| ARCHIVE -- AUGUST 2000 (I) |
August 10 -- Coffee-spill
suits meet ADA. In Vallejo, California, a woman
is suing McDonald's, "saying she suffered second-degree burns when a handicapped
employee at a drive-thru window dropped a large cup of hot coffee in her
lap. ...The suit said that the handicapped employee couldn't grip the cardboard
tray and was instead trying to balance it on top of her hands and forearms
when she dumped the coffee on Aug. 25, 1999," scalding Karen Muth, whose
lawyer, Dan Ryan, told a local newspaper that she's entitled to between
$400,000 and $500,000. "We recognize that there's an Americans
with Disabilities Act, but that doesn't give them the right to sacrifice
the safety of their customers," he said. ("Woman sues McDonald's over spilled
coffee", AP/SFGate, Aug.
7). And British solicitors have organized 26 spill complainants
into a group suit against the same chain over the overly piping nature
of its beverages: "Hot coffee, hot tea and hot water are at the centre
of this case. We are alleging that they are too hot," said Malcolm Johnson
of Steel and Shamash, a London law firm. ("McDonald's faces British
hot drink lawsuit", Reuters/FindLaw, Aug.
2) (more on hot beverage suits: July
18; "Firing Squad", Reason, May
1999 (scroll halfway down in piece); and resulting letters exchange,
Aug./Sept.
1999 (scroll to last items), April 4).
August 10 -- "Imperfect
laws add to danger of perfect storms". "In an ill-advised
attempt to prevent overfishing in the [Gulf of Mexico], the government
reduced the red snapper season to a very short nine-day opening" -- a "snapper
derby". Unfortunately, menacing weather came up during that brief
nine-day window, and snappermen were left with a choice of which risk to
run, physical or economic. Most went to sea, "and at least two boats
encountered life-threatening conditions. One boat was lost in raging
seas off Louisiana." Alaska suffered a series of avoidable accidents
and fatalities under a similar "halibut derby" until it switched to a better
system: the sort of individual transferable quotas often recommended by
economists (Peter Emerson and Felix Cox, Dallas Morning News,
July
25).
August 10 -- "Justice,
not plunder". We thought we were hard-liners on the topic
of excessive lawyers' fees, but Washington Post columnist Robert
Samuelson goes us one better by proposing a maximum limit of $1 million
or $2 million a year as the most anyone could earn from lawyering in a
year. It might sound less outlandish if we went back to the old idea
of lawyers as "officers of the court" -- i.e., a species of civil servants,
even if more fancily dressed. (July
27).
August 10 -- Welcome
readers (especially Daves). Among the diverse sites we've
noticed linking to us are: Dave Dufour's
site, from Elkhart, Indiana; gasdetection.com,
website of "Interscan Corporation, manufacturer of toxic gas detection
systems", which names us "Mike's Cool Site of the Week"; Bonehead
of the Day Award (citing us for material, not naming us as the awardee!);
Miss
Liberty Film & TV World, Jon Osborne's newsletter reporting
on film and television events of libertarian interest; Dave's
Corner, published by a different Dave from the one above; Peter Brimelow's
vdare.org,
with a line-up of authors critical of immigration and multiculturalism;
Big
Eye -- Alternate News Center, assembling many anti-establishment links;
Hittman
Chronicle, by yet a third Dave, Dave Hitt, whose July
number takes a caustic view of the recent Florida tobacco verdict; Adirondacks2000.com
(we're their current "Featured Internet Site"); and
Wrisley.com,
"An Electronic Magazine for Thinkers" out of South Carolina.
August 8-9 -- Senator
Lieberman: a sampler. "Miracles happen," said the Senator
on learning that he was going to be the Democratic pick for VP. (Ron
Fournier, "Gore Picks Sen. Lieberman for VP", Washington Post, Aug.
7). As far as legal reform goes, we'd have to agree -- for him
to be on the same ticket with Al
Gore counts as nothing short of a miracle:
"In vetoing this bipartisan product
liability reform, the President went against his own White House Conference
on Small Business and members of his own party. ... Connecticut Democrat
Sen. Joseph Lieberman said, 'the President is dead wrong about this bill.'
