“A lot of plaintiff lawyers simply use the litigation process to find out whether it’s a good case as opposed to trying to find that out before they sign it up,” Mr. Johnston says.
— from a profile of Randy Johnston, a Dallas lawyer who specializes in plaintiff’s legal malpractice work. (Cheryl Hall, “Randy Johnston is a lawyer who sues other lawyers”, Dallas Morning News, Aug. 20).
A “slam dunk” story for the day after the NBA Draft:
Dallas Mavericks owner Mark Cuban isn’t shy about using multiple avenues to promote himself and his team. In what is likely an attempt to keep his name in the news, Cuban is suing Golden State Warriors head coach Don Nelson, who used to coach the Mavericks, for knowing the Mavericks personnel a little too well. This “inside” knowledge, claims Cuban, helped the eighth-seeded Warriors beat the #1 seed Mavericks in the first round of the NBA playoffs this year.
From the story:
Mavericks owner Mark Cuban believes Golden State’s sizzling shooting alone didn’t sink his basketball team in the most stunning playoff defeat in NBA history.
That’s according to Don Nelson’s attorney, John O’Connor, who said Cuban is suing Nelson, claiming the Warriors beat the Mavs in the first round because the Warriors’ coach — and former coach of the Mavs — had “confidential information and he [Cuban] wants to enjoin Don from coaching against the Mavericks.”…
According to the story, when Nelson left the Mavericks, he signed a “non-compete” agreement with Cuban, which Nelson claims ended when he took the job with Golden State. Cuban contends that this agreement is still in effect, which should prohibit Nelson from being able to coach another team.
I’ve often wondered how this actually affects sports teams – for instance, when a baseball player is traded mid-season to a competitor. Does it do his new team any good to have his inside knowledge of how the other team works? Isn’t it an advantage to know all the signals and shifts the other team can make, not to mention the personnel tendencies?
It’s still up in the air, however, which is a more embarrassing move for a franchise: Cuban’s lawsuit, or drafting a Chinese guy who may be lying about his age, refuses to work out against a human being, and has the Chinese government saying he will never play for your team. But I’m not bitter.
The newspaper reprinted my warning labels column yesterday (Walter Olson, “Product labels have come unglued from reality”, Mar. 25). Reader Gary Neyens of Round Rock, Tex. wrote in to say he enjoyed the piece and added one of his own favorite stories:
I recently replaced the serpentine (fan) belt on my Ford pickup. The Ford Motorcraft packaging warned “Shut off engine before checking or replacing belt”. I know the reason for this warning – – Somebody, somewhere…
While on the subject of publicity, Legal NewsLine did a whole article (with file photo!) based on my recent column about not counting the trial lawyers out (Rob Luke, Anti-business suits still surging, warns tort-reform expert”, Mar. 21). Last month New York Post reporter Janon Fisher quoted me in an article on the “firefighter’s rule” which historically has barred injured public rescue personnel from suing the people they were rescuing, or others whose negligence allegedly led to disaster (“Firemen file arson lawsuits”, Feb. 2). And a couple of publicity clips from last year that I didn’t round up at the time: at the North County Times’ The Californian, Bridgit Jordan quotes me on Mayor Bloomberg’s anti-tobacco philanthropy (“Donation may go up in smoke”, Aug. 22); and Joseph Goldstein of the New York Sun quotes me in an illuminating article about the “creeping oversight” of New York City government operations obtained by the feds through consent decrees and the like (“Bush Administration, in Series of Federal Lawsuits Against New York Agencies, Gains Creeping Oversight of Local Government”, Aug. 15).
New York Times legal correspondent Adam Liptak has a good article summing up the state of play on legal actions arising from unkind reviews of eateries, including several cases familiar to our readers (Feb. 27, Philadelphia; Feb. 10, Belfast; Jan. 3, 2006, Dallas)(“Serving You Tonight Will Be Our Lawyer”, Mar. 7). More: PhilaFoodie.
The ludicrous $366 million award on a conspiracy theory (Aug. 30, 2004; Sep. 2, 2004) was, as we predicted reduced by remittitur to a still ludicrous $22.5 million. (Plaintiff’s attorney’s press release, Sep. 21). Kevin M.D.’s commenters note that the trial bar simultaneously complains that doctors don’t do enough to police themselves and then hold doctors liable for policing other doctors.
Note that the doctors whom the verdict was issued against weren’t even the ones on the peer review committee that suspended Dr. Poliner’s privileges for a few months; they were just the ones who started the peer-review process.
Apparently there is no honor among thievesplaintiffs’ attorneys. The Texas Shark Watch Blog tells us that John Edwards’ money-man, Fred Baron, has sued his former law firm:
Never one to overlook any conceivable cause of action, Baron alleges in his petition filed in Dallas state district court breach of contract, breach of fiduciary duty, conspiracy to breach fiduciary duty, tortious interference, conspiracy to tortious interference, fraud or alternatively negligent misrepresentation, conspiracy to fraud, fraudulent transfer, conversion, legal malpractice, negligence, unjust enrichment, and alternatively promissory estoppel or quantum meruit.
