Drunk driver: cops should have stopped me earlier

Chutzpah champion of the Northwest? “Three years after getting drunk, blowing through a stop sign and triggering a wreck that left her passenger critically injured, a former Idaho resident has filed a $1.5 million claim against Washington’s Pend Oreille County for not detaining her before she caused the crash.” Ashlen Lee, 17 at the time of the accident, says in her claim that a county sheriff’s deputy let her off with a warning in the wee hours although he could see she’d been drinking and neither she nor her passenger was wearing a seat belt. (Richard Roesler, “Driver says her accident deputy’s fault”, Spokane Spokesman-Review, Aug. 5).

Dept. of gratitude

Last October the rescue squads of the town of Old Saybrook, Ct., were hailed as heroes for their work in attempting to save Barbara Connors, 75, of Medfield, Mass., from a Ford Explorer that had plunged into the Connecticut River. Connors’ son-in-law, who had been at the wheel and who managed to escape from the vehicle on his own, later told police he accidentally hit the SUV’s accelerator, propelling it through a chain-link fence and into the water below. But now Connors is suing a long list of officials of the town (population 1,962) on the grounds that they should have maintained or funded a specially dedicated and equipped dive rescue team; had they done so, she would have been rescued from the submerged vehicle in less than the 29 minutes it actually took, avoiding serious injury. Through her attorney, Robert Reardon Jr. of New London, she’s also suing the son-in-law. “‘I find it extraordinary the town is being sued in these circumstances,’ First Selectman Mike Pace, one of the defendants, said at Thursday’s selectmen’s meeting.” (Claudia Van Nes, “Town Sued Over River Rescue”, Hartford Courant, Aug. 5; Walt Platteborze, “Woman ‘critical’ after being pulled from submerged SUV”, New Haven Register, Oct. 15, 2004).

Jury deliberates in Miss. judicial scandal

Mississippi’s long-running judicial corruption trial is now in the hands of a jury. “The case has shown about $300,000 in loans, cash and third-party payments flowing from a wealthy lawyer to a state Supreme Court justice and local judges and apparent disregard of state campaign-finance and ethics rules.” (Geoff Pender, “A legal eye”, Biloxi Sun-Herald (henceforth BSH), Aug. 4; Julie Goodman, “Power, expertise convene in trial”, Jackson Clarion-Ledger (henceforth JCL), Aug. 1; Holbrook Mohr, “Defense lawyer denies unfair link between judges, attorney”, AP/BSH, Aug. 5; Julie Goodman, “Deliberations begin in Diaz fraud case”, JCL, Aug. 6).

The indictments in the case were handed down after a federal investigation found that prominent plaintiff’s attorney Paul Minor had funneled money and services to several local judges; at the trial, lawyer Bobby Dallas testified that Minor urged him to channel $20-40,000 to state Supreme Court Justice Oliver Diaz Jr., implying a connection between such assistance and Diaz’s help in preserving a multi-million-dollar award for one of Dallas’s clients before the high court. (“Lawyer says he was pressured to give money to Miss. justice”, AP/Picayune Item, Jul. 7). Diaz’s lawyers pointed out at trial that their client did not rule on any of Minor’s own cases before the court, while prosecutors sought to establish that Diaz removed himself from one large such case only after headlines had appeared announcing a federal investigation of his dealings with Minor (Geoff Pender, “Diaz’s actions, inactions probed”, BSH, Jun. 29; Julie Goodman and Jimmie E. Gates, “Diaz defense: No evidence of corruption”, JCL, Jul. 3).

As the trial neared its end, Judge Wingate dismissed solicitation of bribery and extortion charges against Diaz, leaving four remaining counts against him, and one solicitation of bribery charge against Minor, leaving more than a dozen counts against him. Wingate said prosecutors had failed to establish that Diaz knew of conversations in which Minor allegedly applied improper pressure on attorneys to donate to Diaz. (“Judge dismisses bribery count in judicial bribery trial”, Picayune Item, Aug. 3). Former Circuit Judge John Whitfield and former Chancery Judge Wes Teel are also defendants along with Minor and Diaz, both accused of receiving improper payments from Minor.

