The U.S. Supreme Court has agreed to decide whether Hughes Missile Systems violated the Americans with Disabilities Act when it enforced an otherwise neutral policy against rehiring workers terminated for violations of its misconduct rules, even though one consequence was to deny a second chance for an employee terminated for past drug abuse, a protected disability. (Warren Richey, “Limits of disability act tested”, Christian Science Monitor, Oct. 8). See Sept. 16-17, 2002 for our earlier take on the case. More: Dahlia Lithwick, “Junkie Justice”, Slate, Oct. 8; Tony Mauro, “Supreme Court Weighs Workplace Rights for Ex-Substance Abusers”, Legal Times, Oct. 9. Update Dec. 13: Supreme Court rules.
“Can’t get upgraded? Sue”
A California resident has brought an intended class-action lawsuit “against Korean Air, arguing the airline company charged him an extra $200 for his ticket when he asked the company to upgrade his economy-class ticket to a business-class one using his accumulated flying mileage.” (Byun Duk-kun, “Korean Air Faces Class Action for `Unfair Mileage Program'”, Korea Times, Oct. 3). Gary Leff at Webflyer comments (Oct. 4). More commentary on frequent-flier-program class actions: Chris McGinnis, “The frequent traveler: Angry fliers challenge Delta over miles-selling”, TravelSkills.com, Feb. 7; Greg Scandlen, “Lawyers Fly High By Suing Airline On Behalf Of Non-Complaining Passengers”, National Center for Policy Analysis “Idea House”, Aug. 10, 2000.
The doctor who went bare
Last month Dr. Mark Macumber, a family practitioner in suburban Chicago, made headlines when he announced that he planned to “go bare” and practice without professional liability insurance. (Sarah A. Klein, “Rising rates force docs out on limb”, Crain’s Chicago Business, Sept. 15). Dr. Macumber has set up his own website (“SaveMyDoc.com“) and his case has stimulated an interesting discussion among medical webloggers: MedPundit (Sept. 27), GruntDoc (Sept. 29), Bhavesh Patel (Sept. 30), Cut to Cure (Aug. 3, scroll down, not on Dr. Macumber but same general subject matter), and MedPundit again (Oct. 2, archives busted, scroll down). After the last-mentioned of these, keep scrolling down to “Beware of Experts” for an exchange between MedPundit and The Bloviator (Oct. 2) on the question of whether unreliable expert testimony was used against a Phoenix gynecologist on trial for taking improper liberties with female patients, and the possible harms done by such testimony even if the doctor turns out to be guilty as charged.
UPDATE: Fen-Phen compensation scandal
Workplace killer’s mom wants comp benefits
The mother of Jonathon Russell, who killed three people and wounded five before shooting himself in a July shooting spree at the Modine Manufacturing Co. in Jefferson City, Missouri, has filed a workers? compensation claim that seeks a death benefit from the company. The late Russell died on company time, according to her filing. The company and its workers’ comp insurer have rejected the claim on the grounds that Russell’s homicidal and suicidal activities were deliberate and were not undertaken in the course of his employment, which means the claim is most likely headed to an administrative judge. (Nate Carlisle, “Shooter’s mom seeks job-injury benefit”, Columbia Tribune, Oct. 5).
More on Trial Lawyers Inc.
Publicity continues for the recent report Trial Lawyers Inc., published by the Manhattan Institute’s Center for Legal Policy (with which I’m associated): The Economist (“Gone are the days when law students were expected to absorb lofty sentiments such as the one uttered by Roscoe Pound, a former dean of Harvard’s law school: ‘The professional man does not measure out his service in proportion to reward.’ Now, many law-school professors are highly-paid consultants for litigating lawyers. Even The Roscoe Pound Centre is, the report notes, funded by trial lawyers.” (Sept. 27). In the New York Sun, Ryan Sager (“The guys in white”, Sept. 29) attempts to reconcile the report’s findings with the opinions of Leon Silverman, former chairman of New York law firm Fried, Frank, Harris, Shriver & Jacobson. Silverman regards increased litigation as a “triumph of democracy,” though for all we know he may be a sensible person in other ways. Also see Jennifer G. Hickey, “Washington Diary: Congress Shifts Into High Gear”, Insight, Sept. 29.
