Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2006

“The U.S. Senate Takes On Medical Malpractice Reform”

I’m moderating a panel with this title Monday afternoon at 3 at AEI.

The U.S. Senate has announced that it will be debating new legislation to reform America’s medical malpractice law in early May. Is the Senate likely to pass useful reforms? What types of reform should they consider? What is the appropriate role of the federal government in addressing the issue and what are the potential conflicts between the federal government and the states?

At this AEI event, a distinguished group of panelists will discuss the questions surrounding federal medical malpractice reform. The panel will include Michael S. Greve, the John G. Searle Scholar at AEI and director of the institute’s Federalism Project; George L. Priest, the John M. Olin Professor of Law and Economics at Yale Law School; and Dr. Stuart Weinstein, the current chairman of Doctors for Medical Liability Reform and the Ignacio V. Ponseti Professor of Orthopaedic Surgery at the University of Iowa.

Admission is free.

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Was the Garza Vioxx case fraudulent?

That’s what overwhelming evidence seems to suggest, I write in Point of Law. I ask: does anyone want to claim that the Garza case was an example of the jury system working well?

Also there: Michael Krauss and I criticize the Ninth Circuit’s command to Los Angeles that the Eighth Amendment prohibits them from arresting homeless people in Skid Row for their conduct; why you can’t believe everything you quoted from plaintiffs’ lawyers in the press; Maryland lead paint legislation; and who really outspends whom in ballot battles.

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Model railroader sent $203k patent-infringement bill

Ben Jacobsen, a model railroad hobbyist, wrote open-source software to allow one to connect a computer to their model railroad and control trains with it. KAM Industries, which makes commercial software to do the same thing, has been having their lawyers send him scare letters, including a bill for $203,000 for a license, and filing an FOIA request with his academic sponsor. Jacobsen believes the patent is invalid, and claims to have made his software publicly available before KAM filed for the patent in 2002. (Lenford blog; Jacobsen correspondence).

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Hamby v. Daimler/Chrysler

Roberto Martinez was washing Lori Hamby’s used 1991 Dodge Caravan while Hamby’s two-year-old daughter, Mary Madison Hamby Garcia, was playing inside of the vehicle by herself. The van was parked on top of a long driveway and the emergency brakes off. The key in the ignition in the “on” position so he could play the radio; the doors were open so he could vacuum the vehicle. Martinez was retrieving Windex fifteen feet away when Hamby apparently dislodged the automatic transmission from park. With the ignition key-lock the disabled, the vehicle hurtled down the driveway, killing Hamby when it struck a tree, jarring her from the vehicle, and pinning her beneath the tire, where she died of asphyxiation compression.

This is, an Atlanta jury held, 51% Chrysler’s fault. The theory on which the jury ruled in favor of the plaintiff is on the theory that Chrysler failed to adequately warn of the risk of leaving children unattended in vehicles with the key in the ignition—even though Hamby’s mother, Lori Hamby, only “glanced” through the owner’s manual, which did warn against it. Madison Hamby, who was dead on the scene, was awarded $2.25 million for pain and suffering on top of the $2.25 million for wrongful death. The jury ruled for Chrysler on the funeral expenses, however. Chrysler is appealing. (Greg Land, “DaimlerChrysler to Appeal $3.4M Awarded in Minivan Accident”, Fulton County Daily Report, Mar. 6 (via Prince); DeeAnn Durbin, “DaimlerChrysler ordered to pay family in minivan lawsuit”, AP/Detroit News, Mar. 3; Hamby v. DaimlerChrysler, No. 1:03CV:0937-CAP (N.D. Ga.)).

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BREAKING: California Supreme Court throws out “Friends” sexual harassment suit

We’ve been covering the case with disbelief since 2004 (see Feb. 15 and links therein). Hooray for common sense.

David Bernstein or Eugene Volokh will no doubt have apt commentary at Volokh’s blog. (Update: Advantage Bernstein!)

Lyle v. Warner Brothers Television Productions:

“Based on the totality of the undisputed circumstances, particularly the fact the Friends production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes, we find no reasonable trier of fact could conclude such language constituted harassment directed at plaintiff because of her sex within the meaning of the [California Fair Employment and Housing Act].”

(via Bashman).

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Lott v. Levitt IV

David Glenn, in the Chronicle of Higher Education, has the definitive MSM reporting on the affair. (Permanent link here after Apr. 24.) He finds a mixture of scholars who agree and disagree with Lott on the “replicate” question. And, most notably, he does the first incisive investigation into the “peer-refereed” claim in the second count of the complaint—and makes it seem that Lott might not win that dollar after all. To top it all of it, he’s found a prescient quote from the now-late Otis Dudley Duncan:

“There is no excuse,” he wrote, “for continuing the practice of labeling critics or defenders of Lott’s work with offensive epithets and imputing motives to them. This kind of rhetoric simply obscures or distorts the plain evidence of the public record. Maybe it would help if all parties would imagine themselves in a court, serving as witnesses or attorneys. They would quickly be called down for any ad hominem remarks.”

Separately, Tim Lambert recaps my previous post. See if you can spot the subtle differences.

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Sues to compete in high school race by wheelchair

And wins.

Tatyana McFadden, 16, a sophomore at Atholton High School in Columbia, will be allowed on the track at the same time as the other competitors but will be scored separately under a preliminary injunction granted yesterday in Baltimore by U.S. District Court Judge Andre M. Davis.

McFadden complained that the school’s policy of separate wheelchair races made her “feel left out,” because she would often compete alone after track officials refused to let her share the track with runners because of risk of injury. I look forward to the lawsuit if a competitor is injured: the Post notes that an injury hasn’t happened yet, but that sort of Bayesian analysis never stops 20/20 hindsight. (Jon Gallo and Mary Otto, “Wheelchair Athlete Wins Right to Race Alongside Runners”, Washington Post, Apr. 18) (via Lott). Volokh comments, and there are some good notes in the comment section.

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