Neither side called Richard (“Dickie”) Scruggs as a witness, although colorful testimony emerged about his support for the Mississippi judiciary:

Scruggs’ personal secretary, prosecution witness Charlene Bosarge, supplied a bag of cash to Jennifer Diaz [then-wife of Justice Diaz] for the campaign, Jennifer Diaz told FBI agents.

During the April 13-14, 2005, FBI interviews, Jennifer Diaz said Scruggs and Bosarge promised more cash if they could find names to go with it for state campaign disclosure forms. Beginning in 1999, state law limited Supreme Court contributions to $5,000 per person.

Neither side called Jennifer Diaz as a witness, either. (Anita Lee, “Minor defense: Scruggs took lead role in backing Diaz campaign”, BSH, Jul. 29) A major defense theme was that the failure of the prosecution to bring charges against Scruggs proved its political motivation (the prosecutors can’t win, since when charges against Scruggs were in the air they were accused of being politically motivated)(“Government withheld info in Diaz trial, defense says”, AP/JCL, Jul. 28; Anita Lee, “FBI notes steer strategy in judicial trial”, BSH, Aug. 2). According to testimony from Jackson attorney Danny Cupit, Scruggs attempted to convince then-Gov. Ronnie Musgrove in 2000 to appoint Judge William Myers to a vacancy on the state high court; Myers had presided over the tobacco-Medicaid suit that made Scruggs a gazillionaire. (“Lawyer says he was pressured to give money to Miss. justice”, AP/Picayune Item, Jul. 7).

Supporters of the various defendants turned out in numbers in the courtroom, among them former state Supreme Court Justice Chuck McRae (Anita Lee, “Judge issues jury instructions”, BSH, Aug. 4; Geoff Pender, “Ex-Justice McRae turns up to support Diaz”, BSH, Aug. 5). For our previous coverage of the case, see Oct. 9-10 and Oct. 11-13, 2002; May 7, Jul. 24, Jul. 27, Aug. 19 and Dec. 19, 2003; Feb. 22 and Jul. 12, 2004; and Apr. 30, 2005.

Mobile Register on silicosis scandal

The gigantic silicosis/asbestos screening scandal recently laid bare in a Texas courtroom (see Ted’s and my extensive coverage at Point of Law, also this site May 19, 2005 and — we were on to this early — Sept. 13 and Nov. 12, 2003) originated with the sworn testimony of a Mobile, Ala. radiologist last October; George Martindale’s deposition set in motion a chain of events that led federal judge Janis Graham Jack to issue a scathing 249-page court order Jun. 30 charging that 10,000 silicosis cases before her courtroom had been “manufactured for money”. Now reporter Eddie Curran of the Mobile Register, whose work we’ve saluted before, is out with an investigative piece that makes compelling reading. (Eddie Curran, “Judge torches silicosis testing”, Mobile Register, Jul. 31).

Roger Parloff also tackles the scandal at length and exceptionally well in Fortune, as usual behind a subscriber-only screen (“Diagnosing for Dollars”, Jun. 13). An opinion piece by Luke Boggs in the Atlanta Journal-Constitution (“Frivolous claims spur backlash”, Jun. 14) comments: “While sleazy lawyers have traditionally chased ambulances, attorneys in the silica case didn’t trail anyone to a medical facility. Instead, they set up their own, putting an X-ray machine and a doctor in a trailer in a restaurant parking lot. Seriously. Not only that, but the X-ray machine was owned by a real estate broker, the doctor wasn’t a radiologist, and no one had a license to take X-rays.” On the reverberations that continue to echo from the scandal in the mass-tort business nationwide, see Peter Geier, “Silica Case Seen as Breakthrough”, National Law Journal, Aug. 4, and “Breathing Down on California: Texans charge into state with sometimes shady silicosis suits”, The Recorder, Jun. 3, reprinted at Texans for Lawsuit Reform site.

Ted’s habeas debate

Ted’s debate with lawprof David Bruck (Washington & Lee) on federal habeas corpus reform at Legal Affairs has now wrapped up (for more on the bill itself, see Jul. 17). Not only is it highly illuminating and a great read (Ted: “We’re not talking about a sacrosanct legacy for which General Grant fought; we’re debating a malleable judicial rule that’s younger than two of the stars of ‘Desperate Housewives.'”) but (for readers who think they’re only interested in the civil and not the criminal side of the courtroom) Ted discusses in passing the general paucity of means by which miscarriages of justice in state court litigation can be reviewed by federal courts (see his Aug. 2 post).

