Update: Virginia not-so-primitive, and state mini-FMAs

The Virginia legislature has voted to repeal the state’s law, the only one of its kind in the nation, prohibiting insurance companies from offering coverage of domestic partners as part of employer-provided health plans (see May 31, 2004, next-to-last paragraph). Gov. Mark Warner (D) has announced his intent to sign the bill. The Virginia Chamber of Commerce backed the repeal, citing principles of economic liberty: “If you believe in a free market, then restrictions like this don’t make any sense,” said Chamber vice president for public policy Stephen D. Haner. The repeal was strenuously opposed, however, by Religious Right figures such as Del. Robert Marshall (R-Manassas), and passed the House of Delegates by only a 49-48 margin (Pamela Stallsmith, “House backs letting firms extend health benefits”, Richmond Times-Dispatch, Feb. 25; Lou Chibbaro, Jr., “Va. DP ban repealed by 1 vote”, Washington Blade, Mar. 4; Tim Hulsey, Feb. 25).

On a related topic, last November Michigan voters approved a constitutional amendment providing that “the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose” (see Nov. 2). At the time, opponents argued that the measure might well be interpreted to forbid cities, state universities and other public entities from offering domestic partnership benefits to their employees, but proponents of the measure dismissed that notion: a spokeswoman for Citizens for the Protection of Marriage, a group heavily backed by Michigan’s seven Catholic dioceses, told the Detroit News “nothing that’s on the books is going to change. We continue to confuse this issue by bringing in speculation.” However, with the amendment now in effect, the state’s attorney general — to cheers from most of the amendment’s organized backers — has issued an advisory opinion stating that it does indeed prohibit the city of Kalamazoo from providing DP benefits to its employees after the expiration of their current union contract. (Ed Finnerty, “City under fire over same-sex benefits plan”, Kalamazoo Gazette, Mar. 17; Claire Cummings and Melissa Domsic, “Cox: No future same-sex employee benefits”, State News (Michigan State U.), Mar. 17). Don Herzog of Left2Right, who has assembled plenty of links on the story, aptly labels the sequence of events “Bait and Switch” (Feb. 11 and Mar. 18). Update: Feb. 17, 2007 (Mich. appeals court rules benefits illegal under amendment).

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They mixed those children up/And not a creature knew it

At North Suburban Medical Center outside Denver, nurses mistakenly gave the wrong newborn to a mother to breast feed. The mistake was discovered after a few minutes, the infant having declined the proffered refreshment, but the woman’s family is now suing and the other family is considering suing too. (“Mom Sues Hospital Claiming She Nursed Wrong Baby”, KMGH-TV, Mar. 16)(title allusion).

ADA filing mills: “drive-by lawsuits”

AP reports on the thriving business of mass-complaint-filing under the Americans with Disabilities Act, citing examples from Nebraska and Oklahoma as well as more familiar filing-mill locales such as California and Florida. As in the recent California case, however (Jan. 8), some judges are not pleased at what they see:

U.S. District Judge Gregory Presnell of Orlando, Fla., noted in a ruling last year that Jorge Luis Rodriguez, a paraplegic, had filed some 200 ADA lawsuits in just a few years, most of them using the same attorney.

“The current ADA lawsuit binge is, therefore, essentially driven by economics — that is the economics of attorney’s fees,” Presnell wrote. He said Rodriguez’s testimony left the impression that he is a “professional pawn in a scheme to bilk attorney’s fees” from those being sued.

(Kevin O’Hanlon, “‘Drive-By Lawsuits’ Raise Business Concern”, AP/San Francisco Chronicle, Mar. 17).

