A New York man has sued Novartis, maker of the health drink Boost Plus, saying he woke up the morning after drinking the concoction with a case of priapism — involuntary male sexual arousal — that landed him in the hospital. “The company would not comment, but its website “describes the drink as ‘a great tasting, high calorie, nutritionally complete oral supplement for people who require extra energy and protein in a limited volume,’ in vanilla, chocolate and strawberry.” Reader Michael McK. suggests that word of the lawsuit may serve to increase the drink’s sales. (“Man Sues Over Long-Lasting Erection”, AP/Breitbart, Jun. 5).
The rule of law: Why is predictability important?
As if to demonstrate that their website is simply reflexively anti-reform rather than anything to do with the justice they supposedly aspire to, one of their trolling bloggers attacks the American Justice Partnership for seeking predictability in the law (and does so by quoting a positively deranged anonymous blogger). Of course, predictability—that like cases are treated alike—is a fundamental component of the definition of justice. The social benefits of the rule of law are so obvious that it should hardly be necessary to list them, but, aside from issues of fundamental fairness enshrined in our Constitution in the ex post facto clause among other places, predictability has other advantages. If a result is predictable, settlement is easier: there’s little point in continuing to litigate on either side, because additional money spent on lawyers cannot change the result. If a result is predictable, one can more easily conform conduct to be law-abiding. Corporations aren’t incentivized to break contracts with one another to see whether they can get a better deal in the courts; individuals and corporations know where the line is in dealing with the public and won’t step over it. And as I noted last year,
In banana republics across the globe, economies come to a standstill because the risk of confiscation or corruption keeps many investments from ever happening. The same danger occurs when the expropriation is conducted by lawyers in the name of “justice.” If businessmen and entrepreneurs—be they insurers, manufacturers of lifesaving pharmaceuticals, or the small businesses that deliver your packages—have to account for the risk that their contractual arrangements will be disregarded by courts, they have to raise prices to account for that risk. Such increased prices mean fewer contracts are signed and fewer businesses are started. Consumers are worse off, not just because they now have fewer options, but because the economy is smaller as jobs and opportunities are lost. The only beneficiaries are the lawyers.
The poster knows darn well that the idea of predictability in justice hardly originates with Dan Pero and reformers. As I once noted to the same poster in a comment thread:
Since when is predictability a component of justice?
Since at least Aristotle, and arguably even further back to Mosaic law and the Code of Hammurabi.
If a desire for predictability in law makes one a reformer, then one can certainly add Plato, Thomas Aquinas, Montesquieu, Justice Holmes, and Lord Chief Justice Bingham of Cornhill to the list of reformers. More recently, one can read Richard Epstein on the subject. Justinian Lane would serve himself better by reading more books and fewer anonymous blogs before he asks such silly questions.
Use our product or we’ll sue
Two manufacturers of digital rights management (DRM) systems, Media Rights Technologies (MRT) and BlueBeat.com, “have issued cease and desist letters against Apple, Microsoft Real and Adobe for not including their technological protection measures in products like Windows, iPod and Flash Player.” (TechnoLlama, May 12; Louisville Music News, May 16, whose headline we have borrowed). Explains Podcasting News (May 12):
The companies are using an unusual interpretation of the Digital Millenium Copyright Act (DMCA) to make their case. The DMCA, signed into law by President Clinton in 1998, makes prohibits the manufacture of any product or technology that is designed for the purpose of circumventing a technological measure which effectively controls access to a copyrighted work or which protects the rights of copyright owners. According to the firms, mere avoidance of an effective copyright protection solution is a violation of the DMCA.
Freedom to Tinker (May 15) says that if you believe the companies’ legal claim is sound, “I have a bridge to sell you — and let me assure you that you’re legally compelled to buy it.”
Update: Australian’s failed suicide try
A 19-year-old Australian who fell from a tree and was left quadriplegic after a failed suicide attempt has failed in his effort to lay legal blame on a mental hospital that had discharged him eleven days earlier. Timothy Walker “sued the Sydney West Health Service for negligence, claiming not enough was done to care for him prior to the accident. He claimed the hospital should have prescribed him anti-depressant or anti-psychotic medication, counselled him and detained him as an involuntary patient for at least two weeks for assessment.” However, a judge found that the health service had not rendered substandard care, that it properly declined to prescribe antidepressants because Walker would not promise to stay off liquor, and that it had followed up with home visits after Walker’s discharge, during which he reported feeling better. Walker will, at least notionally, be liable for the hospital’s legal expenses under the rule that costs follow the event (sometimes known as the “everywhere-but-America rule”). (Alyssa Braithwaite, “Would-be suicider fails in hospital sue bid”, AAP/Daily Telegraph, May 25). Earlier: May 9.
