Overlawyered: Chronicling The High Cost Of Our Legal System

Senate nixes OB relief

State medical societies have expressed considerable ambivalence about proposals to proceed specialty by specialty on malpractice reform, starting with the hardest-hit areas such as obstetrics and emergency medicine, fearing that such measures might serve to divide the profession and allow politicians to say that they had “done something” after addressing only the most obvious crisis areas (“AMA vows united voice in battle for tort reform”, American Medical News, Jan. 5). At any rate, it seems the choice of such a compromise won’t be available at the federal level, since opponents have no seeming interest in it. This week the Senate’s Republican leadership brought back malpractice reform in a pared-down version intended just to address obstetric litigation, but no go: the 48-45 vote was pretty much the same as that by which omnibus reform had failed, falling far short of the 60 needed to overcome an expected filibuster by Democrats.

The Associated Press report on the vote (Jesse Holland, AP/DailyNews.com, Feb. 25) reported that “some conservatives” opposed the bill, but the conservative it quoted turned out to be Ken Connor, former head of the religious-right Family Research Council. What AP didn’t add is that Connor is not exactly your typical conservative, having made his fortune in Florida as a plaintiff’s lawyer suing nursing homes and having served as a tenacious legislative advocate for the interests of the trial bar before his stint at FRC (see Mar. 2-4, 2001).

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Mom sues daughter over driveway mishap

The Michigan Court of Appeals has ruled that Carla Allen of Warren is not entitled to collect damages from her daughter for failing to maintain her property in a safe condition. Mrs. Allen tripped and fell “on a raised slab of concrete on her daughter?s driveway”. The “court ruled that when an average person with ordinary intelligence can discover a danger on casual inspection, as the mother could in this case, he or she cannot blame someone else for injuries.” The editorialists at the Detroit News say the case “speaks volumes about the absurd state of the U.S. judicial system” and suggests the need for more frequent sanctions. (“Fine Filers of Frivolous Lawsuits” (editorial), Detroit News, Feb. 24)

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Bush’s FMA mistake

“And if down the road the voters of some state opt for a legal regime [on marriage law] different than that favored by Mr. Bush, why should the Constitution impede their democratic choice? The federal Defense of Marriage Act already guarantees that no state has to recognize a same-sex union performed in another state.” (“Debasing the Constitution” (editorial), Feb. 25). Josh Marshall (Feb. 24) writes: “It’s his dad and the flag burning amendment all over again. Is there really anything that tells you more about a man’s character than this?” For more on this very bad amendment, see Feb. 20.

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“Journal repents over vaccine-autism link”

“One of the world’s pre-eminent medical journals, the British magazine The Lancet, has said that it should never have published a 1998 study into controversial research linking a triple vaccine for infants to autism due to the researcher’s ‘fatal conflict of interest’.” British physician/researcher Andrew Wakefield, who conducted a study raising fears about the measles-mumps-rubella (MMR) vaccine, did not disclose that he had been hired by lawyers seeking to press damage claims over the vaccine. The Wakefield study was later assailed as badly flawed. (Reuters/Washington Post/Sydney Morning Herald, Feb. 23). As a result of scaremongering over the vaccine, “The incidence of measles in parts of Britain is rising ominously as the number of children formerly inoculated against the disease falls to the level which risks an epidemic. In short, we could be on the verge of a major public-health disaster. … Colossal damage has been done and hundreds of thousands of children may be at risk of serious disease.” (“Misled over MMR” (editorial), The Observer, Feb. 22). See Jane Fineman, “Maverick view that sparked panic over the triple vaccine”, The Observer, Feb. 22. For more on MMR and other vaccine litigation, see Dec. 29; earlier posts. And: Michael Fitzpatrick, “MMR: Investigating the interests”, Spiked Online, Feb. 22; Black Triangle (UK blog, posting currently suspended; numerous posts; via GruntDoc). Yet more: Michael Fumento weighs in (“Anti-vaccine Activists Get Jabbed”, Scripps-Howard, Mar. 11), as does Charles Murtaugh (Dec. 22 and Feb. 22). Update Mar. 4, 2005 (another study finds no link).

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Underage father on hook for child support

“A man who claims he was seduced and exploited in his early teens by an older, married woman must pay child support to the state for the illegitimate son he gave her” according to the Michigan Court of Appeals. The relationship between the two was not revealed until after the statute of limitations for statutory rape had passed, but in any event the appeals court held that the lack of legal (or even actual) consent is irrelevant to the issue of child support. (Chad Halcom, “Man, 14 when he fathered boy, must pay support”, Macomb Daily, Feb. 21) (via Bashman).

