Another Jim Shapiro classic (Mar. 7, Feb. 6, etc.). Are his lip movements really not lining up with the sound track, or is this some artifact of internet video?
Sticks and stones may break my bones, but names can make me rich
In August 2002, the Greens, a black couple, were shopping in a local department store in Kansas City. They allege that a sales clerk named Linda McCrary refused to help them purchase several items, forcing them to wait for another clerk (who did assist them in completing the $500 purchase). They then allege that, while waiting for that helpful clerk to sell them a watch, they heard McCrary curse at them, using a racial slur, and then stalk off. The helpful clerk immediately apologized, as did a sales manager. But nonetheless, this incident was so traumatic for the couple — including the husband, who was a police officer — that they not only felt too distressed to finish buying the watch, but they felt the need to return the items they had already purchased. A day or two later, the store manager called the Greens, apologized again, told them that McCrary had been fired, and offered them a 20% discount off their purchase. After they rejected his offer, he sent them a letter of apology and again offered a discount.
Now, assuming the Greens are telling the truth — there seems to be substantial evidence supporting their version of events — McCrary deserves to be condemned wholeheartedly, and the Greens were entitled to an apology (which they got). But that, of course, wouldn’t allow them to cash in on this incident. So, instead the couple waited two years, and then filed a lawsuit demanding $5.5 million, claiming that the store had illegally violated their rights to make contracts because they were black.
The lower court granted summary judgment to the store, noting that other clerks were willing to help the Greens and they could have completed their purchase. But last week, an appeals court reversed that ruling, holding that a jury could find that the Greens were prevented from completing their purchase, and the store was negligent in hiring/not firing McCrary sooner. Perhaps the most damaging part of the court’s opinion was when it noted that the store, as employer, could be liable for failure to investigate McCrary before hiring her for a routine retail sales job:
Dillard’s also apparently did not inquire into unexplained anomalies in McCrary’s employment history when she applied for a job at its store. After being purportedly “downsized,” McCrary moved from a relatively high paying job at AT&T to an unskilled position at Kmart. Kmart employed her for only two months and laid her off in the month of December when the holiday shopping season would presumably increase Kmart’s demand for labor.
When stores can be sued for millions of dollars for not “inquiring” about trivial resume issues involving low level employees, that will do wonders for employment rates.
Amusing side note: the Greens originally filed their complaint on August 9, 2004; a week later they filed an amended complaint. Aside from correcting a few typographical errors, the only change they made from the original to the amended complaint was to correct their demand for punitive damages from “$500,000” to “$5,000,000.” I guess that was about the money.
Judge: Clients have no right to learn how much their lawyer got
It might only upset them, or perhaps upset other lawyers:
The judge in a 2004 federal class action lawsuit over fuel gauge damage caused by tainted gasoline made at Shell-Motiva refinery in Norco has sealed records on how he divided $6.8 million in legal fees among 79 lawyers in the case.
U.S. District Judge Ivan Lemelle has ordered each lawyer, on pain of being sanctioned, not to reveal how much they were paid.
Lemelle’s late January decision to keep the information under wraps has drawn criticism from some of the lawyers and has attracted the attention of Loyola Law School ethics professor Dane Ciolino.
Ciolino says the situation violates the right of the lawyers and the public to have access to court records. Additionally, he said, it flies in the face of a Louisiana attorney ethics rule that says a client is entitled to know how his lawyer shares fees with other lawyers.
(Susan Finch, “Judge seals records on legal fees in suit”, New Orleans Times-Picayune, Apr. 6)(& welcome Robert Ambrogi readers).
Update: And now it’s reported that the judge has turned down a motion to unseal the fee records (Susan Finch, “Judge won’t unseal fee records”, New Orleans Times-Picayune, Apr. 10). Further updates: May 22 (WSJ editorial covers); Jun. 7 (judge unseals records).
April 8 roundup
- Coca-Cola’s sense of humor doesn’t extend to other artists’ parodies; shuts down movie release over single dream sequence showing Jesus drinking Coke. [Variety via BLT]
- Kevin MD on defensive medicine.
