Radley Balko has more (Mar. 22, Mar. 23, Mar. 31, and again Mar. 31) on how the use of these devices tends to turn criminality into a carefully cultivated cash cow. For more, see Mar. 10, 2004 (and links from there) and Jul. 22, 2004.
While at The Agitator, check out the news of legislative proposals to confiscate for a month cars with overly loud radios (Mar. 22; Contra Costa County, Calif.) and (over-)regulate online dating services (Mar. 20; California legislature).
If you happen to blog about political/campaign issues from your employer's computer at work, watch out: you may be caught in the web of campaign-finance regulation under draft rules from the Federal Election Commission. (Eugene Volokh, Mar. 23; Ryan Sager, "Mice and Free-Speech Cookies", New York Post, Mar. 30; Log and Line; Captain's Quarters). For more, see Mar. 4 and Mar. 17. More: May 20.
I'm scheduled to be a guest today at about 2:10 p.m. Eastern on Grover Norquist's "Leave Us Alone" radio program streamed on the RighTalk network.
In a rancorous fourteen-month divorce trial, John Ofori-Tenkorang disputed the existence of his marriage to Jacqueline Anom, claiming marriage photos had been falsified; claimed to have routinely thrown away bank records, failing to disclose what the judge concluded were assets exceeding $1.7 million; and "wouldn't stipulate that he wasn't a close relative of his wife's, or under the care of a conservator -- two grounds for invalidating a marriage, forcing those issues to be proven in court." Judge Kevin Tierney compared Ofori-Tenkorang's tenacious assertion of legal issues to the 1942 battle deep inside Russia: "German troops surrounded the Soviet city of Stalingrad on the Volga River. They used aerial attacks, artillery bombardment and intensive panzer assaults. The city was reduced to rubble. Virtually no building stood." (Thomas B. Scheffey, "'Stalingrad' Defense Tactics Prove Costly in Divorce Case", Connecticut Law Tribune, Mar. 28).
More: reader (and historian) John Steele Gordon (his site) writes:
It sounds like the judge is a better jurist than a historian. Stalingrad, backed by the Volga River, wasn't surrounded. That's how the Russians were able to resupply their troops and hold the city. Then, with Zhukov's offensive, in November, 1942, it was the Germans who were surrounded and trapped in the Stalingrad pocket.
Those reports from Bristol, England last summer ("It's sunny, stay inside", Jul. 6) turn out not to be an isolated case: in Montgomery County, Maryland, ordinary sunscreen lotion is considered a medication for which a doctor's note is required, while in adjacent Howard County, a student who wishes to use sun protection cream must bring in a parent's note and the bottle must be kept with the school nurse. The American Cancer Society, which favors wide sunscreen use as a protective against skin cancer, is upset. (Daniel de Vise, "Bill Would Legislate Maryland Students' Use of Sunscreen", Washington Post, Mar. 29)(via Taranto). More on zero tolerance: Kris Axtman, "Why tolerance is fading for zero tolerance in schools", Christian Science Monitor, Mar. 31.
Cochran is most famous for, with the help of a passive Judge Ito, gulling a jury into acquitting double-murderer O.J. Simpson, but he was in a number of other notable cases: for example, as a young deputy city attorney, he unsuccessfully prosecuted Lenny Bruce for obscenity in 1964. Cochran was already a prominent Los Angeles attorney when he joined the nightmarish "Dream Team," and then parlayed his national fame into a successful personal injury business while continuing to play the celebrity trial game. To his partial credit, whenever asked if he thought Simpson was innocent, he carefully couched his reply to dodge the question by noting that Simpson always maintained his innocence. (Adam Liptak, NY Times, Mar. 30).
A confession: though Cochran wouldn't have known me from Adam, someone digging through the LA Superior Court files might find a case where he and I were both on the caption page as co-counsel. I disagree with many of Cochran's outside causes, and disagree with many of the results he achieved, but his skills were unquestionable--he was by far the most charismatic man I'd ever met, even when he was wearing a suit in a shade of yellow no other person I know could've gotten away with.
I'm not inclined to criticize him today. Cochran took advantage of flaws in the system on behalf of his or her clients, and did that about as well as any other trial lawyer of his era. Blame--and fix--the system, not the man for whom the system provides the economic incentive to act against society's best interests.
Walter's Overlawyered entries on Cochran: Dec. 6; Apr. 29; Apr. 15; Aug. 29, 2003 (and links therein); pre-2003. (& letter to the editor, Jun. 8).
"Health and safety officers have closed Britain's last 'moving staircase' fairground attraction, even though the ride has operated in complete safety for the past 72 years." The owner of the former Butlin's camp at Felixstowe says he believes the cakewalk, which has been running since 1933, is the last one left in Britain; "inspectors from the Health and Safety Executive have ruled that it must be closed because it no longer meets modern safety standards." (David Sapsted, Daily Telegraph, Mar. 26; "Health and safety takes the cake", Suffolk Evening Star, Mar. 25).
25-year-old Rhonda Maloney's car was stuck in the snow early one February morning. Robert Harlan stopped, but not to help: he admittedly raped Maloney. Maloney escaped Harlan's vehicle and flagged down a passing motorist, Jaquie Creazzo. Harlan responded to Creazzo's rescue attempt by chasing after her, shooting her three times just outside the Thornton, Colorado police station, paralyzing her in the process. Harlan escaped; Maloney's body, beaten and shot, was found seven days later. DNA and fingerprint evidence led to Harlan, who conceded the act in his trial, but sought to blame it on drugs. Nevertheless, a jury convicted him of first-degree murder.
At the penalty hearing, two women testified that Harlan had sexually assaulted them, as well. The jury was then instructed by the judge, as per Colorado law at the time, to make an "individual moral assessment" in deciding whether Harlan should receive a life sentence or the death penalty. (As a wise judge once noted to me, the judicial system cannot decide whether someone will die, but only when.)
In the closing arguments, Harlan's attorneys invoked the Bible, and G-d's mercy on Abraham, and asked the jury to impose a life sentence. With these instructions, some of the jurors allegedly consulted the Bible itself, and one juror says that a few considered the relevant provisions in Leviticus that countenanced a death sentence for murder. Eight years after the trial, the jurors were dragged in front of the court to testify; several jurors denied seeing a Bible in the jury room, but the judge resolved the disagreement by finding that the jurors did consult the Bible. By a 3-2 vote the Colorado Supreme Court affirmed. The death sentence was revoked, and a life sentence without parole was given.
Tough question: we probably don't want Leviticus to be the law of the land. The pork lobby would never countenance Leviticus 11:7-8. On the other hand, the Colorado Supreme Court acknowledged that it would've been appropriate for a juror to speak the phrase "eye for an eye" in the course of argument during deliberations. And, indeed, during the voir dire, Harlan's attorney asked one of the jurors about his feeling about that maxim. If jurors can be trusted with following the law in the face of an oral discussion, why does the written word have such power to cloud jurors' minds? The precedent won't matter much: Colorado changed its law in 1999 to have judges determine death sentences, though, of course, Ring v. Arizona put the jury back in charge of the decision. It seems a hair was split awfully thin to overturn a death sentence. The dissent seems to have the better of of the argument. (People v. Harlan (Colo. Mar. 28, 2005)); People v. Harlan, 8 P.3d 448 (Colo. 2000); Kirk Johnson, "Colorado Court Bars Execution Because Jurors Consulted Bible", NY Times, Mar. 29; History Channel documentary; "Murderers' Row", Westword, Jun. 7, 2001; Colorado Attorney General Ken Salazar press release, Jun. 24, 2002). The Coloradoans Against the Death Penalty page on the case has additional links. Why didn't the Court let a new jury resolve the question instead of simply impose a life sentence? I don't know the answer to that.
Side trivia note: in November 2001, Justin Goetz, armed with three firearms, set the Creazzo family's car on fire and threatened to shoot his ex-girlfriend, Creazzo's daughter--but the paralyzed Creazzo defended herself by shooting Goetz first. (Sue Lindsay, "Man sentenced in bid to gun down good Samaritan (17 years in slay attempt)", Rocky Mountain News, Oct. 3, 2002; AWARE page on Creazzo).
I was in the New York Post on Sunday, reviewing John D. Gartner's book The Hypomanic Edge: The Link Between (a Little) Craziness and (a Lot of) Success in America, a book that straddles the pop-psychology and business genres. No real legal/policy content, but the byline does mention this site.
35-year-old Mark Reynolds was attacked and half-eaten by a mountain lion, while he crouched to fix his bicycle along Cactus Ridge Trail on January 8, 2004. The same day, the same cougar attacked Anne Hjelle, who was rescued. Reynolds's family sued Orange County, California, but dropped the suit in the face of pressure from Reynolds's fellow cyclists, who were worried that the lawsuit would provoke the county into prohibiting wilderness cycling. (Rachana Rathi, "Mauled Cyclist's Family Drops Lawsuit", LA Times, Mar. 29; Rachana Rathi, "Fatally Mauled Biker's Parents Sue O.C.", LA Times, Mar. 26; LA Times Editorial, "Joy, and Danger, of Wilderness", Mar. 27; another website summary of lion attacks; Dan Koeppel, "The jaws of death", Mountain Bike, Summer 2004). Wildlife officials destroyed the cougar responsible for the attacks, but California law otherwise prohibits hunting or killing mountain lions.
So, you're a police officer and you see a Nissan truck zoom through a stop sign at 40 mph. You give chase, but the car speeds up and drives even more erratically. Do you:
(a) View this as a sign that this maniac driver must be stopped?Lawsuit after lawsuit posit that police act inappropriately by not stopping the chase -- even though that effectively creates a policy that rewards, and thus encourages, miscreants who put other drivers at risk by trying to escape the police. Simply put, policy (b) is the policy that will guarantee that drivers try to drive dangerously to force police to peel off, while policy (a) encourages all but the most wildly irrational to pull over.or
(b) Stop the chase. The guy is driving dangerously!
In California on March 16, 2003, Joseph Boldt, allegedly under the influence of meth, sped up in his stolen vehicle after running the stop sign, and Sergeant Mark Farber followed. Boldt decided to try to escape by going southbound in the northbound lanes of I-280, at speeds of up to 110 mph, causing three other accidents before smashing into an innocent driver, Girish Wadhwani, critically injuring him. Boldt's passenger, Bobby Luke Kleinheinz, also wanted on an arrest warrant at the time, wasn't wearing his seatbelt and was killed; the wheelchair-bound Boldt faces second-degree murder charges, though his trial has been postponed at least a couple of times because of crash-related health problems. Kleinheinz's family is, of course, suing the police, rather than Boldt. The Association of Bay Area Governments paid Wadhwani $3.15 million for his broken bones. "Millbrae officials said they believed Farber acted appropriately but agreed to the settlement for fear of losing an even larger award during a civil trial." (Ryan Kim, "$3.15 million settlement in high-speed crash", San Francisco Chronicle, Mar. 26; AP, Mar. 26; Amy Yarbrough, "Man awarded $3.15 million in damages after police chase", San Mateo County Times, Mar. 19; "Crash trial postponed", SF Examiner, Sep. 14; Ethan Fletcher, "Chase case heads for trial", San Francisco Independent, Jul. 23; Michelle Durand, "Fatal wrong-way driver begins murder trial today", San Mateo Daily Journal, Jun. 8; Michelle Durand, "Murder trial delayed for fatal wrong way driver", Dec. 24, 2003; WPIX-5, Mar. 19, 2003; previous OL posts on high-speed chases: Mar. 15 & Sep. 21, 2003)(& letter to the editor, Apr. 12).
