Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for February, 2007

Major SCOTUS punitive damages ruling

Some initial thoughts on Philip Morris v. Williams from Jim Copland at Point of Law. By a 5-4 vote, in an opinion by Justice Breyer, the Court held that a punitive damage award cannot be based in part or whole on a jury’s desire to punish harms committed against non-parties to the litigation, although (a fine distinction, if indeed a tenable one) such harms may be taken into account in determining the defendant’s degree of reprehensibility.

More: Ted comments and rounds up links, also at PoL. Roger Parloff (Feb. 20) calls the majority’s distinction “narrow” and “confusing”. And Eric Turkewitz offers one view from the plaintiff’s side (“hair-splitting”; majority’s “Clintonian parsing…was too much for four of the justices”).

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February 20 roundup

  • Trucker-friendly Arizona legislature declines to ban naked lady mudflaps [NBC4.com; Houstonist]
  • Crumb of approbation dept.: I’m “[not] as unreasonable as most of the tort-reform crowd” [Petit]
  • Sponsors of large banquets in D.C. must pay to have a paramedic on hand even when the banquet crowd consists of doctors [ShopFloor]
  • Homeowner’s insurance doesn’t cover homewrecking: umbrella policy doesn’t create duty to defend lawsuit claiming the insured broke up someone’s marriage (Pins v. State Farm (PDF), S. Dak., Mayerson via Elefant)
  • New York mag on RFK Jr.: Is there some law saying all press profiles of America’s Most Irresponsible Public Figure® must be weirdly softball in nature and glide over his embarrassing book and rants, his Osama-pig farm lunacy, his anti-vaccine humbug, his trial-lawyer entanglements and even the wind farm flap?
  • Australia court rules Muslim prison inmate suffered discrimination and deserves money for being served canned halal meat rather than fresh [The Australian]
  • High medical costs and their causes: am I listening? [Coyote]
  • Economists may puzzle their heads over the ultimate incidence of business taxes, but in Wisconsin it’s whatever Gov. Jim Doyle says it is [Krumm via Taranto]
  • Feds may punish Red Sox pitcher Matsuzaka for doing a beer ad in Japan, where it’s perfectly legal for athletes to appear in such [To The People]
  • Guns in company parking lots: still one of the rare issues where the ABA manages to be righter than the NRA [AP/CBSNews.com; see Apr. 6, 2006]
  • Thanks, NYC taxpayers: Brooklyn jury awards $16 million against city in case where drugged-up motorist jumped sidewalk and ran over pedestrians, later blaming the accident on a city sanitation truck [seven years ago on Overlawyered]

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Nancy Grace (& lawprofs) on the Duke case

K.C. Johnson has assembled the details (Feb. 19) on the CNN/Court TV commentator’s scurrilous handling of the lacrosse rape allegations. For more on Grace, see Mar. 1, 2006, as well as Legal Blog Watch, May 4, 2005, and Suz at Large, Mar. 2, 2006 (quoting Prof. Bainbridge’s pungent assessment).

The legal professoriate does not escape unscathed from Johnson’s attention, either. He is a particular critic (e.g., Jan. 21) of the televised pronouncements on the case of New England School of Law professor Wendy Murphy. And recent assertions by South Texas College of Law professor Kathleen A. Bergin on the Feminist Law Professors blog (Jan. 29, declaring the players “far from ‘innocent'” whether or not a rape is proven in court) fail to stand up to critical scrutiny, Johnson says (Feb. 18). (More: Cernovich).

P.S. And here’s the Saturday Night Live parody. Plus: Ambrogi, Bainbridge.

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Social life of a blawger

On Friday I attended New York Law School’s conference “Writing About the Law: From Bluebook to Blogs and Beyond“. Aside from the considerable merits of the program itself (PDF), organized by NYLS’s Cameron Stracher, I met a lot of blawgers, lawprofs and others whose work I’ve been reading for years. At lunch, when Northwestern lawprof Jim Lindgren (Volokh Conspiracy) kindly suggested I join his table, I found myself seated between David Lat (Above the Law) and Ann Althouse; the rest of the table consisted of NYLS professors Jethro Lieberman (The Litigious Society) and Arthur Leonard, and publisher/editor Bernard Hibbitts of Jurist. Earlier in the day, I met Paul Caron (TaxProf), Jack Balkin (Balkinization), and Larry Solum (Legal Theory Blog), as well as catching up with old friend Randy Barnett (Volokh). For more on the program, see Larry Solum’s posts here, here and here, David Lat’s here, here and here and Ann Althouse’s here and (Times Select) here.

