Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for March, 2006

AEI Liability Outlook: “Making the FAIR Act Fair”

The first edition of the AEI Liability Outlook is out today, and features my analysis of pending asbestos legislation:

The AEI Liability Project hereby inaugurates its Liability Outlook series, designed to guarantee a paper trail to exclude any of its authors from Article III appointments. This Outlook examines the congressional attempts at asbestos liability reform. The eventual cost of asbestos litigation is estimated in the hundreds of billions of dollars, the majority of which will end up in the hands of attorneys, thus affecting thousands of corporate defendants with little or no culpability and costing tens of thousands of jobs. The trust-fund approach is a congressional attempt to reach a compromise on the liability problem, so long as nationwide reform is not politically feasible. While a trust fund has the potential to save tens of billions of dollars, the current legislation suffers from dangerous flaws that could make the cost of the asbestos litigation crisis far worse.

Other Point of Law coverage of S. 852. (Cross-posted at Point of Law.)

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Madison County asbestos: one for the books (O’Connell v. Georgia-Pacific)

Even Madison County juries have their limits it seems.

Anita O’Connell claimed that her mesothelioma came from asbestos from washing her husband’s and children’s laundry. Perhaps. But none of her three sons who worked for her father whose clothing she washed would testify in support of that. Instead, a fourth son, Michael O’Connell, who didn’t work for her husband’s plastering business, sought to blame Bondex International and Georgia-Pacific.

The plaintiff claimed the joint compound caused Anita O’Connell’s asbestos exposure because she shook her son’s clothes before laundering them.

The supplier for the O’Connell plastering business testified that only plaster was sold to the O’Connell business, not joint compound. The supplier also testified that he never carried the Bondex brand.

Michael O’Connell testified he remembered seeing silver Georgia-Pacific cans of joint compound, but that company’s cans were not silver during the period O’Connell claimed to have worked with drywall.

Adding chutzpah upon chutzpah, plaintiffs’ attorney Charla Aldous of Baron & Budd asked for $10 million in damages for the 84-year-old plaintiff. The jury awarded nothing. (Brian Brueggemann, “Madison County jury rejects woman’s plea”, Belleville News-Democrat, Mar. 2; Steve Gonzalez, “Jury reaches defense verdict in Madison County trial”, Madison County Record, Mar. 2; Friable Thoughts blog, Mar. 2).

Long-time readers may nod knowingly and think of the infamous Baron & Budd witness-coaching memo, which I have posted in full on the Liability Project’s “Documents in the News” page.

Many many more links after the jump.

Read On…

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Restaurant can’t oust neo-Nazi patrons

Not according to the ACLU of Southern California, at least. That’s the apparent lesson of a 1986 incident which drew little publicity at the time, but which David Bernstein recently investigated. The proprietors of the Alpine Village Inn in Torrance, Calif. were understandably outraged when a group of four customers came in wearing swastika pins and other Nazi regalia. It asked them to leave, but they refused and so it called the cops; its reward was to be sued by the ACLU under California’s Unruh Act for its failure to provide public accommodation to the Hitler fans. According to Bernstein’s informant, the restaurant’s insurer paid a settlement. (Feb. 24)

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“Not About The Money” Files: Ronan Public Schools lawsuit update

Updating our Nov. 8, 2004 entry, plaintiffs’ attorney Gary Zadik made our favorite argument when asking a jury to award $1.7 million of damages against the school district for the parents of schoolchildren who cut class and died after imbibing a half-gallon of vodka.

“This case is not about money,” plaintiffs lawyer Gary Zadik of Great Falls told the jury in his closing statements Wednesday morning.

Members of the jury apparently took him at his word, because they awarded none.

The parents argued that if the school had called them earlier, they would’ve been able to find the boys, a claim that is somewhat weakened by the fact that their bodies weren’t found until three days after they died, as well as the fact that one of the parents was called. Justin Benoist’s mother testified that “she was an alcoholic, that one of her sons had recently died in a fire because he had passed out drunk at a party and failed to smell the smoke, that none of her surviving children remained in her legal custody, and that Justin at age 11 already had a probation officer supervising him because of behavioral problems.” (John Stromnes, “Jury finds Ronan School District not liable for drinking deaths of two boys”, The Missoulian, Mar. 2; John Stromnes, “Trial over boys’ drinking deaths opens”, The Missoulian, Feb. 28).

