Three years ago, when he was 2, a medical exam discovered brain lesions on Kellen Gorman. His family blames “toxic mold” for his autism (though his two siblings weren’t affected) in the house, and sued 17 defendants—including the lumberyard that supplied the wood for the house. Six weeks into trial, the case has settled for $22.6 million and, amazingly, it’s the lumberyard that’s paying the bulk of it: $13 million, or more than $200,000 for each of its sixty employees. As it was, the lumberyard had hired seventeen experts to try the case, but had ten of them (including a toxicologist and microbiolgist) excluded when they missed a court-ordered deadline for disclosure. (The Gormans’ attorney, Brian Witzer, accuses a defense attorney of trying to backdate a document, and says he has filed ethical charges.) The Gormans already have plans for their millions: “We’ll tear [the house] down and take it to a hazardous waste dump and build a really nice house,” [Dana] Gorman said. “It will cost a lot to tear down and rebuild.” (Josh Grossberg, “Manhattan Beach family wins $22.6 million suit”, Los Angeles Daily Breeze, Nov. 7; NBC-4, Nov. 4). And if housing seems a bit more expensive in California, it’s because even the raw materials suppliers must purchase insurance against the risk of multi-million-dollar junk science verdicts.
Welcome Declan McCullagh readers
The widely read technology correspondent discusses the controversy arising from the revelation that Sony has been “injecting an undetectable copy-prevention utility into Microsoft Windows”. On the one hand, lawyers have already filed a class-action suit against Sony complaining of the practice; on the other hand, consumers who try to rid their computers of the anticopying program are at risk of violating “Section 1201 of the Digital Millennium Copyright Act, which bans the ‘circumvention’ of anticopying technology.” McCullagh goes on to observe:
If your head isn’t spinning by now, it should be. It’s a wacky result when both Sony and its hapless customers could be embroiled in legal hot water at the same time.
These citations to state laws, federal statutes and common law torts above should demonstrate an obvious point: The American legal system is, all too often, used as a weapon against businesses or individuals who can’t hope to comply with every regulation on the books. Entrepreneurs write checks to law firms instead of developing products. Guilt and innocence turn too often on technicalities rather than whether an action was inherently right or wrong.
Why? As Manhattan Institute fellow Walter Olson documents on Overlawyered.com, our legal system is set up to encourage lawsuits. They’re easy to file and difficult to dismiss. Plus, politicians receive attention by enacting new laws, not by repealing them. No wonder the Federal Register was growing by between 55,000 and 70,000 pages annually even by the first Bush presidency. …
(“Perspective: Why they say spyware is good for you”, CNet News, Nov. 7).
Microsoft fee squabble: judge has “better things to do”
Declaring that he had “better things to do”, U.S. District Judge Frederick Motz in Baltimore has dismissed for lack of jurisdiction an action by plaintiff’s lawyers seeking to grab more than $24 million from a $79 million fee pot awarded another group of lawyers for their work suing Microsoft in six states and the District of Columbia. The lawyers are still free to pursue their claims in state courts. (Brian Witte, “Federal judge dismisses request for legal fees in Microsoft case”, AP/Grand Forks Herald, Oct. 27). More on MS fee-ing frenzies: Jul. 25, 2004 and links from there.
Court: workers’ comp covers hockey-fight injury
Confirming every suspicion about ice hockey:
A former minor-league hockey player who injured his shoulder in a fight he claimed his coach told him to start is entitled to workers’ compensation, a Virginia appeals court ruled.
The Virginia Court of Appeals upheld a Virginia Workers’ Compensation Commission finding that “fighting is an integral part of the game of hockey” and that Ty A. Jones’ injury arose in the course of his employment as an “enforcer.”
(Sonja Barisic, “Court: Workers’ comp covers hockey player”, AP/Detroit News, Nov. 4).
Not about the money, cont’d
In our continuing series (see Jul. 5): the family of 58-year-old Gerald Glover, who became ill following the recent Toronto outbreak of Legionnaire’s Disease, is suing. “It’s never been about the money,” said his daughter Cheryl. The suit seeks class action status and asks C$600 million. (“Legionnaires’ class action suit seeks $600M”, CTV, Oct. 26) (via KevinMD). Other suits that were not about the money: Apr. 30, Jun. 15, Jun. 30, and Jul. 5, 2005; Aug. 16, 2004; Mar. 27-28 and Sept. 3-4, 2002; Apr. 24 and May 9, 2001; Jul. 26-27, 2000. And one that was: Jun. 14, 2001.
Poetic justice department: Rex Carr sued
Jason Shafer is seeking $50,000 for medical expenses and pain and suffering for neck and shoulder injuries allegedly sustained in a fender-bender with the late-model BMW of attorney Rex Carr (Dec. 23; May 4, 2004). (Steve Gonzalez, “Rex Carr sued for allegedly causing rear-end collision”, Madison County Record, Nov. 3).
Update: Jamie Olis wins resentencing
Last year, as has been mentioned in this space (May 18, 2004, Oct. 19, 2005) a Texas judge handed down a sentence of 24 years in prison to Dynegy executive Jamie Olis, convicted by a jury of committing accounting fraud which advanced his employer’s aims but from which he did not benefit personally. Now Fifth Circuit Judge Edith Jones has handed down a ruling (PDF) finding that Olis is entitled to resentencing and laying down guidance which likely will result in a shorter sentence. Tom Kirkendall is covering the story as usual (Nov. 1, Nov. 4) as is Larry Ribstein (Nov. 1).
Outdoor smoking bans
Advancing toward prohibition, 25 feet at a time:
On Tuesday, Washington state voters will consider the first statewide ban on smoking within 25 feet of buildings that prohibit smoking….
Limits on smoking outdoors have taken off in the past two years, says Maggie Hopkins of the American Non-smokers’ Rights Foundation.
Among the examples: many beaches in California (see Jun. 24, 2004), and hospital grounds in Iowa: “Patients and visitors will have to trek off hospital grounds — one campus is 44 acres — to smoke.” (Dennis Cauchon, “Smoke-free zones extend outdoors”, USA Today, Nov. 1). See Jul. 27 (smoking while driving); Aug. 15 (prison terms proposed for smoking too close to buildings).
Update: John Torkelsen guilty plea
Josh Gerstein of the New York Sun has details (“Class-Action Expert Pleads Guilty”, Nov. 4). The plea agreement, on charges unrelated to his class-action expert witness testimony, “does not contain any language requiring Torkelsen to cooperate with the inquiry” into Milberg Weiss, reported earlier (see Oct. 10).
Flimsy numbers behind Canadian gun suit
Prime Minister Paul Martin incorrectly blamed the United States for gun crime in Canada by using an unsubstantiated figure to assert that 50 per cent of this country’s gun crimes involve smuggled firearms, U.S. Ambassador David Wilkins said yesterday.
Mr. Wilkins said that Canadian officials admitted in meetings with U.S. Secretary of State Condoleezza Rice this week “that that figure was just grabbed out of thin air.”…
The figure, which others have used previously, is not based on any statistical study that could be traced by The Globe and Mail, and police forces and other authorities said yesterday it is not verifiable.
“I know that figure of 50 per cent has been bandied about, but no one can substantiate that figure,” said Staff Sergeant Paul Marsh, a spokesman for the Royal Canadian Mounted Police.
As noted Oct. 24, Martin’s government says it is considering suing American gun manufacturers for failing to prevent the smuggling of their products across the border. (Campbell Clark, “Don’t blame U.S. for gun crime, Canada told”, Globe and Mail, Oct. 27).