October 2004 Archives

Welcome news from New York's highest court: "A battered woman's failure to prevent her children from witnessing her own abuse does not automatically give protective agencies license to remove the child, the New York Court of Appeals ruled Tuesday in a groundbreaking opinion." (John Caher, New York Law Journal, Oct. 27). Four years ago (see "Battered? hand over your kids", Jul. 12, 2000) the New York Times reported that city child protection authorities were removing children from homes in which one parent was found to have committed an act of domestic violence on the other, including such actions as slaps and shoving. "The rules encourage victims of abuse to conceal it, fearing their kids will be taken from them if they tell medical or social workers." Update Dec. 19: New York City agrees to change policy.

"Hundreds of people who worked on the World Trade Center cleanup have filed a class action lawsuit against the leaseholder of the towers and those who supervised the job, alleging they did little to protect workers from dust, asbestos and other toxins in the air. ... David Worby, a lawyer for the plaintiffs, said he will seek billions of dollars" from Silverstein Properties and four construction companies that oversaw the removal of 1.5 million tons of debris, no doubt teaching a lesson to future construction companies so rash as to volunteer their services for an emergency mission. A spokesman for Silverstein "said the cleanup was conducted by the city and the Federal Emergency Management Agency. 'We had no control over that operation and no ability to supervise what safety precautions were taken'." (Karen Matthews, "Class Action Filed Over Health Effects of World Trade Center Cleanup", AP/Law.com, Sept. 14). See also Nov. 21-22, 2001.

I've got an op-ed in today's Wall Street Journal (Walter Olson, "Stop the Shakedown", Oct. 29) discussing ballot measures that voters will decide in six states next Tuesday on litigation reform. For more on California's s. 17200 "unfair competition" law, discussed in the second half of the piece, follow this link; for more on malpractice law, see our medical liability pages (latest/ earlier).

All sorts of other stuff is going on at our sister website:

* An all-new featured discussion on medical liability has just begun, proceeding from the publication of an important new empirical study by Stanford prof Daniel Kessler;

* Legal ethicist and law prof Lester Brickman has a commentary on a Manhattan judge's questioning of legal fees in 9/11 cases;

* The Manhattan Institute is seeking applications for a research fellowship on legal issues;

* Law prof Michael DeBow, familiar to many readers for his guest postings here, is joining the Point of Law blog as a regular contributor, with comments already on flu vaccine, the dismissal of a charity hospital suit, FDA jurisdiction over tobacco, and a new antitrust blog;

* Ted Frank contributes items on malpractice by expert witnesses and on a new study suggesting that experts suffer from some of the same biases as lay observers in high-damage cases, on whether much "pro bono" litigation really helps the public, and on "Robin Hood" school-finance suits;

* Jim Copland welcomes a new and improved website, LegalReformNow;

* I've got posts on sanctions for wrongful litigation (did you know federal judges liked the sanctions in their old, stronger form?), collective business guilt, ski slope disclaimers, Sarbanes-Oxley, Judge Posner's view that both Sherlock Holmes and law reviews are much overrated, liability's burden on small businesses, and insurance broker scandals (posts in progress). Much more, too; bookmark the site today.

Per Reuters, "Fox News Channel commentator Bill O'Reilly and a co-worker who had accused him of sexual harassment [see Oct. 18] have agreed to settle and dropped all allegations against each other, lawyers for Fox said on Thursday." "How could anyone demand $60 million for conversations on which they could have hung up?" wonders Wendy McElroy in her FoxNews.com column ("The Sad Evolution of Sexual Harassment", Oct. 27). Celia Farber was hoping O'Reilly would fight rather than settle; her take, which arises from personal experience in one of the most celebrated harassment trials of the Nineties, is passionately felt and worth reading in full ("No Sexual Dealing", New York Press, vol. 17, issue 43). And Beldar has some speculations about the terms of the settlement and what they suggest about the strength of the two sides' cases.

Illinois: "A Madison County woman hopes that at least $250,000 will sufficiently relieve emotional distress she suffered when Bank One allegedly failed to remove unauthorized charges from her account." Marsha Eubanks is "[r]epresented by Lakin Law Firm attorney Thomas Maag, son of Illinois Supreme Court Justice candidate Gordon E. Maag". (Steve Gonzalez, "Woman hopes $250k will bring peace of mind", Madison County Record, Oct. 19).

Over at our sister website Point of Law, Jim Copland memorializes one of the more entertaining moments of this election season: arch-litigation advocate Ralph Nader's denunciation of Sen. John Edwards as a "sniveling coward" for not more forcefully countering Vice President Dick Cheney's support for malpractice reform at their debate. Jim also comments on trial lawyers' role in the recent Sinclair Broadcasting brouhaha. Finally, there's a link to a provocative George Will column on the presidential race from earlier this month.

Attorney General Christine Gregoire of Washington, a leading figure in brokering the 1998 tobacco settlement that ensured cartel-based profits for big tobacco companies and gigantic fees for the lawyers who sued them, is now in a close race for governor of the state. Very helpfully, she's getting political contributions (via the Democratic Governors Association) from plaintiff's-side lawyers such as Richard Scruggs, Joseph Rice and Steve Berman who were made exceedingly rich by the settlement, and who've given more than $1 million to the DGA in the space of a month. And another grateful contributor to the DGA is the lawyer who represented ... Philip Morris. Isn't it great when people can get along? (Ralph Thomas and Andrew Garber, "Out-of-state donors feed Gregoire fund", Seattle Times, Oct. 28). For more, see Oct. 11, 2004, and Jul. 17 and Sept. 13-14, 2000.

Coca-Cola, Pepsico and other buyers of high-fructose corn syrup got $531 million in the largest in a series of settlements arising from charges of price-fixing against Archer Daniels Midland, the agribusiness giant, and its competitors. So by the logic of bounty-hunting, it was only fair for plaintiff's counsel to pocket a quarter of the sum. (Andy Kravetz, Peoria Journal-Star, Oct. 15; "Archer Daniels Midland to Pay $400M", AP/Forbes, Jun. 17; account of case at class action firm of Kaplan Fox, Jul. 19).

In Belleville, Ill., a St. Clair County jury has ruled that the Ford Motor Co.'s Crown Victoria police cruiser is not defective and not unreasonably susceptible to fuel-fed fires after high-speed rear-end collisions. A class action on behalf of Illinois police departments had been filed in the famously pro-plaintiff county. The verdict represents a rebuke to trial lawyers who've been campaigning nationally for some time against the vehicle: see Nov. 5, 2003 and Sept. 29, 2004. (Bloomberg/Detroit Free Press, Oct. 16; Beth Hundsdorfer, "Ford earns victory in police car suit", Belleville News-Democrat, Oct. 16).

My commentary yesterday on the presidential contest seemed to strike a nerve; at least it got picked up at a large number of sites, including Andrew Sullivan (calling this blog "estimable"), Tom Palmer (that word again!), Reason "Hit and Run", Andrew Tobias, PrestoPundit, and many others. The number of visitors more than doubled from an ordinary day, to 14,353, which may or may not be a record. Tom Veal at Stromata wrote a lengthy response from a pro-Bush point of view, and there was a lot of email too, including several from valued friends who take issue with my position. It'll be a while before I can read or respond to all the mail, but that's true even in less busy times than this.

Striking numbers: "Despite statewide reforms designed to lower the cost of medical malpractice insurance, the most expensive annual premium for a general surgeon in Wayne County [Detroit] reached $194,000 for $1 million of coverage -- a 60 percent increase over last year, according to a survey released last week by Medical Liability Monitor, a trade journal. A doctor in Grand Rapids would pay $63,000 for the same coverage." Both are doing better than general surgeons in Dade County, Fla., where the comparable figure is $277,000. (Sheri Hall, "Malpractice rates drive off doctors", Detroit News, Oct. 25). More: MichMedMal blog, Oct. 25.

Wary of personal injury claims, a British insurer has sought to impose a ban on the window boxes and flower pots by which inner-city residents have long sought to cheer up their high-rise flats. According to the Norwich Union company, outdoor plants above ground level at the Bow Quarter habitations in East London are an "avoidable event" and must be removed unless firmly fastened down, which it may not be possible to do in a manner consistent with historic-preservation regulations. "Rather than dropping on heads with their cargo of busy lizzies or geraniums, the main threat they pose to life and limb seemed to be people standing on them for support, or banging their heads on the boxes from beneath [per a spokesman for a safety group]." (James Moore and Roger Highfield, "Insurance firm bans window box 'peril'", Daily Telegraph, Oct. 26).

