Beth Plocharczyk of Crescat Sententia responds (Dec. 15) to Dr. Kurt Kooyer’s Calvin College memoir on medical liability, recently referenced in this space, and takes issue with Kooyer’s assertion that the obligations of the medical profession toward patients are necessarily of a “covenantal” rather than contractual nature. David Giacalone (Dec. 15) notes that a star witness has emerged to support the state of Massachusetts in its dispute with law firm Brown Rudnick over $2 billion in tobacco fees (see Nov. 4): none other than Thomas Sobol, who served at Brown Rudnick as lead attorney on the state’s case, later departed, and now has testified that it would be “absolutely, clearly excessive” for his former firm to pocket the higher sum. Brian Sack (“Banterist”), provoked by a CBS “60 Minutes” segment (Dec. 8), wonders whether the courts will really award money to complainants who say they couldn’t get jobs at Abercrombie & Fitch because they weren’t “pretty enough” or “All-American enough” (see Dec. 26-28, 2000). (Update Nov. 17, 2004: Abercrombie settles three cases for nearly $50 million.) Professor Bainbridge (Dec. 5, Dec. 11, Dec. 15, Dec. 16) has been hammering away at New York Attorney General Eliot Spitzer for using prosecutorial negotiations to induce mutual fund companies to lower their fees: “Spitzer has no authority — none, nada, zilch — to regulate mutual fund fees. Spitzer’s use of his leverage to extort a reduction in fees is a gross abuse of discretion.” And Curmudgeonly Clerk (Dec. 14) documents the latest adventures of anti-videogame attorney Jack Thompson, already much chronicled in this space (see Sept. 26).
Pay me for driving drunk, cont’d
“The wife of a hockey fan who crashed his car after drinking too much at a Minnesota Wild game has sued the team, saying her husband shouldn’t have been served so much alcohol.” (“Wife sues Minnesota Wild for husband’s crash”, AP/CNN, Dec. 13)(more tipple-your-way-to-court cases).
From a kit (no lawyer included)
Experimental aircraft assembled from kits are rising in popularity, aimed at accommodating owner-pilots “who want a new high-performance aircraft without shelling out hundreds of thousands of dollars”. “The fact is, there just aren’t that many new production airplanes,” says Bob Warner, executive vice president of the Experimental Aircraft Association. “Part of the price in the production-built airplane is you’re paying for a bunch of lawyers and a bunch of insurance.” (Jon Bonn?, “‘Experimental’ aircraft push the envelope”, MSNBC, Dec. 15).
Radio tomorrow morning
Tomorrow morning at 8 a.m. EST I’m scheduled to be a guest on Jim Blasingame’s national radio program, “Small Business Advocate“, discussing federal and state anti-spam legislation (more on host/topic). More: President Bush today signed the “CAN-SPAM” bill, the first federal anti-spam legislation (Stacy Cowley, PC World, Dec. 16)
Quebec: Anglophone dolls unwelcome?
“A 68-year-old grandmother in Aylmer, Que., is furious with Sears Canada after the company refused to ship her an inflatable talking toy meant as a Christmas present for her grandson because the doll does not speak French.” Shirley Hammond’s six-year-old grandson had been pleading for the Super Sound Socker Bopper Bop Buddy, which rocks back and forth and says, “Come on, I dare you!” and “Is that all you’ve got?” when hit. However, a salesperson for the retailer, which features the doll in its Christmas catalogue, declined her request. (Stefanie Arduini, “Unilingual doll can’t be bought in Quebec”, CanWest/National Post, Dec. 11; “Punch drunk pettiness” (editorial), Ottawa Citzen/Vancouver Province, Dec. 12). Four years ago (see Dec. 16, 1999), Quebec’s provincial language minister threatened legal action against the makers of Pokemon children’s collectible cards for allowing them to be sold in the province without French-language packaging and instructions.
New batch of reader letters
We’ve posted another batch of letters from readers. Among topics: a Pennsylvania case in which a doctor was ordered to pay for a mistake by nurses in the operating room; an outcry by consumers over the results of a class action (Schwartz v. Citibank) over late fees which is resulting in a $9 million payout in lawyers’ fees and refunds in the range of 18 cents for many credit card holders; a report from a reader that Norton Internet Security is blocking access to our site because we have too much talk about “weapons”, presumably meaning too much discussion of firearms litigation; and a letter on the prospect of lawyers’ going after the personal assets of Connecticut doctors in negligence cases after exhausting their insurance coverage.
