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ARCHIVE -- JULY 2001
(III)
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July 31 -- 1.5
million pages served on Overlawyered.com. Last
month set a new visitor traffic record, and this month will set another
one .... Thanks for your support!
July 31 -- N.J.:
172 nabbed on fake car-crash charges. "Capping a 19-month
investigation, prosecutors [July 19] announced the indictment of 172 people
in New Jersey, including a medical doctor, a lawyer and two chiropractors,
charging them with staging 19 automobile accidents and filing false medical
claims totaling more than $5 million. ...'Runners' would recruit drivers
and passengers, who would meet ahead of time, typically in West New York,
N.J., to discuss details of the staged collisions, which were mostly minor,"
according to first assistant Hudson County prosecutor Terrence Hull.
"Participants were paid up to $2,500 and would be coached about the types
of injuries to fake, Mr. Hull said." ("False Claims From Fake Crashes Leads
[sic] to Charges Against 172", New York Times, July 20, not online).
Meanwhile, a detailed Boston Globe front-page investigation finds
that lawyers employing "runners" to bring in accident business are contributing
to a sharp run-up in the cost of auto insurance fraud in Massachusetts;
one of the state's biggest personal injury law firms "is under investigation
by federal authorities for participating in a criminal scheme that resulted
in more than $50,000 worth of claims being filed from a staged accident."
(Stephen Kurkjian, "Injury claims flourish in loophole", Boston Globe,
July
16; "Study ID's high injury claim areas", July
19). "Massachusetts is not alone in experiencing a dramatic increase
in payments for suspicious injuries from minor automobile accidents. Fed
by runners who are arranging for faked accidents and phony personal injury
claims, medical payments made by auto insurers jumped by more than 30 percent
last year in New York, according to a study by the Insurance Information
Institute, an industry research group, in March." (more).
July 31 -- Global
warming suit? "States like Bangladesh that are the victims
of climate change have a good case in law for suing polluters
like the United States for billions of dollars, a law professor will tell
a London conference today. With the US delaying action on climate
change and President George Bush refusing to ratify the Kyoto protocol,
the case for court action is becoming overwhelming, according to Andrew
Strauss, of the school of law at Widener University, Delaware." (Paul Brown,
"Rich nations 'could be sued' by climate victims", The Guardian
(U.K.), July
10) (& see Aug. 19, 1999).
July 31 -- "The
Lost Art of Drawing the Line". "The air in America is
so thick with legal risk that you can practically cut it and put in on
a scale," says Philip Howard, attorney at Covington & Burling and author
of the new book The
Lost Art of Drawing the Line, which was preceded by his bestselling
The Death of Common Sense. Howard is working with the founders
of the Concord Coalition to establish something to be called the Common
Sense Coalition. "The trial lawyers have to be taken on," he says.
"Leadership is required by whoever can get public attention." (Lucy Morgan,
"Author sees good sense as cure for what ails us", St. Petersburg Times,
July
28; official book site;
Diane Rehm show, June
5; William Galston, "The Art of Judgement" (review), Washington
Monthly, July/August;
Cass Sunstein, "The Stifled Society" (review), The New Republic,
July 9; Pete
DuPont, National Center for Policy Analysis, "Drawing the Line", May
1).
July 30 -- "Couple
sues over flaming Pop-Tart". In Washington Township, N.J.,
Brenda Hurff and her husband are "suing the Kellogg Co. for $100,000 in
damages caused to their home when an unattended Pop-Tart allegedly burst
into flames inside their toaster." A spokesman for the Battle Creek,
Mich., cereal maker counters: "Pop-Tarts
are safe and do not cause fires." (Reuters/CNN, July
28; Jake Wagman, "From toaster to lawsuit", Philadelphia Inquirer,
July
28).
July 30 -- Mommy,
can I grow up to be an informant? Controversy mounts
over large payouts ($40 million in one case, $25 million in another) under
the False Claims Act to "whistle-blowers" who rat out overbilling by government
contractors in health care, defense and other areas. "'I think it's
a ridiculous ripoff of the taxpayers' money,' said U.S. Representative
John Duncan, a Texas Republican, who has proposed a $1 million cap on rewards.