Speaking only for myself and not for Ted (and obviously not for anyone else either), I'm among those who believes George W. Bush doesn't merit re-election, though I supported and in fact actively advised his campaign the first time around. For some of the reasons, check the links in this Oct. 5 post. Foreign policy and defense blunders aside, the last thing I wanted was an administration combining aggressive social conservatism with uncontrolled spending and big new government programs.

Some Bush strategists have seemed confident that secular-minded supporters of small government and individual liberty -- a rather important constituency, historically, within the Republican Party -- would have nowhere to go this fall, since it's not as if the record of Sen. John Kerry inspires confidence. But there are places to go, if not especially attractive ones. Prof. Richard Epstein of the University of Chicago School of Law, whose scholarship has inspired so many of us, says he plans to vote for the Libertarian nominee (true, as Megan McArdle points out, the nominee in question appears to be a barking moonbat, but the point of a Libertarian vote is to send a well understood protest message that stands apart from personalities). My favorite syndicated columnist, Steve Chapman of the Chicago Tribune, is actually planning to cast a Democratic presidential ballot for apparently the first time in his life ("Why I'm voting for John Kerry", Oct. 24). Chapman quotes Cato's Dave Boaz making perhaps the strongest argument that can be made for the Democrat on domestic policy: "Republicans wouldn't give Kerry every bad thing he wants, and they do give Bush every bad thing he wants." The Detroit News, meanwhile, editorializes in favor of none of the above. Finally, for balance, here's a link to Coyote Blog, run by a small businessman who says he's going to support Bush as a "single-issue voter" motivated by the subject matter of this website, that is to say, the need to reform the litigation system.

Won't we all be glad when it's over:

* At Point of Law, I've got a post up tracking the current status of the propositions on four states' ballots that would limit medical malpractice litigation or fees. The situation in Florida looks grim for doctors who've pushed such curbs (they've been outspent by their lawyer opponents, $22 million to $7 million). Voters in Nevada, Oregon and Wyoming may be better disposed toward their states' ballot measures.

* On Friday, Ted posted about how critics of trial lawyers are getting sued for running an ad commenting on the Illinois Supreme Court race. Unfortunately, that's just one of numerous instances in which criticizing the Litigation Lobby in paid advertisements is itself getting to be legally hazardous. In a new post at Point of Law, I list two other recent instances.

* Both the New York Times and the National Law Journal are out with stories on the very nasty and expensive battles between business interests and trial lawyers in state supreme court races, especially those in West Virginia (see May 13, etc.) and Illinois (Adam Liptak, "Judicial Races in Several States Become Partisan Battlegrounds", Oct. 24; Emily Heller, "Judicial Races Get Meaner", National Law Journal, Oct. 25).

* "Voters may run a gantlet of lawyers before reaching the ballot box on Nov. 2." The two major parties are deploying lawyers by the thousand to challenge state procedures and individual votes (Miles Benson, "Voting in a Battleground State? Prepare to Meet a Lawyer at the Polls", syndicated/Newhouse, Oct. 23).

In 2001 Brookman, a law firm in London, ran ads in the men's bathrooms of pubs soliciting divorce business with a picture of a packed suitcase and the slogan "Ditch the bitch". The Advertising Standards Agency later ruled against a complaint that the ad was offensive and encouraged divorce. Defenders of the law firm pointed out that it was evenhanded and also solicited women's business with ads saying bad things about men. ("Dump the chump...", Lawyers Weekly Australia, Aug. 19, 2004; account of controversy at ad agency site; Scott Norvell, "Tongue Tied", FoxNews.com, May 21, 2001).

Tyler Cowen has some theories (Marginal Revolution, Oct. 21).

The latest offering from the ruling geniuses of animation (Toy Story, Finding Nemo, etc.) is a little bit different, as we reported Feb. 24. Notes the New York Times:

The buzz out of early screenings is that "The Incredibles," set to be released Nov. 5, carries a considerably more middle-American sensibility than the usual fare from Hollywood, where liberal shibboleths often become the stuff of mainstream movies.

The new movie's hero, Bob Parr, a k a Mr. Incredible, after all, has been driven into middle-aged retirement and the Superhero Relocation Program by a flood of lawsuits brought by personal-injury lawyers representing people Mr. Incredible has saved but who later complain of things like neck problems.

Mr. Incredible's 10-year-old son, Dash, is blessed with super speed but is forced to conceal it from his unknowing peers at school -- until, that is, he complains that he is being held back by the "everyone is special" ethic, which holds that kids should receive a trophy just for showing up on the playing field.

Writer-director Brad Bird demurs when asked whether the movie is meant to be critical of trial lawyers:

"I just always wondered when a superhero broke through a wall, who was going to pay for that wall?" he said with a smile. "In the small-minded world we live in, that deed is not going to go unpunished."

Under established disabled-rights law, store owners and other business people very seldom have a right to exclude the "service animals" that accompany blind and deaf visitors. Relatively few inconveniences ensue, in part because such animals tend to be few and extremely well trained. However, the idea has begun to catch on that persons disabled in other ways also have a right to the company of assistance animals; California regulators issued such a ruling as to dogs two years ago. Now a rapidly rising number of San Francisco residents are applying for tags for assistance dogs; the city has issued 658 tags for them. "'The bottom line is that we're seeing a lot of people come down here with notes from their doctors saying they need a companion dog to improve their quality of life,'' said Carl Friedman, director of the city animal control agency. 'Now we're seeing a lot of people applying for the tags who have psychological issues.''' Landlords and restaurants are not allowed to enforce no-dog policies against a registered animal. As for the pets' required "training", that "can be done by the owner and can be as simple as teaching the dog to wag a tail and lick a face if that's what it takes to make someone with a diagnosed depression feel better." (Rachel Gordon, "'Assistance dog' designation opens doors for pooches", San Francisco Chronicle, Oct. 19). We were on to this trend very early: see Jul. 9, 1999.

"A French couple on trial for allowing a dinner guest to get into his car while drunk have been cleared of all criminal charges by a court in Nancy. ... Victims' relatives brought the case, accusing Angelique and Jean-Sebastian Fraisse of failing to prevent a crime." (BBC, Oct. 19).

We've previously covered the ludicrous billion-dollar oyster fishermen lawsuits in Louisiana (Sep. 10; May 25; Oct. 18, 2003), where a jury awarded a sum greater than the value of the last century of oyster harvests to oyster fishermen who had a slightly reduced harvest because of a coastal conservation project that changed the beds' salinity. The Louisiana Supreme Court decided to enforce the "hold harmless" provision in the $2/acre leases that the lower courts ignored, and unanimously voted to toss the judgment; the plaintiffs get zero. For the first time, the press coverage notes that the oyster fishermen negotiated for the clauses as a compromise in 1989 when the state indicated that they were not going to renew the leases to avoid precisely the issue of liability for changed salinity levels--alas, I see no indication that the state will sue the fishermen for breaking that promise in their contract. The refusal of courts to enforce immunity clauses (and laws) is all too often a problem. Louisiana taxpayers should be pleased that the state stood on principle and refused the plaintiffs' proposal to settle for less than thirteen cents on the dollar of the verdict. (Jeffrey Meitrodt, "Oyster farmers' award overturned", New Orleans Times-Picayune, Oct. 20; Janet McConnaughey, "Court throws out $1.3 billion judgment in oyster lease case", AP, Oct. 20). The AP gives a soapbox to the plaintiffs in an article that has no acknowledgement of the fundamental unfairness of their claim. (Cain Burdeau, AP, "Caernarvon ruling leaves oystermen seething", Oct. 20).

It seems one of the major party candidates this year does favor it, after all (Cox and Forkum, Oct. 20).

