- Professors debate fourth-amendment implications of Supreme Court’s use of videotape evidence. Orin seems to have the better of it by my eyes, but perhaps that’s just my confirmation bias. [Kerr @ Volokh; Kahan/Hoffman/Braman; Youtube; Concurring Opinions] (And update: rejoinder by Braman @ Concurring Opinions)
- Repeat after me: medical errors or complications are not always medical malpractice. [Dr. Wes; Medical Progress Today]
- NC court speaks out for judicial restraint before creating new cause of action. [Beck/Herrmann]
- California proposes allowing government to remotely set your thermostat [Walter Williams; Cafe Hayek]
- Old problems not getting any better: “a New York Times article in 1897 (!), which reported that The Committee for Remedial Legislation in Regard to Expert Testimony called for all physician witnesses to be paid by the county.” [PlasticSurgery101]
- Remember Lionel Tate, the 12-year-old who murdered a 6-year-old, and then provoked outrage when he was sentenced to life at the age of 14? His sentence was reversed, he was given probation, and promptly violated it by committing armed robbery, it seems. Now he wants to blame his lawyer for the resulting 30-year-sentence. [ABA Journal]
Scruggs scandal: Joey Langston charged, cooperating with feds
Now we may have a better idea why prominent Booneville, Miss. lawyer Joseph Langston recently withdrew as counsel for Dickie Scruggs in the widening corruption scandal: per a report by Jerry Mitchell in Sunday’s Jackson Clarion-Ledger, Langston was himself nabbed on corruption charges, has pleaded guilty and is cooperating with federal authorities. According to the article, Langston’s guilty plea arose from his involvement in one of Scruggs’s many fee disputes with fellow lawyers, this one being the Luckey-Wilson asbestos fee matter (in which Scruggs’ adversaries were Alwyn Luckey and William Roberts Wilson Jr.) Langston will apparently testify that he worked with both Dickie Scruggs and son Zach in an attempt to improperly influence Circuit Judge Bobby DeLaughter, who issued rulings favorable to Scruggs in the case. In one memorable detail, the C-L reports that federal authorities have obtained a May 29, 2006, e-mail in which “Zach Scruggs told his father’s attorney in the case, John Jones of Jackson, that ‘you could file briefs on a napkin right now and get it granted.'” Judge DeLaughter has denied any impropriety. (Jerry Mitchell, “Another lawyer pleads guilty”, Jan. 13). Separately, Patsy Brumfield of the Northeast Mississippi Daily Journal, who was first with an unconfirmed report of Langston’s guilty plea, also reports from unnamed sources that federal prosecutors have flipped another of the five indictees in the original scandal, Steven Patterson (partner of informant Tim Balducci), and that documents to be unsealed Monday will clarify other aspects of the status of the case. (“First public clue Patterson has pleaded in Scruggs case”, Jan. 11; “Scruggs updates”, Jan. 12). Discussion: Lotus/folo, Jan. 12, Jan. 13.
The implications are enormous. Among them:
* It looks as if informant Balducci, who formerly practiced law in the Langston law firm, wasn’t kidding when he said he knew where there were “bodies buried“. Information from Balducci likely helped lead the feds to raid the Langston office and seize records documenting the alleged Wilson-Luckey conspiracy.
* Langston is no incidental Scruggs sidekick or henchman; he’s quite a big deal in his own right, with a national reputation in mass tort litigation. He’s been deeply involved in pharmaceutical liability litigation, in tobacco litigation, in litigation against HMOs, and in litigation against non-profit hospitals over alleged violations of their charitable charters, among other areas. Mississippi attorney general Jim Hood, the law enforcement officer who has comically been playing potted plant as one after another of his closest political allies have been getting indicted in recent weeks, has employed Langston as lead counsel for the state in both the controversial Eli Lilly Zyprexa litigation and the even more controversial MCI back-tax-bill litigation. Langston also served Scruggs as go-between in the much-discussed funneling of $50 million in tobacco funds to ex-football player P.L. Blake (to whom now-reportedly-flipped Patterson was also close). If the reports that Langston is now cooperating with the feds are accurate, he will presumably be expected to tell what he knows about other episodes. (Langston has also endeavored to provide intellectual leadership for the plaintiff’s bar, as in this Federalist Society panel discussion presentation (PDF) in which he strongly criticizes the work on federalism and state attorneys general of Ted’s AEI colleague Michael Greve).
