Justin Levine at CalBlog takes a pessimistic view (Jan. 27).
January 2005 Archives
...can encourage midnight teardowns, as Ted explains on Point of Law (Jan. 27). See also Feb. 15-17, 2002.
Australia: "A Supreme Court judge has called for the internet to be purged of any material likely to prejudice a trial, to prevent jurors conducting their own investigations into cases they are sitting on. Justice Virginia Bell, of the [New South Wales] Supreme Court, told a conference in Darwin of Supreme and Federal court judges from across the country yesterday that the ready availability of archived press reports on the internet could jeopardise the trial of an accused person." She recommended that prosecutors "carry out searches on the internet and, in the event that prejudicial material is identified ... request any Australian-based website to remove it until the trial is completed". The secretary of a journalists' organization called her proposal "silly and unworkable". (Kevin Meade and Cath Hart, "Judge demands trial web blackout", The Australian, Jan. 26).
London's Observer quotes me today on the subject of litigation against schools and in particular the case of Peer Larson, the Wisconsin high school student who's suing to challenge the right of his honors math teacher to assign homework over the summer (see Jan. 21). (Richard Luscombe, "Homework-hater takes his maths teacher to court", Jan. 30). Follow the links for more on school litigation and on cheerleader suits (here and here and here.) (In case it isn't clear from the context, by the way, my mention of large dollar settlements isn't intended to refer to cheerleading-squad cases). And since overlegalization and the compensation culture are by no means limited to the U.S., we've also got a UK section.
"Prosecutors have dropped a disorderly conduct charge against legal reform advocate Carl Lanzisera, one of two men arrested for telling lawyer jokes outside District Court in Hempstead, N.Y. But his comedic and legal reform partner, Harvey Kash, must appear before a grand jury -- and Lanzisera has been subpoenaed to testify in the case against him." (Zachary R. Dowdy, Newsday/South Florida Sun-Sentinel, Jan. 27)(see Jan. 13, Jan. 14). Monica Bay ("Common Scold") comments (Jan. 27).
David Giacalone has some apposite things to say (Jan. 26) about a court's recent decision to allow a mere $220 million in fees, rather than the more than $600 million sought, to lawyers who'd represented the plaintiff class of merchants in an antitrust suit against Visa and MasterCard (see Jan. 24). In particular, he notes the claim of the class counsel (on its website) that its billing rates "are typically significantly less than those charged by larger firms"; the willingness of big-name legal academics like Arthur Miller and Jack Coffee to hire themselves out to class counsel to bless the fees; and the dubious impact on consumers of some of the injunctive relief obtained by the class (he notes that he can't use his debit card at Wal-Mart any more).
More on a subject we covered on Dec. 13, Sept. 14, and Jul. 16 of last year: in December British authorities rounded up and arrested the head and various officials of the British National Party, charging them with inciting racial hatred in political speeches ("Let the people of England speak", The Spectator, Jan. 1). Also in December, the quasiofficial Press Complaints Commission announced a crackdown "on the use of the term 'illegal asylum seeker' by newspapers after research revealed its continued usage. Sir Christopher Meyer, the press watchdog's chairman, has commissioned its cuttings agency to scan all British newspapers for use of the term after a study by the Liberal Democrats showed that the press has ignored the PCC's guidance issued more than a year ago." The culture spokesman of the bafflingly named LDP has written to Meyer "calling for harsher punishments for defiant newspapers", and saying there is "a strong case for considering the imposition of fines on erring newspapers." (Sarah Hall, "Newspapers flout ruling on asylum seekers", The Guardian, Dec. 31).
What does an incumbent bus company do when faced with low-price competition? One solution is to raise the competition's costs by suing. But even I'll admit that lawsuits are more civil than the violence that characterizes recent competition amongst the smaller bus lines. (Barry Newman, "On the East Coast, Chinese Buses Give Greyhound a Run", Wall Street Journal, Jan. 28).
More on the LA commuter rail crash (Jan. 27): the Los Angeles Times covers the legal aspects of the case, and suggests prospects of recovery are "slim," because the accident is Alvarez's doing. Ten paragraphs into the article, however, the Times acknowledges the principle of joint and several liability, whereby the railroad could be on the hook for the entirety of the economic damages if they're found 1% responsible for the accident. (Tort reform in California has abolished joint-and-several liability for non-economic damages. Cal. Civ. Code Sec. 1431.2.) Overlawyered has covered numerous cases where the deep pocket was held responsible for the crime of another: for example, ankle monitor manufacturer 20% responsible for murder; apartment complex responsible for carjacking and shooting; beer vendor 50% responsible (plus punitives) for drunk driving accident; automaker jointly liable for drunk driving accident.
Also entertaining is the discussion of the five investigators the California Bar felt they had to send to the scene of the crime and local hospitals to shoo away potentially illegal solicitation by attorneys. (Henry Weinstein, "Victims' Chances of Winning Big Money Are Slim", Jan. 28).
The latest installment of our free periodic newsletter went out this afternoon to its c. 2300 subscribers, covering the last three or four weeks' worth of postings in cryptic, occasionally droll style. It's a great way to keep up with items you may have missed; when you're finished, pass on the email to let a friend know about the site. Sign up today, right here.
"Choosing safety over tradition, legal fears over downhill thrills, some local governments, including [New Jersey's] Camden and Gloucester Counties, have banned sledding in their parks." Phillipsburg, N.J., in Warren County, has had a ban on its books for more than a decade but only began enforcing it recently following a $150,000 payout over a boy's broken leg. "As a result, it was thought prudent by the insurance company to put signs up saying sleigh-riding is prohibited," said town attorney Joel Kobert. "Nobody wants to deny a child the ability to play in the snow, but you sanction it in today's world at substantial cost." In Greenwich, Ct., which lost a $6 million lawsuit last year to a high-income resident injured while sledding, they haven't banned the pastime, but that's probably because the town is among the nation's most affluent, and can afford to pay an insurance bill and deductible that nearly doubled after the sledding case and other courtroom losses. (Christine Schiavo, "Sledders are finding it tough to hit the slopes", Philadelphia Inquirer, Jan. 26).
View unsuspecting Innocence a prey,
As guileful Fraud points out the erring way:
While subtle Litigation's pliant tongue
The life-blood equal sucks of Right and Wrong.
("On the Death of Robert Dundas, Esq., of Arniston, Late Lord President of the Court of Session", reprinted in Harvard Classics, Bartleby.com). Matthew Arnold did not find the poem an impressive example of Burns's art (scroll to #31).
"A man is being sued by a New Hampshire company for labeling it a spammer and reporting its actions to ISPs, after two years of allegedly receiving unsolicited emails from it. Atriks alleges that Jay Stuler caused financial damage to the firm, resulting in a number of lost contracts. The suit also says that Stuler made defamatory statements against the company, calling it 'a notorious spam gang,' and CEO Brian Haberstroh a 'criminal,' which the suit denies." ("Company Sues over Spam Claims", TheWhir/Article Central, Jan. 20; Jo Best, "Spammed man sued by alleged spammer wants cash", Silicon.com/The Spam Report, Jan. 18)(via KipEsquire who got it from Privacy Spot).
