Now, the record will reflect that I was an early skeptic of the “solving” of the JonBenet case, but the AP’s quote of Karr’s public defender, Seth Temin, is a bit over the top: “We’re deeply distressed by the fact that they took this man and dragged him here from Bangkok, Thailand, with no forensic evidence confirming the allegations against him and no independent factors leading to a presumption he did anything wrong.” Er, wasn’t Karr a fugitive from justice from California? And there was that whole confession thing…
“A Taxonomy of Obesity Litigation”
A Little Rock friend of mine had an emergency gap in his law review, and solicited me to write about the fast-food litigation. I’m not a big fan of the eight-footnotes-a-page-style that law reviews like, but I think the piece is a good overview of what has happened to date. The article, 28 UALR L. Rev. 427 (2006), can be downloaded at SSRN (help me catch up with Bainbridge!) or at the AEI Liability Project website. (cross-posted at Point of Law)
I worry that events have outstripped me; one sentence in the article, “Why is selling soda [to 17-year-olds] an attractive nuisance, but selling … Internet connectivity is not?” predates the MySpace litigation.
ATLA, AAJ and the inky cuttlefish
The editors of the Los Angeles Times are not impressed by the decision of the Association of Trial Lawyers of America to change its name to the American Association for Justice (AAJ), and quote Orwell: “The great enemy of clear language is insincerity,” he wrote. “When there is a gap between one’s real and one’s declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink.” (“A Trial Lawyer by Any Other Name” (editorial), Aug. 11) (via Wallace). See Jul. 28 (“kitten fish”), etc.
ADA filing mills: get those facts straight!
Taking advantage of the liberal (and lucrative) provisions of disabled-rights law in the Golden State, wheelchair user Jerry Doran has filed “more than 200 lawsuits in state and federal court against restaurants and other public establishments throughout California, alleging insufficient disability access. He has filed so many suits, in fact, that he has begun to lose track,” notes George Wallace at Declarations and Exclusions. Last month U.S. District Court Judge Cormac J. Carney returned judgment in favor of a Del Taco restaurant in Mission Viejo — 500 miles from where Doran lives — against Doran’s claim of having suffered improper lack of accommodation. Wallace (Jul. 18) takes up the tale:
Although there was no question that Mr. Doran is disabled, Judge Carney was ultimately unable to persuade himself that there was evidence sufficient to prove that Doran had actually sustained any harm at, or had ever actually been to, the Mission Viejo Del Taco.
After describing and praising the purposes of the ADA, Judge Carney’s Memorandum Decision [PDF] notes that it is a tool prone to misuse:
Despite the important mission of the ADA, there are those individuals who would abuse its private cause of action provision by filing lawsuits solely with the intent to profit financially. This potential for abuse of the ADA has been well documented in the Central District of California . . . . Courts have referred to this proliferation of ADA lawsuits as a ‘cottage industry’ and have labeled plaintiffs who file these lawsuits ‘professional plaintiffs,’ ‘serial plaintiffs,’ and ‘professional pawns.’
* * *
The consequences of this abuse of the ADA are severe: businesses and insurers are harmed, the integrity of the bar is called into question, and the public’s confidence in the courts is impaired. . . . Simply put, this litigation abuse of the ADA results in the exact harmful consequences that Congress sought to eradicate by passing the ADA. As more than one court has observed, the result of this abusive litigation is that ‘the means for enforcing the ADA (attorney’s fees) have become more important and more desirable than the end (accessibility for disabled individuals).’
Most of the remainder of the opinion focuses on the discrepancies in Doran’s responses to interrogatories, his responses to questions in deposition three weeks later, and his testimony at trial, in which key details — such as how often and when he had actually visited the Mission Viejo Del Taco — slipped and slid uncontrollably. Highlights:
* Doran first went to Del Taco #415 in Spring of 2002 or in Spring of 2003, unless his first visit was in 1988.
* Prior to filing suit, he went to the location twice, or perhaps three times, or possibly just once, although he may have gone there on as many as five or six occasions.
* “Mr. Doran’s complaint refers to objects — display racks and vending machines — which do not even exist at Del Taco restaurant #415.”
* “When Mr. Doran stated that he ordered an enchilada to eat during his alleged visit, he must have been testifying about a trip to a Taco Bell restaurant since Taco Bell — and not Del Taco — serves enchiladas.”
* “When describing the barriers he encountered at Del Taco restaurant #415, Mr. Doran stated that the hand dryers in the restroom were located too high. . . . Because Del Taco restaurant #415 does not have hand dryers in its restrooms, it is clear that Mr. Doran was testifying about a visit to another restaurant, or place of public accommodation, when asked to identify the barriers he encountered.”
