July 10 -- Tobacco:
why stop at net worth? Trial judge Robert
Kaye, presiding over the Engle
tobacco class action in Miami (see July 8,
1999, Sept. 28, June
2, our
WSJ
take July 1999), has declared that in calculating a basis for punitive
damages there's no reason jurors should feel obliged to stop at a sum representing
the tobacco companies' net worth. "There's much more to this case
than net worth or stockholder equity," he said. Earlier, Judge Kaye
ruled that it was proper to place before the jury the companies' capacity
to borrow funds to help meet a punitive damage award, and also agreed to
let the jury consider companies' operations worldwide in assessing those
damages, though foreign countries might wonder why the hypothesized victimization
of smokers worldwide should result in a punitive payoff exclusively to
(certain) Floridians, and though overseas court systems are generally far
more averse than ours to the award of punitive damages. Moreover,
Judge Kaye "barred the defendants from arguing to the jury that they have
already been punished enough by their earlier settlements with states valued
at $246 billion" even though those settlements took place in the shadow
of demands for punitive damages. (Imagine copping to a plea bargain
in one court over your past doings, and then finding you get no double
jeopardy protection when hauled up for punishment by a second court --
after all, your plea bargain was "consensual", so how can it count as punishment?
But American courts are in fact permitted to assess punitive damages against
civil defendants an unlimited number of times to chastise them for a single
course of conduct, so it's not as if any due process is owed or anything.)
Plaintiffs offered an expert witness, Prof. George Mundstock of Univ.
of Miami School of Law, who testified that the nation's five biggest cigarette
makers "are worth $157 billion domestically and have a 'strikingly rosy'
future", per AP, which appears to make hash of suggestions that lawyers'
efforts previous to this point have made a vital difference in putting
us on the road to a "smoke-free society". Mundstock's methodology
reportedly reduced to a present value stream the surplus of all future
tobacco company income over expenses. Even the Wall Street Journal's
Milo Geyelin, not a reporter suspected of pro-business leanings, writes
that Kaye's handling of the legal issues in the suit has been "unorthodox".
At the New York Times, meanwhile, reporter Rick Bragg last month
interviewed several of the dozen or more smoking-ravaged spectators who
throughout the trial have taken highly visible seats in the courtroom day
after day where the jury can hear and see their labored breathing, oxygen
tanks, and mechanical voice boxes. While extracting considerable
human-interest content from these interviewees, Bragg's story does not
display the least curiosity as to whether the idea of attending just happened
to occur to all of them spontaneously, or instead, as defendants have hinted,
was the result of an orchestrated effort by plaintiff's attorneys Stanley
and Susan Rosenblatt, which might have been ruled out of bounds as manipulative
and prejudicial by a jurist less agreeable to the plaintiffs' cause than
Judge Kaye.
SOURCES: Milo Geyelin, "Judge Won't Allow Tobacco Industry
To Cite Settlements",
Wall Street Journal, May 18; "Jury can hear
about tobacco industry's borrowing power, judge rules", FindLaw, May 31,
no longer online; "Economist estimates tobacco industry worth $157 billion",
AP/FindLaw, June 6, no longer online; Gordon Fairclough, "Judge in Smoking-Illness
Suit Tells Jury Not to View Settlements as Punishment", Wall Street
Journal, June 14; "Judge KO's Tobacco Try on Damages", AP/FindLaw,
July
6; Milo Geyelin, "Judge Reverses, Lets Jury Weigh Foreign Tobacco Sales",
Wall
Street Journal, June 7; Rick Bragg, "Where Smoking Damages Are Argued,
Plaintiffs Fight for Air", New York Times, June
3.
July 10 -- "Why
You Can't Trust Letters of Recommendation". Fear
of lawsuits isn't the only factor inhibiting candid letter-writing in higher
education, but it's an important one, especially since a recent decision
by the Virginia Supreme Court stripped professors of immunity for allegedly
defamatory reference-giving in the tenure process. Open-records laws
add to the difficulties, as in the University of California system, where
job candidates enjoy a big head start in figuring out who's saying what
about them (Alison Schneider, "Why You Can't Trust Letters of Recommendation",
Chronicle
of Higher Education, June
30) (via Arts &
Letters Daily).
