- Can reformers declare victory? [Point of Law; American Lawyer]
- Mississippi Supreme Court reaffirms: no litigation tourism for asbestos plaintiffs. [AP/Commercial Dispatch (h/t SB); Coleman v. A-Bex; Albert v. Allied Glove]
- More asbestos frauds in the Wall Street Journal. [Point of Law]
- LA judge will decide whether to censor Borat DVD. Earlier: Nov. 9. [Reuters]
- Guacamole dip fallout: “Is the goal here to get guac with more avocados or to create more work for the abogados?” Earlier: Dec. 6. [LA Times via Bashman]
- Quelle surprise: the tobacco settlement money is being treated by Missouri like general revenue, i.e., a tax. [Mass Tort Litigation Blog]
- Quelle surprise: Stephanie Mencimer caught exaggerating case for plaintiffs’ lawyers. [Point of Law]
- Epstein: What’s good for pharma is good for America. [Boston Globe]
- Heather Mac Donald: No, the cops didn’t murder Sean Bell. [City Journal]
- Well, suing several major Ontario Jewish organizations and releasing a press release that they’re all part of the Israel lobby is one way to convince people that you’re not a bigot, right? [Bernstein @ Volokh]
- The case against (and for) Jeff Skilling helps explain why CEOs are paid so much. [Point of Law; Kirkendall]
- Lame-duck Republican Congress wasting final hours with committee hearing on contract dispute, but one of the parties is famous, so it’s okay, right? [Kirkendall]
- Environmental group on the web speaks out against Dihydrogen Monoxide. [DHMO.org]
- The problem of Institutional Review Boards. [Carpenter @ Volokh; Point of Law]
- Will Danny DeVito play Gretchen Morgenson in the movie? NY Times and Sen. Grassley get snookered by unsuccessful trial lawyer. [Ideoblog; WSJ]
- New York Times web commenters are unimpressed with the fact that Nintendo needs to warn Wii users not to throw their remote. [The Lede]
- “The conventional wisdom is that we would be better off if politically powerful leaders were less mediocre. Instead, my view is that we would be better off if mediocre political leaders were less powerful.” [Kling @ TCS Daily via Kirkendall]
- “If Democrats allow lower prices here, they may even have to tolerate Wal-Mart.” [WSJ letter @ Cafe Hayek]
- Lindsay Lohan wants to enlist Al Gore in a lawsuit against her former assistant. [Defamer; Access Hollywood]
- Hey, we’ve slightly tweaked our right-hand sidebar. What do you think?
Archive for December, 2006
Killer’s mom sues high school
Birmingham, Ala.: “Felicia Reynolds, the mother of former Hoover High School student Ricky Reynolds, has filed a $5 million claim against the city of Hoover, saying her son would not have fatally stabbed classmate Sean Joyner had her pleas for help been heeded. Ricky Reynolds is in a Louisiana prison serving a 20-year manslaughter sentence for the November 2002 incident at the high school.” (Robert K. Gordon, “Killer’s mother sues Hoover”, Birmingham News, Dec. 7).
Better hector that patient, doc, or else
“An article in the journal Tobacco Control suggests suing doctors for failing to nag patients who smoke about quitting.” (Jacob Sullum, Reason “Hit and Run”, Dec. 6; MedPundit, Dec. 6; Randy M Torrijos and Stanton A Glantz, “The US Public Health Service ‘treating tobacco use and dependence clinical practice guidelines’ as a legal standard of care”, Tobacco Control (British Medical Journal), Dec. 2006).
ADA: “The New Crips”
We’ve linked in the past to a lot of excellent investigative journalism on the disabled-rights filing mills that have blanketed whole business districts in California and elsewhere with accessibility complaints that quickly convert to cash demands. (Some examples: Carmel (Calif.) Pine Cone on Jarek Molski and Thomas Frankovich, blogger George Wallace on Jerry Dolan, CNN on George Louie, among others; and I might as well promote my own 2004 effort for City Journal). Among the most riveting of the bunch appeared this fall in Southern California’s Orange County Weekly. (R. Scott Moxley, “The New Crips”, Orange County Weekly, Oct. 13). A few highlights:
* “Lawyers familiar with [wheelchair user David Allen] Gunther’s activities estimate he’s taken more than $400,000 in the last 36 months, mostly from mom-and-pop shops in Garden Grove, Anaheim, Fountain Valley, Orange, Tustin, Buena Park, Stanton, Seal Beach, Santa Ana, Dana Point, Huntington Beach and Los Angeles. If true, that’s quite a haul for a man who has spent most of his adult life unemployed, according to records obtained by the Weekly.”
