February 2005 Archives

Ted has the latest on the unfolding silicosis-diagnosis scandal over at Point of Law. (The quoted phrase is from federal judge Janis Graham Jack, reacting to revelations about doctors' mass misdiagnosis of workers.) Also, umpteen more posts about medical malpractice -- lots of reaction is still coming in to our critique of the New York Times on the subject.

Consider scenic New Mexico, which runs an extra-long statute of limitations and thus will welcome claims extinct elsewhere. The tactic didn't work, however, for ex-Congressional wife Carolyn Condit, who went there to sue USA Today to escape other states' limits on stale claims. Unfortunately for her case, she could offer no evidence that the allegedly libelous article had circulated in N.M., "since only the first edition of USA Today was distributed in the state and the story appeared only in the second edition," as AP noted; a federal judge accordingly threw out her suit last August for lack of jurisdiction ("Judge dismisses libel suit by wife of Gary Condit", AP/North County Times, Aug. 5, via CalBlog, Jan. 14 and Jan. 26). For New Mexico forum-shopping by the plaintiffs in the "Dazed and Confused" case, see Ted's Oct. 12 post (also Dec. 8). For more details on the lack of connection of that case to New Mexico, see the memorandum of defendants in support of motion to dismiss (courtesy Courthouse News (PDF)).

It's a tale of malzoning and government misuse (Julia Vitullo-Martin (Manhattan Institute), "Blight by law", New York Post, Feb. 28).

A federal jury in Detroit has awarded $300,000 in punitive damages and $14,209 in actual damages to Joyce Grad, saying the Royalwood cooperative apartment association in suburban Royal Oak violated her rights under the federal Fair Housing Act when it declined to waive its no-pets policy to permit her to bring in an emotional-assistance dog. Grad suffers from mental and emotional ailments that include severe depression. One of the services on which Ms. Grad has come to rely on the dog is in making sure she gets up in the morning: "I've trained her that if I don't get up by 7, she is to go to [the] door and bark until help arrives." Perfect for the neighbors! (David Ashenfelter, "Disabled woman's dog has its day", Detroit Free Press, Feb. 23). For more on the steady expansion of demands that legally protected status be accorded to "emotional-assistance" animals, see Oct. 25 and Dec. 2, 2004. For more cases in which disabled-rights-in-housing have led to noisy results, see Aug. 21-22, 2000 and Apr. 5-7, 2002.

"A federal judge in North Carolina has thrown out all attorney malpractice charges exchanged in a free-for-all battle in which a woman hired a new lawyer to sue her previous two sets of attorneys and those law firms accused the new attorney — and each other — of negligence." (Frank Reynolds, Professional Liability Litigation Reporter, Feb. 24).

Roundup of fallout from the Heikkinen $17 million verdict. Sam Heldman writes me to defend the decision and express concern that I did not adequately convey that the jury found that Morse was acting on behalf of the church; I think that's inherent in the jury's verdict and my use of the term respondeat superior, but now readers have that explicit statement. A follow-up newspaper article quotes: "'The purpose of the [Legion of Mary], and no one really disputed this, was that it was to assist the clergy in the work of the clergy,' said Don Prachthauser, Heikkinen's attorney." (But isn't that common goal true for any religiously-oriented volunteer organization?) Philip Howard and the jury forewoman are also interviewed about the size of the damages award for an elderly man. And a Baptist notes that the hierarchical structure of the Catholic Church makes it especially susceptible to deep-pocket searches. (Derrick Nunnally, "$17 million verdict has many concerned", Milwaukee Journal-Sentinel, Feb. 23). Jon Coppelman explores the ramifications for workers' compensation; Professor Martin Grace comments. There are still post-trial motions and an appeal to be had, and settlement negotiations are likely.

Also, I've updated our Feb. 22 post on Drypen v. Oakland County and its $4 million settlement with a couple of more recent press accounts that have previously unreported details about the defense's side of the story.

The scene in certain counties of Southern Illinois shortly before the signing of the Class Action Fairness Act: "Class-action business was busy last week in Madison and St. Clair counties in anticipation of the new law. Thirty-four class actions were filed in Madison County, and 51 in St. Clair County, with some lawyers making sure Friday morning to get their suits stamped before the Bush signing." (Paul Hampel, "Where the suits are", St. Louis Post-Dispatch, Feb. 20).

New York City shelled out a record $570 million last year to resolve personal injury claims against its taxpayers, up $12 million from last year. Medical liability claims made up nearly a third of the total. A fast-growing variety of payouts were those over schoolyard beatings and other violence on school premises, for which the city paid $6.9 million, bringing the three-year total for that category to $17.7 million. ("City paid $570 million in personal injury lawsuits in 2004", AP/Newsday, Feb. 20; David Andreatta, "School Suit $$ Soars", New York Post, Feb. 25). More on NYC liability: Jan. 26, Jan. 6 and links from there, Jul. 31, 2003 and many others.

A jury found Chrysler about 45% responsible for an accident where "an inexperienced 17-year-old driver fell asleep at the wheel and crashed into the Mohr's vehicle at a devastatingly high speed." Said Steve Hantler, assistant general counsel of DaimlerChrysler Corp, "To impose any punitive damages in these circumstances, let alone $48 million, is an especially egregious miscarriage of justice." Plaintiffs claimed the Dodge Caravan was unsafe in offset collisions; Chrysler notes that the Jeep overrode onto the minivan, so IIHS offset testing was irrelevant, aside from the fact that the Caravan doesn't perform worse than other minivans in that test. Plaintiffs also blamed a second death in the accident on a faulty seatbelt, which Chrysler denies. Press accounts are still too sketchy to tell you more; we'll have a follow-up down the line. (Bloomberg, Feb. 24; Mohr v. Daimler Chrysler Corp., No. 03-2433 (Shelby County, TN)).

"Lawyers for the estate of Porchia Bennett blame the city for the 3-year-old child's death at the hands of abusive caretakers in a squalid South Philadelphia row house. ... [I]f the estate's lawsuit is successful, some taxpayer money could go to the dead child's allegedly abusive mother, an often-homeless drug abuser who left Porchia with the child's alleged killers a year before Porchia was slain." Tiffany Bennett, the mother, is awaiting trial on charges of child endangerment. Also standing to benefit financially will be Lester Trapp, the girl's father, who hadn't seen her since she was a year old, according to a lawyer. Both Trapp and Tiffany Bennett "are listed as 'beneficiaries' of the estate in documents filed with the Register of Wills office." The suit was filed by attorney Alan Denenberg, whose partner Thomas Bruno was appointed administrator of the child's estate last year. (Jim Smith, "Suit faults city, DHS for Porchia's death", Philadelphia Daily News, Feb. 25; Jill Porter, "Family's lawsuit over tot's death is an obscenity", Philadelphia Daily News, Feb. 25)

And according to Beldar (Feb. 20) the complainant's lawyers (who naturally are planning to sue the comedian) have been reduced to blowing smoke about a purported prosecutorial conflict of interest that's nothing of the kind.

A prominent busybody group filed suit yesterday demanding that food preparers be made to obtain permission from federal regulators before adding salt to food. In its lawsuit against the Food and Drug Administration, the nosy, hectoring Center for Science in the Public Interest (CSPI) says the savory crystals should be categorized as a regulated food additive; salt is currently, like many other long-used substances, grandfathered into the unregulated "Generally Recognized As Safe" (GRAS) category. (Maggie Fox, "Salt Should Be Regulated Food Additive, Group Says", Reuters, Feb. 24). For more on CSPI, see Sept. 19, 2003.

After bassist Bob Daisley and drummer Lee Kerslake filed lawsuits demanding royalties over their performances in two Ozzy Osbourne albums, "Blizzard of Ozz" and "Diary of a Madman", recording executives remastered the albums to strip out their performances and replace them with performances by Robert Trujillo and Mike Bordin for the 2002 reissue. Now Illinois fan Anthony Wester has sued Sony Entertainment and Epic Records, saying he felt misled and cheated to learn of the substitution, and his lawyer wants class-action status for the suit. (Steve Patterson, "'Remastered' Osbourne albums a snow job, fan's suit charges", Chicago Sun-Times, Feb. 21; "Bassist, drummer cut from Ozzy album remixes, fan sues", AP/AZCentral.com, Feb. 23).

I've just posted at Point of Law the second and I assume final installment of my long critique of Tuesday's New York Times article on medical malpractice insurance. The Times coverage contended -- in assertions picked up and repeated by many a credulous blogger -- that the premium levels charged to doctors bear no relationship to payouts or to legal limits on damage recoveries. Part I of the critique, again, is here.

While you're at it, you really should be reading Point of Law every day if you have any interest in the more serious side of litigation and its reform, or just want to follow Ted's or my writing (we both post regularly there). Among the topics you would have learned about recently: the difference, among civil litigators, between "chicken catchers and chicken pluckers"; Colorado lawmakers may restore to homeowners the right not to be sued over "open and obvious dangers" on their property; FDA panel recommends letting Vioxx back on market; a new study of class actions by Yale's George Priest; medical malpractice law in the U.K.; Sen. Biden praises "bottom-feeders"; silicosis diagnosis scandal; a new legal ethics blog; tons more stuff on the Class Action Fairness Act, including this, this and this; problems with that much-ballyhooed report on medical costs supposedly causing half of consumer bankruptcies; and the Wall Street Journal on loser-pays.

Just as legal rules aimed at sparing female and minority workers the risk of a "hostile environment" can lead to the suppression of workplace jokes, banter and expressions of political or religious opinion deemed potentially hurtful to feelings, so the inclusion of "veteran's status" as a protected category can encourage the elimination of workplace speech that might offend the group in question -- which in this case could lead to restricting speech critical of war or the military. Eugene Volokh explains (Feb. 8) and Beldar comments as well (Feb. 8).

