Welcome Sydney Morning Herald readers

“Increasingly, Australians live in a society in which it is always someone else’s fault; in which perpetrators masquerade as victims; in which personal responsibility has been replaced, all too frequently, by a readiness to lie, to sue, to redirect blame or, worse, to find scapegoats. … It is a cruel irony of modern life that the only people who can regularly be relied on to accept — indeed, to claim — responsibility for their actions are terrorist bombers.” Cites a certain website where “many examples of the lunacy of litigation are to be found”. Our special section on Australian cases, covering stories since June of this year, is here; for stories before that date, use our search function. Our section on personal responsibility is here, with older items here. (John Huxley, “Not my fault”, Sydney Morning Herald, Oct. 4)

Overreading mammograms

American women who get routine mammograms are more likely to be called back for additional tests than women in other countries, even though such caution does not result in more cases of breast cancer being found, a new study has found. ‘Higher callback rates would be fine if we had evidence we’re getting more bang for the buck,’ said Dr. Joann Elmore, lead author of research published Wednesday in the Journal of the National Cancer Institute. ‘But we’re not.'” The study found that “American mammographers do not detect any more cases of breast cancer, nor do they detect cancer at earlier stages, than their counterparts in such countries as Australia, the Netherlands, Italy or Britain.” They do, however, have a much higher false-positive rate: “According to one of Elmore’s earlier studies, one in every two U.S. women will have at least one false positive after 10 years of annual screening. … the authors say they have adjusted for most of the other factors that could lead to higher false-positive rates and hint strongly that America’s litigious culture is implicated.” (“Callbacks don’t increase detection”, Chicago Tribune/San Diego Network of Care, Sept. 17). See also Nov. 2, 2000; May 12, 2003; “Study suggests false-positive mammogram results linked to radiologists? experience”, UW School of Medicine Online News, Sept. 27, 2002 (earlier Elmore research).

U.K.: defending assumption of risk

There’s been much attention (and deservedly so) to the recent ruling of the Appellate Committee of the House of Lords in Tomlinson v. Congleton Borough Council (see Aug. 11), which vigorously and eloquently defended the principle of assumption of risk as a bulwark of “the liberty of the citizen” which helps prevent the imposition of “a grey and dull safety regime on everyone.” See, for example, Scott Norvell, “‘The Protection of the Foolhardy or Reckless Few’?”, TechCentralStation.com, Oct. 2. Now, in a case that arose on the Isle of Wight, “A judge has stripped a schoolboy of a ?4,250 damages award after his school argued that it would be ‘madness’ to compensate him for breaking his arm after falling off a swing as he played Superman during a sports day at Chillerton country primary school near Newport. … [O]verturning the ruling that the school was negligent, Mr Justice Gross said at London’s high court that if ‘word got out’ the boy had won his case ‘the probability is sports days and other pleasurable sporting events will simply not take place … Such events could easily become uninsurable, or at prohibitive cost.'” (Clare Dyer, The Guardian, Sept. 25; Chris Boffey, “Judge’s ruling ‘saves school sports days'”, Daily Telegraph, Sept. 25). See also articles by barrister Jon Holbrook in Spiked Online: “‘Duties of care’ to the careless and criminal” (Tony Martin case, etc.), Jul. 29; “The trouble with Making Amends” (medical malpractice law), Aug. 22; “Blind spot” (road accident caused by pedestrian), Sept. 23.

UPDATE: “FBI Probes Big Jury Awards in Mississippi”

It’s not clear what the FBI is looking for, but after a couple of $100 million+ verdicts against pharmaceutical companies in southwest Mississippi, there’s been a lot of collateral litigation that sounds like it’s from a John Grisham novel: former jurors filed suit against CBS for their coverage of the case (see Dec. 16-17, 2002), a half-dozen former plaintiffs have sued their lawyer, and three people claiming they were “runners” have alleged in litigation that they haven’t been paid promised referral fees (see May 7). Pharmacies, brought into the products liability cases as defendants to defeat federal diversity jurisdiction, are being subpoenaed regarding forged prescription records. (Matt Volz, AP, Oct. 3).

