“Ansonia Smoking Lawsuit Is Settled”

A company’s donation of air purifiers helped end the legal squabble between the Manhattan neighbors (Feb. 9); smoker Galila Huff has also agreed to use a smokeless ashtray, say Jonathan and Jenny Selbin, the husband-and-wife litigators. Jonathan Selbin, of Lieff Cabraser, evidently feels much put upon by press accounts linking his name with the epithet “bully”; one of Selbin’s earlier letters to Huff observed, “As you may not be aware, we are both lawyers and both litigators, for whom the usual barriers to litigation are minimal.” (Anemona Hartocollis, New York Times, Apr. 7; Greenfield, Apr. 6; WSJ letter to the editor, Apr. 8).

We were counting on you for favorable testimony!

A Utah federal court will consider the Pace family’s lawsuit against California anesthesiologist Barry Swerdlow, whom they had earlier hired as an expert witness as part of their medical liability suit against another anesthesiologist, Stephen Shuput, whom they blamed for their late daughter’s death. After agreeing to come on board as an expert for the Paces, Swerdlow examined Shuput’s deposition and concluded that Shuput had met the standard of care; he proceeded to inform Shuput’s lawyers of this, and they quickly got the case dismissed. The Paces then sued Swerdlow for “malpractice, fraud, negligent misrepresentation, breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent infliction of emotional distress,” to quote AMNews’s catalogue. Swerdlow conceded that he was new at the expert witness game and that it would probably have been a good idea for him to have read Shuput’s deposition earlier. The EleventhTenth Circuit ruled that a lower court should consider the Paces’s contention that they had suffered legally actionable damages from Swerdlow’s actions. (Bonnie Booth, “Expert who changed mind claims immunity, but plaintiffs still sue”, American Medical News, Apr. 14).

Judge Gorsuch, dissenting from the EleventhTenth Circuit’s ruling, wrote:

Parties already exert substantial influence over expert witnesses, often paying them handsomely for their time, and expert witnesses are, unfortunately and all too frequently, already regarded in some quarters as little more than hired guns. When expert witnesses can be forced to defend themselves in federal court beyond the pleading stage simply for changing their opinions – with no factual allegation to suggest anything other than an honest change in view based on a review of new information – we add fuel to this fire. We make candor an expensive option and risk incenting experts to dissemble rather than change their views in the face of compelling new information. The loser in all this is, of course, the truth-finding function and cause of justice our legal system is designed to serve.

(Decision of the Day, Mar. 5; Karen Franklin, Forensic Psychologist, Mar. 7; The Briefcase, Mar. 7).

“Resurrect Rule 11”

In 1993 the U.S. Congress, urged on by organized litigators, gutted Rule 11, which for ten years had provided relatively strong remedies to those targeted by groundless litigation in federal courts. It’s time to look again at the case for a stronger Rule 11, argue Zeke J. Roeser and Karen Harned (National Federation of Independent Business, in a new article for the Federalist Society’s Engage (cross-posted from Point of Law).

Jury not asked to blame driver, does so anyway

“A Washington state woman who sued Ford Motor over her injuries in an SUV rollover accident isn’t exactly thrilled that a jury cleared the automaker — and awarded her $6 million in damages against her sister, who was the driver of the vehicle. … The federal jury in Spokane, Wash., found Marla Bear 100 percent at fault for losing control of the SUV, in which her younger sister was a passenger. According to trial testimony, the car swerved when she looked over her shoulder to see if Crystal had her seat belt attached.” Ford’s own attorney, whether for tactical reasons of sympathy or otherwise, had advised the jury against blaming the sister. (Matthew Heller, OnPoint News, Mar. 20) (via The Briefcase).

Latest claimed IP infringements

Both via Ron Coleman: “Deutsche Telekom / T-Mobile demands Engadget Mobile discontinue using the color magenta” (Engadget, Mar. 31)(via). And Major League Baseball apparently makes bold to own all combinations of characteristic team colors and “baseball lettering” on shirts, even when the actual shirt message is something unrelated to baseball, such as “Obama” (Susan Scafidi/CounterfeitChic, Mar. 18) (via).

