August 2004 Archives

We've previously covered the exploits of Geoffrey Fieger (Jul. 24; May 31, 2001). Fieger is nationally known for defending Dr. Kevorkian, but he's also had over $100 million in jury verdicts thrown out because of his outrageous behavior in court. Fieger's strategy is to inflame the jury, get a huge verdict, and then hope it stands up in response to the inevitable defense motion for new trial and appeal. Most recently, in a cerebral palsy case Fieger sought to blame on a Dr. Ronald Jordan, he delivered the following in a closing argument:

"Please, please, nurses," Fieger said in his closing arguments, "I'm a little baby, I want to play baseball, I want to hug my mother, I want to tell her that I love her. Help me. Please help me to be born."

Judge Lawther "called it a 'performance far beyond the bounds of theatrical license,' designed to appeal to the jury's natural sympathy through passion and prejudice--two factors the law says should not enter into verdicts." (Compare: John Edwards's closing argument in a similar case discussed in a New York Times article we linked on Jan. 31.) A Cuyahoga County jury voted 6-2 to award $30 million to Walter Hollins in May, and the judge tossed the verdict last week. Fieger defends his closing as "his specialty." Just so. (James F. McCarthy, "Judge rejects $30 million for malpractice", Cleveland Plain Dealer, Aug. 27). (Updates: more on case, Oct. 11; verdict reinstated, Nov. 20).

The traditional "firefighter's rule" holds "that firefighters, police and rescue personnel accept an inherent risk of injury or even death in their jobs and generally cannot sue those they're hired to protect. Their recourse is worker's compensation claims, according to the rule. But lobbying by powerful unions and court decisions have led some states to limit the rule's scope or rescind it altogether." I'm quoted in the article criticizing recent moves away from the rule. "New Jersey is one of 11 states that allow police officers, firefighters and rescue personnel to file civil lawsuits when they're injured through the negligence of individuals or entities." (Tim Zatzariny Jr., "Police officers sue over injuries on job", Camden (N.J.) Courier-Post, Aug. 30). For more, see Sept. 30, 2003; Apr. 1 and Jul. 16, 2004.

Reports David Giacalone (ethicalEsq):

Elderly Schenectady (NY) lawyer Romolo Versaci has filed a $100,000 defamation suit against Diane C. Richie, an unemployed social worker and widow with two children. Versaci claims -- and Richie admits -- that she called him a "so-called attorney" on a SchenectadyNY.info message board. ...

Versaci says the comment has "greatly injured" his reputation, and adds that "She's got to stop these cutesy messages and think a little bit." He has been replaced with another lawyer in the controversy that spawned this lawsuit. Richie says, "I haven't got $100, let alone $100,000. I couldn't even imagine a judge looking at this. It's so stupid."

Adds ethicalEsq: "Most days, I'd consider being called a 'so-called attorney' a compliment." Evan Schaeffer has strong words concerning the action and his comments section should also be checked out. More watch-what-you-say-about-lawyers cases: Nov. 30, 2003, Sept. 16-17, 2002, more. Updates Jan. 19: David Giacalone reports on a further development; Mar. 20: judge throws out case.

In three separate cases in 1997, nurses at Presbyterian Hospital of Dallas's cardiac catherterization lab expressed concerns about Dr. Lawrence R. Poliner's care of patients. When the director of the lab, Dr. John Levin, alleged to the hospital's chief of cardiology, Dr. John Harper, that Poliner had also recently performed an emergency angioplasty on the wrong artery, the chair of department of internal medicine, Dr. James Knochel, confronted Poliner, and told him to voluntarily stop performing cardiac catheterizations while his privileges were reviewed or face termination. A six-doctor peer review committee met the next month, decided that Dr. Poliner had given substandard care in 29 out of 44 cases, and voted unanimously to suspend Dr. Poliner's privileges at the lab.

So far, so good, right? After all, we're told by the plaintiffs' bar that the medical malpractice crisis would go away magically if the medical profession would just police its own, and that's exactly what happened here. Can you imagine what a trial lawyer would do with the peer review committee's conclusions if the hospital did nothing and had been sued for Poliner's work afterwards?

Dr. Poliner eventually got his privileges reinstated a few months later in a hearing held before a different peer review committee of doctors after a number of prominent cardiologists spoke on his behalf; another appellate committee at the hospital found no wrongdoing by the initial peer review committee, who Poliner accused of seeking to eliminate him as "competition." Not satisfied with exoneration, Poliner sought retribution. He, with the help of medical malpractice attorney Charla Aldous, sued the hospital, Knochel, Harper, Levin, and the six doctors on the peer review committee for supposed antitrust and "consumer fraud" violations, breach of contract, defamation, interference with contractual relations, and intentional infliction of emotional distress. The antitrust and consumer fraud claims were thrown out (BNA, "Antitrust Claims Are Eliminated From Physician Suspension Case", Antitrust & Trade Reg. Rep., Nov. 7). So were the claims against the six peer review committee doctors, who had immunity under Texas Peer Review Immunity Statutes, which the state trial lawyers' association had fought hard against in the legislature.

But the case against the other three doctors and the hospital proceeded. A jury found in favor of Dr. Poliner's conspiracy theory that competitive malice motivated the entire affair. The jury's proposed payday for six months' missed work by the 60-year-old? $366 million: "$141 million to be paid by Dr. Knochel, $32 million each from Dr. Harper and Dr. Levin and $161 million from Presbyterian." The hospital announced that it would appeal: "From time to time, hospitals and members of the medical staff leadership must make decisions relating to patient care and safety, and these decisions sometimes affect an individual doctor's privileges at that hospital." (Terry Maxon, "Dallas doctor awarded $366 million in damages", Dallas Morning News, Aug. 28).