And no less a journalistic authority than the Washington Post called
the President's decision to veto the bill, 'a terrible one.'" (Rep. Dave
Hobson (R-Ohio) newsletter, May
3, 1996)
"In complaining about trial lawyers' influence on the liability bill,
Sen. Joseph Lieberman, D-Conn., told the Wall Street Journal: 'This
is a remarkable story of a small group of people who are deeply invested
in the status quo who have worked the system very effectively and have
had a disproportionate effect.'" (Dallas Morning News, March 28,
1996, available on Nexis, but not online)
"Mr. President, in my view, you can add the civil justice system to
the list of fundamental institutions in our country that are broken and
in need of repair. ... Ultimately it is the consumers who suffer
most from the status quo. ...
"I did not always support a national or Federal approach to product
liability reform or tort reform generally ... What changed my mind was
listening to people in Connecticut. ...
"I would say that our current medical
malpractice system is a stealth contributor to the high cost of health
care. ... There is a well regarded consulting firm called Lewin-VHI. They
have stated that hospital charges for defensive medicine were as high as
$25 billion in 1991. That is an enormous figure. Basically what they are
saying is that as much as $25 billion of the costs -- this is not paid
by strangers out there, this is paid by each of us in our health insurance
premiums -- is the result not of medical necessity but because of defensive
practice occasioned by the existing medical malpractice legal system."
(Lieberman floor statement, April
27, 1995, reprinted by Health Care Liability Alliance).
When the Senate (temporarily) voted by a one-vote margin to curb the
gargantuan fees obtained by trial lawyers for representing states in the
tobacco-Medicaid
litigation, a step later blocked by opponents, Lieberman was one of four
Democrats to buck the party's trial lawyer supporters by voting yes (Action
on Smoking and Health, June
17, 1998, citing New York Times and C-SPAN).
With Sen. Spence Abraham (R-Mich.), Lieberman introduced the proposed
Small Business Liability Reform Act of 1999, which would limit the exposure
of small businesses to punitive damages and joint liability for non-economic
damages in most cases, limit the application of joint and several liability
to small businesses, and make it harder to add wholesalers and retailers
to lawsuits against manufacturers. The bill has had trouble attracting
support from other Democrats, however (World
Floor Covering Association website).
With Senator Mitch McConnell (R-Ky.) and Rep. Dick Armey (R-Tex.), Lieberman
introduced the Auto Choice Reform Act, bitterly opposed by trial lawyers,
which would encourage car owners to opt out from the "pain and suffering"
lottery in exchange for lower rates. "According to Joseph Lieberman,
a co-sponsor, 'our auto insurance and compensation laws violate the cardinal
rule I think those of us in the business legislating have a duty to follow:
to draft our laws to encourage people to minimize their disputes, and to
encourage those who do have disputes to resolve them as efficiently, as
economically, and as quickly as possible.'" -- Bionomics Institute, "Driving
Them Crazy", August
15, 1997, citing Congressional Record, April 22, 1997.
Sen. Daniel Patrick Moynihan (D-N.Y.) also supports the idea (Dan Miller,
"Auto Choice: Relief for Businesses & Consumers", Joint
Economic Committee).
"Jim Kennedy, press aide for Lieberman, indicated that Nader, a lawyer,
is watching out for the interests of his profession. 'What he's left out
is the trial lawyers' lobby which is bankrolling the opposition.
They have the most to lose and they are the ones making money out of the
system,' he said." (quoted in States News Service, May 3, 1995, after Ralph
Nader attacked the Senator for sponsoring liability reform; available on
Nexis, but not online).
Addendum: Although a strong supporter of
gun
control in general, Lieberman joined Republicans and a minority of Democrats
on a 1992 procedural vote in support of preventing the District of Columbia
from using liability lawsuits as a means toward that end. (S. 3076,
vote #152, July
27, 1992) (DURABLE LINK)
August 8-9 -- Break
in Florida tobacco-Medicaid fee case? Harvard professor
Alan Dershowitz says he's determined to press suit against the Florida
lawyers who extracted $3.4 billion in legal fees in the state's tobacco-Medicaid
settlement, saying they promised him 1 percent, or $ 34 million (see July
17). Dershowitz says he's acting as "a pro bono who intends
to give most of the money to charities." "Where does he get his numbers?
