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ARCHIVE -- APR. 2001
(III)
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April 30 -- Michigan
prisoner sues for recognition as Messiah. "A prisoner
who claims he is God has sued the U.S. government, the state of Michigan,
a book publishing company, a radio program and several others." The
case of inmate Chad De Koven, 43, reflects a more serious problem: in spite
of reforms at both the federal and state level that have aimed at curbing
unmeritorious suits by those behind bars, "Michigan Assistant Attorney
General Leo Friedman heads a division of 19 lawyers who do nothing but
handle prison litigation." (Crystal Harmon, Bay City Times, March
28). Update May 14: judge
dismisses case in 22-page opinion.
April 30 -- "States
Mull Suit Against Drug Companies". Latest nominee
for Next Tobacco designation are the folks who've allegedly charged too
much for saving our lives: "In an action modeled on their 1998 class action
lawsuit against the tobacco industry, at least six states are poised to
go to court to try to force pharmaceutical companies to lower prescription
prices ... Attorneys general in Florida, Georgia, Maine, Massachusetts,
Nevada and Texas are among those considering legal action, officials from
some of the offices said. ... A catalyst for state legal action is
Florida businessman Zachary Bentley, who is going from state to state urging
state attorneys general to sue drug manufacturers." Bentley, himself
a disgruntled competitor of the drug companies, says they overstate the
average wholesale price of many drugs so as to boost what Medicare and
Medicaid programs will pay for them. "Under whistleblower and federal
False Claims laws, Bentley gets a portion of any settlement that results
from what he's revealed." (Mary Guiden, Stateline.org, April
2)(more on False Claims Act: July 30).
April 30 -- "Radio
ad pulled after lawyers object". Following protests
from the state bar association, the Kentucky transportation department
last month agreed to stop airing a traffic-safety radio ad based on a well-worn
lawyer joke. The joke? "A car full of lawyers turned over right
in front of old man Jenkins' place. He comes out and buries them all. The
sheriff asked old man Jenkins, 'You sure they were all dead?' 'Well,' says
Jenkins. 'Some said they weren't. But you know how them lawyers lie.'''
The ad urged motorists to slow down so as not to meet a similar fate.
(Jack Brammer, Lexington (Ky.) Herald-Leader, March
27).
April 27-29 --
Victory in Albany. Unanimous, long-awaited, and devastating:
by a 7-0 vote New York's highest court yesterday rejected the most important
elements of the much-hyped lawsuit Hamilton v. Accu-Tek,
which seeks retroactively to tag gun manufacturers
with liability for criminal misuse of their products. Answering two
questions  certified
to them by the federal Second Circuit, the jurists of the New York Court
of Appeals declined to impose a new legal duty of gun manufacturers toward
anyone who might fall victim to post-sale misuse of guns, and also ruled
out the application of "market-share liability", the adventurous theory
by which plaintiff's lawyers were attempting to impose liability on gunmakers
without having to show that their guns figured in particular shootings.
Both rulings stand as a reproof to activist federal judge Jack Weinstein,
who had kept the Hamilton suit alive despite many indications that
it had no grounding in existing law. (Joel Stashenko, "Court says
gun manufacturers not liable", AP/Albany Times-Union, April
26; "N.Y. Gun Ruling Could Have National Impact", AP/FoxNews.com, April
27; John Caher, "New York Rules Gun Manufacturers Not Liable for Injuries",
New York Law Journal, April
27; read
full opinion (PDF) -- Firearms Litigation Clearinghouse site).
Other judges have lately thrown out of court municipal antigun suits
filed on behalf of New Orleans and Miami (Susan Finch, "N.O. gun suit shot
down", New Orleans Times-Picayune, April
4; Susan R. Miller, "Appeals Court Halts Miami-Dade Suit Against Gun
Industry", Miami Daily Business Review, Feb.
15). And the Florida legislature has voted on largely partisan
lines, with Democrats opposed, to join 26 other states in spelling out
explicitly that cities, counties and other subdivisions of state government
have no authority to file recoupment actions against gun makers and dealers
over criminals' misdeeds ("Florida Legislature Votes to Insulate Gunmakers".
Reuters/Yahoo, April
25; see also Charlotte Observer, April
26) (N.C. bill). Unfortunately, judges have recently allowed
novel anti-gunmaker suits to proceed in Chicago and Atlanta; and as the
gun-control-through-lawyering crowd knows too well, even a few eventual
breakthroughs for their side may be enough to ruin this lawful industry
(Todd Lighty and Robert Becker, "Gun victims' lawsuit against firearms
industry can move forward", Chicago Tribune, Feb.
15).
MORE: Jeff Donn, "Maker of the .44 Magnum turns to golf
putters and teddy bears", AP/Minneapolis Star Tribune, April
14 (after the failure of its attempt to cut a deal with its legal tormentors,
S&W struggles to stay afloat; one lawsuit had cost the company $5 million
just to be dropped from the case); Tanya Metaksa, "Smith & Wesson’s
Deal With the Devil", FrontPage, April
12; Kris Axtman, "Gunmakers not about to run up white flag", Christian
Science Monitor, Dec.