Florida, like many states, prohibits attorneys from actually chasing ambulances, but some lawyers try to circumvent this. David A. Barrett had one of his paralegals take training to be admitted as a hospital chaplain, whereupon he would solicit clients for Barrett while wearing a pastor's uniform. The Florida Supreme Court did not look kindly upon this when he was caught. David Giacalone has enough links to all the details to shake a stick at.
Nahid Davoodabadi, honeymooning in Hawaii in 1999, disappeared while kayaking. Her husband, Manouchehr Monazzami-Taghadomi, said she was killed by a shark, and set about suing the kayak rental company, Extreme Sports Hawaii, for the accident and the federal government for failing to rescue him. Extreme noted to a jury that the company had told the couple to kayak in an area close to shore protected from winds. Extreme also noted that Maui police found the kayak, its paddles, and a lifejacket--the latter without any tears or bites (though with all the buckles unbuckled). The police also found two paddles near the kayak, one leaning against rocks, though Monazzami said, among other fishy things, that he lost one of the paddles in the shark attack. (Police never charged Monazzami, who successfully petitioned a Hawaii court to have his wife declared dead, rather than missing.) The jury exonerated the company. The Ninth Circuit recently issued a ruling affirming on technical grounds the district court's summary judgment for the government. It appears Extreme settled the case for some unknown amount rather than go through the expense of litigating the appeal. (Monazzami-Taghadomi v. United States (9th Cir. Mar. 22, 2005); Debra Barayuga, "Company not guilty in Maui kayak death", Honolulu Star-Bulletin, May 9, 2003; "Kayak business cleared in 1999 death", Honolulu Advertiser, May 12, 2003; Reuters, Mar. 23, 1999; Jaymes K. Song and Gary T. Kubota, "'Unusual': No blood on kayak", Honolulu Star-Bulletin, Mar. 26, 1999; Charles Memminger, "Shark tale now is part of our history", Honolulu Star-Bulletin, Mar. 26, 1999; Brian Perry, "Tourists wary in wake of latest shark attack", Honolulu Star-Bulletin, Apr. 1, 1999; Monazzami-Taghadomi v. 25 Knots Inc. (D. Hawaii, No. CV01-00171 ACK-KSC)). For legal scholars: one asks whether anything remains of the doctrine of "assumption of the risk" if a company called "Extreme Sports Hawaii" can't invoke it without going through a trial and an appeal.
"We are seeing medical students today who are making their career decisions based on the risk of liability in that speciality," says Dr. Alan C. Woodward, president of the Massachusetts Medical Society. (Sue Scheible, "Docs' nightmare: Getting sued; Fear of malpractice can drive how treatment progresses", Mar. 19).
We're honored for this website to have such a prominent place in a column in the latest Forbes. (William Baldwin, "Seventh-Amendment Follies", Apr. 11). Links to the stories mentioned: $27 million Ford Escort verdict; $49 million punitive damage Dodge Caravan verdict and follow-up; $4.9 billion Chevy Malibu verdict. You may also be interested in our related site, Point of Law, which has a more academic focus, including a section on the issue of science and the courts.
The latest issue of Forbes also has an excellent story about the junk science behind mold litigation. Dr. Gary Ordog travels the country, diagnosing just about every conceivable illness as being caused by exposure to mold.
A California judge once said Ordog "lacks credibility completely" after he testified that he was chief toxicologist at Henry Mayo Newhall Memorial Hospital in Santa Clarita, which has no such department; that he'd published "hundreds" of scholarly articles, when a search of the PubMed database turns up fewer than 70, almost all of them dealing with gunshot wounds and trauma; and that former President Bill Clinton called him personally to run a special mold commission for the Environmental Protection Agency, even though an EPA spokesman says the agency's authority doesn't include indoor air quality. Ordog "is completely abusing the system," says James Robie, a defense lawyer with Robie & Matthai in Los Angeles who has cross-examined Ordog several times. "He is possibly the most dishonest man I have ever met."(Daniel Fisher, "Dr. Mold", Apr. 11). For more on mold litigation, see May 26 and links therein.
Two bad ideas in one: A Florida state House committee voted 6-2 to forward on H-837, a bill some legislators say will give university students a legal cause of action to sue universities and professors who "ridicule" their beliefs.
"Some professors say, 'Evolution is a fact. I don’t want to hear about Intelligent Design, and if you don’t like it, there’s the door,'" [Rep. Dennis Baxley, R-Ocala] said, citing one example when he thought a student should sue.The bill is expected to pass the Florida House. It's not quite clear that the bill will have the effect of opening the courtrooms to every crackpot student offended by a professor's lecture, but it's not comforting to see the absence of a denial. (James Vanlandingham, "Capitol bill aims to control ‘leftist’ profs", Independent Florida Alligator, Mar. 23; Joe Follick, "House OKs Student `Free Speech' Bill", Lakeland Ledger, Mar. 23; James Vanlandingham, "Pending academic freedom bill comes under fire", Independent Florida Alligator, Mar. 24).
Consumers Union, the publisher of Consumer Reports and prominent member of the Litigation Lobby, recommends that readers save money on prescription drugs by buying higher dosage pills and dividing them with a pill-splitter to get the correct dosage. They're not the only ones who try to save money this way: many HMOs implement the same policy. There's no evidence that this has injured anyone, but plaintiffs' lawyers sued Kaiser, anyway, claiming it was consumer fraud, and seeking half a billion dollars. Kaiser disputes the contention that the policy is mandatory; they say their policy is voluntary, and applies only to a handful of "scored" pills where differences in dosage would not be critical. Lower courts granted summary judgment on the case, and this week the California Supreme Court gave it the final coup de grace by refusing to hear an appeal. While press coverage suggests that the retroactivity of Proposition 64 could have been decided by this case, the lower courts decided it without resort to the new law, which would've precluded the suit in the first instance. (Dan Walters, "Businesses win twice in tort battles, but ...", Sacramento Bee/Victorville Daily Press, Mar. 9; Vicki Lankarge, "Study: Pill-Splitting Saves Money, Is Safe", Health Care News, Dec. 1, 2002; "Kaiser sued over pill splitting", American Medical News, Dec. 25, 2000; CJAC press release, Mar. 8; Timmis v. Kaiser Permanente, No. A102962, 2004 Cal App Unpub Lexis 11553 (Dec. 21, 2004)). More: see Jun. 13.
Philip James Dederer acknowledges seeing a "No Diving" sign on the Foster/Tuncurry Bridge in New South Wales, but dove anyway, and the 14-year-old became paralyzed as a result. He sued: "[The sign] just told me I shouldn’t dive – it did not put any danger into it." The court bought the argument, and Australian taxpayers are now on the hook for A$1,050,000. (Dederer v. Roads and Traffic Authority, 2005 NSWSC 185; "Bridge diving victim awarded $1m", Sydney Morning Herald, Mar. 18). An Australian blawger, David Starkoff, defends the judgment.
Yet it has become customary for lawsuits to make grand charges that controllers are responsible for crashes -- even in cases where the responsibility clearly resided between the left and right earcups of the pilot's headset. Why do they do this? It isn't because lawyers are against controllers (at least, not any more than they are against all of us). It's because controllers work for the FAA -- part of the federal government -- the ultimate in deep pockets. In other words, it's the reason lawyers do anything: in the legal profession, it's all about money.Aero-News.Net has an impressive refutation of a ruling against the FAA in a case involving the crash of an inexperienced lawyer-pilot, Donald Weidner, that killed him and three passengers. The FAA, found 65% responsible by Judge Timothy Corrigan in a bench trial, settled for $9.5 million. (Kevin R.C. O'Brien, "I Blew The ILS: It Must Be YOUR Fault", Mar. 21 and Mar. 22; "FAA To Pay $9.5 Million To Families From JIA Plane Crash", WJXT-4, Mar. 9; "Judge Finds FAA Largely To Blame For 2001 Plane Crash", WJXT-4, Nov. 16; Case No. 3:02-cv-01114-TJC-MCR (M.D. Fla.)).
In 1995, Chicago paid $5 million for an African-American consultant to work with a blue-ribbon panel to devise a race-neutral exam for promoting firefighters. Unfortunately, in the end result, whites were twice as likely to score "well-qualified" as blacks. In 2002, when it ran out of candidates who scored 89, Chicago stopped requiring that promoted firefighters score that high, and a federal district court has decided as a result that the test was racially discriminatory for the previous seven years. Chicago taxpayers may be on the hook for as much as an additional $80 million in back pay and front pay. (Glenn Jeffers, "Judge rules city fire exam biased", Chicago Tribune, Mar. 23; AP/Chicago Sun-Times, Mar. 23; Fran Spielman, "Exam bias ruling may cost city $80 million in firefighter lawsuit", Chicago Sun-Times, Mar. 24).
A question for readers: none of the press has mentioned it, but, in 2001, a labor arbitrator ruled that the city discriminates against whites when it promotes a lower-scoring minority over a white. (Fran Spielman, "City ordered to promote white firefighters", Chicago Sun-Times, Apr. 14, 2001). In 2002, a federal jury found that the 1986 test was fair, and that the city discriminated by promoting lower-scoring minorities over whites, awarding millions. (AP, May 18, 2002). These would appear to put the city in an impossible position. Or has something happened in the interim that obviates these earlier rulings? As an experiment, I've opened comments; please restrict your remarks to this latter question, and please remain civil and respectful.
Update: the 2002 decision's reverse-discrimination finding was affirmed in Biondo v. Chicago (7th Cir. Aug. 27, 2004), though the damages award was vacated. (Schrank blog discussion).
The decisions are arguably reconcilable: the two exams are different; Biondo involved an explicit quota. On the other hand, page 5 of the Biondo slip opinion explicitly endorsed the methodology used by Chicago that the district court condemned this week.
You may recall the $21 million verdict thrown out by the Michigan Supreme Court last year (Jul. 24) because of misconduct by Geoffrey Fieger at trial. (Gilbert v. DaimlerChrysler (Mich. 2004); parties' briefs; Brian Dickerson, "Judges use Fieger tactics to rebuke him", Detroit Free Press, Jul. 26; yclipse blog). Fieger had had a buddy "expert" social worker testify that the alleged harassment caused Gilbert's pancreatitis, and told the jury that Gilbert was like a "Holocaust victim."
