Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for February, 2008

Palimony without cohabitation?

Through the rise of palimony law, courts in New Jersey have laid out a bright line against its being awarded in cases where a couple did not live together. Now, however, the state’s high court is being urged to overturn that rule and open the door to claims for compensation by a broader class of romantic partners (Michael Booth, “N.J. High Court Hears Pitch for Palimony Sans Cohabitation”, New Jersey Law Journal, Jan. 23). Two years ago an appellate judge upheld the bar to recovery:

“Without such a bright-line requirement, the concept of ‘marital-type’ relationship is unacceptably vulnerable to duplicitous manipulation,” Judge Jose Fuentes wrote in Levine v. Konvitz. “Requiring cohabitation also provides a measure of advance notice and warning, to both parties to a relationship, and to their respective family members, that legal and financial consequences may result.”

(Michael Booth, “Despite 70-Year Romance, Palimony Is Denied for Lack of Cohabitation”, NJLJ, Feb. 17, 2006).

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Vioxx settlement: February 8 update

(Updating and bumping Feb. 4 post about to roll off bottom of page because of new comment activity)

  • Judge Fallon denied the motion of Florida plaintiffs to expedite a hearing on their inclusion into a settlement when they did not even bring suit (Jan. 30). Merck and the PSC are required to respond Feb. 15, and the hearing will be Feb. 21, where one can expect the motion to be denied.
  • At Point of Law, I comment on the recent grand jury investigation into Merck marketing of Vioxx.

    • Update, Feb. 8: separately, Merck yesterday settles for $650 million different Medicaid fraud allegations over the marketing of Vioxx and other drugs. The qui tam relator will get a jackpot award of $68 million. [WaPo; DOJ; Merck] The pricing theories at the center of these lawsuits—which hold Merck liable for purportedly charging too little—definitely deserve longer discussion another time.

Read On…

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Suit against mower manufacturer: It’s your fault my grandfather ran over my foot

The Simplicity Manufacturing riding mower, manufactured in 1994, includes the following warning, almost so obvious and over-the-top as to be wacky:

(I) DO NOT MOW WHEN CHILDREN OR OTHERS ARE AROUND; (ii) NEVER CARRY CHILDREN; (iii) LOOK DOWN AND BEHIND BEFORE AND WHILE BACKING.

Moreover, the manual includes the following warnings:

(I) Tragic accidents can occur if the operator is not alert to the presence of children. Children are often attracted to the unit and the mowing activity. Never assume that children will remain where you last saw them.
(ii) Keep children out of the mowing area and under the watchful care of another responsible adult.
(iii) Be alert and turn unit off if children enter the area.
(iv) Before and when backing, look behind and down for small children.

Nevertheless, on May 7, 2003, in Honeybrook, Pennsylvania, Melvin Shoff backed up his riding mower and managed to run over the foot of four-year-old Ashley Berrier, resulting in its amputation. This is, Ashley’s parents complain in a lawsuit, the fault of Simplicity Manufacturing for not doing more to idiot-proof the mower. The federal district court threw out the suit based on a 2003 Pennsylvania Supreme Court precedent (involving a two-year-old and a lighter), but the Third Circuit, twelve months after the case was argued, has certified the question to the Supreme Court whether they’ve changed their mind in the last five years. The Court appears to have been swayed by the American Law Institute’s “Restatement” proposal to expand product-liability law in this area. (Berrier v. Simplicity Manufacturing (3d Cir. Jan. 17, 2008) via Steenson; Legal Intelligencer).

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Exclusive: Grand Theft Auto deposition

Back in 2005, when the first lawsuits were filed over the Grand Theft Auto hot coffee mod, I wrote:

Me, I’m just amused by the thought of class action attorneys trolling for a named plaintiff parent who will testify that, while she was okay for her little Johnny to buy a game involving drug dealing, gambling, carjacking, cop-shooting, prostitution, throat-slashing, baseball-bat beatings, drive-by shootings, street-racing, gang wars, profanity-laced rap music, violent homosexual lovers’ quarrels, blood and gore, and “Strong Sexual Content,” she is shocked, shocked to learn that the game also includes an animation at about the level of a Ken doll rubbing up against an unclothed Barbie doll with X-rated sound effects…

Alas, Take Two games has given in to the blackmail and settled the case, but a sense of how frivolous it was can be seen from the following deposition excerpt of lead plaintiff Brenda Stanhouse, a schoolteacher in Belleville, Illinois, who will receive $5000 for her role in the litigation. Recall that Mrs. Stanhouse is alleging she was defrauded because she would not have bought a game that could be modified to include “pornography,” but take a look at pp. 67 ff. of the deposition, where she makes clear she didn’t have the faintest idea what was in the game that she did buy. Readers: type your favorite Stanhouse deposition excerpts in the comments.

