Overlawyered: Chronicling The High Cost Of Our Legal System

The Lawsuits of Madison County

In 2002, Madison County (Dec. 3, Oct. 7, etc.)–where juries and judges are notorious for finding liability where no other courts will–led the nation in class actions per capita when there were 77 filed in the state courts there. In 2003, the number of class actions filed in Madison County rose to 106. The number was three as recently as 1998. (Brian Brueggeman, “Class-action lawsuits set a record”, Belleville News-Democrat, Jan. 2; Sanford J. Schmidt, “Debate renews in wake of record class action filings”, Alton Telegraph, Jan. 4; Michael Bobelian, “Congress Eyeing Major Reforms Of Class Actions”, New York Lawyer, Jan. 5).

One example of the forum shopping is a 2003 asbestos case of Whittington v. U.S. Steel. The plaintiff claimed to have been injured as a result of exposure to asbestos on the job in Gary, Indiana, and sued his former employer, U.S. Steel. A plaintiff-friendly judge let a legally frivolous argument against application of workers compensation laws go to the jury–which appears to be the first time a tort suit against an employer for asbestos exposure was permitted to get to a jury. The jury, on flimsy evidence that the asbestos exposure occurred at U.S. Steel or that U.S. Steel was negligent (helped by a ruling precluding U.S. Steel from showing the safety measures they had employees take), awarded $50 million in damages and $200 million in punitives. “I could hardly write it down,” the jury foreman said. “I’ve never seen numbers that big.” The size of the award, compounding at 9% interest, caused U.S. Steel to decide to settle for a fraction of that amount rather than take their chance with an appeal. (Paul D. Boynton, “$250 Million Asbestos Verdict Awarded Against U.S. Steel”, Lawyers Weekly USA, 2004; Peter Page, “Asbestos Exposure Cases Draw Big Awards”, National Law Journal, Apr. 10, 2003; Brian Brueggemann, “Man awarded $250 million in cancer case”, Belleville News-Democrat, Mar. 29, 2003).

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“The Last Rung”

The nation’s oldest ladder manufacturer, family-owned John S. Tilley Ladders Co. of Watervliet, N.Y., near Albany, has filed for bankruptcy protection and sold off most of its assets. Founded in 1855, the Tilley firm was profitable until a few years ago but could not handle the cost of liability insurance, which had risen from 6 percent of sales a decade ago to 29.4 percent by the end, even though the company wasn’t sued often and had never lost an actual court judgment. Jury awards in product liability cases have jumped from “an average of $1.7 million in 1994 to $6 million in 2002”. “We could see the handwriting on the wall and just want to end this whole thing,” says Robert Howland, a descendant of company founder John Tilley. (Carrie Coolidge, Forbes, Jan. 12).

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New legislation round-up

The Christian Science Monitor writes: “As the new year begins, more than 500 new laws in 21 states – the byproducts of long and oft-tedious legislative sessions – will change Americans’ lives in ways both serious and obscure.” Sara B. Miller, “New state laws run social gamut,” Christian Science Monitor, Jan. 2. They include laws setting up anti-telemarketing do-not-call lists, rules against hogging the fast lane, and new revenue-generating fees. The Associated Press provides additional examples. See “Keep the left lane clear; watch who splits your tongue,” Jan. 3 (via cnn.com).

Of lawyers and GloFish™

Explaining that “tropical aquarium fish are not used for food purposes” and “pose no threat to the food supply,” the US Food and Drug Administration opted not to regulate GloFish™, ornamental fish that have been genetically modified to glow in the dark. (Don Thompson, “FDA won’t bar first biotech pet from the market,” Associated Press, Dec. 9 (via whittierdailynews.com); Shannon Colavecchio-Van Sickler, “Want aquarium flair? GloFish,” St. Petersburg Times Online, Dec. 27 (via www.poynter.org),”FDA statement regarding Glofish,” Dec. 9).

Unhappy with this decision, the Washington, D.C.-based Center for Food Safety promptly announced plans to file a lawsuit against the FDA to force it to exercise its alleged regulatory authority over household pets. “It’s a precedent and it’s one that we want to stop,” a Center spokesman explained, in a remarkable slippery slope argument to support the proposed lawsuit. “Having the Glo-Fish™ out on the market ushers in a new era where we are going to have untested, unregulated, genetically engineered animals as fads, as pets, as food supply. And I don’t think anyone should go down that road.” (“GLO-FISH,” KTVI Fox2 News).

