in which an irate neighbor called in “the environmental health” to complain about a nearby nursery school. The school has agreed to restrictions under which “games such as What’s the Time, Mr Wolf? can no longer be played outdoors.” (Stewart Payne, “Nursery children must stay inside to protect neighbour’s rights”, Daily Telegraph, Nov. 10).
Volokh on gun immunity law
Eugene Volokh eviscerates a Slate smear of the Protection of Lawful Commerce in Firearms Act:
The gun industry has been exposed to novel theories of legal liability, which don’t apply to other industries: If I’m hit by a 20-year-old driver who was drunk on Coors and driving a Ford Mustang, I wouldn’t be able to hold the alcohol manufacturer or car manufacturer liable — even if the manufacturer sold the Coors to a liquor store in a college town (so that the manufacturer must surely have known that some fraction of its products would end up in the hands of the underaged), even if the manufacturer knew that the liquor store had been suspected in past unlawful sales (but still was allowed by the state to sell beer), and even if I can persuade the jury that car manufacturers shouldn’t be able to sell really fast and powerful cars, especially to 20-year-olds, who are notoriously prone to speeding. Yet many of the gun manufacturer lawsuits were very similar to these lawsuits, and Congress was right to preempt them.
Read the whole thing.
One can expect the first constitutional challenge to the law on November 21, when Judge Weinstein will hear a motion to dismiss New York City’s lawsuit against gun manufacturers. (Tom Perrotta, “Judge Stays New York City’s Suit Against Gun Industry”, New York Law Journal, Nov. 9). We discussed the case Apr. 13, 2004.
Jack Thompson quits Grand Theft Auto case
“Jack Thompson, the colorful Miami attorney who has become synonymous with lawsuits against video game companies, withdrew as the attorney for the plaintiffs in Fayette’s video game trial.”
…Thompson’s withdrawal comes after a hearing on a motion from the defense attorneys, who represent video game manufacturers and distributors, to revoke Thompson’s privilege to practice law in Alabama during the case. Judge James Moore granted Thompson, pro hac vice, the legal term for the temporary privilege, when the suit was filed.
Defense Attorney Jim Smith claimed that Thompson bombarded him, his co-counsel Rebecca Ward and his law firm, Blank Rome, with threatening and harassing e-mails and letters. He also accused Thompson of violating legal ethics, misrepresenting an alleged past history of disciplinary problems and attempting to poison the jury pool with frequent press releases and appearances in the news media….
Since defense attorneys filed the motion, Thompson has claimed they were “coming after” him. He said Blank Rome’s strategy has always been to attack its opponents.
(“Robert DeWitt, “Attorney in Fayette case bows out”, Tuscaloosa News, Nov. 8). More coverage: IGN, GamePolitics.com, GameSpot News, The Inquirer. For more on Thompson’s antics, see Feb. 19, Oct. 21, etc.
Balloting results
In Washington state, voters defeated I-330, a doctor-backed plan to limit medical malpractice awards and lawyers’ fees, by about a 54-46 margin, while also drubbing I-336. a lawyer-backed alternative (Seattle P-I, Seattle Times). California voters trounced, by a 61-39 margin, Proposition 79, which would have regulated drug prices via freelance lawsuits among other means; they defeated Proposition 78, a drug-industry-backed alternative, by nearly as wide a margin. (L.A. Times, Sacramento Bee). In Virginia, former Richmond mayor and Democrat Tim Kaine, who had been criticized by the American Justice Partnership (Nov. 2), won the governorship anyway (Wash. Post). Texas voters easily passed an anti-gay-marriage constitutional amendment that Houston attorney Warren Cole, chairman of the State Bar of Texas’ family law section, called “horribly drafted” and which would prohibit the recognition of any “legal status” that is “similar to marriage” (more from Cathy Young)(see yesterday’s post) (Dallas Morning News) (cross-posted at Point of Law).
