The city of Santa Monica, Calif. made headlines last year when it won a large settlement from oil companies over MTBE (methyl tertiary-butyl ether)contamination of its water supply, but now it’s locked in a bitter legal dispute with the private law firms it hired over their fee bill, which could reach $66 million. The firms include Miller & Sawyer, Baron & Budd, and Sher & Leff. The case is being watched elsewhere in part because Baron & Budd and other law firms have signed up numerous other state and local governments as clients to press MTBE claims on a contingency basis. (Eric Peters, “Nation watches suit of Santa Monica v. lawyers”, Contra Costa Times, Jun. 6; Blair Clarkson, “City Overcomes Final Hurdle in Oil Suit Battle”, The Lookout, Mar. 4)(see Jun. 11-12, 2002, Nov. 25, 2003). See also Doug Bandow, “Energy Bill Debate Confirms a Lawyer-Democrat Alliance”, Cato Daily, Feb. 14. More (via SoCalLawBlog): Gregory Crofton, “Santa Monica fighting legal bills for MTBE lawsuit”, Tahoe Daily Tribune, Jun. 4.
Australia roundup
Striking a blow for personal responsibility, the High Court of Australia has ruled that a woman who drank too much at a bar and later injured herself cannot recover from the drinking establishment on the grounds it should have cut her off sooner. Chief Justice Murray Gleeson “said the onus should not be on clubs to prevent injury to those who drank to excess” and wrote: “There are many forms of excessive eating and drinking that involve health risks, but, as a rule, we leave it to individuals to decide for themselves how much they eat and drink. There are sound reasons for that, associated with values of autonomy and privacy.” (Michael Pelly, “Blaming the barman is out: court”, Sydney Morning Herald (soon to adopt registration), Jun. 16)(see May 12, 2003). Judges from the highest courts of New South Wales and Queensland are among the latest to be taken in by a widely circulated list of amusing but entirely fictitious court cases which supposedly won “Stella Awards”; our debunking appeared August 2001. (“Our Stella judges”, MediaWatch, Jun. 14). And the High Court in April heard a case which seeks to overturn the longstanding prohibition on negligence suits against barristers by clients harmed by the errors and omissions they make in advancing legal arguments. “Immunity for advocates has been abandoned in many other countries, including Canada and the United States. However, many Australian barristers argue that the risk of being sued would lead to spiralling insurance premiums and costly litigation.” (Sonia Harford, “Lawyers wait on High Court case”, Melbourne Age, Apr. 25).
Karma ran over his dogma: Sheldon Silver sued
The New York assembly speaker, who’s done more than anyone in Albany to keep the right to sue on a continually expanding course, now faces a lawsuit charging him with tolerating an atmosphere of sexual harassment, following extremely ugly allegations of sexual assault against his chief counsel, Michael Boxley. (New York Post coverage: “Silver’s slippery slope” (editorial), Jun. 13; Frederic U. Dicker, “Victim to sue Silver”, Jun. 9; Frederic U. Dicker and Kenneth Lovett, “Silver ‘rape’ blame”, Jun. 10; Frederic U. Dicker, “Pretzel popper Silver dissed my rape claim”, Jun. 14. More on Silver: May 1, 2000; May 11-13, 2001; Dec. 13-15, 2002; Jun. 9, 2003. In other news, powerful Republican State Senator Guy Velella of the Bronx, whose law firm’s successful injury suits against New York City were mentioned in this space May 1, 2000, has fallen in a corruption scandal (“Guy Velella Pleads Guilty”, AP/WCBS, May 17).
Update Feb. 5, 2006: suit against Silver’s office settles for $500K, most of it taxpayer funds.
Ups and downs of a $2.5 million verdict
Roller coaster, indeed: Maryland’s highest court has thrown out a jury’s $2.5 million verdict against the operator of the Six Flags amusement park at Largo over a 1999 incident in which park employees told a family that their 4-year-old daughter did not meet the height requirement for the Typhoon Sea Coaster ride. The family refused to get off the ride and there ensued an altercation with park employees which resulted in several family members being handcuffed and led away to security — none were apparently seriously hurt — before being let go an hour later. How did a dispute of this magnitude snowball into a $2.5 million jury verdict? Well, it seems that although the original charges against the park operators did not make an issue of race, lawyers for the plaintiffs (who are African-American) had repeatedly played up racial angles before the Prince Georges County jury. Finding “a significant probability that the verdict was influenced by improper and irrelevant insinuations by their attorneys and certain of their witnesses of racial discrimination by alleged employees of the corporate defendant,” the court ordered retrial (“Court of Appeals overturns $2.5 million award in Six Flags suit”, AP/InsideBaltimore, May 17; CoasterBuzz, May 18; Tierco v. Williams, opinion in PDF format)(via Insurance Defense Blog, Jun. 1). Just to guarantee the burning up of even more resources, the case spawned insurance coverage litigation (PDF) in Delaware.
