Overlawyered: Chronicling The High Cost Of Our Legal System

Human subjects protection regs

Federal regulations require universities to maintain something called an Institutional Review Board which preapproves research on human subjects to make sure it is not improperly injurious to the persons being studied. There is a certain kind of logic to such requirements when it comes to, say, invasive medical experiments. “Yet the human subjects protection racket has been able to extend its claws around social science research, subjecting it to the same rigmarole as demanded of the medical types,” writes Mark Kleiman (Sept. 8). “This is stupid, because almost no social science research actually poses important risks to its subjects that couldn’t be handled perfectly well by an informed-consent system audited retrospectively rather than a pre-approval system”. He adds:

Worse, since social-science research is often controversial, the risks of censorship are much more prominent, especially given diversity requirements demanding, for example, that a representative of prisoners be involved in clearing any study involving prisoners.

Any collection of data from an identifiable person counts as “human-subjects research,” even, for example, interviewing a group of judges about how they handle probation revocations. How answering such questions puts the judge at risk is more than I can figure out. And heaven help you if you submit a proposal saying “I intend to ask judges what happens in probation cases.” That’s far too vague: you have to submit a questionnaire for review, as if you knew in advance what questions were going to turn out to be relevant.

Update: for more, see Point of Law, Dec. 7, 2006 (paper by Dale Carpenter).

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Wrongful birth (cont’d)

Yorba Linda, Calif.: The basic fact pattern underlying this wrongful-birth suit will be familiar to longtime readers of this site (Aug. 22-23, 2001, Jul. 1, 2003, etc.): little Leilani Duff’s parents say they love her, but also say they’d have aborted her if they’d realized she was at risk of spina bifida, so they’re suing their obstetrician, Dr. William Dieterich, for unspecified damages. (Claire Luna, “If Only We’d Known, Parents Say”, Los Angeles Times, Sept. 9). The L.A. Times’s account includes the following comment about the incentives this burgeoning field of litigation may be sending to doctors practicing in the field:

The rise in wrongful-life suits and the threat of legal responsibility for a child’s defects puts obstetricians in the uncomfortable position of recommending, if not insisting on, abortion when there is the slightest doubt, said one physician.

“On one side you have a liability mess that puts you on the hook for the rest of the child’s life,” said Dr. T. Murphy Goodwin, chief of maternal-fetal medicine at USC’s Keck School of Medicine [and also, as the article notes, a member of the American Assn. of Pro-Life Obstetricians and Gynecologists].

“The other side, you have carte blanche to avoid the potential for these kinds of problems by shading the discussion to advocate abortion. There’s almost no adverse reaction if a doctor tells someone to terminate a pregnancy based on faulty information.”

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Farmer’s market veggie tumble

Stamford, Ct.: “A senior citizen who fractured her hip when she tripped over vegetables at a farmer’s market two years ago is suing the city and the downtown business improvement district that sponsored the event.” (Donna Porstner, “Woman trips on vegetables, files lawsuit”, Stamford Advocate, Sept. 10). For more on the menace of open-air food markets, see Jul. 14 (suits over slaughter by driver of runaway car at Santa Monica market; on which, see this commentary as well at LAVoice.org). If we sue them enough, maybe they’ll go away and we can all get back to patronizing supermarket chains with their full-time risk managers and security staffs — so much safer that way.

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House votes to strengthen sanctions against meritless suits

By a 229-174 vote, largely along party lines, the U.S. House of Representatives has passed the proposed Lawsuit Abuse Reduction Act, sponsored by Rep. Lamar Smith (R-Texas); it now goes on to an uncertain future in the Senate. (see Point of Law Sept. 9, Aug. 17, Jun. 21; this site, Jun. 21). (Bloomberg, Reuters, AP). The bill would restore the stronger Rule 11 standards which used to entitle victims of meritless litigation in federal court to recompense in the form of sanctions: a previous Congress, following a major push by the litigation lobby, gutted Rule 11 in 1993. A source on Capitol Hill who is in a position to know suggests that we might want to provide a link to the House Judiciary Committee Report on today’s bill, the Lawsuit Abuse Reduction Act. “The report compiles in one place a ton of information on the problem of lawsuit abuse, with many of the examples of frivolous lawsuits drawn from your Web site”. And indeed, a quick glance at several sections of the report suggests that we did serve as an important source of material, for which we’re grateful.

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U.S. News regrets

Major media foulups, cont’d: in its Sept. 20 issue, the newsmagazine U.S. News sets forth a lengthy and on the whole abject apology (couched, not at all accurately, as a “Clarification“) regarding a piece it ran in its Aug. 8 issue, “Secrets Behind the Mask“, by Christopher H. Schmitt, which had assailed the 3M company for alleged deficiencies in face masks which left workers unprotected against on-the-job hazards. The Aug. 8 article had consisted of little more than a recitation in sensational language of various claims advanced by plaintiff’s lawyers who’ve been naming 3M as a defendant for years (mostly without success) in asbestos and other workplace-injury litigation. In that respect it resembled a good many media pieces which are less a product of investigative journalism as such than of the “litigation communications” branch of public relations.

