The Alabama Supreme Court reversed an $82 million verdict against General Motors–not because it was ludicrous to hold GM responsible (much less responsible for $60 million in punitive damages) because a passenger was injured while riding in an Oldsmobile that hit another automobile head on at 50 miles per hour and a combined speed of almost 100 mph, but because the trial judge had refused to strike five jurors who were related to an attorney at the law firm for the plaintiff. The case will be retried. (Philip Rawls, AP, Dec. 12; “Brain injury in crash costs General Motors”, OnWheels, May 20, 2002) (via Bashman).
Newsweek: ATLA’s Turn
Newsweek policy states that the “My Turn” reader-submitted essays should not be “framed as a response to a Newsweek story”, but the December 22 issue features precisely such a piece from Linda McDougal. The article includes almost verbatim the half-facts from ATLA’s press packet that we refuted earlier (see Dec. 12).
A final irony: McDougal concludes her essay with “I also know that if all those who want to restrict the legal rights of ordinary citizens have their way, I wouldn’t have waited seven months for an apology from the doctors, which I got only after my story became public. I would have waited forever.” I’ll leave aside the fact that many ordinary citizens are victims of societally harmful tort lawsuits (see, e.g., Feb. 7, 2000). Has McDougal considered that perhaps the reason that the doctors waited to apologize for a mistaken mastectomy until after she went public was because they were afraid that the apology would be used against them in a lawsuit? (Linda McDougal, “My Turn: I Trust Juries?and Americans Like You”, Newsweek, Dec. 22).
The “Civil Wars” author, Stuart Taylor, was confronted with a series of questions pulled from the same ATLA press release McDougal used, and responded to them in an on-line chat. (Stuart S. Taylor, MSNBC on-line chat, Dec. 11).
Sidenote: we covered a lawsuit of a Pennsylvania parents who sued their school board because their 13-year-old daughter was suspended for a consensual sex act on a school bus (see Sep. 19). Newsweek, in its story, mentioned a superficially similar Kentucky case that involved an alleged sexual assault of a 14-year-old on a school bus, resulting in criticism from McDougal and ATLA, but also going to show that Newsweek only scratched the surface of the problem by dint of its space-limited selections for the story.
Pet store sued
As anyone who goes to a pet store knows, customers frequently bring their pets with them. Unfortunately for Uncle Bill’s Pet Center in Indianapolis, ten-year-old Travis Post had been petting rabbits, and thus “smelled like food” when pet store regular Christopher Simms allowed Travis to hold Simms’s ten-foot python while Simms talked to Travis’s mother. The family has sued Uncle Bill’s (as well as Simms), claiming they should have done more to protect Travis from the resulting attack. “‘Uncle Bill’s had a duty to keep their premises in a way that is safe for invitees,’ [family attorney E. Ralph] Hoover said. ‘Obviously, it’s not safe when you allow people to bring wild animals in and allow them to be around children.'” (Vic Ryckaert, “Uncle Bill’s faces suit after python bit a boy”, Indianapolis Star, Dec. 10) (via Obscure Store).
Hoover is essentially asking a jury to find that pet stores have a legal duty to either (a) bar children or (b) use employee time to screen customers, anticipating in advance which combination of customer and pet will be dangerous to other customers when their mothers leave them unattended. The likely real-world result, if damages are assessed, will be that insurers will require pet stores to bar outside animals. (Dog bites are, after all, much more common than snake bites.)
Now, perhaps we as a society want to create rules that bar animals from pet stores so that people like Christopher Simms and Travis Post’s mother only let small children handle gigantic snakes outside the confines of Uncle Bill’s Pet Center. But isn’t that a decision better made by a legislature considering the totality of the situation rather than a jury considering an individual case?
AEI: Lawsuits without Injuries?
Wednesday, December 17, the American Enterprise Institute Liability Project is holding a panel moderated by Chicago Law Professor Richard Epstein on a new trend in the expansion of tort liability.
While plaintiffs have traditionally been required to demonstrate some form of harm or damage to file a lawsuit, recently proposed definitions of harm appear to be broadening substantially the scope of tort litigation. At the forefront of this legal innovation is the “benefit-of-the-bargain” theory of damages: if a product is shown to have harmed some consumers, unharmed consumers have a claim against the manufacturer on the basis that they would have not paid as much for the product had these risks been known beforehand. Panelists at this event will address the merits and disadvantages of “benefit-of-the-bargain” lawsuits.
Update: picking at the salmon bones
Updating our Jul. 30 item from Alaska: “A Superior Court judge has given preliminary approval to a plan to divide $40 million in settlements created by the Bristol Bay salmon price-fixing lawsuit. … Under the plan to divide it, the fishermen would share $9.7 million, receiving an average of $2,145 apiece. The fishermen’s lawyers would get $16.5 million, and the seafood companies and their lawyers would get $13.8 million.” (“Alaska Digest”, Juneau Empire, Dec. 7) Further update Feb. 22: judge approves plan.
Celebration educational malpractice lawsuit
A Florida appeals court has ruled that a family may sue a school district and a Disney subsidiary that developed the community of Celebration for allegedly false representation in marketing materials that the public school in the area was “cutting-edge.” The family decided that the schools weren’t up to their particular standards, and has chosen a private school. (Kelly Cramer, Miami Daily Business Review, “Parents Can Sue Disney [sic] Over School Sales Pitch”, Dec. 12; Simon v. The Celebration Co. opinion) (via Jacobs).
