Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for December, 2006

Update: Sudden acceleration: litigation springs eternal

In 1995, 70-year old Marlene Fett pressed the wrong pedal on her Lincoln Town Car, and smashed into a carousel in front of an Arkansas Wal-Mart, killing one boy and severely injuring his brother. The Chapman family settled with Fett, and blamed Wal-Mart and Ford, Wal-Mart on a theory that it should have anticipated the possibility of a car hitting a merry-go-round at 30 mph, and Ford on that old plaintiffs’ lawyer claim of “sudden acceleration,” a “defect” that somehow is six times more likely to strike elderly drivers. The case made the front page of USA Today in 2004 (resulting in an Apr. 19, 2004 Overlawyered story), though the newspaper kindly noted the lack of science behind the claim:

Little Rock attorney Sandy McMath, who is representing the Chapmans, says the Town Car’s cruise control put Fett on a “rocket ship to Mars” after she pulled out of her parking place. He petitioned NHTSA to investigate what he says is a defect in Ford and Lincoln models’ cruise control that causes the accelerator to stick.

In a lengthy 1999 [sic] report denying McMath’s petition, NHTSA investigator Bob Young wrote that even if such an occurrence took place and didn’t leave evidence of a mechanical malfunction, the situation should be reproducible through in-vehicle and laboratory tests. None of NHTSA’s testing could do so.

The Wal-Mart theory was similarly bogus, and refuted when an expert demonstrated that the plaintiffs’ proposed safety measure wouldn’t have stopped the speeding car. (For Illinois’ take on premises liability for auto accidents: Jun. 23.) An Arkansas jury also rejected the claims, and, after years of litigation, now the Arkansas Supreme Court has affirmed that decision in a not-especially-interesting Dec. 14 opinion, Chapman v. Ford Motor Co. Wal-Mart and Ford are still out the hundreds of thousands of dollars they spent defending themselves in the lottery litigation, not to mention the cost of bad publicity from sudden acceleration claims and quacks like the Center for Auto Safety trumpeting a non-existent problem. Arkansas acquits itself better than a South Carolina federal court did in a story we covered Aug. 7.

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Update: Which is Most Discriminatory Against Blind Consumers?

Jacob Sullum points (Dec. 19) to a New York Times op-ed piece (Dec. 19) by Marc Maurer questioning the recent decision (last mentioned here by Walter Olson on Dec. 17) holding that U.S. paper currency discriminates against blind money-users.  As Sullum notes:

The piece is puzzling because Maurer is the president of the National Federation of the Blind, which is suing Target for failing to make its website easily accessible to blind people.  Maurer calls the currency case, which is supported by the American Council of the Blind, ‘frivolous litigation’ while characterizing his group’s Target lawsuit as a straightforward application of the nondiscrimination principle.

Eye of the beholder, indeed.

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Juicy Legal Fallout from Cancellation of O.J. Simpson’s Book Deal

The recent decision by News Corp. publishing subsidiary HarperCollins to cancel the publication of O.J. Simpson’s no-tell tell-all If I Did It is generating ripple upon ripple of actual and threatened litigation.  Last Friday, Dec. 15, News Corp. summarily fired Judith Regan, who made the Simpson deal and who would have published the book under her Regan Books imprint.  Notwithstanding her personal responsibility for one of the great debacles of contemporary media, Regan maintains she is the wronged party in the firing and has hired high-profile Hollywood lawyer Bert Fields to take on her former employers.

The Wall Street Journal (Dec. 18 – article is available to non-subscribers) reported yesterday:

But Ms. Regan is fighting back, hiring well-known Hollywood litigator Bert Fields.  ‘They’ve chosen war and they will get exactly that,’ said Mr. Fields in an interview.  ‘She won’t take this lying down.’

Mr. Fields said HarperCollins had used guards to lock down Ms. Regan’s office and had also impounded her personal belongings.  ‘We’ll take appropriate action for everything HarperCollins has done,’ added Mr. Fields.  ‘They chose this path and I hope they remember it.’  A HarperCollins spokesman said that Ms. Regan collected her personal belongings before leaving her office in Los Angeles and that her office in New York wasn’t locked and that her belongings weren’t impounded.

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[T]his past week, tensions flared, although details are still sketchy.  One scenario has it that Ms. Regan made some intemperate remarks to a HarperCollins attorney on Friday afternoon, causing Ms. Friedman to fire her.  The termination was executed with none of the usual corporate pleasantries about "pursuing other opportunities" and long years of service.

