Overlawyered: Chronicling The High Cost Of Our Legal System

Welcome Forbes readers

We’re honored for this website to have such a prominent place in a column in the latest Forbes. (William Baldwin, “Seventh-Amendment Follies”, Apr. 11). Links to the stories mentioned: $27 million Ford Escort verdict; $49 million punitive damage Dodge Caravan verdict and follow-up; $4.9 billion Chevy Malibu verdict. You may also be interested in our related site, Point of Law, which has a more academic focus, including a section on the issue of science and the courts.

The latest issue of Forbes also has an excellent story about the junk science behind mold litigation. Dr. Gary Ordog travels the country, diagnosing just about every conceivable illness as being caused by exposure to mold.

A California judge once said Ordog “lacks credibility completely” after he testified that he was chief toxicologist at Henry Mayo Newhall Memorial Hospital in Santa Clarita, which has no such department; that he’d published “hundreds” of scholarly articles, when a search of the PubMed database turns up fewer than 70, almost all of them dealing with gunshot wounds and trauma; and that former President Bill Clinton called him personally to run a special mold commission for the Environmental Protection Agency, even though an EPA spokesman says the agency’s authority doesn’t include indoor air quality. Ordog “is completely abusing the system,” says James Robie, a defense lawyer with Robie & Matthai in Los Angeles who has cross-examined Ordog several times. “He is possibly the most dishonest man I have ever met.”

(Daniel Fisher, “Dr. Mold”, Apr. 11). For more on mold litigation, see May 26 and links therein.

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Florida’s legislature inviting plaintiffs’ lawyers to re-enact Scopes?

Two bad ideas in one: A Florida state House committee voted 6-2 to forward on H-837, a bill some legislators say will give university students a legal cause of action to sue universities and professors who “ridicule” their beliefs.

“Some professors say, ‘Evolution is a fact. I don’t want to hear about Intelligent Design, and if you don’t like it, there’s the door,'” [Rep. Dennis Baxley, R-Ocala] said, citing one example when he thought a student should sue.

The bill is expected to pass the Florida House. It’s not quite clear that the bill will have the effect of opening the courtrooms to every crackpot student offended by a professor’s lecture, but it’s not comforting to see the absence of a denial. (James Vanlandingham, “Capitol bill aims to control ‘leftist’ profs”, Independent Florida Alligator, Mar. 23; Joe Follick, “House OKs Student `Free Speech’ Bill”, Lakeland Ledger, Mar. 23; James Vanlandingham, “Pending academic freedom bill comes under fire”, Independent Florida Alligator, Mar. 24).

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Pill-splitting lawsuit

Consumers Union, the publisher of Consumer Reports and prominent member of the Litigation Lobby, recommends that readers save money on prescription drugs by buying higher dosage pills and dividing them with a pill-splitter to get the correct dosage. They’re not the only ones who try to save money this way: many HMOs implement the same policy. There’s no evidence that this has injured anyone, but plaintiffs’ lawyers sued Kaiser, anyway, claiming it was consumer fraud, and seeking half a billion dollars. Kaiser disputes the contention that the policy is mandatory; they say their policy is voluntary, and applies only to a handful of “scored” pills where differences in dosage would not be critical. Lower courts granted summary judgment on the case, and this week the California Supreme Court gave it the final coup de grace by refusing to hear an appeal. While press coverage suggests that the retroactivity of Proposition 64 could have been decided by this case, the lower courts decided it without resort to the new law, which would’ve precluded the suit in the first instance. (Dan Walters, “Businesses win twice in tort battles, but …”, Sacramento Bee/Victorville Daily Press, Mar. 9; Vicki Lankarge, “Study: Pill-Splitting Saves Money, Is Safe”, Health Care News, Dec. 1, 2002; “Kaiser sued over pill splitting”, American Medical News, Dec. 25, 2000; CJAC press release, Mar. 8; Timmis v. Kaiser Permanente, No. A102962, 2004 Cal App Unpub Lexis 11553 (Dec. 21, 2004)). More: see Jun. 13.

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Australia: City 75% liable because “No Diving” sign wasn’t explicit enough

Philip James Dederer acknowledges seeing a “No Diving” sign on the Foster/Tuncurry Bridge in New South Wales, but dove anyway, and the 14-year-old became paralyzed as a result. He sued: “[The sign] just told me I shouldn’t dive – it did not put any danger into it.” The court bought the argument, and Australian taxpayers are now on the hook for A$1,050,000. (Dederer v. Roads and Traffic Authority, 2005 NSWSC 185; “Bridge diving victim awarded $1m”, Sydney Morning Herald, Mar. 18). An Australian blawger, David Starkoff, defends the judgment.

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Weidner v. United States: blame the controllers because pilot became disoriented

Yet it has become customary for lawsuits to make grand charges that controllers are responsible for crashes — even in cases where the responsibility clearly resided between the left and right earcups of the pilot’s headset. Why do they do this? It isn’t because lawyers are against controllers (at least, not any more than they are against all of us). It’s because controllers work for the FAA — part of the federal government — the ultimate in deep pockets. In other words, it’s the reason lawyers do anything: in the legal profession, it’s all about money.