Several years ago, in a controversial ruling, activist federal judge Jack Weinstein ruled that health insurance plans in New York could sue tobacco companies for cost recoupment under state consumer protection law. The result, in 2000, was a jury verdict of $17 million to which Weinstein added an award of $32 million in attorney's fees (see Mar. 6-7, 2002). However, the state's highest court, the Court of Appeals, has now declared that the basis of the case is invalid: the Blues can't invoke the consumer protection act. That will probably mean the suit's dismissal. Health insurers do have a separate right to sue under older principles of "subrogation", but the tobacco companies have robust defenses against that variety of action. (John Caher, "Insurer Loses Bid for Direct Recovery in Test Case Against Cigarette Makers", New York Law Journal, Oct. 20). Two other Blue Cross actions in other states have also been dismissed. On dismissal of union health plans' suits against tobacco companies, see Jan. 11, 2000.

And what about similar actions on behalf of government health insurers, as in the state-Medicaid legislation? Well, the handwriting would seem to be on the wall that those cases are not exactly founded on a good legal theory of recovery either -- the trouble being that in the mean time the muscle of the state AGs and their lawyers nonetheless managed to extract hundreds of billions in tobacco lucre.

Updating our Feb. 11-12, 2002 report: "A judge has approved a class-action lawsuit against Ticketmaster and Madison Square Garden for allegedly selling seats with obstructed views of Michael Jackson's 30th anniversary concert three years ago. The judge said the suit potentially covers 7,840 ticket buyers 'who received no advance notice that their seats were inadequate for viewing purposes.'" ("Judge gives go-ahead to suit against Ticketmaster, Madison Square Garden", AP/CourtTV, Oct. 7).

Operating Engineers Local 318 sued to stop Illinois Lawsuit Abuse Watch from broadcasting the following ad about the Illinois Supreme Court race (Sep. 13, Mar. 20):

"We've all seen the headlines about how the flood of frivolous lawsuits in the Metro East is closing doctors' offices and driving many of our finest physicians away. Greedy personal injury lawyers have turned the Metro East into a haven for bad lawsuits. But lawsuit abuse doesn't just hurt doctors - it hurts all of us. Frivolous lawsuits, many without scientific merit, limit access to health care and drive up prescription drug costs. And lawsuit abuse slows down the development of new lifesaving medical devices.

"Now we all have a chance to cure the lawsuit epidemic. Personal injury lawyers have given over $2 million to Illinois Supreme Court candidates because they want their friends on our court. But we want our justices to be unbiased and fair. To find out if your state Supreme Court candidate takes money from personal injury lawyers, contact Illinois Lawsuit Abuse Watch at www.I-LAW.org. Together we can make sure justice is no longer for sale in the Metro East. Paid for by Illinois Lawsuit Abuse Watch."

A new law will require mid-size and larger employers in California to put their supervisors through interactive training aimed at preventing sexual harassment. Gov. Arnold Schwarzenegger, who may have a hard time standing up to feminist demands given his own record on the issue, signed the bill Sept. 29. (Jacqueline McManus, "New law for harassment awareness", Monterey County Herald, Oct. 8; Peter Nicholas, "Business Sees an Ally in Governor", L.A. Times/KTLA, Oct. 18). "The law defines a covered 'employer' as one that employs 50 or more persons, which includes temporary service employees and independent contractors. The law does not specify that the 50 employees must be within California. That means that an employer with 50 total employees may be covered by the law, even if just a few workers are in California." ("New California Law Mandates Anti-Harassment Prevention Training for Supervisors", Jackson Lewis, Oct. 1) (via George's Employment Blawg). When Connecticut lawmakers enacted the first such state law twelve years ago, I took a dim view.

Over at Point of Law, which has an entire category devoted to asbestos litigation, there are several new posts on the subject. Ted Frank reports on a potentially major turnaround in Madison County, Ill. handling of asbestos suits, occasioned by the arrival of a new judge. Guest blogger Michael DeBow links to a substantial Houston Chronicle article on the crisis. As for me, I've got posts on how an Australian court has approved a claim for psychological injury from asbestos, on how Dallas tort czar Fred Baron is allegedly retired from the asbestos business (well, sort of), and on the "rocket docket" operation of court schedules in, again, Madison County.

A New Jersey nursing home defense attorney finds himself under fire after a presentation to fellow litigators at which he seemed to recommend, whether in a jocular way or not, making plaintiffs fight for every document and asserting blanket claims of privilege to keep relevant papers out of their hands. Curiously, adversaries who've litigated against attorney Donald Davidson tell a reporter that they consider him a straight shooter who has not used abusive or stonewalling tactics against them. (Charles Toutant, "Candid Comments About Discovery Bring Lawyer National Notoriety", New Jersey Law Journal, Sept. 21).

I'm quoted and this site is mentioned in an article on the ever-expanding enforcement ambitions of New York Attorney General Eliot Spitzer (William F. Hammond Jr., "Spitzer Cements His Reputation as One to Watch", Oct. 21)(more on Spitzer from Point of Law). More: For a more benign view of Spitzer than the one I take, see Daniel Gross's Oct. 21 profile in Slate. Yet more: Martin Grace points out that the multifaceted AG has a blog.

I seldom carry announcements of new legal weblogs, but will make an exception in the case of Al Nye the Lawyer Guy out of Portland, Maine, if only because he shows such good taste in books (buy).

Our sister website has published numerous posts this month on medical malpractice issues, including a modest proposal for doctors to make money by suing each other; certificates of merit, done right; what kind of insurance premiums one law prof doesn't find shocking; more and yet more on anonymous medical experts; a Flash animation game on med-mal; in search of a few bad ob/gyns; and commentaries by Ted Frank and Jim Copland on Maryland's crisis.

Such happy news for Florida law firms, and such unhappy news for the rest of us: "'Litigation is the No. 1 growth area. It's always recession-proof,' said Peter Prieto, executive partner of the Miami office of Holland & Knight, in an interview." (Harris Meyer, "Legal Market in Florida 'Flourishing'", Miami Daily Business Review, Oct. 11).

There'll always be a Ninth Circuit: "The world's whales, porpoises and dolphins have no standing to sue President Bush over the U.S. Navy's use of sonar equipment that harms marine mammals, a federal appeals court ruled yesterday. A three-judge panel of the U.S. 9th Circuit Court of Appeals in San Francisco, widely considered one of the most liberal and activist in the country, said it saw no reason why animals should not be allowed to sue [emphasis added] but said they had not yet been granted that right." ("Court Says Whales, Dolphins Cannot Sue Bush", Reuters/PlanetArk, Oct. 21). For more on giving animals standing to sue (= giving human lawyers standing to sue on their claimed behalf) see our animal rights archives and specifically May 14-15 and Apr. 29-30, 2002. More: Legal Reader has a link to the opinion (PDF), and Martin Grace also comments. More: Jeff Chorney, "Call Me Ishmael -- and Call My Lawyer!", The Recorder, Nov. 1.

The New York Times has a short piece on how medical disputes over proper forms of pain treatment have effectively been criminalized by a phobic and overzealous DEA. Reason Magazine has a longer piece on the subject, and has been covering this topic for quite some time.

"We are unable to refer patients to doctors who will treat pain, if only because once a name gets out there, patients understandably flock, and then the doctor is targeted," said Siobhan Reynolds of Pain Relief Network, a patient advocacy group based in New York. The Association of American Physicians and Surgeons, based in Tucson and dedicated to the concerns of private practitioners, has gone so far as to warn doctors against managing chronic pain, lest they face of years of harassment and legal fees, even prison. "If you do," the association enjoins, "first discuss the risks with your family."

Scattered evidence confirms these impressions. A 1998 survey of more than 1,300 physicians by the New York State Medical Society found that 60 percent were moderately or very concerned about the possibility of being investigated by regulatory authorities for prescribing opiates for noncancer pain.

A third said they prescribed lower quantities of pills and lower dosages "frequently" because of the possibility of eliciting an investigation. When asked how often they avoided prescribing a preferred drug for noncancer pain, because doing so required triplicate forms, half said "frequently."

