“Two problem gamblers have filed a potential class-action lawsuit alleging that Detroit’s three casinos have failed to enforce a state program designed to permanently bar gambling addicts from their properties. … Virginia Ormanian of Wyandotte and Norma Astourian of Taylor asked to be barred from the casinos in the summer of 2002. But they couldn’t stay away.” They are now suing the establishments for not doing enough to enforce the program, under which “gamblers who sign up for the program and return to the casino are subject to up to a year in prison, a fine of up to $1,000 or both.” (Becky Yerak and Kim Kozlowski, “Gamblers sue Detroit casinos for not barring them”, Detroit News, Nov. 5). For earlier you-didn’t-exclude-us cases, see Sept. 7, Aug. 1 (Canada).
Updates (blog division)
Our Oct. 28 entry, “Slower saint-making”, about how fear of being sued has slowed down efforts to advance Australia’s Mary MacKillop toward canonization in the Catholic church, has been mentioned on numerous sites and is featured in the latest Carnival of the Capitalists, which rounds up noteworthy business and economic posts. Economic commentator Donald Luskin has withdrawn his speech-chilling demand letter (see Oct. 30) and has issued a curiously worded joint statement with anonyblogger Atrios attributing their dispute to “a series of misunderstandings” and putting it behind them (Kevin Drum, Nov. 4). And Curmudgeonly Clerk (Nov. 2, Nov. 3, Nov. 5) has made himself the one-stop source for information on the seedy saga (see Oct. 31) of how a British reality TV crew organized male contestants to go on camera vying for the affections of “Miriam”, a curvaceous gal who turned out not to be a gal at all, with results that are pregnant at least legally. Update May 26: cases settled.
Back at the old test-rigging game
Ten years after litigation consultants helped NBC News stage fake “tests” which supposedly proved a GM truck vulnerable to fuel-tank puncture (see “It Didn’t Start With Dateline NBC“, our 1993 effort), you have to wonder whether much has changed. “Ford Motor Co. says Dallas rigged a crash test that purported to show that the Crown Victoria is vulnerable to deadly fuel tank explosions even when equipped with safety gear. Ford said its inspection of the car used in the test showed that items in the trunk had been welded together, including a crowbar that was aimed at the back wall of the fuel tank.” The test was paid for by personal injury lawyers representing the city of Dallas in a lawsuit over the death last year of police officer Patrick Metzler, who died when his Crown Victoria was rear-ended by a drunk driver at high speed. (“Dallas rigged Crown Victoria crash test, automaker alleges”, AP/Fort Worth Star-Telegram, Sept. 18.) In the 75-mph test, the vehicle’s trunk was filled with “items that the city said were commonly found in a police officer’s trunk”, which turned out to include a crowbar welded to a vehicle jack — just the sort of contraption an officer might lug around to traffic stops, no? Ford, which discovered such details only later on when it was allowed to inspect the test vehicle during litigation, “criticized the city for not disclosing the artificial conditions when reporting its testing results.” Reinforcing the sense of deja vu, Center for Auto Safety head and trial lawyer chum Clarence Ditlow publicly defended the use of the peculiar trunk contents as legitimate, the same way he defended NBC’s use of hidden rockets back then. (“Ford Questions Dallas Crash Tests”, AP/Primedia, Sept. 18; “City calls Crown Victoria tests ‘valid'”, Dallas Business Journal, Sept. 18). “Mark Arndt, the president of the company that oversaw the testing, is himself an expert witness for the City of Dallas in its lawsuit against Ford. Arndt makes his living as a hired gun testifying against carmakers.” (Mike Scott, “City’s crash test spawns controversy”, reprinted at Houston Citizens Against Lawsuit Abuse site). For trial lawyers’ side on the Crown Victoria controversy, see Ditlow’s Center for Auto Safety; Dallas City Hall; and Crown Victoria Safety Alert. For Ford’s side, see CVPI.com.