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Arbitration for me, but not for thee

The Civil Justice Association of California says it so well, we might as well just quote them:

“Fee arbitration offers cheaper, faster alternative to litigation.” Where did that headline run? Give up? In the California Bar Journal, the “Official Publication of the State Bar of California! The story beneath it praises fee arbitration between lawyers and clients, saying that arbitrators are reporting that their work “gives people immediate results, unlike protracted litigation.”

The Bar’s presiding arbitrator, Arne Werchick, is quoted as saying: “It’s a neutral program that gives everyone a fair shake.”

We hope Mr. Werchick, who was president of the trial lawyers association in 1980, sends copies of the article to personal injury and other plaintiffs’ lawyers in Sacramento and Washington. They are once again firing up their endless campaign to block people’s constitutional right to contract to settle future disputes by arbitration rather than going to court.

Separately, ABC News parrots the trial-lawyer line with misleading coverage of another arbitration involving Tracy Barker: they falsely report that Barker’s lawsuit was “killed” (when it will in fact be heard in the forum that Barker contractually agreed to litigate in), that the proceedings will be “secret” (when Barker has the right to publicize them the same way she can publicize a trial), and waits until deep into the story to acknowledge that the arbitration clause does not prohibit the employee from bringing litigation against her alleged rapist. Where’s John Stossel and “Give Me A Break” when you need him?

For more on the litigation lobby’s battle against arbitration, see the Overlawyered arbitration section.

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Oops dept.

Great moments in $800-an-hour-or-thereabouts lawyering: “As it turns out, a lawyer at Pepper Hamilton, one of two high-priced law firms negotiating the deal [for drugmaker Eli Lilly] with the government [over allegedly improper marketing of Zyprexa], mistakenly sent an e-mail containing a comprehensive and confidential document to a reporter at The New York Times. How could that have happened? The reporter, Alex Berenson, has the same last name as another lawyer who was supposed to have received the e-mail, Bradford Berenson, who works at Sidley Austin.” (Pharmalot, Feb. 5). Ted also has a (more serious) take at Point of Law on the problems with federal criminal enforcement of drug marketing laws.

But note correction Thurs. 12:30 EST: in updates, Beck/Herrmann and Pharmalot say that Portfolio mag, which originally reported this story, got aspects of it wrong: the email was a short one, not a comprehensive document, and reporter Berenson had other sources of information. Pepper Hamilton has been flogged up one side of the legal blogosphere and down the other for the slip, but Beck/Herrmann says that isn’t fair: the misdirected email doesn’t appear to have made much difference. Yet more: Ambrogi, Feb. 11 (initial report maybe not so wrong after all).

Exclusive: New details in Milberg Weiss obstruction of justice case

The government accuses Mel Weiss of withholding a fax responsive to a subpoena that would have corroborated Hillel Cooperman’s claims of kickbacks hidden as options to purchase art. From the National Law Journal ($):

Prosecutors claim that Bershad, in response to the government’s 2002 subpoena, called Weiss to his office after discovering the fax and other documents in his desk drawer. “Weiss took them from Bershad, falsely stating, ‘David, you had nothing to do with the art option,'” prosecutors claimed in their recent motion. “Weiss then put the documents in his safe, concealing them from Milberg Weiss’ document custodian who was searching for documents responsive to the subpoena.”

Weiss then allegedly locked the documents in his safe. David Bershad has pled guilty, and is presumably the source for this conversation. Given the role of fundraising the law firm plays in Democratic politics (including for the two leading contenders for the Democratic nomination, Hillary Clinton and Barack Obama, and for John Edwards), one wonders why the only coverage of the ongoing scandal is in for-subscription legal papers. We have uploaded the government’s brief in opposition to Milberg Weiss’s motion to dismiss the obstruction-of-justice charge:

Read On…

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