Not long after federal authorities arrested twelve Fayette, Mississippi residents on charges of fraud relating to the fen-phen settlement (see Sept. 1, 2004 and Oct. 3, 2003), three of the arrestees agreed to plead guilty and cooperate with the probe. All of the twelve "are accused of receiving at least $250,000 [each] in settlement funds through false prescriptions, netting about $150,000 after attorney fees and expenses." (Jimmie E. Gates, "3 plead guilty in Fen-Phen probe", Jackson Clarion-Ledger, Sept. 22). "A Jefferson County jury had awarded $150 million to five people who claimed fen-phen gave them heart and lung problems," and there had followed a $400 million settlement with nearly 800 people nationwide. Included in that sum were high payments to many claimants from Jefferson County, which includes Fayette, who said they had taken the diet compound. (Denise Grones, "12 Charged With Fraud in $400 Million Fen-Phen Settlement", AP/Law.com, Sept. 2). At least one of the twelve has protested her innocence and says she really did take the drug (Jerry Mitchell, "Fen-Phen arrests revive rap on county", Jackson Clarion-Ledger, Sept. 5).

Another tidbit from the last-mentioned article: "A few years ago, the roof collapsed at the Family Dollar store in Fayette. A handful of people were shopping there at the time, but dozens who weren't showed up in the emergency room for treatment."

Following revelations that some Kryptonite bicycle locks can be easily picked, the maker has offered to replace all of the locks with new ones free from the flaw. This has however not mollified class action lawyers who've been rushing to sue the firm. "What if people don't want a Kryptonite lock anymore?," asks Darrell Palmer, one of two lawyers who filed would-be class actions in San Diego County Superior Court. Company spokeswoman Donna Tocci said that the newly revealed security issue "is not just a Kryptonite concern. Anything with a tubular cylinder -- vending machines, soda machines, ignition systems, coin-operated laundry and other security products -- could be a concern." And indeed, lawyers pursuing intended class actions (and s. 17200 actions in California) have been suing other makers of U-locks as well, including Master Lock. (Pam Smith, "Plaintiffs Firms Lock Onto Kryptonite", The Recorder, Sept. 28).

Kevin Drum argues that the reason that liability fears are not enough to keep vaccine makers out of the market is because vaccine makers can buy liability insurance and then raise their uncapped prices to compensate them for this additional expense. Thus, he concludes, restrictive FDA regulations are behind the shortage.

But why can vaccine makers raise their prices to cover liability insurance costs, but not raise their prices to cover their regulatory costs? After all, regulatory costs are much more predictable than liability costs.

The Weekly Standard correctly pins the culprit: strict product liability. American vaccine manufacturers have fallen by the wayside because trial lawyers have succeeded in driving them out of business.

In 1974, a British researcher published a paper claiming that the vaccine for pertussis (whooping cough) had caused seizures in 36 children, leading to 22 cases of epilepsy or mental retardation. Subsequent studies proved the claim to be false, but in the meantime Japan canceled inoculations, resulting in 113 preventable whooping cough deaths. In the United States, 800 pertussis vaccine lawsuits asking $21 million in damages were filed over the next decade. The cost of a vaccination went from 21 cents to $11.

Every American drug company dropped pertussis vaccine except Lederle Laboratories. In 1980, Lederle lost a liability suit for the paralysis of a three-month-old infant--even though there was almost no evidence implicating the vaccine. Lederle's damages were $1.1 million, more than half its gross revenues from sale of the vaccine for that entire year.

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.

Speaking of sexual harassment charges involving highly rated TV shows that have caused many readers to consult TheSmokingGun.com, Sunday's New York Times has a story about Amaani Lyle's lawsuit claiming to have been scandalized by sexually explicit discussion among the scriptwriters of the comedy Friends (see Jul. 31, Jul. 19, Apr. 23). Inevitably, a law professor -- in this case Joanna Grossman of Hofstra -- makes an appearance to argue that joke-writers for ribald sitcoms should be held to the same standards of workplace decorum as managers of hymnbook stores (more of her views)(Christopher Noxon, "Television Without Pity", Oct. 17). And more on the case: Harvey Silverglate, "What Would Rachel Say?", Wall Street Journal, Aug. 4, reprinted at Center for Individual Rights site; (PDF links:) California appellate decision at CIR site; CIR amicus brief.

What we owe to 18th-century Edinburgh -- mildly off-topic (David Denby, "Northern Lights", The New Yorker, Oct. 11)(via Arts & Letters Daily)(some of my views).

Buying at auction a car confiscated by government authorities -- seems like a thrifty idea, no? However, in at least three cases in the vicinity of San Diego and nearby Tijuana, Mexico the buyers appear to have gotten more than they bargained for: illegal drugs were later found concealed in the cars, and the hapless motorists in all three cases spent time in jail before the seeming mixup was straightened out. A lawyer for one of the buyers, U.S. citizen Adrian Rodriguez, is now trying to prove that the Customs Service conducted a less than thorough search for contraband before the auctions because it didn't want to impair the cars' auction value by cutting them up too drastically. The agency denies the charge. (Anna Cearley, "Customs evidence preserved?", San Diego Union-Tribune, Sept. 27).

Five German banks appealed a 100-million Euro fine by the European Commission. The European Court of the First Instance reversed the fine when the EC attorney faxing a brief "accidentally placed it face upwards in the fax machine"; the court received 100 blank pages instead of the brief, and defaulted the appeal. Press accounts are unclear whether the EC's right to review that decision has effectively been waived. (James Kirkup, "EC loses £70m after lawyer botches fax", The Scotsman, Oct. 16). Washington state also had a similar problem when an attorney forgot to appeal an $18 million judgment against the state. (Sep. 13, 2000) (via Fark).

I was traveling last week and missed the brouhaha over sexual harassment allegations against TV host Bill O'Reilly, precipitated by his pre-emptive lawsuit charging that the demands of accuser Andrea Machris and attorney Benedict P. Morelli amounted to extortion. The controversy has been covered well by others, however, including Jim Lindgren and Eugene Volokh at Volokh Conspiracy, Oct. 13, who discuss the fine line between extortion and "normal" litigation behavior with reference to the example of the Cosby case; William Dyer ("Beldar", Oct. 13 and Oct. 16), who is critical of the O'Reilly camp's strike-first legal approach, and much else besides; and Jacob Sullum at Reason "Hit and Run" (Oct. 15), who writes from a standpoint opposed to harassment law in the first place. Attorney Morelli was last seen in these columns Nov. 23, 2003, regarding his representation of Wall Street complainant Christian Curry in another sensational case. More: Radley Balko also comments. Update Oct. 29: case settles.

I'm in Sunday's New York Post with a review of Robert F. Kennedy Jr.'s new volume on environmental policy, "Crimes Against Nature". It's fair to say I didn't much care for the book; in fact, I found it staggeringly bad ("the book affords the fun of a pratfall on every page, most of them occasioned by Kennedy's epic self-righteousness and astounding disregard for conventional accuracy"). ("Crimes of Ego", Oct. 17). For more on RFK Jr., see Oct. 5, Apr. 19-21, 2002 and links from there (& welcome Instapundit, Volokh Conspiracy readers)(bumped Oct. 18).

"Not a single ballot has been counted in the presidential election, yet Florida is already teeming with lawsuits charging the state and its county elections supervisors with voter disenfranchisement, a legal muddle likely to grow worse before Election Day." (Abby Goodnough, "In '04 Florida, Lawsuits Begin Before Election", New York Times, Oct. 14). "The legal combat in Ohio over the fundamental issue of who can vote is recurring in virtually every battleground state this year, in what experts say is fast becoming, in its final weeks, the most litigious, lawyer-fraught election in history." (James Dao, "As Election Nears, Parties Begin Another Round of Legal Battles", New York Times, Oct. 18). See also Sept. 22.

Colorado Republican Sen. Ben Nighthorse Campbell is attempting to insert broadening language into the Native American Graves Protection and Repatriation Act "so that any ancient skeleton can be claimed by modern American Indian tribes even though they have no known connection to the remains," thus reversing the disposition of such cases as the Kennewick Man controversy (see Aug. 9, Aug. 2 and links from there). Such a step "could significantly reduce -- and perhaps cripple -- legitimate scientific inquiry into the origins of human settlement in the Western Hemisphere. The retiring Campbell apparently hopes that one of his last acts in Congress will be to undermine the sort of vital study that is undertaken in virtually every other region of the globe." ("Campbell's assault on science" (editorial), Rocky Mountain News, Oct. 13)(via Moira Breen, by way of Jim Henley). More: Tim Sandefur comments at Panda's Thumb (Oct. 4).