After losing, Fieger responded by filing ethics complaints against the four justices who ruled against him, and, when that didn't work, filed a civil rights lawsuit in federal court against the justices. This tactic, far more often seen performed by unstable pro se litigants than by prominent trial attorneys, was, as could have been expected, rejected by the trial court and then by the federal court of appeals. (Gilbert v. Ferry (6th Cir. Mar. 10, 2005), affirming 298 F. Supp. 2d 606 (E.D. Mich. 2004)) (via yclipse).
Chambersburg, Pa., is losing its only independent certified nurse-midwife. Karen Brindle "had to close her practice because of liability issues with Keystone Women's Care. The closing leaves more than 60 women due to deliver in the next few weeks scrambling to find someone to deliver their babies." A new group calling itself "Mothers and Others for Midwifery-PA", which will work to change the law, held a rally for Brindle. (Willa Jessee, "Over 100 people support midwife", Carlisle Sentinel, Mar. 20). For more on midwives, see Mar. 15, 2004 and links from there, Aug. 1, and, on Point of Law, Mar. 6 of this year.
Donald Trump's reality show The Apprentice has settled a discrimination suit brought by a disabled attorney in February (see Feb. 10). The producers will pay out no money, but "the online application for potential Apprentice contestants has been changed to encourage the disabled to apply". (Charlie Amter, "'Apprentice' Discrimination Suit Settled", EOnline, Mar. 9)(via George Lenard).
Attorney Samuel Hirsch, who filed the first lawsuits blaming fast-food chains for his clients' obesity, apparently isn't happy over his unflattering portrayal in the documentary Super Size Me (see last Aug. 9). According to the New York Observer, Hirsch is suing filmmaker Morgan Spurlock and Samuel Goldwyn Films charging "Negligence, Unauthorized Use of Likeness, Disparagement to Reputation, and Defamation of Character, Fraudulent Inducement, False Misrepresentation, Damage to Business Reputation"; he's seeking compensatory and punitive damages and "disgorgement of profits." (Jake Brooks, "Spurlock's Super Size Lawsuit", New York Observer, Mar. 7)(likely to rotate off free site soon).
When tiny amounts of hazardous materials get spilled, major disruptions can result: "Suppose Marshall University had responded to a dropped vial of phenol by asking a janitor to clean it up, cautiously. The school would have feared, and perhaps rightly so, junk-science lawsuits over mysterious symptoms that someone near the spill might claim mysteriously to have developed. Evacuating the med school and bringing in the moon-suit patrol might have been unnecessary, but it reduced the school's tort exposure." (Gregg Easterbrook, "Hazardous Waste", The New Republic, Mar. 21).
From a column by Rob Asghar in the Ashland (Ore.) Daily Tidings on lawsuits over offensive remarks in the workplace ("Without a doubt, PC has gone too far", Nov. 22):
The correlation between litigiousness and gracelessness is no accident. Within religious communities, the term "legalist" denotes a person who gives little grace to others if they transgress even the slightest religious commandment. (This is especially ironic when the religion is supposed to be about grace.)For our hypersensitive secular society, we too have become legalists who feel that to sue is human and to forgive is a crime. And we are all poorer for this trend.
Using it to request sensitive information about companies that do business with the government, and then selling that information to competitors, has become a "cottage industry" in Washington over the past twenty years, reports Legal Times (Tom Schoenberg, "Spy Game: Corporate Rivals Use FOIA as Weapon", Mar. 16).
Auto Connection (Mar. 14, scroll to "Ford Appeals Frontier Justice") has some new material on the astounding $31 million verdict against Ford from Zavala County, Texas, last discussed in this space Mar. 7. A few snippets:
In the testimony that followed [a Feb. 22 mistrial motion by Ford], it was revealed that not only had [juror Diana] Palacios failed to acknowledge her romantic entanglement [with plaintiff's attorney Jesse Gamez] during jury selection, but had previously been a client of Gamez in other litigation, had been an aunt by marriage of one of the plaintiffs and indeed had solicited the plaintiffs to sue Ford and Guerrero and hire Gamez as their lawyer....Incredibly, Ford's motions were denied, but Juror Palacios was removed.
The next day's Express-News carried a story about the motions and denials.
But a mysterious man went around to all the distribution points in Crystal City, buying up all the papers before anyone could read them. The San Antonio newspaper management 130 miles away quickly got wind of this, replenished the newspapers and ran an editorial the following day denouncing the act as an attempt to keep Crystal Citians from learning of their local conflicts of interest. The miscreant was never identified.
The trial went on, plaintiffs maintaining that Ford was negligent, because if the Explorer had only been equipped with a type of laminated side glass used by less than one percent of the world's vehicles, the ejections and injuries would not have occurred.
Carl Murphy, 18, of Merseyside, England, has received £567,000 for injuries sustained while criminally trespassing on the roof of a private warehouse in 1996, from which he fell 40 feet, sustaining multiple injuries. Murphy, who has convictions for robbery, burglary and assault, "received his compensation after suing the company that owned the warehouse. He claimed that if the perimeter fence had not been in disrepair he would not have been able to gain entry and suffer his injuries." Although groups representing victims of crime expressed anger at his getting a sum 50 times higher than a murder victim's family could expect to receive from the Criminal Injuries Compensation Authority, Murphy was unapologetic about his windfall, saying he planned to buy "a few houses and a flash car": "This money is mine now and I'll do what I want." Murphy "was expelled from two schools in just over two years after his recovery and his family blamed the fall for his bad behaviour." And more: "His mother, Diane, and her partner, Kevin Parsons, both 36, are currently serving three years in prison for setting up a heroin and crack cocaine business from their council house." (Daily Telegraph, Mar. 14; Peter Zimonjic, "I'll buy houses and a flash car, says yob awarded £567,000", Daily Telegraph, Mar. 20; Joanna Bale, "Trespasser who fell through roof wins payout of £567,000", The Times, Mar. 14).
Among other lessons to be drawn from the case, it kind of casts doubt on the idea, often heard from trial lawyers on this side of the Atlantic, that people wouldn't feel such a need to sue if they had UK-style socialized medicine to take care of their injuries for them. More: Ralph Reiland comments in the American Spectator (Nov. 30).
Because aggregating headlines, first sentences of stories, and (sometimes) tiny little thumbnails of pictures constitutes an outrageous trampling on the French news service's intellectual property, it wants at least $17.5 million in damages. ("AFP sues Google for news aggregation", PhysOrg.com, Mar. 20). We covered the issue Nov. 9.
Ohio lawmakers are scrambling to change a recently enacted law which starting in May would forbid state residents from selling items on eBay unless they possess an auctioneer's license. "Under the original bill, anyone selling an item on eBay was required to use a licensed auctioneer or become an auctioneer. Becoming an auctioneer requires serving a one-year apprenticeship to an auctioneer, attending classes and other requirements." Last Wednesday the Ohio Senate passed a bill exempting online-auction sellers from the requirements; the bill "now moves to the Ohio House, where swift approval is expected after the Easter recess." The Ohio Auctioneers Association, however, is still pressing to get the state to regulate drop-off consignment shops which sell items on eBay for a fee. (Michael Sangiacomo, "Senate votes to exempt eBay sellers from auctioneer's license rule", Cleveland Plain Dealer, Mar. 17; "Ohio law would regulate eBay sellers", CNN/Money, Mar. 7).
Quotable: "Being involved in a lawsuit is a lousy way to spend your old age" -- author Dominick Dunne, 79, commenting on his agreement to settle, on terms which include an apology and an undisclosed sum of money, a defamation suit filed by former Rep. Gary Condit. (Michael Doyle, "Condit, Dunne sidestep big battle", Modesto (Calif.) Bee, Mar. 17).
Drunk driver William Timberlake, speeding at 60 mph, rear-ended the Ford Escort in which 46-year-old James Mikolajczyk was stopped at an intersection. Only 3% of fatalities occur in rear-end collisions, so Ford, like most car companies, designs its seat-backs to meet federal safety standards and provide additional protection in other types of collisions--with the unfortunate and unavoidable trade-off that the seat will not perform as well in a rear-end collision. Mikolajczyk's ten-year-old daughter survived, but Mikolajczyk's seat collapsed, his head hit the rear of the passenger compartment, and he never regained consciousness before dying three days later. A Cook County jury deliberated all of three hours before finding Ford 40% responsible. And because Ford was found more than 25% responsible, it is on the hook for the entire $27 million award, including $25 million in non-economic damages. Timberlake is in prison. Only the specialty legal press raised the issue of joint and several liability; the mainstream press didn't even mention the 40/60 split in comparative fault. (Bill Myers, "$27 million verdict in fatal accident", Chicago Daily Law Bulletin, Mar. 16 (via ICJL); Steve Patterson, "Ford, Mazda ordered to pay $27 million in death", Chicago Sun-Times, Mar. 17; Chris Hack, "Carmakers to pay in SE Side crash", Daily Southtown News, Mar. 17; Rafael Romo, "Jury Awards Millions In Fatal Crash Caused By Deffective [sic] Seat", WBBM-2, Mar. 17; Mikolajczyk v. Ford Motor Co., No. 00 L 3342 (Cook County, Ill.)). More seat-back litigation coverage on this site: Dec. 21; Nov. 24.
Bruce Pfaff, Mikolajczyk's attorney, previously won a similar seat-back case from an Indiana accident where a cocaine-and-PCP-impaired driver, Kevin Gaczkowski, rear-ended and paralyzed the plaintiff, Lydia Carillo. Ford was found 30% liable (in part because the jury wasn't told of Gaczkowski's condition), and paid 100% of the $14.5 million verdict. Carillo v. Ford (Ill. App. 2001). In Carillo, a jury was told to decide whether a vehicle was unreasonably dangerous, but Ford wasn't allowed to show the jury statistics on how the seatbacks performed in rear-impact collisions (even as the plaintff introduced anecdotal testimony from other paraplegics), or introduce testimony showing that the plaintiffs' preferred seat-design would have also caused injury. It's ludicrous enough to have a jury second-guess design decisions as part of a particular case without being forced to be consistent with other juries second-guessing how those same design decisions are operating in other circumstances. But it's truly absurd to have a jury do this without access to the data of the costs and benefits, thus making the trial purely a game-show over the persuasiveness of hired experts.
Following up on our entry of last Aug. 31: Acting Supreme Court Judge Felix Catena has dismissed attorney Romolo Versaci's defamation suit against Diane Richie, who called Versaci a "so-called lawyer" on a local online message board, saying the expression was by its nature rhetorical opinion and not actionable. Versaci has said he plans appeal. David Giacalone (Mar. 15) has the details.