State legislation is often reactive, suffering from the belief that no problem can possibly be made worse by creating a "remedy" for it in the judicial system. A few years back, a number of grandparents anecdotally and adversely affected by a child's divorce mounted an effective publicity campaign calling for new laws, destined to pass because of the absence of an organized counter-lobby of citizens wishing to preserve their future parenting decisions from judicial micromanagement (Oct. 21, 2002). Thus, California Family Code §§ 3103-3104 permit grandparents to litigate visitation rights if a child's parents divorce, even on the objections of both parents. It also permits the litigation of collateral issues arising from the existence of grandparents' visitation rights, including using such rights as a "factor" to order a change of residence of the child (§ 3103(f)) or providing for the resolution of additional child support issues relating to the grandparents' visits (§ 3103(g)). The possibility of such litigation is not an insubstantial bargaining chip, given that other California family law permits the court to order one spouse to pay the litigation expenses of both spouses. The law is in the news because one such litigation made it to the California Supreme Court, which upheld the constitutionality of the law in a 4-3 decision in In re Marriage of Harris, distinguishing it from a broader Washington state law struck down by the U.S. Supreme Court in 2000 in Troxel v. Granville. (Maura Dolan, "Court Backs Rights of Grandparents", L.A. Times, Aug. 24; Bob Egelko, "Custody ruling backs grandparents' rights", San Francisco Chronicle, Aug. 24; David Watson, "Statutes on Grandparent Visitation Pass Constitutional Muster", Metropolitan News-Enterprise, Aug. 24) (via Bashman).

There are all sorts of new posts over at our sister website Point Of Law. Attorney Leah Lorber, who's appeared on this site in the past, has just joined for a week's worth of guestblogging contributions, including posts on a Mississippi Supreme Court case undoing the joinder of 264 asbestos cases and a Kentucky punitive award against Ford Motor (in a "park-to-reverse" transmission case). On medical malpractice, Ted Frank examines the benefits of the damage limits approved by Texas voters, Jim Copland discusses my WSJ op-ed on the Kerry campaign's ideas for reform, and I link to an informative paper by Richard Anderson of the Doctor's Company. Law professors Lester Brickman and Richard Painter, both experts on the ethics of contingency fees, have now completed their featured discussion of the issue.

Plus lots more, including posts by me on the ABA's plans to push reform of jury trials; how contingency-fee litigation by the state of California is straining U.S. relations with France; Eliot Spitzer, the comparison-shopper's friend; two posts (here and here) comparing the American way of litigation with that prevailing in other democracies; how liability law affects the way certain products smell; and who you can't trust to explain the new overtime regulations.

Pittsburgh:

That Rolls Royce Phantom in the Grant Street Lawyers Building parking lot never fails to stop passers-by in their tracks.

The first 2004 Rolls to roll out in North America belongs to local personal injury attorney Martin Lazzaro. Its retail value is about $325,000.

The license on the front spells his name, and the one on the back says I-800-I GOT HIT.

-- Celeste Whiteford, "Personal injury lawyer Rolls along", Pittsburgh Tribune-Review, Jul. 18; "Clever, aggressive lawyers joining the rush for customers", Aug. 22.

A New Age psychotherapeutic outfit based in Kittery, Maine, and nearby New Hampshire, the Gentle Wind Project "is a 24-year-old non-profit corporation that describes itself as being 'dedicated to education and research aimed at alleviating human suffering and trauma.' ... The organization holds seminars across the country, selling "healing instrument" products for donations ranging from $450 to upwards of $10,000, asserting they have exclusive healing technology that is channeled telepathically from the 'spirit world' and has healing powers." On a less serene note, the organization recently filed a lawsuit claiming that a husband and wife from Blue Hill, Me., Judy Garvey and James F. Bergin, and various other individuals defamed Gentle Wind by publishing a website criticizing the organization's leadership and cautioning newcomers against excessive involvement. Garvey and Bergin were themselves formerly involved with Gentle Wind. (James Baker, "New age therapy group sues over Web site", Foster's Sunday Citizen (N.H.), Aug. 8)(more). The Gentle Wind Project's side of the story may be found here and here. Update Jan. 19, 2006: federal judge dismisses suit.

Here's an arresting statistic: "Of the $695,400 in [individual] donations to the Democratic Party of Illinois this year, all but $6,900 has come from lawyers or law firms." (Brian Brueggemann, "Law firms give big to Illinois Democrats", Belleville (Ill.) News-Democrat, Jul. 27; Trisha Howard, "Lawyers dominate in donations to Democrats", St. Louis Post-Dispatch, Jul. 26). Five big plaintiff's firms contributed $100,000 each, and there is reason to believe that the donations were intended at least in part to assist the campaign for Gordon Maag, the Democratic candidate for Illinois Supreme Court in a district that includes famed litigation hotspot Madison County. (Maag is turning down direct donations of more than $2,000). A report last month for the Illinois Civil Justice League and Illinois Lawsuit Abuse Watch has details ("Justice for Sale II", Jul. 26 -- PDF). Maag is facing Republican candidate Lloyd Karmeier, who's being backed by business groups, in what is shaping up as a hard-fought campaign (see Mar. 20).

Contrary to some expectations, Philadelphia juries have not been proving a soft touch for "opt-out" plaintiffs who've journeyed there from around the country to sue drugmakers over alleged side effects from the diet-drug compound. One recent jury awarded a mere $4,000 to five women from Utah after a three-week trial, and another returned an outright defense verdict in a case brought by four Philadelphia women. Most of the plaintiffs exhibit heart murmurs and other subtle heart irregularities which they contend were brought on by the use of Pondimin and Redux, but a plaintiff's lawyer says their case is weakened because most display no symptoms and are not under a doctor's care for the claimed irregularities. "They don't have treating doctors who will back up their stories," agrees a lawyer for Wyeth. "The juries aren't buying it." (L. Stuart Ditzen, "Diet-drug lawsuits netting slim payoffs", Philadelphia Inquirer, Aug. 16). For more on fen-phen, see Jan. 25, Jan. 6 and links from there; Apr. 28 ($1 billion verdict in Texas for fatality claimed to be linked to drug).

