Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘San Diego’

Fairy shrimp v. people

A little-remarked section of the 2004 National Defense Authorization Act amended the Endangered Species Act to require federal agencies to consider impact on national security before designating land as a “critical habitat.” Thus, the Fish & Wildlife Services’ new critical habitat designation for the fairy shrimp–inch-long crustaceans that live in “vernal pools” (i.e., mud puddles)–no longer includes over 3000 acres of Camp Pendleton, which had suffered tortuous restrictions on military training under the old version of the law. (“Habitat plan includes land in county”, San Diego Union-Tribune, Apr. 29; Mark Mahoney, “Environmental Update”, Spring 2004; Darren Mortenson, “Pendleton and the environment – Marines seek sweeping exemptions from laws”, North County Times, Oct. 16, 2003; Joseph A. D’Agostino, “Endangered Species Envelop Marines in California”, Human Events Online, Feb. 24, 2003; Bill Horn press release, Jun. 24, 2002; Suzanne Struglinski, Greenwire, “Marine Corps claims species impede training at Calif. base”, undated).

Not so lucky Los Angeles International Airport, where 108 acres have been designated a critical habitat–even though the only shrimp found there have been non-hatched eggs, and even though letting standing water on the airport grounds creates an ecosystem that attracts birds, which in turn endanger airplanes. (Jennifer Oldham, “Shrimp Pose Big Problem for LAX”, LA Times, Aug. 15; Professor Bainbridge blog, Aug. 15). The LA Times uncritically quotes FWS officials as saying they had “no choice” because of a federal court order, but in fact the order (Building Industry Legal Defense Foundation v. Norton, 231 F. Supp. 100 (D.D.C. 2002)) merely required the agency to create a critical habitat. Indeed, the order was issued because a previous FWS designation failed to adequately evaluate the economic impact, as the law required. More litigation is likely.

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With a little help from their friends

The Association of Trial Lawyers of America has decided to cultivate friends on both sides of the aisle. Long viewed as a friend of Democrats, the organization is beginning to see the wisdom of courting Republicans, too:

ATLA stepped up its courting of Republicans — particularly in the Senate — about three years ago. David Casey Jr., a Democrat who at the time was ATLA’s vice president, invited Mr. Parkinson, the Republican lawyer, to his San Diego law office….Mr. Parkinson went to see Sen. Hatch, who, he says, told him, “Not all Republican senators and House members favor the wholesale dismantling of the civil-justice system, but the view is that you’re completely Democratic.” If ATLA “would just try to be fair to both sides, they’re going to find the reception” among Republicans more welcoming, Sen. Hatch says in an interview.

How “fair” do they have to be to get a warm welcome? Let’s look at the numbers for the politicians mentioned in the article: Orrin G. Hatch, Saxby Chambliss, Lindsey Graham, and John T. Doolittle. Evidently, their work is paying off:

The trial bar’s Republican push again showed results last month, when Sen. Kyl tried once more to pass his attorney-fee cap for tobacco cases. This time, 15 Republicans opposed it, two more than last time.

Money talks. And trial lawyers have no shortage of money.

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In the Kerry skyboxes

Unlike his running mate John Edwards, John Kerry has willingly disclosed the identities of his “bundlers”, the financiers responsible for raising large amounts of money in grouped donations. (He has 266 who’ve come in at the $100,000+ level, compared with more than 525 for George W. Bush.) Names familiar to readers of this site are well represented: “Trial lawyers who represent injured people in suits against business are prominent Kerry fans. Among his $100,000 Vice Chairmen are Florida plaintiff’s lawyer Kirk Wager, who hosted Mr. Kerry’s first presidential fund-raiser at his Coconut Grove home in December 2002, and attorneys Richard Scruggs of Mississippi and John Coale of Washington, both part of the tobacco companies’ $206 billion settlement with 46 states.” However, Mr. Kerry (like Mr. Bush, but unlike Mr. Edwards) also raises large amounts from other types of law firms, including firms known for lobbying and for general business work, including Mintz Levin and Piper Rudnick. (Wayne Slater, “Vested interests in Kerry”, Dallas Morning News, Jul. 25).