July 10 -- Wonder
Bread hierarchy too white, suit charges. What more
symbolically fraught company to get sued on race discrimination charges
than Wonder Bread? Bay Area politician/attorney Angela Alioto, representing
21 black workers at Interstate Brands'
San Francisco bakery, thinks $260 million an appropriate amount to ask
for failure to promote and other sins; the trial began May 24. A
feud has also developed between Alioto and co-counsel Waukeen McCoy, with
Alioto accusing McCoy of swiping three of her clients. (Dennis J.
Opatrny, "Wonder Bread Race Discrimination Trial Opens in S.F.", The
Recorder/CalLaw, May
30; Alioto website).
Update: jury awarded $11 million in compensatory and $121 million
in punitive damages (see Aug. 4).
July 7-9 -- Veeps
ATLA could love. For the organized plaintiff's bar, more
reason to smile: recent speculation about a running mate pick for Al Gore
has centered on such names as Senator Dick Durbin (D-Ill.) and Defense
Secretary Bill Cohen, a Republican Senator from Maine before joining the
Clinton Administration. Trial lawyers have had few better friends
in the U.S. Congress than Durbin, who's taken a prominent role in advancing
their interests in virtually every hot area of recent years: tobacco
(where, notwithstanding language on his website about how he's worked to
prevent "unnecessary
windfalls for special interests", he led the successful fight against
limiting multi-billion-dollar lawyers' fees), gun
and HMO liability (in both cases sponsoring
legislation that would make it easier to sue) and product
liability (where he helped lead opposition to various GOP-sponsored
bills, such as one to ease liability pressure on biomaterials used in implants
and other advanced medicine). (PBS "NewsHour with Jim Lehrer" transcript,
May
19, 1998 (tobacco -- scroll to near end); Bob Barr (R-Ga.) press release
on Durbin gun bill, March
4, 1999; Durbin press release on HMO liability, April
29, 1998; Jeffrey J. Kimbell, "Biomaterials Access Bill Continues To
Move Through Congress", American Society for Artificial Internal Organs,
undated
1998) (also see May 8). Cohen,
though unlike Durbin not closely identified with the trial lawyer agenda,
has the unusual distinction of having worked early in his career for both
the Association of Trial Lawyers of America (as an assistant editor-in-chief)
and the Maine Trial Lawyers Association (as vice president); not surprisingly,
he acquired a reputation on the Hill as one who often strayed from the
Republican fold on litigation issues. (Biographical
note, University of Maine/Orono; Ramesh Ponnuru, "The Case for Bill
Cohen", National Review Online "Washington Bulletin", July
3). (DURABLE LINK)
July 7-9 -- Inmate:
You didn't supervise me. A former inmate at the Spartanburg
County, S.C. jail has filed a lawsuit saying officials negligently failed
to supervise him while he engaged in horseplay
alone in his cell. Torrence Johnson, of Rock Hill, who was in jail
after his arrest on charges of driving with a suspended license and another
traffic infraction, says he fell and broke a vertebra with resulting paralysis.
"If jail personnel had done a better job of supervising him, Johnson claims,
he never would have been able to engage in the 'horseplay' that paralyzed
him." "He stood up on a desk in his cell and was cutting back flips
off of it," said jail director Larry Powers. "With the small number of
detention officers we have, there's no way that we can constantly monitor
every inmate continuously around the clock." (Tom Langhorne, "Paralyzed
man blames jail for injury", Spartanburg (S.C.) Herald-Journal,
July
6).
July 7-9 -- The
Wal-Mart
docket. The world's largest retailer gets sued with such regularity
that an enterprising Nashville lawyer has erected a site entitled the Wal-Mart
Litigation Project devoted to the subject. You can browse 99
Verdicts Against Wal-Mart, search for attorneys who volunteer a willingness
to sue the company, or consult a price
list of packets you can buy on dozens of specialized topics such as
"Pallets or Dollies Left in Aisle Ways (12 items, $100)" "Shopping Carts
- Overloaded (4 items, $45)", and "Restrooms - Water on Floor (3 items,
$40)". Some of the bigger-ticket lawsuits against the chain assert
liability over the sale of guns later
used to commit crimes, over abductions and other crime occurring in parking
lots, and over tobacco sales: a suit
in Arkansas last year labeled the retailer a "co-conspirator" with cigarette
companies. Update: for another suit, see July
21-23.
