Trial lawyers are hoping to turn California’s endlessly abused and abusive s. 17200 “unfair competition” law (Oct. 26, etc.) to rich new account by using it to sue pharmaceutical companies over a variety of marketing practices that the U.S. Congress and Food and Drug Administration have not seen fit to ban. The Ralph Nader operation is helping out, while the litigation effort is being handled by Seattle trial lawyer and tobacco-caper veteran Steve Berman of Hagens & Berman (see Sept. 9-10, 2002 and links from there). (Bernadette Tansey, “Citizens use law to pursue drug firms”, San Francisco Chronicle, Nov. 23; plaintiff’s site (“Prescription Access Litigation”). Update: see Point of Law, Nov. 8, 2004.
“Couple’s lawsuit takes unexpected turn”
“An attempt to be compensated for being ‘hassled’ by an insurance company after a 1996 house fire backfired this week for a Helena area couple, after a jury decided the duo intentionally caused the blaze.” Unfortunately, the new evidence of arson that came to light in the civil trial can’t be used to prosecute Norm and Darlene Scott criminally, as the statute of limitations expired. (Eve Byron, Helena Independent Record, Nov. 23).
Anthropologist feud thrown out of court
Over the years, Professors Fikes and Furst have been feuding over their respective scholarship over the Huichol Indian community in northern Mexico, in a dispute reminiscent of the cliche referring to academic politics and small stakes. The two had threatened each other with libel lawsuits, but Fikes went through with his; it was litigated up to the New Mexico Supreme Court, which threw out the case Friday. (AP, Nov. 22; Simon Romero, “A real-life feud springs from peyote’s hallucinations”, Arizona Republic, Sep. 17).
Update: Christian Curry case
The New York Observer a little while ago followed up on some of the doings of celebrated ex-Wall Streeter Christian Curry. A few years back, it will be recalled, Mr. Curry filed an employment-bias case against Morgan Stanley, which had fired him after nude pictures of him were published in a sexually explicit magazine (see Nov. 20, 2000). At the time, one bit of mystery stirred comment, namely that Mr. Curry appeared to be flush with money shortly after the settlement even though the parties contended that “no payment” had been made to him for dropping his suit. According to the Observer piece, “several published reports that followed Mr. Curry’s free-spending post-scandal ventures indicated that he had gotten tens of millions of dollars — the figures have ranged from $15 million to $52 million — via some confidential arrangement (the scenarios have varied as well) with his former employer. The February 2001 issue of Brill’s Content, for example, cited ‘a source familiar with the agreement’ who claimed that Morgan Stanley ‘circumvented any direct payment to Curry by compensating three other litigants, all of whom were also suing the firm for discrimination in actions filed shortly after Curry’s, and all of whom were represented by Curry’s attorney Benedict Morelli.’ The source contended that it was left up to Morelli ‘to parcel out the money among his clients.'” (Frank DiGiacomo, “Where is Curry? Man Who Sued Morgan Vanishes”, New York Observer, Aug. 4). More on attorney Morelli: Robert Kolker, “Benedict Morelli Feels Your Pain”, New York, Mar. 13, 2000.
Update: N.J. pols plan revenge on docs
New Jersey doctors bet big and lost (see Nov. 4, Nov. 5) hoping that a $2 million investment in this fall’s campaign would lead voters to throw out the trial-lawyer-allied Democrats. And now their intended targets “are doing what winners do here: Gloating, and plotting revenge. … Now, chest-thumping Democrats plan to inflict some pain and suffering payback on the medical profession.” “It’s one of the basic rules of politics: If you’re going to engage in an all-out assault, you’d better make sure you’re going to win,” said Assembly Majority Leader Joe Roberts. “Deep down, [Marlton pediatrician Michael Falk] never believed the legislature would pass caps anyway. Why? Because many lawmakers are lawyers whose campaigns rely heavily on donations from fellow lawyers. But what really raises the doctor’s blood pressure is the suggestion that the MDs should have stayed silent. Since when, he asks, are democratically elected officials in the business of punishing their constituents for exercising their rights?” (Monica Yant Kinney, “Doctors paying price for exercising a right”, Philadelphia Inquirer, Nov. 16; Caitlin Gurney, “Campaigning costs state’s doctors”, Nov. 14)(& welcome readers of DynamoBuzz, a weblog about New Jersey politics and other subjects, which says some awfully kind things about us, calling us “one of the hidden gems of the Internet … chock full of information about our legal system run amok”)
Update: Fox News suit against Al Franken
You may recall the laughable lawsuit over Al Franken’s book, “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right”, discussed here Aug. 23 and Aug. 12. A Franken fan site has generously provided a complete transcript of the Aug. 22 hearing for readers’ amusement.
