August 10 roundup

Allergic to cheese, sues McDonald’s for $10 million

Jeromy Jackson says he repeatedly told the McDonald’s in Morgantown, W.V. that he needed his two Quarter Pounders without cheese, because he was allergic to cheese; “From this point forward, Mr. Jackson repeatedly asked as to the status of his food and whether it had no cheese, and took multiple preventive steps to assure his food did not contain cheese,” his suit says. On biting into the sandwich, his suit alleges, he suffered a severe allergic reaction and had to be rushed to a hospital (Cara Bailey, “Man allergic to cheese seeks $10 million from McDonald’s”, West Virginia Record, Aug. 8).

James Taranto is not what you would call sympathetic toward the action (Aug. 9): “So apparently the ‘multiple preventive steps’ he took ‘to assure his food did not contain cheese’ did not include looking at the damn sandwich before eating it”.

Does Keith Olbermann read Overlawyered?

Overlawyered, August 5:

A look at the largest donors for Obama and especially Edwards shows a disproportionate number of active members of (the trial lawyers’) lobbying group. Indeed, John Edwards’s finance chairman is Fred Baron, the former president of ATLA. If Obama and Edwards want voters to believe that Clinton is influenced by lobbyist money, what should we think about these two candidates’ debts to trial lawyers? Are we to believe that the critical difference is the lobbyist registration papers, at which point money becomes tainted and dirty?

August 7 AFL-CIO Democratic debate:

OLBERMANN: Senator Edwards, I have a question for you. You made your substantial fortune as a trial lawyer. Trial lawyers are now contributing significantly to your campaign. How is that any better than lobbyists?

Alas, Edwards dodged the question, but it has perhaps contributed to the recent NY Times press coverage.

“Airman Who Alleged Rape Faces Court-Martial”

Amber Taylor points us to this AP article:

A female airman says she faces a court-martial next month because she refused to testify against three male airmen she accused of rape.

The woman is charged with one count of committing indecent acts and one count of consuming alcohol as a minor. The defense says the charges involve the same men she accused of raping her.

The woman dropped the charges after feeling “pressured”; the men agreed to nonjudicial punishments in exchange for immunity and their testimony against the woman. If the story is true (and that’s a big if: the only substantive comment in the coverage is from the defense attorneys, as the prosecutors are forbidden from commenting in detail while the case is pending), it is certainly something shocking: you’d expect that sort of thing in remote parts of Pakistan, not in the armed forces. Of course, as the Duke Lacrosse case showed, there are many other scenarios where a woman could allege rape, back down from her allegation, and legitimately be charged with wrongdoing. Court-martial is scheduled for September 24.

Edwards – lawyer $ = Richardson or Dodd?

Yes, we’ve run several critical items on presidential fundraising lately (disclaimer), but this added bit seemed worthy of note:

…More than half of the Edwards donors who listed their occupations said they are attorneys, and they have given seven times more than any other profession, according to an Associated Press analysis of campaign finance data. …

In the first six months of the year, Edwards raised $23 million. But without the roughly $7 million collected from donors identified as attorneys, his numbers would fall closer to that of lower-tier candidates, such as New Mexico Gov. Bill Richardson and Connecticut Sen. Chris Dodd.

It should be noted that “donors identified as attorneys” is a term of art. Many donations from, e.g., lawyers’ family members or persons whose livelihood derives from litigation support services will not be so identified. Candidates Clinton and Obama have raised about one-sixth of their funds from donors identified as attorneys. (Mike Baker, “Attorneys still bankroll Edwards effort”, AP/Seattle Post-Intelligencer, Aug. 1). More on Edwards’ fund-raising here, here, here, here, here, etc.

P.S. I see the Times is also tackling the subject today: Leslie Wayne, “Lawyers’ Dollars? Not Just to Edwards”, New York Times, Aug. 9. (& welcome readers of Prof. Bainbridge, guestblogging at Andrew Sullivan’s).

Big Dig tunnel collapse

No doubt: someone was negligent in the collapse of the Big Dig tunnel in Boston that killed one. The Latin phrase res ipsa loquitur comes to mind.

But it’s hard to understand why Massachusetts officials are going after Powers Fasteners, Inc.

Powers received an order for standard-set epoxy to be used in the tunnel ceiling, and sold $1287 worth. The construction company then used a different, fast-set, epoxy that was not designed for such long-term use. As a result, ceiling panels fell, crushing a car and killing one person. But Massachusetts is indicting Powers. Given that the penalty is a $1000 fine, the only purpose of this use of taxpayer dollars is to carry water for trial lawyers—or, perhaps, to help spread blame in the eventual suit against the Massachusetts Turnpike Authority by having a criminal conviction in hand. (Pam Belluck, “Glue Maker for Big Dig Is Charged in ’06 Death”, New York Times, Aug. 9).

As Bill Childs notes, attorneys predict a “big” settlement. Press coverage already indicates typical attorney 20/20 hindsight:

For instance, documents show that Big Dig managers at Bechtel/ Parsons Brinckerhoff and designers from Gannett Fleming cut by half the number of bolts they originally planned to use to hold up the ceiling, while significantly increasing the ceiling’s weight by making it out of concrete. These moves made the ceiling cheaper, the lawyers said, but less safe.

This, of course, is the wrong question. It sounds suspiciously like the use of a single document taken out of context of a normal design-planning process. (Is strict liability plus punitive damages to be imposed every time a design firm doesn’t adopt the most stringent and expensive design it considers?) The correct question is whether the actual design, implemented correctly, would have safely stayed up. If so, the design team didn’t act negligently if the failure was because of faulty installation; it is a question of mathematics that should be resolved in one direction or the other on summary judgment, as there should be no duty to design a large margin of error against a construction crew using the wrong epoxy.

Chasing I-35W bridge clients

While “the divers are still in the river looking”:

Omar Jamal of the Somali Justice Advocacy Center in Minneapolis said he has received at least a dozen telephone calls from law firms, most of them local, since it became public knowledge that a pregnant Somali woman, Sadiya Sahal, and her 2-year-old daughter, Hanah Mohamed, were among those missing after the collapse.

The calls started coming about 4 p.m. Thursday, less than 24 hours after the collapse, and haven’t stopped, Jamal said. Some of the attorneys have asked for telephone numbers and other personal information about Sahal’s family, Jamal said.

“This is the worst form of ambulance-chasing,” Jamal said. “The divers are still in the river looking, and the attorneys keep calling us.”

(Chris Serres and Matt McKinney, “Question of liability rises”, Minneapolis Star-Tribune, Aug. 8)(via Ambrogi who got it from Minnesota Lawyer Blog).