September 2004 Archives

I'll be speaking this evening (Thurs. Sept. 30) in Baltimore as part of a dinner-hour panel discussion on medical malpractice reform sponsored by the Chesapeake Lawyers' Chapter of the Federalist Society. Other events scheduled for this fall (sponsored by the Federalist Society unless otherwise specified):

* Mon. Oct. 11, Whittier Law School, Costa Mesa, Calif.

* Tues. Oct. 12, Chapman Law School, Orange, Calif. (lunch) and Trinity Law School, Santa Ana, Calif. (late afternoon)

* Thurs. Oct. 14, U.S. Chamber of Commerce, Washington, D.C., Legal Reform Summit, debating Bob Levy of Cato on federalism and litigation reform

* Wed. Nov. 10, Cato Institute, Washington, D.C., commenting on publication of Bob Levy's new book Shakedown

* Fri., Nov. 12, Federalist Society National Lawyers Convention, Washington, D.C., panel discussion on regulation by litigation with (among others) former Mississippi Attorney General Michael Moore and Michigan Supreme Court Justice Robert Young, Jr.;

* week of Nov. 15 (exact date TBA), Fordham Law School, New York City.

To inquire about our availability for speaking engagements, email editor - at - [this-domain-name] for me or tedfrank - at - [this-domain-name] for Ted.

Fontana, Calif.: "Karen Medina, a student at A.B. Miller High School, was killed on Cypress Avenue in December 2001 when a car driven by a 15-year-old unlicensed driver veered out of control." So who's 75 percent to blame for her death? Why, the taxpayers of Fontana, because the city hadn't built sidewalks on the thoroughfare in question -- or so said a jury which awarded her parents $37.5 million. (Lance Pugmire, "Death of Girl May Cost Fontana Millions", Los Angeles Times, Sept. 22; "Jury Blames City For Teen's Death On Busy Road", NBC4.tv, Sept. 22).

Now, around the country, it's common for towns to refrain from building sidewalks alongside many or most of their roads, whether for aesthetic reasons, to reflect residents' wishes, or simply because other ways of spending town funds seem more pressing. Fontana, known as a blue-collar community, planned to build sidewalks along Cypress Avenue at some point but was waiting for state grant money to come through. It may now have less wherewithal with which to pursue similar projects in the future. A footnote: although lawyers made much of the theme that the victim when hit was walking home from school, the actual accident occurred in a residential neighborhood which would appear not to have been especially close to the school ("less than a mile").

"An exclusive London restaurant stopped asking customers to sign a legal disclaimer if they order rare or medium-rare burgers after the practice came to the attention of the city's legal community. The restaurant at the five-star Marriott West India Quay in London's Docklands required diners to complete a form which said it waived the hotel chain's responsibilities should they suffer food poisoning." ("Rare burger? Just don't sue us", CNN, Sept. 29). We first covered the burger-disclaimer issue more than five years ago: see Aug. 9, 1999.

Blogger Beldar, fresh from a prominent role in exposing the CBS scandal, applies merciless scrutiny to the senator's brief stint in Massachusetts legal practice (Sept. 28). Okay, so maybe Kerry didn't accomplish much while he was a lawyer, but we'll have to think some more about whether that's necessarily a bad thing.

"The San Francisco Giants fan who caught Barry Bonds' 700th homer is being sued by another man who says he was the rightful owner of the prized ball, which he maintains was stolen from him during a mad scramble. According to a restraining order to be filed in state court Tuesday, Timothy Murphy said Steve Williams stole the historic blast from him during a melee in the left-center field bleachers at SBC Park on Sept. 17." (David Kravets, "Man who caught Bonds' 700th homer ball sued", AP/FoxSports.com, Sept. 28) "In October 2001, Bonds' record-setting 73rd homer of the season sparked litigation that ended when a judge ordered both men to split the $450,000 the ball fetched." Lawyers' fees were reported to have eaten up most of the proceeds in that case: see Jul. 1, 2003.

Charlie Morris, the sheriff of Okaloosa County, Florida, is suing Ford Motor over alleged defects in its Crown Victoria Police Interceptor vehicles. But he also wants the company to sell the county more of the cars. When Ford refused, Sheriff Morris sued asking the court to force the automaker to furnish more vehicles. Circuit Judge G. Robert Barron rejected the suit, saying case law makes clear that companies have a right to avoid dealing with unwelcome customers. ("Judge: Ford Can Refuse to Sell Cars to Police Suing Company", AP/TampaBayOnline, Sept. 28). For more on the Crown Victoria, see Nov. 5, 2003.

The latest installment of our free periodic newsletter went out this afternoon to its c. 2300 subscribers, covering the last three weeks' worth of postings in telegraphic, even punchy style. It's a great way to keep up with items you may have missed; when you're finished, pass on the email to a friend to let them know about the site. Sign up today, right here.

Connecticut-based Purdue Pharma has been highly successful at fending off mass tort lawyers' assault on its revolutionary but often-abused painkiller, Oxycontin. So the system works? Well, aside from the fact that its defense costs have reached $250 million. And now the company is entangled in insurance coverage litigation. (Lisa Siegel, "No Escaping OxyContin Fee Frenzy", Connecticut Law Tribune, Sept. 27). For more on Oxycontin, see Oct. 21 and Oct. 19, 2003 and links from there.

In Australia, Kelly Rae Hennessey is suing McDonald's claiming she suffered a loss of libido after biting into a cheeseburger that contained a rock, according to a report in the Melbourne Herald Sun. As a result of the contaminated burger, purchased from a drive-through in Adelaide in 2000, "Hennessey says she's suffered a loss of libido, as well as depression, nightmares, anxiety, nausea, palpitations, diarrhea, shortness of breath and toothache." ("Woman sues over bad burger", UPI/InterestAlert, Sept. 26).

The IssuesPA/Pew Poll has found that a remarkable 26 percent of Pennsylvanians polled "said rising malpractice insurance costs have forced their family to change doctors in the past year", and that state residents polled also favored a constitutional cap on pain and suffering damages by a margin of 68 percent to 24 percent. (The state legislature has refused to allow such a measure to reach the ballot.)(doctor availability survey, Sept.; caps survey, Aug.). The Scranton Times Tribune, a newspaper heretofore known for skepticism about the extent of a malpractice crisis, now credits reports that the number of local doctors practicing in key specialties "has declined sharply in recent years" and that specialties with high legal risk are disproportionately affected (Jeff Sonderman, "Area losing its specialists", Sept. 12). And in a Sept. 3 speech in Scranton, President Bush "cited the tale of Carbondale physician Neal Davis ... Dr. Davis, a longtime family practitioner, stopped delivering patients' children in January because he could no longer afford obstetrics insurance." The result, said Bush, was that "then-expectant mother Mary Coar of Honesdale [was] out in the cold"; she wound up driving 50 miles each way to see different doctors. (Chris Burk, "Bush stresses liability reform by tale of Carbondale doctor", Scranton Times Tribune, Sept. 4). More on Pa. malpractice: Jul. 16, May 20, Jan. 18, 2004; Sept. 12 and Jul. 23, 2003, etc.

John Michael Dunton of Anaheim was not criminally charged after his five-month-old died of heatstroke September 9 after her father left her in his van for four hours instead of at her babysitter. Dunton held a press conference with his attorney: "I hope that the auto industry or the car seat manufacturers will have some kind of alarm or bell so [parents] won't forget their kid in a car." (Wendy Thermos, "After Child's Hot-Car Death, Father Backs Alarm Systems for Parents", LA Times, Sep. 25). One awaits with trepidation the first parent/attorney combination with the chutzpah to sue the auto industry for this oversight. Readers of Romenesko are appalled, though Michael Kaufman, tongue firmly in cheek, writes

We really need these warning systems all over the house. For example, I can't tell you how many times I have started doing laundry without realizing that little Jimmy was still wearing the clothes that I was throwing in the washing machine. If I only had an early warning system on my washer/dryer. Or when I made the bed with Suzie still sleeping. I am actually thinking of suing Allstate for not warning me when I moved and left all the kids behind.

"A New York-based class-action law firm is trolling the Internet for Coors shareholders concerned that they will be financially hurt by the company's proposed marriage to Molson." Manhattan attorneys Ronen Sarraf and Joseph Gentile posted a message on a Yahoo financial urging "upset Coors shareholders to send their grievance to an e-mail address. The message goes on to say: 'An attorney will get in touch with you.'" The message boards "can be a good place to win business, [Sarraf] said. ... 'As for intensifying any dislike the public has against lawyers, there is very little one can do about that'". (Tom McGhee, "Lawyers on Net seek investors worried by deal", Denver Post, Jul. 27)(via Colorado Civil Justice League).

