600,000 Barbie-doll accessories are being recalled in the latest China lead-toy scare; last month veteran product liability authority/defense lawyer Victor Schwartz offered some advice for the beleaguered toymaker (WSJ Law Blog, Aug. 14; “Mattel Announces New Toy Recall”, WTOC-TV, Sept. 5).
Ninth Circuit: Molski “Plainly lied”
We’ve been covering the exploits of professional ADA plaintiff Jarek Molski and his lawyer Thomas Frankovich for a long time now (See Aug. 3, Mar. 23, many others). When last we checked, Molski/Frankovich were appealing a federal judge’s finding in Molski v. Evergreen Dynasty Corp. that they were vexatious litigants; the designation meant that they couldn’t file any more ADA lawsuits in the Central District of California without first getting permission from the court.
Last week, the Ninth Circuit issued an opinion (PDF) which upheld the finding in its entirety. The only quirky part of the case was that it was likely that many of the establishments sued by Molski/Frankovich at least technically probably had violated the ADA by not complying with its vague, onerous requirements. But the Ninth Circuit had no problem getting beyond that:
Frivolous litigation is not limited to cases in which a legal claim is entirely without merit. It is also frivolous for a claimant who has some measure of a legitimate claim to make false factual assertions. Just as bringing a completely baseless claim is frivolous, so too a person with a measured legitimate claim may cross the line into frivolous litigation by asserting facts that are grossly exaggerated or totally false.
And for some reason, neither the District Court nor the Ninth Circuit were impressed with Molski’s factual assertions:
However, it is very unlikely that Molski suffered the same injuries, often multiple times in one day, performing the same activities—transferring himself from his wheelchair to the toilet or negotiating accessibility obstacles. Common sense dictates that Molski would have figured out some way to avoid repetitive injury-causing activity; even a young child who touches a hot stove quickly learns to avoid pain by not repeating the conduct.
The Ninth Circuit was not any more complimentary towards Frankovich:
When a client stumbles so far off the trail, we naturally should wonder whether the attorney for the client gave inadequate or improper advice.
The court also found significant that Frankovich may well have broken legal ethics rules by trying to intimidate defendants into settling without hiring lawyers and giving them (bad) legal advice.
This isn’t necessarily the end for Molski/Frankovich. The vexatious litigant order applies only to the federal courts — in fact, only the federal courts in the Central District of California — and does not prevent them from filing suit; it only requires them to seek permission of the court first.
“Until Proven Innocent”
The much awaited new book on the Duke lacrosse rape case is now out; authors Stuart Taylor, Jr. and K.C. Johnson need no introduction to readers of this site. More: Instapundit, Jeralyn Merritt, Abigail Thernstrom in WSJ.
Search engine index II
Seventeen months ago, I noted that the most expensive Google AdSearch term was “mesothelioma lawyers” topping the charts at C$54.33. I further noted that such rich referral costs suggested that lawyers were rent-seeking and unethically obtaining surplus from clients, and bidding it away to search for new clients instead of lowering their rates.
How have things changed since? Well, lawyers have gotten slightly more sophisticated: the most expensive Google AdSearch term as of July 9, 2007, is “mesothelioma treatment options“, and, aside from a couple of medical facilities, the vast majority of advertisers are for law firms or fronts for law firms. And the price for that search term is C$69.10, up about 27% in just over a year, demonstrating the rent-seeking involved. David Giacalone comments on the related issue of fixed contingency fees that take advantage of litigants.