The "Bad Medicine" heading, which archives posts relating to medical liability, has grown so large as to be unwieldy for readers, so we're opening up a "Bad Medicine II" heading for posts from here on. The old category is here, and the new one is here.

And ABC News aired the results. Illuminating for those of us who study the process, for sure; but will the juries arrive at the same outcomes they would have arrived at in the absence of a national spotlight? (Lindsay Fortado, National Law Journal, Aug. 10) (& letter to the editor, Sept. 10).

"A German waiter who was sacked for drinking up to 100 bottles of beer every day has won a case for unfair dismissal. The 50-year-old, who had worked at the Unter Taschenmacher pub in Cologne for eight years, admitted that his managers had repeatedly warned him not to drink at work." The unnamed man conceded drinking the beer but said he had been traumatized by losing his "dream" job. The tribunal agreed and awarded him three months' salary plus €3,000. ("German pub owner left crying into his beer by tribunal ruling", Personnel Today (UK), Aug. 24).

A Philadelphia jury has awarded $4 million to 17-year-old Anastasia Roberts in her lawsuit against Grand King Buffet, a Chinese restaurant, over an incident in which Roberts chewed on and then spat out a foreign object in a sweet potato ball which proved to be a used bandage. According to her suit "Grand King threw the bandage away, destroying evidence", and the offending object had blood and pus on it. Roberts, who per the allegations in the suit suffered mightily from post-traumatic stress over the affair, plans to become a nurse. (Dan Gross, "A 'bloody' $4M award for teen", Philadelphia Daily News, Aug. 3; "A fuss over pus", City Paper, Jan. 22-28).

I was a guest on the Dolans' CNN Financial show this morning to discuss medical malpractice reform and the presidential race.

We previously covered the surprising side effect of legal reforms to protect tenants against landlords: homeowners in Florida discovering that a friend or relative invited as a guest gets to leave only when they want to leave without expensive litigation to evict them (Feb. 19). This had tragic results in Montgomery County, Maryland last week. 71-year-old Joyce Hadl charitably allowed a homeless woman, Susan L. Sachs, to stay with her rent-free in exchange for work around the house. According to a friend of Hadl's, when Sachs started exhibiting signs of mental illness, "walking around the house and calling Hadl insulting names", Hadl became alarmed and tried to get her to leave, but police called to the home concluded that they could not legally remove her. Hadl has since disappeared, and Sachs is now under policy custody, having been charged with her first-degree murder. (David Snyder and Amit R. Paley, "New Arrests in Disappearance", Washington Post, Aug. 26).

Vancouver: "Nadia Hama, who dropped her infant daughter from the Capilano Suspension Bridge nearly five years ago, is pressing ahead with a suit against the operators of the privately owned tourist attraction. ... Hama's daughter Kaya, then 17 months old, miraculously survived the plunge after tree branches broke her 150-foot fall into the rocky canyon." ("Woman who dropped baby from bridge sues bridge owner for stress", Canadian Press/ AZCentral.com, Aug. 24). We last covered the case Oct. 8, 2001.

On malpractice exposure, and reimbursement rates: "Why am I worth so little when I do my job right, and worth so much when I make a mistake?" (courtesy Cut to Cure, Aug. 25).

Prof. Elizabeth Loftus, the psychologist whose writings and expert testimony have been highly influential in casting doubt on the reliability of buried and then putatively recovered memories of abuse (see Mar. 22 and links from there), is the defendant in a lawsuit filed by a "Jane Doe" abuse complainant whose allegations Loftus critically examined in a 2002 article for Skeptical Inquirer (the valuable magazine of CSICOP, the Committee for the Scientific Investigation of Claims for the Paranormal). Trial is expected soon: "If she loses, not only will academic freedom have arguably suffered a grievous blow, but on a personal level, Loftus herself could face bankruptcy." "Jane Doe" also "filed an ethics complaint against Loftus with the University of Washington. Though the university eventually cleared Loftus of breaking research protocols -- after seizing all of her files on the case and preventing her from publishing her work for almost two years -- its support was so lukewarm, and its unwillingness to stand by its controversial psychologist during the current lawsuit so clear, that Loftus was only too happy to accept an offer from Irvine." (Sasha Abramsky, "Memory and Manipulation", L.A. Weekly, Aug. 20-26) (via Brian Doherty, Reason "Hit and Run", Aug. 24). Update: see Jun. 26, 2005 (L.A. Times covers case).

Perry J. Bruce purchased ten guns between 1994 and 1997 from Jon K. Sauers of Sauers Trading in South Williamsport, Pennsylvania, and dozens from other gun shops in the area. The guns were sold to Bruce legally--he had no record--but Bruce would then go on to illegally resell the guns on the street for a profit, eventually leading to his conviction for gun trafficking in 1998. On April 19, 1999, one of those guns was found by a child under a parked car; that child proceeded to shoot and kill 7-year-old Nafis Jefferson. So, given that someone illegally sold a gun to someone who eventually negligently left on the ground where it was found by someone who then negligently (or worse) killed someone, the mother, with the help of the Brady Center and co-counsel Mark LeWinter, sued... Sauers, who legally sold the gun, and Rossi, who manufactured the gun, and Taurus, which bought Rossi. (Taurus was sued because they failed to "recall and retrofit" the gun with safety devices--as if a Philadelphia thug who leaves his gun under a parked car was going to turn in his illegally possessed gun to be outfitted with a childproof lock.)

