- Update to Jan. 5 post: “Gifties” lose t-shirt battle. Amber Taylor is not impressed by Posner’s opinion, though. [Above the Law; Taylor]
- Update to our earlier odometer class action; turns out SAE gives odometers a 4% leeway, so Honda is paying millions for following industry standard. Nissan is still fighting the suit, and other manufacturers will likely be hit. [Gannett/Asbury Park Press]
- $12M for suicide despite hospital workers putting themselves in danger in unsuccessful attempt to prevent death [Birmingham News]
- Electric slide inventor sues YouTubers who perform dance wrong. [CNet (h/t LN)]
- Now the NFL wants to trademark “The Big Game.” [Schwimmer; earlier on Overlawyered]
- NAM blog on punitive damages, likes what I have to say. [NAM blog]
- “Kiss life sciences goodbye if lawsuit bills are passed.” [Detroit News via NAM blog; Manhattan Institute]
- “When Flirting at Work Is Flirting With Trouble” [New York Times]
- AG Lockyer’s office hid millions of dollars of giveaways to trial lawyer donors. [Point of Law roundup of links]
- Maybe it’s time to stop calling myself a fifth-string talking head and recognize that I’m a fourth-string talking head. [Financial Times; Forbes.com; Madison County Record]
Archive for 2007
Wilkes & McHugh sued over alleged Tenn. fee grab
Tampa-based Wilkes & McHugh, which has enjoyed much success filing suits against nursing homes in many states, “is now on the defense end of a suit that contends the firm knowingly violated Tennessee law regarding contingency fees.” Former client Debbie Howard, who hired the firm to sue a Memphis nursing home, says it “engaged in an unlawful scheme to collect 40 percent or 45 percent in contingency fees of settlement amounts, although Tennessee law caps fees to 33 and 1/3 percent in medical malpractice cases. The complaint says the law firm charged the higher and unlawful contingency fee to hundreds of clients in Tennessee.” In its response, the law firm says the complaint is “scurrilous” and based on falsehoods, and says Howard never appealed a Tennessee court order approving the fees. (Liz Freeman, “Tampa law firm faces contingency fees lawsuit”, Naples (Fla.) News, Jan. 14; Scott Barancik, “Firm gets a taste of dish it serves”, St. Petersburg Times, Feb. 17). For more on the law firm, see Mar. 13-14, 2001, Jul. 6, 2005, and Jun. 22, 2006, as well as Scott Barancik, “Law firm’s success against nursing homes has a price”, St. Petersburg Times, Jul. 24, 2004.
“My first DMCA takedown”
Why Philip Morris wants tobacco regulated
The tobacco giant’s alliance of convenience with Rep. Henry Waxman (D-Calif.) is a bootleggers-‘n’-Baptists kind of thing. (Jacob Sullum, “All for Philip Morris”, syndicated/Reason, Feb. 21).
“Will Sue For Food”, cont’d
Kentucky trial lawyers just won’t let up in their po-faced indignation about that innocuous cartoon in the state bar magazine (see Feb. 15 roundup). “‘The cartoon exhibits an indifference to the rights of all Kentuckians to access the justice system — the very system the KBA is charged with preserving on behalf of its members and their clients,’ Bowling Green lawyer Steve Downey, the immediate past president of the trial lawyer group, said in a letter to the bar association.” (Andrew Wolfson, “Trial lawyers find nothing funny in cartoon”, Louisville Courier-Journal, Feb. 19). David Lat covers the story (Feb. 20). What would have taken guts, I think, is for the Kentucky bar magazine to have run a cartoon making reference to the state’s deeply embarrassing fen-phen fee scandal. But let’s not hold our breath waiting for that.
Radio appearances
Yesterday I joined Vicki McKenna on Madison, Wisconsin’s WIBA to discuss Katrina insurance litigation as well as the Supreme Court’s punitive damages rulings. And on Jan. 23 I was a guest on Jim Blasingame’s national “Small Business Advocate“.
Class action settlement: credit ratings in insurance
Allstate used applicants’ credit ratings as one piece of information in rate-setting, a baldly rational policy if you accept that credit ratings do on average help predict future consumer behavior. Lawyers sued claiming that the credit ratings were really an improper proxy for race, and a federal judge has now approved a class action settlement in which Allstate will revamp its policies and pay six named plaintiffs $5,000 each, minority policyholders will be free to seek refunds of $50 to $150 if they get around to it and can prove they qualify, and plaintiff’s lawyers will get $11.7 million. (“Judge Approves Settlement in Allstate Class-Action Suit”, AP/WOAI, Feb. 17).
Jury blames hit-run death on wheelchair curb cut
In 2001, when a CVS pharmacy opened on North Middletown Road in Pearl River, N.Y., Rockland County administrators approved a curb cut on the nearby sidewalk to facilitate wheelchair access from the road to the sidewalk. Three years later Stacey Gersten, 48, who had a “mild developmental disability”, tried to cross the road on foot at that point and was struck and killed by a hit-run driver, Duane Boos. In December a jury agreed to assign 65 percent of the blame for Gersten’s death to the county; it assigned 35 percent of the blame to Boos and none to Gersten. James Lynch, a Paramus, N.J. lawyer who represented the Gersten family, “said the jury agreed that the curb cut at the sidewalk outside the CVS was an ‘invitation’ for pedestrians to cross at a ‘dangerous spot’,” one with no crosswalk and no curb cut at the opposite side.
In short, it would seem that the county is liable because in its effort to help wheelchair users, it provided an inordinate temptation to jaywalkers. And as disabled advocates regularly point out, wheelchair users are not the only group that benefits from curb cuts. Bicyclists and scooter users, parents with strollers, the elderly with walkers, people using a dolly or cart to manage a load of goods — all may legitimately desire midblock access to a road without intending to cross to its other side.
Without visiting the actual site of the accident it’s hard to draw definitive conclusions. It would be a shame, however, if liability-averse road authorities drew the lesson that from now on it is going to be legally risky for them to install curb cuts anywhere other than at crosswalks. (Khurram Saeed, “Rockland hit-and-run victim’s family wins $1 million lawsuit”, White Plains (N.Y.) Journal-News, Dec. 22).
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”).
“Thinking up new ways to get you 100 percent or more!”
An ad for Hampton Roads, Va., Lowell (“The Hammer”) Stanley. It’s very reminiscent of the classic ads for Rochester’s similarly nicknamed Jim (“The Hammer”)(Feb. 6, etc.), including the grainy footage of disasters in the background (via Nicole Black).