'I don't mind some compensation for these people, but I do not think they
should be allowed to make off like bandits.'" A lawyer who represented
one of the informants in the $40 million case takes a different view: ''It's
almost got to be set up like the lottery or very few people in their right
mind would do this." An informant given only $12 million for his
work on an overbilling case against Quorum Health Group has gone to court
to demand more, calling the figure "insulting" (Alice Dembner, "Whistle-blower
windfalls questioned", Boston Globe, July
29). Last year the U.S. Supreme Court upheld the constitutionality
of the act's informant ("relator") provisions, but ruled that state governments
cannot be named as defendants (Francis J. Serbaroli, "Supreme Court Clarifies,
Broadens Antifraud Laws", New York Law Journal, July 27, 2000, reprinted
at Cadwalader, Wickersham & Taft site)(more on False Claims Act:
Sept. 9, 1999; Jan.
18, 2000; April 30, 2001).
July 30 -- N.J.
court declares transsexuals protected class. Earlier this
month an appeals court in the Garden State ruled that "gender dysphoria",
or dissatisfaction with the gender one has been assigned at birth, is protected
as a handicap under the state's disabled-rights
law. In addition, it declared that by banning employers from
discriminating on grounds of sex the law actually bans them from discriminating
on the basis of "qualities society considers masculine or feminine".
The American Civil Liberties Union was overjoyed, but our editor, quoted
by Fox News, was not. (Catherine Donaldson-Evans, "Transsexual Rights
in Spotlight Following N.J. Court Ruling That Condition a Handicap", Fox
News, July
9; Mary P. Gallagher, "Transsexuals Held to be Protected Class Under
New Jersey Law", New Jersey Law Journal, July
11) (more transsexualism cases: March 23,
2001, May 31, 2000).
July 27-29 -- Welcome
New York Times readers. John Tierney's column on
overzealous prosecution quotes our editor and mentions this
site. ("The Big City: Prosecutors Never Need to Apologize", July
27)(reg).
July 27-29 -- Report:
"medical errors" studies overblown. "Alarming studies
suggesting that medical errors kill close to 100,000 U.S. hospital patients
each year probably overestimate the problem, with the real total perhaps
5,000 to 15,000, researchers say." Readers of this space will
not be surprised. The higher estimates have been much cited by
Ralph Nader and others to promote medical malpractice litigation, but they
rest on case-review studies whose format is problematic because reviewing
doctors show little consensus as to which cases involve errors and which
errors cause or hasten death, according to the new report in the Journal
of the American Medical Association. In addition, "clinicians
estimated that only 0.5 percent of patients who died would have lived three
months or more in good cognitive health if care had been optimal."
("Number of Medical-Error Deaths Overestimated, Researchers Say", AP/ FoxNews.com,
July 24;
"Researchers Question Data on Fatal Medical Errors", Reuters/ABC News,
July
24; "Findings: Study Disputes Report on Fatal Medical Errors", Washington
Post, July
25; Rodney A. Hayward and Timothy P. Hofer, "Estimating Hospital Deaths
Due to Medical Errors: Preventability Is in the Eye of the Reviewer," JAMA,
July
25; National Academies report on medical errors, 1999).
July 27-29 -- Needed:
assumption of risk. Community swimming holes are disappearing,
and one reason is landowners' fear of litigation, reports the New York
Times. "In New York, landowners have become particularly wary
of swimmers," because state law pointedly omits swimming from a list of
activities that they can permit to visitors without fear of liability.
"Though recreation groups have lobbied to expand the law to include swimming,
these efforts have been blocked by the state's trial lawyers. 'We
have done everything we could to slip it in,' said Neil F. Woodworth, deputy
executive director of the Adirondack Mountain Club. (Winnie Hu, "Keep
Out: The Water's Fine, but Private", New York Times, July
23 (reg)). First-time skydiver
Paul Bloebaum is suing Archway Skydiving Center in Vandalia, Ill. over
injuries incurred in his maiden jump; he "wants a judge to throw out the
lengthy waiver he signed before
he jumped and make Archway responsible for his injuries. Bloebaum wrote
his initials beside all 25 paragraphs of the release." ("Company Sued Over
Skydiver's Fall", AP/Fox News, July
25). And Atlanta Braves outfielders, after catching third outs
to end an inning, routinely throw the balls to fans in the stands, but
now a woman is suing star centerfielder Andruw
Jones saying she was hit in the face when he did that recently
(Carroll Rogers, "Bullpen becoming a strength", Atlanta Journal-Constitution,
July
22 (third item)). However, a Michigan appeals court "has overturned
a million-dollar verdict against the Detroit Tigers for injuries suffered
by a child hit by a baseball bat splinter." (Alan Fisk, "$1 Million
Ballpark Injury Award Strikes Out", National Law Journal, July
27).