They're preposterous. He has an ego the size of a mountain," said an attorney
for the lawyer-defendants. "Suing me is a serious mistake," said
Pensacola lawyer Robert Kerrigan, of Dershowitz's action; we'd call that
tone intimidating, under the circumstances. "These guys have chutzpah,"
Dershowitz said. "I don't care how rich these guys are or how many judges'
campaigns [Robert] Montgomery contributes to, I'm fighting back."
And: "Now the public can finally see the inside of the cigarette lawyers
industry." We can't wait, since the record-breaking Florida fee haul
has been shrouded in much secrecy up to now (see April
12) (Cindy Krischer Goodman, "Harvard prof suing lawyers over tobacco
settlement", Miami Herald, Aug.
2).
August 4-7 -- Republican
convention finale. No mention of legal reform in W's acceptance
speech, but the topic did make its way into the earlier remarks from the
podium by Jan Bullock, widow of Democratic Lt. Gov. Bob Bullock (gopconvention.com).
August 4-7 -- Now
that's bread. A San Francisco jury has awarded $121 million
in punitive damages, atop $11 million in compensatory damages, to 21 black
workers
at an Interstate Bakeries plant (see July
10). Among the charges were hostile work environment, being subjected
to racial slurs, and lack of promotions; one worker testified that he hadn't
been allowed to take Martin Luther King Day off although white workers
had been allowed time off to watch the San Francisco Giants play.
The company is known for making Wonder bread and Hostess snack cakes.
("'Wonder Bread' Workers Get $121 Million in Lawsuit ", Reuters/Yahoo,
Aug.
3; "Jury Awards Workers in Bread Case", AP/FindLaw, July
31) Update: judge reduces award by $97 million (see Oct.
10).
August 4-7 -- Update:
Hirschfeld convicted, sentenced. Eccentric New York City
real estate developer, politician and public figure Abe Hirschfeld has
been sentenced to one to three years in prison after being convicted on
charges of trying to have his business partner killed. Hirschfeld
still faces separate retrial on tax fraud charges, following a jury deadlock
after which a mistrial was declared; in that case, Hirschfeld created a
sensation by handing each juror a check for $2,500, a step apparently not
in violation of any court rule at that time (see Sept.
13, Sept. 17, 1999). The judge in
the murder-for-hire case, however, explicitly barred Hirschfeld from bestowing
any gratuities on jurors after the case's conclusion. (Samuel Maull,
"Real estate mogul gets sentence of 1 to 3 years", Phila.
Inquirer,
Aug. 2; same, Phila.
Daily
News.)
August 4-7 -- "Ease
up on kids". Salt Lake Tribune criticizes school
safety hysteria and the resort to suspension or expulsion for behavior
that once would have merited a trip to the principal's office. "Utah's
Legislature passed a law this year requiring that secondary education students
be expelled for a year if they bring even a fake weapon
to school, and it allows no review process through which real threats can
be separated from pranks." (editorial, July
28)
August 4-7 -- Losers
should pay. Environmental
groups' use of the courts to seek delays in large-scale development projects
-- which can inflict huge financial losses through the costs of delay even
if the challenges eventually fail on the merits -- points up the case for
loser-pays
principles, including bonding where appropriate, as in a recent Northern
California case, argues columnist and Hoover Institution scholar Thomas
Sowell. "Of all the ways of making decisions, one of the most ridiculous
is putting decisions in the hands of third parties who pay no price for
being wrong." ("Costs and Decisions", TownHall.com,
Aug.
2).
August 4-7 -- Take
that, .hk and .tw. A Chinese law firm, suing on behalf
of a dissatisfied consumer, has hauled Japanese-owned cameramaker Canon
into court because some of its subsidiaries' promotional material, including
CD packaging and a website, list Hong Kong and Taiwan as separate "countries"
in which it does business. Although Taiwanese have lived for more
than fifty years under a government different from that of mainland China,
Beijing's official posture is still that the island is part of one China.