“The Worst Places To Get Sued in America”

Forbes compiles its list and is kind enough to quote me at some length. Scariest of the scary? Los Angeles (ADA filing mills); Miami (med-mal); Atlantic County, N.J. (pharmaceutical); Starr County, Tex. (personal injury); Cook County, Ill. (product liability; I’m quoted on the Cook premium for otherwise routine injury cases); Mississippi (class actions; more properly, group and other mass actions, given the state’s peculiar way of handling such claims); Clark County, Nev. (construction litigation); West Virginia (environmental lawsuits); Philadelphia (I’m quoted on the city’s tradition of libel suits by public officials); (William Pentland, Forbes, Apr. 7; slideshow).

Miseries of software upgrade, cont’d

Site search, which has been broken for the past couple of days, is back working now. Pre-2003 archives are now broken, but I expect to get them reinstalled fairly soon. (Update: fixed now.)

Unfortunately, the inherent limitations of Movable Type and its upgrades are forcing a retreat from one of my long-held objectives, namely to provide this site’s archives with stable longterm URLs. The previous URL formats we used are not supported by MT 4, which means that after our upgrade-in-progress is finished, existing links to individual posts published before March 2008 will mostly break. With minor exceptions the material itself will not vanish from the site, but it will reside at new URLs and you will need to do more searching for it. Sorry.

Update: Panel recommends penalty for Boston judge over settlement demands

“The Massachusetts Commission on Judicial Conduct recommended a $25,000 fine, a 30-day suspension without pay and a public censure for state court Judge Ernest B. Murphy for sending improper letters to Boston Herald publisher Patrick J. Purcell that demanded settlement of Murphy’s libel lawsuit against the newspaper.” (Sheri Qualters, “Suspension, Fine Recommended for Boston Judge Who Sent Improper Letters to Newspaper”, National Law Journal, Apr. 2). For more on Judge Murphy’s “fascinatingly repellent” letters and their “‘Surrender, Dorothy’ flavor”, see Dec. 23 and Dec. 8, 2005.

April 5 roundup

  • Ninth Circuit, Kozinski, J., rules 8-3 that Roommates.com can be found to have violated fair housing law by asking users to sort themselves according to their wish to room with males or other protected groups; the court distinguished the Craigslist cases [L.A. Times, Volokh, Drum]
  • Class-action claim: Apple says its 20-inch iMac displays millions of colors but the true number is a mere 262,144, the others being simulated [WaPo]
  • U.K.: compulsive gambler loses $2 million suit against his bookmakers, who are awarded hefty costs under loser-pays rule [BBC first, second, third, fourth stories]
  • Pittsburgh couple sue Google saying its Street Views invades their privacy by including pics of their house [The Smoking Gun via WSJ law blog]
  • U.S. labor unions keep going to International Labour Organization trying to get current federal ground rules on union organizing declared in violation of international law [PoL]
  • Illinois Supreme Court reverses $2 million jury award to woman who sued her fiance’s parents for not warning her he had AIDS [Chicago Tribune]
  • Italian family “preparing to sue the previous owners of their house for not telling them it was haunted”; perhaps most famous such case was in Nyack, N.Y. [Ananova, Cleverly]
  • Per their hired expert, Kentucky lawyers charged with fen-phen settlement fraud “relied heavily on the advice of famed trial lawyer Stan Chesley in the handling of” the $200 million deal [Lexington Herald-Leader]
  • Actor Hal Holbrook of Mark Twain fame doesn’t think much of those local anti-tobacco ordinances that ban smoking on stage even when needed for dramatic effect [Bruce Ramsey, Seattle Times]
  • Six U.S. cities so far have been caught “shortening the amber cycles below what is allowed by law on intersections equipped with cameras meant to catch red-light runners.” [Left Lane via Virtuous Republic and Asymmetrical Information]