* Part of Scruggs’s modus operandi, as we know from tobacco and Katrina (among other) episodes, is to arrange to bring down prosecutions and other public enforcement actions on the heads of his litigation opponents. A particularly brutal instance of this crops up in today’s Clarion-Ledger piece, which reports that Scruggs in 2001 took documents obtained in discovery from Wilson, his fee-dispute opponent, and brought them to Hinds County (Jackson) district attorney Ed Peters hoping to instigate a state tax prosecution of Wilson:
Later, one of Wilson’s lawyers met with Peters, and [Wilson attorney Vicki] Slater said Peters told that lawyer that a “high-ranking public official” asked him to prosecute Wilson.
Peters could not be reached for comment.
Wilson did nothing to warrant criminal prosecution, Slater said. “All of this was to help Scruggs in his lawsuit.”
This is the same Dickie Scruggs of whom the New York Times was less than a year ago running moistly admiring profiles quoting common-man admirers of the Oxford, Miss.: lawyer: “good people. … If he tells you something, it’s gospel.”
P.S. It would certainly be interesting to know who that “high-ranking public official” who helped Scruggs in the tax-prosecution matter was, if there was one.
P.P.S. Corrected Monday a.m.: “Langston’s guilty plea was to an information; he waived indictment” (Folo). This post originally described Langston as pleading to an indictment.
January 13 roundup
Updates:
- The Canadian Transportation Agency (as part of its regulation of airline ticket prices) has ruled that obese passengers are entitled to have two airline seats for the price of one, which will no doubt encourage further suits against the American practice. (h/t Rohan) One looks forward to the Canadian lawsuits complaining that an obese passenger wasn’t adjudged obese enough to get a free second seat. [Australian; Toronto Star; Gunter @ National Post; earlier on Overlawyered]
- Also in Canada, Ezra Levant defends his free speech rights against a misnamed Alberta “Human Rights Commission” over his republication of the Danish Muhammed cartoons. [Frum; National Post; Steyn @ Corner; Wise Law Blog; Youtube; related on Overlawyered]
- Alleged car-keying attorney “Grodner is now under investigation by the state’s Attorney Registration and Disciplinary Commission, sources said. Commission officials declined to comment Thursday.” [Chicago Tribune; Jan. 4]
- “Life is short—get a divorce” attorney Corri Fetman parlays her tasteless billboard (May 10; May 8) into tasteless Playboy topless-modeling and advice-column gig. In the words of Alfred E. Neuman, “Blech.” On multiple and independent grounds. Surprisingly, Above the Law avoids the snark of noting that the lead paragraph of Fetman’s law firm web site bio includes a prestigious 23-year-old quote from a college professor’s recommendation for law school. [Above the Law; Chicago Sun-Times; Elefant]
- Wesley Snipes (Jun. 11; Nov. 2006) appears to be going for a Cheek defense in his tax-evasion trial—which is hard to do when you’re a multimillionaire whose well-paid accountants explicitly tell you you’re violating the law. (Remember what I said about magical incantations and taxes?) [Tampa Tribune; Quatloos]
- Accountant Mark Maughan loses his search-engines-make-me-look-bad lawsuit (Mar. 2004) against Google, which even got Rule 11 sanctions. (That happened in 2006. Sorry for the delay.) More on Google and privacy: Jan. 16. [Searchenginewatch]
- Bribed Mississippi judges in Paul Minor case (Sep. 8 and much more coverage) report to prison. [AP]
Sears website privacy class action
The retailer quickly modified its managemyhome.com web site after it was pointed out that unauthorized users might get it to cough up records of homeowners’ past purchases. The law firm of KamberEdelson LLC quickly hopped on the case with a class action demanding millions, saying bad guys might use the information on past lawn mower purchases and the like to trick homeowners into divulging more serious financial data, though its complaint cited no instances where anything of the sort had actually happened. (“Sears Accused Of Violating Consumer Fraud Law”, Reuters/New York Times, Jan. 7; BenEdelman.org). Chicago lawyer/blogger David Fish isn’t impressed with the turn to legal action, asking, “Are you legally damaged because your nosy neighbor found out how much your washing machine cost?” (Jan. 10).
