Overlawyered: Chronicling The High Cost Of Our Legal System

More on Pittsburgh RR crossing case

Reader Steve Headley advises us that there have been follow-ups to the case (publicized worldwide) of Patricia Frankhouser of Jeannette, Pa., who’s suing the Norfolk Southern railway over a broken finger and other injuries she suffered in an encounter with one of its freight trains; the suit, among its other contentions, claimed the railroad should have warned that walking along the tracks was dangerous and should have yielded the right of way (see Nov. 12). After the original reports in the Pittsburgh Tribune-Review and Post-Gazette, and a Tribune-Review letter to the editor and editorial critical of the suit, attorney Harry F. Smail Jr. wrote in to the paper with his side of the story (Nov. 16). Smail argues that the case is meritorious because Frankhouser was earlier acquitted of charges of criminal trespass arising from being on the tracks. His response drew another critical letter to the editor (Nov. 17). (& update Feb. 20).

Attorney Smail, incidentally, has lately been involved in another colorful case, successfully representing a woman who passed a supposed $200 bill at a Fashion Bug; neither she nor the store clerk realized that there is no $200 denomination and that the bill was a joke replica with pictures and other references to President George W. Bush, Jr. (Bob Stiles, “Charges withdrawn against woman who used bogus bill”, Pittsburgh Tribune-Review, Nov. 13; “Charges Dropped in Bogus Bush Bill Case”, The Guardian (UK), Nov. 15).

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Church air called hazardous

Just when you thought it was safe to run inside and pray: “Air inside churches may be a bigger health risk than that beside major roads, research suggests.” Candles and incense are deemed likely culprits for the prevailing high levels of polycyclic hydrocarbons and particulates, the latter of which were found at 12 to 20 times permissible EU levels. (“Church air is ‘threat to health'”, BBC, Nov. 20). Libertarian Samizdata has a rather drastic suggestion for what to do about the new findings. Another possibility, of course, is that the official EU hazard limits are set at a super-cautious level that has little to do with the amount of risk most people would consider it reasonable to bear. More on the candle menace: Jun. 19, 2001 (EPA advisory); Nov. 4-5, 2002 (Calif. “right-to-know” suits against candle makers).

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Matchmaker liability

Boy meets girl. Boy marries girl and later assaults her. Girl successfully sues Internet foreign-brides matchmaking agency Encounters International for as much as $434,000 before a Baltimore jury, “for failing to screen its male clients and failing to tell her about the so-called battered spouse waiver, a provision in immigration law intended to help foreign nationals escape abusive relationships without fear of automatic deportation.” (Eric Rich, “Battered Wife Wins Suit Against Md. Matchmaker”, Washington Post, Nov. 19). More: Nadya Labi covered the Fox-Spivack lawsuit in Legal Affairs’ Jan.-Feb issue. And the text of the 1996 federal law on mail-order brides is here.

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Dodgeball unsafe for 7-year-olds, suit says

Looks like all those school districts that banned dodgeball, and the professor who described the popular kids’ game as “litigation waiting to happen” (see Jun. 13, 2001), were on to something. A New York appeals court has rejected a request by the Vestal Central School District to dismiss a suit demanding compensation for the injury that seven-year-old Heather Lindaman suffered when she “became entangled with another student during the game, fell on a hardwood floor and fractured her left arm”. The school said the players were adequately supervised, but the court said a jury should decide whether second graders are too young for the game. (Yancey Roy, “Vestal lawsuit could put dodgeball on trial”, Binghamton Press & Sun-Bulletin, Nov. 20) David Giacalone comments.

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Update: “Judge reinstates $30 million verdict”

Geoffrey Fieger’s $30 million verdict in the cerebral-palsy case Hollins v. Jordan (Oct. 11), thrown out by one judge, has been reinstated by a second judge. The press coverage isn’t clear why Judge Lawther “voluntarily removed himself” from the case; Fieger had earlier threatened to file a motion to remove the judge (Aug. 31). Fieger isn’t satisfied with $30 million; he’s going to ask the court for an additional $50 million in “pre-judgment interest.” The defendants have not had an opportunity to comment, but they’ll presumably appeal to a higher court on the grounds that led the first judge to throw out the verdict. (James F. McCarty, Cleveland Plain-Dealer, Nov. 20).

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Update: Canadian loser-pays

In my brief essay on loser-pays posted early in the history of this site, I observed: “While some loser-pays jurisdictions suspend the principle [of costs following the event] for what are viewed as true ‘cases of first impression’ where there is no established law, most are skeptical about applying any exemption more liberally, as one sees in this 1996 case from Alberta, Canada.” A belated update on that case, Vriend v. Alberta: on appeal to the Supreme Court of Canada, the plaintiff in 1998 won his case on the merits (with an award of costs), thus presumably escaping any need to pay costs arising from his “case of first impression” loss at the earlier stage. Thanks to Doris Wilson of the Alberta Law Reform Institute for calling my attention to this.

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Update: Dow Jones settles online defamation suit

Dow Jones & Co. “has settled a defamation lawsuit launched against it by an Australian mining magnate”, agreeing to pay $137,500 plus $306,000 in legal fees to Joe Gutnick and issuing a statement in court that it never intended to suggest that he was a client of a Melbourne man jailed for financial misdeeds. The case drew wide attention (see Jan. 18-20, 2002) primarily because it occasioned a “landmark ruling in December 2002 [in which] the High Court of Australia unanimously ruled that the case could be heard in Gutnick’s home state of Victoria because people there could have read the article online. … The settlement is not likely to affect the precedent already set, said University of Ottawa professor Michael Geist, who noted courts in the United Kingdom and Canada have already cited the Australian decision in asserting jurisdiction over other Internet defamation cases.” (“Dow Jones Settles Precedent-Setting Internet Defamation Suit”, AP/Editor & Publisher, Nov. 16).

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