SEE ALSO: "Ala.Wal-Mart to pay up to $16 million over
shotgun used to kill woman", AP/Court TV, Feb.
23; Trisha Renaud, "Tangled Mind, Tangled Case", Fulton County Daily
Report (Atlanta), March
24; Bob Van Voris, "Wal-Mart Discovery Tactics Hit", National Law
Journal, March
29; Bob Van Voris, "More Sanctions for Wal-Mart",
National Law Journal,
April
14; Seth Blomeley, "Pair sues Wal-Mart, tobacco firm, calls them 'co-conspirators'",
Arkansas Democrat-Gazette, Dec. 16, 1999 (no longer online); Bob
Van Voris, "Wal-Mart's Bad Day", National Law Journal, June
5.
July 7-9 -- Welcome
Australian Bar Association members. Our editor was a featured
speaker at the Association's conference
in New York this week, which has helped boost this site's already considerable
traffic from Down Under. For more on Dame Edna's fateful gladiolus
toss, mentioned in our remarks, see our May
26 commentary.
July 6 -- Foreign
policy by other means. The Constitution entrusts to the
President and his appointees the task of managing this nation's relations
with foreign powers, but now some in Congress are keen on giving private
litigators ever more authority to initiate courtroom fights against those
foreign powers, whether or not the State Department considers that such
hostilities fit well into a coordinated national policy. A bill that
would entitle U.S. victims of Iranian-backed terrorism to collect compensation
payments from blocked Iranian bank accounts is moving swiftly on Capitol
Hill, despite a plea from the Clinton Administration's Stuart Eizenstat
that significant foreign policy interests of the government will be impaired
if blocking of foreign assets becomes simply a preliminary to attachment
of those assets on behalf of particular injured litigants. (Jonathan
Groner, "Payback Time for Terror Victims", Legal Times (Washington),
June
7). The touchy issue of U.S. relations with member nations
of OPEC has in the past and might someday again engage this nation in armed
conflict abroad, but Rep. Benjamin Gilman, R-N.Y., chairman of the House
International Relations Committee, has just introduced a Foreign Trust
Busting Act that could empower litigants to seize OPEC assets in this country,
removing a legal obstacle known as the "Act of State" doctrine, under which
U.S. courts generally avoid ascribing liability to the official acts of
foreign governments. Presumably oil sheiks would proceed to submit
to depositions in American courtrooms and negotiate over the size of the
fees payable to entrepreneurial class action lawyers. (Ted Barrett,
"Bill will allow antitrust suits against OPEC", CNN, June
24). And lawyers for Argentine veterans and relatives are in
Strasbourg, France, preparing to file a war crimes case against Great Britain
over the 1982 sinking of the cruiser General Belgrano, which killed 323
seamen; Britain and Argentina were at war at the time over Argentina's
invasion of the Falkland Islands. ("Argentine war victims sniff justice
in Belgrano case", Reuters/CNN, July
3) (see Feb. 14 commentary and links
there, and July 14).
July 6 -- Trial-lawyer
candidates. New York Press columnist Chris
Caldwell, reflecting on the New Jersey Senate primary victory of Goldman
Sachs executive Jon Corzine, predicts that more millionaire candidates
will enter Democratic politics by staking their own campaigns, but says
"[i]t’s unlikely most of them will be finance executives. More probably,
they’ll resemble North Carolina Sen. John Edwards, who made his 25 million
as a trial lawyer. Trial lawyers are the Democratic Party’s biggest contributors,
and the party repays the favor by helping create a favorable litigating
climate, and even breeding such golden-egg-laying geese as the various
state tobacco agreements. But they’re
increasingly coming to the conclusion that there’s no reason to bribe the
party when you can run it yourself.