New York abolishes ad damnum
Late last month New York Gov. George Pataki signed into law a bill that will abolish the requirement that a personal injury or wrongful death lawsuit specify at the outset (in its “ad damnum” clause) the amount in dollar damages it is seeking. New York thus becomes the latest state to adopt a measure that is relatively rare among litigation reforms in eliciting widespread support from among both defense interests (example: American Medical Association model legislation, PDF) and the plaintiffs’ bar, which is perennially embarrassed by news items such as the one cited in yesterday’s New York Times about how a woman who survived the Staten Island Ferry catastrophe has demanded $200 million for a sore back and lost sleep. Lawyers “often will pick an astronomical figure for fear that a lower number will preclude their clients from recovering damages if they win a case” — or, of course, they may be seeking the publicity that often accompanies huge demands. The state bar association urged Pataki to sign the bill, saying it “will reduce pretrial publicity about how much money is sought from particular defendants, and deals with the common misunderstanding by the general public that the amount sued for is the amount actually obtained by plaintiffs.” (Joel Stashenko, “Pataki Signs Bill Eliminating Damage Amounts In Liability Suits”, AP/Newsday, Oct. 31).
Election results
Tort reformers did well in Mississippi elections, with GOP challenger Haley Barbour toppling incumbent Gov. Ronnie Musgrove (D) and Republican Lt. Gov. Amy Tuck handily fending off a challenge from trial-lawyer-legislator Barbara Blackmon (Julie Goodman and Patrice Sawyer, “Republican challenger unseats Musgrove”, Jackson Clarion-Ledger, Nov. 5; Andy Kanengiser, “GOP’s Tuck breezes to victory over Blackmon”,
Nov. 5). The Democrats did hold onto the state’s attorney generalship, however. Meanwhile, doctors campaigning for malpractice reform (see Nov. 4) suffered stinging defeats in Pennsylvania, where Democrat Max Baer beat Republican Joan Melvin for a seat on the state supreme court, and New Jersey, where Democratic followers of Gov. Jim McGreevey solidified their hold on the state legislature, in part by outspending their rivals four to one. (“Democrat Baer defeats Melvin for top Pa. court”, AP/Philadelphia Inquirer, Nov. 5; Tom Turcol, “N.J. Democrats secure control of legislature”, Nov. 5).
Tobacco lawyers to Mass.: we’ll sue for the whole $2 billion
Law firms Brown Rudnick Berlack & Israels and Lieff, Cabraser, Heimann & Bernstein now say they’ll sue the state of Massachusetts for the whole $2 billion they say they’re entitled to — a 25 percent contingency share of the state’s $8 billion tobacco-settlement booty — rather than accept the measly $775 million they’ve been awarded in arbitration. The Associated Press says the firms “risk becoming poster children for attorney greed at a time when the profession is already under attack for high damage awards. ‘This lawsuit is about greed and it’s about selfishness. They should be ashamed of themselves,’ said former Maine Attorney General James Tierney, who worked with attorneys general from around the country to help negotiate the $246 billion master settlement.” (“Law firms go to court to make Massachusetts pay full tobacco legal fee”, AP/San Francisco Chronicle, Nov. 3; Steve Bailey, “Pigs at the trough”, Boston Globe, Oct. 10) For earlier coverage of the Massachusetts fees, see May 19; Jan. 2-3, 2002; Aug. 13-14, 2001; Dec. 22, 1999. (& see Dec. 17)
Update: “Lawyers’ Ads Seeking Clients in Ferry Crash”
As we predicted in an Oct. 18 entry, suits are being filed at a rapid pace over the October Staten Island ferry crash. Some suits feature victims who have suffered very real and very tragic injuries — but are seeking payouts as high as $500 million. Others are seeking millions or hundreds of millions of dollars for “emotional trauma” or “losing sleep”. And television and newspaper advertisements abound as lawyers solicit clients–including one tv ad showing “a ghostly image of a ferry washed over by a tidal wave of green dollar signs”. Best two paragraphs from today’s New York Times–wait for the punchline:
Lloyd Joseph fractured his back when the ferry crashed and was still being treated last night for various injuries at a Staten Island hospital. Mr. Joseph and his lawyer, Sanford Rubenstein, during a conference call interview, lamented the fact that some of the lawsuits stemming from the accident seemed frivolous.
