Overlawyered: Chronicling The High Cost Of Our Legal System

Go Cathy go

If you oppose one or another agenda item of the organized religious right these days, you’re apt to get accused of “anti-religious bigotry”. Gordon Smith (Apr. 26) provides a handy summary with links of the current flap over judicial nominations. Longtime readers will find it little surprise that I think Cathy Young (“An ugly new chapter in the religious wars”, Boston Globe, Apr. 25) has the better of the argument (also check out Mark Kleiman, Apr. 26) while Prof. Bainbridge is barking up a desperately wrong tree (Apr. 25) when he declares that Senate Democrats’ actions have a disparate impact on nominees “of faith”; the disparate-impact concept has done enough damage already in the realm of employment discrimination law without encouraging it to debilitate the rest of American discourse.

P.S. Were I a Senator I would no doubt happily vote to confirm most of the disputed nominees. But between the Schiavo case and the collaboration of Hill Republicans in demagogic events like “Justice Sunday”, is it any wonder GOP popularity is plummeting?

Law Day

David Giacalone has some reflections (Apr. 24). Irresistible first paragraph:

Sherman Adams, chief of staff to President Eisenhower, almost prevented the creation of Law Day, in 1958. Adams burst into the President’s office yelling “Do not sign that paper praising lawyers!”

Filed under:

Federalism and product liability

Doesn’t a proper respect for federalism require us to stand back and let individual states assert whatever powers they wish to assert on the matter of product liability? No, it doesn’t, because to do so is in many cases to deprive the other states of a chance to adopt their own favored policy. We’ve belabored this point for years (particularly in the gun context; see here and here, for example), but now Eugene Volokh sums up the whole matter (Apr. 25) with great clarity. He concludes with the following points:

Finally, I would caution against appeals to tradition here. It’s true that most tort law has traditionally been state law; but that’s partly because historically most tort liability has involved either entirely intrastate behavior or behavior that’s largely intrastate. In particular, I don’t think there has been a long tradition of tort law imposing liability on defendants’ purely out-of-state behavior in the first place, especially when defendants’ behavior was lawful in the state in which it took place.

Moreover, as the economy has gotten more nationally integrated, Congress has indeed preempted state tort liability in many fields. This is clearest in sectors that have heavily involved interstate behavior, such as air travel; but it has happened even in areas where much more of the behavior is intrastate, such as (in considerable measure) labor law, employee benefits law, and more. Whether these federal actions were right or wrong, they must surely be counted when one is deciding what’s “traditional” here.

Filed under: ,

Virginia Prado Alvarez v. R.J. Reynolds Tobacco Co.

The plaintiff’s husband, Francisco Garcia Lopez, died of lung cancer at the age of 68 after smoking 3 packs a day for 42 years.

Edgardo [García Prado] testified that he “would tell [his father] to stop smoking every day and he would pay no attention.” Still another son, Orlando, testified that, when family members or friends would tell his father that smoking was harmful, he would say “that we all have to die some time from something . . . . He always had the same answer.” Decedent’s brother, Demetrio García Lopez, testified that he had been telling his brother that smoking was harmful since about 1970. Demetrio said he did not know his brother’s perception of the health risks of smoking, noting, “[t]he thing is that he would not pay any attention to anybody, so it just didn’t matter to him.”

Nevertheless, the family sued for “failure to warn” on the grounds that Lopez couldn’t have been expected to know smoking was dangerous. In support, they offered the “expert” testimony of Marly Ferrer Montalvo, who had a bachelor’s degree in history and had written a thesis on Haiti, but she had done a few months of photocopying tobacco advertising for a professor. Thankfully, neither the district court nor the First Circuit bought this, and the case was dismissed on summary judgment, but Alvarez’s lawyer, Herbert Muriel, won a wrongful death jury verdict on this sort of concocted theory in September 2002 before it was thrown out of court. (Irene Cruz-Vargas v JTI Japan Tobacco INT, No. 00-2334 (D.P.R.), aff’d by Irene Cruz-Vargas v. R.J. Reynolds Tobacco Co., 348 F.3d 271 (1st Cir. 2003); Virginia Prado Alvarez v. R.J. Reynolds Tobacco Co., No. 04-1695 (1st Cir. Apr. 21, 2005)).