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Erin Brockovich watch

Erin Brockovich’s law firm has filed its third lawsuit against Beverly Hills, its school district and several oil and gas companies, claiming that emissions from an oil derrick on the Beverly Hills High School campus caused former students and others to develop high rates of cancer – or at least put them at greater risk of developing the disease. (“Brockovich Files Third Lawsuit in Cancer Case,” L.A. Times, Jan. 3; Associated Press, “Brockovich Firm Against Sues Beverly Hills,” lasvegassun.com, Jan. 3 ). City officials have disputed the claims.

The latest lawsuit filed in California state court lists nearly 300 plaintiffs, “a number” of which claim that they “do not have cancer but are at greater risk of developing the disease.” Earlier posts on the media-savvy paralegal’s environmental lawsuits can be found on Nov. 19, July 15, and elsewhere in this space.

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Updates

More developments in previously covered controversies:

* Where credit is due dept.: lawyers for Patrick Hayashi, whose squabble over ownership of a souvenir Barry Bonds home run baseball grew so costly as to eat up the ball’s auction value, agreed to roll back their fees so that their client would emerge from the case with something of value other than the experience (Gwen Knapp, “Finally, in Bonds ball case, someone shows some class”, San Francisco Chronicle, Dec. 30)(see Jul. 1).

* National talk show host Joe Scarborough, criticized here among other places for naming a company as “Rat of the Week” without disclosing that his partners at Pensacola’s Levin Papantonio were actively suing it (see Sept. 15), says he’s now stopped receiving a stipend from the law firm, though name partner Fred Levin says Scarborough remains associated with the firm and may even do a commercial for it (Amber Bollman, “Scarborough: No pay from law firm”, Pensacola News Journal, Dec. 30; Howard Kurtz, “Bad News Bearers: Up To No Good?” Washington Post, Dec. 29)(low in piece) (via Lori Patel, Law.com).

* After nearly three weeks of testimony and an hour and a half of deliberations, a jury has rejected a lawsuit against Ford Motor Company over the death of New Jersey state trooper Scott Gonzalez (see Oct. 27, 1999). Gonzalez was killed in a shootout with a mental patient, and lawyers for his widow had alleged that he might have survived had his Ford Crown Victoria been designed so that a crumpled fender did not block his door from opening; they also sued the killer’s parents (who were released from the suit shortly before the recent trial) and Hechler & Koch, the maker of her husband’s police gun, because it briefly jammed after he’d fired seven shots from it; the latter suit resulted in a settlement providing less than $50,000 to Maureen Gonzalez. (Jenna Portnoy, “Jury rules Ford not liable in trooper’s shooting death”, Easton, Pa. Express-Times, Dec. 19)

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Wordy Regulations

As Snopes demonstrates, the oft-told tale of the 27,000-word cabbage-sale regulation is an urban legend. But Stuart Buck notes a nine-year FDA battle over “whether ‘peanut butter’ should be 87.5% or 90% peanuts” where the hearings took up 7,736 pages of transcript. (“The Buck Stops Here”, Dec. 31, citing Corn Products Co. v. Department of Health, Education & Welfare, 427 F.2d 511, 513 (3d Cir. 1970)).

2003’s largest verdicts

The Associated Press uncritically reports Lawyers Weekly USA’s claim that the top ten jury verdicts of 2003 were supposedly “unusually” small, with the biggest “only” $254 million (Dec. 15). (“Juries Hand Out Fewer Big-Ticket Verdicts”, Jan. 2). Which is funny, because the same publication names Stephen Tillery (Jun. 12) a “lawyer of the year” for winning a substantially larger award in judicial hellhole Madison County (Mar. 24). (Jaclyn Jaeger, “Landmark $10.1B Light Cigarette Award A ‘Career Event’ For Veteran Litigator”, Lawyers Weekly USA, 2003). Of course, that was a judge who made that decision (Apr. 30), but the publication seems to have also missed November’s $11.9 billion Alabama jury award (Dec. 1).

Update, April 6, 2004: A Lawyers Weekly USA writer writes to tell me that there is no inconsistency, because the “Top Ten” list was limited to “individual” awards. Which is fair enough, but that only accentuates the main point that the publication–and the Associated Press–has no basis to claim that 2003 featured fewer “big-ticket” awards in a year where multi-billion dollar awards were shockingly commonplace. For what it’s worth, the #1 “individual” award on the list involved more than one plaintiff.

Speaking of year-end awards, if I may toot my own horn, my firm, O’Melveny & Myers, received the “Litigation Department of the Year” award from American Lawyer magazine. (Jim Schroeder, “O’Melveny & Myers Lawyers Named as Top Litigators”, Dec. 31).

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