At least eleven people were killed and over a hundred injured yesterday when a suicidal Juan Manuel Alvarez parked his Jeep on the train tracks, causing a collision that eventually derailed three trains. The lead train was being pushed, rather than pulled, by the locomotive, a common means to save time by permitting more trips to be taken. According to the LA Times, experts disagree whether this has safety implications. (Dan Weikel and Scott Glover. "Train's Lineup May Have Added to Risk", LA Times, Jan. 27). Realistically, at a minimum, this design probably makes some types of accidents worse, has no effect on some other types of accidents, and provides additional protection for still other kinds of accidents such as being rear-ended (as happened in a Long Island RR accident last year). But the conclusion that courts draw when reasonable people differ over the optimal train design is not that the commuter rail system acted reasonably, but that a jury of laypeople should resolve the debate by second-guessing whether they did so. So mark January 26, 2006, on your calendars, for you'll surely see lawsuits seeking to hold Metrolink liable for the consequences of Alvarez's deliberate actions, just as Santa Monica was sued one year after a driver plowed into the Farmers' Market there (Jul. 14).
The infamous McDonald's obesity case (Sep. 4, 2003) was reinstated yesterday on the highly technical grounds that the lower court applied the Federal Rule 9(b) "heightened pleading" standard to the New York consumer fraud statutes instead of the more lenient Rule 8. The court cites no relevant precedent for this assertion, which contradicts the language of the rule. As Jim Copland notes on our sister site, the Second Circuit effectively ruled that it was interpreting the Federal Rules so that it would be nearly impossible to dismiss a New York consumer fraud case before giving the plaintiffs an opportunity to conduct discovery. The decision seems wrong (compare, e.g., Tuttle v. Lorillard Tobacco Company, 118 F. Supp. 2d 954 (D. Minn. 2000)), and its main effect will be to raise the cost of defending against meritless claims--which will encourage nuisance settlements, which in turn will encourage more meritless claims in the hopes of extorting such nuisance settlements. (Pelman v. McDonald's (2d Cir. 2005).).
In 1989, London's Hayward Gallery organized an exhibit of Indian and Pakistani artists. Somehow, they lost or damaged 300 of Iqbal Geoffrey's works, and Geoffrey says he only found out in 1993. Now, sixteen years later, he's bringing a lawsuit, claiming that the loss was due to racism, and seeking 65 million pounds in damages. This is presumably meant to be a punitive amount, since his works are generally priced at 786 euros, and were likely insured for the 65,000 pounds the museum offered in compensation. Geoffrey is demanding polygraph tests of museum employees. (Jamie Doward, "Artist accuses top gallery of racial prejudice", The Observer, Jan. 16).
The previous claim to fame of Geoffrey, a lawyer with an LLM from Harvard, was asking Pakistani courts to halt the Virginia execution of admitted murderer Mir Amail Kasi, who assassinated two people in a terrorist attack outside CIA headquarters in 1993. Geoffrey, who calls himself the world's greatest living artist, is also apparently known in the Pakistani community as a frequent litigant, including a lawsuit for $800 million or so in rupees for a different perceived slight in 1998. (Khalid Hasan, "Sir Geoffrey the Great", Friday Times, Jul. 19, 2002). Update Feb. 13: letter to the editor with response from Geoffrey.
Philadelphia Eagles fans might be bigger supporters of tort reform now: a doctor has refused to clear star wide receiver Terrell Owens for play in Super Bowl XXXIX after an ankle sprain because of liability fears. (Mark Maske, "Hope Remains for Owens Comeback", washingtonpost.com, Jan. 26).
Owens might have other reasons to seek tort reform. He's being sued for $35 million by Formulated Sciences Inc. because he didn't wear a t-shirt he supposedly agreed to wear in 1999. This might be because the non-FDA-regulated "nutritional supplements" he was supposed to endorse were banned by the NFL in 2001. Of course, perhaps Owens' business representatives failed to account for such an eventuality in the endorsement agreement, in which case Owens may well be liable for a breach of contract, but alleging $35 million in damages for failing to wear a particular hat or t-shirt is ridiculous. The theory is apparently that there were millions of people clamoring to buy an ointment with Owens' picture on it. If an athlete's endorsement carried that kind of weight, athletes would be making much more money in endorsements. (Don Russell, "T.O. facing $35M suit from banned supplement company", Philadelphia Daily News, Dec. 29). Formulated Sciences, which specializes in a weight-loss snake-oil with as much caffeine as a two-liter bottle of Coca-Cola, has also sued the NFL for supposed antitrust violations. The League has moved to dismiss the complaint. The lawsuit is meritless on its face, and, given the press releases, appears to be an attempt for FS to get free advertising for its products, but the NFL will likely spend at least tens of thousands of dollars defending itself.
I'm off to Austin where I'll take part in a panel discussion on asbestos reform tomorrow (Thurs.) at the Texas Public Policy Foundation's third annual policy orientation for the state legislature, an event that I understand is sold out. Any posting before Friday will be from Ted.
Litigation as hobby: "Meet Peter Malley, a former math teacher who has filed 18 federal lawsuits against the city after he was fired by the [New York City] Board of Education in 1987." (Carl Campanile, "Courts $pank Frequent Filer", New York Post, Jan. 24).
The American Spectator's unsigned "Prowler" slams Sen. Arlen Specter for selecting as general counsel for the Senate Judiciary Committee Carolyn Short Torsella, whom it describes without more as a "trial lawyer" and implies might prove unacceptably liberal to the GOP majority. ("Specter’s Trial Lawyer Appointee", Jan. 26). It does not add -- but probably should have -- that Ms. Short's renown with the firm of Reed Smith is on the defense side, where she has helped employers fight off discrimination suits. A profile of Ms. Short in Forbes three years ago (Joanne Gordon, "Get Shorty", Dec. 24, 2001; same article reprinted at Reed Smith site) provides zero support for the depiction of Ms. Short as wild-eyed liberal: "The vast majority of discrimination cases are hogwash," is the first thing it quotes her as saying.
"Lawsuits are killing innovation. It's a common story in the world of technology. Any time a company produces a disruptive technology that does something cool, they have to have a legal department that is bigger than their engineering unit to survive, and that sucks for business, sucks for customers, and sucks for the technology industry. I work around lawyers all day and I wish this was a bigger issue with the public.
"Anything that helps customers enjoy TV, movies, or music is a target for lawsuits." (Matt Haughey, PVRBlog, Jan. 21).
Is justice better served if state court judges are selected by appointment, as opposed to popular election? Does it make a difference in "runaway verdict" cases? What about the propriety of judges' raising campaign warchests from lawyers and interest groups with cases before their courts? An excellent discussion of this issue has been in progress at Point of Law between Alex Tabarrok, George Mason University economist and blogger at Marginal Revolution, and David Rottman of the National Center for State Courts. The discussion has now wrapped up and can be read in its entirety at this permalink.
"Be prepared for a lengthy process" in the District of Columbia if the quondam paramour doesn't want to leave, no matter that it's your house. "It's really complicated," says one lawyer. (Sara Gebhardt, Washington Post, Jan. 22). For cases of roommate-entrenchment from Florida and Maryland, see Feb. 19 and Aug. 26, 2004.
Poor dears dept.: "A federal appeals court in New York has upheld the largest antitrust class action settlement in history, along with an award of $220 million to the lawyers who brought the $3 billion case against Visa and MasterCard. ... The class-action attorneys argued that the $220 million in legal fees allowed by the trial court was inadequate and the legal team should have been awarded more than $600 million, but the appeals court disagreed." (see Aug. 22, 2003, Mar. 17, 2004). (Josh Gerstein, "Court Upholds 'Only' $220 Million For Lawyers in Visa, MasterCard Suit", New York Sun, Jan. 18). More on the case: Jan. 29.
Carlisle, Pa.: "A pregnant Newville-area woman charged with murdering her 3-year-old son is asking to be freed from jail because her imprisonment constitutes 'cruel and unusual punishment' for her unborn child." William C. Costopoulos, described as a local defense attorney and constitutional law expert, is quoted in the article commending defense attorney Karl Rominger for "creative lawyering" for raising the argument, but a district attorney says it has "no basis in law". (Matt Miller, "Woman says jail 'cruel,' for fetus", Harrisburg Patriot-News, Jan. 19).