Filed under:

Trauma from seeing bottled fly: C$340,000

Neither Waddah (Martin) Mustapha, of Windsor, Ontario nor his wife Lynn consumed the dead fly they found in a bottle of Culligan bottled water, nor did they drink any of the water that had come in contact with it, since they discovered the fly before opening the bottle. They were so traumatized, however, that a court has just applied the calamine of cash to their psychic wounds to the extent of a third of a million dollars (Canadian). Mr. Mustapha, a hairstylist, said he had nightmares and lost sleep after the fly incident; he “also testified that he lost his sense of humour and became argumentative and edgy,” among other ill consequences. Let’s hope the couple never goes on a picnic. (Chris Thompson, “Man wins $340,000 in bottled fly lawsuit”, Windsor Star, Apr. 23). Update Feb. 17, 2007: appeals court reverses judgment and awards $30K in costs to defendant Culligan; May 23, 2008: Supreme Court upholds Culligan win.

Filed under: ,

Louisiana 30% responsible for drunk driver’s head-on collision

It was foggy on the morning of January 31, 1997, when James Bowman decided to pass a truck on a two-lane bridge in Morganza, Louisiana. Unfortunately, this resulted in a head-on collision with a car driven by 22-year-old Deependra Charan, and Charan was paralyzed. A jury found $21 million in damages, and attributed 30% of the accident to the Louisiana Department of Transportation for not building a second bridge. Because, after all, head-on collisions in foggy weather never happen on two-lane roads that aren’t bridges. Because Louisiana adopted the tort reform of abolishing joint and several liability, taxpayers are stuck with only a bit over $6 million, rather than the entire bill. (Roy Pitchford, “$21 million awarded in La. 1 crash”, The Advocate, Apr. 23).

Though the press coverage isn’t clear, I’ve confirmed that the case involves the Morganza Spillway, which is a narrow four-mile long flood-control structure that would not be feasible to duplicate. The plaintiffs’ alternative suggestion, a barrier between the two lanes, may or may not be possible, but would certainly make crossing the bridge behind slow traffic (the Spillway seems to be a popular bicycle touring spot) unbearable.

Not included in the press coverage: the jury did not get to hear that James Bowman had a blood-alcohol level of .10, nor that the accident was his third DWI.

Filed under:

More on the juror and the newspaper

We get mail:

I read your post about the juror who was caught buying a newspaper during a murder trial with interest because my brother, William Boge, was one of the defense attorneys.

While I agree that simply buying a newspaper when instructed not to by the judge (especially if the trial isn’t covered in that paper) is not necessarily grounds for an automatic mistrial, I think there were some important points left out of this discussion that makes the mistrial more reasonable.

First, the juror bought two newspapers, not one. And it’s reasonable to assume if she bought newspapers that day, she probably bought them other days as well. And one of the papers she bought (the Potomac News) was a local one, and covered many aspects of the trial, including information NOT allowed to be presented at the trial. So, who’s to say she didn’t read the papers on those days, too?

Second, because it was the defense attorney (John Shields) who accused her of buying the paper (and the Judge asked her directly if she had seen Shields at the 7-11 that morning), she would understandably hold some anger against him, which could impair her ability to make a fair decision in the case.

Finally, this case was entirely circumstantial. There was not one piece of evidence linking the defendant to the crime. Based on this, my guess is that the judge was very hesitant to let stand a murder conviction and a 40-year prison term, based solely on circumstantial evidence, if there was any doubt that the jury had been influenced by outside evidence.

Regards,
Matt Boge

The first point is certainly a valid argument. If the judge made a finding that the juror was prejudiced from reading newspapers other than the ones seen being bought, that could be grounds for a mistrial. We don’t know from the press accounts whether the judge actually made this finding, which was certainly possible: on April 12, the Potomac News reported about an inadmissible affidavit Marissa Lara made before her murder where she accused her estranged husband of raping and threatening to kill her. But why not question the other jurors to determine if Lindy Heaster had reported this information in deliberations?