Even Ken Feinberg, the man who ran it, acknowledges as much. Must-read column from Boston Globe columnist Jeff Jacoby ("Why the 9/11 fund was a mistake", Sept. 27). One remarkable passage among many:

"You would get situations like this," Feinberg said. " `Mr. Feinberg, I'm the brother of the victim. Don't let my sister get a nickel. The victim hated his sister, trust me.' Then the sister comes in. `Is my brother spreading rumors. . .? My [deceased] brother and I loved each other.'

"Or: `Mr. Feinberg, I'm the biological parent of my son who was killed. Don't you dare give the fiancee any money. That marriage was never going to take place.' Then the fiancee comes in. `We were going to be married on October 11th.' And you go back to the biological parent. `They were going to be married October 11th. You threw a shower for them. You said you were gaining a daughter, not losing a son.' `Yeah, but on Sept. 10, my son told me it was off.' "

[Bumped 9/27 for the benefit of readers who weren't around when it ran last Thursday. Thanks to readers who've responded thus far.] Here's a proposition that may be of interest to commercial publishers or, conceivably, to some nonprofit organizations:

I've written a literary review of a historical novel (Emma Donoghue's Life Mask) for Sunday's New York Times Book Review; it has nothing at all to do with problems of the legal system. I'm at work on a second review for the same outlet and hope the relationship will be a long and happy one. (Walter Olson, "Women in Love", Sept. 26).

Back on topic: yesterday's publicity roundup omitted a few recent clips. To wit: I'm quoted in an article in Legal Affairs on the controversial new "litigation-finance" industry, which advances money to plaintiffs (often at very high interest rates) in exchange for a share of the booty (Daniel Brook, Legal Affairs, Sept./Oct.)(see Aug. 4, 2003). My Manhattan Institute colleague Robert Goldberg quotes me in a piece on the attacks on FDA general counsel Dan Troy over his initiative to have the agency intervene in state-court liability suits which threaten to contravene FDA policies ("The sacking of Troy", Washington Times, Jul. 25)(see Jul. 14). And very kind things are said at PokerPulse Forums about me, about this site, and about my book The Rule of Lawyers in the course of a discussion of the lawsuits under California's s. 17200 against Google, Yahoo, etc. for supposedly promoting online gambling (see Aug. 9).

Even though the 9/11 commission (debunking certain widely circulated stories to the contrary) concluded that the government of Saudi Arabia did not fund al-Qaeda, several institutional victims of the terrorist attacks, including Cantor Fitzgerald Securities and the Port Authority of New York and New Jersey, recently filed suit against a long list of foreign entities including the Saudi government and various financial institutions for their alleged role in the attacks (Larry Neumeister, "Port Authority to Join Suit Against Saudi Arabia Over 9/11 Attack", AP/Law.com, Sept. 13). The U.S. government has been highly critical of the freelance use of private litigation to second-guess the state of U.S.-Saudi relations, which has in no way deterred colorful asbestos-tobacco zillionaire Ron Motley from setting up his own mini-CIA-cum-State-Department-for-profit toward that end (Jennifer Senior, "Intruders in the House of Saud, Part II: A Nation Unto Himself", New York Times Magazine, Mar. 14)(see Jul. 11, 2003). And in the New York Observer, Nina Burleigh in February profiled attorney Brian Alexander of the prominent plaintiff's air-crash firm of Kreindler & Kreindler, who had "already filed a suit -- on behalf of the families of more than 1,000 9/11 families—against a list of foreign entities hundreds of pages long." ("Air Disasters, Legal Fees And Justice for the Victims", New York Observer, Feb. 23).

National Public Radio's widely aired news show ran a piece yesterday afternoon (Saturday) on lawsuit reform as a factor in the election; the reporter first interviewed me at a couple of minutes' length, and then turned the floor over to two professors who took the opposite view. The second of the two profs carried on at length about supposed public misunderstanding of the McDonald's coffee (Stella Liebeck) case in a way that made me wish Ted had gotten some air time. I'm likewise quoted in a Denver Post article analyzing Congress's failure to pass any litigation reform this term (Anne C. Mulkern, "Lawsuit caps lose support at roll call", Sept. 13). Karen Selick kindly referenced me this summer in a piece for Canada's National Post ("Stacking the deck against big tobacco", Jun. 2, not online). And New York's esteemed Observer, the one on the orange paper, carried in its last issue a favorable-in-context reference to "the [unnamed] Overlawyered.com guy", meaning in this case me rather than Ted. (Tom Scocca, "Blogging Off Daily Can Make You Blind", New York Observer, Sept. 20).

Bushmaster Firearms Inc. of Windham, Maine, has agreed to pay $550,000 and Bull's Eye Shooter Supply of Tacoma, Wash. has agreed to pay $2 million to settle families' lawsuits over the 2002 D.C. sniper shootings (see Jul. 1, 2003). Dennis Henigan of the gun-control-through-litigation Brady Campaign was the lawyer representing the families. "Authorities believe that Malvo shoplifted the rifle from Bull's Eye, where he and Muhammad had been seen checking out the Bushmaster that later disappeared." The Bradyites' theory was that the killings were the gun store's fault because it lost too many guns, and the manufacturer's fault because it did not cut off the gun store for losing too many guns. Henigan crowed that the settlement represented the first-ever payment by a manufacturer over charges of negligent distribution and the biggest-ever payment by a distributor. (Tom Jackman, "Gunmaker, Store Agree To Payout in Sniper Case", Washington Post, Sept. 10). I'm quoted in a subscriber-only BestWire article discussing the implications of the settlement ("Bushmaster Settlement Raises New Liability Questions for Gun Makers", BestWire, Sept. 13)($). Jeff Soyer also comments (Sept. 10).

Both companies' contribution to the settlement will apparently come from liability insurance proceeds. Reports the Portland, Me. paper (David Hench, "Gun firm settles in sniper lawsuit", Portland Press Herald, Sept. 10):

In explaining its decision to settle, Bushmaster said half of its policy limits had already been spent on defending the legal case, and the insurance company believed defending the case would exhaust the money available for coverage.

"The balance of the insurance policy not spent on legal fees, approximately $550,000, will go to the victims' families for their grief," said the company's chairman, Richard E. Dyke.

"Bushmaster strongly believes and vigorously supports the rights of citizens to own and use firearms, and the settlement of this case in no way compromises that stand," the company said in its release. "The Brady Group's . . . attempt to eliminate gun rights of citizens has failed legislatively and will continue to fail with these frivolous lawsuits against gun manufacturers."

But with the decision costing the company's insurer $1 million, insurers could pressure Bushmaster and other gun manufacturers to make changes.

They do something nice for you, you do something nice for them:

[Santa Ana, Calif. attorney] Daniel J. Callahan took respect for a jury to a whole new level. His client manufactured blood analyzers used to diagnose illnesses, and it claimed it was defrauded by a firm that supplied its circuit boards. The jury returned a verdict of $934 million. After it was over, he invited jurors to a party at his home. And sent limousines to pick them up.

"Oh my God," some of his friends said. "You did that?"

"Yeah," he told them. "It's legal."

When his client's recent rape trial ended in a hung jury, defense lawyer Joseph G. Cavallo decided to hire some of the jurors to get advice, to the tune of $50 an hour. While hiring a juror is not a crime or prohibited by professional conduct rules in most states, ethicists disagree about the propriety of the ever more common practice."

So what happens if the Bush Justice Department does manage to convince a federal judge (see Sept. 21, etc.) that the U.S. tobacco industry has constituted a "racketeering enterprise" for these many years and ought to pay the government $280 billion? Forbes traces some of the likely fiscal consequences: bankruptcy for even very large tobacco manufacturers; a de facto federal ownership stake in the industry through its role as chief creditor; and higher prices for smokers, who presumably count as an innocent party.