Ballot propositions today
Over at Point of Law, I’ve been collecting links on California’s Prop 79 (empower trial lawyers to sue over drug prices, among other provisions) and Washington’s I-330 (med-mal). Also, Virginia Postrel reminds Texans to vote no on Proposition 2, which is billed as banning gay marriage and in fact, like some tricky predecessors in other states (see Mar. 20, etc.), would probably extend much further than that.
Kellen Gorman v. Crenshaw Lumber
Three years ago, when he was 2, a medical exam discovered brain lesions on Kellen Gorman. His family blames “toxic mold” for his autism (though his two siblings weren’t affected) in the house, and sued 17 defendants—including the lumberyard that supplied the wood for the house. Six weeks into trial, the case has settled for $22.6 million and, amazingly, it’s the lumberyard that’s paying the bulk of it: $13 million, or more than $200,000 for each of its sixty employees. As it was, the lumberyard had hired seventeen experts to try the case, but had ten of them (including a toxicologist and microbiolgist) excluded when they missed a court-ordered deadline for disclosure. (The Gormans’ attorney, Brian Witzer, accuses a defense attorney of trying to backdate a document, and says he has filed ethical charges.) The Gormans already have plans for their millions: “We’ll tear [the house] down and take it to a hazardous waste dump and build a really nice house,” [Dana] Gorman said. “It will cost a lot to tear down and rebuild.” (Josh Grossberg, “Manhattan Beach family wins $22.6 million suit”, Los Angeles Daily Breeze, Nov. 7; NBC-4, Nov. 4). And if housing seems a bit more expensive in California, it’s because even the raw materials suppliers must purchase insurance against the risk of multi-million-dollar junk science verdicts.
Welcome Declan McCullagh readers
The widely read technology correspondent discusses the controversy arising from the revelation that Sony has been “injecting an undetectable copy-prevention utility into Microsoft Windows”. On the one hand, lawyers have already filed a class-action suit against Sony complaining of the practice; on the other hand, consumers who try to rid their computers of the anticopying program are at risk of violating “Section 1201 of the Digital Millennium Copyright Act, which bans the ‘circumvention’ of anticopying technology.” McCullagh goes on to observe:
If your head isn’t spinning by now, it should be. It’s a wacky result when both Sony and its hapless customers could be embroiled in legal hot water at the same time.
These citations to state laws, federal statutes and common law torts above should demonstrate an obvious point: The American legal system is, all too often, used as a weapon against businesses or individuals who can’t hope to comply with every regulation on the books. Entrepreneurs write checks to law firms instead of developing products. Guilt and innocence turn too often on technicalities rather than whether an action was inherently right or wrong.
Why? As Manhattan Institute fellow Walter Olson documents on Overlawyered.com, our legal system is set up to encourage lawsuits. They’re easy to file and difficult to dismiss. Plus, politicians receive attention by enacting new laws, not by repealing them. No wonder the Federal Register was growing by between 55,000 and 70,000 pages annually even by the first Bush presidency. …
(“Perspective: Why they say spyware is good for you”, CNet News, Nov. 7).
Microsoft fee squabble: judge has “better things to do”
Declaring that he had “better things to do”, U.S. District Judge Frederick Motz in Baltimore has dismissed for lack of jurisdiction an action by plaintiff’s lawyers seeking to grab more than $24 million from a $79 million fee pot awarded another group of lawyers for their work suing Microsoft in six states and the District of Columbia. The lawyers are still free to pursue their claims in state courts. (Brian Witte, “Federal judge dismisses request for legal fees in Microsoft case”, AP/Grand Forks Herald, Oct. 27). More on MS fee-ing frenzies: Jul. 25, 2004 and links from there.
Court: workers’ comp covers hockey-fight injury
Confirming every suspicion about ice hockey:
A former minor-league hockey player who injured his shoulder in a fight he claimed his coach told him to start is entitled to workers’ compensation, a Virginia appeals court ruled.
The Virginia Court of Appeals upheld a Virginia Workers’ Compensation Commission finding that “fighting is an integral part of the game of hockey” and that Ty A. Jones’ injury arose in the course of his employment as an “enforcer.”
(Sonja Barisic, “Court: Workers’ comp covers hockey player”, AP/Detroit News, Nov. 4).