15. Politicians have begun to move away from reflexive antigun sloganeering
as election results have made clear that the supposed antigun consensus
in American public opinion is no consensus at all (Michael S. Brown, "Gun
Control: What Went Wrong?", FrontPage, April
26).
April 27-29 --
"Iowa Supreme Court says counselors liable for bad advice".
"A high school guidance counselor
can be held responsible for giving wrong advice to a student that damages
the student's educational goals, the Iowa Supreme Court ruled Wednesday."
Katie, bar the door! (AP/CNN, April
26).
April 26 -- "Legal
action prolongs whiplash effects: experts". Yet
another study, this time from researchers at the University of Adelaide,
Australia, finds that after auto accidents people experience more pain
and quality-of-life deterioration if they are pursuing litigation (Australian
Broadcasting Corporation, April
12) (see April 24, 2000). Also
see Kevin Barraclough, "Does litigation make you ill?" British Medical
Journal, March
31.
April 26 -- Judge
offers "court phobia" defense. Court-appointed special
masters found that Los Angeles County Judge Patrick Murphy took more than
400 days of unjustified sick leave at taxpayer expense since 1996.
They were not "impressed with what they called his 'evolving defense,'
which began with claims that his political opponents were behind the accusations
and 'matured' into a defense that he was disabled because of a 'phobic
reaction to judicial activities.'" (Sonia Giordani, "Los Angeles
Judge's 'Court Phobia' Defense Falls Flat", The Recorder, April
12).
April 26 -- The
law must be enforced. In St. Cloud, Florida, 12-year-old
Derrick Thompson tried to cross a street against the traffic and got hit
by a truck, to onlookers' horror. Dazed and bleeding, Derrick
got another surprise minutes later when town police handed him a ticket
for jaywalking. (Susan Jacobson, "Ticket seen as insult to injury",
Orlando Sentinel, April
13).
April 25 -- While
you were out: the carbonless-paper crusade. Some people
are convinced their health has been damaged by ordinary workplace exposure
to the chemicals present in carbonless paper, the material used in pressure-sensitive
memo slips and similar office supplies. ("Carbonless Copy Paper --
The Injury and Information Network", carbonless.org).
Although the product's makers, such as Appleton
Papers and the Mead Corporation, deny that there's anything to be feared
from working with receptionist's pads or other multiple forms, a number
of news reports have uncritically accepted the idea of a causal
link between the paper and the ills complained of -- to MSNBC's Francesca
Lyman, for example, "probably thousands" have fallen victim to the scourge,
showing how "a seemingly benign product could leave a trail of damage".
("The carbonless paper caper", MSNBC, Jan.
17 (page now removed, but GoogleCached); see also Keith Mulvihill,
"Sick of Paperwork? Some Office Workers Say It's the Paper", New York Times,
Sept.
26, 1999 (reg); Tracy Davidson, WCAU-TV Philadelphia "Consumer
Alert"). Inevitably, those who feel victimized are filing suits
against companies that manufacture the product.
None of the activists have figured more prominently in news stories
than Brenda Smith of Virginia Beach, Va., who filed suit in 1993 over a
variety of symptoms including "headaches, sinus and allergy problems, skin
and eye irritation, sore throats, respiratory infections, bronchitis,"
and others, which she believes resulted from exposure to the chemicals
in carbonless paper at her job. “The potential for litigation from
worker’s compensation to product liability is huge,” she told The American
Enterprise. However, the magazine also unearthed one extra
little fact which the earlier press reports had neglected to mention: that
"the health-afflicted Brenda Smith was addicted to cigarette smoking, which
she admitted to TAE when we bothered to ask. Apparently some
reporters didn’t think that fact advanced their story." ("Scan", The
American Enterprise, April/May
(scroll down to "Smoking Gun")) See also Bob Van Voris, "Scents
or Nonsense?", National Law Journal, Nov.
6, 2000. NIOSH
review (PDF -- very long)(& see letter to the editor, May
18).
April 25 -- Value
of being able to endure parody without calling in lawyers: priceless.
When MasterCard sent its lawyers to do a cease and desist routine on rec.humor.funny
over a tasteless parody of its "Priceless"
ad campaign, list founder Brad Templeton posted this
tart riposte on NetFunny.com (April).
April 24 -- Put
the blame on games. The lawyer for survivors of
a murdered Columbine teacher
has sued 25 media companies, mostly makers and distributors of video
games whose violence he says incited the perpetrators of the crime.
Attorney John DeCamp claims to be "100 percent on the side of the First
Amendment" when he isn't filing actions like this, and equally predictably
says it's not really about the money, which isn't keeping him from demanding
that the defendants fork over $5 billion-with-a-"b". (Kevin Simpson, "Slain
teacher's family launches suit aimed at media violence", Denver Post,
April
21). Update Mar. 6, 2002:
judge dismisses case.