"Typical of the new lawyer/candidate class is Minnesota’s Michael Ciresi,
who’s seeking the Democrat/ Farm[er]/ Labor nomination for Senate. Ciresi’s
law firm got $400 million of Minnesota’s tobacco money. Why? Because
then-state Attorney General Skip Humphrey (Hubert’s son) said it should.
We seem to be arriving at a situation in which it is the government itself
that puts up candidates." ("Hill of Beans: Iron Jon (second item),
New York Press, June
13).
July 6 -- Update:
Canadian skydiver recovers damages from teammate.
A judge has awarded C$1.1 million ($748,000) to Gerry Dyck, a veteran skydiver
who sued teammate Robert Laidlaw for allegedly failing to exercise proper
care toward him during a dive. The case, along with other recent
suits, had been criticized by some in the skydiving community as bad for
the sport (see May 26) ("Canadian skydiver
wins lawsuit against teammate", Reuters/FindLaw, June
26).
July 5 -- Feds'
own cookie-pushing. Even as the White House and
Senators wring their hands over the threat to privacy posed by visitor
tracking by private websites, dozens of federal agencies use cookies
to track visitors, including those dispensing information on such sensitive
topics as drug policy and immigration. (Declan McCullagh, "Feds'
Hands Caught in Cookie Jar", Wired News, June
30; Eric E. Sterling, "Uncle Sam's 'cookie' is watching you", Christian
Science Monitor, July
3). So does the website of a New Jersey Congressman who's expressed
high dudgeon about privacy issues in the past (Declan McCullagh, "How Congressional
Cookies Crumble", Wired News, June
30; John T. Aquino, "Senate Online Profiling Hearing Suggests Movement
Toward Federal Legislation", E-Commerce Law Weekly, June
16). Meanwhile, state attorneys general, emboldened by taking
tobacco and Microsoft scalps, are moving closer to filing cases against
cookie-setting dot-coms: "It's like the thought police. It's really
an alarming specter in terms of privacy", claims Michigan AG Jennifer Granholm,
of the ability of servers to detect particular repeat visitors to their
sites (Gail Appleson, "States may launch privacy suits", Reuters/ZDNet,
June
20). The Federal Trade Commission has moved to regulate privacy
policies at financial services sites, and is asking Congress for legislation
that would extend its authority much further (Keith Perine and Aaron Pressman,
"FTC Publishes Internet Privacy Rule", Industry Standard/Law.com,
May
16; Keith Perine, "FTC Asks Congress for Online Privacy Laws", Industry
Standard/Law.com, May
24).
July 5 -- Prospect
of injury no reason not to hire. In May, the Ninth
Circuit U.S. Court of Appeals ruled that employers can't deny a job to
a disabled applicant even if the work poses a "direct threat" to that applicant's
health or safety. Chevron had turned away Mario Echazabal for
a job at the "coker unit" of its El Segundo, Calif., oil refinery in 1995
after a pre-employment exam revealed that he had a liver disorder that
the company's doctors feared would worsen in the unit's harsh environment
("coker units" explained: Industrial
Fire World site). Prominent liberal jurist Stephen Reinhardt, writing
for a unanimous three-judge panel, held that it should be up to a disabled
worker whether to risk a toxic exposure -- never mind that the employer
will predictably be presented with much or all of the bill if the exposure
does wind up incapacitating the worker. Jeffrey Tanenbaum, with the
San Francisco office of the management-side law firm Littler Mendelson,
said "either the decision is terribly wrong, or the ADA
is written in a ludicrous manner," because "it makes no sense to make an
employer violate a federal or state health and safety law," referring to
Occupational Safety and Health Administration statutes that require employers
to avoid exposing employees to injury. (Michael Joe, "Employment
Bar in Tizzy Over 9th Circuit Decision", The Recorder/CalLaw, June
16).
July 5 -- "Exporting
tort awards". Study of more than 7,000 personal
injury cases by Eric Helland (Claremont McKenna College) and Alexander
Tabarrok (Independent Institute) finds civil awards against out-of-state
defendants ran an average of $652,000 in states where judges reach office
by partisan election, but only $385,000 where selection is nonpartisan.
