The Supreme Court has let stand a lawsuit that aims to hold gunmakers liable for the 1999 shooting death of letter carrier Joseph Ileto.
Previous Overlawyered coverage of the case is here, here, here and here.
Supreme Court takes no action on Florida adoption law
The Supreme Court denied certiorari on an appeal of the Eleventh Circuit’s decision that let stand a Florida law that forbids gays from adopting. Professor Volokh comments.
A simple ‘Thank you’ would do
A French researcher, Guillaume Tena, found several holes in the Viguard anti-virus program that a malicious hacker could have exploited to nullify the software’s protections. What did he do? He published his findings.
The company responsible for the holy software, Tegam, sued for copyright violation. The company is asking for a 6000 euro fine and a four month jail term. A related civil case asks for 900,000 euros in damages.
The researcher’s website says he “showed how the program worked, demonstrated a few security flaws and carried out some tests with real viruses. Unlike the advertising claimed, this software didn’t detect and stop ?100 percent of viruses?.”
From the ZDNet Australia story:
According to French security Web site K-OTik, Tena had technically broken copyright laws because his exploits were “not for personal use, but were communicated to a third party”.
However, K-OTik, which regularly publishes exploit codes, claims that the ruling could create a precedent so vulnerabilities in software, however critical, could not be declared publicly without prior agreement from the software publisher.
K-OTik?s editors say the ruling is “unimaginable and unacceptable in any other field of scientific research”.
” Security researcher to be jailed for finding bugs in software?”, ZDNet Australia, Jan. 11.
Car veers into truck’s lane
…and so a jury has ordered the trucking company, Auction Transport Inc., to pay $22.5 million over the resulting injuries to a young passenger in the accident, which occurred at rush hour on Kansas City’s I-435. Mary Coleman’s car, allegedly sideswiped by a third vehicle, had careened in front of the truck, but attorneys argued that the truck driver had been “driving too fast in congested traffic and not watching the road.” The jury found the trucking company responsible for just less than half the fault of the accident — a greater share of fault than the allegedly sideswiping driver — and Coleman for hardly any of it; the application of Missouri’s joint and several liability rule ensures that the company will be on the hook for nearly the entire amount. Good thing the truck had not swerved unpredictably into the car’s path to cause the accident — then it would have been more the fault of the car than of any other party, right? (Joe Lambe, “Crash victim awarded millions”, Kansas City Star, Sept. 25). More: CoyoteBlog comments.
Oklahoma high court judge sues colleagues
Frontiers of age discrimination: Marian P. Opala, a justice of the Oklahoma Supreme Court, has gone to federal court to sue all eight of his colleagues charging age bias. Members of the court select one of their number to serve as chief justice, and for years the seat has rotated automatically among members, but lately, as Opala’s turn was drawing near, the court voted to change the rules to adopt a different selection method. Eugene Volokh called the justice’s equal protection claim “very, very weak” and said it was annoying to see an official of a state court seek the intervention of a federal court against the authority of his own. (Adam Liptak, “Oklahoma Judge, 83, Files Bias Suit Against Colleagues”, New York Times, Jan. 5).
Ted’s mythbusting at Point of Law
Maybe he’s too modest to mention it here, but over at our sister website, Ted has been on a roll with several devastating posts correcting fallacies that have circulated during the past week’s intense news coverage of liability reform:
* The George Soros-sponsored, David Brock-run media gadfly organization, Media Matters for America, recently criticized the Washington Post for running coverage that was not (to its taste) sufficiently critical of medical malpractice reform. Trouble is, as Ted shows, Media Matters itself blundered into whopping errors on the subject, badly misrepresenting the views of the Congressional Budget Office (CBO). “This is what MMFA gets for relying on ATLA fact sheets instead of primary sources.”
* Pointing to evidence that payouts by 98 Massachusetts doctors accounted for more than 13 percent of one year’s malpractice payouts in the state, the New York Times concluded that cracking down on bad doctors could greatly help the malpractice crisis. But the numbers announced in the study warrant no such conclusion;
* The Association of Trial Lawyers of America is out with a supposed fact sheet on medical malpractice, which (no surprise) Ted finds to be full of gross distortions. Equally embarrassing, he catches Illinois Democratic Congresswoman Jan Schakowsky posting on her official website a huge chunk of the lame ATLA argumentation, cut and pasted without acknowledgment of its interest-group origins. (Allen Adomite at Illinois Civil Justice League has more).