April 24 -- Pennsylvania
MDs drop work today. "Hundreds of physicians
from Southeastern Pennsylvania plan to shut down their offices and leave
their hospital posts [Tuesday] to go to Harrisburg to insist that lawmakers
enact insurance-tort reforms and give them relief from soaring malpractice-insurance
premiums. ... According to the Pennsylvania Medical Society, obstetricians
in the Philadelphia region pay an average of $84,000 yearly in malpractice
insurance, while the same doctors in New Jersey pay about $58,000, and
in Delaware, $52,000. Neurosurgeons pay $111,000 for coverage in Philadelphia.
If their practices were in New Jersey, the rate would be about $75,000."
(see Jan. 24-25). Timothy Schollenberger,
president of the state trial lawyers' association and evidently a man given
to bold denials, says the protest is misplaced: "tort law is not a significant
factor in making [malpractice] premiums rise or fall". Kind of like
an oil sheik denying that OPEC crude price hikes have anything to do with
the cost of gas at the pump, isn't it? (Ovetta Wiggins, "Doctors
to protest premium increases", Philadelphia Inquirer, April
23).
April 24 -- Bush's
environmental centrism. The press has decided to make
President Bush's supposed anti-environmentalism the story du jour,
but in fact "on almost every environmental
issue, Bush has upheld the Clinton-Gore position." (Gregg Easterbrook,
"Health Nut", The New Republic, April
30).
Among Bush proposals to meet with support from many centrists and Democrats
is the one for a year-long moratorium on pressure groups' use of endangered-species
lawsuits to drive the agenda of the Fish and Wildlife Service; see Bruce
Babbitt, "Bush Isn't All Wrong About the Endangered Species Act," New York
Times, April
15 (reg); Michael Grunwald, "Bush Seeks To Curb Endangered Species
Suits", Washington Post, April
12 ("The litigation explosion has been so bad, we couldn't even list
species that were going over the edge," said Jamie Rappaport Clark, who
directed the service under Clinton. "We asked the courts to let us
set our own priorities, but they wouldn't budge.")(see Dec.
4, 2000).
April 24 -- Washington
Post editorial on cellphone suit. We've appended
highlights from yesterday's refreshingly blunt Post editorial ("More
Dumb Lawsuits") to the item below on the Angelos onslaught against mobile
telephony. Is it too much to hope that the New York Times
or L.A. Times will someday start being even half as editorially
sensible about litigation issues as the Post is?
April 23 -- Sorry,
wrong number. As expected, Baltimore tort tycoon Peter
Angelos filed suit against 25 defendants
including Nokia, Motorola, Ericsson, Verizon, Sprint and Nextel accusing
them all of concealing the brain-frying horrors of cellular telephone use.
"The suits do not claim that anyone has actually suffered an illness."
(Peter S. Goodman, "Angelos Suits Allege Cellular-Phone Danger", WashTech.com/
Washington Post, April
19). In an editorial bluntly titled "More Dumb Lawsuits",
the Washington Post declares, "There is now a new way to satisfy
the bemused foreigner who asks why a nation so proudly founded upon the
rule of law is marked by such contempt for lawyers. Just tell the foreigner
about the litigation against cell-phone makers that Peter Angelos began
on Thursday." Moreover, Angelos is demanding a remedy (free headsets)
that "makes no sense ... Mr. Angelos is seeking to replace a situation
in which consumers are free to buy headsets if they choose with one in
which they indirectly are forced to pay for them -- and to pay Mr. Angelos's
fees into the bargain." (April
23). Update Oct. 1-2, 2002:
court dismisses case.
April 23 -- Seventh
Circuit rebukes EPA. A U.S. Court of Appeals has
rebuked the Environmental Protection
Agency, dismissing the Superfund suit in which the agency sought permission
to enter and dig up the 16-acre property of John Tarkowski, a disabled
and indigent building contractor in Wauconda, Ill. Tarkowski's habit
of accumulating surplus materials, from which he has constructed his house,
has annoyed many of his upscale neighbors, but repeated investigations
have failed to find any serious contamination on his property.
Rejecting the government's arguments, the appeals court held that EPA "sought
a blank check from the court. It sought authorization to go onto Tarkowski's
property and destroy the value of the property regardless how trivial the
contamination that its tests disclosed.'' And: "In effect, the agency is
claiming the authority to conduct warrantless searches and seizures, of
a particularly destructive sort, on residential property, despite the absence
of any exigent circumstances. It is unlikely, even apart from constitutional
considerations, that Congress intended to confer such authority on the
EPA.'' ("U.S. Court of Appeals Dismisses EPA Suit Threatening to Destroy
Elderly Wauconda Man's Property", press release from Mayer, Brown &
Platt (whose Mark Ter Molen represented Tarkowski pro bono), Yahoo
Finance/Business Wire, April
20).
April 23 -- If
I can't dance, you can keep your social conservatism.
The town of Pound in Virginia's coal-mining western corner has an ordinance
on the books that bans public dancing without a permit. Bill Elam
is defying the law by operating his Golden Pine nightclub, while local
clergy hope the town sticks to its guns: "I can never see a time when dancing
can be approved of, especially with people who are not married," said one.
("Virginia town outlaws dancing", Nando Times, April
16).
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