After getting thrown out of court pretty much everywhere else, trial lawyers suing companies that long ago manufactured lead paints and pigments may have finally achieved their long-sought breakthrough. They are indebted for this benefaction to the Wisconsin Supreme Court, within days of the same court’s baldly activist decision (PoL Jul. 14) to strike down the state legislature’s limits on medical malpractice awards. By a 4-2 margin, the court agreed to apply the theory of market-share liability — widely rejected by courts except in the context of suits over the drug diethylstilbestrol (DES) — to hold liable any and all companies which made paints and pigments sold in Wisconsin, regardless of whether a plaintiff claiming injury can demonstrate whose product he or she was exposed to. The court did not apply any statute of limitations and impatiently brushed aside defendants’ objections that the conduct being sued over took place more than a century ago — the houses in which the teenage plaintiff had been exposed to lead paint were built in 1900 and 1905 — and was lawful according to the standards of that time. “It will be nearly impossible for paint companies to defend themselves or, frankly, for plaintiffs to lose” under the newly announced standard, predicts dissenting justice David Prosser. If he’s right, expect a gold rush by client-chasing lawyers in Wisconsin. (J.R. Ross, “Court Allows Teen to Sue Lead Paint Pigment Makers for Injuries”, AP/Law.com, Jul. 18). For more on paint litigation, see this set of links, Dec. 15, 2003, Jul. 2, 2005, etc.
Also at Point of Law
Along with a great deal of other discussion of the John Roberts nomination (for which see the site’s special Supreme Court nominations page), Point of Law has kicked off a featured discussion of the confirmation saga by two distinguished contributors, U. of Chicago lawprof Richard Epstein and Northwestern lawprof Stephen Presser (more).
Some other recent highlights at the site: Jim Copland and Jonathan Wilson on the Texas Merck trial, Wilson on Georgia’s new rule regarding “offers of judgment”, and posts from me on an expansion of ADA coverage, school finance suits, the retention by Oklahoma’s attorney general of private tort lawyers to sue chicken farmers in nearby Arkansas, an appeals court approves RICO suits against employers of illegal aliens, health care qui tam actions, the “cab-rank” principle in legal ethics (observed more in Britain than here), and Astroturf in the liability wars.
Corporate governance at Point of Law
White-collar prosecutions, securities and accounting law and corporate governance in general have come in for much attention of late at our sister site. Lyle Roberts (no relation to John that we know of), who puts out the excellent securities law blog 10b-5 Daily, dropped by as a guest the other week to contribute posts on, inter alia, the record of the PSLRA and the Supreme Court’s history of dodging questions in this area. Ted Frank discusses the Bernie Ebbers sentence as well as a new NERA study on securities lawsuits, while Martin Grace, Jonathan Wilson and I all post on different aspects of the Sarbanes-Oxley law. I’ve also got brief items on Chris Cox as Bill Lerach’s nightmare nominee and on the much-discussed Larry Thompson memo laying out ground rules for corporate prosecutions at DOJ.
Update: Alabama Vioxx judge
Updating our Apr. 28 item on Rogers v. Merck: the Washington Legal Foundation has filed a judicial misconduct complaint (Jun. 21, PDF) against Alabama Circuit Judge John Rochester, saying he should have disqualified himself from hearing the suit brought by the firm of Beasley Allen, which according to an April AP report had last October donated $60,000 to his unsuccessful campaign for a seat on the state’s high court. Judge Rochester characterized the complaint as meritless, saying “attorneys for Vioxx’s manufacturer, Merck & Co., had not complained about the donations and had not asked him to step aside from the case.” (“Complaint Filed Against Vioxx Case Judge”, AP/Forbes.com, Jun. 21).
NY schools drug counselor caught with cocaine can be fired
And it only took three years of litigation to reach that result. Michael Campbell and the New York State United Teachers Union sued to get Campbell his job back at Intermediate School 72 after he was caught in his car with ten aluminum bags of cocaine, and a hearing officer and a trial court agreed before the appellate court reversed. There might be still another appeal. Taxpayers can thank Campbell’s lawyer, James R. Sandner, and lower court judge Debra A. James. (Samuel Maull, “Appeals court says teacher arrested as drug suspect should lose job”, AP/Newsday, Jul. 7 (via EdWatch); opinion).
