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ARCHIVE -- SEPTEMBER
2002 (III)
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September 30 --
Australia: "Blind, disabled should be able to fly". "The
physically and mentally disabled may no longer be barred from becoming
pilots or air traffic controllers. Eyesight and other medical tests imposed
on flight crew have been found to be in breach of anti-discrimination laws."
In the wake of the finding by the federal Attorney General's department,
lawyers for Australia's Civil Aviation Safety Authority have urgently applied
to the Human Rights and Equal Opportunity Commission to allow an exemption
to the federal Sex and Disability Discrimination Acts to permit medical
tests and standards for pilots, flight navigators and engineers and air
traffic controllers. (Matthew Denholm, News Corp./Daily Telegraph
(Australia), Sept. 27). Yes, this reads like parody, but we have
a sinking feeling that it is not, since the same general issue has given
rise to considerable litigation in the U.S.: see our
July 1998 column and later articles on safety
and disabled-rights law. (DURABLE
LINK)
September 30 --
"Black eye for zero tolerance". A hearing officer
has ruled in favor of Teresa Elenz, a Pensacola, Fla. honor student who
says she found a bag of pills on school grounds, in the latest Pensacola-area
incident to draw media attention to the harshness of zero
tolerance policies. Besides nail clipper and paring knife cases,
there was this: "In 1998, a 12-year-old student at Sims Middle School in
Pace was expelled for possession of drugs because he briefly held a Ritalin
pill. Robert Starkie held out his hand when a student on his bus asked
him to take something. When he saw it was a pill, he threw it out the window."
Nationwide, about 80 percent of school districts are estimated to have
zero tolerance policies. (Jenny LaCoste, Pensacola News Journal,
Sept.
29; Bill Kaczor, "Pensacola honor students win zero tolerance drug
ruling", AP/Bradenton Herald, Sept.
27). (DURABLE LINK)
September 30 --
George Will on litigation reform. He uses Mississippi
as his jumping-off point, but his overall message is broader: "nowadays
punitive damages are, as Justice Sandra Day O'Connor says, quoting a 9th
U.S. Circuit opinion, 'limited only by the ability of lawyers to string
zeros together in drafting a complaint.' ... So remember the candidates
who support tort reform when you vote on Nov. 5." (Washington Post,
Sept.
29) (DURABLE LINK)
September 27-29 --
Judge overturns $1.3 billion tobacco fee award. Big development
on the tobacco-fee
front: "A New York judge threw out a $1.25 billion legal fee award to attorneys
who represented California in a $206 billion settlement between 46 states
and the tobacco industry, saying the amount was 'irrational'". The
award was to the so-called Castano Group of lawyers, who didn't actually
represent California -- the state's own lawyers did that -- and were in
fact rivals, rather than allies, of the Scruggs-Moore team of lawyers who
did manage to pull off the settlement. The Castano lawyers, however,
repositioned themselves as somehow a catalyst for the national settlement
and thus entitled to fees -- the high point of this effort coming when
they managed to obtain what was effectively a commercial endorsement from
then-sitting President Bill Clinton (see Mar.
9, 2001).
Note that this was a different proceeding from the case involving the
tobacco lawyers representing New York itself, discussed recently in this
space, who are also finding their fees subject to unwelcome review (see
Jul.
30-31). This time the courageous judge was Nicholas Figueroa
of New York State Supreme Court. (Daniel Wise, "$1.3 Billion Tobacco Attorney
Fee Overturned", New York Law Journal,
Sept.
27; William McQuillen, "Court Throws Out $1.25 Bln Award to California
Tobacco Lawyers", Bloomberg.com, Sept. 26). Update May
25, 2004: appeals court reverses Judge Figueroa and reinstates award.
(DURABLE LINK)
September 27-29 --
After our own heart. Regarding Kansas City Royals coach
Tom Gamboa, who was set upon and beaten by two fans last week during a
baseball game at Chicago's Comiskey Park: "Gamboa has been contacted
by several lawyers who told him he could get money from the White Sox,
but the coach doesn't plan legal action. 'The fault is with the two people
who did it,' he said. 'I'm not one who looks to place blame. It's nobody's
fault but the two idiots who did it.'" ("Gamboa's hearing impaired since
attack", AP/Sports Illustrated, Sept.
24). Update Sept.