As the Philadelphia Inquirer reports,

Sauers testified in a deposition in the Jefferson case that he complied with state and federal law, properly filling out all forms in each sale to Bruce.

But he never asked Bruce why he was buying all the guns.

Asked why he never questioned Bruce, Sauers replied in the deposition: "I don't know what my reason would be to ask him. I didn't think it was any of my business."

Sauers settled out of the suit for $850,000. I still haven't seen an explanation in the Brady Center materials what Sauers was supposed to have done differently, though they emphasize that Bruce was unemployed and used his welfare card for identification. (Is the state of being poor is reason enough to preclude someone from buying a gun?) "There is a risk of liability that is now real for gun sellers all across the country," the Brady Center's Dennis Henigan said, and we couldn't say it better ourselves. (L. Stuart Ditzen, "Dealer settles suit over gunplay", Aug. 24; AP, Apr. 21; our gun coverage).

Evan Schaeffer, who's poked fun before at the way plaintiff's lawyers from elsewhere in the country endeavor to solicit business in his own Madison County, has some thoughts (Aug. 23) prompted by a Minnesota lawyer's advertisement which includes a LOT OF CAPITAL LETTERING and which lays out a "Chinese menu" of potential complaints which might entitle the prospective client to money damages. Touchingly, the ad in the Alton, Ill. Telegraph addresses the danger that some local residents might be so unfortunate as not to be exposed to its message: "CLIP AND SAVE. Please take this notice and post it in your nursing home, church, community center or anywhere that it may reach people who are suffering and need help."

FindLaw has a convenient listing of the most prominent cases handled by John Edwards when he was in private practice, along with a selection of links to opinion pieces taking both positive and negative views of the senator. For more on Sen. Edwards, check our politics page. Yet more: Legal Times, Aug. 4.

Tying down the military Gulliver with writs: "The mother of a Scottish soldier killed in Iraq plans to sue the Ministry of Defence over her son's death. Rose Gentle believes the MoD was negligent and breached its duty of care" by not equipping the patrol on which her 19-year-old son Gordon was serving with an electronic signal jamming device that might have prevented a roadside bombing in Basra in June in which the younger Gordon lost his life. ("Soldier's mother plans to sue MoD", BBC, Aug. 27). (& letter to the editor, Oct. 31). In the U.S., meanwhile, attorneys with the far-left National Lawyers Guild (see Apr. 27, 2000) "plan to open another front against the war in Iraq ...with a federal lawsuit targeting Pentagon orders forcing military reservists to remain on active duty. The so-called 'stop-loss' orders have kept people in the military beyond the end-dates of their enlistments since the 9/11 terrorist attacks." (Jeff Chorney, "Challenge to Be Filed to Military's 'Stop-Loss' Orders", The Recorder, Aug. 17).

"A man jailed for brutally murdering a teenage girl has been awarded [NZ]$1200 compensation for hurt feelings and humiliation while in prison." (Bridget Carter, New Zealand Herald, Aug. 23). "In a decision that prompted political anger, the Human Rights Review Tribunal said inmate Andrew MacMillan had suffered "injury to his feelings, loss of dignity and humiliation" when he was denied access to [a letter written about him]. MacMillan was jailed in 1988 for raping and killing Jayne McLellan, 17." ("Convicted NZ murderer compensated for hurt feelings", ABC News Online, Aug. 23; "Rapist-killer wins cash award for hurt feelings", Sydney Morning Herald, Aug. 23).

Restaurateur Phil Romano earlier this month "slapped Dallas Morning News restaurant critic Dotty Griffith and the Belo Corp., the newspaper's parent, with a suit alleging fraud, malice, defamation and an 'attempt to cripple the business of one of Dallas' finest new restaurants' via an April 16 restaurant review. That finest new restaurant is Il Mulino New York, the Romano-shepherded Dallas extension of the much heralded Greenwich Village venue founded in 1981 by Fernando and Gino Masci." (Mark Stuertz, "Eat My Briefs", Dallas Observer, Aug. 12; Sean Mehegan, "The Porcini Was Praiseworthy, but a Lawsuit Was Served Next", New York Times, Aug. 23). Update Jan. 3, 2006: parties settle with paper agreeing to run second review.

Attorneys' fees for the Compact Disc Antitrust Litigation Settlement were based in part on the idea that there would be $75.7 million in "non-cash consideration"--charitable donations of 5.5 million CDs, valued at 20% below "suggested retail price." The CDs have started to arrive at local libraries, and SiliconValley.com, compiling local news reports, is finding that the $75.7 million figure is generous, given the nature of the CDs being distributed, which include such titles as "Martha Stewart Living: Spooky Scary Sounds for Halloween", "Music from the HBO Original Movie BoyCott", and "John Lithgow Singin' In The Bathtub." North Carolina libraries got 1,300 copies of country-rocker Clay Davidson's "Unconditional"; a Washington state school district reportedly got a similar number of Whitney Houston singles of "The Star Spangled Banner." Michigan finds that the only Elvis available is not Presley or Costello, but Crespo. "There's nothing here you would want to buy even for $1.99," a Virginia librarian complained. (John Paczkowski, Aug. 4 (sixth item) (via Postrel); Tonya Shipley, "Library looks to positive side of free CDs", Zanesville Times Recorder, Aug. 3; Sam Hodges, "Libraries: CD deal more headache than hit", Charlotte Observer, Jul. 30; Robert Snell, "Martha? Yanni?", Flint Journal, Aug. 22; AP, Aug. 2; Fred Carroll, "Lots of CDs, but who'll listen?", Hampton Roads Daily Press, Aug. 19; dozens of other local articles). The only reason for this fiction was to rationalize a multi-million-dollar payment to the plaintiffs' lawyers, a payment that may well exceed the actual (as opposed to settlement-named) value of the free CDs.

