Consider scenic New Mexico, which runs an extra-long statute of limitations and thus will welcome claims extinct elsewhere. The tactic didn’t work, however, for ex-Congressional wife Carolyn Condit, who went there to sue USA Today to escape other states’ limits on stale claims. Unfortunately for her case, she could offer no evidence that the allegedly libelous article had circulated in N.M., “since only the first edition of USA Today was distributed in the state and the story appeared only in the second edition,” as AP noted; a federal judge accordingly threw out her suit last August for lack of jurisdiction (“Judge dismisses libel suit by wife of Gary Condit”, AP/North County Times, Aug. 5, via CalBlog, Jan. 14 and Jan. 26). For New Mexico forum-shopping by the plaintiffs in the “Dazed and Confused” case, see Ted’s Oct. 12 post (also Dec. 8). For more details on the lack of connection of that case to New Mexico, see the memorandum of defendants in support of motion to dismiss (courtesy Courthouse News (PDF)).
Posts Tagged ‘statutes of limitations’
Dazed and Confused
If you see Bobby Wooderson, Andy Slater or Richard Floyd of Huntsville, Texas, don’t ask them if they wanna smoke a joint. The three former classmates of “Before Sunset” director Richard Linklater have decided, eleven years after the fact, that the Linklater movie “Dazed and Confused” defames them by using similarly named characters. As evidence of his emotional distress, Wooderson cites the fact that his son was asked for autographs by his Harvard classmates. (But how did they find out if his son wasn’t bragging about the coincidence?) Another plaintiff told a desk clerk that he was “the guy from ‘Dazed and Confused'” and was supposedly mobbed by a lobby full of fans–no doubt because New Yorkers are so enthralled by the sight of such a celebrity. The three are so upset that people associate them with a movie that did $8 million in box office in 1993 that before they served Linklater with the suit, they had their attorneys issue a nationally-publicized press release. They’ve sued in New Mexico, because Texas law doesn’t allow one to wait eleven years before suing for defamation. Actor Wiley Wiggins complains about “the sad sacks back in Huntsville who are trying to cash in 11 years later over vaguely having something to do with a movie.” (Andrew Tran, “Modified names spur ‘Dazed’ lawsuit”, Daily Texan, Oct. 12; Tom Waddill, “Three Huntsville residents file suit over negative resemblances in popular cult film”, Huntsville Item, Oct. 11; Chris Rush Cohen blog, Oct. 8).
Full disclosure: I once represented co-defendant Universal years ago. But that was about the Grinch.
“Failure to Plead 17200 Claim = Malpractice”
Legal Reader (Jun. 22) on a new development in the saga of California’s please-abuse-me law, s. 17200: “according to California’s First District Court of Appeal, failing to include a cause of action under 17200 in many civil actions may actually constitute malpractice, even if the plaintiffs’ attorney thought it unwarranted or unjustified. The opinion was filed today in Janik v. Rudy, Exelrod & Zieff. …
“My problem is that the Court’s reasoning here applies to almost any civil lawsuit against a ‘business’ in California. As a rule, if you can state a cause of action for anything, you can also state a cause of action under section 17200, as whatever wrongs constitute the first will also constitute the second. By including section 17200 you automatically get a bunch of ‘freebies,’ such as: four year statute of limitations, the ability to recover on behalf of other non-parties, and most likely a case that is at least partially impenetrable to a petition for arbitration.
“In fact, most California civil lawsuits already include section 17200 claims, but now lawyers may be subject to malpractice claims (even from non-clients) if they file compaints that don’t.” For an analogous problem, see “Omit a peripheral defendant, get sued for legal malpractice”, Feb. 15-17, 2002. More: Declarations and Exclusions analyzed the case Jun. 24, pointing out that the ruling, while exposing the defendant attorneys to a claim of breach of duty, does not establish on the merits whether or not they did breach a duty.
Vindicated — and violated
One day before the statute of limitations would have expired, a doctor is sued over a patient’s post-surgical complications. She is in for a shock. “Before this case, I’d never realized that we have a system of law where one person can stand up in a public forum and assassinate someone else’s character without a single piece of substantiating evidence (known in legalese as ‘closing arguments’). He faces no consequences for doing this. He isn’t even expected to apologize. We have a system of law that requires the witnesses to tell the whole truth, but then encourages attorneys to manipulate and hide that truth.
“I know that most of my friends will tell me to ‘get over it.’ They’ll tell me that I shouldn’t worry about what the jury thinks of me — I’ll never see these people again. They’ll tell me that the only important thing is that I won.” Trouble is, “I don’t feel like I won; I feel like I have been violated.” (Patricia I. Carney, “Our system lives on personal attacks”, Medical Economics, May 7).
Underage father on hook for child support
“A man who claims he was seduced and exploited in his early teens by an older, married woman must pay child support to the state for the illegitimate son he gave her” according to the Michigan Court of Appeals. The relationship between the two was not revealed until after the statute of limitations for statutory rape had passed, but in any event the appeals court held that the lack of legal (or even actual) consent is irrelevant to the issue of child support. (Chad Halcom, “Man, 14 when he fathered boy, must pay support”, Macomb Daily, Feb. 21) (via Bashman).