* “When asked if there were any fast food chains that Mr. Doran frequented that he had not sued, he replied that he had not sued Kentucky Fried Chicken. In fact, Mr. Doran has sued Kentucky Fried Chicken. When asked to try again, Mr. Doran replied that he had not sued Jack in the Box. Although apparently unbeknownst to him, Mr. Doran has sued Jack in the Box also.”
(Doran v. Del Taco, opinion in PDF format courtesy Decs & Excs; post, Jul. 18). For more on the dubious practices of ADA filing mills, see our disabled rights page.
“Katrina rescuer is sued by boat owner”
Giving property rights a bad name? “A Broadmoor man who said he rescued more than 200 residents after commandeering a boat during the flood after Hurricane Katrina is being sued by the boat’s owner for taking it ‘without receiving permission.'” Mark Morice cut the unattended boat loose and managed to hot-wire it, then used it to rescue an elderly dialysis patient and many others; he then left the vessel for other rescuers’ use. “The lawsuit contends that boat owner John M. Lyons Jr. suffered his own distress, in the form of ‘grief, mental anguish, embarrassment and suffering … due to the removal of the boat,’ as well as its replacement costs.” One of those who benefited from Morice’s rescue efforts, Molly Gordon, says she has trouble understanding the mental-anguish angle: “This man should be so grateful he had a boat that saved lives,” she said. (Steve Ritea, New Orleans Times-Picayune, Aug. 26)(& No Quarter/Michael Silence, KnoxNews).
Talk show subpoenaed in Boston mosque suit
The Islamic Society of Boston, which is engaged in numerous lawsuits against media organizations and critics of its activities (see Jan. 5, May 19), has now subpoenaed local radio talk station WTTK-FM “after one of its prominent hosts, Michael Graham, discussed the [ISB’s mosque-building] project on the air…. after reviewing the subpoena, attorney Harvey Silverglate, a Cambridge civil liberties specialist, described it as ‘extraordinary.'”, noting that it requests, among other things, “materials used by Graham to support his remarks about the ISB… and communications between Graham and other defendants or attorneys involved in the ISB defamation suit.” (Laura Crimaldi, “Islamic Society subpoenas WTTK in defamation suit”, Boston Herald, Aug. 27).
Veterinary malpractice, cont’d
Mike Cernovich makes the case against “loss of companionship” damages (Aug. 23). Earlier coverage: Dec. 29, 2005, etc.; see also May 25, 2006.
Update: Vt.-Va. lesbian custody battle
The Vermont Supreme Court has rejected (opinion, Miller-Jenkins v. Miller-Jenkins, Aug. 4) a Virginia court’s attempt to invalidate a pre-existing Vermont order giving Janet Miller-Jenkins rights to visit the child that she and former partner Lisa Miller-Jenkins raised before their breakup. Eugene Volokh (Aug. 4, see also second post of that date) explains why the Virginia court is on shaky ground:
First, despite how Lisa’s lawyers (Liberty Counsel) are characterizing the case, this is not primarily a case about civil unions. Child custody cases often arise in divorces (or, where civil unions are available, in civil union dissolutions), but they can arise even if the parties aren’t married. The relevant federal statute, the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (which the Vermont court calls, in a possibly amusing mistake, the Parental Kidnapping Protection Act), requires courts to adhere to preexisting custody awards generally, not just ones that follow the dissolution of a marriage. The Act requires each state to “enforce according to its terms” out-of-state custody orders if, among other things:
(1) [the original] court has jurisdiction under the law of [the court’s] State; and
(2) … (A) such State
(i) is the home State of the child on the date of the commencement of the proceeding, or
(ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;And if this provision protects the original Vermont judgment (which I think it does), then the later Virginia judgment is invalid (see subdivision (g), “A court of a State [here, Virginia] shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State [here, Vermont] where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination”).
Volokh rejects the position — advanced by some readers in the comments thread — that the federal Defense of Marriage Act should be construed as overriding the PKPA in this case. It is rather remarkable how many social-conservative commentators fail even to mention the PKPA in discussing the dispute. Earlier coverage of the case: Aug. 15 and Dec. 16, 2004.
Gayle Porter and Blackberries
Rutgers management professor Gayle Porter shows she’s much better at self-publicity than law by generating loads of press coverage for her unfounded claim that employees might hold employers liable for the cost to their personal lives from addiction to personal e-mail devices. (E.g., this uncritical Reuters report (hat-tip F.R.)) Then again, modern-day plaintiffs’ lawyers have shown themselves perfectly capable of enough shamelessness to turn parody to reality.