Dustin Dibble, 25, of Brooklyn “got so drunk that he fell into the path of a subway train – costing him his right leg – but a Manhattan jury still awarded him $2.3 million after finding that NYC Transit was to blame.” [New York Post (“Drunk Rides Gravy Train”) and more (Mayor Michael Bloomberg calls award “incomprehensible”), N.Y. Daily News] John Hochfelder has more on the tendency of the New York subway system to be sued by tipsy totterers, and see also this City Journal compilation of mine from back in 1993.
CPSIA chronicles, February 19
- Apparently I’m not the only one to lose patience with the New York Times, at least when they publish an editorial as bad as yesterday’s. My critique was not only (as mentioned) reprinted almost immediately at Forbes.com, but drew an extraordinary reaction elsewhere, including (not exhaustive): Virginia Postrel, Christopher Fountain, Patrick @ Popehat (strong language — now you’re sure to click), Carter Wood/ShopFloor, Mike Cernovich, Katherine Mangu-Ward/Reason “Hit and Run” (says I go “completely ballistic (in a good way!)”), Jonathan Adler @ Volokh Conspiracy, Memeorandum, Above the Law, Tim Sandefur, Mark Thompson/Donklephant (extensively “fisking” the Times editorial; related, Deputy Headmistress), Alison Morris/Publisher’s Weekly Shelftalker blog (law reminds her of Cory Doctorow novel Little Brother), Jacob Grier, Amy Alkon/Advice Goddess, Joe Weisenthal/ClusterStock, Valerie Jacobsen/Bookroom Blog. And: Deputy Headmistress at Common Room, Faith in Truth, Amy Ridenour/National Center and NewsBusters, Charles Kuffler/Off the Kuff. I’m particularly grateful to Robert Ambrogi at Legal Blog Watch for his wider look at how blogs and other newer media have helped correct the shortcomings of some venerable old-media institutions on this story.
- It’s often noted that the most visible economic interests on the children’s-products scene, namely the two big import-oriented toymakers, the makers of mass-market children’s apparel, disposable diapers, and the like, and the big retailers like Wal-Mart and Toys-R-Us, 1) mounted no effective resistance to CPSIA’s passage, 2) have experienced lobbyists in Washington who took an interest in the bill’s progress, and 3) can more or less live with the new rules as part of a business plan that includes mass factory runs and mass merchandising over which the high costs of testing and compliance can be spread, an advantage not shared by smaller producers and retailers. From this it is often concluded that the large companies purposely devised the law’s provisions so as to destroy smaller competitors. I doubt we’ll ever get a definitive answer to that question one way or the other unless Washington insiders step forward with firsthand accounts (hint), but I’d be wary of adopting the “Mattel and Hasbro are secretly chuckling all the way to the bank” meme without better evidence than has surfaced to date, for reasons outlined by David Foster, Kathleen Fasanella, and Deputy Headmistress. The last-named points quite reasonably to the long paper trail in which the Ralph-Nader-founded Public Citizen, a longstanding anti-business pressure group with close ties to the plaintiff’s bar, and its Nader-founded close ally PIRG, boast of having led the campaign for a maximally stringent CPSIA. Related points here (Eric Husman) and here and here (Deputy Headmistress). More: Mark Thompson has some highly pertinent things to add in the comments section.
- We’ve already visited the question whether one big organization that has vociferously defended CPSIA, the Natural Resources Defense Council, took care to obtain the needed manufacturer certifications before offering its own promotional baby “onesie”. Now Patrick at Popehat asks the same question about a second such group, Greenpeace.
- My favorite line from the late Daniel Patrick Moynihan was one about how when institutions fight each other for long enough they come to resemble each other. When I went over to Amy Alkon’s comments section and saw yet another “but Snopes said there’s nothing to this fuss about CPSIA” comment, it hit me: Snopes is now in the business of perpetuating urban legends.
