Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Indiana’

Ind. lawmaker withdraws permission-to-procreate bill

Following a public outcry, an Indiana state legislator has pulled back for further study a piece of proposed legislation that would have sharply limited the use of assisted reproduction medical technologies by married couples, and banned them for everyone else. “State Sen. Patricia Miller, R-Indianapolis, issued a one-sentence statement this afternoon saying: ‘The issue has become more complex than anticipated and will be withdrawn from consideration by the Health Finance Commission.’ … Under her proposal, couples who need assistance to become pregnant — such as through intrauterine insemination; the use of donor eggs, embryos and sperm; in vitro fertilization, embryo transfer or other medical means — would have to be married to each other. In addition, married couples who needed donor sperm and eggs to become pregnant would be required to go through the same rigorous assessment process of their fitness to be parents as do people who adopt a child.” (Mary Beth Schneider, “Legislator drops controversial plan”, Indianapolis Star, Oct. 5).

The bill would have criminalized doctors’ as well as parents’ participation in assisted reproduction except as provided in the rules. Among details of the adoption-like procedures that would be contemplated for married couples under the bill:

A doctor can’t begin an assisted reproduction technology procedure that may result in a child’s being born until the intended parents of the child have received a certificate of satisfactory completion of an assessment required under the bill.

The assessment is very similar to what is required for infant adoption and would be conducted by a licensed child placing agency in Indiana.

Some of the required information includes the fertility history of the parents, education and employment information, hobbies, personality descriptions, verification of marital status, child care plans, letter of reference and criminal history checks.

A description of the family lifestyle of the intended parents is also required, including individual participation in faith-based or church activities.

(Niki Kelly, “State bill would limit procreation assistance”, Fort Wayne Journal-Gazette, Oct. 4). For critical comment, see MedPundit, Oct. 6, and Nobody’s Business, Oct. 6. For favorable comments on the draft bill, some of which were sorry it didn’t go even farther, see various commenters at the Institute for American Values’ Family Scholars Blog (Oct. 4). (& welcome Andrew Sullivan readers).

More: David Giacalone comments (Oct. 11):

After representing hundreds of children in Family Court, I am well aware of the difficulties that arise in single-parent families (as well as in both “broken” and intact married families), but this legislation is far too broad and far too intrusive to be a valid response to those problems. Ironically, many who would support such restrictions do so in the name of the most famous child ever artificially conceived by an unmarried mother.

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One-way fee shifting and religious litigation

Under the Civil Rights Attorney’s Fees Award Act of 1976, plaintiffs collect fees if they win even in part, but pay no fees if they lose. That puts a bludgeon in the hands of objectors in church-state lawsuits (as well as in many other kinds of lawsuits characterized as being about civil rights). Rep. John Hostettler of Indiana has introduced the Public Expression of Religion Act, a bill that would attempt to level the playing field as regards claims of religion-related civil rights violations by public officials. It would do so, however, by eliminating fee entitlements entirely; that would indeed deprive long-shot suits of much of their in terrorem effect, but at the cost of undercutting valid claims brought under the act. Why not take a look at moving toward full two-way fee shifting instead? (Christopher Levenick, “High Noon at Sunrise Rock”, WSJ/OpinionJournal.com, May 27).

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Mikolajczyk v. Ford and Mazda: $27 million in Escort seat litigation

Drunk driver William Timberlake, speeding at 60 mph, rear-ended the Ford Escort in which 46-year-old James Mikolajczyk was stopped at an intersection. Only 3% of fatalities occur in rear-end collisions, so Ford, like most car companies, designs its seat-backs to meet federal safety standards and provide additional protection in other types of collisions–with the unfortunate and unavoidable trade-off that the seat will not perform as well in a rear-end collision. Mikolajczyk’s ten-year-old daughter survived, but Mikolajczyk’s seat collapsed, his head hit the rear of the passenger compartment, and he never regained consciousness before dying three days later. A Cook County jury deliberated all of three hours before finding Ford 40% responsible. And because Ford was found more than 25% responsible, it is on the hook for the entire $27 million award, including $25 million in non-economic damages. Timberlake is in prison. Only the specialty legal press raised the issue of joint and several liability; the mainstream press didn’t even mention the 40/60 split in comparative fault. (Bill Myers, “$27 million verdict in fatal accident”, Chicago Daily Law Bulletin, Mar. 16 (via ICJL); Steve Patterson, “Ford, Mazda ordered to pay $27 million in death”, Chicago Sun-Times, Mar. 17; Chris Hack, “Carmakers to pay in SE Side crash”, Daily Southtown News, Mar. 17; Rafael Romo, “Jury Awards Millions In Fatal Crash Caused By Deffective [sic] Seat”, WBBM-2, Mar. 17; Mikolajczyk v. Ford Motor Co., No. 00 L 3342 (Cook County, Ill.)). More seat-back litigation coverage on this site: Dec. 21; Nov. 24.