I don’t find the second argument persuasive. If this were a legitimate reason to find prejudice, an attorney could deliberately try to alienate jurors and then complain that the juror might wish to retaliate. If it were possible for the judge to do so (and it may not have been), Judge Alston should have taken steps to quiz the juror about the 7-11 purchase without letting it be known who saw the juror.

Nearly every murder case involves solely “circumstantial evidence,” which just means non-eyewitness testimony. And the circumstantial evidence here was strong: Gerardo Lara had the motive to kill his estranged wife; Lara had previously violently attacked her (and someone trying to rescue her) in a different incident in front of witnesses; Lara was caught trying to get his sons to lie about an alibi; the victim’s body was found in a Mitsubishi, wrapped in a sleeping bag resembling that of one of Lara’s sons, and both sets of the keys to the Mitsubishi were found in Lara’s home–including a set in a briefcase hidden underneath the bed. All of that would be sufficient evidence to convict Gerardo Lara of murder even if one completely discounts the jailhouse confession he allegedly made.

Other readers have asked whether the judge has the power to issue a $30,000 civil contempt fine to compensate for the costs of the mistrial. The contempt proceeding on July 1 would probably have to be a criminal contempt proceeding, though, if so, it contradicts the press account stating that the judge has already held Heaster in contempt. The proposed fine is likely substantial enough to entitle Heaster to a jury trial; Virginia law has in a similar case limited civil contempt fines to $50. Brown v. Commonwealth, 26 Va. App. 758, 497 S.E.2d 147 (1998). But all of this remains to be litigated, and, if I were the juror, I would probably be more concerned about the possible felony perjury charges the peeved prosecutor is likely to bring.

Filed under:

New post category: “Eat, Drink and Be Merry”

It’s been a while since we’ve added any new topical categories, so we’ve just created one that’s been overdue: Eat Drink and Be Merry, covering lawsuits over bacon cheeseburgers and obesity, booze sales, foreign objects that turn up in the chili or bottled water, calorie-labeling goofs, and, of course, hot coffee spills. We might throw in a few related stories about claims of “addictive” entertainment, too. Several of these topics are obviously closely related to the themes of our ever-popular personal responsibility subpage, which will remain unchanged.

A word about our topical pages (which are a great way to use the site for research, or just browse what we’ve published on a topic you find of interest): our subpage on product liability is a catch-all for cases in that category that don’t fit into the more specific pages covering guns, tobacco, cars, aircraft, microchips, and so forth (and now food and drink). If you’re interested in product liability as a general subject, you should consider visiting these other pages too. And our subpage on environmental law ranges somewhat afield to take in topics that include zoning, landmark preservation, mold claims and (always a favorite) animal rights. The full list of topics can be found along the right column of Overlawyered’s front page, just below the list of archives arranged by month.

Filed under: , , , ,

“Which merger deals draw lawsuits?”

…asks Forbes. Its answer: “The ones that are sure to generate big fees, of course.” University of Arizona law professor Elliott Weiss and New York University economist Lawrence White studied lawsuits filed in Delaware Chancery Court over mergers of Delaware companies between 1999 and 2001. Of 564 mergers, 104 attracted lawsuits, and there was a pattern: the deals sued over “were among the largest, often involved all-cash offers and in more than half the cases the acquiring company owned stock in the firm it was buying.” As it happens, “Delaware law subjects cash takeovers and buyouts by controlling shareholders to much tougher scrutiny than most stock-swap mergers” and in such deals acquirers frequently anticipate negotiations with independent directors, and thus enter a somewhat lower initial bid to leave scope for concessions. It is common, however, for the lawyers who sue to wait for the deal price to rise and then claim credit for having made that happen, thus entitling them to compensation: “according to the study, they sought and got fees averaging $1,800 an hour in the cases where the price rose.” The authors “conclude that in many cases lawyers are ‘exploiting their “license to litigate” primarily to enrich themselves.'” (Daniel Fisher, “Free Riders”, Feb. 14).

Filed under: , ,