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ARCHIVE -- OCTOBER 2002
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October 9-10 --
Rumblings in Mississippi. Two big stories out of the Magnolia
State: the legislature on Monday passed, and Gov. Ronnie Musgrove indicates
that he will sign, a compromise malpractice reform bill intended to relieve
the state's worst-in-the-nation medical
liability crisis. Among its terms: capping non-economic damages
at $500,000, restricting venue to the county where alleged wrongdoing occurred,
and requiring that plaintiffs line up an expert before a suit can proceed.
(Patrice Sawyer and Julie Goodman, "Legislature passes civil justice reform",
Jackson Clarion-Ledger,
Oct.
8). It also curtails but does not eliminate joint and several
liability in medical cases and shortens some time limits for suing.
("Other provisions",
sidebar;
Jackson Clarion-Ledger editorial, Oct.
8).
In a separate story that will bear close watching as it unfolds, "Federal
authorities are investigating whether state court judges took out loans
that were repaid by nationally prominent trial lawyers from South Mississippi
whose cases the judges handle. Investigators believe the judges,
including state Supreme Court Justice Oliver Diaz Jr. of Biloxi, borrowed
thousands of dollars from The Peoples Bank, which has headquarters in Biloxi,
and Merchants & Marine Bank in Jackson County. Plaintiffs' attorneys
who try multimillion-dollar cases before the judges subsequently repaid
the loans, investigators believe. Paul Minor of Ocean Springs and
Richard 'Dickie' Scruggs of Pascagoula are being investigated by the FBI
and U.S. Attorney's Office in Jackson, according to a source close to the
investigation." Scruggs, of course, is among the most powerful lawyers
in the country and did more than any other figure to engineer the $200-billion-plus
settlement between the tobacco
industry and state governments; he is also the brother-in-law of Sen. Minority
Leader Trent Lott (R-Miss.) Scruggs "has said that he expects to earn about
$844 million from tobacco settlements" while Minor expects to receive something
like $70 million from tobacco settlements. (Anita Lee, Tom Wilemon
and Beth Musgrave, "Loans to Judges Probed", Biloxi Sun-Herald,
Oct.
7; Jerry Mitchell, "Judges' loans focus of probe", Jackson Clarion-Ledger,
Oct.
8; "Coast newspaper reports lawyer-judge link to loans being checked",
AP/Alabama Live, Oct. 7). Scruggs "denies that he repaid loans for
Diaz or any other judge." ("Investigation Targets Lawyers, Judges
& Loans", WLOX,
Oct.
7). Update Oct. 11-13 more allegations;
May
7, 2003 investigation widens. (DURABLE
LINK)
October 9-10 --
Trial lawyers and politics: Michigan, Texas. Two legal
reform groups have released studies documenting the flow of trial lawyer
money into their states' politics.
Michigan
Lawsuit Abuse Watch reveals that the state's personal injury lawyers
"have contributed a total of
$426,280 to [Democratic gubernatorial nominee Jennifer] Granholm’s campaign.
This is more than the $394,209 she has received from the PACs of all other
Michigan special interest groups backing her. Personal injury lawyers have
given
just $2,900 to Granholm’s opponent, Dick Posthumus." And Texas
Trial Lawyer Watch has a new report out on the gargantuan sums spent
by lawyers in that state, with special emphasis on the lengths to which
the attorneys are willing to go to conceal their generosity ("Hiding
Their Influence", PDF format) (DURABLE
LINK)
October 9-10 --
Latest sacked-Santa suit. In Edinburgh, Scotland an actor
"hired to play Santa Claus at a shopping centre who was sacked for his
allegedly lugubrious manner is suing his former employers for more than
£1,500." Television actor Colin Brown, 50, says he had fulfilled
the role for many years past with no complaints of insufficient jolliness.
"He is also seeking £10 compensation for a 12-inch square cushion
he supplied for the padding and £30 for his size nine wellington
boots." (Edward Black, "Sacked Santa sues ex-employers", The Scotsman,
Oct.
8). For further annals of Santa employment litigation, see Oct.
12 and Dec. 13-14, 2000. (DURABLE
LINK)
October 7-8 --
Malpractice-crisis latest: let 'em become CPAs. Detailed
report in the St. Louis Post-Dispatch of malpractice woes in Missouri
and (especially) in adjoining counties of Illinois known for litigiousness,
Madison and St. Clair, where "doctors are handing off more patients needing
risky procedures to St. Louis medical centers. Doctors in the two
counties pay double the premiums of most surrounding Illinois counties
because of the flurry of claims filed there," according to the head of
underwriting at the doctors'-mutual insurer that writes more than half
of Illinois policies. Insurance is becoming unaffordable for many
doctors with records considered less than pristine, such as those with
past claims that were resolved for token payments or even for no payment
at all.