Bruce Pfaff, Mikolajczyk’s attorney, previously won a similar seat-back case from an Indiana accident where a cocaine-and-PCP-impaired driver, Kevin Gaczkowski, rear-ended and paralyzed the plaintiff, Lydia Carillo. Ford was found 30% liable (in part because the jury wasn’t told of Gaczkowski’s condition), and paid 100% of the $14.5 million verdict. Carillo v. Ford (Ill. App. 2001). In Carillo, a jury was told to decide whether a vehicle was unreasonably dangerous, but Ford wasn’t allowed to show the jury statistics on how the seatbacks performed in rear-impact collisions (even as the plaintff introduced anecdotal testimony from other paraplegics), or introduce testimony showing that the plaintiffs’ preferred seat-design would have also caused injury. It’s ludicrous enough to have a jury second-guess design decisions as part of a particular case without being forced to be consistent with other juries second-guessing how those same design decisions are operating in other circumstances. But it’s truly absurd to have a jury do this without access to the data of the costs and benefits, thus making the trial purely a game-show over the persuasiveness of hired experts.

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Library molester case: Ladell Alexander v. DBS Security

Pro se prisoner litigation isn’t the biggest problem facing society, but the case of Ladell Alexander is impressive in its chutzpah. Alexander molested a little boy in a St. Joseph County, Indiana library, and was convicted of the crime. Judge Sharp threw out Alexander’s lawsuit against the library security company for not doing enough to stop him, making the obvious point “Though every decent and moral person wishes that he had been prevented from committing this hideous crime, no one owes Mr. Alexander anything for having not done so.” (“Molester tries to sue those who didn’t stop him”, South Bend Tribune, Dec. 9 ($); LibraryLaw Blog reprint of Alexander v. DBS Security, No. 3:04-CV-703 AS (N.D. Ind.)).

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Common Good “Gatekeeper Awards”

Philip Howard’s Common Good organization has announced (Dec. 16) its second annual Gatekeeper Awards for judges who rule inappropriate litigation out of court. (For the first round, see May 12, 2004). Winners this year include:

* An Indianapolis judge who ruled against an attempt to sue a cell phone company over an accident that a driver got into while using a cell phone;

* A New Mexico judge who, citing the privileges arising from the constitutional separation of church and state, refused to allow a surviving family to sue a Roman Catholic priest over allegedly insensitive remarks at a funeral which they said implied that the deceased was headed for Hell;

* A New Jersey judge who refused to allow a suit for negligent parental supervision after a five-year-old boy accidentally collided with and injured an sixteen-month-old girl at a block party;

* A Connecticut Supreme Court judge who wrote an opinion rejecting the doctrine of “self-compelled publication” in employment law, under which dismissed workers sue over injury to their reputation arguing that, whether or not their former employer has said anything damaging about them to outsiders, they have been obliged to spread the defamatory allegations themselves in the course of explaining themselves to potential future employers (see Aug. 10, 1999).

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Center for Justice & Democracy’s Zany “Zany Immunity Law Awards”

Many farmers use anhydrous ammonia as fertilizer, because it provides vital nitrogen nutrients to the soil. The combustible material is produced in Louisiana, and then shipped to the Midwest on barges or through pipelines, and then stored on tanks on farms. However, ammonia is also useful for making illegal methamphetamines, and thefts are a regular problem. (KOMU-TV, “Law Officers Fight Ammonia Thefts”, May 19). If a thief injures himself tampering with an ammonia tank, should he be able to sue the farmer for the injury? Three states, Kansas, Missouri, and Wyoming, say no, and provide immunity for those who store, handle, or own ammonia equipment from suit by thieves. Legislatures are considering the issue in other midwestern states.