The Tulsa, Okla. newspaper has sent a cease-and-desist letter to blogger Michael D. Bates of Batesline for "inappropriately link[ing his] website to Tulsa World content" and insisted that he at once remove "unauthorized links to our content" (his posts on the subject). (It also complains about Bates's having reprinting editorial items or portions thereof; he believes the reprinting was defensible under "fair use"). Blogger-lawyer Ronald Coleman, who recently launched the Likelihood of Confusion blog covering trademark, copyright and trade secret law, is assisting Bates and comments on the story (Feb. 18 and other entries). TechLawAdvisor also adds an observation. More on "deep linking": Jan. 25, 2004 and links from there.

Yesterday the Times published an article on medical malpractice insurance that's has been getting a fair bit of attention. I thought the article had serious shortcomings and just posted a lengthy explanation of why on Point of Law, with more posting probably to come. (Feb. 23; see also Feb. 22). More: And Ted has a semi-satirical treatment of the issue just up at Point of Law, inaugurating a new "Column" section there.

On a different note, my flu seems to have had a relapse, so I may skip posting for a while. (Update 4:20 p.m.: doing a lot better after resting for a few hours.)

"Judges appoint Mark Dottore to stabilize troubled companies. Critics say he's cleaning them out." (Kevin Hoffman, "King Nothing", Cleveland Scene, Feb. 9). For a glimpse at the world of court-appointed trusteeships in New York, see Nov. 11, 2003.

At approximately 2 a.m., long after the 18-year-old host's parents had gone to bed, some guests at a backyard party decided they would relight the barbecue. Ignoring warnings, one of them poured in an entire bottle of lighting fluid and the resulting fireball injured a second guest, who sued the family for improper party supervision and won a A$210,000 damages award. In November, however, the high court of the state of New South Wales overturned that award, holding that the parents could not reasonably have foreseen the guests' irresponsible behavior. According to attorney Julie Cameron of Corrs Chambers Westgarth ("Thank God It's Friday: Appeal Judges extinguish BBQ claim", Dec. 3), the plaintiffs also "argued that consideration should be given to North American case law, where a doctrine known as Social Host Liability has been adopted, attaching liability to hosts at parties where alcohol is served." But the court did not find the North American law persuasive, finding that in Australia:

Barbecue parties with liquor attended by young adults occur in their hundreds all over Australia every evening; the perception that the activity, supervised or unsupervised by older adults, is one involving a foreseeable risk of personal injury is, in my opinion, an entirely wrong perception.

The appellants were not in any relationship with the guests which has been or should be established by judicial authority to impose any special duty or responsibility for the safety of the guests.

On June 22, 2003, the Drypen family asked their sixteen-year-old son, Christopher, to turn his rap music down; instead, he pulled a nine-inch serrated steak knife. They called 911, and asked for assistance subduing him. They told dispatchers that he had psychiatric problems and was not taking his medication, and told arriving police that he was "violent," having a "psychotic episode," and armed with a serrated steak knife. Moreover, the Drypens said, last time Christopher was like this, it took four people to subdue him.

For over an hour, several deputies tried to talk Christopher out of the basement, surrounding him at the stairs to the basement and at the outside walk-out doors. At one point, Drypen came towards deputies with the knife raised; they responded by retreating, and holding the door closed until the inside door-handle broke off in Christopher's hand. Christopher was yelling "Die" with an obscenity. Deputies say (and the family disputes that) Drypen charged deputies up the stairs with the knife raised; he was shot from a mere twelve feet away in self-defense, and killed. Prosecutors called the killing justified self-defense and did not press charges after a three-month investigation, but the Drypen family sued--and now Oakland County taxpayers are out $4 million ($1.42 million to attorney Jules Olsman) because the County settled without admitting wrongdoing. (Mike Martindale, "$4 million won't end grief for family", Detroit News, Feb. 18; Marsha Low, "Family struggles to move on after son killed by deputies", Detroit Free Press, Feb. 19; Korie Wilkins, "County to pay $4M in death of 16-year-old", Daily Oakland Press, Feb. 18; Kate Phillips, "Drypen suit settled", Milford Times, Feb. 17; Oakland County press release, Sep. 12, 2003; Marsha Low, "Grieving family blames police", Detroit Free Press, Sep. 13, 2003; Bill Laitner, "Family sues over police shooting of ill teenager", Detroit Free Press, Oct. 16, 2003; Drypen v. Oakland County, Case No. 2:03-cv-74151-AC (E.D. Mich.)).

Update, Feb. 27: The press finally gets around to reporting the defense side of the story. Often the press repeats the fact that officers fired many times as evidence that excessive force was used, when, in fact, officers are trained to keep firing until a threat is stopped. (Korie Wilkins, "Son's death remains mystery", Daily Oakland Press, Feb. 27; Kate Phillips, "Sides still dispute shooting details", Milford Times, Feb. 24).

Things might start getting lively if judges used this sanction more often: "A federal judge in Fresno, Calif., has ordered the entire 80-lawyer firm of Lozano Smith back to school for a refresher course in ethics as a sanction for repeated misrepresentation of facts and the law in a dispute over aid for a learning-disabled student." U.S. District Judge Oliver Wanger said the law firm, which represents many California school districts in special-ed matters, "its lead attorney in the case, Elaine Yama, and the district [the Bret Harte Union School District in central California] engaged in repeated misstatements of the record, frivolous objections to plaintiff's statement of facts, and repeated mischaracterizations of the law.'" (Pamela A. MacLean, "Judge Orders Law Firm Back to School", National Law Journal, Feb. 14).

Just another part of Mr. Scrushy's criminal defense strategy? (Simon Romero, "Will the Real Richard Scrushy Please Step Forward?", New York Times, Feb. 17).

Fixing some of the problems (Steve Chapman, "You can't always believe what you think you see", syndicated/Chicago Tribune, Feb. 17).

The Archdiocese of Milwaukee finds itself on the hook for $17 million because a volunteer member of a volunteer group that occasionally meets on church property ran a red light. The Legion of Mary visits ailing parishioners and offers transportation to mass; on March 25, 2002, member Margaret Morse, delivering a statue to a parishioner, ran a red light and struck the car of 82-year-old semiretired barber Hjalmer Heikkinen, paralyzing him and ending his career. Morse's insurance company tried to shift the burden to the church, which ended up being held responsible on the principle of respondeat superior, the doctrine that holds a business liable for the negligence of its employees. This makes sense for a business, which chooses its employees, and can hire and fire. Is a church supposed to do the same for religious volunteer groups that occasionally meet on its property? That's one way to ensure there will be less volunteer activity: the church will need to hire someone to supervise and screen volunteer groups in a way that isn't done now. "'They really do accommodate a huge amount of groups all the time,' from religious cooperators such as the Knights of Columbus to secular groups including Alcoholics Anonymous and the Boy Scouts, archdiocese attorney Frank L. Steeves said. 'These groups are out doing the kinds of things we don't direct or control in any way.'" $15.5 million of the award was for non-economic damages, though post-trial motions may change the result. (Derrick Nunnally, "Church told to pay $17 million", Milwaukee Journal-Sentinel, Feb. 18). Update: Feb. 27; the verdict was upheld on appeal.

From Phil Kabler's "Statehouse Beat" column in the Charleston, W.V. Gazette, Feb. 14 (reg):

It sounds like one of those urban legends, but this one is true.

No sooner had [State] Supreme Court Justice Elliott "Spike" Maynard gotten out of his SUV after a fender-bender downtown last week when a woman approached him, asked if he was hurt, and gave him the name and phone number of the Charleston law firm where she works.

Alarmed by the sweetener Splenda's steady rise in consumer popularity and market share, organized sugar producers in December filed a California false-advertising suit against distributor McNeil Nutritionals, a unit of Johnson & Johnson. The lawsuit challenges the artificial sweetener's slogan "made from sugar, so it tastes like sugar", on the grounds that sucralose, the active ingredient in Splenda, is produced using chemical processes, even if sugar does happen to go into it. A number of private lawyers are pursuing similar theories in consumer lawsuits pursuing class-action status. In turn, J&J has struck back with a lawsuit against the Sugar Association and other defendants alleging a "malicious smear campaign" aimed at undercutting consumer confidence in the sweetener's safety. (Patrick Walters, "Splenda's maker sues sugar producers", AP/Detroit Free Press, Feb. 9; Laura Petrecca and Holly M. Sanders, "Sweet and Low", New York Post, Feb. 13; Claire Cummings, "Splenda sugar substitute receives praise, lawsuits from consumers", State News (Michigan State U.), Feb. 16). Update: National Law Journal coverage of controversy (Apr. 8).

Media Matters may have to rethink its apparent bias against litigation reform. They'll have to spend some unnecessary money on lawyers if Jeff Gannon/James Guckert follows up on his claim that he'll be suing the group (along with liberal bloggers) for the non-existent cause of action of "political assassination" for revealing his strange double-life. (Newsweek, Feb. 28).

Latest: the Norfolk Southern Railway Co. has now asked a judge to throw out Patricia Frankhouser's lawsuit, and he's said he expects to rule within the next few weeks (see Nov. 12, Nov. 23). (Matthew Junker, "Railroad seeks dismissal of injury case", Pittsburgh Tribune-Review, Feb. 16).

On Thursday the Baltimore Sun quoted me saying unflattering things about Stephen L. Snyder, the successful local attorney who's taken out very costly ads ostensibly aimed at attracting a $1 billion case (see Feb. 16). I said Snyder has probably has made it onto the Top Ten list of tasteless lawyer-advertisers, having particularly in mind the cheesy way his website flips off would-be clients whose cases, however meritorious, lack a big enough payoff (Jennifer McMenamin, "In search of a $1 billion case, fielding 100 calls", Baltimore Sun, Feb. 16)(reg). A week earlier the same paper quoted me commenting on the likely impact on civil litigation of a federal grand jury's indictment of the W.R. Grace Co. and seven of its current or former executives; the charges arise from the widely publicized exposure of townspeople and others to asbestos hazards from the company's vermiculite mine at Libby, Montana. (William Patalon III, "Grace's plight made worse", Feb. 9).

