The once dominant U.S. men’s and women’s diving teams suffered their worst performance ever at the Athens Olympics, shut out from medals for the first time since diving was introduced at as an Olympic sport 92 years ago. (“Chinese dive to record haul”, AFP/Independent Online (South Africa), Aug. 29). Why the falloff? “After a golden age in the seventies — a decadent, late-Roman last hurrah — the American pool has suffered a gradual decline: thanks, for the most part, to concerns about safety and liability, diving boards have been removed and deep ends undeepened. At municipal pools across the country, the once-ubiquitous one-metre springboard has become an endangered species; and the three-metre high dive — the T. rex of the community pool — is now virtually extinct. … Ron O?Brien, U.S.A. Diving?s national technical director, and the former coach of Greg Louganis, said last week, ‘You can’t put your finger on any one thing, but having so many diving boards taken out around the country has had a serious impact on our sport, no question about it.'” (Field Maloney, “Cannonball!”, The New Yorker, Aug. 30 issue (posted Aug. 23))(via Common Good)(more about pool and diving liability).
Update: N.Y. auto leasing still stalled
New York Assembly Speaker Sheldon Silver is still dug in to protect the state’s ultra-harsh law holding auto lessors liable for accidents involving the cars they lease, although it’s had a devastating effect on car leasing in the Empire State (Jun. 9, 2003 and links from there). Here’s the New York Daily News blasting him in a recent editorial:
The Senate wants to abolish vicarious liability, bringing New York into line with 49 other states, but Silver’s Assembly wants to have car companies pay hundreds of millions of dollars into an insurance pool that would cover accidents in leased cars. The trial lawyers are all for it because the pool would give them lots of money to grab, cash that would come from drivers in the form of higher leasing fees. And who are the trial lawyers? Arthur Luxenberg is the group’s second vice president, while Perry Weitz serves on the board of directors. And who are they? They’re the name partners of Weitz & Luxenberg, the law firm that lists Silver as of counsel.
The law “costs consumers more than $130 million a year and has led to a 36 percent decline in the number of vehicles leased in New York each year, according to the Alliance of Automobile Manufacturers (Alliance) and the Greater New York Automobile Dealers Association (GNYADA).” (“Vicarious liability costs New York consumers and businesses millions”, Business Council of New York State, Jun.). “More than 19 automakers and every major retail bank in New York have stopped or curtailed car leasing. …In addition, [according to trade groups], vicarious liability has contributed to the closing of 70 leasing companies since September 2000.” (“N.Y.’s Vicarious Liability Costly for Consumers and Auto Dealers”, Insurance Journal, Jul. 19). For more, see the New York State Auto Dealers Association website.
Close call for California Senate
Meeting in private caucus, the majority Democrats in California’s state senate have selected as the next leader of that chamber Sen. Don Perata, D-Oakland, rather than rival contender Sen. Martha Escutia, D-Whittier. That’s good news for California business because Escutia, who chairs the Senate Judiciary Committee, has been a key supporter of trial lawyer causes and chief sponsor of many bills backed by the litigation lobby. (Steve Lawrence, “Democrats pick Oakland lawmaker as new Senate leader”, San Francisco Chronicle, Aug. 24; “Perata, president pro tem” (editorial), San Francisco Chronicle, Aug. 26). Operatives with close links to the state’s trial lawyers had waged a mudslinging campaign against Perata (Dan Walters, “Lawmakers engaged in bitter battle for control of California Senate”, Sacramento Bee, Jul. 9, no longer online).
Germany Overlawyered
On April 11, 2002, al Qaeda terrorists exploded a tanker truck outside a synagogue in Tunisia, killing 20 other people, including 14 German tourists, and grievously wounding several others, including three-year-old Adrian Esper, who suffered third-degree burns to his face, arms, and upper body, and has had to undergo thirty operations. Thus, the Esper family is suing… the package tour company that arranged the trip to the synagogue, alleging that the company should have known about the terrorist danger at that destination. Lest you think the Germans have completely bought into the American system of jackpot justice, the Espers are only seeking 100,000 Euros in damages. A judge will decide the case October 27 if the parties don’t reach a settlement first. (“Couple Sues Travel Company Over Terror Attack”, Deutsche Welle, Sep. 1; “Germans seek damages for boy burned in Tunisia terror”, Expatica, Sep. 1).
Jury: Spanish-language warnings not obligatory
A jury in Brownsville, Texas, has determined that the Quincy, Ill.-based Titan Tire Corp. was not negligent for failing to provide a Spanish-language warning relating to maintenance of its tires. “The case involved the death of 33-year-old Raymundo Barrera, who died after a tractor tire exploded while he was airing it up at a farm near Camargo, Mexico, in 2002.” Plaintiffs filed suit neither in Mexico nor in Quincy but in south Texas, alleging that the company was aware that some of its products would find their way to Mexican farms (and also, presumably, to farms on which numerous other languages are spoken besides Spanish). “However, the jury decided Friday that Barrera was at fault and Titan was not.” Lawyers for the Barrera family, who had been seeking $10 million, say they plan an appeal. (“Jury clears tire company that lacked Spanish warning”, AP/Houston Chronicle, Sept. 1).