* Finally, Ted discovers the Alabama Trial Lawyers Association claiming that a profitable year in the property insurance business is reason to doubt that there’s a crisis in the liability insurance business.
Memo to fireworks abusers
At Forest Avenue and Sixteenth Street in Des Moines, two miscreant youths who’d been riding with friends in a rented 1999 Chevy Blazer began shooting off a large quantity of fireworks at persons and vehicles in the neighborhood. What happened next is somewhat muddled by the contradictory accounts of various witnesses, but involved the detonation of the substantial trove of fireworks in the Blazer’s cargo area, severely injuring several of the car’s occupants. Last month the Iowa Supreme Court ruled against a lawsuit seeking to make Enterprise Rent-a-Car pay for the injuries through vicarious liability, saying the accident could not reasonably be attributed to the driving of the young woman who’d rented the vehicle. (Wells v. Whitaker and Enterprise). Random Mentality (Dec. 10) has more.
Update: Yet more fen-phen guilty pleas
Another two defendants pleaded guilty in the Fayette, Miss. fen-phen fraud case (see Nov. 14, Oct. 20 and links from there), including one who’d previously been vocal in proclaiming her innocence. Eva Johnson, 55, “allegedly bought a Jaguar with some of the $2.75 million she helped relatives claim” from makers of the diet-drug combination; she “told [federal judge William] Barbour [Jr.] she takes medication for schizophrenia.” (Jimmie E. Gates, “Two more plead guilty in Fen-Phen fraud case”, Jackson Clarion Ledger, Dec. 29; “2 charged in Fen-Phen case plead guilty”, Dec. 30). Another participant in the scheme, Lillie M. Walker, was sentenced to ten months in federal prison and restitution of $250,000 for her role. (Jeremy Hudson, “Woman sentenced in Fen-Phen scam”, Dec. 22).
Welcome WAMT listeners
I was a guest on the Tampa program “Legal Forum” this afternoon, talking about Overlawyered and medical malpractice reform.
Overlawyered’s most recent posts on medical malpractice can be found here. You may also be interested in our more academically-inclined sister weblog, Point of Law, which also has a section about medicine and law, as well as two recent roundtables on the subject, including a debate between me and the head of Doctors for Kerry on the Bush malpractice proposal.
For more information on the Florida medical ballot initiatives, see our sister website Point Of Law, May 19, Jul. 20, Aug. 4, Nov. 2 first, second and third posts, Nov. 4, Nov. 5, and also Walter Olson’s WSJ piece of Oct. 29.
Host Matt Justine surprised me when he said that Florida medical malpractice payouts had been going down. It turns out not to be the case. According to a November 2002 report by Milliman USA, medical liability losses paid by Florida insurers increased 150% between 1991 and 2000.
Update: Molski, Frankovich unabashed
In California last month (see Dec. 12) federal judge Edward Rafeedie ruled that perennial ADA plaintiff Jarek Molski is a “vexatious litigant” who runs a “scheme of systematic extortion” by filing mass disabled-rights complaints; Rafeedie also sharply criticized Molski’s lawyer, Thomas Frankovich. But that doesn’t seem to have cramped the duo’s style much: Frankovich says he intends, on behalf of Molski, to “refile a lawsuit against Peachy Canyon Winery within two weeks in state Superior Court, asking for money because the tasting room didn’t comply with the ADA when he visited in 2003. ‘We’ve got to get compensated for the work we did to fix it,’ Frankovich said. ‘We went out and had an expert inspect it, told them what was wrong and tried to get a settlement.'” The winery’s lawyer says it is now in compliance with ADA standards, but Frankovich says that wasn’t the case in 2003. (Ryan Huff, “Winery will face ADA suit again”, San Luis Obispo Tribune, Jan. 5). (& letter to the editor, Mar. 15 (another frequent Calif. ADA filer)).