"Now it is official: The United States of America has a federal bureaucracy in charge of deciding who can say what about politicians during campaign season. We can argue, and people do, about whether this state of affairs is good or bad, better or worse than some alternative. What is inarguable is that America now has what amounts to a federal speech code, enforced with jail terms of up to five years." (Jonathan Rauch, National Journal/Reason, Oct. 7). More: Columnist/blogger Dan Kennedy is troubled by efforts to charge the management of the Sinclair Broadcast Group with campaign finance violations (and maybe even subject them to criminal prosecution) for airing a documentary highly critical of Democratic candidate John Kerry ("Media Log: A Small Matter of Free Speech", Boston Phoenix, Oct. 12). More on Sinclair and the FCC: Ron Orol, "Sinclair Uproar Threatens Purchase of TV Stations", The Deal, Oct. 22.

In the latest development in one of the Internet's most celebrated and protracted legal disputes (Apr. 8 and links from there), pet store owner Robert Novak has announced that the Alabama Supreme Court has dismissed a default judgment against him arising from a case filed by attorney John Benn of Sheffield, Ala. Novak has also regained control of the domain petswarehouse.com, which had for a while been taken over by his adversaries. The controversy originally arose when Novak sued members of a listserv who had expressed dissatisfaction with their experience as customers of his Long Island-based pet store; he has also sued a widening circle of list operators, search engines and other online intermediaries. See PetsWarehouse site; press release, Oct. 5; Defense Fund; PetsForum; Dynamoo.

A reader informs us that Livejournal users can subscribe to Overlawyered to receive posts on their friends list. It's not perfect--the feed appears to miss posts on the occasions when items get bumped to the top of the site--but we're always happy to provide this additional service given that we had nothing to do with it.

"A student who took part in a Civil War re-enactment was arrested and could get expelled after a replica musket was found in his car at school." Joshua Phelps, 17, attends Pine Bush High School about 70 miles north of New York City. "Crawford town police confiscated the musket, handcuffed Phelps and charged him with misdemeanor criminal possession of a weapon, punishable by up to a year in jail." ("Civil War musket has teen in jam with the law", AP/South Florida Sun-Sentinel, Oct. 14)(more on zero tolerance).

"Copyright is a trial lawyer's dream -- a regulatory program enforced by private lawsuits where the plaintiffs have all the advantages, from injury-free damages awards to liability doctrines that extract damages from anyone who was in the neighborhood when an infringement occurred. ...Recently, David Boies, famous for his representation of Al Gore, signed a rich contingent-fee deal to pursue a claim that Linux open-source software violates his client's copyright. Last month, he launched test cases against DaimlerChrysler and AutoZone. If he prevails, businesses all across the country could find themselves paying big damages simply for having purchased Linux servers. It's asbestos litigation for the Internet age." (Stewart Baker, "Exclusionary Rules" (review of Lawrence Lessig's Free Culture), Wall Street Journal, Mar. 26, reprinted at Steptoe & Johnson site)(more on technology and IP law). P.S.: David G. Post of Temple reviews Lessig's book in the November Reason, and is in turn reviewed (before the fact) by Frank Gilbert at Slinkard Review.

Wednesday night transcript:

[Question about flu vaccine shortage]

BUSH: [...] We have a problem with litigation in the United States of America. Vaccine manufacturers are worried about getting sued, and therefore they have backed off from providing this kind of vaccine. [ed.: see Dec. 24 and earlier links]

One of the reasons I'm such a strong believer in legal reform is so that people aren't afraid of producing a product that is necessary for the health of our citizens and then end up getting sued in a court of law. [...]

KERRY: [...] This president has turned his back on the wellness of America. And there is no system. In fact, it's starting to fall apart not because of lawsuits -- though they are a problem, and John Edwards and I are committed to fixing them [Oct. 12] -- but because of the larger issue that we don't cover Americans. [...]

[Question on medical insurance costs]

BUSH: [...] I do believe the lawsuits -- I don't believe, I know -- that the lawsuits are causing health care costs to rise in America. That's why I'm such a strong believer in medical liability reform.

In the last debate [Oct. 9], my opponent said those lawsuits only caused the cost to go up by 1 percent. Well, he didn't include the defensive practice of medicine that costs the federal government some $28 billion a year and costs our society between $60 billion and $100 billion a year. [...]

[Kerry's response addressed Medicare bulk purchasing, the uninsured, and prescription drug reimportation, but not medical malpractice reform.]

The Uncivil Litigator is a blog of a mid-level associate whose practice consists mostly of insurance disputes. The insights into his daily practice and the litigation culture, told with appropriate humility, will be interesting for law students and laypeople, but so are the unspoken assumptions behind UCL's work, which unwittingly demonstrate some of the problems with the legal system.

In particular is a pro bono case taken on behalf of an elderly woman with a $800 dispute over an auto accident, resulting in a jury trial. The nine-post tale, told over several months on the blog, is an entertaining small story in and of itself. But, while he complains about the recalcitrance of the opposing defense attorney, at no point does UCL stop to think that he's partially responsible for thousands of dollars of societal resources (including seven people are giving up a day of work to sit on a jury) that are going to resolve this dispute. Or that his client, the opposing party, the opposing party's customers, and society as a whole would've been better off if he had spent the time he worked on this case with paying clients, and his firm simply wrote the plaintiff a check for a small fraction of those fees. Pro bono means uncompensated legal services for the public good, but here, as with too many law firm pro bono programs, a law firm imposed a huge externality on the public and an opposing party essentially for the purpose of subsidizing an expensive and inefficient training exercise to get a young lawyer experience. Junior stockbrokers aren't given $20,000 from the public fisc to churn for practice, but when lawyers do the equivalent, it's extolled as part of the category of cases where the pro bono lawyer really is working for the public good without pay.

Update: UCL responds, though he confuses a systemic criticism (are there better ways for society to handle small disputes than full-blown trials with all the trappings?) with a personal criticism that wasn't there.

Another update: Professor Martin Grace initiates a discussion on his weblog.

Childhood obesity is up, in part, because, while 90% of kids who lived within a mile of school walked to school a generation ago, that figure is now 31%. (And, ironically, the tendency of parents to drive kids to and from school has increased traffic near schools, increasing the chances of pedestrian-auto collisions.) An article in Salon discusses the Safe Routes to School program. SR2S hopes to encourage more kids to walk to school by assuaging parents' safety concerns by using elderly volunteers to create "walking school buses," but the program has found trouble getting off the ground because of liability concerns. Don't expect John Banzhaf to bring a class action against lawyers for their role in the obesity epidemic--or Salon to remember this problem the next time they fulminate against tort reform. (Linda Baker, "Walk to school, yes, but don't forget your lawyer", Salon, Oct. 13).

There is, perhaps, a niche of personal injury clients for whom an ostentatious display of personal wealth and a video with the theme from "Rocky" and a Michael Buffer impersonator narrator will be especially persuasive. If so, attorney Willie Gary (Jan. 7, Dec. 23) has that market sewn up (streaming Windows Media). Do not stare directly at the light coming out of Willie Gary's right hand in the photo next to that of the private jet. (via Schaeffer)

If you see Bobby Wooderson, Andy Slater or Richard Floyd of Huntsville, Texas, don't ask them if they wanna smoke a joint. The three former classmates of "Before Sunset" director Richard Linklater have decided, eleven years after the fact, that the Linklater movie "Dazed and Confused" defames them by using similarly named characters. As evidence of his emotional distress, Wooderson cites the fact that his son was asked for autographs by his Harvard classmates. (But how did they find out if his son wasn't bragging about the coincidence?) Another plaintiff told a desk clerk that he was "the guy from 'Dazed and Confused'" and was supposedly mobbed by a lobby full of fans--no doubt because New Yorkers are so enthralled by the sight of such a celebrity. The three are so upset that people associate them with a movie that did $8 million in box office in 1993 that before they served Linklater with the suit, they had their attorneys issue a nationally-publicized press release. They've sued in New Mexico, because Texas law doesn't allow one to wait eleven years before suing for defamation. Actor Wiley Wiggins complains about "the sad sacks back in Huntsville who are trying to cash in 11 years later over vaguely having something to do with a movie." (Andrew Tran, "Modified names spur 'Dazed' lawsuit", Daily Texan, Oct. 12; Tom Waddill, "Three Huntsville residents file suit over negative resemblances in popular cult film", Huntsville Item, Oct. 11; Chris Rush Cohen blog, Oct. 8).