July 27-29 -- Chandra,
Monica, and sex-harass law. Why is the furtive liaison
between the ardent young woman and the powerful older man still so common
in Washington, D.C.? "Politicians are immune from the sexual harassment
systems that protect young women in corporate workplaces and academia,
where the presumption has become that the older male will say no or face
brutal consequences. These kinds of advances would cost your political
science professor his job. In an office, it would be sexual
harassment. In D.C., it's still 1951, and young girls are still
curvy temptresses." (Dahlia Lithwick, "G-Girl Confidential", Slate,
July 25).
July 27-29 -- Feeling
queasy? Litigation over E. coli food
poisoning has proliferated rapidly, so much so that there's now a law
firm whose specialty consists of filing cases over the nasty bacterium.
("E. Coli's Twisted Tale of Science in the Courtroom and Politics in the
Lab", Los Angeles Times, June
6, reprinted at STATS).
July 26 -- Welcome
CourtTV.com visitors. This week the cable network's
online "Caught in the Web" feature profiles "the hub of all things legally
absurd on the Net", from its origins on our editor's hard drive as "an
out-of-control file of favorite bookmarks" to our current popularity on
who knows how many continents (key to the editorial mix: "frequent food
pellets" so that you regular readers "keep on pressing the lever").
Seriously, this counts as the most comprehensive profile of the site that's
appeared anywhere, for which we're grateful to CourtTV.com correspondent
Adrien Seybert (the opening Shakespeare line didn't actually come up in
our talk, though) ("Chasing the Ambulance Chasers", July
25). Also: we're a web pick of the week for Australia's
FHM ("It's
a Guy Thing"); Herff.com ("Neat stuff on
the Internet" -- see "Shark Indigestion"); Follow Me Here weblog, early
July (450k).
July 26 -- Dispute
over $118 pizza bill costs $18,000. Nebraska: "Lancaster
District Court Clerk Kelly Guenzel is now pondering whether she should
go to court to force the county to pay the $18,000-plus in legal fees she
racked up defending herself against a charge she misused public funds in
reimbursing herself for $118.76 worth of pizza." ("Pizza bill just grows
and grows" (editorial), Lincoln Journal-Star, undated
(sent to us July 20))
July 26 -- Latex
liability, foreseeable or not. "Bucking a national trend
in design defect cases, the Wisconsin Supreme Court upheld a jury's finding
that a brand of latex gloves was defectively designed, even though no one,
including the manufacturer, was
aware of latex-related health problems until years after the brand was
put on the market." Rejecting the argument that the company should be liable
only for foreseeable risks, the court ordered Smith & Nephew AHP Inc.
to pay $1 million to Linda M. Green, who developed a latex allergy from
the naturally occurring substances found in the gloves. (Gary Young,
"Defective Latex Glove Costs $1 Million", National Law Journal,
July 23).
July 26 -- "Criminals
could sue their victims". Dateline U.K.: "Criminals
could find it easier to sue members of the public who injure them while
defending their homes, under Law Commission reforms proposed yesterday.
... The recommendations are open for consultation until the autumn when
a final report is made to Parliament." (Frances Gibb, The Times
(London), June
29).
July 26 -- Quiz:
which are the made-up cases? Funny L.A. Times feature
where you have to guess which outlandish news report isn't true: "Hypersensitivity,
political correctness and frivolous lawsuits are taking over the world.
Increase your awareness with this handy quiz." (Roy Rivenburg, "It's
Truly a Dangerous World Out There", July
24) (via Kausfiles).
July 25 -- By reader
acclaim: "Parents file suit over son's drug death". "The
parents of an 18-year-old University of Florida student who died after
taking OxyContin last year have filed a lawsuit against the drug's
manufacturer and the pharmacy chain where one of Matthew Kaminer's
friends stole the painkiller."
Kaminer was found dead in a fraternity house bedroom after taking one of
the pills, stolen by another student from an Eckerd drugstore. "The
powerful painkiller was designed to combat chronic pain with a time-release
formula," but abusers chew the capsules in order to get "an immediate,
heroin-like high." The parents are blaming drugmaker Purdue Pharma
as well as the Eckerd chain. (Erika Bolstad, Miami Herald,
July
24) (via WSJ OpinionJournal.com "Best
of the Web").