Tipsy totter ended wrestling, began political career
No longer able to practice his art as one of the “Killer Bees” tag team duo in bee-striped trunks, and reduced instead to serving as an elected public official in Florida:
Six years after a restaurant accident that he blamed for ending his professional wrestling career, Brian Blair has settled his negligence lawsuit against Carrabba’s Italian Grill. …
Carrabba’s attorney, Donald G. Greiwe, had filed papers indicating Blair was impaired at the time he tripped over a tray of bussed dishes at the restaurant. And Greiwe’s exhibit list included a videotape of a tag-team wrestling match in Nagano, Japan, in October 2001 — more than four months after Blair’s accident in the Carrabba’s on North Dale Mabry Highway. …
Blair claimed his ring career came to an end on the evening of June 2, 2001, when he visited Carrabba’s with his wife and two sons…. Blair, 50, filed the lawsuit on Nov. 5, 2002, three days after losing his first run for public office in a race for a Hillsborough County Commission seat won by Pat Frank. In 2004, Blair, a Republican, tried again and won a commission seat in a close contest against Bob Buckhorn.
He continued to press his case against Carrabba’s even after his original lawyers quit. Attorneys Nadine S. Diaz and Ron Darrigo, who had taken Blair’s case on a contingency basis, withdrew in January 2006, citing “irreconcilable differences” with Blair. …
A record filed by Greiwe of an examination of Blair at St. Joseph’s Hospital about an hour after the accident showed a blood alcohol of 0.089 percent, above the 0.08 level at which state law presumes an individual to be impaired. Greiwe said in court papers that Blair’s fall was the “result of his own negligence.”
Asked in a sworn deposition about his condition, Blair denied drinking before coming to the restaurant, suggesting he might have taken “one sip” of Carrabba’s house wine before the fall.
(Jeff Testerman, “Blair, cafe settle lawsuit”, St. Petersburg Times, Aug. 28).
Don’t like your pay? There’s the door
You have to wonder what the legal ramifications would be if Wal-Mart itself decided to set its employees’ pay (even its high executives’) the way its courtroom nemesis is used to doing:
The $172 million Wal-Mart meal-break verdict won by The Furth Firm in 2005 ranks among the top 10 verdicts nationally, but few of the lawyers will be around to celebrate if and when the money arrives. A number of them have left the San Francisco-based firm, and none appear to have any guarantee of sharing in the eventual proceeds. Founder Frederick Furth, the sole owner of the firm, says salaries and bonuses are paid at his discretion, and no written compensation agreements exist for any cases.
(Petra Pasternak, “Small Firm’s Lawyers Not Waiting for Wal-Mart Fees”, The Recorder, Aug. 27; quoted text is Law.com summary).
Louisiana fuel-gauge fee carve-up, cont’d
Assisted by Loyola lawprof Dane Ciolino, critics are now before a Fifth Circuit panel trying to uncover the supporting documents that back up the division of fees among lawyers following a fuel-gauge-damage settlement against Shell; the case drew national attention after the lawyers in charge prevailed on a federal judge to conceal the allocation of fees from public scrutiny, including scrutiny by members of the client class as well as dissident lawyers (Apr. 9, Jun. 7).
When Little [fee committee attorney F.A. Little] contended that naming someone other than the committee to evaluate four years of work by lawyers in the case wouldn’t yield the best result, Judge Edith Jones shot back, “Well, at least you get disinterestedness.”
That quality, Jones said she learned from her days as a bankruptcy attorney, is essential to “anyone who is dividing up the debtor’s money.”
In an interview after the hearing, Ciolino said the public needs to know everything that went into deciding attorney fees in the Shell class action. “The public distrusts lawyers, especially in class-action cases, because it looks like it’s all about fees,” he said.
(Susan Finch, “Data used to split fees sought”, New Orleans Times-Picayune, Aug. 10).
Pa. judge indicted for insurance fraud won’t run again
According to an indictment handed down by a federal grand jury, Erie, Pa.-based state appellate judge Michael T. Joyce, a ten-year Republican veteran of the bench,
received $440,000 in settlements for injuries he claimed “affected his professional and personal life in a very significant way” after an SUV rear-ended his state-leased Mercedes Benz at a traffic light in Erie.
Joyce claimed the accident made him unable to play golf, scuba dive or exercise. He also claimed the injuries prevented him from pursuing higher judicial office, according to the indictment.