And: Rob Asghar of the Ashland (Ore.) Daily Tidings devoted two recent columns to the problem of overlawyering and was kind enough to quote my opinions ("Law and disorder", part 1 (Feb. 7) and part 2 (Feb. 14)). NYC councilman David Yassky, sponsor of the let's-sue-over-guns ordinance that I criticized in the New York Times two weeks ago (see Feb. 6), responds today with a letter to the editor defending the legislation (Feb. 20). My Manhattan Institute colleague Jim Copland, writing in the Washington Times on the passage of the Class Action Fairness Act, quotes my Feb. 11 post on the subject ("Tort tax cut", Feb. 15). Finally, the New York Sun covers a recent Institute luncheon at which I introduced ABC's John Stossel (Robert E. Sullivan, "John Stossel Chides the 'Liberal' Press for Spinelessness", Feb. 9)(sub-$).

A.J. Jacobs considers--and rejects--the idea of suing Joe Queenan over a bad book review.

But then I remembered what I had learned in the encyclopedia: James McNeill Whistler tried this tactic, and it ended pretty badly. He filed a libel suit in 1878 after the critic John Ruskin called him a ''coxcomb'' and denounced his painting ''Nocturne in Black and Gold: The Falling Rocket.'' Whistler won a token judgment of a farthing -- but the cost of the case bankrupted him. So no lawsuits from me. And at least I wasn't called a coxcomb.

Devin Thompson, 16 at the time, is charged with murdering two Fayette, Ala. policemen and an emergency dispatcher in June 2003. Now members of the victims' families are suing the maker of the Grand Theft Auto video game, retailers Wal-Mart and Gamestop, and Sony, which manufactures the PlayStation, as well as Thompson himself, on the grounds that the violent game "trained" the teen to commit the real-life killings. Representing the families, if you haven't already guessed, is attorney Jack Thompson, whose anti-videogame crusade has for years provided material for these columns (Sept. 26 and Dec. 17, 2003, etc.)(Johnny Kampis, "Lawsuit claims video violence precipitated Fayette police shootings", Tuscaloosa News, Feb. 15; Tony Smith, "Grand Theft Auto firm faces 'murder training' lawsuit", The Register (UK), Feb. 17). More: "The supporters [of anti-videogame government action] think violent games produce violent teens, but the evidence is lacking." (Steve Chapman, "Violent video games and Illinois' loopy legislators", syndicated/Chicago Tribune, Mar. 20)

A decade of harshly punitive laws later, policymakers discover it's not so simple (Leslie Kaufman, "When Child Support Is Due, Even the Poor Find Little Mercy", New York Times, Feb. 19). See Feb. 3, Jun. 11 and Aug. 19, 2004 and many other posts in our family law category.

Henry Kissinger once said "University politics are vicious precisely because the stakes are so small." As I would tell my 21-year-old self if I ever ran into him today, that inverse ratio holds true by several orders of magnitude when it comes to student government. Yvette Felarca was disqualified in a student government election in a squabble over rules; she claimed (with the aid of precedent) constitutional violations and sued, which caused election delays because the government didn't want to have to count votes twice; the student government changed the rules to give her her seat; the federal court dismissed the lawsuit as moot with leave to refile; and Felarca did just that. Faced with a demand to pay her legal fees of $15,000 or spending more than that defending themselves, the student government capitulated, and Felarca got both her $15,000 to drop the suit and presumably also law-school-application essay material. (Traci Kawaguchi, "ASUC to Settle Suit for $15,000", Daily Californian, Feb. 11; "Editorial: ASUC-ing Money Away", Daily Californian, Feb. 15; CalStuff blog, Feb. 12; Tina Nguyen, "Federal Judge Tosses DAAP Lawsuit Against ASUC", Daily Californian, Nov. 16; Yvette Falarca, "Senator Justifies Lawsuit", Daily Californian, Aug. 31).

(Apologies to readers. On occasion, I run across a news story, save the link on Movable Type, and then finish writing a post later after I've proofed it. On February 17, I accidentally published a draft squib instead of a finished post. The published draft (1) failed to reference relevant federal precedent as I had intended; (2) incorrectly identified the Washington Supreme Court as the authors of the opinion in the news story; (3) incorrectly stated that a conviction was reversed; and (4) had a subject-verb disagreement. Fortunately, Overlawyered has a full-time proofreader, an anonymous law student at the Appellate Law & Practice blog, who prefers fact-checking Overlawyered to his/her own posts. He/she caught two out of the four errors, and defends the appellate court's decision.)

A Washington court holds that police can't arrange to search dumped garbage without a warrant, and invalidates a meth-dealer's indictment. (Michael Ko, "Court: Meth maker's privacy was invaded", Seattle Times, Feb. 16).

This seemed to be straight out of a "Law and Order" episode I would scoff at, but the hair-splitting judges are forced to engage in to determine the stage at which trash becomes searchable is phenomenal. See, e.g., the seven separate opinions in the 8-5 en banc decision United States v. Redmon, 138 F.3d 1109 (7th Cir. 1998) (garbage can in shared driveway searchable without warrant); Clinton administration brief. The landmark Supreme Court opinion on garbage is the 6-2 decision in California v. Greenwood, 486 U.S. 35 (1988) (trash bag at curb searchable without warrant).

In the same vein as a potluck, AP covers Oscar party excess:

So what happens to all those untouched short ribs, lobsters, truffles and tortes?

Governors Ball leftovers are donated to homeless shelters and other charitable causes around town. But the lawyers got in the way of any such benevolence at the Elton John party, fearing the caterer would be liable for anyone who got sick on the scraps.

I don't know if I buy this Globe and Mail paragraph, which John Palmer saw first.

An indignant Israeli is suing a pet shop that he says sold him a dying parrot, reports the Ma'ariv newspaper. Itzik Simowitz of the southern city of Beersheba contends the shop cheated him because the Galerita-type cockatoo not only failed to utter a word when he got it home, but was also extremely ill. Mr. Simowitz adds that the shop owner assured him the parrot was not ill but merely needed time to adjust to its new environment.

(Alex thought of the post title first.) Previous Python-related litigation: Dec. 27.

The Indiana legislature turns out to have banned them and is now scrambling to fix matters (Robert King, "Heavens! Potlucks are illegal", Indianapolis Star, Feb. 13)(via Balko). See Apr. 15, 2004.

Michael J. Zwebner, the CEO of penny-stock holding company Universal Communication Systems , is unhappy that he's being flamed on the RagingBull.com message board, run by Lycos. He may have a legitimate beef to some extent; the dozens of John Doe usernames he's seeking to discover in one lawsuit are being represented by a lawyer, L. Van Stillman, who apparently pled guilty to SEC charges of "pump and dump" schemes. (Then again, UCSY has a fishy 10-K, being forced to admit that their auditors don't think that the company can be maintained as a going concern. They've certainly had some bad luck: UCSY's 2003 10-K was late "because of a fire at the building which houses the Company's corporate headquarters". The most recent 10-Q was late "due to a fire at the corporate accountant's office".)

More importantly for our purposes here, Zwebner's litigation methods, through his lawyer John H. Faro, are questionable. He's filed five lawsuits in federal court in Miami, against anonymous posters, against Lycos (for, among other things, "trademark violations" for naming a message board after the ticker symbol UCSY), and even a couple of purported class actions. He's especially upset at one anonymous poster, who has the especially credible username of Wolfblitzzer0 [sic]. So, Zwebner has sued... CNN and the real-life Wolf Blitzer! It seems, according to Zwebner's view of the world, that Blitzer is supposed to be on the lookout for anonymous posters using similar names, and should be held liable for such posters' postings when he fails to police the use of such usernames. (Jessica M. Walker, "Executive Faces Uphill Battle in His Suits Over Anonymous Web Attacks", Daily Business Review, Jan. 28).

A Google search shows that Zwebner seems to have had previous success intimidating posters into silence. Update: Professor Volokh comments.

Portland, Oregon, tattooist Matthew Reed doesn't quite want an arm and a leg in his lawsuit against Rasheed Wallace, but he's close. Reed is upset that the large Egyptian tattoo he gave Wallace in 1998 for $450 is being used in Nike advertising, and wants an injunction and damages for alleged copyright infringement. (Ashbel S. Green, "Ink is dry on tattoo but fresh on lawsuit", The Oregonian, Feb. 15; AP/Det. News, Feb. 16 (with photo)).

My law firm has represented Nike in other litigation.

I've been mostly out of commission owing to one of the bugs that's been going around, so although there are a lot of great items in the pipeline, I expect they'll have to wait a bit. Ted will be posting, though.

In the mean time, for readers who followed Stuart Taylor's refutation (posted here Jan. 19, with comment) of Stephanie Mencimer's tendentious Washington Monthly article of last October, the Washington Monthly has at length notified its online readers of Taylor's response, and posted a (to me, very lame) defense by Mencimer of her article (Feb. 15).

Nineteen German and Austrian tourists are filing a lawsuit against the government of Thailand and the French hotel chain Accor over the Indian Ocean tsunami. Naturally, the lawsuit has been filed in New York. Another defendant is the National Oceanic and Atmospheric Administration; plaintiffs complain that NOAA's Pacific Tsunami Warning System failed to issue a warning for a tsunami in a completely different ocean. (Aside from the fact that NOAA owes no duty to vacationing Germans in Thailand, NOAA did try to notify other countries of the tsunami potential of the earthquake.) The suits against NOAA and Thailand in a US court are frivolous in the narrowest sense of the word, and will likely be quickly dismissed; Accor will probably have to spend some time and money if it can't get out on jurisdictional grounds. Edward Fagan (Feb. 5, Aug. 13, Apr. 2, Aug. 8, 2003 and links therein) is the attorney; press coverage uncritically repeats the claim that he is "best known for filing lawsuits seeking reparations for Holocaust victims," a self-promotion others disagree with. (Jean-Michel Stoullig, AFP/Wash. Times, Feb. 15; cf. also AP, Feb. 13; hat tip to reader D.C.). I'm curious: does Fagan sue his local news weather department if he gets wet because of an unanticipated rainstorm?