In litigious Belleville, Ill., patients can obtain a long list of medical
services only by heading over to St. Louis. "Several years ago, Belleville
physicians decided to transfer all critically ill children to St. Louis
Children's Hospital or Cardinal Glennon Children's Hospital. Anne Thomure,
public relations director for Memorial Hospital in Belleville, said many
of these young patients could have gotten comparable care in the community,
but liability risks were deemed too great". "Trauma is routinely
sent to St. Louis because of the medical-legal climate," said one doctor.
Other Belleville doctors have stopped handling high-risk pregnancies, administering
clot-busting TPA to stroke patients, and performing surgery on complex
elbow fractures, which often lead to complications. Many neurosurgeons
are shunning brain surgery in favor of relatively safe spinal procedures.
Dr. Kathy Maupin "said almost every doctor involved in trauma care gets
sued, because outcomes are unpredictable and patients do not have a pre-existing
relationship with the doctors." Don't miss this priceless quote from
the other side, from "Bruce Cook, a personal injury lawyer in Belleville"
who "has little sympathy for doctors lamenting liability coverage costs."
"Perhaps the doctors retiring early are the doctors who are sued too much,"
he said. "Perhaps they should have been accountants." (Judith VandeWater,
"Insurance rates pinch doctors, care", St. Louis Post-Dispatch,
Oct.
6).
The Bloviator (Sept.
27) summarizes the terms of the federal malpractice-reform bill, H.R.
4600 Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act
of 2002", which passed the House Sept. 26 but is considered unlikely to
make it past the litigation lobby's grip on the U.S. Senate. Last
Thursday, Pennsylvania doctors held rallies in Philadelphia and Scranton
to protest the state legislature's inaction on malpractice reform (AP/New
York Times, undated;
MedRants, Oct.
4; Politically Active Physicians
Association, organization of Pa. doctors). New York doctors may not
be holding demonstrations yet, but according to William Tucker in the New
York
Post, they pay the highest malpractice premiums in the country.
From "1994 to 1999, the average New York jury verdict tripled, from $1.7
million to $6 million. Empire State physicians settled $633 million in
malpractice claims in 2000, 80 percent more than second-place Pennsylvania
($352 million) and triple third-place California ($200 million, for twice
the population)". California, unlike New York and Pennsylvania, has
a strong cap on noneconomic damages. (New York Post,
Sept.
26).
The disarray in Mississippi's malpractice
system "extends to the state's ambulance companies and their workers",
reports AP. (Matthew Volz, "Paramedics face malpractice suits, too",
AP/Jackson Clarion-Ledger,
Sept.
19). A past president of the Mississippi Trial Lawyers Association
pooh-poohs the concerns, saying he "cannot recall off the top of my head
a single substantial or even moderate verdict against an ambulance company
in the state of Mississippi" -- note how by framing the issue as one of
verdicts only, he gets to sidestep the question of how often ambulance
operators are named in complaints resolved before that point. On
the Mississippi legislature's lack of seriousness in pursuing tort reform,
see the
Clarion-Ledger's editorial, Sept.
25.
A study from the American Association of Neurological Surgeons and other
neurosurgery groups finds that liability woes have plunged that specialty
into a state of emergency across the country. (Sept.
25 study in PDF format, press
release, resource
page). And while litigation lobby stalwarts such as the misnamed
"Center for Justice and Democracy" have tried to scapegoat malpractice
insurance providers as the source of the crisis (Sept.
25), a report last month from the U.S. Department of Health and Human
Services thoroughly refutes that contention, pointing out that: 1) states
that have enacted serious liability limits are not undergoing a crisis;
2) actuarial data show a sharp upturn in the past few years in large medical
claims in unreformed states, as well as in the high verdicts which influence
the magnitude of settlements; 3) medical malpractice insurers have not
generally suffered major losses due to speculative or volative investments,
and a relatively small share of their investment is in the stock market;
4) the decreasing competitiveness of the insurance market is itself a reflection
of the liability-driven increase in claims expense; and 5) liability reforms
in states like California have not made it impossible to sue -- the number
of claims has not been declining there lately -- but have kept medical
care affordable, notwithstanding the influence of the much-cited "insurance
cycle". ("Update on the Medical Litigation Crisis: Not the Result of the
'Insurance Cycle'", HHS, Sept.
