There’s no statute of limitations on child support, and Rosemary Douglas says she’s still owed the money for the birth of a son during the Truman Administration. [Houston Chronicle]
Correction/update: Commenter Patrick points out that this is an enforcement-of-judgment matter rather than a suit, and offers a reading of Texas law likely to be of interest to the alleged dad in the case.
Asbestos litigation has been around a long time. Early on, nothing like modern product liability law existed (see Richard Epstein’s discussion here); lawsuits resided in workplace injury law when filed in the 1920s and 30s, and were soon subsumed in workers compensation reforms.
Modern asbestos litigation began after the Selikoff study was published in 1964. In December 1965, Texas attorney Ward Stephenson filed a case on behalf of Claude Tomplait, who had worked as an asbestos insulator. Four years later, Stephenson extracted a settlement for $75,000 from seven defendants.
Notwithstanding this meager beginning, Stephenson persisted in asbestos litigation and won a major victory in Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (1973), in which the Fifth Circuit Court of Appeals found asbestos manufacturers strictly liable for their workers’ injuries. The Borel court rejected statute of limitations, contributory negligence, and assumption of risk defenses; and modern asbestos product liability litigation was born.
The litigation got another shot in the arm when New Jersey attorney Karl Asch uncovered the “Sumner-Simpson papers,” which “described in great detail the efforts of Raybestos, Johns-Manville, and other manufacturers to find out about the hazards of asbestos, develop strategies to deal with them, and–most important–to keep that knowledge from the public and workers.” These documents were put to great effect by South Carolina lawyer Ron Motley, who actually used the papers to convince a South Carolina circuit judge to grant a new trial after a jury had ruled in favor of asbestos defendants. Motley of course went on to become an asbestos super-lawyer and an architect of the multibillion-dollar multistate tobacco settlement; his antics are well-known to long-time readers of this site.
Two more foundational cases are worthy of mention. In 1981, the D.C. Circuit ruled that insurers who had written asbestos policies were liable for the maximum insured between exposure and diagnosis, rather than only in the year of diagnosis. See Keene Corp. v Insurance Co. of North America, 667 F.2d 1034 (D.C. Cir. 1981). Given the long latency between asbestos exposure and ultimate illness, the level of insurance exposure was suddenly massive. Circuit Judge Patricia Wald warned that the court’s decision “requires a leap of logic from existing precedent, for it concerns diseases about which there is no medical certainty as to precisely how or when they occur.”
In 1982, the New Jersey Supreme Court threw out the “state of the art” defense for asbestos manufacturers, in essence holding that it mattered not whether business practice was the best available to the industry at the time the injury occurred. See Beshada v. Johns-Manville Products Corp., 442 A.2d 539 (N.J. 1982). The court opined, “The burden of illness from dangerous products such as asbestos should be placed upon those who profit from its production and, more generally, upon society at large which reaps the benefits of the various products our economy manufactures. ”
Thus, in less than a decade, the law was radically shifted, and asbestos litigation was born: “The decade after Borel saw 25,000 asbestos cases filed. By 1981, more than 200 companies and insurers had been sued; by 1982, defendants’ costs had topped $1 billion.” But these early years were just the beginning…
A new book contends that subpar rivets and riveting might have materially contributed to the disaster. Given the erosion of statutes of limitations, might that give rise to lawsuits, even after all this time? (Childs, Apr. 15).
I have an op-ed in today’s National Review Online:
Pope Benedict XVI’s visit to the United States this week will be the first papal visit since the Roman Catholic Church abuse scandal broke in 2002. Archbishop Pietro Sambi, the Vatican’s top diplomat in the United States, expresses confidence that the pope will address the scandal while here. Trial lawyers, however, having been asking legislatures for years to address the problem in their own particular way: more lawsuits. That proposed solution, through undoing statutes of limitations and permitting new lawsuits over long-ago crimes, creates more problems than it solves, and hurts more than just the actors responsible for those crimes.
Reviver legislation is pending in six states, and has been proposed in many more.