In 1955, there was a gasoline pipeline leak at the Sunburst Works Refinery that caused minor contamination of a 19-acre underground site. Texaco cleaned the spill at the time, and did further millions of dollars of cleanup starting in 1993. State regulators determined that there was no health effects, and that benzene levels in Sunburst, Montana were no different than in areas unaffected by the spill. The state Department of Environmental Quality ruled that nothing more needed to be done beyond additional monitoring, not least because the groundwater at issue isn't used for anything--even livestock find it "naturally too briny" to drink.

Not good enough, say some residents and their lawyers, who blame the half-century-old spill for a variety of illnesses from arthritis to mononucleosis. They sued to require additional multi-million dollar cleanup. The plaintiffs originally sought damages for decreased property values, though townpeople who refused to join the lawsuit say that the main cause of the decreased property values is bad publicity from the 2001 lawsuit. (There are only 82 plaintiffs in a town of about 400.) Texaco acknowledges responsibility for the spill, but disputed the need to spend millions more on a clean-up methodology of little efficacy. The judge refused to allow Texaco to introduce evidence that they did exactly what the Montana regulators asked them to do, and a jury awarded a $41 million verdict, including $25 million in punitive damages. Texaco will appeal. The case is important because the verdict could encourage other "double-whammy" lawsuits on companies who have already been spending millions to comply with the extensive state and federal environmental regulations. (Kathleen A. Schultz, "Texaco to appeal Sunburst ruling", Great Falls Tribune, Aug. 20; "Jury Rules Against ChevronTexaco In Cleanup Suit", Wall Street Journal, Aug. 20 (sub - $); Reuters, Aug. 20; Kathleen A. Schultz, "Texaco must pay Sunburst $41M", Aug. 19; Kathleen A. Schultz, "Texaco-Sunburst trial gets under way", Jul. 26).

I've got an op-ed in this morning's Wall Street Journal (Aug. 23)(reprinted at Manhattan Institute site) examining what I term the "surprisingly conciliatory" line the Kerry/Edwards campaign has taken in recent weeks on litigation reform, and analyzing (insofar as that's possible, given the thus-far-sketchy details) the five-point plan the two offer for addressing the malpractice-suit crisis. For more, see my Aug. 9 post and links from there. Also check out this site's omnibus pages on politics, which includes many recent posts on Kerry and Edwards, and on medical liability. (Yet more: Point of Law).

The first election without the First Amendment, as Paul Jacob has called it, is getting pretty surreal: the role of money in politics hasn't diminished, but many more of us are at risk of being exposed to harsh legal penalties for expressing our opinions. (George Will, "Campaign Cops and Car Ads", Washington Post, Aug. 22; Paul Jacob, "With the Boss, but without the First Amendment", syndicated/TownHall, Aug. 8; "Campaign finance" (editorial), Houston Chronicle, Aug. 16; George Will, "Speech crime in Wisconsin", Newsweek, Aug. 16). More: Robert Samuelson, Juan Non-Volokh.

At a June 30 debate on lawyers' advertising sponsored by the Orlando Lawyers Chapter of the Federalist Society, plaintiff's lawyer John Morgan challenged Republican Rep. David Simmons for repeatedly referring to a law firm's having used the phone number 1-800-PIT- BULL. "He offered to bet Simmons $1,000, with the loser contributing to the winner?s favorite charity, if Simmons could find a lawyer ad using the PIT BULL number," according to an account in Florida Bar Online.

"Hope Morgan?s checkbook was handy," the account continues, because, as is easily verified, 1-800-PIT-BULL is indeed the proudly advertised call line of the Fort Lauderdale law firm of Pape and Chandler, which specializes in representing injured motorcyclists. ("1-800-PITBULL is for real", Florida Bar News Online, Aug. 1; Gary Blankenship, "Orlando Federalists debate lawyer advertising", Florida Bar News Online, Aug. 1). The firm has been profiled in the Florida press: a 2002 account in the Miami Herald says its "pit bull" commercial, which has run during Jerry Springer's talk show among other programs, "brings in as many as 60 phone calls a day". (Cindy Krischer Goodman, "Pit bull ad pays off for Miami lawyers", Sept. 16, 2002 (reg)). The Florida Bar has also sought to discipline the firm for its ads: Julie Kay, "Crackdown on Lawyer Ads", Miami Daily Business Review, Jul. 12. See also Matthew Haggman, "Fla. Lawmakers May Vote Today to Curb Lawyer Advertising", Miami Daily Business Review, Mar. 23. For more, see David Giacalone, May 10. (Update Sept. 19, 2004: Florida Bar disciplinary attempt ruled unconstitutional; Jan. 15, 2006: Florida Supreme Court rules against firm.)

According to Kevin O'Keefe of Real Lawyers Have Blogs (Dec. 5, 2003), "Morgan of the Orlando law firm Morgan, Colling & Gilbert (MGC), his wife and Johnnie Cochran, along with Pensacola trial lawyers J. Michael Papantonio and Fred Levin, own a consulting firm called Practice Made Perfect, which handles marketing and advertising for law firms around the country." For yet more on Morgan, see the last sentence in our Jul. 27 entry.

No games that involve chasing each other, kids. And whatever you do, don't push each other on the swing, whether you're just trying to be friendly or not. (Sandy Louey, "Recess gets regulated", Sacramento Bee, Aug. 22). More on forbidden fun: Jul. 6, Apr. 15, 2004; Dec. 30, Dec. 26, Oct. 3, 2003; earlier items.

The plaintiffs' attorney in the Prescod v. AA case (Aug. 19) sends us a letter defending the suit.