Pearson update: Bogus pants lawsuit no longer about pants
Roy Pearson, the DC administrative law judge who made abusive litigation famous by suing his dry cleaner for $67 million over a pair of pants, has apparently heard all the public criticism he has received and taken it to heart. No longer is he asking for that kind of money over an article of clothing, according to the Examiner:
A customer who believes he was mistreated by a dry cleaner has dropped the pants from his suit.
Roy L. Pearson, who filed a $67 million lawsuit against the dry cleaning business that lost his pants, has lowered his demand. Now, he’s only asking for $54 million.
[…]
He is now focusing his claims on signs in the shop that have since been removed. The suit alleges that the three defendants, Jin Nam Chung, Soo Chung and their son, Ki Chung, committed fraud and misled consumers with signs that claimed “Satisfaction Guaranteed” and “Same Day Service.”
Oh, good. Now the lawsuit is only $54 million worth of frivolous instead of $67 million.
For all of you eagerly awaiting the outcome of this case, it is scheduled for trial on June 11.
June 5 roundup
- Everyone’s got an opinion on Dr. Flea’s trial-blogging fiasco [Beldar, Childs, Adler @ Volokh (lively comments including Ted), Turkewitz (who also provides huge link roundups here and here), KevinMD]
- Sidebar: some other doctor-bloggers have shut down or curtailed posting lately amid pressures from disapproving employers and patient-privacy legal worries [KevinMD first, second posts; Distractible Mind, Blogaholic]
- Amusement park unwisely allows “extremely large” woman to occupy two seats on the roller coaster, and everyone lands with a thump in court [Morris County, N.J. Daily Record via Childs]
- Prosecutors all over are trying to live down the “Duke effect” [NLJ]; how to prevent the next such debacle [Cernovich]
- Bad for their image: trial lawyers’ AAJ (formerly ATLA) files ethics complaint against Judge Roy Pearson Jr., of $65 million lost-pants-suit infamy [Legal Times]
- More suits assert rights to “virtual property” in Second Life, World of Warcraft online simulations [Parloff]
- Plea deals and immunity in the Conrad Black affair [Steyn, OC Register]
- Another round in case of local blog sent nastygram for allegedly defaming the city of Pomona, Calif. [Foothill Cities; earlier]
- “There once was a guy named Lerach…” — Milberg prosecution has reached the limerick stage [WSJ Law Blog comments]
- Government of India plans to fight Americans’ claims of intellectual property over yoga postures [Times Online; earlier here and here]
- After car-deer collision, lawyer goes after local residents who allegedly made accident more likely by feeding the creatures [seven years ago on Overlawyered]
Roundup – June 4
Is it, or isn’t it?
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It is: “Hopefully this means a better life,” says the energy company employee who won a $40 million judgment (almost half of it punitives) against Qwest Communications after the telephone pole he was working on collapsed and injured him. He was lucky; had he worked for the phone company, he likely would have been barred from suing by worker’s comp laws.
“I could hear my heart pounding, pulsing faster and faster, and I tried keeping calm, but when they started reading the verdict I was in a state of shock,” he said. “It’s justice.”
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It isn’t: “The lawsuit wasn’t about money, he said.” That’s New Hampshire resident Joseph Hewett, the rejected applicant for The Apprentice who settled his age discrimination lawsuit against Donald Trump and the producers of the show.
“This was never about a disgruntled applicant trying to get back at (Trump’s) organization, it just gave me an opportunity to advocate on behalf of a protected class,” he said. “This was about the fact that I believe an entire class was aggrieved.”
His evidence that age was what kept him off the show was a slam dunk; after all, he “claimed he was qualified for the show because he graduated magna cum laude from college and because of his ‘many years of experience maintaining large commercial properties.'”
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Well, maybe it is: Human rights advocacy groups have been (mis)using the Alien Tort Claims Act for years to litigate foreign events in American courts, but those advocacy groups were motivated primarily by ideology. Now class action law firms, sensing an opportunity, are getting in on the action. Overlawyered repeat offender Motley Rice (many links) is suing officials of the United Arab Emirates on behalf of boys from South Asia and Africa who claim to have been kidnapped and enslaved as camel jockeys in the UAE; the case has no connection whatsoever to the U.S.
