Last year (see Jul. 12-14, 2002) we swiped MedPundit’s description and link for an Ohio product liability case: “Two carpet installers who admit they read the label of an adhesive they used, admit they understood the adhesive was flammable and should not be used inside, used it inside anyway, caused an explosion, were burned badly, sued, and won $8 million dollars.” Now a state appeals court has upheld the award. (“In the Region: $8 million award upheld for 2 men”, Akron Beacon Journal, Jun. 20). More on original verdict: National Law Journal, Jul. 26, 2002.
Update: airline blood-clot suits advance
“The drive to make airlines responsible for passengers who develop deep vein thrombosis — the potentially deadly blood clots often linked to long flights — is picking up momentum with a federal court judge’s refusal to dismiss two lawsuits.” Federal judge Vaughn Walker in San Francisco ruled last month that lawsuits could proceed on behalf of two passengers on trans-Atlantic flights who developed blood clots after sitting for hours with minimal leg movement — “economy class syndrome”, as the nickname would have it (see Dec. 13-14, 2000). (Arianne Aryanpur, “‘Economy Class Syndrome’ Lawsuits Against Airlines Can Move Forward”. USA Today/Good Housekeeping, Jul. 29).
Update: new trial in Ont. you-let-me-drive-drunk case
The Ontario Court of Appeal last fall ordered a new trial in the case in which Linda Hunt had sued her employer for letting her drink too much at an open-bar office holiday party, contributing to her later car crash (see Feb. 7-8, 2001). The employer defendant, a realty company, “appealed on a number of grounds but succeeded on only one, which was that the trial judge had [incorrectly] discharged the jury on the grounds that the case was too complex.” (case summary by James Thomson and Gerard Chouest, Paterson McDougall LLP, Oct. 1, 2002; Filion Wakely Thorup Angeletti, case summary, undated (PDF)). Further update: executive editor Michael Fitz-James of Canadian Lawyer magazine writes to inform us that the parties settled the case last winter after the appellate ruling.
The cerebral palsy law machine
It grinds on inexorably, for all that the medical establishment may cast aspersions on it (see also Feb. 27). In June a San Jose jury voted $38 million to a family in a case in which an earlier Caesarean section would allegedly have prevented a child’s cerebral palsy; the medical defendants strenuously denied any such causal link (Barbara Feder Ostrov, “Baby, family win $38 million verdict”, San Jose Mercury News, Jun. 18). The Palm Beach Post traces the history of a $10 million verdict which “sank one of Florida’s largest physician-run malpractice insurers … While the award pays for Kenan’s care, it also pays for legal fees that leave [mother Priscilla] Davis wondering at times whether she should have taken her chances with the state Medicaid plan.” Causation, you ask? “It remains unclear whether any doctor could have prevented Kenan’s cerebral palsy.” It was a Willie Gary case (Sanjay Bhatt, “Boy’s case illustrates malpractice crisis”, Palm Beach Post, Jun. 15). And a federal judge in East St. Louis, Ill. has awarded $19 million in a lawsuit which ascribed a child’s cerebral palsy to a doctor’s improper use of a vacuum extractor during labor. No word from the newspaper report on whether the defendants disputed this causal theory, but the choice of defendants was an interesting one: the federal Treasury. “The doctor, Charles L. Davis, was considered a federal employee because his employer, the Southern Illinois Healthcare Foundation, receives funding from the U.S. Department of Health and Human Services. The government was named as a defendant, but he was not.” (William Lamb, “Botched birth nets verdict of $19 million”, St. Louis Post-Dispatch, Jul. 31).
Bakker settlement: lawyers get $2.5 M, clients $1.2 M
A federal judge has ordered a settlement fund to pay $6.54 each to nearly 165,000 people who lost money in a real estate venture promoted by disgraced PTL ministry founder Jim Bakker. Claimants “said they gave a $1000 each for four-day vacations at a resort that was never built. Their attorneys won $2.5 million.” (“165,000 in PTL-Bakker class action each win $6.54 settlement”, AP/WIS-TV, Jul. 31; “Briefly … Tort Reform?” (editorial), Winchester Star, Aug. 4).
California’s busiest disabled-law enforcer
“Must a rustic winery pave country lanes and a parking lot to welcome visitors in wheelchairs? … Facing off against the wineries is George Louie, the controversial head of the Americans with Disabilities Advocates in Oakland, California, who has sued hundreds of wineries, banks and stores to improve access for the disabled. ‘We hunt you down … We really do you in,’ he said in an interview. … Kathleen Finnerty, who has defended firms in many such cases, said difficult-to-meet rules to give access to the disabled have bankrupted some firms. A diaper shop in Oakland, a Berkeley winery, a Sacramento restaurant and a root beer stand have gone out of business following the suits, she said. … ‘Guys like George Louie who abuse the system, you know, create a problem for us with public perception, they create a problem with the courts,’ Wolinsky said [Sid Wolinsky, director of litigation of Berkeley-based Disability Rights Advocates]. ‘I’m totally opposed to that.’ Louie, who is black, said some of such criticism is fueled by racism.” (However, Disability Rights Advocates’ own more respectable uses of the ADA may prove equally or more damaging to the California economy: in a lawsuit going to trial this week, it’s trying to force the big clothing discounter Mervyn’s to uncrowd its merchandise displays so that wheelchair users can freely navigate between clothing racks, a step that if successful would markedly raise the cost of doing business.) (“California lawsuits test obligations to the disabled”, CNN, Aug. 8)(via Legal Reader).