"In an extraordinarily broad declaration of Indian land rights, a Northern District judge has held that the Cayuga Nation can buy up property in its former Central New York homeland, declare it 'Indian country' and operate a gambling hall immune from local building, zoning and tax laws." "John Caher, "Indian Tribe Wins Broad Right to Add, Control Land", New York Law Journal, Apr. 29). In related news, New York State "has broken off negotiations to settle the Cayuga Indian land claim and will let the courts decide the 24-year-old lawsuit, officials on both sides of the dispute said". (Scott Rapp, "State stops settlement talks with Cayugas", Syracuse Post-Standard, Aug. 4). For more on Indian land claim litigation in upstate New York and elsewhere, see my City Journal Autumn 2002 piece; Nov. 3-5, 2001 and links from there; Jun. 24-25, 2002; Jun. 4, Apr. 16, Feb. 9, 2004 and links from there. See also Jan Golab, "The Festering Problem of Indian 'Sovereignty'", The American Enterprise, Sept.. Update 2005: U.S. Supreme Court, in City of Sherrill v. Oneida, disallows "creeping expansion" of tribal sovereignty through piecemeal land purchases.

Latest development in the affair that brought unwelcome scrutiny to former Calif. governor Gray Davis and his ties to the Litigation Lobby (see Dec. 5, 2000 and Jun. 22-24, 2001): "Court-ordered arbitration secretly delivered a $23.7 million payday to attorneys who successfully battled the state over smog fees wrongfully charged to 1.7 million motorists. The award," down from an original $88.5 million, "represents as much as arbiters could give the team of attorneys led by a high-powered San Diego law firm, under limits imposed by a Court of Appeal ruling in 2002." State officials had unsuccessfully sought to keep the earlier award under wraps, and attorney General Bill Lockyer was not exactly at pains to publicize this one: "The California Attorney General's office, after rebuffing repeated inquiries into the status of the arbitration, this week confirmed that a ruling had been issued but refused to release any more information, citing attorney-client privilege." The Schwarzenegger administration, however, responded promptly to an open-records request. (Michael Gardner, "Lawyers get $23.7 million in smog-fee fight", San Diego Union-Tribune, Aug. 20).

"It had been a long-standing tradition at Loram Maintenance of Way Inc. for employees to be wrestled to the ground and spanked on their birthday. But a 2001 spanking with a two-by-four sent Jeremy Meintsma to the emergency room with cuts, abrasions and muscle spasms." On Jul. 29 the Minnesota Supreme Court ruled that Meintsma's legal remedies were confined to the combination of workers' compensation and personal suits directed against his co-workers; his employer had no intent to injure him even if it was aware of the horseplay. (National Law Journal "Court Decisions", Aug. 9, not online; opinion in PDF form courtesy Cousineau McGuire Anderson).

Prominent Alabama trial lawyer Lanny Vines, last seen in these columns (Jan. 7-8, 2003) having apparently used a straw purchaser to buy then-Gov. Don Siegelman's Montgomery home for twice its appraised value, is now having a bit of trouble with the Internal Revenue Service. Vines "temporarily quit his law practice to become a day trader" but ran into trouble when the tech bubble burst. Vines sued his former accountant, J. Wray Pearce, the straw buyer in the Siegelman case, over allegedly bad tax advice on the stock trading, and reached a confidential settlement. An attorney for Vines says the $13.1 million IRS matter is "highly technical" in nature and in no way a reflection on his client: "If you don't like Lanny Vines, you don't like ice cream." (Jerry Moskal, "Vines files petition to overturn tax bill", Birmingham News, Aug. 18). Update: May 27, 2006.

Watch for litigation filed by insurers against builders, trying to recoup losses in subrogation by arguing that structures were defectively built. Another likely target of litigation, possibly including personal injury claims, will be mobile home manufacturers: who knew their product wouldn't stand up to 145 mph winds? (Steve Ellman, "Builders, Insurers Brace for Hurricane Charley's Legal Impact", Miami Daily Business Review, Aug. 17). More: Brian Noggle is organizing a betting pool on who gets sued.

What do you think of when you hear someone has been killed in an airplane accident? Earlier this year, in Olympic Airways v. Husain, the Supreme Court (in a Justice Thomas opinion over a Justice Scalia dissent) expanded the definition of "accident" in the Warsaw Convention (which allows damages recovery for international air travelers) to include an "event" where a flight attendant refused to reseat someone having an allergic reaction to cigarette smoke (though permitting the person to move himself). Olympic Airways is perhaps best understood as the epitome of the cliche "hard cases make bad law." It is already bearing fruit for plaintiffs with even more remote claims.

On December 14, 1997, 75-year-old Caroline Neischer, a trained nurse and former smoker with chronic respiratory problems (including, claims the defense and some medical reports, emphysema), flew from Los Angeles to Guyana. At her connecting flight, she permitted an airline employee to check her carry-on suitcase, which contained a nebulizer and medication. When the flight arrived on December 15, the suitcase (along with four other checked bags) didn't; they didn't arrive until 6 a.m. on December 17. Though medicine and a substitute nebulizer was available in Guyana (apparently for $2), Neischer and her family waited for the luggage to arrive, and didn't take Neischer to a doctor. On December 18, Neischer went to the hospital with breathing problems, and died on December 23, with the plaintiffs claiming she made a deathbed declaration blaming her death on the airline. Though the Guyana hospital lost some of the medical records, the plaintiffs won the battle of the experts, even though their theory had to account for the fact that it was inconsistent with the cause of death listed on Neischer's death certificate. (Interestingly, though this was a federal case involving an international treaty, the Ninth Circuit referred to state law standards of "competent medical testimony" in dismissing the defense's challenge to the expert.)

This, according to the plaintiffs, district court, and Ninth Circuit, qualifies as "wilful misconduct" by the airline. Under the Warsaw Convention, the airline cannot defend itself by pointing to the substandard care provided by the Guyanese hospital. The district court simply awarded damages; the Ninth Circuit asked the lower court to consider what degree Neischer was responsible for her own death for not spending $2 on another nebulizer. ("Court Finds Airline at Fault in Woman's Death", Reuters, Aug. 19; Prescod v. AMR, Inc.).