New York's Eliot Spitzer and Connecticut's Richard Blumenthal, both subjects of longstanding coverage in this space, go back quite a way together and share a similar approach toward the duties of the state attorney general. A new story from AP's Hartford bureau is kind enough to quote me saying some not-very-acerbic things about them. (Jan. 23: Stephen Singer, "Friendship another tie between two like-minded attorneys general", Newsday, and Stamford Advocate).
More on that proposal (see Dec. 15) to let New York attorneys take pro bono credit for more activities along the lines of "improv[ing] the legal system", which some think should mean, e.g., lobbying in Albany against liability reform: critics are saying the idea is shaping up as a public relations disaster for the state bar, and threatens to divert resources from the goal of helping poor persons with their legal problems (Thomas Adcock, "N.Y. State Bar Draws Fire With Proposal to Change Pro Bono Definition", Jan. 18); and David Giacalone blasts the idea (Jan. 19). See Monica Finch, "Working group seeks input on expanded definition of pro bono", NYSBA State Bar News, Nov./Dec.
"Video games seem to have two purposes these days: providing entertainment and keeping attorneys busy. Very busy." (Tresa Baldas, "Video Game Industry Explodes With Legal, Regulatory Issues", National Law Journal, Jan. 11). For our past coverage, see, among others, Sept. 26, 2003, May 24, 2004 and this selection of pre-2003 posts.
In a sign of changing times at the Mississippi Supreme Court, the court's justices by a 5-2 verdict threw out a much-criticized $150 million award to six asbestos claimants whom defense attorneys said were hardly sick at all (Feb. 23, 2004). "The Holmes County jury awarded identical amounts of $25 million each to the six, despite 'different work histories, different exposures and different diagnoses,' Justice George C. Carlson Jr. wrote.... Justices Chuck Easley and James Graves dissented without writing separate opinions. Justices Mike Randolph and Oliver Diaz Jr. did not participate." The court had been known for its willingness to approve unusual jury awards, but voters in the Magnolia State recently defeated the trial-lawyer-backed chief justice in his bid for re-election.
The ruling was also a huge victory for the 3M company, whose masks the plaintiff's lawyers had assailed as insufficiently protective (see Sept. 25 for many details), and which had chosen to appeal the $150 million verdict (other defendants settled); the six plaintiffs "testified they hardly had worn the 3M masks", and, wrote Carlson, "no plaintiff provided any evidence that he was exposed to asbestos while wearing a 3M product." (Jerry Mitchell, "$150M injury ruling tossed", Jackson Clarion-Ledger, Jan. 21).
Readers may remember our item last May 18 about the mobile law office van spotted parked outside the emergency room at Brooklyn's Maimonides Medical Center. Now Dr. Steven Davidson, whose EMedConcepts blog ran the original photos of the van, reports as follows (Jan. 19):
ER: Season 11, Episode 177861, 1/20/2005(via SymTym).[ . . . ]
A personal injury lawyer sets up a mobile office outside the ER, infuriating Lewis as he tries to turn dissatisfied patients into clients.
[ . . . ]
It turns out that the post on the Mobile Lawyer who showed up at our hospital and ER last spring caught some notice in the blogosphere. Overlawyered picked up the post and I had thousands of hits in a few days. A colleague referred another contact and somehow the story reached the writing staff at the ER production company to appear in the fictionalized version on tomorrow's show [i.e. yesterday's -- W.O.]. Imagine that.
Servers at Giants Stadium in northern New Jersey sold beer to a highly intoxicated patron, so a jury has ordered Aramark, the beer concessionaire, to pay $30 million in compensatory and $75 million in punitive damages to pay for the later acts of the drunkard, who after leaving the game drove off into a catastrophic accident. (Ana M. Alaya, "Jury adds $75 million penalty for beer seller", Newark Star-Ledger, Jan. 20; David Voreacos, "Aramark loses big in lawsuit", Bloomberg/Philadelphia Inquirer, Jan. 20). The plaintiff's lawyer in the case (see Oct. 10, 2003) had asked for damages against the National Football League and the Giants as well, but according to KipEsquire (Jan. 20) those claims were dismissed, or else the award might have been really big. Correction: the jury's compensatory verdict was split $30 million against Aramark and $30 million against the drunk driver; we originally reported that the entire award was against Aramark, but have fixed the references above.
More: New Jersey Law Journal, Jan. 21, reports that the NFL and Giants paid an undisclosed settlement to be let out of the case, though they also prevailed on a summary judgment motion; and it turns out that Daniel Lanzaro of Cresskill, N.J., the drunk driver, drank at a club with friends after leaving the stadium but before getting into the crash. Yet more: AP adds that "The NFL forbids beer sales after the third quarter, and the Giants close beer concessions at the start of the third quarter. The stadium also mandates that fans can buy only two beers at a time, but the Vernis' lawyers contend that Lanzaro sidestepped that rule by giving the vendor a $10 tip and was allowed to buy six beers." And according to the New York Post, "Giants Stadium officials intend to aggressively monitor tailgating and drinking" (emphasis added) in the aftermath of the verdict. Update: Feb. 2.
In suburban Milwaukee, 17-year-old Peer Larson wants to be in teacher Aaron Bieniek's honors pre-calculus class, but isn't happy about the homework assignments Mr. Bieniek required students to do over the summer. So he and his father are suing Mr. Bieniek, various school officials, and the Whitnall School District, saying summer homework assignments shouldn't be allowed. (Jamaal Abdul-Alim, "Homework during summer vacation prompts lawsuit", Milwaukee Journal-Sentinel, Jan. 19). Update Mar. 15: judge dismisses suit.
Sued if you do dept.: "A former Inglewood police officer who was fired for punching a black teenager and slamming him against a patrol car was awarded $1.6 million Tuesday by the jury in a discrimination lawsuit he and his partner brought against the city. ... A bystander videotaped [Jeremy] Morse in July 2002 punching handcuffed Donovan Jackson in the head and slamming him onto a patrol car in Inglewood, just south of Los Angeles." National publicity followed, as did protests in the heavily minority city, and the city eventually fired Officer Morse and disciplined other officers. On Tuesday a Los Angeles jury agreed with Morse's suit contending that he would not have been lost his job had he been black. It also awarded $810,000 to another white officer, Bijan Darvish, who is still with the Inglewood department but was suspended for ten days in connection with the incident. (Chris T. Nguyen, AP/Wired News, Jan. 18).
The 2002 incident had led to the filing of criminal charges against both Morse and Darvish; juries deadlocked in two trials of felony charges against Morse, and acquitted Darvish on a charge of filing false police reports. Prosecutors eventually dropped charges against Morse. City mayor Roosevelt Dorn called this week's verdicts outrageous, questioning why a 10-day employee suspension would be considered to be worth $800,000. ("Taped Punch Costly to City", Los Angeles Times, Jan. 19; Matt Krasnowski, "Inglewood police officers get $2.4 million jury award", Copley/Torrance Daily Breeze, Jan. 20).
...as Paul Winston, editorial director of the magazine Business Insurance, observes ("Making a Case for Tort Reform", Business Insurance, Jan. 17).
A lawyer at Baron & Budd thinks the funds' managers should have been grabbier about money. (Jonathan D. Glater, "Suits Contend Mutual Funds Fail to Collect in Settlements", New York Times, Jan. 19). More commentary on suit: Securities Litigation Watch, Jan. 25 (via 10-b5 Daily).
"The stock market is not eager to fund this capital-intensive, risk-burdened, lawyer-strafed industry. ... 40 years of lawsuits and heavy-handed regulation have made the bizjet industry hyperconservative." (Rich Karlgaard, "Digital Rules: Cheap Jet Update", Forbes, Jan. 10). For more, see our aviation page.