25). (DURABLE LINK)
October 7-8 --
"Judge Throws Out 'Harry Potter' Copyright Suit". ""A
federal judge has sanctioned an author $50,000 for submitting false evidence
in an unsuccessful copyright lawsuit
against the publisher of the blockbuster 'Harry Potter' series of children's
books. Southern District of New York Judge Allen G. Schwartz found that
Nancy Stouffer had knowingly submitted fraudulent documents to the court
in an attempt to bolster claims that the author of the 'Harry Potter' series,
J.K. Rowling, copied several ideas from Stouffer's unsuccessful children's
stories." In addition to the $50,000 sanctions, Judge Schwartz ordered
Stouffer to pay Rowling's and her publisher's attorneys' fees and costs.
Stouffer's lawyer says he is considering appellate options. (Tom
Perrotta, "Judge Throws Out 'Harry Potter' Copyright Suit", New York Law
Journal, Sept.
19). (DURABLE LINK)
October 7-8 --
Cutting edge of discrimination law. Near Seattle, the
Puyallup School District has agreed to settle a two-year-old civil rights
suit by paying $7.5 million and instituting diversity training, administrative
and curriculum changes to encourage racial diversity. Four black
families had sued the school district in 1999 saying it "tolerated and
encouraged a racially hostile environment. 'One specific complaint was
against the use of racial slurs in exams and class discussion of books
like 'Huckleberry Finn' and 'The Grapes of Wrath."" (Mike Roarke
and Candace Heckman, "Civil rights suit settled in Puyallup schools", Seattle
Post-Intelligencer,
Sept.
18 (via Scott Norvell, FoxNews.com, Sept.
23). And the Denny's restaurant chain says it is looking into
contentions that one of its outlets in Springfield, Ill. is behaving in
a racially discriminatory manner by not staying open all night. The
restaurant in question "recently started locking its doors between 3 and
5 a.m. Sundays, reportedly because a large number of patrons, many of whom
have been at nearby clubs that close at 3 a.m., were descending on the
restaurant and causing problems, including not paying for food."
The president of the local NAACP branch is hinting at a lawsuit: "Denny's
[on the East Side] will stay open, or other Denny's worldwide will close
from 3 a.m. to 5 a.m.,' he said. 'If there's one Denny's out there that
is closing from 3 a.m. to 5 a.m., then either they’re going to do it worldwide,
or they'll remain open 24 hours." (Jayette Bolinski, "Denny’s accused
of discrimination", State Journal-Register (Springfield, Ill.),
Sept.
12). (DURABLE LINK)
October 7-8 --
Blue-ribbon excuses. New York City: "A lawyer representing
a couple accused of taking part in three-way sex on a train says they were
helping road safety." Vincent Siccardi says his clients "should be
praised for taking the train instead of driving while drunk. Mr Siccardi
told the New York Post: 'Here are two responsible people. They were
at a party. They were drinking. It shows that they are responsible.
If more people did that, we'd have fewer problems on the road.'" ("Lawyer
says couple accused of sex on train were helping road safety", Ananova.com,
Oct.
1). (DURABLE LINK)
October 4-6 --
Breaking: L.A. jury docks Philip Morris $28 billion. The
plaintiff had been smoking since
age 17 and developed lung cancer; the sum awarded by the jury approximately
equals the annual gross domestic product of Lithuania. The smooth
lawyer who represented Mrs. Bullock, named Michael Piuze, has coaxed a
whole series of bizarrely high verdicts out of West Coast juries.
(Fox News, Oct. 4). (DURABLE LINK)
October 4-6 --
Pets Warehouse owner sues Google. Robert Novak, owner
of PetsWarehouse.com, has filed two earlier rounds of pro se lawsuits
arising from his claim that his business was defamed
in online discussion forums (see May 22 and
May
27, 2002 and links from there). Now, in a third round, he is
suing search engine Google and several other defendants. His complaint
(PDF format) charges that Google failed to remove Usenet archive postings
even after being informed that they were defamatory. It also demands
damages for Google's and other search engines' use of keyword-based "sponsored
links", by which a user's search on the phrase "pets
warehouse" calls up advertising for another online pet store that has
paid for the privilege. (Slashdot
thread) (overview of case by
defense attorney) Further update: Oct.