Full disclosure: I once represented co-defendant Universal years ago. But that was about the Grinch.

George Wallace more closely parses John Edwards's answer at the debates (Oct. 5):

We do have too many lawsuits, and the reality is there's something that we can do about it. John Kerry and I have a plan to do something about it. We want to put more responsibility on the lawyers to require before a case of malpractice, which the Vice President just spoke about, have the case reviewed by independent experts who determine the case is serious and meritorious before it can be filed; hold the lawyers responsible for that, to certify that, and hold the lawyer financially responsible if they don't do it; have a three strikes and you're out rule so that a lawyer who files three of these cases without meeting this requirement loses their right to file these cases.

Plaintiffs defending the insane $10.1 billion class action judgment (Feb. 8; Mar. 24, 2003) have retained as co-counsel a law firm associated with a Republican Illinois Supreme Court justice in an effort to have him disqualified from the case. (Paul Hampel, St. Louis Post-Dispatch, "Smaller court may hear tobacco case in Madison County", Oct. 3; Ameet Sachdev, "Philip Morris seeks removal of law firm", Chicago Tribune, Sep. 1 (no longer online)). The Edwardsville Intelligencer (in a strange story whose math seems to be wrong in other particulars) reports that Madison County has received a $1.7 million windfall in interest from Philip Morris from the bond (Apr. 4, 2003) it posted to appeal that judgment. (Steve Horrell, "County is cashing in", Oct. 8).

The Seattle Times has a retrospective look back at the comprehensive tobacco settlement (Feb. 28 and links therein) negotiated in large part by Washington state Attorney General Christine Gregoire, and notes the irony that it forced the state to ally itself with Philip Morris to protest the amount of the bond (see also Apr. 30, 2003). (Andrew Garber, "Tobacco settlement Gregoire negotiated not popular with all", Oct. 4). But the bad news for Altria shareholders, states hoping to continue receiving tobacco funds, and the ability of Americans to conduct business is that plaintiffs continue to pile on with similarly meritless class action lawsuits, waiting to find the combination of judges who dislike tobacco companies enough to expand class action law rather than rule in their favor. Plaintiffs' lawyers will bring dozens of these lawsuits, and need win only one multi-billion dollar judgment to become the new owners of the enterprise. The Massachusetts Supreme Court recently signed off on a class action against Philip Morris, and lower courts in Missouri and Ohio have followed suit. (AP, Sep. 17; Theo Emery, AP, Aug. 16).

American Medical News has additional details on the Ohio cerebral palsy medical malpractice case of Hollins v. Jordan, which we covered Aug. 31. Interesting new and previously unreported details include: Hollins was an intrauterine growth-retarded baby, yet the plaintiff sought to blame his medical problems on a decision to hold a C-section in two hours instead of one; plaintiffs asked for triple the damages they had disclosed in an expert report; Geoffrey Fieger would regularly interrupt lawyers for the other side as if "to emulate TV trials in which lawyers can do and say whatever comes to mind." Though Fieger wouldn't talk to the American Medical News, the two lawyers gave an interview to an Illinois newspaper that seems to be unaware that the judge overturned the May verdict. (Tanya Albert, "Judge: Mega-verdict spawned by passion", Oct. 11; Mark Samuels, "Difficult Questions: Who Should Pay And How Much?", The Southern Illinoisan, Sep. 2; James F. McCarty, "Disabled boy gets $30 million", Cleveland Plain Dealer, May 25). You may or may not be disturbed to learn that there is a Geoffrey Fieger fan club that was unhappy with the Ohio court's decision, though don't expect to find much in the way of reasoned analysis there. (Update, Nov. 20: verdict reinstated.)

In other cerebral palsy litigation news, the Wall Street Journal tells the tale of Brenda Stoltz. The lawyers she retained were excited about the prospect of a multi-million-dollar case involving future lifetime medical care of a brain-damaged baby, but when the child died shortly after, the attorneys dropped the case. (Rachel Zimmerman and Joseph T. Hallinan, "As Malpractice Caps Spread, Lawyers Turn Away Some Cases", Oct. 8 ($), reprint; Grunt Doc blog, Oct. 8; Brad Parker, Galen's Log blog, Oct. 8). The Journal article notes one side effect with non-economic damages caps; people without income--the elderly, the young, homemakers--who suffer wrongful death can be left without real recourse, though this is true for many types of untimely death.

NORMA-JEAN LAURENT: Senator Kerry, you've stated your concern for the rising cost of health care, yet you chose a vice presidential candidate who has made millions of dollars successfully suing medical professionals. How do you reconcile this with the voters?

KERRY: Very easily. John Edwards is the author of the Patients' Bill of Rights. He wanted to give people rights. John Edwards and I support tort reform. We both believe that, as lawyers -- I'm a lawyer, too. And I believe that we will be able to get a fix that has eluded everybody else because we know how to do it.

KERRY: It's in my health-care proposal. Go to johnkerry.com. You can pull it off of the Internet. And you'll find a tort reform plan.

Now, ladies and gentlemen, important to understand, the president and his friends try to make a big deal out of it. Is it a problem? Yes, it's a problem. Do we need to fix it, particularly for OGBYNs [sic] and for brain surgeons and others? Yes.

But it's less than 1 percent of the total cost of health care. [...]

CHARLES GIBSON: Mr. President, a minute and a half.

BUSH: Let me see where to start here. [...]

BUSH: And what are his health programs? First, he says he's for medical liability reform, particularly for OB/GYNs. There's a bill on the floor of the United States Senate that he could have showed up and voted for if he's so much for it.

Secondly, he says that medical liability costs only cause a 1 percent increase. That shows a lack of understanding. Doctors practice defensive medicine because of all the frivolous lawsuits that cost our government $28 billion a year. [...]

GIBSON: Senator Kerry, we got several questions along this line, and I'm just curious if you'd go further on what you talked about with tort reform. Would you be favoring capping awards on pain and suffering? Would you limit attorney's fees?

KERRY: A follow-up...

GIBSON: Yes. A follow-up on this for...

KERRY: Yes, I think we should look at the punitive and we should have some limitations.

But look, what's really important, Charlie, is the president is just trying to scare everybody here with throwing labels around. [...]

GIBSON: [...] Thirty seconds, President Bush.

BUSH: You're right, what does matter is a plan. He said he's for -- you're now for capping punitive damages?

BUSH: That's odd. You should have shown up on the floor in the Senate and voted for it then.

Medical liability issues are a problem, a significant problem. He's been in the United States Senate for 20 years and he hasn't addressed it.

We passed it out of the House of Representatives. Guess where it's stuck? It's stuck in the Senate, because the trial lawyers won't act on it. And he put a trial lawyer on the ticket.

What the CBO says is that, assuming medical malpractice expenses are 2%, reducing those expenses 25% will, as a matter of simple arithmetic, reduce total health care expenses by 0.5%. But, as Dr. Chusid acknowledges, that 2% assumption for medical malpractice expense is a great underestimate. There's more than just insurance premiums: there's the billions spent on inefficient defensive medicine, on hospital in-house lawyers, on time doctors spend with lawyers instead of with patients, on time doctors spend papering the record to protect themselves in event of suit, and on self-insurance--many hospitals don't use a middleman insurance company. And for a number of disciplines, the malpractice insurance rate is unquestionably higher than 2%--the average OB/GYN pays a quarter of her net income in premiums.

Mickey Kaus calls Kerry's "I'm a lawyer too" the "worst-polling line of the night."

I'm headed out for my Southern California speaking tour, and expect to be absent from this site for the next week or perhaps a bit more. Ted will be here, though. See you soon.

There's been plenty of discussion going on among the medical bloggers about Merck's withdrawal of its arthritis drug. For posts especially relating to the courtroom implications, follow the italics: Derek Lowe (first, second posts); KevinMD (lots of posts: one, two, three, four, five, six, seven, eight); Blogborygmi; RangelMD (first, second posts; MedPundit (first, second posts); MedRants (first, second, third, fourth posts); and Point of Law.