Welcome FoxNews.com readers
We’re quoted and this website is mentioned in a Fox News feature about “lawyers of the moment” who find themselves in demand for multiple celebrity cases, such as Mark Geragos, who has represented Michael Jackson, Scott Peterson and Winona Ryder. (Amy C. Sims, “Trendy Lawyers Share Stage With Celeb Clients”, Dec. 16).
Yet another R (Trial Lawyers)?
Housing Secretary Mel Martinez recently quit to run for a Florida Senate seat, but if elected he might not compile the kind of legislative record expected of Florida Republicans. “Martinez was president of the Academy of Florida Trial Lawyers in the late 1980s and was registered to lobby for the group in Tallahassee. It was a time when that powerful interest group had just defeated the medical lobby in a costly and high-profile initiative campaign aimed at capping fees in personal injury cases, known as Amendment 10. … In addition, Martinez has personally donated money to a variety of Democratic candidates over the years, including Delaware Sen. Joe Biden and former Florida insurance commissioner Bill Gunter.” Resistance to Martinez in the GOP primary is likely to be spirited, especially since one of his leading rivals, former U.S. Rep. Bill McCollum, is already raising the trial lawyer connection as an issue. (Bill Adair and Steve Bousquet, “Martinez quits Cabinet, is poised for Senate run”, St. Petersburg Times, Dec. 10; Steve Bousquet, “Storm brews over GOP Senate primary”, Dec. 15). Update Sept. 3: Martinez wins primary.
NYC lead paint bill
A bill now poised for passage in New York’s city council would make it easier to file lawsuits against landlords claiming tort damages for lead exposure in children. The Bloomberg administration has declined to endorse the bill, saying it could generate “huge” liability costs. However, the bill (which has been avidly sought by the litigation lobby) is likely to be passed by the Council today anyway and has more sponsors than are necessary to override a mayoral veto (“Mike brushes off paint bill”, New York Daily News, Dec. 6; Winnie Hu, “City Council Moves Forward With Lead-Paint Legislation”, New York Times, Dec. 13). “The Council’s liability standards will make it very hard for even the most responsible owners to defend themselves,” says Michael Lappin, president of the Community Preservation Corp., which finances housing rehabilitation in older neighborhoods, “and high liability will choke off insurance.” (Julia Vitullo-Martin (Manhattan Institute), “Council is lead-painting city into a corner”, Dec. 10; “Doing the Giffie Shuffle” (critical editorial), New York Post, Nov. 21; “A Lead-Paint Law We Can Live With” (supportive editorial), New York Times, Nov. 29 (fee-based archive)).
Of city children diagnosed with high levels of lead in their blood, a substantial share have ingested the element through other routes (in fact, a substantial share do not live in apartments with lead paint at all). The bill, however, contains a “presumption” clause aimed at making it hard for property owners to dispute hazard findings. Among other clues to the bill’s redistributive objectives: it “makes owners liable even if they are unaware that a child is living in an apartment. Why not require (as did the prior law) parents to inform property owners that they have young children living with them?” (Joseph Strasburg (Rent Stabilization Association, property owners), “Lead Paint Legal Scam”, New York Post, Nov. 24). See Oct. 13; Apr. 24 and Nov. 30, 2000. Update: Council passes bill by 44-5 margin (N.Y. Times, Dec. 16). Further update Feb. 13: Mayor’s veto overridden; Jun. 2: housing market thrown into turmoil.
Forum shopping
Two Germans had a contract dispute with their former employer, German media giant Bertelsmann AG, regarding a European joint venture. The contract, written in German, required the application of German law, and (according to the defense) the major dispute was over the meaning of a German term in the contract. So where to sue? California, of course! The jury came through with a verdict of over a quarter-billion dollars, and their verdict form was apparently sufficiently muddled that the plaintiffs are going to argue that they were meant to receive over a billion dollars. The defense argues that part of the problem is a mistranslation of “participation” into “equity.” (Greg Risling, “Calif. Jury Rules Against Bertelsmann”, AP, Dec. 12; Gina Keating, “Jury Faults Bertelsmann in AOL Europe Suit”, Reuters, Dec. 11).
Update, Jan. 6, 2004: The plaintiffs’ attorney confirms that the main dispute was over interpretation of a clause in the German-language contract, but argues that it would have been “prohibitively costly” for the plaintiffs to bring the case in Germany–which, based on my experience in a number of cases where critical documents are not in English, and require expensive translation, strikes me as extraordinarily unlikely that the case would have been more expensive in Germany, much less prohibitively so if plaintiffs had a sincere belief that their case was worth in the billions. But the reporter does not challenge the assertion. (Nora Lockwood Tooher, “Two German Entrepreneurs Win $255 Million”, Lawyers Weekly USA, 2004).