The human rights movement isn’t thrilled because they figure that these lawyers are really in it for the money and not the cause; conservative tort reformers aren’t thrilled because they see it as just another example of entrepreneurial lawyering by trial lawyers.
John M. Eubanks, a lawyer with Motley Rice who represents the former jockeys, disputed both points.
“We’re trying to right wrongs that have been committed,” Mr. Eubanks said. “It’s not about money. It’s about exacting some form of justice.”
Uh, yeah:
Pressed, Mr. Eubanks conceded that the case was at least partly about money. “There is a contingency fee,” he said. “These cases do cost a lot of money. We don’t get paid unless we collect.”
Offer refunds, get sued anyway: XM Radio
If you see Birmingham, Alabama lawyer Darrell L. Cartwright walking down the street, you might want to see if you can find some spare change in your pockets to give to him. He obviously must be hard up for money, because how else to explain the lawsuit he filed a couple of weeks ago?
On Monday, May 21, 2007, XM Satellite Radio suffered a satellite problem that caused partial or total service outages for parts of two days, lasting about 24 hours total. By late Tuesday, the problem was resolved, and XM announced that it would offer a two-day credit, worth about 87¢ — yes, 87¢ — to any customer who requested it. Problem solved. Everything right with the world, no?
No. You’ve forgotten about poor Mr. Cartwright. On Wednesday, May 23 — the day after XM promised a refund to all its customers — Mr. Cartwright found two neighbors of his who had subscribed to XM radio, slapped their names on a lawsuit, called it a class action suit, and demanded damages sustained by all its customers, in an unspecified amount of at least $5 million. (Via the Consumerist, which helpfully posted a copy of the complaint, which from the looks of things, took about 7 1/2 minutes of time to draft, typos and all: PDF.)
Now, you may wonder what benefit consumers get from this litigation, but to be fair, the lawsuit also demanded that the court issue an injunction to prohibit XM from suffering from technical problems in the future.
Sadly, it apparently isn’t sanctionable conduct, as the James Frey case we’ve discussed (Jun. 2, May 21, and earlier links therein) illustrates, for trial lawyers to file lawsuits demanding refunds that companies have already offered to their customers.
Thank the lawyers: Tonya Bell at Unifest
We didn’t note it at the time, but in December, Valentina Chambers won $945 thousand in her suit against DC police from a Washington DC jury. You see, a scofflaw was leading police on a car chase, and hit Chambers’ car, injuring her, and, like trial lawyers want, the deep pocket was liable for not simply letting the criminal get away—though at least not liable for the $100 million Chambers sought. (Henri Cauvin, “D.C. Ordered to Pay in Police Chase”, Washington Post, Dec. 14). Such liability concerns cause DC to have the strictest police chase policy in the country, something we’ve noted has expensive consequences for the non-criminal element of the city.
Tonya Bell, who some say is a temporary worker for Marion Barry, was driving in Southeast D.C. Saturday night, apparently after a full day of smoking crack. She rear-ended a police car at 7:15 pm, and drove away instead of stopping: sure enough, DC police followed the trial-lawyer-driven policy and broke off the chase. Bell rewarded the officers’ diligence by laughingly driving her Volvo through a crowd of people at a street-fair a half hour later, injuring at least forty, before police threw a couple of motorbikes under her vehicle to stop it. Thank the lawyers for yet another wonderful contribution to public safety, though we won’t see any class actions against the trial bar for this one. (Robert E. Pierre, Sue Anne Pressley Montes and Yolanda Woodlee, “Driver Used Crack Before Festival Crash, D.C. Police Say”, Washington Post, Jun. 4).
Don’t
More things that it’s really inadvisable to do if you’re a lawyer:
- Tell a judge to her face in open court that you consider her “a few French fries short of a Happy Meal” (William Smith of McDermott Will & Emery LLP, facing possible exclusion from the right to practice in the bankruptcy court in question; Crain’s Chicago Business);
- Show up in a hospital room to recruit as client a heavily medicated crash victim, then discourage him from going after the other driver’s personal assets in the case, without mentioning that the other driver is your own wife’s grandfather (Jeffrey Hark of Cherry Hill, N.J., referred for a state-bar ethical investigation although a legal-malpractice claim against him failed for lack of a showing of damages; NJLJ);
- As part of a $59 million settlement of Benlate fungicide-damage cases, accept a secret $6 million side payment from defendant duPont in exchange for (among other services) agreeing to file no more cases (Roland R. St. Louis Jr. and Francisco R. Rodriguez of Miami, disbarred and given a two-year suspension respectively; NLJ, Elefant).