Oddly, the Forbes account has nothing to say about the consequences of a federal victory for the group that currently milks the most money out of the tobacco business, namely the state governments and plaintiff's lawyers who yearly pocket vast sums from the 1998 multistate settlement (along with, in the former case, vast revenues from taxes distinct from the settlement). A good chunk of this expected future flow of settlement money has already been "securitized", thus securing a short-term cash windfall for the states and lawyers, by selling it to bond investors; presumably the owners of these bonds are also at risk. Now, as asserted property interests go, the interest of these various parties in the future stream of ill-gotten income from the settlement heist has scant claim to be regarded as sacrosanct; still, it will hardly improve this nation's reputation for security of property for this industry to be pillaged a second time through flimsy legal theories wielded by high authority. (Daniel Fisher, "Smoking dopes", Forbes, Sept. 22).

Hey, that dog's nose touched me! I've been assaulted! Especially since it tipped off the arresting officer that drugs might be found on my person if I were subjected to search. A New South Wales appeals court is hearing Glen Paul Darby's appeal (Sydney Morning Herald, Sept. 16).

Townsend and Townsend and Crew and its cohorts are getting only a vast pile of money, not a super-extra-vast pile, for purporting to represent a huge class of California consumers in what Judge Paul Alvarado acknowledged was the not-particularly-risky Golden State car in the Microsoft litigation train. (Brenda Sandburg, "Judge Slashes Fees in Microsoft Class Action", The Recorder, Sept. 14). For our earlier coverage, see Mar. 31 and May 12 (California cases) and Jan. 11, Jul. 9 and Jul. 25 (fees in MS antitrust suits generally).

Now here's a case you might think would really open the floodgates: Prof. Paul Caron of the University of Cincinnati reports at TaxProf (Sept. 17) that a court has ordered the Internal Revenue Service to pay a taxpayer $10,000 for the emotional distress occasioned by its overzealous collection techniques. The case arose in bankruptcy proceedings, however, and its relevance as precedent for solvent taxpayers is not clear. The $10,000 will be paid at the expense of other taxpayers who presumably will surrender their money in a way that involves no emotional distress for them.

This year, in the first quadrennial election since the Florida recount mess, candidates may have to hope for a vote total beyond the "margin of litigation." (John Fund, "Ballots or Briefs?", Wall Street Journal/OpinionJournal.com, Sept. 22).

"The kids of the abuse-hysteria generation have grown up. Many are living with the fact that they were part of a big lie. Some, like Ed Sampley, are now trying to make amends." (Maggie Jones, New York Times Magazine, Sept. 19).

A judge's OK for fees in the insolvency of the giant California utility "puts the final tally for more than three years' worth of work at about $450 million to $475 million, according to an accounting by the Office of the U.S. Trustee. Of the total, about $100 million goes to law firms representing the utility in different capacities. " Milbank Tweed originally agreed to charge $595 per hour but now wants that figure revised upward. (Jeff Chorney, "Calif. Bankruptcy Judge OKs About $450 Million in PG&E Fees", The Recorder, Sept. 16). See Jul. 23, Dec. 6, Nov. 26.

"'The trolls have made amazing comebacks. They just keep coming back from the dead,' said IP attorney Parker Bagley, a partner at New York's Milbank, Tweed, Hadley & McCloy who in the past has helped the Hummel figurine company protect its copyright status." (Tresa Baldas, "Trolling for Copyrights", National Law Journal, Sept. 21).

Once again it's happening in central California: "After more than 40 years in business, Roy's Drive-In in Salinas is closing -- in part because the owner can't afford a lawsuit that accuses him of violating the Americans with Disabilities Act." Jarek Molski of Woodland Hills in southern California, who uses a wheelchair, "is suing Patterson because he claims the restaurant is in violation of the Americans with Disabilities Act. Molski has sued over 200 small businesses for not meeting ADA requirements. ...Built in the 1950s, Roy's Drive-In does not have ramps to access the windows and restrooms, but employees say the business is accessible to all of their customers -- including the disabled," through car-hop service. The restaurant is scheduled to close today. ("Roy's Drive-In Closing After 40 Years", TheKSBWChannel.com, Sept. 20; Claudia Melendez, "Roy's Drive-In to close", Salinas Californian, Sept. 18). Last year (see Sept. 2, 2003) On Lock Sam, a beloved 105-year-old Chinese restaurant in Stockton, closed after being hit with an access suit.

Complainant Molski has been known to call himself "Sheriff", and his activities (assisted by lawyer Thomas Frankovich) have caused an uproar lately in central California. His suits repeatedly recycle identical allegations concerning the lack of accessibility of establishments he says he has visited, and demand money over such putative misdeeds such as placing paper towel holders at an incorrect height. Hundreds of residents "filled the Morro Bay council chambers" after Molski hit a dozen local restaurants with suits. (Andrew Masuda, "Residents speak out over ADA lawsuits", KSBY, Sept. 14). "Customers are calling Molski's tactics a get-rich-quick scheme," reported KSBY. Molski is "asking for $4,000 a day until the remodeling is completed," says Ruth Florence, who owns Ahedo's Mexican Restaurant in Grover Beach. "That's ridiculous." (Carina Corral, "China Bowl owner speaks out", Sept. 15). More coverage on the same station: Sept. 8, Sept. 9, Sept. 10, Sept. 14.

Nor is Roy's Drive-In the only casualty: "Owners of The Hungry Fisherman restaurant on Beach Street in Morro Bay say that Molski's lawsuit caused the establishment to close after 28 years." (Lindsay Christians, "Disability suits worry Morro Bay", San Luis Obispo Tribune, Sept. 14). More coverage in the same paper: Sept. 11, Sept. 15, Sept. 15 again, Sept. 16, Sept. 18. San Diego-based lawyer Amy Vandeveld has also represented Molski (Matt Krasnowski, "Flood of ADA lawsuits irks small businesses", Copley/San Diego Union-Tribune, Sept. 12). For Morse Mehrban's recent activities in Fresno, see Jul. 9. For much more about disabled-rights filing mills, see Mar. 9 and links from there, and my City Journal article, "The ADA Shakedown Racket". Update Dec. 12: judge declares Molski vexatious litigant.

The Justice Department -- this under the supposedly free-market, tort-reforming administration of George W. Bush -- has delivered itself of the following remarkable pronouncement: ""the United States would be justified in seeking disgorgement of the proceeds from all [cigarette] sales to people of all ages from 1954 into the future." As it is, it's demanding a mere $280 billion in its baldly retroactive suit, this after Judge Gladys Kessler's dismissal of the department's Medicaid-recoupment claims. (Jacob Sullum, "Smoking in the Dark", syndicated/Reason, Sept. 17; see Ron Scherer, "In the largest suit yet, US sues the tobacco industry", Christian Science Monitor, Sept. 20). For more on the suit's threat to First Amendment values, see Sept. 23, Oct. 13 and Oct. 25, 1999; for its status as an attempted end run around democracy, see Jan. 15-16, 2000; for other reactions at the time of its filing, see Sept. 29 and Oct. 26, 1999; plus our other posts, and most recently Jul. 16, 2004. More: Legal Times, Sept. 21.

Nice little power plant you're planning there, wouldn't want anything to happen to it: Municipal officials in California are charging that a powerful labor group, California Unions for Reliable Energy, is exploiting environmental protection laws to extract money for its members. The city council of Roseville wanted to press ahead with a $150 million power plant but was told by city managers that unless it signed a "project labor agreement" pledging to employ union workers CURE "would try to delay licensing for the gas-fired plant by raising environmental objections. Snubbing CURE could cost $15 million in extra red tape and other costs and put the project 18 months behind schedule."

CURE says it is only utilizing its legal rights (which it possesses in common with every other potential objector) to ensure that plants comply with environmental guidelines. But "critics say CURE abandons its green crusades once power-plant developers agree to use union labor," a charge the group denies. Even a Sierra Club official is critical of the group, while Riverside council member Steve Adams referred to its actions as "borderline extortion or racketeering." And: "The California Energy Commission, which licenses new plants, has launched an inquiry following a complaint by Assembly Republicans." (Dale Kasler, "Pressure by labor group alleged", Sacramento Bee, Sept. 19).

Under a new clause added to handbooks distributed earlier this month at the 289 schools run by the Catholic Archdiocese of New York, parents and students "must agree to not sue the archdiocese, their parish or school over disciplinary and academic measures such as expulsion or being held back." (David Andreatta, "Holy Outrage", New York Post, Sept. 15)(via Amy Welborn, who comments).

