Jennifer Diaz, ex-wife of Mississippi Supreme Court Justice Oliver Diaz Jr., has struck a plea agreement with prosecutors and may become “a witness against him and others charged in a federal corruption probe”. “In 2000, Jennifer Diaz received a loan for campaign funds that was guaranteed by prominent trial lawyer Dickie Scruggs in the amount of $80,000,” but did not report the amount as income when Scruggs forgave the debt. Scruggs was not charged in the investigation, which led to indictments of the Diazes, prominent trial lawyer Paul Minor, and two former judges; trial on the charges “is set to begin May 9 in Jackson”. (Jerry Mitchell and Julie Goodman, “Judge’s ex-wife might be prosecution witness, officials say”, Jackson Clarion-Ledger, Apr. 26). See Feb. 22, 2004 and links from there.
“Wealthy suspect is serial litigant”
“During the two decades [millionaire murder defendant Fred] Keller has lived in Palm Beach County, he has filed more than 160 lawsuits. Most were landlord-tenant actions in connection with his commercial real estate empire,” but there were also a large assortment of others, including suits naming several relatives and a former girlfriend against whom he waged a 16-year campaign to collect a $2,225 debt. Keller, 70, is headed for a retrial next month after a jury deadlocked on charges that include “first-degree murder in the death of his fifth wife, Rosemarie, and attempted first-degree murder in the wounding of her brother in November 2003.” (Larry Keller, Palm Beach Post, Apr. 25)(via Sploid).
Ambulance chasing in St. Cloud, MN
In St. Cloud, Minnesota, a drunk started a fight with an employee of the Red Carpet Nightclub, and was on the losing end when a bouncer got involved; Justin Smiley eventually died from injuries sustained when his head hit the concrete. A tort suit in the making, but state ethical rules prohibit soliciting the decedent’s family directly. What to do if you’re an enterprising plaintiff’s lawyer hoping to comply with the letter of the rules? Post an ad in the paper! To wit, one asking “Have you or anyone you know been injured in a local bar?”
“To say that this ad was in poor taste would be akin to describing wearing a halter top to a funeral as being a a bit underdressed,” says a St. Cloud blogger, who reprints the offending ad. King Banian agrees, as do local newspaper readers.
Accolades
It’s time to round up and thank some of those who’ve said or done kind things on our behalf recently. That would include Denise Howell, one of the earliest and best-known lawyer-bloggers (Bag and Baggage), who’s recently helped launch a new group blog at Corante on technology, culture and the law called Between Lawyers, featuring Ernest Svenson and others; in the comments section she calls Overlawyered “an excellent blog I recommend highly” (Mar. 28, comment section). Kevin O’Brien at Aero-News.net calls us “always-interesting” (Apr. 21) and while glad to return that nice compliment we note that it lacks intensity compared with what Donna Baver Rovito, dynamo of Pennsylvania physician activism, wrote recently (Mar. 17):
…just for the record, I would walk on broken glass for Walter Olson and Ted Frank in gratitude for the unbelievable research offered up on their websites Overlawyered.com and PointofLaw.com.
Wow. Evan Schaeffer probably wouldn’t go along completely with that sentiment but has lately extended congratulations to one of us and coffee mugs to both. We’ve also been recommended recently by Frazzle.com (Apr. 23), by Australia’s WogBlog (Apr. 27, calling us “terrific”), and, in Portuguese, Lado Negro da Web (Apr. 24). And the new legal blog aggregator Juris Novus, which fills the same general niche left by the late and lamented DailyWhirl, gives prominent placement to this site among its offerings. More: Precision Blogging (Apr. 29) calls us the “perfect antidote for a beautiful Spring day,” but seems to mean that in a complimentary way.
More on District of Columbia v. Beretta, U.S.A.
We get mail:
You mention in your “District of Columbia v. Beretta, U.S.A.” post that other commentators, such as Mr. Healy and Mr. Levy, have argued that individual states, not the federal government, should be initiating legislation preventing lawsuits against gun manufacturers. The idea is that businesses can “withdraw from doing business in a state that has an oppressive tort regime.” Your counter-argument, however, is that the latter idea “doesn’t help gun manufacturers who don’t do business in the District of Columbia to begin with.”
But, in fact, can’t businesses withdraw from states to the point where these businesses no longer have the “minimum contacts” necessary for the state courts to assert personal jurisdiction over the businesses? Then the businesses would be avoiding the oppressive tort laws of those states, but the states would not have personal jurisdiction for any lawsuits against these businesses.
Chris Schmitthenner
It is correct that gun manufacturers will, in litigation, attempt to get themselves out of the case by arguing lack of personal jurisdiction via such precedents as Asahi Metal Industry Co. Ltd. v. Superior Court of California. However, there are two separate issues that prevent Asahi from providing complete relief.
First, plaintiffs will argue that there are minimum contacts that suffice for personal jurisdiction. They’ll argue that the manufacturers placed ads in magazines that would be seen by residents of the state. They’ll argue purposeful availment under the same factual theories that underlie the “nuisance” claims in the Weinstein litigation. Cf. GTE New Media Services v. BellSouth Corp. (D.C. 2000) (plaintiff entitled to discovery whether defendant, while not physically present in District, intended for District residents to do business with it and caused injury within District); LaMarca v. Pak-Mor Mfg. Co. (N.Y. 2000) (distinguishing Asahi to find personal jurisdiction). In the case of the D.C. city council law, the manufacturers may even have problems to the extent they have lobbyists in the area. A particular judge may well decide that it’s a jury issue, and many manufacturers won’t want to take that risk.