I was a guest on Mark Carbonaro's a.m. show this morning on KION-AM in Salinas, Calif. to discuss The Rule of Lawyers. To book a broadcast interview on the book, email me directly or contact Jamie Stockton at the St. Martin's/Griffin publicity department: 212-674-5151, ext. 502.

Some other recently noted publicity on The Rule of Lawyers: reviewer Art Taylor of Metro Magazine in North Carolina's Research Triangle named it as one of the top ten nonfiction books of 2003 (Jan.). Writing in Salt Lake City's Deseret News, Hal Heaton of the Brigham Young University Center for Entrepreneurship devoted much of a column to discussing the book's contents ("Litigation hinders new ideas, growth", Jul. 11, not online). And Maurice Neligan, a distinguished cardiac surgeon in Ireland, recommends the book as "most revealing" in a piece published in Irish Times ("Common sense, fat chance", May 11, not online).

The Department of Justice "states that 2,078,570 people were incarcerated 'in Federal or State prisons or in local jails' as of June 30, 2003." How many of them were fathers behind on their child support payments? It seems impossible to get a firm answer to that question, or even a decent estimate. Some such fathers are genuinely able to pay but are expressing contumely toward the court; others, however, appear to have landed in a latter-day equivalent of debtor's prison. "Their employment prospects sink with each imprisonment, even as their child support debt rises." (Wendy McElroy, "In Defense of 'Deadbeat' Dads", FoxNews, Aug. 4).

And, of course, parents wind up in jail for nonfinancial offenses too. A "Virginia mother was sentenced [Aug. 12] to 10 days in jail for defying a court order not to smoke in front of her children." After spending four hours behind bars Tamara Silvius was released on bond for purposes of appealing the order. (Sue Anne Pressley, "Mother Who Smoked Near Family Gets Jail", Washington Post, Aug. 13).

The recent (Aug. 4) fund-raising visit of Sen. Tom Daschle to Oxford, Mississippi took place "under the political radar ... Not even the local daily newspaper in Oxford received advance notice of the event and there was zero news coverage of the event." Why would the Senate Minority Leader go out of his way to raise money far from South Dakota in one of the nation's poorest states? Well, Mississippi has some of the nation's wealthiest trial lawyers, many of whom were in attendance, starting with Oxford's own Dickie Scruggs, who hosted the event. "The fund-raiser sought checks made payable to 'A Lot of People Supporting Tom Daschle' -- Daschle's campaign committee in Washington. Daschle is in an unexpectedly tight race with Republican challenger John Thune. Thune accused Daschle of 'ducking a debate' to attend the Oxford fund-raising event. Trial lawyers represent Daschle's largest group of individual contributors at $1.5 million and his second largest overall sector of givers at $1.7 million during the current cycle." (Sid Salter, "Daschle luncheon was quiet gathering", Jackson Clarion-Ledger, Aug. 15)(& welcome readers from Jon Lauck's Daschle v. Thune blog and from Jason Van Beek at South Dakota Politics, who points to a similar under-the-radar Daschle fundraiser in Jacksonville, Fla. in December hosted by attorney Wayne Hogan). More: the Daschle v. Thune blog reports that the U.S. Chamber of Commerce has run an ad in South Dakota assailing the Senator for blocking liability reform, drawing a testy reaction from his camp (Aug. 20, first and second posts). The first of the two posts quotes Crain's Insider, Apr. 28:

Daschle will accept an award from the NY Trial Lawyers Assn. at a 4/29 dinner at the Waldorf-Astoria. "He is being honored for his work in opposing tort reform. Political strategist James Carville will serve as the keynote speaker".

Over at our sister website Point of Law there are new posts galore, including Jim Copland on "light" tobacco suits and Ted Frank on second-guessing of the FDA by liability actions; links to MedPundit on asbestos, Robert Samuelson on the AGs' global warming lawsuit, David Bernstein on the "Friends" harassment suit, and a not notably favorable review of the new documentary "The Corporation"; and employment law topics ranging from Wal-Mart litigation to Sarbanes-Oxley whistleblowing to the Griggs disparate-impact standard. And, of course, the centerpiece is the featured discussion now underway between Profs. Lester Brickman and Richard Painter on contingency fee reform.

"For the first time in Canada, a court has ordered a man to give his ex-wife monthly support payments for their dog. Kenneth Duncan, a truck driver in Edmonton, was told to pay $200 a month in alimony towards the upkeep of Crunchy, a St. Bernard. ...Had Crunchy been a child, the monthly payment would have been $691." ("Albertan ordered to pay ex-wife $200 a month for pet support", CBC News, Aug. 10). More on pets in divorce: Feb. 17, 2003; May 14-15, 2002.

After less than a day of deliberations, jurors rejected a lawsuit claiming that General Motors was responsible for the death of former Kansas City Chiefs linebacker Derrick Thomas, who was speeding on ice without a seat belt at the time of his fatal crash four years ago (see Nov. 28, 2000). The ruling was a setback to attorney Michael Piuze (Jun. 19, 2001, Sept. 24, 2001, Oct. 4-6, 2002), who argued the case for the plaintiffs. ("GM Wins In Derrick Thomas Wrongful Death Trial", KansasCityChannel.com, Aug. 17).

The family, as we noted in our earlier item on the case, had also sued local ambulance service Emergency Providers Inc. and Liberty Hospital, both of which tried to save Thomas after the accident. The ambulance company settled, as did a Chevrolet dealership. "There was no dispute that the Suburban's roof was far stronger than federal standards, but the family contended that those standards were insufficient and needed to be changed. ... Almost whispering to the jury, [Piuze] asked them for from $75 million to more than $100 million in damages, saying he did not want to put an upper limit on it." We'll bet he didn't (Joe Lambe, San Jose Mercury News, Aug. 17).

