Obesity, disabled rights and the EEOC

In case you imagined that the Equal Employment Opportunity Commission these days was all sweetness and reason with employers in enforcing anti-discrimination law, check out Baseball Crank’s analysis (Sept. 12) of a new Sixth Circuit case, EEOC v. Watkins Motor Lines (PDF). Watkins Motor Lines hired Stephen Grindle, who then weighed 340 pounds, as a driver/dock worker:

Approximately 65% of his time was spent performing dock work including loading, unloading, and arranging freight. The job description for this position notes that the job involves climbing, kneeling, bending, stooping, balancing, reaching, and repeated heavy lifting.

Grindle continued to gain weight, hitting a high of 450 pounds.

In November 1995, Grindle sustained an on-the-job injury. He was climbing a ladder at the loading dock and a rung broke. He started to fall and caught himself but, in doing so, he injured his knee. …

[In 1996 an industrial clinic doctor, Dr. Walter Lawrence,] found that Grindle had a limited range of motion and that he could duck and squat but he was short of breath after a few steps. Dr. Lawrence also noted that “[o]n physical examination, the most notable item is that the patient weighs 405 lbs.” Dr. Lawrence concluded that, even though Grindle met Department of Transportation standards for truck drivers, he could not safely perform the requirements of his job.

So the company let him go, he sued, and the Sixth Circuit has now upheld the dismissal of his suit on summary judgment, not on the grounds you might think (that the grounds for his dismissal were obviously rational) but rather on the grounds that morbid obesity, when not caused by a physiological disorder at least, is not an “impairment” under the Americans with Disabilities Act. Michael Fox at Jottings of an Employer’s Lawyer also comments (Sept. 12) as does lawprof Sam Bagenstos (Sept. 12).

Medical tourism

Bumrungrad International Hospital in Bangkok, Thailand, treated 58,000 American patients in 2005, and looks to treat 20 percent more this year. Why?

At Bumrungrad Hospital, [spokesman Ruben] Toral said, the lower cost of living is a major factor in the savings, but so are differences in how the medical system operates.

Doctors in Thailand pay about $5,000 a year for malpractice insurance, compared with more than $100,000 for some specialties in the United States.

Thai courts will adjudicate malpractice claims, but the largest award ever issued was about $100,000 and the law there doesn’t permit damages for pain and suffering.

(Mark Roth, “Surgery abroad an option for those with minimal health coverage,” Pittsburgh Post-Gazette, Sep. 10). Apparently the Thais haven’t heard the propaganda from the American trial bar that caps on non-economic damages don’t lower malpractice insurance premiums or medical expenses. And apparently, thousands of Americans prefer cheaper healthcare to the opportunity to recover pain-and-suffering damages: unfortunately, plaintiffs’ organizations fight very hard to ensure that American consumers don’t actually get that choice. (Via, of all places, Bizarro-Overlawyered, where one can almost see the smoke coming out of the ears of the posting blogger because of the “Does-Not-Compute” cognitive dissonance.)

Read On…

Cincinnati foster care case, cont’d

More on the Marcus Fiesel/Donna Trevino case, as noted here Sept. 11: “The birth mother who sued Butler County for $5 million over her son’s death in foster care had no intention of reuniting with the boy, according to court records The Enquirer obtained Monday. In addition, the attorney who stands to gain millions in the civil case if the case is successful knew that.” (Sheila McLaughlin, “Birth mom didn’t want Marcus”, Cincinnati Enquirer, Sept. 26)(hat tip: reader D.B.).

“Suit Blames Video Game for N.M. Slayings”

Yes, it’s regular Overlawyered mentionee Jack Thompson (Aug. 17, Jul. 24, Jun. 25, etc.) at it again — how did you guess? This time he wants $600 million from Take-Two Interactive, Sony and other defendants over the rampage by 14-year-old Cody Posey on newsman Sam Donaldson’s New Mexico ranch, which left three members of the youth’s family dead in July 2004. It seems Posey had “obsessively” played the game Grand Theft Auto: Vice City. (AP/Washington Post, Sept. 25)(via KipEsquire). More: Lattman, Sept. 27.

Bacardi responds to flaming-drinks suit

The rum maker contends that the three women’s injuries “were caused after a bartender poured rubbing alcohol on the bar of the ‘Secrets’ adult club and ignited it as part of a promotion for flaming drinks in 2002.” The complainants, it suggests, have already recovered damages from other and more culpable entities in the accident. The plaintiff’s lawyer says the 151-proof liquor has been the cause of other accidents when it caught fire, but Bacardi counters that the label warns against use in flaming drinks and that the bottle includes a “flame arrester”. (“Bacardi Denies Its 151 Rum Caused Bar Burn Injuries”, AP/FoxNews.com, Sept. 25). For our earlier coverage, see Jul. 27.