5, 2003. (DURABLE LINK)
October 4-6 --
Commentary-fest. Henry Mark Holzer believes he's identified
the appropriate social response to the campaign for slave-reparations lawsuits:
it's called "Rule 11 sanctions". ("The Achilles' Heel of the Reparations
Lawsuits", FrontPage,
Oct.
3). The Onion reports that record companies are suing
radio stations to stop them from infringing their intellectual property
by playing music over the air for free -- oh wait, it's just a parody (we
think)("RIAA Sues Radio Stations for Giving Away Free Music",
Oct.
2). And: "With the assistance and backing of trial lawyers, small
and extreme groups are finding it increasingly easy to bypass and subvert
the democratic process and impose their agenda on the rest of society by
abusing litigation and manipulating the courts," writes former Wyoming
Sen. Malcolm Wallop ("Litigation: The Death of Democracy", TownHall, Sept.
25). (DURABLE LINK)
October 4-6 --
Lawsuit threats vs. campaign speech. "Television station
managers in small communities across the nation are being forced this fall
to adjudicate a barrage of demands from Democratic and Republican Party
lawyers pressuring them to pull political advertisements
in closely fought Congressional races -- or face the risk of a defamation
suit." (Adam Nagourney and Adam Clymer, "Local Television Stations
Become the New Arbiter of Political Fair Play," New York Times,
Oct.
2) (reg). (DURABLE LINK)
October 3 -- Lawyers
fret about bad image. Bar associations are resorting to
all sorts of measures to try to counter the profession's perceived unpopularity:
the Wisconsin Bar has hired consultants "to institute a branding campaign
based on focus group response", while the Florida Bar has budgeted a contemplated
$750,000 for its new "Dignity in Law" program (see Jul.
10) which targets 1,000 journalists and government officials described
by the group's president as "influential decision-makers" who will be sent
"blast e-mails describing the great work that lawyers and judges do for
our clients, in our courtroom and in our communities." (We hope those
1,000 journalists and influentials have all previously opted into those
"blast e-mails" -- spam doesn't make friends, you know.) "Prior to
launching the campaign, the Florida Bar surveyed 880 journalists about
their attitudes toward the legal profession and rated their stories as
positive or negative. As the campaign continues, it will monitor their
changing attitudes toward lawyers to measure the campaign's effectiveness."
If we were Florida journalists, we're not sure we'd be thrilled to learn
that a group of dissatisfied newsmakers who wield
writs had decided to "rate" and then "monitor" the tone of our coverage
of them.
Meanwhile, on a national level: "Disenchanted with the public outcry
against attorneys and the legal profession, Robert Clifford, who heads
the American Bar Association's Litigation Section and is a founding partner
of Clifford Law Offices, a personal injury firm in Chicago, personally
financed a $250,000 national telephone survey for the ABA of 750 households."
The results could hardly have been welcome. "Only 19 percent of the
respondents expressed confidence in lawyers' work compared with a 50 percent
confidence rating for doctors." (Physician
readers, take note, and heart.) The survey effort "also included
10 focus groups in five cities including Chicago and Los Angeles whose
respondents repeatedly described attorneys as 'greedy, manipulative and
corrupt.' ... The public lambasted criminal defense, personal injury and
divorce
lawyers", praising only real estate and civil rights attorneys. (&
see letter to the editor, Oct.
23)
To its credit, the National Law Journal's roundup of the matter
airs not only the legal establishment's view -- which is that the profession
is merely misunderstood and suffering from bad public relations -- but
also the views of critics both inside and outside the profession who think
the best way to improve lawyers' image would be, well, to start cleaning
up the bad things that go on in legal practice. Tallahassee Democrat
columnist Bill Cotterell, a critic of the Florida bar program, notes: "People
don't like lawyers gaming the system for personal profit -- enormous profit
-- and not caring who gets hurt." Cotterell "recommended adopting
'a loser pays' system under which
the losing plaintiff in a meritless suit would pay the defendant's legal
expenses." And Catherine Crier, the Court TV host and former judge
whose book "The
Case Against Lawyers" is forthcoming momentarily, says bar p.r. campaigns
"don't do anything to address the underlying areas. I'd rather see a campaign
that introduces ethics classes.' Crier would prefer to see the law
'eliminate contingency fees except in cases aimed at the poor and institute
loser
pays in all categories. In that way, good lawyers can proceed with
dignity and pursue cases that are meritorious, and those pressing frivolous
actions corrupting our system will no longer have a forum.'" Hear, hear!