“Lawyers, especially trial lawyers, are the engine of the Kerry fundraising operation,” reports the Washington Post. “Lawyers and law firms have given more money to Kerry, $12 million, than any other sector. One out of four of Kerry’s big-dollar fundraisers is a lawyer, and one out of 10 is an attorney for plaintiffs in personal injury, medical malpractice or other lawsuits seeking damages. …

“Among the trial lawyers who raised money for Kerry early in the campaign were Michael V. Ciresi of Robins, Kaplan, Miller & Ciresi LLP, who represented Blue Cross and Blue Shield of Minnesota in its successful $6.5 billion suit against the tobacco industry, and Michael T. Thorsnes, who recently retired from his San Diego law firm after winning $250 million in settlements and verdicts.” After Kerry locked up the race, “One trend was a sharp increase in the number of trial lawyers joining the Kerry fundraising campaign. Among those soon joining as major fundraisers were John P. Coale, one of the nation’s most prominent trial lawyers, whose better-known cases include the Union Carbide disaster in Bhopal, India, and at least 16 plane crashes; Robert L. Lieff, founding partner of Lieff Cabraser Heimann & Bernstein LLP, a San Francisco-based firm that lists four class-action settlements in 2004 alone totaling $176.5 million; and San Francisco lawyer Arnold Laub, whose firm Web site lists its participation in the $3.7 billion fen-phen settlement, a $185 million toxic chemical award and $4.5 million for a pedestrian accident case. … John Morgan, an Orlando lawyer whose firm specializes in medical malpractice, said he has helped raise more than $500,000 for Kerry.” (Thomas B. Edsall, James V. Grimaldi and Alice R. Crites, “Redefining Democratic Fundraising”, Washington Post, Jul. 24)(our politics archive).

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Siccing the law on Fox News

Given its role in campaign speech suppression, we’ve long associated the goo-goo group Common Cause with scary assaults on free speech, so we can’t say we’re exactly surprised at this latest: in a petition to the Federal Trade Commission, it and the leftist MoveOn.org are alleging that the Fox News Network should be exposed to penalties for consumer fraud for using the slogan “Fair and Balanced” while repeatedly broadcasting views strenuously disapproved of by C.C. and MO.O. (Jake Coyle, “Fox News’ use of ‘Fair and Balanced’ challenged legally”, AP/San Diego Union-Tribune, Jul. 19; Charles Geraci, “Activists Ask FTC to Take Action Against Fox News”, Editor and Publisher, Jul. 19). Fox “doesn’t have the right to market its network services to prospective viewers and advertisers by masquerading as a news network,” claims former FTC chairman Michael Pertschuk, who we’re very relieved held that position way back in the Carter era rather than more recently. (Albert Eisele and Jeff Dufour, “Under the dome: ‘Fair and balanced’ fight: Lefties hit Fox with FTC petition”, The Hill, Jul. 20). No word yet on whether equally inflamed right-wingers plan to haul the New York Times off to the authorities for using the slogan “All the News That’s Fit To Print”, which is no more believable than Fox’s (via Amy Ridenour). More: Jul. 26.

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Morse Mehrban hits Fresno

The self-described “bounty hunter” lawyer, whose exploits around L.A. have been previously detailed in this space Nov. 4-5, 2002 and Mar. 12 of this year, has turned his talents to disabled-rights enforcement and swooped down on the city of Fresno, filing more than 130 lawsuits against local businesses over such alleged infractions as a too-high bathroom mirror and a hard-to-reach soda dispenser. Businesses usually pay between $5,000 and $12,000 to settle, says San Diego defense attorney James Reynolds. (Robert Rodriguez, “Fresno Businesses Are Sued Over Act”, Fresno Bee, Jul. 4) (via Southern California Law Blog). For more on ADA filing mills, see Mar. 9 and links from there and my City Journal article, “The ADA Shakedown Racket“.

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Jackpot in San Diego

Drivers of the Ford Explorer have a lower fatality rate than drivers of other vehicles — and a lower fatality rate from rollovers than drivers of other SUVs. The NHTSA found that there was nothing wrong with the Explorer’s design after a spate of well-publicized accidents resulted in an investigation. Nevertheless, plaintiffs persist in filing lawsuits accusing the Explorer of being unreasonably dangerous. And one can see why: Ford has successfully defended the vehicle in at least ten consecutive jury cases, but on Wednesday a San Diego jury rewarded the latest roll of the dice with a $122.6 million verdict for a paraplegic plaintiff, Benetta Buell-Wilson. Ms. Buell-Wilson was driving at a high speed on Interstate 8, when the RV in front of her lost a large piece of metal; she lost control of the SUV when she swerved, and the vehicle went off the highway and flipped 4 times before landing on the roof. The jury returns today to deliberate the question of punitive damages. (Ray Huard, “$123 million awarded in SUV rollover”, San Diego Union-Tribune, Jun. 3; Myron Levin, “Jury Orders Ford to Pay $122.6 Million”, LA Times, Jun. 3) (via Bashman). “This was an extremely severe crash, and any SUV would have reacted in the same way under similar circumstances,” Ford spokeswoman Kathleen Vokes said. “Our concern goes out to Ms. Buell-Wilson and her family, but this tragic accident was caused by a combination of high speed and a large metal obstruction in the road.” (“Verdict ends Ford streak”, Detroit News, Jun. 3). Ford says it will appeal; the jury awarded four times more than what plaintiffs asked for.