Second, even if D.C. courts do not have personal jurisdiction over the manufacturer, little stops a D.C. plaintiff from suing a gun manufacturer in a state where there is personal jurisdiction. For example, in Peterson v. BASF, Minnesota state courts applied the New Jersey Consumer Fraud Act to a nationwide class; in Ysbrand v. DaimlerChrysler, Oklahoma state courts applied Michigan law. One can easily imagine a D.C. plaintiff and a well-funded attorney filing suit in Los Angeles County against a California manufacturer asking for application of D.C. law. I think, in such a circumstance, gun manufacturers have strong arguments under the principles behind Phillips Petroleum v. Shutts that, if D.C. has no personal jurisdiction over a defendant, choice-of-law principles cannot be used to apply D.C. law to the defendant in a manner consistent with due process. But the question, to my knowledge, has not yet been resolved definitively; the defendants in Peterson and Ysbrand certainly were within the personal jurisdiction of the forum whose law was applied. Cf. also the different case of Keeton v. Hustler Magazine, Inc., where a New York plaintiff was allowed to sue an Ohio/California defendant using New Hampshire courts and laws, solely for the purpose of taking advantage of a favorable statute of limitations.
In short, gun manufacturers have strong arguments for application of the Healy/Levy federalism theory should such a suit actually happen. But plaintiffs get to choose their forum, and a large part of forum-shopping is finding a forum where the courts are less likely to resolve issues of law in favor of the defendant. The advantage of an immunity law is that it removes that uncertainty.
I’ve opened comments on the narrow question of the interrelationship between personal jurisdiction and choice of law. Please keep discussion civil and limited to this issue.
Rogers v. Merck
Until today it looked as if the first Vioxx wrongful-death action to go to trial against Merck & Co. since the painkiller’s withdrawal from the market would be Cheryl Rogers’ lawsuit in an Alabama state court over the death of her late husband Howard. Now, at the request of a federal judge who is presiding over other Vioxx cases, the parties have agreed to postpone trial in the Rogers case, which had been set to start next month. (Theresa Agovino, “First Vioxx trial to be postponed”, AP/Business Week, Apr. 28). That’s a pity, since it would have been illuminating to get to the bottom of the allegations about the case aired in recent weeks. Per AP:
Pharmacists’ rights
Dave Boaz of the Cato Institute, a friend of this site, is debating the matter over at Legal Affairs’ Debate Club this week with Judy Waxman of the National Women’s Law Center. See Apr. 13 (linking to Steve Chapman column)(& letter to the editor, May 10).
Antiquities trade
Various nationalist governments and well-intended archaeologists are trying to shut down the worldwide trade in antiquities, but it’s far from clear that declaring governments to be the sole rightful owners of historical relics leads to better conservation or better public understanding of them. As the U.S. government increasingly shows itself willing to enforce foreign states’ claims of ownership in artifacts, collectors in this country are tangled in legal uncertainties and faced with demands that they affirmatively document long-ago provenances, an often impossible task. And some of the “cultural patrimony” subject to demands for repatriation is of distinctly recent vintage: China seeks title to “calligraphy and paintings dating from as recently as 1912”. (Steven Vincent, “Ancient Treasures for Sale”, Reason, Apr.). Inasmuch as governments such as those of China, Cambodia and Afghanistan have themselves been pre-eminent destroyers of their own store of cultural antiquities — the damage done during China’s Cultural Revolution period is incalculable — the dispersal of an ancient culture’s artworks around the world may turn out to be an important safeguard in making sure that in future such episodes at least a portion of the treasure survives the wreck.
Live from Wendy’s
Anne Haight is photoblogging the scene of the finger incident (Apr. 25)(via Instapundit)(see Apr. 22, etc.)
New job
I’m pleased to announce that I’m taking a dream job: on July 1, I will start at the American Enterprise Institute for Public Policy Research as a resident fellow and director of the AEI Liability Project. I should continue writing for Overlawyered, but I’ll also have the additional time and freedom to do longer and more comprehensive articles and books, as well as the opportunity to work with scholars on empirical and public policy research on litigation reform issues and questions. In the words of Glenn Reynolds, I’ve taken the Boeing, though I’m not sure that metaphor works for a lawyer taking a paycut.
I certainly want to thank the editor of this site; this opportunity wouldn’t have been possible if Walter Olson hadn’t been generous enough over the last couple of years to let me regularly speak on a prominent platform he spent years building. Wally’s been a great mentor and, while we won’t be at the same thinktank, I’m looking forward to the many chances we’re going to have to work together over the years on these issues. I want to thank Jim Copland and the rest of the Manhattan Institute for the same reason.
I leave O’Melveny & Myers on May 6. Even if my first day hadn’t been September 10, 2001, I’d always remember starting at the firm. I’ve had some tremendous experiences with what the American Lawyer magazine called the “Litigation Department of the Year,” including dodging fallen trees in the middle of Hurricane Isabel to make it to the office to write a contingent emergency Supreme Court petition in the event that the Ninth Circuit Court of Appeals issued a mandate to shut down the 2003 California recall election, or working on a gigantic ITC administrative trial where the judge regularly held court until midnight. But it’s the people who have made the last three and a half years great. I’ve gotten to work with some of the great lawyers of today, including, but not limited to, John Beisner, Walter Dellinger, Brian Boyle, Chuck Diamond, Mark Samuels, Pat Lynch, and Rich Parker, as well as wonderful attorneys who will be recognized as the greats of tomorrow, including, but not limited to, Brian Brooks, Ian Simmons, Jessica Davidson Miller, Evelyn Becker, David Applebaum, and Matthew Shors. [bumped by editor; originally posted by Ted 4/26 at 17:59]