Oz: regulation of litigation finance eyed

The government of Australia’s biggest state, New South Wales, “has moved to rein in litigation-funding companies and will ask other states this week to regulate a practice which they say offers few consumer protections. The Attorney-General, Bob Debus, says the firms — which fund court cases in return for a share of any payout — are not policed in the same way as lawyers and could undermine national laws governing the profession.” Among other concerns advanced by Mr. Debus, litigation funders could be in a position to “initiate, manage and influence the running of court cases” without submitting themselves to the consumer recourse available against lawyers themselves, and “could circumvent the prohibition on lawyers charging contingency fees.” (Michael Pelly, “State seeks greater control of firms funding litigation”, Sydney Morning Herald, Jul. 26). For more on litigation finance, see Aug. 4, 2003.

Smuggled illegals suffocate, trailer maker gets sued

In May 2003 nineteen illegal aliens being smuggled through Texas died when the driver transporting them, Tyrone Williams, abandoned the trailer at a Victoria rest stop. Now the law firm of Moreno, Becerra, Guerrero and Casillas of Montebello, Calif., representing victims’ families, is suing not only Williams, who has been convicted on numerous counts in the deaths, and the company for which he worked, but also the trailer’s manufacturer, Great Dane, and its lessor, Salem Trailer Leasing Inc. Charles Rhodes, law professor at South Texas College of Law, assures the Houston Chronicle that the naming of the more remote defendants is “not an unusual practice”; after all, “attorneys are looking for the deep pockets”. Oh, well that’s all right then. (Dale Lezon, “Immigrants’ relatives sue over truck deaths”, Houston Chronicle, Aug. 3).

Colorado’s highest peaks, off bounds

Among mountain climbers, no American state compares to Colorado with its 54 “14ers” — peaks over 14,000 feet high. According to the Colorado Mountain Club, more than 1,000 persons have accomplished the feat of climbing all 54 of them. But climbers are now facing a new obstacle: some of the trails up to the peaks pass through private land, and liability fears are changing landowners’ minds about granting access:

“We’ve known for years that people are climbing on our land,” said Maurice Reiber, whose Earth Energy Resources Co. owns chunks of several 14ers. “The reason we asked the Forest Service to do something about it this year is because society has changed.

“Let’s face it,” Reiber continued, “this is a lawsuit-happy country nowadays. If somebody breaks through a gate up there and falls into an old mine shaft, they might decide to sue me. The liability question is the issue we’ve got to resolve.”

The Forest Service said there has been no such legal action to date. But many peak-baggers sympathize with the landowners’ concern.

“Here’s a guy who’s generous enough to let people use his property for free,” noted T.J. Rapoport, a veteran climber who runs the Colorado Fourteeners Initiative, an environmental group. “But the lawyers tell us there is no waiver, no release he could design that would definitely protect him against a jury verdict.”

(T.R. Reid, “Private Obstacles Block Climb to 14,000-Foot Peaks”, Washington Post, Jul. 17).

P.S. Reader Jay Strickland writes to ask, “Does Colorado have a recreational use statute like we have here in Georgia? The statutes (OCGA 51-3-20 through 51-3-26) absolve owners of liability, except for willful and wanton acts, for giving free access to their property. Similar legislation would seem to address these concerns.”

Colorado attorney Aaron J. Hill responds: Yep, Colorado has a recreational use statute (CRSA 33-41-101 et seq.)(out of date version here). But the carve-out in Section 104 is broad enough that any owner with a known hazard (i.e. mineshafts) or that is using its land for commercial purposes would be ill advised to rely on it. I’m guessing that Earth Energy Resources has some commercial purpose for that land.

“On the other hand, property owners can limit their liability by leasing the land to a public entity for recreational purposes (or granting an easement or other use right). I have helped other land owners grant easements to local recreation districts to take advantage of this additional protection.” Update Jan. 22: bill introduced in state legislature to help.