Paul Harris show, KMOX

I was a guest this afternoon on Paul Harris’s radio show on KMOX, St. Louis. We discussed Judge Weinstein’s ruling certifying a national class action over “light” tobacco claims (see PoL Sept. 25), the court decision last week keeping alive the Pelman obesity case against McDonald’s (Sept. 22), and a deaf group’s lawsuit demanding captioning at Washington Redskins football games (Sept. 21). You can listen here — it’s practically a podcast.

The burglar and the skylight: another debunking that isn’t

Bizarro-Overlawyered is upset about the fact that a legislator, over twenty years ago, mentioned a lawsuit involving “a burglar [that] fell through a skylight and injured himself only to recover thousands of dollars from the owner of the skylight,” and points to this MS Word account of the case of Bodine v. Enterprise High School to debunk the tale. Those dastardly reformers, misrepresenting the facts once again! (Of course, there are several thousand posts on Overlawyered over the last seven years, and not a one before today mentions this case, so it’s hardly central to the reform movement. It doesn’t appear on the ATRA website, either. But why split hairs when there’s a chance to demonize reformers?)

Except if one actually goes to the document, buried within a lot of rhetoric criticizing reformers for mentioning the Bodine lawsuit, we learn: Ricky Bodine was a 19-year-old high-school graduate who, with three other friends (one of whom had a criminal record), decided the night of March 1, 1982, to steal a floodlight from the roof of the Enterprise High School gymnasium. Ricky climbed the roof, removed the floodlight, lowered it to the ground to his friends, and, as he was walking across the roof (perhaps to steal a second floodlight), he fell through the skylight. Bodine suffered terrible injuries to be sure, though one questions the relevance: if the school is legally responsible for burglars’ safety, it doesn’t matter whether Bodine stubbed a toe or, as actually happened, became a spastic quadriplegic. But I fail to see what it is that reformers are supposedly misrepresenting. A burglar fell through a skylight, and sued the owner of the skylight for his injuries. Bodine sued for $8 million (in 1984 dollars, about $16 million today) and settled for the nuisance sum of $260,000 plus $1200/month for life, about the equivalent of a million dollars in conservatively-estimated 2006 present value.

In other words, a burglar fell through a skylight, and blamed the skylight’s owners for his injuries; because the law permits such suits, and because the law does not compensate defendants for successful defenses, Bodine had the ability to extort hundreds of thousands of dollars from taxpayers for injuries suffered in the course of his own criminal behavior. Bodine’s only hope of recovery is the law’s rejection of proximate cause as prerequisite to liability. Assemblyman Alister McAlister, the Democratic legislator who used the story to push for reform, described the facts correctly. McAllister didn’t mention that Bodine was 19, but so what? He didn’t mention that Bodine was 6’1″ and a waiter, either, and all three facts are irrelevant. Lilliedoll accuses McAlister of falsely claiming that the legal theory was “failure to warn,” but that’s hardly an inaccurate description of a duty-to-trespassers theory: the alleged duty could have been fulfilled by posting visible warnings to trespassers of the dangers of traversing the roof.

Were the skylights safe? Perhaps not; there had been other accidents (all involving trespassers) at other schools, though not long enough before Bodine’s accident for a school bureaucracy to have time to react. But, for most people’s sense of justice, that is hardly relevant: Bodine had no business being on the roof in the first place. In the words of anti-reformer Justinian Lane, “If you can’t do the time, don’t do the crime.”

If this is the best the anti-reformers can do to point out “distortions” in the reform movement, I’d say we’re doing a pretty good job. (Earlier in the series: Sep. 17; Sep. 18). And once again, the only people misrepresenting anything are the supporters of the litigation lobby, who once again fail to honestly engage with the reform position in their efforts to rebut it.

Update: David Nieporent notes in the comments:

Ted, you missed the best part of the skylight anecdote. In another post on Tortdeform, Cyrus Dugger approvingly cites a long passage from a book review of an anti-tort reform book. That passage also attempts to debunk the skylight story. But here’s how it describes it:

The actual case involved a teenager who was on the roof of a school and, by the best accounts we can find, was trying to redirect a light because they were trying to play basketball. And while he was on the roof he stepped through the skylight, which had been painted over black. So this may have been a trespasser, but it wasn’t a burglar. (Emphasis added.)

That’s right: in this account which is trying to debunk myths about the case, cited approvingly by Tortdeform, it turns a thief into a guy “trying to redirect a light.”

U.K. schools fear liability surge

Britain: “Headteachers yesterday warned that litigious parents could soon sue schools for failing to prevent their children from drinking, smoking or taking drugs. … Families are already taking legal action over schools’ alleged failure to tackle bullying and heads say they could soon be held responsible for obesity, pregnancies, sexually transmitted diseases, drug taking and drinking.” (James Meikle, “Heads predict lawsuits over obesity targets”, The Guardian, Sept. 12).