Next stop for reparations
Despite a federal judge’s recent dismissal of one slavery-era suit (see Jan. 30), reparations advocates are hoping to score a comeback with a lawsuit demanding damages 82 years after the fact for a lethal rampage by white rioters against black residents of Tulsa, Oklahoma, in 1921. They’ll have to overcome both sovereign immunity and the statute of limitations, though. (Scott Gold, “Reparations Sought Decades After Race Riot”, Los Angeles Times, Feb. 13). And New York Life has agreed to hand over $20 million to settle claims arising under policies sold to ethnic Armenians in the former Ottoman Empire, many of whom were murdered during the rise of modern Turkey in “a deliberate, systematic and government-controlled genocide that began in April 1915,” according to a statement by California insurance commissioner John Garamendi, who announced the settlement (Armenian-Americans are a potent ethnic lobby in California.) Of the $20 million, $11 million will be set aside for heirs and $3 million for Armenian civic organizations, leaving somewhere around $6 million for lawyers who include Mark Geragos, William Shernoff and Brian Kabateck. According to the last-named of these, the settlement “is the result of a very personal campaign to bring attention to the history of the Armenian Genocide.” The news accounts do not reveal what if any role the court system and insurance law of present-day Turkey — the government of which rejects the genocide charge — might have been allowed to play in the disposition of the claims (“Calif. Commissioner Announces Settlement on Behalf of Survivors of Victims of Armenian Holocaust”, Insurance Journal, Jan. 28; AP/CBS News, Jan. 29; CNN, Feb. 17)(via Law.com)
“Couple’s lawsuit takes unexpected turn”
“An attempt to be compensated for being ‘hassled’ by an insurance company after a 1996 house fire backfired this week for a Helena area couple, after a jury decided the duo intentionally caused the blaze.” Unfortunately, the new evidence of arson that came to light in the civil trial can’t be used to prosecute Norm and Darlene Scott criminally, as the statute of limitations expired. (Eve Byron, Helena Independent Record, Nov. 23).
“Arnold’s agenda”
The governor-elect said many of the right things about litigation reform, though both friends and foes are still guessing as to how serious his commitment is. “Before the recall, the influential trial lawyers lobbying group, the Consumer Attorneys of California, had warned of judicial doom under Schwarzenegger … [CAOC president Bruce] Brusavich] worked hard to keep Schwarzenegger out of office, raising nearly $2 million from trial lawyers for Davis and Lt. Gov. Cruz Bustamante. … Brusavich expects Davis will sign three more plaintiffs-supported bills — one modifying the statute of limitations in toxic torts, one prohibiting pre-dispute arbitration in labor contracts, and one allowing causes of action for labor code violations — before he leaves office.” The litigation lobby also wants Davis, who’s been filling judicial vacancies at a feverish clip, to fill all the rest before leaving. Not if Arnold has his way: “Schwarzenegger Wants Davis to Stop Filling Posts and Signing Bills” reads a Friday morning headline (John M. Broder, New York Times, Oct. 10) (Jeff Chorney, The Recorder, Oct. 9).
Ruffing v. Union Carbide “fraud” case goes forward
One of the disturbing trends in the tort system is the expansion of liability among the multiple axes of time and causation. For centuries, a fraud case required a plaintiff who was injured when he or she relied upon a material misrepresentation. More and more, plaintiffs’ attorneys are asking courts to disregard the black-letter requirement of reliance, and simply punish a defendant for an ostensible lie. In some cases, a constitutionally questionable statute permits a lawsuit against a corporation even where the plaintiff has no dealing with the corporation. (See Jul. 1). In others, judges who should know better endorse huge expansions of tort law.
A recent New York appellate court case, Ruffing v. Union Carbide, adopted such an argument in a 3-2 decision. The plaintiff’s mother, Heather Curtis, was allegedly lied to by IBM 23 years earlier; the statute of limitations has run for her, however, so she cannot bring a case. But her minor daughter, Candac?–who was unborn when the alleged misrepresentation occurred–claims a fraud cause of action that is now allowed to go forward. (Candac? suffers from severe birth defects; Ms. Curtis’s other two children do not.) The plaintiffs’ attorney is gleeful about the impact on corporations: “there are very severe legal consequences that they face — uninsurable legal consequences”. IBM denies that there are more instances of birth defects in the children of its employees than among the population in general, but if the causation requirement of reliance can be removed at the stroke of a pen, what’s to stop a court from removing the rest of the causation requirement and just hold IBM strictly liable for any birth defects its workers suffer? (Tom Perrotta, “Woman Can Sue Over ‘Lie’ to Mother”, New York Law Journal, Sep. 25; Bob Herbert, “I.B.M. Families Ask Why?”, New York Times, Sep. 15 archive).
After the church settles, fees
“The $85 million settlement in the Boston clergy sex abuse scandal will set a record not only as the most expensive abuse settlement in the history of the Catholic Church, but also as the largest payday for lawyers who sued on behalf of abuse victims: an estimated $30 million in legal fees, lawyers said.” (Ralph Ranelli, Boston Globe, Sept. 11). Meanwhile, Forbes investigates the ties between abuse-survivor groups and the plaintiff’s lawyers that are often their chief financial supporters. For example, the biggest national claimant group, Survivors Network Abused by Priests, which played a pivotal role in getting the California legislature to reopen old statutes of limitations so as to permit the filing of decades-old claims, lists a Stockton, Calif. plaintiff’s lawyer with a large abuse-client roster as its biggest contributor. But not all survivors’ groups feel comfortable taking money from that source: “I would hate to be seen as a lead generator for plaintiff lawyers,” says Paul Baier, founder of the Boston group Survivors First, which refuses such donations. And attorney Mitchell Garabedian, prominent for his work on the plaintiff’s side in the Boston case, declines to donate money to the victim groups “because he believes the practice violates legal ethics guidelines. ‘It’s sort of a solicitation,’ he says.” (Daniel Lyons, “Paid to Picket”, Forbes, Sept. 15)(& welcome EthicalEsq? readers).