Archive for 2007

Kim Strassel on “trial lawyer earmarks”

In Opinion Journal:

Even the tort bar understands how deeply loathed it is by the American public. The Association of Trial Lawyers of America didn’t last year change its name to the bland “American Association for Justice” for nothing.

So no, even the old liberal lawsuit bulls such as Henry Waxman or [Barney] Frank won’t start calling for the repeal of the 2005 Class Action Fairness Act, or for other blatant legislative assists to the trial bar. Instead, Democrats intend to reward the legal industry with more subtle payoffs. The most obvious gift will be a moratorium on further legal reform. Beyond that, Democrats will rely on two tried-and-tested tools to aid and abet the legal community. They’ve employed both in the past few weeks. …

A Democratic Congress means far more regulation, and any new regulation is an opportunity to insert a line or two giving the tort bar greater rights to sue. These provisions will be subtle and technical, designed to escape notice. But just in case they do raise a red flag, they’ll also be tucked into bipartisan or must-pass legislation (such as the Iraq supplemental), making it that much harder for Republicans or President Bush to shoot them down.

It’s a measure of how well Republicans played tort abuse to their political advantage that Democrats today are reluctant to brazenly flack for the legal class. If the GOP wants to keep it that way, it will have to start working harder to expose the quiet ways in which the left is now helping trial lawyers bilk the system.

The other means is by taxpayer-funded subpoenas and hearings to develop evidence and publicity for the trial bar.

Strassel claims that there is such an earmark created at the behest of ATLA, subtly providing an implied cause of action against chemical manufacturers in H.R. 1591, the soon-to-be-vetoed Iraq War supplemental funding bill. Indeed, the provision is difficult to find amidst the provisions for the milk income loss contract program and renewal grants for women’s business centers. I suspect Strassel is referring to the anti-preemption provision in Section 1501(a) of the bill, effectively permitting lawsuits against chemical facilities that comply with Department of Homeland Security regulations without once mentioning the word “lawsuit.” If there is a terrorist attack on a chemical facility, trial lawyers will have a deep pocket to blame.

Perhaps we, as a society, would agree with the Democratic Party and would prefer trial lawyers, instead of the Department of Homeland Security, to be in charge of chemical plant security. (Trial lawyers do have the advantage of getting to operate only in hindsight.) But shouldn’t that critical decision be made openly?

Illegal Easter treats, and New Orleans King Cakes

Elsewhere around the world Ferrero Group, the Italian candy company, sells (with a suitable warning label) a treat called Kinder Surprise which consists of chocolate surrounding a small toy. However, the product is said to be illegal for sale in the United States: according to Donald Mays of Consumer Reports, “a nonfood item cannot be imbedded in a food product” under a law dating back to the 1930s. (“Choking-Hazard Easter Eggs Appear On Store Shelves”, WNBC, Apr. 5). If accurate, this would help explain something we’ve noted a couple of times in earlier posts (Feb. 1, 2002, Jan. 18, 2007), namely that store-bought Mardi Gras King Cakes do not have the little figurine baked into their batter that is found in the more authentic New Orleans versions.

People v. Phil Spector

The LA Superior Court has posted the 18-page jury questionnaire, which is relatively restrained as these things go. Less restrained appears to be the blame-the-victim tactics that defense attorneys apparently plan to use. Slate’s Timothy Noah has a good overview and is blogging the trial from his tv set; the LA Times and CourtTV also have blogs and a web page of resources. Amazingly, in the midst of a murder investigation, Spector decided to sue his first criminal defense attorney, former OJ-Dream-Teamer Robert Shapiro, who successfully bailed him out; the resulting civil deposition of Spector has to be seen to be believed, and probably has something to do with Spector’s decision to drop the suit in 2005. Spector is on his third set of defense attorneys.

Update: the LA Superior Court’s website appears to use dynamic addressing that prevents the deep-linking I’m doing for the jury questionnaire and briefing. They are available directly from the LA Superior Court page.

April 27 roundup

Jack Thompson sues Gawker Media

The anti-game attorney cites reader comments on the Gawker site Kotaku that he considers personally threatening. (GamePolitics.com, Apr. 25; Kotaku, Apr. 23; earlier Kotaku post). Mark Methinitis at Law of the Game says that in his view the complaint “falls well beyond the norm of complaint drafting and more into the realm of a self-promoting tirade” (Apr. 25).