- Unless you’re a New York Times editorialist, in which case you might not notice it under your own nose, it’s easy to find good coverage of the appalling debacle CPSIA has brought for youth powersports — motorbikes, mini-ATVs and the like. There’s USA Today, the Minneapolis Star Tribune, the Rapid City (S.D.) Journal, the Las Vegas Review-Journal, and Marketing Daily, for instance, as well as the discussion on Rush Limbaugh.
- Kopfschmerz means headache, and describes the sensation felt by German exporters of toys and children’s products.
- While we’re at it, I never did round up the numerous reactions to my post of a week ago on CPSIA and vintage books. A sampling includes The Anchoress, Todd Seavey (also reminded of Ray Bradbury), Open Your Ears and Eyes, Blackadder’s Lair, John Holbo/Crooked Timber, 5 Kids and a Dog, Mark Bennett’s noteworthy posts at Defending People reprised at Blawg Review #199, Carter Wood at NAM ShopFloor and again, David Foster at Chicago Boyz, Der Schweizer Narr (from Switzerland, in German), International House of Bacon (CPSIA “the single worst piece of regulation in my lifetime”), children’s author Vivian Zabel/Brain Cells and Bubble Wrap, She’s Right, Joey and Aleethea, Dewey’s Treehouse, Sherry/Semicolon Blog, and Classic Housewife.
- I’ve started a new tag, CPSIA and resale, for easy retrieval of posts in that category. There are already tags for the law generally and for its effects on books and minibikes — at some point I’ll get around to adding tags for the law’s effects on needle/apparel trades, toys, and libraries, too, and maybe others.
February 19 roundup
- Surprising origins of federal corruption probe that tripped up Luzerne County, Pa. judges who were getting kickbacks on juvenile detention referrals: insurers had noted local pattern of high car-crash arbitration sums and sniffed collusion between judges and plaintiff’s counsel [Wilkes-Barre Times Leader, Legal Intelligencer] Court administrator pleads to theft [Times Leader] Judge Ciavarella had secret probation parole program [PAHomepage]
- We get accolades: “Overlawyered.com has a new look. Great new format, same good stuff,” writes ex-securities lawyer Christopher Fountain, whose real estate blog I’m always recommending to people even if they live nowhere near his turf of Greenwich, Ct. [For What It’s Worth]
- “Fla. Jury Awards $8M to Family of Dead Smoker in Philip Morris Case” [ABA Journal; for more on the complicated background of the Engle case, which renders Florida a unique environment for tobacco litigation, start here]
- Scott Greenfield vs. Ann Bartow vs. Marc Randazza on the AutoAdmit online-bathroom-scrawl litigation, all in turn playing off a David Margolick piece in Portfolio;
- Eric Turkewitz continues his investigations of online solicitation by lawyers following the Buffalo crash of Continental Flight #3407 [NY Personal Injury Law Blog, Mon. and Tues. posts; earlier]
- One vital element of trial management: keep track of how many jurors there are [Anne Reed, Deliberations]
- Public Citizen vs. public health: Sidney Wolfe may succeed in getting the FDA to ban Darvon, and the bone marrow transplant nurse isn’t happy about that [Dr. Wes, KevinMD, more on Wolfe here]
- “Baseball Star’s [uninfected] Ex Seeks $15M for Fear of AIDS” [OnPoint News, WaPo, New York Mets star Roberto Alomar]
New at Forbes.com: “The New York Times Betrays Small Business”
That didn’t take long: Forbes.com has reprinted, in slightly condensed form, my blog post from this morning on the Times’s clueless editorial on the Consumer Product Safety Improvement Act, or CPSIA.
Paralyzed in crash after underage drinking, wins $2.5M from homeowner
George Baldwin, then 19, drank while visiting the Pfeifer sisters at their home; he got into the car as a passenger with intoxicated friend William Klairmont and was paralyzed in the resulting crash. Now Lauralee Pfeifer, the girls’ mother, will pay $2.5 million in a settlement:
Unlike other lawsuits alleging that adults played a role in teenage drinking parties, Pfeifer did not buy the alcohol for the teens or know they were drinking in her home. Pfeifer did not admit any wrongdoing in the settlement, said Michael Borders, her lawyer.