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Pellicano scandal, cont’d

More prominent L.A. lawyers continue to be named as “persons of interest” in the investigation of wiretapping and privacy invasion, and at least half a dozen of them have retained criminal counsel on their own behalf. (WSJ law blog, Feb. 27; Greg Krikorian and Andrew Blankstein, “Feds Working New Pellicano Indictments”, Los Angeles Times, Mar. 1). And here come the civil suits, with an emphasis naturally on targeting deep-pocketed bystanders: attorneys Brian Kabateck and Matthew Geragos are seeking class-action status on behalf of Pellicano wiretap victims in a suit against AT&T, formerly SBC (Justin Scheck and Kellie Schmitt, “Lawyers Rev Up for Hollywood Wiretapping Case”, The Recorder/Law.com, Feb. 28). ” More coverage: Feb. 18, Feb. 16, etc.

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When jurors bring expertise

The decay of occupational exemptions to jury service means that more doctors, nurses and other persons with considerable professional expertise are making it into jury pools and even sometimes being allowed to sit as jurors, at least assuming that lawyers decline to use challenges to exclude them. One Nassau County, N.Y. judge even recalls “presid[ing] over a business dissolution case in which the lawyers allowed an accountant to sit on the jury. ‘Why they left the accountant on I’ll never know, but the lawyers were quite satisfied,” he said. (Imagine — relevant life experience not being screened out in the course of the jury selection process!) Oregon prosecutor Joshua Marquis, an official with the National District Attorneys Association, does harbor a prejudice against one particular kind of professional called to jury service, namely lawyers themselves. “They’re terrible jurors — I should hit myself in the face with a stick if I ever let a lawyer on a jury again.” (Leonard Post, “Dealing With Jurors’ Expertise”, National Law Journal, Dec. 23).

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Future sexually-frustrated-fan celebrity class actions

1) Ever since a tabloid story broke claiming that former American Idol runner-up Clay Aiken was gay, there have been rumors that fans would file a class action lawsuit alleging consumer fraud. To date, noone has been that ridiculous (though the suit would be no more ridiculous than many successful consumer-fraud class actions), but the New York Post reports that gay-bashing fans have filed an FTC complaint alleging that they were misled as to the star’s sexuality by record-company promotions. If the theory holds water, celebrity magazines could use consumer-fraud-class-action civil discovery to uncover whether maverick movie stars have been engaging in risky business in the closet, with the firm chance that a few good men could suffer collateral damage to their privacy. (Other discussion of civil discovery and privacy: Feb. 9.)

2) The Smoking Gun has published correspondence from Jessica Alba’s attorneys threatening Playboy with suit over using her image on the cover. Without getting into the merits of her claim, I was entertained by the argument that Alba’s presence on the cover implied falsely that she would appear nude within the magazine (in fact, the magazine merely had a publicity still of Alba inside). One wonders if, should Alba fail to win an injunction against magazine distribution, there will be a creative class action from readers alleging consumer fraud by the failure to meet the implicit promise of photos of a naked Alba. (h/t to Slim)

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“Tripped over your mail? File suit”

“You never know when a flower pot, stray cat, man in a monkey suit or cunning birthday package might reach out and grab your ankle. But, if the latter happens, suing is probably the best option. It is definitely the mailman’s fault you were not watching where you were going.” (Kristie Busam, University of Alabama Crimson White, Mar. 1). Howard Bashman has MSM press coverage of the Supreme Court decision that we covered Feb. 23.

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Nancy Grace

The CNN legal commentator, famous for her throw-away-the-key opinions on criminal justice matters, is perhaps equally famous for her own backstory as a crime victim. But how well does her version of that story stand up to scrutiny? (Rebecca Dana, “Did Nancy Grace, TV Crimebuster, Muddy Her Myth?” New York Observer, Mar. 6). Take it away, Prof. Bainbridge…

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