Over the past year journalist Stephanie Mencimer, a frequent contributor to such publications as Mother Jones and the Washington Monthly, has written a series of articles intended to rebut what she calls "The Myth of the Frivolous Lawsuit". In the course of these articles, Mencimer assails a wide range of writers, publications and institutions that have taken a visible public role criticizing excessive litigation, myself and this site included. Her research often seems to consist of little but the uncritical recycling of allegations circulated by the Litigation Lobby, some of them fifteen or twenty years old and many of them both baldly inaccurate and nastily ad hominem in tone.
I don't make it a practice to respond to Mencimer's writings, but the distinguished legal journalist Stuart Taylor, Jr., who writes an influential column for National Journal and contributes to Newsweek, was outraged by her attacks on his work in an article she wrote for the October Washington Monthly and took the time to craft a lengthy, devastating point-by-point rebuttal. He sent it on December 16 to the editors of the Washington Monthly including editor-in-chief Paul Glastris.
Remarkably, in the month since then, the Washington Monthly editors have neither posted the letter for their readers' benefit nor made any attempt to rebut it. Now Taylor has generously consented to let me post his letter here. Readers can draw their own conclusions about how much of Mencimer's credibility is left standing after his thorough dissection -- and about what it means for the Washington Monthly's reputation that it seems intent on stonewalling on her behalf. Update Feb. 16: Washington Monthly and Mencimer reply.
His column of a week or two back, on liability reform, is well worth a read and was kind enough to quote me ("Tort reform important to U.S. future", Jan. 6).
Our sister site includes regular commentary on workplace law issues. Among recent topics: the "earthquake" in employment law occasioned by courts' more favorable attitude toward employee class actions; mote vs. beam on law firms' "gender imbalance"; litigating pensions into oblivion; another employee-misclassification settlement; and overtime class actions.
It seems wayward scion Robert F. Kennedy, Jr. wants to be Spitzer's replacement (Jonathan P. Hicks, "Only in New York: Kennedys, Cuomos and Voters, Oh, My", New York Times, Jan. 18). Well, this should be entertaining, at least.
On our letters page, topics this time include: a high school hockey referee gets hit by a puck, and then invited to partake of a lawyer's services; religious proselytizing; Rosa Parks's $5 billion suit against hip-hop musicians; and what English lawyers think of their Law Society's move to permit referral fees. As in previous months, we've left comments open on letters, but expect to close inactive threads within a few days given the high prevalence of comment spam.
"Lawyers who recently won a very big public-interest lawsuit to make San Francisco schools more accessible to the disabled apparently hope that the case will produce some very big benefits for themselves as well -- like $9 million in fees....
"Jose Allen, a partner at the San Francisco firm Skadden Arps, is asking for $810 an hour.... Allen is a local partner of the giant, New York-based Skadden Arps firm -- whose Web site touts its commitment to pro bono law work." City officials are protesting the fees as exorbitant, but lawyers say the city can if necessary sell off surplus property to pay the bill. (Phillip Matier and Andrew Ross, San Francisco Chronicle, Jan. 17).
Philip Howard's Common Good organization has announced (Dec. 16) its second annual Gatekeeper Awards for judges who rule inappropriate litigation out of court. (For the first round, see May 12, 2004). Winners this year include:
* An Indianapolis judge who ruled against an attempt to sue a cell phone company over an accident that a driver got into while using a cell phone;
* A New Mexico judge who, citing the privileges arising from the constitutional separation of church and state, refused to allow a surviving family to sue a Roman Catholic priest over allegedly insensitive remarks at a funeral which they said implied that the deceased was headed for Hell;
* A New Jersey judge who refused to allow a suit for negligent parental supervision after a five-year-old boy accidentally collided with and injured an sixteen-month-old girl at a block party;
* A Connecticut Supreme Court judge who wrote an opinion rejecting the doctrine of "self-compelled publication" in employment law, under which dismissed workers sue over injury to their reputation arguing that, whether or not their former employer has said anything damaging about them to outsiders, they have been obliged to spread the defamatory allegations themselves in the course of explaining themselves to potential future employers (see Aug. 10, 1999).
Fearing ridicule, the Blair government has backed off a clause of an animal welfare bill "which would have outlawed the use of any animal as a competition prize", and which was largely aimed at the popular practice of awarding a goldfish in a plastic bag as a prize at carnivals. "The scientific jury is still out on fish stress, with one study suggesting goldfish never get bored because their memories are too short to recall what it was they might have been bored about." (Martin Wainwright, "Labour gets cold feet over ban on fairground goldfish", The Guardian, Jan. 15).
California's s. 17200, while handy in kneecapping private businesses which try to defend themselves in public controversies, can't be used to silence speech by government: "An animal rights group's challenge to a 'Happy Cows' advertising campaign by a state advisory board was rejected by a California appeals court in San Francisco today. The Court of Appeal said that a government entity can't be sued for false advertising under the state's Unfair Business Practices Act." ("Animal rights group loses lawsuit against 'Happy Cows' commercial", San Mateo County Times, Jan. 12; Mike McKee, "PETA Loses Suit Over California Cow Ads", The Recorder, Jan. 13)(see Nov. 30). Update Apr. 23: California Supreme Court denies review.
"A big game hunter mauled by a lion within seconds of shooting the charging animal has no claim against a bullet manufacturer for defective design or failure to warn, a federal judge in Minnesota ruled Nov. 18 (Rohwer v. Federal Cartridge Co., D. Minn., No. 03-CV-2872, 11/18/04)." ("Big Game Hunter Fails to Bag Expert Testimony of Defect, Causation", BNA Product Safety & Liability Reporter, Dec. 20; KeepAndBearArms.com). See Apr. 25-27, 2003.
Trouble for that no-blush, high-gloss, invisible-foundation antitrust class action (see Dec. 3 and links from there): at a two-hour hearing, federal judge Saundra Armstrong declined to approve the deal in its present form, saying "she agreed with the broad outlines of the settlement but was troubled by the details of how such a large volume of free [makeup and perfume] would be distributed". Josh Gerstein of the New York Sun has a report ("Antitrust Suit Over Pricing of Cosmetics Hits a Snag", Jan. 12). Update Mar. 14: judge approves settlement.
Those two Long Island men who say they were arrested for telling lawyer jokes at a Nassau County courthouse (see yesterday's post) were soon deluged with offers by lawyers to represent them for free. Reports Newsday:
"Barbara Bernstein, executive director of the Nassau chapter of the New York Civil Liberties Union, said she found the arrests "bewildering" and she called the men yesterday to determine whether the organization could help. "It's just bewildering and preposterous that they should be arrested for telling lawyer jokes," Bernstein said. "What's the violation of law here?"(Zachary R. Dowdy, "Lawyers offer help after pair's anti-lawyer joke arrest", Newsday, Jan. 13). The two men, Harvey Kash and Carl Lanzisera, have now accepted an offer of representation by radical attorney and New York radio personality Ron Kuby. ("Kuby takes jokers' case", Jan. 14). Further update: Jan. 30.
"In the last several years, patent lawyers have flocked to Marshall, a small northeastern Texas town of 25,000, because of its speedy court process, patent-enthusiastic judges and juries considered ideal for hearing intellectual property cases. This year alone, the court has seen 59 patent cases, more than triple the total in 2003, which saw just 14 patent suits." Intel made a $150 million payout after adverse rulings by a Marshall judge, and Cisco is currently being sued in what plaintiff's lawyers hope will be a big-payout case.
