LA Weekly: The Mold Rush and the case of Sharon Kramer and Bruce Kelman

Welcome LA Weekly readers; this website is mentioned and I am quoted in a less-than-entirely-coherent story about mold litigation in this week’s LA Weekly. The story focuses on Sharon Kramer, who has given up a full-time career to pound the drums over her fight with her insurer alleging mold harms after a remediation; and an unfortunate lawsuit brought by scientist Bruce Kelman against Kramer. Kelman only wants an apology from Kramer for her issuing a press release that falsely claimed he lied under oath; Kramer has refused, and Kelman is still stuck in litigation where he will likely come up with a Pyrrhic victory. (Kelman’s work writing a layperson’s guide to the science of mold for the Manhattan Institute is central to the libel allegations.) Kramer, meanwhile, blames her aging on exposure to mold, rather than, say, turning 56. The story suffers for treating Erin Brockovich as the archetype of a justified plaintiff; Overlawyered readers know better.

The story is worthwhile for one new tidbit of information, the poetic justice facing Ed McMahon for his bogus mold lawsuit:

In 2003, another raft of huge mold news stories broke nationwide, and Kramer paid close attention. The most famous, and strangest, was that of Johnny Carson’s sidekick Ed McMahon, who took a $7.2 million settlement after suing for $20 million in his claim that mold made him and his wife sick — and killed his sheepdog, Muffin. …

In the McMahon case, some see the tragic unraveling of a popular public figure egged on by an attorney, Allan Browne. No hard, scientific evidence was ever made public proving that McMahon or his dog suffered the specific mold allergies and immune-system problems that, in rare cases, can be set off by household mold.

Since then, McMahon has become a sad figure, with a series of new troubles, including his default this year on his palatial 7,000-square-foot home on Mulholland Drive, involving a $4.8 million loan from the infamous lender Countrywide. And he just sued again, bizarrely accusing investment tycoon Robert Day of having in his mansion a poorly lit staircase on which McMahon says he fell during a party last year. McMahon is belatedly alleging he broke his neck but that doctors missed it.

The longtime TV pitchman spent years convincing the courts and the general public that his home contained rampant, poisonous, deadly mold strong enough to fell a large dog. McMahon talked it up for so long that he now faces the daunting task of selling a home he can no longer afford, that people believe is riddled with toxins.

Also interesting to me is the story’s quote of me. I gave an e-mail interview to the author, Daniel Heimpel in February. It’s interesting what gets used and what doesn’t get used, so I am going to attach the entire interview.

Here’s the full February 28 interview:

Read On…

Breaking: Tennessee Supreme Court reinstates punitive damages in Flax v. DaimlerChrysler

Perhaps we spoke too soon when we commended the Tennessee appellate court for getting it partially right. As we stated in November 2004:

In 2001, Louis Stockell, driving his pickup at 70 mph, twice the speed limit, rear-ended a Chrysler minivan. Physics being what they are, the front passenger seat in the van collapsed backwards and the passenger’s head struck and fatally injured 8-month old Joshua Flax. The rest of the family walked away from the horrific accident. Plaintiffs’ attorney Jim Butler argued that Chrysler, which already designed its seats above federal standards, should be punished for not making the seats stronger — never mind that a stronger and stiffer seat would result in more injuries from other kinds of crashes because it wouldn’t absorb any energy from the crash. (Rear-end collisions are responsible for only 3% of auto fatalities.) Apparently car companies are expected to anticipate which type of crash a particular vehicle will encounter, and design accordingly. The $105M verdict includes $98M in punitives.

We had more details of trial shenanigans in December 2004 and noted the reduction of the punitives by the trial court to a still unreasonable $20 million in June 2005. In December 2006, the intermediate appellate court threw out the punitive damages and the negligent infliction of emotional distress claim, leaving a $5 million compensatory damages verdict to be split between Chrysler and the driver responsible for the accident. An injustice, but at least a smaller injustice.

However, today, a 3-2 vote of the Tennessee Supreme Court made it a larger injustice again, reinstating $13,367,345 of punitive damages over a good-faith dispute over appropriate seatback design, giving no credit to evidence that the design in the Caravan was safer than the plaintiffs’ proposed design, and effectively disregarding Tennessee statutory law that compliance with federal standards creates a presumption against punitive damages. The Court did not mention Exxon Shipping‘s suggestion that punitive damages greater than a 1:1 ratio were possibly constitutionally inappropriate where compensatory damages were substantial and the defendant’s actions were not intentional or done for profit. The Court unanimously affirmed the elimination of the NIED claim; one justice would have thrown out the compensatory damages, as well, because of the volume of inadmissible and improperly prejudicial evidence admitted. (Flax v. Daimler Chrysler (Tenn. Jul. 24, 2008); id. (Wade, J., concurring); id. (Clark, J., partially dissenting); id. (Koch, J., partially dissenting); E. Thomas Wood, “High court upholds $18.4M damage award in DaimlerChrysler case”, Nashville Post, Jul. 24; Kristin M. Hall, AP/Chicago Tribune, Jul. 24). The majority decision relied heavily on the expert testimony of Paul Sheridan, an MBA non-engineer and professional anti-Chrysler witness whom a federal court called “wholly unqualified” to testify on seat back design.

