Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2007

California Good Samaritan out of luck

Alexandra Van Horn was a passenger in a car that ran into a light pole at 45 mph. Lisa Torti, a passenger in a car following behind, stopped at the crash scene and tried to render assistance by lifting Van Horn out of the car. Van Horn emerged from the accident a paraplegic, although court testimony differed on whether the accident itself or Torti’s attempt to pull her out of the vehicle was responsible for this. Now a California appeals court has ruled that the state’s Good Samaritan liability shield does not protect Ms. Torti from Ms. Van Horn’s negligence suit because it “only protects people from liability if they are administering emergency medical care. The perceived danger of remaining in the wrecked car was not ‘medical,’ the court ruled.” (“Court: Law may not protect Good Samaritan from suit”, AP/CourtTV, Mar. 23).

Update Dec. 19, 2008: Calif. high court rules for plaintiff.

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Six months ago on Overlawyered…

…we debunked a debunking of Bodine v. Enterprise High School, the most famous burglar that fell through the skylight lawsuit. (The promulgator of the original fake debunking promised a comprehensive response “in the next week”, though, 26 weeks later, we haven’t seen it.)

Now, Hawaii is considering legislation similar to California’s that would give immunity to property-owners sued by people injured in the course of committing particular felonies, though it’s not clear to me that it would apply to unarmed burglary, which seems to only be a “Class C” felony in Hawaii.

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March 26 roundup

  • More fen-phen scandals: Possible smoking-gun email in Kentucky case (see Walter’s post today) came from Chesley firm computer; Vicksburg lawyer first attorney convicted in Mississippi fen-phen scam. [Courier-Journal via Lattman; Clarion-Ledger (h/t S.B.)] (Updated with correct Courier-Journal link.)
  • Allegheny College found not liable by jury for student’s suicide; school raised issue of student privacy concerns. Earlier on OL: May 30; Dec. 7, 2004. [WSJ]
  • Update on the tempered glass versus laminated issue earlier discussed in Overlawyered (Feb. 15, 2006; May 16, 2005; May 13, 2005, etc.) [LA Times]
  • Massachusetts court rejects quack sudden acceleration theory. (See also Dec. 20, Aug. 7, etc.) [Prince]
  • California bill would bar carpenters from school campuses. [Overcriminalized]
  • New book: Antitrust Consent Decrees in Theory and Practice [Richard Epstein @ AEI]
  • To be fair, I went to school with “young Mr Sussman, the boyish charmer”, and I don’t know how to pronounce “calumnies” either—it’s one of those words I’ve only seen written, and never heard spoken [Steyn; MSNBC]

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Welcome Dallas Morning News readers

The newspaper reprinted my warning labels column yesterday (Walter Olson, “Product labels have come unglued from reality”, Mar. 25). Reader Gary Neyens of Round Rock, Tex. wrote in to say he enjoyed the piece and added one of his own favorite stories:

I recently replaced the serpentine (fan) belt on my Ford pickup. The Ford Motorcraft packaging warned “Shut off engine before checking or replacing belt”. I know the reason for this warning – – Somebody, somewhere…

While on the subject of publicity, Legal NewsLine did a whole article (with file photo!) based on my recent column about not counting the trial lawyers out (Rob Luke, Anti-business suits still surging, warns tort-reform expert”, Mar. 21). Last month New York Post reporter Janon Fisher quoted me in an article on the “firefighter’s rule” which historically has barred injured public rescue personnel from suing the people they were rescuing, or others whose negligence allegedly led to disaster (“Firemen file arson lawsuits”, Feb. 2). And a couple of publicity clips from last year that I didn’t round up at the time: at the North County Times’ The Californian, Bridgit Jordan quotes me on Mayor Bloomberg’s anti-tobacco philanthropy (“Donation may go up in smoke”, Aug. 22); and Joseph Goldstein of the New York Sun quotes me in an illuminating article about the “creeping oversight” of New York City government operations obtained by the feds through consent decrees and the like (“Bush Administration, in Series of Federal Lawsuits Against New York Agencies, Gains Creeping Oversight of Local Government”, Aug. 15).

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Keep the public informed, get sued

Back in November and December of 2006, there was an E. Coli outbreak involving Taco Bell restaurants; dozens of customers were sickened. (It goes without saying that this led to lawsuits against the restaurant chain by those who got sick.) By early December, health officials had linked the outbreak to the chain; Taco Bell immediately went into action to locate the source of the problem.

Initial testing indicated that green onions used by Taco Bell were contaminated; moreover, in previous outbreaks, green onions had been the problem. So Taco Bell, in an effort to reassure the public, announced its findings and assured the public, via a series of press releases over the next few days, that “in an abundance of caution” it was removing green onions from its restaurants and would no longer sell them.