The misnamed anti-tort reform Center for Justice & Democracy has noticed the success of the ATRA’s judicial hellhole campaign (Dec. 15; Dec. 3, 2003), and decided to respond with its own report, the “Zany Immunity Law Awards”, intended to single out “special interests” who opportunistically subvert the legislative system to get improper immunity from liability. The cover shows a legislator receiving a statuette, cash in his pocket, and roses with a ribbon labeled “Sleaziest Legislation.”

Exposing sleazy special-interest immunity laws is a noble sentiment–but it’s a sure sign of how few and far between such laws are that CJD singles out the sensible anhydrous ammonia immunity laws for its top ten list. The CJD incorrectly blames the law on a supposed “anhydrous ammonia business lobby”; in fact, it’s groups like the Michigan Farm Bureau that push for laws like Michigan S.B. 786. Indeed, the only group to oppose such laws? Trial lawyers’ lobbying groups. See also Kelly Lenz, “Fertilizer law to help farmers”, Farm and Auction, Jun. 12, 2002.

How ridiculous are the CJD awards? One of the top ten “zany immunity laws” refers to “immunity” granted to placebo manufacturers and distributors. Except the immunity in question isn’t immunity–it’s an exception to a criminal statute prohibiting the sale of fake drugs! E.g., Fla. Stat. 817.564(6)(a). (This is the only appearance of the word “placebo” in the Florida Code. It’s telling that CJD omits the statutory cite in its footnotes.) Perhaps this law is zany, but it’s hardly an example of a special interest group buying sleazy legislation that damages consumers. A subject of a research test who is injured by adulterated placebos (has this ever happened?) will still have a cause of action.

Read On…

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Basketbrawl lawsuits begin

Fark would mark this entry with an “Obvious”: Fans at the now-infamous Detroit-Indiana basketball game Friday night have started filing lawsuits. According to the Detroit Free Press, video shows season ticket holder William Paulson dousing Indiana Pacer Ron Artest with a drink after Artest charged the stands and pummeled an innocent bystander, but he’s suing three players, the Pacers, and the arena over a concussion he allegedly suffered in the brawl. John Ackerman also claims to have suffered a concussion; he’s told different reporters that he was hit by a chair and hit by Jermaine O’Neal. The lawyer is your friend and mine, Geoffrey Fieger (Aug. 31 and links therein). (Ben Schmitt and Frank Witsil, “Victims? Suspect? Prosecutor identifies fan who started brawl”, Detroit Free Press, Nov. 23; Mike Martindale, “Find chair-tosser, get cash”, Detroit News, Nov. 24; Daniel Howes, “Lawsuits over Palace fight show a culture of litigation”, Detroit News, Nov. 24; Bisi Onile-Ere, “Lawsuits come in Palace brawl”, ABC-12, Nov. 23).

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Victory in St. Louis (again)

“Saying a newly revised Missouri law bars such legal action, a state appeals court refused Tuesday to reinstate the city’s [St. Louis’s] lawsuit that sought compensation from gunmakers, distributors and related trade groups for gun-related injuries. … Tuesday’s decision upheld a St. Louis County judge’s dismissal last October of the city’s 1999 lawsuit. In that ruling, Circuit Judge Emmett O’Brien said such lawsuits would open ‘a floodgate to additional litigation,’ and that ‘issues of both logic and fairness’ favored throwing out the case.” (Jim Suhr, “Appeals court rejects St. Louis city’s lawsuit against gunmakers”, AP/Kansas City Star, Jul. 27)(via Conservative Contrarian)(see Oct. 29).

More: One of the few bright spots for the anti-gun side has been a decision by the Indiana Supreme Court allowing the city of Gary’s suit to stay alive. The victory however was not exactly a famous one: “Although Indiana’s high court ruled that the city’s pleadings were legally sufficient, the unanimous panel expressed skepticism that Gary’s counsel could connect all of the links in the causal chain from manufacturer to injured party.” (Andrew Harris, “Court reinstates Indiana gun suit”, National Law Journal, Jan. 5).

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