The Virginia legislature has voted to repeal the state's law, the only one of its kind in the nation, prohibiting insurance companies from offering coverage of domestic partners as part of employer-provided health plans (see May 31, 2004, next-to-last paragraph). Gov. Mark Warner (D) has announced his intent to sign the bill. The Virginia Chamber of Commerce backed the repeal, citing principles of economic liberty: "If you believe in a free market, then restrictions like this don't make any sense," said Chamber vice president for public policy Stephen D. Haner. The repeal was strenuously opposed, however, by Religious Right figures such as Del. Robert Marshall (R-Manassas), and passed the House of Delegates by only a 49-48 margin (Pamela Stallsmith, "House backs letting firms extend health benefits", Richmond Times-Dispatch, Feb. 25; Lou Chibbaro, Jr., "Va. DP ban repealed by 1 vote", Washington Blade, Mar. 4; Tim Hulsey, Feb. 25).
On a related topic, last November Michigan voters approved a constitutional amendment providing that "the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose" (see Nov. 2). At the time, opponents argued that the measure might well be interpreted to forbid cities, state universities and other public entities from offering domestic partnership benefits to their employees, but proponents of the measure dismissed that notion: a spokeswoman for Citizens for the Protection of Marriage, a group heavily backed by Michigan's seven Catholic dioceses, told the Detroit News "nothing that's on the books is going to change. We continue to confuse this issue by bringing in speculation." However, with the amendment now in effect, the state's attorney general -- to cheers from most of the amendment's organized backers -- has issued an advisory opinion stating that it does indeed prohibit the city of Kalamazoo from providing DP benefits to its employees after the expiration of their current union contract. (Ed Finnerty, "City under fire over same-sex benefits plan", Kalamazoo Gazette, Mar. 17; Claire Cummings and Melissa Domsic, "Cox: No future same-sex employee benefits", State News (Michigan State U.), Mar. 17). Don Herzog of Left2Right, who has assembled plenty of links on the story, aptly labels the sequence of events "Bait and Switch" (Feb. 11 and Mar. 18). Update: Feb. 17, 2007 (Mich. appeals court rules benefits illegal under amendment).
My apologies for a technical glitch that kept the site offline from yesterday morning through this morning. Looks like the problem is fixed now.
Our email newsletter summing up what's new on the site went out this afternoon to its c. 2300 subscribers, covering the last month or so's worth of postings in telegraphic, occasionally droll style. Isn't it time you signed up for your free subscription? You can do so right here.
At North Suburban Medical Center outside Denver, nurses mistakenly gave the wrong newborn to a mother to breast feed. The mistake was discovered after a few minutes, the infant having declined the proffered refreshment, but the woman's family is now suing and the other family is considering suing too. ("Mom Sues Hospital Claiming She Nursed Wrong Baby", KMGH-TV, Mar. 16)(title allusion).
AP reports on the thriving business of mass-complaint-filing under the Americans with Disabilities Act, citing examples from Nebraska and Oklahoma as well as more familiar filing-mill locales such as California and Florida. As in the recent California case, however (Jan. 8), some judges are not pleased at what they see:
U.S. District Judge Gregory Presnell of Orlando, Fla., noted in a ruling last year that Jorge Luis Rodriguez, a paraplegic, had filed some 200 ADA lawsuits in just a few years, most of them using the same attorney."The current ADA lawsuit binge is, therefore, essentially driven by economics -- that is the economics of attorney's fees," Presnell wrote. He said Rodriguez's testimony left the impression that he is a "professional pawn in a scheme to bilk attorney's fees" from those being sued.
(Kevin O'Hanlon, "'Drive-By Lawsuits' Raise Business Concern", AP/San Francisco Chronicle, Mar. 17).
Speaking of the California saga of Jarek Molski (Sept. 21, Nov. 27, Dec. 12, Jan. 8), last month U.S. District Judge Edward Rafeedie extended from Molski to his lawyer, Thomas Frankovich, a requirement to obtain court permission before filing more suits under the act, a sanction ordinarily reserved for the most vexatious and troublesome litigants. Reports the Los Angeles Daily Journal:
The Los Angeles judge accused Molski and Frankovich of seeking quick cash settlements by filing a suspicious number of lawsuits in short periods of time. Their suits alleged handicap-access violations such as steep ramps, heavy doors and narrow hallways.Rafeedie noted that the complaints are identical, right "down to the typos." He said he believed the injuries alleged by Molski "are often contrived."...
Rafeedie criticized at length Frankovich's practice of sending letters to defendant business owners at the outset of litigation, urging them to settle the cases before hiring defense lawyers.
According to Rafeedie, Frankovich told the defendants that they did not have good legal defenses to the disability claims and that their insurance carriers could cover any damages.
Rafeedie said the letters were unethical and misleading.
However, Molski and Frankovich's side of the case has retained prominent civil-rights attorney Stephen Yagman, and Yagman says well-known Duke lawprof Erwin Chemerinsky is also joining the plaintiff's team, so who knows where matters are headed next. (John Ryan, "Jurist Finds Lawyer's Conduct 'Plainly Unethical'", Los Angeles Daily Journal, Feb. 8, not online). More: blogger Patterico is among Yagman's non-admirers (Jun. 3, 2004).
Newark Star-Ledger's Kate Coscarelli has a well-reported profile of the braggart impresario who, despite mounting ethical woes and a slew of client complaints, has been much lionized by a gullible press (especially overseas) through a series of international lawsuits from WWII reparations down through the tsunami-warning case. "Interviews and court documents paint a portrait of a colorful, erratic Essex County lawyer who cut his teeth on considerably less-ambitious personal-injury cases and whose troubles mounted over the years, even as he continued to file his ambitious string of international lawsuits." The Star-Ledger tends to pull down its stories from free access fairly quickly, so don't postpone reading this one ("How a world-renowned attorney wound up in handcuffs", Mar. 13). We've been following Fagan for years: see Feb. 5, Feb. 16, and so on.
My friend Eugene Volokh writes sensibly about nearly every other topic in the world, but yesterday revealed an inexplicable blind spot (Mar. 16) on some basic issues of crime and punishment. John Cole, Jonathan Wilde, Road to Surfdom, and Maimon Schwarzschild, among others, endeavor to set him straight (more trackbacks). Also see Jeff Jacoby, "Where's the outrage on torture?", Boston Globe, Mar. 15. More: he now says he's been persuaded to change his view by Mark Kleiman's post here, and Kleiman comments in turn.
Some unreassuring reassurances from Sen. Russ Feingold (Patterico, Mar. 15; via Instapundit)(see Mar. 4). More: And Ryan Sager uncovers evidence of astroturfing going on in the whole campaign-finance-reform business ("Buying 'Reform'", New York Post, Mar. 17; more at his blog here and here). More: Mar. 31, May 20.
Mutiny of the bounty-hunted, cont'd: "the whistleblower law, adopted in 1986, [hands] informants as much as a 30% cut of any money recouped by the government. It was pushed by a public-interest lawyer who then launched a practice for whistleblower cases, pocketing millions.... Since then whistleblower cases have boomed, recovering $7.9 billion from offending companies -- and paying out $1.3 billion to the insiders who ratted on the wrongdoers." Unfortunately, the law provides employees with a big financial incentive to step forward with tales of wrongdoing which prove unfounded, or which depend on adverse interpretations of gray areas in law and regulation, or which expose misconduct in which they themselves had been enthusiastic participants. "Most times companies settle, whether they are guilty or not". (Neil Weinberg, "The Dark Side of Whistleblowing", Forbes, Mar. 14).
Economics columnist and blogger Don Luskin, subject to criticism in this space and many others in 2003 when he threatened legal action against another blogger, is now himself being threatened with legal action by Worth Publishers, a company that publishes a textbook by frequent Luskin target Paul Krugman. Worth is alleging defamation and copyright violations arising from one of Luskin's blog posts last December. Just One Minute has the details (Mar. 8).
Europe has them, and we're lucky we don't, says James Lileks ("Leave the Anti-Blasphemy Laws in Europe", syndicated/Newhouse, Mar. 16).
(For background and more detail, see previous entry, Mar. 8). Davis has had surgery to reattach his nose and lips, a tracheotomy, and more facial surgery Monday, while he fights off a lung infection. The Davises' attorney, Gloria Allred, says "the family had not ruled out legal action against the sanctuary's owners." Mrs. Davis also implied that there would be further negotiation or litigation to have their pet chimpanzee, Moe (not involved in this attack, though he's bitten others) returned to live with them in their California suburb. (Claudia Zequeira, "Chimp Attack Survivor Struggles With Recovery", LA Times, Mar. 16; AP, Mar. 15).
New Jersey: "A homeless man who sued and received $230,000 after being ejected from a library in Morris County is now suing NJ Transit for kicking him and other homeless people out of train stations." Richard Kreimer, who has filed many suits over the years, is asking for $5 million. ("Homeless man who sued library takes on NJ Transit", AP/Asbury Park Press, Mar. 15; John Cichowski, "Some riders wear suits, some file them", Hackensack Record, Mar. 15; Ronald Smothers, "Homeless Gadfly Returns, Warming Up Lawsuits", New York Times, Jan. 21). "'As soon as you walk into a train station and you look like a bum, the cops come right over to you,' Kreimer said." ("Homeless Man At Home In Court", New York Post, Mar. 15). For more background, see John Cichowski, "Duffel-bag lawyer takes on the City of Brotherly Shove", Hackensack Record, Feb. 26, 2004. Update Feb. 25, 2006: Kreimer obtains settlement from bus company.
What were once thought of as neighborly acts of kindness now pose too great a risk of medical privacy violations under federal law (Joe Ruff, "Communities Adjust To Medical Privacy Laws", AP/ABC News, Mar. 12; via KevinMD). For more on the Health Insurance and Portability and Accountability Act, see Feb. 5, 2004 and links from there. More: the Michigan Medical Malpractice blogger says the hospitals are overreacting and a little gathering of permissions from patients/families should fix most of the problems (Mar. 17).
"The parents of a 23-year-old activist killed while trying to prevent the demolition of a Palestinian home have sued Caterpillar Inc., the company that made the bulldozer that ran over her. The lawsuit, filed Tuesday in U.S. District Court here [in Seattle], alleges that Caterpillar violated international and state law by providing specially designed bulldozers to Israeli Defense Forces, knowing the machines would be used to demolish homes and endanger people." Cindy and Craig Corrie, parents of the late Rachel Corrie, live in Olympia, Wash. (Elizabeth M. Gillespie, AP/Seattle Post-Intelligencer, Mar. 16). Update Mar. 25, 2006: family appeals judge's dismissal of lawsuit.
Four more new reader missives appear on our correspondence page, including: we meet another frequent California filer of disabled-rights complaints; the high cost of winning your case if you're a doctor who gets sued; a new "Priceless Pets" damage suit, from Chicago this time; and the state of self-defense in the U.K.
I was a guest on Jim Blasingame's national radio program "The Small Business Advocate" yesterday, discussing class actions and other topics. You can listen to the show live on the web; one way to find the link is from his archive of law-related shows. Jim Blasingame was kind enough to call The Rule of Lawyers "one of my favorite books"; you can find a copy on Amazon (hardcover or paperback). For more information on how employment lawsuits have watered down strength prerequisites for law enforcement jobs (such as those guarding courthouses in Atlanta and other places), check this Point of Law post.