At least Fagan isn't claiming that his lawsuit will stop tsunamis. This site does make that claim for its "lawsuit"; it's possible that it's a tongue-in-cheek art project, but the smart money is betting that it's the work of a full-fledged self-parodying moonbat. It's not clear if there's an actual lawsuit; lawsuits by the deranged tend to be more entertaining than socially problematic, except for district court judges unfortunate enough to be in the Ninth Circuit.

A Georgia prosecutor is arguing to the state supreme court that the state has the right to regulate and prosecute "lascivious" talk on the telephone--even between spouses. The justices seem appropriately skeptical. (Jonathan Ringel, "No X-Rated Phone Talk, Justice Told, Not Even on Valentine's Day", Fulton County Daily Report, Feb. 16).

If yours isn't worth a cool billion, Mr. Snyder of Baltimore doesn't want to hear from you. We've come a long way from the taxi-hire model of lawyer service to the public, that's for sure. (Jonathan D. Glater, "Advertising: Lawyer Spends a Million Dollars in Quest for a Verdict", New York Times, Feb. 15). More: Feb. 20.

The latest installment of our free periodic newsletter went out this afternoon to its c. 2300 subscribers, covering the last two or three 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.

The fast-food chain has agreed to settle charges arising from its having missed a self-announced deadline for reducing the use of trans fats in its cooking oil. It will pay $7 million to the American Heart Association for an educational campaign, $1.5 million to publicize its future progress in the quest for better fats, and unspecified attorneys' fees to the plaintiffs. The "chain said it had issued a news release in February 2003 saying its plans had been delayed," but Stephen Joseph, a San Francisco attorney who runs a pressure group called BanTransFats.com, sued contending that the restaurant chain did not adequately publicize the setback. (Joe Garofali, "$7 million for suit on trans fats", San Francisco Chronicle, Feb. 12). For attorney Joseph's earlier suit demanding unsuccessfully that the sale of Oreo cookies to kids be banned, see May 13, 2003.

Foodmakers say the use of trans fats is the only practicable way left to avoid the prospect of limp and off-flavored French fries and donuts, in part because earlier campaigns succeeded in demonizing butter, animal and tropical fats, though some of those fats are now considered less harmful than their replacements. Many nutritionists

had made their careers telling people to eat margarine instead of butter," said Walter Willett, chairman of the Department of Nutrition at the Harvard School of Public Health and one of a handful of medical researchers who have led the fight against trans fat. "When I was a physician in the 1980's, that's what I was telling people to do and unfortunately we were often sending them to their graves prematurely."

Since the 1999 sensation over England's "Ladies of Rylstone", the fad has spread around the world of charity fundraising calendars displaying the unclothed (but strategically obscured) bodies of middle-aged and elderly townspeople. In Carmel, Calif., however, the city is refusing to accept $40,000 in proceeds from the Carmel Fire Belles calendar, which features local women aged 51 to 84 posing behind firefighting equipment. City attorney Donald Freeman "said that under the California Fair Employment and Housing Act, accepting the money could make the city liable for a sexual-harassment lawsuit. He says the city has already received numerous complaints from city workers." An outside law firm offered the same opinion, Freeman said. (Nicholas Shields, "Fearing Lawsuits Because of Birthday Suits, City Shuns a Gift", Feb. 7).

...profiled by Forbes. Defending the cartel? New York AG Eliot Spitzer, fearless watchdog over antitrust infractions (except when he isn't). (Scott Woolley, "Trustbuster", Forbes, Feb. 28).

Parker & Waichman referred fen-phen cases to Napoli Bern; Napoli Bern negotiated a fen-phen settlement with the manufacturer. Now, Parker & Waichman is charging that Napoli Bern's lump-sum settlement was distributed in such a way to favor Napoli Bern's direct clients, thus increasing the total attorney fee take for Napoli Bern and decreasing the amount it would have to share with referring law firms. Napoli Bern denies the allegations. (Jonathan Glater, "When Law Firms Collide, Things Sometimes Get Ugly", NY Times, Feb. 12) (via Bashman). Previous coverage: Dec. 28, 2001.

That's a quote from attorney Judson Hawkins, who's representing Mary Ellen Michaels in her lawsuit against a seven-year-old boy whose bike she collided with while rollerblading, the boy's grandmother and parents ("who were a thousand miles away at the time"). The Ohio courts have dismissed her complaint, but Michaels vows to appeal to the state supreme court if necessary. ("Suing a 7-Year-Old", Cleveland Scene, Feb. 9).

They haven't arrived yet, but MedPundit Sydney Smith expects them to come along as medical records are further computerized (Feb. 9)(see Feb. 7).

When is it legally safe to circulate or publish fiction based on characters created by someone else? C.E. Petit ("Scrivener's Error") has put up a long series of posts over the past month on the question: first, second, sidebar, third, fourth. Part 4 discusses the Marvel multiplayer gaming lawsuit (see Jan. 4) (via Bainbridge).

We've posted four more items of reader correspondence on our letters page, including: a response from artist Iqbal Geoffrey concerning his suit against a London gallery; the importance of maintaining closed car windows when observing tigers in a natural setting; what Florida does to encourage posting of beware-of-dog signs; and a law student credits us with helping him win a prize.

Atkins v. Virginia held that governments could not execute the mentally retarded (Sep. 29, 2003), and now activists who would protest the idea that testing could be used to track educational results because they give results too low for racial minorities are objecting that the same tests are resulting in scores too high for death row inmates. Daryl Atkins was intelligent enough to abduct Air Force man Eric Nesbitt, force him to withdraw money from an ATM, take Nesbitt to a remote area and then shoot him eight times, killing him, but his lawyers protest he's too retarded to be executed. (Adam Liptak, New York Times, Feb. 6). Last week, the California Supreme Court has established rules guaranteeing that any decision in that state will require a great deal of litigation. (Bob Egelko, "Judging if a killer is retarded", San Francisco Chronicle, Feb. 11; Claire Cooper, "Rules set for death row claims", Sacramento Bee, Feb. 11).

The St. Petersburg Times has a feature on $15-million Dillard's escalator settlement for Kerriana Johnson and her family (Feb. 2); just in time for Valentine's Day, it's a love letter to the plaintiffs' attorney team of Justin Johnson and Michael Keane. It's a little much, especially when the reporter marvels that Johnson and Keane were clever enough to videotape depositions, something that's been all but standard practice for big cases for at least five years. Another all-too-typical strategy decision, credulously praised by the reporter who covered the trial: interrogate Dillard's employees who had nothing to do with the accident, and then claim their ignorance about the facts shows the callousness of the corporation. (Jamie Thompson, "Legal 'Odd Couple' formidable in court", Feb. 7; Jamie Thompson, "Witnesses recount store horrors", St. Pete Times, Jan. 19). Interesting aspect we hadn't previously commented on: the girl's mother, Lori Medvitz, had been awarded only $20,000 by jurors; the settlement gives her (as opposed to her daughter) $3.8 million. None of the press coverage dares to suggest that there may have been a bit of a conflict of interest there. (Jamie Thompson, "Escalator suit ends in $15-million deal" St. Pete Times, Feb. 2).

The Los Angeles Times has more detail about the fraud case that led to a mistaken $1.8 billion verdict (Feb. 8); the defendant's story is quite fishy. (Bob Pool, "Essay Flap's Plot Takes Strange Turn", Feb. 10).

Her side of the story ("Cookies Said To Yield 'Horrible Experience'", ABC News/Good Morning America, Feb. 12; George Lurie, "Neighbor: Two sides to every cookie", Durango Herald, Feb. 12)(via Giacalone, her paladin). For our earlier coverage, see Feb. 4 and Feb. 5.

Bad news for Illinois employers: "In a recent state appeals court ruling, a Chicago lawyer accused of allegedly cursing and displaying improper behavior during a performance review won a $300,000 defamation lawsuit against his employer, which fired him after the review. ... The appeals court rejected CNA's argument that what happened during a private corporate meeting -- in this case the performance review -- did not warrant a defamation claim because it was never printed." (Tresa Baldas, "Lawyer Wins Defamation Suit Over Performance Review Claims", National Law Journal, Feb. 10).

Two more guilty pleas, which means all twelve of the Fayette residents arrested have now pleaded guilty. "More arrests are expected in six weeks in the FBI and IRS investigation." Attorneys' fees and expenses are said to have absorbed about $100,000 apiece of the $250,000 that each defendant received from the settlement fund, which would make $1.2 million in all reaped by the law firms and their helpers for representing the dishonest claimants. (Jimmie E. Gates, "Fen-Phen case expected to net more guilty pleas", Jackson Clarion-Ledger, Feb. 12). See Jan. 9, etc.

An appeals court has upheld a trial judge's rejection of the lawsuit by San Francisco and nine other California cities and counties, which had sought to find the gun industry legally culpable for not instituting sales restrictions that go beyond any required by state or federal law. (Bob Egelko, "Court rejects suits against gun makers", San Francisco Chronicle, Feb. 11). See Aug. 30, 2003, and our firearms litigation page generally.

Todd Zywicki is making a strong case for it over at Volokh Conspiracy, and promises more posts to come.

Attorney H. Neal Conolly quit the firm of Thuillez, Ford, Gold & Conolly shortly before it won the right to be part of the team of law firms representing the state of New York in the tobacco litigation. He argues, though, that having been involved in a "work in progress" he's entitled to a share of the $84.3 million in fees payable to his former partners. "Six firms, including the politically connected Thuillez partnership, received a total of $625 million in fees for their role in negotiating the tobacco settlement. Thuillez Ford has had close ties to the Pataki administration and the administration of then New York Attorney General Dennis C. Vacco." The fees work out to about $13,000 an hour. (John Caher, "Attorney's Bid for Share of $84.3 Million Fee Moves Forward", New York Law Journal, Jan. 12). More on N.Y. tobacco fees: see, among other posts, May 11-13, 2001, Jul. 30-31, 2002, and Aug. 10, 2003.