It isn't just the fox-hunt ban: "According to the British Horse Society, dozens of pony trekking centres and riding schools are being forced to close because of spiralling insurance costs and customer claims. Some riding schools have seen insurance costs increase five-fold in the past five years." (Richard Alleyne, "Injury claim culture 'is killing off our riding schools'", Daily Telegraph, Jul. 14). "Children's charities have been forced to cancel activities and shut down centres because of a big rise in insurance premiums as a result of the fear of parents making compensation claims for trivial incidents," reports the Daily Telegraph; the prospect of U.S.-style litigiousness spreading to Britain is widely blamed (David Bamber, "School trips and charities hit by soaring insurance costs", Daily Telegraph, Aug. 29). A sanitized childhood without cuts and scrapes is too dire to contemplate, thinks Quentin Letts ("A child has a right to dirt and bruises", Daily Telegraph, Aug. 22). David Davis, shadow Home Secretary, sounded the alarm last month in the Spectator ("Victim nation", Aug. 28). And insurance broker AON has published a report on the problem entitled "Blame, Claim and Gain" (PDF). For more, see many entries on our U.K. page. P.S. More from the Telegraph, from May (Joshua Rozenberg, "Is there a compensation culture?", May 20). And from September (Liz Lightfoot, "Adventure pursuits 'too risky for schools'", Sept. 28).

For its monthly Featured Discussion, our sister website Point of Law has lined up a debate on legal reform and the presidential race. Could John Kerry "go to China" and bring about a significant overhaul of the malpractice system? Would a second GWB term result in more progress toward nationwide reform than has the first? Ron Chusid D.O. of Doctors for Kerry will face off against our own Ted Frank. Look for things to get started Monday; the discussion will be found here (bumped Sept. 20).

According to David Giacalone (Sept. 15), a referee/judge has decided that the law firm of Pape & Chandler has a constitutional right to use a logo depicting a pit bull and a 1-800-PIT-BULL telephone line, and has accordingly dismissed the Florida Bar's ethics complaint against the firm (see Aug. 23). Update Jan. 15, 2006: Florida Supreme Court rules against firm.

Jim Romenesko's widely read media-watch weblog, sponsored by the Poynter Institute, links to our Wednesday commentary with the following blurb: "U.S. News screw-up: Why doesn't mag reveal sources?" (see left column)

Also, I keep getting web-based publicity of a more personal nature. The co-blogger of Jane Galt (who is a perfect hostess, by the way) recounts my evenings out, so does James Taranto, Andrew Tobias discusses my political sentiments, and -- is nothing too private? -- Martin Grace has a comment on my sleeping habits.

Juror #4 did seem awfully convivial and garrulous, didn't he? Not to say scatterbrained. The reason became clearer after the verdict when he admitted that his Poland Spring water bottle had been half filled with vodka. But the judge declined to upset the defendant's conviction: "There is apparently no law against drinking while serving as a juror and deliberating the fate of a fellow New Yorker." (Michael Wilson, "Retiree Found Guilty, Juror Found Tipsy, and Verdict Stands", New York Times, Sept. 16). Fool in the Forest has more (Sept. 17).

About a year ago the conservative magazine National Review (disclosure: I've written for them and for a while served as a contributing editor on their masthead) was sued by a Muslim activist who claimed to have been defamed by an article containing inaccuracies about his connection to a controversial gathering. The communications director for the local chapter of the Council for American-Islamic Relations (CAIR) expressed the hope that the lawsuit would "deter hate-mongers from undermining the character and work of those who do not share their extremist views." The magazine eventually succeeded in getting the suit thrown out and even got a small payment from the plaintiff, but its libel insurance policy carried a $50,000 deductible, and its total expenses exceeded $65,000. It's opened an appeal for contributions to cover the resulting hole in its budget -- a "post-defense defense fund". As Voltaire put it, "I was never ruined but twice: once when I lost a lawsuit and once when I won one."

Senior constable Terence William Hall, 43, tripped on an unlit footpath on a rainy night at Narrabri Police Station in New South Wales. He got a hematoma from the bump "and was later told he was suffering from deep vein thrombosis", and now he has A$500,000 to show for it. (AAP/Sydney Morning Herald, Sept. 7).

Federal regulations require universities to maintain something called an Institutional Review Board which preapproves research on human subjects to make sure it is not improperly injurious to the persons being studied. There is a certain kind of logic to such requirements when it comes to, say, invasive medical experiments. "Yet the human subjects protection racket has been able to extend its claws around social science research, subjecting it to the same rigmarole as demanded of the medical types," writes Mark Kleiman (Sept. 8). "This is stupid, because almost no social science research actually poses important risks to its subjects that couldn't be handled perfectly well by an informed-consent system audited retrospectively rather than a pre-approval system". He adds:

Worse, since social-science research is often controversial, the risks of censorship are much more prominent, especially given diversity requirements demanding, for example, that a representative of prisoners be involved in clearing any study involving prisoners.

Any collection of data from an identifiable person counts as "human-subjects research," even, for example, interviewing a group of judges about how they handle probation revocations. How answering such questions puts the judge at risk is more than I can figure out. And heaven help you if you submit a proposal saying "I intend to ask judges what happens in probation cases." That's far too vague: you have to submit a questionnaire for review, as if you knew in advance what questions were going to turn out to be relevant.

Update: for more, see Point of Law, Dec. 7, 2006 (paper by Dale Carpenter).

Yorba Linda, Calif.: The basic fact pattern underlying this wrongful-birth suit will be familiar to longtime readers of this site (Aug. 22-23, 2001, Jul. 1, 2003, etc.): little Leilani Duff's parents say they love her, but also say they'd have aborted her if they'd realized she was at risk of spina bifida, so they're suing their obstetrician, Dr. William Dieterich, for unspecified damages. (Claire Luna, "If Only We'd Known, Parents Say", Los Angeles Times, Sept. 9). The L.A. Times's account includes the following comment about the incentives this burgeoning field of litigation may be sending to doctors practicing in the field:

The rise in wrongful-life suits and the threat of legal responsibility for a child's defects puts obstetricians in the uncomfortable position of recommending, if not insisting on, abortion when there is the slightest doubt, said one physician.

"On one side you have a liability mess that puts you on the hook for the rest of the child's life," said Dr. T. Murphy Goodwin, chief of maternal-fetal medicine at USC's Keck School of Medicine [and also, as the article notes, a member of the American Assn. of Pro-Life Obstetricians and Gynecologists].

"The other side, you have carte blanche to avoid the potential for these kinds of problems by shading the discussion to advocate abortion. There's almost no adverse reaction if a doctor tells someone to terminate a pregnancy based on faulty information."

Stamford, Ct.: "A senior citizen who fractured her hip when she tripped over vegetables at a farmer's market two years ago is suing the city and the downtown business improvement district that sponsored the event." (Donna Porstner, "Woman trips on vegetables, files lawsuit", Stamford Advocate, Sept. 10). For more on the menace of open-air food markets, see Jul. 14 (suits over slaughter by driver of runaway car at Santa Monica market; on which, see this commentary as well at LAVoice.org). If we sue them enough, maybe they'll go away and we can all get back to patronizing supermarket chains with their full-time risk managers and security staffs -- so much safer that way.

By a 229-174 vote, largely along party lines, the U.S. House of Representatives has passed the proposed Lawsuit Abuse Reduction Act, sponsored by Rep. Lamar Smith (R-Texas); it now goes on to an uncertain future in the Senate. (see Point of Law Sept. 9, Aug. 17, Jun. 21; this site, Jun. 21). (Bloomberg, Reuters, AP). The bill would restore the stronger Rule 11 standards which used to entitle victims of meritless litigation in federal court to recompense in the form of sanctions: a previous Congress, following a major push by the litigation lobby, gutted Rule 11 in 1993. A source on Capitol Hill who is in a position to know suggests that we might want to provide a link to the House Judiciary Committee Report on today's bill, the Lawsuit Abuse Reduction Act. "The report compiles in one place a ton of information on the problem of lawsuit abuse, with many of the examples of frivolous lawsuits drawn from your Web site". And indeed, a quick glance at several sections of the report suggests that we did serve as an important source of material, for which we're grateful.

Major media foulups, cont'd: in its Sept. 20 issue, the newsmagazine U.S. News sets forth a lengthy and on the whole abject apology (couched, not at all accurately, as a "Clarification") regarding a piece it ran in its Aug. 8 issue, "Secrets Behind the Mask", by Christopher H. Schmitt, which had assailed the 3M company for alleged deficiencies in face masks which left workers unprotected against on-the-job hazards. The Aug. 8 article had consisted of little more than a recitation in sensational language of various claims advanced by plaintiff's lawyers who've been naming 3M as a defendant for years (mostly without success) in asbestos and other workplace-injury litigation. In that respect it resembled a good many media pieces which are less a product of investigative journalism as such than of the "litigation communications" branch of public relations.