Among those who defend the venue against critics is Charles Baker of Houston's Porter & Hedges, who concedes "that some defense attorneys are afraid to try cases there because of its pro-plaintiff reputation, which he disagrees with. He said that the [court's] rocket docket also turns off some defense lawyers who feel pressured to produce evidence quickly, leaving little time for preparation." Curiouser and curiouser: "Baker said that Marshall's large elderly population also provides a good jury pool for intellectual property cases. 'There are a lot of old people who don't have a problem with sitting weeks at a time and listening to complicated issues,' Baker said." (Tresa Baldas, "Texas IP Rocket Docket Headed for Burnout?", National Law Journal, Dec. 28)
For a very different view of the reasons for Marshall's popularity, check out M. Craig Tyler (Wilson Sonsini), "Patent Pirates Search for Texas Treasure", Texas Lawyer, Sept. 20 (PDF): "Juries in East Texas, unlike those in Houston, Dallas or Austin, are much less likely to have a member with any technical training or education, which exacerbates the problem from the defense perspective, but makes East Texas federal courts an attractive venue for would-be plaintiffs, who know that the jury will, instead, gravitate toward softer or superficial issues that are difficult to predict." The result is to facilitate the activities of what Tyler calls "patent pirates": enterprises that exist to file patent suits rather than to manufacture products, and which benefit from asymmetrical costs of litigation (discovery in a patent case can cost the manufacturer-defendant a million dollars or more, while the plaintiff license-holder may have few or no documents worth discovering).
According to Tyler, a "simple, nonspecific complaint", which need not identify any infringing products sold by the defendant, "has a nuisance value of a few hundred thousand dollars the minute it is filed and served." Tyler's outspoken article in turn drew a response: Michael C. Smith, ""Patent Pirates" Only Exist in Neverland", Texas Lawyer, Oct. 10 (PDF).
It happened at the First District courthouse in Long Island: Nassau County court spokesman Dan Bagnuola says Harvey Kash, 69, and Carl Lanzisera, 65, of the gadfly group Americans for Legal Reform, were charged with disorderly conduct because they were "being abusive and they were causing a disturbance," while Kash and Lanzisera said all they were doing was telling a lawyer joke (the "his lips are moving" one) while standing in line to get into the courthouse. "The pair said that for years they have stood outside courthouses on Long Island and mocked lawyers." An attorney reported them to the guards. ("Pair arrested for telling lawyer jokes at Long Island courthouse", AP/Newsday, Jan. 12; L.A. Times; South Florida Sun-Sentinel). Eugene Volokh has some analysis of the First Amendment issues. More watch-what- you-say- about-lawyers stories: Dec. 23 and links from there. Updates: Jan. 14, Jan. 30.
A judge has rejected a lawsuit by 94-year-old lottery winner Louise Outing of Everett, Mass., seeking to force the Massachusetts Lottery Commission to suspend its rule that lottery jackpots get paid out in installments over 20 years; she wanted it paid as a lump sum in view of her advanced age. The lottery's executive director pointed out that the rule is printed on the back of all bet slips. A judge also noted that there are companies that will pay lottery winners a lump sum in exchange for the right to collect the twenty-year stream of payouts. (David Weber, "Judge nixes quick cash for elder lotto winner", Boston Herald, Dec. 31; "Lottery winner, 94, loses in court", AP/Boston Globe, Dec. 31; "Massachusetts Judge Denies Demand for Lump-Sum Lottery Prize Payment", Dec. 30). The maxim Brian J. Noggle derives from the woman's unsuccessful suit, in a post at his blog: "Rules are made to be litigated". More lottery litigation: Mar. 26, 2004, May 20-21, 2002, and, a bit farther afield, Jun. 28, 2004.
"The 11th U.S. Circuit Court of Appeals has upheld a lower court's decision to slash White & Case's legal fee in a bankruptcy-related case from $5.5 million to $1.8 million, criticizing the firm's fees as excessive." The prominent law firm "made the fee request in 1999 in connection with its representation of 25,000 retirees from the textile manufacturer St. Louis-based Monsanto, which later spun off into the company Solutia, also of St. Louis. Solutia subsequently filed for bankruptcy and sought to alter Monsanto retirees' benefits." White & Case was asking as much as $370 an hour for some of its lawyers' time, although one of the nation's most prominent plaintiff's lawyers, Frederic Levin of Pensacola, Fla., was contenting himself with $250 an hour for his work in the same case. (Julie Kay, "White & Case to Get Less Than Half Its Bill for Bankruptcy Case", Miami Daily Business Review, Jan. 10). More on bankruptcy fees: Sept. 22, 2004 and links from there.
A reminder: I'll be among the panelists at a half-day conference on Capitol Hill tomorrow sponsored by the Manhattan Institute and examining the lessons of the 9/11 compensation fund. Attendance is free, but you must register in advance here.
Thanks again to Caleb Brown, who's guestblogged here over the past week. His regular posts can be found at catallaxy.net.
"Two of the most prominent personal-injury law firms in Philadelphia have gone to war with each other over a star litigator, a portfolio of clients, and tens of millions of dollars in potential fees. The law firm of the late James E. Beasley has accused a rival firm, Kline & Specter, of luring away one of its top litigators, Andrew J. Stern, and improperly soliciting clients from the Beasley Firm." (L. Stuart Ditzen, "A battle of firms for fees, clients", Philadelphia Inquirer, Jan. 12). Both firms make repeated appearances in the archives of this site.
That's the disclaimer buried in small print toward the bottom of Apple's page explaining its new music-playing gadget. It isn't, of course, a serious disclaimer, merely serving to call attention to the device's minute dimensions (smaller than some packs of gum) and stir up buzz (as with this very post).
Over at Point of Law, a new featured discussion has begun on the problem of state judicial selection, and what if anything to do about the problem of judicial campaigns funded (often very richly) by lawyers and litigants with interests before the courts in question. Discussing the topic are Alex Tabarrok of George Mason University, whose work (PDF, with Eric Helland) on the relation between judicial selection and tort awards has been widely talked about (he's also a founder and principal of the excellent blog Marginal Revolution), and David Rottman, Principal Court Research Consultant the National Center for State Courts (more on panelists). It promises to be a highly illuminating week.
Not that you need me to tell you not to go to Yemen, but on December 26, the American Embassy in Sana'a advised US citizens of a possible threat against the Aden Hotel, located quite near where the USS Cole was bombed in 2000. Most heeded the call and left the hotel or cancelled reservations. The Aden Hotel, upset at the lost of business, responded in the American language: a lawsuit, claiming $500,000 in damages. "The warning period ended and nothing bad occurred, so this indicates that such rumors have no place of truth," General Manager Fadhl Al-Hilali said. The Yemen Times takes a break from cartoons calling for the murder of hook-nosed cannibal Jews (paging Charles Johnson) to cover the story superficially. (Ridhwan Al-Saqqaf, "Aden Hotel files suit against US Embassy", Yemen Times, Jan. 6-9; "UK embassy to remain closed until Tuesday", Yemen Times, Jan. 10-12; Incessant Rant blog).
More seriously, elsewhere in Yemen, the Southeast Sana'a Court sentenced journalist Abdul-Karim Sabra to two years in prison; Sabra, the editor-in-chief of the newspaper Al-Hurriah ("Freedom"), had had the newspaper's license revoked when he changed the logo to mark the paper's 25th anniversary without permission. ("Police pursue publisher of banned newspaper", Yemen Observer, Jan. 8; IFEX press release, Oct. 28). Remember that next time Bill Maher complains that he's being censored because he's only making a million dollars a year hosting a cable tv show.
From Reuters coverage of the Charles Graner court-martial:
"Don't cheerleaders all over America form pyramids six to eight times a year. Is that torture?" Guy Womack, Graner's attorney, said in opening arguments to the 10-member U.S. military jury at the reservist's court-martial.Low Culture gets reaction from the editor of American Cheerleader magazine.