Total information awareness — for litigators
Worried about the hypothetical privacy dangers resulting from “data mining” by federal security agencies chasing terrorists? Then you might want to spare a thought for the privacy implications of a commercial service called SmartJury, affiliated with the same database company that has been selling information on private citizens to the government for antiterrorist use. As Alex Tabarrok notes, SmartJury promises to provide trial lawyers with
real-time access to public record information on potential jurors. Within seconds of entering potential jurors, you will receive reports including information such as: Criminal Records; Political Party Affiliations; Bankruptcies; Corporate Affiliations; Real Property Ownership (including value); Motor Vehicle Registrations; Web Site Domain Names; and 2000 Census Information (including median household income, average age, average years of education, and median home value).
Adds Tabarrok: “Helpfully, SmartJury also provides demographic information from survey results to predict how each juror will vote! …the board of SmartJury is littered with well-placed government types like Jack Kemp, William Bennett and Robert Kennedy Jr.”
The Rule of Lawyers on radio
I’m scheduled to be a guest tomorrow morning (Tues.) at 8 a.m. EDT on Jim Blasingame’s “Small Business Advocate” nationwide radio show (more), and then at 10 a.m. EDT on Cincinnati’s WLW. And then on Wednesday from 11 to 12 a.m. EDT I’ll be the guest of Laurie Morrow on Vermont’s “True North Radio“. In each case I’ll be discussing my book “The Rule of Lawyers”, just out in paperback from St. Martin’s/Griffin (more).
If you’re a booker for a broadcast show or other news outlet, you’re aware that it’s at times like this, with books just reaching the stores, that authors and publishers are most eager to cooperate. To ask about appearances, contact Jamie Stockton at the St. Martin’s publicity department: 212-674-5151, ext. 502, or email me directly.
While we’re at it, you just know that The Rule of Lawyers would make an ideal Father’s Day gift, and Amazon (although its stocks are low) offers special shipping guaranteed to arrive by the weekend. It’s also available from Barnes & Noble, Powell’s, and (hardcover) Laissez Faire Books.
Mammography under threat
Confirming the trend we reported on Oct. 3: “A worsening shortage of providers is threatening women’s access to mammograms, says a major new report that found long waits for the breast X-ray in parts of the country. …Fewer radiologists are specializing in breast imaging because of long hours, low reimbursement, heavy regulation and fear of lawsuits,” according to the Institute of Medicine study. In addition, as readers try to lean over backwards lest they be accused of overlooking an ambiguous result, the false-positive rate in mammogram results has nearly doubled since the 1980s, according to the report, which in turn “leads to costly, unnecessary repeat testing as well as the anxiety that women often cite for skipping mammograms.” (Lauran Neergaard, “Scientific advisers urge increased access to mammograms”, AP/San Francisco Chronicle, Jun. 10; “Advisers urge greater mammogram access”, AP/CNN, Jun. 10; report, “Saving Women’s Lives: Strategies for Improving Breast Cancer Detection and Diagnosis“).
The medical blogs have been all over the story: MedRants, Cut to Cure, MedPundit. Last month radiologist Thomas Boyle (“CodeBlueBlog”) deplored some of the economic and regulatory pressures working to kill mammography practice (“Mammactivists Killing the Mammogram”, May 12, see also Jun. 11), and was no less scathing about the legal pressures:
A mammogram is an inherently limited study with relatively low sensitivity and specificity. Unfortunately, the public does not understand these limitations because the exam has been oversold as a diagnostic modality (We are told this is for the public’s “own good?). As a result, people have a difficult time understanding why breast abnormalities are “missed” or “misinterpreted” during routine mammography. Personal injury lawyers ruthlessly take advantage of this dilemma by scavenging mammograms involved in breast cancer cases. They prey on this ignorance by holding radiologists to impossible standards bolstered with retrospective analyses of mammograms done by venal physicians in their stable of “experts”. As a result, mammography is the single highest liability risk for radiologists (and the second highest risk in all of medicine). For a $15 reading fee, radiologists can face multi-million dollar lawsuits.
More: PointOfLaw, Dec. 14.