Market-share liability: now prove you’re innocent
Under the theory of market-share liability, dear to the heart of the plaintiff’s bar, consumers who allege that they were injured by a product but cannot identify who made it would get to sue all manufacturers and collect from each in proportion to their share of the market. After early experiments, mostly in the realm of generically equivalent pharmaceuticals, courts have been reluctant to extend the idea any further (see, for example, Apr. 27-29, 2001, on the failure of attempts to assign market-share liability to gun makers). But hope springs eternal, and some New Jersey lawyers are now hoping to get market-share liability accepted in that state in the case of a postal worker banged on the head by the metal door of a bulk letter carrier — she can’t remember which maker’s. “Essentially, we would be shifting the burden from the plaintiff to the defendants,” said attorney Andrew Watson of the law firm representing her. “Any company that could prove its products had nothing to do with the accident obviously wouldn’t have to pay anything. Any company that could not prove its innocence would have to participate in any verdict that was awarded,” he said. Hey, it seems fair to him. (Andrew D. Smith, “Who’s responsible?”, Trenton Times, Sept. 28).
Update: Pets Warehouse case
Longtime readers will remember the saga of Robert Novak, owner of Long Island-based Pets Warehouse, who first sued hobbyists who criticized his business and then went on to sue a lengthy list of online entities that seemed to have lent aid and comfort to his opponents (see Oct. 4-6, May 27, and May 22, 2002 and links from there; letter from Novak to this site, Aug. 10, 2001). This summer, Novak declared bankruptcy and he recently lost the rights to the PetsWarehouse.com domain which was purchased by one of his adversaries and presently serves as a voluminous guide to the status of Novak’s various lawsuits, many of which continue to rage unabated. See also Lisa Napoli, “Freedom of Gurgle in the Fish Tank” (opinion piece), MSNBC, Apr. 4, 2002 (& see update Dec. 28). Further update Oct. 16, 2004: Novak prevails in Alabama case and regains control of domain.
Update: Missouri tobacco fees
The Missouri Supreme Court has refused to entertain a legal challenge to the $111-million fee bonanza awarded to private attorneys who represented the state in its relatively late tagalong lawsuit against the tobacco industry. The St. Louis Post-Dispatch had decried the fee award as a “political gravy train” which “grossly overpays the lawyers involved”, who had plenty of friends in high places in Missouri politics (see our coverage of Sept. 21, 2000 and Jun. 5, 2001). (“Court turns down appeal of tobacco attorney fees”, AP/Jefferson City News Tribune, Oct. 2) (via Lori Patel, Law.com). Ethical Esq.? (Oct. 3) comments on the case, citing a pertinent passage from the Missouri Rules of Professional Conduct, as well as our previous coverage.
Mother leaves daughter unattended, collects $2 million
In 1992, Shelly Moore, against Texas law, left her infant daughter Shannon unattended in a car. “In a deposition in 1996, Moore acknowledged that she had been using a faulty lighter that at times continued to flame after she lighted a cigarette and had to be blown out. Several witnesses testified in depositions that Moore told them she thought she had lighted a cigarette as she left the car, then absent-mindedly tossed the lighter on the seat.” The car burst into flames, and Shannon was horrifically burned, eventually losing all of her fingers and her hearing.
Moore and her daughter moved to Johnson County, Texas, a notoriously plaintiff-friendly region, and Shannon sued…Philip Morris, who made the Marlboro 100s Shelly smoked. (Shannon named her mother as a codefendant; where one named plaintiff and one named defendant are citizens of the same state, a defendant is unable to remove the case to federal court on diversity jurisdictional grounds.) The claim was that a smoldering cigarette caused a fire, and Shannon’s injuries were the tobacco company’s fault for failing to design a cigarette that would not stop burning. Rather than risk putting the case in front of a jury that would be exposed to photos of Shannon’s terrible burns, Philip Morris settled for $2 million. Fifteen previous cases alleging product liability over cigarette fires had been dismissed before trial. (Myron Levin, “Tobacco Giant, in a Shift, Pays Victim”, L.A. Times, Oct. 2). More on case: J. R. Labbe, “Somebody has to pay”, Fort Worth Star-Telegram, Oct. 5.