The Supreme Court denied certiorari on an appeal of the Eleventh Circuit's decision that let stand a Florida law that forbids gays from adopting. Professor Volokh comments.
A French researcher, Guillaume Tena, found several holes in the Viguard anti-virus program that a malicious hacker could have exploited to nullify the software's protections. What did he do? He published his findings.
The company responsible for the holy software, Tegam, sued for copyright violation. The company is asking for a 6000 euro fine and a four month jail term. A related civil case asks for 900,000 euros in damages.
The researcher's website says he "showed how the program worked, demonstrated a few security flaws and carried out some tests with real viruses. Unlike the advertising claimed, this software didn't detect and stop ‘100 percent of viruses’."
From the ZDNet Australia story:
According to French security Web site K-OTik, Tena had technically broken copyright laws because his exploits were "not for personal use, but were communicated to a third party"." Security researcher to be jailed for finding bugs in software?", ZDNet Australia, Jan. 11.However, K-OTik, which regularly publishes exploit codes, claims that the ruling could create a precedent so vulnerabilities in software, however critical, could not be declared publicly without prior agreement from the software publisher.
K-OTik’s editors say the ruling is "unimaginable and unacceptable in any other field of scientific research".
...and so a jury has ordered the trucking company, Auction Transport Inc., to pay $22.5 million over the resulting injuries to a young passenger in the accident, which occurred at rush hour on Kansas City's I-435. Mary Coleman's car, allegedly sideswiped by a third vehicle, had careened in front of the truck, but attorneys argued that the truck driver had been "driving too fast in congested traffic and not watching the road." The jury found the trucking company responsible for just less than half the fault of the accident -- a greater share of fault than the allegedly sideswiping driver -- and Coleman for hardly any of it; the application of Missouri's joint and several liability rule ensures that the company will be on the hook for nearly the entire amount. Good thing the truck had not swerved unpredictably into the car's path to cause the accident -- then it would have been more the fault of the car than of any other party, right? (Joe Lambe, "Crash victim awarded millions", Kansas City Star, Sept. 25). More: CoyoteBlog comments.
Frontiers of age discrimination: Marian P. Opala, a justice of the Oklahoma Supreme Court, has gone to federal court to sue all eight of his colleagues charging age bias. Members of the court select one of their number to serve as chief justice, and for years the seat has rotated automatically among members, but lately, as Opala's turn was drawing near, the court voted to change the rules to adopt a different selection method. Eugene Volokh called the justice's equal protection claim "very, very weak" and said it was annoying to see an official of a state court seek the intervention of a federal court against the authority of his own. (Adam Liptak, "Oklahoma Judge, 83, Files Bias Suit Against Colleagues", New York Times, Jan. 5).
Maybe he's too modest to mention it here, but over at our sister website, Ted has been on a roll with several devastating posts correcting fallacies that have circulated during the past week's intense news coverage of liability reform:
* The George Soros-sponsored, David Brock-run media gadfly organization, Media Matters for America, recently criticized the Washington Post for running coverage that was not (to its taste) sufficiently critical of medical malpractice reform. Trouble is, as Ted shows, Media Matters itself blundered into whopping errors on the subject, badly misrepresenting the views of the Congressional Budget Office (CBO). "This is what MMFA gets for relying on ATLA fact sheets instead of primary sources."
* Pointing to evidence that payouts by 98 Massachusetts doctors accounted for more than 13 percent of one year's malpractice payouts in the state, the New York Times concluded that cracking down on bad doctors could greatly help the malpractice crisis. But the numbers announced in the study warrant no such conclusion;
* The Association of Trial Lawyers of America is out with a supposed fact sheet on medical malpractice, which (no surprise) Ted finds to be full of gross distortions. Equally embarrassing, he catches Illinois Democratic Congresswoman Jan Schakowsky posting on her official website a huge chunk of the lame ATLA argumentation, cut and pasted without acknowledgment of its interest-group origins. (Allen Adomite at Illinois Civil Justice League has more).
* Finally, Ted discovers the Alabama Trial Lawyers Association claiming that a profitable year in the property insurance business is reason to doubt that there's a crisis in the liability insurance business.
At Forest Avenue and Sixteenth Street in Des Moines, two miscreant youths who'd been riding with friends in a rented 1999 Chevy Blazer began shooting off a large quantity of fireworks at persons and vehicles in the neighborhood. What happened next is somewhat muddled by the contradictory accounts of various witnesses, but involved the detonation of the substantial trove of fireworks in the Blazer's cargo area, severely injuring several of the car's occupants. Last month the Iowa Supreme Court ruled against a lawsuit seeking to make Enterprise Rent-a-Car pay for the injuries through vicarious liability, saying the accident could not reasonably be attributed to the driving of the young woman who'd rented the vehicle. (Wells v. Whitaker and Enterprise). Random Mentality (Dec. 10) has more.
Another two defendants pleaded guilty in the Fayette, Miss. fen-phen fraud case (see Nov. 14, Oct. 20 and links from there), including one who'd previously been vocal in proclaiming her innocence. Eva Johnson, 55, "allegedly bought a Jaguar with some of the $2.75 million she helped relatives claim" from makers of the diet-drug combination; she "told [federal judge William] Barbour [Jr.] she takes medication for schizophrenia." (Jimmie E. Gates, "Two more plead guilty in Fen-Phen fraud case", Jackson Clarion Ledger, Dec. 29; "2 charged in Fen-Phen case plead guilty", Dec. 30). Another participant in the scheme, Lillie M. Walker, was sentenced to ten months in federal prison and restitution of $250,000 for her role. (Jeremy Hudson, "Woman sentenced in Fen-Phen scam", Dec. 22).
I was a guest on the Tampa program "Legal Forum" this afternoon, talking about Overlawyered and medical malpractice reform.
Overlawyered's most recent posts on medical malpractice can be found here. You may also be interested in our more academically-inclined sister weblog, Point of Law, which also has a section about medicine and law, as well as two recent roundtables on the subject, including a debate between me and the head of Doctors for Kerry on the Bush malpractice proposal.
For more information on the Florida medical ballot initiatives, see our sister website Point Of Law, May 19, Jul. 20, Aug. 4, Nov. 2 first, second and third posts, Nov. 4, Nov. 5, and also Walter Olson's WSJ piece of Oct. 29.
Host Matt Justine surprised me when he said that Florida medical malpractice payouts had been going down. It turns out not to be the case. According to a November 2002 report by Milliman USA, medical liability losses paid by Florida insurers increased 150% between 1991 and 2000.
In California last month (see Dec. 12) federal judge Edward Rafeedie ruled that perennial ADA plaintiff Jarek Molski is a "vexatious litigant" who runs a "scheme of systematic extortion" by filing mass disabled-rights complaints; Rafeedie also sharply criticized Molski's lawyer, Thomas Frankovich. But that doesn't seem to have cramped the duo's style much: Frankovich says he intends, on behalf of Molski, to "refile a lawsuit against Peachy Canyon Winery within two weeks in state Superior Court, asking for money because the tasting room didn't comply with the ADA when he visited in 2003. 'We've got to get compensated for the work we did to fix it,' Frankovich said. 'We went out and had an expert inspect it, told them what was wrong and tried to get a settlement.'" The winery's lawyer says it is now in compliance with ADA standards, but Frankovich says that wasn't the case in 2003. (Ryan Huff, "Winery will face ADA suit again", San Luis Obispo Tribune, Jan. 5). (& letter to the editor, Mar. 15 (another frequent Calif. ADA filer)).