Update: Jury awards $246 million in punitive damages. Ford protests that it wasn’t allowed to introduce evidence to the jury comparing the safety record of the Explorer to other SUVs. (Reuters, Jun. 3; Myron Levin, “Jury Adds Punitive Award in Ford Case”, LA Times, Jun. 4).

Update: Judge reduces damages to $150 million; Ford has appealed. (Michelle Morgante, AP, Aug. 19; Nora Lockwood Tooher, “Explorer Rollover Yields $368.6 Million Verdict”, Lawyers Weekly USA, Dec. 30).

As with all my posts, I speak for myself and not my firm or any of my firm’s clients (which include Ford).

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Verizon coupon deal: this earbud’s for you

Last week a San Diego judge considered objections to a proposed settlement between Verizon Wireless and class action lawyers who’ve been suing over its billing practices. Consumers would receive two coupons: the first “could be redeemed for a choice of immediate bill credit of $15 on a new or renewed one-year service contract, $30 off of a two-year contract, $24 off an existing contract over a two-year period, $15 off a purchase of Verizon merchandise, a free 120-minute long distance calling card, or 1,500 free text messages over a six-month period. The second coupon would entitle consumers to an ‘earbud’ for handsfree use of their phone or $15 off of a similar accessory.” Consumers Union, which objected to an earlier settlement, says it likes this one, but an objecting lawyer says that “the ear accessory described as having a ‘retail value of $15’ can be bought for $3 or $4 at discount stores. The wholesale cost to Verizon must be even lower, Mr. Tusa said.” (Josh Gerstein, “Settlement Looms for Verizon Wireless”, New York Sun, Apr. 30).

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“Mexico urges Latino janitors to join class-action suit”

Although the U.S. Supreme Court’s 2002 ruling in Hoffman Plastic Compounds v. NLRB barred illegal-alien workers from suing over the loss of jobs it was unlawful for them to accept in the first place (see Apr. 3-4, 2002), our enterprising bar continues to regard illegals as a promising clientele for employment litigation. For example, the Mexican American Legal Defense and Educational Fund has filed a class-action lawsuit against California grocery chains Albertson’s, Ralphs and Vons alleging that the stores violated the law by hiring independent-contractor firms to provide janitorial services; it claims they owe janitors who worked for these firms various retroactive benefits to which they would have been entitled had they been direct employees of the grocery chains. On Monday the Mexican consulate in San Diego lent its support to the campaign and urged janitors to sign up for the lawsuit, which is expected to go to trial in June. It is considered likely that many of the workers are illegals, but “Steven Joaquin Reyes, an attorney for the Mexican American legal aid group, said the workers do not have to be fearful because the judge in the case has already ruled that the workers’ immigration status is not relevant to the issue of whether they were paid fairly” — wink-wink, nudge-nudge (Edward Sifuentes, “Mexico urges Latino janitors to join class-action suit”, North County Times, Mar. 15). For more on the many-pronged legal campaign to make Southland grocery chains sorry they won their recent dispute with the United Food & Commercial Workers union, see Feb. 1.

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Today’s Ninth Circuit follies

“John Roe” is a San Diego police officer who was fired when it was discovered that, in violation of department policies on moonlighting, he was selling videos of himself stripping from a police uniform and masturbating. (The pseudonymous Mr. Roe turns out to be considerably more modest when it comes to self-identification in his litigation, as opposed to his homemade videos.) Roe was discovered when he sold an official police uniform on eBay, and an investigation turned up the videos as well. In an expansion of existing Supreme Court precedent on the First Amendment, the Ninth Circuit in a 2-1 decision held that Roe could proceed with a lawsuit against the City over his firing. (Roe v. San Diego; Reuters, Jan. 29). (Update: Supreme Court summarily reverses in 9-0 decision, Dec. 7).

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“Library cat” trial set to begin soon

Welcome San Diego Union Tribune readers: trial is set to begin Jan. 26 in Richard Espinosa’s lawsuit over the incident in which a cat who resided at the Escondido public library attacked Espinosa’s state certified assistance dog, who helps him control panic attacks. Espinosa wants $1.5 million. For our earlier coverage of the saga see May 7, 2001, Jun. 13, 2001 (letter from Espinosa), Dec. 4, 2001, and Apr. 15, 2002. (Dana Littlefield, “Court TV loses bid for cameras at cat trial”,(Jan. 16) (mentions this site)

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