Two of the nation's most prominent experts on the ethics of contingency fees, Prof. Lester Brickman of Cardozo School of Law and Prof. Richard Painter of the University of Illinois College of Law, are the guests in the second monthly "Featured Discussion" at Point Of Law, which gets started later today. Jim Copland sets the stage here and David Giacalone, whose site is another key resource for those interested in the ethics of fees, explains why you should care. Update: discussion has started.

Acacia Research Corporation, "an obscure but well-financed company in Newport Beach, Calif.," has assembled a portfolio of broadly worded patents that it claims entitle it to licensing fees from many if not all entities that provide streaming audio and video over the Web. It has sent out demand letters to a wide variety of recipients including news organizations and colleges both large and small. "Johns Hopkins University received a letter last year from Acacia, which asked for what would amount to 2 percent of the university's revenues." In June it sued nine cable and satellite companies.

Critics say Acacia has no interest in manufacturing things, just in asserting legal claims. "Acacia appears to be the first publicly traded company whose sole business is the licensing of patents. 'They are not a technology company; they are just a company full of lawyers,' said Dan Rayburn, executive vice president of StreamingMedia.com, a Web site and industry association. 'They acquire patents and then sue.'" Defenders, including some not employed by Acacia, say its patents appear solid and that it legitimately purchased enforcement rights from original inventors. "Last week, the United States Court of Appeals for the Federal Circuit in Washington, the nation's highest patent court, upheld a ruling that [television manufacturers Sony, Sharp and Toshiba] do not infringe the V-chip patent and thus owe Acacia no royalties. The companies that have already paid Acacia $26 million in V-chip royalties, however, will receive no refund." (Teresa Riordan, "Internet Patent Claims Stir Concern", New York Times, Aug. 16; Daniel Terdiman, "EFF Publishes Patent Hit List", Wired News, Jun. 30). Update: Feb. 18, 2007 (Acacia has prospered through licensing deals, though it hasn't yet faced its toughest courtroom challenges).

On June 26, 2002, Reno policeman Mike Scofield was heading to the scene of an accident at a high rate of speed, but didn't turn on his motorcycle siren. Anna Marie Jackson was pulling out of an office park driveway to make a left turn, and paused in the middle of the street in Scofield's path; Scofield, driving in the left lane, hit her SUV, and was killed instantly. Jackson was eventually convicted of a felony for causing a fatal crash while driving with marijuana in her system.

So the widow, already receiving $1.3 million in workers compensation, sued... the office park, claiming that untrimmed trees caused the accident, though a photo of the view showed no obstruction. Her lawyer even asked for punitive damages. A jury didn't buy it, voting 7-1 against the widow. (Jaclyn O'Malley, "Officer’s widow loses lawsuit", Reno Gazette-Journal, Aug. 13; Martha Bellisle, "Scofield trial nearing end", Reno Gazette-Journal, Aug. 12; Martha Bellisle, "Civil trial begins in Scofield case", Reno Gazette-Journal, Jul. 21; Reno press release, Sep. 26, 2002). Anna Marie Jackson is appealing her conviction; sentencing is set for September 10, where she faces two to twenty years. (Jaclyn O'Malley, "Jackson given OK to marry before sentencing in cop's death", Reno Gazette-Journal, Apr. 30).

Another driver in a drunken driving death fared better. Robert Curry, who had three previous drunken driving convictions, had had four vodkas and a blood-alcohol level of at least .217 when he drove his jeep over a center line and struck Robert Strehlow's motorcycle, killing him. But Curry claimed he was suffering from post-traumatic stress disorder from his service in Vietnam that caused him to drink. Curry singled out an event in 1971 where he claimed his plane had been shot down, but the commander of his company testified the incident never happened. Moreover, for the year while he was in jail following the accident before he made bail, he didn't seek counseling. Nevertheless, a Wisconsin jury found him not guilty of homicide by reason of mental disorder. Curry will now undergo a psychiatric evaluation and will be released to outpatient treatment if he is not a "threat to the public." (Tom Daykin, "Jury acquits veteran haunted by memories", Milwaukee Journal-Sentinel, Aug. 12; Terri Pederson, "Curry: Post traumatic stress disorder led to deadly drunken driving collision", Daily Citizen, Aug. 6; Tom Daykin, "Man's stories of Vietnam stress questioned", Milwaukee Journal-Sentinel, Mar. 14; Tom Daykin, "With company on upswing, fatal collision brings man's world crashing down", Milwaukee Journal-Sentinel, Oct. 25).

The Washington Times does some reporting on John Edwards's trial practice in North Carolina. ("Edwards' malpractice suits leave bitter taste", Aug. 16). Reporter Charles Hurt talks to local doctors about Edwards' cerebral palsy cases and also relates the following story about the role of jury selection in one of the future senator's prominent cases:

"In 1991 [in Wake County], he won $2.2 million for the estate of a woman who hanged herself in a hospital after being removed from suicide watch. ... During jury selection, Mr. Edwards asked potential jurors whether they could hold a doctor responsible for the suicide of their patients.

"I got a lot of speeches from potential jurors who said they did not understand how that doctor could be responsible," Mr. Edwards recalled in an interview shortly after the trial. Those persons were excluded from the jury.

The article doesn't say whether Mr. Edwards had to use up his peremptory challenges against the skeptical jurors or was able to get them purged for cause. Either way, it's a reminder of one way the political process is both more open to diversity and more responsive to public opinion than the trial process: you can't eject citizens from the voter pool just for holding the wrong sorts of views.

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 Airp