Larry Ribstein has a commentary (Jan. 6) on the just-announced WorldCom settlement, in which ten of the company's directors, notably including prominent former Georgetown Law School dean Judith Areen, agreed to contribute $18 million from their own personal funds toward the settlement of investors' class action claims arising from the company's giant accounting scandal. Update Jan. 12: following closely on the heels of the WorldCom settlement, Enron directors agreed to a settlement likewise throwing personal funds into the kitty; in this case the semi-celebrity outside director who settled was Wendy Lee Gramm. Ribstein again comments.
I'm scheduled as a guest tomorrow on CNN Saturday Morning (8-9 a.m. Eastern time slot), discussing recent developments in criminal cases such as the overturning of Andrea Yates's conviction (as opposed to civil litigation, my more usual topic)(more on criminal law). And today at around 2:35 p.m. Central I'm scheduled to appear on Madison, Wisc.'s WIBA radio, discussing President Bush's medical malpractice proposals (more on medicine and law).
A man upset by what he saw on NBC's "Fear Factor" is suing the program. He says he threw up after he saw contestants eat (drink?) rats chopped up in a blender. Austin Aitken is a regular viewer of the program and was fine with shows in which contestants ate worms and bugs. He says he's not concerned with actually winning, just sending a message to NBC. His suit asks for $2.5-million. Associated Press, "Rats don't rate with viewer," Jan. 7. From the story:
Aitken, a 49-year-old part-time paralegal, said he wants to send a message to NBC and other networks with the lawsuit. He said he isn't concerned with winning a cash judgment in court.On that note, Eugene Volokh points out the following from an earlier Reuters report: "In a brief telephone interview with Reuters, Aitken said, 'I am not at liberty to discuss the complaint unless it is a paid-interview situation.'" Reuters, "NBC's 'Fear Factor' Sued for Rat-Eating Episode," Jan. 5. Update Mar. 15: judge tosses suit.
Donna Austin, 37 at the time, signed a prenuptial agreement waiving alimony before marrying Craig Austin back in 1989, in what was a second marriage for both parties. Nonetheless, a Massachusetts appeals court has decided that her alimony waiver is "unreasonable" and will not be enforced. A lawyer for Craig Austin says his client plans appeal and says Donna Austin benefited substantially from the division of property assets from the marriage. (David Weber, Boston Herald, Dec. 30). And the New Jersey Supreme Court has been asked to decide whether Craig Caplan, who retired in his 30s with a so-called silver parachute, should be obliged to return to the work force to pay increased child support, thus sparing his ex-wife Sandra the need to dip into her $2.4 million divorce settlement; for more on the "imputed-income" doctrine, see Sept. 18, 2003 (Michael Booth, "In Divorce Case, Early Retiree Gets Tangled in Silver Parachute", New Jersey Law Journal, Oct. 6).
Next Thursday, Jan. 13, the Manhattan Institute's Center for Legal Policy is giving a half-day symposium in Washington, D.C. on "The 9/11 Victim Compensation Fund: Successes, Failures, and Lessons for Tort Reform". The event is at the Hyatt Regency on Capitol Hill and runs from 8:30 a.m. to 2 p.m. (agenda and registration). I'll be on the second of the day's two panels with very brief remarks responding to the primary paper(s). Among notable panelists are Yale Law's Peter Schuck and Robert Reville, director of the Rand Institute for Civil Justice; Kenneth Feinberg, Special Master of the 9/11 Fund, will deliver the luncheon address.
I'll be a guest on 1190 WAMT in Orlando this Saturday, scheduled to appear on "Legal Forum" at about 2:35 p.m. Eastern. Internet streaming is available on their site.
Michigan Lawsuit Abuse Watch's Eighth Annual Wacky Warning Labels is out. (See also 2004 and earlier.) Other highlights include an electric hand blender warning ("Never remove food or other items from the blades while the product is operating") and a scooter that warns "This product moves when used."
Some of the characters who've sued the New York City government in cases previously unremarked on this site:
* The alleged wife-beater who, on being arrested by police, stumbled drunkenly down the stairs and broke his ankle, though he got nothing from a Manhattan jury;
* The legally blind Bronx man who "drove his car into a concrete barrier" and sued arguing that better lighting might have prevented the accident;
* The man who sued for wrongful arrest after being charged with buying a stolen SUV at a city airport parking lot for $75; he claimed in his unsuccessful suit (PDF) that he thought that was a legitimate sale price;
* The "two inmates who shot themselves with a smuggled handgun in their Rikers Island jail cells -- and sued. (A guard was responsible, they argued before a judge kicked out their case.) "
Meanwhile, a 1998 jury award of $76.4 million to remains on appeal; that's the one where "a reputed Bronx gang member [was] left paralyzed by a gunfight with an off-duty police officer. The city argued that the officer only returned fire after the plaintiff shot at him with a Tech-9 submachine gun." (Larry McShane, "Who Do You Call When Someone Says 'Sue the City'? Meet Michael Cardozo", AP/New York Lawyer, Dec. 20). Two other cases won by the city this summer, not mentioned in the article: this excessive-force case (PDF) involving a Bronx man who tried to escape two officers in a high-speed chase (more high-speed chase cases); and this slip-fall accident (also PDF) in which the locus and circumstances of the injury seemed mysteriously to have revised themselves in a manner unfavorable to the city. (More on suits against New York City.)
Ohio workers who got their jobs through a welfare program are suing the state for improper compensation. Example: As part of his welfare benefits, Bruce Smith stripped floors in Youngstown when his knee snapped as he bent to pick up a bucket of water. His attorneys argue he should have received worker's compensation based on his pre-welfare salary, not on his food stamp allowance, according to a state supreme court decision. The state says the ruling "applied to death benefits, not regular workers comp claims."
The welfare program is a tiny part of overall claims. The workers compensation bureau has paid about $6 million for 3,200 successful welfare worker claims to date, compared to about $2 billion last year alone in regular claims, Hicks said.Associated Press, "Lawsuit Alleges Workers Hurt On Welfare Jobs Cheated," Jan 4.The Equal Justice Foundation says the number of potential claims is much higher. In court filings accompanying the lawsuit, foundation attorneys say the figure is over 5,000, citing workers' compensation bureau e-mails.
Smith, 59, went on welfare after he was laid off from his job making bumpers for a General Motors parts supplier. He was injured in April 2003 on a job he received in Mahoning County as a condition of getting $139 in food stamps weekly.
I'm scheduled to be a guest on MSNBC's "Abrams Report" tonight at 6 p.m. Eastern, discussing the impact of litigation on society.
The first three instances I've seen of spam promoting Vioxx litigation crossed my desk Dec. 28. The three emails used different names as the supposed sender, different "word salad" strings ("celandine bolshoi mandamus buckley tetragonal malleable") aimed at baffling spam filters, and different subject lines ("Been hurt by Vii0xx? - Claim #565014", "Make your claim against Vii0xx and Merck - Claim #206614", and "Get what you deserve from Vii0xx and Merck - Claim #4978"). However, all three were evidently from the same sender, since they all contained the same core message: "Merck & Co., Inc. announced a voluntary withdrawal of Vii0xx from the U.S. and worldwide market due to safety concerns of an increased risk of cardiovascular events (including heart attack and stroke) in patients on Vii0xx. If you or a family member has experienced an adverse cardiovascular event after taking Vii0xx, please file your claim at:..." followed by links to one of two (apparently identical) websites at http://www.worldwideteamwork.com/notice and http://www.whereitallhappens.com/notice .