My latest Liability Outlook examines the problems of retroactive lawmaking and litigation, especially reviver statutes, and even Obama fans will find something to like:
The controversy over whether and how to seat the Michigan and Florida delegations at the Democratic National Convention shows the danger of changing rules midstream and upsetting settled expectations. Reviver statutes not only obviate statutes of limitations, which are a critical aid to justice, by “reviving” claims that have expired or never existed, but they can also pose the danger of undoing the benefits of future prospective legislation. In evaluating laws, the issue is not merely one of retroactivity, but of the importance of promoting legal certainty. For example, the FISA Amendments Act, S. 2248, while ostensibly acting retroactively to grant immunity to telecommunications companies that cooperated with the Bush administration’s antiterror surveillance program, works to protect settled expectations.
Among matters discussed: litigation against the Catholic church over child abuse by priests and the Michigan legislature’s proposed retroactive repeal of pharmaceutical tort reform in H.R. 4045. Walter has previously discussed the subject.
The WSJ and Mississippi’s WLOX have the news up on Dickie Scruggs’ plea of guilty to conspiracy in the attempted bribe of Judge Henry Lackey. Earlier today, the Journal had an illuminating page-one feature on Dickie Scruggs’s history of fee disputes with other lawyers. YallPolitics‘ server seems to be down at the moment from traffic, but is back up now; in an email alert, YP’s Alan Lange said the surprise plea came three days before the deadline for Scruggs to plead before his approaching trial. Our past coverage is here, or check our Scandals page.
Update 12:18 EST: AP coverage is here (via Rossmiller). Sid Backstrom also pleaded and, per Folo rapid updates, is cooperating with prosecutors. No deal for Zach Scruggs yet. Also per Folo, Scruggs pleaded to conspiracy in the Lackey bribe attempt but did not resolve possible charges in the DeLaughter case, per the government side.
12:44: Now Folo’s server has crashed. Temporary replacement site up here.
1:16: Per Patsy Brumfield at the NEMDJ:
…The government recommended a sentence of five years in prison for Scruggs and 2 1/2 years for Backstrom. They also will pay a maximum fine of $250,000 each and a court fee. …
Before Biggers accepted their pleas, Scruggs and Backstrom admitted in open court that they had done what the government said they had done in Count One – they had conspired to bribe Circuit Judge Henry Lackey of Calhoun City for a favorable order in a Katrina-related legal fees case….
Dickie Scruggs, arguably the most famous plaintiffs’ attorney in the U.S., looked pale and thin but carried himself with a bit more control than his younger colleague at The Scruggs Law Firm, headquartered on the storied Square in Oxford.
The 61-year-old Ole Miss Law School grad and legal giant-killer, as well as Backstrom, likely will voluntarily surrender their law licenses, as has co-defendant Timothy Balducci of New Albany, who pleaded guilty in December although he was wired and cooperating with the government at least a month earlier.
“Do you fully understand what is happening here today,” Biggers asked him.
“Yes, I do,” Scruggs responded.
Questioned about whether he had discussed his decision to plead guilty with his attorney, Scruggs responded, “With my attorney, my wife and my family.”
1:25 p.m.: Rossmiller has an update from a correspondent at the scene. And Folo is up at a temporary site until its server gets back online. Excerpts from Folo’s on-the-scene report:
…* Richard Scruggs is pleading to conspiracy to bribe a state court judge, count 1 of the indictment, with other counts to be dismissed. This was an open plea, that is, no recommended sentence.
* The government expects that he will get the full five year sentence on that count. …
* There was no mention of cooperation by Scruggs. …
* There was an interesting and unusual disagreement with the government’s statement of facts in the plea colloquy. The government stated in its facts for both Backstrom and Scruggs that a conspiracy began in March to corruptly influence the state court judge, and Scruggs spoke to say that he had agreed to earwig the judge but not corruptly influence him in March, and that he later agreed to join a conspiracy to corruptly influence the judge. Sid Backstrom took a similar stance….
[See also WSJ law blog and later NMC post, as well as WikiScruggs on “earwigging” as a Mississippi tradition.]
1:56: Welcome Glenn Reynolds/Instapundit and David Rossmiller/Insurance Coverage Blog readers.