* One of the first targets of Gunther’s suits, a flower seller in Anaheim, fought back, pointing out to a judge that she was herself wheelchair-bound and that her shop had a ramp. Gunther’s suit was dismissed, with no apology; “on the day Gunther said he drove to Gibson’s flower shop, he claimed in separate legal filings that he also wanted to patronize Gibson’s neighbors: a massage parlor, a dental office and a palm reader.” He got money from the massage parlor but not from the palm reader, who like the flower seller pointed out to Gunther’s lawyer that he did indeed have a ramp.
* “A Weekly investigation traced Gunther’s activities around the western U.S. during the last quarter of a century, uncovering evidence that not only has he exaggerated his reliance on a wheelchair, but he’s also whitewashed his own history of chronic unemployment, multiple drug addictions, narcotics trafficking, assaults, petty thefts, burglaries, a decade of missed child support payments, and more than a dozen arrests and stints in jail.”
* Gunther’s lawyer is none other than longtime Overlawyered favorite Morse Mehrban, (Nov. 4-5, 2002, Mar. 12, 2004, Jul. 9, 2004). Faced “with a discovery demand for the details of Gunther’s ADA settlements, Mehrban resisted for weeks, arguing that the information was ‘confidential and proprietary.’ Said Mehrban, ‘There is nothing to be gained by examination of the documents.’ Eventually, he told a judge that the issue was moot. He routinely destroys all Gunther’s paper records and erases the memories of his office computers, he said.”
* Nor is it possible for members of the outside public or media to attend the monthly meetings of Equal Access Now, a group Gunther has set up to promote access complaints. “‘Sorry, it’s private,’ said Gunther. ‘I teach disabled people about their rights.’” Gunther often files actions in concert with three other wheelchair users, each of whom claims the $4,000 per violation entitlement.
* After ending a client relationship with his own former lawyer, Gunther sued, claiming the lawyer’s bathroom was unaccessible. The lawyer’s staff said that Gunther not only had used the bathroom without incident but that he had in fact comfortably walked into and out of the office on repeated visits.
* At a meeting of some of Gunther’s victims in Santa Ana, “Jin Kim, owner of a barbecue restaurant at 17th Street and Grand Avenue, cried. He recounted the shock of getting the lawsuit without warning, how Mehrban had coldly refused to negotiate despite pleas, and that he had to sell his wife’s ring and a vehicle to pay Gunther $16,000—and his own attorney another $4,000 in fees. His crime? His restroom mirror was allegedly mounted a few inches too high and the door was a few pounds too heavy to push.”
* And his lawyer’s own offices? As it happens, they’re up a steep flight of steps in Koreatown: “Mehrban says it would not be practical to make his office accessible to the handicapped.”
The whole article, again, is here. Note that the California legislature has shown no discernible interest in amending the Unruh Act so as to curb this kind of entrepreneurial activity. Note also that the “ADA Notification Act”, a proposal in Washington aimed at curtailing cognate abuses based on the federal ADA, was unable to attain any serious traction even in the supposedly pro-business Republican Congress now drawing to its close.
P.S. Gunther’s activities also figured in the notable and recently decided case of Gunther v. Lin, discussed by Ted Dec. 1.
Congress vs. open trade
Among the first casualties of the lurch toward protectionism on Capitol Hill: the interests of transatlantic air travelers. (Daniel Drezner, Dec. 6; via Reynolds).
P.S.: for the underlying news report, see Don Phillips, “U.S. Withdraws Plan on Foreign Investment in Airlines, Disrupting Open-Skies Treaty”, New York Times, Dec. 6.
“One Case To Kill Them All”, R.I.P.
The suits seeking to make investment firms pay for failed tech IPOs (initial public offerings) can’t be tried as a class action, the Second Circuit rules. John Carney at DealBreaker explains the title (Dec. 6). “The ruling was a devastating blow to the embattled securities class-action powerhouse Milberg Weiss Bershad & Schulman, which is a co-leader for the plaintiffs.” (Julie Creswell, “Court Rejects Class Action Against Banks”, New York Times, Dec. 6).