The details revealed by U.S. News's inquiry into its own misreporting are damning indeed. Here's the first:

Dozens of new posts at our sister site, including: plagiarism on the Harvard Law faculty; bill to revive Rule 11 sanctions for meritless litigation moving through House; more coverage of a lawyer's attempt to collect "referral fee" of more than $140,000 from Illinois widow; Steve Bainbridge on attorney campaign donations and scoundrel Joe Kennedy; a sonnet on scientific evidence; class action fees in the InfoSpace and Ameritech cases, plus a paper on coupon settlements and an in-production Madison County movie; in praise of the Michigan Supreme Court; big fees in the really old days; public environmental suits, including the one on global warming; and Home Depot co-founder Bernard Marcus urges philanthropists to support legal reform.

For employment-law buffs, there are new posts on legal protection for messages on employee T-shirts, California and federal overtime regulations, and the Wal-Mart class action. For those who follow product liability there's coverage of fen-phen fraud arrests, firearms liability and asbestos bankruptcies. Plus election-year politics, including Jim Copland, Ted Frank and more. Shouldn't you bookmark it today?

In Devon, England, a community theater producer who faced accusations of hate speech last year after staging a Christmas pantomime entitled Snow White and the Seven Asylum Seekers has announced that he has begun production on a presumably less offensive show, Snow Person and the Seven Completely Ordinary People. The north Devon village of Merton near Okehampton had banned producer Bob Harrod's pantomime last year following advice from the government's Commission for Racial Equality and a regional race council, after complaints that the show's satirical portrayal of asylum seekers might violate laws against racially offensive speech. The show featured seven asylum seekers with names like Chemical Ali, Comical Ali, Back Ali, Dark Ali, and Bowling Ali. The nearby village of Langtree, however, agreed to host the production. ("New target for Snow White writer", BBC, Sept. 11; Nov. 3 and Dec. 1, 2003)(via Norvell). More on British hate speech laws: Jul. 16, 2004, Dec. 18-19, 2002,

A California appeals court has ruled that Michael Flatley, famed for the dance productions "Riverdance" and "Lord of the Dance", can sue D. Dean Mauro, "a Waukegan, Ill., attorney who filed a $35 million suit falsely accusing the Irish dancer of raping an ex-stripper in a Las Vegas hotel room." Twenty-five days after a sexual encounter between Flatley and Tyna Marie Robertson, Robertson called police to claim the encounter had been rape. According to the court ruling, "Mauro spent the next few months calling the dancer's lawyers ... threatening to 'go public' with the allegations, to 'ruin' Flatley and demanding $1 million for his and Robertson's silence." After Flatley sued Mauro for extortion, Mauro unsuccessfully invoked the protection of the state's "SLAPP" ("Strategic Lawsuits Against Public Participation") statute and also unsuccessfully claimed that his communications with Flatley's lawyers were protected by the litigation privilege for lawyer-to-lawyer communication. "The only thing he did was represent his client," said James Holmes, a lawyer for Mauro. "It's all privileged." The original lawsuit by Robertson was withdrawn after Flatley countersued. (Mike McKee, "Calif. Court Revives Lord of the Dance's $100M Extortion Suit Against Lawyer", The Recorder, Sept. 3). Update Jul. 30, 2006: Calif. high court agrees Flatley can sue.

Stephen Bainbridge and Eugene Volokh (keep scrolling) explain why. (See also Sept. 10.)

Careful about crossing the Litigation Lobby, cont'd: Dwight Kay, the finance chairman of Republican Lloyd Karmeier's campaign in the hotly contested race for a seat on the Illinois Supreme Court (see Aug. 29, etc.), is crying foul and suing two political consultants over a visit the two paid to the home of Kay's ex-wife in which Kay says the two falsely represented themselves as disability investigators and sought to elicit information from her about the couple's divorce. One of the two consultants, Doug Wojcieszak, heads up a group called Victims and Families United, which is backed by trial lawyers in Illinois's famed Madison County and promotes their interests. Wojcieszak and co-defendant Tom Denton of Tactical Consulting in Carbondale deny the charges and call the suit politically motivated and an example of hypocrisy (Jim Muir, "Two local men accused of Constitutional rights violations", Southern Illinoisan, Aug. 12; "Defendants say lawsuit politically motivated", same date).

Per AP, "Wojcieszak admits visiting Diane Kay on July 13. He said he was looking into Dwight Kay's legal past since the candidate Kay supports, Karmeier, 'wants to limit others' access to the courts. ...Wojcieszak also denies allegations he was behind an incident of garbage rifling last spring outside the Okawville office of Sen. David Luechtefeld, a longtime friend of Karmeier's and chairman of his campaign." (Susan Skiles Luke, "Lawyers group to watch judicial election ads", AP/Chicago Sun-Times, no longer online). Curiously, Wojcieszak "served for a year as the executive director of Illinois Lawsuit Abuse Watch, a tort-reform group" and later switched sides. (Illinois Times, May 27).

The family of John Ritter has sued Burbank's Providence St. Joseph Medical Center, charging failure to diagnose and treat the late comedian's aortic dissection in timely fashion, and medblogger Galen reacts in a less than sympathetic manner (Sept. 9, strong language; "Ritter family files wrongful death lawsuit", SignOnSanDiego, Sept. 9). KevinMD (Sept. 10), Sydney Smith (Sept. 10) and Chris Rangel (Sept. 11) also weigh in, and the latter adds thoughts about the hospital death of Bee Gees member Maurice Gibb.

Jason Reali of Pennsylvania has been convicted of drunk driving twice, and he was ordered by a court to install on his dashboard an ignition interlock, "a small machine that measures alcohol on the breath and won't allow a car to start if the driver has been drinking." Forty-five states use ignition interlocks; last year, such interlocks have stopped would-be drunken drivers from starting their cars over 33,000 times. Reali, however, is also a heavy smoker, and he claims that blowing into the interlock while driving caused him to pass out and crash. This is, according to his lawsuit, the fault of Pennsylvania and the interlock manufacturer, LifeSafer Interlock Inc. (Oliver Prichard, "Sobriety devices drawing criticism", Philadelphia Inquirer, Sep. 12; AP, Sep. 12).

Australia's high court has agreed to review an appellate court decision (see Dec. 28) disallowing a a test case against Qantas and British Airways over so-called economy-class syndrome, the deep vein thrombosis suffered by a passenger after a long flight. A decision in favor of the claimant, businessman Brian Povey, could open the door to many more such suits against Australian airlines. (Ian Munro, "DVT case could open floodgates to stricken fliers", Melbourne Age, Sept. 11). Update Jun. 25, 2005: high court dismisses case.

We'll stipulate that Warren Jeffs is not a sympathetic defendant. We'll further stipulate that that's an understatement. Jeffs, who calls himself "The Prophet," is the current leader of the cultish polygamous "Fundamentalist Church of Jesus Christ of Latter Day Saints" estimated with 10,000 members, a few dozen of whom are his wives. (The Church broke off from its namesake when the mainstream Mormons abolished polygamy in 1890.) "Utah and Arizona prosecutors have been investigating allegations of welfare and tax fraud, incest, child abuse and forced marriages of young girls to adult men in the FLDS community" on the state border. Jeffs allegedly grants himself the power to re-assign spouses and children amongst families. The FLDS has also been excommunicating hundreds of teenage boys, allegedly to reduce competition for wives in the cult; the youths, who've grown up uneducated, are now completely isolated from their families and the community they grew up in.

Lawyers across the country have been bringing lawsuits. We make no comment on the claims of assault, terroristic threats, extortion, molestation, and kidnapping; such claims are legally legitimate to the extent that they're true.