21, 2003: not quite so much after our own heart, it turns out, AP reports
that Gamboa has filed suit not only against attacker but also stadium security
and drinks concessionaire. (DURABLE LINK)
September 27-29 --
Fen-phen settlement abuses: the plot thickens. Lawyers
for all three lead parties in the $3.75 billion fen-phen diet drug
settlement -- the settlement trust, the class action lead plaintiffs' lawyers,
and defendant American Home Products -- are asking the federal judge in
charge of the case to "order an 'emergency suspension' of all claims processing,
and to reconfigure the entire process so that all future claims of actual
heart valve damage will be audited." They say a group of plaintiffs'
lawyers, with assistance from hired doctor-experts, are engaged in "systematic
abuse" of the settlement claims process and have set up what is effectively
a "production line" that has resulted in gross overdiagnoses of highly
compensable heart conditions in claimants. One of the hired doctors,
they say, "has earned some $2.5 million during the past year reviewing
10,000 echocardiograms for a consortium of firms led by Petroff & Associates.
She did all this while continuing to see up to 80 patients a week and still
participating in some, if not all, of her extracurricular activities."
Money drained from the fund for exaggerated or nonexistent ailments, they
note, is not available to compensate genuinely injured users of the compound.
(Shannon P. Duffy, "Fen-Phen: Are Claims Exaggerated?", The Legal Intelligencer,
Sept.
26)(see
Dec. 28, 2001 and Feb.
25, 2002). More: lawyes respond to allegations ("Plaintiffs'
Lawyers Strike Back in Fen-Phen Settlement Case", Oct.
3). (DURABLE LINK)
September 27-29 --
Sued over 18 cents. A collection agency went after Wendy
Ehringer of Seattle with a lawsuit demanding the grand total of 18 cents
-- plus $311.26 in attorney's fees and other charges. The court recognized
litigation abuse when it saw it and applied the equivalent of sanctions
-- but now Ehringer's lawyer is claiming to have put $7,600 worth of time
into fighting the case, which is itself rather curious. (Maureen
O'Hagan, "Suit over 18 cents redefines 'small-claims' court", Seattle Times,
Sept.
26). (DURABLE LINK)
September 25-26 --
Skating first, instructions later. Edmonton, Canada:
"An Alberta man who crashed on in-line skates before his instructor could
teach him how to use them has won damages from the store that arranged
the lessons and rented him the wheels. In a decision that expands the controversial
concept of 'duty of care,' Justice Donald Lee of the Court of Queen's Bench
held Skier's Sportshop of Edmonton partly liable for Robert Rozenhart's
injuries -- even though Mr. Rozenhart was told to wait for his instructor
before setting out.
"The judge agreed Mr. Rozenhart's foray was ill-advised, but he found
fault with a general reassurance store staff gave him that morning that
in-line skating is 'very similar' to ice-skating. Mr. Rozenhart ... and
his daughter ... were scheduled to meet the instructor at 10 a.m. in a
nearby park, but store workers told him that his instructor was running
15 minutes late and asked him to wait. But Mr. Rozenhart struck out on
his own, clad in a cycling helmet, knee-pads and wrist protectors.
Only after he was coasting down a paved trail did he realize he did not
know how to stop." As he soon learned to his cost, in-line skates do not
brake the same way ice skates do. Lawyers for the family-owned store
plan to appeal. (Charlie Gillis, "In-line skates rental store blamed for
injuries suffered by novice", National Post, Sept. 20). On
Sunday our editor discussed this and other personal
responsibility cases on Peter Warren's radio show, based at Vancouver's
CKNW and broadcast in many Canadian cities. (DURABLE
LINK)
September 25-26 --
Investigate, but gently. Sued if you do dept.: "For the
first time since the state supreme court told corporate New Jersey to root
out sexual harassers or
risk huge damages, a company is to be tried on a charge that it ensnared
and fired an innocent employee without a fair and thorough investigation.
A Middlesex County judge ruled Aug. 30 that a supervisor who had a consensual
sexual relationship with a co-worker can pursue a claim that the company
violated a public-policy mandate by discharging him for harassment he never
committed." (Henry Gottlieb, "Too Good At Purging the Workplace?", New
Jersey Law Journal, Sept.
13). (DURABLE LINK)
September 25-26 --
How much did you say that Indian legend was worth? Flexing
their political muscle with casino revenues and major campaign contributions,
"Native Americans are pushing for new laws that would give them what could
amount to veto power over certain development
projects (mining, housing, shopping malls, etc.) impacting what are considered
historically sacred sites." Such a bill has sailed through the California
legislature and onto the desk of Gov. Gray Davis. A mining exec grouses
that the Quechan Tribe "considers everything from Los Angeles to the Arizona
border and up to Las Vegas sacred." (Brad Knickerbocker, "More rights for
sacred sites?", Christian Science Monitor/Arizona Daily Sun,
Sept.