Over on Point of Law, I have a short piece on the small contribution employment law developments made to Brian Nichols's escape and resulting murder of three or four people. Michelle Malkin's readers debate the issue. Certainly, there were other contibuting farcical errors, including a weak prosecution that resulted in a mistrial the first time Nichols's rape count was tried, the shocking underreaction to Nichols trying to smuggle shanks into the courtroom, nobody monitoring the cameras that showed Nichols overpowering Cynthia Hill, and police overlooking for thirteen hours that a Honda thought to be an escape vehicle was still in the garage where it had supposedly been carjacked.
Rest assured, though, that the Fulton County judicial system appears to have at least as many snafus as its security system:
Dr. Zev Maycon has been sued four times in three years; he's been dismissed before trial each time, but has missed weeks of work as a result, to the detriment of his patients. The only time he's been able to recover his expenses for these meritless lawsuits is the one time an attorney was impolitic enough to acknowledge the lack of evidence and explicitly demand settlement money as a precondition for dropping the suit. Though none of the press mentions it, a meritless suit in Ohio state court isn't considered "frivolous" unless there's evidence that it's brought in bad faith. The sanctioned attorney, Catherine Little, is appealing, the costs of which may end up exceeding the $6,000 sanctions if the appeal isn't also considered frivolous. (Tracy Wheeler, Akron Beacon-Journal, Mar. 14; Medpundit, Mar. 13; OSMA press release).
In Connecticut, the town of Norwalk is paying $1.5 million in a settlement with pedestrians hit by a drunk driver fleeing police. Plaintiffs had sought millions. "[Julia] Johnson's estate sought additional compensation for her death from cancer in August 2001. The estate argued that Johnson's injuries caused her to miss a scheduled mammogram that would have caught the cancer in its early stages." The settlement seems to be a "moral hazard" artifact of the insurance policy, which covered negligence, but not recklessness; the judge had ruled the city couldn't be held liable for negligence, and the city worried that a jury sympathizing with the plaintiffs would've simply found the quantum of recklessness needed so they could award damages. This is a useful example about the inefficacy of immunity statutes that protect against "negligence" but not "gross negligence." (Brian Lockhart, "City pays $1.5M to settle suit with hurt pedestrians", Stamford Advocate, Mar. 14). Unrelatedly, Norwalk is also the defendant in a suit by Linda Gorman. Gorman took a job in the town clerk's office , interacting with the general public, but complains that the town isn't doing enough to deal with her sensitivity to fragrances and perfumes. (Brian Lockhart, "Norwalk City Hall employee files lawsuit over perfume", Stamford Advocate, Mar. 1).
Thousands of miles away, a jury found Hawaii County 34% responsible for the death of Ellison Sweezey, who was killed when Richard Rosario, a 20-year-old crystal meth addict fleeing police, ran a red light and struck her car. Cost to taxpayers: $1.9 million. If there were joint and several liability, the county would also be on the hook for Rosario's share. (Rod Thompson, "Jury awards $5.6M in death from car chase", Honolulu Star-Bulletin, Mar. 9; "$5.6M awarded to family of Big Island crash victim", Honolulu Advertiser, Mar. 9). Hawaii police have undergone training to limit their willingness to chase suspects, with the expected counterproductive result (which we discussed Sep. 21, 2003) that criminals are now more likely to flee because their chances of escape have increased. (Rod Thompson, "Car theft suspect flees after slow-speed pursuit", Honolulu Star-Bulletin, Mar. 10). Other car-chase lawsuits: Jan. 3; Feb. 18, 2004 (& letter to the editor, Apr. 12).
USA Today surveys the field (Laura Parker, Mar. 15). So did we (Jul 30, 2003 and links therein; see also Mar. 8).
...for helping rid us of the noxious Fairness Doctrine (Thomas W. Hazlett, "Dan Rather's Good Deed", Weekly Standard, Mar. 21, reprinted at Manhattan Institute site).
It's really important to make sure things have gone off the record and that the deposition transcript isn't still running, especially if you're going to threaten bodily harm (Kelly-Moore Paint Co. motion for sanctions against Eric Birge of Brent Coon & Associates in a Texas asbestos case (PDF))(courtesy Evan Schaeffer, who comments).
Another widely noted pro se suit comes to grief: Wisconsin judge Richard J. Sankovitz has thrown out the lawsuit filed by 17-year-old Peer Larson and his father arguing that mandatory summer homework should not have been assigned in the honors math class Larson wanted to take (see Jan. 21). "Had the Larsons done a bit more homework, they would have discovered that the people of our state granted to the Legislature ... the power to establish school boards and the state superintendent and to confer upon them the powers and duties the Legislature saw fit," wrote the judge in his order (PDF, courtesy Courthouse News). (AP/Janesville, Wis. Gazette, Mar. 9).
"A judge threw out a lawsuit in which a viewer sued NBC for $2.5 million, contending that he threw up because of a 'Fear Factor' episode in which contestants ate rats mixed in a blender. U.S. District Judge Lesley Wells called Austin Aitken's lawsuit frivolous and warned him against appealing." The handwritten suit (see Jan. 7) was pro se. ("Judge Nixes Viewer's 'Fear Factor' Lawsuit", AP/Fox News, Mar. 10).
If you're here in search of Ted's post on the West Covina, Calif. chimpanzee attack, it's here (given its popularity, maybe we should start up a regular chimp-attack beat). If you're looking for the item about the Boston family that wants $740,000 for its electrocuted dog, it's here. And if the story that attracted you was the one about the lawyer who accidentally sued himself, it's here.
"A big group of former East German athletes is to sue a pharmaceuticals giant over the damage they suffered under the country's doping program of the 1970s and 80s." The chief executive of the Jenapharm drug manufacturing group, Isabelle Roth, said the steroids in question were lawful and that the enterprise had no choice but to furnish them under the then-Communist regime: "As a part of a group of pharmaceutical companies, Jenapharm was obliged to collaborate in the State Plan 1425". (BBC, Mar. 13). More: Tom Palmer comments. (& update Dec. 4).
In a case closely watched by free-speech advocates, a Missouri appeals court has dismissed as meritless a defamation suit brought by a trash company against a man who had successfully fought its plan to site a transfer station in his suburban St. Louis neighborhood. Leaflets opposing the facility had referred to the company, Fred Weber Inc., as "trash terrorists", but the court found that "rhetorical hyperbole" of that sort, even if overheated, would not suggest to a reasonable audience that company officials engage in actual bombings or murders. Concern over the case has led to efforts in the Missouri legislature to broaden protections against being sued for taking part in public discussions. (Leisa Zigman, "County Resident Wins 'SLAPP' Suit Ruling Against Fred Weber, Inc.", KSDK.com, Mar. 8; "Slapping down Weber" (editorial), St. Louis Post-Dispatch, Mar. 9; Tim Jones, "Lawsuit trashed as threat to speech", Chicago Tribune, Mar. 9). More: opinion is here.
"A federal judge yesterday approved a massive giveaway of free makeup and perfume at cosmetics counters across the country as part of the settlement of an antitrust lawsuit against cosmetics makers and department stores.... She also awarded $24 million in attorney's fees to plaintiffs' lawyers involved in the case." (Josh Gerstein, "Judge Approves Cosmetics Settlement", New York Sun, Mar. 9). For earlier coverage of the controversial settlement, see Jul. 21, 2003, Apr. 14, May 19, and Dec. 3, 2004, and Jan. 14, 2005.
Jameel Talley had been fired from the local police department, but the mayor of North Randall (pop. 893 and dropping) "sent what he called a 'second chance' letter to Maple Heights, saying Talley should not have been fired. The mayor said he 'erred in judgment' and 'recommends 100 percent (that) Talley continue his career in law enforcement.'" So Maple Heights hired him for their police department, where Talley had a spotless record, and the local Dillard's hired him for off-duty work as a security guard.
Unfortunately, Talley had been fired from North Randall for shooting at a shoplifting suspect.
And, unfortunately again, 41-year-old Guy Wills, under the influence of drugs, decided to shoplift a leather jacket at Dillard's, and then resist arrest from the much larger Talley. So Talley smashed him upside down into the concrete floor. Unfortunately again, Wills checked himself out of the hospital, got sick at the police station, refused treatment or a trip to the emergency room--and then fell into a coma, and when he woke up, he was dead. Shortly after the incident, Dillard's shut down the store. Talley was convicted of voluntary manslaughter for excessive force, and sentenced to three years. And Dillard's, as the deep pocket, was sued. (NewsNet5: Jan. 18 (featuring the great line "Dillard's attorney, who's [sic] name is unknown at this time"), June 23, 2003; Nov. 14, 2002; "Dillard's to close Raleigh Springs store", Memphis Business Journal, Jan. 27, 2003).
The attorney was none other than Geoffrey Fieger (Oct. 11 and Aug. 31 and lots of links therein), but the trial wasn't going so well, so he adopted what seems to be a standard tactic: deliberately try to alienate the judge, and then loudly complain about prejudice.
[Judge Nancy Margaret] Russo leveled a litany of legal wrongs against Fieger, including: insulting and berating lawyers and calling them liars; making faces after she ruled against him; repeatedly interrupting testimony; entering objections loudly; and threatening an insurance adjuster with the loss of his job.Russo threatened Fieger with contempt, and Fieger responded by pulling himself off the case and asking for a mistrial. For some reason, Russo rewarded the antics with exactly what Fieger wanted, and now Fieger gets to start all over with another judge, and a second bite at correcting whatever problems he saw with the first trial. (James F. McCarty, "Lawyer quits case on judge's threat", Cleveland Plain-Dealer, Jan. 29; James F. McCarty, "Mistrial in wrongful-death case of shoplifter", Cleveland Plain-Dealer, Feb. 1). And shame on our Cleveland readers for not letting us know about this one sooner."He has been nothing but bullying, loud, obnoxious and unprofessional," Russo said. "I have tried for three weeks to rein him in. I have done my best."
The final straw came Thursday after attorney Larry Zukerman accused Fieger of accosting him and threatening to have his client -- former Dillard's store manager Frank Monaco -- arrested for obstruction of justice.
Michael Zwebner regularly sues critics and people remotely related to critics of his penny-stock corporation, UCSY, which has a track record easy to criticize (Feb. 17). He claims in a press release to have persuaded a Florida state court to enter a constitutionally suspect order:
Defendants, Dembovich and Villasenor ... are forever barred from making, stating, mentioning, posting on the Internet anything which included the words "UNIVERSAL COMMUNICATIONS SYSTEMS, INC." and "Airwater Corp." "UCSY" or "Michael Zwebner" or any derivations thereof.The purported order (which, in the press release, misspells "tortious") also purports to bar third parties from "publishing" these posts (and arguably extends to linking to the posts) so it will probably be struck down as soon as Zwebner goes after a deep-pockets defendant (like, say, Google) that defends itself. (Universal Communications Sys. Inc. v. Dembovich, No. 2004-27383-CA-01 (Miami-Dade Cty., Fla.)). Where's the SEC in all of this?The defendants are further ordered to remove and cause to be removed from all web sites and any all references caused to be posted by them under the above and any other alias all postings which reference either Plaintiff and/or Plaintiffs's President Michael Zwebner.