More problematic, however, are the allegations of fraud and conspiracy and the demand for injunctive relief and some damages: the complaint poses that FLDS promised "eternal life" to its members; by excommunicating the plaintiffs, they have not only breached that promise, but they have caused the plaintiffs to "suffer[] the emotional and psychological injuries resulting from... having been condemned to eternal damnation." One can immediately see the trouble that could arise from making theological disputes actionable (see also Feb. 9). Courts have enough trouble adjudicating truth; it is perhaps not wise to also ask them to adjudicate Truth. The risk is that the failure of criminal authorities to adequately intercede may prompt civil courts to create precedents with consequences beyond a polygamous cult getting its just deserts. (AP, Aug. 30; Angie Wagner, "Ousted from sect, 'lost boys' start anew", AP, Sep. 7; Sylvia Moreno, "Polygamous Sect Moves In, And Texas Town Asks 'Why?'", Washington Post, Sep. 7; Jon Krakauer, Under the Banner of Heaven; Child Protection Project; Phoenix New Times coverage) (via Heller).

More developments in the Madison County case (Mar. 25, etc.) that Prof. Lester Brickman called "the most abusive class-action settlement of the decade, if not the century." "Circuit Judge Phillip J. Kardis approved on Thursday a plan to notify potential claimants in the suit against Canadian con man James Blair Down." However, New York attorney Jody Pope, representing objectors, says class members are not receiving proper notification of their right to make claims. The case involves prominent plaintiff's firms Ness Motley (now Motley Rice) and Korein Tillery. (Paul Hampel, "Suit against con man nears settlement", St. Louis Post-Dispatch, Sept. 9).

If so, it wouldn't be the first time.

A state court of appeal has tossed a $661 million judgment by oyster farmers against Louisiana taxpayers. "Despite evidence showing that some of the allegedly dead leases have produced thousands of oysters since the diversion began operating in 1991, [District Court Judge Manuel] Fernandez sided with the plaintiffs and awarded them $370 million -- more money than the leases had ever generated." A related $1.3 billion judgment is still on appeal to the Louisiana Supreme Court (May 25; Oct. 18). (Jeffrey Meitrodt, "Oyster farmers' $661 million in awards tossed on appeal", New Orleans Times-Picayune, Sep. 10; latest Naked Ownership blog entries) (via Bashman). Update Oct. 24: La. Supreme Court throws out cases.

As "the third anniversary of Sept. 11 draws closer, the lawsuits just keep coming." Some families that received over a million dollars from the Victims' Compensation Fund have sued parties as remote as Motorola over the terrorist attack. (Leslie Eaton, "In Nation's Courtrooms, Wounds From 9/11 Persist", New York Times, Sep. 9; Southern District of New York 9/11 litigation scheduling page; see earlier coverage Jan. 19, Dec. 29, Sep. 11, 2003; Sep. 10, 2003).

California Gov. Arnold Schwarzenegger has signed into law a bill bestowing on the state a 75 percent share of punitive damage awards -- but only after the details of the measure had been radically revamped in a manner highly unwelcome to critics of the litigation system. Negotiators agreed to a "lawyers eat first" principle, absent in the original proposal, which would guarantee private counsel a 25 percent share of the state's take; they also stripped away a provision, much sought by defendants, which would have barred multiple punitive damages over a single course of conduct. Finally, they applied complicated time restrictions to the new law which makes it likely that it will cover relatively few actual cases unless later extended ("Governor Signs Bill Adopting Court Budget Reform, Giving State Share of Punitive Damages", Metropolitan News-Enterprise, Aug. 18; Dan Walters, "Details torpedo Schwarzenegger's budget gimmick on civil lawsuits", Sacramento Bee, Sept. 8). George Wallace at Declarations and Exclusions has more. The state trial lawyers' association, which styles itself Consumer Attorneys of California, declared itself "gratified" by the governor's turnaround on the issue. ("Schwarzenegger's Punitive Award Fund Part of Budget", Bloomberg, Jul. 29, no longer online). More: Victor Schwartz, Mark Behrens and Cary Silverman have a paper on the subject from Washington Legal Foundation (Sept. 3, PDF). And Southern California Law Blog covered it Sept. 4.

We've posted four more letters from readers on our letters page. Topics this time include cameras in the jury room; the controversy over whether it is proper for doctors to consider turning away trial lawyers as patients; and the case where a woman was taken into custody on a mistaken warrant arising from a food infraction at Yellowstone Park.

Plaintiff's attorney Bruce Fagel, MD, JD, a malpractice specialist in Los Angeles, spoke with Medical Economics for a cover-story interview in their last-but-one issue ("How I pick the doctors I'll sue", Aug. 20). The whole thing is worth a look; here are two snippets.

On how juries decide:

When doctors are cross-examined in a deposition or during trial, they often try to avoid responsibility for their actions. In fact, some defense attorneys encourage this attitude, instructing their clients not to answer even reasonable questions. As a result, jurors may ultimately be convinced of a doctor's negligence not by the nature of his actions in the case, but by what looks like intentional evasion of responsibility when explaining why something went wrong.

The real value of our jury system in medical malpractice cases has little to do with the jurors' ability to understand the medical facts and issues in the case. In fact, it's widely accepted that they don't understand much of the clinical information presented to them. What they do understand is when a witness is telling the truth. Doctors would do well to remember that.

I don't think the idea of a cap on noneconomic damages is unreasonable, since it's so difficult to put a dollar value on pain and suffering. What's unreasonable is the fact that MICRA [the California medical liability law] was passed in 1975, and the $250,000 limit wasn't tied to inflation. As a result, each year plaintiffs here are really getting less money. Today that $250,000 is worth less than $75,000 in 1975 dollars. So it's a real problem for plaintiffs with legitimate claims for pain and suffering.

Luis Gutierrez was providing police with information about a series of burglaries, and police believe that's why he was shot four times and killed by a ski-masked assailant in the parking lot of the Alamo Quarry Market movie theater in San Antonio. (They've made no arrests as of yet.) His family sued the shopping mall management company, Trammell Crow, for not providing enough security to prevent the premeditated attack; their attorney asked for $5 million and a Bexar County jury awarded $6.5 million. Trammell Crow is appealing. The local paper ran the story without any effort to tell the defendant's side of the story. (KSAT, Sep. 3; Tom Bower, "Jury awards $6.5 million in Quarry shooting", San Antonio Express-News, Sep. 4).

A state appeals court has ordered ex-lawyer Richard Dangler Jr. of Sacramento to pay $25,000 in sanctions for operating "a 'writ mill' where law students and disbarred lawyers worked without supervision in filing pointless petitions for paying inmates". The attorney had filed "a series of what he conceded were 'patently frivolous and contemptuous' habeas corpus petitions. Dangler resigned from the State Bar in May with charges pending against him." (Jill Duman, "Court Says Ex-Lawyer Put Students to Work in Writ Mill", The Recorder, Sept. 3).

In addition to liability and safety fears, the Americans with Disabilities Act turns out to play a role in the decline of swing sets at public playgrounds: it seems the least expensive way to make a swing set safer is to surround it with sand, but sand is considered a non-accessible surface for wheelchairs which makes it suspect under the ADA. (Scott Simonson, "Safety rules retiring playground standby", Arizona Daily Star, Sept. 7). See Mar. 28, Aug. 23, etc.

Amazing story from South Texas of six lawyers who got themselves appointed guardians ad litem to represent minors' interests in a bus-crash case called Goodyear Dunlop Tires vs. Gamez et al. "Four of the six lawyers were appointed less than three weeks before Goodyear settled the case, and one only eight days before the settlement. Yet according to Austin lawyer Debora Alsup, who worked on the appeal, all six asked for $100,000 in fees," payable by the tire company. They asked for $400-500 an hour, two or three times their customary fee, arguing that "those rates were customary for ad litem fees in Webb County." As for the lawyers' self-report of hours worked, well, suffice it to say that one of them was so bold as to bill for more than 24 hours in a single day, while another billed 48 hours for travel over a two-day period, including compensation for being asleep. And on and on, as the Houston Chronicle's Rick Casey reports ("Lawyer bills for missing tuck-in time", Aug. 31):

•One lawyer billed 53 separate entries of 0.1 hour each in one day for reviewing 16 filings by plaintiffs, "which were identical except in minor respects," according to the appeals court.
•One lawyer billed between two and four hours at $500 per hour to review each of numerous one-page deposition notices, for a total of 50 hours for reviewing the notices.

One appeals judge, Sarah Duncan, wrote a concurring opinion concluding the full court should "report these attorneys to the grievance committee."

In Laredo the grievance committee is chaired by Marcel Notzon III, the lawyer whom Judge Vasquez awarded the most fees in this case.

The latest installment of our free periodic newsletter went out late yesterday to its c. 2300 subscribers, covering the last three weeks' worth of postings in telegraphic, even punchy style. It's a great way to keep up with items you may have missed; when you're through, you can pass on the email to a friend to let them know about the site. Sign up today, right here.