James Roy Cowan, Jr., committed to the San Antonio State Hospital, hung himself with his own suspenders. His family sued the state-run hospital for not preventing the suicide. Problem: Texas law prohibits lawsuits against state entities. Plaintiffs' creative solution: an exception permits lawsuits against the state when the state injures someone by "using" "tangible personal property"--for example, if a state employee negligently drives an automobile. Thus, plaintiffs argued, the hospital "misused" the suspenders by permitting them to remain in Cowan's custody. A trial court and appellate court were prepared to let this theory go to trial, but the Texas Supreme Court unanimously reversed last January.

Reasonable minds may differ as a matter of public policy whether Texas taxpayers should be on the hook for damages for failing to prevent a suicide, but it hardly seems controversial that the Texas Supreme Court correctly held that the Texas legislature has not made that decision.

Except that "Texas Watch," a plaintiffs' lawyers' front group (see Mar. 11), issued a report complaining that the Texas Supreme Court was "anti-consumer." It came to this conclusion by tallying various pro- and con votes in 52 cases, and noting that the Texas Supreme Court votes against plaintiffs in 82% of that sample.

Of course, this is hardly sufficient to prove any such thing. Perhaps, as in Cowan, the problem is that the lower courts are too aggressively activist and pro-plaintiff. If so, the Texas Supreme Court's ratio reflects that it's simply being more reasonable than the decisions of the courts it was reviewing.

One might complain that I'm nitpicking at the Texas Watch report -- except that that same report included a "Terrible Ten", and Cowan was singled out as the most terrible of the ten at the top of the list, as the anecdote that Texas Watch thought most helpful to their argument. Leave aside for the moment whether a decision that protects Texas taxpayers is "against the public" as Texas Watch portrays it. It is telling that Texas Watch believes that it is the responsibility of the Texas Supreme Court to create rights for plaintiffs where the legislature has refused to do so; while newspapers printed rebuttals from a Texas Supreme Court spokesperson, they did little to evaluate the relative truth claims of the competing soundbites and let Texas Watch dictate the headlines. (Christy Hoppe, "High court rarely backs consumer, study says", Dallas Morning News, Oct. 6; John Moritz, "Court goes largely against public, group says", Star-Telegram, Oct. 6; Tama Swan, "Report finds past year's Texas high court rulings lopsided", Daily Texan, Oct. 7) (via Bashman).

Following a rules change this spring which for the first time allowed solicitors to share fees with third parties, law firms across England have begun offering money to doctors for the referral of injury cases. "Lawyers Higgins and Co, from Birkenhead in Wirral, has been offering GPs £175 for every patient they refer to their firm. ... The British Medical Association said it believed doctors being offered money for compensation referrals was 'inappropriate and gives the appearance of a conflict of interest.'" One danger, for example, is that doctors in cases of unclear diagnosis will be given an incentive to diagnose a malady for which compensation can be sought rather than one for which there is no one to blame. "But the Law Society said there was nothing wrong with this practice, as long as all parties were aware that money had been exchanged." (BBC, Aug. 27) (& letter to the editor, Jan. 17).

New Jersey: "Ramsey and Bergen County police must pay a man who got drunk and passed out on a snow bank $850,000. A jury decided the police bungled a 911 call, and should have found Frederick Puglisi sooner. ...Puglisi walked out of a New Year's Eve party at a Ramsey hotel in 2001 and passed out on a snow bank for nine hours." Attorney Samuel Denburg convinced a jury that Puglisi was only 15 percent responsible for his resulting frostbite and other injuries, while the police were 85 percent responsible because the 911 dispatcher did not press for enough details from a bystander or pass all the details on to officers, and because the police conducted only a cursory search of the scene. ("Jury Makes Police Pay $850,000 For Not Finding Partygoer", WNBC, Sept. 29; "Drunken man passes out, wins $850K from police", Newsday, Sept. 29; "Drunken 'Snowman' Gets $850G Payday", 1010WINS, Sept. 29).

The rhetorical techniques that John Edwards employed in his opening and closing arguments before juries were on display Tuesday night in the vice presidential debate, according to lawyers who crossed swords with him in his home state of North Carolina (Lisa Hoppenjans, "Lawyers: Edwards used trial technique", Winston-Salem Journal, Oct. 6). Thoughts Online and Beldar discuss whether success as a trial advocate nowadays critically depends on the ability to "think on one's feet", as opposed to delivering a pre-scripted message, given the emphasis of modern procedure on avoiding surprise at trial. (My own impression is that Edwards was strongest when delivering material suitable to being prepared in advance, and less strong when obliged to depart from the script.) Several commentators note that Edwards saved many of his most slashing attacks for his final round of discussion on a given question, at which point Cheney would have no chance to reply. And George Will thinks Kerry's selection of Edwards as running mate was a blunder, though for reasons unrelated to the debate ("GOP power plan", syndicated/Washington Post, Oct. 7).

"Social and club golfers should ensure they are covered by insurance before they even think about teeing off, the Victorian Golf Association has warned." Mark Roy Shanahan was held personally liable for an A$2.6 million award after a charity game 10 years ago at a Queensland country club when his ball hit another golfer in the head. Although club members are often covered by a club's liability policy, green-fee golfers may be exposed and would be wise to seek alternate sources of insurance, said VGA executive director Doug Fox (Daniella Miletic, "Insurance can stop a poor shot landing in court", Melbourne Age, Sept. 12).

So said John Edwards, in tonight's vice presidential debate with Dick Cheney.

As he has done many times before, Edwards also said he was proud of his record of suing drug companies, insurance companies and HMOs. He did sue those kinds of defendants sometimes, but his actual specialty was suing doctors. Why won't he say he was proud of that, too?

Unless I missed it, Cheney did not do much to contradict Edwards' claim that his proposed liability reforms will keep bad cases out of court. For more on that question, see my August WSJ piece.

More: Why, asks Michael Graham of National Review Online. wasn't Cheney familiar with Edwards' legal cases? It's hardly as if they're above criticism. On the senator's CP cases, also check out the correspondence back in August between Ramesh Ponnuru and an unnamed letter-writer on NRO "The Corner". Plus: Prof. Bainbridge comments. FactCheck.org (not .com!) sorts out the Halliburton stuff. Jay Nordlinger says Edwards "sounded more anti-lawsuit than Cheney did". And CBS News reports, based on feedback from its live poll (in which viewers graded the debaters as they went along using their remote controls), that: "Both candidates scored high points when they talked about the need to limit lawsuit and keep frivolous lawsuits out of the system, Cheney when he mentioned that doctors were being driven out of practice –- especially OB-GYNs, which gave him very high ratings with women. Edwards did well when he said lawsuits must be limited and when he talked of his own experience fighting in the courts." ("Uncommitteds Tab Edwards Winner", Oct. 5).

I'll be a guest tonight at around 6:30 on the Mark Levin show on New York's WABC, discussing John Edwards. And tomorrow afternoon (Wed.) at around 2:30 I'll be a guest on the Kevin McCullough show on New York's WMCA, also discussing Edwards.

Just in time for tonight's debate, the Capital Research Center is out with an anything-but-flattering report on the North Carolina senator and his role on the Democratic ticket (Robert James Bidinotto, "Kerry, Edwards and 'the Lawsuit Lobby'", Organization Trends, Oct. (PDF))(quotes me). And reporter John Riley of Newsday takes a more than usually thorough look at Edwards' record in medical malpractice work ("GOP may seek to exploit Edwards' trial history", Oct. 4)(also quotes me). For this site's coverage of the Smiling One, see July 19, Aug. 2, Aug. 2, Aug. 17, Aug. 23, Aug. 25, and many other entries on our politics page.

Prof. Jonathan Adler of Case Western attends a speech given at Case by celebrity environmentalist Robert F. Kennedy, Jr., and blogs the hothead scion's frothy rant (Sept. 30). (Kennedy on the media, per Adler: "They should all drink poison Kool Aid and restore integrity to their profession.") Kennedy was widely ridiculed two years ago for repeatedly asserting that large hog-raising operations are a greater threat to American democracy than Osama bin Laden (see Apr. 19-21, 2002) and if Adler's account is accurate, the embarrassment has by no means abated.

Over at Point of Law, the featured discussion has now wrapped up between Dr. Ron Chusid of Doctors for Kerry and our own Ted Frank on the presidential race and medical malpractice reform (more on politics/more on med-mal). If you haven't looked at the exchange yet, you'll find that it conveys a wealth of information about the state of the medical liability debate. Not surprisingly, I found Ted persuasive in arguing that Bush has the sounder position on this issue (which still doesn't mean I'm going to vote for him).