Yet more Edwards campaign-cash laundering

Big-league Arkansas trial lawyer Tab Turner did it, and was fined $9,500. Big-league Michigan trial lawyer Geoffrey Fieger did it, and managed to beat the rap at his recent trial. And now we learn that big-league California trial lawyer Pierce O’Donnell did it too: evaded limits on campaign contributions to John Edwards by reimbursing underlings to enable them to contribute. Would it be simpler to compile a list of the big Edwards backers who did obey the law? (WSJ law blog, Jul. 24). More on Edwards campaign finance shenanigans here.

Update Jul. 25, NLJ: O’Donnell indicted, based on a separate episode of laundering of contributions (to Los Angeles mayoral campaign of James Hahn).

Service animals, cont’d: “Ferret barred from Ottawa buses”

Continuing our theme, Frances Woodard has now lodged a complaint against the public transit authority in Canada’s capital city for barring the diminutive, weasel-like predator whose companionship, according to her psychiatrist, helps her stave off panic attacks. “A letter from OC Transpo customer relations sent in May said the decision was a result of fears about allergic reactions and phobias from other passengers and reactions from other animals, such as guide dogs.” (CBC News, Jul. 23). Monday’s post on the “service monkey” lawsuit from Springfield, Mo. is here.

Update: Willie Gary case against Motorola

Per AmLaw Daily, his trade secrets case against Motorola, on behalf of a now-defunct client named SPS Technologies, has settled for a sum far short of the $10 billion he sought. The case made headlines when a judge granted the Florida-based plaintiff’s potentate $23 million in sanctions against his opposite number, the law firm of Shook, Hardy & Bacon, though Gary had asked for $200 million in all. Reports AmLaw Daily:

The rising cost of fuel also has forced Gary to lease out his private jet — an aircraft appropriately named the “Wings of Justice II,” which includes an 18-karat gold sink and $1.2 million sound system — for $150,000 a month.

In late July, Gary told Scripps Treasure Coast Newspapers that fuel for the 32-passenger Boeing 737 costs $250,000 a month. A routine roundtrip flight to a city like Atlanta can run $35,000.

Cops: lawyer funneled brothel profits through good-government fund

Really, we couldn’t make it up: after raiding the Hot Lap Dance Club on W. 38th St. in Manhattan as a front for prostitution, police arrested lawyer Louis Posner and 22 others as part of the enterprise, which allegedly skimmed earnings from girls who entertained customers in private rooms for fees as high as $5,000. “Posner, once known as the king of nuisance lawsuits, brought a landmark $16 million suit against his then-4-year-old son’s nursery school in 1992 for letting the child run out of his classroom.” (New York Daily News first, second, third, fourth story). Posner, who more recently has concentrated on such areas of practice as taxes, trusts and estates, is reviled by several sources in the New York Daily News’s coverage for hitting on the girls himself, to their frequent disgust. Incomparable detail: cops claim Posner funneled the brothel profits through a political activist group called Voter March, which he set up after the disputed Bush-Gore election in 2000. (ABA Journal, New York Times). Fair labor practices angle: “The pair [of interviewed dancers] estimated that 120 women worked there. Some were Americans who operated as independent contractors and paid $80 a night in ‘house fees;’ others were Russians who worked to pay off debts to their handlers.” And we can’t leave this out: “The club last made news in March when it was sued by a securities trader who claimed he was seriously injured when a lap-dancing stripper swiveled and slammed him in the face with her shoe.” More: Above the Law, New York Observer.

Sacha Baron Cohen lawyer script

The “Borat” star, per AFP, “has sold Fox film studios a comedy, ‘Accidentes,’ about an ambulance-chaser-turned-hero, which he will produce and possibly star in, Variety magazine said Tuesday. The film is about a personal injury lawyer who becomes a hero among Los Angeles Hispanics for successfully defending a worker against a wealthy employer, but who in the process becomes the enemy of the city’s elite.” And see Defamer Australia with related graphic: “El Mejor Abogado”.

Servitude to the state

Whatever this group “Service Nation” is all about, it sure isn’t liberty. Jim Lindgren has their number (Volokh Conspiracy, several recent posts; Coyote; Althouse).

But see: the organization now denies (Somin @ Volokh) that its agenda includes mandatory national service, despite the goal recently listed on its website (now removed) of “Launch[ing] a debate about why and how America should become a nation of universal national service by 2020.”

School scenarios, 1958 vs. 2008

This doesn’t pretend to be anything more than a bit of unattributed circulating email humor, but it still made me laugh:

Scenario: Jack goes quail hunting before school, pulls into school parking lot with shotgun in gun rack.
1958 – Vice Principal comes over, looks at Jack’s shotgun, goes to his car and gets his shotgun to show Jack.
2008 – School goes into lock down, FBI called, Jack hauled off to jail and never sees his truck or gun again. Counselors called in for traumatized students and teachers. …

Full thing at Never Yet Melted.