But Salvi said Pfeifer should have monitored the teens and suspected they were drinking, especially because her daughters had been caught drinking before.
New York Times on CPSIA: “needless fears that the law could injure smaller enterprises”
Clueless. Disgraceful. Grossly ill-informed. And cruelly hard-hearted toward families and businesses across the country that are facing economic ruin.
Yes, after months of silence, the editorialists of the New York Times have finally weighed in with their view of how CPSIA is going. How bad did you expect their editorial to be? It’s that bad, and worse.
In a six-paragraph editorial about toy safety, exactly one paragraph is spent informing readers that anything about the law might have aroused any public criticism. And here is that paragraph:
Unfortunately, the commission has yet to implement important aspects of the new law. The delay has caused confusion and allowed opponents to foment needless fears that the law could injure smaller enterprises like libraries, resale shops and handmade toy businesses.
Got that? “Confusion” about the law, and “delay” in implementing it, are the real problems. Fears that small business will be hurt are “needless” and are being “fomented” by presumably sinister opponents.
Or, put differently: anyone who imagines this law might be impractical for libraries, resale shops, handmade toy businesses, or other small businesses is just imagining things — fooled, perhaps, by misinformation spread by the law’s opponents.
Libraries are just imagining things if they listen to people like Emily Sheketoff, associate executive director of the American Library Association, who spoke to the press last month about the choices facing libraries if some sort of exemption could not be found. (“Either they take all the children’s books off the shelves,” she said, “or they ban children from the library.”) Or people like Chip Gibson, president and publisher of Random House Children’s Books, who spoke to Publisher’s Weekly about the prospective effects of the law: “This is a potential calamity like nothing I’ve ever seen. The implications are quite literally unimaginable. …It has to be stopped.” It’s true that the CPSC’s last-minute stay of enforcement did save the new-children’s-book trade from calamity — but remember, to the Times, “delay” has been one of the problems in implementing the law, not something that has (so far) spared us its worst effects.
Thrift stores are just imagining things if they listen to people like Adele Meyer, executive director of the National Association of Resale and Thrift Shops, who said, “The reality is that all this stuff will be dumped in the landfill.” They should ignore all the reports, no matter how numerous and from how many sources, of local Goodwill operations and other thrift stores’ closing children’s departments or sweeping more than half their contents off the shelves, and of kids’ resellers and consignment shops taking massive financial hits or closing down entirely. All of these episodes are either imaginary or, if conceded as real, an instance of overreaction to the needless fears those moustache-twirling opponents have “fomented”. (Some more thrift-store coverage not previously linked: North Carolina, Nebraska, Minnesota with Goodwill pic, upstate New York (“We can’t be sure of the risk unless we take everything off the shelf”), South Dakota, Colorado). They should also stop predicting that the pursuit of their charitable missions will suffer a major blow from the loss of children’s resale revenue, because that sort of thing just undermines morale.
Handmade toy businesses are just imagining things if they listen to anyone like the Handmade Toy Alliance. It’s not as if anyone like them is on its list of members.
The Times editorialists warn against “needless fears” that the law “could injure” smaller enterprises. Got that? Not only will they not be driven out of business, they won’t even be “injured”. So small enterprises from coast to coast are just imagining things if they plead desperately for places like the Times to notice that they have already closed down, or will have to do so in the foreseeable future, or have lost thousands of dollars in unsalable inventories. Motorbike dealerships around the country are just imagining things if they think they’re staring at massive losses from the inability to sell their products, even though news-side talent at the New York Times has in fact covered their story well — coverage which the editorial studiously ignores.
For as long as anyone can remember, the New York Times has unthinkingly taken its line on supposed consumer-safety issues from organized groups like Public Citizen and Consumers Union. In this case, the result of such reliance has been to render the nation’s leading newspaper a laughingstock.