(Gary M. Stern, "Polishing the Image", National Law Journal,
Sept.
16). (DURABLE LINK)
October 1-2 --
FTC cracks down on excessive legal fees. Here's an important
story that's flown mostly under the radar: the new leadership of the Federal
Trade Commission is taking pioneering steps to protect consumers from exploitative
legal fees, under the same mandate by which it cracks down on deceptive
or unfair overcharging by businesses generally. "So far this year,
the FTC has challenged attorney fees in three proposed class
action settlements, winning in two cases. It also has urged the
Judicial Conference, which oversees the federal court system, to amend
its class action rules in a way that could limit attorney fees, particularly
in cases that rely on information already uncovered by government agencies.
And the agency recently published a guide for consumers, 'Need a Lawyer?
Judge for Yourself,' giving advice on how to pick a lawyer -- and seek
a lower fee. ... Trial lawyers and their allies aren't happy about the
FTC initiative." (Caroline E. Mayer, "FTC Seeks to Limit Attorney
Fees in Class Action Suits", Washington Post, Sept.
30). (DURABLE LINK)
October 1-2 --
Australia: seized by the Spirit, wants church to compensate her.
Loraine [elsewhere reported Lorraine] Daly, 40, is suing an Assemblies
of God-affiliated church in Sydney, saying she was injured one Sunday in
1996 when, gripped by religious enthusiasm, she fell over onto a carpeted
floor and was not caught by anyone. "The court was told by Ms Daly's
lawyer that the Sydney Christian Life Centre had been negligent in failing
to ensure there were enough 'catchers' -- people appointed by the church
to cushion the fall of those experiencing what is referred to within the
Pentecostal movement as being 'slain in the spirit'. It was also
claimed that the church had failed to ensure that the catchers were in
position before the Rev Tim Hall started the prayer service which usually
brought on such fainting episodes. And the church had not provided falling
members of the congregation with a sufficiently padded area to prevent
injury." Ms. Daly wants up to A$750,000 in damages, including future
loss of earnings and compensation for "disabilities including headaches,
nausea, memory loss, impaired concentration and a feeling of vagueness.
...The court also heard, however, that Ms Daly had previously suffered
similar ailments after two car accidents in 1986 and 1993." (Kelly
Burke, "Fallen Christian puts faith in the law", Sydney
Morning Herald,
Sept.
27). Update Oct. 25-27: judge rules
against Ms. Daly. (DURABLE LINK)
October 1-2 --
Updates. Judges pull the plug on various bright ideas
discussed previously in these pages:
* A judge has dismissed attorney Peter Angelos's effort to bring
the cellphone industry to trial on the theory that using its wares causes
brain tumors, ruling that the proffered scientific evidence for that proposition
is insufficient (see Apr. 23 and Jan.
11, 2001) (Gretchen Parker, "Judge Dismisses $800M Cell Phone-Brain
Tumor Suit ", AP/Washington Post, Sept. 30) (opinion
in PDF format)
* In a unanimous decision written by Judge Alex Kozinski, a three-judge
panel of the Ninth Circuit has ruled that Judge Vaughn Walker should not
have interpreted the 1995 Private Securities Litigation Reform Act as a
mandate to take an active lead in selecting plaintiffs' counsel to run
lucrative securities fraud
cases. The decision, which may put the kibosh on "auction" methods
by which courts induce plaintiff's counsel to accept work at lower fees,
was a victory for Milberg Weiss Bershad Hynes & Lerach in its quest
to represent security holders in a suit against Copper Mountain Networks
Inc. (Jason Hoppin, "9th Circuit Strikes Down Class Action Fee Experiment",
The
Recorder, Sept.
17) (opinion
in PDF format)(see Sept. 25, 2001)
* Well, that's a relief: "A British Telecommunications Inc. patent
issued prior to the advent of the Internet does not cover hyperlinking,
a New York federal judge ruled ... Tossing out British Telecom's infringement
suit against Prodigy Communications Corp., U.S. District Judge Colleen
McMahon of the Southern District of New York said no jury could find that
Prodigy infringes the patent by providing hyperlinks, the coded, highlighted
text that links one Web page to another." (see Feb.
13) (Brenda Sandburg, "Closely Watched Hyperlink Patent Case Tossed",
The
Recorder, Aug.
23). (DURABLE LINK)