And what of this website to which spam-responders are steered? It contains no ads; it does contain some standard-looking information about the drug recall; but its main purpose appears to be to get persons interested in pursuing Vioxx claims to submit their names and contact information. A subpage (http://www.worldwideteamwork.com/notice/how_to_file.htm) announces, "Simply fill out the form below and a lawyer will immediately contact you to determine whether your claim will meet the necessary requirements." Perhaps the creators of the site believe they can find lawyers willing to pay for leads generated that way, or are already in touch with such lawyers. According to Forbes (David Whelan, "Ambulance Chasing, Web-Style", Dec. 27, at KeepMedia), lawyers are paying up to $15.03 for each clicked-on ad with a Vioxx keyword at Yahoo's search engine, and $30.17 for a "Vioxx heart attack" click.
For the recent controversy over the "Get your million dollars" Vioxx website, which was much more lurid in content but whose proprietor was not alleged to have dabbled in spam, see Nov. 15, Nov. 18 and Dec. 22.
P.S. Reader Keith Williams writes to say that according to a WHOIS search, the web sites www.worldwideteamwork.com and www.whereitallhappens.com, mentioned above, are owned by the same registrant, Riverside News of Ft. Lauderdale, Fla.
Dr. Benjamin Brewer, who writes the Wall Street Journal's "The Doctor's Office" column, discusses the OB shortage caused in Illinois by the medical malpractice problem. Trial lawyers like to blame the insurance industry's investments and "business practices," but the leading insurer in Illinois, ISMIE, has only 3% of its funds in the stock market. (Moreover, ISMIE is a mutual insurer--profits go back to its member doctors. The doctors aren't conspiring to charge themselves too much; ISMIE's rates reflect the payouts it makes in malpractice cases.) Large swaths of southern Illinois and nearly half the counties in the state have no obstetrical hospital services at all. Brewer concludes "it may take a federal law to stimulate the reform process in Illinois, where entrenched proponents of our broken system hold political and judicial sway." ("When a Pregnant Patient Struggles to Find Care", Jan. 4). Our sister site, Point of Law, comments on tomorrow's Presidential visit to Madison County, where Bush will discuss his litigation reform agenda for the upcoming Congress. (Krysten Crawford, "Bush heads to 'Judicial Hellhole'", CNN/Money, Jan. 4; Ryan Keith, "Bush to Highlight Tort Reform in Ill.", AP/Newsday, Jan. 4; Caleb Hale, "Doctors Are Eager To Hear What Bush Will Say About Crisis", The Southern, Jan. 4; Mark Silva, "Bush's tort reform efforts to start at 'judicial hellhole'", Chicago Tribune, Jan. 3).
CasiNO Free Sullivan County, an anti-casino group in New York, has sued to block the introduction of casinos to the area, claiming the casinos will pose a health hazard:
"The cumulative impact from these casinos will negatively affect the health and well-being of residents in the Town of Thompson, Sullivan County, and the entire region," said Rosa Lee, a spokeswoman for the group. "The enormous increase in traffic itself would cause serious air pollution and bumper-to-bumper congestion, resulting in a significant reduction in air quality by the introduction of particulate matter smaller than 2.5 microns, a common cause of serious lung disease, since such particulate matter lodges more deeply into the lungs than do larger ones."Mid-Hudson News Network, "Anti-casino group files lawsuit to block gaming," Jan 4.
Hey folks. I'm Caleb Brown. I work in radio and I do occasional freelance writing. If my blog were a child, social services would have taken her away a long time ago for neglect. I have a dog and I play the banjo. And to answer your questions: Yes, I live in Kentucky and yes, I do drink bourbon. Guestbloggin' commences later today. My thanks to Walter Olson for the opportunity.
City of Heroes, an entry in the "massively multiplayer online game" category pioneered by Sony's Everquest, allows its nearly 200,000 participants to "bring the world of comic books alive" by inventing characters and selecting names, costumes and powers for them; the characters then interact with other players' characters. Some users choose to imitate established comic-book heroes in creating their characters. In November, comic-book publisher Marvel Entertainment sued the site's proprietor. According to Marvel's complaint (PDF, courtesy Electronic Frontier Foundation), "Defendants' Creation Engine facilitates and, indeed, encourages players to create and utilize heroes that are nearly identical in name, appearance and characteristics to characters belonging to Marvel" and the site is responsible for "directly, contributorily and vicariously infringing upon Marvel copyrights and trademarks". Cory Doctorow of Boing Boing, a veteran of online free-speech fights, counters: "Asking City of Heroes to police their users to ensure that they don't replicate Marvel characters is like asking a school to police its students to make sure none of them show up for Halloween in a homemade Spider-Man costume." (Daniel Terdiman, Wired News, Nov. 16; Fred von Lohmann, "Et tu, Marvel?", Law.com, Dec. 3 (contemplating a future offense of "pretending without a license")).
What, you still haven't subscribed to our free periodic email newsletter? The latest installment went out this afternoon to its c. 2300 subscribers, covering the last five or so weeks' worth of postings in telegraphic, occasionally droll style. It's a great way to keep up with items you may have missed; when you're finished, pass on the email to let a friend know about the site. Sign up today, right here.
An all-new guestblogger will be joining us tomorrow. For full details, check back then.
Connecticut:
A 21-year-old New Haven man who led Hamden police on a high-speed chase on his all-terrain vehicle before crashing into a utility pole last summer wants the town to pay his medical bills.(Fred Musante, Cops blamed for ATV crash, Hamden Journal, Dec. 29). More high-speed chase suits: Feb. 18 and Apr. 27, 2004; Sept. 21, 2003, etc.Britt Martin, of 75 George Street, claims that Officer Stephen DeGrand and four other unidentified officers were responsible for his injuries because they violated a Police Department policy to discontinue high-speed pursuits when the risk exceeds the need for immediate apprehension....
DeGrand said the suspect went through red lights and made illegal turns while driving well in excess of the speed limit during the chase.
Coming full circle: in Florida, the family of the late Barbara Masterson is suing West Boca Medical Center because hospital staff was unable to locate a neurosurgeon willing to come to the scene to perform life-saving surgery after a stroke. "The incident occurred in February, when Palm Beach County neurosurgeons were refusing to perform emergency services for fear of skyrocketing malpractice costs. The Mastersons' lawyer, Gary Cohen, said the hospital was aware of the unavailability of neurosurgeons for emergency work "and should have never taken her in." (John Murawski, "West Boca Medical Center sued over woman's death", Palm Beach Post, Dec. 23).
Updating our Aug. 8, 2003 post (and links from there): "Lawsuits seeking more than $400 billion in damages from US corporations for victims of apartheid in South Africa were tossed out [Nov. 30] by a federal judge who said the claims bordered on the frivolous." (Boston.com/AMABoston, Dec. 1; David Teather, "Apartheid court case dismissed", Guardian (UK), Nov. 30; Mark Hamblett, "Businesses Win End to Multiple Apartheid Suits", New York Law Journal, Dec. 1). The South African government, along with former South African president Nelson Mandela, had strongly opposed the suits. (Jonathan Ancer, "Activists hit out at 'reactionary' government", Independent Online (South Africa), Dec. 7). The U.S. Council for International Business was of course pleased. Brandon Hamber has a weblog and site supporting the apartheid reparations claims.
"The Nevada Supreme Court recently reversed a jury verdict for $3.3 million against two lawyers for alleged malpractice in their representation of a quadriplegic man." Attorneys W. Randall Mainor and Richard Harris (see "Crumbs from the Table", Feb. 8-10, 2002) had settled Jason Nault's medical malpractice claim for $17 million, of which only $2.5 million went to Nault himself, the rest going to "his wife, whom he has since divorced, the lawyers [who got $6.8 million] and the couple's daughter." The high court "concluded that the evidence didn't support the damages." ("In Brief", National Law Journal, Dec. 13, not online as free link).