July 25 -- 220
percent rate of farmer participation. "In a 1999 major
class-action settlement, the Clinton
administration agreed to pay $50,000 to each black farmer who had suffered
discrimination at the hands of the federal government. As of 2001,
some 40,000 people have applied for their cash. The problem is, according
to the Census Bureau, there are only 18,000 black farmers in the country."
(Steve Brown, "Settlement Is a Crass-Action, USDA Employees Say", Fox News,
July 14).
July 25 -- "Trial
lawyers derail Maryland small claims reform". "In an unexpected
setback to small claims reform, on May 17 Maryland Governor Parris Glendening
vetoed HALT-supported legislation, despite its unanimous approval by both
houses of the state legislature." The legislation would have raised
the jurisdiction of Maryland's small claims court from $2,500 to $5,000,
and eliminated formal pleadings in cases below $2,500, reducing the occasion
for disputants to hire lawyers. "According to his message, Glendening
acted in response to concerns that 'prompted the Maryland Trial Lawyers
Association to request a veto of this bill.' ... The Maryland Trial Lawyers
Association organization was one of the largest institutional supporters
of Glendening's 1998 reelection campaign, donating $12,000 to him directly
and spending about $110,000 on radio and television advertisements supporting
him." (Tom Gordon, HALT.org "Legal Reformer", Spring)
(more on small claims: Sept. 29,
Oct. 3 and (letters) Oct.
5, 2000) (& see letter to the editor, Aug.
1).
July 25 -- Yesterday's
visitors to this site came from domains including eop.gov, usdoj.gov,
sec.gov, nrc.gov, treas.gov, ornl.gov; dowjones.com, trib.com, usnews.com,
disney.com; boeing.com, gendyn.com, lucent.com, ibm.com, fujitsu.com, honeywell.com,
att.com, philips.com, pg.com, ual.com, oracle.com, cat.com, sun.com, cisco.com,
intel.com, pge.com, roche.com...
...columbia.edu, uiuc.edu, asu.edu, uncg.edu, american.edu,
lu.se, uoregon.edu, ucsd.edu, stanford.edu, utoronto.ca, gatech.edu, rutgers.edu,
auckland.ac.nz, wustl.edu, upenn.edu; state.mn.us, state.fl.us, state.oh.us,
state.mo.us; omm.com, debevoise.com, kirkland.com, ffhsj.com, lockeliddell.com,
corboydemetrio.com, atlahq.org (which has been poking around here a lot
lately); army.mil, af.mil, navy.mil, nipr.mil; thehartford.com, prudential.com,
statefarm.com, travelers.com, fanniemae.com, bear.com, schwab.com, jpmorgan.com,
socgen.com, agedwards.com, norwest.com, tiaa-cref.org; cato.org, cir-usa.org;
jcpenney.com, fedex.com, ups.com; bigpond.com, gc.ca, gov.au, and asce.org,
among many, many others including countless local ISPs. Moral: your
competitors read us regularly, so there's no reason why you should feel
guilty about doing so too.
July 24 -- "The
Louima millions". "Last week, after the Giuliani administration
and the Patrolmen's Benevolent Association agreed to pay [Abner] Louima
nearly $9 million to settle his police brutality lawsuit, Louima said he
did not feel like a rich man. That's because Louima cannot touch
one dime until he settles a bitter quarrel with [his lawyers]". The
dispute pits the lesser-known attorneys who originally represented Louima
against the high-profile trio of Johnnie Cochran, Barry Scheck, and Peter
Neufeld ("Johnnie- come- latelies") who took over afterward. Before
getting to the juicy particulars, be sure to catch the opening quote, from
an attorney named Harold J. Reynolds: "So ingrained and unexamined is the
notion of the one-third contingency
fee that it has taken on the character of a natural law. ... if liability
and recovery were certain, then there is no contingency that Louima's lawyer
is risking ... [and the operation of the fee percentage] would have done
nothing except guarantee to that lawyer a freight train of money that should
have been paid to Abner Louima." (Peter Noel, Village Voice,
July 18-24).
More on why contingency fees are so seldom discounted: Judyth Pendell (Manhattan
Institute), "Price Colluder, Esq.", Forbes, July 23, reprinted
at MI site. Update: see Nov.
8-10, 2002.