The details revealed by U.S. News’s inquiry into its own misreporting are damning indeed. Here’s the first:

Read On…

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New at Point of Law

Dozens of new posts at our sister site, including: plagiarism on the Harvard Law faculty; bill to revive Rule 11 sanctions for meritless litigation moving through House; more coverage of a lawyer’s attempt to collect “referral fee” of more than $140,000 from Illinois widow; Steve Bainbridge on attorney campaign donations and scoundrel Joe Kennedy; a sonnet on scientific evidence; class action fees in the InfoSpace and Ameritech cases, plus a paper on coupon settlements and an in-production Madison County movie; in praise of the Michigan Supreme Court; big fees in the really old days; public environmental suits, including the one on global warming; and Home Depot co-founder Bernard Marcus urges philanthropists to support legal reform.

For employment-law buffs, there are new posts on legal protection for messages on employee T-shirts, California and federal overtime regulations, and the Wal-Mart class action. For those who follow product liability there’s coverage of fen-phen fraud arrests, firearms liability and asbestos bankruptcies. Plus election-year politics, including Jim Copland, Ted Frank and more. Shouldn’t you bookmark it today?

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U.K.: toward Christmas pantomime sensitivity

In Devon, England, a community theater producer who faced accusations of hate speech last year after staging a Christmas pantomime entitled Snow White and the Seven Asylum Seekers has announced that he has begun production on a presumably less offensive show, Snow Person and the Seven Completely Ordinary People. The north Devon village of Merton near Okehampton had banned producer Bob Harrod’s pantomime last year following advice from the government’s Commission for Racial Equality and a regional race council, after complaints that the show’s satirical portrayal of asylum seekers might violate laws against racially offensive speech. The show featured seven asylum seekers with names like Chemical Ali, Comical Ali, Back Ali, Dark Ali, and Bowling Ali. The nearby village of Langtree, however, agreed to host the production. (“New target for Snow White writer”, BBC, Sept. 11; Nov. 3 and Dec. 1, 2003)(via Norvell). More on British hate speech laws: Jul. 16, 2004, Dec. 18-19, 2002,

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Court: Flatley can sue sex-charge lawyer for extortion

A California appeals court has ruled that Michael Flatley, famed for the dance productions “Riverdance” and “Lord of the Dance”, can sue D. Dean Mauro, “a Waukegan, Ill., attorney who filed a $35 million suit falsely accusing the Irish dancer of raping an ex-stripper in a Las Vegas hotel room.” Twenty-five days after a sexual encounter between Flatley and Tyna Marie Robertson, Robertson called police to claim the encounter had been rape. According to the court ruling, “Mauro spent the next few months calling the dancer’s lawyers … threatening to ‘go public’ with the allegations, to ‘ruin’ Flatley and demanding $1 million for his and Robertson’s silence.” After Flatley sued Mauro for extortion, Mauro unsuccessfully invoked the protection of the state’s “SLAPP” (“Strategic Lawsuits Against Public Participation”) statute and also unsuccessfully claimed that his communications with Flatley’s lawyers were protected by the litigation privilege for lawyer-to-lawyer communication. “The only thing he did was represent his client,” said James Holmes, a lawyer for Mauro. “It’s all privileged.” The original lawsuit by Robertson was withdrawn after Flatley countersued. (Mike McKee, “Calif. Court Revives Lord of the Dance’s $100M Extortion Suit Against Lawyer”, The Recorder, Sept. 3). Update Jul. 30, 2006: Calif. high court agrees Flatley can sue.

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Illinois court race: what it takes to win?

Careful about crossing the Litigation Lobby, cont’d: Dwight Kay, the finance chairman of Republican Lloyd Karmeier’s campaign in the hotly contested race for a seat on the Illinois Supreme Court (see Aug. 29, etc.), is crying foul and suing two political consultants over a visit the two paid to the home of Kay’s ex-wife in which Kay says the two falsely represented themselves as disability investigators and sought to elicit information from her about the couple’s divorce. One of the two consultants, Doug Wojcieszak, heads up a group called Victims and Families United, which is backed by trial lawyers in Illinois’s famed Madison County and promotes their interests. Wojcieszak and co-defendant Tom Denton of Tactical Consulting in Carbondale deny the charges and call the suit politically motivated and an example of hypocrisy (Jim Muir, “Two local men accused of Constitutional rights violations”, Southern Illinoisan, Aug. 12; “Defendants say lawsuit politically motivated”, same date).

Per AP, “Wojcieszak admits visiting Diane Kay on July 13. He said he was looking into Dwight Kay’s legal past since the candidate Kay supports, Karmeier, ‘wants to limit others’ access to the courts. …Wojcieszak also denies allegations he was behind an incident of garbage rifling last spring outside the Okawville office of Sen. David Luechtefeld, a longtime friend of Karmeier’s and chairman of his campaign.” (Susan Skiles Luke, “Lawyers group to watch judicial election ads”, AP/Chicago Sun-Times, no longer online). Curiously, Wojcieszak “served for a year as the executive director of Illinois Lawsuit Abuse Watch, a tort-reform group” and later switched sides. (Illinois Times, May 27).

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