Baton Rouge, Louisiana: “Smokers beware: Puffing within 25 feet of the door of a publicly used building, a park or in other public spaces could cost you $500 or a year in prison.” (Mike Dunne, “Smoking restriction approved”, The Advocate (Baton Rouge), Aug. 11)(via Gene Healy).
More: Julian Sanchez finds one of the more depressing lines in the story to be: “No smokers stepped forward to talk against the proposal,” and Reason “Hit and Run” readers discuss (Aug. 15).
Advice for employers, at job interviews (“Interview questions you shouldn’t ask”, HRHero.com, Jun. 17, adapted from Louisiana Employment Law Letter)(via Michael at George Lenard’s).
More: reader Mark Moss comments:
The first item on the list of questions you can’t ask prospective employees is, “What is your age?” But sitting on my desk right now is a memo from HR about “I-9 Compliance Update”. The DHS requires me to show my employer documents showing citizenship or right to work in this country — either 1 from list A (e.g., a passport), or one each from list B and C (e.g., driver’s license and Social Security card).
Apparently, HR is on their honor to skip over the date of birth listed on these documents.
And: George Lenard writes in to say:
Regarding the above observation, as I noted in our comments section, there is a distinction between illegal and unwise questions.
ASKING about age when it’s irrelevant is a red flag, smoking gun or whatever, not to mention divisive. (Response: “What’s it to you, youngster? How old are YOU, son?”).
KNOWING about age incidentally, whether from passport, birth certificate, drivers license, or gray hair, wrinkles, and baldspot, is inevitable at some point. I’d look to keeping such information out of the early screening process at least, so the early rejects can’t claim age discrim (OK, you and I both know they can CLAIM and SUE for anything whatsoever; I’m talking about doing so without confronting a strong defense — employer’s ignorance.)
Reader John Steele Gordon writes, concerning the Wachovia announcement: “The WSJ had a story on May 10th about the same thing, only then it was J.P. Morgan Chase’s turn to grovel and donate. I wrote the following, which they had the bad sense not to publish:
Regarding the article about J.P. Morgan Chase spending heaven knows how much money to uncover the fact that some remote corporate ancestor had held a mortgage on slaves:
Laws requiring corporations to do this are a historians’ relief act and, naturally, I’m all in favor of employing historians. But far more perniciously, these laws in effect work “corruption of the blood.” This medieval doctrine visited numerous legal disabilities upon the descendants of those attainted for treason, sometimes for generations. My distant ancestor Lt. Col. Daniel Axtell, for instance, was hanged, drawn, and quartered for the crime of regicide, having commanded the guard at the trial of King Charles I. His son, unable to practice law in England because of his father’s crime, emigrated to South Carolina.
The Founding Fathers, in their wisdom, forbade this grotesque inequity in Article III, Section 3 of the Constitution, and England abolished it in the reign of King William IV, 170 years ago.
Now it’s back, at least for corporations if not, yet, people. But in fact it’s even worse. Daniel Axtell at least committed a crime under the laws of the day and was savagely punished for it. The Citizens Bank of Louisiana, fully four generations ago, did nothing whatever that was illegal and suffered no retribution in its day. But its remote descendants — the stockholders of J. P. Morgan Chase — are being punished, ex post facto.
This is not progress.
More: Michelle Malkin, who was on the issue last week, generously links to our coverage in a post today.
Massachusetts’ highest court has rebuffed John Otis III of Scituate, who first won a largely uncollectable $6.5 million verdict from a drunk driver and then tried to get that victory overturned so as to extract money from others. Otis, a pedestrian, was hit by inebriated motorist Todd Cusick, whose insurance policy limits were only $50,000. Here’s what happened next, according to reporter Sue Reinert of the Quincy Patriot-Ledger:
In a complicated legal maneuver, Otis agreed to free Cusick from his liability. In return, Otis got authority to sue Cusick’s attorneys and his insurer, Arbella Mutual Insurance of Quincy, on Cusick’s behalf. Otis would collect any winnings from the suit.
In this second lawsuit, Otis contended that Cusick got a raw deal from his lawyers, who were hired by Arbella. Cusick would have won the lawsuit if his attorneys had done a good job, Otis argued.
To make his case, Otis’ attorney, Driscoll, had to present the exact opposite arguments that he had made in winning the $6.5 million judgement, yesterday’s ruling said. He even contended that some crucial facts were different, the decision written by Justice Martha Sosman said.
“In short, Otis’ position in the present suit is that he should not have recovered anything in the first suit,” Sosman wrote.
Otis’s downfall proved to be the doctrine of judicial estoppel, which per Wikipedia “precludes a party from taking a position in a case which is contrary to a position they have taken in earlier legal proceedings”, at least if the position proved successful in the first round. (Sue Reinert, Quincy Patriot-Ledger, Mar. 15)(via Common Good Society Watch). For a 2004 case in which Judge Edith Jones of the Fifth Circuit invoked judicial estoppel to stymie the attempt of a bankrupt debtor to pursue a personal injury case not disclosed during his Chapter 13 bankruptcy proceedings, see In re Superior Crewboats (PDF), summarized at the Louisiana blawg Naked Ownership (Jun. 21, 2004).