By a 72-26 vote, with 18 Democrats and Vermont's Jeffords joining a unanimous roster of Republicans, the Senate has approved this bill, which would 1) move most interstate class actions from state into federal court and 2) regulate various practices such as the use of coupon settlements. House approval and a Presidential signature are expected in short order, giving the returning Bush administration its first major legislative victory and dealing a rare defeat to the Association of Trial Lawyers of America. Such defeats have been so rare that CAFA, though hardly radical and not a little watered down from earlier versions, probably constitutes the most ambitious tort-reform measure to pass at the federal level in recent decades. (New York Times).

For some of this site's past posts on the bill, see Apr. 25-27, Jun. 12-15 and Jun. 25, and Sept. 28, and Oct. 21, 2003. Jim Copland and others have wall-to-wall coverage of the new developments at Point of Law, including posts on the roll call; background (including links to four past Manhattan Institute studies on the issue); the "magnet-court" problem; and last but not least, a new Manhattan Institute study by Yale law prof George Priest taking a closer look at some widely circulated statistics about class settlements, and opining that CAFA would be a useful if limited first step in addressing the problems raised by such litigation.

Elsewhere on the web, some plaintiff's-side observers are pointing out that the new rules ushered in by the bill will likely be actively beneficial to the practice of some lawyers who specialize in filing such suits (though detrimental to others'), and that some businesses that get sued are likely to find their position worsened (not only may they find it harder to enter cheap coupon settlements, for example, but they may face a proliferation of one-state-only class actions). See, in particular, Evan Schaeffer and C. E. Petit ("Scrivener's Error"). Meanwhile, Dwight Meredith perhaps surprisingly "do[es] not oppose the proposed reform of class action suits" but believes its GOP sponsors are being inconsistent, and Bill Childs wonders if there's more to the debate besides money. Finally, Baseball Crank points out a possibly headache-making technical aspect of the bill.

"The court system through the eyes of a surgeon sued for malpractice/The jury needed just 15 minutes to end the case, but first orthopedist Stephen M. McCollam had to live under its cloud for four years." Outstandingly reported account of a surgeon's professional liability trial from the standpoint of the defendant and his family as well as the lawyers on both sides. Long, detailed, and in PDF format, but must reading (S. Richard Gard, Jr., "What the Doctor Saw", Fulton County Daily Report (Atlanta), Jan. 31). Plus: letters, some very angry, from lawyers and other readers of the Daily Report (Feb. 7); Feb. 7 follow-up from Gard, who's editor and publisher of the Daily Report as well as the author of the piece (via SymTym).

Latest disabled-rights suit against a reality TV show: "'The Apprentice' may be entertainment, but it also amounts to a protracted job interview, says James W. Schottel Jr., who filed a federal case in St. Louis claiming that audition rules demanding 'excellent physical' health are discriminatory." (Peter Shinkle, "Trump's show discriminates, lawsuit says", St. Louis Post-Dispatch, Feb. 8). In an earlier lawsuit, deaf and blind plaintiffs alleged that ABC violated accessibility rules by requiring the use of a touch-tone phone in the application process for its show "Who Wants To Be A Millionaire?" (see Jun. 21-23, 2002). Update Mar. 23: case settles.

"Norwich, Conn., solo Timothy C. Spayne has paid the federal government $1.24 million to settle allegations that he billed Groton, Conn.-based Electric Boat for up to 94 hours in a single day for representing EB employees in workers' compensation cases. U.S. Attorney Kevin J. O'Connor called it one of the most egregious instances of government fraud during his more than two years in office." (Keith Griffin, "Billing for 94-Hour Day Nets Solo $1 Million Fraud Charge", Connecticut Law Tribune, Feb. 7).

Bob Whitney, 52, is suing the University of Nevada, Las Vegas after getting a B-minus grade from a history professor who Whitney says discriminated against him because of his conservative beliefs. "He seeks at least $10,000 for emotional duress, tuition, books and living expenses." He also "claimed [Eugene] Moehring's fast-paced lectures prevented him from taking complete notes," and says a graduate coordinator humiliated him by yelling at him in front of his wife. ("Student sues university over grade", AP/CourtTV, Feb. 4).

...has his own syndicated column now. ABC News continues to maintain the main Stossel webpage (more).

Fox News's "DaySide" has booked me today to discuss an assortment of unusual or colorful lawsuits recently noted on this site. I'm scheduled to be on between 1 and 2 p.m. Eastern, probably around 1:20 p.m. (Update: for more on the cases discussed, follow the links: high-speed cop chase; train crash worsened his drinking; "Fear Factor"; pharmacy theft; concert noise; "beware of dog" signs.)

Also, at 4:40 p.m. Eastern, I'll be live on the Cam Edwards show, which streams at nranews.com (National Rifle Association) and Sirius satellite radio, to discuss my NY Times piece on NYC gun law (more).

"A couple of jokers from Long Island got the last laugh yesterday after a grand jury dismissed charges they had caused a disturbance when they told lawyer jokes in front of an attorney." (see Jan. 13, Jan. 14, Jan. 30). "It's still legal in America to tell jokes — even about lawyers," said their attorney, Ron Kuby. (Devin Smith, "Good 'Gag' Rule", New York Post, Feb. 9).

Radley Balko vs. Kevin Drum.

Steve Morton, heir to the salt fortune, asked Steve Seltzer to evaluate the early 20th-century painting "Lassoing a Longhorn", thought to be a C.M. Russell; Seltzer instead identified it as the work of a less famous artist, his own grandfather, the Russell contemporary O.C. Seltzer. This meant the painting's value was not about $650-800 thousand, but perhaps a tenth of that. So Morton hired the big law firm Gibson Dunn & Crutcher, and sued Seltzer in federal court for the difference plus punitive damages. Unfortunately, though Morton did have evidence the Russell signature wasn't altered, he couldn't find any experts who backed his theory of the painting's provenance, while Seltzer lined up nine affidavits that supported his conclusion. Morton dropped the lawsuit, and Seltzer then sued Morton, the law firm, and the apparently-now-retired lawyer, Dennis Gladwell. A Montana state court jury found malicious prosecution, and awarded $21 million in damages, based in part on Gibson Dunn's earnings. The damages award seems improper (it's punishing the law firm for being large, rather than for wrongdoing); one hopes it is reduced to something in line with the actual damages to Seltzer--legal fees, any economic damages from the brief loss in reputation (though Seltzer doesn't charge for his authentications), plus perhaps some reasonable non-economic damages for the stress of litigation.

But one would have more sympathy for the defendants if they hadn't been the first to be using litigation to make unreasonable demands; if all Morton and his attorneys wanted, as they claimed, was to clear the painting's title, he didn't need to seek punitive damages against Seltzer. The defendants will appeal. (Kathleen Schultz, "Jury awards artist $21 million", Great Falls Tribune, Feb. 8; Kathleen A. Schultz, "Seltzer jury may receive case today", Great Falls Tribune, Feb. 4; Kathleen A. Schultz, "Art collector defends position in malicious prosecution trial", Great Falls Tribune, Feb. 3; Kathleen A. Schultz, "Seltzer outlines personal suffering in civil suit", Great Falls Tribune, Feb. 2; David Hewett, "Owners Sue Art Expert, Art Expert Sues Owners", Maine Antique Digest, Oct. 2003).

Carmen Dixon, the mother of 14-year-old Lacey, was concerned about a phone call Lacey received from her 17-year-old boyfriend Oliver Christensen, so she listened in on another line. Oliver discussed a purse-snatching, and Carmen turned him in to police. But, last December, the Washington Supreme Court threw out Christensen's 2000 second-degree robbery conviction, because the eavesdropping violated the children's privacy. The legislature is just getting around to changing the law in response. (Robert L. Jamieson, "Courts should let parents do their duty -- and pry", Seattle Post-Intelligencer, Feb. 7; Rachel La Corte, "Parental snooping bill gets a hearing", AP/Seattle Times, Feb. 3; Christine Clarridge, "Eavesdropping against law even for parent, court says", Seattle Times, Dec. 13) (via Bashman).

18-year-old Albert Garcia, Jr. of the Bronx has a "general distaste" for police officers--so, with other McDonald's employees watching, he put glass in Officer John Florio's Big Mac; Florio broke a tooth and cut his mouth and throat. Garcia was caught in a sting when an undercover police officer saw him spitting on another cop's drive-through order, confessed, and is facing assault charges.

Now Florio is suing. One suspects that McDonald's is willing to pay Florio's medical expenses (the press doesn't say one way or the other) as they should, but Florio, through his lawyer Richard Kenny, wants $6 million ($1 million in "compensatory" damages) from the national chain for failure to supervise Garcia properly. Because, after all, no other fast-food chain has teenage employees who adulterate food, perhaps because of the sophisticated two-key systems (much like those used for nuclear missiles) before employees are allowed to make a sandwich. (Alison Gendar, "Hurt cop sues McD's for $6M", NY Daily News, Feb. 8; Denise Buffa and Marsha Krane, "Glass-Burger Cop Sues", NY Post, Feb. 8; Erin Calabrese and Dan Mangan, "Big Mac Attack vs. Cop", NY Post, Jan. 31). The complaint suggests that McDonald's should've fired Garcia sooner because of "aberrant behavior", but, once again, firing someone risks an employment lawsuit.

I would like to thank Walter and Ted for having me here at Overlawyered and thank everyone for reading. I return now to chronicling the intersection of sports, law and life at the Sports Law Blog. It has been a fun week, though, and I have learned a great deal. Hopefully, through efforts like this blog, people will understand that litigation is not the answer to every problem, so that the courts may focus on the rights of those that truly have no other recourse. P.S. from W.O.: Sports Law Blog can be found here.

"The jury wanted to punish Ben Waldrep for holding a house-giveaway contest it had decided was bogus, but when jurors awarded punitive damages Monday, they wound up dealing him a much harsher financial blow than intended. The jurors apparently meant to have the contest's 1,800 entrants split $1 million. But they accidentally awarded each of them $1 million. That means, officially anyway, Waldrep has been ordered to cough up $1.8 billion." Superior Court Judge Andria Richey is expected to lower the damage amount on motion by the defense, but she did not question the jury at all about the amount before releasing them. (Josh Grossberg, "Mistake by jury gives essay writers a $1 billion windfall," Daily Breeze, Feb. 8).