Amazingly, I see that the federal District of Oregon has agreed to enter a stipulated injunction barring another Internet poster from ever mentioning Zwebner in any context, true or otherwise. Related story: Polly Sprenger, "Dirty Laundry Airs on Stock Site", Wired.com, Dec. 11, 1998.
By enacting "cheeseburger bills" (see Mar. 13, Mar. 17 and Dec. 3, 2004) state legislators can attempt to make clear (in case courts had any doubt about the matter) that there is no cause of action against food purveyors for causing obesity in those who partake of their wares. Such bills have been making progress around the country, with 12 state legislatures enacting them in 2004 and others likely to follow this year. New Mexico, however, will not be among those states: both the Senate Judiciary Committee and the House Consumer and Public Affairs Committee have voted to shelve the idea on narrow party-line votes, with Democrats opposed to the legislation and Republicans in favor. "I don't dispute the idea of personal responsibility, but I dispute the notion that any tort action is on its face frivolous," said Rep. Gail Beam (D-Albuquerque), who chairs the House consumer committee. The bill had earlier passed the Senate Consumer and Public Affairs Committee. Its sponsors, Sen. Steve Komadina (R-Corrales) and Rep. Terry Marquardt (R-Alamogordo), had given it a locally adaptive title: the "Right To Eat Enchiladas Act". ("Legislative roundup", The New Mexican (Santa Fe), Feb. 23; Erin Madigan, "'Cheeseburger' bills fill state lawmakers' plates", Stateline.org, Feb. 15).
"'We are overlawyered and underrepresented,' said Deborah Rhode, a Stanford law professor." (Bob Egelko, "State Bar registers 200,000th member", San Francisco Chronicle, Feb. 21).
More harsh consequences of our laws aimed at "deadbeat dads" (see Feb. 19 and links from there): Radley Balko, Matt Welch, John Hawkins. Some attempts at relief: California, Illinois.
By reader acclaim, from the Illinois county that furnishes so much material for this site: "Alton attorney Emert Wyss thought he could make money in a Madison County class action lawsuit, but he accidentally sued himself instead." Representing a client who'd bought and then refinanced a house, Wyss advised her that she might be entitled to file a lawsuit against the company that wrote the original mortgage over the $60 fee it charged for faxing two payoff statements, and soon signed her up for a class-action suit to be handled by himself and several other law firms, including the prominent Lakin firm. However, it developed that a company called Centerre Title, owned by Wyss himself, had been the party that collected the allegedly improper fees at closing, and when the mortgage-company defendant learned of this it moved to add both Centerre and Wyss as third-party defendants, much as Jerry, in the old cartoons, sometimes succeeds in bringing Tom's tail around in circular fashion and presenting it for him to bite. The judge granted the motion, and rather than persist in a suit against himself Wyss resigned the client's representation. The Madison County Record's coverage includes deposition-transcript excerpts that serve as a reminder of how essentially passive clients often get steered into class actions in which the lawyers are the real parties in interest (Steve Corris, "Alton attorney accidentally sues himself", Madison County Record, Mar. 8).
"Short version of this column: If the Republicans wish to lose their majority, they can expend great amounts of energy to outlaw soft-core skin flicks on cable TV." (James Lileks, "Don't These People Have Better Things to Do?", syndicated/Newhouse, Mar. 9).
...are out with a new study saying that medical malpractice payouts in Texas didn't increase sharply between 1990 and 2002, hence no "crisis", hence no case for damage limitations, etc., etc. (study; Reuters; N.Y.Times op-ed). Ted has some questions for the authors, though, at Point of Law. They seem like pretty good questions, too.
Other medico-legal topics covered recently at our sister website: the federal Health and Human Services department introduces an "early offers" pilot program; nurse-midwives call for reform; more criticism of New York Times coverage; and who gave the 66 cents?
In a 233-page ruling, federal judge Jack Weinstein has dismissed a lawsuit on behalf of Vietnamese plaintiffs demanding compensation over the use of the defoliant Agent Orange during the Vietnam War. (William Glaberson, "Agent Orange Case for Millions of Vietnamese Is Dismissed", New York Times, Mar. 10). As Julian Ku puts it, "If the plaintiffs can't convince Judge Weinstein, who can they convince?" The case is separate from one that has been allowed to proceed seeking compensation on behalf of U.S. veterans, despite a settlement brokered and approved by Judge Weinstein years ago which had been widely thought to have resolved that category of claim (see Jul. 4, 2003).
Lawprofs Anthony Sebok (Brooklyn) and Timothy Lytton (Albany) tend to view firearms liability litigation in a much more favorable light than I do. They agree, however, that New York City's Gun Industry Responsibility Act, signed into law by Mayor Bloomberg earlier this year (Feb. 6; more), "may do more harm than good" and is likely to assist efforts in Congress to protect the gun industry from being taken to court over criminal misuse of weapons. They also say GIRA raises a second problem, little discussed so far: "whether local municipalities can create their own tort law, independent of their state legislatures or courts". ("New York City's Gun Industry Responsibility Act: Why It May Do More Harm than Good", FindLaw, Mar. 7).
Let's be dignified and not actually troll for business at the scene of the crash, OK, guys? That's the State Bar of California's view (Nancy McCarthy, "Public protection takes center stage in disaster", California Bar Journal, Mar.) (via Legal Ethics Forum)(more: Jan. 28, Feb. 1).
The Washington Monthly's Amy Sullivan really admires the lawsuit filed against the movie rental chain over its new "no more late fees" pricing structure, but blogger Mad Anthony doesn't. See Jessica Seid, "Blockbuster sued over late fees", CNN/Money, Feb. 18. Update Apr. 23: Blockbuster settles with AGs of 47 states.
Alliance Capital Management fund manager Al Harrison was a contrarian. He invested in troubled companies whose stock value is depressed; the companies he picks rebound often enough that he gets a good return. Florida liked this strategy, and gave Harrison $344 million of public pension funds to invest in 1984; by 2001, he had turned it into $3.57 billion, an above-market 15% rate of return, albeit a volatile one that included some huge losses in technology stocks. Alas, this record of high-risk, high-return strategy includes one particular stock, Enron, that did particularly poorly, and there was a $281 million loss on that series of transactions--about a third of a percent of the $100 billion pension fund. (Pension participants aren't affected by these fluctuations because Florida has a defined-benefit plan; if, however, the fund becomes insolvent, taxpayers would be on the hook to the extent federal law provides pension fund insurance.)
Now, with the benefit of hindsight, Florida is cherry-picking. Florida had access to data about what Harrison was trading throughout the term of Alliance's contract with the state; Harrison's trades were consistent with that contract; indeed, Alliance met the contract's performance goal. But Florida is dissatisfied. Florida complains that Harrison's portfolio construction wasn't completely consistent with a description of strategy in an Alliance brochure issued in March 2000. And, with the benefit of hindsight, Florida has decided that it prefers the terms of that particular brochure to the terms of the contract, and is asking a jury to retroactively balance the portfolio and award the state a billion dollars in damages.
Florida also complains that there was an Alliance board member, Frank Savage, who coincidentally served as a board member for Enron. Alliance notes that Savage couldn't have influenced trading without violating insider trading laws. (And, indeed, a Florida state attorney general investigation turned up nothing nefarious; Alliance had strict rules prohibiting board members from discussing investments in their associated corporations.)
Finally, Florida complans that Harrison overruled one of his analysts, Annie Tsao, who didn't like Enron stock, without informing the state of Tsao's opinion. Florida hasn't indicated, however, that it will give back money for the profitable stock purchases where Harrison disagreed with one of his twenty analysts. (And apparently Tsao's objective analysis had merely downgraded Enron from a top-rated 1 to a 2 while reaffirming her earnings outlook, though she subjectively expressed skepticism in at least some communications.) The idea that the investor should be notified every time there's an internal disagreement between the fund manager and an analyst about a potential investment strategy seems questionable at best, but the state is inviting a jury to impose that rule retroactively. (David Royse, "Trial opens in retirement fund Enron loss case", AP, Mar. 8; Joni James, "Who pays when a money manager makes a bad call?", St. Petersburg Times, Mar. 6; Harriet Johnson Brackey, "Enron among various targets", Miami Herald, Mar. 9; David Barboza, "Analyst Dropped Enron, but Her Firm Loaded Up", NY Times, Oct. 15, 2002; James L. Rosica, "Trial centers on manager", Tallahassee Democrat, Mar. 9; Joni James and Alfonso Chardy, "State's losses get scrutiny", Miami Herald, Feb. 27, 2002).
My firm represents Alliance in other matters. As with all of my posts, I speak for neither my firm nor any of its clients.
Reader Stan Sipple writes me that "a Louisiana attorney several years ago took you up on your proposal that plaintiffs' attorneys should run insurance companies. Was this what the trial lawyers had in mind?"
Me, I'm sad; it's been two weeks since I wrote that column. While ATLA issued a press release March 3 claiming and complaining that congressional legislation on caps won't make medical malpractice insurance cheaper, they're not taking advantage of my modest proposal how to simultaneously prove their point about tort reform, improve medical care, reduce malpractice insurance rates, and make more money. I can't imagine why they're passing up this opportunity if they believe what they say in their press release.
"'Think how much anguish we could have avoided if a few more lawyers had pointed out to their hedge fund clients that late trading of mutual fund shares is illegal, as are duplicitous market-timing arrangements,' [Securities and Exchange Commission chair William] Donaldson told securities lawyers at the Practising Law Institute's annual SEC Speaks conference." (Ron Orol and Donna Block, The Deal, Mar. 8).
DaimlerChrysler statement on the suit after the jump; it's almost scandalous what the press accounts (Feb. 26)left out, but not as scandalous as the verdict. The unbelted Vickie Mohr was killed from blunt force trauma to the back of the head--caused when she was hit by the 245-pound unbelted passenger in the backseat. (The jury found that passenger, Carolyn Jones, responsible for only a small percentage.) Brett McAfee, the 17-year-old driver who killed the two plaintiffs when he fell asleep at the wheel going 45 mph, but was found slightly less than half-responsible by the civil jury, pleaded no contest to vehicular homicide criminal charges. (via Dodgeforum, which has an impressive array of photos of the totalled Durango Caravan).