Canon (Hong Kong) has apologized in newspaper ads, but the Chongqing Hezong
Law Firm says its explanation is unconvincing. ("Canon (under) fire:
China sues over Web site's calling Hong Kong, Taiwan countries", China
Online, Aug.
1)
August 3 -- Jury
orders "Big Chocolate" to pay $135 billion to obese consumers.
Lawyers charged Hershey's with knowingly adding nuts to lure helpless chocoholic
buyers. Keep repeating to yourself: it's just a parody. ... it's
just a parody (for now). ... it's just a parody. The Onion,
August
2 (via Arts &
Letters Daily). Plus: recently launched legal spoof
site, ScaldingCoffee.com, profiles
not-quite-true courtroom controversies such as the one over "Tapster",
the new system that allows Internet sharing of dance step patterns, much
to the economic detriment of Arthur Murray franchisees (July)
(latest).
August 3 -- Wednesday's
GOP and legal reform. How many distinct references
to litigation reform have come up in the Republican
convention proceedings? We counted four on Wednesday evening
(all favorable): they came in speeches by California small business owner
Hector Barreto, dotcom exec Christina Jones, and, of course, vice presidential
nominee Dick Cheney, who praised Gov. George W. Bush for his success in
passing legal reform ("Today the legal system [in Texas] serves all the
people, not just the trial lawyers.") Then there was the comment
made by the representative of the state of Washington when its turn came
in the roll call: in a pointed reference to the Microsoft
case, she said the Evergreen State was in favor of "innovation, not litigation".
If you spotted other references, let us know.
August 3 -- CSE
event in Philly. Citizens for a Sound Economy, which
has been calling attention on the campaign
trail to legal-system excesses, will be holding an event in Philadelphia
today featuring its giant-fish mascot "Sharkman," a "Who Wants to be a
Trial Lawyer Billionaire" contest and more. The purpose is to honor
lawmakers and other officials from Alabama, Illinois, Texas, and Florida
who've stood up to the litigation lobby in their states. Specifics:
Thurs. Aug. 3, 2-5 p.m., Maui Entertainment Complex, Pier 53 N. Delaware
Ave., Phila. (CSE website).
See you there? Adds the CSE website: "On Sunday, Senator [John] McCain
[R-Ariz.] invited Sharkman and CSE staff to attend a reception with all
of Senator McCain’s national delegates. Senator McCain grew fond of Sharkman
during the primaries, often inviting him on stage in New Hampshire and
South Carolina."
August 3 -- And
what were the damages? An unemployed 56-year-old Los Angeles
machinist named Cornell Zachary says he was the victim of a phone-number
mixup in which the British pop group Duran Duran mistakenly posted his
phone number on the Internet "as the one to call for T-shirts, souvenirs
and tickets." He then was kept running to the phone day and night
by a vast number of wrong-number calls from fans of the group. And
what were the damages, you ask -- since without damages a lawsuit isn't
much of a lawsuit? Well, Zachary's lawsuit, filed last week, claims
he suffered 'life-threatening high blood pressure episodes,' nerve damage,
sleep disturbance, and permanent health problems ... 'They had me to the
point where my doctor told me I could have a stroke.'" Notwithstanding
that dire medical advisory, he didn't ask the phone company to change his
number: "I don't think that I have to change my number,"' he explained.
"I didn't make the mistake. I had had the number already over a year."
His suit also asks punitive and exemplary damages and attorneys' fees.
(Sarah Tippit, "L.A. Man Sues Duran Duran for Posting Number on Web", Yahoo/Reuters,
Aug.
1).