In an intriguing sidelight, the WSJ‘s Law Blog (Dec. 18) reports that attorney Fields is, or fancies himself, a Shakespeare scholar and has had two books published on Shakespearean subjects . . . through the Regan Books imprint.  (Oh no, no potential conflicts of interest there; let’s just move along.)

Fields is perhaps best known as the bane of the Walt Disney Company: he represented Jeffrey Katzenberg in the now-settled litigation arising from Katzenberg’s departure from the company, he was consulted by the Weinstein brothers of Miramax when their relationship with Disney cooled, and he has featured prominently in the seemingly never-ending dispute over the rights to Winnie the Pooh.  He has also been a subject of interest, but has not been the object of any criminal charges, in the investigations surrounding wiretapping and other alleged misdeeds by "private investigator to the stars" Anthony Pellicano.

News Corp., in preparing to respond to Regan’s and Fields’ accusations, has taken the unusual step of disclosing the content of otherwise confidential notes taken by one of its own attorneys.  Those notes purport to reveal anti-Semitic remarks made by Regan and claimed by News Corp. to have been the "last straw" leading to Regan’s firing.  (See New York Times, Dec. 19).

Meanwhile, ABC News (Dec. 18, via the publishing weblog GalleyCat) reports that Regan and others at Regan Books, HarperCollins and News Corp. will likely either be named as defendants or at the very least have their depositions taken on behalf of the heirs of Ronald Goldman, who continue to attempt to collect on their civil wrongful death judgment against Simpson.  The Goldman family sees the entire transaction as a further attempt to hide Simpson’s assets:

The lawsuit would likely be based on the legal premise of ‘fraudulent transfer,’ which in this case would contend that News Corp. executives knowingly conspired to assist Simpson in subverting a civil judgment against him.

And so the saga continues, with only the lawyers — and Simpson — seeming to gain from it.

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UPDATE: The Smoking Gun (Dec. 19) has posted a copy of the Goldman lawsuit, to be filed in U.S. District Court in Los Angeles and naming as defendants Simpson and Lorraine Brooke Associates, a corporation created (per the Complaint) to “warehouse Simpson’s intellectual property rights” and to serve as a conduit through which proceeds of those rights might be funneled to evade the Goldman judgment.

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Please Allow Me to Introduce Myself

Hello.  My name is George, and I am a weblogging lawyer.  I would like to take this occasion to thank Walter Olson for the opportunity to guestblog this week at Overlawyered.  I will be posting starting today — I have two posts below and more in the hopper — and will continue here through next Monday (ho ho ho).  Beginning next Tuesday, December 26, Walter promises two special guests who will step in and post you through to the new year.

I am one half of a two-man law firm in Pasadena, California, and I reached my 25th year in practice earlier this month.  That practice has emphasized insurance law (representing both insurers and insureds), professional liability defense (representing veterinarians), general business litigation and civil appeals.  I am more of a "law-lawyer" than a "fact-lawyer," generally happier writing and arguing motions and appeals than in showing off for a jury.

For the past three and a half years, I have maintained two weblogs of my own.  Declarations and Exclusions is devoted to "News and Comment on California Insurance Law, the Politics of Insurance, and Other Risky Business."  My non-law-related interests are vented through a fool in the forest, where I write about books, music, art, poetry, random nonsense, and culture both high and low.

Again, I offer profuse thanks to Walter and to all at Overlawyered, and thanks in advance to Overlawyered readers.  I hope to contribute at least a little something worthwhile to the ongoing conversation on law and personal responsibility over the next seven days.

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Chilling effects

A doctor who is a Metafilter poster analyzed photos of a famous top-gun celebrity (who is a recent father) and speculated that, because the actor had only three incisors, the middle one of which was “freakishly wide”, he might suffer from holoprosencephaly, a genetic defect that can lead to stillborn babies, and in “its more severe manifestions can lead to cyclopia, fusion of the frontal lobes, a primitive proboscis instead of a nose (located above the fusion eyeball), and other grisly abnormalities.” (Further evidence for the hypothesis: “his biological father was mildly retarded and beat him severely as a child. Mild retardation, with or without violent behaviors, can also be part of an incomplete holoprosencephaly syndrome.”) The maverick celebrity apparently had lawyers let Metafilter know that it would be risky business to keep the post up. Perhaps fearing collateral damage from a cocktail of litigation or a war of the entertainment and Internet worlds, Metafilter apparently acceded to the request to remove the speculative post rather than let a few good men be subject to an onslaught of lawyers (h/t).

Update: The commissar vanishes: even the Metafilter meta-post is down now, as is discussion about that removal. Googling reveals other discussion.