The blog has much more about plaintiffs’ bar involvement in Texas politics, including the use of over a million dollars of trial-lawyer money to support the independent-Republican candidacy of Carole Strayhorn, presumably to split the Republican vote and unseat a governor who has done much for reform. Efforts by trial lawyers to supplant reform-friendly Republican legislators with their own stalking-horse candidates in Republican primaries were unsuccessful, however.
Duly noted: Pennsylvania state treasurer and U.S. Senate candidate Robert P. Casey Jr. last June made his first fund-raising trip outside the East Coast, flying to Dallas aboard a private jet owned by the law firm of Baron & Budd, poster kids for legal ethics in the asbestos realm. “Casey flew out of Dallas with more than $71,000, including $28,000 from employees of Baron and Budd.” (Carrie Budoff, “Money at center of Senate contest”, Knight Ridder/Centre Daily Times, Feb. 13)(OpenSecrets.org). Similar: Jan. 8, 2001 (Sen. Edward Kennedy).
In 1991 portions of Texas’s Rio Grande Valley saw an upsurge in babies born with neural-tube defects. Litigation resulted:
Residents and lawyers had blamed pollution, and General Motors and other U.S.-owned factories paid $17 million without admitting wrongdoing to settle a lawsuit accusing their border factories of poisoning the air.
The claimed linkage of cause and effect between the factory pollution and the birth defects was, to say the least, much controverted at the time, and is looking even less impressive in hindsight:
no chemical links to the disease were ever proven, and Texas health officials began suspecting fumonisin, a toxin in corn mold. Experts had noted a high concentration in the corn harvest just before the outbreak. Some Texas horses died from brain disease caused by the toxin.
Now, a study in the February issue of the journal Environmental Health Perspectives adds impetus to the corn-mold theory:
The study found that pregnant women who ate 300 to 400 tortillas a month during the first trimester had more than twice the risk of giving birth to babies with the defects than did women who ate fewer than 100 tortillas.
Blood samples indicated that the higher the level of fumonisin, the greater the risk of neural tube defects.
Tortillas are an inexpensive dietary staple along the Texas-Mexico border, and studies suggest that the average young Mexican-American woman along the border eats 110 a month.
(“Study: Bad corn caused birth defects”, AP/Seattle Post-Intelligencer, Feb. 8). See also Dallas Morning News, Mar. 4, 2001; AP, Jan. 2001; Nicole Foy, “Border birth defects are tied to poverty”, San Antonio Express-News, Apr. 9, 2004.
Among its other implications, the episode may suggest the safety gains to be had in the shift from a pre-modern food regime based on local farm and home production to the sort of industrially based food regime more familiar to most Americans. Even aside from the issue of folic acid fortification, a big-city tortilla factory run by a large company would probably have had a better likelihood of screening out moldy batches of corn.
We reported on the story in September 2004:
“Joe Doe”, the HIV+ plaintiff in a Texas state lawsuit, is a member of the choral group “Positive Voices”—which has produced a CD with his photo and his real name. Nevertheless, when the alternative weekly Dallas Observer also identified “Doe” as HIV+ in passing in a larger December 4 story about a gay congregation titled “Fallen Angel,” “Doe” sued. The suit doesn’t allege that the Observer got its facts wrong, but argues that the story violates a Texas law prohibiting the disclosure of “medical test results,” with a fine of up to $10,000 for each disclosure. Since the Observer has circulation of 110,000, “Doe” figures he’s entitled to over a billion dollars.
Positive Voices is a group that advertises itself as consisting of HIV+ members. A Texas state court of appeals reversed the decision of the trial court not to grant summary judgment, and entered judgment for the defendants. (John Council, “Texas Appeals Court Sides With Newspaper in $1 Billion Suit Over HIV Disclosure”, Texas Lawyer, Feb. 13; New Times Inc., et al. v. John Doe., No. 05-05-00705-CV (Tex. App. Jan. 24, 2006)).
The decision was limited to the facts of the case, however, and the state statute remains overbroad, and could easily be construed by future courts to apply to the media. Or even personal-dating websites: a strict interpretation of the statute, HSC § 81.103, would create a cause of action for a plaintiff who posts “I have tested negative for HIV” on a website that screens essays against that website. And the statute is conceivably even broader, given its definition of “test result”:
“Test result” means any statement that indicates
that an identifiable individual has or has not been tested for AIDS
or HIV infection, antibodies to HIV, or infection with any other
probable causative agent of AIDS, including a statement or
assertion that the individual is positive, negative, at risk, or
has or does not have a certain level of antigen or antibody.