Saw sex book by mistake; $10K apiece demanded

In Bentonville, Arkansas, Earl Adams says his two teenage boys, ages 14 and 16, were perusing the local library shelves when they accidentally ran across a copy of “The Whole Lesbian Sex Book”, for which traumatization they deserve $10,000 apiece. It happened, Adams said, while they were browsing for material on military academies (titter ye not!) and the shock to their sensibilities from exposure to the “immoral” volume resulted in the boys being “greatly disturbed” and undergoing “many sleepless nights in our house.” According to the Washington Post, Library Journal has deemed the sex guide by Felice Newman suitable for public libraries. (Emil Steiner, “Off/Beat: Arkansas Dad Sues Library Over Lesbian Book”, Washington Post, Apr. 25; “Father Says Sons Traumatized By Lesbian Library Book”, 365gay.com, Apr. 20).

Update: Speechless in Seattle

Free speech survives intact: the Washington Supreme Court has unanimously ruled that radio talk show hosts’ urging of listeners to support a ballot measure does not constitute a “contribution” to the yes side for purposes of mandatory reporting under campaign finance law. (Ryan Sager, New York Sun blog, Apr. 26). We covered the charges against KVI hosts Kirby Wilbur and John Carlson Jul. 11 and Jul. 19, 2005. Eugene Volokh has extensive coverage of the new decision. A concurring opinion by Justice James M. Johnson, joined by Justice Richard B. Sanders, terms the enforcement a case of “abusive prosecution”. More: Michelle Malkin; John Fund, OpinionJournal.com, Apr. 30.

Roy L. Pearson, Jr. and the $65 million pants

Attorney (and now administrative judge) Roy L. Pearson, Jr. paid $10.50 to have some pants altered at his dry cleaners’, but was dissatisfied with the results, so sued them on grounds that their “Satisfaction Guaranteed” sign was consumer fraud. Among his claimed damages is the need for a car to find a new dry cleaner. Pearson at first demanded $1150 for a new suit, but turned down offers from the dry cleaner to settle for $3000, for $4600, and for $12000, and claims DC consumer protection law entitles him to $65 million. The Chung family has removed their “Satisfaction Guaranteed” sign. (Marc Fisher, “Lawyer’s Price For Missing Pants: $65 Million”, Washington Post, Apr. 26; Obscure Store blog; DCist, Apr. 13; ABC-7, Apr. 12).

Update: May 1.

Walk away

Yesterday’s Daily Business Review brought us the story of lawyers running wild in worker’s compensation cases. Today, it provides another outrageous story of legal abuses, in a $3 million medical malpractice lawsuit:

Miami-Dade Circuit Judge Gisela Cardonne Ely was shocked. She had just watched a videotape of a medical malpractice plaintiff, who claimed in 2004 that she was permanently paralyzed, walking down the street with the use of a cane in 2005.

“This is the worst case of misrepresentation, of outright fraud, that I have ever had in 22 years,” Cardonne Ely said during a March 15 hearing in the case of Wanda Davis-Johnson. “I’m telling you, Mrs. Davis, I’m looking at you in the eyes. I am dismissing your case. I have seen enough. … I’m making a specific finding that there was a scheme to defraud the court.”

The woman’s attorney, of course, claims to be just as surprised as the judge. Meanwhile, the vindicated defendant hospital “will be seeking to recover $225,000 in legal costs from Davis-Johnson,” but one suspects that the odds of ever collecting that are somewhere between none and less than none.

What’s unusual about this story is that the hospital’s attorneys obtained this damning evidence in April 2005, but did not reveal it until almost two years later, in January 2007. According to the hospital’s attorneys, they were afraid that the videotape wouldn’t be sufficient to prove fraud on the part of the plaintiff. (What does it say about the system if a videotape showing an allegedly paralyzed person walking is insufficient to prove fraud?)

The plaintiff’s lawyers complained about the delay:

“If they had shown that videotape to us, we wouldn’t have spent another 21 months of litigation time, cost, stress to the doctors involved and waste of the court’s time,” Lawlor said. “I don’t have any clue what they were thinking or why anybody would go forward other than to try to set a trap for my law firm.”

But despite this, when confronted with the evidence, Lawlor didn’t exactly roll over and admit error:

But Lawlor and his law firm did not withdraw from the case or ask that the case be dismissed. Lawlor unsuccessfully argued against the defense motion to dismiss based on fraud. He also filed errata sheets to Davis-Johnson’s two depositions seeking to change her testimony.

The only thing he did do was drop his motion for punitive damages based on the allegedly “egregious” actions of the hospital.

Family reunions ought to be interesting, anyway; according to the story, the hospital’s lawyers got confirmation of the fraud when the plaintiff’s sister-in-law called up and told them.