Aroma attends Alabama arbitrations

In a rural corner of Alabama, four different mobile home manufacturers get sued for alleged defects and independently agree to accept arbitration of the lawsuits. Each of them then gets whacked by the arbitrator for an award ranging from $360,000 to $590,000, even though the plaintiff’s own expert didn’t claim damages to any of the mobile homes exceeding $5,000. After the companies learn of each other’s misfortune, they begin comparing notes. “What they found, according to court records, were startling similarities in the cases, including undisclosed connections between the arbitrator, Grove Hill lawyer Spencer Walker, and Butler lawyer Jeff Utsey, the plaintiff’s attorney in all four cases. … In a blistering affidavit cited prominently in the [Alabama] Supreme Court’s decision [a unanimous decision in February to reopen one of the cases], Birmingham lawyer Joel Williams laid out evidence to support his contention that the awards resulted from a secret deal between Walker and Utsey, and that the men received assistance from a third lawyer, David Jordan of Brewton. …’The facts strongly suggest that this general plot to “set up” manufacturers was hatched in early 1999,’ Williams stated in his affidavit.” Perhaps even more remarkable, it seems the state bar association blessed attorney Utsey’s questionable conduct beforehand in an opinion letter in that year. This one looks like it will be worth watching (Eddie Curran, “Arbitration awards raise questions”, Mobile Register, Sept. 21).

Overlawyered gets results

On Aug. 27 we said we hoped Arnold Schwarzenegger would tell us where he stood on s. 17200, the state’s abuse-ridden business practices act. Now his campaign has published its official agenda, and not only is “End the Litigation Lottery” Plank #3 in “Arnold’s Five Point Plan for Economic Recovery”, but reform of s. 17200 is the first specific to be listed, along with reform of employment litigation and specifically age discrimination law (California accords more liberal treatment to such claims than does federal law). “California’s runaway litigation system has become a trial lawyer’s paradise — encouraging frivolous lawsuits and outrageous settlements that are bleeding money from businesses while driving the cost of virtually everything higher for average consumers.” (Californians for Schwarzenegger, “Agenda”, undated).

Hazards of being under arrest

The city of Greensboro, N.C. says it will probably appeal a jury’s award of $1.5 million to a man who was under arrest in the back of a police car when the officer driving the car slammed on the brakes to avoid an accident. John A. Clayton III filed a lawsuit claiming permanent back injuries; the city unsuccessfully cited the views of doctors that the impact could not have produced the complained-of injuries. (AP/Charlotte Observer, “Man hurt in police car awarded $1.5 million”, Sept. 28; Wilmington Star-News, Sept. 27).

Mississippi lame duck Supreme Court Justice troubles

Mississippi has an unusual system where not only do its state Supreme Court justices run for election (complete with full-scale television advertising), but the judges elected in November 2002 don’t take their seats until January 2004. Justice Chuck McRae (see Sep. 9, 2002) finished a distant third in 2002. (Robert Lenzner and Matthew Miller, “Buying Justice”, Forbes, Jul. 21). Now his fellow Justices have raised a complaint that he is acting petulantly as a lame duck, delaying cases and threatening violence. The unprecedented public hearing on whether to suspend Justice McRae will be held later this month. (Matt Volz, “Justices allege misconduct by McRae”, AP, Sep. 29; Jerry Mitchell, “Public to get rare glimpse of high court”, Hattiesburg American, Sep. 30; Eric Stringfellow, “McRae’s lame-duck term harmful to high court”, The Clarion-Ledger, Sep. 30). The Mississippi Supreme Court has had other troubles recently, as this site discussed on Aug. 19.

Update: (Jerry Mitchell, “2 justices must testify in McRae case”, The Clarion-Ledger, Oct. 3).