No convictions in Enron Broadband trial
Tom Kirkendall has the definitive post on the failure of the U.S. Attorney’s office to criminalize complex corporate finance transactions for being conducted by employees of an entity that was a subsidiary of another entity associated with fraudulent accounting. The jury deadlocked on several counts, and there’s a threatened retrial. The original trial took three months and featured some scandalous prosecutorial practices.
“Erototoxins” as next tobacco
Judith Reisman, a peripheral yet oddly influential figure in social-conservative circles who is perhaps best known for her attacks on the late sex researcher Dr. Alfred Kinsey, has taken up a new cause: proving that exposure to pornography causes the release of injurious “erototoxins” in the human brain. Reports Britain’s Guardian:
Under the auspices of Utah’s Lighted Candle Society (LCS), Reisman and Victor Cline, a clinical psychologist at the University of Utah, began raising money from American conservative and religious organisations. They hope to raise at least $3m to conduct MRI scans on victims under the influence of porn and so prove their theories correct. They foresee two possible outcomes: if they can demonstrate that porn physically “damages” the brain, that might open the floodgates for “big tobacco”-style lawsuits against porn publishers and distributors; second, and more insidiously, if porn can be shown to “subvert cognition” and affect the parts of the brain involved in reasoning and speech, then “these toxic media should be legally outlawed, as is all other toxic waste, and eliminated from our societal structure”.
(Mark Pilkington, “Sex on the brain”, Jul. 14). Rogier Van Bakel (Nobody’s Business) has much more on Reisman (Jul. 21). (& welcome Andrew Sullivan, Instapundit readers).
Jackpot justice in LA: Dr. Robert Johnson
When he was 81, Dr. Robert Johnson’s supervisors at the Lancaster state prison complained to the state medical board that he suffered from memory loss that impaired his work as a surgeon and suggested he retire. Johnson’s lawyer, Ralph B. Wegis, says the investigation cleared him, but also ended his career, and Johnson sued. A Los Angeles County Superior Court jury awarded $1.6 million in lost wages (apparently based on testimony that Johnson was going to continue to be a practicing surgeon until he was 96) and damages for emotional distress adding up to $20 million. (Jean Guccione, “Prison Doctor Awarded $20 Million in Age Case”, LA Times, Jul. 20). Imagine the lawsuit that would’ve bankrupted the prison if Johnson had committed malpractice and the prison hadn’t investigated suspected problems. Cf. also Aug. 30.
Behind a pageant, busy lawyers
Representatives of the Hollywood, Fla.-based law firm of Schwartz Zweben & Associates have played a substantial role behind the scenes in helping organize, promote and support the Ms. Wheelchair America pageant and some of its state affiliates. And lawyers with the firm have filed more than 200 lawsuits in at least seven states and the District of Columbia on behalf of at least 13 pageant participants, “including state and national titleholders, state coordinators and pageant judges”. Among them: more than two dozen filed in Wisconsin’s Fox Valley since December on behalf of local coordinator Gina Hackel. In March, Janeal Lee of Appleton was stripped by pageant authorities of her title as Ms. Wheelchair Wisconsin; she believes it is because she was critical of the pageant’s role in lawsuit-promotion, although pageant coordinators deny that and say she broke a rule against being photographed out of her wheelchair.
Schwartz Zweben “also conducts seminars instructing contestants on pursuing their legal rights under the disabilities act. Lee remembered a lawyer flying in to give the Wisconsin contestants such a talk at the January pageant in Green Bay.” “The people that are the lawyers, I really like them. We got along,” said Lisa Wartchow, Lee’s 2003 predecessor as Ms. Wheelchair Wisconsin. “But I got the feeling they were there specifically to see if any of us … could bring them to our town and find cases for them.”
To verify Hackel’s claims of ADA violations in the Fox Valley, the law firm retained Ms. Wheelchair Florida 2002 Colleen Macort as a consultant, and she visited the businesses last fall, Zweben said.
Macort, who was named as a plaintiff in 63 ADA accessibility lawsuits filed in Florida by the firm over the past three years, also helped prepare the Wisconsin pageant won by Lee.
The Appleton paper (which is kind enough to quote me as part of its coverage) promises a four-part investigation, of which this is Part 1. (Ed Lowe and J.E. Espino, “Pageant, law firm closely linked”, Appleton Post-Crescent, Jul. 17). For more on mass filings of suits under the Americans with Disabilities Act and parallel state and local statutes, see Mar. 18, May 31 and many other entries on our disabled-rights page.
Supreme Court coverage
Lots of it, from me, Ted, and others, over at Point of Law, including a special page collecting posts relating to the nomination process and the Court.