On Jan. 28, I attended the pre-launch party in Manhattan for BlawgWorld 2007, a volume produced by the TechnoLawyer people which pulls together a sampling of 2006 posts from 76 law-related blogs, rather like a blog festival in print. Among those I finally met in person was George Lenard of George’s Employment Blawg; I also got to say hello to a number of other blawgers I’d run into previously, including Bruce MacEwen of Adam Smith, Esq. and Arnie Herz of Legal Sanity. I can be spotted in a few of the pictures from the event, such as this one, this one and (seeming to pound my hand against the wall, though I was not in fact frustrated) this one. Clearly I should get out more often.

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Treating the morbidly obese (redux)

Dr. Anna Maria Vatura saved the life of a 400-pound man thrown from a motorcycle in a high-speed accident, but his obesity made it impossible to stabilize him with appropriate cervical spinal precautions; as a result, he ended up quadriplegic, for which he sued the doctor. In a lengthy piece for the Feb. 16 Medical Economics, she details the medical care and resulting lawsuit:

It was profoundly enlightening to realize that my career was in the hands of 12 strangers who were expected to understand and interpret in three weeks what had taken me 10 long years to learn; and even longer to practice and internalize. Maybe it was akin to a 400-pound man coming to me as a stranger, asking that I save his life and keep it as it was before he was thrown off that motorcycle going 40 miles an hour.

I testified in court for four grueling hours. I was well prepared but nevertheless terrified I would say something wrong. I felt the need to repeat what took place over and over again just to make sure the jurors understood the sequence of events. The plaintiff’s attorney—attractive, articulate, and dressed in an expensive suit—tried every trick in the book to get me to slip up, to say something she could twist into a lie. Anything she could to make me look inept, inexperienced, evil. Yes, evil. During closing arguments she played a scene of the Lord of the Rings: The Return of the King and equated the doctors in the case to the monsters. I sat there astounded that someone would actually say that I was an evil person wreaking havoc on innocent people behind the guise of a medical license.

Vatura calls for more doctors to refuse to settle cases where they’ve done nothing wrong. (via Kevin MD)

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Ordering cheesesteaks in English, cont’d

Updating our Jun. 12, 2006 entry: “The Philadelphia Commission on Human Relations notified Geno’s owner Joey Vento this week that it had found probable cause that his sign urging patrons to order in English is discriminatory. The next step is to schedule a hearing to settle the dispute or to escalate the charges against the owner of the South Philadelphia sandwich stand.” Vento, who has enlisted on his behalf the Southeastern Legal Foundation, the conservative public-interest law outfit, says he has never actually declined anyone’s order because it was not made in English, but the commission contends the sign could nonetheless make non-English-speakers feel unwelcome or discriminated against. (Andrew Maykuth, “Stakes get higher for Geno’s”, Philadelphia Inquirer, Feb. 9).

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Update: Pacenza v. IBM–Lawsuit alleges Internet sex chat addiction is entitled to ADA protection

James Pacenza’s $5 million lawsuit against his employer for firing him for seeking cybersex at work is still pending today after being filed in 2004. It first got coverage in Business Week and Overlawyered in December, was picked up in News of the Weird a few weeks ago, and then covered by the AP today (h/t W.F.). Pacenza blames his sex- and Internet-addiction on his Vietnam War service and triggers from the Gulf War; as evidence that he should be rehired, he cites to his obscene phone calls to strangers and visits of prostitutes. We have the major filings:

I’m inclined to be mildly sympathetic to Pacenza’s situation (as opposed to his lawsuit); a chat-room is hardly more disruptive to productivity than an Ebay visit, and Pacenza’s largely automated job had a lot of waiting time. But the employment-discrimination laws are not a civil-service review of whether a firing was a good management decision: IBM’s rationale for firing Pacenza was in response to employees complaining that the chat-room was sexually offensive after Pacenza had been previously warned about visiting pornographic sites; IBM was in a damned-if-you-do, damned-if-you-don’t situation because of the risk of a sexual harassment lawsuit, and failure to act against Pacenza might’ve been used against it in other litigation as evidence of a “pattern or practice” of condoning sexually offensive activity at work.

(Updated to note earlier Overlawyered post.)

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Update: Streaming-media patent troll goes respectable?

The Electronic Frontier Foundation in 2004 derided Acacia Technologies Group’s claims of ownership over streaming-media technology as “laughably broad” (see Aug. 17, 2004), but the firm has prospered since then through licensing deals with big companies. It hasn’t had to face its toughest courtroom challenges yet, though. (Xenia P. Kobylarz, “Extreme Makeover: From Patent Troll to the Belle of the Ball”, IP Law & Business, Feb. 15).

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