Boston: "The family of Cassius, the dog killed by leaking electricity from an old NStar Electric lamppost site, said last night it had turned down $200,000 in 'comfort money' from NStar and is demanding $740,000 from the utility or it will sue. The family said it picked the dollar figure because it equals NStar chief executive Thomas J. May's annual salary." It's so hard to be an ordinary family grieving for a lost pet -- much fairer if we were an affluent family grieving for a lost pet (Peter J. Howe, "Dog's family demands $740,000", Boston Globe, Mar. 8). For earlier stories on pets' sentimental value and the dollar figures attached thereto, see Jul. 30, Nov. 21 and Dec. 10, 2003, etc.
More: Robert Ambrogi (LawSites) thinks I should have included more details from the Globe story that tend to cast the DeVito family's suit in a more sympathetic light, such as that (his words): "The family would donate most of the $750,000 to the Massachusetts Society for the Prevention of Cruelty to Animals and the Animal Rescue League." My response:
I wonder how you reach the conclusion that the family "would donate most of the $750,000" ($740,000 per the Globe) to animal charities. At the press conference, according to the Globe, attorney John G. Swomley -- who was at pains to portray the suit as not a money grab -- said the family plans on "keeping $200,000, plus enough to pay for four years of college for Kyle and his brother Alec, 10". At, say, Boston College (currently $37,413 room and board, and who knows how high the figure'll be by the time the boys are grown?) that amounts to roughly another $300,000 ($37K x four years x 2 boys), leaving $240,000 of the settlement. And assuming Swomley takes, say, 30% of the $740,000 = $220,000 for his fee, that would leave a grand total of $20,000 to go to the animal charities -- assuming there aren't expenses and that sort of thing to be charged against the remainder.Further: his response. (& letter to the editor, Mar. 15).You're probably right that I should have expanded my three-sentence summary of the case at Overlawyered to delve further into these matters, since they afford valuable insight into how lawyers can manage the p.r. aspects of their cases.
It's become a thriving area for lawyers, with a growing volume of litigation much of it aimed at fan activity, such as fantasy sports leagues and web-based retransmission of game broadcasts (Tresa Baldas, "Pro Sports: Technology Changes Rules of the Game", National Law Journal, Mar. 4).
Former NASCAR driver St. James Davis is in critical condition after losing a nose, a cheek, an eye, his lips, a foot, all of his fingers, his testicles, and part of his buttocks to a disturbingly gruesome chimpanzee attack at a wildlife sanctuary Thursday; his wife, LaDonna, also lost a thumb before the escaped chimps were shot by the sanctuary owners.
The Davises were visiting a different chimpanzee, their former pet, Moe. They had previously settled a civil rights lawsuit against West Covina for $100,000 as part of the fallout stemming from the city criminally charging the couple for keeping a dangerous animal. His lawyer, Gloria Allred, accused the city of overreacting when Moe bit a policeman and a woman in separate incidents, and succeeded in creating enough of a press-storm that the city backed down after having poured a quarter million dollars into Moe-related legal fees. (The policeman required $250,000 in medical treatment.) Davis won a previous lawsuit against West Covina in the 1960s allowing him to keep his chimpanzee in town because a judge held the chimp "doesn't have the traits of a wild animal and was somewhat better behaved than some people." But never fear, Ms. Allred is on this case also, and has been cited by the press as demanding "immediate answers"; the couple hasn't decided whether they'll sue. (David Pierson and Mitchell Landsberg, "A Primate Party Gone Horribly Awry", Los Angeles Times, Mar. 5; Christina L. Esparza, "Saga of Moe takes a bizarre twist", San Gabriel Valley Tribune, Mar. 3; Christina L. Esparza, Ruby Gonzales, and Karen Rubin, "Moe's owners mauled", San Gabriel Valley Tribune, Mar. 4; AP, Mar. 5; "Woman Has Faith in Chimps Despite Attack", Good Morning America, Mar. 7; "Officials try to find what caused chimp attack", KGET-17, Mar. 7; Cara Mia DiMassa, "2 Cities Can't Get the Hang of Chimp's Situation", Los Angeles Times, May 10, 2002; Linda Deutsch, AP, Oct. 15, 1999; AFP, Feb. 4, 2000 (kibo commentary); Richard Winton, "Los Angeles to remain Moe-less", Los Angeles Times, Jul. 21, 2001; Jeff Jardine, "Chimp charm is film illusion", Modesto Bee, Mar. 6). Once upon a time, Moe was considered a leading candidate for the principle that animals should have court standing. (Amanda Onion, "Lawyers: Animals Should Be Able to Sue", ABC News, May 13, 2002).
"An online group of self-described 'literary watchdogs' is threatening a class-action lawsuit against the UI Press, alleging that recent awards for poetry were unfairly given to writers with 'illicit' ties to the program. Postings at foetry.com demand a return of $20 reading fees after the 2004 Iowa Poetry Awards -- open to anyone inside or outside the university -- were given to people with ties to the UI. University officials note that the contest employs blind judging, in which the authors' names are removed from the manuscripts." (Drew Kerr, "Two allege bias in UI Press poetry awards", Daily Iowan, Feb. 28)(via Schaeffer who got it from Maud Newton).
David Giacalone (following up on earlier comments by Denise Howell and others) expects careless and ethically lax attorneys to face a Google nemesis (Mar. 7).
The famously pro-plaintiff jurisdiction of Zavala County, Texas once again lived up to its reputation the other day when one of its juries returned a $31 million verdict against the Ford Motor Co. in the case of the rollover of a 2000 Explorer which killed two occupants and injured two others. Legal commentators around the web are abuzz about the most remarkable angle of the story, namely that until deep into the trial Ford did not learn that one of the jurors, Crystal City city manager Diana Palacios, was the girlfriend of Jesse Gamez, one of the lawyers on the team of plaintiff's attorneys headed by Houston's Mikal Watts. Ford also presented evidence that Palacios, incredibly, had actually solicited two of the crash victims for her boyfriend to represent. Nonetheless, Judge Amado Abascal refused to declare a mistrial, instead dismissing Palacios from the jury and issuing a supposedly curative instruction to the remaining jurors. David Bernstein, Tom Kirkendall and John Steele comment. (John MacCormack, "Juror's relationship with lawyer stalls Ford trial", San Antonio Express-News, Feb. 23). (Addendum: one of John Steele's readers has drawn his attention to this 1997 Texas Supreme Court opinion which co-stars the very same Mr. Gamez and Ms. Palacios in a Norplant case -- very curious stuff.)
The other issues raised by the verdict, however, deserve attention as well. The accident was caused by the speeding of the vehicle's driver, and none of the four occupants was wearing a seat belt; all were ejected. Attorney Watts (Apr. 12-14, 2002) advanced the theory that the injuries were Ford's fault because it should have used laminated instead of conventional glass in the side windows as a sort of substitute restraint system. (John MacCormack, "Zavala jurors hit Ford for $28 million", San Antonio Express-News, Mar. 2). Notes the Detroit News:
Ford said laminated glass wouldn't have kept the women from being ejected and was hardly ever used in side windows when the vehicle was made."At that time, 99.9 percent of all vehicles made by all manufacturers, through the 2000 model year, had the kind of tempered glass used in this vehicle," Vokes said. The National Highway Traffic Safety Administration doesn't require laminated glass in side windows, she said.
Continue on the upswing, reports the NLJ. The use of such contracts is "not a majority rule yet, but it's increasing," according to April Boyer of Kirkpatrick & Lockhart Nicholson Graham's Miami office, while Stephen Tedesco, a partner in the San Francisco office of Littler Mendelson, says he's "completed hundreds of the contracts for his clients over the past few years". (Lindsay Fortado, "Workplace 'Love Contracts' on the Rise", National Law Journal, Mar. 3). See Dec. 3-5 and Dec. 31, 1999, May 3, 2000, and Dec. 10, 2001, among other entries on our harassment-law page.
Legal correspondent Adam Liptak quotes me in a Sunday Week in Review piece on the prospect that lawyers, restrained from asking for unlimited non-economic damages, will instead seek and obtain higher economic damages from juries. I should make clear for the record, by the way, that despite my quoted remark expressing one reason to be skeptical that such limits can be readily gotten around, I haven't yet seen Columbia law prof Catherine Sharkey's forthcoming paper, and intend to keep an open mind about it. (Adam Liptak, "Go Ahead. Test a Lawyer's Ingenuity. Try to Limit Damages", New York Times, Mar. 6).
More than two years ago (see Dec. 16-17, 2002), following a CBS "60 Minutes" installment exposing "jackpot justice" in Jefferson County, Mississippi, two former jurors struck back with an intimidating lawsuit against the network and two local interviewees. Now Ted reports at Point of Law (Mar. 4) that the Fifth Circuit has affirmed the suit's dismissal by a federal district court; that court "assumed jurisdiction after it found that state defendants had been fraudulently joined in an attempt to defeat federal jurisdiction".
The Lawsuit Abuse Reduction Act of 2004 didn't pass (though it's been reintroduced) but Rep. Sensenbrenner's majority report for the House Judiciary Committee nearly gave us (well, okay, nearly gave Stuart Taylor, Jr.) the chance to make permanent legislative history (see footnote 81).
Don't make plans to visit Vixen Tor on Dartmoor any time soon: "The owner, Mary Alford, was afraid of being sued by members of the public who injured themselves on the tor, which was named after Vixana, a witch who reputedly died there and was turned to stone." (Richard Savill, "Owner asked to restore access to Vixen Tor", Telegraph (U.K.), Mar. 5).
More: Via Decs & Excs, Mar. 6, comes word that British Prime Minister Tony Blair has now called for a "real debate over risk":
Mr Blair said that the fears of public service workers over the potential for a US-style litigation culture had made a deep impact on him.(Andrew Woodcock, "Blair Questions 'Needless Panic' over Issues", The Scotsman, Mar. 5). For more on the "compensation culture" debate, see our U.K. page."I was quite shocked to be told by people who were running a nursery that they were worried about letting the kids out into the playground when it was wet, in case one of them slipped and fell and they ended up having a legal case," he said.
"We have got to look at a way of getting people protection on that."
That is, except for the ADA implications, or so MNKurmudge hears (Dec. 17).
Remember those "Zany Immunity Law Awards" from the "Center for Justice and Democracy" that complained that Louisiana gave immunity from suit for some injuries from thrown Mardi Gras prizes? The law was passed in 1987 when liability fears stopped the Zulu Krewe from the popular tradition of tossing decorated coconuts. But the lawsuits continue claiming to fit within the loopholes, and though Zulu, which had already limited itself to handing coconuts out, usually wins them, they're having trouble finding affordable liability coverage because of the cost of defending the suits. "'We're protected by the law,' said Gary Thornton, chairman of Zulu's governing board, 'but it doesn't stop people from filing lawsuits against us.'" At least five other krewes have been sued for this year's Mardi Gras over other thrown prizes. (Leslie Williams, "Girl hit by Zulu coconut sues krewe", New Orleans Times-Picayune, Mar. 1; "Zulu reigns supreme as crowd favorite", Louisiana Weekly, Feb. 7) (via RiskProf).