Ted Frank reported Aug. 23 on the Compact Disc Antitrust Litigation Settlement, in which music distributors and retailers agreed to donate 5.5 million CDs to libraries, valued at 20% below retail, as part of the rationalization for a multi-million-dollar payment of fees to plaintiff's counsel. Now the Washington Post has more details about how the musical selections -- by and large, unpopular stuff that had been sitting unsaleable in warehouses -- were stuffed randomly into boxes for shipping, so that libraries wound up getting large multiples of CD titles they would not have greatly coveted in the first place (Karin Brulliard, "An Influx of Outmoded CDs", Washington Post, Sept. 6). Alex Tabarrok also comments (Sept. 6). Coming up next: will Newsday and other newspapers plagued by circulation scandals agree to make it up by shipping libraries bundles of week-old papers?

In 1999, 13-year old Christopher Beamon of Denton County's Ponder, Texas, was assigned to write a Halloween story, but when he wrote a horror tale of accidentally shooting a teacher, he earned more than an A+: the local district attorney, Bruce Isaacks, prosecuted him, and Judge Darlene Whitten ordered him detained for a week at a juvenile center.

Already one for the overlawyered files, but then the Dallas Observer printed a parody having Isaacks and Whitten go after Cindy Bradley, a fictional six-year-old girl who read Where the Wild Things Are for first-grade story time. Isaacks and Whitten sued for libel, under the theory that because the story wasn't labeled satire, some readers might think it's the real thing. Amazingly, a lower court was ready for this to go to a jury trial before the Texas Supreme Court stepped in Friday and unanimously voted to throw out the case. The Court noted, among other things, that the Beijing Evening News took seriously an Onion story about Congress requesting a dome with a retractable roof and that another Onion story titled "Al-Qaida Allegedly Engaging in Telemarketing" provoked a Michigan sheriff to issue a warning in a press release. (AP, "Court rules for Dallas Observer in libel suit", Sep. 3; Jesse Walker, "Where the Wild Suits Are", Reason, Feb.; New Times Inc. v. Isaacks opinion; Daniel Terdiman, "Onion Taken Seriously, Film at 11", Wired, Apr. 14) (via Hit & Run).

Update, Sep. 9: Howard Bashman has a comprehensive run-down of coverage, and points us to this Dallas Observer story gloating in victory.

Or, "Not only loose lips sink ships."

Bloggers Grace and Wallace point us to the tale of the infamous (and now suspended) attorney Rex DeGeorge, which has important lessons how the plaintiffs' bar has made insurance more expensive for all of us: because insurers who suspect fraud risk substantial liability for "bad faith" denial of coverage (e.g., May 5, where an insurer who merely investigated an $8,000 chiropractor's bill was hit with a $150,000 judgment), insurance scamsters can manipulate the system by threatening a suit. For an individual case, simply defending the non-payment may be more expensive than making the payment; even on a systematic basis, the risk of losing a case and facing punitive damages can put insurers in a bind. This is lengthy, but worth it.

In West Virginia, insurer NCRIC was paying out $1.07 in claims for every $1 in premiums collected; it almost left the state until regulators allowed them to raise rates to make up the difference. Of course, some doctors can't afford the new rates, and have had to stop practicing at hospitals and nursing homes that require insurance. ATLA once again blames the insurance companies for failing to invest premiums in such a way to pay the rising claims. The insurer's problems were exacerbated when a D.C. jury levied a $18 million countersuit verdict against NCRIC when it tried to collect $3 million in unpaid premiums from the defunct Columbia Hospital for Women Medical Center. (Dina ElBoghdady, "D.C. Malpractice Insurer Feels Squeeze", Washington Post, Sep. 6).

In Illinois, the political debate continues over the need for tort reform, as doctors continue to flee the state. Ed Murnane, of the Illinois Civil Justice League, notes that 40% of the doctors in St. Clair and Madison Counties have been named as defendants in lawsuits between 2000 and 2003; even though the overwhelming majority of plaintiffs collect nothing from such cases, the costs of defense are high. (Mark Samuels, "Group: Tort Reform Can Stop Malpractice Crisis", The Southern, Sep. 3; Rob Stroud and Herb Meeker, "Illinois physicians say insurance rates are driving them out of state", Journal Gazette/Times-Courier, Sep. 3).

An editorial signed by 25 Washington County, Maryland doctors protests the legislature's failure to reform the medical malpractice system. ("Lawsuits will drive doctors away", The Herald-Mail, Sep. 5).

In Nevada, the trial lawyers groups are trying to obstruct reform by putting forward faux reform measures on the initiative ballot that would wipe out the real reform measure, Question 3. For example, Question 5, proposes penalties for filing or defending "frivolous" lawsuits--but redefines "frivolous" to narrow the classification as to be meaningless. At the same time, it bars the legislature from ever implementing caps. An earlier attempt to stop Question 3 with a last-minute lawsuit failed. (Tanya Albert, "Nevada tort reform ballot fight now brewing", American Medical News, Sep. 13; AP, Aug. 25; No on 4 and 5 website).

Washington state doctors are traditionally politics-free, but the medical malpractice crisis could change that and force them to lobby for the reform Initiative 330. "'Physicians in the main have an aversion to mixing politics with their professional medical practice,' said Dr. Kevin Ware, president of the county medical society. 'But under the current circumstances, the need for malpractice insurance reform is so desperate that physicians are having to look seriously at departing from that custom.'" (Sharon Salyer, "Doctors may lift ban on politics", The Herald, Sep. 6; Wallace blog, Aug. 31).

Wyoming has lost 10 percent of its doctors in the last eighteen months, and the state's largest malpractice carrier will stop renewing policies October 1. A constitutional amendment is necessary for reform there. (Lee Lockhart, "Lawmaker predicts heated debate over damage caps", Casper Star Tribune, Aug. 27).

The once dominant U.S. men's and women's diving teams suffered their worst performance ever at the Athens Olympics, shut out from medals for the first time since diving was introduced at as an Olympic sport 92 years ago. ("Chinese dive to record haul", AFP/Independent Online (South Africa), Aug. 29). Why the falloff? "After a golden age in the seventies -- a decadent, late-Roman last hurrah -- the American pool has suffered a gradual decline: thanks, for the most part, to concerns about safety and liability, diving boards have been removed and deep ends undeepened. At municipal pools across the country, the once-ubiquitous one-metre springboard has become an endangered species; and the three-metre high dive -- the T. rex of the community pool -- is now virtually extinct. ... Ron O’Brien, U.S.A. Diving’s national technical director, and the former coach of Greg Louganis, said last week, 'You can't put your finger on any one thing, but having so many diving boards taken out around the country has had a serious impact on our sport, no question about it.'" (Field Maloney, "Cannonball!", The New Yorker, Aug. 30 issue (posted Aug. 23))(via Common Good)(more about pool and diving liability).

New York Assembly Speaker Sheldon Silver is still dug in to protect the state's ultra-harsh law holding auto lessors liable for accidents involving the cars they lease, although it's had a devastating effect on car leasing in the Empire State (Jun. 9, 2003 and links from there). Here's the New York Daily News blasting him in a recent editorial:

The Senate wants to abolish vicarious liability, bringing New York into line with 49 other states, but Silver's Assembly wants to have car companies pay hundreds of millions of dollars into an insurance pool that would cover accidents in leased cars. The trial lawyers are all for it because the pool would give them lots of money to grab, cash that would come from drivers in the form of higher leasing fees. And who are the trial lawyers? Arthur Luxenberg is the group's second vice president, while Perry Weitz serves on the board of directors. And who are they? They're the name partners of Weitz & Luxenberg, the law firm that lists Silver as of counsel.

The law "costs consumers more than $130 million a year and has led to a 36 percent decline in the number of vehicles leased in New York each year, according to the Alliance of Automobile Manufacturers (Alliance) and the Greater New York Automobile Dealers Association (GNYADA)." ("Vicarious liability costs New York consumers and businesses millions", Business Council of New York State, Jun.). "More than 19 automakers and every major retail bank in New York have stopped or curtailed car leasing. ...In addition, [according to trade groups], vicarious liability has contributed to the closing of 70 leasing companies since September 2000." ("N.Y.'s Vicarious Liability Costly for Consumers and Auto Dealers", Insurance Journal, Jul. 19). For more, see the New York State Auto Dealers Association website.