3:18: The Jackson Clarion-Ledger reports: “As part of the plea deal, federal prosecutors agreed to defer prosecution of Scruggs’ son, Zach Scruggs, who agreed to give up his license to practice law.” [N.B.: NMC @ Folo has a very different take, and other sites are also questioning the C-L’s reporting on this point.] Folo at its temporary bivouac has PDFs of the Scruggs and Backstrom pleas and underlying facts, as does David Rossmiller. ABA Journal coverage includes the text of a forthcoming article by Terry Carter on the affair, written pre-plea. Other reactions: Above the Law (“has Scruggs employed bribery as a tactic in other matters — e.g., the tobacco cases that made him famous …?”), Beck and Herrmann (“What a week. First Spitzer, and now Scruggs. What goes around, comes around.”), TalkLeft, Michelle Malkin, NAM Shop Floor (“So what are the odds that this was Dickie Scruggs’ first and only crime during his decades-long career as a trial lawyer?”).
6:27: Roger Parloff wonders whether Scruggs will cooperate, and whether the statute of limitations might have run already on tobacco skullduggery. NMC @ Folo wonders what prosecutors will make of a slew of fresh documents from the Scruggs Law Firm, or whether perhaps such documents have already had an effect. Not so surprising a plea, says Jane Genova at Law and More, but rather “widely expected“.
The Rhode Island attorney general’s office has charged a man with rape based on a memory “repressed” by the complainant “until recently”. Harold Allen of Narragansett, 48, at the time of the alleged incident was sixteen years old, as was the complainant. Allen has pleaded not guilty, and through his attorney says he never had relations with the woman, though he was acquainted with her. There is no statute of limitations on the charge of first-degree sexual assault. (“Man charged with rape 32 years later”, AP/EyewitnessNews, Jun. 14; Volokh, Jul. 3).
A couple of weeks ago, we reported on two teenagers who claimed to be traumatized by seeing a gay sex book at the library. But how traumatized could they be? After all, they sued for just $20,000. So, logically, they must have only been 1/20th as distressed by the thought of gay people as Jessica Turner of Chicago:
A suit was filed on behalf of a 12-year-old girl who claims she suffered psychological distress when a teacher showed in class the gay-themed movie “Brokeback Mountain.”
The girl, Jessica Turner, and her grandparents Kenneth and LaVerne Richardson, are seeking more than $400,000 in damages under the suit filed Friday against the Chicago Board of Education and others.
[…]
The plaintiffs accuse Diaz, Buford and the Chicago Board of Education of negligence, false imprisonment and intentional infliction of emotional distress.
The suit claims Jessica continues to suffer from emotional distress caused by watching the film and is currently undergoing psychological treatment and counseling.
You know, as I recall, William Faulkner had that effect on me. I wonder what the statute of limitations is on psychological-assault-by-bad-literature.
In 1921, there were massive race riots which led to the destruction of the black section of Tulsa, Oklahoma and the murder of dozens or hundreds of blacks. (See Wikipedia for one account.) At the time, the official story exonerated local whites, blaming the riot on blacks; eventually, the whole incident was forgotten. In 1997, the Oklahoma legislature set up a commission, which issued a report four years later which found that in fact white residents, aided and abetted by the local government, were at fault.
Enter the lawyers. Eighty-two years after the incident, Johnnie Cochran, Charles Ogletree and other prominent attorneys filed a federal civil rights suit against the city of Tulsa and the state of Oklahoma on behalf of the survivors, seeking monetary damages and injunctive relief. As you might expect, courts don’t look too kindly on eight-decade old lawsuits, and so the federal district and appellate courts dismissed the suit, on the grounds that the statute of limitations had long since passed. (The Supreme Court declined to hear an appeal.)
So now the lawyers (well, not Johnnie Cochran) are in Washington, trying to get Congress to retroactively extend the statute of limitations so they can sue. Ogletree is a driving force behind the slavery reparations movement, which so far has also foundered on statute of limitations issues; if he succeeds here, be assured that he won’t be resting on his laurels.
(To be clear, unlike many of the suits we chronicle on Overlawyered, the Tulsa suit is not inherently frivolous, and it may well be legitimate to assign blame to the city and state, for actions that (unlike slavery) were illegal even at the time. But, to reiterate: eighty years.)