Expect it to begin serving soon as the basis for regulation of bloggers' political speech, predicts Brad Smith of the Federal Election Commission. (Declan McCullagh, "The coming crackdown on blogging" (interview with Bradley Smith), CNet/News.com, Mar. 3). Michelle Malkin has a roundup of reactions (Mar. 3). More: Prof. Bainbridge follows up (Mar. 6).
Another study finds no link between the measles-mumps-rubella (MMR) vaccine and rising incidence of autism. (BBC, Mar. 3). For more on the litigation-fueled efforts to establish such a link in Britain, see our earlier reports: Dec. 29, 2003 and Feb. 25, 2004. More: Helene Guldberg, "MMR, autism and politics" (interview with Dr. Michael Fitzpatrick), Spiked-Online (UK), Jun. 23, 2004.
Says Robert Trent Jones Golf Trail in Tuscaloosa won't provide free golf carts. (Stephanie Taylor, Tuscaloosa News, Dec. 15). The National Golf Course Owners Association maintains a page on ADA issues and compliance. At Cybergolf, Jeffrey D. Brauer ("Must golf courses accommodate wheelchair golfers?", undated) discusses the impact of wheelchair-access regulation on golf course design: "The golf industry at first feared that ADA might outlaw contoured greens and fairways, and possibly sand bunkers, to achieve disabled access. Future rules revisions may eventually eliminate features like 'perched' greens and steep banks, but for now, traditional golf course architecture is not compromised by the guidelines." And federal prescriptions on the design of miniature golf courses can be found here.
A webcast of today's American Enterprise Institute panel on obesity and lifestyle litigation is now on-line. I spoke at the second panel, moderated by AEI's Michael Greve, along with activists Richard Daynard and Alison Rein, and Thomas Haynes of the Coca-Cola Bottlers' Association. Todd Zywicki moderated an earlier panel on empirical research on the causes of obesity.
Federal prosecutors say they've caught two men masterminding unrelated complex schemes to siphon off large sums from class action settlements by falsely posing as members of the class. Richard Lagerveld was charged with mail and wire fraud after settlement administrators in two class actions mailed $9.2 million to his stated address in San Diego, which was in fact a homeless shelter. Authorities said he had a long criminal record including aliases and stolen identities; in one of the class actions, he submitted forged brokerage records to document his claim that he'd owned $145 million worth of stock in Oxford Health Plans, the target of securities litigation. In a second case, he collected a check for $2.3 million after claiming to be an owner of a fictitious company that had purchased glass from companies settling a class action. In the other case, inmate Alan N. Scott, who resides in the Schuylkill federal correctional institution in Pennsylvania, is charged with orchestrating an $8 million assortment of false settlement claims of which about $200,000 had been received as of the time of his arrest. According to the U.S. Attorney's office, Scott used co-conspirators to correspond with claims administrators in about 90 securities class actions, "and routinely sent directions and correspondence to his co-conspirators by falsely labeling the correspondence 'legal mail.'" (Onell R. Soto, "Ploy paid man millions, authorities say", San Diego Union-Tribune, Jan. 18; Department of Justice press release, Feb. 9; Robert E. Kessler, "Two are charged in separate scams", Newsday, Feb. 10; Securities Litigation Watch, Jan. 18).
On Jan. 21 Mayor Don Williamson of Flint, Mich., issued an executive order directing the city not to do business with any enterprise or person who had sued the city during the previous five years. Last week he announced a retreat from that policy, his spokesman saying a record of having sued the city would henceforth be considered as one factor among others rather than as an automatic bar to doing business.
Williamson's original order had been criticized on various grounds, and the local ACLU chapter had threatened -- what else? -- to sue the city over the policy. Now, it should be noted that a municipality's blanket refusal to do business with lawsuit-filers very likely might run afoul of various laws: employment discrimination statutes, to take one notable example, typically include provisions banning employers from "retaliating" against persons who sue under them. Other state laws on topics such as procurement might also be plausibly implicated, and perhaps constitutional doctrines as well. On the other hand, news accounts portray the ACLU chapter as adventurously asserting some sort of universal if heretofore unenumerated right not to be retaliated against by any official body on the grounds of a record of litigiousness -- so that an asphalt contractor, for example, with a record of getting into repeated wrangles with the city over the terms of past contracts might have a constitutional right not to have that held against it in future competition for business. Given Flint's announced policy of continuing to consider proneness to litigation as one factor among others, it may be predicted that the controversy has not been finally put to rest. (Christofer Machniak, "Flint's no-sue policy modified", Flint Journal, Feb. 25; "Flint rescinds policy barring business with companies who have sued city", AP/Detroit Free Press, Feb. 24).
Pro se prisoner litigation isn't the biggest problem facing society, but the case of Ladell Alexander is impressive in its chutzpah. Alexander molested a little boy in a St. Joseph County, Indiana library, and was convicted of the crime. Judge Sharp threw out Alexander's lawsuit against the library security company for not doing enough to stop him, making the obvious point "Though every decent and moral person wishes that he had been prevented from committing this hideous crime, no one owes Mr. Alexander anything for having not done so." ("Molester tries to sue those who didn't stop him", South Bend Tribune, Dec. 9 ($); LibraryLaw Blog reprint of Alexander v. DBS Security, No. 3:04-CV-703 AS (N.D. Ind.)).
"New York's Bernstein Litowitz Berger & Grossman and Boston's Berman DeValerio Pease Tabacco Burt & Pucillo had asked for 7.5 percent of the settlement amount, or around $22 million, for serving as co-lead plaintiffs' counsel in a suit against pharmaceutical giant Bristol-Myers over its $2 billion investment in biotechnology company ImClone" and over a 2002 earnings restatement (see "Won Its Case, Still Paid $300M To Settle", Aug. 2). But federal judge Loretta Preska of the Southern District of New York cut the allowed fee to $12 million, observing that the case piggybacked on an SEC enforcement action and on statements already in the public record: "Among securities class actions, this case as a whole was neither unique nor complex." Moreover, it "is not thirty times more difficult to settle a thirty million dollar case as it is to settle a one million dollar case." And in a footnote, Judge Preska wrote that the 7.5 percent fee negotiated between the lawyers and their clients should not be accorded a presumption of fairness because the lead plaintiffs -- which included the Teachers' Retirement System of Louisiana, the Louisiana State Employees' Retirement System, the General Retirement System of the City of Detroit and the Fresno County Employees' Retirement Association -- had acted as "mere figureheads" for fee-seeking lawyers. Bernstein Litowitz partner Erik Sandstedt said the intimation that the pension funds served as mere figureheads "is completely untrue". (Anthony Lin, "Judge Halves Fees Sought in Bristol-Myers Securities Class Action", New York Law Journal, Feb. 28).
Peggy McGuinness at Opinio Juris discusses (Feb. 28).
By reader acclaim: "Teenagers in Orlando, Fla., are leaping between 80-foot high public parking garages in a new trend called 'garage jumping.'" And when some of them fail to make it from one structure to the other, what do you think happens next? Right-o: attorney Vincent D'Assaro is now "filing a lawsuit against the city of Orlando and the private garage owner" on behalf of Tim Bargfrede, 18, who fell six stories and was knocked unconscious on impact after a failed jump. D'Assaro says the fence was "very, very short" and inadequate to prevent a teen from (deliberately) making the jump. The family says "both garages need to take responsibility", it being apparently too much to expect young Bargfrede to do so. ("Teens Leaping For Thrills In 'Garage Jumping' Trend", Local6.com (WKMG-TV), Mar. 1; "Teen survives six-story fall from garage", St. Petersburg Times, Jan. 1).
Unseemly? Dangerous to the legal system's reputation for integrity? If so, that hasn't stopped some lawyers from hiring as consultants jurors who served on panels hearing their cases, including a much-publicized Orange County, Calif. rape trial that ended in a hung jury. We were onto the trend last Sept. 24, and now the Christian Science Monitor covers it (Marty Graham, "Flap ensues over hiring ex-jurors", Mar. 2).
Kevin Heller of TechLawAdvisor doesn't want us coming after him (Feb. 14). Our correspondence with Santa Barbara skin artist Pat Fish regarding tattoo disclaimers amused New York attorney and tattoo-muse Marisa Kakoulas, writing at BM Ezine ("Waivers and Releases for Tattoo and Piercing Studios", Feb. 27). And Best's Review, the insurance industry publication, quoted me a while back commenting on the U.S. Supreme Court's refusal to hear an appeal in a punitive damages case involving State Farm (R.J. Lehmann, "Briefing: Supreme Court puts State Farm case to rest", Nov. 1, subscriber-only).
Ill-conceived liability proposal #91,204, this time from Russia: "Weather forecasters in our city and the surrounding area will be held responsible for financial losses that the city incurs through their incorrect prognoses," said Moscow Mayor Yuri Luzhkov. ("Weathermen face fines", Ananova, Feb. 23; Peter Finn, "Forecasters Feeling Some Official Heat", Washington Post, Mar. 1)(via Alex Tabarrok).
In the November 16, 2003, episode of the best sitcom on television, "Arrested Development," Jason Bateman, playing the protagonist, Michael Bluth, is seen using a defective cooking product manufactured by the family business--and then, as his character is burned by the device, launches into a lengthy tirade of curse-words against the machine, all of which are bleeped. The humor comes from the length of the bleeping (a running gag in the episode) and the reactions of the other characters (as well as the fact that Michael is in the middle of lecturing his son "It's a poor carpenter that blames his tools for the--" when he burns himself). The Parents Television Council, in an effort to make America safe from humor, decided to guess what that tirade was, produced its own transcript with its imaginary version of the speech, and then promptly complained to the FCC about the "indecent" broadcast. Thankfully, the FCC unanimously denied the complaint, but the government had to pay lawyers to write memos that would help the FCC reach its 20-footnote decision--your tax dollars at work, since there's no penalty for wasting the government's time with such complaints. (And a welcome to Defamer and ALOTT5MA readers.)
The Michael Jackson defense is relying heavily on discrediting his accuser with his previous foray into civil litigation, a lawsuit against J.C. Penney that we covered in 2003. According to The Smoking Gun:
In a broadside on the accuser's mother, Mesereau described the woman as a shakedown artist who used her sick son as bait, a woman who coached her kids to lie in connection with an assault lawsuit the family once brought against J.C. Penney. Mesereau referred to a newly surfaced witness--who worked as a paralegal for the lawyer representing the family in the Penney case--who claims that the mother fabricated her allegations in that civil case. The paralegal contends that she hesitated to come forward because the mother once told her she had relatives in the Mexican Mafia.The unnamed paralegal was deposed over the weekend; ABC News is reporting that the mother will deny the allegations. (Damien McElroy, "Mystery Jackson witness emerges", Telegraph, Feb. 27; Tim Molloy, AP, Feb. 25). Meanwhile, Jesse Jackson is protesting the absence of black jurors on the panel.