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Fairness for gun makers, now

“Reasonable people do not believe that Ford or General Motors should be sued when a drunken driver speeds into and kills a pedestrian. They understand that the manufacturer should not be faulted merely because its product is used improperly and illegally. It is obviously the driver who needs to be punished.” The Senate is about to take up a bill, supported by a majority in both Houses, which would protect gun manufacturers from being sued over criminal misuse of their products. Lawmakers who sympathize with the gun-control-through-litigation campaign will try to attach spoiler amendments in hopes of derailing the bill; they shouldn’t be allowed to succeed. (“Gun legislation” (editorial), Hill News, Feb. 25). For our past commentaries on the topic, see Oct. 9 and Apr. 4-6, 2003 and our gun litigation page generally.

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False accusations? Just a phase they’re going through

Three Garden Grove, Calif. schoolgirls, worried about having to explain getting home late after school, concoct a tale about being assaulted by a man in a park. 36-year-old drifter Eric Nordmark is arrested and thrown in jail where, after the girls tell various colorful lies, he spends more than half a year, planning to commit suicide if he is convicted. Then the girls’ story falls apart, and the principal accuser admits the attack never occurred. (L.A. Times coverage: H.G. Reza and Joel Rubin, “Young Accusers Arrested, Led From School in Cuffs”, Feb. 10; Christine Hanley and Joel Rubin, “No Jail Time Expected for 3 O.C. Girls”, Feb. 11; “2 Preteen Accusers to Stay in Custody”, Feb. 12; H.G. Reza, Christine Hanley and James Ricci, “Drifter Jailed on Girls’ Lies Set Course of Desperation”, Feb. 23). Curmudgeonly Clerk (Feb. 12) writes that “some of the reactions reported in the aftermath of this event simply take my breath away”. Such as? Quoting the Los Angeles Times: “Attorneys Lee [Patti Lee, the managing attorney in the juvenile division of the public defender’s office in San Francisco] and Earley [Jack Earley, an Orange County defense attorney and president of the California Attorneys for Criminal Justice] said the girls may not be guilty of anything more than being immature, and simply doing what a lot of kids their age do when they get in trouble: lie to get out of it. ‘It sounds like an adolescent tale gone awry,’ Lee said.” Historical echoes: Tawana Brawley (whose best-known advocate, lest we need reminding, is still running for president); and the English folk song “Fanny Blair” (text and tune with MIDI; background at Musical Traditions site)

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Plot premise…

…of the forthcoming movie The Incredibles, from the fabulous animators at Pixar: “Mr. Incredible is a superhero; or he used to be, until a surge of lawsuits against superheroes submitted by the people they’ve saved forced the government to hide them in witness protection programs so they could lead normal, anonymous lives.” (plot summary at IMDB) (teasers and peeks) (via George M. Wallace’s “A Fool in the Forest” blog, Feb. 20; unrelatedly, Wallace also has a Feb. 23 post on bedbug litigation). More on “The Incredibles”: Oct. 25.

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Connecticut scandal: the tobacco-fee angle

Four years ago (Feb. 16, 2000) we noted that the state of Connecticut had chosen three politically connected law firms to handle the state’s role in the multistate tobacco litigation, a bit of business that yielded a very handsome $65 million in fees. (Other firms that wanted to be considered for the work were cut out.) The three firms included two linked to Attorney General Richard Blumenthal and one, Carmody & Torrance of Waterbury, whose managing partner, James Robertson, was personal counsel to Republican Gov. John Rowland.

Now the firm of Carmody & Torrance has turned up amid the ethical storm swirling around Gov. Rowland, who may face impeachment over various personal financial irregularities. After Rowland nominated Robertson for a Superior Court judgeship, it developed that the Carmody firm had not only performed extensive free services for Rowland but had also agreed to defer payment of some $100,000 worth of paid services. In recent weeks the Connecticut press has had a lot to say about the (relatively small) amounts of conventional legal work that the state government has awarded to Carmody & Torrance in recent years, but (unless we’ve missed something) has expressed little curiosity about the selection of the firm for tobacco work, perhaps having swallowed the fiction by which the $65 million fee supposedly did not come at the state’s expense. (“Rowland lawyer says governor owes firm $100,000”, AP/Stamford Advocate, Feb. 13; Tobin A. Coleman, “Judges asked about gifts for Rowland”, Stamford Advocate, Feb. 14; Gregory B. Hladky, “Rowland?s ethics scandal snowballing”, New Haven Register, Feb. 16; “State ethics law loophole doesn?t exist, Plofsky says”, AP/New Haven Register, Feb. 22).

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