August 2 -- Tinkerbell
trademark tussle. On Friday in federal court in Scranton,
Penn., a company called New Tinkerbell Inc. of New York sued the Walt Disney
Company for trademark infringement of the registered trademark "Tinkerbell",
of which it says it and its affiliates are the exclusive lawful owners
and licensees. The gossamer-winged character, whose continued existence
is made possible only by observers' willingness to suspend their rational
disbelief in her (which already gives her a lot in common with many phenomena
of the legal system) dates back to J. M. Barrie's children's classic Peter
Pan, which has now fallen out of copyright and into the public domain,
but the New York company says that it obtained the rights to use her name
in commerce in 1952, a year before Disney released its hugely popular movie
Peter Pan. There followed a line of "Tinkerbell-emblazoned
products for children," including shampoos, glitter, hair bands, "scrunchies,"
umbrellas, sunglasses, pencil kits, and many more; for a while, the complaint
alleges, Disney itself bought and resold New Tinkerbell items in its stores,
but then decided it wanted to enter the field itself, and has since used
on its products such marks as "Tinkerbell, Tinker Bell, Tink, or a proxy
for a female fairy." The suit accuses Disney of unlawful use of "a
female fairy character in interstate commerce". (Roger Parloff, "Fairy
Serious Business: Disney Accused of Misappropriating Tinkerbell", Inside.com,
July
31)
August 2 -- Judge
rebukes EPA enforcement tactics. "In a harsh rebuke to
the federal Environmental Protection Agency's
pursuit of criminal polluters, a judge has ruled the government unnecessarily
harassed a Northbridge mill owner and pursued a case against him even though
it didn't have any credible evidence." Following up on a tip from
a former employee of the mill, which makes wire mesh used for lobster traps,
a "virtual 'SWAT team' consisting of 21 EPA law enforcement officers and
agents, many of whom were armed, stormed the [mill] facility to conduct
pH samplings. They vigorously interrogated and videotaped employees, causing
them great distress,'" wrote federal judge Nathaniel Gorton. Moreover,
EPA in obtaining a search warrant apparently concealed evidence from its
own testing indicating that the plant's wastewater emissions may not have
breached federal standards. "The case marks the first time in the
region that a judge has ruled in favor of an application of the Hyde Amendment,
a three-year-old federal law that allows an exonerated defendant to seek
legal fees from the government if the criminal prosecution was 'frivolous,
in bad faith or vexatious.'" (David Armstrong, "US judge rules
EPA harassed mill owner", Boston Globe,
Aug.
1).
August 2 -- Clinton
before trial lawyers: a footnote. Press reports had been
contradictory about whether or not prospective disbaree Bill Clinton in
his Sunday speech became the first sitting
president ever to address the Association of Trial Lawyers of America
(see July 31, Aug.
1). Molly McDonough of American Lawyer Media appears to clear
up the discrepancy: the only other president to visit the organization
was Lyndon Johnson in 1964, but he spoke to ATLA's board of directors,
which leaves Clinton as the first to appear before the organization's general
membership ("Clinton Addresses Trial Lawyers at Annual Bash", Aug.
1).
August 2 -- "Mugging
victim 'stupid,' judge says". A judge in Winnipeg, Canada,
has caused an outcry by acquitting an alleged mugger and then lambasting
the complainant for openly carrying money in a dangerous neighborhood.
"'What I am satisfied is that we have a very stupid civilian, who admits
that he was stupid,' said [Judge Charles] Rubin, who interrupted the Crown's
closing submission Tuesday to deliver his verdict. 'If you walk around
jingling money in your hand . . . it's like walking in the wolf enclosure
at the city zoo with a pound of ground beef in your hand. And it's almost
the same type of predators you're going to find out there.'" The
judge also advised the complainant to walk in future in the middle of the
street for safety, rather than on the sidewalk. (Mike McIntyre, Winnipeg
Free
Press, July
20).
August 1 -- Clinton's
trial-lawyer speech, cont'd. In his partisan-fangs-bared
speech Sunday to the Association of Trial Lawyers of America, the president
brought up the topic of vacant seats on the Fourth Circuit U.S. Court of
Appeals, and accused Republican senators of deliberately not confirming
black judicial nominees he's proposed to that court simply because those
nominees are black -- which is to say, accused them of engaging in racism.
(Neil A. Lewis, "President Criticizes G.O.P. for Delaying Judicial Votes",
New York Times, July
31). As Smarter Times points out (July
31), yesterday's New York Times reported these rather incendiary
charges and yet omitted to include any sort of response to them from Republican
senators or anyone else, simply allowing Clinton to make them uncontradicted.
For those interested in the issue on other than a demagogic basis, Ramesh
Ponnuru at National Review Online wrote a piece July
17 adducing a sufficiency of non-racist reasons why senators might
be leaving the seats vacant (other coverage in USA
Today, New York
Post).