Update: disabled-rights rulings
On Dec. 2 the U.S. Supreme Court handed down a unanimous (7-0, two members not voting) decision in the much-watched Americans with Disabilities Act case of Hernandez v. Hughes Missile Systems (see Oct. 14, Oct. 7, Sept. 16-17, 2002. It held that notwithstanding the ADA’s protection of rehabilitated drug users, an employer is not obliged to rehire such drug users when it is following an otherwise neutral rule prohibiting the rehiring of former employees terminated for misconduct, provided it is not invoking such a rule as a mere pretext. The decision was widely reported as a straight-out victory for employers (see, for example, “US court rules for company on drug-use disability”, Reuters/Forbes, Dec. 2) but a closer look suggests a more complicated picture, with the door still open for legal attacks on many seemingly neutral employment rules (“Supreme Court Says No-Rehire Policy Is Not Discriminatory Practice Under ADA”, BNA, Dec. 8; “Supreme Court Dodges Question Whether Rehire Policy Barring Former Drug User Violates Disability Law”, Jackson Lewis, Dec. 3).
On the other coast, disabled-rights litigators suffered a significant setback last month that has been little noted in the national press, when a Bay Area judge rejected an suit attempting to hold the clothing discounter Mervyn’s liable for maintaining merchandise displays too crowded for wheelchair users to navigate. In his decision, Alameda Superior Court Judge Henry Needham “wrote that fixing Mervyn’s California stores to make all aisles conform with a 32-inch clearance for wheelchairs would cost the company $70 million in lost annual sales and $30 million in lost profits, according to the company’s estimates.” This exceeds the scope of “reasonable” accommodation, the judge ruled (Melanie Payne, “Judge backs Mervyn’s in disability suit”, Sacramento Bee, Nov. 5). Disabled-rights litigators had made wide-aisle mandates an important priority in lawsuits and protests: see Aug. 23 and links from there.
UK: prolific race litigant restrained
Following up on an item from Jun. 12-15: “The reign of Britain’s most prolific race discrimination litigant could be over. After 82 employment tribunal cases, more than ?74,000 of public money and ?500,000 spent by companies defending themselves against him, Omorotu Francis Ayovuare has been stopped in his tracks by Lord Goldsmith, the Attorney General. Lawyers for the Attorney General persuaded a High Court judge to issue a ‘restriction of proceedings order’ against Mr Ayovuare, whose litigiousness was revealed by the Telegraph in June. He must now get permission from a judge each time he wants to bring a new tribunal or continue an existing case.” American courts also have similar (though infrequently used) procedures by which judges can restrain inveterate litigants. (Adam Lusher, “Attorney General bans race litigant after 82 cases”, Daily Telegraph, Nov. 23).
“The News with Brian Williams” tonight
I’m tentatively scheduled to be a guest on the second half of CNBC’s “The News with Brian Williams” tonight, which is on the air from 7 to 8 p.m. EST. As usual, it’s subject to change in the case of breaking news or other developments.
One doc’s memoir: litigation crisis as morality crisis
Last year it was reported that Dr. Kirk Kooyer, who had come to Mississippi to serve the poor, was leaving the state after being sued by a patient who later said she didn’t want to file charges against him but was talked into doing so by her lawyers (see Aug. 1, 2002; Dorothy L. Pennachio, “Why Dr. Kooyer Had To Move”, Medical Economics, Dec. 23, 2002). Now Kooyer has published a memoir/essay on the tort mess which really shouldn’t be missed, at this link. Brief excerpts follow:
“I watched as a litigation mentality crept into the Mississippi Delta, fueled by a favorable judicial environment. I have had to personally deal with the harassment of unmerited litigation along with its consequences to my family, my practice and, ultimately, my idealism. …
“[A] jury in Sharkey County, where I lived and practiced for eight years, awarded $10 million to the family of a man who had electrocuted himself by touching a pipe to a power line. As the treating physician in that case, as well as a resident of the county, I was interested in knowing what culpability the jury felt the defendant electric company had in the electrocution. One of the jurors told me, ‘Oh, we didn?t think the electrical company did anything wrong, but this way the children will be taken care of.’ …
“Perhaps no individual has suffered more [from the state’s medical liability crisis] than Dr. John Lucas III from Greenwood, Miss. Dr. Lucas, a fourth-generation Mississippi physician, is a trauma surgeon who was instrumental in setting up Mississippi?s statewide trauma network to speed victims of trauma from rural areas to appropriate medical care. In the past year, Lucas has been forced to witness the dismantling of the trauma network because of declining numbers of trauma surgeons in Mississippi. Additionally, he has had to personally deal with three distracting medical malpractice lawsuits, which he considers frivolous. And this past spring, his oldest son sustained a critical head injury in an automobile accident near Greenville, Miss. Last year, Greenville had well-established neurosurgical services. This year the last neurosurgeon providing emergency services in Greenville left the state. After his accident, vital neurosurgical care was delayed while Dr. Lucas’ son was transported 100 miles to the University Medical Center in Jackson. Dr. Lucas, a well-respected surgeon who worked diligently to improve trauma care in his state, who was personally dragged into Mississippi?s lawsuit frenzy, helplessly watched his precious son linger in a coma for several weeks and die for lack of expedient medical care. …
“I don?t think we should be distracted from what is at the heart of our nation?s tort crisis: a crisis in personal morality. We were taught from an early age not to accuse falsely and not to take something that doesn?t belong to us. When litigation is pursued in cases where there has been no negligence and where there has been no injury, not only is tort law not fulfilled, but an important moral teaching is also forgotten.” (Kurt Kooyer, “New Crisis in the Mississippi Delta”, The Spark (Calvin College), Fall). In its next issue, the Calvin College magazine runs a response from an Emory law prof who finds it just fine and completely understandable that people should file lawsuits demanding large sums as a way of “seek[ing] answers” after sudden and unexplained medical catastrophes — which tends to confirm Kooyer’s last point, so far as we can see. (Paul J. Zwier II, “Another Look at a ‘New Crisis in the Mississippi Delta'”, Winter) (& see Dec. 17).