Racially “targeting” predatory subprime loans? The NAACP and Baltimore suits
Cross-posted from Point of Law.
Says the NAACP complaint: “In 2004, African-American homeowners who received subprime mortgage loans from Defendants were over 30% more likely to be issued a higher-rate loan than Caucasian borrowers with the same qualifications.” (¶ 1.) Thus, it concludes, the disparity “result[s] from a systematic and predatory targeting of African-Americans.” (¶ 6.)
Similarly, Baltimore’s suit argues that Wells Fargo is more likely to foreclose in African-American neighborhoods—and that suit does not even attempt to adjust for similar qualifications or finances, just alleging racial disparity.
Of course, there is a difference between being targeted for a subprime mortgage loan and accepting a subprime mortgage loan. And I don’t believe that African-American homeowners were targeted for subprime mortgage loans because they were African-American. They were targeted because they were homeowners.
Between 2001 and 2005, I was a law-firm associate, high-income, making multiples of what I make today at a thinktank. And, like I am today, I was also white. And the minute my adjustable-rate mortgage was registered in the title books in 2001, I got several solicitations a week in the mail from fly-by-night mortgage brokers offering to refinance my mortgage with ludicrous financial products. (And when I made the mistake of investigating on-line options for switching to a fixed-rate mortgage in 2004, I also got several e-mails a day and phone-calls a month on the same basis to the point that I switched e-mail providers.)
Somehow, I resisted refinancing with a mortgage that was not favorable to me in the long run—I took a 5.25% fixed-rate instead. But I sure was targeted with subprime opportunities, especially as the real-estate prices in my neighborhood skyrocketed about 10% a year. And if, with my skin-color, income, education-level, and impeccable credit-score, I was targeted, so was every homeowner and their grandmother.
To the extent a statistical study says minorities were, ceteris paribus, more likely to receive unfavorable mortgages than whites, the study reflects a specification error, perhaps in failing to account for different levels of consumer education. Another possibility: there is a lot of state-by-state regulation of the mortgage industry. Are subprime mortgages more likely in states with high minority populations, for example? Are subprime mortgage brokers more likely to be aggressive in urban areas in states on the coasts where real estate prices were increasing faster than average, and those states correspond to states with high minority populations?
Note that the CRL study that has been driving the debate and highlighted in the NAACP suit finds that for many types of loans, whites were “disadvantaged” relative to Hispanics, which would seem to count against a racial explanation (unless one believes that bankers hold a racial animus against whites and towards Hispanics) and more towards a geographic explanation.
Note also the irony that these same defendants were accused of failing to offer loans to African-Americans just a few years ago. (See also Apr. 1.)
Finally, note that the NAACP complaint is legally frivolous in at least one respect because of the lack of standing in a federal court. Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470 (2006) (no § 1981 standing for third parties). (Baltimore brings no § 1981 claim.) Fair Housing Act standing is questionable, too, given the lack of allegation of injury to NAACP in particular, though that could be fairly easily rectified by an amended complaint, especially in the Ninth Circuit. Cf. Spann v. Colonial Vill., Inc., 899 F.2d 24 (D.C. Cir. 1990) (“[a]n organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit”) (R. Bader Ginsburg, J.); Fair Housing of Marin v. Combs, 285 F.3d 899, 902 (9th Cir. 2002). N.B. that there is an amended version of the NAACP complaint that may already fix these issues. NAACP v. Ameriquest Mortgage Co., No. 8:07-cv-00794-AG-AN (C.D. Cal.). For some reason, this is not available on PACER, so I haven’t seen it.
Related: Jan. 8 (Krauss on Baltimore suit); Apr. 25 (me on third-party liability for subprime lending).
(Disclosure: I own less than $15,000 in stock in Citigroup, one of the defendants in the case.)
Banning health clinics
Thanks to Glenn Reynolds for pointing out this story at the Boston Globe. Apparently there’s talk of banning the new clinics housed inside various Walmarts and CVS stores in Boston. As Glenn ponders, why would the lawmakers there want to eliminate affordable health care operated by the private sector? Also, Glenn links to this post which highlights how these clinics are doing things right.