Aero-News.Net has an impressive refutation of a ruling against the FAA in a case involving the crash of an inexperienced lawyer-pilot, Donald Weidner, that killed him and three passengers. The FAA, found 65% responsible by Judge Timothy Corrigan in a bench trial, settled for $9.5 million. (Kevin R.C. O’Brien, “I Blew The ILS: It Must Be YOUR Fault”, Mar. 21 and Mar. 22; “FAA To Pay $9.5 Million To Families From JIA Plane Crash”, WJXT-4, Mar. 9; “Judge Finds FAA Largely To Blame For 2001 Plane Crash”, WJXT-4, Nov. 16; Case No. 3:02-cv-01114-TJC-MCR (M.D. Fla.)).

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Chicago firefighters exam

In 1995, Chicago paid $5 million for an African-American consultant to work with a blue-ribbon panel to devise a race-neutral exam for promoting firefighters. Unfortunately, in the end result, whites were twice as likely to score “well-qualified” as blacks. In 2002, when it ran out of candidates who scored 89, Chicago stopped requiring that promoted firefighters score that high, and a federal district court has decided as a result that the test was racially discriminatory for the previous seven years. Chicago taxpayers may be on the hook for as much as an additional $80 million in back pay and front pay. (Glenn Jeffers, “Judge rules city fire exam biased”, Chicago Tribune, Mar. 23; AP/Chicago Sun-Times, Mar. 23; Fran Spielman, “Exam bias ruling may cost city $80 million in firefighter lawsuit”, Chicago Sun-Times, Mar. 24).

A question for readers: none of the press has mentioned it, but, in 2001, a labor arbitrator ruled that the city discriminates against whites when it promotes a lower-scoring minority over a white. (Fran Spielman, “City ordered to promote white firefighters”, Chicago Sun-Times, Apr. 14, 2001). In 2002, a federal jury found that the 1986 test was fair, and that the city discriminated by promoting lower-scoring minorities over whites, awarding millions. (AP, May 18, 2002). These would appear to put the city in an impossible position. Or has something happened in the interim that obviates these earlier rulings? As an experiment, I’ve opened comments; please restrict your remarks to this latter question, and please remain civil and respectful.

Update: the 2002 decision’s reverse-discrimination finding was affirmed in Biondo v. Chicago (7th Cir. Aug. 27, 2004), though the damages award was vacated. (Schrank blog discussion).

The decisions are arguably reconcilable: the two exams are different; Biondo involved an explicit quota. On the other hand, page 5 of the Biondo slip opinion explicitly endorsed the methodology used by Chicago that the district court condemned this week.

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Fieger Update: Gilbert v. Ferry

You may recall the $21 million verdict thrown out by the Michigan Supreme Court last year (Jul. 24) because of misconduct by Geoffrey Fieger at trial. (Gilbert v. DaimlerChrysler (Mich. 2004); parties’ briefs; Brian Dickerson, “Judges use Fieger tactics to rebuke him”, Detroit Free Press, Jul. 26; yclipse blog). Fieger had had a buddy “expert” social worker testify that the alleged harassment caused Gilbert’s pancreatitis, and told the jury that Gilbert was like a “Holocaust victim.”

After losing, Fieger responded by filing ethics complaints against the four justices who ruled against him, and, when that didn’t work, filed a civil rights lawsuit in federal court against the justices. This tactic, far more often seen performed by unstable pro se litigants than by prominent trial attorneys, was, as could have been expected, rejected by the trial court and then by the federal court of appeals. (Gilbert v. Ferry (6th Cir. Mar. 10, 2005), affirming 298 F. Supp. 2d 606 (E.D. Mich. 2004)) (via yclipse).

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“We’re having a midwife crisis”

Chambersburg, Pa., is losing its only independent certified nurse-midwife. Karen Brindle “had to close her practice because of liability issues with Keystone Women’s Care. The closing leaves more than 60 women due to deliver in the next few weeks scrambling to find someone to deliver their babies.” A new group calling itself “Mothers and Others for Midwifery-PA”, which will work to change the law, held a rally for Brindle. (Willa Jessee, “Over 100 people support midwife”, Carlisle Sentinel, Mar. 20). For more on midwives, see Mar. 15, 2004 and links from there, Aug. 1, and, on Point of Law, Mar. 6 of this year.

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Update: “Apprentice” suit settles

Donald Trump’s reality show The Apprentice has settled a discrimination suit brought by a disabled attorney in February (see Feb. 10). The producers will pay out no money, but “the online application for potential Apprentice contestants has been changed to encourage the disabled to apply”. (Charlie Amter, “‘Apprentice’ Discrimination Suit Settled”, EOnline, Mar. 9)(via George Lenard).

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Morgan Spurlock sued

Attorney Samuel Hirsch, who filed the first lawsuits blaming fast-food chains for his clients’ obesity, apparently isn’t happy over his unflattering portrayal in the documentary Super Size Me (see last Aug. 9). According to the New York Observer, Hirsch is suing filmmaker Morgan Spurlock and Samuel Goldwyn Films charging “Negligence, Unauthorized Use of Likeness, Disparagement to Reputation, and Defamation of Character, Fraudulent Inducement, False Misrepresentation, Damage to Business Reputation”; he’s seeking compensatory and punitive damages and “disgorgement of profits.” (Jake Brooks, “Spurlock’s Super Size Lawsuit”, New York Observer, Mar. 7)(likely to rotate off free site soon).

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