It was foggy on the morning of January 31, 1997, when James Bowman decided to pass a truck on a two-lane bridge in Morganza, Louisiana. Unfortunately, this resulted in a head-on collision with a car driven by 22-year-old Deependra Charan, and Charan was paralyzed. A jury found $21 million in damages, and attributed 30% of the accident to the Louisiana Department of Transportation for not building a second bridge. Because, after all, head-on collisions in foggy weather never happen on two-lane roads that aren’t bridges. Because Louisiana adopted the tort reform of abolishing joint and several liability, taxpayers are stuck with only a bit over $6 million, rather than the entire bill. (Roy Pitchford, “$21 million awarded in La. 1 crash”, The Advocate, Apr. 23).
Though the press coverage isn’t clear, I’ve confirmed that the case involves the Morganza Spillway, which is a narrow four-mile long flood-control structure that would not be feasible to duplicate. The plaintiffs’ alternative suggestion, a barrier between the two lanes, may or may not be possible, but would certainly make crossing the bridge behind slow traffic (the Spillway seems to be a popular bicycle touring spot) unbearable.
Not included in the press coverage: the jury did not get to hear that James Bowman had a blood-alcohol level of .10, nor that the accident was his third DWI.
Reader Stan Sipple writes me that “a Louisiana attorney several years ago took you up on your proposal that plaintiffs’ attorneys should run insurance companies. Was this what the trial lawyers had in mind?”
Me, I’m sad; it’s been two weeks since I wrote that column. While ATLA issued a press release March 3 claiming and complaining that congressional legislation on caps won’t make medical malpractice insurance cheaper, they’re not taking advantage of my modest proposal how to simultaneously prove their point about tort reform, improve medical care, reduce malpractice insurance rates, and make more money. I can’t imagine why they’re passing up this opportunity if they believe what they say in their press release.
Remember those “Zany Immunity Law Awards” from the “Center for Justice and Democracy” that complained that Louisiana gave immunity from suit for some injuries from thrown Mardi Gras prizes? The law was passed in 1987 when liability fears stopped the Zulu Krewe from the popular tradition of tossing decorated coconuts. But the lawsuits continue claiming to fit within the loopholes, and though Zulu, which had already limited itself to handing coconuts out, usually wins them, they’re having trouble finding affordable liability coverage because of the cost of defending the suits. “‘We’re protected by the law,’ said Gary Thornton, chairman of Zulu’s governing board, ‘but it doesn’t stop people from filing lawsuits against us.'” At least five other krewes have been sued for this year’s Mardi Gras over other thrown prizes. (Leslie Williams, “Girl hit by Zulu coconut sues krewe”, New Orleans Times-Picayune, Mar. 1; “Zulu reigns supreme as crowd favorite”, Louisiana Weekly, Feb. 7) (via RiskProf).
“New York’s Bernstein Litowitz Berger & Grossman and Boston’s Berman DeValerio Pease Tabacco Burt & Pucillo had asked for 7.5 percent of the settlement amount, or around $22 million, for serving as co-lead plaintiffs’ counsel in a suit against pharmaceutical giant Bristol-Myers over its $2 billion investment in biotechnology company ImClone” and over a 2002 earnings restatement (see “Won Its Case, Still Paid $300M To Settle”, Aug. 2). But federal judge Loretta Preska of the Southern District of New York cut the allowed fee to $12 million, observing that the case piggybacked on an SEC enforcement action and on statements already in the public record: “Among securities class actions, this case as a whole was neither unique nor complex.” Moreover, it “is not thirty times more difficult to settle a thirty million dollar case as it is to settle a one million dollar case.” And in a footnote, Judge Preska wrote that the 7.5 percent fee negotiated between the lawyers and their clients should not be accorded a presumption of fairness because the lead plaintiffs — which included the Teachers’ Retirement System of Louisiana, the Louisiana State Employees’ Retirement System, the General Retirement System of the City of Detroit and the Fresno County Employees’ Retirement Association — had acted as “mere figureheads” for fee-seeking lawyers. Bernstein Litowitz partner Erik Sandstedt said the intimation that the pension funds served as mere figureheads “is completely untrue”. (Anthony Lin, “Judge Halves Fees Sought in Bristol-Myers Securities Class Action”, New York Law Journal, Feb. 28).
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.
We’ve previously covered the ludicrous billion-dollar oyster fishermen lawsuits in Louisiana (Sep. 10; May 25; Oct. 18, 2003), where a jury awarded a sum greater than the value of the last century of oyster harvests to oyster fishermen who had a slightly reduced harvest because of a coastal conservation project that changed the beds’ salinity. The Louisiana Supreme Court decided to enforce the “hold harmless” provision in the $2/acre leases that the lower courts ignored, and unanimously voted to toss the judgment; the plaintiffs get zero. For the first time, the press coverage notes that the oyster fishermen negotiated for the clauses as a compromise in 1989 when the state indicated that they were not going to renew the leases to avoid precisely the issue of liability for changed salinity levels–alas, I see no indication that the state will sue the fishermen for breaking that promise in their contract. The refusal of courts to enforce immunity clauses (and laws) is all too often a problem. Louisiana taxpayers should be pleased that the state stood on principle and refused the plaintiffs’ proposal to settle for less than thirteen cents on the dollar of the verdict. (Jeffrey Meitrodt, “Oyster farmers’ award overturned”, New Orleans Times-Picayune, Oct. 20; Janet McConnaughey, “Court throws out $1.3 billion judgment in oyster lease case”, AP, Oct. 20). The AP gives a soapbox to the plaintiffs in an article that has no acknowledgement of the fundamental unfairness of their claim. (Cain Burdeau, AP, “Caernarvon ruling leaves oystermen seething”, Oct. 20).