Public domain image: Grandma’s Graphics, Ruth Mary Hallock.
(& welcome Virginia Postrel, Christopher Fountain, Patrick @ Popehat, Carter Wood/ShopFloor, Mike Cernovich, Katherine Mangu-Ward/Reason “Hit and Run”, Jonathan Adler @ Volokh Conspiracy, Memeorandum, Above the Law, Tim Sandefur, Mark Thompson/Donklephant, Alison Morris/Publisher’s Weekly Shelftalker blog, Jacob Grier, Amy Alkon/Advice Goddess, Joe Weisenthal/ClusterStock, Valerie Jacobsen/Bookroom Blog readers. And: Deputy Headmistress at Common Room, Faith in Truth, Amy Ridenour/National Center and NewsBusters, Charles Kuffler/Off the Kuff.)
And more: Forbes.com liked this piece and has now reprinted it in slightly altered form. And I’m particularly grateful to Robert Ambrogi/Legal Blog Watch for his generous coverage.
“Jury: Ranchers did not violate Mexicans’ rights”
“A federal jury on Tuesday afternoon ruled that an Arizona rancher did not violate the civil rights of 16 Mexican nationals he detained at gunpoint after they had snuck illegally into the United States in 2004, but the jury awarded $78,000 in actual and punitive damages to six of the illegal immigrants on claims of assault and infliction of emotional distress.” [Jerry Seper/Washington Times, earlier]
CPSIA on the radio
Yesterday I taped a ten-minute segment with Ed Driscoll for his weekly Pajamas Radio show, which will air this weekend on Sirius. We talked about the legal dangers to vintage children’s books as well as the wider problems with the law in general. And conservative host Rush Limbaugh took up the subject yesterday on his show as well.
February 18 roundup
- Golfer’s ball bounces off yardage marker and hits him in eye, and he sues; not the Florida case we blogged last month, this one took place in New Hampshire [Manchester Union-Leader]
- Who needs democracy, much easier just to let the Litigation Lobby run things: elected Illinois lawmakers keep enacting limits on med-mal awards, but trial-lawyer-friendly Illinois Supreme Court keeps striking them down, third round pending at the moment [Peoria Journal-Star, Alton Telegraph, Illinois Times, Reality Medicine (ISMS)]
- “A sword-wielding, parent-killing psychopath can be such a help around the house.” [we have funny commenters]
- Brooklyn lawyer Steven Rondos, charged with particularly horrendous looting of incapacitated clients’ estates [earlier], said to have served the New York State Bar Association “as vice president of its guardianship committee” [NYPost]
- Updated annals of public employee tenure: Connecticut state lawyer who assumed bogus identity to write letter that got her boss fired drew a $1000 fine as well as a reprimand — and then got a raise [Jon Lender/Hartford Courant and more, earlier here and here]
- Judge Bobby DeLaughter indicted and arraigned as new chapter of Dickie Scruggs judicial-corruption story gets under way in Mississippi; Tim Balducci and Steve Patterson, central figures in Scruggs I, each draw 2-year sentences [NMC/Folo and more, more, YallPolitics, more, earlier on Balducci, DeLaughter]
- Disney “Tower of Terror” ride not therapeutic for all patrons: British woman sues saying she suffered heart attack and stroke after riding it several times [AP]
- Convicted of torching his farm, Manitoba man sues his insurance company for not making good on policy [five years ago on Overlawyered]
Erwin Chemerinsky’s good-neighbor policy
The founding dean of the ideologically charged new law school at the University of California, Irvine, is already taking a hand in Orange County public affairs by suing the town of Laguna Beach on behalf of homeless persons: he and his public-interest-law colleagues “want a federal judge to enjoin enforcement of Laguna’s anticamping ordinance until the city builds more no-strings-attached homeless housing.” [Heather Mac Donald, WSJ] More: Chemerinsky offers to debate Mac Donald.