Oz: mom’s car crash caused my cerebral palsy
From Australia, more evidence that the presence of liability insurance may tend to lead ineluctably to the alleged causation of cerebral palsy:
An Adelaide teenager suffering from cerebral palsy is suing his mother after she crashed into a tree when he was a foetus. Supreme Court documents claim Sylvia Neave, of Ferryden Park, was negligent and breached her duty of care as a mother to her unborn child.
Under law, Graham Neave, 16, has to sue his mother and [the state of South Australia’s] compulsory third party insurer, the Motor Accident Commission, in his bid to gain an estimated $3.5 million compensation.
The Queen Elizabeth Hospital also is part of his claim for allegedly failing to treat him “sufficiently early or at all” before his emergency delivery.
— “Boy sues mum in $3.5m bid”, The Advertiser/News.com.au, Aug. 22.
Political notes
According to the Washington Monthly’s Kevin Drum (Sept. 2), commenting on President Bush’s convention acceptance speech, “His biggest applause line of the night came when he took a shot at trial lawyers.” Drum terms this “weird” and doesn’t understand why the issue might resonate so, however. While on the subject of the Washington Monthly, it has a symposium on a Bush second term which includes a Grover Norquist article predicting dramatic setbacks at the national level for the trial bar if GWB is re-elected, which would certainly be a change from the lack of same in his first term. And in Florida, former housing secretary and former president of the Academy of Florida Trial Lawyers Mel Martinez prevailed in a hard-fought primary against former Rep. Bill McCollum (see Feb. 21, May 6) with a campaign so nasty as to cause the St. Petersburg Times to withdraw its previous endorsement of Martinez; Democrat Betty Castor will be his opponent in November (editorial, Aug. 30; Miami Herald, Sept. 1).
Blogs on Poliner
The medical blogs are naturally talking about the Poliner litigation, where a doctor who had privileges suspended for allegations of improper care sued everyone involved in the peer review decision and eventually got a jury verdict of $366 million (Aug. 30). Dr. Rangel (Sep. 1) takes an interesting and nuanced view based in part on personal experience with the plaintiff; db’s MedRants blog (Aug. 31) calls for a “barf bag”; Bard-Parker (Aug. 31) suggests that one solution may be more systematic use of outside review, but notes that fear of litigation may not make that reform feasible.
Commenters are focused mostly on the liability decision, but one thing that immediately strikes the eye is the complete divorce from reality of the damages figure of $366 million. Even if one assumes that Poliner’s career was completely ruined notwithstanding a different peer review’s exoneration and throws in a million dollars for psychic injury, the figure is off by at least a factor of ten; if one more realistically limits damages to the few months he was out of practice, at least a factor of 100; if one limits damages to the month between the initial suspension and the privileged decision of the peer review committee, even more. Usually the remedy for excessive damages is “remittitur,” a fancy Latin word for the process where the judge makes up his or her own damages figure and tells the plaintiff to agree to that reduced figure or a motion for a new trial will be granted. But if a jury’s damages determination was the irrational product of passion, why presume (and, often, essentially assume) that the liability decision was reasoned?
HIV-positive man sues Dallas Observer
“Joe Doe”, the HIV+ plaintiff in a Texas state lawsuit, is a member of the choral group “Positive Voices”–which has produced a CD with his photo and his real name. Nevertheless, when the alternative weekly Dallas Observer also identified “Doe” as HIV+ in passing in a larger December 4 story about a gay congregation titled “Fallen Angel,” “Doe” sued. The suit doesn’t allege that the Observer got its facts wrong, but argues that the story violates a Texas law prohibiting the disclosure of “medical test results,” with a fine of up to $10,000 for each disclosure. Since the Observer has circulation of 110,000, “Doe” figures he’s entitled to over a billion dollars. The story, including “Doe’s” name, remains on the paper’s web site, and the paper has filed a motion for summary judgment on First Amendment grounds as well as arguing that the broadly-drafted statute shouldn’t be construed to encompass journalists. (Miriam Rozen, “Billion-Dollar HIV Suit Raises First Amendment Issues”, Texas Lawyer, Sep. 2; David Webb, “Dallas Observer fights lawsuit claiming wrongful HIV disclosure”, Dallas Voice, undated). More medical privacy madness: Jan. 21 and links therein; more Dallas Observer litigation Aug. 24 and Mar. 23, 2000.
Update: Case thrown out in January 2006.
On the road
I’m heading off to speak to the Federalist Society chapter at the University of Arkansas law school in Little Rock. I should be back and posting on Friday.