The judge complained of constant neck and back pain, headaches, difficulty sleeping, anxiety and short-term memory loss, according to the indictment. He claimed he was in such pain from May to July 2002 that he could not play a round of golf or hold a cup of coffee in his right hand, the indictment said.
During the same period Joyce made these claims, he played several rounds of golf in Jamaica, Florida, New York and Pennsylvania, went scuba diving in Jamaica and renewed his diving instructor’s certificate, prosecutors said.
The indictment also alleges Joyce used some of the settlement money to buy a Harley-Davidson motorcycle, a share in a single-engine Cessna airplane, property in Millcreek Township, Pa., and to pay down a personal line of credit.
(Peter Hall and Asher Hawkins, “Federal Indictment Looms Over Pa. Superior Court Judge’s Retention Race”, Legal Intelligencer, Aug. 17).
At first Joyce vowed to hold onto his seat, but after a public outcry, and a quick move by the state supreme court to suspend him from his duties pending resolution of the charges, he agreed not to stand for re-election in November. (“Indicted Superior Court Judge” (editorial), Philadelphia Inquirer, Aug. 22; Paula Reed Ward, “Indicted judge won’t seek retention”, Pittsburgh Post-Gazette, Aug. 21; “The Joyce indictment: A matter of integrity”, Pittsburgh Tribune-Review, Aug. 21).
September 4 roundup
- Hush up with those jokes, now: Lerach Coughlin lawyer hailed as hero after jumping from his BMW to save pregnant woman attacked by pit bulls [ABA Journal]
- The “murky area between zealous advocacy and improper conduct”: Judge Preska sanctions Cleary Gottlieb for litigation abuse [WSJ Law Blog, Lat]
- Out-nannying them all? Edwards says his health plan will legally oblige everyone to go in for checkups with the doc [AP; MagicStats, Howard, Althouse]
- Apparently we missed out on the Aug. 31 celebration of Love Lawyers Day [Giacalone]
- To settle lawsuit by psychiatrist’s family, Augusten Burroughs agrees to call “Running with Scissors” a “book” rather than “memoir” [Althouse]
- Will contest over Maryland judge’s estate has dragged on for fourteen years [Washington Post]
- Recap of Flea fiasco (doc liveblogging his own trial); we get randomly mentioned [American Medical News; earlier]
- “Viacom charges man with violating his own copyright, after he YouTubed their program that used his video.” [Reynolds](but see: Evan Brown via Coleman]
- Is your lawyer a “chicken catcher” or a “chicken plucker”? [KevinMD]
- When if ever should “best interest” custody standard override parent’s right to free exercise of opinion, religion, cultural affiliation, etc.? [series of Eugene Volokh posts]
- Don’t forget to join our new Facebook group with distinctive content [if you’re a member]
- New at Point of Law: Texas judge’s son withdraws from odometer class action; what do environmentalist litigators have against whales?; N.Y. Times’s born-yesterday Vioxx coverage (and this from Ted, which is pretty devastating); Dickie Scruggs takes down an insurance commissioner; sexual assault foreseeable when fraternity left in possession of unsupervised motel room? Marshall, Texas dignitaries rally to save their special court; and much more.
“Record beer consumption” at Hagens Berman cycling event
There’s nothing intrinsically droll about this report of increased jollity, mirth and conviviality at the 2006 Clif Bar/Hagens Berman Starcrossed Cyclocross race, co-sponsored by the prominent Seattle class-action firm: “The men’s main event was fast, painful, and exciting and it certainly did not disappoint the rowdy pumped up crowds who had been feasting on Pabst Blue Ribbon in the beer garden all day long.” (Cycling News, October). The only potentially humorous note is to those of us who remember Hagens Berman as having thrust itself forward a mere three years ago in the national media as the national scourge of alcohol marketing — beer marketing in particular (Mar. 29, 2004). The Milwaukee Journal-Sentinel article we cited at the time, with chapter and verse on the firm’s grandstanding against the sudsy brew, is still online.