Marcia Coyle’s May 3 piece extensively quotes me and the Liability Outlook I wrote with Martin Grace of RiskProf, the good parts of which can be attributed to him.
Sen. Ensign’s S. 22 itself is finally available on THOMAS.
(cross-posted at Point of Law)
In this reported case, a nameless plaintiff was pushed onto the railroad tracks in front of an oncoming train by a nameless third party, and sued the NYCTA for her personal injuries because the train didn’t stop in time. A jury found the NYCTA 40% at fault for “speeding,” despite conflicting testimony whether it was even physically possible for the train to stop in time at the slower speed. The court was kind enough to reduce this to 20%, which still puts taxpayers on the entire hook for economic damages, if halving the noneconomic damages under New York’s version of joint and several liability.
Class action lawyers are seeking to roll together lawsuits against DuPont on behalf of persons in fifteen states who’ve bought the non-stick cookware, whether or not those persons feel aggrieved or have inadvertently left empty pans unattended on the heat with resulting fumes. The sum bandied about as a remedy, $5 billion, hasn’t changed since we covered the story last summer (Jul. 20), but the tone of the plaintiff’s lawyers has grown noticeably more alarmist, as in the case of Kim Baer of Des Moines, who claims that “the material could become toxic when heated ‘enough to fry an egg'”. (“Plaintiffs seek class action in DuPont Teflon lawsuit”, AP/Richmond Times-Dispatch, Apr. 21). And lead plaintiff’s counsel Alan J. Kluger contends: “This stuff shouldn’t be on the market, period.” (Peter Geier, “Teflon Litigators Hope Class Action Sticks”, National Law Journal, Apr. 26).
Yeah, and thought’s common enough (Wendy McElroy, FoxNews.com, May 2).
All levity aside, this is a serious column laying out some statistics adduced a decade ago by Peter Neufeld and Barry C. Scheck of the Innocence Project:
They stated, “Every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained, the primary suspect has been excluded by forensic DNA testing. Specifically, FBI officials report that out of roughly 10,000 sexual assault cases since 1989, about 2,000 tests have been inconclusive, about 2,000 tests have excluded the primary suspect, and about 6,000 have “matched” or included the primary suspect.”
The authors continued, “these percentages have remained constant for 7 years, and the National Institute of Justice’s informal survey of private laboratories reveals a strikingly similar 26 percent exclusion rate.”
If the foregoing results can be extrapolated, then the rate of false reports is roughly between 20 (if DNA excludes an accused) to 40 percent (if inconclusive DNA is added). The relatively low estimate of 25 to 26 percent is probably accurate, especially since it is supported by other sources.
McElroy cites a number of caveats which should be kept in mind by those who would cite the Neufeld/Scheck numbers. At a minimum, however, they should serve to refute the still-sometimes-heard contention that false accusation is exceedingly rare. More from McElroy: “Duke Rape Case Raises Issue of Protecting Identity of Accused”, FoxNews.com, Apr. 26; “Did Justice or Politics Drive Arrests in Duke Lacrosse Case?”, Apr. 18). More on Duke case: Cathy Young, syndicated/Reason.com, May 2. P.S. A riposte, and comments, at Ampersand.
It seems Wal-Mart was supposed to use 10-point type for its “While Supplies Last” disclaimer when advertising its Early Bird specials in Utah, but instead used 7-point type. So naturally Matthew Howell, an attorney with the Provo law firm of Fillmore Spencer, has filed a would-be class action lawsuit against the giant retailer, on behalf of named clients Brandon and Tonya Barker. (Grace Leong, “Couple files suit over Wal-Mart early-bird deals”, Provo Daily Herald, Apr. 21).
Such a collegial guy to have around a faculty, that Prof. Banzhaf:
Students at the George Washington University may now be able to sue administrators individually for perceived wrong-doings rather than attempt legal action against the University as a whole, with the help of a new legal tactic suggested by maverick GW Law professor John Banzhaf.
Using the District of Columbia’s Human Rights Act as support, Banzhaf created a website, banzhaf.net/fightback, to educate students on how they can sue individual GW administrators and professors without the institutional legal protection the University typically provides. …
“If you could download a simple complaint (form) from the Internet and go after not the University but the individual administrator who made the decision, I think you’ve got leverage,” said Banzhaf.
(Christine Grimaldi and Emily Metz, “Prof: students can sue individual administrators”, Daily Colonial, Apr. 17). Last week, administrators at GWU announced that they were reversing an earlier stand and capitulating to a demand by Banzhaf and various students to post signs discouraging persons from smoking near entrances to the university’s campus in an urbanized section of Washington, D.C. (Katie Rooney, “GW to post signs asking smokers to back off from buildings”, GW Hatchet, Apr. 24). Banzhaf naturally takes credit:
“It was only after I initially threatened to sue him [college director of risk management and insurance Fitzroy Smith] personally and sent a draft complaint to University lawyers, did they agree to revise signs over all the campus buildings,” said Banzhaf…
If appropriate signs are not up by the beginning of the Fall 2006 semester, Banzhaf and his law students “will file the complaint, which would make Mr. Smith liable for tens of thousands of dollars plus my attorney fees,” said Banzhaf in a letter released on Friday.
Banzhaf plans to seek $100 for every student exposed to second-hand smoke while entering University buildings from January until the signs are up….
“At this point I hope they do it right,” said Banzhaf. “I’m not kidding around.”
(Brittany Levine, “GW concedes to smoking ban petition”, Daily Colonial, Apr. 24).
For more on Prof. Banzhaf, whose activities regularly furnish material for this site, see Feb. 28 and links from there. An absurdly laudatory editorial about him in the university newspaper states: “As a professor of public interest law here at GW, Banzhaf has become most notable for his class on ‘Legal Activism,’ also informally known as ‘suing for credit.’ His class teaches students to become public interest lawyers while giving them real experience.” (“GW’s own legal powerhouse”, Apr. 20).
Another animal rights story from Britain: “A policeman who put an injured cat out of its misery after it had been run over was dragged through the courts by the RSPCA in a case that has cost £50,000.” The High Court finally threw out the case against Jonathan Bell, who had been the target of a two-year campaign of prosecution by the Royal Society for the Prevention of Cruelty to Animals. (Ben Leapman and Matthew Chapman, “Two years and £50,000 later, ordeal of policeman who put dying cat out of its misery is finally over”, Daily Telegraph, Apr. 9).
Updating our Apr. 27 story, the jury awarded $500,000 “compensatory” and $1.2 million punitives. (AP, May 1). It’s that compensatory damages number that gets me: does anyone doubt that if plaintiff Janet Orlando collects that money, she’s better off than if she had never been paddled at all? Orlando had requested $1.2 million in compensatory damages plus punitives.
Customers get four rentals or a free month; Netflix won’t automatically renew those who sign up; the attorneys get $1.3 million, with a potential additional $1.1 million if more customers sign up for the deal, down from the original $2.5 million guarantee. (Michael Liedtke, AP/Mercury-News, May 1 (h/t Slim)). See our previous six posts, starting at Apr. 2.