Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2006

An Avoidable Toy Recall

A child’s toy called Magnetix has caused a number of accidental deaths, resulting in a recall by the Consumer Products Safety Commission and at least one law suit.

Product liability lawyer Sim Osborn, an attorney for three families who are filing civil suits against the makers of Magnetix, makes the expected public pronouncement: “We want to make these companies think twice the next time they are tempted to put profits before the lives of innocent children.”

Magnetix is a construction activity based on a combination of steel balls and magnetic rods, similar to Connex.

The magnetix website’s customer message board contains this exchange from March of 2005:

Karizma: “I am just wondering what materials are in the balls? Should I be worried about anything? It went down her throat, so the choking hazzard is not there…but I need to know if there are anything to the balls that could be hazzard as to her system? ”

Dr. MagnX: “The Balls are Non Toxic. They are made out of Solid Steal and are coated with Zinc.”

Karizma: “Thank you so much! I sure hope she passes it on her own! “

It appears that adequate warning was ignored.

Tending the Garden While the Owner Is Away

Greetings from Boston, Overlawyered readers. Walter has invited me to guest this week as he attends to business, and suggested that I make a brief introduction. I have practiced law in the Boston area for twenty-five years now, in both private and public sectors, beginning as a fledgling zoning lawyer on Cape Cod in the 1980’s. I served three terms in the legislature during the 1980’s and was also General Counsel to a large independent authority for a few years in the early 1990’s. I am now a “wizzened” zoning lawyer in Boston. My specialty is permitting cell towers, so you know that all of the hats I own are black. I thank Walter for this oportunity and shall do my best to make the most of it. Feel free to visit me at Wave Maker any time.

The irrationality of non-economic damages

Unlawfully detained for fourteen years because of a crime you didn’t commit? $14.5 million in damages.

Unlawfully detained for fourteen minutes because of a crime you didn’t commit? $1.2 million in damages, plus potential punitives.

If the fairness of a justice system can be evaluated by whether it treats like cases alike, the status quo fails. (“Jury returns $14.5 million verdict against city”, AP, Mar. 30; Mark Rice, “Jury awards woman $1.2M”, Columbus Ledger-Enquirer, Apr. 1).

If defective, return in original envelope

“A judge considering a proposed settlement of a class action lawsuit against a popular DVD rental service, Netflix, retreated yesterday [Thursday] from his threat to sharply cut the fees awarded to lawyers in the case.” Netflix had increased its estimate of the number of customers it expects to take advantage of the settlement. (Josh Gerstein, “Netflix Judge Changes Mind On Lawyer Fees”, New York Sun, Mar. 31). Earlier: Mar. 23, etc.

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April Fools in a litigious age

In case you were excited about Google Romance, “[you fell] for our April Fool’s joke, in which case ha ha, wasn’t that amusing and harmless and mostly in good taste and not all psychologically damaging under various and sundry aspects of contemporary tort law, please don’t sue us.”

I leave to others the question of whether a publicly traded company can issue a deadpan April Fool’s press release without risking securities-law liability.

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Bounteous bankruptcies: Northwest, Delta

Carolyn Elefant (Mar. 26) wonders how one law firm managed to rack up a bill of more than $183,000 for legal research in the Northwest bankruptcy. “Complicated bankruptcy cases commonly generate big fees for lawyers — so it might not be surprising that, by the time the two airlines exit Chapter 11, the tab could be $276 million or more.” (Harry R. Weber and Joshua Freed, “Legal Fees Pile Up in Delta, Northwest Bankruptcies”, AP/Law.com, Mar. 28).

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Texas taverns, cont’d

According to State Sen. John Whitmire (D-Houston), the new program to arrest intoxicated Texans in bars whether or not they show any inclination to drive (see Mar. 23) is justified because it nips in the bud potential future misconduct: “Even though a public drunk is not planning on driving, that could change in an instant,” he said. “There is certainly potential danger.” (Pete Slover, “Lawmakers to review bar busts”, Dallas Morning News, Mar. 25). Glenn Reynolds reacts disrespectfully (Mar. 31).

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Gym didn’t have defibrillator

…so a Florida jury ordered it to pay $619,650 to the family of a Fort Lauderdale customer who had a heart attack. A spokesman for L.A. Fitness says it wasn’t common, let alone legally mandatory, for health clubs to stock defibrillators in 2003, when the incident occurred. (Jon Burstein, “Gym told to pay $619,650 in man’s death because it didn’t have a defibrillator”, South Florida Sun-Sentinel, Mar. 30)(hat tip: Florida Masochist).

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School choice, the special-ed way

Regarding our Mar. 24 item on demands for accommodation of special-ed students, which has touched off a considerable discussion in comments, Warren Meyer at Coyote Blog makes the important point that special ed represents one of the few sectors in which the legal system has shown itself to be open to parental demands for school choice — unfortunately in a way that is far more expensive than ordinary school choice programs, since the amount of money that “follows the child” is left dangerously open-ended. Call it “school choice for legally savvy parents” (Mar. 29).

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Canadian magazine sued over cartoons

Following up on earlier threats (Feb. 14, Mar. 19), Syed Soharwardy has brought a complaint against the Western Standard before the Alberta Human Rights Commission over its publication of the Mohammed cartoons. Ezra Levant, publisher of the Western Standard, explains (Mar. 29) that defendants in the “human rights” tribunal do not benefit from the protection that the loser-pays principle affords most defendants in Canada against groundless or nuisance litigation:

even if we are successful in the human rights commission, we will not be compensated for our legal fees. It’s not like a real court [! — W.O.], where an unsuccessful plaintiff would be ordered to pay a successful defendant’s costs. So even if we win, we lose — the process is the penalty. Worse than that, the radical imam who is suing us doesn’t have to put up a dime — the commission uses tax dollars to pay lawyers and other inquisitors to go at us directly. Human rights tribunals themselves are illiberal institutions.

More: A. Alan Borovoy, “Hearing complaint alters rights body’s mandate”, Calgary Herald, Mar. 16 (PDF).

In other cartoon-jihad news, it appears that giant book retailers Borders and Waldenbooks have been Boston-Phoenix-ized (see Feb. 10); they say they won’t carry the April-May issue of the magazine Free Inquiry, which reprints Mohammed cartoons, for fear of Islamist violence against their employees and customers (Carolyn Thompson, “Borders, Waldenbooks Won’t Carry Magazine”, AP/San Francisco Chronicle, Mar. 29). Free Inquiry is actually worth subscribing to quite aside from this episode; you can do that here.

P.S. Eugene Volokh has a thread discussing the extent to which Borders/Walden might be subject to later tort liability if its sale of the magazine led to violence that harmed customers (Mar. 30). SupportDenmarkSmall3EN.png

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