- Slip & fall case: “it would be unreasonable to expect the defendants to constantly clean the floors of their buses” during a snowstorm [McKenzie v. County of Westchester; Turkewitz]
- TV news and dumb lawsuit ideas series (earlier: Sep. 18), American Idol edition: Fox v. Vote for the Worst? [Above the Law]
- Shades of Myspace litigation (Feb. 15 and links therein): phone-chat dating service sued over rape of teenager [On Point]
- Updating Nov. 3 entry: Ninth Circuit vacates and will en banc review ludicrous Reinhardt decision in Smith v. Baldwin [Legal Pad]
KCET on Prop 65 abuse
At the “Life and Times” department of the Southern California public broadcasting station, reporter Val Zavala examines a problem often discussed in this space (May 26,, Apr. 5, Apr. 29, and Dec. 26, 2006, among many others):
This story is about a long-standing soda-pop store in Highland Park, Calif., that was hit with a legal notice telling them that they are selling hazardous products. The owner says that they don’t make the product, but that they have informed the public according to the Proposition 65 law. But the law allows them to be sued anyway. Their only choice? Settle or go to court. As Val Zavala reports, some attorneys are making millions abusing Proposition 65.
The ten-minute video has expired, but the station’s blog entry about the show has links and discussion (Feb. 28).
Walks like a contingency, quacks like a contingency
An article in the West Virginia Record discusses a survey of physicians complaining about questionable expert witnesses in medical malpractice cases. For some reason, physicians seem to think that experts will say whatever they’re paid to say. But the president of the West Virginia Trial Lawyers Association denounces the survey, including the doctors’ complaints about experts being paid on contingency:
“And you can’t have contingency experts. I abhor that, anyway. There are State Bar rules are [sic] against that.”
In fact, pretty much everyone agrees that it’s unethical to pay expert witnesses on a contingency fee basis. Most states seem to have explicit ethical rules against it; New Jersey certainly does.
But how effective do you think those rules are? They didn’t stop Nagel Rice and Mazie, a New Jersey plaintiff’s law firm, from trying to weasel out of paying its expert witness recently for his work on a med-mal case, leading the expert to sue the firm for his fees. Why did Nagel try to get out of paying? Because, as Nagel admitted in his testimony in that case, they had lost the med-mal lawsuit:
And I said, “And in addition to that, we lost the case. It’s cost my firm over $100,000 in out-of-pockets.” I said, “So, I want you to consider two things: one, it was your first time on the stand; two, I think your 17 hours is really heavy-handed; and, number three, we took a blood bath in this case. And what I do with experts over the course — I’ve been doing this almost 30 years is that where you take a huge loss, experts will virtually always work with you.”
In case that wasn’t clear, he clarified, according to the New Jersey Law Journal (subscription required):
Nagel says his firm does not seek discounts from experts on losing verdicts. Rather, expert witnesses who have an ongoing relationship with his firm tend, of their own volition, to increase their bills in the event of a victory and to cut them after a defeat.
Yup. Spontaneously. “Of their own volition.” If there’s a difference between charging more if you win/less if you lose, and a forbidden contingency, let me know.
Incidentally, perhaps Nagel ought not to have invested $100,000 in the med-mal case in the first place, without doing a little due diligence. One reason that they might have lost was because the plaintiff’s claim that she suffered severe back pain and was permanently disabled by her doctor was successfully undermined by the defendants. As explained by the Appellate Division (PDF):
Video surveillance tapes showed Meegan walking, driving, bending over to talk to children, and lifting her daughter’s bicycle into the back of a car, all without any difficulty whatsoever.
Oops. Pesky facts.
More on infant mortality stats
Linda Gorman of the Independence Institute writes in an email:
I was finally catching up on my reading on Overlawyered.com and came across your Feb. 4 post on the possibility that Amber Taylor had a point when she noted that the IRS might give U.S. parents an incentive to count have a dead baby classified as a live birth.
This assumes that parents can affect the classification on the death certificate. U.S. parents do not typically fill out death certificates. She needs to provide evidence that parents affect classifications in meaningful numbers in the United States before anyone should take this speculation seriously.