A few days later, Taco Bell announced that in fact green onions were not the culprit, but that to be extra-cautious, it would switch produce suppliers. (As we know, it turned out that lettuce was probably the source of the problem, and this was announced.) Everything that Taco Bell said was accurate; moreover, it correctly informed the public that green onions were not to blame once the CDC had confirmed this. Additionally, Taco Bell never mentioned the identity of its green onion supplier. Nonetheless, that supplier, Boskovich Farms, filed a lawsuit against the chain this past Friday, accusing Taco Bell of defamation and a series of related claims.

In short, Taco Bell is being blamed for being too open with the public in revealing information as the investigation developed. Of course, to the extent that Taco Bell failed to provide this information, the lawyers for the people who were sickened would be screaming “cover up.”

By the way, you may wonder why Boskovich Farms is claiming it was defamed even though Taco Bell never mentioned its name. Well, the company claims that those in the produce industry knew its identity as Taco Bell’s green onion supplier, so even though Taco Bell never mentioned it by name, its reputation was harmed. A reasonable claim, in the abstract. Presumably, though, those knowledgeable and sophisticated enough to possess this information are probably sophisticated enough not to be swayed by a Jay Leno monologue (!) almost three months after the incident — one of the two pieces of evidence cited by Boskovich in its complaint.

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Give me a break. Or not.

Ted posts an entry on the Americans with Disabilities Act below; that’s a common topic on this site. Why? Because it’s a completely standardless law; while there are a few guidelines provided by various regulatory agencies, the law as written requires “reasonable accommodations” — a standard which is inherently subjective and which can only be determined after the fact. A field day for trial lawyers.

Case in point: I’m sure many people can imagine a person with a “severe and painful degenerative arthritic condition” suing because his employer forces him to work without breaks for rest or meals. An employee needs a short break, isn’t given it by his slavedriving employer, so he files a lawsuit. Understandable. But how many people would have thought that they could be sued for being too nice to an employee?

Well, under the ADA, it can happen. Last week, a Florida postal worker sued the Postal Service for giving him lunch breaks. He claims his arthritis is exacerbated by not moving around, and therefore it amounts to discrimination under the ADA not to let him work through lunch. (No word on why he can’t keep active on his own during lunch.)

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NY Times on Ky. fen-phen scandal

We’ve been beating the drums on this one for a while (Mar. 6 and Aug. 25, 2006, Jan. 24, Feb. 14, Feb. 21, Mar. 19, 2007; Point of Law May 10, 2005) and it’s nice to see the Times’s Adam Liptak with a front-pager this weekend on the affair. The story begins by telling the story of what happened when W.L. Carter, one of the clients in the 440-member batch, went to pick up his check from the fen-phen settlement:

The check was, for starters, much smaller than he had expected. And his own lawyers threatened to retaliate against him if he ever told anyone, including his family, how much he had been paid. “You will be fined $100,000, you will go to jail and you will be sued,” Mr. Carter recalled them saying.

Liptak writes: “Legal experts said the fraud might be one of the biggest and most brazen in legal history.” Or at least one of the biggest and most brazen that’s come to light: batch settlements in mass tort cases are frequently so secretive in their details, and so carefully drawn up to repel inquiries from outsiders or from clients themselves about who got what, that we can at best speculate about whether the Kentucky scandal is an outlier. (“Fraud Inquiry Looks at Lawyers in Diet-Drug Case”, Mar. 22).

P.S. As Ted notes above, today’s Louisville Courier-Journal adds some new information about the alleged role played by Stanley Chesley’s Cincinnati law firm (Andrew Wolfson, “Court filing ties lawyer into diet- drug pay scheme”, Mar. 26; Lattman, Mar. 26).

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“Lawyer in $315 million lottery lawsuits ordered to pay fine”

A price tag on not screening for merit: “A lawyer representing three people who sued their co-workers seeking a share of their $315 million lottery win was ordered Tuesday to pay a nearly $382,000 fine. Orange County [California] Judge Michael Brenner ordered attorney Mark H. Williams to pay the seven lottery winners after determining he pursued the lawsuits knowing the allegations lacked merit. The amount was the equivalent to legal fees incurred by the ‘Lucky Seven,’ who pooled money to buy the winning Mega Millions multistate lottery ticket, said defense attorney Larry S. Zeman.” Williams, of Long Beach, Calif., represented “three co-workers who claimed they deserved a share of the jackpot because of an oral agreement that everyone would be included whenever they pooled their money to buy tickets”. (AP/Contra Costa Times, Mar. 20).

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