Meeting in private caucus, the majority Democrats in California's state senate have selected as the next leader of that chamber Sen. Don Perata, D-Oakland, rather than rival contender Sen. Martha Escutia, D-Whittier. That's good news for California business because Escutia, who chairs the Senate Judiciary Committee, has been a key supporter of trial lawyer causes and chief sponsor of many bills backed by the litigation lobby. (Steve Lawrence, "Democrats pick Oakland lawmaker as new Senate leader", San Francisco Chronicle, Aug. 24; "Perata, president pro tem" (editorial), San Francisco Chronicle, Aug. 26). Operatives with close links to the state's trial lawyers had waged a mudslinging campaign against Perata (Dan Walters, "Lawmakers engaged in bitter battle for control of California Senate", Sacramento Bee, Jul. 9, no longer online).

On April 11, 2002, al Qaeda terrorists exploded a tanker truck outside a synagogue in Tunisia, killing 20 other people, including 14 German tourists, and grievously wounding several others, including three-year-old Adrian Esper, who suffered third-degree burns to his face, arms, and upper body, and has had to undergo thirty operations. Thus, the Esper family is suing... the package tour company that arranged the trip to the synagogue, alleging that the company should have known about the terrorist danger at that destination. Lest you think the Germans have completely bought into the American system of jackpot justice, the Espers are only seeking 100,000 Euros in damages. A judge will decide the case October 27 if the parties don't reach a settlement first. ("Couple Sues Travel Company Over Terror Attack", Deutsche Welle, Sep. 1; "Germans seek damages for boy burned in Tunisia terror", Expatica, Sep. 1).

A jury in Brownsville, Texas, has determined that the Quincy, Ill.-based Titan Tire Corp. was not negligent for failing to provide a Spanish-language warning relating to maintenance of its tires. "The case involved the death of 33-year-old Raymundo Barrera, who died after a tractor tire exploded while he was airing it up at a farm near Camargo, Mexico, in 2002." Plaintiffs filed suit neither in Mexico nor in Quincy but in south Texas, alleging that the company was aware that some of its products would find their way to Mexican farms (and also, presumably, to farms on which numerous other languages are spoken besides Spanish). "However, the jury decided Friday that Barrera was at fault and Titan was not." Lawyers for the Barrera family, who had been seeking $10 million, say they plan an appeal. ("Jury clears tire company that lacked Spanish warning", AP/Houston Chronicle, Sept. 1).

From Australia, more evidence that the presence of liability insurance may tend to lead ineluctably to the alleged causation of cerebral palsy:

An Adelaide teenager suffering from cerebral palsy is suing his mother after she crashed into a tree when he was a foetus. Supreme Court documents claim Sylvia Neave, of Ferryden Park, was negligent and breached her duty of care as a mother to her unborn child.

Under law, Graham Neave, 16, has to sue his mother and [the state of South Australia's] compulsory third party insurer, the Motor Accident Commission, in his bid to gain an estimated $3.5 million compensation.

The Queen Elizabeth Hospital also is part of his claim for allegedly failing to treat him "sufficiently early or at all" before his emergency delivery.

According to the Washington Monthly's Kevin Drum (Sept. 2), commenting on President Bush's convention acceptance speech, "His biggest applause line of the night came when he took a shot at trial lawyers." Drum terms this "weird" and doesn't understand why the issue might resonate so, however. While on the subject of the Washington Monthly, it has a symposium on a Bush second term which includes a Grover Norquist article predicting dramatic setbacks at the national level for the trial bar if GWB is re-elected, which would certainly be a change from the lack of same in his first term. And in Florida, former housing secretary and former president of the Academy of Florida Trial Lawyers Mel Martinez prevailed in a hard-fought primary against former Rep. Bill McCollum (see Feb. 21, May 6) with a campaign so nasty as to cause the St. Petersburg Times to withdraw its previous endorsement of Martinez; Democrat Betty Castor will be his opponent in November (editorial, Aug. 30; Miami Herald, Sept. 1).

The medical blogs are naturally talking about the Poliner litigation, where a doctor who had privileges suspended for allegations of improper care sued everyone involved in the peer review decision and eventually got a jury verdict of $366 million (Aug. 30). Dr. Rangel (Sep. 1) takes an interesting and nuanced view based in part on personal experience with the plaintiff; db's MedRants blog (Aug. 31) calls for a "barf bag"; Bard-Parker (Aug. 31) suggests that one solution may be more systematic use of outside review, but notes that fear of litigation may not make that reform feasible.

Commenters are focused mostly on the liability decision, but one thing that immediately strikes the eye is the complete divorce from reality of the damages figure of $366 million. Even if one assumes that Poliner's career was completely ruined notwithstanding a different peer review's exoneration and throws in a million dollars for psychic injury, the figure is off by at least a factor of ten; if one more realistically limits damages to the few months he was out of practice, at least a factor of 100; if one limits damages to the month between the initial suspension and the privileged decision of the peer review committee, even more. Usually the remedy for excessive damages is "remittitur," a fancy Latin word for the process where the judge makes up his or her own damages figure and tells the plaintiff to agree to that reduced figure or a motion for a new trial will be granted. But if a jury's damages determination was the irrational product of passion, why presume (and, often, essentially assume) that the liability decision was reasoned?

"Joe Doe", the HIV+ plaintiff in a Texas state lawsuit, is a member of the choral group "Positive Voices"--which has produced a CD with his photo and his real name. Nevertheless, when the alternative weekly Dallas Observer also identified "Doe" as HIV+ in passing in a larger December 4 story about a gay congregation titled "Fallen Angel," "Doe" sued. The suit doesn't allege that the Observer got its facts wrong, but argues that the story violates a Texas law prohibiting the disclosure of "medical test results," with a fine of up to $10,000 for each disclosure. Since the Observer has circulation of 110,000, "Doe" figures he's entitled to over a billion dollars. The story, including "Doe's" name, remains on the paper's web site, and the paper has filed a motion for summary judgment on First Amendment grounds as well as arguing that the broadly-drafted statute shouldn't be construed to encompass journalists. (Miriam Rozen, "Billion-Dollar HIV Suit Raises First Amendment Issues", Texas Lawyer, Sep. 2; David Webb, "Dallas Observer fights lawsuit claiming wrongful HIV disclosure", Dallas Voice, undated). More medical privacy madness: Jan. 21 and links therein; more Dallas Observer litigation Aug. 24 and Mar. 23, 2000.

Update: Case thrown out in January 2006.

I'm heading off to speak to the Federalist Society chapter at the University of Arkansas law school in Little Rock. I should be back and posting on Friday.

From another article on the extraordinary role played by trial lawyers in Illinois Democratic fundraising (see Aug. 29):

Chicago trial attorney Myron Cherry said political fund raising is another aspect of his charitable work.

"I view politics the same way as eradicating cancer," Cherry said.

According to Newsday, reporting from Long Island, N.Y., the spring issue of the local union newsletter of the Police Benevolent Association ran an item by treasurer Bill Mauck advising members that in case the car stopped for a traffic violation happens to be that of a police officer, "you don't summons another cop". Questioned by the newspaper, union president Jeff Frayler confirmed that "it has been union policy to discourage Suffolk police officers from issuing tickets to fellow officers, regardless of where they work. 'Police officers have discretion whenever they stop anyone, but they should particularly extend that courtesy in the case of other police officers and their families,' Frayler said .... 'It is a professional courtesy.'" Suffolk County Executive Steve Levy said he was appalled at the policy: "We can't be sending the message that some are above the law." (Joe Kelley's The Sake of Argument, Apr. 5; via Charles Oliver, "Brickbats", Reason, Apr.).

Jefferson County, Mississippi:

Ten people were arrested in Fayette on charges related to the $150 million verdict in 1999 in Jefferson County against the manufacturer of the diet drug fen-phen, FBI special agent Bob Garrity said Tuesday.

Garrity said in a statement that the arrests came after an 18-month investigation that began in November 2002 into large jury awards. The FBI started the investigation to learn how individuals became part of these lawsuits and, perhaps, how juries were picked from an area where many people are kin or acquaintances.

("Ten charged with fraud in fen-phen case in Jefferson County", AP/Biloxi Sun-Herald, Aug. 31; "10 arrested in probe of $150M fen-phen verdict", Jackson Clarion Ledger, Aug. 31; WLBT-TV. See Oct. 3 and links from there. Update Oct. 20: three defendants plead guilty.