The evidence that birthweight registration varies from country to country rests on statistical comparisons of the number of very low birthweight infants recorded. An early paper, which is very short, is here (PDF). These studies have been followed by a number of papers on birth registration in various European countries. At this point, the evidence suggests that what are counted as live births in the U.S. are often considered fetal deaths in other countries. They are thus not included in infant mortality statistics, and OECD has (finally) included a note to this effect in its international comparisons of infant mortality. It wouldn’t be a public policy issue if those who wanted to reduce the amount of privately provided medical care in the United States hadn’t used it as an indicator of the poor performance of the U.S. health care system. If you’d like more references, I’d be happy to provide them.
Supreme Court to review disabled-ed case
As we’ve been noting for a long time (Mar. 24, 2006, etc.), it’s increasingly common for parents of kids with disability diagnoses, after deciding that the public schools are not doing a good job of educating their kids, to enroll the kids in private school programs and stick public school taxpayers with the resulting high bill, citing federal disabled-ed law. (Parents of non-disabled offspring, needless to say, do not enjoy legal options of this sort if they believe the public schools are failing their kids.) Now the Supreme Court has accepted for review a case in which, according to the New York Times’s account, a former chief executive of Viacom did not even give a public school program a try before enrolling his son in a private school and demanding that New York City pick up much of the resulting bill. The New York Times’s account is distinctly unsympathetic toward the parent, and quotes Julie Wright Halbert, legislative counsel for the Council of the Great City Schools, as saying: “Many wealthy, well-educated people are gaming the system in New York City and around the country.” (Joseph Berger, “Fighting Over When Public Should Pay Private Tuition for Disabled”, Mar. 21; Amity Shlaes, “After Viacom, Freston Makes Case for Special Ed”, Bloomberg, Mar. 16; Mary Ellen Egan, “A Costly Education”, Forbes, Apr. 9 (sub)).
“Dad sues over car damaged in chase”
Because if your insurer wasn’t willing to pay for damages to your car incurred after your family member led police on a high-speed chase, why was it willing to collect the premiums in the first place? (Beth Warren, Atlanta Journal-Constitution, Apr. 6).
Ontario lottery scandal
A major scandal has erupted in Ontario in recent weeks following reports that some lottery retailers have for years been cheating their customers out of winning tickets, instead cashing in the tickets themselves. Now the law firm of McPhadden, Samac, Merner & Barry has filed a would-be class action lawsuit on behalf of all persons who bought lottery tickets since 1975, charging that the lottery failed to exercise its responsibility to prevent cheating, and demanding C$1.1 billion including C$100 million in punitive damages.
Perhaps the most interesting question raised by the legal action is: assuming a remedy cannot be had against the rogue retailers, what is a suitable remedy against the allegedly negligent lottery authorities? According to CTV, the law firm has proposed to hold a “free lottery”, or, perhaps more precisely, a lottery that would compensate for past unfairness by enabling Ontarians to buy a ticket which would be eligible for a payoff above the usual. (Those who could prove they had played the lottery in the past would be entitled to one free ticket.) (“Class-action suit launched against lotto agency”, Mar. 28).
Details of the proposed “remedial” lottery are hazy in the CTV account, but a couple of practical difficulties immediately come to mind. Start with the assumption that a “remedial” pot would be fixed at a certain lump sum intended to punish the province for its past negligence — let’s say C$100 million — and that such a sum greatly exceeds a typical lottery pot. Since there is no upper limit to the number of tickets that purchasers could buy in pursuit of the extra-large pot, the province might in fact wind up making money on its penitential lottery, even taking into account the obligation to dispense a certain number of free single tickets to persons who could bring in the paperwork to show they were past lottery players. Alternatively, assume that the province undertakes to run a one-time penitential lottery with a higher payout than usual — say, 95 percent rather than the usual 40 or 60 percent or whatever. Again it’s possible that by stoking player interest in a much-publicized “good-odds” lottery, the authorities will come out ahead (perhaps having hooked many novices into buying their first lottery tickets).
The practical difficulties if the province is so rash as to promise a lottery with a payout of, say, 110 percent of the money put in, will be left as an exercise to the reader.