Speaking of the California saga of Jarek Molski (Sept. 21, Nov. 27, Dec. 12, Jan. 8), last month U.S. District Judge Edward Rafeedie extended from Molski to his lawyer, Thomas Frankovich, a requirement to obtain court permission before filing more suits under the act, a sanction ordinarily reserved for the most vexatious and troublesome litigants. Reports the Los Angeles Daily Journal:

The Los Angeles judge accused Molski and Frankovich of seeking quick cash settlements by filing a suspicious number of lawsuits in short periods of time. Their suits alleged handicap-access violations such as steep ramps, heavy doors and narrow hallways.

Rafeedie noted that the complaints are identical, right “down to the typos.” He said he believed the injuries alleged by Molski “are often contrived.”…

Rafeedie criticized at length Frankovich’s practice of sending letters to defendant business owners at the outset of litigation, urging them to settle the cases before hiring defense lawyers.

According to Rafeedie, Frankovich told the defendants that they did not have good legal defenses to the disability claims and that their insurance carriers could cover any damages.

Rafeedie said the letters were unethical and misleading.

However, Molski and Frankovich’s side of the case has retained prominent civil-rights attorney Stephen Yagman, and Yagman says well-known Duke lawprof Erwin Chemerinsky is also joining the plaintiff’s team, so who knows where matters are headed next. (John Ryan, “Jurist Finds Lawyer’s Conduct ‘Plainly Unethical'”, Los Angeles Daily Journal, Feb. 8, not online). More: blogger Patterico is among Yagman’s non-admirers (Jun. 3, 2004).

The resistible rise of Edward Fagan

Newark Star-Ledger’s Kate Coscarelli has a well-reported profile of the braggart impresario who, despite mounting ethical woes and a slew of client complaints, has been much lionized by a gullible press (especially overseas) through a series of international lawsuits from WWII reparations down through the tsunami-warning case. “Interviews and court documents paint a portrait of a colorful, erratic Essex County lawyer who cut his teeth on considerably less-ambitious personal-injury cases and whose troubles mounted over the years, even as he continued to file his ambitious string of international lawsuits.” The Star-Ledger tends to pull down its stories from free access fairly quickly, so don’t postpone reading this one (“How a world-renowned attorney wound up in handcuffs”, Mar. 13). We’ve been following Fagan for years: see Feb. 5, Feb. 16, and so on.

Wrong, with vengeance

My friend Eugene Volokh writes sensibly about nearly every other topic in the world, but yesterday revealed an inexplicable blind spot (Mar. 16) on some basic issues of crime and punishment. John Cole, Jonathan Wilde, Road to Surfdom, and Maimon Schwarzschild, among others, endeavor to set him straight (more trackbacks). Also see Jeff Jacoby, “Where’s the outrage on torture?”, Boston Globe, Mar. 15. More: he now says he’s been persuaded to change his view by Mark Kleiman’s post here, and Kleiman comments in turn.

If you want $$$, just whistle

Mutiny of the bounty-hunted, cont’d: “the whistleblower law, adopted in 1986, [hands] informants as much as a 30% cut of any money recouped by the government. It was pushed by a public-interest lawyer who then launched a practice for whistleblower cases, pocketing millions…. Since then whistleblower cases have boomed, recovering $7.9 billion from offending companies — and paying out $1.3 billion to the insiders who ratted on the wrongdoers.” Unfortunately, the law provides employees with a big financial incentive to step forward with tales of wrongdoing which prove unfounded, or which depend on adverse interpretations of gray areas in law and regulation, or which expose misconduct in which they themselves had been enthusiastic participants. “Most times companies settle, whether they are guilty or not”. (Neil Weinberg, “The Dark Side of Whistleblowing”, Forbes, Mar. 14).

Nastygram in Luskin’s inbox

Economics columnist and blogger Don Luskin, subject to criticism in this space and many others in 2003 when he threatened legal action against another blogger, is now himself being threatened with legal action by Worth Publishers, a company that publishes a textbook by frequent Luskin target Paul Krugman. Worth is alleging defamation and copyright violations arising from one of Luskin’s blog posts last December. Just One Minute has the details (Mar. 8).