Academic freedom update: Loftus suit argued before California Supreme Court
Elizabeth Loftus dared to write an article in the Skeptical Inquirer critically examining questionable claims of recovered memory abuse (Aug. 26, 2004); justices seemed skeptical of the argument Nicole Taus shouldn’t be allowed to sue for Loftus’s alleged misrepresentations to obtain information, which scares media lawyers: “Although journalists generally identify themselves truthfully, ruling for Taus would ‘create a motive’ for news sources unhappy about their portrayals ‘to belatedly contend that the reporter obtained the information by misrepresentation,’ lawyers for the media argued.” Loftus denies lying, but, at the dismissal stage, the Court assumes the allegations of the complaint are true. Whether Veronica Mars would be sued into next week is left as an exercise for the reader. (Maura Dolan, “High court considers privacy issue”, Los Angeles Times, Dec. 6).
Warning Label Generator
Lots of humorous possibilities here, as also at the companion Warning Sign Generator. Send us your best efforts (via NAM ShopFloor).
“Is caffeine addictive? A review of the literature”
AEI’s incomparable Sally Satel prescribes a soothing decaf for some of the public-health agitators who are beginning to rattle their cups about Starbucks and Big Cola enslaving our children and the like. (American Journal of Drug and Alcohol Abuse, Dec. 6). See Aug. 18-20, 2000, Jun. 1, 2004, Dec. 5, 2005, May 29, 2006.
ADA week: Dark v. Curry County
One reads a lot about how a conservative judiciary has supposedly pulled the teeth of the Americans with Disabilities Act. Particularly noteworthy is a series of decisions in which the Supreme Court, faced with employment claims in which safety might be at risk (from commercial pilots with poor vision, for example), ruled against the employee’s claim and widened the effective range of employer discretion.
No doubt there is some truth to the idea that the high court’s employment decisions have curbed the ADA’s expansionary momentum. But then there are the cases like that of Dark v. Curry County, decided by the Ninth Circuit this summer. Robert Dark, an epileptic from youth, operated heavy construction equipment for the road department of an Oregon county. One morning he experienced an “aura”, a sensation which often presages a coming seizure, but did not inform anyone at the job about it when he reported for work. Later that day, he did in fact experience a seizure. An accident was avoided because a co-worker managed to seize control of the machine Dark was operating before it could do any damage.
The county terminated Dark, with emphatic language about how his medical condition prevented him from safely accomplishing his duties. A lower court agreed with the county, but a three-judge Ninth Circuit panel reinstated his suit. Its key points: the county did not adequately give consideration to reassigning Dark to light-duty positions, in particular those that it might have anticipated would “become available within a reasonable period” following his removal from the machinery job, even though the jobs were not in fact open at the time. And although the county placed considerable weight during the dispute on Dark’s misconduct in not informing his supervisors or co-workers about his indications of a possible impending seizure, it did not cite that reason at the time in dismissing Dark, instead (and more diplomatically) reciting the safety concerns of a prospective nature.
The case (available at FindLaw here in PDF format) sparked considerable discussion on the web, including Phillip J. Griego (to whom the above discussion is indebted), HRHero/M. Lee Smith, and Proskauer Rose. Robert Loblaw at Appellate Decisions writes (Jul. 6):
The ADA often places employers in a difficult position, since they have knowledge of the dangers of employing a particular individual but cannot always take steps to address those dangers. Indeed, this case is similar to last year’s Pacific Bell case, which involved a home repair technician who had spent time in a mental hospital after being found not guilty of attempted murder by reason of insanity (my coverage here). As in that case, Curry County would probably be found liable in tort if Dark injured somebody while on the job, due to its knowledge of his condition. Indeed, Curry County is even more likely to be on the hook if Dark has another seizure that results in injury, since he already had one near-miss on the job. But as far as the ADA is concerned, Curry County’s potential tort liability is simply not relevant.
And before assuming that this is just one of those wacky Ninth Circuit cases, note (as does Ross Runkel) that the author of the opinion is the highly regarded conservative jurist Diarmuid O’Scannlain. Maybe it just is an extreme law, with no judicial activism needed to get extreme results out of it.