(Links have spoilers, but this post doesn't.) Activists are suggesting that Clint Eastwood's bad experience with a lawsuit of a particular flavor has influenced the ending to Oscar nominee "Million Dollar Baby" and cite his tort reform testimony before Congress as evidence. (Michael Miner, "Dubious Conclusions", Chicago Reader, Jan. 28; Jack Mathews, "Times is not right to spoil 'Baby' end", NY Daily News, Feb. 4). Unfortunately, the stories uncritically quote activists who suggest incorrectly that Eastwood's proposed reform would gut the law.

Class action watch: "A proposed legal settlement that could deliver about $64 million to American Express cardholders and up to $11 million to plaintiffs' lawyers is under assault from rival attorneys who say the company should be paying much more. ... Those challenging the pact say American Express conducted what amounts to a 'reverse auction' by shopping around until the company found a group of attorneys that would accept the lowest settlement offer." There are indications that Miami federal judge Cecilia Altonaga is giving the objections more credence than is often done: she "ruled last fall that the critics could demand documents and testimony about the claims explored by lead attorneys on the case", which usually doesn't happen. The lawsuits allege that Amex applied fees and unfavorable exchange rates to American cardholders' purchases in foreign currencies. (Josh Gerstein, New York Sun, Feb. 4). Update on settlement of objections: Point of Law, Aug. 22, 2007.

71-year-old Doris Christous had just left a Wal-Mart in New Hampshire when she decided that she was waiting too long for a red light to change--so, rather than waiting for a safe right turn, she darted out across five lanes of traffic against the light. Unfortunately, David DeBenedetto was driving through a green light at the time, hit Christous's Bonneville and flipped, killing him at the scene when his pickup truck landed on him while he was being ejected out of the passenger-side window.

DeBenedetto's family sued CLD Engineering Consultants, the engineering firm that redesigned the expansion of the intersection--not the road into or out of the Wal-Mart. The police officer who investigated the accident testified in defense of CLD, but a jury found them 49% liable, even though they were just following the dictates of the state Department of Transportation (2% liable). So CLD is on the hook for $2.6 million of a $5.2 million damages award. (John Basilesco, "Jury awards $2.6 million to family", The Eagle-Tribune, Feb. 3; John Basilesco, "Officer: Sensors not to blame in traffic death", The Eagle-Tribune, Feb. 1; Chris Markuns, "Widow's work helps keep dangerous drivers in check", The Eagle-Tribune, Jun. 7, 2000, John Basilesco, "Another senior who caused fatal crash may get only ticket", The Eagle-Tribune, Nov. 11, 1999, John Basilesco, "Death caused by ill-timed traffic signal?", The Eagle-Tribune, Jun. 2, 1999). It's unclear whether the jury was permitted to consider the percentage fault of the settling parties. Or why, if the engineering firm was so at fault, other drivers stuck at the light over the previous years managed not to kill anybody.

The plaintiff's expert, Ronald A. Morra, blamed CLD at trial. According to the press account, he had previously provided a sworn statement that the accident was the fault of the company that installed the signal control system, but changed his story--perhaps after that defendant settled with the plaintiff. (John Basilesco, "Traffic light timing focus of lawsuit", The Eagle-Tribune, Jan. 28).

At least 30 residents of the Downriver section of Wayne County, Mich., south of Detroit, "have rejected up to $550 per family member, which is their share of a $1.2 million settlement prompted when about 2,500 residents evacuated their homes during a July 2001 chemical leak. To be eligible, all they had to do was sign a form that said they been home in the affected areas of Grosse Ile, Wyandotte, Riverview or Trenton at the time of the leak. While some acknowledged that they weren't home, several others said they didn't support the lawsuit or deserve the money." Trenton retiree Thelma Diemer says she wasn't hurt and went shopping during the evacuation: "I didn't feel I was being honest accepting the money and you have to think about the hereafter, especially when you're 86." (David Shepherdson, Detroit News, Feb. 4)(via National Review Online)

"My 'Beware of Dog' signs came down years ago, after I interviewed an attorney who made a good piece of his living suing on behalf of dog-bite victims. Keeping a dog who is known to be vicious is a far more serious issue than having one who has never been a problem before. Putting up a 'Beware of Dog' sign, the attorney said, could arguably be an indication that a dog's owners knew he was a problem." ("Pet Connection" columnist Gina Spadafori, "Retrievers Rule: Beware of signs that lead to lawsuits", syndicated/Sacramento Bee, Jan. 25) (via Common Good's Society Watch). (& letter to the editor, Feb. 13).

Host Jerry Agar had me on this morning to talk about the NYC government's attempt to impose gun control nationwide (see yesterday's post for more details and a link to my Times piece). And many thanks to the various bloggers who've linked the piece, starting with Glenn Reynolds.

"Gertrude Walton was recently targeted by the recording industry in a lawsuit that accused her of illegally trading music over the Internet. But Walton died in December after a long illness, and according to her daughter, the 83-year-old hated computers." (AP/ABCNews, Feb. 4). Glenn Reynolds (Feb. 5) guesses that it's another "bot-based complaint" (more).

If you've spend much time browsing weblogs lately, you've probably noticed the near-ubiquitous blog ad, placed by a trial-lawyer-allied group, complaining that Rupert's minions won't air their broadcast commercial supportive of medical malpractice suits. But the blog ad conceals a rather significant fact about the controversy, as I point out at Point of Law this morning. Lots of other good new stuff there too, including Ted on revelations of silica/asbestos double-dipping; a new column by Stuart Taylor, Jr. critical of the tort reform ideas popular at the moment in Congress (Jim Copland summarizes); welcoming a new weblog on international law; Vioxx and the quest for "smoking guns"; a P.R. exec is chosen to head ATLA; and Ted on historic preservation.

I've got an op-ed in today's New York Times criticizing the new Gotham law, signed by Mayor Bloomberg last month, which presumes to impose liability for street crime on gun manufacturers and dealers unless they adopt a strict "code of conduct" for their sales nationwide, not just in New York City. I note that it will add impetus to the drive in Congress for a law pre-empting abusive gun lawsuits. The new law "insults the right to democratic self-governance of the 273 million Americans who don't live in New York City. ...The mayor and City Council of New York seem to think they can make laws that bind the rest of the country. That's an arrogant stance -- and when the rest of the country is heard from, it's apt to be a losing stance as well." The piece is part of the Times's new geographically zoned Sunday op-ed program and ran in city but not suburban editions of the paper. (Walter Olson, "The wrong target", New York Times, Feb. 6). For the other side, here's the press release and bill description from the measure's sponsor, Councilman David Yassky, the city council's press release (PDF), and the bill text. (bumped Sun. evening 2/6) Update Feb. 20: Yassky responds.

Logan Young loves Alabama football. He loves it so much that he paid a Memphis-area high school coach $150,000 in exchange for the coach steering a top recruit to Alabama. This act was certainly immoral and violated about twenty NCAA violations. But because the coach works for a public school, the act was also bribery of a state official. And so the federal government prosecuted Young under RICO (Racketeer Influenced and Corrupt Organizations Act), and convicted him for conspiracy, bribery and money laundering. (AP, "Shady boosters can now fear federal prosecutors," (Feb. 5); "The real outrage was Young's conduct," Birmingham News, Feb. 6). Was this really the best use of government resources? RICO, a statute originally targeted at organized crime, has been extended far beyond this purpose and is now used to go after abortion protestors and immoral boosters. I do not agree with what Logan did, but I would argue that the detriment to society is not so great to warrant such an expenditure of tax dollars and judicial resources.

A few days ago I noted that a high school coach landed a $700,000 victory against an out-of-control parent (Feb. 4). Now another irate sports parent has ended up in court. Demetri Antoniou approached a player he felt was threatening his son and warned him to "stay away from my (expletive) kid." "The Dec. 10, 2001, incident was over in a matter of seconds. The man...never made contact with the boy..." But the parents of the boy he approached took offense and filed a lawsuit for unspecified damages. "Antoniou's attorney says his client admits that he said things he now wishes he hadn't. But he denies threatening Hale and thinks a lawsuit is an out-of-proportion response to the situation." (Gregory Kesich, "Outburst at son's game lands father in court," Portland (ME) Press Herald, Feb. 4).

You may recall the Center for Justice & Democracy's Zany Immunity Law Awards criticized the three states that provided immunity to baseball stadiums for spectator injuries. The immunity is based on the common-law doctrine of assumption of the risk, made explicit on the back of baseball tickets and announcements at baseball games. Nevertheless, dentist Neil Pakett is suing the Phillies for compensation for injuries he received when he unsuccessfully tried to catch a foul ball hit by shortstop Jimmy Rollins. The case has been thrown out by the trial court, but Pakett is arguing that the fact that the Phillies built a backstop creates a duty for them to have built a backstop that would've protected him. The Phillies will likely win, but they've sure spent a great deal of money defending themselves against the eventuality that they have a judge who wants to make new law, and a statutory immunity law would've provided a clearer rule that would have discouraged the suit in the first place. (Mark Levy, AP/LA Times, Feb. 4). Update: Phillies' win affirmed.

Hundreds of blogs have noted the case from Durango, Colo. (see our Feb. 4 post) in which Wanita Renea Young sued teenagers Taylor Ostergaard and Lindsey Jo Zellitti, who'd baked homemade cookies, delivered them to various homes including Young's as a surprise, and in doing so scared Young by banging on her door at 10:30 p.m., causing her an anxiety attack. A selection of comments:

* "I find it a bit amusing that the lady is claiming that the banging on the door made her think that burglars were present...we all know how burglars knock before entering..." (commenter Mark Noonan at Dean Esmay)

* "Young said she believes that the girls should not have been running from door to door late at night. "Something bad could have happened to them," she said.