Florida Mulls Lawsuit Over Antipsychotic Programs
That’s the title of a post by Ed Silverman over at Pharalot. The issue is the use if atypical antipsychotics in children:
Florida Medicaid records show the number of children – some just months old – who were prescribed the drugs went from 9,364 seven years ago to 18,137 in 2006. No records for privately insured patients are available.
As I mentioned earlier this week, putting the blame on the pharmaceutical industry is an oversimplistic reaction to how psychiatry, psychology,and our culture have transformed childhood into a diagnostic checklist. As mentioned in Ed’s post, the litigation in Florida appears to be the recommendation by agencies receiving Medicaid funds to use these drugs in children with ADHD who also had tics. While none of the atypical antipsychotics, to my knowledge, are FDA approved for this condition, it is common knowledge among mental health professionals that the most effective treatment for tics are dopaminergic antagonists such as atypical antipsychotics. True, the recent National Institute of Health’s CATIE study demonstrated that most of the atypicals were no better than the older ones. But that doesn’t mean that the newer atypicals aren’t effective or an appropriate treatment. Perhaps, our current social construction of adolescence is partly to blame for the boom in mental health diagnosis in our children.
Even more on autism and thimerosal
Ronald Bailey at Reason’s blog Hit & Run discusses a recent article by Stephanie Desmon in the Baltimore Sun on the topic. Ron rightly mentions the end result of all the fuss over thimerosal in vaccines: worried parents, unvaccinated kids and more expensive vaccines. As I mentioned earlier this week, a recent study in the Archives of General Psychiatry also cast doubt on the supposed link.
Cerqueira v. American Airlines
“Robert Loblaw” at the blog Decision of the Day, has this post on the case of Cerqueira v. American Airlines. In sum, after being booted off the plane for some suspicious behavior, plaintiff John Cerqueiia, thought he would sue. After winning an award $130,000 in compensatory damages and $270,000 in punitive damages the case was appealed. The First Circuit reversed:
On appeal, the First Circuit vacates the award and grants judgment for the defendants. In an opinion that is heavy on the factual details of the incident – and particularly the facts as they appeared at the time to the key decision makers – the First concludes that the jury instructions were incorrect. Among other things, the district court refused to provide instructions about the security provisions of Federal Aviation Act that governed the captain’s actions. In light of the flawed instructions, the Court concludes that the verdict cannot stand.
Moreover, the Court concludes that there is no evidence to sustain the jury’s conclusion that the plaintiff was discriminated against because he appeared to be middle eastern. In particular, neither of the two key decision makers – the captain and a manager in American’s Dallas headquarters – even saw the plaintiff until trial, and there is no other evidence to suggest that their decision was based on assumptions about the plaintiff’s race. Accordingly, the defendants are entitled to judgment notwithstanding the verdict.
Irrespective of the appellate decision, the initial jury verdict of $400,000 says a lot about how justice seems proportionality unfair and unmeasured given the facts of this case.
(Earlier at Overlawyered: Jan. 17.) Update Mar. 2: Cerqueira responds.
The Nataline Sarkisyan case: I’m just shocked, shocked, to learn Edwards has lied again
To the surprise of no one sensible, it turns out that John Edwards’s and Daily Kos’s claims about Nataline Sarkisyan, the 17-year-old California woman who recently died awaiting a liver transplant, are false:
- Independent reviewing doctors unanimously recommended against the liver transplant as too risky, which is why CIGNA refused to grant approval.
- CIGNA changed its mind in response to political pressure and publicity, but their delay in approval probably would not have affected Sarkisyan, as several reports indicate her treating medical institution, UCLA, would not have waited for insurance approval if a donor organ became available. (For example, Forbes.)
- And, of course, US patients are far more likely to get organ transplants (and survive organ transplants) than patients in single-payer health care systems—so Edwards has absolutely no solution for the problem of people getting sick and dying in a world of scarcity.
Scott Gottlieb has details in the Wall Street Journal. Attorney Mark Geragos has been retained to sue CIGNA, though CIGNA was only administering Sarkisyan’s health insurance plan, and would have suffered no financial repercussions from approving the transplant.
(Disclosure: I own between $15,000 and $50,000 in stock in CIGNA.)