Compulsory chapel for Minn. lawyers, cont’d
In the state of Minnesota, lawyers can lose their licenses unless they complete two credits every three years in what is called “Elimination of Bias” training, which resembles what is known in other contexts as diversity or sensitivity training. As we commented two years ago (see Dec. 18, 2001): “The point is less to regulate attorneys’ conduct than to instill in them opinions that the authorities consider correct about complex political and moral questions, and many of the resulting seminars have had a tendentious, preachy anti- white- male tone.” Now an attorney named Elliot Rothenberg has taken the matter to the Minnesota Supreme Court by defying the requirement. “The Board of Continuing Legal Education recommended last June that Rothenberg?s license be placed on involuntary restricted status” because of his refusal to submit to the training. “Rothenberg argues that the rule violates his free-speech rights and the Establishment Clause, which prohibits government endorsement of particular religious viewpoints.” (Barbara L. Jones, “Lawyer challenges two-credit anti-bias requirement”, Minnesota Lawyer, Nov. 17, subscriber-only article; website about the case by Peter Swanson, a lawyer who has filed an amicus brief in Rothenberg’s favor) More: Power Line has a summary with many further details. (& see Jan. 2). Update: Aug. 4, 2005.
Dog gets off leash, punitive damages for pet store
William Dyer at BeldarBlog has some comments (Nov. 16) about a case in which an Austin, Tex. judge awarded $47,000 in damages, including both emotional and punitive damages, against Petco over the death of a dog that got away from a Petco employee while being walked after a grooming, later ran into traffic and was killed. (“Judge awards $47,000 in runaway pet case”, AP/Houston Chronicle, Nov. 16; Claire Osborn, “High price put on dog’s life”, Austin American-Statesman, Nov. 16). For more on damage claims over the emotional worth of pets, see Jul. 30 and links from there.
Hall of reciprocity
Welcome visitors from GruntDoc, “Ramblings of an Emergency Physician in Texas”, which has a pleasing graphically rendered blogroll as well as the expected reflections on medical and military matters. And Southern Appeal, “The random musings of a Southern Federalist and his co-conspirators”, notably including Prof. Michael DeBow of Samford U.’s Cumberland School of Law, who’s written some great stuff on the tobacco-Medicaid litigation. The site is also your one-stop resource for commentary supportive of the appeals court nomination of Alabama AG Bill Pryor. Speaking of such nominations, Prof. Bainbridge offers cogent thoughts about a much-criticized speech by appeals court nominee Janice Rogers Brown (Nov. 4; see Nov. 1) but did startle us several paragraphs before the end with a sudden rhetorical question about whether we personally at this site are “just wasting [our] time.” Alex Wellen, author of the much-talked-about new memoir Barman (relating his experiences as a graduate of a second-tier law school turned intellectual property litigator) has launched a new legal weblog in which he generously lists us among his “blog mentors”; when Wellen’s book tour took him to Manhattan we had a chance to meet and compare notes in person. And we got a great many visitors last week when Todd Dominey of Atlanta (WhatDoIKnow.org) called us “nice” and put us on his “Enjoying” list.
Ninth Circuit gun decision
Eugene Volokh has extensive commentary in several posts on the recent Ninth Circuit 2-1 decision holding gun manufacturers potentially liable because a mentally ill bigot, Buford Furrow, went on a shooting rampage. (David Kravets, AP, Nov. 20) (via Bashman). Furrow is not one of the thirteen defendants.
Trivia not noted elsewhere: the two judges in the majority opinion, Richard Paez (see Kausfiles, Sep. 17) and Sidney Thomas, had some notoriety a couple of months ago when they were two thirds of a panel that made nationwide headlines by trying to enjoin the California recall election before an en banc panel of the Ninth Circuit overturned them in an 11-0 decision. Among the problems with this decision: it forces California standards upon defendants in other states in violation of the Commerce Clause; and, like the punchcard case, the judges impose a new judicially-created rule on their public-policy say-so without any thought as to real-world consequences, which Professor Volokh effectively elucidates. The lead attorney for the plaintiffs, Peter Nordberg (who is better known to readers of this site for his Blog 702, see July 5), is quoted by the AP as saying “I believe this is the first federal court of appeals decision to sustain a claim like this one.” Does it make me an old fogey already because I remember when calling a position “unprecedented” was an argument against its judicial adoption? (UPDATE: Peter Nordberg responds.)(& welcome Kausfiles readers)
UPDATE: As part of a lengthy criticism of the opinion, Clayton Cramer notes the absurdity of the following allegation: “Plaintiffs also allege that the defendants intentionally produced more firearms than the legitimate market demands with the intent of marketing their firearms to illegal purchasers who buy guns on the secondary market.” (Nov. 20) (via Volokh). That same logic of liability can, of course, be used to hit the manufacturers of any product that can be misused: alcohol, cigarettes, slot machines or casinos (the market of “legitimate gamblers” as opposed to addicts), prescription medications, sugar, SUVs, telephones. Congress is considering action to undo the decision. (Jason Hoppin, “9th Circuit Takes Aim at Gun Companies”, The Recorder, Nov. 21).