March 5 roundup

  • Ray Nagin asks for $77 billion (only $1 billion for infrastructure) in claim; traffic jam outside of courthouse as lawyers rush to file Katrina claims against Army Corps of Engineers. [New Orleans Times-Picayune; USA Today; CNN/AP]
  • Illinois trial lawyers try to expand already broad joint and several liability in that state. [Illinois Justice Blog]
  • Florida legislator Frederica Wilson wishes to ban term “illegal alien”: “I personally find the word ‘alien’ offensive when applied to individuals, especially to children. An alien to me is someone from out of space.” (She’s okay with “illegal,” however.) [News-Press; Overcriminalized blog]
  • Defense-attorney time-stamp shenanigans. [Above the Law]
  • The Deamonte Driver case: lawyer blames the government for parental neglect [Frum]
  • Writing contracts with clarity. [Dillon]
  • Are law firms breaking the law when they bend to client demands for lawyers of a particular color? Curt Levey’s paper “Legal Implications of Complying with Race and Gender-Based Client Preferences” to be discussed at AEI March 13. [AEI; see also Financial Times; Overlawyered Jan. 9 and Dec. 27]

“In our system, money equals justice”

In 2003, four men were unhappy with the service they got at the photo lab at a Walgreens drugstore in Reno, Nevada. They claimed that their photographs weren’t developed properly, and that when they complained to the clerk, he yelled at them, walked away, and slammed a door behind him. So they did what anybody would do in that situation: they sued Walgreens for $2.5 million.

Why was a customer service issue, over what was probably a $10 store bill, worth millions of dollars? Well, the four men, who were black, claimed that the clerk shouted a racial slur as he walked away, and — in the words of the plaintiffs’ lawyer — “in our system, money equals justice.” The clerk acknowledged slamming the door and walking off the job, but denied the slur. It took a jury less than an hour to find for Walgreens. (AP, Feb. 14)

Just in case the jury wasn’t convinced by the racial slur argument, the plaintiffs tried to concoct some argument about “workplace violence” — an argument which is expected to provide the basis for their appeal to the Nevada Supreme Court. The plaintiffs argue that the judge improperly excluded some evidence of past demonstrations of temper by the clerk — but since the only “violence” the plaintiffs identified was the slamming door, it’s not clear what any of this has to do with a legal cause of action. Once again, though, this case presented arguments that internal company policies constitute grounds for liability:

Their lawsuit said the company’s management knew, or should have known, that McCord had a history of problems with his temper and that he should not have been put in a customer service position.

“There’s a lot of conduct Mr. McCord engaged in in the workplace that violates (Walgreens) policy,” said Ian Silverberg, one of the lawyers representing the four Texas men.

Silverberg said that, among other things, the appeal would challenge rulings by Berry that prohibited the jury from hearing some information about McCord’s temper, as well as other cases of discrimination lawsuits brought against Walgreens in other states.

He said McCord’s temper was especially relevant because it showed he had been in violation of Walgreens’ policy against violence in the workplace but never reprimanded.

If you’re wondering how the clerk kicking a box in a storeroom several years earlier — even if it did violate company policy — would entitle these plaintiffs to $2.5 million, well, so am I. Fortunately for Walgreens, a jury agreed… after four years of litigation.

Says Yahoo used her picture in ad, wants $20M

In Ohio, Shannon Stovall is suing Yahoo for allegedly using her picture in an ad for its email services without permission. She wants $20 million, including “a portion of the profits that have been generated through the use of her likeness, and to cover her legal fees.” (GoogleWatch, Mar. 1). “Mitchell Yelsky, one of three attorneys handling Stovall’s case, said his client ‘has previously modeled and worked for modeling agencies.'” (Anne Broache, “Woman accuses Yahoo of stealing her image”, CNET, Mar. 2). For the $15.6 million “Taster’s Choice Guy” award in Christoff v. Nestle USA, see Feb. 2, 2005 and Nov. 16, 2006.

Inline skater-bicyclist collision

11-year-old Lauren Ellis was inline-skating down her street in Chester Township, N.J., one afternoon when a bicyclist approached her from behind, rang his bell and shouted “watch out”. Was she responsible, by her startled reaction, for the resulting collision, which broke the cyclist’s collarbone? Unluckily for young Ms. Ellis, the bicyclist happened to be a “prominent fertility doctor” named Alexander Dlugi who says he had to miss work as part of recovering from the mishap. (Peggy Wright, “Doctor sues girl, 11, over inline-skating collision”, Morristown Daily Record, Mar. 1). Update Mar. 6: jury returns defense verdict.