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Deep Pocket Files: Jason Lapp and Andrew Brzyski

Mary Brzyski worked for Skidmore Inc., in East Aurora, NY, where she drove a company car that was leased from Chrysler. In 2003, Brzyski loaned the car to her 19-year-old son, Andrew, who rear-ended Jason Lapp’s car, severely injuring him. Longtime readers know what happened next. Irrational New York law (Jul. 14, 2003, Apr. 2, 2004, Feb. 2, 2005) holds the lessor liable, even when, as here, they are three transactions away and never anticipated that a 19-year-old would be driving the car. Skidmore and Chrysler have settled for $8.2 million. (“$8.2 million settlement accepted in crash suit”, Buffalo News, Dec. 15). Congress has stepped in to the breach (Aug. 4, 2005), at least until the litigation lobby undoes that reform.

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Litigious Numismatists Launch First Strike on “First Strikes”

AP reports (Dec. 17 — via the Las Vegas Sun and Insurance Journal) on a new suit in Florida seeking compensation for coin collectors allegedly duped by application of the designation "first strike" to collectible coins: 

[S]ome collectors say the label is misleading and that the coins aren’t special at all.  Now, a Miami attorney has filed class-action federal lawsuits on behalf of potentially thousands of collectors claiming that the "first strike” designation is unfair and deceptive.  More than $10 million in damages could be at stake.

‘Basically, what we are saying is that it’s impossible to know which coin is the "first strike,"” said attorney Charles Lipcon, who filed the lawsuits on behalf of collector Thomas Francisco and others.  ‘People are paying a lot of money and not getting a better coin. Really, there’s no difference between those coins and any other coins.”

Named defendants are two leading coin sellers, Numismatic Guaranty Corp., of Sarasota, Florida, and Professional Coin Grading Service of Newport Beach, California.  Their spokespersons maintain that the companies’ definitions of "first strike" are clear, acccurate and reasonable.  The $10 Million valuation of the claims comes from the plaintiff’s attorneys, and is based on the assumption that the U.S. District Court will grant class action status to the case.

The story makes clear that any knowledgeable collector should know that “first strike” status is by and large an abstract concept: it is “first strike” because people say it is “first strike,” with little or no objective correlation to the physical quality of the coin in question.  In essence, the potential class plaintiffs are disappointed because they have lost the opportunity to share with others — or, more likely, collect a premium resale price from others for — the essentially imaginary extra value that the words “first strike” carry with them.

The suit is a change of pace for the plaintiff’s counsel, the Miami firm of Lipcon, Margulies & Alsina, whose website emphasizes their specialty in bringing suits against cruise lines.

Florida Supreme Court: Forum Shoppers Need Not Fly South for the Winter

Insurance Journal reports that the Florida Supreme Court has rejected an attempt by seasonal residents to apply more favorable Florida rules to their claims under non-Florida auto insurance policies:

‘Snowbirds” and other part-time Florida residents who insure their cars back home cannot make claims under Florida laws that may be more favorable to them than those in their own states, the state Supreme Court has ruled.

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‘Although Florida welcomes its many visitors, whether for short or extended stays, we cannot rewrite their out-of-state contracts,’ Justice Raoul Cantero wrote for the high court.

Interested readers can view the full Opinion [PDF] in State Farm Mutual Ins. Co. v. Roach, Case No. SC04-1313 (Dec. 14, 2006).

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Newspaper owner: remove that window sign or else

Highlights Hair Salon owner Eric Zahm sympathized with workers seeking to form a union at the Santa Barbara News-Press, so he put a sign in his window reading “McCaw Obey the Law”, referring to the paper’s owner, Wendy McCaw. Next thing you know, McCaw’s lawyer, Barry Cappello, fired off a letter to Zahm threatening “appropriate action” if the sign were not taken down, on the grounds that the sign’s message exposed his client to “hatred, contempt and ridicule.” Zahm caved in for fear of a suit and took down the sign. So much for the notion that all newspaper magnates are devotees of freedom of speech (Matt Cota, “Santa Barbara News-Press Owner Threatens Hair Stylist Over Sign”, KSBY, Dec. 15).

More: In the comments, reader “imafish” alerts us to another lawsuit in which Ampersand Publishing LLC, which publishes the News-Press, has sued reporter Susan Paterno, claiming that an article she wrote about the newspaper in the American Journalism Review was a “biased, false and misleading diatribe”; charging her with libel and product disparagement, it asks unspecified compensatory and punitive damages. (Greg Risling, “Publisher Sues Reporter Over Story”, AP/Newsday, Dec. 19).

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