Seven years ago Robert Moore got into a barroom brawl with British servicemen at a drinking establishment in Tacoma, Wash. He was injured and wanted to sue.... who? Why, the government of Great Britain, that's who. He wasn't going to win that one, not even in the Ninth Circuit, a panel of which pointed out that we have a NATO treaty intended to forestall litigation in exactly such situations. However, Moore's attorney, J. Bryon Holcomb of Bainbridge Island, Wash., took umbrage. "The Ninth Circuit just ignored the facts," Holcomb said. "If people in this country knew how little chance they had in our federal court system, there would be a revolution tomorrow. They would have the guillotines out storming the courthouse looking for candidates." What is Mr. Holcomb trying to do talking that way, set himself up as the Geoffrey Fieger of the Pacific Northwest? (Justin M. Norton, "Man Involved in Bar Fight TKO'd by 9th Circuit", The Recorder, Sept. 24). Martin Grace also comments (Oct. 2).

Last month the Colorado Bar Association sent a letter to both major political parties in the state instructing them to have their candidates "focus on the issues, avoid name-calling, and not resort to stereotyping any groups of people as the scapegoats for society’s complex problems. This includes generalized attacks aimed at judges or lawyers." According to a Denver Post editorial ("How many lawyers does it take...", Sept. 20):

"It totally cracked us up," said Chris Gates, chairman of the Colorado Democratic Party. "I've received a lot of letters advocating for this issue or that, but this was the first letter that said 'could you please refrain from saying mean things."'

Ted Halaby, a prominent lawyer and chairman of the state Republican Party, said the letter "showed a certain ultra-sensitivity."

After being raped, an unmarried woman finds she is pregnant. She wishes to give the child up for adoption, but under current law she must first prevail on the birth father to give up his parental rights -- and as a condition of doing so, he demands that she not testify against him. Does this sort of thing really happen? A lawmaker and a reporter in North Carolina investigate and find that, yes, it does seem to (Ruth Sheehan, "Rapists lose facet of power", Raleigh News & Observer, Sept. 6). P.S.: I, Gadfly raises an important point, namely, how should the law deal with the fact that not all rape accusations are accurate and some are even made tactically? The Raleigh newspaper's account indicates that the North Carolina legislation cuts off the parental rights of rapists only on conviction, which minimizes the damage done by false accusations, but also suggests that the law may be without effect in the type of case that caused outrage in the first place, in which avoiding conviction is the whole point of the abuse.

In 1998, the Diana Princess of Wales Memorial Fund charity tried to assert California "right of publicity" law against the Franklin Mint to force them to stop selling tchotchkes and gewgaws with Diana's image, and spent over one million pounds on attorneys to fight the case. California courts were not impressed, noting that Diana was a resident of a country that did not have such laws, but the litigation continued for years before appeals were resolved.

The Franklin Mint then turned around and sued the charity for malicious prosecution of the first lawsuit; the Diana Fund defends itself by arguing that, while its lawsuit was meritless in hindsight, it was not frivolous under the law. The legal distinction, aside from showing the general difficulties in the U.S. system that a defendant winner has in recovering its expenses from a meritless lawsuit, has resulted in another couple of years of litigation, and trial is now scheduled for November.

But here's the kicker: Franklin Mint Co., perhaps because of the bad pr involved in attempting to recover from a charity that has loudly complained about the effect of the litigation on its work, has supposedly "said it will give any damages it receives from the case to charities supported by the fund." So if the Diana Fund wins the lawsuit, its charities get to keep getting money; if Franklin Mint wins, it will give the money to the Diana Fund's charities. So, if the report about the Franklin Mint's claims is true, who benefits from this lawsuit other than the lawyers? (Reuters, "Franklin Mint Wins Right to Sue Lady Di Memorial Fund", Oct. 2; CBS/AP, "Diana Fund Feud Foils Grant-Giving", Jul. 11, 2003; Franklin Mint press release, Jun. 20, 2002; BBC, "Diana fund loses doll battle", Jan. 6, 2000).

Suits over deep-vein thrombosis suffered by inactive passengers on long-distance flights looked not long ago as if they might become a major source of liability for airlines, but "appellate decisions in California and Texas have encouraged airlines to defend DVT cases in court, rather than begin a parade of potentially large settlements." (Justin Scheck, "New Tort Encounters Turbulence", The Recorder, Sept. 17). See Aug. 16, 2003; Sept. 12, 2004 (Australia).

Following guidance from the U.S. Supreme Court's decision in State Farm v. Campbell, a California appeals court has ruled that the original $3 billion punitive award against Philip Morris, voted by a jury in 2001 in Richard Boeken's lawsuit, cannot properly exceed $50 million. Plaintiff's lawyer Michael Piuze expressed discontent at having to settle for such a measly sum. (Mike McKee, "Court Chops More off $3 Billion Award in Philip Morris Case", The Recorder, Sept. 22; see Jun. 8-10, Jun. 11 and Jun. 19, 2001). Jim Copland has more at Point of Law (Sept. 22).

Charleston, W.V.: "A judge has ruled that the country's largest firearms maker is not liable for two police officers being shot by a felon using a gun made by the Connecticut company. Kanawha County Circuit Judge Irene Berger on Thursday ruled that former Orange, N.J., police officers Dave Lemongello and Kenneth McGuire are not entitled to damages from Fairfield, Conn.-based Sturm, Ruger & Co., Inc." Gun-control activists had sought publicity for the case, which they argued exemplified the merits of litigation against the gun industry. In June Will's Jewelry and Loan Co., the pawnshop where the gun was sold, agreed to pay $1 million to settle with the officers. ("Gun maker found not liable for police shooting", AP/Stamford Advocate, Oct. 1). The Second Amendment Foundation applauded the judge's ruling.

If you're not reading our sister site PointOfLaw.com, you're missing out on a lot. I've been doing about half my blog writing over there, on topics that include: a powerful new St. Louis Post-Dispatch investigation of asbestos litigation in Madison County, Ill. (here, here and here, with more to come, and note this too); the busy borrowings of Harvard's Larry Tribe; when "not-for-profits" organize employment suits; Erin Brockovich's respectability; crime without intent; experts and the CBS scandal; stay open through a hurricane, go to jail; suits over failure to put warnings on sand (yes, sand); West Virginia legal reform; Merrill Lynch/Enron trial; Hayek and the common law, reconsidered; getting creative about tapping homeowners' policies; AdBusters sues to have its ads run; plaintiff's lawyers represent criminal defendants to put drugmakers behind the eight ball; update on the law firm that competes on price; Spitzer and investors; Ohio med-mal crisis (and more); a welcome Schwarzenegger veto; dangers of firing your lawyer; ephedra retailer litigation; churchruptcies (if banks can do it...); and hardball in nonprofit hospital litigation.

Plus Ted Frank on tort reform in Mississippi and Jim Copland on California's Proposition 64 (which would reform the notorious s. 17200 statute); the federal tobacco trial and Boeken; gender bias at work; and Rule 11 revival.

Better bookmark PointOfLaw.com now, before you forget.

Michael Strauss says he bit into one of them at a Bourbonnais, Ill. outlet of the burger chain and hot grease squirted out onto his arm. Can he have a sum in excess of $50,000, please? (Steve Patterson, "White Castle lawsuit has familiar ring", Chicago Sun-Times, Sept. 30).

Symptoms of the medical liability crisis are less severe in North Carolina than in many other states; "Dr. Edward Halperin, vice dean of Duke's medical school, said the issue is not cited as a major factor in Duke students' decisions to pick a medical specialty," which is not the case in some other parts of the country. "The malpractice issue has had a negative influence, however, in the kinds of learning opportunities medical schools offer. In years past, Halperin said, schools routinely let students do training stints at hospitals around the country. Now this practice is being curtailed, because medical schools are leery of carrying the liability for students working outside their hospitals.

"Such subtle problems seldom get mentioned in the debate, but Halperin said the effect is long term. 'It's inhibiting access to educational opportunities,' he said." (Sarah Avery, "Malpractice debate hides subtleties", Raleigh News & Observer, Sept. 7) (via Common Good).