July 24 -- Junk
fax litigation: blood in the water. We've covered the
saga of junk fax litigation, in which federal law allows class action lawyers
to demand $500-$1,500 per unsolicited fax sent, which means the sums at
stake can quickly mount up to enormous levels (see Oct.
22, 1999; March 3, 2000; March
27, 2001). Now the New York Times weighs in to report
a number of recent breakthroughs for the lawyers, including a recent $12
million judgment that forced Hooters of Augusta, Ga., a unit of the national
restaurant chain, to declare bankruptcy; it had been an advertiser in six
omnibus fax mailings sent to 1,321 customers. Some more new developments:
"Last month, a South Carolina judge approved a settlement of another class-action
suit in which a North Charleston Ramada Inn paid $450,000 for sending thousands
of faxes advertising a New Year's Eve celebration. Last week, a Texas
judge authorized a class-action trial of claims on behalf of thousands
of people who received fax advertisements from an apartment rental company."
(William Glaberson, New York Times, July
22 (reg)).
July 24 -- "Melbourne
man patents the wheel". "A Melbourne man has patented
the wheel. Freelance patent attorney John Keogh was issued with an
Innovation Patent for a 'circular transportation facilitation device' within
days of the new patent system being invoked in May. But he has no
immediate plans to patent fire, crop rotation or other fundamental advances
in civilisation. Mr Keogh said he patented the wheel to prove the
innovation patent system was flawed because it did not need to be examined
by the patent office, IP Australia." (Nathan Cochrane, The Age (Melbourne),
July
2).
July 23 -- "2nd
Circuit Upholds Sanctions Against Firms for Frivolous Securities Claims".
"The 2nd U.S. Circuit Court of Appeals has upheld sanctions against two
law firms for pursuing frivolous securities
claims. New York's Schoengold & Sporn and Philadelphia's
Berger & Montague were sanctioned a total of $84,153 based on the fact
that under a settlement advocated by Schoengold & Sporn, the plaintiff
class in the case would have received nothing, while the firm would have
been paid $200,000." Trial judge Shira Scheindlin had reduced the
sanctions against Berger & Montague after concluding that it had acted
to a significant extent at the direction of the other class-action firm.
(Mark Hamblett, New York Law Journal, July
16).
July 23 -- Stories
that got away. News items from recent months that fell
through our editorial cracks at the time, but better late than never:
* Sacramento Bee investigation of the state of the environmentalist
movement includes a look at the extent to which some lawyers may be using
endangered-species complaints
as a way of generating legal fees for themselves (Tom Knudson, "Litigation
central: A flood of costly lawsuits raises questions about motive", April
24) (series).
See also Michael Grunwald, "Endangered List Faces New Peril," Washington
Post, March
12; "Protect Animals, Not Lawyers" (editorial), Detroit News,
May
7; "Congress Grapples With Endangered Species Law", AP/Fox News, May
9. And the more recent controversy over agricultural water use
in Klamath Falls, Ore., reminds us of the "enclosures" by which upper-class
landowners tossed tenant farmers off the land in early industrial England:
Michael Kelly, "Evicted by Environmentalists", Washington Post,
July
11 (& letter to the editor in response from Brock Evans, July
13).
* The still-in-progress controversy over whether the Digital
Millennium Copyright Act really allows the recording industry to keep
a Princeton professor from publishing a research paper on the subject of
breaking digital music encryption (Declan McCullagh, "Watermark Crackers
Back Away", Wired News, April
26; Janelle Brown, "Is the RIAA running scared?", Salon.com, April
26; Brenda Sandburg, "Recording Industry Sued in Battle Over Research",
The Recorder, June
7). See also Carl S. Kaplan, "CyberLaw Journal: Does an Anti-Piracy
Plan Quash the First Amendment?", New York Times, April
27; Brad King, "ISPs Face Down DMCA", Wired News, Dec.
23, 2000).
* That odd case from Everett, Wash. where a federal judge "has
thrown out the kidnapping and sexual assault convictions of a man who had
argued he was not responsible for those crimes because another of
his 24 separate personalities had committed it." A Snohomish County
judge declared the multiple personality defense inadmissible, but "U.S.
District Judge Marsha J. Pechman in Seattle ruled Friday that it was up
to the trial court to clarify the question for jurors by establishing standards
for assessing legal responsibility."
("Judge Throws Out Conviction of Multi-Personality Defendant", AP/Fox News,
June 12).
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