For cases against in-state defendants, the gap was a narrower $276,000
vs. $208,000 -- suggesting that while one effect of partisan judicial elections
may be to raise the level of awards, an even more important effect may
be to worsen the bias against out-of state entities which are not represented
in a state's political process but are subject to wealth redistribution
by its courts ("Exporting
Tort Awards", Regulation, vol. 23, no. 2 (autoredirects to pdf
document); "The
Effect of Electoral Institutions on Tort Awards" (links to pdf document),
Independent Institute Working Paper #1).
July 5 -- We probably
need a FAQ. "Does your law firm handle driving under
the influence cases?" -- thus a recent email to this site from a Mr. R.S.
We do seem to spend an inordinate amount of time explaining to correspondents
that we aren't a law firm or legal referral service, and that we can't
advise folks with their legal problems, no way, nohow -- both from lack
of time and inclination and because we fear being dragged off to the Unauthorized
Practice dungeons where they stow people who presume to dispense such advice
without advance permission from the bar.
July 3-4 -- "Parody
of animal rights site told to close". Several years
ago internet entrepreneur Michael Doughney registered the web
address www.peta.org and used it to put up a site called People Eating
Tasty Animals, parodying the militant animal
rights group People for the Ethical Treatment of Animals. Now
a federal judge "has ordered him to relinquish the web address to PETA
and limit his use of domain names to those not 'confusingly similar'".
Doughney's lawyer says he plans to appeal and says it's not a cybersquatting
case because his client had no wish to sell the domain name but simply
wanted to use it for parody. Doughney has moved the site here;
it includes a substantial list of links to sites which take the position
that there's nothing unethical about animal husbandry as such, as PETA
would have it. ("Parody of animal rights site told to close", Ananova.com,
June
21; "Domain Strategies for Geniuses", Rick E. Bruner's Executive Summary,
May
12, 1998). As for PETA, it's not a group to shy away from charges
of hypocrisy: it itself registered the domain name ringlingbrothers.com
and used it for a site decrying alleged mistreatment of circus animals.
A lawsuit by the real Ringling Brothers Circus ended with PETA's agreement
to relinquish the name. ("PETA’s Internet hypocrisy", Animal Rights
News (Brian Carnell), May
18, 1998; DMOZ).
July 3-4 -- Multiple
chemical sensitivity from school construction. At
Gloucester High School on Massachusetts's North Shore, some present and
former staff members and students have sued the architects and contractors
after a school construction project whose fumes, some of them say, sensitized
them to the point where they now grow ill from a whiff of window cleaner,
perfume, hairspray, or new upholstery, or even from contact with people
who've laundered their clothes in regular detergent. The reporter
doesn't quote anyone who seems familiar with the skeptics' case against
MCS,
but to us this sounds like a case for Michael
Fumento (see his "Sick of It All", Reason, June
1996). (Beth Daley, "Disrupted lives", Boston Globe, June
26)
July 3-4 -- A Harvard
call for selective rain. "So far, legislators, loath
to tamper with the dot-com wealth machine powering the U.S. economy, have
left Web companies alone. But Jonathan
Zittrain, executive director of Harvard's Berkman Center for Internet and
Society, believes that era is ending. Hot-button issues like personal privacy
are putting Web companies under a microscope, he says. And continuing advancements
in technology will soon make it easier for companies to patrol their sites
much more aggressively. 'No one wants to rain on the Internet parade
so much that you wash it out,' Mr. Zittrain says. 'But people are starting
to realize you'll be able to very selectively rain on the parade'".
Aside from feeling some alarm at the content of these remarks by Mr. Zittrain,
we hereby nominate them for the Unfortunate Metaphor Award: if rain is
the sort of thing he thinks can be made to fall "very selectively", why
do we keep hearing that it falls on the just and the unjust alike?
(Thomas E. Weber, "E-World: Recent Flaps Raise Questions About Role of
Middlemen on Web", Wall Street Journal, June
5) (fee).
July 3-4 -- Overlawyered.com
one year old. We started last July 1 and have set
new visitor records in nearly every month since then, including last month
... thanks for your support!