Something bad....yeah, like getting sued!" (all-encompassingly)

* "I hate articles like this. You can't get any decent coverage of a legal issue unless it's coming from a legal source. ... We can't fairly critique [the judge's] decision because we don't know what evidence it was based on. We don't know what evidence it was based on because the article is clearly and fundamentally biased in favor of the defendants." (Drew Vogel of the Terminus blog, commenting at Dean Esmay)

* "The karmic beauty, of course, is that for $900 this lady will be known the world over for fifteen minutes of ignominy and a couple of decent girls will wind up on the talk show circuit or have some good material for college essays." (commenter docpops at Metafilter)

A sampling of others (warning, serious rudeness in some): BoingBoing, Ben Kepple, WizBang, RajeRant ("It's times like this that I'm ashamed to be a lawyer"), Cliffs of Insanity, FishTown Chatter, Distorted Perspective, Ambulance Down.

Yes, it's the Edward Fagan saga again (John Covaleski, New Jersey Law Journal, Jan. 20). For earlier installments, see Aug. 13, 2004 and links from there.

In a severe blow to the federal government's wretched racketeering lawsuit against major tobacco companies, a panel of the D.C. Circuit, split 2-1 along ideological lines, has held that the Justice Department can't seek disgorgement penalties of $280 billion against the companies. (AP/Forbes; Fox News). For our commentaries on this bipartisan disgrace of a lawsuit, see Sept. 21 and links from there, as well as Sept. 24. Reactions: Competitive Enterprise Institute, Mike DeBow, Anthony Sebok.

By reader acclaim: "The Yankee legend has filed a $10 million lawsuit against Turner Broadcasting Systems for using his name in a 'hurtful' advertisement for its 'Sex and the City' reruns." (Dareh Gregorian, "Unberrable 'Sex'", New York Post, Feb. 2; "Yogi Berra sues for $10M over sex ad", CNN/Money, Feb. 3; complaint at The Smoking Gun). At his Sports Law blog, Greg Skidmore, our guestblogger, thinks there may be something to Berra's claim (if not its $10 million demand) under the current state of the law.

"Ohio Attorney General Jim Petro has asked the Ohio Supreme Court to sanction four lawyers who handled a legal challenge, later withdrawn, to last year's presidential election in Ohio." The challenge focused on the long lines faced by voters, a claimed shortage of voting machines in African-American neighborhoods, and potential fraud. The AG's motion calls the election challenge "meritless" and claims it was done for "partisan political purposes." The motion continues, "A contest proceeding is not a toy for idle hands. It is not to be used to make a political point, or to be used as a discovery tool, or used to inconvenience or harass public officials, or to be used as a publicity gimmick. [It] is a wholly inappropriate forum to address the localized problems of long lines, shortages of machines, failing to receive notice of the proper voting precinct or casting of provisional ballots." (Reginald Fields, "Attorney general's call to punish lawyer is reply to election challenge," Cleveland Plain-Dealer, Jan. 19; Editorial, "Blaming the messengers," N.Y. Times, Feb. 3). See also earlier posts (Dec. 20; Dec. 15.)

"A nonprofit group that objects to a 2001 [GAO] report on Title IX, the 1972 law that bars gender discrimination at schools receiving federal funds, has decided to sue the messenger. The report, 'Intercollegiate Athletics: Four-Year Colleges' Experiences Adding and Discontinuing Teams,' found that the number of men's and women's sports teams both increased from 1981 to 1999, although the rise in men's teams was smaller. The report was a blow to critics who argued that enforcement of Title IX had encouraged colleges and universities to cut men's programs to comply with the law." So, one group hurt by the study, the College Sports Council, decided to sue, claiming that the methodology was flawed and that the results have "misled" Congress. Comptroller General David M. Walker said that this is the first time the GAO has been sued over the contents of a report. But, as Walker said, "In America, anybody can sue anybody about anything." (Christopher Lee, "Nonprofit Sues GAO Over Title IX Report," Wash. Post, Jan. 10).

As I reported over on Sports Law (Feb. 1) and is also reported on Common Good (scroll down), disgruntled parents should beware the potential wrath of their children's coaches. Parent Marc Martinez was not happy with his son's baseball coach, John Emme, and filed a lawsuit against him "alleging that [coach Emme] hurt his son's chances at a college baseball scholarship" by forcing him to throw too many pitches and by making "derogatory comments about [his] pitching ability to potential college coaches." ( Martinez's son had a 4-7 record that year.) The case received both local and national media attention and Martinez was not kind in his descriptions of Emme. So, Emme countersued for damage to his reputation. The jury favored Emme, dismissing Martinez's claims against him and awarding the coach $700,000. Said one juror, "I think this should send a message to parents." (Dave McKibben, "Corona del Mar High Coach Big Winner in Slander Suit," L.A. Times, Jan. 28).

Michael Jordan sued his ex-lover in 2002, claiming that she attempted to extort $5 million from him. The woman, Karla Knafel, countersued and claimed that "Jordan owed her the money for remaining silent and agreeing not to file a paternity suit after she became pregnant." The district court dismissed the case, stating that the claim was extortionate and against public policy. The state appellate court, in a ruling yesterday, overturned this ruling and reinstated the case. The court wrote that the claim "is not inherently coercive or exploitive or motivated by an improper influence" and should only have been dismissed "if it is clearly apparent that no set of facts can be proven" entitling her to win. "We find that whether this particular oral agreement was exploitive or coercive is a matter best left to the trier of fact." (Mickey Ciokajlo, "Jordan Headed Back to Court," Chicago Trib., Feb. 4).

Colorado: "Two Durango teens thought they'd surprise neighbors with nighttime deliveries of home-baked treats. But one woman was so terrified, she sued and has won." But Wanita Renea Young, 49, was so unnerved by the knocks at her door at 10:30 p.m. that she called sheriffs and then sought emergency room care for an anxiety attack. The teenage cookie-leavers, Taylor Ostergaard and Lindsey Jo Zellitti, wrote her letters of apology, but she sued anyway and won $900. (Electa Draper, "Cookie klatch lands girls in court", Denver Post, Feb. 4). More: National Review Online notes the case and radio host Steve Gill tells how to send the girls money. A day or two later: public support and media appearances roll in for the cookie girls (Denver Post, Feb. 6; more). And David Giacalone enters a dissent.

"A train conductor won an $8.5 million settlement from a railroad after claiming that a 2002 collision between his commuter train and a freight train worsened his alcoholism. Patrick Phillips, 52, contended that a mild concussion suffered in the crash triggered a desire for alcohol that transformed him from a 'controlled' alcoholic into one who drank himself into malnutrition and eventual dementia, his lawyer said. Burlington Northern and Santa Fe Railway confirmed Tuesday that it settled the case out of court." (AP/Lakeland Ledger, Feb. 2; Dan Weikel, "Conductor's Crash Suit Is Settled", L.A. Times, Feb. 2).

It isn't just happening to trains (see Jun. 29): "For over half a century, kits have been sold that enable military history buffs to assemble scale models of military ships, aircraft and vehicles. But that era is coming to an end, as the manufacturers of the original equipment, especially aircraft, are demanding high royalties (up to $40 per kit) from the kit makers. Since most of these kits sell in small quantities (10-20,000) and are priced at $15-30 (for plastic kits, wooden ones are about twice as much), tacking on the royalty just prices the kit out of the market." (James Dunnigan, "Lawyers Lay Waste to Military Models Industry", Strategy Page, Feb. 3)(via Instapundit).

From north of Boston: "The Norman Rockwell image of children sledding in New England snow is being replaced by a snowy hill with a 'No Trespassing' sign posted. In many cases, golf courses offer the best sledding in town, but higher insurance rates -- and in some cases a refusal to insure -- have pushed many golf course managers to ban the traditional winter activity." (David Rattigan, "This winter, sledders finding it a tough go", Boston Globe, Jan. 6)(via Common Good Society Watch). For similar reports from New Jersey, see Jan. 28.

About a year ago we printed a reader letter saying that (Symantec) Norton Internet Security was blocking access to our site because, with all our discussion of firearms litigation, we had too much talk about "weapons". Now Martin Grace is reporting the same problem (Feb. 1).

The California Supreme Court has agreed to review a judgment of $500 million against Genentech, a California biotechnology company. The judgment, which was upheld by an intermediate state appellate court, awards $300 million in compensatory damages and $200 million in punitive damages to the City of Hope, a cancer research center. Genentech and City of Hope collaborated in the 1970s on a methodology for inserting human genes into bacteria and using them to produce medically useful proteins, such as insulin. This development led to the first drugs made by the biotech industry. Genentech held the patents on these technologies and was to pay royalties to City of Hope. City of Hope claims that through fraud and concealment, Genentech cheated the research center out of hundreds of millions of dollars. (Bob Egelko, "State's highest court steps in Genentech dispute over royalties to be heard by justices," S.F. Chron, Feb. 3).

Genentech claims that the contract required royalty payments only on patents using DNA synthesized by City of Hope. The appeal does not focus as much on the compensatory damages for breach of contract, but stresses that assessing punitive damages sets a dangerous precedent. Genentech and amici warn that assessing tort liability may stifle innovation by "reduc[ing] investment in research and development for [intellectual property] that is not yet patented -- that is, the very newest technologies with the greatest potential social value." (Mike McKee, "Calif. Justices to Review $500 Million Judgment Against Genentech," The Recorder, Feb. 3). The knowledge that they could be liable for punitive damages if a mistake is made could prevent a number of biotech companies and research facilities from collaborating with one another, impeding biomedical and scientific development. The ruling also affects any other type of royalty agreement.

Yesterday we upgraded to the current version of Movable Type from the old version we'd been running. I've noticed a few resulting glitches in font display, etc., and will be working to fix those over the next couple of days. Feel free to let me know about any problems you notice on the site that may be related to the switch.

In December, Kevin Lindsey, a public school teacher and principal for thirty years, was arrested and "charged with two counts of child abuse, two counts of second-degree sex offense and one count of third-degree sex offense." His name, and the allegations that he had abused two students in the late 1970s, made headlines in his community. Three weeks later, the charges were dropped because of a lack of evidence about the girls' "recovered memories" and everything went back to normal for Mr. Lindsey. Right?