4; "California Native Americans Want Law Preserving Some Land as Sacred",
FoxNews.com, Sept. 21). (DURABLE LINK)
September 25-26 --The
blame for suicide. Two Connecticut teenagers commit suicide
in separate incidents sixteen years apart, and in both cases parents sue
police departments for failing to protect the youths from
themselves. Showing that the cops messed up, however, is not
enough; if the jury lacks sympathy for the parents, the case is still in
trouble. (Colleen Van Tassell, "When teen suicide doesn't pay", New Haven
Advocate,
Aug.
8). (DURABLE LINK)
September 24 --
Tour of the blogs. The medical weblogs have been abuzz
with discussion of the malpractice
crisis in recent days; see MedPundit for interesting items on whether
any doctor in his or her right legal mind should be reading mammograms
these days (Sept.
21); on the shamelessness with which trial lawyer apologists deny that
there's any connection between the sums paid out on malpractice claims
and the insurance rates charged to doctors (Sept.
20); and on whether penicillin would have been adopted as quickly in
today's liability climate (Sept.
17). Plus much more from RangelMD (Sept.
18 and Sept.
19); MedRants (whole
category); and The Bloviator (Sept.
20). Also see Sydney Smith (MedPundit), "Law and Orderlies",
TechCentralStation, Sept.
24.
Meanwhile, newly launched blog The Staffer comments on a lawsuit on
behalf of four minority seniors in Massachusetts high schools challenging
statewide achievement tests. (Sept.
19; see Ed Hayward, "MCAS mess: Students' lawyers to sue state over
controversial test", Boston Herald, Sept. 19). And "Robert
Musil", normally a calm and collected sort, gets downright angry at the
way some supporters of the federal Title IX
sports
gender-quota scheme airily dismiss the plight of male "walk-ons", students
who would like to participate in sports though they aren't of starting-team
caliber. (Sept.
22). (DURABLE LINK)
September 23 --
"Greek net cafes face ruin". Police acting under a controversial
law banning all forms of computer games have closed down internet cafes
around Greece, confiscating computers as evidence. "A judge in the
city of Thessaloniki had earlier thrown out the first case brought under
the gaming law but prosecutors have appealed against the decision and launched
a new crackdown. ... The Greek Government passed legislation in July outlawing
all electronic or mechanical games in a bid to stamp out an illegal gambling
epidemic ... The bill has been widely criticised for failing to distinguish
between [electronic slot machines, known in British English as "fruit machines"]
and mainstream computer games such as Counter-Strike and Age of Empires."
(Daniel Howden, BBC, Sept.
20). The bill bans the playing of computer games in private as
well as public places, and on electronic devices of any sort, such as personal
organizers and cell phones.
MORE: Rupert Goodwins and Matt Loney, "In Greece, use
a Game Boy, go to jail", ZDNet (UK), Sept.
3; unverified
English translation of the law; Nikos Kakayanis, Overclockers.com forum,
Sept.
4; "Greeks fight computer game ban", BBC, Sept.
5; Dan Farber, "Who's gunning for Game Boy and Google?", ZDNet, Sept.
5. (DURABLE LINK)
September 23 --
"Doctors find no evidence of mold as a toxic disease".
Burgeoning litigation on stachybotris in homes has far outrun the
available science, according to the Texas Medical Association's Council
on Scientific Affairs. "Mold can cause reactions in people with allergies
and asthma [said allergist/immunologist Wes Stafford]. But there's no evidence
that it causes other health problems or aggravates other existing health
conditions, the report said." Some families have won multi-million-dollar
lawsuits over alleged mold-related health problems, and mold
claims are considered a key factor in skyrocketing homeowners' insurance
rates in Texas and other states. (Janet Elliott, Houston Chronicle,
Sept.
21). And see Christopher Wanjek, "It's Everywhere", Washington
Post,
Sept.
17; RangelMD, Sept.
17 and earlier posts. (DURABLE
LINK)
September 23 --
Annals of zero tolerance: "No scissors allowed at ribbon-cutting ceremony
at Pittsburgh airport". After all, they're weapons,
right? Officials were reduced to tearing the ribbon. (AP/Canada.com,
Sept.
20). (DURABLE LINK)
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