However, the Times partially redeems itself by some original
reporting on the exact nature of the differences between Democratic candidate
Al Gore and Green Party candidate Ralph Nader. It reported that Nader,
"who has been closely allied with trial lawyers on the issue of civil litigation
rules, said Mr. Gore was allowing the president to take the heat of associating
with the lawyers while he was reaping the benefits. 'He's just slinking
around taking money like crazy from these guys, and at the same time he's
not really standing up for the civil justice system,'" said Ralph, who
himself has steered a different course from Gore at least as to the latter
course of conduct, since he's known for his vocal defense of virtually
every trial lawyer depredation yet invented.
As AP reports: "Common Cause, a non-partisan group that advocates campaign
finance reform, calculates that trial lawyers gave $2.7 million to Democrats
in 1999. That is about 1,000 times more than trial lawyers donated to Republicans
last year, and twice the amount donated in the same period during the last
election cycle." (Anne Gearan, "GOP keeping minority judges off bench,
Clinton says", AP/Bergen County (N.J.) Record, July
31). However, you would be wrong if you imagine that Common Cause,
as "a non-partisan group that advocates campaign finance reform", might
see cause for concern that those donations might not entirely further the
public interest. After all, Common Cause recently named as its president
Scott Harshbarger, former Democratic attorney general of Massachusetts,
who in that office worked closely with trial lawyers and in fact bestowed
on them a tobacco representation agreement
which brought them an unprecedented fee bonanza. And now Mr. Harshbarger,
newly speaking for Common Cause and quoted in the Times piece, ardently
defends the particular special interest he has reason to know best, saying
massive
trial lawyer donations are no more than an appropriate way of leveling
the playing field given that those whom the lawyers sue -- which includes
pretty much every other group in the economy -- also donate a lot to politicians.
In the new Common Cause universe, it seems, some special-interest influences
on politicians are a lot more objectionable than others.
August 1 -- "Lawsuits
to fit any occasion". According to the L.A. Times,
a 43-year-old local attorney has been involved in 82 lawsuits on his own
behalf since 1982. Robert W. Hirsh "sued the single mother he hired
to stain the woodwork in his Hancock Park Tudor-style home, claiming she
left some streaks on the wood. He sued his stockbroker for not getting
him into Microsoft stock." He sued a dissatisfied client to demand
his fee, and then, when an arbitration panel instead awarded the client
$25,000 against him, sued the lawyers who had represented him in the arbitration.
"Hirsh even sued the synagogue where he was married, claiming that the
religious elders had botched the catering of his wedding by, among other
things, serving his guests cold vegetables and not giving his family all
the leftovers. 'Either he has the worst luck in the world, or he
likes to sue,'" said Loyola law prof Laurie Levenson. Many of the
suits have succeeded in bringing him settlements, but Hirsh (who also disputes
the number of cases in which his critics say he has been involved) now
faces a proceeding under California's rarely used court rules against vexatious
litigants, which could curb his activities in future. ("Davan Maharaj,
"Lawsuits to Fit Any Occasion". Los Angeles Times, July
29).
August 1 -- Movie
caption trial begins. Trial set to begin this week in
a closely watched lawsuit in which Portland, Oregon, deaf activists have
charged movie theater proprietors with violating the Americans
with Disabilities Act because they haven't installed elaborate captioning
systems throughout the theaters (Kendra Mayfield, "Films Look to Captioned
Audience", Wired News, July
28). Meanwhile, the recording industry is concerned that a system
installed to help the hearing-impaired at live concerts has become a prime
vehicle for bootleggers to obtain concert tapes of unusually high quality
for pirate sale; the ADA requires arenas to offer the assistive listening
devices (Larry McShane, "Bootleggers Use Hear Aid to Record", Yahoo/AP,
July
30). And given the ADA's many unintended consequences, outrageous
results and manifest failures, Chicago Tribune columnist Steve Chapman
wonders why tenth-anniversary press coverage of the act's passage took
such an overwhelmingly celebratory tone; his column quotes our editor ("The
Other Side of the Disabled Rights Law", July
30).