“It’s ridiculous,” said Mr. Rubenstein, who did not advertise for ferry-crash clients. “Obviously, the public might have a problem taking seriously a claim that is serious when others that are not that serious are filed for huge amounts.” Mr. Joseph and his wife, Jocelyn, are seeking $105 million in their lawsuit.
Malpractice key issue in NJ, Pa. races
“In New Jersey, where state-level candidates usually campaign over issues such as property taxes and school funding, the No. 1 issue is now medical malpractice — if political fund-raising totals are any indication.” Doctors are throwing themselves into state politics and are so passionate about the issue that they’re actually outspending trial lawyers by a wide margin. (“Malpractice Issue Draws Most Funding in N.J. State Races”, BestWire/HIMSS (Healthcare Information and Management Systems Society), Oct. 28). Pennsylvania physicians are up in arms as well, hoping to make their voices heard in a key state supreme court contest between Republican Joan Orie Melvin and Democrat Max Baer (Carrie Budoff, “This time, physicians are players in election”, Philadelphia Inquirer, Nov. 3; Marian Uhlman, “As doctor workforce ages, a fear of shortage”, Oct. 12). In Massachusetts, nearly 1,000 doctors descended on the statehouse last spring attired in white coats, demanding malpractice reform (David Kibbe, “Liability insurance hikes scaring off some doctors”, Ottaway/New Bedford Standard-Times, Oct. 6). See also “Tort-reform law could cure ills of malpractice” (editorial), Rockingham News, Oct. 31 (New Hampshire)(suggesting that recent Texas reforms serve as model).
Where eagles fear to litigate
Eagle Pass, Texas, in Maverick County along the Rio Grande, isn’t likely to shake its reputation for plaintiff-friendly jurisprudence any time soon, as a San Antonio Express-News profile makes clear. “L. Wayne Scott, a professor at St. Mary’s University Law School…. who has mediated civil cases in Eagle Pass, estimates defendants there are roughly 10 times more likely to lose than in conservative Dallas and two or three times more likely to fall than in San Antonio. … Indeed, the prospect of facing a jury in Eagle Pass — where Mayor Joaquin L. Rodriguez also is one of the city’s top plaintiff’s attorneys — frequently makes companies more willing to settle and in higher amounts than they would agree to in other venues.” Although a 1995 round of state tort reforms has somewhat curbed the rampant forum-shopping by which plaintiff’s lawyers used to bring suits from around the state to Eagle Pass, there is still a steady diet of cases to be had against major national defendants, including suits against automakers over road crashes and a case against Connecticut-based shotgun-maker O.F. Mossberg & Sons Inc. over a hunting accident that took place in another Texas county. Local plaintiff’s attorney Earl Herring says that a case worth $10,000 in Eagle Pass would be “worth $500 in Uvalde.” (Greg Jefferson, “Eagle Pass remains known as plaintiff’s attorney paradise”, Nov. 2).
Dollywood ditches disabled discounts
More presumably unintended consequences of ADA litigation: “Dolly Parton’s theme park is stopping its free-entry policy for guests with certain disabilities. Dollywood, Tennessee’s top tourist attraction, said it was responding to a lawsuit by a local woman claiming its discretionary discounts for impaired visitors violated the Americans with Disabilities Act.” For many years the park waived its $40 admission fee for patrons who are blind, deaf or use a wheelchair, but “those discounts will end Jan. 1 on the advice of lawyers. … ‘From a legal standpoint, our staff is not qualified to make decisions on who should or should not be given free admission to the park based on their level of disability,’ the park said on its Web page.” (“Dollywood to end free admission for disabled”, AP/Knoxville News Sentinel, Oct. 30).