“Sex, lawyers, secrets at heart of sealed legal case”
According to a story in the San Antonio Express-News, husband-and-wife legal partners Ted H. and Mary Schorlemer Roberts received money in a curious sequence of events. Mary, claiming to seek “no strings” discreet encounters, would seduce men over an Internet dating service. Ted would then write the men (in legal documents sometimes typed by Mary) and notify them that he planned to seek intrusive and public civil discovery to investigate whether the affair brought forward potential causes of action that were flimsy at best; the men would pay tens of thousands of dollars for a release and confidentiality agreement. (As the law firm’s web site puts it, “We believe in a team approach.”) Because of Texas’s permissive legal ethical rules, prosecutors decided they couldn’t pursue extortion charges; state law permits Roberts to bring “creative” claims and to take discovery in advance of filing a lawsuit, and the prosecution had no way of proving that Roberts’s intent in submitting the documents was a bluff rather than a “legitimate” lawsuit.
The newspaper found out only because another lawyer, Robert V. West III, sought to raise the scheme as part of a separate business dispute with the Roberts; fans of poetic justice will note that the Roberts accuse West of blackmail, and brought disciplinary charges against West and his lawyer to the state bar. The bar is investigating West, but, apparently, not the Roberts. Everyone involved denies any wrongdoing. Roberts unsuccessfully brought suit to prevent publication of the story, but the court records remain sealed. (Maro Robbins and Joseph S. Stroud, Jun. 13) (via Bashman).
Update: Coors suit dropped
Ends with a whimper dept.: “After being threatened with sanctions for frivolous litigation, a Reno lawyer said …he has dropped a lawsuit against Coors Brewing Co. filed for the mother of a young man who died in a car wreck while driving drunk. …when a lawyer for Coors threatened [attorney Ken McKenna] and [client Jodie] Pisco with sanctions, they decided to back off, he said.” Too bad sanctions have been made so hard to get in most courts, since their deterrent effect on wrongful lawsuits is often clear, as in this instance. The original case (see Apr. 19) had drawn worldwide publicity. (“Lawyer drops suit against Coors in man’s death”, Reno Gazette-Journal, Jun. 2; Steven Milloy, “Lawsuits, Alcohol Advertising and Money”, FoxNews.com, May 21).
Madison County medical malpractice numbers
Madison County has its deserved reputation as a “judicial hellhole” because plaintiffs recognize that its judges are friendlier to questionable class actions and asbestos cases, leading it to become a magnet jurisdiction for these actions. (See Apr. 15; Apr. 5; Jan. 5 and links therein; John Stockinger, “Advocates call for reform of Madison County legal system”, Alton Telegraph, Jun. 9.) Now, the Astroturf trial lawyers’ group “Victims and Families United” (Feb. 20) tries to defeat that perception by trumpeting some statistics about medical malpractice in the region. Previously, the group had tried to suggest there was no medical malpractice crisis, despite the fact doctors were leaving the area by the dozens, by pointing out the low number of verdicts in the area; of course, verdicts are a small fraction of payouts to lawyers in settlements. So the trial lawyers have responded by making up some numbers, and trusting that the press won’t delve too deeply into the claims.
By manipulating a couple of denominators, the trial lawyers’ group purports to show that settlement payouts are average for the state. The Madison-St. Clair region has 4.2% of ISMIE’s $270 million in payouts in 2003, they say, and 4.2% of the population; therefore, payouts are supposedly in line with the rest of Illinois. The St. Louis Post-Dispatch uncritically reports these numbers, as well as uncritically calling the trial lawyers’ group a “victims’ rights group.” (William Lamb, “Data do not justify Metro East’s malpractice reputation, group says”, Jun. 10).
But the numbers are bogus. ISMIE doesn’t insure “population”, it insures doctors, and doctors per capita are lower in Madison and St. Clair Counties than elsewhere in the state; off the bat, one would expect lower payout rates for these counties if they were typical for Illinois. Worse: the $270 million denominator is fictional. Using the actual denominator of $226 million (see 2003 ISMIE Annual Report at 25) or $234 million (John Stockinger, “Victims group disputes claims of insurance crisis”, Alton Telegraph, Jun. 11), and the Madison/St. Clair per capita number (a number that already understates the extent of the problem) turns out actually to be 116% to 120% of the statewide average–a number that can be found nowhere in the press coverage. (Patrick J. Powers, “Claims here mirror state”, Belleville News-Democrat, Jun. 12).
At least the Alton Telegraph balances it with other statistics that tend to show the fiction: average payment to plaintiffs in the area jumped from $276,000 to $495,000 between 2002 and 2003. In the past five years, ISMIE has paid out $33.5 million in verdicts, settlements and expenses, while earning only $29.6 million from Madison/St. Clair County-area premiums.