“Virtually without exception, Louie’s defendants settle out of court by paying legal fees for both parties and the cost of facility upgrades. Bills commonly reach $10,000 — sometimes up to $100,000 — including at least $4,000 per case in awards to Americans With Disabilities Advocates. Last year alone, Louie said, revenues for Americans With Disabilities Advocates easily topped $500,000, mostly from out-of-court settlements.” Louie “likes to compare his organization to a well-oiled business” but claims not to draw a salary from AWDA. “In 1968, he was convicted of interstate transport of counterfeit checks and served more than six years in federal penitentiaries. He also said he served time in a state prison in the early 1980s for robbing a drug dealer.” (Mike Lee, “Disability activist sets sights on state’s wineries”, Sacramento Bee/Contra Costa Times, Jun. 8)(more on disabled-rights filing mills)(& welcome Reason “Hit and Run” readers).
Fox’s thin pelt
Shrinking the parody exception? “Fox News Channel has sued liberal humorist Al Franken and the Penguin Group to stop them from using the phrase ‘fair and balanced’ in the title of his upcoming book. Filed Monday in Manhattan, the trademark infringement lawsuit seeks a court order forcing Penguin to rename the book, ‘Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.’ It also asks for unspecified damages. Fox News registered ‘Fair & Balanced’ as a trademark in 1995, the suit says.” The suit claims that Franken displays a “clear” intent “to exploit Fox News’ trademark, confuse the public as to the origins of the book and, accordingly, boost sales of the book”. (“Fox Sues Humorist Al Franken Over Slogan”, AP/Washington Post, Aug. 11). Last month it was reported that lawyers for Fox had sent a cease-and-desist letter to the Austin, Tex. creators of a T-shirt with a message “Faux News: We Distort, You Comply”, parodying the network’s well-known slogan. (Lee Nichols, Austin Chronicle, Jul. 11; AgitProperties website, Jun. 20).
In June radio talk show host Michael Savage, who at the time also had a TV talk show on MSNBC, sued three critics who had been urging advertisers to boycott his show (“Savage sues ‘rats'”, Southern Voice, Jun. 27; defendants SavageStupidity.com and TakeBacktheMedia). Separately, Savage’s producers fell short in an effort to argue that SavageStupidity.com’s domain name was “confusingly similar” to that of Savage’s own website and should be forfeited. (& more on the Fox/Franken case: New York Times, Eugene Volokh, Kevin Drum, Matt Yglesias, and (via InstaPundit) Alex Knapp, Jeff Jarvis)(& letter to the editor, Dec. 6).
Upcoming in Milwaukee, Oklahoma City
This Thursday, Aug. 14, our editor will be giving a luncheon speech to the Milwaukee chapter of the Lawyers Division, Federalist Society (details). And on Wed., Aug. 20, he’ll address the Oklahoma Council of Public Affairs as the final speaker in its Summer Speaker series in Oklahoma City (flyer) (Tulsa Today). In conjunction with the OCPA event he’ll be heard on several broadcast shows in the Sooner State, including, on Tues. Aug. 12 at 1 p.m. CDT, station WKY with host Brandon Dutcher, and on Fri. Aug. 15 at 7:15 a.m. CDT, station KTOK with host Cam Edwards, as well as a discussion show (time TBA) on KFOR-TV (NBC, ch. 4).
U.K.: “End this compensation nightmare, say judges”
“Britain’s most senior judges have demanded an end to ‘the culture of blame and compensation’ in a landmark ruling which decrees that individuals must take responsibility for their own actions. The Appellate Committee of the House of Lords has used its judgement in a compensation case to brand Britain’s growing U.S.-style claims system as an ‘evil’ that interferes with civil liberties and freedom of will.” Ruling in the case of a man who sued local councils after he ignored safety warnings and hurt himself diving into a lake, the judges warned that continued expansion of liability “has many evil consequences and one is certainly the interference with the liberty of the citizen” as well as the imposition of “a grey and dull safety regime on everyone.” An example of the latter? “This year, a historic cheese rolling event in Gloucestershire, in which participants race down a hill chasing cheeses, was cancelled because of safety fears.” (Charlotte Edwardes, Daily Telegraph, Aug. 3). “[E]ven rugby, incredibly, is under threat from the compensation culture. There is such a terror of litigation that the number of independent schools offering rugby has fallen by 30 per cent over the past 15 years.” (Boris Johnson, “Knock some sense into the children”, Daily Telegraph, Aug. 7). Plus: decision in Tomlinson v. Congleton Borough Council, via Southern Appeal)(& welcome Volokh Conspiracy readers).
“Kaczynski asks court to return his bomb materials”
“Theodore J. Kaczynski, the onetime UC Berkeley math professor better known as the Unabomber, wants the federal government to return all his stuff — including one of his bombs — that the FBI confiscated when he was arrested in his tiny Montana cabin seven years ago.” (Michael Taylor, San Francisco Chronicle, Aug. 11).