Taxpayers still responsible for terrorist attack

A New York State Supreme Court Justice has denied a defense motion to set aside the jury verdict finding the Port Authority primarily responsible for the first terrorist attack on the World Trade Center. (AP, Mar. 2) Now to a whole new jury trial on damages for the up-to-400 remaining plaintiffs, unless the Port Authority appeals.

Aside from the bizarre assignment of responsibility (68% to the Port Authority, just 32% to the terrorists), the case also demonstrated yet another exemplary feature of our tort system: a speedy resolution of claims. The attack was fourteen years ago — and damages haven’t even been calculated yet (let alone the appellate process begun).

Originally covered by Overlawyered: Oct. 27, 2005.

Extreme Makeover, Legal Edition

On Friday, a judge in Los Angeles dismissed claims by a set of five siblings against ABC Television, which airs Extreme Makeover: Home Edition, based on the novel legal theory that a lawsuit over breach of contract should actually be based upon some provision of the contract. The show had built a new house for the couple that took the siblings in after their parents were killed; after the show aired, the siblings sued ABC and the couple, claiming that they were driven out of the house and the couple had taken donations meant for the siblings.

The judge ruled that ABC’s contract was with the couple, not the siblings. Other allegations in the suit, including fraud, negligence and intentional infliction of emotional distress, remain; it’s not clear from coverage whether any of these involve ABC. (AP, Mar. 3; earlier details of the proceedings from the Whittier Daily News, Feb 22.)

MSNBC’s Dan Abrams interviewed the plaintiffs at the time the suit was filed; their lawyer was unable to give a coherent legal explanation as to why ABC should be liable: Transcript: Aug. 16, 2005. (Deep pockets, anyone?)

Previously covered on Overlawyered Aug 12, 2005.

But still no rat disclosure requirements?

Not to pile on, but Walter’s post yesterday about the follies of NYC Health Commissioner Thomas Frieden omitted a lesser-known regulatory change enacted by the Board of Health at the same time as the trans-fat rule: a rule requiring chain and fast food restaurants to put calorie counts on their menus or menu boards. (Because many people who buy Big Macs are counting calories.) A rule which managed to annoy the regulation-friendly New York City Council because Frieden did it without bothering to ask the city or state legislature first. A rule which had the added virtue of being completely counterproductive.

Defensive banking

With the great work David Nieporent has been doing guest-blogging, I rushed back early before I got Wally Pipped.

An op-ed in the Arab American News by Ihsan Alkhatib suggests that banks are closing accounts with people who do business with Saudis; the “know your customer” requirements and fear of liability for being associated with terrorists make the costs of keeping those accounts open prohibitive. Alkhatib cites my Wall Street Journal op-ed on the subject. (“Banks, civil rights groups and community members should lobby together for change in terror laws”, Mar. 3).

NB Alkhatib’s conclusion “In protecting the banks from frivolous lawsuits, we preserve the civil rights of Arab Americans and American Muslims.” Alkhatib is plainly using “frivolous” in the common sense of “silly or socially counterproductive,” further evidence of my contention that litigation lobby defenders confuse the subject when they pretend that laypeople are using the term “frivolous lawsuits” in the narrow technical legal sense, since the lawsuits in question are not “frivolous” in that narrow technical legal sense because of the willingness of judges to treat them seriously.

Update: Cincinnati foster care case

Updating our Sept. 11 (“Neglect Your Kid Now, Sue for $5M Later” and Sept. 26, 2006 items: Lifeway for Youth, a foster-care training agency, has agreed to pay $200,000 to settle Donna Trevino’s suit seeking $5 million over the death of her 3-year-old son, allegedly at the hands of his foster parents. “Trevino told police in April to take her children; that her son Marcus Fiesel, who was developmentally disabled, and his older brother and infant sister, were not her problem.” The money is supposed to be used on behalf of Marcus’s siblings, who may also be beneficiaries of further lawsuits being pursued against other defendants. (Eileen Kelley, “Birth mother settles lawsuit”, Cincinnati Enquirer, Feb. 10).

“Back to basics, Dr. Frieden”

While the NYC Health Commissioner was squandering the city’s credibility on trans fats (“totally replaceable“, you betcha) and hatching Big Brother schemes for diabetic-watching, the traditional and basic functions of his office, like keeping rats out of restaurants, were going untended, notes an editorial in the Post. “The Taco Bell in question had received a, you should pardon the expression, clean bill of health from one of Frieden’s restaurant inspectors 24 hours before the rats were taped doing their “Happy Feet” impressions last Thursday morning. …Of course, if the Taco Bell rats had been smoking, Frieden would have been there to nail the door shut himself.” Andrew Stuttaford at NRO thinks it’s long past time for Frieden to go. (cross-posted from Point of Law).