Not quite. Though he has been reinstated as the principal of his school after briefly being reassigned to the district office, one can only imagine the long-term damage done to his reputation. Now he has filed suit against the women, asking for $8 million for "malicious prosecution, defamation and invasion of privacy." (Sara Neufeld, "Principal files lawsuit against accusers," Baltimore Sun, Feb. 2).

In a rare move, an Israeli court has awarded "American"-style punitive damages against defendants in an assault case. In addition to awarding 700,000 shekels (NIS) for direct damages, the court also awarded 300,000 NIS in punitive damages both to teach the criminals a lesson and to deter similar conduct. The Israeli courts have had the authority to issue punitive damages but were waiting for a "suitable" case. The judge said in issuing the ruling: "The awarding of punitive damages is indeed reserved for unusual and extraordinary cases, and I firmly believe that this is an unusual and extraordinary case. It is not every day that two people conspire to grievously harm another, pouncing on him with knives, practically slaughtering him and causing him such extensive wounds." (Anat Roeh, "Teaching criminals an expensive lesson in the 'American' way," Haaretz Daily, Jan. 31). It will be interesting to see if judges in Israel continue to reserve punitive damages for such extraordinary cases or if this is the beginning of a more "American" system of compensation.

Dillard's has agreed to pay $15 million to the family of a young girl who lost three fingers when they became trapped in an escalator in one of its Florida stores. At the time of the settlement, the jury had already awarded the family $9.4 million in compensatory damages and was about to hear evidence in the punitive damage phase. The department store chain admitted some liability for the accident, because the escalator had a history of catching shoppers' shoes. ("Dillard's must pay $9 million to girl maimed by escalator, South Florida Sun Sentinel," Feb. 1)

The jury, however, assigned only fifteen percent of the blame to the little girl's mother, who left her five year-old unsupervised in the store. At the time of the incident, the girl was playing on the down escalator, running and jumping up it in the wrong direction. She slipped while doing so and her fingers became trapped. (Jamie Thompson, "Dillard's blames escalator accident on girl's misuse," St. Pete Times, Jan. 28)

Apparently, some members of the jury have not seen the movie Mallrats, which clearly warns of this danger. At least two jurors wanted to give the little girl all $35 million asked by her lawyers. (Jamie Thompson, "Settlement Surprises Jurors," St. Pete Times, Feb. 2)

I apologize to all that turned out hoping for a fantastic new guestblogger. Sadly, it is only me - Greg from the Sports Law Blog. Thank you to Walter and Ted for the gracious invitation. This is a topic I am very interested in and I look forward to contributing. Please feel free to email me if you have any comments or suggestions. More posts will follow later today.

We previously reported (Jan. 21) on Daniel Lanzaro's drunk driving accident litigation; the little girl he paralyzed won a $105 million verdict against Aramark over beer sales at Giants Stadium because Lanzaro did some of his drinking there that day, in part by bribing a beer vendor to ignore Aramark's two-beer-per-purchase rules. (Before the game, Lanzaro purchased a six-pack of Heineken; he did some drinking at two strip-clubs after the game, as well.) The New Jersey Law Journal has more on the case:

• The NFL defendants settled for $700,000, despite prevailing on a summary judgment motion;
  
• Judge Richard Donohue excluded evidence that Antonia Verni's father might have prevented the injuries to his daughter had he put the two-year-old in a car seat rather than an adult seat-belt;
  
• Verni also sued Toyota; Verni's Corolla didn't fare well when Lanzaro's pickup slammed into it head-on, and Toyota paid $190,000 to get out of the case;
  
• There's collateral litigation to be had among plaintiffs' family members and sets of lawyers over who gets the money. And, of course, there will be an appeal.

As previously reported, the judge also excluded evidence of Lanzaro's two previous drunk-driving arrests. (Henry Gottlieb, "In Wake of Record $105M Verdict, Fee Fights and Coverage Contests Emerge", Feb. 2; Wayne Coffey, "Wasted Innocence", NY Daily News, Jan. 30; Kibret Markos, "Expert backs beer vendor", The Record, Jan. 12). As famous sportswriter/treacle-author Mitch Albom notes, "Either your stadium goes dry, or people will leave drunk."

A correction: we previously reported that the entire $135 million verdict was awarded against Aramark; in fact, $30 million of the verdict is damages against the drunk driver, Daniel Lanzaro, who had already settled for the limits of his insurance coverage. Aramark's share is $30 million compensatory, $75 million punitive, and about $6-7 million in interest, with the interest continuing to accumulate. After he settled with the plaintiffs, Lanzaro changed his story to be more favorable to the Vernis' case. (Ana M. Alaya, "Lawyer for Giants Stadium beer vendor loses bid for mistrial", Newark Star-Ledger, Jan. 13).

An additional thought: A big argument for plaintiffs at trial was the claim that Aramark, which serves to the two million or so fans who attend football games at Giants stadium each year, had been averaging about seven complaints a year for selling beer to drunks, but only took disciplinary action a fraction of the time. The press hasn't covered Aramark's response to this assertion, but one wonders if fear of employment litigation stayed its hand. Earlier damned-if-you, damned-if-you-don't files include Aug. 30.

Another point: A reader writes to note that Aramark was probably selling watered-down beer, which would be further evidence that post-game drinking was responsible for Lanzaro's .266 blood-alcohol level, though, again, it shouldn't matter: Aramark didn't make the guy drive drunk.

In 1986 California model Russell Christoff was paid a modest sum for doing a photo shoot with a photographer working for Nestlé but assumed nothing had come of it. Years later, Christoff happened to glance at a jar of the company's Taster's Choice instant coffee and realized that the tiny "satisfied coffee drinker" face on its label was his, it having appeared there for years. And now a jury in Glendale, outside Los Angeles, has ordered the Swiss-based food company to pay Christoff $15.6 million for using his picture without adequate permission. "The jurors determined that Glendale-based Nestle should have paid Christoff $330,000 for the use of his likeness. They also voted to hand Christoff damages equal to 5% of the profit from Taster's Choice sales during the six-year period, or $15.3 million," invoking a California law intended to protect celebrities' image. A company lawyer says the employee who pulled the photo for use thought the requisite permissions had been obtained on it. So now if you notice Legal being really, really prickly about signing off on any proposed use of photos picturing people, you'll know why. (Meg James, "Verdict Creates Instant Millionaire", Los Angeles Times, Feb. 1; James Bone, "The tiny face on this jar of coffee has just cost Nestlé 15m", The Times (UK), Feb. 2).

"A stripper mauled by a tiger in an Ontario safari park has won $650,000 in damages because her scars meant she could no longer work, Canadian media said on Friday." Jennifer-Anne Cowles was awarded "some $650,000 in damages, almost half of it to compensate for income she would have made as a stripper. Her musician boyfriend, David Balac, won Canadian $1.7 million ($1.37 million), because his injuries left him unable to work as an accordion player." (Reuters/CNN, Jan. 31). James Taranto at WSJ "Best of the Web" comments (Jan. 31): "Canada has some surprising priorities if an accordion player is worth twice as much as a stripper." (& letter to the editor Feb. 13).

"A Manhattan pedestrian, paralyzed in an accident caused by a driver of a rental car, has been awarded a $20 million judgment against Budget Rent-A-Car". The driver of the car had run a red light and allegedly was driving with a suspended license; a lawyer for the victim, Ethan Ruby, said his client might not have recovered if not for New York's uniquely harsh vicarious-liability law which puts firms that rent or lease cars on the hook for virtually all accidents caused by their customers. (Dareh Gregorian, "Car-Rent Firm Hit for $20M", New York Post, Feb. 1). For more on the New York law, see Sept. 5, Apr. 25, and Apr. 4, 2004 and links from there.

Another parent's pro se complaint: this time Luping Qu is suing the North Carolina School of Science and Mathematics in Durham, "asking a judge to overrule a teacher who gave his daughter a bad grade." (Raleigh News & Observer, Feb. 1).

Once again the deep pocket pays for the crime: at the end of last year the Appalachian School of Law in Grundy, Va. agreed to pay $1 million "to settle four lawsuits over a deadly shooting rampage by a struggling student. ... The lawsuits accused the [school] of ignoring repeated warnings that Peter Odighizuwa was a threat before he opened fire in 2002, killing the dean, a professor and a student and wounding three other students. Odighizuwa pleaded guilty earlier this year and is serving six life sentences. ... The plaintiffs had argued that the school should have foreseen the violence because the 46-year-old Odighizuwa -- who has been diagnosed with paranoid schizophrenia -- had a history of outbursts, threats and other disruptive behavior." On the other hand, the Nigerian-born Odighizuwa "told The Associated Press in an interview earlier this year that the students should not get any money from the school. 'The law school isn't a psychiatrist. It doesn't know what's in my head,' he said." ("Settlement Reached in Suits Over Law School Shooting Rampage", AP/Law.com, Jan. 3)

Another all-new guestblogger will be joining us for a week beginning tomorrow. Be sure to stop by.

Conducting, um, outreach, to potential clients among survivors of the Glendale commuter train catastrophe ("In Bad Taste", LAist, Feb. 1)(via Decs & Excs).

An editorial today ("Fat Chance", Feb. 1)(sub - $) quotes Ted's post from last week analyzing a court's resuscitation of the McDonald's obesity lawsuit. For more on obesity litigation, see, among many other 2004 posts, Dec. 3, Aug. 9, May 16, Mar. 13 and links from there, and Dec. 8.

If a doctor has made three payouts in malpractice cases, there must be real grounds to worry that his care is substandard, right? In Florida, after all, voters last year approved a trial-lawyer-backed measure providing that physicians who lose three trials (as distinct from payouts short of that point) will have their license yanked. And yet if figures from one medical weblog are to be accepted, three payouts would not be considered anything special among members of one of the profession's most elite specialties -- neurosurgery -- in one of the state's most populous counties. According to a Nov. 21 item posted by Joseph F. Phillips, M.D., on wmed.com: